Judgment Chandramauli Kr.Pd., J. 1. M these appeals arise out of the same judgment and, as such, they were heard together and are being disposed of by this common judgment. 2. Prosecution story according to the fardbeyan given by Siyaram Yadav (deceased) on 24.3.1999 at 9.30 P.M. before the Officer-lncharge of Shahkund Police Station in the Government Hospital, Shahkund is that on 24.3.1999 at about 8 P.M., while he alongwith his brother Prakash Yadav (P.W. 6) were going to their masters place and reached near a banyan tree, the three appellants, who happen to be brothers, stopped them and appellant Bhutha Singh fired at the informant, which caused injury on his back. He tried to flee away from there, whereupon appellant Munna Singh fired which also caused injury on his back. Sustaining the injuries informant fell down, when appellant Sallo Singh is alleged to have stated that the victim had died. At this, the informants brother Prakash Yadav fled away from the place of occurrence shouting and after sometime villagers collected and took the injured to the Hospital. 3. On the basis of the aforesaid report, Shahkund P.S. Case No. 28 of 1999 was registered under Sections 326 and 307/34 of the Indian Penal Code and 27 of the Arms Acts. 4. Later on Siyaram Yadav, the informant died and after his death his brother Prakash Yadav, gave another statement before the Sub-Inspector of Barari Police Station, at the Jawahar Lal Nehru Medical College and Hospital, Bhagalpur. In this he had disclosed the manner of incident similar to what was stated by his brother earlier, and intimating about his death in the Hospital. After the death of the informant, Sec.302 of the Indian Penal Code was added. 5. Police after investigation submitted charge-sheet against all the appellants and they were ultimately committed to the Court of Sessions to face trial, where they were charged for committing the murder of Siyaram Yadav by intentionally causing his death in furtherance of common intention and thereby punishable under Sec.302/ 34 of the Indian Penal Code. They were also charged for committing the offence under Sec.27 of the Arms Act. 6. They were also charged for committing the offence under Sec.27 of the Arms Act. 6. Appellants denied to have committed any offence and from the trend of the cross-examination, their defence seem to be of false implication and further that the deceased was not in a position to give any statement after he sustained injuries and the claim made by P.W. 6 Prakash Yadav to be an eye-witness to the occurrence is untrue. 7. The prosecution in support of its case had examined altogether seven witnesses, out of whom, P.W. 1, P.W. 3, P.W. 4 and P.W.5, namely, Koko Yadav, Ahilya Devi, Basanti Devi and Manorama Devi do not claim to be an eye-witness to the occurrence but are witnesses on the point of oral dying declaration of the deceased. P.W. 5 Prakash Yadav happens to be the brother of the deceased and claims to be an eye-witness to the occurrence. P.W. 6 Ishwar Chandra Vidyasagar, at the relevant time, was posted as the Officer-Incharge of Shahkund Police Station, who had recorded the fardbeyan of the deceased, prepared the Inquest report, sent the dead body for post mortem, recorded the statement of the witnesses during the course of investigation and submitted the charge-sheet. 8. Appellants in their defence had also examined four witnesses to establish that the deceased was not in a position to speak after he sustained the injuries and the claim made by P.W. 6 Prakash Yadav to be an eye-witness to the occurrence is untrue. 9. The trial court on appraisal of evidence came to the conclusion that the prosecution proved its case beyond all reasonable doubt and by judgment dated 4.12.2002 passed in Sessions Case No. 703 of 2000 (Trial No. 236 of 2002) held them guilty of offence under Sec.302/ 34 of the Indian Penal Code as also 27 of the Arms Act and sentenced them to undergo life imprisonment on the first count, and rigorous imprisonment for three years on the second count. Sentences were directed to run concurrently. 10. The three appellants, aggrieved by the same, have preferred separate appeals. 11. P.W1 Koko Yadav in his evidence had stated that on the date of incident at about 8 P.M. while he was at his residence, after hearing alarm he reached near a banyan tree, south to the village and found Siyaram Yadav deceased fallen on the ground with gun shot injuries. 11. P.W1 Koko Yadav in his evidence had stated that on the date of incident at about 8 P.M. while he was at his residence, after hearing alarm he reached near a banyan tree, south to the village and found Siyaram Yadav deceased fallen on the ground with gun shot injuries. According to this witness, Siyaram Yadav disclosed that gun shot injuries have been caused by appellants Munna Singh and Bhutha Singh. He had further stated that Siyaram Yadav disclosed that appellant Sallo Singh was standing by their side. In the cross-examination an attempt was made to show that this witness is a cousin of the deceased, which he denied. 12. P.W. 2 Sushil Yadav has been declared hostile by the prosecution and has been cross-examined and in the cross-examination he had denied to have made any statement before the police that the deceased disclosed to him the names of the assailants. 