The main legal point established in the judgment is the consideration of the nature of the assault, absence of premeditation, and sudden provocation in determining the appropriate section of the IPC for the conviction.

JUDGMENT

S.Panda, J. - This Criminal Appeal is directed against the judgment dated 21.6.1999 passed by the leaned Sessions Judge, Keonjhar in Sessions Trial Case No. 93 of 1997 in convicting the appellant for commission of offence under Section 302 of the Indian Penal Code and sentencing him to undergo imprisonment for life.

2. The prosecution case in short fact is that:-

The accused was dealing with purchase and sale of buffaloes. Three to four days prior to the date of occurrence, which took place on 1.2.1997, he brought some customers for sell of his buffaloes to his village Talapada. But the customers returned as the price could not be settled. While the customers were returning Kuna Behera went and talked with them. This could be noticed by the accused and he entertained doubt that it was Kuna Behera who dissuaded the customers not to purchase the buffaloes of the accused. This enraged the accused and he bore grudge against Kuna Behera. On 1.2.1997 at about 6.30 P.M. when Kuna Behera was enjoying heat of the fire with others near the house of Bangali Barik, accused suddenly reached there with a 'Bala' and dealt a blow to the right shoulder of Kuna Behera causing his instant death. Pita Behera, Mita Behera, Chakra Barik were also present there near the fire place and witnessed the occurrence. After the assault the accused went away with the 'Bala'. The said fact was reported in writing by Paramananda Behera, son of deceased at Daitari Police Station on 2.2.1997 at 2 A.M. The said report has been treated as F.I.R. During investigation inquest was held over the dead body, postmortem examination was conducted over the dead body, seizure of articles were made from the spot, statement of witnesses were recorded under section 164 Cr.P.C. The weapon of offence was seized at the instance of accused and after receipt of post mortem examination report, chemical examination report of the seized articles, charge sheet was submitted against the accused under Section 302 of the I.P.C. to face his trial.

3. Prosecution has examined as many as ten witnesses to prove its case. Out of which, P.W.1 is the doctor who conducted postmortem examination of the deceased. P.W.3 is the doctor who collected the nail clippings of the accused. P.W.2 Chakradhar Barik, the uterine brother of the accused. P.Ws. 4 and 5 are eye witnesses to the occurrence. P.W.6 is a post occurrence witness. P.W.7 is the scribe of the F.I.R.(Ext.6) and a witness to the inquest. P.W.8 who is a seizure witness to the seizure of articles like blood stained earth, burnt ashes, date-palm mattress from the spot and proves the seizure list vide Ext. 8,9, and 10. P.W.9 is a witness to the leading to recovery and seizure of Tangia (M.O.I) at the instance of the accused. P.W.10 is the Investigating Officer.

The case of the defence is one of complete denial and he has taken a stand that the case has been foisted at the instance of Pita Behera, Mita Behera and Paramananda Behera due to business rivalry.

4. The learned counsel for the appellant submits that the impugned judgment of conviction and sentence is based on erroneous appreciation of evidence and the Trial Court convicted the appellant on the basis of contradictory statements of the eye witnesses hence the impugned order is liable to be set aside and the appellant is entitled for acquittal. In support of his contention he has cited the decisions reported in Indrasan Vrs. State of Uttar Pradesh , (2009) 14 SCC 532, Ranjit Sarkar Vrs. State of Tripura , (2016) 15 SCC 756, Balbir Singh Vrs. State of Punjab , (1995) Supp3 SCC 472, Johny Vrs. State of Kerala , (2011) 14 SCC 158, Thangaiya Vrs. State of Tamilnadu , (2005) 9 SCC 650.

5. The learned Addl. Standing Counsel strenuously contended that the trial Court considering the evidence of eye witnesses i.e., P.W.4 and P.W.5 as well as the post mortem examination report under Ext.1 passed the impugned judgment of conviction. Therefore the sentence imposed on the appellant has been pr