JUDGMENT : Sujit Narayan Prasad, J. 1. Both the appeals are being heard together since both have been arisen out of common judgment dated 29 th September, 1997 passed by the learned Sessions Judge, Gumla in S.T. No.88 of 1994 in connection with Dumri P.S. Case No.29 of 1993 (G.R. No.846 of 1994) in which the appellant namely Emtiyaz Hussain [in Criminal Appeal (D.B.) No.244 of 1997(R)] has been convicted under Section 302 IPC and the appellant namely Mahmood Alam [in Criminal Appeal (D.B.) No.01 of 1998(R)] has been convicted under Section 302 /109 IPC and both were sentenced to undergo rigorous imprisonment for life. 2. Learned counsel appearing for both the appellants has taken the following grounds in challenging the impugned judgment:- (i) That the prosecution has been miserably fail to establish the charge in view of the contradictions in the testimonies of the prosecution witnesses. (ii) It has been contended that it is a case where even the inquest report is not available on record, since, it has not been prepared as it would be evident from the materials available on the trial court record. (iii) Although P.W.-1 is the informant in this case, she cannot be considered a trustworthy witness, since, whatever has been stated by her has not been found to be corroborated by the Investigating Officer. For instance, she claimed that the deceased was assaulted with a hard and blunt object (Baluwa) on the middle of the head, but the Doctor did not find any injury on that part of the brain during the post-mortem examination. (iv) Further, P.W.-1 who claims herself to be an eye-witness but is not supported by the testimony of the Doctor, hence, her testimony cannot be said to be reliable. (v) The Doctor who conducted the post-mortem examination has also not been examined which cause serious prejudice in view of the fact that the death, as per the prosecution version, taken place on 21.11.1993 while the deceased was carried to the local hospital at Dumri and thereafter, as per the prosecution version, he has been carried to the RMCH, Ranchi for better treatment. (vi) The post mortem report is dated 29.11.1993 but there are no details about the whereabout of the deceased whether he was in the hospital or taken out, since, there is no such certificate to that effect by way of discharge summary or injury report of the doctor who has said to treating the deceased. (vii) It is also evident from the trial court record that two private individuals, who were related to the deceased, brought the dead body to the RMCH, Ranchi for the purpose of conducting the post-mortem examination. However, this procedure cannot be accepted as valid, since it is not permissible for private persons to bring a dead body for post-mortem examination to a government hospital or any other hospital. The proper legal requirement is that a police case must firstly be registered, and only on the basis of such registration—either through the lodging of an FIR or an Unnatural Death (U.D.) case—can any post- mortem examination be lawfully conducted. In the present case, there is no reference or record indicating that such a procedure was followed. (viii) Further, the learned trial Court has relied upon the testimonies of P.W.-5 and P.W.-7. P.W.-5 is the sister of the deceased, while P.W.-7 is her husband. P.W.-5 claimed to be an eye-witness and deposed that the deceased had disclosed to her the involvement of the appellants in assaulting him on the head. However, this alleged disclosure was never communicated by P.W.-5 to her husband, P.W.-7, as his testimony contains no mention of P.W.-5 informing him about such a statement. This raises serious doubt regarding the veracity of the so-called dying declaration allegedly made by the deceased to P.W.-5, Bunni Bibi. (ix) The consideration has also been made by the learned trial Court in the witnesses of P.W.-6, P.W.-8 and P.W.-9, who are the child witnesses but there is no satisfaction so far as the testimony of P.W.-6, child witness is concerned as required under Section 118 of the Indian EVIDENCE ACT , 1872. While P.W.-8 and P.W.-9 have deposed that whatever has been told by P.W.-6 they are deposing in the Court. But in absence of any satisfaction as required under Section 118 of the Indian EVIDENCE ACT , 1872, so far as P.W.-6 is concerned, whatever has been said by P.W.-6 to P.W.-8 and P.W.-9, cannot have evidentiary value. While P.W.-8 and P.W.-9 have deposed that whatever has been told by P.W.