Judgment S. Nagamuthu, J. 1. The appellants are the accused 1, 2 and 3 in S.C. No. 96 of 2013 on the file of the II Additional District and Sessions Judge, Tiruchirapalli. They stood charged for the offence under Section 304 IPC. The trial Court, by judgment dated 24.04.2015, convicted all the three accused under Section 304 IPC and sentenced them to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 5,000/-, in default to undergo rigorous imprisonment for two years. Challenging the said conviction and sentence, the appellants are before this Court with this appeal. The brief facts of the prosecution case are as follows: (a) The first accused was a head constable. The second accused was yet another Head Constable and the third accused was an Inspector of Police. All of them were working at Perambalur Police Station. The deceased in this case was one Mr. R. Ramachandran S/o. Ramasamy. According to the case of the prosecution, on 04.10.2006, Mr. R. Ramachandran was arrested by the Police, brought to the Police Station and illegally kept in the Police lock up for some time and beaten up by the Police viz., these accused and on the same day, he was, thereafter, produced before the Magistrate for judicial remand. The learned Magistrate remanded him to judicial custody and he was, accordingly, lodged in the Central Prison, Tiruchirapalli. (b) On 05.10.2006, the deceased complained of ill-health. Therefore, he was shifted to the Government General Hospital at Tiruchirapalli. P.W. 3 - Dr. Rajendran treated the deceased. The deceased was suffering from diabetic and hypertension. P.W. 3 gave drugs like Metaformin, Atenolol and B. Complex. There were no external injuries found on his body. The X-ray taken on him also did not reveal any internal injury or fracture. On 06.10.2006, the deceased told the Doctor that he was perfectly alright and therefore, he wanted himself to be discharged. At that time, his blood pressure was under control and his breathe was also normal. He was, thereafter, discharged at 7.00 p.m. on 06.10.2006 and taken back to the Central Prison, Tiruchirapalli. Between 06.10.2006 and 16.10.2006, he did not make any complaint about his health. (c) On 17.10.2006, the deceased complained of abdominal pain and also vomiting sensation. He also complained of constipation. He was, therefore, taken to the Government Hospital. ECG taken did not reveal any abnormality. Between 06.10.2006 and 16.10.2006, he did not make any complaint about his health. (c) On 17.10.2006, the deceased complained of abdominal pain and also vomiting sensation. He also complained of constipation. He was, therefore, taken to the Government Hospital. ECG taken did not reveal any abnormality. He was treated by P.W. 4 for abdominal pain and for diabetics. Drugs were given for the same and as a consequence, on 18.10.2006, he felt enormous improvement and there was no abdominal pain. Vomiting sensation also got arrested. He passed urine normally, but, constipation continued. Garamycin injection was administered. On 19.10.2006, again he complained of abdominal pain and treatment was given for the same in the hospital. On 20.10.2006, he passed motion. On that day, he did not make complaint of abdominal pain. On 20.06.2006, at about 7.30 p.m., he suddenly developed chest pain. He was immediately shifted to the Government Medical College Hospital at Tiruchirapalli, but even before the treatment could be commenced, he breathed his last. (d) Since the deceased died while in custody, the Revenue Divisional Officer/Executive Magistrate conducted inquest. The body was forwarded for postmortem. Dr. A. Karthikeyan, Professor and Head of the Department of Forensic Medicine, Ki. Aa.Pa.Vi. Government Medical College Hospital, Tiruchirapalli, conducted autopsy on the body of the deceased. He noticed the following injuries; "Appearance found at the post-mortem:-Moderately nourished body of a male with distended abdomen. Finger and toe nails - intact and cyanosed. Genital Examination:- Penis - nor circumcised. Scrotum - normal. Wounds: 1. swelling of the left side of forehead, of size, 4.0 c.m. x 3.0 c.m. O/D Bruising of the underlying scalp, to it's full thickness present - black in colour. 2. Bruising of the anterior abdominal wall present - black in colour. 3. Bruising of the mesentery in a patchy manner - resolving in nature. The above mentioned wounds are ante-mortem in nature. No other external, internal or bony wound present. 2. Bruising of the anterior abdominal wall present - black in colour. 