JUDGMENT : Kailash Prasad Deo, J. Both criminal appeals are arising out of common judgment of conviction and order of sentence, as such both are being heard together. 2. Heard learned counsel for the appellants, Mr. Manoj Kumar Sah and learned counsel for the State, Mr. Pankaj Kumar, Additional Public Prosecutor. 3. Both criminal appeals have been preferred against the common judgment of conviction dated 16.10.1996 and order of sentence dated 17.10.1996 passed in Sessions Case No. 164 of 1995/69 of 1995 by learned 1st Additional Sessions Judge, Godda, whereby both the appellants have been held guilty under Sections 392/397 and 302 of the Indian Penal Code and awarded rigorous imprisonment for 10 years for the offence committed and punishable under Section 392/397 and imprisonment for life for the offence committed and punishable under Section 302 I.P.C. Both the sentences are directed to run concurrently. 4. The prosecution case is based upon statement of the injured, Shyam Sundar Bhagat recorded by S.I, J. M. Ram at Rajkiya Hospital, Meherma on 17.4.1995 at 23.45 Hours, where the informant has stated in presence of his uncle, Naresh Prasad Bhagat that today in the evening after selling his rice at Goria Hat, he was returning along with cash and part of rice which had not been sold. Informant has stated that he has kept the rice and money in the house of his brother Surajmuni Bhagat, residing at Goria and was returning to his house at Lohchita on his bicycle. The informant has stated that as soon as he reached near Balia near the canal road and Mahua tree at around 6.30 p.m., he saw three persons standing there, who obstructed the informant and demanded cash. The informant has replied that nothing is with him except Rs. 150/-as cash after selling rice and the remaining rice has been kept at the residence of his brother at village Goria. Thereafter all the accused persons took cash Rs. 150/-from his pocket and left the informant. The informant has identified two of the accused persons out of three as Santosh Bhagat son of Rajendra Bhagat and second one Ram Chandra @ Bonga Paswan son of Lakhi Paswan. resident of Lohchita, District-Godda, but could not identify third person. Informant has further stated that as soon as he proceeded a distance of 100 yard, the accused persons again chased him and asked him to stop. resident of Lohchita, District-Godda, but could not identify third person. Informant has further stated that as soon as he proceeded a distance of 100 yard, the accused persons again chased him and asked him to stop. The informant replied that, what has been left with him, if you want to take cycle you can take the cycle. Thereafter the accused Ram Chandra @ Bonga Paswan loaded country made pistol and handed over the same to Santosh Bhagat. The informant thought that they were joking but in the meantime Santosh Bhagat has fired, which hit on the left side of the chest of the informant. The informant after raising brawl ran towards village Balia and fell down at the door of Lakshman Sah. The informant has disclosed about the occurrence of firing and the snatching of cash. Several persons assembled there, took him on a cot to Goria at the house of his brother Surajmuni Bhagat. The informant has stated that there he disclosed about the occurrence to his brother, uncle and other co-villagers regarding firing and snatching of cycle and cash . The informant has further stated that he was brought to hospital with the help of his brother and co-villagers where his treatment is gong on. The informant has claimed that above-named accused Santosh Bhagat and Ram Chandra @ Bonga Paswan along with one unknown person have snatched his cash, bicycle and have caused serious injuries to him by firing. 5. On the basis of Fardbeyan of the informant, police has registered Meherma (Belbadda) P. S. Case no. 45/95 dated 19.4.1995 under Section 394 I.P.C against three accused persons, two are named as Santosh Bhagat and Ram Chandra @ Bonga Paswan. Subsequently after death of the victim after 33 days on 20th May, 1995 Section 302 of the I.P.C has been added vide order dated 13.7.1995. On completion of the investigation, police has submitted charge-sheet vide no. 14 of 1995 dated 18.7.1995 against both the named accused persons, Ram Chandra @ Bonga Paswan and Santosh Bhagat under Sections 394, 302/34 of the I.P.C and 27 of the Arms Act. The cognizance of the offence has been taken vide order dated 20.7.1995 and the case has been committed to the Court of Sessions vide order dated 16.9.1995. The charge has been framed against both the accused persons under Sections 392/397 and 302 of I.P.C vide order dated 18.12.1995. The cognizance of the offence has been taken vide order dated 20.7.1995 and the case has been committed to the Court of Sessions vide order dated 16.9.1995. The charge has been framed against both the accused persons under Sections 392/397 and 302 of I.P.C vide order dated 18.12.1995. Charge has been read over and explained to the accused persons in Hindi, to which they have pleaded not guilty and claimed to be tried. 