JUDGMENT : L. Rath and J.M. Mohapatra, JJ. - The Appellant, Susil Lugun, along with five others stood their trial u/s 396, 326 and 323, I.P.C. for having committed the murder of one Sukra Oram while committing dacoity in his house and for also having severely injured his Wife (P.W. 12), as also his son P.W. 9 and two daughters, P.Ws. 10 and 11. The charge u/s 326, I.P.C. was confined to the injuries caused to P.W. 12 whereas the charge u/s 323, I.P.C was far assaulting P.Ws. 9, 10, and 11. 2. In the trial, the learned Additional Sessions Judge came to the conclusion that the charge u/s 396, I.P.C. was not proved against any of the accused but coming to the conclusion that the Appellant cut the neck of the deceased causing his death convicted him u/s 302, I.P.C. and sentenced him to imprisonment for life. He also came to the conclusion that only the Appellant was guilty u/s 326, I.P.C. for having inflicted knife injury an P.W. 12 and convicted him thereunder and sentenced him to R.I. for two years and directed both the sentences to run concurrently. All the accused persons were acquitted of the charge u/s 323 I.P.C. 3. Mr. P.K. Padhi, learned, Counsel appearing for the Appellant at the outset raised a question that since the Appellant was never charged u/s 302, I.P.C. a conviction thereunder was not sustainable merely because the charge u/s 396, I.P.C. failed. The objection is well taken. It is no doubt true that where an accused has been charged for a graver offence, but an evidence the offence is not made a lesser offence is found to have been established, the court would be within its jurisdiction to convict the accused for such lesser offence, the principle being that no prejudice is caused thereby to the accused. But where the evidence disclosed some other unconnected offence than for what the accused has been charged to have been committed, he cannot be convicted therefore without there being a specific charge for the same. Also, if an offence graver than the one charged appears to have been committed, a conviction therefore cannot ensue, he having not been charged therefor. Such view is based-upon the principle that accused having not been called upon to answer the charge, the prejudice to him would be presumed. 4. Also, if an offence graver than the one charged appears to have been committed, a conviction therefore cannot ensue, he having not been charged therefor. Such view is based-upon the principle that accused having not been called upon to answer the charge, the prejudice to him would be presumed. 4. It cannot be said that the charge u/s 302, I.P.C. is far a lesser offence than a charge u/s 399, I.P.C. The very punishment stipulated for an offence u/s 302, I.P.C. is death or in the alternative imprisonment for life whereas u/s 396, I.P.C. the punishment is either death or imprisonment for life or rigorous imprisonment for a term which may extend to ten years as also fine. Inasmuch as there is no provision for a punishment lesser than either death or imprisonment for life u/s 302, I.P.C. it cannot be termed as a lesser offence than that u/s 396. This question has been considered by a Special Bench of the Calcutta High Court in Madhusingh Kaiharta and Others Vs. Emperor, where identical conclusion was reached. In that view of the matter it must be held that the conviction of the Appellant u/s 302, I.P.C. is not sustainable and hence is set aside. 5. As regards the conviction of the Appellant u/s 326, I.P.C. the relevant witnesses bearing on the fact are P.Ws. 9 to 12. Though each one of them made a statement in the court of the Appellant having inflicted the cut injuries on P.W. 12, yet P.W. 9 had not stated such facts before the Investigating Officer and had made a general statement that all the accused persons had assaulted his mother. As would appear from the statement made before the Investigating Officer, P.W. 13, P.W. 9 had not specifically stated before him that the Appellant had injured his mother with a knife. Even though P.Ws. 10 and 11 stated in the court of having heard the hullah raised by their mother (P.W. 12) and saw the Appellant inflicting knife, injuries on her, yet such statement is not believable since P.W. 12 herself never uttered a word before the Investigating Officer of only the Appellant having inflicted the injuries upon her. Her statement before the court is also not otherwise believable since it is her case that she had got up on the accused persons entering her verandah. Her statement before the court is also not otherwise believable since it is her case that she had got up on the accused persons entering her verandah. The Appellant cut the neck of her husband with a knife for which she raised hullah and thereafter the Appellant stabbed her with a knife on different parts of her body. If the Appellant played such specific part in killing her husband and inflicting injuries on her, it is but natural that she would have made the statement implicating the Appellant before the Investigating Officer. But surprisingly, even though her statement was recorded by the police about two months after the incident yet she never named the Appellant to have played such a role. For such reason her evidence implicating the Appellant has to be discarded and for the very same reason, the evidence of P.Ws. 10 and 11 would not also inspire any confidence. Being of that view, we would hold that the charge u/s 326, I.P.C. has not been established against the Appellant also. 6. In the result, this appeal is allowed and the conviction and sentence of the Appellant is set aside. The Appellant be set at liberty forthwith. Final Result : Allowed