PAGALA Vs. STATE OF ORISSA

JUDGEMENT

(1.) THIS Jail Criminal Appeal is directed against the judgment dated 09.01.2004 passed by the learned Second Addl. Sessions Judge, Cuttack in S.T. Case No. 803 of 2001 convicting the appellant under Section 302 of I.P.C. and sentencing him to undergo imprisonment for life. The prosecution case in brief is that on 8.5.2001 morning, while the deceased, Ramesh Behera and his wife -Basanti Behera (P.W. 1 -informant) were going to the house of one Kamana Nayak of village Nuabhuin to purchase mangoes, at that point of time the deceased was walking ahead of his wife about 25 to 30 feet distance. All on a sudden, the appellant fired at the deceased using a gun by remaining at the thrashing floor situated on the opposite side of the road. As a result, the deceased fell down on the ground in front of the house of Kanana Nayak. Seeing this, the wife of the deceased rushed to her husband. Wife of Kanana Nayak, two daughters -in -laws and the neighbourer, namely, Sarar Kuanar and his wife also arrived there. Water was sprinkled on the face of the deceased and he was given some water to drink. Thereafter, the deceased succumbed to the gun shot injuries. P.W. 1, thereafter, went to the concerned Police Station and lodged a report there and put his L.T.I. Accordingly, P.W. 7 registered a case, investigated the matter, arrested the accused who gave recovery of the weapon of offence. Ultimately, the police sent the seized materials to the State Forensic Science Laboratory, Rasulgarh, Bhubaneswar for their chemical examination and submitted charge sheet under Section 302 of I.P.C. against the present appellant.

(2.) THE defence plea is complete denial of the allegation. In order to prove its case, the prosecution examined as many as seven witnesses including the doctor and exhibited eleven documents including postmortem examination report and chemical examination report. P.W. 1 is the wife of the deceased and is the informant in this case. P.W. 2 is the wife of the younger brother of the appellant, who turned hostile later on P.W. 3 is an independent witness of the locality, who has been examined as a witness to the seizure of the gun. P.Ws. 4 and 5 are the post -occurrence witnesses. P.W. 6 is the doctor. P.W. 7 is the investigating officer. The defence has examined none.

(3.) MR . G.S. Pani, learned counsel for the appellant assails the judgment on the following grounds: