The main legal point established in the judgment is that the benefit of doubt must go to the accused when the prosecution fails to prove the place and manner of occurrence, inconsistencies in witness testimonies, and lack of evidence linking the accused to the crime.

(Per: Hon'ble Mr. Justice Navaniti Pd. Singh)

This appeal is directed against the judgment and order of conviction dated 7.7.1989, passed by the 4th Additional Sessions Judge, Gaya; in Sessions Trial Nos. 23 of 1989/354 of 1987 wherein the sole appellant, Md. Ishaque Khan has been convicted under Section 302 of the Indian Penal Code (I.P.C.) for causing the death of one Md. Hassnain Khan @ Kallu Khan and he has been further convicted under Section 307 I.P.C. for attempting murder of the informant, Md. Jamal Khan (P.W. 11). He has been sentenced to undergo rigorous imprisonment for life and five years respectively. The sentences had been ordered to run concurrently.

2. The prosecution story starts with the fardbeyan of the informant, Md. Jamal Khan (P.W. 11) recorded at the Belaganj Police Station at 1:30 am on 26.8.1985. It is alleged by the informant that in the night intervening between 25th and 26th August, 1985 when he was sleeping outside on a cot alongwith the deceased, Md. Hassnain Khan @ Kallu Khan, Md. Wasim Khan (P.W. 7), Kafil Khan (P.W. 4), Nanhu Khan (P.W. 10), Wahid Khan (P.W. 8) and Wali Khan, son of Wahid Khan at about 1 a.m. in the night/morning he heard a close range gun shot fire. He got up. He then found the appellant aiming at him then shooting and injuring him. By the time second shot was fired others also got up after which the accused was chased who entered into the maize field and escaped. Upon return, it was found that Md. Hassnain Khan @ Kallu Khan had been shot in the head and was profusely bleeding. Villagers carried him on the cot itself to the Government Hospital, Belaganj whereas he in the injured condition was taken to the Belaganj Police Station on motorcycle by Ramjanam Singh (P.W. 9) and Nanhu Khan (P.W. 10) where his statement was recorded at 1:30 am. The reason for the shooting is that Md. Hassnain Khan @ Kallu Khan was instrumental in effecting partition of properties as between the appellant and his step-brother, Raqibul Hassan to which the appellant was not agreeable. Appellant had sold all his properties in this village and was living with his father-in-law in another village. Both the appellant and Raqibul Hassan are brother-in-law of the informant. Upon this fardbeyan the case was immediately registered under Sections 307 & 324 I.P.C. and Section 27 of the Arms Act.

3. The police took up the investigation and immediately on receipt of information of death of Md. Hassnain Khan @ Kallu Khan at the Belaganj Government Hospital Section 302 I.P.C. was also added to the case. The inquest report was prepared. Injury reports of the informant and that of the deceased when they first reached the Hospital were obtained. The appellant was later arrested. The case was investigated by Bishwanath Singh (P.W. 14) but the charge-sheet was ultimately filed by Braj Kishore Singh (P.W. 12). The Court, having taken cognizance of the offence under Sections 302 & 307 I.P.C. committed the same to the Court of Sessions for trial. The appellant pleaded not guilty and was tried for the charge under Sections 302 & 307 I.P.C., as noted above, found guilty and convicted but no charge under Arms Act was framed at any point of time.

4. In course of trial prosecution examined as many as 15 witnesses out of whom 5 claimed to be eye witnesses though we will presently show that 3 of them on their own deposition in the Court cannot be termed as eye witnesses, which leaves us only with two eye witnesses who again at best can be said to be witnesses to the shooting by the appellant upon the informant. There is no witness so far as the offence under Section 302 I.P.C. is concerned. The Trial Court apparently on presumption and assumption held him guilty of the said offence too which we would presently show was wrong.

5. P.W.1 is Sanjay Kumar Singh who is a formal witness. He is an Advocate's Clerk and merely proves the first information report, Ext.-1. P.W. 2 is Satender Singh. He admits to be a hearsay witness and was