6. In order to prove the case, the prosecution has examined altogether 13 prosecution witnesses and also exhibited a number of documents upto Ext. 6 as under: P.W.1-Dr. A. K. Dadel P.W.2-Lakshman Prasad P.W.3-Naresh Prasad Bhagat P.W.4-Surajmuni Bhagat P.W.5-Srikant Sah P.W.6-Ramesh Panjiara P.W.7-Lakshmi Kant Bhagat @ Kamta Prasad Bhagat P.W.8-Manoj Kumar Bhagat P.W.9-Bhuneshwar Prasad Sah P.W.10-Ajeet Kumar Sharma P.W.11-Md. Anwar Khan P.W.12-Dr. Abhay Kumar Jha Suman P.W.13-Jawahar Bhagat Ext.-1 is injury report of the victim, Shyam Sundar Bhagat examined by Dr. A. K. Dadel. Ext.-1/1 is injury report of victim, Shyam Sundar Bhagat examined by Dr. Abhay Kumr Jha Suman. Ext.2 is letter in handwriting of P.W.1, Dr. A.K.Dadel. Ext.3 is Fardbeyan of informant, Shyam Sundar Bhagat. Ext. 3/1 is signature of Naresh Prasad Bhagat on the Fardbeyan of the informant, Shyam Sundar Bhagat Ext. 4 is endorsement of Officer-Incharge, Belbadda on the Fardbeyan of the informant, Shyam Sundar Bhagat Ext. 4/1 is forwarding of Fardbeyan of the informant/victim, Shyam Sundar Bhagat Ext. 4/2 is endorsement of investigation by the Officer-Incharge. Ext. 5 is certificate of death of Shyam Sundar Bhagat in photostat (with objection). Ext.6 is original certificate of death of Shyam Sundar Bhagat (without objection). Dr. A.K. Dadel, has been examined as P.W. 1. He has proved the photocopy of the injury report, which has been marked with objection as Ext.-1, which reads as under: 1. Circular lacerated wound ½” diameter depth not probed with multiple small blackish spots over skin around and area over 4” diameter over left lower costal area anteriorly. 2. Lacerated wound ¾” “circular, irregular margin with loop of intestine protruding from it, depth not probed, over right iliac region within 24 hours. 3. Naked identification mole over nose. Nature of injury – opinion reserve till x-ray and treatment. This is photostat which is in my handwriting (Ext.-1 marked with the objection of defence as it in photostat). 2. Lacerated wound ¾” “circular, irregular margin with loop of intestine protruding from it, depth not probed, over right iliac region within 24 hours. 3. Naked identification mole over nose. Nature of injury – opinion reserve till x-ray and treatment. This is photostat which is in my handwriting (Ext.-1 marked with the objection of defence as it in photostat). He has also proved the photocopy of the letter in his handwriting referring the victim to the PMCH, which has been marked as Ext. 2 (with objection). Lakshman Prasad Sah has been examined as P.W. 2. He has been declared hostile by the prosecution as he has supported the entire prosecution case except the disclosure of the name by the informant before him. Naresh Prasad Bhagat has been examined as P.W. 3. He is uncle of the informant, in whose presence the informant has disclosed the name of accused persons. Surajmuni Bhagat, brother of the informant has been examined as P.W. 4. He has proved the signature of Shyam Sundear Bhagat on Fardbeyan, which has been marked as Ext. 3 and signature of Naresh Prasad Bhagat on Fardbeyan, which has been marked as Ext. 3/1. Srikant Sah has been examined as P.W.5 and has been declared hostile by the prosecution. Ramesh Panjiara has been examined as P.W. 6 and has been tendered by the prosecution. Lakshmi Kant Bhagat has been examined as P.W.7 and has been declared hostile by the prosecution. Majoj Kumar Bhagat, another brother of the informant has been examined as PW.8. He is a hearsay witness. Bhuneshwar Prasad Sah has been examined as P.W.9 and has been declared hostile by the prosecution. Ajeet Kumar Sharma has been examined as P.W.10 and he has supported the prosecution case as disclosed by the informant, Shyam Sundar Bhagat before him and other co-villager. Md. Anwar Khan, Investigating Officer has been examined as P.W.11, who has investigated the case and proved the endorsement of the Officer-Incharge, Belbadda on the Fardbeyan, which has been marked as Ext. -4, forwarding on the fardbeyan, which has been marked as Ext. 4/1 and the endorsement for investigation, which has been marked as Ext. 4/2. Certificate of death of Shyam Sundar Bhagat in photostat copy has been proved by P.W. 11, Md. -4, forwarding on the fardbeyan, which has been marked as Ext. 4/1 and the endorsement for investigation, which has been marked as Ext. 4/2. Certificate of death of Shyam Sundar Bhagat in photostat copy has been proved by P.W. 11, Md. Anwar and has been marked as Ext.