JUDGMENT : Rongon Mukhopadhyay, J. Heard Dr. S.K. Chaturvedi, learned counsel for the appellants and Mr. Manoj Kumar Mishra, learned A.P.P. for the State. 2. This appeal is directed against the judgment and order of conviction and sentence dated 07.04.1999 (sentence 2nd passed on 08.04.1999) passed by Sri S.N. Singh, learned Additional Sessions Judge, Gumla in S.T. No. 39 of 1998, whereby and whereunder, the appellants have been convicted for the offence punishable u/s 302/34 of the Indian Penal Code and have been sentenced to undergo R.I. for life. 3. The fardbeyan of Sohrai Turi was recorded on 25.09.1997, in which, it has been stated that on 24.09.1997 his co-villager Chhote Turi came to his house at 3:00 P.M. and asked his brother to accompany him to Jethli Tanger Forest to bring wood. His brother went away with Chhote Turi with a tangi. It has been stated that after sometime the informant saw Loya Turi and Delsa Turi following them. At about 5:00 P.M. Tribhuwan Nagesia came to his house and disclosed that the brother of the informant namely, Ritbhanjan Turi was in the house of Manbodh Singh and blood was oozing out from his mouth. At this, the informant along with his co-villagers Sukhu Turi, Jitan Turi, Ram Lakhan Turi and Desru Turi and others went to the house of Manbodh Singh and saw Ritbhanjan Turi lying on the veranda writhing in pain. Ritbhanjan Turi had disclosed that when the accused persons reached the Jungle they had slammed him on the ground and started assaulting him with fists and legs after which Chhote Turi pressed his neck while Loya and Delsa climbed on him and pressed him. Ritbhanjan Turi had further stated that he had become unconscious and after regaining consciousness he had somehow managed to reach the house of Manbodh Singh. Due to paucity of funds the informant could not get his brother treated and today i.e. 25.09.1997 he had succumbed to his injuries. Based on the aforesaid allegations Raidih P.S. Case No. 43 of 1997 was instituted against Chhote Turi, Loya Turi and Delsa Lohra for the offence u/s 302/34 of the IPC. On completion of investigation charge sheet was submitted and after cognizance was taken the case was committed to the Court of Sessions where it was registered as S.T. No. 39 of 1998. On completion of investigation charge sheet was submitted and after cognizance was taken the case was committed to the Court of Sessions where it was registered as S.T. No. 39 of 1998. Charge was framed against the accused u/s 302/34 of the IPC which was read over and explained to them in Hindi to which they pleaded not guilty and claimed to be tried. 4. The prosecution has examined as many as twelve witnesses in support of its case. 5. P.W.1 (Sukhu Turi) has stated that it was a Wednesday and he was having his meals when Sohrai Turi came and told him that his brother Ritbhanjan is injured and asked him to accompany him. After having rice he went to the house of Manbodh Singh where he found Ritbhanjan unconscious in an injured state. Nobody had disclosed as to who was the assailant. In cross-examination, he has deposed that several villagers had gathered by the time he has reached the house of Manbodh Singh. 6. P.W.2 (Jitan Turi) has stated that he had gone to the house of Manbodh Singh on being called by Sohrai Turi where he found Ritbhanjan Turi dead. In cross-examination, he has deposed that he does not know as to how the incident had occurred. 7. P.W.3 (Jhulu Turi) has proved his signature on the inquest report which has been marked as Exhibit-1. 8. P.W.4 (Dharam Turi) has proved his signature on the inquest report which has been marked as Exhibit-1/1. 9. P.W.5 (Ramlagan Turi), P.W.6 (Dasru Turi) and P.W.7 (Maharang Turi) did not support the case of prosecution and they were declared hostile by the prosecution. 10. P.W.8 (Dr. Hemant Kumar) was posted as a Civil Assistant Surgeon at Sadar Hospital, Gumla and on 26.09.1997 he had conducted autopsy on the dead body of Ritbhanjan Turi and had found the following: (i) Bruise around right eye 2” x 1”. (ii) Bruise blow left eye 1” x 1/2”. (iii) Bruise fouls of Nose 1” x 1/2”. (iv) Bruise lower part of mid region of chest with fracture of sternum bone. (v) Bruise left side of front of chest with fracture of 6th ribs. (vi) Bruise right side of back 2” x 1”. (vii) Bruise left side of back 1” x 1/2”. (viii) Bruise left side of upper abdomen 1” x 1” rupture of spleen. Copious blood is present in abdominal cavity. (v) Bruise left side of front of chest with fracture of 6th ribs. (vi) Bruise right side of back 2” x 1”. (vii) Bruise left side of back 1” x 1/2”. (viii) Bruise left side of upper abdomen 1” x 1” rupture of spleen. Copious blood is present in abdominal cavity. (ix) Bruise right side of upper abdomen 1” x 1” with rupture of liver. Copious blood is present in abdominal cavity. It has been opined that all the injuries were caused by hard and blunt substance may be by feet. Injury Nos. 1, 2, 3, 6 and 7 were simple in nature when Injury Nos. 4, 5, 8 and 9 were grievous in nature. The cause of death was shock and haemorrhage. He has proved the post-mortem report which has been marked as Exhibit-2. 