JUDGMENT : B. Panigrahi, J. - The Appellant in this appeal has assailed the order dated 22.01.1994 passed by the learned Additional Sessions Judge, Sambalpur in S.T. Case No. 65/43 of 1993. whereby he has been convicted u/s 302, IPC for committing the murder of Ashok Padhi and sentenced to undergo imprisonment for life. 2. The short history of the prosecution case is that Appellant Durjodhan Dhangar is the brother of the female accused Dileswari Dhangar (since acquitted). The other accused Nabin Nayak is a friend of the Appellant. The house of accused Dileswari (since acquitted) is situated at Panchagochhia in Deogarh town by the side of National Highway No. 6. Deceased Ashok Padhi was a contractor. In the night of occurrence i.e. between 09/10.10.1992, the deceased along with P.W.3 had been to the house of accused Dileswari (since acquitted) on a motor-cycle to arrange labourers. When he called her, the Appellant came from the back side being armed with a Sal lathi (merha). Accused Nabin also came with a bamboo lathi. Both of them (the Appellant, and accused Nabin) dealt indiscriminate blows on the head and other parts of the body of the deceased, as a result of which he sustained severe injuries and fell down. The accused persons took away the motor-cycle of the deceased. The dead body was removed from the scene of occurrence and was allegedly thrown near a bridge on National Highway No. 6. 3. On these facts, the Appellant and his associates, i.e., Dileswari and Nabin, stood charged under Sections 302, 201 and 379, read with Section 34, IPC. 4. The defence took plea was one of complete denial of the occurrence. Accused Dileswari (since-acquitted) was examined as a defence witness. She has stated that the death of Ashok was caused on account of running over of a vehicle on his person. 5. The learned trial Judge, on consideration of the evidence on record, acquitted the female accused Dileswari of all the charges. He also acquitted the Appellant and accused Nabin of the charges under Sections 379 and 201, read with Section 34, IPC. Accused Nabin was however convicted u/s 323, IPC. In this appeal, we are not concerned with the same. The learned trial Judge held the present Appellant guilty of the offence u/s 302 IPC, convicted him thereunder, and sentenced him to undergo imprisonment for life. 6. Accused Nabin was however convicted u/s 323, IPC. In this appeal, we are not concerned with the same. The learned trial Judge held the present Appellant guilty of the offence u/s 302 IPC, convicted him thereunder, and sentenced him to undergo imprisonment for life. 6. It has been highlighted that when the accused persons were charged for having committed the offence of murder of Ashok Padhi, there was no reason as to why the Appellant along would be convicted u/s 302, IPC. learned Counsel for the Appellant took us through the narration of the prosecution story in the F.I.R. A careful reading of the F.I.R. leads us to carry an impression that the Appellant along with Dileswari. Nabin and Ors. had assaulted the deceased Ashok Padhi, as a result of which he had sustained severe injuries and he succumbed to those injuries. After he died, his dead body was thrown near a bridge. 7. P.W.1 is the brother of the deceased the custody of the motor-cycle was given in his zima upon execution of a Zimanama (Ext.1). His evidence does not in any way help to prove the prosecution story. P.W.2 is the informant, who says that P.W.3. who was a friend of the deceased, along with P.W.4 came and narrated the incident before him at about 12.00 A.M. Immediately after coming to know about the incident, he went out with a torch light and searched for the deceased, who was his younger brother, and traced out his dead body. Since P.W.2 is not an eye-witness, his evidence goes not help the prosecution, save and except proving the F.I.R. lodged by him. P.W.3 is the star witness of the prosecution. According to him he went with the deceased in the night of occurrence to the house of accused Dileswari (since acquitted) to arrange labourers. He called accused Dileswari. When the deceased was talking with accused Dileswari, the Appellant came from the back side the gave two blows by a wooden Lathi (Merha). After receiving injuries, the deceased fell down on the ground. Thus, from his evidence it transpires that the Appellant had inflicted two blows on the head of the deceased apart from the Mows given by the other accused persons. According to P.W.3 the incident had taken place m front of the house of accused Dileswari. Thereafter, the dead body was thrown near a bridge on the National Highway. Thus, from his evidence it transpires that the Appellant had inflicted two blows on the head of the deceased apart from the Mows given by the other accused persons. According to P.W.3 the incident had taken place m front of the house of accused Dileswari. Thereafter, the dead body was thrown near a bridge on the National Highway. This witness had also gone to inform P.Ws.2 and 4 about the incident. The evidence of P.Ws.2 and 4 does not help the prosecution inasmuch as they had only learnt about the occurrence from P.W.3. In case the evidence of P.W.3 is viewed with suspicion, their evidence does not come to the rescue of the prosecution in order to prove its case. On turning to the evidence of P.W.18, the doctor who had conducted post mortem examination, it is found that the deceased had received about 12 injuries on his person, out of which injury Nos. 10. 11 and 12 were post mortem while the other injuries were ante mortem in nature. On a careful examination of the evidence of P.W.18, it further comes to light that there was only one injury on the head of the deceased, whereas P.W.3 has specifically stated that two blows were inflicted by the Appellant on the head of the deceased. In such background, either the evidence of the Doctor is to be rejected or the evidence of P.W.3, since there are material contradictions between the ocular evidence and the medical evidence. Law is well settled that when there is discrepancy between the ocular evidence and the expert's evidence, the evidence of the eye-witness would prevail. But, had the Appellant given two blows, as deposed by P.W.3, the deceased must have sustained some other injury on his dead. 8. Now coming to the scene of the incident, we find from the F.I.R. as well as the evidence of P.Ws. 2, 3 and 4 that the occurrence took place in front of the house of accused Dileswari. Therefore, the investigating officer, who has been examined as P.W.19, had collected scrapings from the wan and sent it for chemical examination. But no incriminating substance appears from the Serologist's report. There was no blood patch in front of the house of accused Dileswari. Therefore, the investigating officer, who has been examined as P.W.19, had collected scrapings from the wan and sent it for chemical examination. But no incriminating substance appears from the Serologist's report. There was no blood patch in front of the house of accused Dileswari. Although P.W.3 has stated that the incident had taken place in front of the house of accused Dileswari, P.W.19 has specifically stated that he did not notice any mark of violence at that place. P.W.19 is stated to have noticed some blood patches over a heap of stones. It is nobody's case that the incident had taken place on the said heap of stones. There were some blood patches in a nearby horse-gram field. But from the evidence, we get that no witness has stated that the dead body was ever noticed inside the horse-gram field. 9. Since there are full of inconsistencies and material contradictions in the prosecution evidence, we are of the opinion that the prosecution has failed to bring home the charge u/s 302 IPC against the Appellant. Therefore, we are not in a position to agree with the finding of the learned Additional Sessions Judge. It is further to be considered as to the propriety of the conviction u/s 302, IPC. specifically when there has been no charge on that count. Air the accused persons were charged u/s 302/34 IPC. The narration m the F.I.R. also discloses that all the accused persons contributed to the assault on the deceased which resulted in his death. In such circumstances, we are at a loss to understand how could the teamed Additional. Sessions Judge convicted the Appellant alone for commission of the murder of Ashok Padhi. 10. On a careful cogitation of the facts and circumstances of the case as narrated above, we allow this appeal and set aside the order of conviction and sentence passed against the Appellant. He be released from jail custody and set at liberty forthwith, if his detention is not required in connection with any other case. P.K. Misra, J. 11. I agree. Final Result : Allowed