K. P. MOHAPATRA, J, J. ( 1 ) THIS appeal is directed against the judgment passed by the learned Additional Sessions Judge, Berhampur, acquitting the respondent of a charge under Section 302 I. p. C. ( 2 ) THE prosecution case in brief is that deceased Surya Gamango of village Kakaul within Serango Police Station of Ganjam District was sleeping inside a hut, along with his minor son (P. W. 2), situate on his thrashing 1100r at a little distance from his residential no use on 1-12-1981. At about 10 Oclock at night, the respondent came and by means of a Chella (a small spear) stabbed the deceased on the abdomen resulting in a severe bleeding injury. The deceased woke up and raised a hue and cry to the affect that he had been stabbed by the respondent. Several people including his wife (P. W. 1) and some other witnesses arrived, before whom the deceased expressed that the respondent stabbed him by means of a Chella and ran away. In order to savel his life, the deceased was removed to Guma Primary Health Centre where he was given treatment. He also made a dying declaration (Ext. 4) which was recorded by the Medical Officer (P. W. 7 ). The deceased, however, did not survive and-succumbed to the injury. F. I. R. (Ext. 2) on the report of the Medical Officer, Guma Primary Health Centre, was registered. Investigation commenced, and after close thereof, charge-sheet was submitted against the respondent. ( 3 ) THE respondent during trial denied that he was the author of the crime. ( 4 ) THE learned Additional Sessions Judge on a critical appraisal of the prosecution evidence doubted the complicity of the respondent with the crime and acquitted him. ( 5 ) P. W. 5, a Medical Officer of Parlakhemundi Hospital conducted the post-mortem examination of the dead body of the deceased. He found an incised wound of the size of 3 x 1" on the abdomen. It was as deep as the thickness of the abdomen. There were also consequential internal injuries to the small intestine. The wound, according to his opinion, could be caused by the Chella (M. O. 1) and death was due to internal haemorrhage on account of the wound. In view of his evidence, there is little doubt that the death of the deceased was homicidal in nature. There were also consequential internal injuries to the small intestine. The wound, according to his opinion, could be caused by the Chella (M. O. 1) and death was due to internal haemorrhage on account of the wound. In view of his evidence, there is little doubt that the death of the deceased was homicidal in nature. This fact was not challanged in the appeal. ( 6 ) IN order to prove the case, prosecution has relied upon the evidence of two eye witnesses to the occurrence (P. W. 2 and 9), the dying declaration (Ext. A) recorded by P. W. 7, as well as the dying declaration made by the deceased in the presence of some witnesses, and discovery of the Chella (M. O. 1) at the instance of the respondent while he was in police custody. It is necessary to consider the prosecution evidence in order to find out if the evidence is reliable so as to convict the respondent for an offence of murder. ( 7 ) P. W. 2 was the minor son of the deceased. He stated in his evidence that he knew the respondent belonging to village Dangusing. On a Tuesday preceding the death of the deceased, he was sleeping inside the hut situate on the thrashing floor. Both the deceased and himself were watching the paddy heaps stacked there. It was a moonlight night Fire was also burning near the hut. The respondent stabbed the deceased by the Chella (M. O. 1) on the abdomen. The deceased told him-that the respondent stabbed him. He also saw the respondent inflicting the stab wound and then running away. He called his mother (P. W. 1 ). When she came, the deceased told her that the respondent stabbed him. It will appear from the cross-examination of this witness that he did not make material statements before the Investigating Officer (P. W. 13) under Section 161 Cr. P. C. Statements made, as well as omissions, were confronted to him and were brought into the evidence during examination of the Investigating Officer (P. W. 13 ). It will appear from para 11 of the evidence of the Investigating Officer that P. W. 2 did not state before him that he saw the respondent giving a stab blow to his father with a Chella. He also denied to have seen the occurrence as he was asleep. It will appear from para 11 of the evidence of the Investigating Officer that P. W. 2 did not state before him that he saw the respondent giving a stab blow to his father with a Chella. He also denied to have seen the occurrence as he was asleep. He stated that when he got up, he saw the injury on the stomach of his father and informed his mother at home. He also did not state that it was a moonlit night. It will thus appear that there were material contradictions between his evidence in court and the statement made by him under Section 161 Cr. P. C. When his evidence is read as a whole, it gives an impression that although he might have been inside the hut, he was asleep when the deceased was stabbed on the abdomen, but subsequently got up and saw the bleeding injury. He had, therefore, no occasion to see if the respondent was the assailant of the deceased. He seems to be a pure and simple post occurrence witness who did not see the real assault, and so his evidence as an eye witness to the occurrence is of no material value. Coming to the evidence of P. W. 9, the other eye witness to the occurrence, it will appear that his behaviour was quite strange and unnatural inconsistent with normal human conduct when there was confrontation with an assailant out to commit the murder of the victim. He stated that at night when he was at home, the respondent came with a Chella (M. O. I.) in hand. He asked him to accompany to the