JUDGMENT : Both the criminal appeals, arising out of the same judgment, were heard together and are being disposed of by the common judgment. 2. Both the criminal appeals are directed against the judgment of conviction and order of sentence dated 11.06.2012 passed by the Sessions Judge, Garhwa in S.T. No. 75 of 1994, whereby all the appellants having been found guilty of the charges under Section 302/34 of the Indian Penal Code, have been sentenced to undergo imprisonment for life under Section 302/34 of the Indian Penal Code and also directed to pay a fine of Rs. 2,000/- each and in default thereof, they have been further sentenced to undergo rigorous imprisonment for six months. 3. The case of the prosecution, in brief, is that in the night around 10:00 p.m. the husband of the informant after thrashing Rahar was sleeping along with his friend-Raju Yadav on the same cot in the outer verandah of the house. The eldest son of the informant, aged about 10 years, also slept on the outer verandah on plank and just behind the outer verandah, the informant along with her daughter was sleeping after closing the door. At about 1:00 a.m. when she heard the sound of whispering of people, she woke up and started looking outside in the light of lamp (Dibhri). She saw accused-Mashruddin Khan (appellant) cutting neck of her husband by dagger having sharp cutting edge and other accused persons namely, Manauar Khan, Yakub Khan and Jubair Khan, catching hands and legs of her husband. She further alleged that at the same time, her son came there and she along with her son raised alarm on which the accused persons fled away after killing her husband. She further alleged that her husband’s friend-Raju Yadav tried to save the deceased but he was also assaulted by the accused persons on his head. On hearing alarm, the villagers namely, Amruddin, Jafar Khan, Shakil Khan and some other people came there to whom she told about the occurrence. She has suspected that in the commission of crime, accused-Faisiuddin Khan may be involved as because a year ago there was quarrel between accused-Faisiuddin Khan and her family in which the wife and daughter of said Faisiuddin Khan had become injured and due to that reason, said Faisiuddin Khan after hatching conspiracy with the other accused persons killed her husband. 4. 4. On the basis of fardbeyan of the informant, Manjhiaon P.S. Case No. 17 of 1990 was registered under Section 302, 109/34 of the Indian Penal Code. After registering the case, investigation was carried out and after preparing the inquest report of the deceased, the dead-body was sent for post mortem examination. 5. On completion of the investigation, charge-sheet was submitted against the appellants and cognizance of the offences under Section 302/109/34 of the Indian Penal Code was taken against the appellants and thereafter the case was committed to the Court of Sessions. Subsequently, charges under Section 302/34 of the Indian Penal Code has been framed against the appellants to which they pleaded not guilty and claimed to be tried. 6. The prosecution in order to prove its case has examined as many as 7 witnesses. After closure of the prosecution case, the statements of the appellants were recorded under Section 313 Cr.P.C. However, no defence witness was examined in this case. 7. It is worth to mention that during trial neither the doctor was examined nor the postmortem report was exhibited in this case. However, the doctor was examined in split up case bearing S.T. No. 113 of 2006. Thus, no opportunity was given to the accused to cross-examine the doctor. Similarly, Investigating Officer has not been examined in this case. 8. Upon analysis of the evidences, the trial court having placed its implicit reliance on the testimonies of P.Ws. 5, 6 and 7, found the appellants guilty for the offence punishable under Section 302/34 of Indian Penal Code and, accordingly, recorded the judgment of conviction and sentenced the appellants, which is under challenge. 9. Mr. A.K. Kashyap, learned senior counsel appearing on behalf of the appellants in Cr. Appeal (DB) No. 711 of 2012, has assailed the impugned judgment mainly on the ground that the cross examination of P.W.2 was deferred due to lapse of time but he did not appear for his further cross examination, thus the evidence of this witness is not complete in the eye of law and is fit to be expunged. He further submitted that P.W.5 and P.W.6, who are son and wife of the deceased respectively, are highly interested witnesses and hence their testimonies are not reliable. He further submitted that the investigating officer of the instant case has not been examined which prejudiced the case of the appellant. He further submitted that P.W.5 and P.W.6, who are son and wife of the deceased respectively, are highly interested witnesses and hence their testimonies are not reliable. He further submitted that the investigating officer of the instant case has not been examined which prejudiced the case of the appellant. Leaned counsel also attacked the judgment on the ground that the doctor, who conducted the autopsy, has not been examined and therefore, the whole prosecution case becomes doubtful. He