ANIL YADAV Vs. THE STATE OF BIHAR

JUDGEMENT

(1.) THIS appeal is directed against the judgment/order dated 18.12.2012/21.12.2012, passed by Ad hoc Additional Sessions Judge -V, Katihar, in Sessions Trial No. 307/1996 whereunder the sole accused put on trial has been convicted for the offences under Sections 364, 302, 201 of the Penal Code and sentenced to undergo rigorous imprisonment for ten, life, seven years with further direction to pay fine of Rs. 3,000/ -, 5000/ - for conviction under Sections 364, 302 of the Penal Code. In default of payment of fine to further undergo sentence of six months rigorous imprisonment on both the counts. The sentences have, however, been directed to run concurrently.

(2.) PROSECUTION case, as set out in the fardbeyan of informant Mukesh Kumar Goswami (P.W. 4) recorded by S.I. C.P. Yadav, Incharge of Semapur Outpost on 24.03.1995 at 08.15 hours at Semapur Outpost, is that on Monday i.e. 20.03.1995 Anil Yadav and two others i.e. Jyoti Yadav and Surendra Yadav came to his house and informed him, his brother Arun Goswami that a sum of Rs. 725/ - was given by his father is kept in surety and that he should take bamboo in lieu of the amount. For taking bamboo brother of the informant Arun Goswami and Kailash @ Kaila Yadav went along with Jyoti Yadav, Surendra Yadav and Anil Yadav to the other side of the river. While leaving the accused persons asked the informant to come to the bank of river the next day with bullock -cart to carry the bamboo, which shall be brought from the other side of the river on a boat. Informant went to the bank of river on Tuesday but his brother Arun Goswami and Kailash @ Kaila Yadav did not come to the bank of river. Again on Wednesday informant went to the bank of river with bullock -cart but his brother and Kailash @ Kaila Yadav did not return on Wednesday as well. On Thursday alarm was raised in the village that both Arun Goswami and Kailash @ Kaila Yadav have been done to death on the other side of the river. Having heard the alarm informant made enquiries from Jyoti Yadav and Surendra Yadav, both reported that Arun Goswami and Kailash @ Kaila Yadav returned on Tuesday itself and he has no information about their whereabouts. As the brother of the informant and Kailash @ Kaila Yadav did not return to the village on Thursday as well, the fardbeyan of the present case was recorded on Friday i.e. 24.03.1995 before Barari Police Station by the informant (P.W. 4). Investigating Officer having conducted the investigation submitted charge -sheet against Anil Yadav, Jyoti Yadav @ Jyotish, Surendra Yadav. Charges were framed against Anil Yadav and Jyoti Yadav @ Jyotish under orders dated 24.07.1999, 10.05.2000 respectively to which both pleaded not guilty. Surendra Yadav had absconded during investigation, Jyoti Yadav @ Jyotish also absconded after framing of charge and it is only the appellant who was put on trial.

(3.) LEARNED counsel for the appellant assailed the findings recorded by the trial court with reference to the evidence of prosecution eye -witnesses i.e. the informant Mukesh Kumar Goswami (P.W. 4) and another eye -witness P.W. 6 Laxmi Goswami. He submitted that the two witnesses, who supported the prosecution case and relying on their evidence the court below proceeded to convict the appellant, their evidence if critically examined, it will appear that the two witnesses are also hearsay witnesses as they are only witness of one part of the occurrence i.e. Anil Yadav and two others going along with the two deceased. Subsequent part of the occurrence about killing of the two deceased informant (P.W. 4) is said to have learnt from horse -trader of the area whose name he has not disclosed either in the police statement or in his evidence and as the informant has not chosen to disclose the name of the horse -trader confirmation about the occurrence from the horse -trader could not be made by the Investigating Officer, as such, on the basis of something learnt from a person, whose name is also not forthcoming, the evidence of the informant is a hearsay evidence and cannot be relied upon for maintaining the conviction of the appellant.