JUDGMENT : D.P. Mohapatra, J. - In this appeal the Appellant Emil Soren one of the accused persons in Sessions Trial. No. 90 of 1982 of the court of the Sessions Judge, Sundargarh challenges his conviction under Sections 302/34 I.P.C. and the sentence to undergo R. I. for life. In the said case, the Appellant, Soma Munda and one Belko Mahakud were charged u/s 302 read with Section 34 of the I.P.C. for sharing the common intention to commit murder of one S. Soren Bhengra and in furtherance of such common intention having committed murder by intentionally causing the death of the said deceased. 2. The prosecution case, in brief was that the deceased, his wife Hiramani Bhengra' (p.w. 5) and their three small children, were living in village Harischimdrapur under Koida police station in the district of Sundargarh. Accused Emil Soren had served as a servant in their house for a week about two months prior to the occurrence which took place at midnight .on 9-6-1982. After working for about eight days Emil Soren had voluntarily left the house of the deceased. About a week prior to the occurrence on a Tuesday the deceased found him (Emil) hiding in his goat shed. On being questioned the accused replied that he had come to take his Lungi. Thereafter, he left the place saying that he would not serve him any longer. It was the further case of the prosecution that on the date of occurrence, i.e. on 9-6-1982 the deceased returned home at about 9 p. m. in the night. Some time thereafter the inmates after taking their night meal went to, bed. At about mid-night the three accused persons forced their way into the bed room by opening the front door; one of them focussed the torch light' and the other two dragged the deceased outside there was scuffle between the accused persons and the deceased. At that time one of the culprits rushed towards Hiramani (p.w. 5), she dealt him a blow with a lathi and then be shouted to the others to filed away and they all went towards the road. When the deceased was chasing them be was assaulted by the culprits on the road in front of his gate. The deceased while coming back asked his wife Hiramani if she was able to identify the culprits. When the deceased was chasing them be was assaulted by the culprits on the road in front of his gate. The deceased while coming back asked his wife Hiramani if she was able to identify the culprits. Hiramani told him that one of those culprits looked like the servant who was working in their house. At that time the deceased fell down on the ground and succumbed to the injuries sustained due to assault by the culprits. Hiramani then noticed that her husband bad sustained severe bleeding injuries on his back. It was also the case of the prosecution that during the incident when Hiramani wanted to save the life of her husband one of the culprits assaulted her as a result of which she also sustained injuries on her person. 3. On the same night Hiramani (P. w.5) went to Koida Police Station at a distance of about 6 km. from her house and lodged the F. I. R. Ext. 7, at about 4.30 a.m.. On receiving the report, the Officer-in-charge of the Police Station (p.w. 8) took up investigation. During investigation he held inquest over the dead body and despatched it for post-mortem examination and requisitioned the services of police dog from Rourkela.. The dog getting smell from a handkerchief lying at the spot led the dog master, p.w. 4,1. O. (p.w. 8) and Anr. witness (p.w. 7) to the house of one Gha sia Munda in village Sidima, situated at a distance of about 7 to 8 kms. from the spot. The I. O. searched that house and recovered one knife, M. O. II, one cycle chain, M. O. III, one two called torch light and some clothes as per seizure list Ext. 16. The I. O. then arrested Emil Saren from Sidima jungle and the other two accused persons from the house of Ghasia Munda. Hiramani (p.w. 5) and accused Emil who had sustained some injuries were medically examined by p. w, 1. The to also seized some articles like Lathi, M. O. I, knife M. O. II, Chappals, M. O. VI red handkerchief, M. O. IV and steel chain (neck-lace) M. O. VII which were lying scattered at the spot as per seizure list Exts. 9 to 15. On completing the investigation he submitted the charge-sheet against all the accused persons under Sections 302/34 I.P.C. . The Sub-divisional Judl. 9 to 15. On completing the investigation he submitted the charge-sheet against all the accused persons under Sections 302/34 I.P.C. . The Sub-divisional Judl. Magistrate Bonai committed the case to the court of session for trial. 