11. P.W.9 (Manbodh Singh) has stated that Ritbhanjan Turi had come to his house and on repeatedly being asked he had requested to make him a bed. Ritbhanjan had stated that he had gone to bring wood from the jungle and Chhote Turi and Delsa Lohra had also gone with him. After cutting the wood Ritbhanjan was told to sit and have Khaini and as soon as he sat down he was slammed to the ground while one person had put his leg on the neck of Ritbhanjan and the other person climbed up on his chest. This made Ritbhanjan unconscious. The accused persons thinking him to be dead left him. After sometime Ritbhanjan got up had water and then came to his residence. He had informed the family members of Ritbhanjan and twelve persons had come when Ritbhanjan had disclosed everything. He has stated that on the next day Ritbhanjan died. In cross-examination, he has deposed that when Ritbhanjan came to his house he had not seen marks of injury on his neck. His statement was never recorded by the Police. 12. P.W.10 (Sohrai Turi) is the informant who has stated that Chhote Turi had taken his brother Ritbhanjan Turi to the Jungle to bring woods and after sometime Delsa Lohra and Loya Turi had followed him. He had gone to cut Bamboos and when he came back home in the evening he was informed that Manbodh had sent information that his brother has been assaulted. He had gone to cut Bamboos and when he came back home in the evening he was informed that Manbodh had sent information that his brother has been assaulted. He had gone to the house of Manbodh Singh with twelve persons including Jitan Turi, Ramlagan, Sukhu and others where his brother was found lying on a mat and he had disclosed that he had been assaulted by Chhote Turi, Loya Turi and Delsa Lohra due to which he became unconscious and after recovering he had come to the house of Manbodh Singh. Due to financial constraints he could not get his brother treated who died on the next day. He has proved his signature on the fardbeyan which has been marked as Exhibit-3. In cross-examination, he has deposed that he had seen wounds on the body of his brother. His brother had regained consciousness after one hour after he went. 13. P.W.11 (Charku Turi) has been declared hostile by the prosecution. 14. P.W.12 (Sudhir Kumar Singh) has proved the fardbeyan, inquest report and paras 1 to 62 of the case diary which have been marked as Exhibits-5, 6 and 7 respectively. 15. The statements of the accused were recorded u/s 313 Cr.P.C., in which, they have denied their complicity in the murder of Ritbhanjan Turi. 16. It has been submitted by Dr. S.K. Chaturvedi, learned counsel for the appellants that P.W.10 has stated about the dying declaration made by Ritbhanjan Turi before him and several villagers implicating the appellants for the assault committed upon him but such version has not been corroborated by any of the witnesses who had accompanied him. P.W.9 (Manbodh Singh) has deposed for the first time in Court and he has categorically stated that his statement was never recorded by the Police and this fact could only have been controverted by the Investigating Officer if he was examined. Moreover, the injury suffered by Ritbhanjan Turi would have made it an impossibility to have been conscious and to have depicted the incident in a precise manner with all the details. 17. Mr. Manoj Kumar Mishra, learned A.P.P. for the State has submitted that the appellants had actively participated in the assault and the same finds corroboration from the postmortem report. 18. We have heard the learned counsel for the respective sides and have also perused the Trial Court Records. 19. 17. Mr. Manoj Kumar Mishra, learned A.P.P. for the State has submitted that the appellants had actively participated in the assault and the same finds corroboration from the postmortem report. 18. We have heard the learned counsel for the respective sides and have also perused the Trial Court Records. 19. As per the case of the prosecution it was the deceased who had labored into the house of Manbodh Singh and disclosed about the incident to him and thereafter when his brother Sohrai Turi (P.W.10) came along with twelve other villagers on receiving information about the injury suffered by Ritbhanjan Turi the incident of assault was described threadbare by Ritbhanjan Turi. So far as P.W.9 is concerned, he had never been examined by the Police and such assertion has remained unrebutted due to non-examination of the Investigating Officer. P.W.10 has in his evidence named Jitan Turi, Ramlagan and Sukhu as some of the persons who had accompanied him to the house of P.W.9. These witnesses have been examined by the prosecution as P.W.2, P.W.5 and P.W.1 respectively and while P.W.5 has been declared hostile by the prosecution P.W.2 has stated that when he had gone to the house of P.W.9 Ritbhanjan Turi was dead by then and he has also claimed ignorance about how the incident had occurred. P.W.1 has found Ritbhanjan Turi in an unconscious state and nobody had disclosed as to who were the assailants. The evidence of P.W.10, therefore, remains uncorroborated and the veracity of the other witnesses mainly P.W.1 and P.W.2 seem to be more plausible when we consider the autopsy report which specifies the major injuries as fracture of sternum bone, fracture of 6th rib, rupture of spleen and rupture of liver. 20. Therefore, it would be in the scenario of the evidence dissected by us a travesty of justice if, the purported dying declaration is allowed to form the fulcrum of the prosecution case in the light of its apparent inadequacies and deficiencies it projects and, as a consequence to what has been discussed above, we hereby set aside the judgment and order of conviction and sentence dated 07.04.1999 (sentence passed on 08.04.1999) passed by Sri S.N. Singh, learned 2nd Additional Sessions Judge, Gumla in S.T. No. 39 of 1998. 21. This appeal is allowed. 22. Since the appellants are on bail they are discharged from the liability of their bail bonds.