JUDGEMENT : Shree Chandrashekhar, J. A First Information Report was lodged against nine accused persons, namely, Baida Paharia, Bhema Paharia, Chota Bamna Paharia, Jabra Paharia, Guhia Paharia, Budhuwa Paharia, Rama Paharia, Banara Paharia and Bara Bamna Paharia for causing death of Babu Paharia, on the basis of fardbeyan of Rupa Paharia which was recorded on 14.08.1978 at about 8:30 a.m. 2. After the investigation, a charge-sheet was submitted and six persons, namely, Pradhan Baida Paharia, Bhima Paharia, Bamna Paharia, Guria Paharia, Budhuya Paharia and Bara Bamna Paharia were sent-up for trial on the charge under section 302/34 IPC and section 201 IPC. 3. During the trial the accused persons, namely, Guria Paharia, Budhuya Paharia and Bara Bamna Paharia have died. 4. During pendency of this criminal appeal, Bamna Paharia has died and, accordingly, this criminal appeal qua the appellant no. 3, namely, Bamna Paharia has abated vide order dated 09.07.2019. 5. In the fardbeyan which was recorded on 14.08.1978 the informant has stated that about 16 days ago Babu Paharia, the deceased, had gone to village-Kerodali to bring seeds from his maternal uncle, namely, Pradhan Baida Paharia but he did not come back. About 4-5 days thereafter Bamna Paharia and Mangi Paharin, both cousins of Babu Paharia, went to village-Kerodali where Pradhan Baida Paharia told them that Babu Paharia did not visit him. On 13.08.1978, during the search they came to know from Bamna Paharia that the accused persons were found assaulting Babu Paharia who was stealing paddy from the house of Guhia Paharia and they have thrown the dead-body in the river. On such information, a dead-body was recovered from the river. The informant claims that the dead-body which was recovered from the river was of Babu Paharia. The dead-body was sent-up for forensic examination and a report was tendered in evidence vide exhibit-4. 6. During the trial, the prosecution has examined twelve witnesses: the informant, namely, Rupa Paharia is P.W.1. 7. The prosecution witnesses-P.W.2, P.W.6, P.W. 8 and P.W.9 were tendered for cross-examination; P.W.10, P.W.11 and P.W.12 are formal witnesses, and P.W. 3 is a hear-say witness. 8. The prosecution has projected Bagha Paharia-P.W.4, Jabra Paharia-P.W.5 and Rupa Paharia-P.W.7; the informant and P.W.7 are two different witnesses, as eye-witnesses. 9. Mr. 7. The prosecution witnesses-P.W.2, P.W.6, P.W. 8 and P.W.9 were tendered for cross-examination; P.W.10, P.W.11 and P.W.12 are formal witnesses, and P.W. 3 is a hear-say witness. 8. The prosecution has projected Bagha Paharia-P.W.4, Jabra Paharia-P.W.5 and Rupa Paharia-P.W.7; the informant and P.W.7 are two different witnesses, as eye-witnesses. 9. Mr. Uday Choudhary, the learned Amicus submits that: (i) the dead-body has not been identified, (ii) the eye-witnesses have contradicted themselves, and (iii) non-examination of the doctor and the investigating officer has proved fatal for the prosecution and, therefore, conviction of the surviving appellants under section 302/34 IPC and under section 201 IPC is unsustainable. 10. The informant is not an eye-witness to the occurrence. In the fardbeyan, the informant has stated that the accused persons have informed Bamna Paharia about the occurrence and threatened him not to disclose it to anyone, however, in the court he says that the accused persons have confessed before him that they have committed the crime. On identification of the dead-body he has said that he has seen the clothes of Babu Paharia and inscription on his hand “Babu Paharia”. The FSL report says that the dead-body was of a young man aged about 27 years and a head injury was found on the dead-body. 11. The defence set-up by the accused persons is that Babu Paharia was caught stealing paddy from the house of Guhia Paharia and he was apprehended and assaulted by the villagers. 