JUDGMENT : L. Rath and J.M. Mahapatra, JJ. - These two Appellants, Gagan Chandra Pattanaik and Birasen Behera, convicted u/s 302/34, I.P.C. and sentenced to undergo imprisonment for life have preferred this appeal. While the Appellants stood their trial u/s 302/34, I.P.C., another accused Dandapani Behera was tried u/s 109/302, I.P.C. but has since been acquitted. 2. The case of the prosecution against the Appellants was that they were persons of rowdy character and on 19.10.80 i.e. the date of occurrence, at about 8 P.M., while P.Ws. 2, 4 and 5 along with some others had gathered at the shop of P.W. 1 Sauribandhu in Majhi Sahi to purchase cigarettes, the Appellant No. 1-Gagan arrived there and asked P.W. 4 if he could be given a cigarette. His request was complied with by P.W. 4 and while the cigarette was being handed over to Gagan, Appellant No. 2-Birasen came rushing from his house towards the shop with a sharp sword, otherwise called Kati, hurling obscene abuses due to which P.W. 4 took to his hills. At that time Appellant No. 1 also asked either for a Kati or Khanda from the people who had gathered and one Trinath Behera handed him over a Bhusa. Appellant No. 2 ran behind P.W. 4 and Appellant No. 1 followed Appellant No. 2. At that time, the deceased Gopi Gouda, the father of P.W. 2. and P.W. 7 Raghunath Behera were coming from their village Dhoba Sahi towards the shop of P.W. 1. P.W. 2 was following both the Appellants. The deceased meeting the Appellants asked them why they were running with Bhusa and Khanda and at that, the Appellant No. 2 dealt a blow on the head of the, deceased by means of the sword while Appellant No. 1 dealt a blow on his head, by means of the Bhusa. The deceased, receiving severe bleeding injuries, fell down and the Appellants fled away from the spot. Thereafter P.Ws. 2, 3, 4 and 6, another son of the deceased and P.W. 5 chased the Appellants but could not apprehend them. P.W. 2 brought his father, who was still alive, to the Chhatrapur hospital for treatment but because his condition was serious, on the advice of the doctor, was taken to the M.K.C.G Medical College Hospital, Berhampur, but on the way the deceased succumbed to the injuries. P.W. 2 brought his father, who was still alive, to the Chhatrapur hospital for treatment but because his condition was serious, on the advice of the doctor, was taken to the M.K.C.G Medical College Hospital, Berhampur, but on the way the deceased succumbed to the injuries. The dead body was thereafter brought to the Chhatrapur hospital where post mortem examination was conducted by the doctor, P.W. 8. P.W. 2 lodged the F.I.R. (Ext. 1) on which investigation was taken up end the Appellants were charge-sheeted. 3. The defence of the Appellants is one of denial of the occurrence. 4. The prosecution case has been sought to be established through the evidence of P.Ws. 2, 4, 5 and 7 as the eye-witnesses and the oral dying declaration of the deceased sought to be established through the evidence of P.W. 6, another son of the deceased. 5. While P.W. 2 has stated in detail regarding the occurrence and supported the prosecution case. P.Ws. 4, 5 and 7 turned hostile and were cross-examined by the Public Prosecutor. From such cross-examination of P.W. 4, it does not appear that even in the statement before the Investigating Officer: he claimed himself to be an eyewitness, his statement there being that while he along with one Satya Gouda, Rabi Behera, Babula Gouda (P.W. 6) and others was proceeding, found the deceased-Gopi Gouda lying on the road near the back side of the shop of Malia Behera and that the deceased had sustained severe head injuries. But so far as P.Ws. 5 and 7 are concerned, their statements before the police were confronted to them and it was proved through the Investigating Officer (P.W. 9) that they had made the statements having witnessed the assault on the deceased. P.W. 5 had stated that Gagan and Birasen met the deceased near the shop of Malia and gave a Kati blow on his head resulting severe injuries and P.W. 7 had stated before toe police that as soon as the deceased-Gopi Gouda asked Gagan and Birasen as to why they were chasing holding Kati and Bhusa, Birasen gave a Kati (Khanda) blow on the head of the deceased and by the by Gagan also gave a blow by the Bhusa on the head of the deceased. From such evidence, it can unhesitatingly be concluded that, the deceased met his death on account of being dealt a blow by a sword on his head. 6. Since the consistent evidence led by the prosecution is that out of the two Appellants, Appellant No. 2 was armed with Kati (sword) and Appellant No. 1 was armed with a Bhusa, and both of them assaulted the deceased on the head rushing in his death, they had been charge-sheeted u/s 302/34, I.P.C. However, from the evidence of the doctor (P.W. 8), who pad conducted the post-mortem examination, it appears that the deceased had suffered only one external injury of an incised wound on the head involving the skin and cranium over the vertex extending to brain matter. According to the doctor the death was due to shock on account of haemorrhage and the injury was caused by a straight sharp cutting, heavy weapon. Since there was only one injury on the deceased and such injury was responsible for his death the evidence led by the prosecution that both the Appellants dealt on the head of the deceased does not inspire confidence. It is true that when there is conflict between the medical evidence and ocular statement, the ocular statements are to be preferred. But law is too well settled, that where the medical evidence completely improbables the ocular statement to have happened at all, it is the medical evidence which is to take precedence. Since on the evidence on record, there is specific evidence that the deceased had suffered only one injury and such injury was inflicted by means of a sword, whereas Appellant No. 1 was armed with a Bhusa, we are not prepared to accept that Appellant No. 1 inflicted any injury on the deceased and that the injury which caused the, death was inflicted by the Appellant No. 2 alone. Being of that view, we are also not prepared to rely upon the dying declaration so as to implicate Appellant No. 1. It might be that Appellant No. 1 also ran after Appellant No. 2 and gave a chase to P.W. 4, and might have been present at the place of occurrence, but it does not, appear likely that he played any part in inflicting the injury of the deceased. It might be that Appellant No. 1 also ran after Appellant No. 2 and gave a chase to P.W. 4, and might have been present at the place of occurrence, but it does not, appear likely that he played any part in inflicting the injury of the deceased. There is also no evidence at all that he shared the intention of the Appellant No. 2 to put the deceased to death. In that view of the matter, we would hold that the charge u/s 302/34, I.P.C. has not been brought home against the Appellant No. 1 and we accordingly acquit him. 7. In the result, the appeal is partly allowed and the order of conviction and sentence passed against Appellant No. 1 is set aside and that in respect of Appellant No. 2 is confirmed. The Appellant No. 1 be set at liberty forthwith. Final Result : Allowed