HIGH COURT OF ORISSA, CUTTACK JAIL CRIMINAL APPEAL No.192 OF 1999 From the judgment and order dated 05.07.1999 passed by Shri B.B. Kar, Additional Sessions Judge, Rairangpur in S.T. Case No. 20/169 of 1998. Bhunda Mohakud & Another ……… Appellants Versus State of Orissa ……… Respondent For Appellants - Miss. Babita Sahu For Respondent - Mr. J.P. Pattnaik Addl. Govt. Advocate PRESENT THE HON’BLE SHRI JUSTICE PRADIP MOHANTY A N D THE HON’BLE SHRI JUSTICE B.P.RAY -------------------------------------------------------------------------------------- Date of hearing & judgment : 18.01.2010 PRADIP MOHANTY,J. In this appeal from jail the appellants seek to challenge the judgment and order dated 05.07.1999 passed by the learned Additional Sessions Judge, Rairangpur in S.T. Case No.20/169 of 1998 convicting them under Section 302/34 IPC and sentencing each of them to undergo rigorous imprisonment for life. 2. The case of the prosecution is that on 21.06.1998 P.W.3 appeared before Bahalda police station and reported orally that he used to prepare bricks in the bricks factory of one Ashok Satapathy. His son-in-law Dula Munda, the deceased, also used to work in that bricks factory. Fifteen days prior to the date of occurrence, appellant no.1 had declared before him and others that the deceased would be murdered as he had kept illicit relationship with his (appellant no.1’s) wife. On the date of occurrence at about 12.00 noon, Loba Mahakud, the deceased, Kangalu, Tutulu and the informant had been to the house of Ashok Satapathy to bring money for construction of bricks. As Ashok Babu told them to pay money at the time of Gamha, they came back. Of them, the informant, deceased Dula Munda and Laba sat on the village tank. Then deceased Dula Munda said that he would go to the house of his ‘Soya’ (sworn friend) to arrange two labourers to plough his land and saying so he went inside the colony where his ‘Soya’ was staying. Sometimes thereafter, appellant no.1 holding an axe went in that direction along with appellant no.2. Seeing them when the informant asked as to where were they going, they replied that they were going to cut the tree. The informant and Laba, thinking that deceased would come with the labourers later, started walking without waiting for him. After coming to a little distance, they heard hullah of the wife of Kangulu and the daughter of Balaram to the effect that there was a murder. Hearing the shout, the informant and Laba rushed to the spot and found deceased Dula Munda lying there with bleeding injuries and appellant no.1 had been held by the villagers. The O.I.C., Bahalda police station reduced the oral report of the informant (P.W.3) to writing and registered a case under sections 307/34 I.P.C. against the present appellants, went to the spot and shifted the injured to the hospital. As the deceased succumbed to the injury at the hospital, the case was turned to one under section 302/34 IPC. 3. The defence plea is one of complete denial. The further plea of accused-appellant Bhunda was that while the deceased was dragging his wife for illicit connection, he objected and when the deceased attempted to assault him by holding an axe, one Balaram Lohar caught hold of the said axe and in that process the axe hit on the belly of the deceased, for which the deceased sustained profuse bleeding injuries. 4. In order to prove its case, prosecution examined as many as ten witnesses including the doctor and the I.O. and exhibited twelve documents. Defence examined appellant no.2 Sukramani Mohakud as D.W.1 in support of its plea. 5. The trial court on conclusion of the trial convicted the present appellants under section 302/34 IPC and sentenced each of them to undergo rigorous imprisonment for life with the finding that both the appellants jointly and with a common intention had killed the deceased since from the evidence on record it transpired that while accused Sukrumani had caught hold of the hairs of the deceased, at that time accused Bhunda dealt an axe blow on his left waist. 6. Miss Sahu, learned counsel for the appellants assails the judgment of the trial court on the following grounds: (i) P.W.1 is not an eye witness and there are major contradictions in his evidence and he also suppressed the material facts. 2 (ii) The evidence of a defence witness deserves equal consideration as that of a prosecution witness. But in the instant case the trial court has completely ignored the evidence of D.W.1. (iii) The defence version is very clear and cogent and it gets corroboration from the evidence of P.W.7 as well as the FIR. 7. Mr. Pattnaik, learned Additional Government Advocate, on the other hand, contends that P.W.1 is a witness to the occurrence. His evidence is not only clear, cogent and consistent but also inspires confidence. P.Ws.2, 3, 4, and 7, the post occurrence witnesses, have supported the evidence of P.W.1. These witnesses corroborate each other and there is no material on record to disbelieve their evidence. Therefore, there is no illegality committed by the trial court convicting the appellants under section 302/34 IPC. 8. Perused the LCR. P.W.1 in his deposition stated that while deceased Dulla was going from his house, accused Sukurmani caught hold of his hairs and accused Bhunda dealt an axe blow on the left waist of the deceased, as a result of which, the deceased sustained severe bleeding injury. He raised hullah hearing which his nephew Haradhan Lohar (P.W.2) came to the spot and both of them caught hold of accused Bhunda