JUDGMENT I. P. SINGH & P. N. YADAV, JJ.:- The death reference as also the criminal appeal have been heard together as they arise out of the same judgment. This judgment will govern both of them. 2. In Cr. Appeal No. 630 of 2002 the sole appellant has been convicted under sections 302 and 328 of the Indian Penal Code. He has been sentenced to death under section 302 of the Indian Penal Code but no separate sentence was passed against him under section 328 of the Indian Penal Code. This appeal is directed against the judgment and order dated 3.9.2002 passed by Shri Uday Bhanu Narayan Singh, Additional Sessions Judge, (F.T.C. No. III), Rohtas at Sasaram in S.T. No. 407/99/T.R. No. 204 of 2002. 3. Jai Ram Ram (P.W.8) the father of the deceased had given his Fardbeyan on the basis of F.I.R. was drawn up. According to it while the informant was in his Loundary shop situated at Tilauthu Bazar on 12/13th June at about 7.30 PM. his son-in-law, Gorakh Ram came and informed him that his daughter, Manju Kumari was missing from the house. Thereafter the informant along with his co-villagers started the search for his daughter. In course of search they met Mohan Yadav (P.W.1), mannu Kahar (P.W.2) and others. They were carrying Manju Kumari the daughter of the informant. On enquiry Manju Kumari (the deceased) disclosed that the appellant had administered her two black pills and she requested her father to rush her to Doctor to save her life. The deceased was taken to Government Hospital and thereafter to the clinic of Dr. Sashi Bhushan Prasad where on examination she was found to be dead. 4. The appellant has contended that there is no eye witness of the alleged occurrence. His conviction is based only on the alleged dying declaration of the deceased which according to the evidence of P.W.1 2 and 3 was not made since she was unconscious. These three witnesses had brought Manju Kumari to her house and they have stated that at the relevant time she was unconscious and not in a position to make any statement. However, the mother (P.W.4) has alleged that she had made a statement before her implicating the present appellant. P.Ws. 5, 6 7 and 8 happen to be the close relations of the deceased and no reliance should be placed on their evidence. However, the mother (P.W.4) has alleged that she had made a statement before her implicating the present appellant. P.Ws. 5, 6 7 and 8 happen to be the close relations of the deceased and no reliance should be placed on their evidence. The validity and propriety of the dying declaration is not acceptable under law. The prosecution case appears to be extremely doubtful. As a matter of fact since the deceased was unconsicious she could not have made any statement before any-body. Under these circumstances it has been contended that the judgment of conviction of the learned court below be set aside and the appellant be acquitted. 5. From the judgment under appeal it appears that the learned Addl. Sessions Judge has awarded the sentence of death under section 302 of the Indian Penal Code. He, however, did not pass any separate sentence on the appellant under section 328 of the Indian Penal code. Sinch the sentence of death has been passed in this case the learned Addl. Sessions Judge has submitted the proceedings of the case to the High Court in accordance with the provisions of section 366 of the Code of Criminal Procedure 1973 (in short the Code). The matter was heard by this Bench in accordance with the provisions of section 368 of the Code which empowers the High Court either to confirm the sentence or to pass any sentence warranted by law and to annul the conviction and to convict the accused of any offence for which the court of session could have convicted him. Section 368(2) empowers the High Court to acquit the accused in a suitable case. This death reference has also been heard alongwith criminal appeal noted above and is being disposed of by this judgment. 6. At the outset it has been pointed out that there is no eye witness of the alleged occurrence. The whole case hinges on the alleged dying declaration made by the deceased. It has become, therefore, very necessary to closely scrutinise the evidence with respect to the dying declaration said to have been made, by the deceased in presence of the witnesses. 7. As per the prosecution case P.Ws. 1, 2 and 3 had brought Manju Kumar to her house at the time when she was found to be unconscious. It has become, therefore, very necessary to closely scrutinise the evidence with respect to the dying declaration said to have been made, by the deceased in presence of the witnesses. 