HIGH COURT OF ORISSA, CUTTACK JAIL CRIMINAL APPEAL No.266 of 1999 From the judgment and order dated 25.06.1999 passed by Shri S.K. Mishra, Additional Sessions Judge, Jeypore, District-Koraput in S.C. No.87 of 1997 (S.C. No. 339/96 on the file of the Sessions Judge, Koraput, Jeypore). Ratha Saunta ……… Appellant Versus. State of Orissa ……… Respondent For Appellant : M/s S.K. Patnaik, S.N. Nayak and P.K. Das. For Respondent : Miss S. Misra, Addl. Standing Counsel. ……… PRESENT : THE HON’BLE SHRI JUSTICE PRADIP MOHANTY A N D THE HON’BLE SHRI JUSTICE B.K.PATEL -------------------------------------------------------------------------------------- Date of hearing & judgment : 27.11.2009 PRADIP MOHANTY, J. The appellant has assailed the judgment and order dated 25.06.1999 passed by the learned Additional Sessions Judge, Jeypore in S.C. No. 87 of 1997 convicting him under Sections 302 I.P.C. and sentencing him to undergo imprisonment for life. 2. The case of the prosecution is that on 09.08.1996 at 11.00 A.M. P.W.4 lodged an information before the O.I.C., Raighar Police Station alleging therein that on the previous evening the present appellant came near the house of the deceased Bilu Saunta and scolded him alleging that in the appellant’s absence the deceased was fornicating the former’s wife. The deceased protested saying that it was a false allegation and an altercation ensued between them in course of which the appellant went towards his new house and the deceased followed protesting. P.W.6, the widow of the deceased, also followed them. After reaching his new house, the appellant picked up an axe and gave a blow to the neck of the deceased. As a result, the deceased fell down and died on the spot. On receipt of the information, the police registered a case, proceeded with the investigation and after its completion submitted charge sheet against the appellant under section 302 IPC. 3. The plea of the appellant is one of complete denial and false implication. 4. In order to prove its case, the prosecution examined as many as eight witnesses including the doctor and the I.O. The defence examined none. 5. The trial court on careful analysis of the evidence on record came to hold that the prosecution has successfully established its case against the appellant beyond all reasonable doubt and accordingly convicted him under section 302 IPC and sentenced him as mentioned hereinbefore. The trial court observed that the appellant had the evil design in his mind for which he himself went to the deceased and picked-up a quarrel with him, led the deceased to the place where the axe was lying and, taking unfair advantage of the situation, committed the murder of the deceased in cold blood. 6. The appellant assails the judgment of conviction on the following grounds: (i) The solitary eye witness P.W.6 being the widow of the deceased is an interested witness and the trial court, in absence of any independent corroboration to her evidence with regard to assault on the deceased, should not have relied upon her evidence for recording the conviction. 2 (ii) The evidence of P.W.6 should not have been believed, as she tried to exaggerate/improve the prosecution case in court. (iii) The two witnesses, namely, Sobha and Rupa, who are said to be available at the time of occurrence, having been deliberately withheld by the prosecution the entire prosecution case is to be viewed with suspicion. (iv) No motive on the part of the appellant has been proved by the prosecution. (iii) Since the appellant allegedly has given a single blow, it cannot be said that the appellant had intention to kill the deceased and, therefore, it is a case under section 304(I) I.P.C. 7. Miss Misra, learned Additional Standing Counsel vehemently contends that P.W.6 being the widow of the deceased is a reliable witness because it is not expected of her to screen the real culprit and falsely implicate an innocent person. Even if P.W.5 is not believed as a witness to the occurrence, his evidence as a post-occurrence witness lends corroboration to P.W.6. Therefore, it cannot be said that the trial court has committed any illegality in convicting the appellant under section 302 I.P.C. leaving scope for this Court to interfere with the impugned order. 8. Perused the LCR. P.W.1 is the doctor who conducted autopsy over the dead body of the deceased. He found the following two external injuries: (i) A cut injury on front of neck at the level of 5th cervical vertebra 8 cm X 3 cm X whole depth of neck. (ii) A cut injury on back of neck at the same level 7 cm x 2 cm x bone depth. He opined that all the injuries were ante-mortem and homicidal in nature. He specifically in his evidence stated that the cause of death was due to complete section of spinal cord, trachea, oesophagus and large vessels of the neck and that all the injuries were possible by one blow by means of a 3 weapon like M.O.I (Tangia). P.W.2 is the constable who had been commanded to take the dead body of the deceased for post-mortem examination. He is a witness to the inquest and seizure of wearing apparels of the deceased vide Ext.5. P.W.3 is also a constable and another witness to the seizure of articles vide Ext.5. P.W.4 is the younger brother of the deceased who lodged F.I.R. and put his L.T.I. in the said F.I.R. Nothing has been elicited through cross-examination to discredit his testimony. P.W.5 in his examination-in-chief has categorically stated that on the day of occurrence, the appellant picked up a quarrel with the deceased and gave a blow with an axe on the front side of his neck, as a result of which the latter fell down on the spot sustaining bleeding injury and breathed his last. Although P.W.5 in his examination-in-chief claimed to be a witness to the occurrence, in his cross-examination he has admitted that at the time of incident he was in his house and when he heard the cries of P.W.6, the widow of the deceased, he reached at the spot and saw the deceased lying dead with bleeding injury on the front side of his neck. By that time, the appellant had already left the place and gone inside the jungle. On the face of such admission, it can be said that P.W.5 is a post-occurrence witness and he heard the entire occurrence from P.W.6. P.W.6 is the widow of the deceased. She is said to be an eye witness. She has specifically stated in her evidence that the appellant came to their house, called the deceased and picked up a quarrel with him. Thereafter, the appellant went towards his house and the deceased followed him. She also followed them. When the appellant and the deceased reached the new house of the appellant, the appellant picked up an axe, which was lying in the new house, and gave one blow on the front side of the neck of the deceased. As a result of the axe blow, the deceased sustaining injury on his neck fell down and died instantaneously. Thereafter, the appellant threw the axe and ran away towards the jungle. When she was crying, P.W.5 came to the place, asked her why she was crying and she narrated the incident before P.W.5. Nothing has been elicited through cross-examination to disbelieve the evidence of this witness. P.W.7 is the Sarpanch, who had accompanied the informant to the police station and put his signature in the F.I.R. He has proved the F.I.R. He is a witness to the inquest. He has stated that M.O.I, the tangia, was seized 4 by the police under Ext.8 in his presence and he had put his signature in the said seizure list ( Ext.-8). He has further stated that the police also seized the wearing apparels of the deceased under seizure list Ext.9 and he had put his signature in the said seizure list. P.W.8 is the investigating officer. 9. On careful scanning of the evidence and the materials on record, it is clearly established that it is the appellant who went to the deceased and picked up a quarrel with him which resulted in an altercation. Thereafter, he went towards his newly constructed house, picked up an axe from there and dealt a blow on the neck of the deceased by which the head was almost separated from the body. It is a clear case under Section 302 I.P.C. and the trial court has rightly convicted the appellant thereunder. Therefore, there is no scope for this Court to interfere with the impugned judgment of conviction and order of sentence passed by the trial court. 10. In the result, therefore, the Jail Criminal Appeal is dismissed and the impugned judgment and order passed by the trial court is confirmed. ………………………… Pradip Mohanty,J. B.K.PATEL, J. I agree. ……………………….. B.K.Patel, J. Orissa High Court, Cuttack Dated 27th Nov.,2009/Routray 5