JUDGMENT B. PANIGRAHI, J. — The appellants have assailed the order of conviction and sentence passed against them under Sec. 148, 452/149 and 302/34, I.P.C. by the learned 2nd Addl. Sessions Judge, Berhampur in Sessions Case No. 26/94 (S.C. 13/94 G.D.C.) sentencing the appellants to undergo rigorous imprisonment for 2 years under Sec. 148, 3 years under Sec. 452/149 and rigorous imprisonment for life under Sec. 302/34, I.P.C. with a direction that the sentences would run concurrently. 2. The prosecution story as unravelled during the trial is as follows : On 29th March, 1993 around 9.00 A.M. a frenzied mob consisting of the appellants and the other accused persons (since acquitted) being armed with lathi, sword, cycle chain etc. made their forcible entry into the Huma High School campus raising slogans. They surrounded the residential quarters of P.W.4 Madhab Chandra Samant who was then the Hindi Teacher of the School and uttered provocative slogans. The mob demanded to spare the de¬ceased Prakash, son of the Hindi Teacher into their custody so that they could assault him for setting fire to a house in their village. They also pelted stones at the quarters of P.W.4 as a result of which the window leaves and door leaves got broken. When deceased Prakash came out of the house, the members of the mob forcibly dragged him away to their village and assaulted on the way. At about 1.00 A.M. during the very same night one Naray¬an Mahankuda (P.W.5) came with the deceased to the house of P.W.4 being followed by accused persons, Fandi Kaman (not charge-sheeted) and the appellants. After escorting the deceased to the house P.W.4, P.W.5 returned back to his house. On the following morning Prakash was found lying behind the school campus by the side of the Railway track in a seriously injured condition. P.Ws. 2 and 3 on receiving such information rushed to the spot. The deceased disclosed the names of the acquitted accused persons, Fandi Kaman (not charge-sheeted) and the appellant as his assail¬ants. P.W.3 arranged a vehicle for taking Prakash to Chhatrapur Government Hospital. Since his condition gradually deteriorated he was again shifted to M.K.C.G. Medical College Hospital, Ber¬hampur where he succumbed to the injuries. While Prakash was under treatment, P.W.1 lodged a report at the Out-post on the basis of which investigation was taken up. P.W.3 arranged a vehicle for taking Prakash to Chhatrapur Government Hospital. Since his condition gradually deteriorated he was again shifted to M.K.C.G. Medical College Hospital, Ber¬hampur where he succumbed to the injuries. While Prakash was under treatment, P.W.1 lodged a report at the Out-post on the basis of which investigation was taken up. After the deceased succumbed to the injuries, the Investigating Officer had sent the dead body for post mortem examination and took up the investiga¬tion. During investigation the house of the accused persons were searched and some incriminating weapons like bamboo lathis were recovered and seized. On completion of the investigation, charge-sheet was placed against all the accused persons including the appellants, and the learned S.D.J.M. after having taken cogni¬zance of the offence committed the case to the Court of Session. 3. The defence plea was one of complete denial and it has been stated that they were falsely implicated in this case out of previous enmity. 4. The prosecution has examined 8 witnesses to prove the culpability of the appellants. P.W.1 was the Headmaster of Gov¬ernment High School, Huma. P.Ws. 2 and 3 were the witnesses to the dying declaration. P.W.5 was the Ward member of village Belapada belonging to the appellants under Subalaya Grama Panchayat. P.W. 7 was the Professor and Head of Department of Forensic Medicines and Toxicology in M.K.C.G. Medical College Hospital, Berhampur who conducted the post mortem examination on the dead body. P.Ws. 6 and 7 are said to be the Police Officers who investigated this case and submitted the charge sheet. The defence has examined one witness who was the Medical Officer of Chhatrapur Government Hospital where prakash was admitted as a patient at the first instance. 5. On looking to the evidence of P.W.7 who had conducted the autopsy on the dead body, it is found that the deceased received as many as 6 injuries and all those injuries were ante mortem in nature and according to the doctor, deceased-Prakash met a homicidal death, which aspect, Mr. Panda, the learned Advocate appearing for the appellants has not disputed. Therefore, in the aforesaid circumstances, we hold that the deceased met a homicidal death after receiving injuries on dif¬ferent parts of his body. 6. P.W.1 was the Headmaster of the Huma Government High School at the relevant time who lodged the report at the Out-post. Panda, the learned Advocate appearing for the appellants has not disputed. Therefore, in the aforesaid circumstances, we hold that the deceased met a homicidal death after receiving injuries on dif¬ferent parts of his body. 6. P.W.1 was the Headmaster of the Huma Government High School at the relevant time who lodged the report at the Out-post. From the report it is found that the