PRADIP MOHANTY, J & B.K.NAYAK, J. JCRA NO. 06 OF 2002 ( Dt. 11.02. 2011) KENDU NAIK ………Appellant. .Vrs. STATE OF ORISSA ………Respondent. (A) CRIMINAL PROCEDURE CODE 1973 (ACT NO 2 OF 1974) - S.313. (B) CRIMINAL PROCEDURE CODE 1973 ( ACT NO 2 OF 1974) - S.154. For Appellant - Miss Deepali Mohapatra 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 23.11.2001 passed by the learned Additional Sessions Judge, Bhanjanagar-Aska, Circuit at Aska in S.C. No.7/99 (S.C.16/98 ADJ-1) by which the appellant has been convicted for commission of the offence under Section 302, IPC and sentenced to undergo imprisonment for life and pay a fine of Rs.5000/- in default to undergo rigorous imprisonment for one year. 2. The case of the prosecution is that on 31.05.1997 at about 9:00 PM, the Medical Officer of Konkoroda PHC treated the deceased Raghunath Polei and referred him to M.K.C.G. Medical College & Hospital, Berhampur for further treatment. On the next day, he intimated the police in writing about receipt of a medico-legal case and on being directed by the OIC, Pattapur P.S., the A.S.I. of Police of the said P.S. on 2.6.1997 made a preliminary inquiry and came to know that on 31.5.1997 at about 8:00 PM, the appellant assaulted the deceased by means of a Tangia on his head to cause death at Harijan Sahi of Village Bakilikana. Subsequently, the deceased was shifted to the S.C.B. Medical College and Hospital, Cuttack. On return to the Police Station, the ASI lodged FIR, pursuant to which the OIC registered the case u/s 307 IPC and directed him to investigate into the matter. On 5.6.97, the OIC received a V.H.F. message from I.I.C., Mangalabag P.S. that the deceased died on 4.6.97 at 2:30 PM while undergoing treatment at Cuttack. Accordingly, the case was turned to one under Section 302 IPC and the OIC took charge of the investigation from the ASI and after its completion filed charge sheet against the appellant under Section 302, IPC 3. The plea of the appellant is that at the relevant time, he was admitted in the hospital, as he had sustained injuries on his eye while cutting wood, and from there police arrested and falsely implicated him in this case. 4. In order to prove its case, prosecution examined as many as 14 witnesses including the doctor and the I.O. and exhibited 15 documents. The defence did not choose to adduce any oral evidence but exhibited one document marked Ext.A. 5. Learned Additional Sessions Judge on conclusion of the trial convicted and sentenced the appellant as indicated hereinbefore mainly relying on the evidence of P.W.5. 6. Miss Mohapatra, learned counsel for the appellant assails the impugned judgment on the grounds that there is unexplained delay in lodging the FIR. The witnesses, who have been examined as occurrence and immediate post-occurrence witnesses, being relatives of the deceased are interested witnesses. P.W.5 is a child witness and the evidence on record shows that she was tutored by the prosecution. Furthermore, the prosecution has failed to explain the injury sustained by the appellant. 7. Mr. Nayak, learned Additional Government Advocate, vehemently contends that the evidence of P.W.5 is very clear and cogent and as such trustworthy. Nothing has been elicited from her in cross-examination to demolish her evidence. Moreover, the deceased made a dying declaration before P.Ws.6 and 7, who are the widow and mother of the deceased, and there is no material to disbelieve their evidence. The medical evidence also corroborated the evidence of P.Ws.5, 6 and 7. Therefore, no infirmity or illegality has been committed by the learned Additional Sessions Judge in convicting the appellant under Section 302 IPC. 8. Perused the LCR. P.W.1 is the ASI of Police, who made a preliminary inquiry and found that on 31.5.1997 at about 8.00 PM the appellant has assaulted the deceased by means of a Tangia on his head to cause death at Harijan Sahi of Village Bakilikana. During investigation, he ascertained that the deceased was shifted to S.C.B. Medical College and Hospital, Cuttack. He also found that the appellant sustained some injuries. On 5.6.1997, on getting information from Mangalabag P.S. that the deceased died on 4.6.97 at 2:30 PM while undergoing treatment at Cuttack, the case was turned to one under Section 302, IPC and the OIC took charge of the investigation from him. Nothing has been elicited from him in his cross-examination to demolish the evidence. P.W.2 is the doctor who examined the deceased and found two incised injuries and referred him to Medical College at Berehampur for further treatment. He proved his report marked Ext.3/2. He has stated that the deceased was not in a conscious state of mind. He has further stated that the incised wounds noticed by him were possible by means of a Tangia. P.W.3 is the doctor who conducted autopsy over the dead body of the deceased and found following external injuries: “1. Abrasion on the middle of right chin of tibia of size 1.5 c.m. x 1 c.m. 2. Surgically stitched wound on left temporal area of 10 cm long with ten black silk stitches extending from anterior to posterior. 