JUDGMENT : Ratnaker Bhengra, J. Heard learned counsel for the appellants and the learned counsel for the State. 2. The appellants have filed this appeal against the judgment of conviction dated 22nd February 1999 and the order of sentence dated 24th February 1999 passed by the 2nd learned Additional Sessions Judge-Gumla in connection with Sessions Trial No. 294 of 1996 holding the appellants guilty for the offence under section 302/149 of the Indian Penal Code and sentenced them to undergo RI for life. 3. The prosecution case was instituted on the basis of fardbeyan dated 29.07.1996 of the informant PW-3 Rajmati Kumari stating therein that she along with her father Ramsevak and cousin brother Ram Bilas Sahu went to Mahuwatoli Bazar for selling Mahuwa at 04:00 pm on 28.7.1996. At the bazar a dispute took place between her cousin brother Ram Bilas Sahu and the appellants. At 06:00 p.m. while she along with her father and cousin brother Ram Bilas were returning to their house and at 06:30 p.m. when they were on the kachha road some distance from Deepatoli on north side, all the appellants were standing there with hockey sticks started assaulting Ram Bilas Sahu. When her father went to rescue him, the appellants also assaulted him by fist and slaps and also by hockey sticks and threw her father on the ground and started pressing his chest. Thereafter, appellants dragged her father in the field, and assaulted him and fled away. Informant came to her house and informed her mother. Then, they came to Deepatoli and with the help of people of Deepatoli carried her father on cot to her house. Informant further stated that at that time her father was alive and died after some time in the house. 4. On the basis of fardbeyan of the informant Ghaghra PS case no. 63/1996 dated 29.07.1996, was registered against the appellants under section 147/302 of IPC. After investigation, charge-sheet was submitted and cognizance of the offence was taken and the case was committed to the Court of Sessions. Charges were framed against the appellants under section 302/149 of IPC and trial was held. At the conclusion of trial appellants were convicted and sentenced as aforesaid, hence, this appeal. 5. In order to prove its case, the prosecution has examined altogether nine witnesses out of whom PW-3 Rajmati Kumari, is the informant of the case. Charges were framed against the appellants under section 302/149 of IPC and trial was held. At the conclusion of trial appellants were convicted and sentenced as aforesaid, hence, this appeal. 5. In order to prove its case, the prosecution has examined altogether nine witnesses out of whom PW-3 Rajmati Kumari, is the informant of the case. PW-1 Malti Devi and PW-2 Hirain Devi, are the wives of the deceased; PW-6 Kalawati Kumari is the another daughter of the deceased, PW-5 Ram Bilas Sao is the nephew of the deceased; PW-4 Ishwar Sahu and PW-7 Lal Mohan Sao are the witnesses to the inquest report; PW-8 Bindeshwari Sharma is the Investigating officer of the case and PW-9 Bal Krishna Singh,who is an advocate clerk. 6. PW-3 Rajmati Kumari, the informant of this case and she had stated in her evidence that on 28.7.1996 they had gone to Mahuwatoli bazar for selling Mahuwa. In the bazar a quarrel had taken place with her brother and the appellants. At 6 p.m. when they were returning to their house and when they reached near Deepatoli, appellants surrounded them and they began to assault her brother. When her father tried to rescue, all the accused persons left his brother and began to assault her father by hockey sticks and fists. They threw her father on the ground and pressed his chest by leg. They raised halla but no one came. Thereafter, they dragged her father to the field. She along with her brother came to the village and informed her mother and sister. They returned to the place of occurrence and informant's father was carried on cot to the house. Informant further stated that his father was gasping then he died. 7. PW-5 Ram Bilas Sao stated that on the date of occurrence he along with his uncle Ramsevak Sahu and sister Raj Mati Kumari went to Mahuwatoli Bazar. He demanded Rs. 10 from one Jitia Gope in the market which he had given to him earlier as loan but he did not return the same and thereafter quarrel took place between him and the accused persons. At about 07:00 p.m. he along with his uncle and sister were returning to their house. When they reached on kaccha road from Deepatoli all the accused persons surrounded them. They assaulted him with fist and hockey sticks. At about 07:00 p.m. he along with his uncle and sister were returning to their house. When they reached on kaccha road from Deepatoli all the accused persons surrounded them. They assaulted him with fist and hockey sticks. When his uncle came to rescue him, they also assaulted him and brought him in the field of bodi. Mahli Oraon pressed his neck by hockey stick, Lawrance Kujur pressed the chest of his uncle after riding over the same. On hulla, no one has come. Thereafter the went to his house and informed his family members who came to the place of occurrence and found his uncle senseless. He carried his uncle to the house on a cot where he died. 8. PW-1 Malti Devi, PW-2 Hirain Devi, and PW-6 Kalawati Kumari are hearsay witnesses. 