-6 they are deposing in the Court. But in absence of any satisfaction as required under Section 118 of the Indian EVIDENCE ACT , 1872, so far as P.W.-6 is concerned, whatever has been said by P.W.-6 to P.W.-8 and P.W.-9, cannot have evidentiary value. (x) It has also been argued that the Investigating Officer has failed to substantiate the prosecution’s version of events. During the course of investigation, no blood-stained soil or any trace of blood was found in the house of the deceased. It is the admitted case of the prosecution that the deceased was brought to the house after sustaining injuries. Therefore, it is difficult to believe that there would be no signs of blood at the place where the injured deceased was allegedly taken, which casts serious doubt on the prosecution’s narrative. 3. Learned counsel based upon the aforesaid grounds has submitted that it is a case where the prosecution has failed to establish the charge and without taking into consideration all these grounds, the judgment of conviction and order of sentence has been passed, therefore, the same needs interference. 4. Per contra, Mrs. Vandana Bharti, learned Additional Public Prosecutor appearing for the State has taken following grounds to defend the impugned judgment:- (i) The testimony of the entire witnesses if taken together, it would be evident that the prosecution is able to prove the prosecution version based upon the testimony of P.Ws.-1, 2, 4, 6 and 7 who are the eye-witnesses, who had corroborated the prosecution story. (ii) It has been contended that the P.W.-1 namely Ajmeri Bibi is the informant who has fully supported the prosecution version in her testimony and remained consistent in the cross-examination also. (iii) The occurrence of death of deceased has also been corroborated by the post-mortem examination which has been marked as exhibit-6 by taking aid of Section 294 of the Cr.P.C. The prosecution version has also been supported by the Investigating Officer. (iv) The learned trial Court after taking into consideration the testimonies of these witnesses together has found the prosecution version to be proved and therefore, he has passed the judgment of conviction against both the appellants. 5. We have heard learned counsel for the parties and gone through the grounds as agitated on their behalf. (iv) The learned trial Court after taking into consideration the testimonies of these witnesses together has found the prosecution version to be proved and therefore, he has passed the judgment of conviction against both the appellants. 5. We have heard learned counsel for the parties and gone through the grounds as agitated on their behalf. The issue which requires consideration as to (i) whether the prosecution has been able to substantiate the charges to be proved beyond all reasonable doubt. (ii) Whether the learned trial judge has appreciated the evidence in their perspective in coming out with the judgment of conviction of these two appellants. Both the issues, since, are interlinked and as such both are taken up together for the purpose of consideration but before considering the aforesaid issues, the backdrop of the institution of the F.I.R. as per the narration made in the F.I.R. needs to be made herein which reads as under:- “As per the prosecution story, on 21.11.1993 at around 2:30 PM, accused Emtiyaj Hussain was fishing in the paddy field of the deceased namely, Ramjan Ali. When Rukhsana Khatoon, daughter of the deceased, objected the same to prevent crop damage, Emtiyaj chased her. As Ramjan Ali stepped out to look for laborers, Imtiyaj Hussain (armed with a baluwa) and co- accused Mahmood Alam allegedly confronted him. On Mahmood Alam’s instigation, Emtiyaj attacked Ramjan Ali on the back of his head, causing serious bleeding and unconsciousness. Both accused then fled away while pelting stones. The injured was taken to Dumri Hospital, where Ajmeri Bibi (his wife) gave her statement in the next morning at 8:30 AM to ASI Tarkeshwar Prasad Singh, which was recorded as fardbeyan (Ext. 2). Initially, the FIR was registered under Sections 326, 307/34 IPC (Dumri P.S. Case No. 29/1993), the case was later converted to one under Section 302 /34 IPC as Ramjan Ali died at RMCH, Ranchi. After the investigation, charge-sheet was submitted by the police and cognizance was taken. The case was committed to the Court of Sessions, resulting in the present criminal appeals.” 