PRADIP MOHANTY, J & B.K.NAYAK, J. JCRA. NO.59 OF 2002 (Decided on 23.03.2011) TOFFAN SARBHANG …….. Appellant. .Vrs. STATE OF ORISSA … ….Respondent. CRIMINAL PROCEDURE CODE, 1973 (ACT NO.2 OF 1974) – S.161. For Appellant - Mr. Prem Kumar Mohanty. For Respondent - Mr. S.K.Nayak, Addl. Govt. Advocate PRADIP MOHANTY, J. This appeal is directed against the judgment dated 27.04.2002 passed by the learned Additional Sessions Judge, Sonepur in Sessions case No.43/46 of 2001 convicting the appellant under Section 302, IPC and sentencing him to undergo imprisonment for life. 2. The case of the prosecution as unfolded during the trial is that the accused and his wife-Sumukhi (P.W.7) returned to the house of the informant-Iswara Mahanand (P.W.4), who is the father-in-law if the accused, after working as labourer at Cuttack and earning some amount of money. As P.W.7 stayed in the house of her parents, the accused off and on met her in her parents, house. At that time, the accused had no source of income and was moving hither and thither under the influence of liquor. When Sumukhi fell ill, the appellant did not provide her treatment and, on the other hand, insisted her to accompany him to his house. But, Sumukhi was not ready to go with the accused to his village to lead usual conjugal life with him. One day prior to the occurrence the accused again insisted to take his wife to his won house which was strongly protected by the informant, his sons and Sumukhi (P.W.7). On the next day evening, i.e. , 20th October, 2010, the accused being enraged assaulted the deceased, son of the informant, with a Tabli (M.O.I) near village Fatamunda. On the report of the father-in-law of the accused, police registered the case, sent the dead body for post mortem examination to the doctor, examined the witnesses, arrested the accused , recovered the weapon of offence (M.O.I) and after due completion of investigation filed charge-sheet against the appellant under Section 302, IPC. 3. The plea of the accused was one of complete denial of the prosecution allegation. He specifically stated that he has been falsely implicated in this case. 4. In order to prove its case, prosecution examined as many as 14 witnesses including the doctors and the I.Os and exhibited 16 documents and the defence examined none. The learned trial Judge after conclusion of the trial found the appellant guilty under Section 302, IPC and accordingly convicted him there under and sentenced him to undergo imprisonment for life basing upon the evidence of P.W.8, who is an eyewitness, coupled with the medical evidence and the evidence with regard to recovery of the weapon of offence (Tabli) at the instance of the accused. 5. Mr. Mohanty, learned counsel appearing for the appellant submits that P.W.8 is a chance witness. He was examined two months after the occurrence. His evidence can not be relied upon in view of the decision rendered in the case of State of Orissa v. Udaya Naik and others; 94 (2002) C.L.T. 229. The confession made before a police officer is not admissible under Section 27 of the Evidence Act. Therefore, the same can not be utilized against the appellant in view of settled principle of law reported in the case of Bisikesan Pujari v. the State of Orissa; 2004 (II) OLR 482. 6. Mr. S.K.Nayak, learned Additional Government Advocate vehemently contends that P.W.8, who works as a gardener in the horticulture department and at the relevant time was posted at Sonepur on deputation, is an eyewitness to the occurrence and he has categorically deposed how and in what manner the appellant committed murder of the deceased. Besides, the appellant while in police custody confessed to have murdered the deceased, led the police and gave recovery of the weapon of offence (M.O.I) in presence of the witnesses, as is evident from the evidence of P.Ws.5, 10 and 14. Therefore, no infirmity or illegality has been committed by the trial court so as to interfere with the impugned judgment. 