Judgment Anand Prasad Sinha. J, Appellants Sheo Govind Bin and Ram Awtar Bin have been found guilty for the offence punishable under section1 302 and 302 read with section 149 of the Indian Penal Code respectively and each has been sentenced to undergo imprisonment for life. 2. The prosecution case. briefly stated, is that on 28-6-1976 at about 6.30 a.m. deceased Mangal Singh had gone to the house of Binda Thakur Lohar (P.W. I.) for sharpening the iron blade of plough. The appellants along with others, namely, Asesar, Jamuna, Prahlad, Buni and Madho were sitting at the house of appellant Sheo Govind Bin and were taking among themselves. When the appellants saw Mangal Singh, they all surrounded him on the orders of Asesar Singh. Appellants Sheo Govind Bin and Ram Awtar Bin had caught hold of Mangal Singh along with others and had dragged him to the house of One Parichhan, Binda Thakur (P.W. 1) raised alarm, Bishwanath Singh (P.W. 2) arrived there and he also raised alarm. However, Bishwanath Singh (P.W.2) was assaulted by Bunilal Rai with Lathi on his head and right hand Assesar Singh and Prahlad Rai tried to catch hold of Bishwanath Singh for the purpose of killing him, but Bishwanth Singh managed to run away and at the same time was raising alarm However. Mangal Singh was dragged as stated above and brought near the north facing room of Parichhan and he was pushed down on the ground. Parichhan Bin and appellant Ram Awtar Bin caught hold of Mangal Singh. Appellant Sheo Govind Bin inflicted repeated Garansha blow on his person causing his death at the spot. Informant Ram Swarup Singh (P. W. 7) who had also arrived at the place of occurrence on hearing the alarm, had seen the occurrence and he had tried to save his uncle Mangal Singh. Assesar Singh armed with Lathi and Prahlad Rai having a Pharsa proceeded towards the informant to assault him, Appellant Sheo Govind Bin also ran towards the informant with the blood stained Garansa. However, Mukhia Ganesh Lal (P.W.6) caught hold appellant Sheo Govind Bin and snatched away the blood stained Garansa from his hand. Appellant Ram Autar Bin was caught hold by Bishwansth Singh, while he was trying to run away. However, Mukhia Ganesh Lal (P.W.6) caught hold appellant Sheo Govind Bin and snatched away the blood stained Garansa from his hand. Appellant Ram Autar Bin was caught hold by Bishwansth Singh, while he was trying to run away. Binda Thakur (P.W.1), Bishwanath Singh (P.W. 2), Ramjee Thakur (P.W. 3), Kamal Singh (P.W. 5), Ganesh Prasad Shrivastava (P.W. 6) and others had seen the occurrence. Thereafter, the miscreants had run away. 3. The motive for the assault is stated to be the land dispute between Kamal Sinah and one Assessar Singh and the case was pending in the court, Assessar Singh was under the impression that the informant's family memo hen were helping Kamal Singh in the said case. Assessar Singh was also putting pressure upon the informant, to help him in the land dispute. The informant and his family members did not support him. 4. Ram Swarup Singh (P.W.7) proceeded to Chhauradano police station and he learnt that the Officer Incharge had gone to Laukaha. Consequently, he proceeded to Laukaha. At Laukaha he met the Officer In• charge and he gave out his statement which was recorded by way of Fardbeyan (Ext. 1) at about 11.30 A. M. on 18.6.1976. On the basis of that Fardbeyan the formal first information report (Ext. 2) had been drawn up giving rise to this case. 5. It is necessary to mention that other persons named above namely Assessar Bind, Jamuna Singh, Prahlad Rai alias Ramjiwan Rai, Buni Lal Rai and Madho Lal Rai had also been put on trial and they had similarly been charged for the offence under section 302 read with section 149 of the Indian Penal Code and accused Bunilal Rai was further charged under section 323 of the Indian Penal Code for causing hurt to Bishwanath Singh (P.W. 2), but they had not been found guilty and they have been acquitted. However, the two appellants were convicted and sentenced as indicated above. 6. Learned counsel appearing on behalf of the appellants has mainly confined his argument on the appreciation of evidence and further it has been stated that the post mortem report (Ext. 7(d), in absence of the Doctor who had held the postmortem examination or non-examination of competent person to prove that document, cannot be relied upon for finding the cause of death. 7. It will be advisable to consider the case of appellant Ram Awtar Bin first. 7(d), in absence of the Doctor who had held the postmortem examination or non-examination of competent person to prove that document, cannot be relied upon for finding the cause of death. 