HIGH COURT OF ORISSA, CUTTACK JAIL CRIMINAL APPEAL No.294 of 1999 From the judgment and order dated 29.11.1999 passed by A.K.Samantray, Sessions Judge, Dhenkanal-Angul, Dhenkanal, in S.T. No. 32D of 1997. Pramod Pradhan ………. Appellant Versus. State of Orissa ……….. Respondent For Appellant - Mrs Sujata Jena. For Respondent - Miss. S. Mishra Addl. Standing Counsel. PRESENT THE HON’BLE SHRI JUSTICE PRADIP MOHANTY A N D THE HON’BLE SHRI JUSTICE B.P.RAY -------------------------------------------------------------------------------------- Date of hearing & judgment : 19.01.2010 PRADIP MOHANTY, J. The appellant has assailed the judgment and order dated 29.11.1999 passed by the learned Sessions Judge, Dhenkanal-Angul, Dhenkanal in S.T. No. 32D of 1997 convicting him under Section 302, IPC and sentencing him to undergo imprisonment for life. 2. The case of the prosecution, as narrated in the FIR, is that in the night of 07.01.1997 all the inmates of the house of the informant having taken their night food went to sleep at about 10.00 PM. The deceased along with his wife slept inside the paddy husking room (Dhinkisal) by the side of the fire that was lit in the room to scare away the January winter cold. The accused, who is the brother of the deceased and had been residing in village Baladiabandha 8 to 9 months ago, had come to the village on 06.01.1997 and was staying in the house of the deceased. To warm up himself, the accused sat by the side of the said fire. In the night at about 3.00 AM P.W.2, the wife of the deceased, shouted that the accused assaulted the deceased on his head by means of a piece of wood. Hearing her shout, the informant and other inmates of the house got up and seeing that the deceased had sustained severe bleeding injury telephoned to the hospital for ambulance and immediately shifted him to Dhenkanal District Headquarters Hospital for treatment. While undergoing treatment, he succumbed to the injuries there. P.W.3 lodged FIR on receipt of which the police registered the case, proceeded with the investigation and after its completion submitted charge-sheet against the appellant under section 302, IPC. 3. Plea of the accused is one of complete denial. His specific plea is that to garb his landed property, the prosecution has falsely implicated him in the case. 4. In order to prove its case, prosecution examined as many as five witnesses including the doctor P.W.1 and the investigating officer P.W.5. P.W.2 is the wife of the deceased and a witness to the occurrence. P.W.3, the nephew of the deceased as well as the appellant, is the informant. He is a post occurrence witness. P.W.4 is the scribe of the FIR. He is also a post occurrence witness. Defence examined none. 5. The trial court after conclusion of the trial convicted the present appellant under section 302, IPC and sentenced him to undergo imprisonment for life with the finding that none else than the appellant was the author of the crime. 6. Mr Gouranga Jena appearing on behalf of Mrs. Sujata Jena, learned counsel for the appellant, assails the judgment on the following grounds: (i) P.W.2 is the wife of the deceased and an interested witness. There are major contradictions in her evidence. In absence of any independent corroboration, P.W.2 cannot be termed as a trustworthy witness. (ii) P.W.2 herself has admitted in the cross examination that she could not see properly in the night. So, it 2 cannot be believed that she had witnessed the assault by the appellant. (iii) No motive has been proved by the prosecution. (iv) It is alternatively argued that since the blow was allegedly given by a wooden stick, at best the appellant can be liable for commission of offence under section 304 Part-II, IPC and not under section 302, IPC. 7. Miss. Mishra, learned Additional Standing Counsel vehemently contends that P.W.2 has categorically deposed that she saw the appellant dealing blow by means of a piece of wood to the deceased and that she saw the same in the light of the fire that was burning in the said room. P.W.3 the post occurrence witness, who is the nephew of the appellant as well as the deceased, has lent full corroboration to the fact that the appellant had come to the house of the deceased one day prior to the night of occurrence and was staying there. After hearing the hullah, he woke up, came to the paddy husking room and found bleeding injury on the head of the deceased. He also saw that the appellant armed with a piece of wood. Therefore, there is no illegality committed by the trial court convicting the appellant under section 302, IPC. 8. Perused the LCR. In the instant case, P.W.1 is the doctor who conducted autopsy over the dead-body of the deceased. He opined that all the injuries were ante mortem in nature and were sufficient to cause death in ordinary course of nature. Cause of death was due to sudden shock and bleeding from the left brain due to compound