The main legal point established in the judgment is the distinction between murder and culpable homicide not amounting to murder, based on the absence of premeditation, lack of prior planning, and absence of undue advantage in the appellant's actions.

JUDGMENT

S.K.Mishra,J. - The sole appellant-Trinath Naik has assailed his conviction for the offence under Section 302 of the Indian Penal Code (hereinafter referred to as the "Penal Code" for brevity) by the learned Addl. Sessions Judge, Bhanjanagar in S.C. Case No.47 of 2003/S.C. No.368/2003-GDC. The learned Addl. Sessions Judge has convicted him on 29.1.2005 and sentenced him to undergo rigorous imprisonment for life and to pay a fine of Rs.500/- in default to undergo rigorous imprisonment for three months.

2. The appellant-Trinath Naik happens to be the husband of the deceased. They were married twenty years prior to the occurrence. They were earning their livelihood by collecting fire wood from the forest. On 1.4.2003 at about 6 A.M. accused, Bhabini and others proceeded to the Balabadi jungle for collection of fire wood and charcoal. By the evening, everybody returned except the appellant and his wife. Jatia Naik, brother of Bhabini, and the informant in this case, got the information that during collection of fire wood there was a quarrel between the Bhabini and the appellant. The appellant suspected the character of his wife. Bhabini protested his attitude. Thereafter, Trinath Naik being enraged dealt several tangia blows on her person causing her death. The appellant ran away from the spot with the axe. The informant proceeded to Balabadi and found the dead body of his sister Bhabini. On 2.4.2003 he appeared at Bhanjanagar Police Station at about 1.00 P.M. and presented a written report. The Senior Sub-Inspector of Police, in absence of the I.I.C., treated the said report as F.I.R. and registered P.S. Case No.46/2003 for the offence under Section 302 of the Penal Code and took up investigation.

3. In course of investigation the Investigation Officer, P.W.11, examined the informant in this case, examined witnesses, visited the spot, held inquest on the dead body of the deceased, dispatched the dead body for post mortem and arrested the accused. The accused made a disclosure statement while he was in custody and the I.O. raided the house of Chandra Naik for recovery of the weapon of offence. After completion of investigation, the I.O. submitted charge sheet against the accused for the offence under Section 302 of the Penal Code.

4. The defence took the plea of complete denial.

5. In order to prove its case, the prosecution has examined eleven witnesses. P.W.4, Jatia Naik, is the informant. P.W.1, Pakhi Naik and P.W.2, Tomalo Naik, are the eye witnesses to the occurrence. P.W.5, Niranjan Naik, reached the spot just after the incident. P.W.6, Ghanasyam Naik is a witness to the disclosure statement and is also a seizure witness. P.W.7, Chandra Naik, is the person to whom the appellant sold the iron portion of the tangia. P.W.8, Nirakar Naik, has been declared hostile by the prosecution. P.W.9, Krushna Chandra Padhy, is the Police Constable who escorted the dead body of the deceased. He is also a signatory to the inquest report. P.W.10, Dr. Satyanarayana Mahapatro, has conducted the post mortem examination on the dead body of the deceased and rendered opinion on the examination of the weapon of offence i.e. M.O.III. P.W.11, Uttam Kumar Mohanty, is the Investigating Officer of the case.

The prosecution has also relied upon fifteen documents as exhibits and five material objects. The defence, on the other hand, neither examined any witness nor relied any documents to prove its case.

6. Accepting the evidence of P.W.11 and narration of eye witnesses, P.Ws.1,2 and 5, the learned Addl. Sessions Judge, Bhanjanagar came to the conclusion that the death of the deceased was homicidal in nature and the appellant has committed the offence of murder as he has done the deceased to death having the requisite intention by giving repeated blows by means of the tangia.

7. Mr. B.K.Ragada, learned counsel appearing for the appellant, submits that though the appellant does not dispute the homicidal nature of the death of the deceased or the findings