P. K. MOHANTY, J. ( 1 ) THIS is an appeal from jail against the order of conviction under Sec. 302, I. P. C. and sentence of life imprisonment in Sessions Case No. 14 of 1992 passed by the learned Additional Sessions Judge, Parlakhemundi. ( 2 ) PROSECUTION case, briefly stated, is that the accused-appellant is the brother of deceased Laxmi Karjee. It was alleged that on the evening of 15-10-1990, accused Narayan Karjee killed his sister Laxmi Karjee by means of stone in spite of the protests made by his two wives. The eyewitnesses reported the matter to the Ward Member of the village, who in turn lodged the First Information Report in the police station. After completion of investigation, the Investigating Officer submitted the charge-sheet against the accused for having committed murder of his sister under Sec. 302, I. P. C. ( 3 ) THE defence plea is one of complete denial and that the deceased expired due to fall on the stone and this false case has been registered without any basis. ( 4 ) THE deceased is the sister of the accused. P. Ws. 2 and 3 are two wives, who are eyewitnesses to the occurrence. P. W. 4 is the brother-in-law of the accused being brother of P. W. 2. It is the prosecution case that the deceased and accused were temporarily residing in their respective bagada houses. Both the deceased and the accused have got their houses in village Katakumba. On the date of occurrence, the accused was residing with his two wives in the bagada house and the deceased was in her bagada house. It is the evidence of P. Ws. 5 and 6, the post-occurrence witnesses that P. W. 1 is the Member of the village Katakumba. P. W. 1 on the next date of occurrence heard about the occurrence from P. Ws. 2 and 3 and lodged the First Information Report. P. W. 4 is another eyewitness to the occurrence, who is the brother-in-law of the accused being the brother of P. W. 2. P. Ws. 5 and 6 proceeded to the spot after hearing about the occurrence and saw the dead body of Laxmi Karjee. It is the evidence of P. Ws. 1, 2, 3, 4 and 5 that the accused confessed his guilt of having killed his sister. P. Ws. 5 and 6 proceeded to the spot after hearing about the occurrence and saw the dead body of Laxmi Karjee. It is the evidence of P. Ws. 1, 2, 3, 4 and 5 that the accused confessed his guilt of having killed his sister. P. W. 7 is the doctor, who had conducted the post mortem examination and P. Ws. 8, 9 and 10 are Investigating Officers. ( 5 ) P. WS. 2, 3 and 4 are the eyewitnesses to the occurrence. P. W. 2 is the first wife of the accused and according to her, she along with accused and P. W. 3 was residing in their bagada house and deceased is the sister of the accused in her own bagada. In the evening of the date of occurrence, she saw the accused chasing the deceased to kill and she protested, but in spite of her protest, he gave stone blow on the head of the deceased, as a result of which Laxmi fell down. Soon after Laxmi fell down, the accused gave further blows by means of stone, as a result of which she died. It further transpires from the evidence of P. Ws. 2 and 3 that they hid themselves inside the bagada seeing the action of the accused and on the next date of the occurrence, they proceeded to their village and reported the matter to P. W. 1. It is the evidence of P. W. 1 that after getting the information, he came to the spot, saw the dead body, again went back to village and called the villagers, who also saw the dead body. This witness further says that he along with 10 villagers went to the accused, who was present in the bagada house and on being asked the accused confessed his guilt saying that he had killed his sister Laxmi by means of a stone. P. Ws. 1 to 5 had got no enmity with the accused. ( 6 ) THE learned counsel for the appellant contends that even though the names of four witnesses have been mentioned in the First Information Report by the informant, two of them namely, P. Ws. 4 and 6 have been examined. P. W. 6 is not an eyewitness and he does not support the version of P. Ws. 2, 3 and 4. 