SODA SIRIKA Vs. STATE OF ORISSA

JUDGEMENT

(1.) THIS appeal arises out of the judgment and order of sentence dated 15.05.2001 passed by learned Addl. Sessions Judge, Jeypore in Sessions Case No. 7 of 2000. Learned Trial Court found the appellant guilty of the offence under Section 302, I.P.C. and sentenced him to suffer life imprisonment and pay fine of Rs.1,000/ - (on thousand), in default, to suffer rigorous imprisonment for one year more.

(2.) A compendium of the prosecution case is that the occurrence happened at about 3 p.m. on 21.05.1999. The deceased, who is a little boy aged about 5 years, was standing in front of his house. The appellant came there at that time being armed with an axe and dealt a blow with that axe on the back side of the neck of the deceased causing his instantaneous death. The Investigating Officer (P.W.10), on registration of the case, took up investigation and on completion of the investigation, filed charge -sheet implicating the appellant in the offence punishable under Section 302, I.P.C.

(3.) LEARNED counsel appearing for the appellant submits that the eye -witness account adduced by P.Ws. 1 and 2 cannot be believed in view of the close relationship of P.W.2 with the deceased and the informant and in view of material contradictions in the evidence of P.W.1. She also further submits that the appellant having given only one blow on the backside of the neck of the deceased, the offence committed by the appellant would be one punishable under Section 304, Part -II, I.P.C. and not under Section 302, I.P.C. Learned Addl. Govt. Advocate on the other hand supports the impugned judgment and order of sentence.