JUDGMENT

VINOD PRASAD, J. - Challenge in this jail criminal appeal by the appellant Tankadhar Bemal, is to the impugned judgment of his conviction dated 31.07.2008, under Section 302 I.P.C. recorded by learned Additional Sessions Judge, Nuapada in Sessions Case No. 06 of 2007 (State-Vrs. – Tankadhar Bemal) arising out of G.R. Case No. 358/2006, T.R. No. 81/2007, relating to Komna P.S. Case No. 124 of 2006. The appellant has been convicted under Section 302, I.P.C. and has been sentenced to life imprisonment with fine of Rs. 1000/- and in default of payment of fine to serve 6 (six) months additional rigorous imprisonment.

2.The short question which has been canvassed before us by Sri S.C. Mekap, learned counsel for the appellant is that there is no reason to disbelieve the prosecution version, so far as involvement of the appellant is concerned, but the learned trial judge committed an error in convicting him under Section 302 I.P.C. whereas, on the evidence trotted out in the trial at the worst it will make out a case under Section 304, Part-I, I.P.C. The submission canvassed requires examination of the merits of the case and hence, we proceed to slate down the facts.

3.In village Maniguda under Komma Police Station, District Nuapada, two sibling brothers, namely, Gupteswar Bemal and Khageswar Bemal resided. Gupteswar Bemal has four sons, namely, Tankadhar Bemal (appellant), Lochan Bemal (PW 5), Hrushikesh Bemal (PW 1) and Jadumani Bemal (deceased). PW-2 Jagtani Bemal is the wife of the deceased. Madan Bemal (PW-3) is the son of Khageswar Bemal and is therefore, cousin of the appellant, the deceased and PWs. 1 and 5. The prosecution version further is that on 21.11.2006 Jagtani Bemal PW-2 cooked a chicken in the dinner which was consumed by the appellant as well as the deceased who thereafter went outside. After some time shriek of the deceased as “Dhain Asa” was heard by PW-2 Jagtani Bemal, who rushed to the incident spot, which was Courtyard of her house and witnessed, in the lantern light, that the appellant, who was the eldest brother of the husband of PW-2, was knifing the torso of the husband of PW-2, the deceased, who sustained knife injuries on his neck, left shoulder, hand, belly, thumb and fingers. Hearing the shrieks of the injured-Jadumani- deceased, PW-1 and other witnesses were also attracted at the spot and they had seen the deceased lying with bleeding stab injuries on the road.

4.The real brother Hrushikesh Bemal (PW-1) along with the nephew-Samudra alias Lakhpati Bemal (PW-4), Madan Bemal (PW-3) came to Tarbod Police Outpost and lodged a report after being scribed by one Lochan Moharatha. Further prosecution case is that by the time the informant and other witnesses had arrived at the Police Outpost, the accused- appellant had also arrived there and had handed over the blood stained knife to the police which was seized. The written report alleged to have been scribed by Lochan Moharatha lodged by PW-1 is Exhibit 1.

5.Dolamani Mallik (PW-10) functioning as ASI, Tarbod Police Outpost, under Komna Police Station, received a written report from PW-1 and prepared station diary No. 366 on 22.11.2006 and then dispatched a report to Komna Police Station for registration of the formal FIR while commencing investigation into the crime. PW-10, as the first I.O. examined the informant and the witnesses came to the spot and seized the weapon of offence from the accused-appellant and also his wearing apparels vide seizure list Exhibit 4. Sample plain earth and blood stained earth were seized vide Exhibit 3. 161 Cr.P.C. statements of other witnesses were also recorded. The knife seized from the appellant is MO-I whereas MOs. II to V are the wearing apparels of the accused-appellant. Accused-appellant was also dispatched for medical examination through requisition Exhibit 9/2. On 22.11.2006 further investigation was handed over to the OIC, Komna Police Station. The spot map prepared by PW-10 is Exhibit 10.

6.Amiya Charan Trip