7. Perused the records. The charge against the accused has been established basing on the testimony of P.W.8. He deposed that he worked as a gardener in the horticulture department. One month prior to the occurrence, i.e. on 20.10.2000 he had come to Sonepur on deputation to work in horticulture department. During that period, he was staying in a rented house of Rahasbihari Bar in village Baiganjuri. On the date of occurrence i.e., 20.10.2000, after finishing his office work he sipped a cup of tea at about 6.30 p.m. in the tea stall situated in front of petrol pump and left for his rented house. While he was going towards his rented house on the way, the deceased was going ahead of him in a narrow lane towards western side of petrol pump. While the deceased was going ahead of him, all on a sudden the accused came towards him from a bush holding a tabli and with that tabli he assaulted the deceased causing injury on his neck, cheek and other parts of his body. With the impact of tabli blow the deceased fell on the ground with groaning sound. Seeing the assault on the deceased he was frightened and out of fear he ran away from the place of occurrence leaving the chapal on the spot. He further deposed that since he was a Government servant and since gory killing had taken place in his presence, being afraid of the situation he did not lodge report at the police station on the date of occurrence but on 21.12.2000 he suo motu went to the police station and narrated the incident to the I.O. and his statement was on that day recorded by the I.O. in cross-examination he admitted that the occurrence took place in between 6.30 and 7.00 p.m. and he clearly identified the accused when he killed the deceased with M.O.I. P.W.4 is the informant, father-in-law of the accused and father of the deceased. He deposed that one month prior to the occurrence his daughter (P.W.7) and the accused had returned to his house from Cuttack and the accused took all the money which he and his wife (P.W.7) had earned at Cuttack and left his house. Thereafter, his daughter (P.W.7) fell ill, but the accused did not take her care and come to his house. After some days, the accused came and asked P.W.7 to accompany him to his own house situated in village Laxmimunda. But, P.W.7 did not agree as the accused was moving without work and was always under the influence of liquor. The sons of P.W.4 also denied to leave P.W.7. The accused then left his house. On the next day morning, the deceased-Himanshu as usual went to Dhababahali village for tending cattle. Till 2 evening of the day since the deceased did not return home, P.W.4 and his wife searched for and found him lying injured on the road side of Fatamunda village with multiple injuries on his person. Thereafter, he called some local people and shifted the deceased to the District Headquarters Hospital, Sonepur for his treatment. The doctor after examining the deceased declared him dead. Thereafter, he lodged oral report before Sonepur Police Station which was reduced to writing and he put his LTI in the said report. In cross-examination, he has stated that all the time the accused came to his house after their return from Cuttack, he left his house without his knowledge. The F.I.R. corroborates the statement of P.W.4 (informant). P.W.5 is a witness to leading to discovery. He deposed that the accused while in custody confessed before the police officer to have murdered the deceased by one tabli and stating so he led the police to the place of occurrence where he had concealed the said tabli and gave recovery of the same. The police seized the said tabli in his presence vide seizure list (Ext.5). He proved the seizure list (Ext.5) and his signature thereon marked (Ext5/1). In cross-examination, he has stated that he proceeded to the place where accused had concealed M.O.I. (table) in a Jeep along with the O.I.C. P.W.6 is a co-village and a witness to the seizure of plain earth, blood stained earth and two pairs of chapels from the place of occurrence vide seizure list (Ext.6). He is also a witness to the inquest. He proved the seizure list (Ext.6) and the inquest report (Ext.8) and his signatures thereon marked Ext.6/1 and Ext.8/1. P.W.7 is the wife of the accused and sister of the deceased. She corroborated the evidence of her father (P.W.4). P.W.9 deposed that there was quarrelling between the accused and the family of his wife over leaving of his wife to his house. On being informed, he and some of his villagers brought the deceased in injured condition to the hospital where the deceased was declared brought dead by the doctor. This witness further deposed that he along with father of the deceased had been to Sonepur P.S. and lodged the oral report which was reduced to writing by the O.I.C. and after the FIR was reduced to writing he put his signature on the same. He is also a witness to the inquest and proved the inquest report (Ext.8). P.W.10 is also a witness to the leading to discovery and seizure of tabli (M.O.I) and two pairs of chapels, plain earth and blood stained earth. He proved the seizure lists (Exts.5 and 6) and his signatures thereon marked Exts.5/2 and 6/2. P.W.11 is a person of the locality. He stated that he had seen the appellant moving near the petrol pump at Sonepur holding a tabli a few hours before the deceased was killed. In