The prosecution must prove its case beyond reasonable doubt, and failure to examine key witnesses, particularly the Investigating Officer, creates reasonable doubt that mandates acquittal.

JUDGMENT :

Ramesh Chand Malviya, J.

Heard Mr. Mahendra Thakur assisted by Mr. Shashi Bhusan Pandey for the appellant in Cr. Appeal (SJ) No. 621 of 2008, Mr. Sangeet Deokuliar learned counsel for the appellant in Cr. Appeal (SJ) No. 687 of 2008 and Mr. Mukeshwar Dayal learned APP for the State.

2. The present appeal has been filed under Section 374(2) of Code of Criminal Procedure, 1973 (hereinafter referred as ‘Cr.P.C’) challenging the judgment of conviction dated 19.05.2008 and order of sentence dated 31.05.2008 passed in Sessions Trial Case No. 763 of 2006 arising out of Banjaria P.S. Case No. 49 of 2005 dated 10.01.2005 passed by the learned Additional District and Sessions Judge (FTC)-I, Motihari, whereby and where-under the appellants have been convicted for the offence punishable under Sections 363 and 364/34 of Indian Penal Code (hereinafter referred as ‘IPC’) and have been sentenced to undergo rigorous imprisonment for ten years under Sections 364/34 of the IPC and fine of Rs. 5000 and in default of payment of fine, further simple imprisonment for 1 year.

3. As per the fardbeyan of the informant, on 09.01.2005 at 9:50 PM to the police alleging that on the same day at about 7.00 PM his brother Sah Alam (victim) was sitting at his door when a commander jeep came and three persons got down from the jeep and came near the brother of the informant, meanwhile the informant came out from his house. The informant identified those persons as Md. Mustafa, Illiyas and Sk. Lal Babu the brother of the informant and on the point of pistol forcibly taken him on the jeep in which 5-6 other persons were also present who have concealed their faces due to which he couldn't identified them. The brother of the Sah Alam raised alarm also but all the accused persons fled away by the jeep taking his brother. The reason behind the occurrence is alleged to be previous enmity.

4. Further on the basis of fardbeyan, Banjaria P.S. Case. No. 06 of 2005 has been registered against three named persons including the appellants and some unknown persons under Section 363 and 364 of IPC and accordingly after investigation the police submitted charge-sheet against the appellants and four others keeping investigation pending for other accused persons, under Sections 363 and 364/34 of IPC. After due process the learned CJM, Moltihari took cognizance of the offence on 18.06.2005 against seven accused persons and accordingly after due process of law the case has been committed to the Court of Session's. The statement of the accused persons was taken under Section 313 of the Cr.P.C where the appellants have denied the allegations leveled against them.

5. On behalf of prosecution altogether 12 witnesses were examined to substantiate the charges levelled against the appellants, who are namely, PW-1 Brija Bhar Singh, PW-2 Sk Khairati, PW-3 Md. Alam, PW-4 Sk Arif, PW-5 Basudev Prasad, PW-6 Md. Inzaz, PW-7 Aftab Alam, PW-8 Raushan Ara, PW-9 Zohra Khatoon, PW-10 Sk Shafi-ullah, PW-11 Naima Khatoon and PW-12 Pravez Alam (informant).

6. All the prosecution witnesses have been declared hostile by the prosecution except PW-12 informant of the present case.

7. PW-12 in his examination-in-chief stated that the occurrence is of 09.01.2005 in the evening, he was standing at his door when Musatfa, Sheikh Ilyas and Shev Lal Babu came to his brother Shah Alam in a commander jeep and took Shah Alam away by pointing the pistol on him. He further stated that they were sitting on the jeep with their face covered and 2-3 shots were fired from the jeep itself. He has identified his and Om Prakash Tiwari's signatures given on the statement which have been ma