depressed fracture of the left occipital parietal scalp. P.W.2 is the wife of the deceased. In her evidence she stated that as the appellant was suffering from fever in the evening, her husband (deceased) got medicine for the appellant. After taking medicine, they all took their dinner and prepared a fire place as it was winter. P.W.2 and the deceased slept in the Dhinkisal near the fire place. The appellant sat near the fire. While they were sleeping, P.W.2 heard groaning sound made by the deceased. She woke up and found in the light of the fire 3 that this appellant was assaulting on the head of the deceased by means of a wood. She raised hullah, hearing which P.W.3 as well as other inmates and the neighbours arrived there. Nothing has been elicited through cross- examination to discard the evidence of this witness. P.W.3 is the nephew of the deceased and a post occurrence witness. He corroborates the evidence of P.W.2 with regard to suffering of the appellant and supplying of medicine by the deceased to him and that after taking food the appellant was sitting by the side of the fire which was lit in the Dhinkisal of the deceased. He has specifically stated that when he heard the cry of P.W.2, he rushed to the spot and found bleeding injury on the head of the deceased. He also found that the appellant was armed with a piece of wood. In the meantime, others came and caught hold of the appellant who was trying to escape. Thereafter, they shifted the deceased to the hospital, where he succumbed to the injury. P.W.3 lodged the FIR. He also stated that the FIR was scribed by P.W.4 and thereafter he put his LTI in the same. Nothing has been elicited through cross-examination from the mouth of P.W.3 to support the defence case. P.W.4 is another post occurrence witness who immediately after hearing hullah rushed to the spot and found that the deceased had received injury on his head and it was bleeding. P.W.2 was shouting that her husband (deceased) had been assaulted by the appellant and the appellant was present in the Dhinkisal. P.W.4 has further stated that by the time he arrived the appellant was found being tied down by three to four persons. He proved the FIR (Ext.4) and also his signature in the same marked Ext.4/1. He specifically stated that as per the version of P.Ws.2 and 3 he scribed the FIR. Nothing has been brought out in cross-examination to disbelieve the evidence of this witness. P.W.6 is the investigating officer who seized M.O.I and blood stained earth and clothes of the deceased as well as the accused and submitted charge-sheet. He also proved the FIR. 9. From above analysis of the prosecution evidence, it manifests that P.W.2 in her evidence has categorically implicated the appellant by stating that she saw the appellant dealing blows by means of a piece of wood (M.O.I) on the head of the deceased when she woke up hearing the groaning sound of the deceased. Apart from that, both P.Ws.3 and 4, who arrived at the spot hearing hullah, have stated to have seen the 4 appellant there. P.W.3 has specifically stated that he saw the appellant being armed with M.O.I and while he was attempting to escape, he was caught hold of and tied down. There is nothing on record to disbelieve the evidence of P.Ws.2, 3 and 4. P.W.2 is a close relation of the deceased as well as the accused and as such it cannot be expected that she would screen the real culprit and falsely implicate an innocent person. No doubt, motive has not been proved in this case. But it is well settled that when the occurrence is proved beyond reasonable doubt by adducing cogent and acceptable evidence, absence of motive becomes unimportant. In the instant case, version of P.W.2 receives corroboration from the medical evidence. P.W.1, the doctor specifically stated that injury on the person of the deceased can be caused by M.O.I. Both P.Ws.2 and 3 have specifically stated that the appellant was holding a piece of wood. The Chemical Examiner has also detected human blood in M.O.I. There is thus no dispute that the appellant was the assailant of the deceased. But keeping in view the fact that a piece of wood was used as the weapon of offence, this Court opines that the appellant is guilty of committing an offence under Section 304 Part-I, IPC. In such view of the matter, this Court converts the conviction of the appellant from one under Section 302 IPC to that under Section 304 Part-I, IPC and sentences him to undergo rigorous imprisonment for ten years. It is stated by the learned counsel for the appellant that the appellant by now has remained in custody for more than ten years. If that be so, the appellant Pramod Pradhan be set at liberty forthwith, unless his detention is required otherwise. 10. The Jail Criminal Appeal is allowed in part. …………………………. Pradip Mohanty,J. B.P.RAY, J. I agree. ……………………….. B.P.RAY, J. Orissa High Court, Cuttack Dated 19th. Jan.,2010/Routray 5