4 and 6 have been examined. P. W. 6 is not an eyewitness and he does not support the version of P. Ws. 2, 3 and 4. Thus, it is the contention of the learned counsel that the two material witnesses named in the FIR having not been examined, the prosecution has tried to suppress the truth. The learned counsel has referred to a decision reported in State of Orissa v. Dayal alias Dayanidhi Ghosh and others, to contend that if the FIR witnesses have not been examined without any explanation, that is a serious infirmity to discredit the prosecution case. The contention of the learned counsel is misconceived. The FIR has been lodged by P. W. 1 who is admittedly not an eyewitness and only after he was informed by P. Ws. 2 and 3, he lodged the FIR. Thus, if in the FIR some names have been mentioned, non-examination of such witnesses would not prejudice the accused so as to discard the prosecution case. The learned counsel has also referred to a decision of the Apex Court in Ram Kumar Panda v. The State of Madhya Pradesh, to contend that no credence to the version of the eye-witnesses would be given in case their names are not mentioned in the FIR. The facts of that case are quite different and the FIR was lodged by one of the eyewitnesses. It is to be stated that the FIR having not been lodged by any eyewitnesses and in the present case by a third person, the naming or not naming of the eyewitnesses would not be an infirmity. The learned counsel further contended that the weapon of offence according to the prosecution case being lathi and stones as per the FIR the prosecution has adduced evidence in court to the extent that the assault was made by means of a stone. Just in order to corroborate the medical evidence and as such it is vulnerable. As has been observed earlier the FIR is not lodged by any of the eyewitnesses or even the post-occurrence witness who have seen the incident where it took place or immediately after the occurrence and as such this submission of the learned counsel does not impress us and is rejected. ( 7 ) THE next submission of the learned counsel is that the place of occurrence is shrouded with deep mystery. ( 7 ) THE next submission of the learned counsel is that the place of occurrence is shrouded with deep mystery. According to the learned counsel, the place of occurrence has not been disclosed in the FIR, P. W. 1 in his examination-in-chief stated that they saw the dead body of Laxmi lying near the hut of Laxmi. That hut is in the bagada of Laxmi. In paragraph 9 of the cross-examination, P. W. 1 stated that the distance between the bagada of the accused and the deceased is 200 yards and at the time of occurrence Janna crops (plants) were on both the bagada and the height of such plants is about 6 feet. It is further contended that the P. Ws. 2 and 3 who are the eyewitnesses according to the prosecution, have not stated regarding the place of occurrence except baldly saying that they saw the appellant chasing Laxmi to kill. P. W. 4 has stated that the appellant gave blows, while she was standing, but in paragraph-4 of the cross-examination he has stated that occurrence took place just after sunset but however darkness had not prevailed and as such, at a distance the possibility of the assault being seen by this witness is doubtful. It is further contended that the spot map indicated that the bagada and hut are two different places, but the prosecution has been silent and has offered no explanation as to how the dead body was removed to the bagada house and by whom. In essence, the learned counsel submits that in view of such discrepancy in the evidence of the witnesses and the improbabilities of the case, the prosecution witnesses specially P. Ws. 2, 3 and 4, the socalled eye-witnesses should have been disbelieved by the learned trial Court. The learned counsel has referred to a decision in Amar Singh and others v. State of Punjab, and contends that the evidence of eyewitnesses on the place of incident if found inconsistent, the accused is entitled to the benefit of doubt. In the present case, the Investigating Officer has not seized the bloodstained earth from the alleged spot no chemical report of the blood has been produced before the learned Addi. Sessions Judge. The contention of the learned counsel needs consideration. In the present case, the Investigating Officer has not seized the bloodstained earth from the alleged spot no chemical report of the blood has been produced before the learned Addi. Sessions Judge. The contention of the learned counsel needs consideration. ( 8 ) THE Investigating Officer has not seized any bloodstained earth from the spot of occurrence inasmuch as the spot of occurrence, according to the eyewitnesses P. Ws. 2, 3 and 4, is near the bagada, whereas the dead body of the deceased was found by the post-occurrence