7. As per the prosecution case P.Ws. 1, 2 and 3 had brought Manju Kumar to her house at the time when she was found to be unconscious. According to the prosecution case it was before them that Manju Kumari had disclosed that the appellant had administered two pills to her as a result of which she became critically ill. It has further been alleged that she had disclosed this fact to P.Ws. 1, 2 and 3. In this connection reference may be made to the evidence of P.W.1, Mohan Yadav. He has stated that on hearing some growning sound of girl he went to the river side where he found the girl lying unconscious. He alongwith others took the girl to her house and even then she remained unconscious. She was not in a position to make any statement. P.W.1 has further stated that she did not make any statement in his presence. According to P.W1 the girl was taken to Tilauthu Hospital where the Doctor saw her and declared her brought dead. He is very positive in his cross examination that the girl did not give any statement before she died. It is important to note here that P.W.1 was not declared hostile under section 154 of the Evidence Act and the prosecution has relied on his evidence. From the evidence of P.W.1, however, it becomes clear that if his statement is to be accepted as correct the entire prosecution case goes away. 8. P.Ws. 2 and 3 are the other two witnesses who had taken Manju Kumari from the river side to her house. They have stated that they carried the girl who was drenched and sleeping to her house from where she was taken to the hospital and was declared dead by the Doctor. Both of them have been declared hostile by the prosecution. But they have denied to have made any statement before the police that the girl had disclosed before them that it was the appellant Pintu Sonar who had given her some thing to eat. In his cross examination P.W.2 has stated that the deceased had not given any statement even in the Hospital. But they have denied to have made any statement before the police that the girl had disclosed before them that it was the appellant Pintu Sonar who had given her some thing to eat. In his cross examination P.W.2 has stated that the deceased had not given any statement even in the Hospital. P.W.3 in his cross examination has stated that the girl remained unconscious from the place of occurrence to the Hospital and was not in a position to make any statement. 9. Before proceeding to discuss the evidence of other witnesses in this case I would like to point out certain glaring defects in this case. To begin with, the informant (P.W.8) had stated in his evidence that while he was at his Loundary shop his son-in-law Gorak Ram came and informed him that Manju Kumari had become traceless. This Gorakh Ram has not been examined in this case for the reasons best known to the prosecution. As per P.W.8 he was the first person to come and tell about the missing of Manju Kumari. Since he has not been examined it is not clear from where he got this information. Being the son-in-law of P.W.8 his non-examination goes against the case of the prosecution. 10. On behalf of the appellant it has been pointed out that the prosecution case is not consistent and suffers from embellishment. In this connection it has been pointed out that there is no story of rape in the Fardbeyan of P.W.8. He has stated that Manju Kumari was brought before him but not a word has been stated in the Fardbeyan with respect to any rape on Manju Kumari. P.W.4 is the mother of the deceased. It was she who had introduced the story of rape in the prosecution case. In this connection it may be stated that this story of rape does not find support from the evidence of P.Ws. P.W.4 is the mother of the deceased. It was she who had introduced the story of rape in the prosecution case. In this connection it may be stated that this story of rape does not find support from the evidence of P.Ws. 1 to 3 as also from the Fardbeyan of P.W.8 P.W.4 has stated that Manju Kumari had made her statement in presence of all but other witnesses do not support the story of rape as alleged by P.W.4 Even P.W.5 the brother of the deceased who was also present at the time when Manju Kumari had made her statement has not stated about the allegation of rape P.W.6 has stated that Manju Kumari was speaking cearly but she did not alleged rape before him. Thus clearly the story of rape appears to be an after thought. Even the Doctors who examined the deceased have not stated positively that the deceased was raped. P.W.11 Dr. Shail Devi had simply stated that the possibility of rape can not be over-ruled. Even the father (P.W.8) in his evidence has not said that Manju Kumar had alleged that she was raped. Thus, the prosecution story with respect to rape clearly appears to be an embellishment not supported by the evidence on record and the circumstances of the case. In any view of the matter no charge under section 376 of the Indian Penal Code has been framed against the appellant. It is important to note here that if the girl was raped and if she was in a position to speak she would have certainly alleged about it before others. It can not be believed that the girl raped could keep