The sufficiency of evidence to establish the prosecution's case beyond all reasonable doubts, and the prejudicial impact of the absence of T.I. Parade and non-examination of the Investigating Officer on the finding of conviction.

JUDGMENT :

(Chakradhari Sharan Singh, J.)

By the impugned judgment and order dated 13.02.2020/15.02.2020 passed by the learned Additional Sessions Judge-XVI, East Champaran, Motihari in Sessions Trial No. 433 of 2006, the appellants have been convicted and sentenced as under:

2. A fardbeyan of the informant Ram Kishore Thakur (PW-4) recorded by the Sub-Inspector Shri Krishna Prasad (not examined at the trial) of Motihari Police Station on 22.09.2004 is the basis for registration of Muffasil (Motihari) P.S. Case No. 173/2004 levelling the offence punishable under Section 302/34 of the Indian Penal Code (for short “IPC”).

3. The prosecution’s case as unfolded in the fardbeyan is that on the date of occurrence i.e. 22.09.2004, the husband of the informant Sudhanshu @ Sudhanshu Kumar Singh @ Pappu Babu (the deceased) had come to the informant’s residence on a motorcycle with his co-villager Ravinder Kumar Singh (another deceased) and had asked the informant and his brother Nawal Kishore Thakur (PW-5) to accompany them to his village Patahi. It is the further case of the prosecution that thereafter the informant (PW-4), his brother (PW-5) proceeded with the said two deceased persons on two different motorcycles. On their way to the village Patahi, four miscreants who were in two motorcycles, intercepted. Two of them were identified by the informant as Ranjan Kumar Singh and Shailendra Singh. The informant further disclosed that Ranjan Kumar Singh fired at the deceased Sudhanshu Kumar Singh whereas Shailendra Kumar Singh shot at Ravinder Singh. When the informant and his brother attempted to apprehend them, the two persons, who were driving the two motorcycles, pointed pistols towards the informant and his brother and they subsequently managed to escape. Both the injured died instantaneously on the spot. Names of these appellants surfaced during the course of investigation.

4. Upon completion of investigation, the police submitted final report on 20.09.2005 to the extent it related to these two appellants; as according to the police, the appellants were innocent. However the learned Magistrate court, it appears, after taking cognizance of the offence by an order dated 20.09.2005 decided to proceed against all the four persons, including these two appellants with the other two main assailants namely Ranjan Kumar Singh and Shailendra Kumar Singh. Subsequently, the case was committed to the court of sessions. Charges were framed on 03.04.2007 against these appellants for commission of the offences punishable under Section 302/34 of the IPC and Section 27 of the Arms Act.

5. As the appellants denied the charges against them and claimed to be tried, they were put to trial. At the trial altogether five prosecution's witnesses were examined including the informant (PW-4), his brother Nawal Kishore Thakur (PW-5) who claimed to be the eye witnesses of the occurrence as was claimed by the informant in the first information report itself. PW-1 and PW-3 came to be declared hostile at the instance of the prosecution as they did not support the prosecution’s case. PW-2 is apparently a hearsay witness.

6. The Investigating Officer was not examined at the trial. The postmortem report was not proved at the trial. Apparently, the doctor who had conducted the postmortem was not examined.

7. Upon conclusion of the evidence of the prosecution’s witnesses, in compliance with the requirement under Section 313 of the Cr.P.C., learned trial court asked the appel