4. The accused persons pleaded not guilty to the charge and denied their complicity in the crime as alleged against them. Accused Emil Soren in his examination u/s 313 Code of Criminal Procedure denied that be had served in the house of the deceased as a servant at any time; had come to the house of the deceased to take back his Lungi prior to the occurrence and also denied about his medical examination by the doctor . (p.w. 1) on police requisition. According to him, he was arrested from the house of Ghasia Munda of Sidima, where be was staying. 5. In order to establish the charge against the accused personal the permutation examined eight witnesses of whom p.w. 5 Hiramani, the widow of the deceased was the informant and the sale eyewitness to the occurrence. p.w.6 was a post occurrence witness, p.w. 1 was the Medical Officer of Koida Primary Health Centre who examined accused Emil and injured Hiramani on police requisition. p.w. 2 was the Lady Asst. Surgeon of Bonai Sub-divisional Hospital, who held the autopsy on the dead body of the deceased, p.w. 3 was the constable who carried the dead body of Soren Bhengra for post-mortem examination, p.w. 4 was the dog-master, p.w. 7, who accompanied the dog-master and p.w. 8 was the I. O. 6. P. w.2 who was then the Lady Asst. Surgeon at Bonaiaarh Sub-divisional Hospital conducted the post-mortem examination over the dead body of the deceased on 11-6-1988 at 9 a. m. She found twelve external injuries three of which were the stab injuries and the rest were bruises and abrasions on different parts of the body. The stab injuries were described in the report of the doctor Ext. 4 as follows: (1) One stab wound on the scalp of left parietal region above the left ear l' x 1/2' x 5". (2) Stab wound l' x 1/2'\ X 5' on the left and back side of the throasic vertibra No. 5, 3" literal to the mid line. (3) Stab wound l' x 1/2" x 4" on the right side of the back at thorasic vertibra No. 6 level 2" away from mid line. (2) Stab wound l' x 1/2'\ X 5' on the left and back side of the throasic vertibra No. 5, 3" literal to the mid line. (3) Stab wound l' x 1/2" x 4" on the right side of the back at thorasic vertibra No. 6 level 2" away from mid line. On dissection of the dead body the doctor found as follows: (1) Left parietal lobe and membrance were out. Haemorrbage was present. Vain of left side brain was cut due to stab wound. (2) Fifth rib of the left side and 6th rib of right side were broken and out, (3) Pleura of both sides were cut with pool of blood. (4) Both the lungs were cut. (5) Both palmi nary vessels were cut due to stab wound on the back. The doctor opined that all the injuries were anti-mortem and the external stab injuries with corresponding internal injuries might have been caused by sharp cutting weapon like knife and the bruises might have been caused by a weapon like cycle chain and external abrasions by hard and blunt substance. The doctor further opined that the death was caused due to shock on account of injuries to the vital organs like brain and lungs and haemorrhage from those injuries. The injuries to the vital organs were sufficient to cause death as stated by the doctor. . When her opinion was sought by the I. O. with reference to knife. M. O. II and the cycle chain, M. O. III, the doctor opined that all the three injuries might have been caused by knife. M.O. II and the other injuries, bruises might have caused by cycle chain. M. O. III, as per report Ext. 5. Nothing has been elicited in cross-examination to cast doubt about the correctness of her report and her statement in the Court. There is, therefore, little scope to question the finding of the learned Sessions Judge that the death of the deceased was homicidal one. This aspect was also not seriously challenged before us. 7. The next question for consideration is the complicity of the Appellant in the incident leading to the murder of the deceased. There is, therefore, little scope to question the finding of the learned Sessions Judge that the death of the deceased was homicidal one. This aspect was also not seriously challenged before us. 7. The next question for consideration is the complicity of the Appellant in the incident leading to the murder of the deceased. At the out set, it has to be stated that the learned Sessions Judge on assessment of the evidence produced before him while finding the Appellant Emil guilty of the charge under Sections 302/34 I. P. C, held that the prosecution had failed to establish the charge against the other two accused persons, Soma Munda and Belko Mahakud beyond all reasonable doubts, and accordingly acquitted them. No appeal appears to have been filed challenging the said order of acquittal. Therefore, the only aspect of the case is to be considered in this appeal is whether the judgment of the court below convicting and sentencing the Appellant Emil Soren, under Sections 302/34 I.P.C. is sustainable. 