3. Surgically stitched wound from anterior aspect to posterior aspect of 9 cm long with five black silk stitches 2.5 cm above the injury no.2 2 4. Surgically stitched wound on the middle of the vault with two silk black stitches of 6 cm long. On dissection he found the following injuries: “1. Sub-Scalpal tissue contused with haematoma formation of the left side of the head. 2. Burr-hole of 1 c.m. dia-meter present on the left side parietal area, gel-foam given over it. Dura-metter stitched correspondingly. 3. Fissure fracture present on the left side frontal bone of 14 c.m. long. Left orbital plate fractured in continuation with the fissure fracture. 4. Left parietal lobe lacerated with haematomas formation. 5. Intra-cerebral petechael haemorr-hage present.” He opined that the cause of death was due to shock and haemorrhage as a result of cranio-cerebral injuries. External injury nos.2 to 4 and internal injury nos.1 to 5 were fatal in nature and sufficient to cause death in ordinary course of nature. The fracture injuries have been caused due to violent force of the weapon of offence. P.W.4 is the Havildar and a witness to the seizure of blood stained Gamuchha made vide Ext.8. P.W.5 is a child witness aged about 12 years. She is a witness to the occurrence. It transpires from her evidence that after taking bath from the river she and her father (deceased) were returning home. While they were on the village road, about 5 to 6 houses away from the house of the appellant, the appellant came towards them by holding a Parsuram Tangia and dealt a blow on the head of her father. He also gave two successive blows on the same place of the head of her father, for which her father fell down. Soon thereafter the appellant fled away to his house with that Tangia. Leaving her father, she ran to her house to call her mother, paternal grand-mother, two other sisters and her uncle, who were present in the house. She told about the occurrence to them and they rushed to the spot and found her father in breathless condition though was able to talk slowly. Thereafter, the deceased was removed to Konkoroda Hospital by means of a cot and from there to Cuttack for treatment. In cross-examination, she admitted that she was reading in Class-V in village school. Her father was assaulted inside JAGUALI SAHI. She also admitted that she had not seen any person coming near her father after the assault from the houses situate surrounding the spot. P.W.6 is the widow of the deceased and a post-occurrence witness. She came to the spot along with P.W.7 and others and found her husband with profuse bleeding on the backside of his head. On her query, the deceased with difficulties told that the appellant dealt tangia blows on his head and at that time her mother-in-law (P.W.7) was with her. In cross-examination, she admitted that there was no other house between her house and the house of the appellant. The place where her husband was assaulted was locally known as JAGUALI SAHI. She admitted that the age of P.W.5 was between 10 3 and 12 years at the time of occurrence. Nothing has been elicited from her in cross- examination to demolish her evidence. P.W.7 is the mother-in-law of P.W.6 and mother of the deceased, who corroborated the evidence of P.W.6 that on being asked the deceased disclosed that the appellant assaulted him. Nothing has been elicited from her in cross-examination to disbelieve her testimony. P.W.8 is the cousin brother of the deceased who deposed that he saw P.Ws.6 and 7 with their children crying near the deceased who was lying on the road with bleeding injuries on his head. P.Ws.6 and 7 told him that the appellant had caused those injuries. Thereafter, the deceased was shifted to Konkoroda PHC where the Medical Officer stitched and bandaged the wound and advised to take the deceased to Cuttack for treatment. P.W.9 is the nephew of the deceased and a post-occurrence witness. Hearing about the incident, he went to the place of occurrence and saw the mother and wife of the deceased were crying near him. On his query, the deceased with much difficulty told that the appellant had assaulted him. Thereafter, they shifted the deceased to the PHC and subsequently to Cuttack for treatment. P.W.10 is the younger brother of the deceased and a post-occurrence witness. He deposed that after taking bath when he was returning towards his house he saw the daughter and wife of the deceased