PRADIP MOHANTY,J & B.K.NAYAK, J. JAIL CRIMINAL APPEAL No.149 OF 1999.(Decided on 20.04.2010) GANESWAR PATRA ……………………Appellant .Vrs. STATE OF ORISSA …………………Respondent EVIDENCE ACT, 1872 (ACT NO.1 OF 1872) – SEC.3. For Appellant – Mr.Deepak Kumar. For Respondent – Mr.Jyoti Prakash Pattnaik Addl.Government Advocate PRADIP MOHANTY,J. This Jail Criminal Appeal is directed against the judgment and order dated 07.05.1999 passed by the learned Sessions Judge, Keonjhar in S.T. Case No.81 of 1995 convicting the appellant under Section 302, IPC and sentencing him to undergo imprisonment for life. 2. The case of the prosecution is that the deceased Sarojini is the only daughter of her widow mother Marua (P.W.4). She had married the accused-appellant on 06.03.1994 and the accused was residing in the house of Marua as illatom son-in-law. Due to dispute with deceased Sarojini, the accused left the house of Marua during Bahuda Jatra of 1994 and went to his own village. After a month or so, he came back to the house of Marua. On that day, when he was served with food during lunch he quarrelled with his wife and went away with the lunch plate declaring before the villagers that he was served with poisonous food. A few days later, on receipt of a letter from the Ward Member (P.W.5), the accused came to the house of Marua, returned the plate, stayed for one night and went back to his house. On 21.02.1995 at about 3.00 PM, the accused again arrived at the house of Marua. In the night, after taking dinner Marua slept in a separate room and the accused slept along with the deceased in an adjacent room. Coming to know that the accused and the deceased were discussing with each other, Marua came out of her room and heard the accused insisting to record all the properties in his name. The deceased was saying that the same would only be possible after her mother’s death. At this, the accused got enraged and asked the deceased to go with him to his house, but the deceased refused. By then it was 12 mid- night. Hearing their discussion, Marua went to her room but till 2:00 AM she had no sleep. Some time after 2.00 AM, she felt asleep and suddenly woke up from sleep hearing the shout of her daughter who gave out that “O’ mother, I am dying. The person whom you sheltered murdered me and escaped.“ Suddenly, Marua (P.W.4) came out of her room and by that time the deceased had also come out of her room to the verandah by pressing her palms on her abdomen. P.W.4 shouted by taking the names of Mukunda and Niranjan, who are her neighbours. They all reached the spot and in their presence the deceased gave out that the accused had stabbed her with a knife and escaped. There was profuse bleeding from the wound and the deceased succumbed to the injury on the spot. On the same day, i.e., 22.02.1995, P.W.4 lodged FIR at Bamebari Outpost. The police registered case, investigated into the matter and ultimately filed charge-sheet against the accused-appellant under Section 302, IPC. 3. The plea of the accused is one of complete denial of the allegations. His specific plea is that the deceased sustained injury by fall either on the knife or axe kept in the bedroom while she wanted to come out to attend call of nature. In the alternative, he took a plea that the deceased might have committed suicide. 4. In order to prove its case, the prosecution has examined as many as eight witnesses including the doctor and the I.O and exhibited sixteen documents. The defence has examined one witness, i.e., the accused himself. On completion of trial, the learned Sessions Judge convicted the appellant under Section 302 I.P.C and sentenced him to undergo imprisonment for life basing on the evidence of P.W.4 and leading to discovery of the knife (M.O.I). 5. Mr. Deepak Kumar, learned counsel appearing for the accused-appellant assails the impugned judgment and order of conviction mainly on the following grounds: 1. P.W.4 being the mother of the deceased is an interested witness and she has tried to develop the prosecution story from stage to stage; 2. P.W.5 deposed that hearing the voice of P.W.4 he came to the spot and he had not seen the occurrence. So, his evidence cannot be relied upon for any purpose; 3. There is no material to prove that in the relevant night the accused was present in the room of deceased. 4. Leading to discovery has not been proved by the prosecution as per Section 27 of the Evidence Act; and 5. Some material witnesses have been withheld by the prosecution. 