9. PW-4 Ishwar Sahu and PW-7 Lal Mohan Sao are witnesses to the inquest report. Both PW-4 and PW-7 have proved their signature on the inquest report which were marked as Ext.-2 and Ext.-2/1 respectively. 10. PW-9 Bal Krishna Singh is an advocate clerk and he has proved the postmortem report of the deceased which is marked as Ext.-6. 11. PW-8 Bindeshwari Sharma is the Investigating officer of this case. Investigating officer has proved endorsement over the fardbeyan and the formal FIR which are marked as Ext.-3 and Ext.-4 respectively. Investigating officer has stated that the place of occurrence is kaccha road nearly 800 yards north from Deepatoli and in the East of kaccha road Bodi field of Kiyari Oraon. He has further stated that village of informant is half kilometer from the place of occurrence. Arguments advanced on behalf of the appellants: 12. The learned counsel for the appellant submitted that there is no any specific averment with regard to assault and injury sustained by the deceased. PW3 and PW-5 who claimed to be the eyewitness, but their testimony is inconsistent with regard to assault as PW-5 in his statement under section 161 Cr.P.C. had not stated before the IO that Mahali Oraon had pressed the neck of the deceased with hockey stick which is evident from the statement of the investigating officer PW-8, at para 10. PW3 and PW-5 who claimed to be the eyewitness, but their testimony is inconsistent with regard to assault as PW-5 in his statement under section 161 Cr.P.C. had not stated before the IO that Mahali Oraon had pressed the neck of the deceased with hockey stick which is evident from the statement of the investigating officer PW-8, at para 10. Further, PW-3 has stated that the neck of the deceased was pressed by the hockey stick, but, as per the medial report, no ligature mark was found over the neck of the deceased which creates doubt over the manner of occurrence and the evidence of the eyewitness. 13. The learned counsel for the appellant further submitted that learned trial court had not taken into consideration that as per the FIR the 1st part of occurrence took place at Mahuwatoli Bazar and P.W.-3 at para 6 stated this fact that at the time of quarrel in the market 200-250 persons were there but prosecution had failed to brought any independent witness in its support neither disclosed the name of the persons who brought the injured from the place of occurrence and hence manner of occurrence is surrounded by grave suspicion. 14. The learned counsel for the appellant further submitted that place of occurrence as stated by the informant P.W.-3 is also doubtful as investigating officer P.W.-8 at para 8 stated that no blood was found at the alleged place of occurrence (i.e. in Bodi field) and as per the inquest report blood was found in the mouth of the deceased. Further the banyan of the injured was submersed with blood and same was handed over to police but there is no any seizure of banyan. 15. Learned counsel for the appellant further submitted that there is direct allegation of smashing the chest of the deceased by the accused persons but the trial court had not appreciated the medical report of the deceased and the manner of assault as such neither the ribs nor spleen was found ruptured. If the chest will be pressed or smashed by some person, then at first the ribs will fracture, but no such injury was found; only injury was found that is due to compression by hard and blunt object. 16. If the chest will be pressed or smashed by some person, then at first the ribs will fracture, but no such injury was found; only injury was found that is due to compression by hard and blunt object. 16. Learned counsel for the appellant further submitted that learned court had not appreciated that no such question was put to the appellants under section 313 Cr.P.C that they had pressed the neck of the deceased with hockey stick due to which death was caused. Learned counsel has cited the case of Din Bandhu Munda versus State of Orissa, 1986 East. Cr C 277 (Orissa), wherein it was held that the circumstances appearing in the evidence against an accused not put to him while he is under examination by the trial court thereby causing prejudice to him cannot be used against him. Learned counsel has also relied on judgment passed passed in case of Subhas Oraon @ Tehna versus State of Bihar (Now Jharkhand), 2005 (1) JLJR 115 , wherein it was held that circumstances which were not put to the accused in their examination under section 313 Cr.P.C cannot be used against him. 17. Learned counsel for the appellant further submitted that the learned trial court had failed to consider that as per the Modi's Jurisprudence of medical science it is found that in the case of strangulation there is obvious that the ligature mark appears around the neck but in the case in hand the deceased had no ligature mark found around the neck which itself creates doubt over the trustworthy of the eye witness who testified that the accused pressed the neck of the deceased with hockey and due to which the death was caused. Learned counsel further submitted that as per Modi's Jurisprudence that in case of pressing neck the person dies instantaneously which is also explained by Modi in term of Fatal Period-"death is almost instantaneously, if the cervical vertex bone is fractured as in Judicial hanging. It may occur instantaneous nearly or rapidly in case of Asphyxia, but usually in five to eight minutes, if the blocking of air passage is partially only. In this regard learned counsel has placed reliance over Modi's Jurisprudence Old Edition page-144 and for New edition page- 521. 