HIGH COURT OF ORISSA, CUTTACK JAIL CRIMINAL APPEAL NO.142 OF 1999 From the judgment dated 15.04.1999 passed by Shri A.K.Parichha, Sessions Judge, Ganjam-Gajapati at Berhampur, in S.C. No. 188 of 1998. Biswanath Sabar ………. Appellant Versus State of Orissa ……….. Respondent For Appellant - Mr. G.S.Pani. For Respondent - Mr. J.P. Pattnaik, Additional Govt. Advocate. PRESENT THE HON’BLE SHRI JUSTICE PRADIP MOHANTY A N D THE HON’BLE SHRI JUSTICE B.P.RAY -------------------------------------------------------------------------------------- Date of hearing & judgment : 27.01.2010 PRADIP MOHANTY, J. The appellant has assailed the judgment and order dated 15.04.1999 passed by the learned Sessions Judge, Ganjam-Gajapati, Berhampur in S.C. No. 188 of 1998 convicting him under Section 302, IPC and sentencing him to undergo imprisonment for life. 2. Case of the prosecution is that on 31.01.1998 the goats of appellant’s family had damaged the ‘mung’ crop of the deceased. In the evening, the deceased and Sankar Sabar, brother of the appellant, were quarreling with each other near a tamarind tree situated adjacent to the house of the appellant over that issue. At that time, the appellant was carrying utensils for a fest to be given by one kailash Sahoo. Seeing the two (deceased and Sankar) quarrelling, he entered inside his house, brought out an axe, challenged the deceased and dealt a blow with that axe on his left shoulder. When appellant dealt the second blow with the axe he held, the deceased raised his left hand to ward off and in the process received injury on his left hand. Thereafter, deceased started running towards his house to save his life, but appellant chased him and dealt a third blow with the said axe on the back of the deceased. The deceased somehow went up to his house and collapsed there. When the family members of the deceased and some villagers were carrying him to the hospital, he died on the way. P.W.8 Ganesh Sabar lodged F.I.R. on receipt of which police registered the case, took up investigation and after its closure filed charge sheet against the appellant under section 302, IPC. 3. The plea of the accused is one of complete denial. His specific plea is that due to previous enmity, he has been falsely implicated in the case. 4. In order to prove its case, prosecution examined as many as eleven witnesses including the doctor and the I.Os. and exhibited thirteen documents. Defence examined none. 5. The learned Sessions Judge after conclusion of the trial convicted the appellant under section 302, IPC and sentenced him to undergo imprisonment for life with the finding that the very fact that the appellant dealt two blows and when the deceased was running away he chased and dealt the third blow indicates that his intention was to cause death of the deceased and thus the offence committed by the accused squarely comes under section 302, IPC. 6. Mr. Pani, learned counsel for the appellant assails the judgment of conviction on the following grounds: (i) Most of the witnesses on whose evidence reliance has been placed for recording conviction are related to the deceased and as such are interested witness. (ii) The prosecution witnesses are inconsistent in the description of the place of occurrence and, therefore, their statements are unreliable. (iii) The shifting of place of occurrence shows that the prosecution has suppressed the true story of the case. 2 7. Mr. Pattnaik, learned Additional Government Advocate vehemently contends that there is no discrepancy in the evidence of the eye witnesses. The evidence of P.W.8 is very clear and cogent and is supported by the evidence of P.W.2, a co-villager and an independent witness. The medical evidence also corroborates the ocular testimony. He further submits that in the axe (M.O.I), which was seized from the possession of the appellant, blood-stain was found and no explanation was given by the appellant. Therefore, there is no infirmity or illegality committed by the trial court in convicting the appellant. 8. Perused the LCR. P.W.8 is the informant and brother of the deceased. He is an ocular witness. He specifically stated in his evidence that the appellant was there at the marriage ceremony of Kailash’s son. He rushed from that place to the place where Shankar and deceased were quarreling. He challenged the deceased and then entered into the house of Shankar, brought out an axe (tangia) and dealt a blow on the left shoulder of the deceased. When the deceased stepped back after that blow, the appellant dealt the second blow with the said axe and it caused injury on the left forearm of the deceased. The deceased started running towards his house to save his life, but the appellant chased him and dealt the third blow on the back of the deceased. The deceased somehow managed to reach his house and collapsed. All the brothers of the deceased and the co-villagers carried him on a cot to the hospital but on the way he died. On the next date, he lodged FIR before Nuagaon Police Station. He