JUDGMENT (ORAL) Per A.K. Trivedi, J. 1. Instant appeal has been filed through jail and on account thereof Sri Ashok Kumar Mishra has been requested to assist the Court and argue the appeal as an amicus curiae and accordingly the instant appeal has been heard. 2. Appellant Tengari Paswan has challenged the judgment of conviction and sentence dated 20.12.1988 passed by Vth Additional Sessions Judge. Rohtas in Sessions Trial No. 496 of 1985 convicting the appellant along with Jalil Khan for an offence punishable under Section 302/34 of the IPC and sentenced both of them to undergo R.I. for life. 3. Succinctly, the case of the prosecution as per First Information Report (Ext-1) lodged by Khalil Ansari (PW 5) on 14.06.85 at about 6.45 a.m. at Nokha P.S. alleging inter alia that he along with his family members had slept at his darwaja while his cousin brother. Salim Ansari along with brother-in-law. Israel Ansari had gone to sleep at khalihan. At about 2:00 a.m. Israel Ansari came and informed that hearing the sound of whine of Salim Ansari he woke up and found appellant Tengari Paswan having caught hold of Salim Ansari while Jalil Khan was engaged in slitting his neck. On this information he along with his younger brother Kalim Ansari, father, Qadir Ansari and another brother Jamaluddin Ansari rushed towards place of occurrence. At that very time Jamaluddin Khan had a torch in his hand and in torch light they had seen Jalil Khan and Tengari Paswan running towards western direction. When they reached at khalihan. they found Salim Ansari to be dead. Copious blood was found near about neck of the deceased. Subsequently thereof, a large number of villagers arrived whom they narrated the incident. The motive for occurrence has been shown as there was brawl between Salim and Jalil on an earlier occasion on a trivial issue. Baidhnath Prasad and Md. Isamuddin were shown to be FIR attesting witnesses. 4. After having registration of Nokha P.S. Case No. 87/85 investigation was taken up and charge-sheet was submitted after concluding the same. The offence being exclusively triable by the Court of Sessions led committal of the case where trial commenced and concluded in a manner, the subject matter of the instant appeal. 5. 4. After having registration of Nokha P.S. Case No. 87/85 investigation was taken up and charge-sheet was submitted after concluding the same. The offence being exclusively triable by the Court of Sessions led committal of the case where trial commenced and concluded in a manner, the subject matter of the instant appeal. 5. The defence case as is evident from mode of cross-examination as well as from the statement of the accused recorded under Section 313 of the Cr PC is that of innocence as well as complete denial of the occurrence. However, neither any DW nor any document has been exhibited on behalf of defence. 6. Learned counsel for the appellant raised manifold grounds during course of assailing the judgment impugned. The first and foremost argument is that though there is evidence on the record regarding death of doctor who held post-mortem over the dead body of deceased and on account thereof the post-mortem report is admissible in terms of Section 32 of the Evidence Act but the manner chosen by the prosecution for exhibiting post-mortem report as Ext-6 appears to be contrary to the requirement of the law and in the aforesaid background the contents of the post-mortem report cannot be taken into consideration. It has further been submitted that no independent witness has been examined in this case the family member of the deceased, Salim Ansari. To support the same, it has further been submitted that from the sketch map (Ext-5) it is apparent that the house of the informant as well as deceased is partitioned by way of presence of partition wall. Therefore, the family members of deceased. Salim Ansari were the best persons to suggest or divulge the actual fact that under what circumstances deceased had gone to sleep in khalihan along with Israel Ansari which appears to be unbelievable in the background of the fact that Israel Ansari happens to be brother-in-law who in normal phenomena would not be allowed or expected to sleep away from residence. It has further been submitted that only one set of person belonging to the family of informant happens to be witness and after going through their evidence. it is crystal clear that none of them is an eye-witness to occurrence. In likewise manner. it has also been submitted that in the present case. There is only one eye-witness. It has further been submitted that only one set of person belonging to the family of informant happens to be witness and after going through their evidence. it is crystal clear that none of them is an eye-witness to occurrence. In likewise manner. it has also been submitted that in the present case. There is only one eye-witness. Israel Ansari (PW 4) claimed to be an eye-witness but after going through his evidence. it is apparent from his conduct that he would not have been an eye-witness to occurrence. 7. In the aforesaid background as well as drawing adverse efferent and inference over the evidence of Israel Ansari. it has been submitted that when Israel Ansari along with Salim Ansari (deceased) had gone to sleep at khalihan the identification of appellant along with Jalil Khan by Israel Ansari creates a doubt on account of having absence of source of identification. Not only this there was presence of two other persons in between who were not examined nor were produced during course of trial on this score. Therefore, the identification of appellant along with Jalil Khan is impossible by a resident of different village who have got no access or occasion to identify the appellant. Tengari Paswan along with Jalil Khan since before the occurrence nor they claimed so. Therefore, the cumulative effect is that they have been made scapegoat or victim of suspicion in the background of so alleged altercation said to have taken place. Whenever a doubt is cast then certainly benefit has to be given to the appellant. 