JUDGMENT : B. Panigrahi, J. - These three appeals having arisen from a common judgment passed by the 1st Additional Sessions Judge, Cuttack convicting the Appellants under Sections 302/34. I.P.C, and sentencing them to undergo imprisonment for life in S.T. Case No. 248 of 1991 were heard together and have been disposed of hereunder. 2. The skeletal picture of the prosecution story as narrated in course of trial is as follows: The informant Nrusingh Charan Sahu (P.W.6), who is the brother of deceased Pahali Sahu, lodged F.I.R. by stating that his wife (P.W.1) on hearing an outcry from the side of the house of deceased Pahali Sahu rushed to his house and saw that the accused-Appellants and Anr. person whom she could not identify, were giving blows to the deceased Pahali Sahu with a sword and Bhujali and further accused Liakat was terrorising the deceased by showing a pistol. When P.W.1 told the above fact to the informant he too went to the house of deceased Pahali Sahu and found the deceased lying on the verandah of his house. Since it was a moonlit night he could recognise all the Appellants. Due to the server assault on his person, the deceased had sustained cut injuries on his legs, left elbow, right-hand shoulder and also on different parts of his body and there was profuse bleeding. After a short-while, Paramananda Gochhayat (P.W.4) working as Sweeper in Jagatsinghpur Sub-divisional Hospital came to the place on being called by him. Pahali Sahu told P.W.5 that the Appellants assaulted him with a sword and Bhujali and further narrated that Appellant Liakat created a panic by aiming a pistol at him. P.W.7. Doli Sahoo. wife of the deceased Pahali Sahu supplied some warm milk and water to the deceased and told P.W.5 and other persons present there to take her husband to the Hospital. But since it was late night and the other villagers being afraid of the situation did not dare to take the deceased to the hospital. Pahali Sanu was alive till 6.00 A.M. of the following morning whereafter he succumbed to those injuries. This fact was informed to the Gramarakhi (P.W.3) Uttam Mallik who came to the place and found Pahali dead. Pahali Sanu was alive till 6.00 A.M. of the following morning whereafter he succumbed to those injuries. This fact was informed to the Gramarakhi (P.W.3) Uttam Mallik who came to the place and found Pahali dead. The informant proceeded to the police station and explained the incident orally to the O.I.C. Jagatsinghpur who reduced it to writing and treated as F.I.R. In the F.I.R. it was further disclosed that the Appellant Raju Sahu was an anti-social and terrorising people, for which before this incident some people of the village had also assaulted Appellant Raju Sahu with a Tenta and injured him. But Appellant Raju Sahu had to have an hand in glove with the other Appellants Liakat, and both of them had given out that they would kill Pahali Sahu. There was bitter feeling between Pahali Sahu and Raju consequent upon which the Appellants had killed Pahali Sahu on account of prior enmity. On the report of the informant the A.S.I. (P.W. 1) registered as case against the Appellants and in the absence of the O.I.C. took up investigation. He recorded statements of the witnesses, visited the spot, conduct inquest over the dead-body, sent requisition of the Scientific officer, despatched the dead-body to Jagatsinghpur Hospital for post-mortem examination, seized wearing apparels of the deceased, sample earth and the blood stained earth, sent the incrimination materials for chemical examination and after closure of investigation, placed the charge-sheet against the Appellants under Sections 302/34, I.P.C. 3. The plea of the Appellants in the trial Court was one of complete denial of the occurrence. 4. The prosecution had examined 11 witnesses in order to prove the culpability of the Appellants. P.Ws.1 and 7 are said to be eye witnesses whereas P.Ws. 4 and 5 are post occurrence witnesses. P.W.3 was Gramarakhi and P.W.6 was a Scientific Officer, P.W.8 was the P.A. to the Director of Technical Education. P.W.9 was the then Secretary state Council of Technical Education and Training. P.W.10 was the Doctor, who conducted post-mortem examination over the dead-body of the deceased, and P.W. 11 was the Investigating Officer who placed the charge-sheet in the Court. 5. From the evidence of P.Ws.1 and 5 embodied to this case, it has revealed that there was no love-lost between the Appellants Raju and Liakat on one hand and the deceased on the other. 5. From the evidence of P.Ws.1 and 5 embodied to this case, it has revealed that there was no love-lost between the Appellants Raju and Liakat on one hand and the deceased on the other. On the fateful night it is alleged by the prosecution that the Appellants Raju Sahu and Liakat Ali Khan along with two Ors. had gone to the house of the deceased and assaulted him with a sword and Bhujali on different parts of his body. The Appellants Liakat further terrorised the deceased by showing a pistol. The participation of the Appellants was claimed to have been seen P.W.7, the wife of the deceased, who raised a shrill cry and P.W.1 on hearing such shriek rushed to the house of P.W.7. 