JUDGMENT :

D.P. CHOUDHURY, J.

The convict challenges the order of conviction and sentence dated 16.7.2004 passed under section 302 I.P.C. by the learned Sessions Judge, phulbani in S.T. No. 58 of 2001.

2. The conspectus of the case of the prosecution is that the appellant is the son of the deceased. It is alleged inter alia that on 20.1.2001 when the deceased Bhubaneswar Kanhar was returning from forest after collecting fire wood, the appellant assaulted by axe on the backside of the head of the deceased causing bleeding injury thereon. After the deceased fell down, the deceased was also assaulted by means of a stone on the chest. Seeing the assault, the daughter of the deceased informed the villagers. After reaching the spot the villagers found that the deceased was dead. Thereafter F.I.R. was lodged. During investigation inquest over the dead body was made, autopsy was conducted, witnesses were examined and necessary incriminating materials were seized. It is also stated that the police seized the weapon of offence. After being arrested the convict led the police to recover the stone which is one of the weapons of offence. Necessary seized materials were sent for chemical examination. After completion of investigation charge sheet was submitted.

3. The plea of defence as revealed from his examination under section 313 Cr.P.C. and the suggestions given during cross-examination is that he has been falsely implicated in this case due to previous land dispute with the deceased.

4. The prosecution examined 14 witnesses and they have been well described in the judgment of the trial court. The defence examined none. Learned trial court after analyzing the evidence on record came to the conclusion that the appellant is the perpetrator of the crime and accordingly sentenced him to imprisonment for life.

SUBMISSIONS:

5. Learned counsel for the appellant submitted that the findings of the learned trial court is erroneous and against the weight of evidence on record. According to him, the learned trial court has erred in law by not evaluating the evidence of the eye witness (P.W.11) properly, because she being the daughter of the deceased was interested witness and no reliance can be reposed on her testimony. The evidence of P.W.11 is also full of contradictions as she has never seen any assault on the person of the deceased by stone.

6. Learned counsel for the appellant further submitted that the prosecution has not discharged its onus beyond all reasonable doubt, because the axe, weapon of offence was not seized from the exclusive possession of the appellant and said weapons of offence have no any blood stain of the deceased as per the report of the chemical examiner. He further submitted that the motive has not been proved by the prosecution with positive evidence. According to him, the circumstantial evidence against the appellant has not been proved in clear manner. When there is neither direct nor circumstantial evidence proved by the prosecution consistently, the order of conviction under section 302 I.P.C. against the appellant has not proved. Learned counsel for the appellant submitted that when the conviction is recorded by the learned trial court against the evidence on record, not only the conviction is against the law, but also the sentence by the learned trial court is improper and illegal. Hence he submitted to set aside the judgment of conviction and sentence passed by the learned trial court.

7. Mr. J. Katkia, learned Additional Government Advocate submitted that the prosecution has adduced consistent evidence of eye witnesses and there is no bar to rely upon the evidence of the relative of the deceased. He further submitted that not only the direct evidence is well proved, but also the chain of circumstance is against the appellant. According to him, the seizure of the seized axe, the weapon of offence from the house of the appellant and leading to discovery of the stone which is another weapon of offence at the instance of the