13. P.W. 3 Ahilya Devi is the daughter of the deceased and according to her evidence, while she was at her house she heard that her father has been shot at, whereupon she went to the place of occurrence and found him fallen on the ground and groaning in pain. On enquiry, according to this witness, her father dis-closed that he was shot at by the appellant Munna Singh and thereafter by appellant Bhutha Singh and appellant Sallo Singh was with them. This witness had further stated that her father had sustained gun shot injury on his back and left side of the waist and taken to Shahkund Hospital, where he died. In the cross-examination she had stated that her uncle RW. 6 Prakash Yadav had also gone to the place of occurrence alongwith her and thereafter other villagers had collected. In the cross-examination she disclosed that because of darkness she did not see as to whether blood-stains were on the earth or not, but she had categorically stated that the cloth which the deceased was wearing was full of blood. As regards the sequence of firing, she stated that her father disclosed that first shot was fired by appellant Munna Singh, whereas the second shot was by appellant Bhutha Singh. In the cross-examination she had further stated that after her father sustained the gun shot injuries he became unconscious and thereafter did not gain senses. She had also stated that her father died at the Police Station. In the cross-examination she had further stated that after her father sustained the gun shot injuries he became unconscious and thereafter did not gain senses. She had also stated that her father died at the Police Station. 14. RW. 4 Basanti Devi is the wife of the younger brother of Siyaram Yadav, the deceased and she has stated in her evidence that while she was in her house, she heard that murder had taken place near a Banyan tree and when she went there found her brother-in-law lying and groaning. According to this witness, he had sustained gun shot injury and he disclosed to her that all the three appellants, who happen to be the sons of Mahendra Singh, had shot at him. In cross-examination, she had stated that her brother-in-law was in deep anguish and he had disclosed about the incident to her. 15. RW. 5 Manorama Devi is the wife of the deceased and has stated in her evidence that at about 8 P.M. on the date of incident, while she was at her residence she heard gun sound whereupon she went towards the Banyan tree, south to the village and found her husband with gun shot injuries. According to this witness, she enquired from her husband as to who had caused the gun shot injuries, whereupon he disclosed that he was shot at by appellant Munna Singh and thereafter appellant Bhutha Singh. According to this witness, the deceased further disclosed that thereafter their brother appellant Sallo Singh came and tried to surround them. She had further stated that her husband was then taken to Shahkund Police Station and thereafter to the Hospital, where his statement was recorded. In the cross-examination she had stated that her sister-in-law and brother-in-law had also gone alongwith her at the place of incident. In the cross-examination she had admitted that her husband was in severe pain but was in a position to speak. 16. PW. 6 Prakash Yadav is the brother of the deceased and claims to be an eye-witness to the occurrence. He had stated in his evidence that on the date of occurrence at about 8 P.M., he alongwith his brother deceased Siyaram Yadav were going to. their Masters village for taking food and when reached near a Banyan tree, appellants stopped them and threatened to kill. He had stated in his evidence that on the date of occurrence at about 8 P.M., he alongwith his brother deceased Siyaram Yadav were going to. their Masters village for taking food and when reached near a Banyan tree, appellants stopped them and threatened to kill. According to this witness, appellant Bhutha Singh fired at his brother, whereupon he started fleeing from the place of occurrence crying, when appellant Munna Singh shot at him again. He had further stated that his brother sustained gun shot injuries on the back and when he fell down the appellants shot at him. According to this witness on hulla a large number of villagers collected and injured was taken to Shahkund Hospital, where his statement was recorded. Thereafter, according to this witness, he was taken to the Hospital at Bhagalpur, where he died. He had also stated that his statement was recorded at the Hospital after the death of his brother. In the cross-examination he had stated that the deceased was given first aid at Shahkund Hospital and the doctor attending to him advised to take him to Hospital at Bhagalpur. In the cross-examination he had further stated that his brother died while being taken to Hospital at Bhagalpur. 