-5 with objection and subsequently the original certificate of death of Shyam Sunder Bhagat has been brought on record and has been proved and marked as Ext.-6. Dr. Abhay Kumar Jha Suman is the Medical Officer has been examined as P.W. 12, who was posted at Primary Health Center, Meherma on 17.4.1995 and on the requisition from the Officer-Incharge he has examined Shyam Sundar Bhagat on 18.4.1995 at 0.30 a.m and found the following injuries as Ext. 1/1: 1. “(i) one circular wound on the left lower part of chest margin of which are incinerated. The radius of the wound is about 1c.m from which blood is coming out. It seems to be the wound of entry of a firearm. 2. (ii) One wound on the right lower part of abdomen with irregular margin through which a loop of small intestine has come out and it is also bleeding. It seems to be the exit wound of firearm. The radius of the wound is about 2.5 cm. 3. Injuries are caused by firearm, the details of which can be had from some ballistic expert. It is grievous in nature. The details of the injuries caused to internal viscera and its severity and extent can be had from the treating doctor at J.N.M.C.H, Bhagalpur to which the patient is referred after first aid. Age of injury – within 12 hours” Such injury was by fire arm. This injury report was prepared by me and bears my signature, which has been proved and marked as Ext.-1/1. Jawahar Bhagat, a co-villager has been examined as P.W. 13 and has supported the prosecution case. 7. After closure of the prosecution evidence, both these accused persons have been examined under Section 313 Cr.P.C on 10.9.1996. They have denied their involvement in the alleged occurrence and claimed themselves to be innocent and falsely implicated, but they have not adduced any oral or documentary evidence in support of their cases. 8. 7. After closure of the prosecution evidence, both these accused persons have been examined under Section 313 Cr.P.C on 10.9.1996. They have denied their involvement in the alleged occurrence and claimed themselves to be innocent and falsely implicated, but they have not adduced any oral or documentary evidence in support of their cases. 8. After hearing learned counsel for the parties and on the basis of materials available on record, learned Trial Court vide impugned judgment of conviction and order of sentence has convicted the accused persons under Sections 392/397 and 302 I.P.C 9. Being aggrieved at and dissatisfied with the impugned judgment of conviction and order of sentence both the appellants have preferred separate criminal appeals assailing the same and both are being heard together. 10. Heard learned counsel for the appellants, Mr. Manoj Kumar Sah and learned counsel for the State, Mr. Pankaj Kumar, Additional Public Prosecutor. 11. Learned counsel for the appellants has submitted that the impugned judgment of conviction and order of sentence is bad in law and cannot sustain in the eyes of law. Learned counsel for the appellants has further submitted that conviction of the appellants under Section 302 I.P.C is not sustainable in the eyes of law in absence of postmortem report, which has not been brought on record. The death certificate which has been brought on record with objection as Ex. 5 and without objection as Ext. 6 are only to the effect that person has died, but not as a proof that the death of Shyam Sundar Bhagat has been caused because of fire arm injury inflicted by the appellant Santosh Bhagat. As such, conviction of the appellants cannot sustain in the eyes of law under Section 302 I.P.C. Learned counsel for the appellants has further submitted that conviction of appellants under Sections 392/397 is also not sustainable in the eyes of law as half of the prosecution case is not supported by the prosecution material. As such, the appellants deserve to be acquitted from the charge and conviction under sections 392 and 397 I.P.C. as conviction under Section 302 I.P.C is not sustainable as submitted earlier. As such, the appellants deserve to be acquitted from the charge and conviction under sections 392 and 397 I.P.C. as conviction under Section 302 I.P.C is not sustainable as submitted earlier. Learned counsel for the appellants has further submitted that the Doctor, who has conducted the postmortem of the deceased or Doctor, who has examined the deceased at Patna have not been examined in this case to establish that the victim, Shyam Sundar Bhagat, informant of the case has died because of alleged fire arm injury caused by Santosh Bhagat @ Santosh Kumar Bhagat. As such, the conviction of the appellants by the impugned judgment of conviction and order of sentence is bad in law and cannot sustain in the eyes