Judgment N. N. Singh, J. 1. This appeal has been preferred against the Judgment and Order of conviction and sentence passed by the Additional Judicial Commissioner, Khunti in S. T. No.485 of 1990 whereby she has convicted the appellant under Sections 302/449 of Indian Penal Code and sentenced him to undergo rigorous imprisonment for life and to pay a fine of Rs.3,000/-, and in default to undergo further rigorous imprisonment for one year under Section 302 of the Indian Penal Code with no separate sentence under Sec.449 of indian Penal Code. By the said judgment, co-accused Manbodh Pahan has been acquitted. 2. The prosecution case, in short, is that as per the first information report (Ext, 5) on 6-8-1990 at about 11.00 P. M. when the informant Bandhana Pahan, pw 4 was sleeping in the house of his grand-parent and his grand-parents were sleeping in the Dhaba, he woke up on the sound of opening of the door. He saw in the light of a dhibri burning in the verandah, where his grand-parents were sleeping, that this appellant hurled blows on his grand-father and grandmother and killed them by assaulting them with the axe. Further case of the prosecution is that Manbodh Pahan was standing there and out of fear he (informant) could not raise any alarm and that both of them thereafter went away talking as to whether both the victims had been finished or not. The further case of the prosecution is that after the occurrence, the informant Bandhana pahan informed his father PW 5 Bhaju pahan. His father and villagers came there and lived there during the night and in the morning, the informant went to the Police Station, where he lodged fard-beyan at 9.30 A. M. on the basis of which Karra PS Case No.61 of 1990 was registered under Sec.302/34 IPC against this appellant and Manbodh pahan and the police after due investigation submitted charge-sheet against both of them and their case was committed to the Court of Sessions, where charges under Sec.302/34/449 IPC were framed against this appellant and manbodh Pahan. After trial, Manbodh was acquitted and this appellant has been convicted as aforesaid. 3. The defence of the appellant appears to be his false implication in this case. 4. The prosecution examined seven witnesses in support of its case. After trial, Manbodh was acquitted and this appellant has been convicted as aforesaid. 3. The defence of the appellant appears to be his false implication in this case. 4. The prosecution examined seven witnesses in support of its case. Out of whom PW 2 Chakla Mahto, PW 3 goga-Munda, PW 6 Prabhat Bhagat were declared hostile by the prosecution. PW 7 Banwari Lal Jaiswal is a formal witness, who proved the FIR (Ext.5), seizure list (Ext.6), production list (Ext.7) and the inquest report (Ext.8 and 8/1 ). No defence witness was examined. 5. Pw 1 is Dr. T. P. Vaishya, who held the post-mortem examination on the deadbody of Sohrai Pahan. He stated to have found the following five ante-mortem injuries on the person of the deceased: (i) Sharp cutting with fracture of left mandible 3"x1 "x2" (ii) Sharp cutting with fracture on left maxilla 2"x2"x2". (iii) Sharp cutting with fracture of occipital bone 4"x2"x2". (iv) Sharp cutting with fracture on top of head 3"x2"x2". (v) Sharp cutting with injury No.3 3"x2"x2". The doctor opined that these injuries were caused by a sharp cutting heavy weapon, such as tangi, and were sufficient to cause death in the ordinary course of nature. He proved the post mortem report (Ext.1 ). 6 He further stated to have held post-mortem examination on the dead body of Mangri Pahan and found the following ante-mortem injuries on her person: (i) incised wound 3"x1/2"x1"; (ii) incised wound 3"x1/2"x1" over left right eye ; (iii) incised wound 4"x1 "x2" below left side of chin. These injuries, PW 1 opined, were caused by sharp cutting weapon, such as balua. He proved the post-mortem report (Ext.1/1 ). He opined that these injuries, in ordinary course of nature, were sufficient to cause death. 7. In this case, the informant, bandhana Pahan, PW 4, claimed to have seen the appellant committing the murder of his grand-mother, Mangri, with an axe, but the doctor, who held the post-mortem examination clearly opined that such an injury, as found on her person, could be caused by Balua, and not by an axe. 8. Pw 4, Bandhana is the informant of this case. He stated that he saw this appellant with Manbodh Pahan coming and that Budhu had one axe in his hand with which he killed his grand father and grand-mother. 8. Pw 4, Bandhana is the informant of this case. He stated that he saw this appellant with Manbodh Pahan coming and that Budhu had one axe in his hand with which he killed his grand father and grand-mother. He proved his signature (Ext.2) on the first information report lodged by him next morning. In his cross-examination, he stated that his house was at a distance of 1/2 km. from the place of occurrence, and that his grand-parents were separate from him and used to cultivate lands separately. He further stated that his father was the only son of his grand parents. He stated to have identified the appellant in the light of the dhibri. In his cross-examination, he stated that he himself was sleeping in the Kotha ghar and that there was a chain on the door. In the absence of examination of the investigating officer, it has not come in evidence as to whether the chain was in tact or how the appellant manage to go inside the house. He has stated to have reported the matter to his father, after the occurrence, in the presence sanika Pahan, Bhaju Pahan and Koka, but none of them has been examined. 