3. Bruising of the mesentery in a patchy manner - resolving in nature. The above mentioned wounds are ante-mortem in nature. No other external, internal or bony wound present. Other findings: Peritoneum - thickened, adherent, muddy and haemorrhagic, cavity - filled with foul smelling sero - sanguineous fluid; Pleura - intact, cavity - blood stained fluid; Pericardium - intact, cavity - straw colour fluid; Heart - normal in size; Myocardium - fatty deposition present; Chambers - fluid blood; Valves - normal, Coronary vessels - patent; Great Vessels - normal; Lungs - c/spale, emphysematous changes present; larynx, Trachea and Hyoid bone - intact; mucosa - pale; Stomach - dark brown colour thick fluid with undigested food particles, no specific smell; mucosa - patchy; congestion present; Oesophagus - intact; mucosa - congested; Pancreas - pale; Liver, Spleen and Kidneys - c/s. congested; Gall Bladder - full, no stones; Mesentery - vide wound column; omentum - muddy in nature; Small intestine - adhesions present, haemorrhagic, fecal material present, no specific smell, mucosa - congested; Appendix - intact, normal, Large intestine - filled with fecal material; Urinary bladder - intact and empty; Pelvis - intact; Scalp - vide wound column, Skull bones and Membranes - intact, Sinuses and Brain Vessels - full, Brain - Oedematous, petechiae present, CSF - clear, Vertebral column and cord - intact, All other internal organs on c/s pale;" (e) During autopsy, viscera was preserved and sent for chemical analysis. Similarly, the other organs like peritoneum, omentum, mesentery, kidneys, heart, lung, brain and meninges were preserved and sent for Histo-pathological examination. The Scientific Assistant, Forensic Lab, Chennai, opined in the viscera report that there was neither alcohol or poison deducted. Based on the pathological report submitted by the Department of Pathology, P.W. 5 gave opinion that the deceased would appear to have died of Cerebral, Renal, Pulmonary and Gastro Intestinac Tract Pathology. (f) The Revenue Divisional Officer/Executive Magistrate finally filed a private complaint before the jurisdictional Magistrate against these accused and on committal, the accused were tried by the trial Court. Based on the above, the trial Court framed charges under Sections 304 IPC. But, the accused denied the same. In order to prove the case, on the side of the prosecution, as many as five witnesses were examined and ten documents were exhibited. Based on the above, the trial Court framed charges under Sections 304 IPC. But, the accused denied the same. In order to prove the case, on the side of the prosecution, as many as five witnesses were examined and ten documents were exhibited. (g) Out of the said witnesses, P.W. 1 is the son of the deceased and he has stated that on 04.10.2006, when he went to the Police Station to see the deceased, the deceased told him that he was beaten by the Police. He has further stated that he did not mention the name of the person, who attacked him. P.W. 2 is a neighbour of the deceased. He has stated that on 21.10.2006, he heard of the death of the deceased and he participated in the inquest. P.W. 3 - Dr. Rajendran has spoken about the treatment given to the deceased between 05.10.2006 and 06.10.2006 at Government Hospital, Tiruchirapalli. P.W. 4 - Dr. Chokkalingam has spoken about the treatment given between 17.10.2006 to 20.10.2006. P.W. 5 Dr. Karthikeyan has spoken about the autopsy conducted and the final opinion given by him. (h) When the above incriminating materials were put to the accused under Section 313 of Cr.P.C., they denied the same as false. According to them, the deceased was arrested only by one Sub Inspector of Police by name Raju and the said arrest was legal. It was also contended that he was remanded to judicial custody by the Magistrate and then lodged in the Central Prison. It is their further case that the deceased was never attacked by them. They also took a plea that the death was natural. Having considered the above materials, the trial Court convicted the accused under Section 304 IPC and sentenced them accordingly. That is how they are before this Court with this appeal. 2. I have heard the learned counsel appearing for the appellants and the learned Additional Public Prosecutor appearing for the State. I have also perused the records carefully. 3. The learned counsel appearing for the appellants would submit there is absolutely no evidence in this case to prove that the deceased was either arrested or attacked by any of these accused. The learned counsel would further submit that the Doctor, who conducted postmortem, has given clear opinion that the death was due to natural causes. 3. The learned counsel appearing for the appellants would submit there is absolutely no evidence in this case to prove that the deceased was either arrested or attacked by any of these accused. The learned counsel would further submit that the Doctor, who conducted postmortem, has given clear opinion that the death was due to natural causes. Thus, according to the learned counsel, absolutely there is no evidence against these accused. He would further submit that the trial Court had relied on the case diary in Crime No. 480 of 2006, by reopening the case, after the case was reserved for judgment. The learned counsel would submit that none of the documents, which are referred to in paragraph No. 17 of the judgment, were proved in evidence. Neither they were put to the accused under Section 313 Cr.P.C. The learned counsel would further submit that the lower Court has convicted the accused only out of surmises. He would also point out that the arrest was made only by the Sub Inspector of Police by name Raju, but he was not examined. He would further submit that the Revenue Divisional Officer/Executive Magistrate, who conducted inquest and laid the report, also has not been examined. He also submitted that the Revenue Divisional Officer/Executive Magistrate has no authority to hold inquest and file the report, since as per Section 176(1-A) of Cr.P.C. such power is vested only with the Judicial Magistrate to hold inquiry and it is for the police to file a police report on holding thorough investigation. 