JUDGMENT : Heard learned counsel for the appellant and learned Addl. PP for the State. 2. This appeal has been preferred by the appellant being aggrieved by the Judgment of conviction dated 31.01.2006 and order of sentence dated 2.2.2006 passed by the learned Additional Sessions Judge, Fast Track Court no. 2, Deoghar in Sessions Case No. 350 of 2004 whereby and whereunder, the appellant-Arjun Turi has been held guilty and convicted for the offence punishable under Section 304 part II of the IPC and sentenced to undergo RI for eight years with fine of Rs. 5,000/-. 3. The brief fact of this case as mentioned in the written report of the informant, is that on 03.06.2004 at about 1.00 PM, the appellant-accused knocked the door of the victim and as the victim opened the door, the appellant-accused person stabbed the victim with a knife on his waist causing injury to the victim and thereafter, the appellant-accused person fled away. The informant raised hue and cry. The villagers assembled there and went to the house of the appellant-accused person. By that time, appellant -accused person had fled away from his house. It is further averred in the written report that land dispute is going between the appellant-accused person and the deceased and for that reason, the appellant-accused person attempted to murder the victim. 4. Based on the written report of the informant, police registered Madhupur P.S. case no. 104 of 2004 and took up investigation. The occurrence took place on 03.06.2004 and the deceased died on 17.06.2004 during course of his treatment. Upon completion of the investigation, police submitted charge sheet. The case was committed to the Court of Session and charge for the offence punishable under Section 302 of IPC was framed against the appellant-accused person and upon the accused pleading not guilty to the charge, he was put to trial. 5. In support of its case, the prosecution has altogether examined nine witnesses. Out of whom, PW4 and PW5 did not support the case of the prosecution and were declared hostile. PW8 and PW9 were formal witnesses. PW6 and PW7 are the doctors. PW6 conducted the post-mortem examination on the dead body of the deceased and PW7 treated the victim before his death. 6. P.W.1 Putri Turi is the cousin brother of the deceased. PW8 and PW9 were formal witnesses. PW6 and PW7 are the doctors. PW6 conducted the post-mortem examination on the dead body of the deceased and PW7 treated the victim before his death. 6. P.W.1 Putri Turi is the cousin brother of the deceased. He has stated that the occurrence took place about 6-7 months prior to his adducing evidence in the court at 10.00 P.M. He was sleeping in his house. The children raised clamor of their father being assaulted. PW1 reached the place of occurrence after hearing the hue and cry and saw that brief and vest of the deceased were soaked with blood and on being asked, the deceased told him that the appellant -accused came by scaling over the wall and stabbed him with a knife. PW1 saw the injury. The deceased-informant, Brihaspati stated that the appellant -accused person used to assault his wife about which his wife complained to the deceased, for which the deceased abused the appellant-accused person and for that reason, the appellant-accused person committed the assault. In the process of running away, the appellant-accused person left his chappal in the house of the deceased. The deceased was taken to Madhupur police station and from there, he was sent to hospital for treatment and in course of his treatment, the deceased died at Deoghar Sadar hospital. In his cross-examination, PW1 has stated that when he reached the place of occurrence, he found the informant- Brihaspati lying on a cot and blood was oozing out. Before him, no one else was there. In the morning, Brihaspati was taken in a rickshaw to police station. Brihaspati remained in Madhupur hospital for a day and thereafter, he was shifted to Giridih hospital for treatment. He was also treated in Navjivan Private Hospital for three days. After being discharged from the said hospital, Brihaspati went to his house and stayed for day in his house. Again the D.S.P. sent him to the referral hospital. On 17.06.2004 Brihaspati was brought to Sadar hospital, Deoghar and on the next day, between 5.00 A.M. to 5.30 AM, Brihaspati died in course of his treatment at Deoghar hospital. He does not have any document of treatment of Brihaspati. The appellant-accused was the Choukidar. Brihaspati was a laborer. The wife of the appellant-accused did not institute any case of assault. He does not have any document of treatment of Brihaspati. The appellant-accused was the Choukidar. Brihaspati was a laborer. The wife of the appellant-accused did not institute any case of assault. In paragraph 16, PW1 has categorically stated that there is no land dispute between Brihaspati and the appellant -accused person. He denied the suggestion that Brihaspati used to prepare liquor and was involved in gambling. 