of law. Learned counsel for the appellants has further submitted that the Investigating Officer has not found any mark of violence at the place of occurrence nor blood was found at the place of occurrence to establish the place of occurrence. Learned counsel for the appellants has submitted that because of animosity between the parties the appellants have been falsely implicated at the instance of P.W. 3, Naresh Prasad Bhagat. Learned counsel for the appellants has thus submitted that no independent witness has supported the prosecution case nor the alleged looted amount of Rs. 150/-or bicycle have been recovered from possession or house of the appellants. Learned counsel for the appellants has further submitted that these appellants have no criminal antecedent, as such their conviction under Sections 392/397 and 302 IPC is not sustainable in the eyes of law. 12. To buttress his argument, learned counsel for the appellants has placed a judgment in the case of Kapildeo Mandal and others Vs. State of Bihar as reported in (2008) 16 SCC 99, where it has been held that medical evidence when specifically rules out the injury claimed to have been inflicted as per the eye witnesses' version, then the court can draw adverse inference that the prosecution version is not trustworthy. Learned counsel for the appellants has thus submitted by relying upon the aforesaid judgment of the Apex Court that both the appellants may be acquitted from the charge and conviction under Sections 392/397 and 302 I.P.C. 13. Learned counsel for the State Mr. Learned counsel for the appellants has thus submitted by relying upon the aforesaid judgment of the Apex Court that both the appellants may be acquitted from the charge and conviction under Sections 392/397 and 302 I.P.C. 13. Learned counsel for the State Mr. Pankaj Kumar, Additional Public Prosecutor has submitted that the impugned judgment of conviction and order of sentence has been passed by the learned Trial Court on the basis of materials available on record. Learned counsel for the State has submitted that the fardbeyan/statement of the victim Shyam Sundar Bhagat, recorded by Sub Inspector, J.M. Ram on 17.04.1995 at 23.45 hours at Rajkiya Hospital, Meherma, is the basis of putting the law into motion. Learned counsel for the State has further submitted that the victim Shyam Sundar Bhagat was subsequently examined by the Investigating Officer and he has supported his version as made out in the Fardbeyan. Learned counsel for the State has further submitted that the statement of the informant, who has subsequently died after 33 days of the occurrence during his treatment at PMCH, Patna, has been rightly considered by the learned Trial Court as dying declaration under section 32(1) of the Indian Evidence Act. Learned counsel for the State has further submitted that Naresh Prasad Bhagat (P.W.3), Surajmuni Bhagat (P.W.4) and Ajeet Kumar Sharma (P.W.10) have supported the prosecution case to the effect that the victim has disclosed about the occurrence and name of the accused persons to the villagers and these witnesses. Learned counsel for the State has further submitted that P.W.2 Lakshman Prasad has also supported the case of the prosecution except that he has not supported the version of the victim that the victim has disclosed the name of the assailant as Santosh Bhagat @ Santosh Kumar Bhagat and Ram Chandra @ Bonga Paswan, though the Investigating Officer (P.W.11) Md. Anwar Khan has categorically stated in paragraph-9 of his cross-examination that witness, Lakshman Pd. Sah has stated before him that Shyam Sundar Bhagat has disclosed before the witness that near the Mahua tree, Santosh Bhagat and Ram Chandra @ Bonga Paswan and one another person have surrounded him and they have taken Rs. 150/-from the pocket of Shyam Sundar Bhagat and subsequently, Ram Chandra has given a loaded country made pistol to Santosh Bhagat, from which he has made firing. 150/-from the pocket of Shyam Sundar Bhagat and subsequently, Ram Chandra has given a loaded country made pistol to Santosh Bhagat, from which he has made firing. Learned counsel for the State has further submitted that Srikant Sah (P.W.5), who has been declared hostile by the prosecution, has also stated the same fact in his statement before the Investigating Officer under section 161 Cr.P.C, which has been recorded in para-10 of the cross-examination of the Investigating Officer (P.W.11), where the witness Srikant Sah has stated that Shyam Sundar Bhagat has disclosed that Santosh Kumar Bhagat and one another person who could not be identified, caught hold of him and took Rs. 150 from his pocket and thereafter, Shyam Sundar Bhagat disclosed that as soon as he proceeded for 10 steps ahead, Santosh Bhagat, Ram Chandra @ Bonga Paswan and one unknown person followed him and thereafter Shyam Sundar Bhagat said that if you want to take my cycle, you can take cycle. In the meantime, Ram Chandra came and handed over a country made loaded pistol to Santosh Bhagat, who fired on the chest of Shyam Sunder Bhagat causing injury. Learned counsel for the State has further submitted that the injury report brought on record, has been proved by P.W.1-Dr. A.K. Dadel and marked as Ext.1 with objection, shows that the victim Shyam Sunder Bhagat has sustained the following injuries: “a. Circular lacerated wound ½” diameter depth not probed with multiple small blackish spots over skin around and area over 4” diameter over left lower costal area anteriorly. b. Lacerated wound ¾” “circular, irregular margin with loop of intestine protruding from it, depth not probed, over right iliac region within 24 hours. Nature of injury – opinion reserve till x-ray and treatment. Advice: Patient is referred to P.M.C.H, Patna for further investigation and treatment. 14. Learned counsel for the State has further submitted that the injury report prepared by Dr. A.K. Jha Suman (P.W.12) which has been brought on record as Ext.1/1, shows the following injuries: “(i) one circular wound on the left lower part of chest margin of which are incinerated. The radius of the wound is about 1cm from which blood is coming out. It seems to be the wound of entry of a firearm. A.K. Jha Suman (P.W.12) which has been brought on record as Ext.1/1, shows the following injuries: “(i) one circular wound on the left lower part of chest margin of which are incinerated. The radius of the wound is about 1cm from which blood is coming out. It seems to be the wound of entry of a firearm. (ii) One wound on the right lower part of abdomen with irregular margin through which a loop of small intestine has come out and it is also bleeding. It is seems to be the wound of exit of firearm. The radius of the wound is about 2½ cm. The injury is caused by a firearm, the details of which can be had from some ballistic expert. It is grievous in nature. The details of the injuries caused to internal viscera and its severity and extent can be had from the treating doctor at J.N.M.C.H, Bhagalpur to which the patient is being referred after first aid. Age of injury – within 12 hours” 15. Learned counsel for the State has also placed Exhibit-2, which reads as follows: “There was multiple perforation in Jejunum and also in ileum. Dissection and anastomosis done excising lay length of small gut at both places, which for perforyages the perforation. (2) Perforation two splignic flict, it was taken out during colostomy. Patient developed greenish discharge from (illegible) of entry and exit after 5th day (anastonotic leak?). (I) Patient is referred to PMCH, Patna for further treatment. Learned counsel for the State has further submitted that as per the certificate of death which has been proved and marked as Ext.5 with objection being the photocopy and Ext.6 being the original shows that the cause of death has been shown i.e., to be the old case of firearm injury. The certificate of death issued by the Deputy Superintendent of PMCH, Patna has been brought on record without objection. Learned counsel for the State has further submitted that the Investigating Officer has also admitted during deposition that the victim was re-examined at Bhagalpur on 24.04.1995 and he has reiterated his statement made in the fardbeyan. The certificate of death issued by the Deputy Superintendent of PMCH, Patna has been brought on record without objection. Learned counsel for the State has further submitted that the Investigating Officer has also admitted during deposition that the victim was re-examined at Bhagalpur on 24.04.1995 and he has reiterated his statement made in the fardbeyan. Learned counsel for the State has further submitted that the evidence of P.W.3, P.W.4 and P.W.10 are consistent to the fardbeyan of the victim, who subsequently died after 33 days on 20.05.1995 during treatment at Patna, as such learned trial court has rightly relied upon the statement of the victim as admissible under section 32(1) of the Indian Evidence Act for holding these appellants guilty under Sections 392/397 and also under Section 302 of the Indian Penal Code. The same does not warrant any interference by this Court. Learned counsel for the State has thus submitted that the appeal is devoid of merit and as such it is fit to be dismissed. 16. Heard, learned counsel for the appellant Mr. Manoj Kumar Sah and counsel for the State Mr. Pankaj Kumar, Additional Public Prosecutor and perused the materials brought on record i.e., First Information Report, framing of charge, evidence of 13 prosecution witnesses, 6 prosecution exhibits, statement of the accused recorded under Section 313 Cr.PC as well as the impugned judgment of conviction and order of sentence. 