17. P.W. 7 Ishwar Chandra Vidyasagar, at the relevant time, was posted as Officer-lncharge of Shahkund Police Station and had recorded the statement of the deceased at Government Hospital, Shahkund. He had further stated in his evidence that after he got information that a person is admitted in the Government Hospital, Shahkund in injured condition, he went to the hospital and found Siyaran Yadav in injured condition. He took his statement, read out the same and obtained his left thumb impression. During the course of investigation he had visited the place of occurrence and found bloodstains near the Banyan tree south to the road. However he did not find any bloodstains at the place, where the deceased is alleged to have fallen after sustaining the injuries. He had further stated that Subhadra Kumari, another Police Officer had sent the dead body for postmortem. He had deposed that he had received the post-mortem report, recorded the statement of the witnesses and submitted charge-sheet. In the cross-examination he had stated that the doctor did not give any certificate that Siyaram Yadav was in a position to give statement. He had further stated that Subhadra Kumari, another Police Officer had sent the dead body for postmortem. He had deposed that he had received the post-mortem report, recorded the statement of the witnesses and submitted charge-sheet. In the cross-examination he had stated that the doctor did not give any certificate that Siyaram Yadav was in a position to give statement. He had stated that he did not consider it necessary to obtain certificate from the doctor on the ground that in fact Siyaram Yadav had given statement. He had denied the suggestion of the appellants that the deceased was not in a position to give statement. 18. D.W.1 Jayanti Yadav had stated in his evidence that at about 8 P.M. on the date of occurrence he heard that Siyaram Yadav had sustained gun shot injuries whereupon he alongwith P.W. 6 Prakash Yadav and other persons went to the place of occurrence and found Siyaram Yadav unconscious and he did not disclose anything to anybody. In the cross-examination he had stated that he is making the statement for the first time in the Court and never gave statement before the Police Officer during the course of investigation. Similar is the evidence of D.W. 2 Manik Chand Manjhi, who has stated that after hearing the gun sound when he went to the place of occurrence he found Siyaram Yadav unconscious and was not in a position to make any statement. In the cross-examination he had admitted that he never made any efforts to state the aforesaid fact during the course of investigation and making the said statement for the first time before the Court. D.W. 3 Mahesh Manjhi had stated in his evidence that he reached at the place of occurrence half an hour after the incident where he found Siyaram Yadav unconscious and till that time it was not known as to who had assaulted him. Like the other defence witnesses he had also admitted that for the first time he is making the statement in the Court. D.W. 4 Dinesh Prasad Singh was at the relevant time a Dresser at Primary Health Centre, Shahkund and had brought the emergency register and injury register on the orders of the Court. In his deposition he had stated that on 24.3.1999 he was on duty in the hospital and on that day Dr. Badri Narayan Singh was also on duty. D.W. 4 Dinesh Prasad Singh was at the relevant time a Dresser at Primary Health Centre, Shahkund and had brought the emergency register and injury register on the orders of the Court. In his deposition he had stated that on 24.3.1999 he was on duty in the hospital and on that day Dr. Badri Narayan Singh was also on duty. He had stated that the name of the patient is entered in the register and on the basis of that he deposed that on 24.3.1999 Siyaram Yadav was brought in the emergencyward by the Officer-lncharge of the police Station. He had further stated that in the injury register the injury sustained by the injured has not been mentioned. However he stated that as the patient had gun shot injury, he was referred to Jawahar Lal Nehru Medical Hospital for treatment. 19. It is relevant here to state that neither the post mortem report has been brought on record nor the doctor, who had conducted the post mortem examination, has been examined. Mr. Lala Kailash Bihari Prasad, Additional Public Prosecutor had made oral prayer for summoning the doctor, who had conducted the post mortem examination as additional evidence in exercise of the power under Sec.391 of the Code of Criminal Procedure. He submits that for the ends of justice it is necessary to examine the doctor, who conducted the post mortem examination as a witness. In support of his submission, he has placed reliance on a judgment of the Supreme Court in the case of Zahira Habibulla H. Sheikh and Another vs. State of Gujarat and Others [2004 S.C.C. (Cri.) 999] and our attention has been drawn to the following passage from paragraph 59 of the judgment, which reads as follows: "In a given case when the Court is satisfied that for reasons on record the witness had not stated truthfully before the trial court and was willing to speak the truth before it, the power under Sec.391 of the Code is to be exercised. It is to be noted at this stage that it is not the prosecution which alone can file an application under Sec.391 of the Code. It can also be done, in an appropriate case by the accused to prove his innocence. Therefore, any approach without pragmatic consideration defeats the very purpose for which Sec.391 of the Code has been enacted. It is to be