JUDGMENT

SUJIT BARMAN ROY, C.J. — This appeal is directed against the judgment dated 20.1.1992 passed by the First Additional Sessions Judge, Cuttack convicting the appellant under Section 302, I.P.C. and accordingly sentencing him thereunder to undergo imprisonment for life.

2. Prosecution case, in brief, is that Dr. K. C. Mohapatra (P.W.12) being the Medical Officer attached to the S.C.B. Medical College Hospital, Cuttack sent a written intimation to the offi¬cer-in-charge of Mangalabag Police Station stating, inter alia, that a dead body with spear injury on the chest was received in the Casualty of the said hospital and accordingly P.W.12 request¬ed the Officer-in-charge of the said Police Station to take necessary action. On the basis of the said written intimation, a case under Section 302, I.P.C. was registered at the said Police Station against unknown accused persons. After usual investiga¬tion, Police submitted charge sheet against the appellant only under Section 302, I.P.C. In due course of time the case was committed to the Court of the Sessions Judge, Cuttack. On trans¬fer, the case was ultimately tried before the learned First Additional Sessions Judge, Cuttack. On perusal of the materials on record charge under Section 302, IPC was framed against the appellant to which he pleaded not guilty.

3. On behalf of the prosecution as many as 12 witnesses were examined. None was examined on behalf of the appellant. In course of his examination under Section 313, Cr.P.C. the appel¬lant stated before the trial Court that on the day of occurrence he was in the house of one Gangadhar Barik (P.W.4), but at that time the deceased came and assaulted the appellant. When the appellant went to his master (employer) the deceased followed the appellant and he could see in the darkness that the deceased was holding something like a knife and the deceased started shouting. Noticing this, the appellant left that place. Except as afore¬said, the appellant denied the prosecution story as alleged. On completion of trial, the appellant was found guilty, convicted and sentenced as already stated.

4. We have heard Mr. Mohanty, learned Additional Govern¬ment Advocate on behalf of the State. None is available for the appellant. This appeal is pending in this Court since 1972. However, during pendency of the appeal on 23.8.1996 the appellant was directed to be released on bail. As it is a very old appeal ,we took the responsibility to go through the evidence ourselves and dispose of the appeal without the assistance of the learned counsel for the appellant as he is not available in the Court. We have, of course, heard learned Additional Government Advocate for the State.

5. P.W.1 Smt. Bhagabati Thappa is wife of the deceased. She stated in her evidence before the trial Court that she along with her husband (the deceased) was staying in a rented house of one Rajendra Singh. At that time the appellant was serving as a servant in the house of the landlord of this witness. The inci¬dent occurred during the night hours some eight months before she gave her evidence before the trial Court. She could not remember the date. However, the occurrence took place in the night after about 10 P.M. her husband Man Bahadur Thappa (Since deceased) upon returning from his duty took his dinner and was washing his hand just outside the house. When he was so washing his hand after taking the dinner, the deceased could see that the appel¬lant was talking with Gangadhar Barik (P.W.4). However, the de¬ceased asked the appellant as to why the appellant was wasting time by gossiping with the neighbour at such hour of the night. An altercation ensued between the two.Immediately after that, this witness could further see that the appellant went inside the cow-shed of his master Rajendra Singh and the deceased also went ahead following the appellant. He could further see that the appellant rushed at the deceased with a spear in his hand locally called Tenta. This witness