JUDGMENT : P.K. Mohanti, J. - The Appellant along with three others, viz., Mandira Naik, Jadumani Naik and Dasaratha Naik were jointly tried by the learned Sessions Judge of Mayurbhanj-Keonjhar. The Appellant and Mandira Naik were charged u/s 302/34, Indian Penal Code with having caused the death of one Garjan Padhan in furtherance of their common intention. Accused Dasaratha Naik stood charged u/s 325, Indian Penal Code and accused Jadumani Naik u/s 323, Indian Penal Code for having caused hurts to P.W. 7 Biswanath Palei and P.W. 6 Khageswar Padhan respectively. After trial, the learned Sessions Judge acquitted accused Jadumani and Dasaratha but convicted the other two accused persons u/s 302/34, Indian Penal Code and sentenced each of them to undergo imprisonment for life. This appeal has been preferred by the Appellant alone challenging his conviction and the sentence. 2. Prosecution case was that in the early morning of 29-7-1975 P.W. 2 Trutiya Padhan, his brother Garjan Padhan (the deceased), his son Khageswar Padhan (P.W. 6) and his co-villagers P.W. 5 Purandar Giri and P.W. 7 Biswanath Palei had been to a reserve forest to collect mushrooms. After they collected mushrooms each of them cut a piece of sal tree and came out carrying the trees and the mushrooms. While they were proceeding, the accused persons obstructed them and shouted to catch hold of them. P.W. 6, the deceased Garjan Padhan and P.W. 7 Biswanath Palei were corning in the front while P.W. 2 Trutiya Padhan and P.W. 5 Purandar Giri were following them. When the deceased and P.Ws. 6 and 7 were obstructed, P.Ws. 2 and 5 ran away from the spot. The convict Mandira and the Appellant caught hold of the deceased. Accused Jadumani and Dasaratha caught hold of P.Ws. 6 and 7. The Appellant dealt a blow with his Tangia on the head of the deceased as a result of which he fell down. Then he dealt a second blow with the blunt side of the axe near the right ear of the deceased. The convict Mandira also assaulted the deceased with a bow which he was then holding. When the deceased struggled on being so assaulted, Mandira took the axe from the Appellant and dealt two blows on the legs of the deceased. Accused Jadumani then assaulted P.W. 6 with his Lathi and accused Dasaratha assaulted P.W. 7 with a lathi. Then P.Ws. The convict Mandira also assaulted the deceased with a bow which he was then holding. When the deceased struggled on being so assaulted, Mandira took the axe from the Appellant and dealt two blows on the legs of the deceased. Accused Jadumani then assaulted P.W. 6 with his Lathi and accused Dasaratha assaulted P.W. 7 with a lathi. Then P.Ws. 6 and 7 went to village Gandubarei carrying the cut pieces of the sal trees as directed by the accused persons. The accused persons took P.Ws. 6 and 7 to the Police Station at Baria and lodged F.I.R. against them on the allegation that they had committed theft. P.W. 2 Trutiya Padhan also lodged F.I.R. at the Baria P.S. on 29-7-1975 at 11.30 a.m. to the effect that the deceased had gone to collect mushrooms from the forest but did not return and that be found the dead body of the deceased lying near a hillock. After investigation, the police submitted charge-sheet against the accused persons as indicated above. 3. At the trial, the Appellant denied the aforesaid allegations and pleaded innocence. 4. That the death of the deceased was homicidal admits of no doubt. The doctor (P.W. 4) held post mortem examination over the dead body of the deceased on 30-7-1975 at 10 a.m. and found the following injuries: (1) An incised looking injury 2" x 1/4" on the mid line of the scalp causing fracture of both the parital bones and laceration of the membranes and brain matter. (2) A blackish bruise at the temporal region. (3) A parallel bruise 2 1/2" x 1 1/2" obliquely placed in the left arm. (4) A bruise over the left wrist joint. (5) A lacerated injury over the left leg. The doctor opined that the injuries were ante mortem in nature and that the external injury No. (1) with the corresponding internal injuries proved fatal. 5. The order of conviction is based on the evidence of P.Ws. 6, 7, who were said to be eye-witnesses to the occurrence. These two witnesses tried to support the prosecution case as narrated above. We, however, find it difficult to place any reliance on their evidence for the reasons which we shall presently discuss. 5. The order of conviction is based on the evidence of P.Ws. 6, 7, who were said to be eye-witnesses to the occurrence. These two witnesses tried to support the prosecution case as narrated above. We, however, find it difficult to place any reliance on their evidence for the reasons which we shall presently discuss. As already stated, F.I.R. was lodged by P.W. 2 Trutiya Padhan on 29-7-1975 at about 11 30 a.m. The names of the accused persons were not disclosed in the F.I.R. P.W. 2 did not also mention in the F.I.R. that he had accompanied the deceased to the Forest along with P.Ws. 6 and 7 and others for collecting mushrooms on the date of occurrence. The fact that the deceased and P.Ws. 6 and 7 were obstructed by the accused persons and that P.W. 2 ran away from the spot was also not mentioned in the F.I.R. In his evidence, P.W. 2 stated that before lodging the F.I.R. at the P.S. he had learnt from P.Ws. 6 and 7 that the deceased had been assaulted by two persons of village Gandubarei and that P.Ws. 6 and 7 had been assaulted by two other persons of the same village. The evidence of the Investigating Officer (P.W. 13) shows that all the four accused persons were arrested on 29-7-1975. The evidence of P.W. 7 shows that P.W. 2, on his arrival at the P.S., had talks with him and P.W. 6 and that both of them had narrated the occurrence before him. P.W. 7 stated that he was examined by the police at the P.S. shortly after P.W. 2 had lodged the F.I.R. but he did not give out the names of the accused persons before the police, though he stated to have identified the accused Mandira and Dasaratha who were then present at the P.S. He was again examined by the police on another occasion. But he did not name the accused persons as the culprits during his subsequent examination by the police. He also stated that he did not identify the accused persons as the culprits. P.W. 6 similarly admitted that be bad talked to P.W. 2 before the F.I.R. was lodged and that he identified accused Mandira and Dasaratha as two of the culprits. If actually P.Ws. He also stated that he did not identify the accused persons as the culprits. P.W. 6 similarly admitted that be bad talked to P.W. 2 before the F.I.R. was lodged and that he identified accused Mandira and Dasaratha as two of the culprits. If actually P.Ws. 6 and 7 had narrated the entire occurrence before P.W. 2 and had identified to him some of the culprits before lodging of the F.I.R. it passes our comprehension as to why the relevant facts were omitted from the F.I.R. If really P.Ws. 6 and 7 did not know the names of the, accused persons but they were able to identify them as the culprits the accused persons would have been put to a T.I. parade. But that has nut been done in this case. The statement of P.W. 6 that he identified Mandira and Dasaratha as the culprits before the Investigating Police Officer at the P.S. is not supported by the lath? In view of these unsatisfactory features of the case, we are not inclined to place any reliance on the evidence of P.Ws. 6 and 7. 6. In the result, we allow the appeal, set aside the conviction and the sentence and acquit the Appellant of the charge u/s 302/34, Indian Penal Code. He is directed to be set at liberty forthwith. R.N. Misra, J. 7. I agree. Final Result : Allowed