4. The learned Additional Public Prosecutor would vehemently oppose this appeal. According to him, there is no denial of the fact that the deceased was arrested and he was in custody. He would further submit that while in custody, he died. He would also submit that the Doctor, who conducted autopsy, has noticed two injuries, which, according to the prosecution, have been caused only by these accused. He would further submit that the cause of death is not natural as the cause was because of the attack made on him. Thus, according to the learned Additional Public Prosecutor, the prosecution has proved the case beyond reasonable doubts. 5. I have considered the above submissions. 6. There is no denial of the fact that the deceased was taken into custody on 04.10.2006 and he was remanded to judicial custody on the same day. Thus, according to the learned Additional Public Prosecutor, the prosecution has proved the case beyond reasonable doubts. 5. I have considered the above submissions. 6. There is no denial of the fact that the deceased was taken into custody on 04.10.2006 and he was remanded to judicial custody on the same day. The question is whether the deceased was attacked by these accused or not, while he was in police custody. As rightly pointed out by the learned counsel for the appellants, the Sub Inspector of Police, who arrested the accused, has not been examined. There is no direct evidence to prove that these accused had attacked the deceased, while he was in custody. The prosecution relies only on the evidence of P.W. 1. P.W. 1 is not an eyewitness to the occurrence, but he has stated that when his father was in the Police lock up, he told him that he was attacked by the Police, but the persons, who attacked him, were not mentioned to him. P.W. 1 has not identified these accused as the persons, who attacked the deceased. Thus, absolutely there is no evidence to show that these accused attacked the deceased. 7. The deceased, when he was produced before the Doctor on 05.10.2006, told the Doctor that he was attacked by four unknown persons and two known persons near the Police Station. This statement is a dying declaration, but, in this statement, the deceased had not implicated the accused. Who are those unknown persons and who caused the injuries are not known. The Doctor, who conducted autopsy, had found two external injuries, which are small contusions. Therefore, it could be inferred that the above said four unknown persons and two known persons would have caused those injuries on him. 8. On 05.10.2006, when he was examined at the Government Hospital, Tiruchirapalli, he had only hypertension and diabetics. ECG taken revealed that he was alright. X-ray taken also did not reveal any abnormality. He was discharged from the hospital on 06.10.2006, since there was no abnormality in him. This shows that till 06.10.2006, there was no cause which would have resulted in death later on. 9. According to the evidence of P.W. 4, between 06.10.2006 and 16.10.2006, the deceased did not make any complaint at all, that means he was perfectly alright. On 17.10.2006, he complained of abdominal pain and vomiting sensation. This shows that till 06.10.2006, there was no cause which would have resulted in death later on. 9. According to the evidence of P.W. 4, between 06.10.2006 and 16.10.2006, the deceased did not make any complaint at all, that means he was perfectly alright. On 17.10.2006, he complained of abdominal pain and vomiting sensation. Drugs were administered for the same. After treatment, his blood pressure was also brought under control. He continued to have constipation. The abdominal pain disappeared on 18.10.2006. But, on 19.06.2006, the deceased again complained of abdominal pain, but he passed motion normally on that day. There was no other complaint. On 20.10.2006 at 7.30 p.m., he complained of chest pain. When he was rushed to the hospital, he breathed his last on the way to the hospital. It is in evidence that the Doctors, who gave treatment to the deceased, did not find that the external injuries on him. 10. Now, the cause of death is to be ascertained. P.W. 5, Dr. A. Karthikeyan, who conducted autopsy, has opined that there were two small contusions on the body of the deceased. It is not his opinion that these two contusions have contributed for the cause of death in any manner. According to him, the internal organs such as, peritoneum, omentum, mesentery, kidneys, heart, lung, brain and meninges were sent for Histo-pathological examination. Based on the pathological examination, he gave opinion that the deceased would appear to have died of Cerebral, Renal, Pulmonary and Gastro Intestinac Tract Pathology. Thus, even according to P.W. 5, the death was due to disease which was noticed almost in all the internal organs. There was also pus indicating perforation. The Doctor had further found that there was adhesions of intestines which cannot be attributed to these injuries. The Doctor gave clear opinion that the death was due to the disease, based on the pathological examination. Thus, it has been established that the death was due to natural cause, that is due to disease, which has got nothing to do with the injuries found on the deceased. 