RANCHI, India, Aug. 12 -- Jharkhand High Court issued the following order on July 14:

1. Both the appeals are being heard together since both have been arisen out of common judgment dated 29th 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 postmortem 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.

*Rest of the document can be viewed at: (https://hcservices.ecourts.gov.in/ecourtindiaHC/cases/display_pdf.php?filename=rDIxkKXeSSjrv2BCmGytBOnCdj9nz7C0p%2FUDGC%2BrjAvgBu%2FKN3ijiZK4oIzUHZfR&caseno=Cr.A(DB)/244/1997&cCode=1&cino=JHHC010000121997&state_code=7&appFlag=)

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