PRADIP MOHANTY, J & B.K.NAYAK, J. JCRA. NO.100 OF 2000 (Decided on 02.02.2011) RABI KHARA …….. Appellant. .Vrs. STATE OF ORISSA ……... Respondent. For Appellant - Mr. G.S.Pani, Advocate For Respondent - Addl. Standing Counsel PRADIP MOHANTY, J. This appeal is directed against the judgment and order dated 29.01.2000 passed by the learned Additional Sessions Judge, Jeypore convicting the appellant under Section 302 of the Indian Penal Code and sentencing him to undergo imprisonment for life in Sessions Case No.05 of 1998. 2. The case of the prosecution, in short, is that on 03.06.1997 evening P.W.1-Abhi Suna and his father (deceased) had been to village Landiguda to settle a dispute with the appellant. At that time, the appellant was not present in his house. It is alleged that the appellant lodged a report against the deceased on that day alleging that the deceased has committed theft of Bhalia for which the Police came to the house of the deceased for apprehending him. Both P.W.1 and deceased waited for the appellant sitting on the verandah of Jhilibandhu Paraja. At about 8 P.M. the appellant, Laikhan Khara, Saheb Kuna, Moti Khara, Somari Khara and Hari Suna came near the house of that Paraja and picked up a quarrel with the deceased. All the accused persons caught hold of the hands and legs of the deceased and the appellant caught hold of the hair of the deceased, twisted his head backwards and cut his throat by means of kati, as a result of which the deceased fell on the ground facing downwards. Then the appellant gave another blow by means of an axe on his back. P.W.1, the son of the deceased protested against their action for which Sadheb Suna chased him to assault by means of stone. P.W.1 concealed himself behind a big stone and spent the entire night there. On the next morning, he came and narrated the entire incident to his mother (P.W.8), who in turn reported the same to P.W.7. Thereafter, P.W.7 lodged an information before the O.I.C., Koraput P.S., who on receipt of the same registered the case, and took up investigation and ultimately submitted charge sheet against the present appellant along with five others under section 302/34 of the Indian Penal Code. 3. The plea of the accused persons was complete denial of the allegation. In order to prove its case, the prosecution examined 10 witnesses and the defence has examined none. 4. The learned Additional Sessions Judge, tried the case and after assessing the evidence adduced by the prosecution convicted the present appellant under section 302 of the Indian Penal Code and acquitted the other five accused persons of the charges under section 302/34 of the Indian Penal Code. 5. The learned counsel for the appellant assails the impugned judgment on the following grounds: i) The ocular witnesses are interested and they have not seen the occurrence since it took place in a dark night. ii) There are major contradictions in the evidence of the witnesses and they have tried to develop the prosecution story in the Court while adducing evidence. iii) Ingredients of Section 27 of the Evidence Act have not been proved, and; iv) The weapons of offence (M.Os.1 and II) seized under section 27 of the Evidence Act were not produced by the appellant. 6. Mr. Rath, learned Additional Standing Counsel vehemently argues that the evidence of P.Ws. 1 and 3 is clear and cogent. They have also admitted the enmity between the parties. There is no discrepancy in the evidence of P.Ws.1 and 3 with regard to the involvement of the present appellant in the said crime. P.Ws.2 and 4 have specifically stated about the presence of the deceased at the occurrence place before the incident. Therefore, there is no infirmity or illegality in the impugned judgment warranting interference by this Court. 7. Perused the L.C.R. P.Ws. 1 and 3 are witnesses to the occurrence. P.W.1 who is the son of the deceased, deposed that accused Saheba Suna caught hold of the two hands of his father from his backside. The other accused persons also caught hold of the hands and legs of his father. The appellant caught hold of the tuft of the hair of his father and by twisting his neck upwards, cut his neck by means of a kati as a result of which his father (deceased) sustained severe cut and bleeding injury on his neck and fell down on the ground facing downwards. Thereafter the appellant gave a tangia blow on the back of his father as a result of which his father sustained cut and bleeding injuries. He also deposed that he concealed his presence behind a big stone for the entire night. On the next morning he went to his house and informed the incident to his mother. In cross-examination, P.W.1 admitted that when the occurrence took place it was not dark. Nothing has been elicited in cross-examination to demolish his evidence. P.W.3 is another occurrence witness. His house is very close to the house of Paraja Jhilibandhu (P.W.4). Hearing hullah he came out of his house and saw that the appellant cut the throat of the deceased Arjuna by means of a kati and also gave a blow by means