6. After the investigation, charge-sheet was submitted by the police and cognizance was taken. The case was committed to the Court of Sessions, resulting in the present criminal appeals.” 6. The police have started the investigation and after submission of charge-sheet, the charge has been framed under Sections 302 of IPC so far as the appellant namely Emtiyaz Hussain [in Criminal Appeal (D.B.) No.244 of 1997(R)] is concerned and under Sections 302 /109 of IPC so far as the appellant namely Mahmood Alam [in Criminal Appeal (D.B.) No.01 of 1998(R)] is concerned. 7. The prosecution has altogether examined eleven witnesses. The reference of theses witnesses reads as under:- P.W.1-Ajmeri Bibi, widow of the deceased had deposed that her husband Ramjan Ali was going out and he was followed by his two daughters i.e. P.W.2-Sultana Bibi and P.W.4-Rukhsana Khatoon and when the deceased went out of his house Mahmood Alam instigated Emtiyaz Hussain to kill Ramjan Ali whereupon the said Emtiyaz Hussain gave a blow with Baluwa which caused grievous injury on the head of the deceased. P.W.-2, Sultana Bibi, is the daughter of the deceased Ramzan Ali and she had deposed that on Sunday afternoon at about 2:00– 2:30 PM, in Jarda village, her sister Rukhsana Khatoon returned from the field and informed that Emtiaz Hussain was fishing in their paddy field and when she objected he chased her away. Shortly after, the family came out and saw that Imtiaz was standing with a baluwa and Mahmood was instigating him to kill Ramzan Ali. Emtiyaz struck Ramzan on the head with baluwa, embedding the weapon. Both accused fled away, throwing stones. She and her mother pulled out the baluwa, took Ramzan home, treated him, and then took him to Dumri Hospital. Later Ramzan Ali died during treatment. Her sister was traumatized and had lost her hearing. She admitted in her cross-examination that there was a prior verbal abuse by Emtiyaz in the presence of villagers but they didn’t intervene out of fear. She stated that no blood evidence was seized by the police. She denied that the story was false or the accused were wrongly implicated. Her sister was traumatized and had lost her hearing. She admitted in her cross-examination that there was a prior verbal abuse by Emtiyaz in the presence of villagers but they didn’t intervene out of fear. She stated that no blood evidence was seized by the police. She denied that the story was false or the accused were wrongly implicated. P.W.3, Rehana Khatoon is the daughter of Ramzan Ali and had stated that around two years ago on Sunday around 2:30 PM, she was at home with her family when her sister Rukhsana came running from the field, informed that Emtiyaz along with his two daughters namely Chaman and Sanam were fishing in their paddy field. When she stopped them, Emtiyaz chased her. She further stated that soon after, her parents went out for field work, and she and her sisters followed. They saw Emtiyaz with a baluwa and Mahmood instigating him to kill Ramjan. Emtiyaz struck Ramzan on the head and the baluwa got stuck. The family brought Ramzan Ali home, removed the baluwa from his head, and took him to Dumri Hospital. In her cross-examination she admitted that she didn’t go to the hospital or speak to villagers afterward; police questioned her but were not shown the field. She further stated that she doesn’t recall who took her father to Ranchi Hospital. P.W.-4, Rukhsana Khatoon, is the daughter of the deceased Ramzan Ali and had stated that about two years ago on a Sunday around 2 PM, she saw Emtiyaz and his daughters namely Chaman and Sanam were catching fish in the paddy field, damaging the crops. When she asked them to stop, Emtiyaz chased her, but she escaped and informed her father. She further deposed that thereafter, her parents went out for work, and she and her siblings followed them. They saw Emtiyaz with a baluwa near his house and Mahmood @ Bablu instigated him to attack. Imtiaz struck Ramzan Ali on the head with the baluwa, which got embedded and fled away while throwing stones. In her cross-examination, she stated about identified both accused in court; reported ongoing threats from Bablu, but admitted this was her first time mentioning it. She stated that the fish-catching site was half a kilometer away and confirmed many villagers were present at the time of incident, though she couldn’t name them. In her cross-examination, she stated about identified both accused in court; reported ongoing threats from Bablu, but admitted this was her first time mentioning it. She stated that the fish-catching site was half a kilometer away and confirmed many villagers were present at the time of incident, though she couldn’t name them. She denied that the incident was fabricated, affirming that Emtiyaz was fishing in the paddy field and assaulted her father. P.W.