JUDGMENT : S.C. Parija, J. - This appeal is directed against the judgment dated 23.08.1997 passed by the 1st Addl.Sessions Judge, Berhampur, in S.C. No. 28/95 (S.C. No. 316/95 GDC), holding the accused-Appellant guilty u/s 302 I.P.C. and convicting him thereunder. 2. The case of the prosecution in brief, is that, Dandapani Naik the son of deceased Narasingh Naik of village Indanpur came to Gangapur Police Station on 12.6.1985 at about 9.40 P.M. and verbally reported that about 8.30 P.M. on that day, when he was standing on the verandah of his neighbours house, e his father Narasingh Naik was sitting near the pots used by the cattle's, after taking his meal. His father was suffering from Asthma and as such, was frequently coughing. Accused Bidhan Naik of the village came to the spot where his father was sitting, holding a single barrel gun and challenged his father as to why he was coughing always by looking at him and so saying, the accused Bidhan Naik fired from his gun and his father sustained gun?shot injury on his left leg below the knee. Due to gun-shot, the left leg was severed and there was profuse bleeding from the wound. The said accused Bidhan Naik had also assaulted his brother Goura Naik since one and half years back as the informant and his father Narasingh Naik had helped Goura Naik and as-such the accused had a grudge against his father. The informant further stated that at the time the accused fired from his gun at his father, some witnesses like Goura Naik, Panchanan Bhuyan, Sudam Behera and Ors. saw the occurrence. The said verbal report of the informant was reduced into writing and was registered as an F.I.R. and investigation was taken up. As the accused Bidhan Naik was serving in Indian Army, he could not be apprehended. 3. The injured Narasingh Naik was first taken to Gangapur Dispensary and the doctors, on seeing the injury, gave some first aid and seeing the condition of the patient, the doctor recorded the dying declaration of the injured Narasingh Naik. The police arrived at the spot and sent requisition for medical examination and injured Narasingh was referred to Sub-Divisional Hospital, Bhanjanagar, for specialized treatment, due to his serious condition. The police arrived at the spot and sent requisition for medical examination and injured Narasingh was referred to Sub-Divisional Hospital, Bhanjanagar, for specialized treatment, due to his serious condition. The doctor recorded the dying declaration on 12.6.1985 at about 11.30 P.M. and the injured Narasingh Naik voluntarily stated before the doctor that the accused Bidhan Naik had fired from his gun at him. Soon after the occurrence, his son and his other family members and villagers, had gathered near the injured Narasingh, who verbally stated before them regarding assault on him by the accused Bidhan Naik. The police searched the house of accused and seized one wooden portion of the gun during course of investigation. The injured Narasingh Naik expired at Bhanjanagar Hospital on 13.6.1985. On the same day, at about 11.30 A.M. the inquest over the dead body was held and the dead body was sent for post mortem examination which was conducted on the next day, i.e., 14.6.1985. After completion of the investigation, police submitted charge sheet against the accused-Appellant u/s 25(a) of the Arms Act and Section 302 IPC. 4. The plea of the defence was of complete denial. The accused in his statement recorded u/s 313 Code of Criminal Procedure had stated that he never came to the village on leave at that time and that a false case has been foisted against him out of grudge and previous enemity. He further stated that he had not seen the Narasingh Naik at any time and he was not present in the village at the time of alleged occurrence. 5. During trial, the prosecution examined as many as 15 witnesses in support of the charges. P.Ws.1, 2, 3 and 11 did not support the case of the prosecution and were declared hostile. P.W.4 Dandapani Naik (informant), is the son of deceased Narasingh Naik. P.W.5 Pravasini Naik is the wife of the informant, who claimed to have seen the occurrence being present near the deceased. P.W.8 Goura Naik being a co-villager, claimed to have seen the injury of the deceased and stated about the incident. P.W.6 is the Police Constable, who accompanied the injured Narasingh Naik from Gangapur to Bhanjanagar Hospital and also carried the dead body of the deceased Narasingh Naik from Bhanjanagar Hospital for post mortem examination. P.W.7, 8 and 15 are the Investigating Officers, who investigated the case at different period. P.W.6 is the Police Constable, who accompanied the injured Narasingh Naik from Gangapur to Bhanjanagar Hospital and also carried the dead body of the deceased Narasingh Naik from Bhanjanagar Hospital for post mortem examination. P.W.7, 8 and 15 are the Investigating Officers, who investigated the case at different period. P.W. 14 is the S.I. of Police, who held inquest and sent the dead body through P.W.6 for post mortem examination. P.W.10 is the doctor of Gangapur Dispensary who first saw the injured Narasingh Naik, gave him first aid and recorded the dying declaration by receiving police requisition from P.W.9 and referred the injured Narasingh to Bhanjanagar Hospital. P.W.12 is the doctor of Bhanjanagar Hospital, who received the dead body of Narasingh Naik and conducted postmortem examination. 