ORISSA HIGH COURT,CUTTACK JCRA NO. 302 OF 2000 From the judgment and order dated 2.11.2000 passed by Shri S.K.Mohapatra, learned Sessions Judge, Sundargarh in Sessions Trial No.140 of 1997 arising out of G.R.Case No.86/1997 of the file of learned J.M.F.C., Rajgangpur corresponding to Kutra P.S.Case No.13 of 1997. ---------- Bipin Singh … Appellant -versus- State of Orissa … Respondent For appellant - M/s B.L.Tripathy, B.P.Tripathy and N.Tripathy. For respondent - Mr.S.K.Das, Additional Standing Counsel. PRESENT: THE HONOURABLE SHRI JUSTICE L.MOHAPATRA AND THE HONOURABLE SHRI JUSTICE B.K.PATEL ---------------------------------------------------------------------------------- Date of hearing and judgment-22.11.2011 ---------------------------------------------------------------------------------- B.K.Patel,J. By the impugned judgment and order dated 2.11.2000 passed by the learned Sessions Judge, Sundargarh in Sessions Trial No.140 of 1997 the appellant has been convicted and sentenced to undergo imprisonment for life under section 302 of the Indian Penal Code ( for short, the I.P.C.) for having committed murder of deceased Sukmati Singh. 2. P.W.9 is deceased Sukmati’s husband. Appellant is P.W.9’s brother’s son. P.W.5 is deceased’s son. Occurrence took place on 1.5.1997. 3. Prosecution case is that soon before the occurrence deceased was feeding milk to her child and P.W.5 was present nearby. At that time appellant came there and sat in the verandah of their house. After sometime appellant left the house of the deceased but returned from the way and assaulted the deceased by means of sword M.O.I. Thereafter, he ran way throwing the sword at the spot. P.W.5 picked up the sword and chased the appellant, but he found the appellant along with his brother-in-law co-accused Kamlal Badaik running away. P.W.5 kept the sword concealed below dry leaves near his house. In the evening informant P.W.1 who happens to be Ward Member of the locality came to know about the occurrence. He went to the deceased’s house and found the deceased lying dead in front of her house with injury on her neck. On the basis of First Information Report Ext.1 presented by P.W.1 in Kutra Police Station, Officer In-charge P.W.14 registered the case and took up investigation. On completion of investigation, charge-sheet was submitted against the appellant and co-accused Kamlal Badaik for commission of offence under section 302 read with 34 of the I.P.C. 4. Appellant took plea of complete denial of the prosecution case. 2 5. In order to substantiate the charge prosecution examined 14 witnesses. As has been stated above P.W.1 is the informant and a post-occurrence witness whereas P.W.5 deceased’s son is an eyewitness, P.W.9 is deceased’s husband and P.W.14 is the Investigating Officer. Informant P.W.1 witnessed the inquest and certain seizures also. So also, P.W.9 is an inquest witness. P.Ws.2,3,4,6,7,8 and 9 were declared to be hostile witnesses. P.Ws. 10,11 and 13 are police personnel who were associated with the investigation. P.W.12 is the doctor who conducted post mortem examination over the dead body of the deceased. Prosecution also relied upon documents marked Exts.1 to 15 and material objects M.Os. I, II and III. No defence evidence was adduced. Placing reliance on the ocular testimony of P.W.5 corroborated by medical evidence, trial court held the prosecution to have proved the charge under section 302 of the I.P.C. against the appellant. However, co-accused Kamlal Badaik was acquitted of the charge. 6. In assailing the impugned judgment it is contended by the learned counsel for the appellant that trial court should not have recorded the conviction of the appellant on the basis of sole testimony of deceased’s son P.W.5. According to her, P.W.5 is an interested witness. 3 7. Learned counsel for the State places reliance on the evidence of P.W.5 and P.W.12 in order to support and defend the impugned judgment. 8. Admittedly, most of the witnesses, i.e. P.Ws. 2,3,4,6,7,8 and 9 were declared to be hostile witnesses. Their evidence as well as evidence of formal witnesses P.Ws.10, 12 and 13 is of little consequence in furthering the case of the prosecution. 9. P.W.5 is the only eyewitness to the occurrence. He happens to be son of the deceased. However, relationship by itself does not make a witness interested. It is well settled that conviction in a criminal trial can be based on the testimony of a solitary witness if his/her evidence satisfies legal acceptance. The intrinsic worth of evidence of P.W.5 has to be appreciated on its own. P.W.5 testified that on the date of occurrence at about 4.30 P.M. while the deceased was present in the verandah along with him, appellant came there. Seeing him deceased offered the appellant a cot. In the meanwhile, P.W.2, a co-villager, also came to their house. Deceased asked P.W.2 to get kusuna (wine) for the appellant saying that her son had come after long time. However, P.W.2 refused to get kusuna as it was evening and left their house after sometime. Thereafter, appellant also paid respect to the deceased and left the house. After going to a distance appellant 4 returned with sword M.O.I and assaulted the deceased while she was feeding milk to P.W.5’s younger brother. Appellant dealt two blows and ran away throwing the sword. Picking up the sword P.W.5 chased after the appellant and found the appellant and co- accused running together for their escape. P.W.5 testified that he concealed the sword under a dry leaves near his house and thereafter informed P.W.2 regarding the occurrence. P.W.5 also testified that he showed to police the place where he had concealed the sword upon which the sword M.O.I was seized. Though P.W.5 appears to be of tender age of about 12 years, he is found to have withstood the rigour of cross-examination, in course of which P.W.5’s testimony is not found to have been discredited in any manner. It may be observed that P.W.5 is deceased’s son and appellant’s cousin. He would be the last person to spare the real culprit and implicate an innocent person with the allegation of commission of his mother’s death. 10. P.W.12 found incised wounds on deceased’s neck, right breast and right elbow joint. He opined that cause of deceased’s death was due to shock and excessive bleeding from the injuries to the vital organs. Injuries were ante-mortem in nature and were sufficient to cause death in ordinary course of nature. P.W.12 also opined that injuries were possible by sword M.O.I. Thus, unimpeachable evidence of P.W.5 gets square corroboration from medical evidence. 5 11. That apart, informant P.W.1 also testified that being informed regarding murder of the deceased, he proceeded to the spot and found dead body of the deceased lying on the road side in front of her house. Her neck was cut. He learnt from P.W.5 that appellant killed the deceased by means of sword. Evidence of P.W.1 is materially corroborated by the contents of the F.I.R. Ext.1 lodged before P.W.14 soon after the occurrence. 12. Thus, on analysis of the evidence on record, we find no infirmity in the evidence of P.W.5 which is corroborated by medical evidence and other incriminating circumstances. Appellant has not made out any ground for interference with the impugned judgment. There is no merit in the appeal and the same is dismissed. ……………………… L.Mohapatra,J. …………………… B.K.Patel,J. Orissa High Court, Cuttack, Dated 22nd Nov.,2011/Palai 6