JUDGMENT : A.S. Naidu, J. - The Appellant along with one Ramesh faced trial for committing an offence punishable under 376 read with Section 511/34 and 302/34 I.P.C. on the allegation that they had attempted to commit rape on Sanjukta and further committed murder of her in furtherance of their common intention. Another accused named Pitambar Muduli also faced trial for committing offence u/s 201 I.P.C. for having caused disappearance of evidence knowing or having reason to believe that an offence has been committed. Learned Ad hoc Addl. Sessions Judge, Jeypore by his judgment dtd. 18th February, 2003 passed in C.T. No. 6/2002 (S.C. No. 10/2000 of A.S.J./S.C. 255/1999 of Sessions Judge) found accused Ramesh not guilty for the offence u/s 376 read with Section 511/34 I.P.C. and Section 302/34 I.P.C. and accused Pitambar Muduli u/s 201 I.P.C. and acquitted both of them u/s 235 of Code of Criminal Procedure Learned Ad hoc Addl. Sessions Judge, Jeypore also found the Appellant not guilty for committing offence u/s 376 read with Section 511/34 I.P.C., but found him guilty for commission of offence u/s 302 I.P.C. and convicted him thereunder and sentenced to undergo rigorous imprisonment for life and pay a fine of Rs. 5,0007- in default to undergo further R.I. for one year. The said judgment and order of conviction is assailed by the Appellant in this Crl. Appeal filed u/s 374(2) of the Code of Criminal Procedure 2. The brief facts of the case are as follows: On 18th February, 1999 at about 7.00 A.M. the victim lady had gone towards "Lodi Bandho" to attend call of nature. While she was crossing the nearby agricultural field the Appellant and Ramesh (since acquitted) dragged her with the intention of committing rape. The victim lady however resisted their attempt and did not succumb to the force applied by them. Being enraged the Appellant dealt several blows by means of a sword on different parts of her body thereby causing severe bleeding injuries. The said incident was witnessed by P.Ws. 2 and 3, who tried to intervene, but on being threatened by the Appellant and Ramesh, left the place. It is alleged that the Appellant and Ramesh left the victim at the spot thinking her to be dead and fled away. The said incident was witnessed by P.Ws. 2 and 3, who tried to intervene, but on being threatened by the Appellant and Ramesh, left the place. It is alleged that the Appellant and Ramesh left the victim at the spot thinking her to be dead and fled away. However, she could struggle to get up and proceed towards her house and on the way she was escorted by Binod Behera and Padma Behera to her house. She described the incident to her father, the informant (P.W.1), who immediately took her to B. Singpur P.S. and lodged an F.I.R. at about 9.30 A.M. On police requisition she was sent to Borigumma C.H.C. where the medical officer examined her, gave first aid and referred her to the District Headquarters Hospital, Koraput. Thereafter, she was shifted to Koraput Hospital and was admitted there as an indoor patient, but then she succumbed to the injuries on 27.2.1999 at about 7.00 A.M. According to the prosecution case her dying declaration was recorded on 19th February, 1999 by one Executive Magistrate in presence of the medical officer. 3. On the basis of the F.I.R. lodged, investigation was put to motion. The Police seized some articles from the spot where the incident took place. Accused Pitambar Muduli was arrested on 12.3.1999 and on the basis of his confessional statement while in custody the weapon of offence (sword) was recovered and other accused persons were also arrested. After completion of investigation charges sheet was submitted in the Court of learned S.D.J.M., Jeypore in G.R. Case No. 104/1999 against three accused persons. On being prima facie satisfied that materials are available learned S.D.J.M. took cognizance of the offence and committed the case to the Court of Session for trial. 4. The plea of the accused was one of complete denial. Accused Pitambar Muduli denied the allegation that he had made a confession leading to discovery of the weapon of offence while in police custody. In order to establish their case, the prosecution got examined as many as thirteen witnesses. Out of them P.W.1 was the father of the victim and the informant, P.Ws. Accused Pitambar Muduli denied the allegation that he had made a confession leading to discovery of the weapon of offence while in police custody. In order to establish their case, the prosecution got examined as many as thirteen witnesses. Out of them P.W.1 was the father of the victim and the informant, P.Ws. 2 and 3 were the eye witnesses to the incident, P.W.4 was a post occurrence witness, P.W.5 was the A.S.I, of Police and was a seizure witness, P.W.7 was the police constable/who escorted the dead body for post mortem examination, P.W.8 was the medical officer who had conducted autopsy, P.W.9 was the Medical Officer who had examined the injured and had given" first aid to the victim immediately after the occurrence, P.W.10 was a seizure witness, P.W.11 was a police constable, who had escorted the injured to Borigumma C.H.C. and subsequently to the Headquarters Hospital, P.W.12 was the I.O. and P.W.13 was the Medical Officer, who was present at the time of recording of the dying declaration. 