noted at this stage that it is not the prosecution which alone can file an application under Sec.391 of the Code. It can also be done, in an appropriate case by the accused to prove his innocence. Therefore, any approach without pragmatic consideration defeats the very purpose for which Sec.391 of the Code has been enacted. Certain observations of the High Court like, that if the accused persons were really guilty they would not have waited for long to commit offences or that they would have killed the victims in the night taking advantage of the darkness and/or that the accused persons had saved some persons belonging to the other community, were not only immaterial for the purpose of adjudication of application for additional evidence but such surmises could have been carefully avoided at least in order to observe and maintain the judicial calm and detachment required of the learned Judges in the High Court." 20. Mr. Shardanand Mishra, however, appearing on behalf of the appellants submits that in the facts of the present case, discretion under Sec.391 of the Code of Criminal Procedure for taking additional evidence is not fit to be exercised. 21. Having appreciated the rival submission, we do not find any substance in the submission of Mr. Prasad and the decision relied on is clearly distinguishable. 22. True, it is that Sec.391 of the Code of Criminal Procedure does not put any restriction on the power of the Court to take further evidence, but it is equally well settled that under the garb of this power the prosecution cannot be allowed to fill up the lacuna in the prosecution case. The necessity for taking additional evidence has to be determined on the facts of each case and ordinarily it should not be allowed if the prosecution had failed to avail the opportunity given to it by the trial court for producing such evidence. The view which we have taken finds support from the decision of the Supreme Court in the case of Rajeshwar Prasad Misra vs. The State of West Bengal and Another [AIR 1965 Supreme Court 1887] wherein it has been observed as follows: "The power must be exercised sparingly and only in suitable cases. Once such action is justified, there is no restriction on the kind of evidence which may be received. It may be formal or substantial. Once such action is justified, there is no restriction on the kind of evidence which may be received. It may be formal or substantial. It must, of course, not be received in such a way as to cause prejudice to the accused as for example it should not be received as a disguise for a retrial or to change the nature of the case against him. The order must not ordinarily be made if the prosecution has had a fair opportunity and has not availed of it unless the requirements of justice dictate otherwise." 23. Reference in this connection can also be made to a Division Bench Judgment of this Court in the case of Shiva Balak Rai and 3 Others vs. The State of Bihar [1986 PUR 604], wherein this Court has held as follows: "The language of the section does not put any restriction on the power of the Court. But it is for the appellate Court to decide whether in the interest of justice it is "necessary" to allow any party to give additional evidence. The word "necessary" has not been used in the section to mean that this power should be exercised when it is impossible to pronounce judgment. The reception of additional evidence may be allowed when there is likelihood of failure of justice without it. It is an exception to the general rule and the power conferred by this provision must be exercised with great care, so that the reception of the additional evidence for the prosecution may not operate in any manner prejudicial to the defence of the accused. Under the garb of the provision of this section, the prosecution cannot be allowed to fill up the lacuna in the prosecution evidence. Where only formal proof of a document is necessary, the appellate court would be perfectly justified in admitting the additional evidence. Likewise if the evidence, which is necessary for a just decision of the case, was erroneously rejected by the trial court or such evidence was not within the knowledge of the parties earlier, the appellate court may exercise the power. The abovementioned instances are only illustrative and not exhaustive. The necessity for taking additional evidence under this section has to be determined on the particular facts of each case. The abovementioned instances are only illustrative and not exhaustive. The necessity for taking additional evidence under this section has to be determined on the particular facts of each case. Ordinarily, it should not be allowed if the prosecution fails to avail the opportunity given to it by the trial court for producing such evidence." 