PRADIP MOHANTY, J & B.K.PATEL, J. JCRA NO.233 OF 2000 (Decided on 17.10.2011) SIBA BAGH & ANR. ………Appellants .Vrs. STATE OF ORISSA ……….Respondent A. EVIDENCE ACT, 1872 (ACT NO. 1 OF 1872 ) – S.27. B. EVIDCENCE ACT, 1872 (ACT NO.1 OF 1872 ) – S.134. For Appellant - Mrs. Sujata Jena. For Respondent - Mr. B.P.Pradhan . Addl. Govt. Advocate PRADIP MOHANTY, J. This jail criminal appeal is directed against the judgment dated 14.07.2000 passed by the Additional Sessions Judge, Jeypore in Sessions Case No.46 of 1998 convicting both the appellants under Section 302/34 I.P.C. and sentencing them to undergo imprisonment for life. 2. The case of the prosecution as unfolded during trial is that on 11.4.1997 at about 8:30 PM, the O.I.C. of Laxmipur Police Station (P.W.10) got information that an unidentified dead body of a male person was lying in the middle of the road near village Minapali. He entered the said information in the Station Diary and directed the police constable (P.W.8) and the Grama Rakhi to guard the dead body in the night hour. On the next morning at about 7:00 AM, son of the deceased (P.W.4) presented a written report (Ext.6) before P.W.10 at the spot to the effect that the dead body belonged to his father. P.W.10 made endorsement on Ext.6, sent the same to the police station for registration of the case and took up investigation. During the course of investigation on 17.04.1997, P.W.10 examined one Bhagirathi Khosla (P.W.1), who claimed to be a witness to the occurrence. On the basis of the disclosure made by P.W.1, the I.O. arrested the appellants on 18.04.1997. While in custody the appellants confessed their guilt and made disclosure statement, which was recorded under Section 27 of the Indian Evidence Act. They also led the police to the place of concealment and gave recovery of the weapon of offence, i.e., a stone, which was seized in presence of the witnesses. On 10.06.1997, P.W.10 handed over the charge of investigation to P.W.9, who on completion of the investigation filed charge sheet against the appellants under Sections 302/201/34, IPC. 3. During trial, the appellants took the plea of denial and false implication due to prior enmity. 4. In order to prove its case, the prosecution examined as many as eleven witnesses and exhibited twenty-two documents. The defence examined none. 5. Learned Additional Sessions Judge, who tried the case, convicted both the appellants under Section 302/34 IPC mainly basing upon the evidence of the solitary eye witness (P.W.1) and leading to discovery. He, however, acquitted both the appellants of the charge under Sections 201/34 IPC. 6. Mrs.Sujata Jena, learned counsel for the appellants submits that the evidence of P.W.1, who is said to be the sole witness to the occurrence, is shrouded in deep mystery and as such cannot be believed because instead of disclosing the incident before the police immediately he disclosed the same after 4 to 5 days of the occurrence. Leading to discovery of the weapon of offence by the appellants has not been proved by the prosecution. In absence of any corroboration, the conviction of the appellants cannot be sustained on the basis of the evidence of the solitary eye witness (P.W.1), particularly when he has not stated anything in his evidence about the manner of assault by the appellants to the deceased. 7. Mr. Pradhan, learned Additional Government Advocate strongly contends that the evidence of the eye witness (P.W.1) is very clear, cogent and trustworthy. He vividly described about the assault made by the appellants. As he was frightened due to the threat given to him by the appellants, he disclosed the incident after five days of the occurrence. The independent witness (P.W.3) has clearly deposed that both the appellants led the police and the witnesses to the place of concealment and gave recovery of the weapon of offence, i.e., stone (M.O.I) which was stained with blood. The chemical examination report reveals that the wearing apparels of the appellants contained human blood and thereto no explanation has been given by the appellants. Therefore, the impugned judgment does not call for interference by this Court. 