6. The informant (P.W.4), who is the son of deceased Narasingh stated in his evidence that the occurrence took place at about 8 to 9 P.M. on 12.6.1985 and that he was present in the front room of his house at the time of the occurrence. He heard a sound outside his house and came outside on hearing such sound and found his father lying in a bleeding condition on the ground, in front of his house. He found his father had sustained injury below the knee of the left leg and the area where his father was lying, was covered with blood, and his father was wearing a dhoti at that time and his clothing found stained with blood. P.W.4 further stated that on being asked, his father told him that accused Bidhan Naik had caused injury by firing from his gun. P.W.4 noticed the gun-shot injury on the leg of his father but he could not find the accused anywhere nearby. People gathered at the spot at that time and he verbally reported the matter to the police, which was registered as an F.I.R. 7. P.W.4 in his cross examination stated that he heard the sound while he was inside his house and he came out, he found there was gathering of some persons near his father and that there were about 40 to 50 persons at the spot. He further stated that he cannot name those persons and that a patch of blood was found at the spot, where his father was lying. P.W.4 further stated that his father was unable to talk clearly and his voice was very low. He further stated that he cannot name those persons and that a patch of blood was found at the spot, where his father was lying. P.W.4 further stated that his father was unable to talk clearly and his voice was very low. P.W.4 further stated that he cannot say which knee was affected by the gun-shot injury and that he went alone to the Police Station in a bi-cycle to report the matter. 8. P.W.5 who is the wife of the informant, stated in her evidence that she was present in the house at the time of the occurrence and that the accused Bidhan Naik fired at her father-in-law Narasingh from his gun. She stated that on hearing sound, she came out of the house and the incident took place at the Danda of their house. She found blood on the leg of the deceased Narasingh and he had sustained gun-shot injury on the left leg below the knee. P.W.5 further stated her father-in-law Narasingh inspite of being in injured condition told her that accused Bidhan Naik had fired from a gun and that he sustained injury due to firing of the gun. She further stated that her deceased father-in-law was shifted to the hospital and by the time she arrived near the deceased, there was a gathering of several persons and that her husband (P.W.4) was also present there by the time she arrived. P.W.5 further stated that her father-in-law was alive when he was shifted from the spot to the hospital and that he died in the hospital. In her cross examination, P.W.5 stated that she heard the sound at about 8 to 9 P.M. and rushed outside the house, where there were 20 to 30 persons present near the spot and they fled away by the time she arrived. She saw blood at the spot anti there was profuse bleeding from the wound of the deceased. She further stated in her cross examination that the dead body of her father-in-law was brought to the village after 3 days of the occurrence and that there was no enemity or ill-feeling with the accused Bidhan Naik. 9. P.W.8, who is a co-villager stated in his evidence that he had been to the tank to take bath, when he heard the sound of explosion of a gun. 9. P.W.8, who is a co-villager stated in his evidence that he had been to the tank to take bath, when he heard the sound of explosion of a gun. Other people who were taking bath along with him opined that somebody was shooting an animal inside the forest. While Ors. went towards the forest to see the animal, P.W.8 came to his house to change his clothes. He saw injured Narasingh near the U.P. School of the village and people were trying to take injured Narasingh to his house. He noticed that one of the legs of injured Narasingh was badly damaged due to such gun-shot injury. P.W.8 further stated that in the meantime a police vehicle arrived and the injured was shifted in the vehicle to Gangapur Dispensary. In his cross examination, P.W.8 stated that accused Bidhan Naik is his co-villager and was serving in Indian Army. As P.W.8 did not support the case of the prosecution, he was also cross examined by the prosecution. He denied about the firing by the accused Bidhan Naik from his gun on the deceased Narasingh. He further stated that he saw the informant (P.W.4) was coming with his injured father, who was not talking at that time and was bleeding from his wound. The injured Narasingh was placed in front of his house. 