Criminal Appeal (SJ) No.65 of 1996 *** Against the judgment and order of conviction dated 14th February and 19th February, 1996, passed by the 3rd Additional Sessions Judge, Aurangabad, in Sessions Trial No. 286 of 1990/ 8 of 1991. *** 1. Raj Kumar Paswan son of Upacheya Paswan 2. Upadheya Paswan son of Late Ramdhani Paswan Both resident of village- Gaini, Police Station- Obra, District- Aurangabad ….Appellants Versus The State of Bihar ….Respondent *** For the appellant : Mr. Akhileshwar Pd. Singh, Sr. Advocate with Mr. Prabhu Narain Sharma, Advocate For the respondent : Mr. Choubey Jawahar, A.P.P. *** P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH *** Anjana Prakash, J. The appellants have been convicted under section 304 Part II/34 Indian Penal Code. Whereas, appellant no.1 has been sentenced to undergo rigorous imprisonment for seven years, appellant no.2 has been sentenced to undergo rigorous imprisonment for five years by the 3rd Additional Sessions Judge, Aurangabad, in Sessions Trial No.286 of 1990/ 8 of 1991 by judgment dated 14th February, 1996 and order of conviction dated 19th February, 1996. 2. The case of the prosecution as disclosed in the fard-e-bayan purportedly given by the P.W.4 is that he suddenly heard the cries of the deceased and saw the accused persons with kerosene and the deceased having been set on fire. After she was injured, she was taken to the village Compounder, who gave first aid, whereafter she was removed to the State Dispensary where she was being treated. This occurrence is said to have taken on 12.09.1989, whereas, the 2 dying declaration was recorded on 13.09.1989 and the deceased is said to have died on 08.10.1989. 3. During trial, the prosecution examined twelve witnesses out of whom P.W. 1, 2 and 3 are merely on the factum of occurrence that the deceased had been injured, whereas, P.W.4 is the informant, who did not support his own fard-e-bayan. P.W. 5 and 6 are seizure list witnesses and P.W.7 is formal search witness. P.W. 8 and 9 denied the factum of occurrence. P.W.10 is the second Investigating Officer. P.W.11 is the doctor, who initially treated the injured and found the deceased having sustained 60% burn injuries. P.W.12 is a formal witness, who identified the dying declaration. The Block Development Officer who recorded the dying declaration has been examined as Court Witness no.1. 4. In the present case, the doctor, who performed the post mortem examination, has not been examined and, therefore, the cause of death of the deceased has remained unproved by the prosecution. Moreover, in the evidence of Court Witness no.1, it is noticed that the deceased had allegedly stated that her uncle-in-law and others had rushed to the place of occurrence and removed her to the hospital. The appellant no.2 happens to be the uncle-in-law and on this basis he deserves to be acquitted. 5. Under the circumstances, the appeal of appellant no.2, Upadheya Paswan, is hereby allowed and he is acquitted of the charges and is also discharged from the liabilities of his bail bonds. 6. As far the case of the appellant no.1, Raj Kumar Paswan, is concerned, it appears from the dying declaration that there was specific allegation against him of having participated in burning the injured. However, since the post mortem report has not been brought on record nor the cause of death has been substantiated by the prosecution, it is difficult to sustain his conviction under section 304 Part II Indian Penal Code and, therefore, is acquitted of the charge 3 under section 304 Part II Indian Penal Code. However, in the facts of the case, relying on the evidence of P.W.11 and Court Witness No.1 which substantiated the factum of occurrence, he is convicted under section 325 Indian Penal Code and sentenced to the period he has already undergone during trial. 7. In the result, the appeal is partly allowed. (Anjana Prakash, J.) Patna High Court, Patna. Dated the 21st June, 2011 NAFR/ JA/-