JUDGMENT On 13.6.1985 at village Chandpura the appellant is said to have assaulted Mangna causing three contusions, two on the testicle and one on the right side of the chest. Next day Mangona died. The same day F.I.R. (Ex. P-5) was lodged by Babbu (PW-11). The autopsy surgeon Dr. Jajprakash Tiwari (PW 17) vide report Ex. P. 14 found that the 6th and 7th rib on the right side below the contusion were fractured. The spleen was found ruptured. The haemorrhage resulting from rupture of the spleen was held responsible for his death. After necessary investigation, the appellant was put on trial in S.T. No. 127/85 of Chhatarpur Sessions Division and held guilty u/s 304, Part II, I.P.C. and sentenced to R.I. for six years vide judgment dated 30.4.86, which is under challenge in this appeal. The submission is that the alleged eye witnesses, namely, Raghuwar (PW-1), Bhagwan Singh (PW-8) and Babulal (PW-18) turned hostile. The conviction is based on the evidence of Ram Gopal (PW-2), Rarnsa (PW-14), Puniya (PW-3) and Badi Bahu (PW-10). All of whom had stated that soon after the incident they were informed by Bihari that the appellant had assaulted Mangna who was lying in front of the house of Bhureraja. The defence had criticised this evidence as inadmissible being hearsay in view of Bhugdomal Gangaram and others v. The State of Gujarat ( 1983 CrLJ 1276 ) as Bihari who is said to have disclosed the complicity of the appellant to these witnesses had died in the meantime and could not be examined. Still the learned trial Judge held the aforesaid evidence admissible u/s 5 of the Evidence Act as on the basis of the information given by the said Bihari, Ramsa (PW-14) had gone to the spot where injured person was lying and had lifted him and taken him for treatment. Another reason for holding the said evidence admissible was the FIR lodged by Babbu from which complicity of the appellant stood corroborated. Section 5 of Evidence Act lays down that evidence may be given of facts in issue and relevant facts. Thus, it does not seem to have any connection with the proposition that on the death of a person who had seen a particular fact the evidence based on his disclosure to other persons will be treated as hearsay and, therefore, inadmissible. Thus, it does not seem to have any connection with the proposition that on the death of a person who had seen a particular fact the evidence based on his disclosure to other persons will be treated as hearsay and, therefore, inadmissible. Perusal of para-10 of the impugned judgment shows that even Bihari was not an eye witness. From the evidence of Chukhariya (PW-4), discussed in that para, Bihari was informed of the incident by PW-4 who in turn was informed that the appellant had kicked Mangna by Raghuwar. As already observed Raghuwar (PW-1) turned hostile and, therefore, the evidence of Puniya will also be inadmissible as hearsay in view of Yasin Gulam Haider v. State of Maharashtra ( AIR 1980 SC 878 ). Thus, there was absolutely no evidence to connect the appellant with the crime as the evidence of those persons who came to learn of it through Bihari was inadmissible and was wrongly held usable by the learned trial Judge. It is a matter of regret that the learned trial Judge has referred to State (Collector, Central Excise) v. Papas Kumar Shome ( 1985 CrLJ 875 ) but the correct citation is 1985 CrLJ 871 . In result, this appeal is hereby allowed. Appellant's conviction and sentence as aforesaid are hereby set aside and he is acquitted of the charge.