7. P.W. 2 – Misri Turi, is another cousin brother of the informant –deceased Brihaspati. He has stated that the occurrence took place on 03.06.2004. He was sleeping in his house. Between 10.00 PM - 10.30 PM, the daughter of Brihaspati came running to the house of PW2 and informed that the appellant-accused person stabbed her father with a knife. PW2 along with PW1 went to the house of Brihaspati and Brihaspati told him that Arjun came after scaling over the wall and stabbed him. PW2 saw the injuries sustained by the victim and blood was oozing out. On the next day, the victim was taken to Madhupur police station and thereafter he was taken to referral hospital in Madhupur. Brihaspati was again taken to Giridih hospital and during course of his treatment, Brihaspati died on 17.06.2004 in the morning. In his cross-examination, PW2 has stated that there is one old open courtyard in the house of Brihaspati and when PW2 reached the house of Brihaspati, he found Brihaspati lying on a cot inside a room. Blood was oozing out and the cloth, cot and bed were wet with blood. By the time, PW2 reached there, no one else was there. PW 1 and PW2 were the first persons to reach there. Sabejor is at a distance of 2 and 1/2 kilometers from the police station. On the next day, PW 1 and PW2 took Brihaspati in a rickshaw. He was cross-examined vis-à-vis his statement made before the police. 8. P.W. 3 – Rani Kumari, is the daughter of the deceased, she has stated that the deceased Brihaspati Turi was murdered five months ago in the night. She was sleeping in the verandah. His father was sleeping on a cot. The appellant-accused stabbed his father in abdomen and ran away. Blood was oozing out. On hue and cry people came. In course of his treatment, her father died. She identified the appellant-accused person. She was sleeping in the verandah. His father was sleeping on a cot. The appellant-accused stabbed his father in abdomen and ran away. Blood was oozing out. On hue and cry people came. In course of his treatment, her father died. She identified the appellant-accused person. In her cross-examination, she has stated that her house is having two rooms. The courtyard is open and for going to the courtyard, tin sheet has been fixed as a door. Her father was sleeping in the courtyard. In paragraph 9, she has stated that her father raised hue and cry that Brihaspati has assaulted him and when she woke up, she saw that her father was lying on a cot and blood was oozing out. She was also examined vis-à-vis her statement recorded by the police. 9. P.W.6- Dr. Ravi Kant Pandey, conducted the post –mortem examination on the dead body of the deceased and found the following ante mortem injury on his person:- One stitched wound on left iliac region. After removal of stitch, wound was 2” x ½” x abdominal deep. Margin was regular. Mixed blood and water was coming out of the wound. Peritoneum was inflamed. On dissection of skull-brain meninges were in place, on dissection of thorax-Heart-right chamber contained blood, left was empty. Both lungs were pale. On dissection of abdomen, the abdominal cavity was full of mixed blood and water. Stomach contained 100 ml. liquid, liver, spleen and both kidneys were pale. The portion of intestine was lying in left. Iliac region was perforated and contained pus. Urinary bladder was empty. 10. Time elapsing since death was within 24 hours till P.M. examination was done. Cause of death was shock and hemorrhage due to sharp and penetrating weapon such as knife. 11. He has further stated that this post mortem report has been prepared by him in his pen and under his signature. On being proved by him the same was marked Exhibit -1. In his cross-examination he has stated that the details of treatment and medicine etc. are entered in the bed head ticket. The size of injury increases after the removal of stitch. 12. P.W.7- Dr. Ramesh Kumar, has stated that on 04.06.2004 at 11.50 A.M., he examined Brihaspati and he found the following injuries :- Sharp and perforating injury on left inguinal canal area 10 cm x 5 cm. are entered in the bed head ticket. The size of injury increases after the removal of stitch. 