6. Mr. Pattnaik, learned Additional Government Advocate vehemently contends that the appellant has been named as the accused in the FIR lodged by P.W.4. While deposing in court P.W.4 has corroborated the facts stated in the FIR. P.W.5 corroborates the evidence of P.W.4 and specifically states that he has seen in the moon light the accused running away towards the back yard. The evidence of P.Ws.4 and 5 gets support from the evidence of P.W.2, the doctor, who conducted autopsy over the dead body of the deceased. The prosecution through P.Ws.6 and 8 has proved that after arrest the appellant led the police and gave recovery of the weapon of offence (M.O.I). Therefore, no illegality has been committed by the trial court in convicting the appellant under Section 302, IPC. 7. Perused the LCR. Admittedly, there is no eye witness to the assault. P.W.4 is the mother of the deceased and mother-in-law of the accused. She specifically deposed that on 21.02.1995, i.e., before the night of occurrence, the accused came to her house and after taking dinner slept in a room along with the deceased. In the midst of the night when she (P.W.4) woke up to attend call of nature, she heard the discussion between the accused and the deceased. The accused was asking the deceased to get all the properties recorded in his name. She further stated that by the time she heard the discussion between the accused and the deceased, the accused had not removed his pant and shirt. Therefore, she became suspicious and kept waiting in her room without sleep. After some time, she again came out of her room for urination and while urinating, she heard her daughter shouting “MAA GO DAUDI AAA, TO JOIAN CHAKU MOTE MARIDELA”. At that time, P.W.4 saw the accused running away with the knife in his hand. She immediately rushed to her daughter and saw that she was pressing her abdomen with both the palms and when she released her palms, the intestine protruded out of the injury. P.W.4 raised alarm hearing which her neighbours, namely, Raghu, Mukunda and Niranjan arrived. Immediately, a person was sent to arrange an ambulance and a doctor. By the time the ambulance arrived with doctor, it was early dawn. The doctor examined and declared her daughter dead. In the said ambulance, P.W.4 along with her neighbours went to Bamebari Outpost and lodged oral report. During investigation, the D.S.P. came to her house, seized the list of dowry articles and the letter written by the accused to the deceased. In her cross-examination, she stated that she had seen the stabbing and escaping of the accused. She has also admitted that there was no light in the bed-room and the kerosene lamp had gone out. Nothing has been elicited in the cross- examination to demolish the prosecution case. P.W.5 is a co-villager and an agnatic nephew of P.W.4. He supported the evidence of P.W.4 to the extent that after hearing the shout of P.W.4 calling him by name to come to her rescue as the accused had escaped after stabbing the deceased, he came to the spot and found the deceased pressing her palms on her abdomen. The deceased disclosed that she had been stabbed by her husband. P.W.5 specifically deposed that he had seen the accused running away towards the back yard in the moon light and that the intestine came out of the wound after removal of the palm. He stated to have attended the inquest and put his signature in the inquest report. In cross- examination, he deposed that the house of Marua is at a distance of 30 feet from his house and the houses of Niranjan and Mukunda are at a distance of 15 and 30 feet respectively. He further deposed that he was examined by the I.O. during investigation and it is not a fact that he had not stated before the police that he saw the accused escaping with a knife towards the back side of the house of Marua and that he saw the accused in the moon light. P.W.6 is a witness to the leading to discovery and seizure of the knife. This witness has deposed in his examination-in-chief that the knife was recovered from Brirampur tank. He along with the accused and police officials went to that tank in a Jeep and police brought out the knife and showed him. The seizure list (Ext.5) was prepared in his presence and he put his signature (Ext.5/1) thereon. But in the cross- examination, he specifically stated that he was moving on the road and the police officer called him to accompany in the vehicle. He remained on the ridge of the tank during recovery of the knife from the tank and the knife was recovered within a distance of five meters from the place where he was sitting. P.W.7 is the A.S.I. of police then attached to Bamberi Outpost. He deposed to have reduced the oral report of Marua (P.W.4) to writing, drew up plain paper F.I.R., read over the contents thereof to the informant and obtained her LTI thereon. He proved the said FIR marked Ext.6 and his signature thereon marked Ext.6/1. He further stated that immediately after recording of the FIR he proceeded to the spot, made inquest over the dead body of the deceased, examined some of the witnesses and seized the blood stained earth vide Ext.9 and blood stained Kantha vide Ext.10 from the spot. On 23.02.1995, P.W.7 stated to have re-examined P.W.4 and seized the dowry articles vide Ext.11 and prepared the spot map. P.W.8 is the O.I.C., Joda P.S., who took charge of the investigation from P.W.7 and arrested the accused. He specifically deposed that while in custody the accused disclosed to have concealed the weapon of offence in a tank near Jhumpura, led the police and the witnesses to that place and gave recovery of the knife (M.O.I). He seized the knife vide Ext.5 in presence of the witness P.W.6. He also seized the wearing apparel (lungi, M.O.III) of the accused vide Ext.14. Finally, S.I. of Police S.K. Behera submitted charge-sheet on 23.05.1995 since he (P.W.8) was under orders of transfer. In cross-examination P.W.8 has also admitted that the tank in question from where the knife was recovered at the instance of the accused is a public tank. P.W.1 is the doctor who at the relevant point of time was working as C.M.O., Central Hospital, Joda. He stated that on 25.02.1995 on police requisition he collected the blood sample of the accused and on examination found the same to be O+. He proved his report marked Ext.1. P.W.2 is the doctor who conducted post-mortem examination over the dead-body of the deceased and found the following injuries: “External Injuries (i) A portion of the intestine coil seen protruding through the gaping wound situated on interior abdominal wall 2” right to the umbilicus placed transversely directing latterlly oblique; and (ii) Another wound at a higher level then the left. After reposition of the intestinal coil to the abdominal cavity, external wound found to be punctured wound of size 1” X 1/3” peritonial cavity. It was spindle shaped. Both the margins are clean cut right angle of the wound was acute and sharply cut. Left angle shows ruggedness. Internal Injuries On dissection deep into the wound, it was found the abdominal anterior muscles, fascia and peritoneum underlying the wound were cut. Blood clots seen along the track. The abdominal cavity specifically the pelvic cavity was filled with blood clots and haemorrhagic fluid and dark blood. On detail examination of the abdominal viscera, the small intestine was found to be punctured at three sides with discharge of faecal matters. The puncture are through and through. The mesentry was also pireced at three sides at which the mesentry vessels were cut. The blood clots were found surrounding the mesenteric wound. The other abdominal viscera were found to be in tact.” He specifically opined that all the above injuries were ante mortem in nature and the probable cause of death was due to haemorrhage and shock following the injuries of the mesentry vessel. The time of death was within 24 to 48 hours of the time of post mortem examination. He further opined that the injuries found in the body of the deceased as mentioned in the post mortem report could be possible by a knife. 8. From the above analysis of the evidence, it is crystal clear that none of the prosecution witnesses has seen the actual assault by the appellant on the deceased. However, it is evident from the evidence of P.W.4, who is the mother of the deceased and an immediate post-occurrence witness, that the appellant came to her house on 21.02.1995 at 3.00 pm, i.e., on the day preceding the night of occurrence and after taking dinner he slept in a room along with the deceased. At mid night when P.W.4 woke up to attend the call of nature, she heard hot discussion going on between the appellant and the deceased with regard to transfer of properties and by then the appellant had not removed his pant and shirt. Suspecting demeanor of the appellant she kept waiting in her room without sleep. Some time after, hearing shouts of her daughter “MAA GO DAUDI AAA, TO JOIAN CHAKU MOTE MARIDELA” she came out of her room and saw the appellant running away with a knife in his hand. At that time, P.W.4 saw her daughter pressing her both the palms on her abdomen and when P.W.4 released her palms, the intestine protruded out of the injury. The F.I.R. story gets corroboration from the evidence of P.W.4. P.W.5, an immediate neighbour of P.W.4, who is also a post-occurrence witness, corroborates the evidence of P.W.4 about the disclosure by the deceased that the accused had stabbed her. He specifically stated to have seen the accused running away towards the backside of the house of P.W.4. There is no material to disbelieve the evidence of P.Ws.4 and 5. No evidence has been adduced by the defence to prove the relationship of P.W.5 with the deceased or P.W.4. That apart, law is now fairly settled that merely because a witness is related to the deceased, his/her evidence cannot be rejected if it is found to be credible, trustworthy and if it inspires confidence. The contradictions/discrepancies appearing in the evidence of P.Ws.4 and 5 are minor in nature. Such contradictions/discrepancies are bound to occur due to efflux of time and in case of rustic and illiterate witnesses like P.Ws.4 and 5. So far as leading to recovery of the weapon of offence by the appellant is concerned, the same is well proved by the prosecution through the evidence of P.W.6, the independent witness, and P.W.8, the then O.I.C. of Joda P.S. The oral testimony of P.Ws.4 and 5 coupled with the medical evidence and the fact of recovery of the weapon of offence at the instance of the appellant unequivocally points at the guilt of the appellant. 9. For the reasons indicated above, there is hardly any scope for this Court to interfere with the impugned judgment of conviction and sentence passed by the trial court. The Jail Criminal Appeal is accordingly dismissed. Appeal dismissed.