JUDGMENT : L. Mohapatra, J. - All the fifteen Appellants have been convicted for commission of offence under Sections 364 and 302 of the Indian Penal Code (in short 'I.P.C.') by the learned Additional Sessions Judge, Khurda in S.T. No. 46/24/170 of 1995/1992. All of them have been sentenced to imprisonment for life for their conviction u/s 302 I.P.C. but have not been sentenced separately for their conviction u/s 364 I.P.C. The learned Additional Sessions Judge has further directed in the impugned judgment that in the event the conviction u/s 302 I.P.C. is set aside, the Appellant shall be deemed to have been sentenced to undergo R.I. for a period of five years each for their conviction u/s 364 I.P.C. 2. Case of the prosecution, as revealed from the record, is that the deceased, Bhagabat Mangaraj, who was working as a Gram Rakhi under Khurda Police Station had gone to village Haladipada in the night of 27th March, 1991 to perform his duty as Dola festival was being celebrated. On the way the accused persons commented saying that "You proceed ahead, we are following". At about 1 A.M. in the night when the deceased was performing his duty, all the accused persons physically lifted him from the Melan field towards Sabi Jora of Patpur Mouza. The informant and some others, who were present could not intervene out of fear. However, they went in search of the deceased and on the next day morning they found the deceased lying in an unconscious state near Sabi Jora with bleeding injury. Stone boulders had been placed on the body of the deceased. The informant and some others brought the deceased to Khurda Hospital for treatment, but he died soon thereafter. On these allegations the son of the deceased, Maheswar Mangaraj, P.W.1, lodged the F.I.R. before the O.I.C. Khurda Police Station and investigation was taken up. On completion of investigation, charge sheet was submitted against 34 accused persons for commission of offence under Sections 147/364/302 read with Section 149 I.P.C. for having formed an unlawful assembly at Haladipada at about 1 A.M. on 28.3.1991 with the common object to kidnap and murder the deceased. All the Appellants were separately charged under Sections 364 and 302 of the I.P.C. for having kidnapped and committed murder of the deceased on the said date. 3. Prosecution in order to establish the charges, examined twelve witnesses. All the Appellants were separately charged under Sections 364 and 302 of the I.P.C. for having kidnapped and committed murder of the deceased on the said date. 3. Prosecution in order to establish the charges, examined twelve witnesses. P.W.1 is the informant and son of the deceased. P. Ws.2, 4, 5 and 6 are witnesses to kidnapping of the deceased from Haladipada Melan Field as well as to oral dying declaration made by the deceased at Sabi Jora. P.W.7 is also a witness to the dying declaration apart from being a witness to seizure in Ext.3. P.W.8 was examined as an eyewitness to the occurrence, but he did not support the prosecution case. P.W.9 is the doctor, who conducted post mortem examination and P.W.10 was examined as an eyewitness to the occurrence. P.W.11 is the doctor, who admitted the deceased in the Hospital in a serious condition and P.W.12 is the I.O. 4. The plea of the accused persons is denial of the prosecution case. Appellant No. 7-Sukanta alias Sukadev Baral took a specific plea of alibi and according to him, he was admitted in Balanga Government Hospital on 23.3.1991 where he remained as an Indoor patient till 29.3.1991 and thereafter he was again admitted in Capital Hospital, Bhubaneswar. 5. The trial court on the basis of the evidence adduced before it, found all the fifteen Appellants guilty of the charges under Sections 302 and 364 of the I.P.C. and convicted them thereunder. Rest of the accused persons were acquitted of the charges. The Appellants were acquitted of the charge under Sections 147 and 149 of the I.P.C. 6. In course of hearing of the appeal, it was contended by the learned Counsel for the Appellants that during pendency of the appeal, Appellant Nos. 11 and 12 namely, Raja Behera and Jaga alias Jagannath Behera have expired and accordingly the appeal abates so far as these two Appellants are concerned. In course of hearing of the appeal, it was contended by the learned Counsel for the Appellants that during pendency of the appeal, Appellant Nos. 11 and 12 namely, Raja Behera and Jaga alias Jagannath Behera have expired and accordingly the appeal abates so far as these two Appellants are concerned. The learned Counsel for the Appellants assailed the impugned judgment on the ground that once the Appellants are acquitted of the charge under Sections 147 and 149 of the I.P.C., unless the prosecution establishes the individual conduct of each of the Appellants in commission of the offence alleged, they could not have been convicted for commission of offence under Sections 364 and 302, I.P.C. It was further contended by the learned Counsel for the Appellants that the evidence adduced before the trial court does not point at any particular accused having committed the alleged offence and, therefore, there being no material with regard to individual conduct of the Appellants in commission of the alleged offences, they having been acquitted of the charge under Sections 147 and 149 of the I.P.C., could not have been convicted under Sections 302 and 364 of the said Code. The learned Counsel for the State defending the impugned judgment submitted that the materials on record clearly establish that all the Appellants participated in commission of the offences and, therefore, they have been rightly convicted for commission of the said offences. 