24. Bearing in mind the principle aforesaid when we proceed to examine the facts of the present case, we find that the prosecution was given sufficient opportunity to examine the doctor, who had conducted the post mortem examination. From the record, it appears that on 6.8.2002 it was brought to the notice of the trial court that the doctor, who had conducted the post mortem examination, has been transferred to A.N. Medical College, Gaya and on the aforesaid premise request was made to issue summons to him. The learned Judge acceded to request and directed for issuance of summon. Thereafter the case was adjourned with caution by the Court on several dates. Ultimately wen it was taken up on 12.9.2002 it was stated on behalf of the prosecution that the doctor could not be present on account of a train accident. Accordingly, prayer was made for adjournment of the case for examination of the doctor, which prayer was accepted. Thereafter when the matter was taken up on 26.9.2002, the learned Judge found that sufficient opportunity was given to the prosecution to lead evidence, which opportunity it did not avail and did not examine the doctor and, accordingly, closed the case of the prosecution. From the facts narrated above, it is evident that the prosecution was given sufficient opportunity to examine the doctor which opportunity it did not avail and in that view of the matter we are of the opinion that the discretion conferred on this Court under Sec.391 of the Code of Criminal Procedure is not fit to be exercised. Without going into the question as to whether such a prayer can be made orally or not, we reject the oral prayer of Mr. Prasad for taking additional evidence. 25. Now referring to the authority of the Supreme Court in the case of Zahira Habibulah H. Sheikh and Another (supra) relied on by Mr. Prasad, same is clearly distinguishable. Without going into the question as to whether such a prayer can be made orally or not, we reject the oral prayer of Mr. Prasad for taking additional evidence. 25. Now referring to the authority of the Supreme Court in the case of Zahira Habibulah H. Sheikh and Another (supra) relied on by Mr. Prasad, same is clearly distinguishable. In the said case the Supreme Court found the trial to have been vitiated because it was not conducted in a fair manner and in that situation power under Sec.391 of the Code of Criminal Procedure is fit to be exercised. Here we do not find anything of such nature. Even today it is not known where the doctor is posted and no such details have been brought on record by way of an application or otherwise. 26. Mr. Mishra assailing the conviction of the appellants submits that the claim made by P.W. 6 Prakash Yadav to be an eye-witness to the occurrence is absolutely false and once his evidence is ignored, no material exist for sustaining the appellants conviction. In this connection, he has drawn our attention to the evidence of P.W. 3 Ahilya Devi, who happens to be the daughter of the deceased. In paragraph 3 of her cross-examination she had stated that her uncle Prakash Yadav had gone alongwith her to the place, where her father was lying. He points out that this witness does not claim to be an eye-witness to the occurrence and had clearly stated that she rushed to the place of occurrence after hearing the gun sound and, as such, Prakash Yadavs claim to be an eye-witness is fit to be rejected. Our attention has also been drawn to the evidence of P.W. 5 Manorama Devi. In paragraph 4 of her cross-examination she had stated that she went to the place of occurrence alongwith her brother-in-law P.W. 6 Prakash Yadav after he heard the gun shot sound. Referring to the aforesaid evidence learned Counsel contends that P.W. 6 Prakash Yadavs claim to be an eye-witness to the occurrence is fit to be rejected. 27. Mr. Prasad, however, contends that even if P.W.6s claim to be an eye witness to the occurrence is rejected, there are ample evidence on the record which proves beyond all reasonable doubt that it is the appellants who had committed the crime. 27. Mr. Prasad, however, contends that even if P.W.6s claim to be an eye witness to the occurrence is rejected, there are ample evidence on the record which proves beyond all reasonable doubt that it is the appellants who had committed the crime. He points out that P.W. 1 Koko Yadav, P.W. 3 Ahilya Devi, P.W. 4 Basanti Devi and P.W. 5 Manorama Devi had reached at the place of incident immediately after the occurrence to whom the deceased had disclosed the names of the assailants and that is sufficient to sustain the conviction of the appellants. He also points out that the fardbeyan of the deceased was recorded by the Sub-Inspector of Police P.W. 7 Ishwar Chandra Vidyasagar soon after the incident which has given the cause of death and Siyaram Yadav dying later on, same is fit to be treated as a dying declaration. Accordingly, he submits that the oral dying declaration given before the witnesses and the fardbeyan which has to be treated as dying declaration are sufficient to sustain the conviction of the appellants. 28. Having appreciated the rival submission, there is no difficulty in accepting the broad submission of Mr. Prasad that in case the oral dying declaration and the fardbeyan which has given the cause of death can be treated as a dying declaration and if found reliable, appellants conviction can be sustained. But in the present case we find an unsurmountable difficulty in the way of the prosecution for sustaining the conviction. 