JUDGMENT : B. Panigrahi, J. - The order of conviction and sentence passed by the learned Additional Sessions Judge, Rourkela in S.T. No. 1/2 of 1990 directing the Appellant to undergo ngorous imprisonment for life for commission of offence u/s 302 of the Indian Penal Code (for short, "IPC") has been assailed in this appeal. 2. The brevity of the prosecution story as unfurled during the course of trial is as follows: P.W. 1, Chandamani Singh had extra-marital relationship with the deceased Tikeswar Bhumij prior to her marriage. But her family members did not permit P.W. 1 to marry the deceased, rather they forced her to marry the Appellant. Such marriage was solemnised against her wish. Therefore, there was unhappiness 'frequent quarrel and dissension between the Appellant and P.W.1. Finally, Chandamani left the matrimonial house and lived in a rented house belonging to one Bauda Bhumij at Jaida C. Block. The deceased Tikeswar used to come and stay with Chandamani in the rented house. On 5.8.1989 at about 10.30 P.M. while Chandamani and the deceased Tikeswar were inside the house, the Appellant is alleged to have knocked at the door asking P.W i to open it. At that juncture, the deceased Tikeswar went and opened the door. Immediately thereafter the Appellant dealt a knife blow on his abdomen and left the place with the knife. Chandamani is said to have witnessed the occurrence and cried for help. On hearing such outcry, P.Ws. 2 and 3 rushed to the place of occurrence and noticed the Appellant going away from the scene occurrence. P.W. 2 and her husband P.W. 3 found the injured Tikeswar lying with stab injury on his abdomen. On their query. Tikeswar is alleged to nave stated that it was Appellant who was-responsible for causing such bleeding injury by the knife'. Thereafter, P.W. 3 took the injured Tikeswar to the police station and from there to Rourkela I.G.H. where he was admitted, as an indoor patient. However, unfortunately Tikeswar succumbed to the injuries. P.W. 1 Chandamani verbally explained about the incident at Jalada Out-post on the basis of which the A.S.I. Jalda out-post, under the direction of the O.I.C. carried on investigation. However, unfortunately Tikeswar succumbed to the injuries. P.W. 1 Chandamani verbally explained about the incident at Jalada Out-post on the basis of which the A.S.I. Jalda out-post, under the direction of the O.I.C. carried on investigation. During investigation, the A.S.I. Jalda out-post (P.W. 15) visited the spot recorded the statement of the witnesses, arrested the Appellant, seized the blood stained knife at the instance of the Appellant u/s 27 of the Evidence Act, despatched dead body for post mortem examination, sent the incriminating materials to the F.S.I for chemical examination and on completion of investigation placed charge-sheet against the Appellant for commission of murder of Tikeswar. 3. In order to prove its case, prosecution had examined sixteen witnesses. It had however, mainly relied on the evidence of P.W. 1 to 3. who claimed to be eyewitnesses to the occurrence and also post-occurrence witnesses. P.W. 1 Chandamani Singh apart from being the informant had also claimed-during investigation to have seen the occurrence. But, unfortunately, she did not stick to her statement and was, therefore, declared hostile and the prosecution was permitted to confront her with the previous statement. P.Ws 2 and 3 were the immediate neighbours of P.W. 1. P.W. 2 had claimed to arrived at the spot on hearing the outcry raised by P.W. 1 similarly. P.W. 3 arrived at the spot followed by his wife (P.W.2). 4. Undisputedly, the incident had taken place in front of the rented house of P.W. 1, which belonged to P.W. 3. In the F.I.R. it has been stated that P.W. 1 was residing in the house of P.W. 3 some time before the incident, in the night occurrence, the deceased had stayed in her house. As the Appellant Knocked at the door. The deceased opened it. No sooner did he open the door than the Appellant struck a knife on his abdomen and ran away. While going through the statement of P.W. 1 given in Court, we noticed that after Hearing the bang on the door, deceased Tikeswar ' went and opened it. No sooner did he open the door than somebody stabbed him with a knife on his abdomen. She could not see the assailant. A kerosene lamp was burning inside the house and the incident had taken place outside. She raised a cry on hearing which, P.W. 2 rushed to the spot. No sooner did he open the door than somebody stabbed him with a knife on his abdomen. She could not see the assailant. A kerosene lamp was burning inside the house and the incident had taken place outside. She raised a cry on hearing which, P.W. 2 rushed to the spot. P.W. 2 also noticed injuries on the abdomen of Tikeswar. Although P.W. 1 tried to ascertain from the deceased as to who was his assailant, he could not give any reply. In view of this statement on oath we are unable to appreciate as to how such statement helps the prosecution in order to sustain a conviction against the Appellant. 