JUDGMENT : Rao, J. - This appeal was heard on 24th and 25th of September, 1958. At the dose of the hearing, we were convinced that the prosecution failed to prove the guilt of the Appellant. We therefore ordered that the conviction and sentence should be set aside and the Appellant acquitted of the offences under Sections 302 and 309 of the Indian Penal Code and directed that he be set at liberty forthwith observing that the reasons would follow. The reasons are given below. 2. The Appellant Krushna Padhan of Muktapur was convicted by Shri R.C. Misra, Sessions Judge, Mayurbhanj, of the offences of murder and attempt to commit suicide punishable under Sections 302 and 309 respectively of the Indian Penal Code and Was sentenced to undergo rigorous imprisonment for life u/s 302 I.P.C. No separate sentence was passed u/s 309, I.P.C. I must observe that the learned Sessions Judge committed an error in not passing a separate sentence u/s 309, I.P.C. He should have known that there is a possibility in appeal of the conviction u/s 302, I.P.C. being set aside and that u/s 309, I.P.C. maintained. I observed in some cases that it is the bounden duty of the Sessions Judges to pass sentences on all the sections under which the accused is convicted. But inspite of the observations it is regrettable that the Sessions Judges do not care to follow the directions made in the judgments of this Court. 3. The prosecution case is briefly as follows: About 8 or 10 days before the occurrence, the marriage of the cousin sister of the Appellant Kandhai Dei (P.W. 3) took place at Muktapur with the brother of the deceased Benga Dei, unmarried girl aged about 16 years who too had been to Muktapur connection with the marriage along with her mother (P.W. 2). There is evidence that Benga Dei stayed at Muktapur for more than a fortnight sometime before and after the marriage. After the marriage, the party returned to their village Kantipal within the jurisdiction of Anandapur Police Station along with the bride escorted by the Appellant. It is the prosecution case that the Appellant had a desire to marry the deceased Benga Dei, but her marriage had already been fixed up with one Gobardhan. After the marriage, the party returned to their village Kantipal within the jurisdiction of Anandapur Police Station along with the bride escorted by the Appellant. It is the prosecution case that the Appellant had a desire to marry the deceased Benga Dei, but her marriage had already been fixed up with one Gobardhan. The prosecution case further is that on 28-5-1957 at 11 a.m. which is the date of the occurrence, Benga went to Belduma Dihi, a jungly place full of bushy growths, in the outskirts of the village with a Lota (M.O. III) to answer calls of nature, The spot map and the evidence show that P.W. 2, the mother of the deceased, also went to answer calls of nature and the places where they sat for the purpose were very near to each other, the places marked being 'S' and 'U' in the spot map, but it is not possible from the spot map filed in this case to say exactly what the distance is. To indicate the distance, the spot map mentions numerals without indicating whether they are feet or yards. The spot map also does not indicate this distance from one place to another noted in the map by a separate note. The Police officers concerned in preparing spot maps should note that these spot maps are intended for enabling the Court to appreciate the evidence in the case and therefore they should not treat the preparation of the spot maps as a mere formality without having any responsibility to show what is required to be shown in the spot maps. It is stated that the Appellant from a distance by waving his hand asked Benga, the deceased, to watt at that place and then he proceeded nearer and embraced her. The persecution Case is that his embrace was repulsed and the deceased tried to run away from him, but that the Appellant chased and over powered her, laid her down and cut her throat with a country razor (M.O. I ), in consequence of which she died at once at the spot. Thereafter the Appellant cot his own throat with the same razor and dashed a piece of stone (M.O. II ) against his head and fell down senseless beside her. Thereafter the Appellant cot his own throat with the same razor and dashed a piece of stone (M.O. II ) against his head and fell down senseless beside her. The prosecution alleges that at a distance of about 328 cubits from the scene of occurrence, P.W. 11 was running his smithy inside his house, mending the ploughshares of the villagers, while outside the house near a broken wall his customers P.Ws. 9, 10 and others were waiting. Being called by One Chakra Khillar who is not examined in the case, P.W. 11 ran to a distance of about 176 cubits from his smithy towards the spot and saw a young man falling beside a young woman after dashing a piece of stone against his own head. From there he found P.W. 2 returning after answering calls of nature. He drew her attention to it. P.W. 2 went nearer and found her daughter lying dead in a pool of blood and the Appellant lying unconscious with a cut injury at the