8. The learned Counsel for the Appellant relying on the decision of the Supreme Court in the case of Krishna Govind Patil v. Stats of Maharashtra 1963 S.C.D. 911, contended that the charge against the three accused persons being u/s 302 read with Section 34 I.P.C. and the learned Sessions Judge having acquitted two of the accused persons of the said charge he could not convict the Appellant alone under Sections 302/34 I.P.C. . I have carefully read the judgment of the Supreme Court. In my view the contention has ample force. In that case four named accused persons were charged u/s 302 read with Section 34 1. P. C.. but they were also separately charged for the,substantive offence u/s 302, I. P, C.. All the accused pleaded not guilty to the charge. The trial court acquitted all the accused. "The State preferred an appeal to the High Court against the order of acquittal u/s 302 read with Section 34 I.P.C. but no appeal was preferred against the order of-acquittal u/s 302.I P. C.. The High Court dismissed the appeal against three of the accused persons on the ground that it was doubtful whether any of them participated in the commission of the offence, but convicted the fourth accused under, Section 302 read with Section 34. I.P.C. on the ground that one or more of them might have participated in the offence. The High Court dismissed the appeal against three of the accused persons on the ground that it was doubtful whether any of them participated in the commission of the offence, but convicted the fourth accused under, Section 302 read with Section 34. I.P.C. on the ground that one or more of them might have participated in the offence. The said accused challenged the judgment of the High Court in appeal before the Supreme Court. Discussing the import and scope of Section 34 I.P.C. the Supreme Court gave the following illustrations to bring out the impact of the said section on different situations. (i) A, B, C and D are charged u/s 302, read with Section 34 of the Indian Penal Code, for committing the murder of E. The evidence is directed to establish that the said four persons have taken part in the murder. (ii) A, B, C and D and unnamed others are charged under the said sections. But evidence is adduced to prove,that the said persons, along with others, named or unnamed participated jointly in the commission of that offence. (iii) A. B, C and D are charged under the said sections. But the evidence is directed to prove that A, B, C and D along with three others have jointly committed the offence. The Court observed that as regards the third, illustration a court is certainly entitled to come to the conclusion that one of the named accused is guilty of murder u/s 302, read with Section 34, of the Indian Penal Code though the other three named accused are acquitted, if it accepts the evidence that the said accused acted in concert along with persons, named or unnamed, other than those acquitted, in the commission of the offence. In the second illustration, the Court can come to the same conclusion and convict one of the named accused if it is satisfied that no prejudice has been caused to the accused by the defect in the charge. But in the first illustration the Court certainly can convict two or more of the named accused if it accepts the evidence that they acted conjointly in committing the offence. But in the first illustration the Court certainly can convict two or more of the named accused if it accepts the evidence that they acted conjointly in committing the offence. But where the Court acquits three of the four accused either because it rejects the prosecution evidence or because it gives the benefit of doubt to the said accused, in the absence of a charge as well as evidence the Court cannot bold that though the three accused are acquitted some other unidentified persons acted conjointly along with one of the named persons since that would be making out a new case for the prosecution, and that would amount to deciding contrary to the evidence adduced in the case. A Court cannot obviously make out a case for the prosecution which is not disclosed either in the charge or in regard to which there is no basis in the evidence. The Supreme Court stressed that there must be some foundation in the evidence that persons other than those named have taken part in the commission of the offence and if there is such a basis the case will be covered by the third illustration. Another decision of the Supreme Court reported in Mohan Singh v. State of Punjab 1962 S.C. D.707, which apparently took a different view was considered and discussed at length and was held to be distinguishable on facts, since in that case the Appellants along with three others