AKHAYA NAIK Vs. STATE OF ORISSA

JUDGEMENT

(1.) The appellant has challenged the judgment dated 9-7-1993 passed by Shri H. Mohapatra, Sessions Judge, Dhenkanal in Sessions Trial No. 70-D of 1989 convicting him under Section 302 of the Indian Penal Code (far short IPC) and sentencing him to undergo rigorous imprisonment far life.

(2.) Prosecution case in brief may be stated as follows: The appellant is the nephew of the deceased (san of his younger brother), aged about sixty years and bath of them were residing in adjoining houses in village Kumarsingha under Balimi Police Station in the district of Dhenkanal. The father of the appellant died three years prior to the occurrence and it was suspected that he died due to practice far witchcraft by the deceased. One day prior to the date of occurrence, Le. 1-2-1989, somebody had thrown vermilion in the house of the appellant and suspecting that Haguru, san of the deceased, was the miscreant, the appellant went to the deceased at about 1 p.m. on the date of occurrence an 9-2-1989 ad challenged him. The deceased was sitting an a charpoy and rolling jute rape near the cawshed in front of his house. The brother and mother of the appellant joined him in challenging the deceased. When the deceased denied the allegation of the appellant and asked him to go to his house and shout at the actual culprit, the appellant was infuriated and attempted a blow by means of a Tangi (a sharp cutting weapon like axe with wider blade) but that blow struck against the pale of the cawshed and the handle of the axe broke from the root. It is alleged by the prosecution that thereafter while the brother and mother of the appellant pressed the deceased an the charpoy, the appellant dealt several blows an the chest, forehead and the right ear of the deceased who. succumbed to the injuries P.W. 3, the eldest daughter of the deceased was present near the place of occurrence and she proceeded towards Balimi Police Station far reporting the occurrence, but an the way she met P. W. 2, the Gramrakshi of the village, and orally reported the occurrence to him P.W. 2 went to the spat far verification and found the deceased lying, an a charpoy in a pool of blood. P.W. 2 proceeded to Balimi P.S. and orally reported the occurrence to the A.S.I. of the Police Station (P.W. 11) who was in charge of the O.I.C. of the P.S. who reduced the report to writing (Ext. 2), registered the case and took up investigation as it revealed a cognizable case. During investigation P.W. 11 examined witnesses, held inquest aver the dead body of the deceased and sent the dead-body far postmortem examination. At 6.15 p.m. an the same day, P.W. 13, the Circle Inspector of Police, Sadar, Dhenkanal took aver charge of investigation from P.W. 11. He (P.W. 13) visited the spat, examined witnesses, arrested the appellants brother (co-accused of the appellant) and seized the blood-stained and sample earth from the spat, the charpoy, same jute and jute rapes and a broken Tangi under different seizure lists. He also seized the wearing apparels of the deceased, viz., a Dhati (M.O.II) and a banian (M.O.III) an production by the Constable after the post-mortem examination. On the date of his arrest. the co-accused of the appellant was forwarded to Court in custody. On 13-2-1989 the appellant was arrested at Hindol Town where he was revealed and his Lungi (M.O.IV) which he stated to have put on at the time of the occurrence was seized suspecting that there were blood-stains on it. It is further alleged by the prosecution that the appellant while in police custody led the investigating officer and the witnesses on the next day at 7 a.m. to Jharbeda jungle and gave recovery of the weapon of offence. i.e. the knife (M.O.I) stating that he used that knife to stab the deceased and had concealed the same inside a bamboo bush. P.W. 13 sent M.O.I. to the medical officer for his examination and report as to whether the injuries found on the deceased could have been caused by the said weapon and the medical officer opined in affirmative. Then the seized material objects were sent for chemical examination to the S.F.S.L. Rasulgarh. The third accused (mother of the appellant) was arrested on 23-3-1989 and forwarded to Court in custody. After completion of investigation P.W. 13 submitted charge-sheet against the three accused persons who stood their trial. While the appellant was found guilty and convicted of the charge the other two accused persons were found not guilty and acquitted.

(3.) The plea of defence is one of denial.