8. Per contra, it has been submitted on behalf of the learned APP that to support the case of the prosecution the number never counts rather the quality. Admittedly, there is presence of Israel Ansari at the spot who along with deceased had slept in khalihan and during said course he had witnessed the occurrence while appellant along with Jalil Khan was engaged in chopping of neck of deceased, Salim Ansari. The other evidence in the aforesaid background is corroborative one. The post-mortem report as the doctor had died is to be taken into consideration and accordingly rightly been relied upon. Therefore, the judgment impugned does not attract any sort of interference. 9. Before coming to ocular evidence the legality as well as admissibility of dying declaration has to be taken into account. The post-mortem report as the doctor had died is to be taken into consideration and accordingly rightly been relied upon. Therefore, the judgment impugned does not attract any sort of interference. 9. Before coming to ocular evidence the legality as well as admissibility of dying declaration has to be taken into account. Section 32 of the Evidence Act commands the situation which needs to be incorporated below : 32. Cases in which statement of relevant fact by person who is dead or cannot be found etc., is relevant. Statements, written or verbal of relevant facts made by a person who is dead or who cannot be found or who has become incapable of giving evidence or whose attendance cannot be procured without an amount of delay or expense which under the circumstances of the case appears to the Court unreasonable are themselves relevant facts in the following cases :- (1) ...... (2) or is made in course of business. - When the statement was made by such person in the ordinary course of business and in particular when it consists of any entry or memorandum made by him in books kept in the ordinary course of business or in the discharge of professional duty; or of an acknowledgment written or signed by him of the receipt of money, goods, securities of property of any kind; or of a document used in commerce written or signed by him; or of the date of a letter or other document usually dated written or signed by him. 10. Thus, after reading the relevant provision of Section 32 of the Evidence Act. it is evident that apart from bringing on record the fact with regard to the death of the witness. it should be brought on record whatever have been scribed by the deceased in his due discharge of function. So far instant case is concerned save and except having the fact brought on record regarding death of doctor who conducted post-mortem over the dead body of deceased. Salim Ansari its content has not been brought on record that means to say the legal requirement is found to be missing to that extent and in absence thereof certainly the contents of the post-mortem report cannot be looked into or taken into consideration. 11. Now coming to the ocular evidence. Salim Ansari its content has not been brought on record that means to say the legal requirement is found to be missing to that extent and in absence thereof certainly the contents of the post-mortem report cannot be looked into or taken into consideration. 11. Now coming to the ocular evidence. Admittedly, PW 4 Israel Ansari solely happens to be or claimed himself to be an eye-witness to the occurrence. During his examination-in-chief, he had stated that he along with Salim Ansari, Munna Ansari and Majid Ansari were sleeping at khalihan. He woke up after hearing sound of whine and had seen Tengari Paswan having pressed body of Salim Ansari while Jalil Khan was engaged in slitting his neck. He ran therefrom raising alarm. He rushed to dalan and Khalil. Kalimuddin and Qadir woke up and whom he narrated the event. On account thereof all of them came to khalihan and in torch light flashed by Jamaluddin Khan found Jalil Khan and Tengari Paswan running away towards western direction. During cross-examination. It is evident from para-2 that he had shown his location 1-1/2 lathi away from the deceased. It is also evident from para-4 that he ran from there raising an alarm. It is also evident therefrom that so many persons were sleeping in surrounding who also woke up but did not accompany him to the place of Khalil Ansari rather they had gone to the place of occurrence. From para-5. it is so evident that Munna and Majid had slept in between deceased and he himself. In para-6 had said that Munna and Majid have not woken up on an alarm raised by him. Later on they woke up. So from his evidence, it is visible that apart from him the persons whose presence was in surrounding had earlier arrived at the place of occurrence hearing an alarm raised by him. None of them happens to be witness of the occurrence nay any name has been disclosed at his end. It also appears to be improbable situation that sound of alarm was found unnoticed by Munna and Majid. Not only this these Munna and Majid have not been examined during course of trial nor any explanation has been furnished for their non examination. 12. From his evidence. it is also evident that he rushed directly to the Bathan of informant Md. Khalil. Not only this these Munna and Majid have not been examined during course of trial nor any explanation has been furnished for their non examination. 