-5, Bunni Bibi, who is the sister of the deceased has deposed that when she came out of the house, she saw her brother Ramzan Ali lying on the road and small crowd gathered around him. When she came to the spot, she saw that a Baluwa was fixed on the head of deceased Ramzan Ali. She further deposed that Ramzan Ali told her that at the instigation of Babloo, Emtiyaz had given baluwa blow. Thereafter, her sister-in-law and niece took out the said Baluwa. In the cross-examination, she had deposed that blood stain was present on the cloths. Police had also enquired her about the incident. Further, she asserted that her brother Ramjan Ali told her that on the instigation of Babloo, Emtiyaz assaulted him. She had proved the prosecution story. P.W.-6, Seikh Sajjad, who is a child witness aged about 10 years and had deposed that Ramzan Ali was cut with Baluwa by one Emtiyaz Hussain who was standing on the door. Mahmood was also there. He identified the accused in the dock. P.W.-7, Mohd. Yaseen, had deposed that about two years ago on Sunday, around namaj time, he saw Emtiyaz attacked Ramzan with a baluwa (sharp weapon) at the instigation of Mahmood. After the assault, both accused fled away. Ramzan’s wife and daughter removed the weapon and took him home. Later on, they took him to Dumri Hospital, and then to RMCH, Ranchi, where he died about a week later. In the cross-examination, he stated that he accompanied the injured to the hospital on their own will and he died in Toto (Village). P.W.-8, Mohd. Muslim Khan, is a child witness who had deposed that on the day of incident he went to jungle and returned on 4:00 P.M.. He met Sajjad who told him about the murder of Ramzan by his brother Emtiyaz. Emtiyaz fled away after the incident. P.W.-9, Mohd. P.W.-8, Mohd. Muslim Khan, is a child witness who had deposed that on the day of incident he went to jungle and returned on 4:00 P.M.. He met Sajjad who told him about the murder of Ramzan by his brother Emtiyaz. Emtiyaz fled away after the incident. P.W.-9, Mohd. Haseen, is a student who had deposed that on the day of Ramzan’s murder, he had gone to the forest and returned around 5 PM, after which Sahjad informed him that Emtiaz had attacked Ramzan with a balwua (sharp weapon). He also mentioned that he studied at a Madarsa in Lohardaga and was questioned by the police on a Tuesday. He denied withholding information from the police and affirmed that he told them that Lattho and Sahjad had informed him about the incident. P.W.-10, Tarkeshwar Pd. Singh is the police officer deposed that he was posted at Dumri Police Station on 22.11.1993, received an injury report from Dumri Hospital and recorded the fardbeyan of Ajmeri Bibi. Thereafter he initiated a criminal case. He took charge of the investigation, prepared a seizure list for the weapon (baluwa), and recorded witness statements. He further deposed that he visited the scene of the incident near Ajmeri Bibi’s house in village Jarda, noted its surroundings, but found no blood or evidence at the spot or inside the house. Although the victim, Ramzan Ali, was seriously injured and later died at RMCH, Ranchi, the officer admitted that he neither saw the body nor visited RMCH, Ranchi before the death. In the cross-examination he stated that the post-mortem report was collected by him based on a witness’s (Md. Yaseen) statement. He admitted that the weapon was not forensically tested, blood-stained clothes were not seized. He denies fabricating the charge sheet; failing to inspect the scene; or ignoring witness statements. P.W.-11, Jamal Khan, is the shop-keeper who deposed that Ramzan Ali, his brother-in-law, was admitted to Rajendra Medical College Hospital (RMCH), Ranchi, on 22.11.1993 and passed away during treatment on 29.11.1993. His post-mortem examination was conducted at RMCH, Ranchi, and the body was later taken by family members for cremation. The deponent confirms that Mohammad Yaseen is the incorrect name of Ramzan's brother-in-law as his correct name is Mohammad Mosin. He denied the allegations that Ramzan died outside the hospital or that no post-mortem was performed. 