HIGH COURT OF ORISSA, CUTTACK JAIL CRIMINAL APPEAL No.18 of 2001 From the judgment and order dated 13.12.2000 passed by Sri S.K. Nayak, Additional Sessions Judge, Angul in Sessions Trial No.71-A of 1996/37 of 1997. Trinath Behera ……… Appellant Versus. State of Orissa ……… Respondent For Appellant - Mr. Arunedra Mohanty. For Respondent - Miss. S. Mishra Addl. Standing Counsel. PRESENT THE HON’BLE SHRI JUSTICE PRADIP MOHANTY A N D THE HON’BLE SHRI JUSTICE B.P.RAY -------------------------------------------------------------------------------------- Date of hearing & judgment : 17.03.2010 PRADIP MOHANTY, J. This Jail Criminal Appeal is directed against the judgment and order dated 13.12.2000 passed by the learned Additional Sessions Judge, Angul in Sessions Trial No.71-A of 1996/37 of 1997 convicting the appellant under Section 302, IPC and sentencing him to undergo imprisonment for life. 2. The case of the prosecution is that the appellant and the deceased were working under one Kumuda Chandra Pradhan as Field Servants. The deceased was working at Kairiamba where as the appellant was working at Dimirpal. The deceased found 12 manas of ‘Ahar’ having been removed from the thrashing floor in his absence. On being asked, his son, the informant, told that the appellant and one Dasia Behera had come to the thrashing floor during his absence and they might have removed the same. On 05.03.1996, while the informant was sitting near a shop at Karatpata Chhaka, the appellant enquired about the deceased and challenged him about the allegation of theft. A quarrel ensued between them which was subsided by the persons present there. Then the appellant went towards Kairiamba. At about 2.30 PM, Basu Dehury (P.W.13) and one Mahuli Behera intimated the informant that his father was killed by the appellant. Hearing this, the informant went to the spot and found his father lying dead sustaining bleeding injuries on his neck, cheek and nose. He reported the incident to the police on the basis of which the case was registered, investigation taken up and on its completion charge sheet was submitted against the appellant. 3. The plea of the appellant is one of complete denial of the allegation. 4. In order to prove its case, prosecution examined as many as 19 witnesses including the doctor and the investigating officer, and exhibited 18 documents. Defence examined none. 5. The trial court after conclusion of the trial convicted the present appellant under section 302, IPC and sentenced him to undergo imprisonment for life with the finding that the prosecution has been able to establish that the appellant dealt three blows by means of a tangia and intentionally caused the murder of the deceased. 6. Mr Mohanty, learned counsel appearing for appellant assails the impugned judgment mainly on the following grounds: (i) P.W.10, who has been projected by the prosecution as only eye witness, is not a believable witness, as it was not possible on his part to see the assault from a distance of 50 yards. (ii) The extrajudicial confession said to have been made by the appellant has not been proved by the prosecution in 2 accordance with the provisions prescribed in the Evidence Act. No exact version of the appellant was reproduced by P.Ws.1 and 13 before whom appellant allegedly made the confession. Therefore, it cannot be treated as an extrajudicial confession. (iii) Admittedly, prior to the incident there was a quarrel between the deceased and the appellant and, therefore, the appellant has been falsely roped in this case. 7. Miss. Mishra, learned Additional Standing Counsel vehemently contends that the evidence of P.W.10 is very clear, cogent and reliable. He has categorically deposed that on the date of occurrence at about 1.00 PM the deceased was husking ‘Ahar’ on the thrashing floor adjoining his cattle shed. He was tending his buffaloes and talking with the deceased. Just then, the accused came there whirling a tangia, left the cycle at a distance, asked him to leave the spot and assaulted the deceased with the said tangia. There is nothing on record to disbelieve his testimony. This apart, P.Ws.1 and 13 stated about making of confession by the accused soon after committing the murder and by that time he was holding a tangia. The tangia seized by the police was found to have contained blood stains of human origin as per the report of the Chemical Analyst. P.W.12 has also deposed that the accused was holding a blood stained tangia and police seized the same vide Ext.10. Therefore, there is no illegality or infirmity committed by the trial court in convicting the appellant. 8. Perused the LCR. In the instant case, P.W.3 is the informant and the son of the deceased. He stated that prior to the incident there was no good term between the deceased and the accused. On the date of occurrence, the accused came and enquired about his father from him. The accused also challenged about the allegation of theft of Aharar, abused him and caught hold of his hair. Rasa (P.W.7) and Sudarsan (P.W.8) separated them. At about 2.00 PM, one Mahuli Behera and Basudeb Dehury (P.W.13) informed him that the accused had killed his father. He went to the 3 spot and found his father lying dead having injuries on his nose, jaw, neck, chest and hands. He lodged the FIR before the police station. P.W.17, Kumuda Chandra Pradhan, master of the deceased as well as the accused, also accompanied him to the police station. He proved the FIR marked Ext.1 and his signature as Ext.1/1. Nothing has been elicited by way of cross- examination to discredit his testimony. His evidence has been corroborated by the FIR. P.W.10, the only eye witness, is a co-villager. He stated that on the date of occurrence at about 1.00 PM he was tending buffaloes. The deceased was husking the ‘Ahar’ on the thrashing floor adjoining the cattle shed. He was talking with the deceased. Accused came there holding a tangia, left the cycle at a distance and asked him to leave the spot. He went to a distance of 10 to 12 feet. Then he saw the accused assaulting the deceased with a tangia. The deceased was requesting him with folded hands not to assault him. But the accused assaulted him. Out of fear, he went away with his buffaloes and subsequently he heard that the deceased