29. As stated earlier, neither the post mortem report has been brought on record nor the doctor, who had conducted the post mortem examination, has been examined as a witness, hence the cause of death is unknown. In answer thereto, Mr. Prasad contends that in a case where there is no doubt as to the cause of death, absence of the post mortem report or for that matter examination of the doctor, who had conducted the autopsy, shall not be fatal. In answer thereto, Mr. Prasad contends that in a case where there is no doubt as to the cause of death, absence of the post mortem report or for that matter examination of the doctor, who had conducted the autopsy, shall not be fatal. In this connection, our attention has been drawn to a decision of the Supreme Court in the case of Kehar Singh and Others vs. The State (Delhi Admn.) [AIR 1988 Supreme Court 1883] and our attention has been drawn to the following passage from paragraph 320 of the judgment, which reads as follows: "It is not necessary to confirm the finger prints on the sten-gun, as that of the accused when it is proved that sten-gun was delivered to him. The examination of the bullets recovered from the body of Mrs. Gandhi for the traces of blood or tissues is also unnecessary, since one of the bullets taken by the Doctor tallied with the sten-gun (Ex.P.4). Equally, limited post mortem examination conducted by Dr. Dogra would not affect the merits of the case. It is not always necessary to have a complete post mortem in every case. Sec.174 of the Code confers discretion to the Police Officer not to send the body for post mortem examination if there is no doubt as to the cause of death. If the cause of death is absolutely certain and beyond the pale of doubt or controversy, it is unnecessary to have the post mortem done by Medical Officer. In the instant case, there was no controversy about the cause of death of Mrs.. Gandhi. A complete post mortem of the body was therefore uncalled for." (Underlining our) 30. We do not find any substance in this submission of Mr. Prasad and the authority relied on is clearly distinguishable. 31. It is well settled that for bringing home the charge under Sec.302 of the Indian Penal Code, the prosecution has to prove that the death had taken place, which is neither accidental nor suicidal or natural, but homicidal. In the absence of the post mortem report and the evidence of the doctor, it is impossible to ascertain the cause of death. Once the cause of death remains unknown, no conviction under Sec.302 of the Indian Penal Code can be sustained. In the absence of the post mortem report and the evidence of the doctor, it is impossible to ascertain the cause of death. Once the cause of death remains unknown, no conviction under Sec.302 of the Indian Penal Code can be sustained. Reference in this connection can be made to a Division Bench judgment of this Court in the case of Sheo Govind Bin and Another vs. The State of Bihar [1985 PLJR 1019], in which it has been held as follows: "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 of the charge. Under the circumstances, the appellant Sheo Govind Bin cannot be said to be guilty for the offence under Sec.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 Sec.326 of the Indian Penal Code." 32. Similar view has been taken by a Division Bench of this Court in the case of Shiva Balak Rai and 3 Others vs. The State of Bihar [ 1986 PLJR 604 ] in which it has been held as follows: "True it is that the post mortem report is available on the record of the trial court. The post mortem report has not been legally brought on the record as the doctor, who performed autopsy, was not examined. It, therefore, follows that there is no evidence before the Court to hold that Sanaullah Mian died as a result of the injuries caused to him by lathi, farsa and spade. It further shows that there is no corroborative medical evidence in support of the oral allegations made against the appellants that they caused injuries to the deceased." 33. From the discussions aforesaid, we come to the conclusion that in the present case the cause of death remains unknown and, therefore, the appellants conviction under Sec.302 of the Indian Penal Code cannot be sustained. 34. We are unable to understand as to why the prosecution did not chose to examine the doctor, who had conducted the post mortem examination. From the discussions aforesaid, we come to the conclusion that in the present case the cause of death remains unknown and, therefore, the appellants conviction under Sec.302 of the Indian Penal Code cannot be sustained. 34. We are unable to understand as to why the prosecution did not chose to examine the doctor, who had conducted the post mortem examination. If his attendance was not possible to be procured, it could have taken recourse to the provision of Sec.294 of the Code of Criminal Procedure and could have examined any of the doctor, who knew the signature of the doctor, who conducted the autopsy. The prosecution having not taken the said recourse and cause of death of Siyaram Yadav being unknown, we are constrained to set aside the conviction of the appellants and acquit them of the charge. 35. In the result, the appeals succeed, judgment of conviction and sentence is set aside. Appellant Bhutha Singh and Munna Singh are in jail, they be set at liberty forthwith unless required in any other case. Appellant Sallo Singh is on bail, he shall be discharged of his bail bond.