The prosecution must prove its case beyond reasonable doubt, and reliance on witness testimony requires corroboration, especially when witnesses are near relatives.

JUDGMENT :

Vipul M. Pancholi, J.

The present appeal has been filed under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred as ‘Code’) challenging the judgment of conviction and order of sentence dated 16.05.2019 passed by learned Presiding Officer, F.T.C. II, Rohtas at Sasaram in Sessions Trial No. 263 of 1996, arising out of Chenari P.S. Case No. 58 of 1995, G.R. No. 1642/1995, whereby the concerned Trial Court has convicted the present appellants for the offences punishable under Sections 341, 307/34, 323 and 302/34 of the I.P.C., 5 years for Section 307/34 of the I.P.C. and imprisonment for life under Section 302 of I.P.C. and the sentences have been directed to run concurrently.

2. At the outset, learned counsel for the appellants submits that after filing of the present appeal, Appellant No. 2 Bhikhari Pandit has died and, therefore, the present appeal stands abated qua Appellant No. 2 Bhikhari Pandit.

3. We have, therefore, considered the present appeal qua the Appellant No. 1 and Appellant No. 3.

4. The prosecution story, in brief, is as under:-

“On 10.09.1995, at 08:30 a.m., the informant and his father Shivdhari Pandit were going towards Narayanpur to buy Kerosene oil. As soon as they reached near the house of Pata Pandit and Bhenga Pandit, the accused persons, armed with lathi in their hands, surrounded them and then Bhikhari Pandit assaulted with lathi on the head of the informant causing injury on his head. Lalbabu Pandit and Jay Kumar Pandit assaulted his father on head and body by lathi causing injury which made him to fall down on earth and also the blood started oozing. Thereafter, they fled away. Ram Vyash Pandit, Kachahari Ram and Lal Mohar informed him about the incident. Thereafter, they rushed his father to Chenari Hospital for his treatment. The reason of the said occurrence is that some altercation took place between both the parties on the point of soil cutting and water lobbing in the land of the accused persons nearby the house of the informant.”

5. After registration of the F.I.R., the Investigating Officer carried out the investigation and, during the course of investigation, he had recorded statement of the witnesses, collected the material and thereafter filed the charge-sheet against the accused. The case was exclusively triable by the Court of Sessions and, therefore, the concerned Magistrate committed the same under Section 209 of the Code to the concerned Sessions Court where the same was registered as Sessions Trial No. 263 of 1996.

6. During the course of trial, the prosecution examined five witnesses and also produced certain documentary evidence. Thereafter, further statement of the accused under Section 313 of the Code came to be recorded. After conclusion of the trial, the Trial Court passed the impugned judgment and order whereby the Trial Court convicted the present appellants, as stated hereinabove. The appellants have, therefore, preferred the present appeal.

7. Heard Mr. Digvijay Kumar Ojha, learned counsel for the appellants and Mr. Sujit Kumar Singh, learned A.P.P. for the Respondent-State.

8. Learned counsel for the appellants would mainly contend that though there are no eye-witnesses to the incident in question, the prosecution had projected PW-1, PW-2 and PW-3 as eye-witnesses. In fact, they are not eye-witnesses to the incident in question and they are near relatives of the deceased. It is further submitted that there are major contradictions, inconsistencies and discrepancies in the deposition given by the so called eye-witnesses and, therefore, this Court may not accept the version given by the said so called eye-witnesses who are near relatives of the deceased.

9. Learned counsel, at this stage, submits that the prosecution has failed to examine the Doctor who had conducted the post mortem of the dead body of the deceased. The prosecution has also not examined the Investigating Officer who had carried out the investigation. Thus, because of the non-examinat