11. But, the trial Court has referred to certain observations in the Text Book by Dr. Modi, on Medical Jurisprudence and Toxicology, and has held that the perforation and the pus found in the internal organs would have been due to attack on the abdomen. 11. But, the trial Court has referred to certain observations in the Text Book by Dr. Modi, on Medical Jurisprudence and Toxicology, and has held that the perforation and the pus found in the internal organs would have been due to attack on the abdomen. In this regard, I should say that the opinion expressed in a Text Book by a specialist author cannot be treated either as conclusive or final. At the most, it can only assist the Court in arriving at a correct conclusion. But, before using any such opinion in any Text book, which runs contra to the opinion offered by an expert examined in Court, the views expressed in the Text Book should be brought to the notice of the expert while under examination and he should be called upon to explain as to why he has given a different opinion in the given case. In the absence of the said exercise, the Text Book cannot be used to directly contradict the evidence of an expert examined in Court and to give weightage for the views of the author of the Text Book. In this regard, I may refer to the judgment of the Hon'ble Supreme Court in Kusa and others v. State of Orissa, AIR 1980 SC 559 : (1980) 2 SCC 207 , wherein in paragraphs 7 and 8, the Hon'ble Supreme Court has held as follows; "7. Dr. Chitale however relied on a passage in Taylor's 'Principles and Practice of Medical Jurisprudence' (twelfth edition) particularly on the following passage: "Assess very carefully the mental condition of the patient. When shock ensues upon violence, especially when severe loss of blood or some grievous head injury is leading to death, the intellect of the dying person becomes confused. If the doctor observes any wandering or want of clearness in the mind of the patient, he must mention it in connection with his evidence; but this does not absolve him from his duty, although it should make him particularly careful when interpreting his notes." 8. We are unable to place any reliance on these observations in absence of any questions put to the doctor by the accused in his cross examination regarding the view expressed by the author regarding the state of mind of the deceased. We are unable to place any reliance on these observations in absence of any questions put to the doctor by the accused in his cross examination regarding the view expressed by the author regarding the state of mind of the deceased. It has been held by this Court in several cases that whenever a particular view taken by authors of medical jurisprudence is adumbrated, the same must be put to the doctor to assess how far the views taken by the experts apply to the facts of the particular case." 12. Thus, it is ipso facto clear that when the opinions expressed in the text books are contrary to the opinion of the expert under examination, such opinion in the text books should be brought to the notice of the expert so as to afford an opportunity to him to explain his contra opinion. Thereafter, it is for the Court to evaluate the said opinion of the expert in the light of the opinion expressed in the text book and the explanation of the expert witness. 13. Nextly, I may refer to the judgment of the Hon'ble Supreme Court in State of Madhya Pradesh v. Sanjay Rai, AIR 2004 SC 2174 : (2004) 10 SCC 570 wherein also the Hon'ble Supreme Court has held as follows; "Though opinions expressed in text books by specialist authors may be of considerable assistance and importance for the Court in arriving at the truth, same cannot always be treated or viewed to be either conclusive or final as to what such author says to deprive even a Court of law to come to an appropriate conclusion of its own on the peculiar facts proved in a given case. Such opinions cannot be elevated to or placed on higher pedestal than the opinion of an expert examined in Court and the weight ordinarily to which it may be entitled to or deserves to be given." 