ORISSA HIGH COURT, CUTTACK. Jail Criminal Appeal No. 231 of 1998 From the judgment and order of sentence dated 20.08.1998 passed by Shri J.P. Mishra, learned Sessions Judge, Mayurbhanj, Baripada in S.T. Case No. 36 of 1997, under Section 302, I.P.C. ---------- Jadumani Dehuri … Appellant Versus State of Orissa … Respondent For Appellant : Mr. Arunendra Mohanty, Advocate. For Respondent : Addl. Standing Counsel. ---------- P R E S E N T : THE HONOURABLE MR. JUSTICE L. MOHAPATRA AND THE HONOURABLE MR. JUSTICE C.R. DASH --------------------------------------------------------------------------------------------------- Date of Hearing : 15.09.2010 Date of Judgment : 15.09.2010 --------------------------------------------------------------------------------------------------- 1. Though this appeal was listed for orders regarding bail, on consent of the learned counsel appearing for the appellant as well as the learned counsel for the State the appeal was taken up for hearing and disposal. 2. The appellant has been convicted by the learned Sessions Judge, Mayurbhanj at Baripada in S.T. Case No. 36 of 1997 for commission of offence under Section 302, I.P.C. and has been sentenced to imprisonment for life. 3. Case of the prosecution is that the deceased Daitari Dehury is the father-in-law of the appellant. Five to six months prior to the occurrence the appellant was residing at Ramjoli with his wife Tribeni Dehury (P.W.3) in the house of the deceased. On 27.09.1996 after taking food the appellant suddenly dealt a blow on the head of the deceased by means of a ‘katuri’ while the deceased was taking food in the courtyard of the house and thereafter the appellant ran away from the spot throwing the said ‘katuri’ at the spot. Hearing hulla of P.W.1 and her daughters several persons gathered in the house of the deceased. They chased the appellant and caught him at Dudhiani. The appellant confessed before them to have dealt a ‘katuri’ blow on the deceased. The matter was reported at the Police Station by the brother-in-law of the deceased and investigation was taken up by police. After investigation, charge-sheet was submitted against the appellant for commission of the offence under Section 302, I.P.C. 4. In course of the trial the prosecution examined eight witnesses, out of whom P.Ws.1, 2 and 3 are eye-witnesses to the occurrence and P.Ws.1 to 5 are also witnesses to the extra judicial confession made by the appellant soon after the occurrence. P.Ws.6 and 7 are the Investigating Officers and P.W.8 is the Doctor, who conducted post-mortem examination over the dead body of the 2 deceased. No witness was examined on behalf of the appellant. Learned trial court, relying on the evidence of P.W.1, the wife of the deceased, the extra judicial confession made before the witnesses by the appellant and the post-mortem report, found the appellant guilty of the charge and convicted him thereunder. 5. Sri Mohanty, learned counsel appearing for the appellant assails the impugned judgment on the ground that no reliance could be placed on the evidence of all the three so called eye-witnesses and the trial court though did not rely on the evidence of P.Ws.2 and 3, placed reliance on the evidence of P.W.1 without any basis. The extra judicial confession made before the witness, as was also challenged on the ground that it had not been made voluntarily by the appellant. Learned counsel for the State in support of the impugned judgment placed reliance on the evidence of all the three eye-witnesses to the occurrence as well as the extra judicial confession. 6. We have carefully examined the evidence adduced before the trial court. Undisputedly the prosecution examined P.Ws.1, 2 and 3 as eye-witnesses to the occurrence. P.W.1 is the widow of the deceased and she, in her deposition, has stated that in the evening of the date of occurrence the deceased was taking meal in the courtyard of the house and the appellant was also taking meal inside the house. The appellant suddenly brought a ‘katuri’ from the house and dealt a blow with the same on the head of the deceased and ran away from the spot throwing the said ‘katuri’ at the spot. She and her daughters shouted, as a result of which other people rushed to the spot and she 3 narrated about the incident. Basua, Budhuram and another caught hold of the appellant and brought him to her house. Other villagers had already gathered in the house of the deceased by then. On being asked, the appellant confessed to have killed the deceased by dealing one blow by means of a ‘katuri’ on the head of the deceased. So far as this witness is concerned, there is nothing in the cross-examination to disbelieve her statement. Learned counsel for the appellant drew attention of the Court to the cross-examination part of this witness and submitted that darkness had already set in and there was hardly any scope for this witness to see the occurrence, but we are unable to accept such contention considering the fact that the very same witness in the next sentence of her deposition has deposed that a ‘dibiri’ was burning in the house and moreover the appellant and this witness are related as son-in-law and mother-in-law. 7. So far as P.W.2 is concerned, she is the daughter of the deceased and also claims to have seen the occurrence along with P.W.1. However, in the cross-examination she has stated that at the time of actual assault she and her elder sister P.W.3 were inside the house. Relying on this statement of P.W.2, it is submitted before us that the learned trial court did not rely on the aforesaid two eye- witnesses. We are in agreement with the learned counsel for the appellant that P.W.2 having stated in her cross-examination that she and P.W.3 were inside the room when the actual assault took place, their evidence with regard to witnessing the assault on the deceased could not have been accepted and the trial court has also rightly placed no reliance on these two witnesses. However, the evidence of 4 P.W.1 stands undisturbed. P.W.8, who conducted the post-mortem examination, found one penetrating wound on the left temporal area of the skull of the deceased extending up to the pinna of the left ear. This witness was of the view that the injury could be caused by a sharp cutting weapon and the ‘katuri’ (M.O.-I), which had been seized, could cause such injury. Therefore, the evidence of P.W.1 that the deceased was assaulted once on the head by the appellant by means of a ‘katuri’ stands corroborated by the evidence of P.W.8. So far as the extra judicial confession is concerned, P.Ws.1, 3, 4 and 5 in their deposition have stated that in presence of the villagers, on being questioned, the appellant confessed to have killed the deceased. Even if we accept the contention of the learned counsel for the appellant that this statement made by the appellant in presence of the villagers was not voluntary, the order of conviction cannot be set aside in view of the evidence of P.W.1 and P.W.8. 8. For the reasons stated above, we find no justification to interfere with the impugned judgment. The appeal being devoid of merit stands dismissed. ………………….. L. Mohapatra, J. …………………. C.R. Dash, J. 5 Orissa High Court, Cuttack. The 15th day of September, 2010. /Parida. 6