JUDGMENT SUJIT BARMAN ROY, C.J. — This appeal at the instance of the applicant Uttam Dharua is directed against the judgment dated 29.4.1994 passed by the Sessions Judge, Sundargarh in Sessions Trial Case No. 224 of 1993 convicting the appellant under Section 302 I.P.C. and sentencing him thereunder to suffer R.I. for life. 2. Prosecution case in brief is that on 10.6.1993 at about 10 A.M. being accompanied by Murali Majhi (P.W.8), P.W.7 Dhanurjaya Majhi came to Kinijirkela Police Station and lodged an oral complaint stating, inter alia, that his younger brother Sibashan¬kar Majhi was staying in the house of his uncle Jaladhar Majhi. About three months prior thereto, his younger brother Sibashankar Majhi told P.W.7 that in his dream, he was directed to perform puja of ‘Lord Siva at Tal’ in the land of Suanjore Gountia. Accordingly, from that day, he was staying there after constructing a small temple and was performing puja of Lod Siva. Some days thereafter, the said Sibashankar Majhi asked Vukumati Majhi, being an old lady to help him in the Puja matter. Accordingly, said Vukumati Majhi and her son Ramdev Majhi stayed there since six days prior to the date of occurrence and were helping the devotees. The appellant Uttam Dharua had no issue despite his marriage some five to six years prior thereto. On the previous day being 9.6.1993 at around 7 ‘O’ clock in the morning one son of the paternal uncle of the informant came and reported his uncle Jaladhar that the appellant was pressing the neck of Sibadadu being the uncle of the informant by laying him on the floor when the said Sibadadu was taking meal. On hearing this, the informant along with said Murali and his uncle rushed to the temple and on arrival at the spot, they found that the appellant Uttam was pulling at the hand of Sibadadu by pressing his leg on the neck. When Murali asked the appellant as to why he was doing so,the appellant threatened to beat him and fled away from the spot. After the appellant fled away from the spot, the informant and others found his brother Sibadadu dead. At that time, P.W.3 Sukuram Kerketta, P.W.11, Vukumati Majhi and other devotees were present at the place of occurrence and they saw the incident. After the appellant fled away from the spot, the informant and others found his brother Sibadadu dead. At that time, P.W.3 Sukuram Kerketta, P.W.11, Vukumati Majhi and other devotees were present at the place of occurrence and they saw the incident. Thereafter, the informant along with other co-villagers searched for the appellant but they could not find him and his wife and it appears that both the appellant as well as his wife left the village. On the basis of the said oral complaint, which was reduced into writing by the Officer-in-charge of the said police station, a case under Section 302 I.P.C. was registered against the appellant. After usual investigation, a charge sheet was filed against the appellant under Section 302 I.P.C. 3. In course of time, the case was committed to the Court of Sessions Judge, Sundargarh. Learned trial Court on perusal of the materials on record framed charge under Section 302 I.P.C. to which the appellant pleaded not guilty. In course of trial, in all 13 P.Ws. were examined on behalf of the prosecution. None was examined on behalf of the appellant. The defence of the appellant was that of complete denial of the prosecution case. On conclu¬sion of the trial, the appellant was convicted and sentenced as already stated. P. W. 1 was merely an inquest witness and accordingly, he signed the inquest report. So also, P.W.2 merely signed the inquest report. Apart from the aforesaid, there is no other importance of the evidence of these two witnesses. 4. P.Ws. 3, 4 and 5 were declared hostile by the prosecu¬tion and accordingly, prosecution cross-examined these witnesses after obtaining leave from the trial Court. They did not support the prosecution case at all. 5. P.W.6, Dr. Pradeep Kumar Acharia held post mortem over the dead body of the deceased. He stated that on 11.6.1993 being requisitioned by the police, he conducted post mortem examination over the dead body of the deceased. The dead body was identified before him by police constable. On examination of the dead body he could notice the following injuries. 