2004 INSC 0717
                                    SUPREME COURT OF INDIA

                                                Radha Kumar

                                                      Vs.

                                                State of Bihar

                                          Crl.A.No.1480 of 2003

                                   (B.N. Agrawal and H.K. Sema, JJ.)

                                                 14.07.2004

                                                   ORDER

B.N. Agrawal , J.

1. Heard learned counsel for the parties.

2. The sole appellant was convicted by the trial court under Section 304 Part II of the Penal
Code and sentenced to undergo imprisonment for a period of eight years. On appeal being
preferred, the High Court confirmed the 9 conviction and sentence. Hence this appeal by
special leave.

3. As this appeal is bound to succeed on a short question, there is no necessity to narrate the
facts. Suffice it to say that the allegation against the appellant was that he fired two shots
which hit one Salo Devi who succumbed to injuries. The first information report was lodged
by PW 7 who ^ having not supported the prosecution case in court was declared hostile.
Other witnesses who claimed to be eyewitnesses are PWs 2, 3, 4 and 6 out of whom PW 3
has been disbelieved by the trial court itself. As such there a remains evidence of PWs 2,
4 and 6. The occurrence is said to have taken place on 19-3-1993 and these witnesses were
examined in the Sessions Court between 12-8-1994 and 11-1-1995 i.e. after several months
of the date of the alleged occurrence. Undisputedly, these witnesses have not disclosed
complicity of the appellant in the crime in their statement made before the police inasmuch as
they have not even disclosed the name of the appellant as b the accused in their
statement made before the police and for the first time in the Sessions Court after several
months they have disclosed complicity of the appellant in the crime. No reason has been
assigned by the prosecution for non-disclosure of the name of the appellant before the police
by these witnesses. This being the position, we are of the view that it would not be safe to
place reliance upon the statement of these witnesses made for the first c time in the Sessions
Court after several months of the alleged occurrence without there being any reasonable
excuse for not naming the accused before the police especially when the prosecution case has
not been supported by the informant who also claimed to be an eyewitness.
(2005) 10 SCC 216

                                                                                                                      SpotLaw
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4. For the foregoing reasons, we are of the view that the prosecution has ^ failed  to

prove its case beyond reasonable doubt and the High Court was not justified in upholding

conviction of the appellant and, accordingly, the appeal is allowed, conviction and sentence

of the appellant are set aside and he is acquitted of the charge. The appellant is directed to be

released forthwith, if not required in connection with any other case.

(2005) 10 SCC 216                                                                   SpotLaw

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