7. Admittedly, all the Appellants have been acquitted of the charge under Sections 147 and 149 of the I.P.C. Therefore, the learned Counsel for the Appellants rightly submitted that individual conduct of each of the Appellants is to be seen in order to find out as to whether they are liable for commission of offence under Sections 364 and 302 of the I.P.C. P.W.1 is the son of the deceased and is also the informant in the case. He has stated that on 27.3.1991 he accompanied his father, who was going to perform his duty at Haladipada. At about 8.00 P.M. the accused persons were standing in front of their house and threatened his father saying that they would see him. Without paying any heed to such threat, the deceased went to perform his duty. While he was inside the village Sahi, he heard that Dusasan Mangaraj was seriously assaulted and was lying under the Pipal tree. At about 8.00 P.M. the accused persons were standing in front of their house and threatened his father saying that they would see him. Without paying any heed to such threat, the deceased went to perform his duty. While he was inside the village Sahi, he heard that Dusasan Mangaraj was seriously assaulted and was lying under the Pipal tree. When he rushed to the spot, on the way he saw his father being assaulted by fist and kick blows by all the accused persons and was being dragged away from the Jatra field towards east. Out of fear and apprehension, he and his brother apart from others went into the village. Thereafter, they searched for the deceased, but could not trace him. On the next day morning, he was informed by one Pabitra Behera that the deceased was laying at Sabi Jora. After getting this information, he along with his three brothers and some villagers went to the spot. They found the deceased lying with face down inside the Jora. Stones had been put on both of his elbows and legs. His brother Krushna removed the stones. When this witness turned his father, the deceased asked for water. On inquiry the deceased told that the present Appellants brought him into the Jora by lifting him and assaulted him by means of stones and thereafter left him there after putting stones on him. Thereafter the deceased was removed to Khurda Hospital in an Auto rickshaw, but he died on the same day in spite of treatment. The evidence of P. Ws.2, 3, 4, 6 and 7 is more or less same as P.W.1. It is only P.W.5, who does not appear to have named the accused persons though he stated that some people had lifted the deceased from Melan field. We have carefully scrutinized the cross-examination of all these witnesses, but so far as dying declaration is concerned, it appears that all the witnesses are inconsistent. P.W.9 is the doctor, who conducted postmortem examination and found three injuries which were anti mortem in nature. Injury No. 3 was clotted blood on the frontal lobe of brain on the right side and from the evidence of P.W.9 it appears that the said injury is the cause of death. In cross-examination, P.W.9 has stated that a single blow might have caused the punctured wound as well as the fracture on the leg. Injury No. 3 was clotted blood on the frontal lobe of brain on the right side and from the evidence of P.W.9 it appears that the said injury is the cause of death. In cross-examination, P.W.9 has stated that a single blow might have caused the punctured wound as well as the fracture on the leg. If the dying declaration stated to have been made before all these witnesses is compared with that of the injuries found on the body of the deceased, one will find inconsistencies. P.W.1 and other witnesses to the dying declaration have stated that in answer to the query by P.W.1, the deceased named all the fifteen Appellants to have lifted him and assaulted him by means of stones. If all the fifteen Appellants assaulted the deceased by means of stones, it is not understood as to how the deceased sustained only three injuries. Apart from the above, these three injuries sustained by the deceased are not specifically attributed to any of the particular Appellant. The deceased is alleged to have made a declaration implicating all the fifteen Appellants to be his assailants. For the reasons stated above, the Appellants having been acquitted of the charge under Sections 147 and 149 I.P.C., it was the duty of the prosecution to establish that each of the Appellant was responsible for causing the aforesaid three injuries. On scrutiny of the entire evidence, we do not find any material whatsoever indicating as to which Appellants assaulted the deceased except that the dying declaration implicates all the fifteen Appellants to be the assailants. This inconsistency in the dying declaration and the injuries sustained by the deceased goes long way in favour of the Appellants, specifically when they have been acquitted of the charge under Sections 147 and 149 of the I.P.C. Therefore, as rightly stated by the learned Counsel for the Appellants, the prosecution having failed to establish the charge u/s 302 I.P.C. against each of the Appellants individually, they could not have been convicted for commission of offence u/s 302 I.P.C. without the aid of Sections 147 and 149 I.P.C. 8. So far as charge u/s 364 I.P.C. is concerned, the witnesses have made an omnibus statement implicating all the 34 accused persons to have lifted the deceased from the Melan field. So far as charge u/s 364 I.P.C. is concerned, the witnesses have made an omnibus statement implicating all the 34 accused persons to have lifted the deceased from the Melan field. The charge under Sections 147 and 149 having failed and the prosecution having not established by way of evidence that each of the accused persons lifted the deceased from the Melan field, we are also of the considered view that the charge u/s 364 I.P.C. has to fail and the Appellants could not have been convicted for commission of offence u/s 364 I.P.C. without the aid of Sections 147 and 149 I.P.C. 9. For the reasons stated above, we have no hesitation to allow the appeal. Accordingly the appeal is allowed and the impugned judgment is set aside. Final Result : Allowed