7. It will be advisable to consider the case of appellant Ram Awtar Bin first. It appears that the allegation directed against him are quite similar to the allegations which had been directed against the accused persons, who have not been found guilty as that portion of the allegations have not been found to be true. Not a sentence of allegation of assault has been attributed against appellant Ram Awtar Rai. 8. Moreover, in the facts and circumstances of the case, there is no application of section 149 of the Indian Penal Code, Although, initially seven persons had been made accused with definite allegations of assault attributed against a few of them, but that has not been established by evidence. It was not the case that there were mote than seven persons, Therefore, according to the prosecution the mob or the unlawful assembly consisted of determined number of persons being seven only. When five of them have been found having no nexus or complicity with the occurrence and the crime, the formation of an un-lawful assembly cannot be said to be in existence. Thus, the allegation attributed now against two of the appellants cannot fall within the ambit of section 141 of the Indian Penal Code and thus consequently there is no application of section 149 of the code and it fails. If there would have been allegation that there was huge mob of even more than seven persons and some were not identified, in that case the matter would have been different. 9. Therefore, in the, facts and circumstances of the case, absolutely there is nothing to distinguish the allegations directed against appellant Ram Awtar Bin vis-a-vis the acquitted accused persons and, therefore, on the basis of the evidence appellant Ram Awtar Bin is found not guilty and be is acquitted. 10. So far assault by Garasa directed against appellant Sheo Govind Bin is concerned, that could not be dispelled either by the force of cross-examination or could not be substituted by any other material rendering the overt Act, of assault un-acceptable. 10. So far assault by Garasa directed against appellant Sheo Govind Bin is concerned, that could not be dispelled either by the force of cross-examination or could not be substituted by any other material rendering the overt Act, of assault un-acceptable. Even then, in tile facts and circumstances of the case, appellant Sheo Govind Bin cannot be said to be guilty of the offence under section 302 of the Indian Penal Code and that is purely On account of the fact that post mortem report (Ext. 7) is of no avail to the prosecution. 11. It appears that the post mortem report (Ext. 7) has been marked as exhibit and admitted in evidence on the evidence of one Imtiaz Ahmad (P.W. 10), who happened to be the Clerk of the Public Prosecutor. The Medical Officer performing post mortem examination and who had written the Ext. 7 has not been examined. The report prepared by him may be admissible, but at the same time two conditions must be fulfilled for the same. The first being that the Medical Officer is not easily available. "Easily not available" will not mean that if a summon is issued and when the Medical Officer does not turn up for evidence. The term "not easily available" is synonym to the word "quite not available." It may he illustrated that if the Medical Officer has gone abroad and there is no likelihood of attending the court within a reasonable time, it would be said that the Medical Officer is "not easily available." Even if there is likelihood of return of the Doctor within a reasonable period without affecting the trial on the ground of delay, in my opinion, it wilt not satisfy the condition of “not easily available" as there is every likelihood of his being available eliminating the condition of "easily not available". In the instant case, it appears that only once a summon had been issued and thereafter the post mortem report (Ext. 7) has been admitted in evidence on the basis of the statement of a Clerk of the Public Prosecutor. I am afraid, the condition that the Medical Officer was "not easily available" was not at all satisfied. 12. However, that independent in itself will not make the post mortem report always in admissible as it is more based upon the rule of prudence than the rule of law. 13. I am afraid, the condition that the Medical Officer was "not easily available" was not at all satisfied. 12. However, that independent in itself will not make the post mortem report always in admissible as it is more based upon the rule of prudence than the rule of law. 13. The next important question for consideration thus arises as to in absence of the Doctor what should be the standard of proof of the document and who can be said to be the competent person to make the document admissible in evidence and be meaningful and purposeful and not simply empty formality. 14. The post mortem report is an extremely relevant and important document in a trial for murder both for the prosecution and the defence. All hurts are not punishable under the Indian Penal Code. Different types of hurts have been put under different categories linked with different extent of punishments. In addition that such reports apparently may speak out a few details, the existence of certain connected facts invariably necessitate explanation, elucidation and making available expert's opinion. By and large they are needed and if that is shut up, a definite prejudice is caused to the accused and the prejudice is to the extent, that it will have adverse impact upon the charge of assault fastened upon an accused. 15. The importance of getting all such documents proved by such persons having knowledge or medical science can well be illustrated that the nature of injuries, at times, becomes quite relevant to find out as to whether the injured would have been in a condition to speak out after getting type of injuries indicated in the post mortem report and as to whether he was able to make out a dying declaration. Further the nature of injuries will also clearly indicate the type of weapons used. 16. That being so, when accused is expected to have a fair trial and the entire trial is within the ambit of statutory laws, in absence of expositions of such concealed and hidden connected facts, behind the injuries, will mean definite prejudice to the accused and any consideration of such document will amount to an arbitrary Act, which is definitely against the principles of fair trial Naturally in the instant case, Ext. 7 which has been proved by the Clerk of the Public Prosecutor is meaningless and non-purposeful. 11. 7 which has been proved by the Clerk of the Public Prosecutor is meaningless and non-purposeful. 11. Therefore, proof of writings and reports by any other person than the real author, the Doctor, who had written out and signed the report, be by such who can be said to be "a competent person" to answer or give out such explanations based upon the technical knowledge connected with the medical jurisprudence. Such document should not be brought in evidence mechanically only for the sake of empty formality, but if taken in evidence it should be meaningful and purposeful. Under the circumstances, in case of injury reports and post mortem reports; the right person for substituting in place of the Doctor author would be a Doctor competent to reply the questions to be put on behalf of both the prosecution and the accused, or a witness having technical knowledge only can be said to be the competent person to even say about the writings of the Doctor who had written out such report for admitting it in evidence. 18 In the instant case, the Clerk of the Public Prosecutor is never the competent person for even saying about the writings of the Doctor of such document. Thus, the postmortem report Ext. 7 cannot be looked into. 19 Therefore, on the basis of the post mortem report (Ext. 7) it can safely be said that the cause of death could not be stated by the prosecution in support or the charge. Under the circumstances, the appellant Sheo Govind Bin cannot be said to be guilty for the offence under section 302 of the Indian Penal Code. However, on the basis of the discussions made above, appellant Sheo Govind Bin is found guilty for the offence punishable under section 326 of the Indian Penal Code. 20. With regard to the sentence, it appears that the occurrence took place in the month of June, 1976. Nine years have elapsed and the Appellant has been put to the rigors of serious criminal prosecution for such a long period. The session trial has Covered Ii period of about five years and that can be said to be a considerable and unreasonable period for an accused to face trial. Nine years have elapsed and the Appellant has been put to the rigors of serious criminal prosecution for such a long period. The session trial has Covered Ii period of about five years and that can be said to be a considerable and unreasonable period for an accused to face trial. Further it has been stated that the appellant Sheo Govind Bin, as a matter of fact, is the real person who looked of the cultivation of the family and if he is sent to jail, the entire family would be extinct. He has lived in jail for about nine years. Under these circumstances, in my opinion, the end of justice will be sufficiently met if he is sentenced to the period of imprisonment already undergone by him. Accordingly, he is sentenced to the period of imprisonment already undergone by him for the offence under section 326 of the Indian Penal Code. 21. In the result, the appeal of appellant Ram Awtar Bin is allowed order of conviction and sentence passed against him by the trial court is hereby set aside and he is acquitted. He shall be discharged from the liability of bail bond forthwith. 22. The appeal of appellant Sheo Govind Bin is, however, dismissed with modification in the order of conviction and sentence to the extent that he is convicted under section 326 of the Indian Penal Code and sentenced to the period of imprisonment already undergone by him He shall be released from the jail custody forthwith, if not required in any other case. I agree.