ORAL JUDGMENT 1. The Senior Superintendent of Police, Gaya reported vide its letter no. 3070 dated 24.04.2013 that appellant no. 8, namely, Raja Kahar has died during the pendency of this criminal appeal. 2. In view of the aforesaid report, the appeal filed on behalf of the appellant no. 8, namely, Raja Kahar is abated. 3. Heard learned counsel appearing for the appellants as well as learned Additional Public Prosecutor for the State and perused the record. 4. This criminal appeal has been preferred against the judgment of conviction and order of sentence dated 27.06.2001 passed by learned 7th Additional Sessions Judge, Gaya in Sessions Trial No. 357 of 1999/11 of 1994 by which and whereunder he convicted the appellants for the offences punishable under Sections 147, 307 read with Section 149 and 364 read with Section 149 of the Indian Penal Code whereas all the appellants were acquitted of the charge framed under Section 379 read with Section 149 of the Indian Penal Code against them. The appellants were sentenced to undergo rigorous imprisonment for a period of two years under Section 147 of the Indian Penal Code and they were further sentenced to undergo rigorous imprisonment for a period of five years and to pay a fine of rupees two thousand each under Section 307 read with Section 149 of the Indian Penal Code and in default thereof, to further undergo rigorous imprisonment for a period of one year. Furthermore, all the appellants were sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of rupees two thousand each under Section 364 read with Section 149 of the Indian Penal Code and in default of payment of fine, they were ordered to further undergo rigorous imprisonment for a period of one year. However, all the above stated sentences were ordered to run concurrently. 5. P.W. 2, namely, Krishna Ram gave his Ferdbeyan (Exhibit-3) to S.I., Gurua police station on 13.02.1992 at 11:20 hours in Gurua hospital to this effect that in the midnight of 12.02.1992, he was crushing sugarcane in his field along with Satendra @ Bullu, Dhananju (P.W. 3) and one Ramnandan Bhuiyan. In the meantime, at about 12:00 O’clock in night 20 to 25 persons being armed with lathi, bhala and gun came there and surrounded him as well as others and caught him as well as Satendra @ Bullu. In the meantime, at about 12:00 O’clock in night 20 to 25 persons being armed with lathi, bhala and gun came there and surrounded him as well as others and caught him as well as Satendra @ Bullu. The aforesaid persons tied his hands with rope and Gamcha. The above stated Dhananju managed to escape from the clutches of aforesaid criminals and hid himself in a sugarcane field. The aforesaid miscreants left Ramnandan after assaulting one or two blows by danda whereas he as well as Satendra @ Bullu was taken towards north side. The aforesaid miscreants started assaulting Satendra @ Bullu whereas he was taken in the field situated in Ganauri Tola. The aforesaid miscreants brutally assaulted him with farsa and lathi but in the meantime, his villagers came there raising alarm and having heard the noise of villagers, the miscreants left him and fled away from there. He was taken to hospital where he found Satendra @ Bullu in injured condition. He claimed to have identified the appellants at the time of alleged occurrence and stated that appellants had participated in committing the alleged crime. He further stated that miscreants took away Chakki from his field and reason behind the alleged occurrence is said to be previous enmity due to childish quarrel which had taken place prior to the alleged occurrence. 6. On the basis of aforesaid Ferdbeyan, Gurua P.S. Case No. 07 of 1992 under Sections 147, 148, 149, 307, 364, 379 of the Indian Penal Code was registered. Formal first information report was drawn up against all the appellants and after investigation, police submitted charge sheet for the offences punishable under Sections 147, 148, 149, 307, 364, 379 of the Indian Penal Code. The cognizance of the offence was taken and the case was committed to the court of Sessions, in usual way. 7. All the appellants including the deceased Raja Kahar were put on trial and accordingly, they were charged for the offences punishable under Sections 147, 307 read with Section 149, 364 read with Section 149 and 379 read with Section 149 of the Indian Penal Code . The charges were denied by the appellants. 8. 7. All the appellants including the deceased Raja Kahar were put on trial and accordingly, they were charged for the offences punishable under Sections 147, 307 read with Section 149, 364 read with Section 149 and 379 read with Section 149 of the Indian Penal Code . The charges were denied by the appellants. 