JUDGMENT :

S.K. Sahoo, J.

The petitioner Gangadhar Karjee faced trial in the Court of learned Chief Judicial Magistrate -cum-Asst. Sessions Judge, Parlakhemundi in Sessions Case No.27 of 1994 for offences punishable under sections 307/323/294 of the Indian Penal Code and section 27 of the Arms Act. The learned Trial Court vide impugned judgment and order dated 15.07.1995 though acquitted the petitioner of the charges under sections 323/294 of the Indian Penal Code but found him guilty under section 307 of the Indian Penal Code and section 27 of the Arms Act and sentenced him to undergo R.I. for five years with fine of Rs.500/-(rupees five hundred only), in default, to undergo S.I. for six months on each count under section 307 of the Indian Penal Code and section 27 of the Arms Act and the sentences were directed to run concurrently.

The petitioner preferred an appeal in the Court of the Session which was heard by the learned Additional Sessions Judge, Parlakhemundi in Criminal Appeal No.7 of 1995 and the learned Appellate Court vide impugned judgment and order dated 06.04.1998 has been pleased to uphold the impugned judgment and order of conviction passed by the learned Trial Court and dismissed the appeal, hence the revision.

2. The prosecution case, as per the First Information Report lodged by Dinabandhu Sahu (P.W.1) before Inspector in Charge, Parlakhemundi Police Station is that the petitioner who was constable no.176 of Orissa State Reserve Police at Parlakhemundi, complained when he was allotted duty at Ullabhadra at the time of roll call on 17.06.1994 at about 8.00 a.m. in presence of the constables and havildars and he further complained as to why he was not allotted duty at Treasury and why Mrutunjaya Behera (P.W.13) was allotted duty at Treasury. When the petitioner abused P.W.13 in obscene words, others who were present there including the informant persuaded him not to behave in such irrational manner but the petitioner did not listen them rather started abusing them. After a little while, he threw away a rice plate on P.W.1 and there the matter was subsided at the intervention of the other constables.

It is further stated in the F.I.R. that at about 10.00 p.m. the petitioner came in uniform, collected his gun from the armoury room and after making necessary preparation by inserting cartridges, fired gunshots inside the barrack to kill the informant. The informant took shelter under a cot but the gun shot struck at constable Pitabas Tripathy (P.W.8) on his left chest who fell down shouting “Marigali, Marigalli”. The petitioner stated to have fired five rounds of gun shots and the shots struck at different places in the barracks including the door frames. Then the petitioner left the spot leaving the gun on the verandah of the barrack.

On the basis of the First Information Report lodged by P.W.1, Parlakhemundi P.S. Case No. 72 of 1994 was registered under sections 307/323/294 of the Indian Penal Code and section 27 of the Arms Act against the petitioner. P.W.15 S. Ramdas, S.I. of Police attached to Parlakhemundi Police Station, in absence of the Inspector in charge received the report, registered the First Information Report and took up investigation of the case.

During course of investigation, P.W.15 examined the witnesses, gave requisitions for examination of the injured (P.W.8), visited the spot and prepared the spot map Ext.8. He also seized one 303 rifle, two empty cartridges, two pieces of lead from the firing of the cartridges under seizure list Ext.2. He arrested the petitioner on 18.06.1994 and forwarded him to Court. He received the injury report from the medical officer. He seized the register of the armoury and roll call register. He also seized one red coloured napkin having five holes from P.W.8 under seizure list Ext.9. He sent 303 rifle, two empty cartridges, two pieces of firing leads and one red coloured napkin to R.F.S.L., Bhubaneswar. He received the sanction order from the District Magistrate and on