17. While re-appreciating the evidence, this Court has minutely scanned the prosecution evidence on record. It appears that the prosecution case has been initiated on the fardbeyan of the victim Shyam Sunder Bhagat at Rajkiya Hospital, Meherma recorded by Sub-Inspector of Police. The said victim was referred to Bhagalpur and from there, the injured was referred to PMCH, Patna and ultimately after 33 days, the victim died on 20.05.1995. The Injury report have been brought on record as Ext.1, Ext.1/1 and 2 and death certificate has been brought on record as Ex.5 (with objection) and same as Ext.6 issued by the Deputy Superintendent of P.M.C.H, Patna. From perusal of the record, it appears that the postmortem report has not been brought on record, but death has been proved as the death certificate has been brought on record as Ext.6. From evidence brought on record, it appears that P.W. 1 Dr. A. K. Dadel and P.W. 12 Dr. From perusal of the record, it appears that the postmortem report has not been brought on record, but death has been proved as the death certificate has been brought on record as Ext.6. From evidence brought on record, it appears that P.W. 1 Dr. A. K. Dadel and P.W. 12 Dr. Abhay Kumar Jha Suman have examined the victim and they have found the injury caused by fire arm, which is grievous in nature. From perusal of the record, it appears that the victim remained under treatment for 33 days and ultimately died on 20th May, 1995. It appears that the injury caused upon the victim which has been found to be grievous in nature by the doctor comes within Section 320 I.P.C, which reads as under: Section 320: Grievous hurt.-The following kinds of hurt only are designated as “grievous”:- First-Emasculation. Secondly-Permanent privation of the sight of either eye. Thirdly-Permanent privation of the hearing of either ear. Fourthly-Privation of any member or joint. Fifthly-Destruction or permanent impairing of the powers of any member or joint. Sixthly-Permanent disfiguration of the head or face. Sevently-Fracture or dislocation of a bone or tooth. Eightly-Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow the ordinary pursuits. 18. From perusal of evidence of Lakshman Pd. Sah (P.W.2), who has been declared hostile by the prosecution, it appears that he has supported the entire prosecution case except the disclosure of name of accused made before him by the victim, Shyam Sundar Bhagat, though names of accused persons are disclosed by him (P.W.2, Lakshman Pd. Sah) before the Investigating Officer under Section 161 Cr. P. C, i.e., the name of the assailant as Santosh Bhagat @ Santosh Kumar Bhagat and Ram Chandra @ Bonga Paswan. This fact has been confronted to the Investigating Officer, P.W. 11 Md. Anwar Khan, who has categorically stated in paragraph 9 of his cross-examination that witness Lakshman Prasad Sah has disclosed the name of the assailant as disclosed by the victim to him under Section 161 Cr. P. C. As such, this Court is of the opinion that the evidence of Lakahman Pd. Sah will not come as a rescue for the appellants, as he has disclosed the name of the assailant before the Investigating Officer, P.W.11, Md. P. C. As such, this Court is of the opinion that the evidence of Lakahman Pd. Sah will not come as a rescue for the appellants, as he has disclosed the name of the assailant before the Investigating Officer, P.W.11, Md. Anwar Khan on the basis of disclosure made by the victim. The evidence of P.W. 3, Naresh Prasad Bhagat, P.W. 4, Surajmuni Bhagat P.W. 8 Manoj Kumar Bhagat and P.W. 10 Ajeet Kumar Sharma are consistent to the prosecution case that victim Shyam Sundar Bhagat has disclosed the name of the perpetrator of the crime as Santosh Bhagat and Ram Chandra @ Bonga Paswan before them and before the villagers. The evidence of Srikant Sah, P.W. 5, who has been declared hostile by the prosecution has also supported the prosecution case as made out in the FIR but has not taken the name of the assailant during trial as P.W. 5 in the Court. When this fact has been confronted to the Investigating Officer, P.W. 11 Md. Anwar Khan he has categorically stated in para -10 of his cross-examination that Srikant Sah has also disclosed the name of the assailant as heard from victim Shyam Sundar Bhagat in his statement before him recorded under Section 161 Cr. P. C. Thus, considering such consistent evidence and supported by the medical evidence of P.W. 1 Dr. A. K. Dadel and P.W. 12 Dr. Abhay Kumar Jha Suman, we are of the opinion that evidence of Ramesh Panjiara P. W. 6, who has been tendered by the prosecution and evidence of Lakshmi Kant Bhagat @ Kamta Prasad Bhagat, P.W. 7 who has been declared hostile by the prosecution will not come as a rescue for the appellants. Jawahar Bhagat (P.W.13) a co-villager has also supported the case of the prosecution. 