12. P.W.7- Dr. Ramesh Kumar, has stated that on 04.06.2004 at 11.50 A.M., he examined Brihaspati and he found the following injuries :- Sharp and perforating injury on left inguinal canal area 10 cm x 5 cm. deep-red, blood oozing from the side, abdominal distension due to gut injury Colour of the wound was red Cause of injury- By sharp and perforating injury such as chhura. Nature of injury- Grievous. 13. PW7 stated that the injury report was prepared by him in his pen and signature, which was marked as Exhibit 2. In his cross-examination, PW7 has stated that the injured was admitted to the hospital. For such patients, bed head ticket is maintained which is permanent document and injury, treatment and medicines are mentioned therein. The patient was referred in the B.H.T. 14. P.W.8- Gopal Rawani stated that on 04.06.2004, police recovered and seized one pair of Hawai slipper from the house of deceased and prepared the seizure list. Upon the seizure list, police obtained the signature of PW8 and Suresh Rawani. On being proved by him, the signatures of PW8 and that of Suresh Rawani were marked as Exhibit 3 and 3/1 respectively. In paragraph 2 of his cross-examination, PW8 has stated that police obtained his signature on a blank paper and he did not read the contents of the paper upon which he made his signature. He has no knowledge about the occurrence. 15. P.W.9- Umesh Deo is a farmer. He has stated that he knows Rajesh Kumar Mandal who was posted at Madhupur Police Station on 04.06.2004 and also knows his signature. On being proved by him, formal FIR was marked as Exhibit 4 and his endorsement on the written report was marked Exhibit 4/1. In his cross-examination PW 4 has stated that he never got any opportunity to work with Rajesh Kumar Mandal and neither the formal FIR nor the endorsement was prepared in his presence. 16. After closure of the evidence of the prosecution, the statement under Section 313 Cr.P.C. of the appellant-accused was recorded wherein he denied the circumstances appearing in evidence against him and pleaded innocence. 17. 16. After closure of the evidence of the prosecution, the statement under Section 313 Cr.P.C. of the appellant-accused was recorded wherein he denied the circumstances appearing in evidence against him and pleaded innocence. 17. Taking into consideration the evidence available in the record, learned court below convicted and sentenced the appellant-accused person as already indicated above by treating the FIR as the dying declaration. 18. Mr. Ranjan Kr. Singh the learned counsel for the appellant submitted that learned court below erred by treating the FIR as dying declaration because there is no evidence in the record as to who scribed the FIR and the alleged signature of the deceased on the written report has not been proved. It is then submitted that since the written report has not been proved, so, learned court below committed error by relying upon the same. It was further submitted by learned counsel that there are major contradictions in the testimonies of the prosecution witnesses vis-à-vis the written report, as though in the written report, it was mentioned that the appellant-accused came and knocked the door of the deceased- Brihaspati and the motive for assault was land dispute between the parties. PW1 and PW2 have stated that Brihaspati told them that the appellant–accused came after scaling over the boundary wall and stabbed him and the motive for such assault was that the deceased Brihaspati chided the appellant-accused person for regularly assaulting his wife. It is submitted that as there are such major contradictions between the testimonies of PW2 and PW3 and also there is contradiction as to when they reached the place of occurrence because PW1 stated that he alone reached the place of occurrence whereas PW 2 deposed that he reached the place of occurrence along with PW1, the same renders the testimonies of these witnesses untrustworthy and creates a doubt about the case of the prosecution. It is next submitted that in paragraph 9 of her cross-examination, PW 3 has stated that her father, in a loud voice, was telling that Brihaspati has stabbed and certainly Brihaspati is not the name of the appellant-accused person, so, in view of these major contradictions between the testimonies of the material witnesses and the fact that the appellant-accused person has been prejudiced by non-examination of the I.O. without any plausible reason, thereby depriving the appellant-accused from drawing contradictions regarding testimonies of the prosecution witnesses vis-à-vis their statement recorded under Section 161 Cr.P.C. by the police. It is also submitted that the defence has been prejudiced by non-examination of the