(1.) The instant appeal is directed against the conviction of the appellant/convict under provisions of Sec. 304 Part I Penal Code and sentencing to seven years rigorous imprisonment and a fine of Rs.5,000.00. In default of payment of fine, the appellant/ convict is to further undergo three months simple imprisonment.
(2.) The trial Court, on appreciation and consideration of evidences adduced by the parties and other circumstantial evidences, held that on 29.06.2014, around 2135 hours, the appellant/convict Prakash Subba assaulted the deceased Yogesh Subba on the neck with a Khukuri (M.O. IV) inflicting fatal injuries without premeditation and on sudden provocation, in heat of passion and fit of anger, which resulted into death of the deceased. It is further held that the appellant/convict was fully aware that hitting the deceased with such a weapon even without any motive or intention will cause death of a person and as such the deceased, who happened to be his son was killed by the appellant/convict, who had no intention to do it. Fatal injuries sustained by assault on the neck of the deceased were the cause of his death. Resultantly, the convict was held guilty under the afore stated provisions and sentenced accordingly.
(3.) Mr. Bhaskar Raj Pradhan, learned Senior Counsel appearing for the appellant/convict, would contend that the appellant has been held guilty without proving the case by the prosecution. The prosecution has failed to establish its case even by way of circumstantial evidence. The trial Court has proceeded to convict the appellant/convict relying upon inadmissible evidences. There was a lack of proper investigation as it was done on tampered records to establish the guilt of the appellant/convict. The appellant/convict was wrongly convicted under Sec. 304 Part I IPC. The entire judgment is based on such evidences, which are not admissible in the teeth of legal provisions under Sections 25, 26 and 27 and Sec. 60 of the Indian Evidence Act, 1872 read with Sec. 162 of the Code of Criminal Procedure, 1973.
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