JUDGMENT : P.K. Tripathy, J. - Heard. 2. This Government Appeal is directed against the order of acquittal passed by the Learned Sessions Judge, Koraput at Jeypore in Sessions Case No. 143 of 1991. 3. According to the case of the prosecution, Binod is the deceased and Bijaya and Dayaban are the two accused persons. P.W.1, Nabin Chandra Sethi is the Samudhi and P.W.3, Surendra Bhatra is the son of the deceased. The dead body of the deceased lying on the road near the Shiba Temple of village Thelapadar was noticed by the postal runner and he intimated that fact to the son of the deceased on 17.11.1990. The matter was reported to the police and a U.D. Case was registered, in course of which autopsy on the dead body was conducted by Dr. Santosh Kumar Mishra (P.W.9). The sons of the deceased made efforts at their own to trace out the reason for such death of the deceased and ultimately they reached P. Ws.1 and 2 and learnt from them that the accused persons made assault on the deceased in the mid night of 16.11.1990 by giving neck push and caught hold of the tuft of hair of the deceased. After collecting the information from P. Ws.1 and 2, the written F.I.R. was presented 15 days after the occurrence describing Bijaya and Dayaban as the assailants. Investigation was taken up, and on completion of that charge sheet was filed. 4. The accused persons denied to the charges and claimed for trial. In course of the trial, they also advanced one of the defence plea that P. Ws.1 and 2 had assaulted the deceased, which resulted in his death. 5. To substantiate the charge, prosecution examined 13 witnesses but the star witnesses were P. Ws. 1 to 6 and 9. The Learned Sessions Judge appreciating their evidence in different manner did not believe that the accused persons had dealt blows on the deceased causing his homicidal death and passed order of acquittal on the ground that there is considerable delay in disclosure of the incident by P. Ws. 1 and 2, so also the considerable delay in lodging the F.I.R. 6. Learned Standing Counsel argues that the evidence of P. Ws, 1, 2 and 3 is self-explanatory to explain the delay and therefore the delay should not have been the sole consideration to pass the order of acquittal. 1 and 2, so also the considerable delay in lodging the F.I.R. 6. Learned Standing Counsel argues that the evidence of P. Ws, 1, 2 and 3 is self-explanatory to explain the delay and therefore the delay should not have been the sole consideration to pass the order of acquittal. Learned Counsel for the accused, on the other hand, argues that when the prosecution has not been able to establish the homicidal death of the deceased, commission of the offence u/s 302 Indian Penal Code is far fetched. He also states that although no defence plea has been taken, but suggestion has been given that those two witness P. Ws. 1 and 2 assaulted the deceased. 7. When the charge is u/s 302 Indian Penal Code, the prosecution is duty bound to prove by clear and cogent evidence that the deceased suffered from homicidal death. Learned Sessions Judge, unfortunately did not determine that aspect as the primary point i.e. before assessing the evidence relating to accusation of assault against the accused persons. She only recorded that "On perusal of the Post-Mortem examination Report (Ext.5) and the further opinion of the Doctor - Ext. 5, I find that the medical evidence supports the ocular evidence with regard to the infliction of injuries in the person of the deceased and that the death of the deceased was due to the injuries". 8. In that respect, evidence of P.W. 9, the doctor who conducted the Post Mortem examination, is relevant. In his deposition he stated that he found the following external and internal injuries: External injuries: 1. Pressure abrasion with cuticle peeled off 2" x 2" on back of right fore-arm in the upper part. 2. Abrasion 1 1/2" x 1'' below right knee on inner aspect. 3. Abrasion 1" x 1/4" on the lower one-third of outer part of left thigh. The cuticle had been peeled off at these places with hardening of exposed surface with extra-vassation of blood to the adjoining deeper tissue which cannot be washed off" with water. Internal: Left temporalis muscle was contused. Larynx and trachea showed appreciable congestion. Kidneys were congested. 9. Thereafter, P.W.9 stated that "the cause of death was not opined and the same was reserved till the receipt of the chemical examination report of the viscera". Internal: Left temporalis muscle was contused. Larynx and trachea showed appreciable congestion. Kidneys were congested. 9. Thereafter, P.W.9 stated that "the cause of death was not opined and the same was reserved till the receipt of the chemical examination report of the viscera". The further opinion of the doctor as recorded by the Trial Court is that the injuries found on the dead body of the deceased can be caused by assault and in such event such violence would cause death in ordinary course of nature. He also proved the opinion recorded Ext.6 by relying on the aforesaid opinion. 10. It is the admitted position on record that the viscera report, if any, was not made available to the Trial Court. The theoretical opinion put by P.W.9 to the query of the I.O. and the Trial Court are not sufficient to supersede the above quoted opinion in as much as such opinion was given by the Doctor while dead body was available to him. Therefore, P.W.9 has not clearly proved that the deceased suffered homicidal death though hypothetically he stated about possibility of injuries by assault and further opinion that such injuries in ordinary course can cause death. Thus, we record the findings contrary to the aforesaid findings of the Trial Court and held that prosecution has failed to prove by clearly and clinching evidence that the deceased suffered homicidal death. 11. Be that as it may, for the sake of discussion if it is assumed that the deceased suffered homicidal death due to assault on him, then keeping in view evidence of P. Ws. 1, 2 and 6 and the contradictions therein, besides the defence plea that P. Ws. 1 and 2 are instrumental in the injury of the body of the deceased and the further evidence of the Investigating Officer, P.W. 13 that such statement was made before him by P. Ws. 1, 2 and 6 leaves no room for doubt that there is absence of clinching evidence to connect the accused persons with the alleged assault. Apart from that, according to the evidence of P. Ws. 1 and 2, on receiving the neck push from the accused, the deceased fell down with face downwards, then the deceased was in drunken condition. That necessarily follows that there should have been some injuries on front part of the body. Apart from that, according to the evidence of P. Ws. 1 and 2, on receiving the neck push from the accused, the deceased fell down with face downwards, then the deceased was in drunken condition. That necessarily follows that there should have been some injuries on front part of the body. At the time of postmortem examination, P.W. 9 did not notice any such injury. That is also another taletell circumstance to create doubt on the allegations against the accused persons. Under such circumstance, we do not find any reason to interfere with the order of acquittal granted by the Trial Court. 12. Accordingly, the Government Appeal is dismissed. 13. Appeal dismissed. Final Result : Dismissed