witnesses and the Investigating Officer inside the bagada house. According to these witnesses, the hut was in the bagada of the deceased and the distance between the bagada of the accused and the deceased will be 200 yards and at the time of occurrence Janna crops were standing between the two bagadas, which were of 6 feet height and as such, the assault as well as the further assault after the deceased fell down probably could not have been witnessed by the eye-witnesses. An other interesting feature is that P. Ws. 2 and 3 have not stated that exact place of occurrence except saying that they saw the appellant chasing Laxmi to assault and thereafter said that the accused assaulted the deceased by means of a stone. P. W. 4 has stated that the appellant gave blows while she was standing, without saying the spot where she was assaulted. ( 9 ) ON consideration of the evidence of these witnesses, their evidence is not free from doubt and as such, complete reliance cannot be placed on the version of these witnesses in the facts and circumstances of the case. It also further transpires from the evidence of P. W. 2 that P. Ws. 3 and 4 and Laxman have seen the occurrence. Out of these witnesses, Laxman, who is an independent witness, has not been examined by the prosecution, which creates doubt about the prosecution case. P. W. 4 has also stated that P. Ws. 2, 3, himself and Dandapani have seen the occurrence, but Dandapani, who is examined as P. W. 6 does not say that the has witnessed the occurrence. This discrepancy also lends support to the submission of the learned counsel that the witnesses cannot be wholly relied upon. P. W. 4 has also stated that P. Ws. 2, 3, himself and Dandapani have seen the occurrence, but Dandapani, who is examined as P. W. 6 does not say that the has witnessed the occurrence. This discrepancy also lends support to the submission of the learned counsel that the witnesses cannot be wholly relied upon. ( 10 ) THE medical evidence of P. W. 7, the doctor, who conducted the autopsy, reveals that there was a lacerated wound on the left forehead and no external injury was found expect the injury on the forehead. In cross-examination, he has stated that he has found a hole on the forehead of the deceased: besides, there were injuries above the left ear. P. W. 1 in his statement said that they saw three injuries on the head of Laxmi. According to P. W. 2, the accused gave stone blows on the near of the deceased, as a result of which she fell down and the accused gave another blow. It transpires from the evidence of P. Ws. 2, 3 and 4 that two blows in all were given to the deceased by the accused and according to P. W. 4 one blow by stone was given when the deceased was standing. Thus, this discrepancy in the evidence of the doctor and the eyewitnesses with regard to the number of blows and the corresponding injuries in the person of the deceased goes a long way to create serious doubt on the prosecution version. ( 11 ) MR. S. Jena, learned Addi. Standing Counsel appearing for the State has referred to a decision Raghunandan v. State of Uttar Pradesh, to contend that non-sending of the bloodstained earth to the Chemical Examiner will always not affect the prosecution case where there are several reliable evidence on record. In the facts and circumstances of the case, reliability of the evidence of P. Ws. 2, 3 and 4 is not free from doubt, inasmuch as P. W. 10 in para-1 of his cross-examination has stated that he has not marked the trail of spot leading to the house of the deceased. The dead body of the deceased was found inside the hut whereas the spot of occurrence, according to the eyewitness is far away and outside the hut. The dead body of the deceased was found inside the hut whereas the spot of occurrence, according to the eyewitness is far away and outside the hut. In view of the discrepancies in the evidence of the witnesses and the actual spot of occurrence, the prosecution case is not free from doubt and under the facts and circumstances of the case, benefit of doubt has to be given to the appellant. ( 12 ) IN the facts and circumstances of the case, we allow the appeal and set aside the order of conviction and sentence passed by the learned Addi. Sessions Judge. The accused appellant is acquitted of the charge under Sec. 302, I. P. C. The appellant be set at liberty forthwith, if he is not required in any other case. P. C. Naik, J.- I agree. Appeal allowed. .