further submitted that on account of non-examination of the Investigating Officer, the appellants had been prejudiced as several contradictions could not be elicited. He further submitted that neither the doctor was examined in this case nor the postmortem report was properly exhibited. He further submitted that in view of the provisions of Section 273 Cr.P.C., evidence has to be recorded in presence of the accused persons. Since the evidence of the doctor was not recorded in presence of the accused persons, his deposition recorded in another split up Sessions Trial cannot be utilized against these appellants. It is further submitted that the postmortem report, which ought to have been brought on record, in this particular case, has not been brought on record and thus, the whole prosecution case becomes doubtful. He further submitted that it is an admitted fact that these appellants have not given any fatal blow on the person of the deceased. He lastly submitted that other witness i.e. P.W.7, who is an eye witness and is said to have been along with the deceased at the time of occurrence, has not disclosed the name of any of these appellants. 10. Adopting the argument of learned senior counsel for the appellants in Cr. Appeal (DB) No. 711 of 2012, Mrs. J. Mazumdar, learned counsel representing appellant-Mashruddin Khan in Cr. Appeal (DB) No. 761 of 2012 also submitted that in absence of postmortem report and the evidence of the doctor, this appellant should not have been convicted. She further submitted that the postmortem report has not been proved and thus, the fact whether the injury, allegedly sustained by the deceased, was fatal or not, is doubtful, and thus giving the benefit of doubt, this appellant should have been acquitted. She further submitted that the postmortem report has not been proved and thus, the fact whether the injury, allegedly sustained by the deceased, was fatal or not, is doubtful, and thus giving the benefit of doubt, this appellant should have been acquitted. She further submitted that though the inquest report has not been proved, the trial court by putting reliance on the testimonies of these witnesses, has committed illegality in recording conviction by not taking into account the circumstances, as aforesaid, and hence the judgment of conviction and order of sentence against the appellants is fit to be set aside. 11. On the other hand, Mr. Sanjay Kumar Srivastava, learned A.P.P., while opposing the submission made on behalf of the appellants, submitted that mere relationship with the deceased is no ground to discard the testimonies of the witnesses. He further submitted that non-examination of the I.O. is not fatal to the case because P.Ws. 5 and 6 in their cross-examination have supported the prosecution case. He further submitted that there has been no reason on the part of the witnesses to falsely implicate the appellants and the evidences of P.Ws. 6 and 7 being eye witnesses to the occurrence, cannot be discarded and further P.Ws.1 to 5 have supported the genesis of the occurrence. On the basis of the aforesaid submissions, learned Additional Public Prosecutor submitted that there being no infirmity in the impugned judgment and order of conviction and sentence, the findings arrived at by the trial court do not require any interference by this Court. 12. We have heard learned counsel for both sides and perused the materials available on record and also gone through the evidences of the prosecution witnesses minutely. 13. PW.1-Abdul Rashid Khan, who is a hearsay witness, has deposed that on the eventful day at about 8:45 am he came to the house of the informant. He further deposed that the police seized the blood stained soil and he signed upon the same and identified his signature, marked as Ext.-1. 14. PW.2-Aftab Khan is also a hearsay witness who has deposed that due to 'Roza' he was outside his house at the door and he heard hulla from the eastern side and saw appellant-Mashruddin having dagger in his hand fleeing away towards south. 14. PW.2-Aftab Khan is also a hearsay witness who has deposed that due to 'Roza' he was outside his house at the door and he heard hulla from the eastern side and saw appellant-Mashruddin having dagger in his hand fleeing away towards south. He further deposed that he tried to catch him and also gave one 'danda' blow upon him but seeing dagger in his hand, he fled away. He further deposed that he went to the house of the deceased where he saw the dead-body lying on a cot, whose neck was cut. In his cross-examination, he stated that at the time of chasing, appellant-Mashruddin was at ten steps far from him and thus he could not catch him. He further stated that when he raised hulla, his family members also came there and saw this appellant fleeing away. 15. PW.3-Sheikh Amruddin has deposed that in his presence, fardbeyan of the informant was recorded by the police and he also signed on the fardbeyan as a witness. He further deposed that except him one Sk. Ashraf (since dead) had also singed as a witness on the fardbeyan. The signature of this witness and Sk. Ashraf have been marked as Ext.