were bringing him to the village Danda and there was severe bleeding injury on the head of the deceased. His mother, wife of the deceased (P.W.6) and Buli (P.W.5) told him that the appellant had assaulted the deceased. He along with others took the deceased on a cot to the PHC and from there to S.C.B. Medical College, Cuttack on the advice of the doctor. P.W.11 is a seizure witness, who proved the bed-head ticket (Ext.5).P.W.13 is the Investigating Officer who on receipt of the written intimation from the Medical Officer, Konkoroda PHC that the deceased and the appellant were undergoing treatment and that the deceased had been referred to M.K.C.G. Medical College & Hospital, Berhampur made an entry in the station diary and directed P.W.1 to enquire into the matter. On 05.06.1997, he took charge of the investigation from P.W.1 and on the very same day, he received the message from I.I.C., Mangalabag P.S. that the deceased died on 04.06.1997 at 2:30 PM. In cross-examination, he admitted that the appellant was treated as an indoor patient in the PHC from 31.5.1997 to 12.6.1997. P.W.12 is the I.O., who took charge of the investigation from P.W.13 on his transfer. During investigation, he visited the spot and deputed P.W.1 to Cuttack to obtain the wearing apparels of the deceased which he seized as per seizure list (Ext.8) and sent for chemical examination. He submitted charge-sheet after completion of investigation. P.W.14 is the Lecturer of Neuro Surgery Department of S.C.B. Medical College & Hospital, who stated that on being referred by M.O., Konkoroda PHC, he prepared the bed-head ticket. 4 9. On scrutiny of the entire evidence, it is clear that P.W.5 is an eye witness to the occurrence, who specifically stated about the assault given by the present appellant by means of a Tangia. She is the daughter of the deceased and at the time of examination her age was 12 years. She was tested by the trial court about her power of understanding and giving rational answers. She categorically deposed that she was with her father at the time of incident. Witnessing the occurrence, she rushed to her house and called P.Ws.6 and 7 who also corroborated this part of her version. Admittedly, the incident took place in the evening during summer. The ability of villagers in identifying a person whom they daily see even in darkness is much better than the person living in urban lighted areas. The fact that P.W.5 had correctly identified the appellant is corroborated by P.Ws.6 and 7 before whom the deceased disclosed the name of the appellant. Therefore, the theory of lack of visibility resulting in improper identification is inconsequential in the present case. 10. The evidence of P.W.5 cannot be disbelieved on the ground that she is a child witness when her evidence otherwise inspires confidence and there is nothing to show that she was tortured. There is nothing on record to disbelieve the evidence of P.Ws.6 and 7 that they went to the spot on being called by P.W.5 and on their query the deceased disclosed before them that it was the appellant who assaulted him. The evidence of P.Ws.5, 6 and 7 gets support from the evidence of P.Ws.9 and 10. 11. It is next contended by Miss. Mohapatra, learned counsel for the appellant that it is the duty of the prosecution to explain the injury on the person of the appellant and in the instant case the prosecution having failed to do so its case has to be viewed with suspicion. On careful perusal of the evidence available on record this Court does not find any iota of evidence to show that the appellant sustained injury on his person during the course of incident. Rather, the appellant in his statement recorded under Section 313 Cr.P.C. stated in reply to question no.13 that he sustained injury on his eye while cutting wood for which he was treated in the hospital. 12. So far as the contention of the learned counsel for the appellant with regard to delay in lodging the FIR is concerned, it transpires that on 31.05.1997 in the evening the occurrence took place. On the next day (01.06.1997), the Medical Officer, Konokoroda PHC intimated the police about receipt of a medico-legal case which reached the police station on 02.06.1997. On receipt of the same, P.W.1 made preliminary inquiry and finding that it was a case of cognizable offence of attempt to murder lodged the FIR after returning to the P.S. Therefore, delay in lodging the FIR cannot be fatal to the prosecution. 13. For the reasons recorded above, this Court comes to the conclusion that the appellant has been rightly convicted by the trial court and there is no scope for this Court to interfere with the impugned judgment of conviction and sentence which is accordingly upheld. 14. The JCRLA is dismissed. Appeal dismissed. 5