5. Learned Ad hoc Addl. Sessions Judge, Jeypore after vivid discussion of the evidence, both oral and documentary, arrived at a conclusion that the prosecution had totally failed to substantiate their case against Ramesh and Pitambar. He also came to the conclusion that the prosecution could not also substantiate the guilt of any of the accused persons with regard to commission of the offences under Sections 376 read with Section 511/34 I.P.C. and acquitted accused Ramesh and Pitambar from all charges and set them at liberty. Learned trial Court also held that accused Suri @ Suresh (Appellant) was not guilty for commission of the offences u/s 376 read with Section 511 I.P.C. but he was found guilty for the offence u/s 302 I.P.C. and convicted him thereunder. It is pertinent to mention here that the State Government has not preferred any appeal against the order of acquittal and the said order has attained finality. This appeal is therefore only confined to the Appellant who was found guilty of commission of offence u/s 302 I.P.C. and the sentence imposed. 6. Mr. Panda, learned Counsel for the Appellant, strenuously took this Court through the evidence and submitted that learned Ad hoc Addl. Sessions Judge in absence of any convincing evidence, convicted the Appellant being swayed away by surmises and conjectures and the said order cannot be sustained. According to Mr. 6. Mr. Panda, learned Counsel for the Appellant, strenuously took this Court through the evidence and submitted that learned Ad hoc Addl. Sessions Judge in absence of any convincing evidence, convicted the Appellant being swayed away by surmises and conjectures and the said order cannot be sustained. According to Mr. Panda, the dying declaration having not been signed by the victim, the same should not have been relied upon by the learned Ad hoc A66. Sessions Judge. Further, none of the witnesses having disclosed the correct fact and their evidence being full of contradictions, in material aspects, learned Ad hoc Addl. Sessions Judge should not have been relied upon the said evidence. Recovery of the alleged weapon and the way it was recovered is criticized by Mr. Panda mainly on the ground that the witness to the recovery had disowned material facts before the Court. It is submitted that after disbelieving the prosecution case with regard to commission of any offence u/s 376 read with Section 511/34 I.P.C. and acquitting two of the accused persons, learned Ad hoc Addl. Sessions Judge acted illegally in convicting the Appellant alone for commission of offence u/s 302 I.P.C. on the basis of same set of evidence though there was no convincing reasons to arrive at such conclusion. It is further submitted that even according to the prosecution, the occurrence took place on 18th February, 1999, and the death occurred on 27th February, 1999. In the absence of any evidence on record as to the nature of treatment provided to the injured, and as the cause of death was septicemia, the Appellant cannot be held responsible for the same and as such conviction u/s 302 I.P.C. is not tenable and it is a fit case where the same may be set aside. 7. Mr. Mishra, learned Addl. Government Advocate, on the other hand supported the conclusions arrived at by learned Ad hoc Addl. Sessions Judge and submitted that the dying declaration having been recorded by an Executive Magistrate that too in presence of a Doctor, the same was rightly accepted by the Court below. According to Mr. Mishra, on the basis of the confession made by one of the accused persons, the weapon of offence was seized and the said statement being one u/s 27 of the Evidence Act, the trial Court has rightly accepted the same. Mr. According to Mr. Mishra, on the basis of the confession made by one of the accused persons, the weapon of offence was seized and the said statement being one u/s 27 of the Evidence Act, the trial Court has rightly accepted the same. Mr. Mishra, relying upon several observations made in the judgment submitted that the conclusions arrived at by Learned Ad hoc Addl. Sessions Judge, Jeypore, were just, proper and in consonance with the evidence produced before the Court and does not suffer from any infirmity or illegality. According to Mr. Mishra this is a fit case where the order of conviction invites no interference. 8. Heard learned Counsel for the parties at length, perused the evidence meticulously and considered the submissions diligently. As would be evident from the F.I.R. (Ext.1) lodged by P.W.1, the father of the victim, when the latter went to attend the call of nature and to take her bath in the village tank early in the morning of 18th February 1999, the Appellant forcibly caught hold of her hand and tried to drag her with an intention to commit rape. Her daughter however resisted such attempt and did not succumb to the force applied. Being enraged he took out a knife and assaulted her on the head and on her private parts, consequently, she become unconsisous and fell down. Thinking that she has died he left the place. Thereafter, Binod Behera and Padma Behera escorted the victim to her house. On being asked the victim narrated the incident before the informant. Perusal of the F.I.R. reveals that except the Appellant the names of no other accused persons finds place therein, nor any overt acts have been attributed to any other accused than the Appellant. Of course P.W.1 is not an eye witness to the occurrence. But then reading of the F.I.R. reveals that as per the narrations made by the victim girl the F.I.R. was scribed. Of course P.W.1 is not an eye witness to the occurrence. But then reading of the F.I.R. reveals that as per the narrations made by