10. Learned Addl. Sessions Judge took consideration of the oral dying declaration purported to have been made by the deceased Narasingh before his son (P.W.4) and daughter-in-law (P.W.5), who were inside the house and come out of the house on hearing the sound of firing and found the injured Narasingh lying with gun-shot injury in a pool of blood. Though P.Ws.4 and 5 did not see the accused Bidhan Naik, they came to know from the injured Narasingh that the accused had fired his gun at him. During investigation, the police had verified the gun licence of accused Bidhan Naik from the office of the District Magistrate, Ganjam, Chhatrapur, which revealed that the accused possessed a gun and cartridges for his personal use. Relying on the oral dying declaration made by injured Narasingh prior to his death before P.Ws.4 and 5 and the evidence of P.Ws.4, 5, 8, 9, 10 and 12, learned Addl. Relying on the oral dying declaration made by injured Narasingh prior to his death before P.Ws.4 and 5 and the evidence of P.Ws.4, 5, 8, 9, 10 and 12, learned Addl. Sessions Judge came to find that the accused Bidhan Naik had fired from his gun causing gun-shot injury on the injured Narasingh, which ultimately led to his death. Learned Addl. Sessions Judge has also taken into consideration the written dying declaration (Ext.15) alleged to have been recorded by the doctor (P.W.10) on 12.6.1985 at 11.30 A.M. which revealed that the accused Bidhan Naik had inflicted gun-shot injury on deceased Narasingh while he was sitting in the front door verandah after taking his meal, the said dying declaration was recorded by P.W.10 in presence of witness Gopinath Behera. 11. Coming to the medical evidence, the doctor (P.W.12) who 'conducted the post mortem examination, stated that he found external injury below the knee completely shattered with evaluation of skin with laceration of muscle and compound fracture of the left leg bones. The skin lags present on posterior and back side of the leg of the injured site holding the left foot. The muscles were black coloured and there was synging of hair with laceration of the wound. There was deposition of maggots on the inured side and on dissection of injury No. 1, five pellets were recovered, which were handed over to the accompanying Constable. Injury No. 2 was haematoma with laceration of muscles underneath. According to P.W.12 the cause of death was due to shock and haemorrhage and all the injuries were ante mortem in nature and in ordinarily course of nature, was likely to cause death. 12. On the basis of the evidence on record, both oral and documentary, including the oral and written dying declaration and the medical evidence, learned Addl. Sessions Judge came to find that though the accused Bidhan Naik did not have a motive or particular intention or any pre?meditation to fire at the deceased Narasingh and cause his death, the very fact that the accused Bidhan Naik fired from his gun at the deceased Narasingh causing severe gun-shot injury on his left leg below the knee, which ultimately resulted in his death, the accused is responsible for committing the murder of deceased Narasingh and accordingly, convicted accused Bidhan Naik for offence u/s 302 IPC. 13. 13. Learned counsel appearing for accused-Appellant has forcefully submitted that there being no clear and credible evidence to establish the involvement of the accused Bidhan Naik in the alleged crime and there being no eye-witness to the occurrence, learned Addl. Sessions Judge erred in holding the accused guilty of murder and convicting him u/s 302 IPC. In this regard, it is submitted that the gun which is alleged to be the weapon of offence having not been seized and sent for ballistic examination and even the empty cartridges alleged to have been recovered having not been sent for ballistic report to establish as to whether those cartridges had been fired from the particular gun which the accused is said to have possessed, the entire finding is based on mere surmises and conjectures. It is further submitted that as regard the written dying declaration purportedly recorded