JUDGMENT Learned Sessions Judge, Sundargarh delivered impugned judgment on 30.4.2004 in Sessions Trial No.161 of 2000 convicting the appellant for commission of offence under Section 302, IPC and sentencing him to undergo imprisonment for life and to pay a fine of Rs.5,000/-, in default to undergo R.I. for one year. The convicted accused person thus preferred this appeal from the jail. 2.The prosecution case in brief is that the appellant, his wife (P.W.2) and their children were residing in one house at Markey Pada of village Jharbeda. Due to the drinking habit of the appellant, there was strained relationship between the appellant and his son (deceased) as the former was squandering money on drinks. On the date of occurrence, the appellant and the deceased were alone present in their house. While the deceased was lying on a mat, the appellant committed his murder by giving blows by means of an axe on his head, neck and chest. The matter was reported before the O.I.C., Kutra Police Station by the informant (P.W.1). Thereafter, the I.O. searched for the appellant, registered the case and investigated the matter. In course of investigation, the I.O. visited the spot, held inquest over the dead body of the deceased, sent the same for post mortem examination, examined the informant and other witnesses, seized the incriminating material objects like wearing apparels of the deceased and the appellant, weapon of offence, blood stained and sample earth from the spot and upon receipt of post mortem report, he got the weapon of offence examined by the doctor, who had conducted post mortem examination. After completion of investigation, the I.O. submitted the charge sheet under Section 302, IPC against the present appellant. The defence plea is one of complete denial. 3.The prosecution in order to prove charge, examined as many as thirteen witnesses including the Doctor and the Investigating Officer and exhibited 16 documents. From the side of prosecution some materials were proved as material objects. The defence examined none. On completion of trial, the learned Sessions Judge, Sundargarh convicted the appellant under Section 302, IPC basing upon the circumstantial evidence. 4.Mr. D. Mohanty, learned counsel for the appellant assails the judgment on the following grounds : (i)There is no eye-witness to the occurrence or any direct no material against the present appellant. The defence examined none. On completion of trial, the learned Sessions Judge, Sundargarh convicted the appellant under Section 302, IPC basing upon the circumstantial evidence. 4.Mr. D. Mohanty, learned counsel for the appellant assails the judgment on the following grounds : (i)There is no eye-witness to the occurrence or any direct no material against the present appellant. Only P.W.2 had seen that the deceased and the appellant were alone present in their house when she left the house. According to Mr. Mohanty, she is an interested witness as there was ill-feeling between the appellant husband and wife. Therefore, her version ought not to be believed. (ii)Secondly, he contended that P.W.8 cannot be described as a witness to the extra judicial confession as there exists no material to that effect. (iii)Lastly and in alternative, he submitted that the case is not coming under Section 302, IPC but is coming under Section 304, IPC since the appellant was in a drunken state. 5.Mr. Sk. Zafarulla, learned Additional Standing Counsel vehemently contends that P.W.2 is the wife of the appellant and mother of the deceased. She specifically stated that when she left the house at about 2 P.M., at that time, her son Prafulla (deceased) and her husband (appellant) were along present in the house. There was a dispute between the appellant and deceased as the appellant was in the habit of withdrawing money from the Bank and squandering the same on drinks. The appellant had quarreled with P.W.2 in a drunken condition. From the wearing apparels of the appellant, blood stain was detected by the Chemical Examiner. The appellant did not offer any explanation on this. P.W.8 is a witness to the extra-judicial confession before whom the appellant had confessed his guilt. P.W. 13, who is the co-villager, has stated that he heard the cries of Silwanti (since dead). Then he saw that the appellant kept a ‘Budia’ (Tangia) in the thatched roof of their house and then went away. Therefore, Mr. Zafarulla contends that chain of circumstance being complete, there is no infirmity in the impugned judgment. Lastly, he submits that the present case is clearly covered under Section 302, IPC not under Section 304, IPC. 6.Perused the L.C.R. and gone through the evidence minutely. P.W. 1 is the informant. In his examination-in-chief, he deposed that the occurrence took place on 16.8.99. Lastly, he submits that the present case is clearly covered under Section 302, IPC not under Section 304, IPC. 6.Perused the L.C.R. and gone through the evidence minutely. P.W. 1 is the informant. In his examination-in-chief, he deposed that the occurrence took place on 16.8.99. On that day, the appellant and his son (deceased) were alone present in the house and other persons had gone either to cut grass or to read in the School. There was some dispute between the appellant and his son (deceased). On the date of occurrence, P.W.1 has got information from one Lusia Kandulena that the appellant had committed murder of his son (deceased). Hearing such information P.W.1 rushed to the house of the appellant and found the dead body of the deceased lying inside the house with bleeding injuries on the left side head and neck. At that time, the