9. Learned Counsel for the appellant pointed out that this witness admitted that his father had differences with his grand-parents, as they cultivated more land. PW 5 is the father of the informant and son of the deceased soharai Pahan, who stated that at abou 11.00 P. M. Bandhana came to him and stated that Budhu Pahan, the appellant had killed his grand-father and grand mother with an axe and that there after they went in that house and saw the deadbody with bleeding injury. This witness, pw 5 is not an eye-witness, but merely a hearsay witness. He stated tha in the night itself, his neighbours were informed about the incident, but none of them has been examined to corroborate him. The investigating officer of this case has also not been examined. This witness, pw 5 is not an eye-witness, but merely a hearsay witness. He stated tha in the night itself, his neighbours were informed about the incident, but none of them has been examined to corroborate him. The investigating officer of this case has also not been examined. It was submitted on behalf of the defence that in the absence of the examination of the investigating officer, the defence has been prejudiced as the attention of the investigating officer could not be drawn to the contradictory statement of the witnesses and even the place of occurrence has not been fixed and described, and that the Dhibri in the light of which the informant claimed to have identified the appellant was not shown to the investigating officer. 10. Considering the fapt that the evidence of PW 4 has not been corroborated by any independent witness of the village and that the place of occurrence has not been fixed and the investigating officer has not been examined and that no question was put to the appellant under Sec.313 of the Code of Criminal Procedure regarding the alleged production of blood-stained axe before the investigating officer, I find it a fit case in which the benefit of doubt be given to the appellant. In this connection, I must observe that the co-accused Manbodh has been acquitted by the Trial Court. 11. Before parting with this judgment, I am constrained to say that the trial Court has acted very leisurely and rresponsibly while dealing with this case, as from perusal of the lower Court records, it appears that one Dr. S. N. Prasad was examined as PW 5 on 21-3-1994 though Bhaju Parian had already been examined as PW 5 on 2-2-1994. Peposition of Dr. S. N. Prasad is not on record. It is also evident that one post mortem report of the deceased Jitni kumari was proved as Ext.4 in this case. have examined this matter thoroughly and I find that the aforesaid post mortom report of Jitni and the witness famely Dr. S. N. Prasad are not contected with this trial and have wrongly been examined in this case and have also been wrongly marked as Ext. in this case. On careful consideration of the post-mortem report, I find that it was connected with Karra PS Case No.42 of 1989, whereas the instant case relates to karra PS Case No.61 of 1990. S. N. Prasad are not contected with this trial and have wrongly been examined in this case and have also been wrongly marked as Ext. in this case. On careful consideration of the post-mortem report, I find that it was connected with Karra PS Case No.42 of 1989, whereas the instant case relates to karra PS Case No.61 of 1990. This misteke, which is apparently vital and necessarily fatal to the prosecution case in hand, should have been detected and corrected at least at the time of writing of the judgment by the trial Judge. This mistake resulted in wrong numbering of the witnesses and Exts. examined and roved thereafter. In the circumstances, fear that if it is not observed, the post mortem report, which has been marked ext.4 will remain tied with this record and necessarily the concerned case will also fail in the absence of that report. Let an extract of this order be sent to the Judicial Commissioner, ranchi, so that the post-mortem report of Karra P. S. Case No.42 of 1989 be placed in its proper file. 12. Further, I must point out though reluctantly, that the learned addl. Judicial Commissioner has committed yet another mistake in convicting the appellant only under Sec.302 of indian Penal Code, without assigning any reason, though charges against the appellant were framed under Sections 302/34 of Indian Penal Code. 13. For the reasons stated above, I find that the prosecution has not been able to bring home the guilt against the appellant beyond all reasonable doubts. 14. In the result, this appeal is allowed; the conviction and the sentence against the appellant are set aside and the appellant is acquitted of the charge (s ). Let him be set at liberty forthwith, if not wanted in any other case. Appeal Allowed.