ORISSA HIGH COURT, CUTTACK. Jail Criminal Appeal No. 44 of 2001 From the judgment and order of sentence dated 15.05.2001 passed by Shri S.K. Mishra, learned Addl. Sessions Judge, Jeypore in Sessions Case No. 7 of 2000, under Section 302, I.P.C. ---------- Soda Sirika … Appellant Versus State of Orissa … Respondent For Appellant : Miss Tapaswini Sinha, 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 : 18.08.2010 Date of Judgment : 18.08.2010 --------------------------------------------------------------------------------------------------- 1. This appeal arises out of the judgment and order of sentence dated 15.05.2001 passed by learned Addl. Sessions Judge, Jeypore in Sessions Case No. 7 of 2000. Learned Trial Court found the appellant guilty of the offence under Section 302, I.P.C. and sentenced him to suffer life imprisonment and pay fine of Rs.1,000/- (one thousand), in default, to suffer rigorous imprisonment for one year more. 2. A compendium of the prosecution case is that the occurrence happened at about 3 p.m. on 21.05.1999. The deceased, who is a little boy aged about 5 years, was standing in front of his house. The appellant came there at that time being armed with an axe and dealt a blow with that axe on the back side of the neck of the deceased causing his instantaneous death. The Investigating Officer (P.W.10), on registration of the case, took up investigation and on completion of the investigation, filed charge-sheet implicating the appellant in the offence punishable under Section 302, I.P.C. 3. Prosecution examined 10 witnesses to prove the charge. P.Ws.1 and 2 are the eye-witness to the occurrence, P.Ws.3 and 4 are immediate post-occurrence witness, P.W.5, who happens to be the father of the deceased, is the informant, P.W.9 is the Medical Officer, who conducted post-mortem examination over the dead body of the deceased and P.W.10 is the I.O. P.Ws.6, 7 and 8 are witnesses to the facts like inquest and seizure, etc. The defence plea is one of complete denial, but no evidence was adduced by the defence. 4. Learned counsel appearing for the appellant submits that the eye-witness account adduced by P.Ws.1 and 2 cannot be believed in view of the close relationship of P.W.2 with the deceased and the informant and in view of material contradictions in the evidence of P.W.1. She also further submits that the appellant having given only 2 one blow on the backside of the neck of the deceased, the offence committed by the appellant would be one punishable under Section 304, Part-II, I.P.C. and not under Section 302, I.P.C. Learned Addl. Govt. Advocate on the other hand supports the impugned judgment and order of sentence. 5. The evidence of P.W.1 shows that P.W.1 was present in his front verandah at the time of occurrence and he saw the occurrence from a close quarter. There is nothing in his cross-examination to discredit his sworn testimony. Learned counsel for the appellant is not in a position to show before us as to what contradiction in the evidence of P.W.1, according to her, is a major contradiction, which has a tendency to shake the prosecution case. So far as P.W.2 is concerned, she is the mother of the deceased. She has seen her deceased son being slain by the appellant in front of her eyes. In such a case she would not screen the real offender to falsely implicate the present appellant on the ground of enmity of the appellant with her husband relating to dispute between them over a maize field. A mother, before whom her child has been killed, cannot be equated with other related witnesses. In such a situation she would even loathe to screen her husband, if he is the assailant. The filial love, which she, by nature nurtures, makes her not to betray her position in relation to her child, who looks up to her for his/her protection. This, however, cannot be said to be an inflexible rule in all the cases of a mother being the eye witness to the murder of her child. There may be exception. If from evidence it is shown that there is/are cause/causes to overwhelm or overshadow even the filial love in her; that she has 3 been induced and influenced to depose in the manner she has deposed; and that her evidence is otherwise not trustworthy, the consideration may, however, be different. In absence of the exceptions as aforesaid or like considerations, sole testimony of a mother is sufficient to justify conviction and the court may not insist for any corroboration. In the present case, there is no effective cross-examination of P.W.2 so far as the transaction of the murder is concerned. At the time of occurrence she (P.W.2) was sitting on the front verandah of her house and was breast-feeding her younger child. The deceased was playing in the front courtyard of the house in front of her. The appellant came and committed the crime in the manner testified by her (P.W.2) and P.W.1. P.Ws.1 and 2 are thoroughly corroborated in material particulars by P.Ws. 3 and 4, inasmuch as P.Ws. 3 and 4, on hearing the cry of P.W.2, came out from their respective houses and saw the deceased lying at the spot and the present appellant decamping from there with the axe (M.O.-I) in his hand. We, therefore, do not find any justification to interfere with the findings arrived at by the learned Trial Court. 6. Coming to the alternative submission of learned counsel for the appellant that the offence committed by the appellant is one punishable under Section 304, Part-II, I.P.C., it is seen from the impugned judgment that learned trial Court has addressed the question on thorough examination of the nature of the injuries sustained by the deceased, sizes of such injuries and the medical evidence on the point. We do not find any justification to take a different view. 4 7. In view of our discussion as aforesaid, the Jail Criminal Appeal is dismissed. ………………….. L. Mohapatra, J. …………………. C.R. Dash, J. Orissa High Court, Cuttack. The 18th day of August, 2010. /Parida. 5