KAILASH JANI Vs. STATE OF ORISSA

JUDGEMENT

(1.) Kailash Jani, the appellant herein, is the sole accused in this case who faced a trial before the Sessions Judge, Ganjam-Gajapati in Sessions Case No. 615 of 2002 on the allegation that at 5 p.m. on 07.07.2002 he committed murder of Pradeep Kumar Behera (to be referred as the 'deceased' hereinafter) at village-Gudiapalli under Kabisuryanagar Police Station by inflicting a murderous blow on his neck by means of an Axe (Tangia), was convicted by the Trial Court under Section 302 of the Indian Penal Code 1860 (for short "the IPC") and sentenced to undergo R.I. for life. This judgment of conviction and order of sentence are under challenge in this appeal in shape of Jail Criminal appeal.

(2.) The accusation which led to trial of the appellant is that he and the deceased belong to village Gudiapalli under Kabisuryanagar Police Station and they came in loggerheads when the appellant did not pay money that he owned to the deceased. While the matter stood thus, it is alleged, on 07.07.2002 at about 5 p.m. When the deceased was sitting on a bench in front of his betel shop and taking a loaf, the appellant armed with an axe appeared at the scene and in a twinkling of eye, dealt a deadly blow on the neck of the unarmed deceased by means of an axe, for which the deceased dropped down on the road. It is further alleged that the appellant made good his escape by uttering words like "SALAKU HANIDELI SALA MARU". At that point of time, Gagan Behera @ Gagan Kumar Behera (P.W.7), the son of the deceased, who had entered inside the house just before then to fetch a glass of water for his father, reached near the scene of occurrence and found the appellant who was behind the bench of his father escaping with an axe in his hand uttering the aforesaid words and his father lying in a pool of blood Almost simultaneously, Moheswar Behera (P. W.3), the brother-in-law of the deceased, who was living on the other side of the road and watering his kitchen garden, hearing the scream of his brother-in law (Sister's husband), rushed to the spot and found the appellant running away towards his house with an axe in his hand. Bijaya Kumar Behera (P.W.8), the father of Moheswar Behera and few others of that locality gathered at that spot and immediately shifted the deceased to P.H.C., Polosara, from where on the advice of the doctor the deceased was shifted to MKCG Medical College and Hospital, Berhampur for better treatment. However, on 10.07.2002 at 7a.m. the deceased succumbed to the injuries sustained. While the deceased was undergoing treatment at MKCG Medical College and Hospital, Berhampur, P.W.3 on 08.07.2002 at 7.30 p.m lodged F.I.R (Ext. 4/1) at Kabisuryanagar Police Station whether investigation was taken up by Bansidhar Bardhan (P.W.11), incriminating materials were seized and appellant was arrested. On his production, an axe was also seized. On 10.07.2002 at 7a.m., autopsy was done on the dead body of the deceased by P.W.1- Dr. Jyotin Kumar Das, an Associate Professor, F.M.T., MKCG Medical College and Hospital, Berhampur under Ext 1. On completion of the investigation, charge-sheet was laid under Section 302 of IPC against the appellant. Consequently, the case was committed to the Court of Sessions. Charge was framed against the appellant under Section 302 of IPC. The appellant having denied to the charge and claimed to be tried, prosecution examined 11 witnesses and exhibited 9 documents. The appellant in his statement under section 313 of the Code of Criminal Procedure, 1973 (for short "Cr.P.C.") denied the allegation. However, no witness was examined on behalf of the defence. Accepting the prosecution version, the Trial Court held the appellant guilty under Section 302 of IPC and sentenced him, as stated earlier.

(3.) Analyzing the oral and documentary evidence as well as the judgment rendered by the Trial Court, the learned Amicus Curiae representing the appellant to hold the appellant to have authored the crime and the alleged soliloquy being an embroidery in the prosecution case, his conviction under Section 302 of IPC is unsustainable both in law as well as in fact.