-2 and 2/1 respectively. He further deposed that in his presence, blood stained soil was seized from the place of occurrence and seizure list was prepared, on which he also signed and the same is marked as Ext.3. The police had also prepared inquest report and he signed as a witness on the same and his signature is marked as Ext.4. He identified the signature of Sk. Ashraf (not examined, since dead) and the signature of Sk. Ashraf is marked as Ext.4/1. In his cross-examination, he stated that he has not heard hulla and on the night of occurrence, he was outside the village and only on the next day around 8:00 am he returned to the village. 16. PW.4-Islamuddin, who is also a hearsay witness, has deposed that he heard that someone has killed the deceased. He has seen the dead body and found his neck cut. In his cross-examination, he stated that he has no personal knowledge about the occurrence. 17. 16. PW.4-Islamuddin, who is also a hearsay witness, has deposed that he heard that someone has killed the deceased. He has seen the dead body and found his neck cut. In his cross-examination, he stated that he has no personal knowledge about the occurrence. 17. PW.5-Sabir Khan, who is the son of the deceased and an eye witness to the occurrence, has deposed that at that night, he was sleeping in the varandah of his house and his father along with one Raju Yadav was also sleeping there. He has further deposed that at about 1:00 am, on hearing some sound, his mother opened the door and called him then he woke up. He further deposed that there was light in the verandah and he saw that appellant-Mashruddin Khan was cutting the neck of his father by 'sword' and appellants-Yakub Khan and Jubair Khan and also one person namely, Manauwar had caught hold the hands and legs of his father. He further deposed that accused-Fasiuddin was also present over there and was saying to kill his father and thereafter all of them fled away from there. In his cross-examination, he stated that the police has not seized the lamp (Dibhri). He has further deposed that there was previous enmity between his father and accused-Fasiuddin. 18. PW.6-Wajada Bibi, who is widow of the deceased and the informant in this case, has deposed that on the day of occurrence, in the night her husband Serajuddin Khan (deceased), his friend Raju Yadav (P.W.7) and her son-Sabir Khan (P.W.5) were sleeping in the verandah of the house and she along with her daughter was sleeping inside the room. She further deposed that at about 1:00 am, she woke up on hearing some sound and after opening the door of the room started looking outside in the light of lamp (Dibhri) and saw the accused Manaur Khan, Yakub Khan and Jubair Khan catching the hands and legs of her husband and appellant-Mashruddin Khan was cutting his neck with big 'knife' in his hand. She further deposed that she and her son (P.W.5) started crying there and when the friend of her husband (Raju Yadav) tried to save her husband, he was also assaulted by the accused persons on his head and after that the accused persons fled away. She further deposed that she and her son (P.W.5) started crying there and when the friend of her husband (Raju Yadav) tried to save her husband, he was also assaulted by the accused persons on his head and after that the accused persons fled away. On hearing hulla, the villagers namely, Amruddin, Jafar Khan and other people assembled there to whom she narrated the occurrence. She further alleged that accused-Faisiuddin Khan has hand in this occurrence because a year ago there was quarrel between Faisiuddin Khan and her husband's family in which the wife and daughter of Faisiuddin Khan became injured and due to that reason, the present occurrence has been committed by them to take revenge. In her cross-examination, she stated that on hulla, firstly Amruddin (P.W.3) and thereafter Jafar Khan, Sakir and Islamuddin (P.W.4) and lastly Chaukidar and others came there. She further stated that she woke up after hearing the sound of whispering and opened the door and at the same time, Raju Yadav and Sabir woke up, who also saw the occurrence. 19. P.W. 7-Raju Yadav, an eye witness and friend of the deceased, has deposed that on the day of occurrence, he went to the village of Serajuddin Khan (deceased) and was sleeping with him on the same cot at the verandah of the house. He further deposed that at about 1:00 am in the night he woke up on hearing some sound and saw one man assaulting the deceased by dagger and then he tried to save him but the accused also assaulted him on his right side forehead by means of dagger. He further deposed that the accused had cut the neck of the deceased, resulting in his death. On hearing hulla, P.W. 6-wife of the deceased came outside the house and identified appellant-Mashruddin Khan as the person who has killed her husband. In his cross-examination, he stated that he knew the name of appellant-Mashruddin Khan from P.W.6. 