names of the appel¬lants have not been described. It has been only stated that a mob consisting of 50 persons shouted provocative slogans and they were throwing stones and brick-bats at the windows and doors of the house of P.W.4. This part of the evidence has also been corroborated by the P.W.4, the father of the deceased, in his evidence. Therefore on a joint reading of evidence of P.Ws.1 and 4, it has appeared that a mob consisting of more than 50 persons gathered at the residence of P.W.4 and pelted stones at the doors and windows of his house. On reading the evidence of P.W.1 it does not, however, transpire about the complicity of the appel¬lants in the crime. Therefore, it is not helpful tods the prosecution in any manner to involve the appellants through the evidence of P.W.1. 7. On reading the evidence of P.W.2 it appears that de¬ceased Prakash had uttered the names of six persons as the cul¬prits who had assaulted him. But on referring to the evidence of P.W.3, it appears only 3 persons namely the appellants and Fandi Kaman were the perpetrators of the crime. On a comparison of evidence of P.Ws. 2 and 3, we therefore, find that the statements of those witnesses are prevaricating as to the number of assail¬ants who allegedly assaulted the deceased. 8. Further more, in the inquest report proved in this case (Ext.5) no assailant’s name has been disclosed in which P.W.4 had signed. Now coming to the evidence of P.W.4 we notice that he has uttered the names of Fandi Kaman and Ramesh Pradhan, but not of Bramha Pradhan. Therefore, we are surprised to find how the learned 2nd Additional Sessions Judge has convicted Bramha Pradhan even though there is no evidence against him. The evi¬dence of P.W.4 is general in nature in regard to irate mob except implicating only Ramesh whom he already identified at the time of occurrence. Therefore, we are surprised to find how the learned 2nd Additional Sessions Judge has convicted Bramha Pradhan even though there is no evidence against him. The evi¬dence of P.W.4 is general in nature in regard to irate mob except implicating only Ramesh whom he already identified at the time of occurrence. He had also not stated anything, save and except, that Ramesh and Kaman were standing at a distance of 100 steps from his house. He has, however stated that on being asked, his son (Prakash) disclosed the names of Ramesh and Fandi Kaman as the assailants. Had this fact been true, we do not understand how he could have omitted their names in the inquest report which he signed. In cross examination, we notice that P.W.4 did not dis¬close the name of any person whom his son is said to have de¬scribed as assailant. In the above background, we are, therefore, unable to rely totally on the evidence of P.W.4 as regards the participation of the appellants Bramha and Ramesh. 9. Now turning to the evidence of P.W.5 who was the Ward member of the village, we find that he noticed Fandi Kaman and the appellants standing near the deceased. During chief examina¬tion it has also been elicited that Prakash was in the same night taken to the house of P.W.4 and he was left there. In that view of the matter, it is not understood as to how he was found on the following morning near Railway track. It Prakash was found lying injured near Railway track after he was left in his house, then we are at a loss to understand as to how these appellants were answerable to such injury. In view of the fact that when P.W.5 stated that there was no injury on the person of deceased-Prakash by the time he was left in the house of P.W.4, the appellants cannot be held responsible for the death of Prakash. 10. We have carefully gone through the judgment impugned before us. The learned 2nd Additional Sessions Judge with his vast experience has convicted the appellants under Sec. 148, I.P.C. There has been nothing on record to establish that they were the perpetrators of the crime. The evidence of P.W.5 has not been discussed at length. 10. We have carefully gone through the judgment impugned before us. The learned 2nd Additional Sessions Judge with his vast experience has convicted the appellants under Sec. 148, I.P.C. There has been nothing on record to establish that they were the perpetrators of the crime. The evidence of P.W.5 has not been discussed at length. If we evaluate the evidence of the prosecution witnesses it would be seen that there is no material available against these appellants and further Fandi Kaman has not been charge sheeted. It is still not understood how Fandi Kaman was left out and not charge-sheeted by the prosecution. it may be true that the deceased might have been dragged by the mob from the house of P.W.4. But there is insufficient evidence in this case. The prosecution was therefore, unable to connect the appellants with the crime. We, accordingly hold that since there has been no legal evidence brought against the appellants, we are constrained to acquit the appellants of all the charges, allow the appeal and set aside the conviction and sentence passed against them under Secs. 148,452/149 and under Sec. 302/34 of the Indian Penal Code. L. MOHAPATRA, J. I agree. Appeal allowed.