8. His post-mortem examination was conducted at RMCH, Ranchi, and the body was later taken by family members for cremation. The deponent confirms that Mohammad Yaseen is the incorrect name of Ramzan's brother-in-law as his correct name is Mohammad Mosin. He denied the allegations that Ramzan died outside the hospital or that no post-mortem was performed. 8. Learned trial Court on consideration of that testimony has put a question under Section 313 of the Cr.P.C. and had passed the judgment of conviction which is the subject matter of the present appeals. 9. We have considered that grounds agitated on behalf of the appellants and as such all are being discussed herein in order to come to the conclusion regarding the legality and propriety of the impugned judgment of conviction. 10. The first ground has been taken about the reliability of the testimony of P.W.-1, who is the informant. We have gone through the First Information Report wherein the story has been narrated that she while accompanying her husband has seen that the appellant namely Mahmood Alam of Criminal Appeal (D.B.) No.01 of 1998(R) has instigated the appellant, namely, Emtiyaz Hussain of Criminal Appeal (D.B.) No.244 of 1997(R) upon which the appellant namely Emtiyaz Hussain has assaulted the deceased by a hard and blunt substance i.e. baluwa over the middle of the head due to which the baluwa had entered into the head due to which he had fell down and become senseless. Thereafter, the deceased in the injured condition had been carried to his house and from where he was carried to the Dumri hospital where the F.I.R. was instituted. 11. As per the prosecution version, the deceased was thereafter had been referred to the RMCH, Ranchi for better treatment. 12. She has supported whatever had been stated by her in the F.I.R. but when we have considered her testimony with the post-mortem report from which we have found that whatever had been narrated by P.W.-1 regarding the injury sustained over the middle of the head of the deceased has not been found to be there in view of the nature of the injury found to be there in the post-mortem report which is referred herein:- (i) Abraision with scab 2cm × 2cm on left shoulder top. (ii) Abraision with scab 3cm ×1cm on left knee front. (ii) Abraision with scab 3cm ×1cm on left knee front. (iii) Incised wound :- stiched not united 05 cm long on right parietal region of head situated antero posteriorly cutting the underlying parietal bone completely dividing and divided the underlying dura matter and brain matter. (iv) A crack fracture extending from the posterior margin of the above noted cut injury of the parietal bone to the right perito occipital suture. (v) There is presence of blood and blood clot over the right hemisphere of brain. Opinion: (i) All the above noted injuries are antemortem. (ii) Abraisions are caused by hard and blunt substance and incised wound is caused by heavy sharp cutting weapon. (iii) The death is due to had injury. (iv) Time since death 06 to 24 hours from the time of post-mortem examination. The part of the injury which has been found to be there in the post-mortem report therefore does not support whatever has been deposed by P.W.-1 namely Ajmeri Bibi. 13. As per the admitted case of prosecution, the death took place on 28.11.1993 at RMCH, Ranchi. It is also admitted case of the prosecution that the deceased was carried to RMCH, Ranchi from Dumri Hospital. Therefore, the admitted part of the prosecution version as per the prosecution is that the deceased was alive from 21.11.1993 to till his death i.e. on 28.11.1993. But the most important part is that the Investigating Agency has not bothered to have an investigation with respect to the mental status of the deceased so as to come to the corroboration of the testimony of P.W.-5 who has deposed to have the dying declaration of her brother at Dumri i.e. the place of occurrence. 14. The second laches committed by the prosecution is that the nature of injury has also not been ascertained by getting examination of the Doctor who has treated the deceased. 