Judgment

OZA

( 1 ) THIS appeal has been filed after obtaining leave from this Court by the appellant against his conviction under Section 302 and sentence of imprisonment for life awarded by Sessions Judge, Mayurbhanj, Kenjhar, Baripada by his order dated 8/12/1973 and maintained by High Court of Orissa by its judgment dated 9/03/1976.

( 2 ) THE prosecution case in short was that the deceased Bhatal Majhi had some land dispute with Jitrai Majhi and his brothers. It is alleged that Jitrai Majhi did away with the deceased through the instrumentality of the present appellant. The incident is alleged to be at the night intervening between 13th and 14/12/1968. Bhatal Majhi was found dead in the morning of 14/12/1968 by the road-side near a weekly market known as Joka Hata with his throat cut. Bishnu Majhi the brother-in-law of the deceased P. W. 1 identified the dead body and lodged the information to Bangriposi Police Station the same day Ext. 3. The assailant was reported to be unknown.

( 3 ) P. W. 10, the Second Officer attached to the said Police Station investigated into the case, held an inquest, despatched the dead-body for post-mortem examination seized certain incriminating articles and finally arrested the appellant on 15-12-68 at 11 a. m. The same day 3 a. m. he arrested accused Jitrai Majhi. The weapon of offence a razor M. O. IV was produced by accused Jitrai Majhi which was seized under Ext. 5. Investigating Officer, P. W. 10 forwarded both the accused Jitrai Majhi and Kansa Behera, present appellant, in custody to Court, the appellant escaped as the lock up was defective, and he could not be traced. Finally a charge-sheet was submitted against both Jitrai and Kansa indicating the appellant as absconder. Jitrai was discharged by the Sub Divisional Magistrate, Baripada vide his order dated 27-2-1970 for want of prima facie case as against him. So the case as against him needs no consideration. Later, after the apprehension of the appellant on 22-8-72, he was committed to the Court of Session on 28-6-1973.

( 4 ) THE prosecution examined 10 witnesses and nobody was examined in defence. There is no eye-witness of the incident. The learned courts below convicted the appellant on the basis of circumstantial evidence. The circumstances established against the appellant are; i) that he was last seen with the deceased on the evening of 13th Dec. 1968 when it is alleged that he and deceased took liquor together; ii) that a dhoti and shirt were recovered from the possession of the appellant when he was arrested on 15-12-68 and these articles were found to be stained with human blood; and iii) that P. Ws. 7 and 8 have deposed to about an extra-judicial confession made by this appellant when he was ultimately arrested after absconding in Bihar.

( 5 ) SO far as the first circumstance that the appellant was seen with the deceased on the evening preceding the night when the deceased is alleged to have been killed is not in dispute. This fact has been established by the evidence of PWs 3 and 4 and the appellant himself in his statement also admitted that he was there although his case was that the deceased throat was cut by Jitrai Majhi who also was an accused and was discharged on the basis of police papers by the Sub Divisional Magistrate. It is clear that only on the basis of this circumstance the appellant could not have been convicted and as this circumstance is not in dispute, in our opinion, it is not necessary to go into this question.

( 6 ) LEARNED counsel appearing for the appellant contended that the circumstances appearing in evidence indicate that the deceased and Jitrai Majhi had some trouble about land. It is alleged that the deceaseds land was pledged with Jitrai and the possession of the land was given to him. When the deceased offered him to repay the loan so that he may get back his land, it is alleged that Jitrai refused to give possession on the plea that the land was purchased by him. Ultimately it is alleged that