the victim girl the F.I.R. was scribed. Though law is well settled that F.I.R. is not an encyclopedia and should disclose only bare necessary facts, but then non-mention of the names of other accused persons in the F.I.R. assumes considerable importance and the Court has to be cautious and has to be doubly sure with regard to the involvement of the accused persons, who were not named in the F.I.R. The consistent case of the prosecution is that one Binod Behera and Pama Behera escorted the victim girl who was severely injured from the place of occurrence to her house. Unfortunately, both the aforesaid persons were not examined by the Prosecution. P.Ws. 2 and 3 were stated to be the eye witness to the occurrence. P.W.2 is the maternal uncle of the victim. According to him he had also gone to attend the call of nature when he heard cries and climbed to the bank of the tank. He noticed that accused Ramesh had caught hold of the arms of Sanjukta and accused Suri @ Suresh (Appellant) was assaulting the victim by means of a sword. Seeing the incident he shouted and requested Suresh not to torture the victim, but then the accused persons threatened him and he came away from the place. He further stated in his evidence that soon after he narrated the incident to one Bhimsen Nayak and Harihar Nayak. The said two persons were also not examined. There is no evidence to reveal that P.W.2, a close relative of the victim, made any attempt to go to her house and enquire about her nor did he made any attempt to stop the Appellant from assaulting the victim. Thus, the learned Ad hoc Addl. Sessions Judge has rightly observed that his conduct betrayed the normal human conduct. That apart, for the first time, P.W.2 introduced the name of Ramesh though he was not named in the F.I.R. This fact also throws some suspicion with regard to the correctness of P.W.2's statement. P.W.3 is Anr. eye witness to the occurrence. According to him, he had also gone at the relevant time to attend the call of nature. That apart, for the first time, P.W.2 introduced the name of Ramesh though he was not named in the F.I.R. This fact also throws some suspicion with regard to the correctness of P.W.2's statement. P.W.3 is Anr. eye witness to the occurrence. According to him, he had also gone at the relevant time to attend the call of nature. He saw accused Suri @ Suresh (Appellant) assaulting on the right ear, hand, private part and head of the victim by means of a sword. According to him, after seeing the incident he got frightened and left the place and went to the pond to clean himself. While returning he found Binod Behera and Padma Behera escorting the victim to her house. P.W.3 has been declared hostile by the prosecution mainly on the ground that he did not name nor stated about the presence of Ramesh at the spot. Reading of the entire evidence of P;W.2 gives an impression that he is a truthful witness. Law is well settled that even though a witness is declared hostile by the prosecution if his evidence inspires full confidence, the same can be relied upon. A hostile witness is not one, who is unfavourable to the prosecution, on the other hand, a hostile witness is one who from the manner in which he gives his evidence shows that he is not desirous of telling the truth. Only because a statement made by a witness in Court is in conflict with other evidence, he cannot be declared as hostile. 9. After going through the entire evidence of P.W.3 we also find that learned Ad hoc Addl. Sessions Judge has rightly appreciated the evidence of P.W.3. That apart, it appears that the evidence of P.W.3 supports the F.I.R. story and also the statements of P.W.1. The statement of P.W.2 gets corroborated from the deposition of P.W.4, who is an after occurrence witness. According to P.W.4 when he asked the victim about the incident she clearly stated that accused Suri @ Suresh (Appellant) had assaulted her. P.W.9 is the Medical Officer who gave first aid treatment to the victim girl on 18th February 1999 at about 9 A.M. He found the following injuries: (i) One incised wound of 2 1/2" x 1 1/2" x 1 1/2" size situated over left shoulder fracturing the left scapula. P.W.9 is the Medical Officer who gave first aid treatment to the victim girl on 18th February 1999 at about 9 A.M. He found the following injuries: (i) One incised wound of 2 1/2" x 1 1/2" x 1 1/2" size situated over left shoulder fracturing the left scapula. (ii) One incised wound of 2 1/2" x 1 1/2" x 1 "size over left mastoid region involving the pinna. (iii) One incised wound of 21/2" x 1 1/2" x 1/2" size on the scalp in frontal region.. (iv) Two incised wounds of size 2" x 1/2" x 1/2" each over the left parietal bone. (v) Two incised wounds 1 1/2" x 1/2" x 1/4" size each over dorsum of the right hand on the region of base of right and little ?fingers. (vi) One stab wound of 1" opening on perineum behind the anus. According to him injury Nos. (i), (ii) and (vi) were grievous in nature and were caused by sharp cutting weapon. P.W.8 was the medical officer, who conducted autopsy on 27.2.1999. According to him, the cause of death was due to septicemia, shock resulting from multiple wound infection and peritonities. He had also opined that the injuries were possible by M.O.I., the weapon of offence which was seized. 