by the doctor (P.W.10) on 12.6.85 at 11.30 A.M., the same appears to be highly improbable as the J.S.I, of Bhanjanagar P.S. (P.W.14) in his evidence had categorically stated that he conducted the inquest over the dead body at 11.30 A.M. on 13.6.85 and sent the dead body for post mortem examination. Moreover, the said P.W.14 in his cross examination has stated that the dead body of the deceased was found at N.A.C. compost filed of Bhanjanagar, which goes to show that the body of the deceased was not at the hospital at the time of the inquest and it is also not known as to how the body of the deceased reached the N.A.C. compost field of Bhanjanagar. Accordingly it is submitted that there being inherent contradictions in the evidence and material omissions with regard to the place and time of the death of the deceased Narasingh and in absence of the seizure of the gun which is alleged to be the weapon of offence and any ballistic report to establish that any such gun was used for firing on the deceased, the impugned conviction cannot be sustained. In this regard, it is submitted that the chain of circumstances are neither strong and well-knit so as to establish beyond all reasonable doubt that it is the accused alone who is responsible for causing the death of the deceased. 14. In this regard, it is submitted that the chain of circumstances are neither strong and well-knit so as to establish beyond all reasonable doubt that it is the accused alone who is responsible for causing the death of the deceased. 14. On an analysis of the evidence on record, we find that except the statement of P.Ws.4 and 5, which are also not free from contradictions and inherent improbabilities, there is no other corroborating evidence to connect the accused Bidhan Naik with the alleged crime. Further when both PWs.4 and 5, as well as some other witnesses have consistently stated that after the gun-shot several people of the area had gathered at the spot, near the injured Narasingh, it is highly improbable that the alleged statement made by him was not heard by any body else, except P.Ws.4 and 5. Moreover, in absence of seizure of the gun, which is the alleged weapon of offence and any ballistic report to suggest that any such gun was used for firing on the deceased Narasingh, the accompanying circumstances are too flimsy to base a conviction u/s 302 IPC. As regard the written dying declaration purported to have been recorded by the doctor (P.W.10), the same is also shrouded in mystery, when seen in the light of the evidence of P.W.14, who had stated in his cross-examination that the body of the deceased was found at the N.A.C. compost field of Bhanjanagar and that he had conducted inquest over the dead body at 11.30 A.M. on 13.6.85. There is no explanation as to how the body of the deceased left the hospital and reached the compost field of Bhanjanagar N.A.C. Therefore there is no clear, cogent and credible evidence to show as to where and at what time the death of the deceased Narasingh occurred. Moreover as the death of deceased Narasingh occurred more than 24 hours after the occurrence, it cannot be said with certainty as to how and in what circumstances such death occurred, especially when the alleged gun-shot injury was only on the left leg of the deceased Narasingh. 15. Moreover as the death of deceased Narasingh occurred more than 24 hours after the occurrence, it cannot be said with certainty as to how and in what circumstances such death occurred, especially when the alleged gun-shot injury was only on the left leg of the deceased Narasingh. 15. Keeping in view the aforesaid facts and circumstances, we are of the considered view that the prosecution has not been able to establish the guilt of the accused Bidhan Naik beyond all reasonable doubt and in absence of any eye-witness to the occurrence and in view of such material contradictions and inherent inconsistencies in the evidence of witnesses with regard to the alleged oral and written dying declarations, as well as with regard to the actual time, place and immediate cause of death of the deceased Narasingh, it would not be safe to base the conviction of the accused-Appellant on such doubtful circumstances, which are neither strong nor convincing and therefore this is a fit case where the accused is entitled to the benefit of doubt. 16 Accordingly the appeal is allowed and the impugned judgment and order of conviction is set aside and the accused-Appellant is found not guilty and is acquitted of the charge. If the accused-Appellant is in custody, he shall be set at liberty forthwith, if his detention is not otherwise required in any other case. The Criminal Appeal is accordingly allowed. A.S. Naidu, J. 17. I agree. Final Result : Allowed