appellant was not present in the house. The occurrence was witnessed by Silwanti Khalko, who has died in the meantime. When P.W.1 entered inside the house of the appellant, he also noticed that the floor was covered with blood where the dead body of the deceased was lying. Near the spot, Silwanti Khalko declared before P.W.1 that the appellant committed murder of his son (deceased) by means of an axe when nobody was in the house. She further stated before P.W.1 that the appellant washed the axe and kept the same on the thatched roof of the house. Then P.W.1 went to Kutra police station and reported the matter before the O.I.C., who reduced his report into writing, readover and explained the same to P.W.1. P.W.1 proved the said report under Ext.1. In the cross-examination, he admitted that the appellant was not pulling on well with his wife (P.W.2), son (deceased), daughter, etc. because of the drinking habit. P.W.2 is the mother of the deceased and wife of the appellant. In her examination-in-chief, she deposed that one of her sons namely, Binod Markey had been to the grazing fields with the bullocks and her younger daughter and another son had been to the school. When P.W.2 returned from the work at about 12 noon, at that time, the appellant also returned to the house. At about 1 P.M., her son, Prafulla (deceased) returned and lied down. A bit later, her son (deceased) asked for rice. When P.W.2 returned from the work at about 12 noon, at that time, the appellant also returned to the house. At about 1 P.M., her son, Prafulla (deceased) returned and lied down. A bit later, her son (deceased) asked for rice. She told him that he should bring rice himself and eat the same. Thereafter, P.W.2 left the house at about 2 P.M. At that time her son (deceased) and her husband (appellant) were alone present in the house. P.W.2 further deposed that the house of Silwanti Khalko (since dead) and her husband was situated just in front of her house. They had seen the entire occurrence. P.W.2 deposed that previously there was dispute between the appellant and the deceased. But the appellant was in the habit of withdrawing money from the Bank and squandering the same on drinks. On the previous Friday of the date of occurrence, the appellant quarreled with his wife (P.W.2) in a drunken condition. P.W.2 narrated before her son (deceased) that his father (appellant) has picked up quarrel with her in an inebriated condition. Then her son (deceased) went and scolded his father (appellant). Again, on the date of occurrence, P.W.2 heard the appellant scolding the deceased as the deceased was living on the earnings of the appellant and he declared that he would kill him. At about 3 P.M., Binod (son of P.W.2) came running to his mother (P.W.2) and informed that his elder brother (deceased) had been hacked to death by the appellant by means of an axe. Then P.W.2 came running to her house and found that the deceased was lying inside. She found three cut injuries on the head of the deceased and another injury on his neck. There was a pool of blood near the dead body. At that time, a dibri was also burning there. At that time, Silwanti (since dead) informed her that her husband had committed murder of the deceased by means of an axe. She stated that she had seen the occurrence herself. She further stated before P.W.2 that after committing the murder, the appellant washed the axe and kept the same in the wooden plank of the roof of the house and then went away. She stated that she had seen the occurrence herself. She further stated before P.W.2 that after committing the murder, the appellant washed the axe and kept the same in the wooden plank of the roof of the house and then went away. In the cross-examination, she admitted that the deceased was working as a Khalasi in Anil Company and he used to stay at home for about 2 to 3 days per moth. Rest of the time, he was touring in his vehicle. P.W.2 was not pulling on well with the appellant as he used to assault her. Many time, the deceased had forbidden the appellant from drinking. On previous occasions the appellant also threatened to kill the deceased. He used to do so in drunken condition. In the cross-examination, nothing adverse has been elicited. P.W. 3 is the son of the appellant and brother of the deceased. In his examination-in-chief, he deposed that there was dispute between the deceased and the appellant regarding withdrawal of money from the Bank and for that reason, the appellant had assaulted the deceased few days prior to the occurrence. At about 2.30 P.M. when P.W.3 returned home for taking meal, Silwanti Khalko told him that his father (appellant) had committed murder of his brother (deceased) by means of an axe and kept the axe on the roof. In the cross-examination, P.W.3 admitted that he took the cattle for grazing in the morning. He came to the house at about 12 noon first, took his meal and then went to the house of his friend which situated near his house. The distance between his house and his friend’s house would be about 100 metres. He went to the house of his friend at about 2.10 P.M. When he was proceeding towards the grazing field, the got information about the occurrence from Silwanti Khalko (since dead). P.W.3 further admitted that about 10 days prior to the occurrence, there was quarrel between the appellant and the deceased. Generally such quarrel was arising between them because of the drunkenness of the appellant. P.W.4 is the brother of the appellant. In his examination-in-chief, he deposed that the appellant was in the habit of picking up quarrel with the members of his family in drunken