PABAN NAYAK Vs. STATE OF ORISSA

JUDGEMENT

(1.) THIS Jail Criminal Appeal has been filed by Appellant -Paban Naik challenging to order of conviction for the offence under Section 302, Indian Penal Code and sentence of imprisonment for life imposed on him by learned Session Judge, Dhenkanal -Angul, Dhenkanal in S.T. Case No. 107 -D of 1994.

(2.) ACCUSED faced that trial on the charge under Section 302, Indian Penal Code on the allegation that on 5.5.1994 evening at about 7.30 P.M. he attacked and assaulted Jahaj Naik, an old lady aged about 65 years when she was returning to her house from nearby kendu leaf go down accompanied by her grand son Okila Naik (P.W. No. 2). It is further alleged that accused assaulted the deceased by means of the axe, Mos. II and I, (out of the same M.O. II is the iron portion and M.O. 1 is the broken handle portion of the axe). To substantiate the charge, prosecution examined six witnesses. Out of them P.W. No. 2, grandson of the deceased was an eye witness to the occurrence. His mother, P.W. No. 1 being the daughter -in -law of the deceased though did not see any part of the assault by axe, but being called by his son he came on the spot and saw the accused standing on the chest of the deceased holding the weapon of offence. Prosecution has accepted them as eye witnesses to the occurrence. P.W. No. 3, Paraja Naik being son of the deceased also came to the spot along with P.W. Nos. 1 &2 and found the dead body was missing from the spot of occurrence. Thereafter he reported the incident to the villagers and on their intervention, accused disclosed that he had thrown the dead body to a cultivable land of some persons. D.W. No. 3 searched for the dead body, traced it and thereafter, reported the incident to the Police. That FIR has been marked as Ext. 1. P.W. No. 6 is the Doctor who conducted post mortem examination on the dead body of the decease and proved the post mortem report, Est. 8 and opinion report, Ext. 9 relating to the axe being the weapon of offence. In course of investigation, accused while in Police custody gave discovery of the M. Os. I & II and that was seized under seizure list, Ext. 2. P.W. No. 4, Brahmananda Mohanty was examined as an independent witness to prove recovery of the seizure of the weapon of offence. P.W. No. 5 was the Investigating Officer of the case. Accused took the plea of complete denial but adduced no evidence in his defense.

(3.) LEARNED Counsel for the Appellant argues that prosecution case is based on surmises and presumption and the evidence of P.W. Nos. 1 &2 are contradictory and not credible relating to the manner of occurrence. He however argues that presence of P.W. No. 2 at the spot of occurrence was improbable. He further argues that the real FIR was not brought on record and Ext. 1 id not the real FIR, and that the seizure of axe in this case under Ext. 2 is not a case of leading to discovery under Section 27 of the Evidence Act. Accordingly he argues to grant benefit of doubt to accused and to acquit him.