18. It may occur instantaneous nearly or rapidly in case of Asphyxia, but usually in five to eight minutes, if the blocking of air passage is partially only. In this regard learned counsel has placed reliance over Modi's Jurisprudence Old Edition page-144 and for New edition page- 521. 18. Learned counsel for the appellant further submitted that prosecution case is that deceased was initially assaulted at the bodi field and from there informant (P.W. 3) came to her house which is nearby 500 meters from the place of occurrence and, thereafter, informant returned back alongwith her mother and sister to the place of occurrence and brought the injured over cot and till then the injured was alive and also had water. Thereafter, injured hiccupped and subsequently died. Henceforth, the injured survived a considerable period of time, and the same can be calculated by the coerce of transaction, which is completely contrary to the preposition led in Modi's jurisprudence where he described the fatal period in case of strangulation and in this situation the consideration of the learned trial court about the cause of death is completely beyond the legal proposition. 19. Learned counsel for the appellant further submitted that prosecution in very casual manner brought on record the Postmortem report and did not even care to examine the doctor who had conducted Postmortem examination of the deceased and was the maker of the Postmortem report. Learned counsel has relied on judgment passed in Pankaj Bibhuti & Ors. versus State of Jharkhand, 2005(4) East Cr C 310 (Jhr), at paragraph 14 wherein it was propounded that " ….... in the absence of the examination of the maker of the postmortem report the opinion given in the said report regarding cause of death cannot be made the basis of conviction …....”. Learned counsel has also cited judgment delivered by Hon'ble Jharkhand High Court in case of Sowan Kisku & Ors. in the absence of the examination of the maker of the postmortem report the opinion given in the said report regarding cause of death cannot be made the basis of conviction …....”. Learned counsel has also cited judgment delivered by Hon'ble Jharkhand High Court in case of Sowan Kisku & Ors. versus State of Bihar, 2006 (2) East Cr C 99 (Jhr), which is extracted herein below: “A perusal of section 60 of the Evidence Act shows that in all cases wherever it refers to an opinion or to the grounds on which that opinion is held, it must be the evidence of the person who holds that opinion on this ground and the prosecution having not examined the doctor and not giving an opportunity to the accused to cross-examine him, cannot rely upon the evidence of PW 11 and mark Ext.5. the post-mortem certificate through him. It is needless to mention that the doctor who conducted autopsy and expressed opinion in the post-mortem certificate, was not examined and therefore the compounder, PW 11, is not a competent witness to speak deceased about the cause of death; more so when he has admitted in his cross-examination that he was not present at the time of postmortem and that he also did not know about the opinion expressed by the doctor who conducted autopsy. At this stage we wish other to make an useful reference to Section 293 Cr.PC which contemplates that any document purporting to be a report under the hand of a Government Scientific Expert to whom the section applies, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding, may be used as evidence in any inquiry, trial or other proceeding. Sub-section (4) of Section 293 classifies the reports of the Scientific Experts. Postmortem report is not one of those documents which falls under sub-section (4) of Section 293, Cr PC. 20. Learned counsel for the appellant further submitted that from the above facts it is clear that prosecution had not been able to prove the cause of death of the deceased and the presumption of death by the court on the account of injuries suffered by the deceased is against the legal ambit. 20. Learned counsel for the appellant further submitted that from the above facts it is clear that prosecution had not been able to prove the cause of death of the deceased and the presumption of death by the court on the account of injuries suffered by the deceased is against the legal ambit. Further the advocate clerk (P.W.