PRADIP MOHANTY ,J & B.K.NAYAK, J. JCRA. NO.71 OF 2000 (Decided on 12.01.2011) SANIA SISA ……………. Appellant. .Vrs. STATE OF ORISSA ……………. Respondent. For Appellant - M/s. B.S.Tripathy, M.K.Rath, R.K.Singh & Miss. P.D.Choudhury. For Respondent - Mr. Soubhagya Ketan Nayak (Addl. Govt. Advocate.) PRADIP MOHANTY, J. This Jail Criminal Appeal is directed against the judgment and order of conviction dated 08.10.1999 passed by the learned Additional Sessions Judge, Malkangiri in S.C. Case No.13 of 1999 (Sessions Case No.113/96 of Sessions Judge, Jeypore) convicting the appellant under Sections 302 I.P.C. and sentencing him to undergo imprisonment for life. 2. The case of the prosecution is that on 10.1.1996 at about 11:00 AM, the informant (P.W.1) came to Mudulipada Police Station and reported orally that on 9.1.96 at about 8:00 PM, Hadi Kirsani, Hadi Sisa and Mangala Sisa quarrelled with each other. Hadi Sisa and Mangala Sisa chased Hadi Kirsani to kill by holding bow and arrow. Hearing hullah, the deceased came out of his house and at that time Hadi Sisa shot an arrow aiming at him which pierced his chest. Hearing hullah of the deceased ‘BHAI MARIGALI, MARIGALI’, the informant came immediately and found the arrow pierced on the chest of his brother and both Hadi Sisa and Mangala Sisa fleeing away. The informant removed the arrow from the chest of the deceased and gave water to him but, immediately the deceased succumbed to the injury. Since the occurrence took place in the night, the informant could not come to PS and on the next day at about 11 AM, he came and reported the matter at P.S. The Officer-in-Charge of Mudulipada P.S. reduced the oral report of the informant to writing, drew up formal FIR, registered the case and took up investigation. After completion of investigation, he submitted charge- sheet against the accused u/s 302 IPC. 3. The plea of the appellant is of complete denial of the allegations. 4. In order to prove its case, the prosecution examined as many as seven witnesses including the doctor & I.O. and exhibited eleven documents and the defence examined none. 5. Learned Additional Sessions Judge, who tried the case, convicted and sentenced the appellant, as already stated hereinbefore, basing upon the evidence of P.W.2 and the doctor (P.W.6) 6. Mr. Pati appearing on behalf of Mr.B.S.Tripathy, learned counsel for the appellant challenged the order of conviction mainly on the following grounds: (i) No iota of evidence is there against the present appellant implicating him with the crime; (ii) P.W.2, who is said to be the sole eye witness, is not a trustworthy witness; (iii) The charge-sheet has been filed against the present appellant, but in the FIR the informant has specifically stated that Hadi Sisa, son of late Sama Sisa shot an arrow to the deceased. 7. Mr.Nayak, learned Additional Government Advocate contended that the FIR is very clear and cogent. P.W.1, who is the brother-in-law of the accused, has lodged the FIR on the next day of the occurrence. The evidence of P.W.2, who is the eye witness, is clear and cogent and is corroborated by the medical evidence. The seizure of arrow has been made from the accused in presence of the independent witnesses. 8. Perused the LCR. In the instant case, P.W.1, is the informant who has stated that hearing hullah, he came to the spot and found one arrow fixed on the chest of the deceased. He removed the arrow and the deceased died in the mid-night. But in his cross-examination, he admitted that he has not seen who shot the arrow on the chest of the deceased. P.W.2 is an eye witness to the occurrence. He specifically stated that the appellant shot an arrow pierced on the chest of the deceased and he was near the spot. Seeing the incident, he went to his house and the deceased died in the night. In his cross-examination, he admitted that except him, no one was present at the spot. He was at a distance of 80 cuibits from the spot. He has also admitted that the deceased was his son-in-law and he was not talking with the accused. On recall by the defence, he admitted that the day of occurrence was a dark night and prior to occurrence, Hadi Sisa and Hadi Badanaik quarrelled with each other and by the time the deceased came for urination the arrow was shot on him. He has also admitted that he had not seen who shot the arrow. This witness was recalled by the prosecution and on recall he stated that he saw the accused shooting arrow on the chest of the deceased and that he was present near the spot and that he did not understand what the defence counsel asked. P.W.3 is a witness to the seizure of bow and sample earth. He proved Exts.1 and 2. P.W.4 is also a witness to the seizure of arrow and he proved Ext.2. P.W.5 is the police constable who guarded the dead body. He is also a witness to the seizure of wearing apparels of the deceased vide Ext.5. P.W.6 is the doctor, who conducted the post-mortem examination over the dead body of the deceased and found the following injuries: “External Injury (i) One injury on the right side of the chest size 4 cm X 2 cm X 5 cm bleeding in nature. The injury is situated in between 7th and 8th intercostals space, caused by an arrow Internal Injury (ii) Injury on the right side liver about 2” in length and there is fracture of 8th rib.” 2 He opined that all the injuries were ante-mortem in nature and the cause of death was due to severe bleeding injury of intra abdominal as a result of direct stroke by an arrow on the liver. On examination of the arrow produced by the I.O., he opined that injury caused on the person of the deceased was possible by the arrow. P.W.7 is the OIC, who registered the case, took up investigation, sent the wearing apparels for chemical examination and ultimately after completion of the I nvestigation, filed charge-sheet against the present appellant. No effective question has been put to him in the cross-examination, besides a formal suggestion. 9. On scrutiny of the entire evidence, it appears that the conviction of the appellant has been recorded basing on the sole testimony of P.W.2 corroborated by the medical evidence. The occurrence took place during night at 8 PM in the month of January, 1996. P.W.2 saw the occurrence by standing at a distance of 80 cubits from the spot. In cross-examination, he admitted that he had not seen who shot the arrow. Again on recall by the prosecution, he stated that the accused-appellant shot the arrow on the chest of the deceased who is his son-in-law. Considering the nature of the evidence, he cannot be considered as a trustworthy witness. It is not possible to witness the occurrence from a distance of 80 cubits in the dark night. He also admitted that he had not seen the accused. Therefore, he is not a believable witness. If P.W.2 had seen the occurrence, he should have disclosed the name of the accused to the informant, who came to the spot immediately. But in the FIR, P.W.1 mentioned the name of Hadi Sisa, son of Sama Sisa as the accused In view of the above, it is not safe to convict the present appellant basing upon the evidence of untrustworthy witness. Therefore, this Court sets aside the impugned judgment and order of conviction dated 08.10.1999 passed by the learned Additional Sessions Judge, Malkangiri in S.C. Case No.13 of 1999 (Sessions Case No.113/96 of Sessions Judge, Jeypore) and acquits the appellant of the charge. The appellant Sania Sisa be set at liberty forthwith, unless his detention is required otherwise. 10. The Jail Criminal Appeal is allowed. Appeal allowed. 3