6. On a careful consideration of the judgment assailed before us, it appears to us that the learned Sessions Judge has mainly relied upon the ocular testimony of P.Ws.1, 4, 5 and 7 of whom P.Ws.1, 5 and 7 were the relations of the deceased. P.W.4 is alleged to have arrived at the spot on being informed by P.W.5 immediately atter the occurrence. In the F.I.R. it has been stated that the Appellant Liakat was holding a pistol and terrorising the deceased whereas the other Appellants Raju Sahu and Akhana Sethi were inflicting cut injuries by sword and Bhujali. P.W.5 has further stated that on being informed by his wife (P.W.1) he rushed to the spot and found the three Appellants running away from the house of P.W.7. P.W.5 further narrated in the F.I.R. that on his call the villagers Baga Sahu. Budhi Sahu, Paramananda Gochhait. Maheswar Behera reached the place of occurrence. None of the aforesaid persons was examined in the trial Court. From further narration in the F.I.R. it has transpired that P.W.7, Doli Sahu, had identified the Appellants Raju Sahu and Liakat Khan and Akhan Sethi to have assaulted her husband. It is strange to note that even the wife of the deceased Doli Sahu did not support the prosecution story. 7. The evidence of P.W.1 which embodied in this case is to the effect mat on the date of occurrence at about mid night 12.30 A.M. she was sleeping inside the room with her baby whereas her husband, P.W.5 was sleeping on the verandah. 7. The evidence of P.W.1 which embodied in this case is to the effect mat on the date of occurrence at about mid night 12.30 A.M. she was sleeping inside the room with her baby whereas her husband, P.W.5 was sleeping on the verandah. On hearing the outcry raised by P.W.7 the wife of the deceased, to the effect that "Go not assault, my children will be orphan", she rushed to the house of the deceased and noticed that accused-Appellant Liakat holding a pistol pointing to the face of the deceased and the other two Appellants were giving cut injuries by sword and bhujali. P.W.7 the wife of the deceased, had also witnesses the fatal blows on her husband By seeing this, P.W.1 again rushed to her house and woke up her husband. Alter a little while P.Ws.1 and 5 again reached at the spot and noticed the deceased Pahali Sahu having severe bleeding injuries on his chest, right hand and both the legs. He was lying unconscious at the spot in a pool of blood. Krushna. Jai Nuria and Ors. reached at the spot and had seen the tragic incident. Therefore P.W.5 went towards the house of P.W.4, Paramananda Gochhayat who came along with P.W.5 to the house of Pahaii Sahu. It is further alleged that on the query by Paramananda Gochayat the deceased made a dying declaration that the Appellant Liakat Ali Khan caught held of his hairs and dragged whereupon Appellant Raju gave a stroke by means of an empty bottle. While he fell asleep, the other Appellants gave Bhujali blows on different parts of his body. On the following morning Pahaii Sahu died at the place of occurrence. 8. While appreciating the evidence of P.W.1 it has to be borne in mind that she claimed to have proceeded to the spot after hearing the scream raised by P.W.7. Doli Sahu the wife of deceased. It is curious to note that Doti Sahu (P.W.7) did not claim to have raised any shout on seeing the incident of assault on her husband thus the question of P.W.1 going to the spot after hearing the outcry of P.W.7 is shrouded in the mystery. The house of P.W.1 was situated behind the house of Panaii Sahu. To reach the house of Pahaii Sahu one has to tread upon the village road which is almost 150 cubits away. The house of P.W.1 was situated behind the house of Panaii Sahu. To reach the house of Pahaii Sahu one has to tread upon the village road which is almost 150 cubits away. It was late night and she was sleeping inside the house with her baby. It is against human conduct to expect lady to rush to the place of occurrence without taking assistance of her husband. She has never claimed lo he gone in the company of her husband at the first instance. From the evidence also it is noticed that deceased Pahaii Sahu was lying on the verandah of his house there was some trees intervening between the place where P.W.1 had claimed to nave seen the occurrence and the verandah where the deceased Pahaii Sahu was lying. There was also a thatched house in between her house and that of the deceased. From her testimony it has further appeared that she had seen the assault on the deceased from a distance of 50 cubits. But it has been already discussed that in a night it