proved the FIR as Ext.8 and his signature thereon as Ext.8/1. He is also a witness to the seizure of M.O.I. (axe). Nothing has been elicited through cross- examination to discard his evidence. His evidence has been substantially corroborated by P.Ws.1, 2, 6, 7 and 9. The FIR also corroborates the evidence of P.W.8. P.W.1 is the brother of the deceased. He specifically stated that while he was in the house of one Kailash, where the marriage ceremony was going on, hearing hullah he came to the spot and found the appellant dealing three axe blows on the deceased. The appellant dealt the first axe blow on the left shoulder, the second blow on the left hand and the third blow on the back of the deceased when the deceased was running away for his life. In cross-examination P.W.1 has affirmed that he saw the accused dealing tangia blows on the shoulder and left hand of the deceased. P.W.2 is a co-villager who saw a part of the occurrence. He stated in his evidence that while he was going to attend the marriage ceremony of 3 one Bhalu, he heard hullah from the side of the tamarind tree, rushed to the spot and found the appellant dealing an axe blow on the back of the deceased while he was running away towards his house. Thereafter, they shifted the deceased to the hospital but on the way he succumbed to the injuries. Nothing has been elicited through cross-examination to disbelieve his evidence. P.W.4 is a witness to the seizure of blood stained earth, sample earth and blood stained cloth of the deceased. P.W.5 is the constable and a witness to the inquest. P.W.6 is the father of the deceased. He stated in his evidence that after his return at 6.00 PM he found that the deceased was lying on the front verendah of his house with cut injuries. P.W.7 is the Grama Rakhi. He specifically stated that the father and the brother of the deceased informed him that the appellant had attacked the deceased with an axe and fled away. Thereafter, he came to the village and found the dead body of the deceased. He guarded the dead body till arrival of the police. P.W.9 is the uncle of the deceased, who specifically stated that he saw the accused dealing axe blow on the back of the deceased, when the deceased was running away towards his house. After dealing the axe blow, the accused ran back into his house with the axe. Nothing has been elicited through cross-examination to disbelieve his evidence. P.W.10, who turned hostile, has admitted in cross- examination that when the deceased ran up to his house with bleeding condition, dusk had fallen and there was semi-darkness. P.W.11 is the I.O. who registered the case, investigated into the matter and seized the axe (M.O.I), blood stained earth, and sample earth. In cross-examination, he admits that there was enmity between the appellant and the deceased. P.W.1 did not state before him that he saw the appellant dealing Tangia blows on the shoulder and left hand of the deceased. On scrutiny of the above evidence, it is crystal clear that P.W.1 had seen the last part of the occurrence only, that is to say the third blow dealt by the appellant to the deceased when he was running towards his house. But he developed the story with regard to first assault in court. Therefore, his evidence cannot be relied upon as a whole. He, however, corroborates the evidence of P.W.9 with regard to assault to the back of the deceased. The evidence of P.W.8 is substantially corroborated by P.Ws.1, 2, 6, 7 and 9. In the axe (M.O.I), which was seized from the possession of the appellant, blood-stain was found and no explanation was given by the appellant. It is true that P.Ws.6, 8 and 9 are the relations of the deceased. But, P.Ws.2 and 7 are not related to the deceased. There is no reason as to why they would falsely implicate the appellant. 4 P.W.3, the doctor, who conducted autopsy over the dead body of the deceased found the following external injuries: (1) Incised chopped wound 7cm x 2.5 cm x bone deep present longitudinally over left shoulder. The lateral end of clavicle was cut. (2) Incised wound 3.5 cm x 1 cm x muscle deep present 13 cm below the left elbow over the dorsal aspect of left forearm. (3) Chopped wound 7 cm x 2.5 cm x chest cavity deep present obliquely from mid line to left side of back 8 cm below the spine of 7th cervical vertebra. He opined that the cause of death was due to shock and haemorrhage as a result of injury to vital organs like lungs and that the injuries found on the deceased are possible by M.O.I. The evidence of P.Ws.2, 7 and 8 coupled with the medical evidence and the blood stain found in the axe leaves no room for doubt that the present appellant is the assailant of the deceased. Therefore, the trial court has rightly found him guilty under section 302, IPC and the impugned judgment of conviction and sentence needs no interference. 9. The Jail Criminal Appeal is dismissed. ………………………….. Pradip Mohanty,J. B.P.RAY, J. I agree. ……………………….. B.P. RAY, J. Orissa High Court, Cuttack Dated 27th Jan.,2010/Routray 5