8. Keeping the rival submissions in view, this Court minutely examined the oral and documentary evidence available in the LCR. P.W.1 in his examination-in-chief stated that on the date of occurrence at about evening he was returning village after selling baskets at Kutinga. He saw both the appellants assaulting the deceased on the bridge over Jhola. When he asked the appellants as to why they were assaulting the deceased, appellant-Siba threatened him not to take side or else he would be killed. Then, appellant-Siba chased him, for which he ran away from the spot. On the next evening, appellant-Siba came to his house and threatened him saying that if he became a witness in this case, he would be killed. He further stated that because of the threat, he became frightened and kept quite without disclosing about the occurrence to anybody. On the following Thursday, when police came he gathered courage to narrate the incident before him. In cross-examination, he admitted that he saw both the appellants assaulting the deceased on the bridge from a short distance by means of fist and kick blows. Five to six days after the occurrence, he went to the police and narrated about the incident. He also admitted that there were 10 to 12 houses in between his house and the house of the appellant-Siba. On the following day of incident, he heard that Prahallad Bhaina (deceased) died. Nothing substantial has been brought out to demolish the evidence of this witness. P.W.2 stated that on the date of occurrence in the evening he had seen appellant-Siba wearing a lungi and a white banian had wrapped a Chadar on his body. When he learnt that the deceased had been murdered, he went to the spot where the deceased was lying. The police, who was present there, showed him one Chadar lying 2 near the dead body and he (P.W.2) identified the said Chadar was of appellant- Siba. In cross-examination, he admitted that in the evening when he saw appellant-Siba at that time he was going at a distance of 20 cubits from him. P.W.3 stated that after six days of the occurrence, he went to Laxmipur Police Station along with one Ramesh Ch. Turuk and found that the police arrested both the appellants. In their presence, police asked both the appellants about the incident. Both the appellants stated that they would lead the I.O. and point out the stone used by them in the offence. The I.O. recorded the statements of both the appellants. Ext.1 is the statement of appellant-Muku Mandinga and Ext.2 is the statement of appellant-Siba. Then, all of them went near the bridge, i.e., the place of occurrence and after reaching there both the appellants showed the stone, which was used to commit murder of the deceased. The I.O. seized the same under Ext.3. After returning police station, the I.O. seized the wearing apparels of both the appellants under Exts.4 and 5 in his presence. In cross-examination, he admitted that the stone (M.O.I) was not recovered from water of the Jhola and the same was lying on sand. P.W.4 is the son of the deceased and informant of the case. He deposed that on the day of occurrence he and his wife went to his father in-law’s house. On that night, they heard that somebody had been murdered and could not be identified. On the next morning, while they were returning village they saw a dead body lying near the Nala of village Minapai. There was bleeding injury on the dead body and its face was disfigured. But from the wearing apparels he could identify the same to be his father. His father’s Tiffin carrier and Shawl were lying near the dead body. Suspecting foul play, they went to one Prakash Chandra Bhainsa and requested him to scribe a report. The said Prakash Ch. Bhainsa scribed the report and read over and explained to him. Finding the same to be correct, he (P.W.4) put his signature and lodged the said report at Laxmipur Police Station which has been marked Ext.6. P.W.5. is a police constable and a witness to the seizure of wearing apparels of the deceased under Ext.8. P.W.6 is a witness to the seizure of two Shawls, one Dhala and one Tiffin carrier under Ext.9. He is also a witness to the seizure of a black stone, some sample earth, some bloodstained earth and some clothes under Ext.10 and a red colour towel under Ext.11. P.W.7 is a witness to the inquest and proved the inquest report (Ext.7). P.W.8 is the police constable who guarded the dead body. P.W.9 is the Circle Inspector of Police, Koraput, who took charge of the investigation from P.W.10 and on being satisfied about the existence of a prima facie case submitted charge sheet against both the appellants under Sections 302/201/34 IPC. P.W.10 is the Officer in-Charge of Laxmipur Police Station and I.O. of the case. He stated that after getting information that an un-identified dead body of a male person was lying on the middle of the road near Village Minapali, he made an entry in the station diary and directed P.W.8 and the Grama Rakhi to guard the dead body in the night. On the next morning, P.W.4 appeared before him at the spot and presented a written report (Ext.6). On receipt of Ext.6 he sent the same to the police station for registration of a case and as it revealed a cognizable case he took up investigation. During investigation, he examined the complainant and other witnesses and recorded their statement. He also held inquest over the dead body, prepared the inquest report and sent the same for post mortem