BHOLO ALIAS BHOLESWAR NAIK Vs. STATE OF ORISSA

JUDGEMENT

(1.) Petitioner challenges the order of conviction under Section 307, I. P. C. passed by the Assistant Sessions Judge, Talche'r in S. T. Case No. 24-D/8 of 1988 arising out of G. R. Case No. 385 of 1987 of the Court of S. D. J. M. Talcher and the order of confirmation of that conviction and sentence as per the impugned judgment of the Sessions Judge, Dhenkanal in Criminal Appeal No. 103 of 1988.

(2.) Prosecution case according to the F. I. R. and the investigation is that on 5-12-1987, at about 8 P.M., when the injured Hrudananda Sethi was returning from nearby Betel Shop of Damasahi Chhak along with Abhaya Pratap Das (P. W. No. 7), the accused/ petitioner came from behind and dealt two blows to the back of the head as well as on the back by the axe, M. O. I. Informant Banamali Sethi (P. W. No.2) is the elder brother of the injured. He heard that on that date the injured picked up quarrel with father of the accused and because of that grudge the accused assaulted the said injured with an intention to kill him. The occurrence of assault was witnessed by several persons and out of them, P. W. Nos. 3, 4, 6 and 7 were examined by the prosecution. Informant P. W.No.2 was not an eyewitness to the occurrence. P. W. No.5, is a witness to the seizure of M. O. I. and P. W. No. 8, is a witness to the seizure of the X-Ray plates and took zima of the same. P. W. No. 1 is the Doctor who treated the injured and P. W. No. 9 is the Investigating Officer. By the date when the trial was taken up for examination of witnesses, the injured was already dead and therefore he could not be examined as a witness. The injury report was marked Ext. 1, opinion of P. W. No. 1 as Ext. 2 and Bed-head ticket as Ext. 3, F. I. R. was marked Ext. 4. Exts. 5, 6, 9, 10 and 12 are different seizure-lists, Exts. 8 and 8/1 are the X-Ray plates and Ext. 7 is the zimanama. Besides the above noted M. O. I, the wearing apparels of the injured were marked M. Os. II and III and the wearing apparels of the accused were marked M. Os. IV and V.

(3.) Accused petitioner took a plea of complete denial. In support of his defence, he examined Dr. P. Ch. Mohanty as D. W. No. 1 and one Rajendra Nayak as D. W. No.2.