JUDGMENT

K.R. MOHAPATRA, J. - The appellant calls in question the legality and propriety of the judgment and order of conviction and sentence dated 09.03.1999 passed by learned 1st Additional Sessions Judge, Cuttack in Sessions Trial No.259 of 1997 (arising out of GR Case No.255 of 1996 being committed by learned SDJM, Banki) convicting the appellant under Sections 302/201 IPC and sentencing him to undergo imprisonment for life.

2. The case of the prosecution in brief as made out from the FIR is that in the evening of 11.10.1996, Prasanta, the son of Hadibandhu Gochhi, (hereinafter referred to as ‘deceased’) was watching TV at the house of one Daitari Gochhi of the said village. Although persons watching TV in his house returned, the deceased did not. Everybody of the family of the deceased including the informant-Bipin Gochhi, searched for him.

On 12.10.1996, at about 4.00 PM, the dead body of the deceased-Prasanta Gochhi was found buried in a paddy field. A portion of the foot of the deceased was exposed. Thus, suspecting murder of the deceased, Bipin Gochhi, the informant (PW-1) lodged an FIR at Banki Police Station basing upon which Banki PS Case No.203/96 dated 12.10.1996 was registered under Sections 302/201 IPC. The offence alleged being cognizable in nature, the OIC, Banki PS (PW-8) took up the investigation.

3. in course of investigation, the Investigating Officer (PW-8) examined the informant, visited the spot and prepared a spot map (Ext.6). Due to the late hour of the night, PW-8 deputed a Constable to guard the dead body. On the next day, i.e. on 13.10.1996, the body of the deceased was recovered in presence of Executive Magistrate-Pradip Kumar Behera (not examined).The Investigating Officer held the inquest over the dead body and prepared inquest report Ext.7. One Damodar Swain (not examined) was a witness to the inquest. Subsequently, the body of the deceased was sent for post-mortem examination to Sub-Dicvisional Hospital, Banki vide dead body Chalan- Ext. 8. Dr. Bhaskar Kar (PW-7) conducted the post-mortem examination and submitted his report vide Ext. 5. The I.O. also examined other witnesses and on his prayer, statement of Amulya Kumari Swain (PW-2), Dharanidhar Mallik ( PW-4) and Ramesh Mallik (PW-6) were recorded under Section 164 Cr.P.C. by learned SDJM, Banki. The appellant was arrested on 29.01.1997. Appellant also led the IO and identified the spot where the dead body was buried. On 27.04.1997, charge sheet was submitted against the appellant under Section 302/201 IPC.

4. The plea of the appellant was complete denial of the involvement in commission of the offence.

5. Learned Sessions Judge, Cuttack, taking into consideration the evidence (both oral and documentary), materials on record as well as the plea advanced by learned Public Prosecutor as well the defence counsel, convicted the appellant under Sections 302/201 IPC and sentenced him to undergo imprisonment for life. Since the appellant was sentenced for life, no separate sentence under Section 201 IPC was imposed.

6. Mr. Sudipto Panda, learned counsel for the appellant submitted that the impugned judgment and order of conviction and sentence is against the weight of evidence and materials on record. Learned Sessions Judge has failed to appreciate the fact as well as law in its proper perspective while adjudicating the matter. Elaborating his submission, Mr. Panda argued that the P.Ws. 4 and 6, who are claimed to be eyewitnesses to the occurrence by the prosecution, are set up to rope in the appellant. Although P.Ws. 2 and 6 alleged to have seen the appellant giving slap to the deceased and throttling his neck, they did not disclose the same before anybody till their statements under Section 161 Cr.P.C. was recorded by the I.O.-P.W.8, on 03.02.1997 and 01.02.1997 respectively. They did not disclose the same even before the I.O. who was present in the village on the very next day of the occurrence, i.e. on 12/13.1996. The plea of non-disclosure wa