RABINDRA NAYAK Vs. STATE OF ORISSA

JUDGEMENT

(1.) HEARD .

(2.) APPELLANT as the principal accused faced the prosecution in Sessions Trial No. 200/33 of 1994 in the Court of Addl. Sessions Judge, Bargarh. He (appellant) along with his father Pandab Nayak were prosecuted on the charge framed for the offences under Sections 302, 201/34 I.P.C. While acquitting the co -accused Pandab Nayak, trial Court convicted the appellant and sentenced him to undergo imprisonment for life for the offence under Section 302 I.P.C. However, the appellant was acquitted for the offence under Section 201/34 I.P.C.

(3.) IN course of trial, prosecution examined two witnesses (P.Ws. 1 and 2) in proof of its case that the accused had arrived at the house of the deceased on 14.4.1994 twice and they had seen him leaving the house in the occurrence night. They also examined four witnesses (P.Ws 3, 4, 7 and 10) in proof of seizure of the wearing apparels and the axe under Section 27 of the Evidence Act. In course of cross -examination of P.Ws. 1 and 2 omission in their statement was confronted to them that they did not make any statement before the I.O. that accused had given threatening on the date of occurrence and that they had seen the accused leaving the house of the deceased in the night of occurrence and that he was then being armed with an axe. Such statements were confronted to the Investigating Officer (P.W.9) and the I.O. stated no such statements were made by those two witnesses. While disbelieving the evidence of P.Ws.1 and 2 on the aforesaid aspect, learned Addl. Sessions Judge accepted prosecution case against the accused only on the basis of the strong presumption that since he had enmity and the motive to kill the deceased, therefore he is the author of the crime inasmuch as the axe was recovered from his father.