PRADIP MOHANTY,J & B.K.NAYAK.J JCRALA No.4 OF 2002 (Decided on 13.01.2011) SUKUTA @SUKANTA@ ANATHA GURU & ORS . ……… Appellants. Vrs. STATE OF ORISSA ..……. Respondent EVIDENCE ACT, 1872 (ACT NO.1 OF 1872) – S.8 For Appellants - Mr.Ashok Das. For Respondants - Mr.Saubhagya Ketan Nayak Additional Govt. Advocate PRADIP MOHANTY, J. This appeal is directed against the judgment dated 16.04.2002 passed in S.T. No.258 of 1999 whereby the learned 2nd Additional Sessions Judge, Cuttack has convicted the appellants under Sections 302/307/34, IPC and sentenced them to undergo imprisonment for life. 2. The case of the prosecution, as revealed from the FIR lodged by P.W.5 Binayaka Guru, is that he is a ‘ghusuria’ by caste and used to earn his livelihood by tending pigs. He came along with his pigs and camped at Kathajori river bed near village Bidyadharpur in the evening of 09.11.1998. The deceased Poka Guru, his eldest son Jogendra-P.W.3 and the appellants, who were engaged as servants for tending pigs of the deceased, came along with their pigs and camped there at a distance of 200 metres from the camp of the informant. On 10.11.1998 at about 7.00 am, when the informant-P.W.5 went near the camp side of the deceased to ascertain as to why they had not got up for tending their pigs, to his utter surprise he found the deceased lying dead with bleeding injuries on his person and his son Jogendra (P.W.3) lying in his bed with a pool of blood having sustained fatal cut injury on his neck. On being asked by the informant, P.W.3 disclosed that their servants, i.e., the appellants, committed murder of his father and in course of assault when he protested he was assaulted by them with a knife. P.W.3 also gave out that the appellants had done so out of grudge as he and his deceased father charged them for committing theft of one pig while they were camping at Brahamanigaon on 06.11.1998. The informant, P.W.5 reported the matter orally before the Godisahi Outpost which was reduced to writing by the ASI of Police M.A. Jabar. The FIR was sent to Baranga P.S. and on receipt of the same the case was registered and investigation taken up by the C.I. of Police, P.W.7. After completion of investigation, charge-sheet was filed against the appellants under Sections 302/307/34, IPC. The trial court, however, on consideration of documents available before it framed charge against the appellants under Sections 302/307/380/34, IPC. 3. The plea of the appellants is complete denial of the allegations of the prosecution. Appellant Lokanath specifically pleaded that he has been falsely implicated in this case and on the date of occurrence he had gone to his brother-in-law’s house. 4. In order to prove its case, the prosecution examined as many as eight witnesses including the doctors and the investigating officer and exhibited eleven documents. The defence examined none. 5. The trial court after conclusion of trial while acquitting both the appellants of the charge under Section 380/34, IPC, convicted them under Sections 302/307/34, IPC and imposed sentence of imprisonment for life for the offence under Section 302/34, IPC. It, however, did not award any separate sentence for the offence under Section 307/34, IPC. 6. Mr. Ashok Das, learned counsel appearing for the appellants assails the impugned judgment on the following grounds: (i) The occurrence having been allegedly taken place at about 2.00 a.m. in a dark night, it is highly improbable on the part of P.W.3 to witness the occurrence and identify the appellants; (ii) P.W.3 being the son of the deceased is an interested witness and in absence of any other corroborative evidence it is difficult to place reliance on his evidence. 7. Mr. S.K.Nayak, learned Additional Government Advocate vehemently contends that since the evidence on record reveals that the accused persons were engaged as servants of the deceased and P.W.3, and they were staying together in the same camp, the contention of the defence that P.W.3 could not have witnessed the occurrence and identified the accused persons cannot be sustained. Furthermore, since prior to the occurrence there was a quarrel/altercation between P.W.3 and the accused persons over the theft of a pig and that the accused persons had threatened to take revenge, a strong motive is attributable to the appellants. Therefore, there is no illegality or infirmity committed by the trial court in passing the impugned judgment so as to warrant interference by this Court. 8. Perused the records. P.W.1 is a seizure witness. P.W.2 is a post occurrence witness. He stated that from the police he heard about the death of the deceased, accompanied the police constable to the village of the deceased and intimated about the death of the deceased to his family members. P.W.3 is the son of the deceased and the sole eye witness. He deposed that both the accused persons were working under them as labourers. Accused Sukuta (appellant no.1) was working with them on monthly wage basis for about one month prior to the occurrence. Accused Lokanath (appellant no.2) was serving under them for about four years continuously prior to the occurrence on yearly wage basis and was getting Rs.5000/- per year towards his wages. They had about 156 number of pigs prior to the occurrence. On 06.11.1998, both the accused persons took away a pig weighing 6 Kgs from Brahmanigaon camp. On the next day, they were traced in their house at Thoriapada. On being asked they did not confess to have committed theft of the pig and they also abused P.W.3 in filthy language. On 8.11.1998, both the accused persons again joined their work at Brahmanigaon Camp. He further deposed that on 9.11.1998 they shifted to Naraj Bidyadharpur village river bed with their pigs and camped there. Both the accused persons were with them. P.W.3, his deceased father and both the accused persons slept on the river bed at night. At about 3.00 a.m. P.W.3 woke up from his sleep for urination and again slept. About 2 half an hour thereafter, he heard groaning sound of his deceased father. So, suddenly he got up and found accused-Sukuta holding his deceased father and accused-Lokanath dealing tangia blows on the head of his deceased father. When P.W.3 attempted to rescue his father, accused-Sukuta assaulted him by means of a knife on his right side head region as well as the head. Thereafter, accused-Lokanath