5. P.W.6, Dr. Pradeep Kumar Acharia held post mortem over the dead body of the deceased. He stated that on 11.6.1993 being requisitioned by the police, he conducted post mortem examination over the dead body of the deceased. The dead body was identified before him by police constable. On examination of the dead body he could notice the following injuries. (i) A bruise on right temporal region measuring 3" x 3" (ii) A bruise on occipital region measuring 4" x 3" (iii) A bruise over mandible on left side measuring 3" x 3" (iv) A bruise on anterior aspect of neck in the middle measuring 3" x 3" (v) A bruise over right scapular area of the size 6" x 4" 6. All the injuries were ante mortem in nature. P.W.6 further opined that no definite opinion as to the cause of death could be given. In view of multiple ante mortem and bruise on neck with effusion of blood to surrounding sub-tissues and fracture of left cornue of hyoid bone, fracture of left carnue of thyroid cartelege, strangulation was stated to be likely. Despite the aforesaid, P.W.6 was unable to express a definite opinion as to whether the death was due to asphyxia. The highly decomposed state of dead body was stated to be the reason for his failure to express any such definite opinion as to whether the cause of death of the deceased was asphyxia. It is further stated that no final opinion could be given unless the opinion of the Chemical Examiner upon the examination of viscera was ob¬tained. The viscera was preserved in saturated solution of common salt. The Jar ‘A’ contains the contents of the stomach and a small piece of intestine. Jar ‘B’ contains a piece of lungs, a piece of heart, a piece of liver, a piece of spleen, right kidney, little pulpy brain matter. This is in short the evidence given by this witness. 7. The next important witness is the informant being P.W.7 Dhanurjaya Majhi. In his evidence of P.W.7 stated that the de¬ceased was his brother. The occurrence took place on 9.6.1993 at 6.00 P.M. His cousin brother being the son of his uncle Hemant Majhi informed his uncle that while the deceased was taking food, the appellant dragged his leg and at this the deceased fell down. In his evidence of P.W.7 stated that the de¬ceased was his brother. The occurrence took place on 9.6.1993 at 6.00 P.M. His cousin brother being the son of his uncle Hemant Majhi informed his uncle that while the deceased was taking food, the appellant dragged his leg and at this the deceased fell down. After the deceased fell down, the appellant pressed the neck of the deceased by his leg. The appellant Uttam was holding the hands of the deceased while pressing the neck of the deceased by his leg. Hearing this news, the informant along with his uncle Jaladhar and Murali went to the spot and found the appellant while holding the hands of the deceased was pressing the neck of the deceased by his leg. On seeing this Murali threatened the appellant to leave the deceased as otherwise they would assault the appellant. At this, the accused person left the place. They then guarded the body of the deceased. Later on, this witness lodged an information at the police station on the basis whereof an F.I.R. was registered. Afterwards, police held inquest over the dead body of the deceased to which this witness gave his signature. This is in short the evidence given by this witness in course of his examination in chief. It is stated by this witness during cross-examination that the place of occurrence was situat¬ed at a distance of about two miles from his village. The police station where the F.I.R. was lodged is situated around twelve miles away from the village. He also claimed that P.W.7 was in his house when he was reported about the incident. He is also living separately from his uncle Hemanta, who actually informed him about this incident first. He further states that on his way to the police station he did not report about the incident to anybody though Murali (P.W.8) accompanied him to the police station. He also claims to have come to the spot along with his uncle Jaladhar and Murali Majhi. He also did not report about this incident to anybody after he lodged the F.I.R. The accused-appellant was also present when police visited the village. The appellant was present even at the time of inquest. He also claims to have come to the spot along with his uncle Jaladhar and Murali Majhi. He also did not report about this incident to anybody after he lodged the F.I.R. The accused-appellant was also present when police visited the village. The appellant was present even at the time of inquest. It appears from the F.I.R. as well as the evidence of this witness that when this witness was in his house, he was informed by his uncle that appellant was pressing the neck of the deceased by his leg. His uncle learnt this incident from the cousin of P.W.7. As admitted by him in his evidence during cross-examination the place of occurrence was situated at a distance of about two miles away from his village. He covered this distance either on foot or by a cycle. After covering this distance, this informant saw that the deceased was still pressing the neck of the deceased by his leg. This sounds to be little improbable. To kill a man by press¬ing his neck, one does not require such a long time within which the distance of two miles can be covered either on foot or on a cycle. Apart from this, the informant while going to the police station did not report about the incident to others who had accompanied him to the police station.These admissions clearly render his evidence little incredible. 