P. K. MOHANTY, J. ( 1 ) THIS is an appeal from jail against the order of conviction passed under section 302, I. P. C. and a sentence of life imprisonment passed by the learned Additional Sessions Judge, Parlakhemundi. ( 2 ) THE prosecution case is that on 21-7-199 1 at about 3 p. m. appellant Tabatia Mallick and Tarini Naik assaulted Buga Paik (hereinafter referred to as the deceased) and due to which the deceased sustained injuries on his head and became senseless. His wife reported the matter to the informant (P. W. 1), who after coming to the spot of occurrence lodged the First Information Report in Mahana Police Station at 9 p. m. The case was investigated and on finding that a primafacie case was make out, a charge sheet under section 302, I. P. C. was filed against accused Tabatia and accused Tarini Naik was charge-sheeted under Section 323, I. P. C. ( 3 ) THE defence plea as revealed from the record is that P. W. 3 Gelli, the wife of the deceased killed her husband as he had seen her indulging in an illicit intercourse with P. W. I. ( 4 ) THE doctor P. W. 14 who conducted the autopsy on the deceased Buga found the following injuries:1. One lacerated wound 4 x 1/ 2 x bone deep situated anterior posteriority over left front to parietal region. 1/2 inner to the hair margin extending back wards. 2. Abrasion with superficial skin laceration 2-1/2 x 1-1/2 enterior posteriorly over frontal region. 3. Ecchymosis of scalp over left vault left parietal left temporal and left frontal region with sub seal pal haemotomma. 4. Separation of the scalp bone along with the coronal suiter of the bone from the left end of the coronal suiter fissor fracture extending to left frontal and left temporal in multiple lines. In the opinion of the doctor, all the injuries were antemortem in the nature and might have been caused by blunt force impact and would be fatal in ordinary course of nature. The death was due to coma resulting from the above head injuries. ( 5 ) P. WS. 2 and 3 are the witnesses to the occurrence, whose evidence we may now consider. P. W. 2 is a front door neighbour of the deceased. The death was due to coma resulting from the above head injuries. ( 5 ) P. WS. 2 and 3 are the witnesses to the occurrence, whose evidence we may now consider. P. W. 2 is a front door neighbour of the deceased. His evidence is that at about 3 p. m. he saw accused Tabatia and deceased quarrelling over some cattle and that accused Tarini was also present. Both the accused persons made the deceased naked and threw away his clothes. The deceased went inside his house and came out after putting on some clothes. Accused Tarini told Tabatia to assault the deceased. So Tabatiagavc a Pahuranit blow on the head of the deceased, who sustained a bleeding injury and fell down. Tabatia after throwing the Pahurani near the spot went away. In cross-examination, this witness stated that on the date of occurrence he was ill, his body had swollen and he was sitting in his verandah. The deceased is his neighbour. The sadar door of the deceased is not visible from his verandah. There was no dispute between the deceased and the accused persons except the dispute regarding the cattle. At paragraph 6 of his cross-examination this witness has stated that It is not a fact that I have neither xxx Immediate prior to the occurrence except Gelli no family members of Gelli was present. As soon as the husband of Gelli came, the occurrence took place that is first I heard hullah and then the occurrence took place, I have not left my verandah at the time of occurrence as. 1 was ill. It is not a fact Jotu Paik had come to the house of Gelli immediate prior to the occurrence. P. W. 3 is the wife of deceased. Her statement is that at about 3 p. m. last year Ashada there was a quarrel between her husband and the accused persons regarding the cattle. Both the accused persons made her husband naked. Her husband came to her house and after putting on another set of clothes, came out. First Tabatia Mallik gave Pahurani blow on the head of her husband. This witness further says that her husband sustained bleeding injury and fell down and subsequently died. As nobody was in her house, she went to Oriya Sahi and called Joti and Kondei Dolei. They came to the spot and saw her husband. First Tabatia Mallik gave Pahurani blow on the head of her husband. This witness further says that her husband sustained bleeding injury and fell down and subsequently died. As nobody was in her house, she went to Oriya Sahi and called Joti and Kondei Dolei. They came to the spot and saw her husband. According to this witness, the spot is in front of her house. Then Joti