The prosecution must prove its case beyond reasonable doubt, and failure to examine key witnesses creates reasonable doubt, leading to acquittal.

JUDGMENT :

(Ramesh Chand Malviya, J.)

Learned senior counsel appearing on behalf of the appellant has submitted that Ganesh Choudhary, has died during the pendency of this appeal.

2. Accordingly this appeal qua appellant No. 2 Ganesh Choudhary, stands abated.

3. The present appeal has been filed under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred as ‘Cr.P.C.’) challenging the judgment of conviction dated 08.04.2019 and order of sentence dated 10.04.2019 passed in Sessions Trial No. 387 of 2005 (arising out of Patory P.S. Case No. 142 of 2002, by learned Additional Sessions Judge-3rd, Samastipur by which the appellants/accused have been convicted for the offences punishable under Sections 341, 342, 328, 302, 120B of Indian Penal Code and sentenced to undergo simple imprisonment for life.

4. Heard Mr. Ramakant Sharma, learned senior counsel for the appellants assisted by Mr. Suneil Kumar Thakur, Mr. Amresh Kumar, Ms. Khusi Awadh, Mr. Jitendra Narain Sinha and Mr. Sujit Kumar Singh, learned A.P.P. for the respondent-State.

5. The brief facts leading to the filing of the present appeal as per the prosecution version in brief is that the instant case initially as an U.D. Case No. 04 of 2002, dated 23.10.2002 was registered and thereafter on 20.11.2002 a Complaint Case No. 1349 of 2002 was filed by the informant Ram Japan Rai stating that in the morning, he got an information that at about 6:30 AM his son Ashok Kumar Rai (deceased) was called by Pawan Choudhary son of Satnarayan Chaudhary for taking taadi (palm wine). Later on, it transpired that Ashok Kumar Rai (deceased) has been killed and his family members and other people went at the place of occurrence. Thereafter, the informant also reached there and found his son dead on the doors of accused, where his mouth and nose were frothing with blood. On the basis of the said circumstances, the informant suspected that the accused persons, including the appellants, had administered poison in taadi (palm wine) with an intention to kill his son. It has further been alleged that one Om Prakash, elder son of the informant, also told the informant that four days before the incident, Ashok Kumar Rai had some altercations with Satnarayn Choudhary for the lease money. Police did not lodge the F.I.R, hence complaint case was filed bearing no.1349 of 2002 and there were total seven accused in the complaint case.

6. On the basis of subsequent complaint filed by the informant, the present case was instituted and investigation was taken up converting the U.D. Case No 04 of 2002 into F.I.R. and after receiving chargesheet, learned Chief Judicial Magistrate, Samastipur took the cognizance of the offence.

7. During course of the trial, the prosecution has examined alltogether 11 (Eleven) witnesses including the informant. Out of them, PW-1 Raj Kumar Rai, PW-2 Tilakeshwar Rai, PW-3 Nanhki Mahto, PW-4 Om Prakash Rai S/o Lakshma Rai, PW-5 Kamal Rai, PW-6 Mamta Devi, PW-7 Ram Japan Rai (Informant), PW-8 Om Prakash Rai S/o Ram Japan Rai, PW-9 Ghuran Rai, PW-10 Nagendra Rai, PW-11 Arjun Rai have been examined. The Investigating Officer of the case and the doctor who has done post mortem have not been examined during course of the trial.

8. Learned senior counsel for the appellants, Mr. Ramakant Sharma, at the outset, submits that in this complaint case i.e. the very basis of F.I.R has been lodged after an inordinate as well as unexplained delay of 03 days of lodging the U.D. Case No. 04 of 2002, which has not been explained.

9. Learned counsel for the appellants, Mr. Jitendra Narain Sinha further submitted that in a circumstance, when the prosecution has not taken any pain to examine both the doctor as well as the IO prejudice in the prosecution case and, as such, it becomes very fatal for the prosecution, when the Viscera is preserved during post mortem examination. He further submitted here that none of the independent witnesses have supported the prosecution version. Cont