HIGH COURT OF ORISSA, CUTTACK JAIL CRIMINAL APPEAL NO.17 OF 2000 From the judgment and order dated 18.12.1999 passed by Shri B.K.Nayak, Sessions Judge, Bolangir in S.C. No.73-B of 1998. --------- Arjun Kalasi …… Appellant Versus State of Orissa …… Respondent For Appellant : Mr. K.B. Kar For Respondent : Mr. J.P.Pattnaik, Additional Govt. Advocate. PRESENT: THE HONOURABLE SHRI JUSTICE PRADIP MOHANTY AND THE HONOURABLE SHRI JUSTICE B.P. RAY Date of hearing and judgment: 09.03.2010 PRADIP MOHANTY, J. The appellant has assailed the judgment and order dated 18.12.1999 passed by the learned Sessions Judge, Bolangir in S.C. No. 73- B of 1998 convicting him under Section 302, IPC and sentencing him to undergo imprisonment for life. 2. The case of the prosecution is that Samaru Barik (P.W.1) orally reported before Khaparakhol Police Station on 14.06.1998 that on the same day at about 8.00 A.M. while deceased Akshaya Barik was taking the goats of his master for grazing, the accused-appellant assaulted him in presence of P.W.4 and one Bipin Bariha by means of a tangia (axe) near an electric pole in his village causing serious bleeding injury on the neck which resulted in the death of the deceased on the spot. Hearing the occurrence, both the parents and uncle (P.W.1) of the deceased rushed to the spot and found him lying on the spot with injury on his neck. In absence of the O.I.C., the A.S.I. (P.W.9) reduced the oral report to writing, registered the case and proceeded with the investigation. On arrival of the O.I.C., P.W.9 handed over charge of investigation to him and after completion of investigation the O.I.C. submitted charge sheet against the appellant under Section 302, IPC. On commitment of the case to the Court of Session, the appellant faced trial under Section 302, IPC. 3. During the course of trial, the appellant took the plea of complete denial. The prosecution in order to prove its case examined as many as ten witnesses including the doctor and the I.O. and proved fifteen documents. Defence examined none. The learned Sessions Judge on conclusion of the trial found the appellant guilty and convicted and sentenced him as already stated herein before. 4. Perused the LCR. P.W.1 is the informant and the uncle of the deceased. He deposed that on hearing from Girna Kalari that the appellant was assaulting the deceased near an electric pole, he proceeded to the spot and found the deceased lying there with bleeding injury on his neck. The mother of the deceased was weeping there. He went to the Ward Member 2 but did not find him. On the advice of his elder brother (father of the deceased), he went to Khaparakhol Police Station and reported the matter orally, which was reduced to writing by the police. The contents of the report were read over and explained to him and finding the same correct, he put his signature. He proved the FIR Ext.1 and his signature thereon marked Ext.1/1. Nothing has been elicited in his cross-examination. P.W.2 is a witness to the inquest. P.W.3 is an independent witness, who stated in his evidence that on the date of occurrence at about 4.00 P.M. the police took the accused to custody and on interrogation by the police the accused admitted to have killed the deceased by assaulting him by means of a tangia and concealed the same in a Kendu bush of his land. The I.O. recorded the statement of the accused in a separate sheet on which the accused put his LTI. The accused, thereafter, led the police and the witnesses to the place of concealment and gave recovery of the tangia (M.O.I) which the police seized vide Ext.9. In cross-examination, this witness admitted that the Kendu bush from where the accused brought out the tangia stands in an open place. Except this, nothing has been elicited from his cross-examination. P.W.4 in his evidence specifically stated that on the morning of the date of occurrence he himself, the deceased and one Bipin Bariha went to the house of Bibhisan Kara (P.W.5), since the deceased was tending the goats of P.W.5. Deceased took his meal in the house of P.W.5, while he and Bipin remained waiting outside. After a while, both P.W.4 and Bipin came to the road and the deceased followed them with the goats of Bibhisan. When they were going ahead of the deceased to bring their goats for grazing, the accused was coming with his buffaloes for the purpose of grazing. He was holding a tangia. While they were proceeding, they heard a cry from their back side and a falling sound. On turning back, they found that the appellant had dealt a blow by means of the tangia he was holding on the back of the deceased and the deceased had fallen down. Thereafter, out of fear they went away. On reaching his house, P.W.4 disclosed the incident before his father. Bipin went away to his house. In cross-examination, he 3 admitted that the accused was coming from the right side of the deceased. There was no quarrel between the deceased and the accused. By the time he turned back, the deceased had already fallen down. The accused dealt one blow after the deceased fell down. Except this, nothing substantial has been brought out from him. P.W.5 is the master of the deceased. He specifically stated in his evidence that in the morning of the date of occurrence, the deceased came to his house along with Ranjaya Saraf (P.W.4) and Bipin Bariha. While the deceased was taking his meal, the other two boys kept waiting. After the deceased took his meal, P.W.4 and Bipin left his house followed by deceased with his goats. A little later, hearing hullah he went to the spot and found the deceased lying on the spot near the electric pole having sustained bleeding injury on his neck. Nothing has been elicited in his cross-examination. P.W.6 is the mother of the deceased. She deposed that the deceased used to tend the goats of P.W.5 with Bipin and P.W.4. While she and her husband were in the house, her nephew Chintamani came and told them that the appellant had assaulted the deceased. Immediately, she ran to the spot, which was near the electric pole. Her husband followed her. She found her son lying dead on the spot with bleeding injury on his neck. Nothing has been elicited from her in cross-examination. No suggestion was also given to her. P.W.7 is a witness to the seizure of the wearing apparels of the accused vide Ext.4. In cross- examination, he stated that by the time the wearing apparels of the accused were seized, he was in the custody of the police. P.W.8 is the doctor who conducted autopsy over the dead body of the