house of the deceased. Therefore, he accompanied the respondent. The deceased was in the hut situate on his thrashing floor. The respondent asked him to wait at a distance of about 100 cubits from that hut under a tamarind tree. Accordingly, he waited there. The respondent went alone to the hut where the deceased was sleeping. It was moonlit night and fire was burning at a distance of about 2 to 3 cubits from the hut. He saw the respondent stabbing the abdomen of the deceased by means of the Chella (M. O. I. ). Accordingly, he waited there. The respondent went alone to the hut where the deceased was sleeping. It was moonlit night and fire was burning at a distance of about 2 to 3 cubits from the hut. He saw the respondent stabbing the abdomen of the deceased by means of the Chella (M. O. I. ). Thereafter, the respondent came back and threatened him not to disclose the incident before anybody saying that he shall stab him with the Chella if he would disclose the incident to others. After talking for sometime, the respondent left the place. The deceased called his wife shouting that the respondent stabbed him. P. W. 2 was inside the hut. He also raised a hue and cry saying that the respondent stabbed his father P. W. I arrived there and called the villagers; It will appear from his cross- examination that he did not inform anyone of the village about the alleged incident. He disclosed it for the first time before the Investigating Officer on Friday following the death, which means three days after. He did not reveal in the statement under Section 164 Cr. P. C. that the respondent came to his house on the night of the occurrence with a Chella in his hand and asked him to accompany to the house of the deceased. He also did not disclose in the above statement that the deceased called his wife shouting that the respondent stabbed him. He kept on standing without rushing to help the deceased, although he saw the respondent giving the stab blow on the abdomen of the deceased. He did not raise hue and cry. He was still standing at the same place until the arrival of the witnesses at the spot. He did not also enquire from the respondent as to why he stabbed the deceased. Apart from the material omissions and the conduct of the witness when the alleged incident took place, it was highly improbable that the respondent had gone to his house with M. O. I. and asked to accompany him so that he would witness the incident. In normal circumstances, a man, who intends to commit a murder or a grave crime, will not require any help from a person like P. W. 9 and risk detection of the crime through such person. In normal circumstances, a man, who intends to commit a murder or a grave crime, will not require any help from a person like P. W. 9 and risk detection of the crime through such person. Even though it might have been a moonlit night and some fire was burning, it might not have been possible on the part of this witness to see the incident of stabbing from a distance of 100 cubit, particularly when it took place inside a hut. There is nothing in the evidence as to whether the hut was covered on all sides or not. If the hut was covered on all sides except the entrance, it was well nigh impossible on the part of this witness to see the occurrence. Even if it was not covered on all sides, yet it was not possible to witness the incident on account of the shade of the thatched roof. For all these reasons and those elucidated by the learned Additional Sessions Judge, it is unsafe to place reliance on the evidence of P. W. 9 as an eye witness to the occurrence. It is, therefore, concluded that neither P. W. 2 nor P. W. 9 witnessed the incident of stabbing by the respondent on the abdomen of the deceased by means of M. O. I. ( 8 ) P. W. 7, the Medical Officer of Guma Primary Health Centre, stated that he received the deceased in an injured condition and admitted him as an indoor patient at about 10 Oclock in the night on 1-12-1981. There was a stab wound on the front side of his abdomen. He gave treatment to the injured. On 2-12-1981 at about 6. 00 a. m. he recorded the dying declaration of the injured who was speaking in Oriya. He recorded the version of the injured in his own way in Oriya language. After the statement was recorded, it was not read over and explained to the injured. He did not take the signature or thumb impression of the declarant on the dying declaration. The injured was in a sound state of mind and was able to talk. He did not furnish any certificate at the bottom of the dying declaration to the effect that the injured was in a sound state of mind and was giving rationals answers. The injured was in a sound state of mind and was able to talk. He did not furnish any certificate at the bottom of the dying declaration to the effect that the injured was in a sound state of mind and was giving rationals answers. P. W. 6 was present when the dying declaration of the injured was recorded. It would appear from the dying declaration (Ext. 4) that it was recorded on 2. 12. 1981 at 2. OOa. m. In all five questions were asked. The first three of them contained description of the name and village of the injured, as well as the place of the incident. The next two questions related to the name of the assailant. The deceased is said to have stated that he saw Rasu Gamango stabbing him by means of a knife. The deceased did not state the address of the assailant. No certificate was appended nor the signature of P. W. 6 at the foot of Ext. 4. In cross-examination, P. W. 7 made an important admission. He stated that he did not see P. W. 6 before 6. 00 a. m. to 7. 00 a. m. on 2-12-1981, which means, if the dying declaration was recorded at 2. 00 a. m. at night, P. W. 6 could not have been present at that time. He also stated that the injured was in a semi-conscious stage and was not able to give rational answers from 2. 