assaulted him on his head with the blunt side of the tangia with which he was assaulting his father. He specifically stated that after being assaulted by both the accused persons his father died at the spot. He fell down on his bed with injuries. Both the accused persons fled away from the place taking cash of Rs.2,000/- from his deceased father. P.W.5-Binayak Guru, who was camping a little away from their camp, came to him at morning hour and he narrated the incident to him. P.W.5 brought to the spot an auto rickshaw in which they went to Godisahi Outpost and to the S.C.B. Medical College for his treatment. In cross- examination, P.W.3 has specifically stated that they were sleeping on the river bed spreading mats numbering three and the deceased was sleeping to the extreme corner. He, however, admitted in cross-examination that it was a dark night and that accused- Sukuta was holding the waist portion of the deceased while accused-Lokanath was dealing tangia blows on the deceased in standing position. Nothing substantial has been elicited in cross-examination to discredit the testimony of P.W.3. P.W.4 is the doctor, who conducted autopsy over the dead body of the deceased and found the following injuries: “(i) Chop wound of size 7 cm x 2 cm x skull deep present obliquely over the right forehead, 3 cm above the eye brow where the margins were found to be cleanly cut and directed from above downwards. (II) Incised wound of size 3 cm x 1 cm x skin deep present horizontally over the left forehead 1 cm above the eye brow.” On dissection he found the following: “(i) the scalp tissue under the external injury no.i is contused with haematoma in an area of 9 cm x 4 cm. (ii) Under the external injury no.i the skull bone is cleanly cut measuring a size of 6 cm x 4 cm and it is driven into the brain cavity. (iii) Subdural haemorrhage with laceration of right frontal lobe detected under the external injury no.i. Other internal organs were found partly soften and pale.” He opined that the external injuries and the underlying injuries were ante mortem in nature. The external injury no.i and the corresponding internal injuries were fatal in ordinary course of nature. The death of the deceased was due to cranio cerebral injuries. Nothing has been elicited from his cross-examination. P.W.5 is the informant in this case. He deposed that on 10.11.1998 he had camped with his pigs at Bidyadharpur river bed where the deceased and his son (P.W.3) had camped. In the morning, he found that the deceased Poka Guru and his son (P.W.3) had not got up and their pigs were grazing scattered. He went to their camp and saw P.W.3 in an injured condition and blood was oozing out of his left ear. He also saw the deceased lying dead there. He further deposed that on query P.W.3 narrated before 3 him that on the previous night the accused persons caused murder of his father and attempted to murder him. P.W.3 also narrated before him about the previous quarrel between them and the accused persons over the theft of a pig. He proved the F.I.R., Ext.4 and his signature thereon marked Ext.4/1. He also proved the enquiry report, Ext.5 and his signature thereon marked Ext.5/1. Nothing substantial has been brought out in cross-examination to discredit his evidence. P.W.6 is a witness to the seizure of Tangia vide Ext.7 as also a blood stained lungi and a towel vide Ext.6. P.W.7 is the Investigating Officer, who registered the case, held inquest over the dead body of the deceased and sent the same for post mortem examination, arrested the accused persons, sent the sample blood for chemical examination to SFSL, Rasulgarh, Bhubaneswar and after completion of investigation filed charge-sheet. P.W.8 is the Doctor, who examined P.W.3 on police requisition and found the following injuries : “(i) There was a lacerated injury of right ear of size 3cm x ½ cm which has cut the upper 1/4th of it with only a tag of skin connecting the two segments. (ii) there was a lacerated wound of the scalp just behind the root of right ear of size 4 cm x 1 cm.” He opined that injury no.i was simple in nature. Nothing has been elicited in cross- examination. 8. In the instant case, motive behind the crime has been proved by the prosecution through P.W.3 that there was an altercation between him and the appellants over the theft of a pig for which the appellants had threatened him with dire consequences. The contention of the learned defence counsel that the occurrence having taken place in a dark night P.W.3 could not have witnessed it and identified the accused, does not appeal to us for the simple reason that the appellants and P.W.3 were known to each other as they had been engaged as their servants since long for tending their pigs and were residing in the same camp. There is nothing on record to disbelieve the evidence of P.W.3, the injured eye witness, and according to us he is a truthful witness and his evidence inspires confidence. The informant-P.W.5, who is an immediate post occurrence witness, is found to be a trustworthy witness in absence of any material to show that he was inimically disposed towards the appellants. The evidence of P.W.3 gets corroboration from the medical evidence. The other incriminating material available against the appellants is that appellant Lokanath Guru while in police custody gave recovery of the blood stained polyester lungi and towel by leading to discovery. For all these reasons, this Court comes to the conclusion that both the appellants in furtherance of their common intention have committed the murder of the deceased and the trial court has rightly convicted them under Sections 302/34, IPC. So far as their conviction under Sections 307/34, IPC is concerned, in view of the evidence of the doctor-P.W.8 that the injuries sustained by P.W.3 were simple in nature, the same is converted to one under Section 324/34, IPC. 9. In the result, conviction of the appellants under Section 302/34, IPC is confirmed and that under Sections 307/34, IPC is converted to one under Section 324/34, IPC. The appellants are sentenced to undergo imprisonment for life for the offence under Section 4 302/34, IPC and no separate sentence is imposed for the conviction under Section 324/34, IPC. 10. The Jail Criminal Appeal is accordingly disposed of with the modification of the impugned judgment to the extent indicated. Appeal disposed of . 5