8. Similar is the evidence of P.W.8, Murali Majhi. His name figures in the F.I.R. who accompanied P.W.7 to the police station. He has stated in his evidence that his father Jaladhar told him that the appellant was assaulting the deceased. On learning this, this witness along with P.W.7 and his father rushed to the spot. On arrival at the place of occurrence, he found that the appellant was still pressing neck of the deceased by his leg while holding the hands of the deceased. It is further stated by him that wife of the appellant Satnami was holding the waist of the deceased. As this witness threatened the appellant, the appellant left the spot leaving behind the deceased. He found his elder brother to be already dead. They guarded the dead body for the entire night and on the next day along with P.W.7 went to the police station and there at the police station P.W.7 lodged the F.I.R.. As this witness threatened the appellant, the appellant left the spot leaving behind the deceased. He found his elder brother to be already dead. They guarded the dead body for the entire night and on the next day along with P.W.7 went to the police station and there at the police station P.W.7 lodged the F.I.R.. This is in brief the evidence given by this witness. In course of his cross examination, this witness further stated that after the F.I.R. was lodged by P.W.7, he made a statement to the police. 9. Identical is the evidence of P.W.9, Jaladhar Majhi. In his evidence, he stated that when he was in his house, his son Hemanta informed him that the appellant pressed the neck of the deceased. Immediately, on hearing this news, this witness along with P.Ws.7 and 8 rushed to the place of occurrence and found that the appellant was still pressing the neck of the deceased. The deceased died at the spot. On being threatened by P.W.8, the appellant left the place of occurrence. This is the evidence in brief given by this witness during his examination in chief. Prosecution story in brief is that Hemanta first saw the incident that the appellant was pressing the neck of the deceased. On seeing this incident, Hemanta being a boy of about six years travelled about two miles distance to report the matter to P.W.9 Jaladhar Majhi. Thereafter, P.W.9 reported the matter to P.W.7 and on being so informed, P.W.7 along with P.Ws.8 and 9 as well as Hemanta again travelled two miles distance to reach the place of occurrence. It is stated that till then, the appellant was pressing the neck of the deceased. This part of the story sounds inherently improbable inasmuch as for killing a man by pressing the neck, one is not required to press the neck for such a long period of time in which a person could travel a distance of about four miles. 10. P.W.10, Hemanta Majhi is a child witness. At the time he gave his evidence, he is stated to have been seven years old. His evidence was recorded on 18.3.1994. The incident occurred on 10.6.1993. Therefore, at the time of occurrence this witness was aged about six years. 10. P.W.10, Hemanta Majhi is a child witness. At the time he gave his evidence, he is stated to have been seven years old. His evidence was recorded on 18.3.1994. The incident occurred on 10.6.1993. Therefore, at the time of occurrence this witness was aged about six years. Learned trial Court tested the intelligence of this witness by asking certain questions and he found that the witness gave rational answers to the questions and from this, the trial understanding.But the questions which were asked by the trial Judge and the replies thereto given by this witness have not been recorded. 11. In his evidence this witness stated that the deceased was his elder brother. He was performing Puja in the temple at the time of occurrence and this witness was present there. The deceased was served with food by accused Satnami. The appellant Uttam caught hold the leg of the deceased and pulled him. The deceased fell down on the floor and then the appellant started pressing the neck of the deceased by his leg. The other accused Santami being the wife of the appellant caught hold of the thigh of the deceased. He reported about this incident to his father Jaladhar. Thereafter, he again returned to the spot. This is in brief the evidence given by this witness. In course of cross-examination, this witness stated that he did not report about this incident to anybody else except his father. When he saw that the appellant was pressing the neck of the deceased by his leg, he left the spot. There was some tussle between the appellant and the deceased. The appellant Uttam and the deceased were initially giving push to each other and both of them fell down on the ground. He was unable to say as to how much time one is required to walk down the distance from the place of occurrence to the place where this witness reported the incident to his father. This is in brief the evidence given by this witness. Reasons for which we are unable to place much reliance on other eye-witnesses are equally applicable to this witness. 