B. PANIGRAHI. J. ( 1 ) THE conviction and sentence passed against the appellant under Sections 302/34 IPC for commission of murder of Nana by the learned Sessions Judge, Mayurbhanj directing him to undergo imprisonment for life have been assailed in this appeal. ( 2 ) THE scenario of the prosecution story as has been unravelled during the trial is as follows: that the de facto complainant Bhima Majhi lodged a report at Bisoi Police Station by stating that he saw a dead body at about 9. 00 A. M. on 14-393 lying near Jhairra of village Kundura. Following such report the 1. 0. conducted inquest over the dead body in between 2. 30 P. M. and 3. 30 P. M. and thereafter it was sent for post mortem examination through the dead body chalan, Ext. 2/2 an axe (M. O. I) was seized from near the dead body stained with blood. It was also sent for chemical and serological test through the learned S. D. J. M. Rairangpur. The clothes of the deceased were also seized. From the post mortem examination it has appeared that the deceased Nana met with homicidal death after receiving 7 external injuries which corresponded to four internal injuries. The Medical Officer had, however, opined that these injuries were sufficient to cause death in ordinary course of nature. ( 3 ) DURING investigation the 1. 0. had however unearthed the Implication of the present appellant alongwith two others, namely. Bhuban Dehury and Sankha alias Dhabara alias Dabra Majhi and thereafter charge-sheet was laid against all of them under Sections 302/34, IPC. The learned Sessions Judge. Mayurbhanj was, however, inclined to place Implicit reliance on the ocular statement of P. W. 9 and on such basis he convicted the appellant under Sections 302/34. IPC whereas he acquitted the other two accused persons. ( 4 ) THE learned State defence counsel has advanced the following serious contentions: (i) When the learned Sessions Judge has acquitted the other accused persons from the charge under Sections 302/34, IPC, it is not understood how he could convict the appellant alone under Sections 302/34, IPC. (ii) When the learned trial Court had disbelieved the testimony of P. W. 5 on account of poor visibility whereas he placed utmost reliance on the uncorroborated testimony of p. W. 9. (ii) When the learned trial Court had disbelieved the testimony of P. W. 5 on account of poor visibility whereas he placed utmost reliance on the uncorroborated testimony of p. W. 9. (iii) In the Inquest report although it was not necessary to mention names of the culprits, but by that time P. Ws. 5 and 9 were aware about the implication of the appellant in the crime and in that case why they did not mention the names of the assailants of deceased Nana in the inquest report. (iv) There was no acquaitance of the present appellant with P. Ws. 5 and 9. Therefore, their identification in course of occurrence which had taken place in dark night should be of no consequence. ( 5 ) ON perusal of the judgment it appears that the trial Court was, however, inclined to place reliance on the testimony of Bimala Mohanta, P. W. 9, the daughter of P. W. 5. From her testimony ft has however appeared that the deceased Nana came on the preceding Saturday to their house in the evening. All the inmates including the deceased took their meal. After dinner the deceased was said to have taken rest in the eastern side room. There was no separate door to that room. P. W. 9, slept with her parents in another room. Between 8 and 9 P. M. it is said that the deceased came running out of the room by raising outcry. All the three alleged assailants entered into the room following deceased Nanat despite obstruction of her father. She brought a Tdibri' (lamp) from another room and could identify all the accused persons as she knew the appellants previously. No one can for an moment believe that all the three assailants would keep on waiting till P. W. 9 brought out a dibrit so that it would be easy for someone to identify them. If they wanted to commit an offence, within flickering of an eye they must have attempted to escape from the place of occurrence after the incident. If the deceased entered into the room where all the inmates were sleeping it also becomes doubtful how all of accused could enter inside the room. ( 6 ) IT is alleged that Test Identification Parade was conducted some time after the accused were nabbed. In the T. I. parade all the three suspects were identified. If the deceased entered into the room where all the inmates were sleeping it also becomes doubtful how all of accused could enter inside the room. ( 6 ) IT is alleged that Test Identification Parade was conducted some time after the accused were nabbed. In the T. I. parade all the three suspects were identified. The evidence adduced on behalf of the prosecution in this regard is also the same. P. W. 9 stated that all the accused persons dealt blows by an axe. In such circumstances, we are at a loss to understand when the learned Court acquitted two other accused, on what further evidence he convicted the appellant? From the testimony of P. W. 9, it appears that immediately after the occurrence she went running hurriedly to her maternal uncles house, but the maternal uncle did not support the prosecution. In that view of the matter the evidence of P. W. 9 also remains suspect. ( 7 ) IT is true that the deceased met with homicidal death, but prosecution has utterly failed to place any cogent reliance and truthful evidence to connect the appellant in the crime. Apart from this, since all the accused persons were charged under Sections 302/34, IPC and two of them have been acquitted the appellant could not have been convicted under Sections 302/34, IPC. There has been no charge under Section 302, IPC exclusively. In this regard a Division Bench of this Court in the case of Puma Badnaik v. State of Orissa, held that without framing independent charge on the same set of evidence if some on the accused persons were acquitted under Section 302/34 IPC it would be risky to convict any one of the accused under Section 302/34, IPC. ( 8 ) FROM the rationale of the above judgment we hold that the appellant is not guilty for commission of the offence of murder of Nana. ( 9 ) IN the result, the conviction and sentence under Sections 302/34. IPC are hereby set aside. The appellant be set at liberty forthwith. Appeal allowed.