Paik reported the latter in the Police Station. Ext. 3 is the statement under section 164, Cr. P. C. before the Magistrate. In cross-examination, this witness stated that the occurrence took place at a spot adjoining her front sadar door and she was not inside her house but was on the village road. According to her first both the accused persons made her husband to fall and then they assaulted. That place was not a stoney place. The Pahurani hit the head of the deceased and broke into two pieces. Accused Tabatia had caught hold of the small girth portion at time of occurrence. She has further stated that P. W. 1 is no way related to her. To the suggestion P. W. 1 frequently visits her house she denied the suggestion. Inasmuch as she has said that she does not go to the house of Joti paik (P. W. 1) as she is Kandha and P. W. 1 is Oriya. Only on the date of occurrence she had gone to the house of P. W. 1 to call him. This witness says Remaining on the village lane in front of Trinath mallik I shouted that my husband was killed. I have not gone to the house of Joti Paik to call him. Hearing my shout the witnesses came. I have not called either Kodel or Jottu. But both came after my shout. T P. W. 1 is the informant Jottu paik. He had clearly stated in his evidence that he heard about the occurrence from the wife (P. W. 3) of the deceased and hearing about the occurrence he came to the spot and saw Buga lying unconscious on the ground with an injury on his person. The spot of occurrence is in front of the house of the deceased. Then he reported the matter at the Police Station. In cross-examination he has clearly stated that the deceased belongs of Kandha Sahi and he belongs to Oriya sahi. At about 2. The spot of occurrence is in front of the house of the deceased. Then he reported the matter at the Police Station. In cross-examination he has clearly stated that the deceased belongs of Kandha Sahi and he belongs to Oriya sahi. At about 2. 30 p. m. the occurrence took place and he got information at 3. 00 p. m. on the date of occurrence. He has further stated that Gelit, the wife of the deceased called him to the spot. Kandhia Dolai and kalu Paik had already been informed by Gelli about the occurrence. ( 6 ) ON a reading of the aforesaid statements of the witnesses P. Ws. 1. 2 and 3, the prosecution story appears to be suspicious. P. W. 3 is the widow of the deceased and her statement is that when she was on the road in front of her house, her husband was made naked by the accused persons and thereafter her deceased husband went inside the house and came out after putting up another set of clothes. Where after accused Tabatia gave the fatal blow on the head of the deceased by means of the Pahurani at the instigation of Tarini, the other accused. It appears that this witness who is none other than the widow of the deceased, stood calm during the entire incident when her husband was made naked he went inside came out with a fresh dress and was assaulted, and only after the deceased fell down, she raised the hullah. No other neighbour came to the spot after hearing the hullah except P. W. 2 who was present on the verandah of the house situated near the place of occurrence, which according to him, was not visible from the place where he was sitting in an ailing condition. Another interesting feature of the case is that P. W. 2 did not raise any hullah and P. W. 3 having raised hullah no other witness came to the spot and she went to another sahi to inform and call Joti Paik, who came to the spot and after seeing the deceased went to the Police Station and lodged the First Information Report. The evidence of P. W. 2 is that the place of occurrence (the front door of the deceased) was not visible from the place where he was sitting in his verandah inasmuch as he did not move even on hearing the hullah from the place where he was sitting. This witness P. W. 2 has been examined under section 164. Cr. P. C. in the facts and circumstances of the case raises a serious doubt regarding her truthfulness. ( 7 ) IN view of the improbabilities mentioned above, the evidence of these witnesses does not inspire confidence, and as such the benefit of doubt has to go to the accused person. It therefore. follows that the prosecution has not been able to prove its case beyond all reasonable doubt. We therefore, set aside the order of conviction and sentence passed against the accused-appellant and acquit appellant Tabatia from the charge under section 302, I. P. C. Accordingly, the appeal is allowed. The accused-appellant be set at liberty forthwith, if not wanted in connection with any other case. Appeal allowed. .