throat beside her. M.Os. I and II were, lying stained with blood, one to the east at a distance of 13 cubits from the dead body. M.O. III was lying at a distance of about 31 cubits to the south-west of the place. It is stated that dumbfounded she welled up tears in her eyes and as she burst aloud, the villagers thronged at the scene. There was a heavy shower in the afternoon. The Appellant was removed to the village to the house of P.W. 12 and then to the village L.P. School. P.W. 1, the choukidar of the village, lodged the First Information Report (Ext. 1) at Anandapur Police Station ten miles from Kantipal at 4.30 P.M. 4. There was a heavy shower in the afternoon. The Appellant was removed to the village to the house of P.W. 12 and then to the village L.P. School. P.W. 1, the choukidar of the village, lodged the First Information Report (Ext. 1) at Anandapur Police Station ten miles from Kantipal at 4.30 P.M. 4. The Appellant pleaded not guilty and stated before the committing Magistrate as well as before the Sessions Judge that he loved the deceased Benga who readily responded to his overtures and wanted to marry her; that her mother stoutly opposed the idea and so he sought to elope with Benga; that at her desire be bad come to Kantipal; that they devised a plan that Benga should go with a Lota in the guise of going to answer calls of nature and he should be waiting for her under a Kusum tree from which they would flee away unnoticed; that at the place of occurrence white they were devising further plans to escape, Sudam and Sham, two brothers of the deceased, overheard their conversation and Sudam pelted a stone at him that struck him on the head, in consequence of which he fell down senseless and could not know what followed next. 5. The post-mortem examination of the deceased as also the examination and the injury report of the Appellant were done by the then Assistant Surgeon, Anandapur, Dr. J. N. Mohapatra who was at the time of the trial in England. He was examined In the committing court and his deposition was recorded by the Magistrate. It is unfortunate that a senior Sessions Judge like Shri R.C. Misra made a confusion in the judgment as to whether his deposition was marked in the evidence In the trial before, or it was only the post mortem report and the injury report that were marked as exhibits. The exhibits marked clearly show that it was the post mortem report and the injury report that were exhibited in the case as Exts. 7 and 6 respectively and the deposition was not at all exhibited. But curiously enough the learned Sessions Judge observed in the judgment, "This erstwhile deposition has been marked as Ext. 7 from which it appears " This is clearly a wrong statement. According to Ext. 7 and 6 respectively and the deposition was not at all exhibited. But curiously enough the learned Sessions Judge observed in the judgment, "This erstwhile deposition has been marked as Ext. 7 from which it appears " This is clearly a wrong statement. According to Ext. 6 the deceased had an incised wound 6" X 3' X 3/4" involving the complete severance of the trachea and the big vessels of the neck on the right side, an incised wound 2" X 1/6" X skin deep on the right maxillary prominence, and an incised wound 1. 1/4" X 1/4" X skin deep on the left side of the chest at the pectoral region. At the end of the description of the injuries, the learned Sessions Judge said, "The report further indicates that the injuries were ante-mortem and that the death wad; due to shock and haemorrhage resulting from the said injuries". He began the description of the injuries with the statement that the erstwhile deposition showed the description. He ended the description of the injuries saying that "the report further indicates." The injury report on the body of the Appellant shows that there was one incised injury 21/2" X 1" X 11/4" across the neck cutting the trachea through which air bubbles, blood clot and mucus were coming out and there was bleeding from the surface of the wound and the Appellant was unable to speak. There was another incised wound 1 3/4" X 1/8" X skin deep 1/3" above injury No. 1. There was also a lacerated wound on the scalp 3" X 13/4" X bone deep with crack on the fore surface with bleeding injuries. The injury report shows that injuries Nos. 1 and 2 were possibly produced by a sharp cutting weapon and injury No. 5 possibly produced by a hard blunt object. 