00 a. m. to 6. 00 a. m. on 2-12-1981. The significance of this statement is that when the dying declaration was made by the injured may be at 2. 00 a. m. or 6. 00 a. m. , as the case may be, he was not in a fit state of mind, because he was in a semi - conscious stage and was not able to give rational answers. This being the position, it was highly unlikely that the injured stated before P. W. 7 clearly the name of the assailant and the manner of the assault. P. W. 6 stated that in the morning two persons of village Kakaul came and called him to go to Guma Primary Health Centre saying that the deceased had received a stab injury in the previous night and had been admitted as an indoor patient. He came to Guma Primary Health Centre and found the deceased lying injured. P. W. 6 stated that in the morning two persons of village Kakaul came and called him to go to Guma Primary Health Centre saying that the deceased had received a stab injury in the previous night and had been admitted as an indoor patient. He came to Guma Primary Health Centre and found the deceased lying injured. On enquiry by him, the deceased told him that the respondent had stabbed him with a Chella in the previous night while he was asleep in the thrashing floor. The deceased knew Oriya just a little though he understood the language. In his presence, the Medical Officer recorded the dying declaration at about 10:00 a. m. The deceased was making the Statement in Sour a language and he was interpreting the same in Oriya to the Medical Officer who was accordingly recording the dying declaration. He did not sign the dying declaration. A few statements made by this witness under section 161. Cr. P. C. contradictory to the evidence were confronted to him and were brought out in the cross-examination of the Investigating Officer (P. W. 13 ). He did not state under section 161 Cr. P. C. that on enquiry the deceased told him that the respondent gave a blow with a Chella to him. Further he did not state that he had interpreted the statements of the deceased made in Sour a language in odiya to the Medical Officer. With regard to his evidence that on enquiry the deceased told him that the respondent was the assailant, there was a clear omission amounting to material contradiction. His evidence is also in variance with the evidence of P. W. 7 with regard to the time and the manner of recording of the dying declaration. P. W. 12, another Investigating Officer admitted ir his crossexamination that during investigation it transpired that the Medical Officer recorded the dying declaration at 2. 00 a. m. on 2-12-1981. When the evidence of these witnesses is taken into consideration, there is sufficient scope to entertain grave doubt as to the existence of a dying declaration made by the deceased soon after the occurrence. It is, therefore unsafe to place reliance on Ext. 4, as well as the evidence of P. W. s 6 and 7, who have supported it. When the evidence of these witnesses is taken into consideration, there is sufficient scope to entertain grave doubt as to the existence of a dying declaration made by the deceased soon after the occurrence. It is, therefore unsafe to place reliance on Ext. 4, as well as the evidence of P. W. s 6 and 7, who have supported it. In this connection, it is necessary to refer to the evidence of P. W. s 1 and 4, both of whom stated that when they went to the hut on hearing the hue and cry, the deceased gave out that Rasu stabbed him with a Chella. No further descriptive particulars of Rasu were given. It was not stated as to whether Rasu belonged to village Dhangusing or any other village. P. W. 6 admitted in his cross-examination that there is another person Rasu Gamango at village Linga. If this be the position, it is not possible to fix the liability on the respondent, because a reasonable suspicion can be entertained that the other person having the same name could have been the assailant of the rieceased who intended to convey to P. W. s 1 and 4 that Rasu Gamango of the other village and not the respondent was his assailant. Therefore, even if the evidence of P. Ws. 1 and 4 might be correct, yet it cannot be said that they meant to involve the respondent and not any other person having the same name. In consideration of the aforesaid evidence and taking into account the reasons assigned by the learned Additional Sessions Judge, we are satisfied that the evidence of dying declaration is of doubtful nature and no absolute reliance could be placed on the same. ( 9 ) THE last item of evidence is discovery of M. O. I. at the instance of the respondent. When the major items of evidence discussed above seem dubious, even if the evidence as to the discovery of M. O. I. is accepted, it will not be sufficient to base the conviction, particularly when no blood was detected from M. O. I. by chemical and serological examination. ( 10 ) THERE is yet a faint suggestion of enmity between the deceased and the respondent, for which they were not in talking terms. ( 10 ) THERE is yet a faint suggestion of enmity between the deceased and the respondent, for which they were not in talking terms. Even if there, might have, been strained relationship, between them, in the absence of clinching evidence in a serious case of murder enmity or ill-will between the assailant and the victim will not be sufficient for recording an order of conviction. ( 11 ) IN the ultimate analysis, we are of the same view as the learned Additional Sessions Judge. The prosecution failed to bring the charge home to the respondent by credible and unimpeachable evidence. Whatever evidence has been placed seems doubtful and so the respondent deserved the benefit of doubt. In the result, the appeal is dismissed. Appeal dismissed.