MOHANTI, J. - (1.)THIS is a reference under Section 366 of the Code of Criminal Procedure by the learned Additional Sessions Judge of Puri for confirmation of the sentence of death passed by him upon Mity alias Narsingh Prusty of village Baghuapasi under Dasapalla Police Station in the district of Puri. There is also an appeal by the condemned prisoner. Both the reference and the appeal have been heard together and will be disposed of by this judgment.
(2.)THE prisoner along, with his son Indramani Prusty, Wife Padma Dei, daughter Puna Dei and brother Basudeb Prusty were jointly tried for causing the death of Sudarsan Behera of village Digiri in furtherance of their common intention and for causing disappearance of the evidence of murder. After trial, the learned Judge acquitted accused Puna Dei and Padma Dei of all the charges framed against them. He convicted the prisoner under Section 302, Indian Penal Code and the other two accused, namely Indramani Prusty and Basudeb Prusty under Section 201, Indian Penal Code.
3. Prosecution case was that the prisoner had given his daughter Puna Dei in marriage to the deceased Sudarsan Behera. The deceased stayed at the house of his father -in - law for about two years and returned to his own house at Digiri about 10 months prior to the occurrence. In the month of Jan. 1975 Padma Dei had been to the house of the deceased to leave her daughter Puna Dei there. There was an altercation between her and the deceased in course of which she threaten -ed the deceased that he would not return if he at all visited her village. Unfortunately the deceased went to his father -in -law's house in the evening of 31.1.1975 and there he was assaulted by a wooden lathi as a result of which he died. His dead body was carried to a forest locally known as Kalasana and was concealed inside a stone cave. 4. When the deceased did not return home for two days his father Mulia Behera (Po W. 1) went to the house of the prisoner and enquired about his son. At his sight, his daughter -in -law Puna cried by covering her face with her cloth. Being asked about her husband she said that he had not come there. This aroused suspicion in the mind of P. W. 1 who went to Dasapalla Police Station and lodged a report (Ext. 2) on 2.2.1975 upon which a station diary entry was made by the Writer Constable (P. W. 9). He was directed by P. W. 9 to return to village Baghuapasi and to collect information about the deceased with the help of the two constables (P. Ws. 2 and 10) who had been posted there on patrol duty. Then P. W. 1 returned to village Baghuapasi and intimated the two constables who proceeded to the house of the prisoner and enquired about the deceased. It was alleged that while under arrest the prisoner made a statement before the constables that he had concealed the dead body of the deceased inside the stone cave of Kalasana forest. He led the police constables to the forest and pointed out the spot where the dead body was lying. P. W. 1 who accompanied the 'constables identified the dead body to be that of his son Sudarsan. Then the constables watched the dead body and sent the Gramarakhi (p. W. 6) with a report to be delivered at the Police Station. P. W. 18 B. N. Tripathy, the A. S. I. of Police received the report and treated it as F. I. R. He took up investigation and proceeded to the Kalasana forest. He found the dead body lying in the cave and held inquest over it. He despatched the dead body for post -mortem examination and recorded the statements of P. Ws. 1 and 2. Then he left for Baghuapasi. He seized a blood obtained wooden lathi (M.O.), a dhoti (M. O. X) and napkin (M. O. VIII) on production by the prisoner, He also seized a stick, some cloths and a plough -share on production by the accused Indramani Prusty. He further seized an up -rooted door leaf and a door frame (M. Os. III and IV) and some blood obtained earth from the wall of a room in occupation of the accused personsThen he forwarded the accused persons to the Court. 5. Post -mortem examination over the dead body was held by the doctor, P. W. 11 on 3 -2 -75 at 5 P. M. On 4 -2 -75 the doctor examined the prisoner and found some injuries on his person. On 7.2.1975 the accused persons made judicial confessions before the Magistrate, P. W. 12, After completion of investigation the police submitted charge -sheet on 30.4.1975 against all the five accused persons and in due course they were committed to the Court of Session to stand their trial. 