-9) is not a competent witness to speak about the cause of death, more so he had admitted in his cross examination that he had not got an opportunity to work with the doctor who had conducted the postmortem. Prosecution had failed to examine the doctor who conducted the postmortem examination of the deceased under such finding with regard to cause of death cannot be established and the reliance may be placed in the case of Raju Mahto verses The State of Jharkhand, 2021 (3) East Cr C 373 (Jhr), at paragraph 12, wherein it was held that in a criminal trial what is important is to prove the cause of death and for that purpose examination of the doctor who has conducted the postmortem is necessary. Arguments on behalf of the State: 21. Mr. Vineet Kumar Vashistha, the learned Special P.P. has relied on the evidence of PW-3 Rajmati Kumari the informant of the case. Informant deposed that on 28.7.1996 they had gone to Mahuwatoli bazar for selling Mahuwa. In the bazar a quarrel had taken place with her cousin brother PW-5 and the appellants. Thereafter, at 6 p.m. when they were returning to their house all the appellants surrounded them and appellants were armed with hockey sticks and they began to assault her brother. When her father tried to rescue, all the accused persons left his brother and began to assault her father by hockey sticks and fists. They threw her father on the ground and pressed his chest from the leg. Informant raised halla but no one had come. Thereafter, appellant dragged her father to the field. She along with her brother came to the village and informed her mother and sister. They all went to the place of occurrence and carried him on cot to the house where he died. The learned Spl. PP further submits that informant has identified the accused persons in Court. The learned Spl. Thereafter, appellant dragged her father to the field. She along with her brother came to the village and informed her mother and sister. They all went to the place of occurrence and carried him on cot to the house where he died. The learned Spl. PP further submits that informant has identified the accused persons in Court. The learned Spl. PP then referred to the evidence of PW-5 Ram Bilas Sao and submitted that on the date of occurrence PW-5 along with his uncle Ramsevak Sahu and sister Raj Mati Kumari had gone to Mahuwatoli Bazar. He demanded Rs. 10 from one Jitia Gope in the market which he had given to him earlier but he did not return the same and thereafter quarrel took place between him and the accused persons. At about 07:00 p.m. he along with his uncle and sister were returning to their house. When they reached on kaccha road near Deepatoli all the accused persons surrounded them. They assaulted him with fist and hockey sticks. When his uncle came to rescue him, they also assaulted him and dragged him in the field of bodi. Mahli Oraon pressed his neck by hockey stick and Lawrance Kujur pressed the chest of his uncle, riding over him. On halla, no one had come. Thereafter, they went to the house and informed the family members, who came to the place of occurrence and found his uncle senseless. They carried his uncle to the house on a cot where he died. The learned Spl. PP further submitted that PW-5 had also identified the accused persons during trial. Learned counsel further submits that manner of occurrence is fully proved by the aforesaid two eye-witnesses and the Investigating Officer has proved the place of occurrence and the inquest report also proves that dead body was found at the place of occurrence. 22. Learned Spl. PP has relied in the case of “Kuriya and another v. State of Rajasthan, (2012)10 SCC 433 , in paragraph no. 34 which reads as under: “34. The testimony of an eyewitness, if found truthful, cannot be discarded merely because the eye-witness was a relative of the deceased. Where the witness is wholly unreliable, the court may discard the statement of such witness, but ...”. 23. Finally on the point of oral evidence being considered over medical evidence, learned counsel has cited from Kuriya (supra) in paragraph no. Where the witness is wholly unreliable, the court may discard the statement of such witness, but ...”. 23. Finally on the point of oral evidence being considered over medical evidence, learned counsel has cited from Kuriya (supra) in paragraph no. 19 which reads as under: “19. This Court has consistently taken the view that except where it is totally irreconcilable with the medical evidence, oral evidence has primacy. In Abdul Sayeed v. State of M.P. this Court held as under: “38. In State of U.P. v. Hari Chand this Court reiterated the aforementioned position of law and stated that: '13. …. In any event unless the oral evidence is totally irreconcilable with the medical evidence, it has primacy.' 39. Thus, the position of law in cases where there is a contradiction between medical evidence and ocular evidence can be crystallised to the effect that though the ocular testimony of a witness has greater evidentiary value vis-a-vis medical evidence, when medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of the evaluation of evidence.” Reasons 24. We have heard learned counsel for both the parties, perused the record and gone into the facts and circumstances of the case. All the four appellants were convicted under section 302/149 IPC for committing murder of Ram Sevak Sao, who was informant's father. On the day of occurrence Ram Sevak Sao alongwith his daughter PW-3 Rajmati Kumari (Informant) and his nephew PW-5 Ram Bilas Sao, were returning home from Mahuwatoli bazar. As soon as, they reached near Deepatoli, all the appellants surrounded them and started