LALAN MAHTO Vs. STATE OF BIHAR

JUDGEMENT

(1.) By this Jail appeal, appellant/convicted accused Lalan Mahto is challenging the Judgment and Order dtd. 20/10/2014 and 22/10/2014 respectively passed by the learned 2nd Additional Sessions Judge, East Champaran, Motihari, in Sessions Trial No.48/02 of 2013/013, thereby convicting him of the offence punishable under Sec. 302 of the Indian Penal Code and sentencing him to suffer imprisonment for life with a direction to pay fine of Rs.10,000.00 and in default to undergo rigorous imprisonment for three months. For the sake of convenience, the appellant shall be referred to as "an accused".

(2.) Facts in brief leading to the prosecution of the accused projected from the police report can be summarized thus:

(3.) We heard Ms. Archana Palkar Khopde, the learned Advocate appointed to espouse the cause of the appellant in this Jail appeal. By taking us through the record and proceedings, she vehemently argued that the learned trial court has committed serious error of law by exhibiting the confessional statement (Ext.4) of the accused recorded by the Police Officer and held it to be admissible in evidence ignoring the mandate of Ss. 24 and 25 of the Evidence Act. She further argued that inadmissible confessional statement (Ext.4) was taken as foundation for basing conviction for the capital offence and this approach of the learned trial court deserves to be depreciated and resultantly accused deserves acquittal. The learned appointed Advocate appearing for the appellant drew our attention to the provision of Sec. 162 of the Code of Criminal Procedure and argued that use of statement of witnesses examined by the police under Sec. 161 of the Code of Criminal Procedure is very limited. She further argued that Sec. 162 of the Code of Criminal Procedure is very clear on this aspect and the learned trial court ought not to have used police statement of P.W.3 Laxman Mahto for corroborating his version and for basing the conviction for the offence punishable under Sec. 302 of the Indian Penal Code. Ms. Archana Palkar Khopde, the learned appointed Advocate, further argued that prosecution has not declared P.W.3 Laxman Mahto hostile and he was not cross-examined by the prosecutor. Therefore, as this witness had given complete go by to his version in the chief examination and had candidly admitted in the cross-examination that he was not present on the scene of the occurrence at the time of the incident, his evidence ought not to have been relied by the learned trial court for recording conviction. It is further argued that the learned trial court has erroneously relied on the version of hostile witnesses without examining whether their evidence is truthful and is being corroborated by other evidence on record. Without undertaking scrutiny of evidence of hostile witnesses, the learned trial court by adopting perverse approach has held the accused guilty of the serious offence. Hence, according to the learned appointed Advocate, impugned Judgment is totally perverse and illegal.