6. The prisoner denied the charges and pleaded innocence. During his examination under Section 313, Criminal Procedure Code he retracted the judicial confession and. denied the seizure of the lathi and other articles. He also denied having made any statement leading to discovery of the dead body. 7. That the death of the deceased was homicidal is not disputed by the prisoner. On post -mortem examination the doctor found the following external injuries on the dead body: (1) One lacerated wound 1" X 1/2" on the right side forehead. (2) One lacerated wound 1/2" X 1/4" X 1/4" on the left zygoma. (3) one lacerated wound 1" X 1/4" X 1/4" midway between left eye and left ear. (4) Haematoma of different sizes all over the scalp. (5) Multiple bruises of different sizes on different parts of the body. Internal examination revealed fracture of the right parietal bone, fracture of the second and third ribs of the right side of the chest and clotted blood in the subcutaneous tissues. In the doctor's opinion the injuries were antemortem in nature and could be caused by some hard and blunt weapon like lathis and plough -share M. o's. IV, V and VI. In his opinion the fracture of the right parietal bone was sufficient in the ordinary course of nature to cause death and that the other injuries specially the fracture of the ribs were responsible for accelerating death. The cause of the death in his opinion, was due to shock on account of the injuries. In his confessional statement (Ext. 12) framed against them. He convicted the prisoner under Section 302, Indian Penal Code and the other two accused, namely Indramani Prusty and Basudeb Prusty under Section 201, Indian Penal Code.

Prosecution case was that the prisoner had given his daughter Puna Dei in marriage to the deceased Sudarsan Behera. The deceased stayed at the house of his father -in - law for about two years and returned to his own house at Digiri about 10 months prior to the occurrence. In the month of Jan. 1975 Padma Dei had been to the house of the deceased to leave her daughter Puna Dei there. There was an altercation between her and the deceased in course of which she threaten -ed the deceased that he would not return if he at all visited her village. Unfortunately the deceased went to his father -in -law's house in the evening of 31.1.1975 and there he was assaulted by a wooden lathi as a result of which he died. His dead body was carried to a forest locally known as Kalasana and was concealed inside a stone cave.

(3.)WHEN the deceased did not return home for two days his father Mulia Behera (Po W. 1) went to the house of the prisoner and enquired about his son. At his sight, his daughter -in -law Puna cried by covering her face with her cloth. Being asked about her husband she said that he had not come there. This aroused suspicion in the mind of P. W. 1 who went to Dasapalla Police Station and lodged a report (Ext. 2) on 2.2.1975 upon which a station diary entry was made by the Writer Constable (P. W. 9). He was directed by P. W. 9 to return to village Baghuapasi and to collect information about the deceased with the help of the two constables (P. Ws. 2 and 10) who had been posted there on patrol duty. Then P. W. 1 returned to village Baghuapasi and intimated the two constables who proceeded to the house of the prisoner and enquired about the deceased. It was alleged that while under arrest the prisoner made a statement before the constables that he had concealed the dead body of the deceased inside the stone cave of Kalasana forest. He led the police constables to the forest and pointed out the spot where the dead body was lying. P. W. 1 who accompanied the 'constables identified the dead body to be that of his son Sudarsan. Then the constables watched the dead body and sent the Gramarakhi (p. W. 6) with a report to be delivered at the Police Station. P. W. 18 B. N. Tripathy, the A. S. I. of Police received the report and treated it as F. I. R. He took up investigation and proceeded to the Kalasana forest. He found the dead body lying in the cave and held inquest over it. He despatched the dead body for post -mortem examination and recorded the statements of P. Ws. 1 and 2. Then he left for Baghuapasi. He seized a blood obtained wooden lathi (M.O.), a dhoti (M. O. X) and napkin (M. O. VIII) on production by the prisoner, He also seized a stick, some cloths and a plough -share on production by the accused Indramani Prusty. He further seized an up -rooted door leaf and a door frame (M. Os. III and IV) and some blood obtained earth from the wall of a room in occupation of the accused personsThen he forwarded the accused persons to the Court.