8. In course of trial, prosecution examined, altogether, 6 witnesses and also proved signature of P.W. 2 on Ferdbeyan as Exhibit-1, formal first information report as Exhibit-2, Ferdbeyan as Exhibit-3 and injury reports of P.W. 2 and Satendra @ Bullu as Exhibit-4 series. The statements of appellants including the deceased, Raja Kahar were recorded under Section 313 of the Cr.P.C. in which they reiterated their innocence. No evidence was adduced on behalf of the appellants in support of their defence but from perusal of their statements recorded under Section 313 of the Cr.P.C. as well as trends of cross examination of prosecution witnesses, it appears that defence of the appellants was total denial of prosecution story as well as their false implication on account of previous enmity. 9. The learned trial court, having analyzed the materials available on the record and having relied upon the testimonies of P.W. 1, P.W. 2 and P.W. 3 coupled with Exhibit-4 series, convicted and sentenced the appellants in the manner as stated above. 10. Learned counsel appearing for the appellants challenged the impugned judgment of conviction and order of sentence arguing that the learned trial court has based its finding only on surmises and conjectures. He further submitted that no independent prosecution witness including the injured of this case, namely, Satendra @ Bullu came forward to support the prosecution story. He further submitted that doctor was not examined by the prosecution before the trial court and the Exhibit-4 series were exhibited by the learned trial court under Section 294 of the Cr.P.C. but even if the aforesaid Exhibit-4 series were exhibited under Section 294 of the Cr.P.C., then also, the learned trial court wrongly relied upon the aforesaid Exhibit-4 series because non examination of the doctor caused serious prejudice to the appellants. He further submitted that Investigating Officer was also not examined before the trial court and non examination of the Investigating Officer caused serious prejudice to the appellants because the appellants could not get an opportunity to bring the improvements and the contradictions made by prosecution witnesses before the trial court. He further submitted that the prosecution failed to prove this fact that P.W. 2 as well as so called injured Satendra @ Bullu was assaulted by the appellants with intention and knowledge to kill him and, therefore, the learned trial court committed error in convicting the appellants for the offence punishable under Section 307 read with Section 149 of the Indian Penal Code. He also submitted that similarly, prosecution could not succeed to prove charge framed against the appellants for the offence punishable under Section 364 read with Section 149 of the Indian Penal Code but in spite of that the learned trial court passed the impugned judgment of conviction and order of sentence. 11. On the other hand, learned Additional Public Prosecutor supported the impugned judgment of conviction and order of sentence arguing that P.W. 2 being informant and injured of this case fully supported the story of assault and kidnapping as well as participation of the appellants in the alleged crime and his deposition lends support from Exhibit-4 series which is injury reports of P.W. 2 as well as injured Satendra @ Bullu. He further submitted that investigation of this case was conducted by the Investigating Officer in a very perfunctory manner because even the Investigating Officer did not record the statement of injured Satendra @ Bullu in course of investigation and, therefore, the learned trial court rightly passed the impugned judgment of conviction and order of sentence and non examination of the Investigating Officer has caused no prejudice to the appellants. 12. As I have already stated that, altogether, six prosecution witnesses were examined in course of trial, out of whom P.W.4, P.W. 5 and P.W. 6 have been declared hostile but the aforesaid prosecution witnesses have supported the prosecution story to this extent that on the alleged date of occurrence an occurrence had taken place. 13. P.W. 1, Deo Narain Kahar is a hearsay witness and this witness stated that on the alleged date of occurrence P.W. 3 came at his home and stated that appellants took the P.W. 2 and Satendra @ Bullu. 