JUDGMENT B. PANIGRAHI, J. — This appeal has been filed against the judgment/order passed by the Additional Sessions Judge, Jeypore, in Sessions Case No. 96 of 1992 (SC 321/92) whereby the appellant has been convicted under Sec. 302/34, Indian Penal Code, and sentenced thereunder to undergo rigorous imprisonment for life for having committed the murder of Shyama Badnaik. 2. Prosecution case, in short, as narrated in the trial Court’s judgment, is that on 7.8.1992 at about 5.30 p.m. the deceased had abused Balabhadra Gollari and Somari Badnaik, for not having returned the money outstanding against them, but on intervention of Ramachandra Badnaik, son of the informant (P.W.4) the matter was subsided and the deceased returned to his house. At about 8.00 p.m., when the deceased and his wife were taking their meals, the appellant and three of his associates (since acquitted) came to their house and caught hold of the husband of P.W.3 and the appellant was said to have dealt a ‘Kati’ blow on the neck of the deceased as a result of which he died on the spot. After commission of the crime the appellant and his associ¬ates were said to have left the spot. At that time, when the wife of the deceased, P.W.3, obstructed the appellant and other ac¬cused persons from doing such illegal act, accused Suna Badnaik (since acquitted) assaulted her by a lathi on her left shoulder. 3. The F.I.R. was lodged on the following morning, namely on 8.3.1992 by P.W.4, who on hearing the hullah of P.W.3 went to the spot and found the deceased lying dead having sustained bleeding injuries on his neck. P.W.3 narrated the incident that the appellant and other acquitted accused persons assaulted the husband of P.W.3 as a result of which he died. 4. The plea of the appellant was one of denial. 5. The prosecution in order to bring home the charge to the appellant and other accused persons had examined six witness¬es of whom P.W.3 is said to be the only eye-witness to the occur¬rence. P.W.4 is a post-occurrence witness. P.W.5 is a seizure witness and P.W.6 is the Investigating Officer. P.W.2 is the Medical Officer, who conducted the autopsy on the dead body of the deceased being produced by P.W.1, the Constable who escorted the dead body. 6. P.W.4 is a post-occurrence witness. P.W.5 is a seizure witness and P.W.6 is the Investigating Officer. P.W.2 is the Medical Officer, who conducted the autopsy on the dead body of the deceased being produced by P.W.1, the Constable who escorted the dead body. 6. Here in this case, there is no dispute with regard to the death of the husband of P.W.3. From the evidence of the doctor (P.W.2) who conducted the post-mortem examination it appears that the deceased had received the following external injuries : “Stab wound of size 5 cm. x 1½ cm. x 3½ cm. over right neck at the level of larynx placed horizontally 8 cm. above the clavicle, 4 cm. below the right angle of mandible directed poste¬riorly and slightly upwards tappers towards larynx.” On dissection he noticed that right internal jugluar vein was cut through and right sterno-mastoid muscle medial two-third also cut through. According to him those injuries were ante mortem and could cause death in ordinary course of nature. The death was due to hemorrhage and shock resulting from the stab wound and the death was within about 24 hours. From the evidence of the doctor and on reading the post mortem report (Ext.1), we have least hesitation to come to a finding that the deceased met a homicidal death on account of injury inflicted on him. 7. P.W.3 was the wife of the deceased and an eye-witness to the incident. From her evidence, it has transpired that while she was serving food, the appellant along with his three other associates including deceased accused Guru Badnaik, came to her house. Accused Suna was then armed with lathi and appellant Purna, a knife. They caught hold of her husband and appellant Purna gave a blow on the neck of her husband by means of a knife as a result of which her husband sustained bleeding injury and fell down on the ground. No sooner they inflicted the injury than P.W.3 raised hue and cry as a reason whereof P.W.4 and others reached the spot. Before them she narrated that all the accused having a common intention to kill the victim caught-hold of the deceased and the appellant inflicted a knife wound on the neck of the deceased. No sooner they inflicted the injury than P.W.3 raised hue and cry as a reason whereof P.W.4 and others reached the spot. Before them she narrated that all the accused having a common intention to kill the victim caught-hold of the deceased and the appellant inflicted a knife wound on the neck of the deceased. This matter was reported at the Police Station and the oral report was reduced to writing and the same was treated as F.I.R. The Investigating Officer arrested all the accused persons. The appellant while in custody is said to have led the police party and given recovery of the knife (M.O.I) from his house which was seized by P.W.6, the Investigating Officer. P.W.6 on receipt of the F.I.R. visited the spot, arrested the accused persons, seized M.O.I. collected blood-stained earth and sample earth, sent the incriminating materials to the Serologist for examination and after completion of the investigation placed charge sheet against the appellant and his other associates. The learned S.D.J.M. committed the case to the Court of Session and thereafter the learned Additional Sessions Judge on thorough evaluation and appraisal of the evidence produced in course of trial held the other three accused persons not guilty, whereas convicted the appellant for having committed the offence of murder of deceased Shyama Badnaik and sentenced him to undergo rigorous imprisonment for life. 8. Miss Sinha, the learned State Defence Counsel, has invited our attention to the evidence of P.Ws. 4 and 5. She was further submitted that on the same set of evidence when the learned trial Judge recorded an order of acquittal of other accused persons, there was no reason as to why, the appellant shall be held guilty. It has been further submitted that there was no independent head of charge framed against the appellant under Sec. 302, Indian Penal Code, and, therefore, on the basis of the charge framed under Sec. 302/34, Indian Penal Code, against all the accused persons, the trial Judge could not have held the appellant guilty of the offence punishable under Sec. 302, Indian Penal Code, alone. 9. It is stated by P.W.3 the only eye-witness, that the appellant Purna gave a stab injury on the neck of her husband, the deceased, by means of a ‘Kati’. We find that the submission of the learned State Defence Counsel is well-founded. 9. It is stated by P.W.3 the only eye-witness, that the appellant Purna gave a stab injury on the neck of her husband, the deceased, by means of a ‘Kati’. We find that the submission of the learned State Defence Counsel is well-founded. On perusal of the lower Court records, it appears that only one set of charge has been framed, i.e. under Sec. 302/34, I.P.C. Even though it was indicated in the F.I.R. that appellant Purna had allegedly given a stab blow, but he was not separately charged under Sec. 302, I.P.C. Without framing of such charge, on the same set of evidence, we think it would be inappropriate for the trial Court to record a conviction under Sec. 302, I.P.C. alone. It is unfortunate that although there was evidence against the appellant to the effect that he had inflicted the injury on the deceased, but on a technical plea he is to be scot free. While framing of charge, the learned Additional Sessions Judge should have been more careful and wary and framed charge in an appropriate direction. 10. However, since it does not justify an order of convic¬tion under Section 302, I.P.C., we are constrained to set aside the order of conviction and consequently, the sentence under Sec. 302/34, I.P.C. Accordingly, the appeal is allowed. The conviction and sentence passed against the appellant are hereby set aside. The appellant if in custody, be set at liberty forth¬with. L. MOHAPATRA, J. I agree. Appeal allowed.