died due to such assault. His statement was recorded under Section 164, Cr.P.C. In cross-examination, he admitted that the thrashing floor had no fence and that he had no knowledge about the previous quarrel between the accused and the deceased. The accused also worked with the deceased. He also admitted that he saw the accused dealing 2 to 3 blows and both the accused and the deceased were visible to him and no other persons were present there. Nothing has been elicited through cross-examination to demolish his evidence. P.W.9 is the doctor who conducted autopsy over the dead body of the deceased and found the following injuries: “(1) Abrasion of irregular size and shape in an area of 12” x 3” on right lateral side of chest. (2) Abrasion 1” diameter on redial side of right forearm 3” above the wrist. (3) Cutting injury 3½” x ¼” x ¼” on middle of ulna side of left forearm. (4) Cutting injury 2” x 1” on shoulder of left side. (5) Cutting injury 3½” x ½” x 2” on the face in front of the left ear cutting the ramas of mandible. 4 (6) Cutting injury 2” x ½” x ½” in front of injury no.5 cutting the cheek completely. (7) Cutting injury 3½” x ½” x 2” on left side of nose cutting the nose, nasal bone and maxilla of left side. (8) Cutting injury 3½” x 1” x 3” on the root of the neck on left side cutting the vessels, muscles and cervical vertibra at 6 C level with the spinal cord.” He opined that all the above injuries except nos.1 and 2 were ante mortem in nature and caused by hard and heavy cutting weapon. Cause of death was haemorrhage and shock mostly due to injury no.8. Except injury nos.1 and 2, other injuries were sufficient to cause death in ordinary course of nature. He also stated that the weapon of offence, i.e., the axe was produced before him for examination and he had opined the all the above injuries except injury nos.1 and 2 were possible by the same. P.W.1 is a co-villager who stated about the quarrel between the informant and the accused. He also stated about the extrajudicial confession made by the accused. Nothing has been elicited from his mouth in cross-examination to discredit his testimony. P.W.2 is another co-villager who stated that the accused was intoxicated before the occurrence and after the occurrence. P.W.4 is also another co-villager and a witness to the seizure of the wearing apparels of the accused. P.W.5 is the tea stall owner and a witness to the seizure of the wearing apparels of the accused. P.W.6 is a witness to the inquest. P.W.7 and 9 are co-villagers who stated about the quarrel between the accused and the informant. P.W.11, who is a police constable, is a witness to the inquest and also to the seizure of the wearing apparels of the deceased vide Ext.8. P.W.12 is a witness to the seizure of the blood stained earth and sample earth vide Ext.9 and blood stained tangia vide Ext.10. P.W.13 is another co-villager who also stated about the quarrel between the accused and the informant. He further stated that after the accused and the informant were separated, the accused went towards Dimiripal and the informant went to his house. After a while, the accused came with a tangia and went towards Khairiamba. Some time thereafter, the accused came whirling a tangia and shouted “Danda Ku Hani Deichhi Kaana Kariba Kara”. At about evening, he heard that Danda was killed. In cross-examination, he admitted that he was at a distance of 5 feet 5 from the accused when he was shouting. He corroborated the statement of P.W.1 with regard to the declaration made by the accused. P.W.14 is another co-villager who stated to have heard about the murder of the deceased from Basudeb (P.W.13). P.W.15 is the R.I. who prepared the spot map. P.W.16 is a witness to the seizure of the blood stained earth and sample earth vide Ext.9 and also to the seizure of the axe from the possession of the accused vide Ext.10. He proved Exts.9 and 10. P.W.17 is Kumud Chandra Pradhan under whom both the accused and the deceased were working. He had also accompanied P.W.3 to the police station and put his signature in the FIR and proved the same. P.W.18 is the A.S.I. of police who at the relevant time was attached to Purunakote P.S. He registered the case, examined some of the witnesses, seized M.O.I and ultimately handed over the charge of the investigation to the C.I. of police (P.W.19). Nothing has been elicited through cross-examination to discard his evidence. P.W.19 is the I.O. who sent the wearing apparels of the accused and the tangia for chemical examination, forwarded the accused and after completion of investigation submitted charge sheet. Nothing has been elicited by way of cross-examination to discredit his testimony. 9. From the above analysis of the prosecution evidence, it reveals that P.W.10 is the only ocular witness. He specifically stated that the accused-appellant dealt three blows by a tangia in spite of request of the deceased with folded hand not to assault him. There is no material to disbelieve the evidence of P.W.10. Immediately after the occurrence, the accused made a declaration that “Danda Ku Hani Deichhi Kaana Kariba Kara” before P.Ws.1 and 13. Nothing was suggested to these witnesses to show that they gave different version before the I.O. to hold that they failed to describe the exact word uttered by the accused. The I.O. (P.W.18) seized the blood stained tangia from the possession of the accused and the same was sent for chemical examination. Ext.16, the chemical examination report, reveals that human blood was found on the tangia. P.W.1 and other witnesses stated about the previous quarrel between the accused and the deceased. A conjoint reading of the evidence of the eye witness (P.W.10) and that of P.Ws.1 and 13 with regard to the extrajudicial confession made by 6 the accused and other circumstantial evidence available on record clearly shows that the appellant dealt tangia blows which caused the death of the deceased. 10. For the reasons stated above, there is hardly any score for this Court to interfere with the judgment of conviction and sentence passed by the trial court. The Jail Criminal Appeal is accordingly dismissed. …………………………. Pradip Mohanty,J. B.P. RAY, J. I agree. ……………………….. B.P.RAY, J. Orissa High Court, Cuttack Dated 19th. Jan.,2010/Routray 7