JUDGMENT

Dr. D.P. CHOUDHURY, J. - The appellant assails the judgment of conviction and order of sentence passed by the learned Addl. Sessions Judge, Keonjhar in S.T. Case No.32/121 of 2014 in convicting him under Section 304Part-I of I.P.C. and sentencing him to undergo R.I. for ten years and to pay a fine of Rs.5,000/- in default thereof to undergo R.I. for one year.

2. The factual matrix leading to the case of the prosecution is that on 15.5.2014 at about 11 a.m. Sanatan Munda, his first wife Kuntala Munda, second wife Pramila Munda, son Rajesh Munda and minor daughter had been to Simamundi Nala to rear fish. There Sanatan Munda told Kuntala Munda to make a ridge and to drain water for rearing fish. Kuntala Munda refused to do so and quarrelled with Sanatan Munda. Being enraged, Sanatan Munda dealt blows by the blunt side of a spade on the head of Kuntala Munda causing profuse bleeding injuries. Kuntala Munda succumbed to injuries.Thereafter the Ward Member arrived at the spot. F.I.R. was lodged. During investigation the Police made inquest over the dead body of Kuntala and made autopsy of the dead body. Police also examined the witnesses. During investigation the appellant led the police and gave recovery of the weapon of offence from the Simamundi Nala and consequently the same was seized. After completion of investigation charge sheet was submitted under Sections 302 and 201, I.P.C.

3. The plea of the appellant as revealed from the statement recorded under Section 313 of Cr.P.C. and the suggestion given during cross-examination to the prosecution witnesses, is squarely denial to the occurrence and he pleads innocence.

4. The prosecution in order to prove the charge examined 19 witnesses against the appellant whereas the defence examined himself as a single defence witness. The trial Court after analyzing the evidence of witnesses has found the appellant guilty under Section 304 Part-I, I.P.C. and sentenced him to undergo R.I.for ten years and to pay fine of Rs.5000/-in default to undergo further R.I. for one year.

SUBMISSIONS.

5. Learned Counsel for the appellant submitted that the judgment of conviction is illegal and improper because the learned Trial Court relied on the evidence which is not admissible. She further submitted that the evidence of most of the P.Ws. having hostile to the prosecution have not supported to the prosecution case. The learned Trial Court has based the conviction mainly on the extrajudicial confession made by the appellant before P.W. 1 but on going through the said evidence it would appear that he has not supported the prosecution case. Learned Trial Court has also relied on the evidence of leading to discovery made by the appellant, but there is no independent witness to corroborate the leading to discovery. The evidence of the I.O. cannot be trusted one to prove the leading to discovery. There is no direct or circumstantial evidence to find the appellant guilty, but he has been convicted by the learned trial Curt basing on the inadmissible evidence.So, she submitted to set aside the judgment of conviction and order of sentence against the appellant.

6. Learned Addl. Government Advocate submitted that the evidence of P.W. 5 should be taken into consideration as she is the second wife of the appellant and has witnessed the occurrence. Although the prosecution has cross-examined her, but during such cross-examination she admitted before police to have witnessed the occurrence of assault made by the appellant by means of a spade to the head of the deceased. He further submitted that in view of the clear admission of P.W. 5 her evidence also proved the overt act of the appellant. Apart from this, he submitted that the blood stain Gamuchha of the accused has been seized and the same had been found to have contained human blood. In addition to the evidence of the eye witnesses and the circumstantial evidence as detailed by the Trial Court the appellant should be convicted under Section 304 Part-I