assaulting PW-5 Ram Bilas Sao. Then Ram Sevak Sao, tried to rescue his nephew, but appellants left PW-5 and started assaulting Ram Sevak Sao. Informant PW-3 Rajmati Kumari and PW-5 Ram Bilas Sao, have been projected as eye witness to the assault on the deceased. Informant has stated in her evidence that appellants threw her father on the ground and assaulted his father with hockey stick and trampled the chest of his father and dragged her father to the bodi (yardlong bean) field. Informant PW-3 Rajmati Kumari and PW-5 Ram Bilas Sao, have been projected as eye witness to the assault on the deceased. Informant has stated in her evidence that appellants threw her father on the ground and assaulted his father with hockey stick and trampled the chest of his father and dragged her father to the bodi (yardlong bean) field. The other eye witness PW-5 Ram Bilas Sao, has stated that appellants threw his uncle on the ground and assaulted him and thereafter, took him to the east side in the bodi (yardlong bean) field and in the field Mahali Oraon pressed his neck with hockey stick and Lawrance Kujur trampled the chest. 25. Further, doctor, who had conducted the postmortem examination on the dead body of the deceased was not examined by the prosecution. In this regard, at paragraph-8 of the impugned order, learned trial court had noted that ample opportunity was given to the prosecution and warrant of arrest was also issued through S.P, Hazaribagh, but, doctor did not turn up for examination. In absence of examination of doctor, postmortem report of the deceased was identified by PW-9, who is an Advocate clerk, and was marked as Ext.-6. In P.M. Report, doctor had opined the cause of death to be asphyxia due to strangulation of neck. Here, it is also pertinent to note that informant PW-3 and PW-5 Ram Bilas Sao, have stated in their evidence that they had gone to the house from the place of occurrence and informed the matter at the house and thereafter, PW-3 and PW-5 alongwith PW-1, PW-2 and PW-6 returned back to the place of occurrence and carried the deceased on cot to the house and at that time deceased was gasping and deceased died in the house. Hence, as per the evidence of PW-1, PW-2, PW-3, PW-5 and PW-6, deceased was alive, when deceased was carried to house on the cot and he died in his house itself. 26. In Sowan Kisku(supra), this court had noted that doctor who had conducted the autopsy and expressed opinion in the postmortem certificate was not examined and hence, compounder was not a competent witness to speak about cause of death of the deceased. 26. In Sowan Kisku(supra), this court had noted that doctor who had conducted the autopsy and expressed opinion in the postmortem certificate was not examined and hence, compounder was not a competent witness to speak about cause of death of the deceased. In this case, this court also held that Section 293 Cr.P.C. which contemplates that any document purporting to be a report under the hand of a Government Scientific Expert to whom the section applies, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding, may be used as evidence in any inquiry, trial or other proceeding. Sub-section (4) of Section 293 classifies the reports of the Scientific Experts. Postmortem report is not one of those documents which falls under subsection (4) of Section 293, Cr PC. Further, in Raju Mahto (supra), this court had held that in a criminal trial it is important to prove the cause of death and for that purpose examination of the doctor who has conducted the postmortem is necessary. 27. In the case in hand, doctor who had conducted the Postmortem examination on the dead body of the deceased was not examined, though doctor had opined in the P.M. report that cause of death of the deceased was asphyxia due to strangulation of neck. Moreover, there is unambiguous deposition of PW-3 and PW-6, who are the daughters of the deceased and PW-1 and PW-2, who are the two wives of the deceased that deceased was alive when he was carried to house and deceased died in the house itself, leads to the conclusion that cause of death of the deceased has not been proved beyond reasonable doubt. In Sowan Kisku(supra) and Raju Mahto (supra), this court has reiterated that in a criminal trial it is important to prove the cause of death and for this examination of the doctor who has conducted the postmortem is necessary but the doctor was not examined in the case in hand. 28. Hence, prosecution has not been able to prove charge under section 302/149 IPC against the appellants beyond reasonable doubt. 29. Accordingly, impugned judgment of conviction dated 22nd February 1999 and the order of sentence dated 24th February 1999 passed by the 2nd learned Additional Sessions Judge-Gumla in connection with Sessions Trial No. 294 of 1996, cannot sustain and are hereby set aside. 29. Accordingly, impugned judgment of conviction dated 22nd February 1999 and the order of sentence dated 24th February 1999 passed by the 2nd learned Additional Sessions Judge-Gumla in connection with Sessions Trial No. 294 of 1996, cannot sustain and are hereby set aside. Appellants are discharged from the liability of the bail bond. 30. Accordingly, both the Criminal Appeals are allowed.