JUDGMENT

P. K. PATRA, J. — The appellant has been convicted under Sec. 302, Indian Penal Code (for short ‘I.P.C.’) and sentenced to undergo R.I. for life in S.T.No. 200 of 1991 by the Sessions Judge, Sambalpur vide his judgment dated 25.9.1992 which has been assailed in this appeal.

2. The prosecution case briefly stated, is that on 14.7.1991 at 5.30 p.m. the informant, Bimbadhar Sahoo while standing in front of his house, found Prakash Naik (P.W.1), brother of the appellant crying and running towards the village and to his querry informed that the appellant had killed his father by means of a tangia (axe). At that time Dukhabandhu Naik (P.W.4) (uncle of Prakash) arrived there and was informed about the above fact. P.Ws. 1, 4 and the first informant accompanied by some other villagers went to the house of the deceased Sukhadev Naik and found his dead body lying on a charpoy with bleeding injury on his neck. They also found an axe, stained with blood, near the head of the deceased. It is alleged by the prosecution that the appellant who was found sitting on the outer verandah of his house was asked by the witnesses and he made extra-judicial confession before them that the deceased had abused him in the afternoon on the same day which he could not tolerate and hence at about 4.00 p.m. while his father was asleep, he dealt a blow by means of an axe on the neck of the deceased and fled away. Thereafter the informant, Bimbadhar Sahoo, went to Mahulpali Police Station and orally reported the occurrence which was reduced to writing by Kandarpa Behera (P.W.13), O.I.C. of the P.S. who registered the case and took up investigation. During investigation he examined the witnesses and seized the weapon of offence, i.e. axe (M.O.I.), blood stained earth from the spot, and a banian (M.O.II), a napkin (M.O.III) and a lungi (M.O.IV) belonging to the appellant, held inquest over the dead body and sent the same for post mortem examination. The I.O. arrested the appellant on 15.7.1991 at 9.00 a.m. and forwarded him to the Court in custody on 16.7.1991 and at 8.30 a.m. on his prayer, S.D.J.M., Kuchinda recorded the confessional statement of the appellant under Sec. 164, Cr.P.C. The Medical Officer (P.W.3) conducted autopsy over the dead body of the deceased and the medical officer (P.W.2) collected the nail clippings of the appellant. On his transfer from the police station, P.W. 13 handed over charge of investigation to P.W. 10-A, S.I. of the said police station who handed over charge to P.W. 11, the suc¬cessor in office of P.W. 13 and after completion of the formalities of investigation, P.W. 11 submitted the charge-sheet against the appellant.

3. The plea of the appellant was one of denial. He denied to have made any extra-judicial or judicial confession before the witnesses and the Magistrate respectively.

4. In order to bring home the charge against the appellant, prosecution has examined thirteen witnesses. P.W.1 is the son and P.W. 4 is the brother of the deceased. P.W. 2 is the medical officer who collected nail clippings of the appellant. P.W.3 is the medical officer who conducted the post mortem examination over the dead body of the deceased. P.W.5 is the daughter and P.W. 6 is the widow of the deceased. P.W.7 is a co-villager of the appellant. P.W.8 is the police habildar who took the dead body for post mortem examination. P.W. 9 is the Revenue Inspector who has prepared the spot map (Ext. 13). P.Ws. 10, 11 and 13 are the Investigating Officers. P.W. 12 is the S.D.J.M., Kuchinda who recorded the confessional statement of the appellant under Sec. 164, Cr.P.C. The first informant, Bimbadhar Sahoo has not been examined in this case.

5. P.Ws. 1, 4, 5, 6 and 7 turned hostile and did not support the prosecution case. The learned Sessions Judge placed reliance on the sole testimony of P.W. 12 who recorded the confessional statement (Ext. 15) of the appellant and convicted the appellant.

6. The medical officer (P.W.3) who conducted the post m