20. On scanning the evidences of the prosecution witnesses, this Court finds that P.W. 6 is the wife of the deceased; P.W.5-Sabir Khan is the son of the deceased and P.W.7-Raju Yadav is also an eye witness who was sleeping with the deceased on the same cot. 20. On scanning the evidences of the prosecution witnesses, this Court finds that P.W. 6 is the wife of the deceased; P.W.5-Sabir Khan is the son of the deceased and P.W.7-Raju Yadav is also an eye witness who was sleeping with the deceased on the same cot. P.W.6 has said that she had seen Manauar Khan, Fasiuddin Khan Yakub Khan and Jubair Khan catching hold the deceased and appellant-Mashruddin Khan cutting the neck of her husband-deceased with big knife. When P.W.6 heard the sound, she opened the door and saw the occurrence in the light of lamp (Dibhri). P.W.5-son of the deceased has stated that appellant-Mashruddin Khan (in Cr. Appeal (D.B.) No. 761/2012) was cutting the neck of his father by the sword and the others had caught hold of him. P.Ws. 5 and 6 have also stated that there was a dispute between the appellants and their family members since long. P.W. 7-Raju Yadav, who is an eye witness, has stated that when he was sleeping with the deceased, he saw one person assaulting the deceased by dagger and cutting his neck, but he did not take the names of the appellants. He further stated that he was also injured while saving the deceased. Though he claimed to be an injured witness but nothing has been brought on record to prove the injury. He has stated that immediately after the occurrence, P.W. 6-wife of the deceased disclosed before him that appellant-Mashruddin Khan (in Cr. Appeal (D.B.) No. 761/2012) cut the neck of the deceased. As mentioned earlier, neither the postmortem report was exhibited nor the doctor nor the I.O. was examined in this case. Even the inquest report was not exhibited. Only the signature on the inquest report was marked as Ext.4/1. The doctor has been examined as P.W. 6 in the split up case bearing S.T. No.113 of 2006 and the post mortem report has been exhibited in that case without affording an opportunity to these appellants to cross-examine the doctor. Since the materials, which are against the appellants, were brought on record without giving opportunity to the appellants to controvert the same or cross-examine the witness, this Court cannot rely upon those documents and thus, it can be construed that there is no postmortem report in this case. 21. From perusal of the evidences of the eye witnesses i.e. P.Ws. Since the materials, which are against the appellants, were brought on record without giving opportunity to the appellants to controvert the same or cross-examine the witness, this Court cannot rely upon those documents and thus, it can be construed that there is no postmortem report in this case. 21. From perusal of the evidences of the eye witnesses i.e. P.Ws. 5 and 6, it is clear that they have seen appellant-Mashruddin Khan (in Cr. Appeal (D.B.) No. 761/2012) assaulting the deceased and cutting his neck with the weapon. Similarly, P.W. 7 also stated that he had seen one person assaulting the deceased by dagger on his neck. What was the extent and the nature of the injury has not been proved in this case. 22. So far as appellants-Yakub Khan and Jubair Khan in Cr. Appeal (D.B.) No. 711/2012 are concerned, it is admitted that they did not assault the deceased rather as per the statements of P.Ws. 5 and 6, only appellant-Mashruddin Khan in Cr. Appeal (D.B.) No. 761/2012 had assaulted the deceased. 23. Thus, from the evidences, as aforesaid, appellants-Yakub Khan and Jubair Khan in Cr. Appeal (D.B.) No. 711/2012 cannot be convicted for the offence under Section 302/34 of the Indian Penal Code. Similarly, appellant-Mashruddin Khan in Cr. Appeal (D.B.) No. 761/2012 also cannot be convicted for the offence under Section 302/34 of the Indian Penal Code, rather he can be convicted for the offence under Section 307 of the Indian Penal Code, because of fact that there is consistent evidence that this appellant was assaulting the husband of P.W.6 with a sharp weapon with an intention to kill. 24. From the discussions, made hereinabove, appellant-Mashruddin Khan in Cr. Appeal (D.B.) No. 761/2012 is thus convicted for the offence under Section 307 of the Indian Penal Code and is sentenced to undergo rigorous imprisonment for a period of ten years. 25. It has been informed that appellant-Mashruddin Khan in Cr. Appeal (D.B.) No. 761/2012 is languishing in jail custody and thereby he has already undergone more than ten years in custody. Thus, appellant-Mashruddin Khan is directed to be released from custody forthwith, if not wanted in any other case. 26. So far as appellants-Yakub Khan and Jubair Khan in Cr. Appeal (D.B.) No. 711/2012 are concerned, they are acquitted of the charges levelled against them. Since appellants-Yakub Khan and Jubair Khan in Cr. Thus, appellant-Mashruddin Khan is directed to be released from custody forthwith, if not wanted in any other case. 26. So far as appellants-Yakub Khan and Jubair Khan in Cr. Appeal (D.B.) No. 711/2012 are concerned, they are acquitted of the charges levelled against them. Since appellants-Yakub Khan and Jubair Khan in Cr. Appeal (D.B.) No. 711/2012 are in custody, they shall be released forthwith, if not wanted in any other case. 27. In the result, Cr. Appeal (D.B.) No. 711/2012 stands allowed and Cr. Appeal (D.B.) No. 761/2012 also stands partly allowed. I agree Ananda Sen, J.