19. The judgment relied upon by the learned counsel for the appellants is not applicable in the present case as the fact of the present case and the case of Kapildeo Mandal (supra) are different. In the case of Kapildeo Mandal, the medical evidence completely ruled out the injury claimed to have been inflicted as per the eye witness. 19. The judgment relied upon by the learned counsel for the appellants is not applicable in the present case as the fact of the present case and the case of Kapildeo Mandal (supra) are different. In the case of Kapildeo Mandal, the medical evidence completely ruled out the injury claimed to have been inflicted as per the eye witness. In that case, it has been alleged that the injury was caused by fire arm injury but no pellet or cartridge were found on the body of the deceased and as per the medical evidence the victim died because of head injury but no medical evidence was produced in that regard. As such, the Apex Court acquitted the accused persons. The fact of the present case are different. In the present case, it has been alleged that the accused persons have initially robbed the informant Shyam Sundar Bhagat and left him. When he proceeded for 100 yard with his bicycle, he was again called and stopped, who offered his bicycle also to the accused persons. In the meantime Ram Chandra @ Bonga Paswan after loading country made pistol, handed over to Santosh Bhagat, who fired on the chest of Shyam Sunder Bhagat,who sustained grievous injury and ran toward village-Balia and fell on the door of Lakshman Sah, where the villagers and others have assembled. He disclosed the name of the assailant as Santosh Bhagat and Ram Chandra @ Bonga Paswan with one unknown person. The victim was taken on a cot to the house of his brother Surajmuni Bhagat (P.W.4) where his uncle Naresh Prasad Bhagat, P.W. 3 was called and thereafter he again disclosed the name of the assailant as Santosh Bhagat and Ram Chandra @ Bonga Paswan and one unknown person giving complete description of occurrence. Thereafter, victim was taken to Primary Heath Center, Meherma, where he was initially examined by Doctor A. K. Jha Suman who has proved the injury report which has been brought on record as Ext. 1/1 and who referred him to Bhagalpur. There he was examined by P. W. 1, Dr. A. K. Dadel, who has also proved the injury report as Ext.-1 and the nature of injury is grievous vide Ext.-1/1. Thereafter, the victim was referred to Patna for his treatment (Ext.-2) and in course of treatment he died on 20th May, 1995. 1/1 and who referred him to Bhagalpur. There he was examined by P. W. 1, Dr. A. K. Dadel, who has also proved the injury report as Ext.-1 and the nature of injury is grievous vide Ext.-1/1. Thereafter, the victim was referred to Patna for his treatment (Ext.-2) and in course of treatment he died on 20th May, 1995. Prior to that, the victim Shyam Sunder Bhagat was also examined by the Investigating Officer at Bhagalpur on 24th April, 1995, where he has reiterated his statement as made out in the Fardbeyan. 20. The statement of the injured, Shyam Sundar Bhagat has rightly been considered by learned trial court as legally admissible evidence under Section 32(1) of the Evidence Act. Thereafter the injured was not available because of his death after 33 days during treatment at Patna on 20th May, 1995. 21. From the discussions as made out above, we are of the opinion that learned trial court has rightly found the appellants guilty under Sections 392 and 397 of I.P.C. So far conviction of the appellants under Section 302 IPC is concerned, in absence of any medico legal evidence brought on record in the form of postmortem report coupled with non-examination of the medical officer, who has conducted the autopsy on the dead body of the deceased, it will not be proper in absence of any evidence regarding cause of death of the deceased to hold the conviction of the appellants under Section 302 of the I.P.C. It has been held in the case of Akhtar & others Vrs. State of Uttaranchal reported in (2009) 13 SCC 722 , para 21 thereof is quoted here under: “It has been argued that non-examination of the medical officers concerned is fatal for the prosecution. However, there is no denial of the fact that the defence admitted the genuineness of the injury reports and the post-mortem examination reports before the trial court. So the genuineness and authenticity of the documents stands proved and shall be treated as valid evidence under Section 294 CrPC. It is settled position of law that if the