D. M. PATNAIK, J. ( 1 ) THIS appeal is against the judgment date 23/4/1985 of the learned Sessions Judge, Sundargarh wherein the learned Sessions Judge found the appellant guilty for the offence punishable under section 304 Part II, of the Indian Penal Code and. convicted and sentenced him to undergo R. I. for five years. ( 2 ) THE facts of the case in brief is that the occurrence took place on 21/5/1983 in front of the house of Ghana Sahu (P. W. 8) sometime during the late evening hours. It was alleged that P. W. 8 and the appellant's family were in litigating terms since about three months prior to the occurrence on account of the land dispute. On the date of occurrence, the appellant along with his brothers came and threatened P. W. 8 and his second son Hajari to kill them. The deceased being the grand son of Ghana Sahu (Son of P. W. 7, the informant), apprehending that his maternal grandfather was assaulted, rushed towards the house of P. W. 8 but in front of the latters house the appellant pierced a Barchha into the abdomen of the deceased as a result of which his intestine came out. The deceased Budhu somehow or other managed to go inside the house of Chana (P. W. 8) where P. W. 3 wrapped a napkin around the abdomen of Budhu (deceased ). Thereafter the villagers came before whom the deceased gave out the name of the accused as his assailant and further stated to have been assaulted by a Barchha. Subsequently he was taken to the police station and thereafter to the hospital where he died on the following day at about 7. 45 P. M. ( 3 ) IN the 313, Cr. P. C. statement the appellant denied the occurrence. He further pleaded that on account of litigation with Ghana Sahu and his family, the case was falsely foisted against him. ( 4 ) MR. A. K. Acharya, learned counsel for the appellant challenged the decision of the learned Sessions Judge on the ground that the finding of the learned Sessions Judge having been arrived at on surmises and conjectures and not on the evidence on record, the judgment is liable to be set aside. He further challenged the dying declaration made by the deceased before the witnesses and thereafter before the doctors (P. Ws. He further challenged the dying declaration made by the deceased before the witnesses and thereafter before the doctors (P. Ws. 4 and 5) as wholly unreliable. The learned Add. Govt. Advocate supported the reasoning given by the learned lower appellate court and submitted to maintain the conviction and the sentence passed by the lower court. The rival contentions need examination. ( 5 ) THAT Budhu died a homicidal death was not disputed even before the lower court. The same is not assailed before this Court. However, this court is also of the opinion that Budhu died a homicidal death because he sustained an injury on the abdominal cavity which damaged the interior wall of the stomach and the small intestine. There was also a gangrene of the large intestine because of the injury. The wound was a punctured wound and the margin was sharp. The doctor (P. W. 5) who conducted the Post-mortem examination, in his evidence stated that the injury was ante-mortem in nature and could be caused by a sharp cutting instrument and the death was due to hemorrhage and shock. Further the doctor opined that the injury was sufficient in the ordinary course of nature to cause death. Thus the deceased Budhu died a homicidal death. ( 6 ) THE prosecution relied on the evidence of P. W. 8 as an eyewitness. But going through his evidence and the 161 Cr. P. C. statement before the police, there is no doubt in my mind that he did not state before the police to have seen the actual assault. Therefore, his evidence before the court that he saw the actual assault cannot be believed because of the omission in the 161 Cr. P. C. statement ( 7 ) THEREFORE the only material on which the prosecution relied to prove the case against the appellant was the dying declaration. ( 8 ) P. W s. 2, 3, 5 and 7 are the witnesses to the said dying declaration. P. W. 2 stated that during the evening hours he was taking food where P. W. 7, father of the deceased came to his house and informed that the appellant and his relations killed his son. ( 8 ) P. W s. 2, 3, 5 and 7 are the witnesses to the said dying declaration. P. W. 2 stated that during the evening hours he was taking food where P. W. 7, father of the deceased came to his house and informed that the appellant and his relations killed his son. He went with him to the house of P. W. 8 and found the deceased was lying on the danda of P. W. 8 and a Tbandage had been put on his abdomen and he was in his sensilla. When he asked the deceased, he replied that the appellant dealt strokes to him. Thereafter he came away to his house. Thus it is found from his evidence that it is not known as to what he asked the deceased. Further from his evidence it is clear that the deceased did not give out the name of the appellant but merely stated that accused dealt a stroke. Therefore, I cannot consider it as the dying deelaration so far as this witness is concerned. P. W. 3 stated that it was at about 10. 00 P. M. he was taking his food and at that time the appellant with his two brothers and brother-in-law came to the house of P. W. 7 and searched for him (P. W. 7 ). Thereafter they went to the house of P. W. 8 and called him out but he did not come out due to fear. At that time the deceased was coming on the danda and he all of a sudden raised hullah that he was being assaulted. Thereafter P. W. 3 went out and saw the deceased lying on the road with bleeding injury on his abdomen. He put a bandage on his wound and they all brought him to his house. On being asked the deceased stated that he was assaulted-by the appellant (pasindar ). He did not ask him as to by which weapon he was assaulted nor did he sayan his own. But going though the 161 Cr. P. C. statement of this witness, it is amply clear that before the 1. 0. this witness had stated that the deceased disclosed the name of the appellant as his assailant and further disclosed to have been assaulted by a spear. But going though the 161 Cr. P. C. statement of this witness, it is amply clear that before the 1. 