12. The prosecution witness, namely, Bagha Paharia-P.W.4 has deposed in the court that 12 days after the occurrence; he has thereafter said after 8 days, his statement was recorded by the police. On his own account he is not an eye-witness. He says that his house is three house apart from the house of the accused persons and he was in his house when he heard some hulla. In his cross-examination, he admits that he did not go to the angan where Babu Paharia was being assaulted. Another witness, namely, Jabra Paharia-P.W.5 has also admitted that he has not seen anyone assaulting Babu Paharia, however, he says that he has seen the dead-body of Babu Paharia in the court-yard of Guhia Paharia. He has deposed that after the police (Darogajee) started beating him, he gave his statement to the police. His statement was recorded by the police about 3-4 weeks after the occurrence (para-12). He has deposed that after the police (Darogajee) started beating him, he gave his statement to the police. His statement was recorded by the police about 3-4 weeks after the occurrence (para-12). Rupa Paharia-P.W.7 has also admitted that his statement was recorded by the police about 10-12 days after a report was lodged with the police. He has said that he has not seen anyone assaulting Babu Paharia. In his examination-in-chief, P.W.7 says that on call of Baida Paharia who informed that a thief was caught he had gone to the house of Guhia Paharia. All these witnesses have spoken that it was a dark night and there were several other villagers present at the house of Guhia Paharia. Not only their testimony is not trustworthy, since their statement was recorded by the police several days after registration of the case and P.W.5 has deposed that he was beaten by the police, their evidence in the court has become tainted and not reliable. At the best, all that they have seen is that Babu Paharia was caught and tied by the villagers and thereafter what has happened to him is not known to them. 13. Above all, neither the postmortem report was tendered in evidence nor the inquest report was prepared by the police. Recovery of the dead-body and its identification, in absence of examination of the investigating officer and the doctor have thus become highly suspicious. If on the basis of the injury found on the head of the dead-body and the clothes recovered by the police which according to the informant belong to Babu Paharia it is held that the dead-body was of Babu Paharia, it would be a highly dangerous proposition in law. True, it is not a universal rule that in every case the dead-body must be produced, but then, the prosecution must establish through cogent evidence that death has occurred. In the present case, the First Information Report was lodged about 16 days after Babu Paharia had gone to village-Kerodali and about 8 days after a First Information Report was lodged a dead-body was recovered. In fact, P.W.4, P.W.5 and P.W.7, who according to the prosecution are the eye-witnesses, have deposed in the manner which corroborates the defence story that Babu Paharia was caught by the villagers stealing paddy and he was assaulted by them. 14. In fact, P.W.4, P.W.5 and P.W.7, who according to the prosecution are the eye-witnesses, have deposed in the manner which corroborates the defence story that Babu Paharia was caught by the villagers stealing paddy and he was assaulted by them. 14. In such state of evidence, we are of the opinion that the prosecution has failed to establish that the appellants, namely, Prodhan Baida Paharia @ Baida Paharia and Bhima Paharia in furtherance of their common intention have killed Babu Paharia. Accordingly, their conviction under section 302/34 IPC and under section 201 IPC and the order of sentence inflicted upon them in Sessions Case No. 259 of 1981/137 of 1992 passed by the learned Additional Sessions Judge, Pakur, both dated 31.05.2001, are set-aside. 15. Both the appellants, namely, Prodhan Baida Paharia @ Baida Paharia and Bhima Paharia are acquitted of the charges framed against them. Accordingly, the appellants, who are on bail, are discharged of liability of the bail-bonds furnished by them. 16. In the result, Criminal Appeal (DB) No. 247 of 2001 is allowed. 17. The Court appreciates the assistance rendered by Mr. Uday Choudhary, the learned Amicus and Mr. Satish Kumar Keshri, the learned APP. 18. The Secretary, Jharkhand High Court Legal Services Committee shall reimburse the learned Amicus on submission of bill(s). 19. Let lower-court records be transmitted to the court concerned, forthwith. 20. Let a copy of the order be transmitted to the court concerned and the Secretary, Jharkhand High Court Legal Services Committee through 'FAX'.