genuineness of any document filed by a party is not disputed by the opposite party it can be read as substantive evidence under sub-section(3) of Section 294 CrPC. So the genuineness and authenticity of the documents stands proved and shall be treated as valid evidence under Section 294 CrPC. It is settled position of law that if the genuineness of any document filed by a party is not disputed by the opposite party it can be read as substantive evidence under sub-section(3) of Section 294 CrPC. Accordingly, the post-mortem report, if its genuineness is not disputed by the opposite party, the said post-mortem report can be read as substantive evidence to prove the correctness of its contents without the doctor concerned being examined”. Reliance is also placed upon a judgment of the Apex Court in the case of Suraj & another Vrs. State of Uttar Pradesh reported in (2010) 7 SCC 515 , para 8 to 13. In the said case, the medico legal evidence has not been brought on record and the doctor had turned hostile. He had not supported the prosecution case. The Hon’ble Apex Court after perusal of the record has found that though, the postmortem report has been brought on record, but the same has not been supported by the doctor, who has been declared hostile by the prosecution. The eyewitness's account were consistent and there is no material contradiction in their evidence to discredit their truthfulness. But in the present case, the medico legal evidence in the nature of postmortem itself has not been bought on record either under Section 294 of the Cr.P.C or by way of examination of the Medical Officer, who has conducted the postmortem. As such, we do not find any evidence regarding cause of death. 22. Considering the oral testimony of the witnesses and in view of the injury report which has been brought as Exts. -1, 2 and 1/1 and in the light of the judgment of Parusuraman Alias Velladurai & others Vrs. As such, we do not find any evidence regarding cause of death. 22. Considering the oral testimony of the witnesses and in view of the injury report which has been brought as Exts. -1, 2 and 1/1 and in the light of the judgment of Parusuraman Alias Velladurai & others Vrs. State of Tamil Nadu reported in 1992 Supp (1) SCC 429 as an offence has been committed by the appellants which comes within the purview of Section 326 of the I.P.C being grievous hurt caused by deadly weapon (fire arm ), as envisaged under Section 320 I.P.C. Victim has remained under treatment for more than 20 days in bodily pain, as such we are of the opinion that the case of the appellants falls under Section 326 of IP.C as grievous hurt has been caused upon Shyam Sunder Bhagat by dangerous weapon, which is fire arm in this case. Under the aforesaid circumstances, we are interfering with the part of the judgment where the appellants has been held guilty under Section 302 I.P.C by setting aside the same and holding the conviction of the appellants under Section 326 of the I.P.C. Accordingly, the conviction of the appellants under Section 392/397 is upheld. Conviction of the appellants under Section 302 I.P.C is set aside. They are convicted under Section 326 of the Indian Penal. 23. So far sentence to be imposed under Section 326 I.P.C is concerned, the learned trial court has awarded Rigorous Imprisonment for 10 years for the offence committed and punishable under Sections 392/397. The alleged date of occurrence i.e., 17.4.1995 and age of the appellants in the year 1995 was 21 years and 24 years. Considering the young age of the appellants at the time of conviction and the rigor of trial and proceedings they have faced for approximately 24 years till now, we are of the opinion that the sentence awarded by the learned trial court under section 392 /397 I.P.C should be reduced to R.I. for 7 years. So far the sentence for offence committed and punishable under Section 326 IPC is concerned, we are of the opinion that Rigorous Imprisonment for 7 years would meet the ends of justice. The period already served by the appellants shall be set off under section 428 Cr.P.C. Accordingly, the appeal is partly allowed as discussed above. So far the sentence for offence committed and punishable under Section 326 IPC is concerned, we are of the opinion that Rigorous Imprisonment for 7 years would meet the ends of justice. The period already served by the appellants shall be set off under section 428 Cr.P.C. Accordingly, the appeal is partly allowed as discussed above. The appellants, who are on bail, their bail bonds are hereby cancelled and they are directed to surrender before the court below for serving rest of the sentence as indicated above. 24. Let the lower court record along with copy of the judgment of this Court be sent to the Court below.