and tied him to a tree with a rope. In cross- examination, he specifically admitted that there was a tussle between the accused persons and the deceased. After the assault the other villagers came to the spot. He is also a witness to the seizure of sample earth, blood stained earth, towel of the deceased and the rope. P.W.2 stated that he came to the spot after hearing the hullah of P.W.1. He found accused Bhunda running away from the spot. He and P.W.1 caught hold of him and tied him with a rope to a tree. He also found one serious cut injury on the left waist of the deceased Dulla. One blood stained axe was kept at the spot. Admittedly, he had not seen the actual assault. P.W.3 is the informant and father-in-law of the deceased. He stated that hearing hullah of two ladies, he rushed to the spot and found that deceased Dulla had sustained severe bleeding on his left side waist and that accused Bhunda was tied with a rope to the tree. He proved the FIR. P.W.4 is another post occurrence witness. In his evidence, he specifically stated that when he reached the spot he found accused Bhunda was tied to a tree by means of a rope and the deceased having sustained severe bleeding injuries on his waist was lying there. P.W.5 is the doctor, who conducted autopsy over the dead-body of the 3 deceased. He opined that all the injuries were ante mortem in nature. The death was due to haemorrhage and shock, resulting from femoral vessels injuries. P.W.6 is the doctor, who treated the deceased first and found one incised injury of size 6 cm. X 3 CC X 6 cm on the left lower abdomen just above iliac spine at the level of 4 lumber. He referred the deceased to S.D. Hospital for better treatment. In cross-examination, he stated that the I.O. requested him to record the dying declaration of the deceased but as the deceased was not in a position to talk, he could not record the dying declaration. P.W.7 is another post occurrence witness. He deposed that on being informed that deceased Dula was lying injured, he went to the spot and found cut injury on the left waist abdomen of the deceased. He arranged the vehicle and sent the deceased to the hospital. In cross-examination, he admitted that deceased had illicit relationship with accused Sukrumani and at the spot accused Bhunda told him that there was illicit relationship between his wife and the deceased and for that there was quarrel between them. P.W.8 is a seizure witness but he stated that the police did not seize any thing before him. P.W.9 is the doctor, who examined accused Bhunda and found the following injuries : (i) One abrasion 3” x 3” x 4” like half circle manner (ii) One abrasion 1” x 1”, 2 1/2” below the right pelvic region on the outer aspect of thigh. P.W.10 is the Investigating Officer. He stated that he reduced the oral report of P.W.3 to writing, registered the case, took up investigation during course of which he seized the axe, blood stained earth, sample earth and ultimately filed charge sheet. He also collected the nail clappings and blood sample of accused Bhunda. In cross examination, he admitted that in the FIR the informant P.W.3 had mentioned that the deceased had illicit relation with accused Sukurmani and for that her husband accused-Bhunda was annoyed. Appellant no.2 has been examined as D.W.1. She specifically stated that seeing her alone, the deceased came and dragged her for illicit connection and while the deceased was opening her saree, her husband came and there was a tussle between the deceased and her husband. When the deceased attempted to assault her husband by holding an axe, Balaram Lohar caught hold of the said axe and the said axe hit on the belly of the deceased for which the deceased sustained profuse bleeding injury. 9. On scrutiny of the entire evidence, it is clear that there was a tussle between appellant no.1 and the deceased over illicit relationship between the 4 deceased and appellant no.2. P.W.7 in his cross examination specifically stated that at the spot accused Bhunda told him that there was illicit connection between his wife and the deceased and for that there was a quarrel between them. In the FIR, the informant (P.W.3) also admitted about the illicit relationship between the deceased and appellant no.2. The evidence of the doctor P.W.9, who examined appellant no.1 and found some injuries on his person shows that there was a tussle between the deceased and appellant no.1. The prosecution has withheld from examining two eye witnesses. It is also found from the evidence of P.Ws.2 and 3 that hearing hullah of two ladies, they rushed to the spot. By taking into account the entire evidence and the fact that there was a quarrel between the deceased and appellant no.2 and that only one blow was given to the deceased by appellant no.1, this Court finds the present appellants guilty of committing the offence under Section 304 (Part-I)/ 34 IPC. Accordingly, conviction of the appellants under Section 302/34 IPC is converted to one under Section 304 (Part-I)/34 IPC and they are sentenced to undergo rigorous imprisonment for ten years. 10. It is stated by Miss. Sahu that the appellants have remained in custody for more than ten years. If that be so, the appellants Bhunda Mohakud and Sukrumani Mohakud be set at liberty forthwith, unless their detention is required otherwise. The Jail Criminal Appeal is allowed in part. ………………………........ PRADIP MOHANTY,J. B.P.RAY, J. I agree. …………………………….. B.P.RAY, J. Orissa High Court, Cuttack The 18th January, 2010/Routray 5