6. The learned Sessions Judge laboured much in his judgment about the admissibility of the evidence relating to the injuries on the deceased and the Appellant without definitely focusing his attention about the admissibility of the deposition of the Medical Officer and the admissibility of the post-mortem report and the injury report. He made a confused discussion at one place referring to the deposition and that at another place referring to the post-mortem report and discussing the law on the subject. He made a confused discussion at one place referring to the deposition and that at another place referring to the post-mortem report and discussing the law on the subject. It was objected on behalf of the accused before the learned Sessions Judge that the post-mortem report was not admissible in the absence of examination of the Medical Officer who conducted the post-mortem. To meet this objection the learned Sessions Judge had recourse to Section 509, Code of Criminal Procedure under which a deposition of a medical witness taken and attested by a magistrate In the presence of the accused or taken on commission under Chapter XL may be given in evidence in any enquiry, trial or other proceeding under the Code although the deponent is not called as a witness. Then the learned Sessions Judge observed that the committing Magistrate had not appended the necessary certificate as prescribed in Role 92 in High Court's General Rules and Circular Orders, Criminal, Volume I, at page 37 and that It was this irregularity, according to the defence, that made the medical evidence inadmissible. Here again he confused between the deposition Of the Medical Officer and the post-mortem report. He repelled this contention of the defence relying on the authority of the decision in the case of Nawab and Ors. v. Emperor AIR 1933 Lab. 131, wherein it was held that the failure to append a certificate in the prescribed form has not the effect of making the evidence of the medical witness recorded by the committing Magistrate inadmissible, if it otherwise appears that the statement was recorded and attested by the magistrate in the presence of the accused. v. Emperor AIR 1933 Lab. 131, wherein it was held that the failure to append a certificate in the prescribed form has not the effect of making the evidence of the medical witness recorded by the committing Magistrate inadmissible, if it otherwise appears that the statement was recorded and attested by the magistrate in the presence of the accused. As in this case P.W. 19, the Bench Clerk of Sub-Divisional Magistrate had been examined according to whose evidence the Magistrate in presence of the accused recorded the deposition and read over and explained to the accused the contents of the deposition of the medical officer, the learned Sessions Judge came to the conclusion that there was nothing to discard his evidence, as Section 509, Code of Criminal Procedure does not in so many words require any certificate by the Magistrate in any particular form, and according to him it is enough if it appears or is made to appear that the statement was taken and signed by the Magistrate in the presence of the accused and that the prescribed certificate was only meant to obviate the necessity of calling the Magistrate as a witness to prove that he did so. After giving these reasons for the admissibility of the deposition of the medical officer, the learned Sessions Judge again lapses into that confusion and says, "The post-mortem report, therefore, is quite admissible and so too the injury certificate in respect of the injuries on the person of the accused issued by the same absentee medical officer". Therefore it is clear that the question of admissibility of the deposition was not in the mind of the learned Sessions Judge. These two documents which were in his mind, regarding the admissibility of which there was an objection are the post-mortem report and the injury report. It is the accepted law and the learned' Standing Counsel fairly concedes that the post-mortem report and the Injury report are not admissible in evidence unless the Medical Officer giving the reports is examined (vide ILR 9 Cal 455,4, Calcutta Weekly Notes 129 and 40 Criminal Law Journal 596). Therefore they are not clearly admissible in evidence and cannot be relied upon to show the injuries on the deceased or the injuries on the Appellant. The deposition is not let in evidence and is not marked as an exhibit. Therefore they are not clearly admissible in evidence and cannot be relied upon to show the injuries on the deceased or the injuries on the Appellant. The deposition is not let in evidence and is not marked as an exhibit. It is unfortunate that a senior Sessions Judge in trying a man for his life was not careful enough to see that the relevant evidence is admitted according to law. In my opinion, it is not at all necessary for him to have recourse to Section 509, Code of Criminal Procedure in order to have the deposition of the Medical Officer admitted in evidence. The Medical Officer was examined by the committing Magistrate who recorded his deposition. At the time of the trial he was in England and his attendance could not be procured without unreasonable delay Under those circumstance, the learned Sessions Judge should have noted that the deposition of the Medical Officer could be admitted u/s 33 of the Indian Evidence Act. Instead of admitting the deposition u/s 33 of the Evidence Act, he unnecessarily went into the question with reference to Section 509, Code of Criminal Procedure and made a confusion of the entire matter by not having in his mind at the time of writing the judgment whether he should deal with the admissibility of the deposition or the admissibility of the post-mortem report and the injury report. It is on account of this carelessness on the part of the Learned Sessions Judge that the relevant evidence contained in the deposition of the Medical Officer is not before os and Exts. 6 and 1 are not admissible in evidence and are wrongly admitted. 