JUDGMENT : B. Panigrahi, J. - The order of conviction passed by the learned Sessions Judge, Sundargarh in Sessions Trial Case No. 219 of 1993 arising out of G.R. Case No. 186 of 1993 u/s 302. I.P.C. and the sentence to undergo imprisonment for life have been assailed in this appeal. 2. The skeletal picture of the prosecution story is that on 1.7.1993 at about 8.00 P.M. Dambarudhar Chhadia (P.W.1). the uncle of the deceased lodged an oral report at Lahunipara Police Station regarding the murder of his nephew Sanatan Chhadia on 30th June. 1993 committed by Pandab Chhadia and Anr. unknown person which was reduced to writing and pursuant to that Lahunipara P.S. Case No. 65 of 1993 was registered against the Appellant and Anr.. During investigation it was found that one Hrtisikesh Bhoi was also responsible for causing the death of deceased Sanatan Chhadia along with the present Appellant. The I.O. visited the spot, seized broken pieces of glass bottle, examined the witnesses, arrested the Appellant and his associate, sent the seized articles to Scientific Forensic Laboratory for examination and after completion of investigation submitted the charge-sheet against the Appellant and his other associate Hrusikesh Bhoi (since acquitted). 3. The prosecution in order to sustain the conviction against the Appellant and his associate, examined eight witnesses out of whom P.Ws.1 to 3 have stated about the alleged dying declaration made by the deceased and relied on the statement of the Medical Officer who conducted post mortem examination over the dead-body of the deceased, besides the I.O. who carried on the investigation. 4. The learned Sessions Judge has of course acquitted Hrusikesh Bhoi and convicted the Appellant u/s 302, I.P.C. and sentenced him as aforesaid. 5. The prosecution solely relies on the alleged dying declaration of the deceased made before P.Ws.1 to 3. But the learned Sessions Judge had disbelieved the evidence of P.Ws.1 and 3 and therefore, the dying declaration alleged to nave been made before P.Ws.1 to 3 also does not survive to uphold the conviction against the Appellant. 6. There has been no dispute that the deceased met with homicidal death by a broken piece of glass being pierced into different parts of his body. 6. There has been no dispute that the deceased met with homicidal death by a broken piece of glass being pierced into different parts of his body. From the evidence of P.W.7 the Medical Officer, who conducted the post mortem examination opined that the deceased received sixteen injuries in different parts of the body and all the external injuries must not have been possible by one blow by a broken glass. Accordingly to him, the death was due to injuries on the brain as a result of intracranial haemorrhage and shock. There was contusion of brain underlying injury Nos. 1 and 2. It appears to be very much doubtful to-come to a positive finding that after receiving so many injuries particularly on the brain, whether a person would be able to talk as a normal man so that he could disclose the name of his assailant to P.Ws.1 to 3. There is no evidence regarding the time gap between the arrival of P.Ws.1 to 3 near the deceased and the alleged injuries received by the deceased. From the evidence of P.W.2 it appears that he had gone to his land in the morning at about 7 to 8 A.M. for cultivation purpose. He found a person lying near the Mahua tree. Two other persons of Binchhanapati were also there. All of them went near the injured Sanatan Chhadia. On being questioned to the injured, he alleged to have said that the Appellant and Anr. assailant assaulted him by means of a bottle, while all of them were returning after witnessing the Bahuda Yatra. They also flung him under the Mahua tree. On seeing the injuries sustained by deceased Sanatan Chhadia it is incomprehensible to note that he could survive even after being flung under the Mahua tree, much less about his consciousness. 7. On perusal of the evidence of P.W.3 it seems that he also stated in the same line as that of P.W.2, P.W.1 claims to have heard from P.Ws.2 and 3 that his nephew was injured by the Appellant and Anr.. Immediately following such information he rushed near the injured. On being asked he disclosed the name of the Appellant and Anr. as his assailants. P.W.4 was the pharmacist posted at Addl. P.H.C. Khutgaon. It appears from his evidence that by the time the injured was taken to Addl. P.H.C. Khutgaon he was leave. Immediately following such information he rushed near the injured. On being asked he disclosed the name of the Appellant and Anr. as his assailants. P.W.4 was the pharmacist posted at Addl. P.H.C. Khutgaon. It appears from his evidence that by the time the injured was taken to Addl. P.H.C. Khutgaon he was leave. But it is strange to note that no step was taken to record the dying declaration by the Pharmacist. If the dying declaration could have been noted by the Pharmacist at least the prosecution story could have been believed to some extent. 8. There is no trustworthy evidence of dying declaration to base the conviction against the Appellant. The credibility of the evidence of P.Ws.1, 2 and 3 appears to be doubtful. Therefore, we do not find nay reason to uphold the finding of conviction of the Appellant for having committed murder of deceased Santan The Appellant and his companion Hrusikesh Bhoi were charged u/s 302/34. I.P.C. From the report of medical examination as well as the evidence of witnesses it is seen that the prosecution has failed to prove that the Appellant and his companion assaulted deceased Sanatan. Since on the basis of same set of evidence the learned trial Court was inclined to acquit the other co-accused, we are at a loss to understand how he could convict the present Appellant. There is no specific charge u/s 302, I.P.C. nor any clinching evidence to establish the crime against the Appellant in this regard. Relying on the judgment of this Court reported in Orissa Criminal Reports (2002) 22 OCR 244 ;in the case of Puma Badnaik v. State of Orissa and also on Anr. case reported in (2002) 22 OCR 624 Daktar Naik v. State of Orissa, we have no other option but to acquit the Appellant of the charge u/s 302, I.P.C. particularly when the dying declaration alleged to have been made does not inspire any credibility to hold that the Appellant was the author of the crime. 9. Appreciating the submission of Mr. Nayak and considering the facts and circumstances of the case, we allow the appeal and set aside the order of conviction and sentence passed against the Appellant u/s 302, I.P.C. The apoeliant be set at liberty forthwith. P.K. Misra, J. 10. I agree. Final Result : Allowed