12. From his evidence. it is also evident that he rushed directly to the Bathan of informant Md. Khalil. After going through the sketch map (Ext-5) as well as from the evidence of PW 6 Mahanth Pd. Singh. I.O.. it is evident that the house of deceased Salim Ansari is just in front of the alleged place of occurrence covering a few steps and in that event it appears to be a surprising feature that instead of running to the house. Israel Ansari covered a long distance to approach Khalil Ansari. The prosecution has not brought on record that on the alleged date of occurrence no family members of deceased was present at his house nor during course of trial any member of family of deceased. Salim Ansari has been examined. There also happens to be no explanation on this score at the end of prosecution. 13. Now coming to other remaining ocular witnesses. Namely PW 1 Jamaluddin Ansari, PW 2 Kalamuddin Ansari, PW 3. Kadir Ansari and PW 5 Khalil Ansari, PW 3 Kadir Ansari was tendered. So far PW 1 is concerned. he had stated that while he along with father and brothers were sleeping at his dalan. Israel Ansari came and disclosed that Salim Ansari is being murdered. Over which they rushed and in torch light they had seen Jalil Khan and Tengari Paswan were running away. They have also seen the dead body of Salim Ansari. From his cross-examination at para-5. He had admitted that when Israel came to his Bathan. he had not disclosed names of any assailant rather he simply stated that Salim has been murdered. 14. PW 2 is another brother of PW 1 who had stated that on the alleged date and time of occurrence while he along with his father and other brothers were sleeping at his Bathan, Israel came and on account thereof he got awoken. Thereafter, they rushed towards the place of occurrence. He had not identified anybody. Israel had narrated to him that Jalil and Tengari had committed murder of Salim Ansari. Salim had slept on that very night in khalihan. They had gone there and found him dead. During cross-examination. he had stated in para-4 that on account of dark night. Thereafter, they rushed towards the place of occurrence. He had not identified anybody. Israel had narrated to him that Jalil and Tengari had committed murder of Salim Ansari. Salim had slept on that very night in khalihan. They had gone there and found him dead. During cross-examination. he had stated in para-4 that on account of dark night. he could not identify the accused. He further disclosed that save and except Israel none had disclosed the name of accused persons. So from his evidence neither source of identification has been disclosed nor he claimed identification of appellant along with Jalil. 15. PW 5 is the informant Khalil Ansari. He had stated that on the alleged date and time of occurrence. he along with brothers and father were sleeping at his dalan. After arrival of Israel Ansari. They awoke and then rushed towards place of occurrence. In the torch light flashed by Jamaluddin they had found Jalil and Tengari running towards western direction. When then came near the deceased they found his neck slit. On the following morning, they had gone to P.S. where he gave information to the police. In para-4 of his cross-examination. he had admitted that he had not seen the occurrence. He had also disclosed that none was present at the place of occurrence when they arrived there. So he had not shown presence of Munna and Majid at the place of occurrence when they reached. 16. Now having analytical approach of the evidence of the witnesses as stated above. it is evident that identification of accused in torch light has become suspicious in the background of the fact that PW 2 had not stated that PW 1 was carrying torch and in torch light they had identified Tengari Paswan and Jalil Khan. Not only this from the evidence of PW 1, PW 2 as well as PW 5 that Israel Ansari PW 4 had not disclosed the names of assailants to them and on account thereof complicity of these two persons certainly happens to be an after thought story. It should be viewed through another angle also. PW 1 and PW 5 have claimed to have seen appellant Tengari as well as Jalil Khan running towards western direction but they have not disclosed whether any weapon was in their hand. Whether any blood spot was seen over their apparel. 17. It should be viewed through another angle also. PW 1 and PW 5 have claimed to have seen appellant Tengari as well as Jalil Khan running towards western direction but they have not disclosed whether any weapon was in their hand. Whether any blood spot was seen over their apparel. 17. After according of the case PW 6, I.O. came to the place of occurrence soon thereafter and apart from seizure of items as detailed under seizure list as per para-4 of his examination-in-chief one blood stained garasi was seized 32 feet West to the dead body of Salim Ansari. He had admitted during cross-examination at para-11 that he had not sent the garasi to Forensic Laboratory and so a vital clue remained unresolved on that very score. Had it been sent to the FSL. it could have detected the finger print which could have knelt down the appellant including Jalil Khan in case. they were responsible for causing death of Salim Ansari. Thus, after having critical analysis of the evidence available on the record. We do not see the prosecution has succeeded in proving its case beyond all reasonable doubts. 18. In the aforesaid facts and circumstances of the case the judgment of conviction and sentence rendered by learned lower Court so far it relates to the appellant. Tengari Paswan is concerned is set aside. The appeal is allowed. 19. Since the appellant. Tengari Paswan happens to be on bail he is hereby discharged from the liability of the bail bond. 20. The assistance rendered by Mr. Ashok Kumar Mishra amicus curiae is highly appreciated. Let first and last page of the judgment be handed over to learned amicus curiae for the needful. Appeal allowed.