JUDGMENT : B. Panigrahi, J. - This appeal is directed against the order dated 15.12.1995 passed by the learned Second Additional Sessions Judge, Bhubaneswar in Sessions Trial Case No. 26/474 of 1994. By the said order, the three Appellants have been convicted u/s 302/34 of the Indian Penal Code, in short, IPC, for having committed the murder of one Prafulla Behera, and sentenced to undergo rigorous imprisonment for life. 2. The present Appellants alongwith six Ors. were prosecuted for committing the murder of one Prafulla Behera, who was working as Forest Guard in foe Forest Office situated at Bhagabatpur on 24.9.1992 at about 9.00 p.m. The brevity of the prosecution story as unfolded during trial, is as follows: Prafulla Behera (deceased) while coming from his office, which was situated at Bhagabatpur, on 24.9.1992 at about 9.00 p.m. by a moped near the eastern side crossing of the village the Appellants alongwith their associates allegedly waylaid him and assaulted him brutally by means of sharp cutting weapons like farsa and bhujali on account of their previous enmity,'as a result of which he fell down on the ground with bleeding injuries. Immediately after the assault, Prafulla raised an outcry on hearing which his younger brother Prakash Behera (P.W.1), rushed to the spot and noticed the above incident. On seeing P.W.1. all the assailants decamped from the spot. While running away, the Appellant Uliash threw his farsa near the spot and the other Appellants took away the weapon of offence. The father, mother, uncle and other members of the family of the deceased Prafulla arrived at the place of occurrence and shifted the injured Prafulla. to the verandah of Krushna Chandra Rana (P.W.9). They also requested P.W.9 to supply water to the deceased. After sipping some water, the deceased Prafulla made a dying declaration uttering the name of the Appellants and their associates as his assailants in presence of P.W.1 and other witnesses. Thereafter, while being shifted to the Sub-Divisional Hospital, Khurda. on the way he again made a dying declaration uttering the name of the assailants. However, before he reached the Hospital, he succumbed to the injuries when the injured was being shifted to the Hospital. P.W.1, Prakash Behera, rushed to Mendhasala Out-post and lodged a written report which was treated as FIR (Ext.1). On the basis of the said FIR. a case was originally registered under Sees. 341. However, before he reached the Hospital, he succumbed to the injuries when the injured was being shifted to the Hospital. P.W.1, Prakash Behera, rushed to Mendhasala Out-post and lodged a written report which was treated as FIR (Ext.1). On the basis of the said FIR. a case was originally registered under Sees. 341. 324, 326, 307/34, IPC against the Appellants. But after Prafulla succumbed to the injuries, the case was turned to one u/s 302/34, IPC alongwith other sections. During the course of investigation, it was unearthed that besides these Appellants, there were other six accused persons, who participated in the crime'. The case against four accused persons, namely, Sanjay Kumar Rath, Prahallad Behera, Prasan Kumar Dash and Panchu Sahu, was split up, as the Appellants and two Ors. were shown as absconders in the charge-sheet, and they faced the trial. However, they were acquitted of the charges. Subsequently, the attendance of the Appellants having been procured, they faced trial. In course of trial, the prosecution examined 19 witnesses in order to sustain the charge against the Appellants and their associates. P.W.1 is the star witness for the prosecution. The trial Court, after considering the evidence on record and the facts and circumstances of the case convicted and sentenced the Appellants as stated earlier. However, it' acquitted two other accused persons, namely, Upei alias Upendra Behera and Kanduri alias Umesh Behera of the charges. 3. Mr. D. Nayak, learned Counsel appearing for the Appellants, has candidly admitted that in case the evidence of P.W.1 is believed, there would be no scope for the Appellant to escape from the conviction. But there are enough grounds to discard the testimony of P.W.1, because he has developed the case of the prosecution from stage to stage. In course of argument, he has pointed out that in the FIR P.W.1 did not claim to be an eye witness, but stated that on hearing the outcry raised by his brother Prafulla he rushed to the spot and noticed three of the Appellants running away after throwing the weapon of offence. But in evidence substantial development has taken place where he claimed to have seen these three Appellants assaulting the deceased by means of a farsa which was allegedly thrown by the Appellant Uliash Behera. Therefore, such testimony of P.W.1 should not be lightly swallowed. 4. While repelling such contention, Mr. But in evidence substantial development has taken place where he claimed to have seen these three Appellants assaulting the deceased by means of a farsa which was allegedly thrown by the Appellant Uliash Behera. Therefore, such testimony of P.W.1 should not be lightly swallowed. 4. While repelling such contention, Mr. G.K. Mohanty, learned Additional Government Advocate has indicated that P.W.1 could not have presented a detailed story in the FIR at that juncture inasmuch as he must have under grave mental pressure as his brother was in dying stage. More care must have been taken by him to see that his brother is survived, rather than presenting a detailed picture of the prosecution story. Therefore, in the FIR P.W.1 has stated that these three Appellants have assaulted the deceased and by hearing the outcry raised by Prafulla he rushed to the spot and found Appellant Uliash running away, after throwing away the weapon of offence like axe, alongwith the two other Appellants. 5. We would have appreciated the argument of Mr. Mohanty to the effect that P.W.1 claimed to have seen these-Appellants assaulting the deceased at least during investigation. On close examination of his evidence, it has transpired that he had not stated to have seen the assault given by the Appellants to the deceased in course of investigation. Therefore, the version of P.W.1 in course of trial to the effect that he has seen the assault given by the Appellants to the deceased, appears to be a subsequent development for implicating them in this case. 6. P.W.1 though claimed to have seen the Appellants assaulting the deceased through the focus of torch light, on referring to the evidence of P.W.18. Pravabati Devi, we found that she had not deposed to have seen any of the Appellants at the place of incident. What all the materials disclosed by her is that she focussed (he torch light outside and found six to eight persons were running away. From this statement, which is general in nature, we cannot infer that these Appellants are also the assailants of the deceased. She was put to incisive and strenuous cross-examination and it was brought out by the defence that it was a dark night arid the focus of the torch light was not sufficient to identify anyone. Therefore, if we combindely read the evidence of P.Ws. She was put to incisive and strenuous cross-examination and it was brought out by the defence that it was a dark night arid the focus of the torch light was not sufficient to identify anyone. Therefore, if we combindely read the evidence of P.Ws. 1 and 18, it becomes doubtful if P.W.1 would have identified any of the assailants of Prafulla in the night. From the evidence, it has further transpired that the incident had taken place in front of the house of Madhu Rath. The investigation was not directed to find out whether Madhu Rath was present at the time of incident. He ought to have been a natural witness from whom the real picture could have been elucidated. 