12. P.W.11 was declared hostile by the prosecution and he did not support the prosecution version. So also P.W.12 turned hostile and did not support the prosecution. This is in brief the evidence given by this witness. Reasons for which we are unable to place much reliance on other eye-witnesses are equally applicable to this witness. 12. P.W.11 was declared hostile by the prosecution and he did not support the prosecution version. So also P.W.12 turned hostile and did not support the prosecution. P.W.13 is the Offi¬cer-in-charge of the police station, It is stated by this witness during his cross-examination that when he came to the place of occurrence, he found the accused persons also there. The appel¬lant was arrested on 11.6.1993 at 9.00 A.M. in the morning and he was forwarded to the Court on the very next day on 12.6.1993. Strangely enough, the Investigating Officer admits in his cross-examination that he did not despatch the F.I.R. to the Court as he was not present at the headquarters. He also claimed his igno¬rance as to the method in which the F.I.R. is forwarded to the Court. He also states that the Investigating Officer reached the spot at 8.30 A.M. on 10.6.1993 itself. It is really suspicious that though the F.I.R. was lodged on 10.6.1993 itself which attracted him to the place of occurrence on that very day and though F.I.R. clearly disclosed name of the appellant as the offender, yet the appellant was not arrested when inquest was prepared by the Investigating Officer where the appellant was present as admitted by P.W.7. Inquest was prepared on 10.6.1993 at 4 P.M. in presence of eye-witnesses. P.W.13 (I.O.) himself admits that when he came to place of occurrence after recording F.I.R., he found accused person to be present there. Then the big question arises as to why the appellant was not arrested on 10.6.1993 itself ? As a matter of fact the Investigating Officer arrested the appellant on the next day. We cannot rule out the possibility that name of the offender was not known to anyone till the time of inquest. F.I.R. was perhaps not registered at the stated time and date. It might have been recorded subsequent¬ly and then antitimed and antidated. This is the reason why the Investigating Officer failed to say as to when F.I.R. was des¬patched to the Court. F.I.R. was perhaps not registered at the stated time and date. It might have been recorded subsequent¬ly and then antitimed and antidated. This is the reason why the Investigating Officer failed to say as to when F.I.R. was des¬patched to the Court. Apart from the aforesaid suspicious circum¬stance, there is another prominent circumstances which has already been rendered to in course of this judgment that speaks volume against the veracity of the version of the alleged eye-witnesses. As it appears from the evidence of P.W.10 Hemanta Majhi, he is the first witness to see the occurrence that the appellant was pressing against the neck of the deceased by his leg. He was then a boy of six years. He travelled a distance of 2 K.M. to report the matter to P.W.9, Jaladhar Majhi. How much time it could take a young boy of six years to travel a distance of 2 K.M. and thereafter it attracted other eye-witnesses to the scene of occurrence. These other eye-witnesses came to the scene of occurrence after travelling 2 K.M. of distance. How much time it could have taken them to reach the place of occur¬rence after traveling 2 K.Ms. ? Even then,these eye-witnesses saw that the appellant was still continuing to press the neck of the deceased by his leg. This story that the appellant was still pressing the neck of the deceased by his leg for such a long period sounds inherently improbable and therefore we are unable to place much reliance on the testimony of the alleged eye-witness¬es. In these circumstances, we are constrained to observe that the prosecution story has not been proved beyond reasonable doubt. The benefit of such reasonable doubt has to be given to the appellant. 13. In the result, we are constrained to allow this appeal and set aside the impugned judgment of conviction and sentence and direct that the appellant, if he is still in custody, be set at liberty forthwith. L. MOHAPATRA, J. I agree. Appeal allowed.