condition and deceased used to protest such action of the appellant. Generally such quarrel was arising between them because of the drunkenness of the appellant. P.W.4 is the brother of the appellant. In his examination-in-chief, he deposed that the appellant was in the habit of picking up quarrel with the members of his family in drunken condition and deceased used to protest such action of the appellant. He further stated that on the date of occurrence, at about 12 noon, he went to take his bath. He returned home after 2 P.M. No sooner he reached his house, he heard “THO THO SOUND”. Thinking that some body might be cutting wood, he came out and peeped into the house of the appellant. Inside the house of the appellant there was a bit dark and a dibri was burning. He saw that the deceased was lying inside the floor of the house with bleeding injury on his neck. At that time the appellant was standing there and he was holding a blood stained axe. Then P.W.4 saw the appellant coming out to the front Courtyard holding the blood-stained axe in his hand and his shirt was stained with blood. At that time his wife-Silwanti Khalko (since dead) was also there in the front side Courtyard. Before his arrival in front of the occurrence house, his wife was already there. In the cross-examination, P.W.4 admitted that there was no dispute between himself and the appellant with respect to partition of his ancestral lands. Since his childhood, he did not have good relationship with the appellant. The appellant had also no good relation with his wife. P.W.4 further admitted that he had not stated before the I.O. that he returned home after 2 P.M.; no sooner he reached his house, he heard “THO THO SOUND”; thinking that some body might be cutting wood, he came out and peeped into the house of the appellant. Inside the house of the appellant there was a bit dark and a Dibri was burning inside the house. He saw the deceased lying inside the floor of the house with bleeding injury on his neck. At that time the appellant was standing there and holding a blood stained axe. He further admitted that there was no window in the room in which the occurrence took place. The size of the room was 10 feet x 15 feet. He has not seen the appellant giving blows to the deceased. At that time the appellant was standing there and holding a blood stained axe. He further admitted that there was no window in the room in which the occurrence took place. The size of the room was 10 feet x 15 feet. He has not seen the appellant giving blows to the deceased. P.W.5 is a witness to the seizure. He proved the seizure list under Ext.2. In his examination-in-chief, he deposed that the police seized one axe which was there in the tiles of the roof of the house of the appellant and deceased. In the cross-examination, he admitted that after bringing out the axe, the I.O. asked him to sign on the seizure list. He could not say who brought out the axe from the roof. P.W.6 is co-villager. He proved the seizure list under Ext.4 with regard to seizure of Banian (M.O.I.) and Lungi (M.O.II) from the appellant. He also proved seizure list under Ext.5 with regard to seizure of blood stained mat, some sample earth from the spot and blood stained muffler. In the cross-examination, he admitted that in the morning he had seen the appellant wearing banian and lungi. P.W.7 is another seizure witness with regard to the wearing apparels of the deceased. P.W.8 is a co-villager. In his examination-in-chief, he deposed that on the date of occurrence at about 3 P.M., he was present in the house. The appellant came to him and confessed before him that he had committed murder of his son (deceased). P.W.8 noticed some blood like stains on his cloth. He asked the appellant how he committed the murder of his son. The appellant further stated before P.W.8 that he committed the murder by means of a Budia (Axe). He further deposed that he went to the spot and found that the deceased was lying dead inside the house with bleeding injury. Silwanti stated before him that the appellant committed murder of the deceased. In the cross-examination, P.W.8 admitted that his house is at a distance of 200 metres from the house of the appellant. He further admitted that when the appellant came to him, he noticed blood stains on his lungi. He did not notice any stains on the wearing shirt. It was a blue-check lungi. When the appellant came to him, his wife was present in the house. He further admitted that when the appellant came to him, he noticed blood stains on his lungi. He did not notice any stains on the wearing shirt. It was a blue-check lungi. When the appellant came to him, his wife was present in the house. P.W.9 was a Police Constable and a witness to the inquest. He proved the Command Certificate and dead body Challan under Exts.8 and 9 respectively. P.W. 10 is the doctor, who conducted autopsy and found the following injuries : “External Injuries : 1. Incised wound of the size 3” x 3” x 2” on root of the neck. 2. Multiple abrasions on the anterior part of the chest-wall. 3. Incised wound of the size 2” x 1” x ¼” situated on the scalp on the right temporal region. 