were charged with having committed offence u/s 302, read with Section 149. as well as Section 323 read with Section 149 of the Indian, Penal Code. The Sessions Judge acquitted two of them, with the result three of them were convicted. One of the accused was convicted u/s 302 and Section 147 and two of the accused were convicted u/s 302, read with Section 149 and Section 147, of the Indian Penal Code, The High Court confirmed their convictions. On appeal two of the accused convicted u/s 302 read with' Sections 149 and 147, contended, inter alia, that as two of the five accused were acquitted their conviction u/s 302, read with Sections 149 and 147 was bad in law. The Court held on the evidence that the said two accused had done the act pursuant to a pre-arranged plan and therefore they could be convicted, u/s 302, read with Section 34, of the Indian Penal Code. The Court held on the evidence that the said two accused had done the act pursuant to a pre-arranged plan and therefore they could be convicted, u/s 302, read with Section 34, of the Indian Penal Code. But in Krishna Govind Patti's Case1 (supra) the Supreme Court observed that the High Court gave conflicting findings. While it acquitted three of the accused u/s 302 read with Section 34 I.P.C. it convicted the fourth accused u/s 302 read with Section 34 for having committed the offence jointly with the acquitted persons. This was held to be a legally impossible position. 9. Coming to the present case, the charge against the accused persons reads as follows: I, Shri R.N. Chatterjee, LL.B. Sessions Judge Sundargarb, Camp Bonai hereby charge you: (1) Emil Soren (2) Soma Munda (3) Belko Mahakud as follows: That you on or about the 12 O'clock in the night between 9th and 10th day of June, 1982 at Harischandra pur shared the common intention to commit murder of S. Soren Bhengra and in furtherance of such common intention you committed murder by intentionally causing the death of said S. Soren Bhengra and thereby committed an offence punishable u/s 302 read with Section 34 of the Indian Penal Code and within my cognizance and I hereby direct that you be tried by this Court on the said charge. From the charge it is clear that the three named accused were charged under 'Section' 302 read with Section 34 of the Indian Penal Code for having shared the common intention to commit the murder of S. Soren Bhengra and in furtherance of such common intention having committed murder by intentionally causing his death. There is no indication in the charge that any other unnamed person had taken part in commission of the offence. 10. Then it is to be examined if there is acceptable evidence to bold that apart from the named accused there were others who had committed the offence in furtherance of the common intention, As noticed earlier, p., w. 5 Hiramani Bhengra is the sole eyewitness examined in the case. In her deposition she has stated about participation of the three named accused in the occurrence. Excepting a bald statement that during the occurrence she saw another person standing outside her house, her evidence does not show that any other person excepting the named accused' participated in the occurrence. In her deposition she has stated about participation of the three named accused in the occurrence. Excepting a bald statement that during the occurrence she saw another person standing outside her house, her evidence does not show that any other person excepting the named accused' participated in the occurrence. There is no other evidence real or circumstantial giving any such indication. Further, it appears from the evidence of p.w. 5 that the Appellant Emil Soren bad not taken part in the assault on the deceased. The learned Sessions Judge on consideration of the evidence acquitted the two accused persons other than the Appellant of the charge u/s 302/34, I.P.C. on the ground that the prosecution had failed to establish the charges against them which meant that there was no acceptable evidence to show that they had participated in the incident. In such circumstances, in my view, the principle laid down by the Supreme Court in the case of Krishna Govind Patil1 (supra) squarely applies. Therefore the conviction of the Appellant under Sections 302/34, I.P.C. has to be held to be legal and unsustainable. In view of the aforesaid finding it is unnecessary to burden the judgment with detailed discussions of the evidence on record. 11. In the result, the appeal succeeds and it is allowed. The judgment of the learned Sessions Judge convicting the Appellant of the charge u/s 302/34, I.P.C. is set aside. He is acquitted of the charge. He is to be set at liberty forthwith. V. Gopalaswamy, J. 12. I agree. Final Result : Allowed