The prosecution must prove its case beyond reasonable doubt, and inconsistencies in witness testimonies and investigative delays can undermine its credibility.

JUDGMENT

Karunesh Singh Pawar, J.

Heard Shri Vimal Kishor Singh, learned Counsel for the appellant and Ms. Mamta Pandey and Shri Alok Tiwari, learned A.G.A. for the respondent/State.

2. This criminal appeal under Section 374(2) of the Code of Criminal Procedure, 1973 has been preferred by the appellant, Rajesh, challenging the judgment and order dated 16.11.2002 passed by the Additional Sessions Judge/Fast Track Court no.3, Sitapur in Sessions Trial No. 414 of 2001: State of U.P. v. Rajesh, arising out of Case Crime No. 117 of 2000, under Sections 452 /307 INDIAN PENAL CODE , Police Station Ataria, District Sitapur, whereby the appellant was convicted and sentenced as under :-

"(a) under Section 452 I.P.C. to undergo 2 years' rigorous imprisonment and a fine of Rs.500/-. In default of payment of fine to undergo additional one month's simple imprisonment; and

(b) under Section 307 I.P.C. to undergo 5 years' rigorous imprisonment and a fine of Rs.1000/-. In default of payment of fine to undergo additional two month's simple imprisonment.

(c) All the sentences were directed to run concurrently."

3. The prosecution case, as per the written report dated 4.8.2000 (Ext.Ka-1), is that in the intervening night of 3/4th August, 2000, the daughter of the informant-Vidyadhar (P.W.1), namely, Kusma (P.W.2) and Sona Devi (P.W.3) were lying in the courtyard and his son, namely, Makhan (P.W.4) was lying on the terrace and other members of the family were lying outside. Around 1 O'clock in the night, accused-Rajesh break through into his house, upon which both his daughters (Kusma and Sona Devi) woke up after hearing the sound and started raising alarm. Consequently, accused-Rajesh opened a fire from his country-made pistol, which hit on the right shoulder and temples (kanpati) of his daughter Kusma (P.W.2). On the noise of fire everyone woke up and then the accused-Rajesh ran away from his house. Vishambhar, Baburam and other people of the village had chased the accused-Rajesh, however, due to night, they could not catch the accused-Rajesh. The informant Vidyadhar (P.W.1), his family members and villagers saw the accused-Rajesh in the torch light clearly and identified him. It has also been alleged that accused- Rajesh is thief and has went several times to jail for committing theft.

4. The evidence of P.W.9-Mohd. Musheer shows that on 04.08.2000, he was posted as Constable Moharrir at police station Ataria, district Sitapur. On that date, at about 06:15 a.m., informant- Vidyadhar (P.W.1), his injured daughter (P.W.2-Kusuma), his brother Sridhar and Suresh etc. came at police station Ataria, district Sitapur and P.W.1-Vidyadhar filed his written FIR on the basis of which he prepared the chik FIR (Ext. Ka.1). He, thereafter, sent the injured Kusma (P.W.2) along with Constable Ram Kumar Rawat for medical examination.

5. A perusal of the chik FIR shows that the distance between the place of incident and Police Station Ataria was 12 kilometer. It is significant to mention that a perusal of the chik FIR also shows that on its basis a case under Sections 452 , 307 I.P.C. was registered against appellant-Rajesh.

6. The evidence of SI Dhruv Dutt Tripathi (P.W. 8), in short, shows that on 03.08.2000, he was posted as Sub-Inspector at police station Ataria, District Sitapur. On 04.09.2000, after registration of the F.I.R., investigation was entrusted to him. He immediately commenced the investigation and proceeded to the place of incident where he recorded the statements of the informant-Vidyadhar (P.W.1), Smt. Sita Devi, Vishambar, Babu Ram. On the pointing out of P.W.3-Sona Devi, he inspected the place of occurrence and prepared the site plan (Ext.