ORISSA HIGH COURT, CUTTACK JAIL CRIMINAL APPEAL NO.15 OF 2001 From the judgment dated 22.01.2000 passed by Sri K.B. Swain, Additional Sessions Judge, Rourkela in S.T. Case No. 31/7 of 1998. Bhuklu @ Manga Munda ……… Appellant Versus State of Orissa ……… Respondent For appellant : Mr. A. Mohanty For respondent : Mr. J.P. Pattnaik, Addl. Government Advocate PRESENT : THE HONOURABLE SHRI JUSTICE PRADIP MOHANTY AND THE HONOURABLE SHRI JUSTICE B.P. RAY ------------------------------------------------------------------------------------------- Date of hearing & judgment : 29.01.2010 ------------------------------------------------------------------------------------------- PRADIP MOHANTY, J. This jail criminal appeal is directed against the judgment of conviction and order of sentence dated 22.01.2000 passed by the learned Additional Sessions Judge, Rourkela in S.T. Case No.31/7 of 1998 convicting the appellant under Section 302, IPC and sentencing him to undergo imprisonment for life and to pay a fine of Rs.1000/- in default to undergo rigorous imprisonment for one month more. 2. The case of the prosecution as unfolded during trial is that on 05.09.1997 the appellant enquired from his wife (P.W.2) about the parentage of her seven months old last daughter (deceased). His wife replied that, she was his daughter. The appellant got angry, snatched away the deceased from P.W.2, killed her by a tangia and put her dead body in an earthen pot. The further case of the prosecution is that, deceased was born when the appellant was detained in jail custody in connection with a case. So the appellant was suspecting her parentage and was quarrelling with his wife. The matter was reported to the police by P.W.1, the brother of P.W.2. Police registered the case, proceeded with investigation and after its completion, submitted charge-sheet against the appellant under section 302, IPC. 3. The plea of the appellant is complete denial of the allegation. His further plea is that he was not mentally sound and a false case has been instituted against him. 4. To substantiate the charge, prosecution has examined as many as eight witnesses including the doctor and two investigating officers, and exhibited thirteen documents. The defence has examined none. 5. The learned Additional Sessions Judge, Rourkela after conclusion of the trial, by his judgment dated 22.01.2000 convicted the appellant under Section 302, IPC and sentenced him to undergo imprisonment for life and to pay a fine of Rs.1000/- in default to undergo further rigorous imprisonment for one month with the finding that the prosecution has successfully established the charge under Section 302 I.P.C. against the present appellant. 6. Mr. Mohanty, learned counsel appearing for the appellant assails the judgment on the following grounds: (i) There are major contradictions in the evidence of P.Ws.2 and 3. 2 (ii) In view of the admission of P.W.3 in her cross- examination that she deposed as per instruction of her mother (P.W.2), the trial court should not have relied her evidence for recording conviction of the appellant. (iii) His alternative submission is that even if it is assumed that the appellant is responsible for the death of the deceased, the act committed by him may come under the ambit of section 304 Part-I, IPC but not under section 302, IPC, since it is alleged that the appellant getting enraged on the reply of P.W.2 about the parentage of the deceased snatched away the deceased from P.W.2 and killed her by a tangia. 7. Mr. Pattnaik, learned Additional Government Advocate, on the other hand, submits that P.Ws. 2 and 3 are the eye witnesses to the occurrence. They specifically state that the appellant killed the deceased by means of a tangia and put her dead body inside an earthen pot. Evidence of P.Ws.2 and 3 is very clear, cogent and consistent. Therefore, there is no material before this Court to interfere with the impugned judgment. 8. Perused the LCR. P.W.1 is the informant and brother of P.W.2. He stated that he heard the incident from his sister (PW 2), went to the spot and found the deceased lying dead. He reported the matter before the police. P.W.2 is the wife of the appellant and mother of the deceased. She stated in her evidence that her husband (appellant) enquired from her the parentage of her last daughter (deceased). When she replied that she (deceased) was his daughter, the appellant got angry, snatched away the deceased from her, killed her by means of a tangia and put the dead body inside an earthen pot. In cross- examination, only suggestion given to P.W.2 was that her daughter (deceased) was not assaulted by the appellant but she died being sick, to which she stoutly 3 denied. Nothing has been elicited through cross-examination to discredit her testimony. P.W.3 is the daughter of the appellant as well as of P.W.2. She was examined as a child witness. She deposed that accused cut the deceased and put her inside a ‘GAGRI’ (pot). But in cross-examination she admitted that her mother instructed her to make a statement like that. When there is a specific certificate by the trial court that P.W.3 was unable to understand the questions and P.W.3 herself has admitted in cross-examination that she was tutored by her mother, the trial court should not have accepted her evidence. P.W.4 did not support the prosecution case. P.W.5 stated in his examination-in-chief that he heard the incident from P.W.2 and thereafter did not support the prosecution case for which prosecution declared him hostile and cross-examined him. P.W.6 is a co-villager who stated that after hearing the incident he went to the house of the appellant and found marks of blood on the floor and dead body of the deceased inside the earthen pot. He further stated that both P.Ws.1 and 2 went to Bisra Police Station to report the incident. In cross-examination, he admitted that the appellant was caught hold of by the villagers and brought to his house. P.W.7 is the A.S.I. of police who registered the case, investigated into the matter, prepared the inquest report and seized the blood stained earth. He also seized the weapon of offence, i.e., axe stained with blood on the information given by the appellant. He also seized the wearing apparels of the accused. P.W.8 is the Inspector of police, who took over the charge of investigation from P.W.7 and after completion of investigation submitted charge-sheet. Nothing has been elicited through cross-examination to disbelieve the evidence of P.Ws.7 and 8. The post-mortem report (Ext.7) discloses that there were four external injuries and seven deep incised injuries. The chemical examination report reveals that the blood stained earth, sample earth and half shirt of the accused contained the blood stains of human origin. Human blood stains were also found in the axe (M.O.I). No explanation was given by the appellant in his statement recorded under section 313, Cr.P.C. about the presence of such human blood in M.O.I. 4 9. The evidence of P.W.2 coupled with that of P.W.3 and the F.I.R. clearly establishes that the present appellant is the assailant of the deceased and M.O.I is the weapon of offence. M.O.I was seized by the police, sent for chemical examination and human blood was found in the same. There is no material before this Court to discard the evidence of P.Ws.2 and 3. There is no evidence to the effect that the incident occurred due to sudden provocation. 10. On a careful consideration of the evidence and materials available on record, this Court is of the opinion that the trial court has rightly convicted and sentenced the appellant and the impugned judgment does not warrant interference by this Court. The Jail Criminal Appeal being devoid of any merit is dismissed. ……………………………… PRADIP MOHANTY, J. B.P. RAY, J I agree. ……………………………… B.P.RAY, J Orissa High Court, Cuttack January 29, 2010/Routray 5