5. P.W. 2 rushed to the spot on hearing the outcry raised by P.W. 1. Learned Additional Standing Counsel urged that utmost credibility should be attached to the statement of P.W. 2 inasmuch as she claimed to have learnt from the mouth o' the deceased that the injuries were caused by the present Appellant by means of Knife. While examining such contention, we went through the F.I.R. lodged by P.W. 1. In the F.I.R it has been unequivocally stated that Tikeswar became unconscious immediately after receiving the injury before arrival of P.Ws. 2 and 3. If such statement is to be accepted, then how could it be believed for a moment that the deceased Tikeswar uttered the name of his assailant before P.Ws 2 and 3? P.W. 2 also stated that she had seen the Appellant Mangal Singh going away from the house immediately after the occurrence. But, in cross-examination, she made a candid admission that since it was a dark night, it was not possible on her part to positively identify the Appellant, in that event, we have no hesitation to reject the submission of the learned Additional Standing Counsel that P.W. 1 had identified the Appellant in the night of occurrence. 6. P.W.3 is the husband of P.W. 2. He corroborated the statement of P.W. 2 to the effect that they gathered from the deceased that it was the Appellant who nave the murderous blow on his abdomen. But, from the F.I.R. as well as from the evidence of P.W. 1 it has been firmly established that the deceased Tikeswar was unable to make such statement after receiving the injury. But, from the F.I.R. as well as from the evidence of P.W. 1 it has been firmly established that the deceased Tikeswar was unable to make such statement after receiving the injury. In this background, the statement of P.W. 3 that he learnt from the deceased that the Appellant had stabbed him appears to be incredible. The evidence of P.W. 3 further reveals that while taking Tikeswar to the hospital on the way a station diary entry was made at Jalda outpost vide S.D.E. No. 82 dated 05.08.1989. But, it is disquieting to not that no step was taken by the prosecution either to call for such station diary entry or to prove the same before the trial Court, Had it been produced by the prosecution, the truth or otherwise of the prosecution case could have been better appreciated: 7. P.W.5 was examined to prove the seizure of the knife at the instance of the Appellant. Even assuming that the knife was seized, but we do not find any incriminating material, such as blood on the knife. Therefore, it does not have any bearing to prove the complicity of the Appellant. 8. From the evidence of P.W. 6, the doctor who conducted autopsy over the dead body of the deceased, it appears that the deceased had four external injuries. Which are described hereunder: (i) Incised wound 8" ? 2-1/2" ? deep into peritonium vertically from left coastal margin downward 1-1/2" parallel to midline. (ii) Incised wound 2-1/2" ? 1/2" ? deep up to peritonium obliquely present on the left hypochondrium. (iii) Incised wound 1-1/2" ? 1/2" ? deep upto peritonium obliquely on left iliac fossa 3" left and downwards to the ambiliques. (iv) Incised wound 1" ? 1/4" horizontally present on anteromedial part of left leg, 2" above the right ankle joint. On dissection, it was found that the entire peritonium was filled with pyoanguinous fluid with features of inflammation. According to P.W. 6, all the injuries were ante mortem in nature. Death was due to syncope resulting from peritonial shock and internal injuries. Thus, it has been established beyond doubt that the deceased Tikeswar met a homicidal death. 9. P.W. 10 was the driver of the auto-rickshaw. Although be made a fail statement that the injured was conscious and found talking, in view of the averment made in the F.I.R. and also the evidence of P.W. 1. Thus, it has been established beyond doubt that the deceased Tikeswar met a homicidal death. 9. P.W. 10 was the driver of the auto-rickshaw. Although be made a fail statement that the injured was conscious and found talking, in view of the averment made in the F.I.R. and also the evidence of P.W. 1. we are not in a position to accept the statement of P.W. 10. It may be mentioned here that the injured was first taken to the Jalda outpost immediately after the incident. The A.S.I, who was present at the outpost and had the occasion to notice the condition of the injured had clearly deposed that Tikeswar was unconscious. Even assuming that he was conscious, from the record it has not been gathered that any step was taken to record his dying declaration. 10. There being no eye-witness to the occurrence and no clinching circumstances pointing the guilt of the Appellant having been established, we are unable to uphold the conviction and sentence recorded by the learned Sessions Judge. Accordingly we allow the appeal set aside the order of conviction and sentence passed by the trial Court and acquit the Appellant of the charge. The bail bond furnished earlier by the Appellant is hereby discharged. P.K. Misra, J. 11. I agree. Final Result : Allowed