deceased. He opined that the cause of death was due to haemorrhage and shock. Injury no.2 individually was sufficient to cause death in ordinary course of nature. He also opined that the cut injuries found on the body of the deceased were possible by the axe (M.I). P.W.9 is the ASI of police who was in charge of the O.I.C. on the date of occurrence. It is he who registered the case and took up investigation in absence of the OIC and arrested the accused. He specifically stated that while the accused was in police custody he admitted to have 4 assaulted the deceased by means of a tangia and concealed the same inside the Kendu bush near his house. Stating so, he led the police and the witnesses and gave recovery of the tangia which he seized under Ext.9. He recorded the statement of the appellant in separate sheets under Ext.10. On arrival of the OIC (P.W.10), he handed over the charge of investigation to him. In cross-examination, he admitted that the spot map prepared by him does not reveal that there are houses near the spot. He also admitted that he examined witnesses Padu Barik, Ranjaya Saraf, Girna Kalari, Natha Nag, Bijaya Kumar Mishra, Ramdas Kalari, Kunjabihari Panda and Hadu Bari. P.W.10 was the OIC of Khaprakhol P.S. at the relevant time. He took over the charge of investigation from P.W.9. He seized the wearing apparels of the accused vide Ext.4 and that of the deceased vide Ext.12 in presence of the witnesses. He made a query to the Medical Officer, Khaprakhol P.H.C. to opine as to whether the injuries on the person of the deceased could be caused by the seized axe (M.O.I). He sent the seized articles to RFSL, Sambalpur for chemical examination and on completion of investigation submitted the charge sheet. 7. Mr. Kar, learned counsel for the appellant strenuously contends that the prosecution has not examined the material witness Bipin Bariha. At the time of discovery of the weapon of offence, the appellant was not in police custody. He was arrested by P.W.10 after 4.00 P.M. He further contends that no blood stains were found either on the axe or in the lungi of the appellant. The evidence of P.W.4 has not been corroborated by any other witness. Therefore, the prosecution has not been able to prove the charge under Section 302, IPC against the appellant. 8. Mr. Pattnaik, learned Additional Government Advocate, on the other hand, contends that there are direct materials against the appellant. P.W.4 is an eye witness and his evidence is very clear and cogent with regard to the assault by the appellant to the deceased by means of the axe. The appellant gave recovery of the weapon of offence from the Kendu bush 5 and it has been proved by the I.O. and independent witnesses. He further contends that blood stains were found from the towel of the accused. Therefore, it can be safely concluded that the accused has committed the crime and the trial court has rightly convicted and sentenced him. 9. On scanning of the evidence on record this Court finds that P.W.4 is an ocular witness. His evidence does not suffer from any contradiction. Rather, his evidence gets corroboration from P.W.5, the master of the deceased, who stated that on the morning of the date of occurrence the deceased, P.W.4 and one Bipin Bariha had come to his house where the deceased took his morning meal. P.W.5 also corroborated the evidence of P.W.4 that the deceased followed him and Bipin with the goats of P.W.5. This P.W.4 has no enmity with the appellant. P.W.6, the mother of the deceased, also stated that in the morning of the date of occurrence, the deceased went to the house of his master (P.W.5) with P.W.4 and one Bipin Bariha. Although P.W.4 was cross-examined at length, nothing substantial has been brought out to disbelieve his evidence. He specifically stated that assault was given by the appellant to the deceased by an axe which is also corroborated by the medical evidence. The evidence of P.W.4 appears to be very clear, cogent and trustworthy. Moreover, the tangia was recovered in presence of P.W.3. P.W.3 is an independent witness who has no axe to grind against the appellant. Police seized the tangia vide Ext.9 and recorded the statement of the appellant vide Ext.10. There is no dispute with regard to recovery of the weapon of offence (M.O.I). After taking charge from P.W.9, P.W.10 formally arrested the appellant. ‘Custody’ for the purpose of Section 27 of the Evidence Act and Section 46 of the Cr.P.C. does not mean arrest. P.W.10 formally arrested the accused at 4.45 P.M., but he was in the custody of P.W.9 till he was formally arrested. It has been held in Bibhachha alias Bibachha Baitharu v. State of Orissa, (1997) 13 OCR 418 that the term ‘custody’ as contemplated in Section 27 of the Evidence Act does not mean formal custody, but includes such state of affairs in which the accused can be said to be in the hands of the police officer, even 6 under some surveillance or restriction on the movement of the person concerned. 10. The next question is whether non-examination of the material witness Bipin Bariha is fatal to the prosecution, as contended by the learned counsel for the appellant. In the instant case, P.W.4, who has been examined by the prosecution, is an eye witness. He is an independent witness and not related either to the appellant or to the deceased. He has no axe to grind against the appellant. It is not obligatory on the part of the prosecution to examine all the witnesses. Moreover, the lungi, shirt and towel which were seized from the possession of the appellant, contained patches of blood, though the origin of the blood could not be detected due to deterioration. Therefore, non-examination of the material witnesses does not affect the veracity of the prosecution case. For all these reasons, there remains no doubt that it is the appellant who committed murder of the deceased by dealing tangia blows to his neck. 10. In view of the discussions made above, this Court is of the considered view that the prosecution has been able to prove the charge against the appellant beyond all reasonable doubt and no illegality or infirmity can be said to have been committed by the trial court in convicting the appellant under Section 302, IPC. Therefore, the judgment of conviction and sentence passed by the trial court is confirmed and the Jail Criminal Appeal is dismissed being devoid of any merit. ….....……………………….. PRADIP MOHANTY, J. B.P.RAY, J. I agree. .…………………………… B.P. RAY, J. Orissa High Court, Cuttack, Dated 9th March,2010/Routray 7