of a tangia on the backside of the deceased. At that time,other accused persons were also present. Out of fear he closed the door of his house and remained inside. In cross- examination, he has stated that the occurrence took place in a dark night. His Pindah was at a distance of about 15 to 20 feet from the pindah of Jhilibandhu Paraja, where the occurrence took place. He admitted that due to darkness he could not identity the other accused persons except Rabi, the present appellant. P.W.2 has been turned hostile. But he has stated in his examination-in-chief that he found the deceased Arjuna sitting on the pindha of Paraja at about 7 to 8 P.M.. On the next day morning he came to know that the appellant committed murder of the deceased by cutting his throat. Thereafter, he went to the spot and found the dead body of the deceased lying at the end of the village. P.W.4 has stated that on the occurrence day he saw the deceased and P.W.1 were sitting on his verandh. All the accused persons came to his pindah where the deceased was sitting. Out of fear he did not come to the spot and on the next day morning he saw the dead body of the deceased was lying on the ground. P.W.5 is a witness to the inquest and proved the Inquest report. Ext.2. He is also a witness to seizure of blood stained earth and sample earth and also proved Ext.3. P.W.5 has stated in his evidence that the appellant while in police custody gave his statement before the Police admitting the murder of the deceased and led him, the police and other witnesses to the place of concealment of kati and tangia and gave recovery of those weapons of offence which were seized under Ext.5. He also proved the statement of the accused marked as Ext.6. Nothing has been elicited from his mouth byway of cross-examination to support the defence. 2 P.W.6 is the Doctor, who conducted autopsy over the dead body of the deceased and found the following injuries. i) Cut would on the nect of size 2” x 1” x 2” involving total evolution of trachea and large vessels on both sides of the neck. ii) Incised would on the back over left scapula of size 2 ½ “ x ½” x ½ He opined that the cause of death was due to cutting of large vessels of the neck causisng severe haemorrhage and bleeding. He proved the Post Mortem report (Ext.7). He also opined that the taniga (M.O.II) can cause the would on the back over the left scapula and Kati (M.O.I) can cause the would on the neck. P.W.7 is the informant. He has specifically stated that after hearing the entire incident from the wife (P.W.8) and son (P.W.1) of the deceased Arjun, he lodged F.I.R. at Koraput P.S. He jproved the F.I.R. (Ext.9). Nothing has been elicited in his cross- examination to discredit his testimony. P.W.8 is the widow of the deceased, who specifically deposed that she heard the incident from P.W.1. Thereafter, they went to P.W.7 and P.W.1, the son of the deceased, narrated the incident before P.W.7. Nothing has been elicited in her cross-examination. P.W.9 is the Constable, who was commanded by the I.O. to take the dead body for post mortem examination. He proved Ext.10 the Command Certificate and Ext.11 the dead body challan as well as Ext.12 the seizure list in respect of wearing apparels of the deceased. P.W.10 is the I.O., who registered the case, seized the incriminating materials, conducted inquest over the dead body, sent the dead body for autopsy and after completion of investigation submitted charge sheet. 8. It is the settled principle of law that on the ground of relationship the evidence of a witness can not be discarded. P.W.1 is the son of the deceased. He vividly described the role played by the present appellant. He also proved the enmity between his deceased father and the appellant. Discrepancies appearing in the evidence of P.Ws.1 and 3 are minor in nature and bound to occur in case of truthful witnesses due to efflux of time. It is in the evidence of P.W.4 that just before the occurrence the deceased Arjun and his son 9P.W.1) were sitting on the verandah of P.W.4 and the evidence of P.W.4 gets corroboration from the evidence of P.W.2. It is evident from the evidence of P.W.5 (the seizure witness) and P.W.10 the I.O. and also from Ext.5 that the appellant while in police custody admitted his guilt, led the Police and the witnesses to the place of concealment and gave recovery of the weapons of offence (M.Os.1 & II). The Medical Officer (P.W.6) specifically opined that the seized weapons of offence can cause the injuries sustained by the deceased. The Chemical report also reveals that the seized kati and tangi were stained with blood. On a careful scrutiny of the evidence of record we are of the view that there is no infirmity or illegality committed by the trial Court in convicting the appellant. 9. For all the above reasons, there is no scope for this Court to interfere with the impugned judgment and order of conviction and sentence passed by the trial Court and the same is accordingly confirmed. The Jail Criminal Appeal is accordingly dismissed. Appeal dismissed. 3