0. this witness had stated that the deceased disclosed the name of the appellant as his assailant and further disclosed to have been assaulted by a spear. It seems, in the evidence, P. W. 3 intentionally omitted to state about the spear with a view to reconcile his evidence in Court with the dying declaration, Ext. 2 before the doctor as the dying declaration coupled with the evidence of P. W. 4 shows that the deceased had stated before the doctor that he was assaulted by a Gupti. P. W. 7 stated in his evidence that they carried the deceased on a cot to the Police Station and when P. W. 1 and others asked the deceased as to how he received injuries, the deceased stated that the accused dealt a blow by means of Barchha to his abdomen. But as P. W. 1 stated nothing about the dying declaration by the deceased so stated by P. W. 7. P. W. 7 also did not mention as to who were accompanying him (P. W. 1 ). Therefore, the material evidence with regard to dying declaration is absent so far as this witness is concerned. No reliance can be placed on his evidence for the infirmities in his evidence as mentioned above with regard to the dying declaration. That apart, he lodged F. I. R. , Ext. 9. In the F. I. R. P. W. 7 mentioned that he along with P. W. 3 and Hara Sahu and Bira Sahu (both not examined) went to the police station where he lodged the report. Out of these witnesses, P. W. 3 only has been examined. The others have not been examined in the Court. Further while mentioning about the occurrence, he stated that the assault on the deceased was witnessed by the villagers, namely, Arjun Bacik, Krushna Patra, Mohan Patra and Dharani Patra. None of these persons has been examined. This is another infirmity in the prosecution case. ( 9 ) P. W. 4 is the doctor who recorded the dying declaration vide Ext. 2. It is found from Ext. 2 read with the evidence of P. W. 4 that the deceased was admitted to the hospital on the same day at about 10. 10. This is another infirmity in the prosecution case. ( 9 ) P. W. 4 is the doctor who recorded the dying declaration vide Ext. 2. It is found from Ext. 2 read with the evidence of P. W. 4 that the deceased was admitted to the hospital on the same day at about 10. 10. P. M. and it seems at the first instance, the dying declaration was recorded. P. W. 4 stated to have recorded the dying declaration, Ext. 2 which he proved. The dying declaration so recorded shows that the do deceased gave out the weapon of assault as the Gupti when the prosecution case was the deceased was assaulted by a spear. The dying declaration of the deceased that he was assaulted by a Gupti is certainly to be inconsistent with the prosecution case and thereby making the prosecution case doubtful. It is more surprising to note that P. W. 4 though in the evidence stated to have recorded the dying declaration and proved the same, at the same time stated that P. W. 5. Dr. Biswal who carried on an operation of the abdo- if men was also present at the time of recording the as dying declaration. Going through the evidence of as P. W. 5 (Dr. Biswal) it is amply clear that he did al not state in his evidence as to what was the statement made by the deceased by way of dying re declaration. He has merely stated in his evidence that he signed the dying declaration, Ext. 2 without mentioning the statement made by the deceased. Thus although his presence is believed, but in the absence of his own statement to have the heard the dying declaration, his evidence in this regard cannot considered to be a corroborative evidence to that of evidence of P. W. 4 so far as the n: dying declaration is concerned. Another disquieting froture is that when P. W. 4s evidence in the court is a substantive evidence with regard to the dying declaration, going through the case diary, it is found that the 1. 0. has not recorded his statement under section 161 Cr. Another disquieting froture is that when P. W. 4s evidence in the court is a substantive evidence with regard to the dying declaration, going through the case diary, it is found that the 1. 0. has not recorded his statement under section 161 Cr. P. C. Further P. W. 5 who conducted the Post-mortem examination and stated to have present at the time of recording of the dying declaration, surprisingly did not state about the statement of the deceased recorded a by way of dying declaration. Whereas, the 1. 0. has recorded his statement under section 161 Cr. I. P. C. that he was a witness to the dying declaration. In the circurnstances, when there is no statement of P. W. 4 recorded under section 161, Cr. P. C. , his statement in the Court about the dying declaration creates a doubt in the mind for which I am not in a position to accept his statement with regard to the dying declaration. Therefore, I have no hesitation to hold that dying declaration so recorded has become doubtful in view of the various infirmities pointed out in the foregoing paragraphs. There is other materials on record indicating the appellant to be the perpetrator of the act. ( 10 ) IT will not be out of place to rnention that ere are other discrepancies which also strike at e root of the prosecution case. When P. W. 3 stated in the cross-examination that it was a dark fortnight and the danda was not visible clearly, P. W. 7 stated in the cross-examination that it was a moonlit night and he denied the suggestion that it would be a dark night one could not see the assault. P. W. 8 stated that the deceased was assaulted by the appellant with a spear on his abdomen and that he fell down with his head and my inside his door with legs outside. This directly contradicted the evidence of P. W. 7 who on the other hand, stated that on hearing hullah of the appellant and his brothers, his son, the deceased, came running from his house. At that time the appellant dealt a cut blow by means of a spear on the abdomen of the deceased and the deceased fell down with bleeding injury. P. W. 3 rushed to the spot and bandaged the wound by means of napkin. At that time the appellant dealt a cut blow by means of a spear on the abdomen of the deceased and the deceased fell down with bleeding injury. P. W. 3 rushed to the spot and bandaged the wound by means of napkin. In the cross-examination this witness sated that the actual assault took place on danda outside the boundary wall of the house of P. W. 8. This is just opposite to the evidence of P. W. 8 whose evidence show that the assault as if took lace inside his house. After anatysing the entire evidence on record, I arn not in a position to agree with the finding of the learned Sessions Judge for the reasons already stated by rne above. ( 11 ) IN the result, the prosecution having ailed to prove its case against the appellant beyond reasonable doubt, the benefit of doubt should go to the appellant and therefore, he is acquitted of the charge and be set at liberty forthwith. The bail bond stands discharged. The Criminal Appeal is accordingly allowed. Appeal allowed.