cross-examination, nothing has been elicited to demolish the above evidence. P.W.12 is the Doctor, who conducted autopsy over the dead body of the deceased and found the following injuries : “(1) Incised would placed on the right cheek. It tailed towards angle of the mouth of size 2” x 1” underlying which right masseter muscle, right mandibular vessel cut through. (2) Chopped would of size 4” x 3” x 2 1/2 “ was placed slantingly over the nape of the neck extending from the right mastoid process to the 5th cervical vertebra, 3 underlying which sterno mastoid muscle trapezius of right side, vertebral muscles with right vertebral vessels and spine and body of 3rd, 4th and 5th cervical vertebra also spinal cord had been cut obliquely at that level. (3) Chopped would of size 3” x 2” x bone deep was placed on the back of the right shoulder joint cutting the outer angle of the right shoulder blade and the ligaments of the right shoulder joint. (4) Incised would of size 3” x 2” x 1” placed on the outer part of the right deltoid muscle. (5) Penetrating would of size 1” x ½” x ½” placed on the right side of the neck ½” below the lobule of the right ear, ante-mortem clots were found present. (6) Penetrating wound of size 1” x ½” x 1” placed on the right side of the neck ½” below the injury no.5. (7) Brown ligature mark of size 3” x 2” placed on the back of the right waist. On dissection of the injury parchment like base or the ligature mark, extravessations of blood present in the subcutaneous tissue.” He opined that the injuries were ante mortem in nature and the death was due to shock and haemorrhage on account of multiple incised wound on the neck. He also opined that all the above injuries except injury no.7 were possible by M.O.I. P.W.13 is a witness to the seizure of wearing apparels of the accused and he proved the said seizure list (Ext.13) and his signature marked Ext.13/1. P.W.14, is the I.O., who registered the case, sent the dead body for post-mortem examination, arrested accused, visited the spot, prepared the spot map and examined the witnesses. On 21.10.2000, he held inquest over the dead body of deceased in the District Headquarters Hospital, Sonepur in presence of the witnesses and prepared the inquest report. He seized some blood stained earth, sample earth, two pairs of chapels from the spot and prepared the seizure list. On the same day, he also seized wearing apparels of deceased. He received the oral report of informant and reduced the same to writing and on the next day he sent the report to court. He first went to the hospital and then proceeded to the place of occurrence. 8. A contention has been raised by Mr. Mohanty that the statement of P.W.8 was recorded two months after the occurrence and he being a chance witness his evidence can not be relied upon for any purpose. In Narinder Kumar v. State of Jammu and Kashmir, (2010) 9 SCC 259, it has been held that there is no fixed rule to determine credibility if the prosecution case has been affected by delay in recording statement of witnesses by police. This aspect has to be measured in background of facts and circumstances of the case. Whether or not delay has affected the credibility of the prosecution is a matter on which no straitjacket formula can be evolved nor any thumb rule prescribed for universal application. In the instant case, the delay in recording the statement of the witnesses has been explained by the prosecution that since P.W.8 is a government servant and as the incident of killing took place in his presence, being frightened he did not lodge report at the police station on the date of occurrence but on 21.12.2000 he suo motu went to the police station and narrated the incident to the I.O., who recorded his statement on that day. Therefore, delay in recording the statement can not affect veracity of the evidence of P.W.8, particularly when he is a man of a distant place and had no animosity with the accused. The evidence of P.W.11 is that he had seen the accused moving near the petrol pump holding a tabli a few hours before the 4 deceased was killed. The prosecution through P.Ws.5, 10 and 14 has clearly established that the accused while in custody confessed his guilt, led the police and the witnesses to the place where he had concealed the weapon of offence (M.O.) and gave recovery of the same. 9. For the reasons stated above, this Court holds that the present appellant and none else is the author of the crime and he has been rightly convicted by the trial court. 10. In the result, the impugned judgment of conviction and sentence passed by the trial court is upheld and the Jail Criminal Appeal is dismissed. Appeal dismissed. 5