13. P.W. 1, Deo Narain Kahar is a hearsay witness and this witness stated that on the alleged date of occurrence P.W. 3 came at his home and stated that appellants took the P.W. 2 and Satendra @ Bullu. This witness stated that having got the aforesaid information he raising alarm went to Kolsar where he found Gullu lying in unconscious state. He noticed that Gullu had sustained injury on his head. He further stated that injured, Gullu was sent to Gurua hospital and after that he as well as others proceeded in search of P.W. 2 who was found lying in unconscious state near Pahra Pahad. This witness noticed that the hands of P.W. 2 were tied from backside and he had also sustained injury on his person. P.W. 2 was also brought to hospital and having regained his consciousness, he disclosed the name of appellants as assailants. 14. P.W. 3 is son of P.W. 2 and this witness stated that at the time of alleged occurrence he had gone to Kolsar where he saw 20 persons coming towards him. He stated that having seen the aforesaid persons, he hid himself in the field of sugarcane. He claimed to have identified the appellants amongst the aforesaid 20 persons. He further stated that the aforesaid persons tied the hands of his father as well as Gullu and both the aforesaid persons were taken away towards north side. He also stated that aforesaid persons gave two to three blows of lathi to Ram Nandan Bhuiyan. He further stated that he came to the house of P.W. 1 and narrated the entire story to him and also informed Mukhiya, Bhuneshwar Yadav and one Rajdeo Yadav. He further stated that he along with aforesaid persons went in search of his father and above stated Bullu and in course of search, Bullu was found lying in unconscious state in a field. He noticed that Bullu had sustained injury on his head and chest. He further stated that he and some other persons brought injured Bullu to hospital whereas rest persons went in search of his father and after that his father was also brought to the hospital. 15. P.W. 2, Krishna Ram is informant as well as injured of this case. He supported his Ferdbeyan and proved his signature on Ferdbeyan as Exhibit-1. He further stated that he and some other persons brought injured Bullu to hospital whereas rest persons went in search of his father and after that his father was also brought to the hospital. 15. P.W. 2, Krishna Ram is informant as well as injured of this case. He supported his Ferdbeyan and proved his signature on Ferdbeyan as Exhibit-1. The attention of this witness was drawn towards his previous statement recorded by the Investigating Officer in course of investigation and this witness stated that he had stated before the police that he had disclosed the name of appellants before the villagers when they reached on the place of occurrence and furthermore, he stated to have made statement before the police that due to childish quarrel, the appellants had given threatening of dire consequences. At para 9 of his cross examination, this witness admitted that appellant no. 5 namely, Sheochand Bhagat and one Jugeshar Bhagat had lodged a case against the P.W. 1 who happened to be his full brother. At para 10 of his cross examination this witness admitted that one Ram Awtar Singh was earlier Mukhiya of his village whereas at the time of alleged occurrence Kesar Yadav was Mukhiya of his village. He also admitted that there was dispute between Kesar Yadav and Ram Awtar Singh and Ram Awtar Singh was father of appellant no. 8 ( since deceased) and appellant no. 9 was own nephew of appellant no. 8. This witness also admitted that there were two groups in his village and one group was led by Kesar Yadav whereas another group was led by Ram Awtar Singh. He also admitted that all the appellants were members of group led by Raja Singh (appellant no. 8) who happened to be son of Ram Awtar Singh, Ex Mukhiya. At para 14 of his cross examination, he admitted that present Mukhiya Kesar Yadav was witness in his case. At para 16 of his cross examination, he stated that when villagers reached near the place of occurrence he was in semi unconscious state but when villagers untied his hands, he regained his consciousness. He further stated that he was taken to his home from where he was brought to hospital by the villagers. He stated that he was brought to hospital by the villagers. He further stated that he was taken to his home from where he was brought to hospital by the villagers. He stated that he was brought to hospital by the villagers. He stated that he was brought to hospital at about 01:00 P.M. and police came in the hospital within ten to fifteen minutes of his arrival in the hospital. 