Navin Sinha, Actg. C.J.

1. The Appellant stands convicted under Section 302 I.P.C. to life imprisonment by judgment dated 29.06.2000 of the Additional Sessions Judge (Special Court), Jagdalpur in Sessions Trial No. 392 of 1999. Exhibit P/1, Merg statement of PW 1, Puni, wife of the deceased Lacchinder, was recorded on 27.06.1999 at 7.00 P.M. She stated that the boundary of their house was common with that of the Appellant. The Appellant would regularly fight with regard to the same. On that date itself at about 10.00 A.M., the Appellant took the deceased to his house on the pretext of having drinks together. PW 1 followed her husband to the house of the Appellant. When they reached the courtyard of the Appellant, he stated that he would not leave the deceased alive because he was obstructing construction of boundary wall and thrust arrow in the neck of the deceased causing his death on the spot. The FIR Exhibit P/2 was lodged by PW 1 on the same day on basis of the Merg statement. The postmortem of the deceased Exhibit P/16 was conducted by one Dr. H.L. Thakur, who has not been examined. The report found punctured wounds on the left axilla, the left chest, the right chest and also two punctured wounds on the left neck just above the collar bone. On the latter two wounds, a foreign body like bamboo sticks were stuck, which were taken out and handed over to the Constable. The cause of death was opined due to excessive hemorrhage because of the injury. The confession of the Appellant was marked Exhibit P/4 leading to seizure of the other broken part of arrows from his house marked Exhibit P/5. Blood stained earth collected from the place of occurrence was marked Exhibit P/6. The crime spot report Exhibit P/13 reveals that the body of the deceased was found inside the house of the Appellant. The forensic report of the broken pieces of arrows, Exhibit P/12, recovered from the body of the deceased during postmortem and that recovered on confession of the Appellant were found to tally as a piece.

2. Learned counsel for the Appellant assailing the conviction submitted that there was no previous animosity or enmity between the parties as otherwise the deceased would never have gone to the house of a person with whom he was on inimical terms. Even if the deceased had been called to his house by the Appellant, given the allegation of a boundary dispute, the assault was the result of grave and sudden provocation. The postmortem report was marked Exhibit P/16 by the Court itself but has not been formally proved as the author has not been examined. Section294 Cr.P.C. could not have been invoked by the Trial Court to look at the report especially when the author of the report failed to appear despite bailable warrants. Reliance was placed on Jagdeo Singh and others v. State (Allahabad) 1979 Cri.L.J. 236.

3. Learned counsel for the State submitted that the conviction requires no interference. The question of any grave and sudden provocation does not arise. It was premeditated murder after enticing the deceased with the lure of liquor. The broken piece of arrows found in the body of the deceased, and the other broken pieces recovered from the house of the Appellant on his confession have been forensically proved to be part of the same piece. In the facts of the case, it is hardly relevant that the Doctor who authored the postmortem report has not been examined. The accusation is conclusively proved by an eyewitness whose testimony remains completely trustworthy.

4. We have considered the submission made on behalf of the parties and also examined the evidence on record.

5. PW 1 wife of the deceased in her deposition reiterated that the Appellant lured the deceased to his house for liquor and that she witnessed the assault made by him on her husband, after which she informed others. She asserted that the Appellant had killed her husband because of the boundary dispute. The suggestion that there was no boundary dispute between them in cross-