JUDGMENT : A.S. Naidu, J. - State of Orissa has filed this appeal assailing the Judgment & order of acquittal dated 4th May, 1996 passed by Learned Sessions Judge, Cuttack in Sessions Trial No. 200 of 1994. 2. Sworn of unnecessary details, the short facts leading to the case are as follows: On 23th April, 1991 around 11 A.M. while Panchanan was sitting on his verandah along with his wife Malati (P.W.3), the accused persons came to their house & abused Panchanan in filthy language. Accused Dillip Routray thereafter assaulted Panchanan with a split wood (M.O.I), accused Lata & Nimain were carrying lath is & accused Manas was holding a chain. All of them also dealt blows on Panchanan. Accused Manas, it is alleged, threw a stone (M.O.II) aiming at Panchanan, which struck his left side head above the ear. Accused Lata also alleged to have pelted a brick (M.O.III), which struck Panchanan's chest. After assaulting, accused persons left the scene of occurrence. Panchanan was immediately removed to Patkura PHC by his son Tushar (P.W.1) & his wife Malati (P.W.3) & from there he was referred to S.C.B Medical College & Hospital, Cuttack. P.W. 1 lodged an F.I.R.(Ext.1) at Patkura Police Station. On the basis of the said F.I.R., a police case was registered, which was subsequently converted to G.R. Case No. 409 of 1991 in the Court of Learned SDJM, Kendrapara. In course of treatment at S.C.B. Medical College & Hospital, on 5.5.1991 Panchanan died. After inquest was made by Mangalabag Police Station, the dead body was sent for post-mortem & P.W. 6 conducted the post mortem. According to the post mortem report, the death was homicidal. Thereafter, charge-sheet was submitted against all the accused persons u/s 302/34 of Indian Penal Code (in short, 'Indian Penal Code') & further against Manas u/s 302, Indian Penal Code & Dillip u/s 325, Indian Penal Code. The case was committed to the Court of Session & was registered as S.T. No. 200 of 1994. 3. In course of trial, the accused persons pleaded not guilty. While denying the occurrence, they took the stand that at the relevant time, deceased Panchanan abused accused Lata, wife of Nimain in filthy language. Hearing such abuse, accused Manas & Dillip challenged Panchanan. Seeing them he started running towards his house. 3. In course of trial, the accused persons pleaded not guilty. While denying the occurrence, they took the stand that at the relevant time, deceased Panchanan abused accused Lata, wife of Nimain in filthy language. Hearing such abuse, accused Manas & Dillip challenged Panchanan. Seeing them he started running towards his house. In course of running, he slipped & fell at the entrance of his house & sustained grievous injuries. 2.(SIC) In order to substantiate their case, prosecution got examined 14 witnesses & exhibited 15 documents. On behalf of the defence, no witness was examined. As stated earlier, P.W. 1 is the son of the deceased & was the informant, P.W. 3 is the wife, P.W. 2 is the daughter of the deceased to whom the deceased said to have narrated the incident in the hospital implicating the accused persons, P.W. 4 is another daughter, who is a witness to the occurrence so also P.W. 5. P.W. 6 is the doctor, who conducted autopsy. P.W. 7 is the A.S.I. of Police of Mangalabag Police Station, who conducted inquest over the dead body at SCB Medical College & Hospital, Cuttack. P. Ws.8 & 9 are the Investigating Officers who took charge of Investigation from A.S.I. (P.W.11) on 17.5.1991. P.W. 10 is another I.O., who made substantial investigation. P.W. 12 is an employee of SCB Medical College & Hospital, who exhibited the Casualty Register to prove the date & time of admission of the deceased. P.W. 13 is Dr. Sanatan Rath, Neurology Surgeon. P.W. 14 is the Medical Officer attached to Patkura PHC. 3.(SIC) P.W. 6, Dr. Kiran Kumar Mishra conducted autopsy on 5.5.1991 at about 4.30 P.M. It noticed two external injuries- (1) one partly healed & curved lacerated wound on the left temporal region, (2) also partly healed & partly infected lacerated wound situated over the outer aspect of left arm & below the shoulder joint & above the elbow joint. On dissection, he found compound & complete fracture of left arm bone, fracture of temporal bone of the skull of left side, lungs were congested & oedamatous. He opined that the injuries could have been caused by blunt force impact & all the injuries according to him, were homicidal in nature. 4. Surprisingly, without examining the doctor, who was treating the deceased all through, the prosecution chose to examine Dr. Sanatan Rath, Neurology Surgeon as P.W. 13. He opined that the injuries could have been caused by blunt force impact & all the injuries according to him, were homicidal in nature. 4. Surprisingly, without examining the doctor, who was treating the deceased all through, the prosecution chose to examine Dr. Sanatan Rath, Neurology Surgeon as P.W. 13. After seeing the prescription & other materials, P.W. 13 opined that the cause of death was due to myocardial infraction. According to him, 'myocardium' is a muscle of the heart & "myocardium infraction" means destruction of myocardium due to interruption of blood supply to that part of the heart, which may be on account of old age or in case of young age due to high blood pressure or high blood sugar & high cholesterol. Thus, according to P.W. 13, the injuries had no nexus with the cause of death. The prosecution in order to connect the accused persons with the crime, relied upon the evidence of P. Ws.1,3,4 & 5, who are said to be eye witnesses. Further, the prosecution relied upon the statement of the deceased made before the I.O. u/s 161, Code of Criminal Procedure. (Ext.7). The said statement is treated to be a dying declaration u/s 32 of the Indian Evidence Act in view of the death of the deceased. So also evidence of P.W. 2, daughter of the deceased, who stated that her father had narrated the incident to her implicating all the accused persons. 