silent in its respect and will speak only about the two pills administered to her. 11. According to the prosecution case the appellant had administered two pills to the deceased as a result of which she became unconscious and died. According to the Doctor (P.W.10) the viscera of the deceased was preserved in a glass container but viscera report has not been brought on the record. P.W.10 the Doctor has stated that the cause of death can be determined only on the basis of the viscera report. The same, however, has not been brought on the record. As such on this point also the prosecution story becomes doubtful. P.W.10 the Doctor has stated that the cause of death can be determined only on the basis of the viscera report. The same, however, has not been brought on the record. As such on this point also the prosecution story becomes doubtful. In this connection my attention has been drawn to the document marked 'X' for identification said to be the viscera examination report. From the judgment of the learned court below it appears that even though the viscera report could not be proved he has looked into it under the provisions of section 294 of the Code and has relied on the same. In this connection a reference to this section has to be made to find out how for the document marked 'X' for identification could be admitted into evidence on the strength of section 294 of the Code. No doubt section 294 of the Code says that no formal proof of certain documents would be necessary. Before, however, the aid of section 294 of the Code can be taken to prove a document it has to be seen whether the genuineness of this document has been disputed or not. In the present case on behalf of the appellant it has seriously been contended that they very much doubt the genuineness of this document. In this connection our attention has been drawn to sub-section (3) of section 294 of the Code which runs as follows: “(3) Where the genuineness of any document is not disputed such document may be read in evidence in any inquiry, trial or other proceeding under this Code without proof of the signature of the person to whom it purports to be signed." In the present case the genuineness of this document has been challenged on behalf of the appellant. As such the aid of section 294 of the Code can not be taken to say that the document marked 'X' for identification can be admitted into evidence. 12. This being the position it is clear that the viscera report has not been brought on the record to show the cause of death. I have already pointed out that P.W.10 has stated that the cause of death could be determined only on the basis of viscera report. The same having not being brought on the record the cause of death still remains not established. I have already pointed out that P.W.10 has stated that the cause of death could be determined only on the basis of viscera report. The same having not being brought on the record the cause of death still remains not established. As against it on behalf of the appellant it has been alleged that it is a simple case of drowning in water where the deceased has gone to remove the Patta which is used for washing of clothes. 13. It has been contended before us that the appellant has been faslely implicated in this case on account of some dispute or enmity. On this point P.W.4 the mother of the deceased has admitted that she had a dispute with the appellant. Even P.W.5 the uncle of the deceased had stated that there was a dispute between women folk of family of the appellant and Manju Kumari from before. It has been contended that the finding Manju Kumari dead on account of drowning the prosecution has falsely implicated the appellant on account of this enmity. Be that as it may, even if the story of this enmity is ignored it is clear that the prosecution has not been able to prove its case beyond all reasonable doubts. The viscera report has not been proved to show that any poisonous substance was administered to the deceased. The story of rape clearly appears to be afterthought for which no charge has been framed. 14. From the discussions made above it becomes clear that the prosecution has not been able to prove its case beyond all reasonable doubts. The charges framed against the appellant could not be proved on the basis of the evidence on record and clearly appellant is entitled to the benefit of doubt. 15. For the reasons stated above the judgment of conviction of the learned court below is set aside and the appellant is acquitted of the charges framed against them. So far as the death reference is concerned it is answered in negative with a direction that the appellant be acquitted in terms of section 368(C) of the Code. The appellant is further directed to be released forth with from the jail custody if not required in any other case. The appeal is, accordingly, allowed and the death reference is also answered accordingly.