15. The third laches which has been committed by the Investigating Agency is that the post-mortem examination report reflects that the family members, two in number, had gone with the dead body of the deceased for the purpose of conducting post-mortem but this Court failed to understand that when, as per the prosecution version, the deceased was under treatment in the RMCH, Ranchi then what was the occasion of the family members of the deceased to carry the dead body for the purpose of post-mortem examination. Since, in case of unnatural death it is the accountability of the hospital to handover the body of the deceased after conducting post mortem i.e. the internal arrangement of the hospital not to handover the dead body without conducting the post-mortem. But in absence of such process the doubt is being created upon the prosecution version. 16. Further, the inquest report has not been prepared which also casts doubt upon the prosecution version, since, the place of death has not been ascertained. The doubt has also been created that the doctor who treated the injured from 21.11.1993 to 28.11.1993, has not been examined. The doctor who had conducted the post-mortem examination had also not been examined, rather, the post-mortem report had been made part of the record by taking aid of Section 294 of Cr.P.C. 17. This Court has failed to understand that when the doctor has conducted the post-mortem examination then it was the duty of the investigating agency to examine the doctor who has conducted the autopsy of the deceased in order to ascertain the real cause of death. Such finding is being made herein due to the reason that the testimony of P.W.-1 as deposed regarding the assault that has been given in the middle of the head but that part of the nature of injury has been disputed by the doctors, since, the nature of injury which has been found in the post-mortem report is different to that of the narration given by the P.W.-1 (the informant). 18. Further infirmities which this Court has found on consideration of the testimony of P.W.5 while taking it together with the testimony of P.W.-7, since, P.W.-5 had deposed about the dying declaration said to be given by the deceased. But if the testimony of P.W.-5 has been taken into consideration together then she immediately after witnessing the commission of crime had rushed to the house but had not disclosed the words which had been said by the deceased in the dying declaration. Further, P.W.-7, who is the husband of the P.W.-5 had also not corroborated the fact that P.W.-5 had ever disclosed him about the said dying declaration disclosing the name of these appellants. 19. Learned trial Court has further committed an error in considering the testimony of P.W.-6, the child witness, without showing the satisfaction as required under Section 118 of the Indian EVIDENCE ACT , 1872. 19. Learned trial Court has further committed an error in considering the testimony of P.W.-6, the child witness, without showing the satisfaction as required under Section 118 of the Indian EVIDENCE ACT , 1872. The testimony of P.W.-8 and P.W.-9 is based upon the testimony of P.W.-6 but in absence of the satisfaction as required under Section 118 of the Indian EVIDENCE ACT , 1872 so far as P.W.-6 is concerned, and on whose seeing the P.W.-8 and P.W.-9 have supported the prosecution version cannot be said to be reliable but this aspect of the matter has not been taken into consideration by the learned trial Judge. 20. The Law is well settled that it is the duty of the prosecution to prove the prosecution case beyond all reasonable doubts and there cannot be any conviction on the basis of any surmises and conjectures. It is also settled that if there is possibility of doubt which is being in benefit to the convicts/accused is to be accepted reference in this regard is made to. 21. This Court, considering the aforesaid legal position and applying the same in the facts and circumstances as the discussion made hereinabove and adverting to the impugned judgment, has found that the learned trial Court has not considered the entire aspect of the matter as per the reference made hereinabove. Therefore, this Court is of the view that the impugned judgment of conviction needs interference. 22. Accordingly, the Judgment of conviction and order of sentence dated 29.09.1997, passed by the learned Sessions Judge, Gumla in Sessions Trial No.88 of 1994 in connection with Dumri P.S. Case No.29 of 1993 (G.R. No.846 of 1994), is, hereby, quashed and set aside. 23. Since the appellants are on bail, they are discharged from all the criminal liability, henceforth. 24. In the result, the instant criminal appeals stand allowed and disposed of. 25. Let the Trial Court Records be sent back to the Court concerned forthwith, along with the copy of this judgment.