4. Incised wound of the size 2” x 1” x ¼” on right parietal region. Internal Injuries (i)The larynx and trachea incised at the level of superior border of sternum. (ii)The right common carotid artery was cut at the root of the neck and was empty. (iii)The muscles at the root of the neck were lacerated at the level of external injury No.1. (iv)Right clavicle was found to be fractured at the medial side. (v)Sternum was fractured at two places.” P.W.10 opined that all the injuries were ante-mortem in nature. External injury No.1 with its corresponding internal injuries was sufficient by itself to cause the death of the deceased in ordinary course of nature. The cause of death was due to shock and haemorrhage. He proved the post-mortem examination report under Ext.8. In the cross-examination, P.W.10 admitted that abrasions could not be possible by sharp cutting weapon like axe. The external injuries like abrasions could be possible by the blunt side of the axe. P.W.11 is the doctor attached to Kutra C.H.C. In the examination-in-chief, he deposed that he collected the sample blood of the appellant and his nail clippings. He proved the report under Ext.10/1. P.W.12 is the O.I.C. of Kutra Police Station. He registered the case, went to the spot and prepared the spot map. He held inquest over the dead body of the deceased and prepared the inquest report. On 17.8.1999, he arrested the appellant, who surrendered before the police station. He prepared Station Diary Entry regarding surrender of the appellant at the police station. He registered the case, went to the spot and prepared the spot map. He held inquest over the dead body of the deceased and prepared the inquest report. On 17.8.1999, he arrested the appellant, who surrendered before the police station. He prepared Station Diary Entry regarding surrender of the appellant at the police station. He also seized the waring apparels of the appellant, i.e., one banian and lungi. He sent the material objects for chemical examination. After completion of investigation, he submitted charge sheet against the appellant under Section 302, IPC. It transpires from the investigation that at the time of occurrence Silwanti Khalko (since dead) was inside her house and occurrence took place inside the house of the appellant. In the cross-examination by the SDC, P.W.12 admitted that the place where the murder took place was not visible from the place where Silwanti was present by the time of occurrence. P.W.13 is a co-villager and relation of the deceased. In his examination-in-chief, he deposed that at about 3 P.M. he heard the cries of Silwanti Markey. She was crying that her son has been murdered by her husband. Then P.W.13 saw that the appellant kept a Budia in the thatched roof of their house and then went away. In the cross-examination, he denied the suggestion that the appellant was not pulling on well with him. 7.On analyzing the entire evidence, it is crystal clear that the death of the deceased was homicidal in nature. P.W.2 is the wife of the appellant and mother of the deceased. When she left the house, at 2 P.M., the appellant and the deceased were alone present in the house. There is nothing to disbelieve the statement of P.W.2 since she is the mother of the deceased and wife of the appellant. There is no material that she deposed falsely to ensure the conviction of her husband (appellant). P.W.3 is the brother of the deceased and son of the appellant. He stated about the motive that there was dispute between the appellant and the deceased regarding withdrawal of money from the Bank. He stated that when he returned home to take meal at about 2.30 P.M., Silwanti Khalko (since dead) told him that his father had committed murder of his brother (deceased) by means of an axe and kept the axe on the roof. He stated that when he returned home to take meal at about 2.30 P.M., Silwanti Khalko (since dead) told him that his father had committed murder of his brother (deceased) by means of an axe and kept the axe on the roof. Thus the time period between the deceased was last seen alive and the occurrence is very short. Thus the learned Court below has rightly held that last seen aspect form a very strong circumstance against the appellant. P.W.4 is the husband of Silwanti Kahlko and brother of the appellant. In fact he had not seen the occurrence. On scrutinizing the evidence of P.W.4, it transpires that he developed the story in the Court from time to time. In the cross-examination, he admitted that he had not stated before the I.O. that the appellant was holding blood stained axe and that he saw a dead body lying in the floor of the house with bleeding injury on his neck. Therefore, he is not a trustworthy witness. P.W.8 is a co-villager before whom the appellant confessed his guilt. He also noticed some blood stains on the wearing apparels of the appellant. The appellant confessed before him that he committed the murder of his son (deceased) by means of an axe. P.W.8 appears to be a credible witness and he has not motive to falsely implicate the appellant. Thus the learned trial Court has correctly appreciated the evidence of P.W.8. Further, blood stained lungi and axe were sent for chemical examination and in the said examination, human blood was detected from the said lungi and axe. But no explanation was given by the appellant as to how human blood came to the said lungi and axe. The doctor (P.W.10) has also made it clear that the injuries suffered by the deceased was possible by axe. 8.Taking into consideration the evidence of P.Ws.2, 3, 8 and 10 and the Chemical Examination Report, it is crystal clear that chain of circumstance is complete and the present appellant is the author of the crime. Further we reject the contention of the appellant that present one is a case under Section 304, IPC and not under Section 302, IPC as there exits no material in support of such contention. 9.Accordingly the impugned judgment of conviction and sentence passed by the learned Sessions Judge, Sundargarh is confirmed and the Jail Criminal Appeal is dismissed. Appeal dismissed.