is unnatural for a person to see the incident particularly when the trees intervened between the place of occurrence and the place from where she first saw. The Appellants had allegedly worn black garments at the time of occurrence. Therefore, it further becomes doubtful to identify even a known person from a distance of about 50 cubits, if he covers the body with a black robe. She has claimed to have identified with the help of a dibiri (kerosine lamp) light. But from the evidence of I.O. (P.W.11) it has further appeared that he had seized a dibiri (kerosine lamp).from inside the house of the deceased. Therefore, it became more suspicious as to the version of P.W.1 who claimed to have identified through the kerosine lamp. From her evidence it has emerged that Appellants Liakat and Raju were assaulting Pahaii Sahu (deceased) and accused Akhan was standing there, but he was not assaulting. In chief-examination she has stated that Appellant Liakat was holding a pistol aiming at the deceased. Thus it cannot be ascertainable as to who actually assaulted the deceased in the night of occurrence. 9. From the evidence of P.W.3 it has been established that the deceased was up-in-arm against the Appellants. On account of such bitter enmity a criminal case was pending in a Court. Thus it cannot be ascertainable as to who actually assaulted the deceased in the night of occurrence. 9. From the evidence of P.W.3 it has been established that the deceased was up-in-arm against the Appellants. On account of such bitter enmity a criminal case was pending in a Court. P.W.3 claims to be a post-occurrence witness and he learnt from the wife of the deceased pahaii that Appellants Liakat. Raju and Ors. dealt blows on the deceased. As we have already seen. P.W.7 did not claim to have informed anybody that the Appellants had assaulted her husband. Therefore, when P.W.7 the wife of the deceased, did not support the prosecution story, the version of P.W.3, who had claimed to have learnt from the wife of deceased appears 10 De shrouded in mystery and incredible. 10. On a careful study of the evidence of P.W.4 it has appeared that immediately after having learnt about the assault on Pahali Sahu the deceased, from his brother, he proceeded to the house of P.W.7 and noticed that the injured was lying naked on his verandah and he was then alive. Out of anxiety he asked the injured as to who assaulted him to which the deceased replied that Appellants Raju Sahu and Liakat caused those injuries on his person. While examining the reliability of his version we are taken through the cross-examination. It is gathered that he was heard of hearing and the deceased was not in a position to talk properly. Turning to the evidence of P.W.1 it is found that her husband's brother was lying unconscious in a pool of blood we would also like to refer to the evidence of P.W. 10 the Medical Officer, who conducted post-mortem examination over the dead-body of Pahali Sahu wherein it is noted that after receiving injuries deceased Pahali Sahu must be unconscious. Therefore, on a combined reading of the statements of P.Ws.1, 4 and 10 we have no other option but to hold that the version of dying declaration as placed by the prosecution is not above board and does not inspire belief. 11. P.W.5 is the informant in this case and the brother of the deceased and had claimed to have accompanied with his wife after having learnt from her about the incident. 11. P.W.5 is the informant in this case and the brother of the deceased and had claimed to have accompanied with his wife after having learnt from her about the incident. From his testimony it has transpired that there was strong enmity between the deceased Pahali Sahu and the Appellants prior to 2 to 3 months of the occurrence. In the night of occurrence when he was asleep, P.W.1 aroused him from his sleep and narrated the incident that the Appellants were giving cut injuries on Pahali Sahu on his verandah. No sooner did he learn about the injuries on his brother, he rushed to the house of P.W.7 and noticed that the Appellants were armea with different weapons like rifle, Bhujali and sword and meaning attempts to escape from that place hurriedly. If we conjointly read the evidence of P.Ws.1 and 5 it would appear that P.W.1 after seeing the injuries on Pahali Sahu rushed to her house to call her husband. P.W.5's house was at a distant place and some one had to walk down on a village road to reach his house. The time consumed for P.W 1 to reach her house for calling P.W.5 must be about 15 minutes. In the mean time it is unnatural and unexpected for the culprits to get themselves transpired at the scene of occurrence by giving Ors. a chance to be identified. From his evidence it has transpired that there were trees intervening in the village road. From his statement it has emerged that he did not talk with his brother till the arrival