IMPORTANT POINT
The prosecution must prove the guilt of the accused beyond reasonable doubt, and any failure in procedural fairness, particularly in the examination of the accused, can lead to the quashing of a conviction.

JUDGMENT :

Vipul M. Pancholi, J.

Both these appeals are filed under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Code’) against the judgment of conviction dated 22.06.2016 and order of sentence dated 23.06.2016, passed by learned 2nd Additional District and Sessions Judge, Jamui in Sessions Trial No.254 of 2013, arising out of Jhajha P.S. Case No.160 of 2012, by which both the appellants have been convicted and sentenced to undergo R.I. for life and fine of Rs.10,000/-each and in default of payment of fine, the appellants have to undergo S.I. for two months for the offences punishable under Sections 302/34 of the Indian Penal Code.

2. The prosecution story, in brief, is as under:

One Sudhir Kumar Yadav, S/o Jibu Yadav of village Kewal Fariyaka, P.S. Khaira, District Jamui informed the concerned police authority that on 10.11.2012 his brother-in-law, namely, Shantanu Yadav (deceased) came to his village. It is alleged that when the brother-in-law of the informant was returning to his village Baliyadih, the mother of the informant told the informant to go alongwith his brother-in-law to his village and bring her daughter to Kewal Fariyaka on the occasion of Chhath Puja. Thereafter the informant and his brother-in-law proceeded towards village Baliyadih. When they reached village Tumbapahar at about 06:00 p.m., wife of appellant Latyain Yadav stopped them near her house and told that the land must be registered in her name. The brother-in-law of the informant said that the land will be registered in her name after few days. In the meantime, appellants came there having axe in their hands and started assaulting Shantanu Yadav indiscriminately by means of axe on his head and face. The informant ran towards the village Baliyadih and informed the villagers and relatives of his brother-in-law, Shantanu Yadav. It is further alleged that when the informant and other villagers came back to the place of occurrence, the informant found the dead body of his brother-in-law, Shantanu Yadav lying near Ulay river. The informant alleged that the appellants after killing his brother-in-law kept his dead body near the river. Thereafter the dead body of the deceased and his motorcycle were brought to village Baliyadih. It is alleged in the FIR that the appellants have killed the brother-in-law of the informant after assaulting him by means of Tangi.

3. On the basis of fardbeyan of the informant, Jhajha P.S. Case No.160 of 2012 was registered under Sections 302/34 of the Indian Penal Code against both the appellants and after investigation was over, the Investigating Officer filed charge-sheet against the accused. As the case was exclusively triable by Court of Sessions, the concerned Magistrate committed the same to the Sessions Court where the same was registered as Sessions Case No.254 of 2013.

4. During course of trial, the prosecution had examined ten witnesses, namely, PW-1, Anita Devi, PW-2, Manju Devi, PW-3, Arbind Yadav, PW-4, Suma Devi, PW-5, Jay Prakash Yadav, PW-6, Toto Yadav, PW-7, Anandi Yadav, PW-8, Sudhir Yadav, PW-9, Dr. Syed Naushad Ahmad and PW-10, Sunil Kumar. The Trial Court, after considering the evidence produced by the prosecution, passed the impugned order of conviction as observed hereinabove. Both these appellants-convicts have, therefore, filed two different appeals.

5. Heard Mr. Amar Prakash, learned counsel for both the appellants and learned APP appearing on behalf of the respondent-State.

6. Learned counsel for the appellants mainly submitted that as per case of the prosecution, PW-8 Sudhir Kumar Yadav (informant) is the only eye witness. It is further submitted that other witnesses, i.e., PWs. 1 to 6 are hearsay witnesses. PW-7 has been declared hostile. It is further submitted that PW-10 is an Advocate Clerk who was surprisingly examined by the prosecution with a view to prove the signature of the Investigating Officer, Rajiv Singh. However, the Investigating Officer has not been e