examination. On 13.04.1997, he seized the wearing 3 apparels of the deceased, on 17.04.1997 he examined the eye witness (P.W.1) and on 18.04.1997 he arrested the appellants and recorded their confessional statements. He further stated that both the appellants led him and the witnesses to the spot and pointed out the stone used by them in the commission of the murder of the deceased. He seized the said stone under Ext.3. On 26.04.1997 he received the post mortem report and on 10.06.1997 he handed over the charge of the investigation to P.W.9. P.W.11 is the doctor who conducted autopsy over the dead body of the deceased and found as many as four external injuries. On further dissection, he found one litre of liquid blood present in thoracic cavity with congestion of lungs. He also found corresponding injury in the brain at places where external injuries were noticed on the head. The cause of death was due to intracranial and intra-thoracic haemorrhage due to the above injuries. All the injuries were ante mortem in nature and sufficient to cause death in ordinary course of nature. He proved the post mortem report (Ext.22). 9. On threadbare analysis of the oral and documentary evidence available on record, this Court finds that P.W.1 is the sole eyewitness to the occurrence. His evidence is that at the time of occurrence he was returning village from Kutinga after selling baskets. He saw both the appellants assaulting the deceased on the bridge over the Jhola. He asked them as to why they were assaulting the deceased. At this, appellant-Siba got annoyed and threatened him not to take the side of the deceased or else he would be killed. His further evidence is that on the next evening of the occurrence, appellant-Siba came to his (P.W.1’s) house and again threatened him by saying that if he became a witness against him, he would also be murdered. It is his further evidence that because of the threat, he became frightened and kept quite without disclosing about the occurrence to anybody and on the following Thursday when police came he gathered courage to narrate the incident before him. In the face of such explanation offered by P.W.1, his evidence cannot be thrown out of consideration on the ground of his delayed disclosure about the incident. Despite thorough cross-examination by the appellants, his evidence has remained unshaken. In cross-examination, he rather admitted that from a short distance he saw both the appellants assaulting the deceased on the bridge by fist and kick blows. Under these circumstances, the evidence of P.W.1 appears to be clear, cogent and trustworthy. P.W.3 in his examination-in-chief stated that both the appellants while in custody made disclosure about the incident, led him as well as the other witnesses and the I.O. to the spot and gave recovery of the stone stained with blood. This evidence of P.W.3 lends corroboration to the evidence of the I.O. (P.W.10) with regard to recording of the disclosure statement of the appellants and seizure of the weapon of offence at their instance. If the evidence of the I.O. (P.W.10) and that of the independent witness (P.W.3) is read together, it cannot be said that the prosecution has not been able to establish the leading to discovery made under Section 27 of the Indian Evidence Act. On perusal of the report of the Chemical Examiner it reveals that human blood of group ‘B’ was found in the weapon of offence, i.e., the stone marked as “P” and the wearing apparels, i.e., the lungi and the shirt of the deceased. From this it is evident that the stone (M.O.I) was used in the commission of the murder of the deceased. The doctor (P.W.11) opined that all the injuries found on the body of the deceased were ante mortem in nature and sufficient to cause death in ordinary course of nature. It is settled principle of law that basing upon the evidence of a solitary witness, the conviction can be sustained, provided his evidence passes the test of reliability. The general rule of law as enshrined in Section 134 of the Indian Evidence Act 4 is that evidence has to be weighed and not counted. As already observed, the evidence of P.W.1 appears to be clear, cogent and trustworthy and there is nothing on record to the contrary. For all these reasons, this Court holds that the prosecution has been able to establish beyond all reasonable doubt that both the appellants in furtherance of their common intention have committed murder of the deceased. 10. In the result, the Jail Criminal Appeal is dismissed being bereft of merits by upholding the judgment dated 14.07.2000 passed by the learned Additional Sessions Judge, Jeypore in Sessions Case No.46 of 1998 convicting both the appellants under Section 302/34, IPC and sentencing them to undergo imprisonment for life. Appeal dismissed. 5