of P.W.4 which also appears to be unnatural. Normally it is expected that when P.W.5 had gone to the house of deceased brother, he must have asked about the injuries and name of his assailants. But without doing so, it is against human conduct to wait for the arrival of P.W.4 and, then, ask the deceased about the injuries. From his evidence also it has further been established that the Appellants had used black dresses like long coat at the time of commission of crime. Although in chief-examination P.W.5 had implicated all the three Appellants, but on recall by the defence he claimed to have seen Appellants Liakat and Raju to have committed the offence but not Appellant Akhan. From his evidence also it has further been established that the Appellants had used black dresses like long coat at the time of commission of crime. Although in chief-examination P.W.5 had implicated all the three Appellants, but on recall by the defence he claimed to have seen Appellants Liakat and Raju to have committed the offence but not Appellant Akhan. Therefore, it is doubtful as to which of the version is true with regard to participation of the Appellants in the crime. P.W.6 was a Scientific Officer who took the photographs from different angles at the place of occurrences and also the finger prints of the culprits. From his evidence it does not. however establish the involvement of the Appellants. The evidence of P.W.7, the widow of the deceased, gains significant importance while deciding implication of the Appellants. The entire prosecution story was on the basis that while P.W.7 was in. the house along with her husband, the Appellants went inside the house and assaulted her husband for which she raised hue and cry and thereafter P.W.1 reached at the spot. But strangely enough she does not claim to have raised any outcry inviting Ors. attention. In chief examination itself she disowned her previous statement recorded during investigation and before the learned Magistrate u/s 164 Code of Criminal Procedure From the cross-examination of P.W.7 it appears that she had slept with her husband in a room and when she woke up she found that her husband was lying injured and was then yawning, and unable to talk. She was stupefied by seeing the condition of her husband and became speechless. After some time PWs.1 and 5 came to the spot. By that time no one was there except herself and the decease. In view of the specific statement of P.W.7 the oral testimony of P.Ws.1 and 5 appears to be incredible, unbelievable and not above-board. Thus, no reliance can be placed on the testimony of P.Ws.1, 4 and 5 while deciding the culpability of the Appellants. 12. The evidence of P.Ws.8 and 9 does not help much while deciding the participations of the Appellants. Rather it would suggest that the Appellant Akhan was on deputation for evaluation work from 28.12,90 till 31.12.90. Thus, no reliance can be placed on the testimony of P.Ws.1, 4 and 5 while deciding the culpability of the Appellants. 12. The evidence of P.Ws.8 and 9 does not help much while deciding the participations of the Appellants. Rather it would suggest that the Appellant Akhan was on deputation for evaluation work from 28.12,90 till 31.12.90. On an over-all evaluation of the evidence of P.W.10 there could be no room for doubt that the deceased Pahali Sahu met with homicidal death on account of cut injuries inflicted on him. Those injuries were ante-mortem in nature and sufficient to cause death in ordinary course of nature. The injuries on the person of the deceased might have been possible by a weapon like sword. According to P.W.10 if a person receives such injuries he would be unconscious. On a perusal of the evidence of P.W.11. who was the I.O. in this case, it has appeared that he visited the spot being Informed by P.W.5 on the day following the incident. He noticed a kerosine lamp inside the house which was seized from the bed room of the deceased, but it was not produced in Court. 13. Looking to the circumstances of the case it is highly improbable that P.Ws.1 and 5 could have seen the presence of the Appellants at the scene of occurrence after having heard the out cry of P.W.7. It is also highly Improbable to except P.W.1 to proceed to the house of deceased Pahali alone in the night of occurrence since her house was situated quite apart from the deceased's house. The improvement found in the evidence of P.Ws.1 and 5, if material, was itself unsafe to rely upon. 14. Thus, considering the evidence of the prosecution witnesses from any angle we, however, feel that the prosecution has failed to prove the culpability of the Appellants beyond the shadow of reasonable doubt. 15. Accordingly, the order of conviction and sentence passed by the learned 1st Addl. Sessions Judge is hereby sat aside. Since the Appellants are on bail their bail bonds are hereby cancelled. P.K. Misra, J. 16. I agree.