5. Ext. 7 was recorded by the A.S.I of Police attached to Patkura Police Station in absence of O.I.C. The said statement, it is submitted, was recorded soon after receipt of the F.I.R., which was lodged at about 3.45 P.M. on 23.4.1991. According to the defence, Ext. 7 is antedated & is a manufactured document. The I.O. has admitted that Ext. 7 was recorded by him in presence of P.W. 1 & P.W. 3 at the police station. Surprisingly however, neither P.W. 1 nor P.W. 3 made any reference to the statement said to have been given by the Panchanan before the police. Learned Sessions Judge has rightly entertained a doubt with regard to the genuineness of Ext. 7 for the simple reason that though the same said to have been recorded on 24.3.1991, it was not produced before the Court along with the F.I.R.P.W.10, who took up investigation also did not breathe a word regarding despatch of Ext. Learned Sessions Judge has rightly entertained a doubt with regard to the genuineness of Ext. 7 for the simple reason that though the same said to have been recorded on 24.3.1991, it was not produced before the Court along with the F.I.R.P.W.10, who took up investigation also did not breathe a word regarding despatch of Ext. 7 to the Court. The said fact definitely throws a cloud of suspicion with regard to the genuineness of Ext. 7. 6. So far as the second dying declaration said to have been made by Panchanan before P.W. 2 is concerned, it appears that the said witness also did not make any mention about the same before the police earlier. That apart, according to P.W. 2, her father made a statement before her at 2.30 A.M. of 24.4.1991. The Casualty Admission Receipt & other evidence reveal that Panchanan was admitted in the Causality of SCB Medical College at 7.50 A.M. of 24.4.1991. Thus, the statement of P.W. 2 that Panchanan made a dying declaration at 2.30 A.M. of 24.4.1991 cannot be accepted & has been rightly discarded by the Trial Court. 7. Apart from the aforesaid infirmities, perusal of the F.I.R. reveals that the occurrence took place inside the house of the deceased, whereas in the deposition all the eye witnesses have stated that Panchanan was assaulted outside the house & thereafter removed inside the house. Further, in the F.I.R., the name of accused Nimain is absent, whereas in the statements all the witnesses have involved Nimain with the alleged crime. No doubt F.I.R. is not an encyclopedia. But then in the case of Juwarsingh and Others Vs. State of Madhya Pradesh the Supreme Court held that omission to mention the name of a person who alleged to have committed the offence in absence of any explanation with regard to such omission would raise a benefit of doubt in favour of the accused. That apart, shifting the place of occurrence from inside the house to outside, has also not been explained by the prosecution at all. Perusal of the testimony of the eye witnesses vis-a-vis the statement made before the police u/s 161, Code of Criminal Procedure. reveals material discrepancies. That apart, all the eye witnesses being son, widow & daughter of the deceased, their statements have to be scrutinized With great care & caution. Perusal of the testimony of the eye witnesses vis-a-vis the statement made before the police u/s 161, Code of Criminal Procedure. reveals material discrepancies. That apart, all the eye witnesses being son, widow & daughter of the deceased, their statements have to be scrutinized With great care & caution. After going through their evidence & other materials available on record, this Court finds that there are material discrepancies touching the merits of the case. That apart, the F.I.R. & other evidence reveal that several persons of the village who were independent witnesses, though available the prosecution for the reasons best known did not choose to examine them. 8. After going through the records, we are satisfied that the evidence of the eye witnesses is inconsistent with the F.I.R. & material discrepancies exists. The prosecution has not only attempted to shift the place of occurrence, but also has tried to rope in other persons, who were not named in the F.I.R. The inquest report reveals that P.W. 1 stated before Mangalabag Police Station that some antisocial people assaulted his father & caused the injuries. He had not named any of the accused. Apart from the aforesaid facts, the evidence of P.W. 13, Dr. Sanatan Rath, one of the eminent Neurology Surgeon of the State throws a doubt with regard to the cause of death. The Trial Court has taken into consideration all the evidence & the conclusions arrived at are based on cogent reasons & on proper appreciation of evidence. We are also of the opinion that the prosecution has failed to establish the involvement of the accused persons beyond all reasonable doubt by adducing cogent, convincing, credible & unimpeachable evidence. The statements of the witnesses are inconsistent with each other & are tainted with interestedness. Such statements cannot be the basis for a conviction. 9. In view of the discussions made above, this Court is not inclined to interfere with the order of acquittal dated 4th May, 1996 passed in S.T. No. 200 of 1994 that too, 18 years after the alleged occurrence. 10. The Government Appeal is accordingly dismissed. S.C. Parija#, J. 11. I agree. Final Result : Dismissed