10. So far as M.O.I, is concerned, according to the prosecution case, accused Pitambar Muduli while in police custody gave a confessional statement and led the I.O. to "Khajuribandho" and brought out a sword from the water of the tank and the same was seized. The said statement was recorded u/s 27 of the Evidence Act and was marked as Ext.6. P.W.3 is stated to be a witness to the alleged confession. But the said witness did not support the prosecution case. He simply stated that the Police seized the sword from the possession of Pitambar Muduli at Jeypore. The second witness to the seizure was not examined on behalf of the prosecution. The I.O. on being questioned has admitted that he had not cited any of the villagers who were witnesses to the confession and seizure as witnesses. That apart, recovery was made more than twenty days after the incident. All these facts throws a could of suspicion. In the absence of any connecting evidence the seizure cannot be delivered. 11. The I.O. on being questioned has admitted that he had not cited any of the villagers who were witnesses to the confession and seizure as witnesses. That apart, recovery was made more than twenty days after the incident. All these facts throws a could of suspicion. In the absence of any connecting evidence the seizure cannot be delivered. 11. That apart, it appears P.W.12, the I.O., during investigation seized one chappal, salwar, panty, hair, one locket and blood stained earth and sample earth from the paddy field by the side of "Lodi Bandho" where the incident took place. He also seized the wearing apparels of the deceased after the post mortem examination. This Court fails to understand as to how he had seized the wearing apparels of the victim on production by P.W.11 after the post mortem. 12. So far as the dying declaration is concerned, it appears the same was recorded in the hospital by an Executive Magistrate in presence of the doctor. Unfortunately, the Executive Magistrate who recorded the dying declaration was not examined. That apart, the time of recording does not appear on Ext.2, nor there is any declaration that the contents were read over and explained to the victim nor the L.T.I, or signature of the victim was taken over the same. P.W.I3, is the doctor in whose presence the dying declaration was recorded. He has not stated in his deposition with regard to the contents of the statement made by the injured. Of course in the absence of any signature or thumb impression of the deceased in the dying declaration the same cannot be discarded, if there is an explanation with regard to the reasonings or circumstances for which such signature could not be obtained. In the case at hand, there is no such explanation from the side of the prosecution, to add to it, the person who recorded the statement was not examined. 13. After considering the entire evidence in extenso, this Court finds that the death of the victim girl was not natural and was caused due to the injury sustained by her. The only fact which needs to be determined is who is the author of such injury. 13. After considering the entire evidence in extenso, this Court finds that the death of the victim girl was not natural and was caused due to the injury sustained by her. The only fact which needs to be determined is who is the author of such injury. Reading of the F.I.R. (Ext.1), the evidence of P.W.1 (the informant) before whom the victim girl narrated the entire story soon after the incident, the evidence of P.W.3 and P.W.4 coupled with the seizure of weapon of offence and the dying declaration leaves no doubt in our mind that the Appellant alone had caused the bodily injury upon the victim which led to her death. The allegation with regard to commit rape u/s 376 read with Section 511/34 I.P.C. has been disbelieved by learned Ad hoc Addl. Sessions Judge and the prosecution having not assailed the said finding by filing an appeal against the order of acquittal, the same has attained finality. 14. According to the prosecution, occurrence took place on 18th February 1999 and the death occurred on 27th February 1999. The evidence with regard to the nature of treatment provided to the deceased is absent. The cause of death, as would be evident from the post mortem report and the evidence of the doctor (P.W.8), was due to septicemia, shock resulting from multiple wound infection and peritonities. That apart, the prosecution has totally failed to establish that the Appellant had any intention to kill the victim girl. As indicated above, the deceased died almost nine days after the occurrence. 15. On a overhaul scrutiny of the facts and circumstances of the case coupled with the opinion of the medical officer, we are of the view that the offence would be one punishable u/s 326 of I.P.C. In the result, we set aside the conviction u/s 302 I.P.C. and the sentence of imprisonment of life and fine of Rs. 5,000/-in default to undergo R.I. for one year and instead we convict the Appellant u/s 326 I.P.C. and sentence him to undergo R.I. for a period of seven years and to pay a fine of Rs. 10,000/- (rupees ten thousand) in default, to undergo R.I. for a period of further one year. After realization of the fine amount, the same shall be paid to the father of the deceased (P.W.1). 10,000/- (rupees ten thousand) in default, to undergo R.I. for a period of further one year. After realization of the fine amount, the same shall be paid to the father of the deceased (P.W.1). It is needless to say that the period of imprisonment already undergone shall be treated as set off. With the aforesaid modification, this Crl. Appeal is disposed of. S.C. Parija, J. 16. I agree. Final Result : Dismissed