16. On perusal of the evidences available on the record, I find that P.W. 2 and P.W. 3 claimed to have identified the appellants at the time of alleged occurrence but according to P.W. 3 he fled away from the place of occurrence at the time of alleged occurrence and hid himself in a sugarcane field which was situated at 8 degs from the place where miscreants came and picked up his father and Satendra @ Bullu. This witness does not disclose the source of identification and admittedly, the alleged occurrence took place in midnight so, it is very difficult to believe on this fact that this witness could identify the appellants in dark night from the distance of 8 degs. 17. Admittedly, only family members of P.W. 2 have been examined by the prosecution and no independent witness has come forward to support the prosecution story. No doubt, the statement of a prosecution witness cannot be thrown out only on the ground that said prosecution witness is an interested and partisan witness but the deposition of interested and partisan witness should be scrutinized with great care and cautious. 18. In the instant case, it is an admitted case of prosecution that there was previous enmity between the appellants and P.W. 2 and furthermore, P.W. 2 has admitted in his deposition that there were two groups in his village and the appellants belonged to one group whereas he belonged to another group. Furthermore, P.W. 1 who happened to be brother of P.W. 2 also admitted at para 6 of his cross examination that appellants Sheochand Bhagat had lodged criminal case against him on 03.12.1991 prior to the alleged occurrence and claimed to have made statement before the police to this effect that P.W. 3 had disclosed the name of appellants. Similarly, P.W. 3 admitted at para 15 of his cross examination that he made his statement before the police after next day of the alleged occurrence. Similarly, P.W. 3 admitted at para 15 of his cross examination that he made his statement before the police after next day of the alleged occurrence. A specific suggestion was given to P.W. 1 by the defence that he had not named the appellants before the police in course of investigation. Therefore, it is obvious from the aforesaid fact that non examination of Investigating Officer has caused serious prejudice to the appellants because appellants could not succeed to bring the contradictions and developments made by P.W. 1, P.W. 2 and P.W. 3 on record in course of trial. 19. It is admitted case of prosecution that all the miscreants were armed with lathi, farsa and gun and P.W. 2 as well as injured Satendra @ Bullu were taken by the aforesaid miscreants up to one and half K.M. but between the aforesaid distance the miscreants did not use the gun. Furthermore, the statement of P.W. 2 reveals that there was no intervening circumstance to prevent the miscreants to commit his murder and the miscreants fled away from the place of occurrence leaving the P.W. 2 when they heard the noise of villagers but even then they did not use the gun and therefore, the aforesaid circumstance indicates that miscreants had no intention to commit the murder of P.W. 2 and injured Satendra @ Bullu and, therefore, the learned trial court committed an error in convicting the appellants under Section 307/149 of the Indian Penal Code. Similarly, Section 364 of the Indian Penal Code is also not applicable in this case because Section 364 of the Indian Penal Code comes into play when a victim is kidnapped or abducted with an intent that the aforesaid victim may be murdered or may be so disposed of as to be put in danger of being murdered but in the instant case, as I have already discussed that circumstances reveal that P.W. 2 as well as injured Satendra @ Bullu were not abducted or kidnapped with intent to cause their murder and, therefore, in my view, the learned trial court committed error in convicting the appellants under Section 364 read with Section 149 of the Indian Penal Code. 20. 20. According to the prosecution case, Ram Nandan Bhuiyan witnessed the alleged occurrence and Satendra @ Bullu sustained injury in the said occurrence but neither the aforesaid Ram Nandan Bhuiyan nor injured Satendra @ Bullu was examined by the prosecution and apart from this not a single independent prosecution witness has come forward to support the story of participation of the appellants in the alleged crime. No doubt, P.W. 4 to P.W. 6 have supported the fact of occurrence but they have not stated about the participation of the appellants in the alleged crime and, therefore, in my view, prosecution could not succeed to prove charges levelled against the appellants beyond all shadow of reasonable doubts and the appellants are entitled to get the benefit of doubt. 21. On the basis of aforesaid discussions, this criminal appeal is allowed and impugned judgment of conviction and order of sentence are, hereby, set aside. The appellants are acquitted of the charges giving benefit of doubt. The appellants are on bail. They are discharged from the liabilities of their respective bail bonds.