7. It is significant to note that the torch light was the main instrument through which P.W.1 and P.W.18 had claimed to have seen the incident. But curiously enough, such torch light was not seized in course of investigation. 8. The house of the deceased was 100 yards away from the place of incident. P.W.1 claimed to have proceeded to the place of occurrence after hearing the outcry raised by his brother Prafulla. By the time he reached the spot, it was normally not expected that the assailants of the deceased would have been available by giving a chance to P.W.1 to identify them. 9. The trial Court has relied upon the ground of enmity between the deceased. P.W.1 and other family members on one hand and the Appellants and their family members on the other. It is true that there was bitter enmity between the two families prior to the date of incident. It has also been elucidated from P.W.1 that he was convicted alongwith other family members in a criminal case against which appeal is pending. Therefore, it is quite-likely that due to such enmity, either these Appellants might have committed such drastic act or they might have been falsely implicated by P.W.1 to grind the axe of previous enmity. Here in this case, the evidence of P.W.1 is insufficient to hold that the Appellants are the perpetrators of the crime. There is no corroborating evidence to connect the Appellants with the crime. 10. The trial Court has relied upon the dying declaration said to have been made by the deceased Prafulla in presence of P.Ws. 1. 2. 3, 4 and 5. There is no corroborating evidence to connect the Appellants with the crime. 10. The trial Court has relied upon the dying declaration said to have been made by the deceased Prafulla in presence of P.Ws. 1. 2. 3, 4 and 5. All the above prosecution witnesses belong to the same family and are related to each other. It is the prosecution story that the injured Prafulla was brought to the verandah of P.W.9. Krushna Chandra Rana, who supplied water to him. From the evidence of P..W.9. it however does not transpire that the deceased made any dying declaration. If the injured made any dying declaration on the verandah of P.WV.9. how is it that he has stated that there was no such dying declaration? 11. Another circumstance that has been taken note of against the Appellants is that while the injured was shifted to the hospital, on the way he made dying declaration for the second time uttering the name of these Appellants. But on close examination of such dying declaration, it is found that he has stated that these Appellants besides other six persons had assaulted him. If that be so. when the other six persons have already been acquitted, how could the trial Court fasten the liability against the present Appellants alone. 12. After the case was split up, four persons, namely, Muna @ Sanjoy Kumar Rath, Prahallad Behera,' Prasanna Kumar Dash and Panchui Sahu had faced trial and. the prosecution had relied upon the dying declaration said to have been made by the deceased against them. The trial Court in the judgment did not place any reliance on the said dying declaration. The relevant portion of the judgment dealing with the said dying declaration is quoted below: On post mortem examination it was found that the left hand of the deceased was completely severed and haemorrhage and shock mainly from the injury was the cause of death of the deceased. The opinion of P.W.9 in cross examination is that there was profused bleeding from that injury of the deceased and that the circulation of blood is essential for functioning of the brain and profused bleeding leads to brain annaxia and the patient cannot speak. Having regard to the nature of that injury of the deceased and the above opinion of the doctor, the evidence of the P.Ws. Having regard to the nature of that injury of the deceased and the above opinion of the doctor, the evidence of the P.Ws. regarding the disclosure of names of the assailants by the deceased before his death does not at all inspire confidence. 13. We are at a loss to understand how can the trial Court, while disbelieving a part of the occurrence narrated in the dying declaration in connection with other accused persons rely implicitly on the other part as against these Appellants? It is to be further noted that only relations of the deceased are witnesses to the dying declaration. It is quite likely that on account of previous enmity they must have prompted to the ears of the deceased and he might have given out the names of these Appellants as his assailants. In the aforesaid situation, the dying declaration appears to be shrouded with mystery. 14. The Medical Officer, who had examined the injured, had also deposed in the other case that the patient was not mentally fit to make such dying declaration. Thus, we are not in a position to agree with the trial Court in placing reliance on the dying declaration said to have been made by the deceased. 15. The Farsa which was seized from the place of occurrence sent for chemical examination. From the report of the Serologist, it appears that the same did not contain any incriminating material to connect the Appellants with the crime. There has been no evidence worth the name produced by the prosecution that the Farsa seized from the spot belongs to the Appellant Ullash, save and except the evidence of P.W.1 which, as discussed, is not above suspicion. 16. Considering the case of the prosecution from any angle, particularly in view of the evidence placed by the prosecution during trial, we are not able to agree with the finding of the learned Addl. Sessions Judge and accordingly we hold that the Appellants are not guilty of the charge u/s 302/34, IPC. 17. In the result, the appeal is allowed. The order of conviction and sentence passed against the Appellants is hereby set aside. The bail bond furnished by the Appellant No. 1 stands discharged. The other Appellants be set at liberty forthwith. P.K. Misra. J. 18. I agree. Final Result : Allowed