14. Even in a case, where there are conflicting opinions by two expert doctors, the opinion of the Doctor, who actually examined the injuries and held postmortem examination, must be preferred to the expert opinion of the Doctor, who gave his opinion only on the basis of the injury report, X-ray report, postmortem report, etc. vide the judgment of the Hon'ble Supreme Court in T.P. Divetia v. State, AIR 1997 SC 2193 : (1997) 7 SCC 156 . vide the judgment of the Hon'ble Supreme Court in T.P. Divetia v. State, AIR 1997 SC 2193 : (1997) 7 SCC 156 . In view of the above legal position, in the instant case, in my considered view, the reliance made by the trial Court, on certain observations made in the Text Book by Dr. Modi to discard the opinion of the Doctor, who conducted postmortem, without bringing the opinion expressed in the text book to the notice of the doctor, is not legally sustainable. Thus, the lower Court was not correct in holding these accused were responsible for the cause of death. 15. In order to bring home an offence under Section 304 IPC, it is absolutely necessary for the prosecution to prove that the death of the deceased was culpable homicide. Here, in this case, from the evidence of the Doctor, it cannot even be remotely inferred that the death is a homicidal one. Absolutely, there is no evidence to bring any act of the accused under any one of the ingredients of Section 299 IPC. Here is the case, where, absolutely, there is no evidence against the accused, warranting conviction. 16. The learned counsel for the appellants would submit that after the trial was over, the case was reserved for judgment to be delivered on 31.03.2015. But, on 31.03.2015, the learned Judge suo motu reopened the case and extensively quoted the case diary in paragraph No. 17 of the judgment. I have no hesitation to hold that the said procedure adopted by the learned Sessions Judge is illegal, for the simple reason that if any oral or documentary evidence is sought to be used either in favour or against the prosecution, the same needs to be proved in evidence, in the manner known to law. A document, which was not proved during trial, cannot be made use of by the Court at all. Nextly, if any evidence, brought on record, is sought to be used against the accused, the same should be brought to the notice of the accused under Section 313 Cr.P.C. If any incriminating evidence is omitted to be put to the accused under Section 313 Cr.P.C., the said evidence cannot be used against him at all. Nextly, if any evidence, brought on record, is sought to be used against the accused, the same should be brought to the notice of the accused under Section 313 Cr.P.C. If any incriminating evidence is omitted to be put to the accused under Section 313 Cr.P.C., the said evidence cannot be used against him at all. In this case, I am surprised to note that the FIR in Crime No. 480 of 2006 was never marked in evidence, but made use of extensively by the trial Court. This, in my considered opinion, is again illegal. 17. Nextly, as rightly pointed out by the learned counsel for the appellants, the procedure adopted by the Revenue Divisional Officer/Executive Magistrate in filing the private complaint is wholly illegal. In this regard, I may say that prior to the introduction of Sub-Section (1-A) of Section 176 of Code of Criminal Procedure, by amendment Act 25 of 2005, with effect from 23.06.2006, the enquiry into the case in respect of custodial death were to be made by the Executive Magistrate, but after introduction of Sub-section (1-A) of Section 176 of the Code, the power of the Executive Magistrate to hold such enquiry in respect of custodial death has been taken away and instead such power has been given only to the jurisdictional Judicial Magistrate. Such an enquiry to be held by the jurisdictional Magistrate is not a substitute for the investigation to be done by the Police and it is only in addition to the investigation to be done by the Police. As to how such enquiry is to be held by a Judicial Magistrate and as to how the report of the Magistrate is to be used have been extensively dealt with by me in R. Kasthuri v. State, rep. by the District Collector, Cuddalore, (2015) 1 MLJ (Crl) 455 and in P. Pugalenthi v. State, rep. by the Director General of Police, Chennai, (2015) 1 MLJ (Crl) 424. Therefore, I do not want to repeat the same. I am only hopeful that the authorities concerned will scrupulously follow the mandate of law contained in Sub-section (1-A) of Section 176 of the Code, in the light of the judgments, cited supra. Above all, I do not understand as to why the executive Magistrate, who conducted enquiry purportedly under Section 176 of the Code and laid the private complaint, was not examined in this case. Above all, I do not understand as to why the executive Magistrate, who conducted enquiry purportedly under Section 176 of the Code and laid the private complaint, was not examined in this case. 18. In view of the foregoing discussions, I hold that the prosecution has failed to prove the case beyond reasonable doubts against the accused and the accused are, therefore, entitled for acquittal. In the result, this appeal is allowed and the conviction and sentence imposed on the appellants in S.C. No. 96 of 2013 is set aside and they are acquitted. The bail bond, if any, executed by them shall stand terminated. The fine amount, if any, paid shall be refunded.