BOISAKHU KOLLAR Vs. STATE

JUDGEMENT

(1.) THE Court of Session has held the prosecution case established, on the basis of the evidence of three witnesses to the occurrence (P.Ws. 1 to 3) and an extrajudicial confession made by the Appellant before his father (P.W. 10) who, in turn, had informed. P.W. 9 about it and production of the axe (M.O. I) suspected to be the weapon of attack at the police station, that the Appellant had killed his cousin Hiradhar Kollar (to be referred to hereinafter as the 'deceased') by dealing a blow on the backside of his head while the deceased was coming back from the Mathili market in the evening on August 8, 1980, in the company of P.Ws. 1 to 3. The Appellant has been convicted under Section 302 of the Indian Penal Code and sentenced to undergo imprisonment for life.

(2.) MR . K.C. Mohanty, appearing on behalf of the Appellant, has taken us through the evidence and contended that the evidence was highly unsatisfactory and could not sustain the charge. It admits of no doubt from the medical evidence that the deceased had died a homicidal death P.Ws. 1 to 3 had not definitely stated that M.O. I was in the hands of the Appellant with which he had assaulted the deceased. There was no material on record to show that the axe had any stains of blood in it. The seizure of M.O. I on production by the Appellant at the police station cannot be of any avail to the prosecution.

(3.) THERE remains for consideration the evidence of P.Ws. 1 to 3 who, on their own showing, had been coming together with the deceased. According to them, while they were coming together from the Mathili market and on the way, the deceased halted for urination while they proceeded ahead, they heard a sound and on looking back, saw the Appellant dealing an axe -blow with its blunt side on the back side of the head of the deceased who had fallen on the ground with the chest down -wards and on being challenged by them, the Appellant gave out that lie had hit and killed his enemy. None of those three witnesses had made a statement in the course of investigation about any such statement having been made by the Appellant. P.W. 2 had not informed anyone in the village about what he had claimed to have seen. According to P.Ws. 1 and 3, they had informed P.W. 4, the son of the deceased, about it. It was not in the evidence of P.W. 4 that he had received any information from P.W. 3. According to him, P.W. 1 informed him that the Appellant had assaulted his father and that his father was lying dead. This could not be the true state of affairs as the evidence indicated that P.W. 4 and some others went to the spot and brought the deceased in an injured state and he had died in the village at about midnight. Thus the deceased had not died on the spot.