investigating officer as there is no evidence regarding the place of occurrence and the evidence regarding the place of occurrence is of vital importance as some of the witnesses of the prosecution have stated that the courtyard was a open one whereas PW1 and PW2, as already indicated above, have deposed that the deceased told them the appellant –accused came after scaling over the wall and stabbed him, which is not possible when the courtyard is an open one. Learned counsel for the appellant further submitted that there is no evidence in the record regarding the alleged weapon of the offence or whether the same was ever seized by police and if not why the same was not seized by police. It is lastly submitted that appellant be acquitted of all the charges by at least giving him the benefit of doubt. 19. Learned Addl. PP on the other hand defended the impugned judgment and submitted that PW3 is an eye-witness to the occurrence and her testimony is corroborated by PW1 and PW2. It is then submitted that the testimony of PW3 could be treated as oral dying declaration of the deceased and the same being corroborated by the medical evidence put forth through PW6 and PW7 is sufficient to establish the offence punishable under Section 304 part II of Indian Penal Code, for which the appellant-accused has been convicted, hence, it is submitted that the learned court below having rightly convicted and sentenced the appellant, this appeal being without any merit be dismissed. 20. Having heard the submissions made at the Bar and perusal of the record, I find that the written report allegedly submitted by the deceased has not been proved. 20. Having heard the submissions made at the Bar and perusal of the record, I find that the written report allegedly submitted by the deceased has not been proved. There is no evidence in the record as who is the scribe of the same nor there is any evidence that the signature appearing in the same belongs to the deceased, thus, learned court below certainly erred by relying upon the same. I find force in the submission of the learned counsel for the appellant that there are contradictions in the testimonies of the prosecution witnesses regarding the manner of the occurrence and how the appellant-accused person came to the place of occurrence. So far as the testimony of the PW3 is concerned, though in her examination in chief, she has posed herself as an eye-witness to the occurrence but in paragraph 8 of her testimony, she has categorically stated that she was sleeping in the verandah whereas her father was sleeping on a cot in courtyard and there is a tin-sheet fixed in the doorframe which separates the verandah from the courtyard. Further, in paragraph 9, PW3 has stated that on hearing the voice of her father, she woke up and saw that her father was lying on a cot, so this obviously implies that she is not an eye-witness to the occurrence and her testimony that her father in loud voice told that Brihaspati has stabbed him, certainly creates doubt of the case of the prosecution that the appellant-accused stabbed the deceased because had it been the case, there was no occasion for the appellant to say in loud voice that Brihaspati has stabbed him. 21. Keeping in view that the appellant allegedly stabbed the deceased once only and there is no evidence in the record that the weapon of offence was ever seized by police and in the absence of any evidence regarding the place of occurrence and its boundaries, particularly in view of the discrepancy in the testimonies of the prosecution witnesses whether there was boundary of the court yard or the same was open, the non-examination of the I.O. has certainly prejudiced the appellant-accused. 22. Under the facts of the case, this court is of the considered view that the evidence in the record is insufficient to establish the offence punishable under Section 304 part II IPC against the appellant-accused. 22. Under the facts of the case, this court is of the considered view that the evidence in the record is insufficient to establish the offence punishable under Section 304 part II IPC against the appellant-accused. This is a fit case where the sole appellant-accused be acquitted by giving him the benefit of doubt. Accordingly, the conviction of the appellant-accused person-Arjun Turi is set aside and he is acquitted of the charge. The appellant-accused person-Arjun Turi is on bail and in view of his acquittal, he is discharged of the liability of his bail bond. 23. Let the Lower Court Records be sent back to the Court concerned forthwith, along with a copy this Judgment. 24. In result, this appeal is allowed.