7-9. (Then his lordship discussed the evidence of the P.Ws. and observed as follows) 10. It is on account of this carelessness on the part of the Learned Sessions Judge that the relevant evidence contained in the deposition of the Medical Officer is not before os and Exts. 6 and 1 are not admissible in evidence and are wrongly admitted. 7-9. (Then his lordship discussed the evidence of the P.Ws. and observed as follows) 10. In my opinion, not only the evidence of the prosecution witnesses, does not bring home the guilt to the accused of the offences with which he was charged, but on the other hand is consistent with and supports the defence version as disclosed in his examination u/s 342, Code of Criminal Procedure The Appellant stated, as already observed, that he loved Benga who readily responded to his Overtures that her mother opposed the idea of their marrying; that they devised a plan to go away that Benga should go with a Lata in the guise of going to answer cans of nature and he should be waiting for her under a Kusum tree; and that they would flee away unnoticed. At the place of occurrence, according to the Appellant, while they were devising further plans to escape, Sudam and Sham, the two brothers of the deceased, overheard their conversation and Sudam pelted a stone at him that struck him on the head, in consequence of which he fen down senseless and could not know what followed next. The appeal suggested a definite case that it was Sudam and Sham overhearing the conversation, attacked him. It is in the evidence of some prosecution witnesses the Appellant and the deceased were misbehaving on the scene of occurrence after they embraced each other. It is quite likely that the two brothers Sudam and Sham saw this perhaps being aware of the plan of the deceased and the Appellant and might have taken it into their heads to do away with the accused as well as the deceased. The country razor with which the injuries on he necks of the deceased and the Appellant are alleged to have been inflicted is not proved to belong to the Appellant, The Appellant was a guest in the house of the deceased. He accompanied the bride to the home of the deceased's father and it is not likely he would have carried a country razor with him. He accompanied the bride to the home of the deceased's father and it is not likely he would have carried a country razor with him. It is likely that the brothers Sudam and Sham were watching Benga's and the Appellant's movements in the house. It is natural that the brothers seeing their maiden sister misbehaving with the Appellant thought that their family reputation was lost and might have cut the throat not only of their sister but also of the Appellant after dashing his head with a stone. Another dashing the accused head with a stone which is a pretty heavy one is more probable than the accused himself dashing his head with the stone. On account of the non-examination of the Medical Officer I am not in a position to know whether the injuries on the scalp would be caused by a person himself dashing the stone against his head or would have been caused by a person throwing the stone against the head of the Appellant. In any event the explanation offered by the Appellant seems to be under the circumstances of the case a reasonable one, as to how the occurrence took place. Sudam and Sham, the two sons of P.W. 2 were not examined. 11. The prosecution witnesses, according to their evidence, do not appear to have witnessed the occurrence. None of the witnesses has stated that the saw any throat cutting of the deceased though they categorically stated that the girl stopped after some signs were made by the Appellant that then they met and embraced each other and after that the girl ran away and when she fell down the accused also fell down. Though the witnesses stated these things, yet it is significant that none of them stated that the accused either cut the throat of the deceased or cut his own throat. On the fact of this evidence, I am definitely of opinion that the learned Sessions Judge, though he noticed these things, was clearly wrong in coming to the conclusion that the prosecution succeeded in proving the guilt of the accused. 12. In my opinion, the prosecution failed to prove that the accused: either cut the throat of Benga, the deceased, or cut his own throat or dashed a stone against his head. 13. The investigation in this case is faulty. 12. In my opinion, the prosecution failed to prove that the accused: either cut the throat of Benga, the deceased, or cut his own throat or dashed a stone against his head. 13. The investigation in this case is faulty. The police should have probed further into the matter before filing a charge-sheet against the Appellant. 14. It is for these reasons that we set aside the conviction and sentence and acquitted the Appellant and directed that he should be set at liberty forthwith. Das, J. I agree. Appeal allowed Final Result : Allowed