Dhrutarashtra Beheradalai vs State Of Orissa on 5 September, 2014

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Orissa High Court

Dhrutarashtra Beheradalai vs State Of Orissa on 5 September, 2014

Bench: Pradip Mohanty

HIGH COURT OF ORISSA, CUTTACK

JCRLA No.45 of 2004

From the judgment dated 27.03.2004 passed by Shri J.M.Patnaik,
Sessions Judge, Phulbani in S.T. No.95 of 1999.
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Dhrutarashtra Beheradalai ......... Appellant
Versus

State of Orissa ......... Respondent

For Appellant : Mr.G.S.Pani

For Respondent : Mr.Sk. Zafrulla
(Additional Standing Counsel)
.........
PRESENT:
THE HON'BLE SHRI JUSTICE PRADIP MOHANTY
AND
THE HON'BLE SHRI JUSTICE BISWAJIT MOHANTY
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Date of judgment: 09.2014
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Pradip Mohanty, J- The appellant, having been convicted for commission of

offence under section 302 IPC and sentenced to undergo imprisonment for

life for commission of said offence, has preferred this appeal from jail.

2. The prosecution case, as per F.I.R (Ext.1), is that on 2.3.1999,

the informant (P.W.1) who is the wife of the deceased lodged a report at

Nuagaon out-post stating therein that her husband (Pratap Singh) had

been to his Brinjal field to work there and after working there, he was

taking rest under a mango tree. At about 11:00 AM, the appellant holding

a Tangia came there and dealt a blow to the head of her husband for

which he died instantaneously at the spot. Kanda Patra (P.W.8) who was
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working there in the nearby field told her (P.W.1) about the incident. The

case was registered and ultimately, after completion of the investigation

and other formalities, police filed charge-sheet against the present

appellant and other two accused persons, namely, Pitamber Beheradalai

and Purushotam Patra under sections 302/109 IPC. But at the time of

consideration of charge, the above two accused persons were discharged

u/s 227 Cr.P.C. Finally, as against the present appellant, charge u/s 302

I.P.C. was framed.

3. The plea of the appellant was complete denial of the allegation

and he took a specific plea that he had been falsely implicated in this case.

4. In order to bring home the charge, during trial, the

prosecution examined as many as 14 witnesses and exhibited 19

documents. The defence examined none despite being provided with said

opportunity.

5. The trial judge, who tried the case has convicted the present

appellant for offence u/s 302 I.P.C. and sentenced him to undergo

imprisonment for life basing upon the evidence of the eye witnesses i.e.

P.Ws.8 and 9, the circumstantial evidence of P.Ws.5 and 6, evidence of

doctor (P.W.7) and the chemical examination report (Ext.19) and Serologist

report (Ext.19/1).

6. Mr. G.S. Pani, learned counsel for the appellant assailed the
order of conviction on the following grounds:
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(i) There was no direct evidence with regard to
the assault by the appellant with a Tangia.

(ii) The evidence of P.Ws.8 and 9 were not
believable. Basing upon such evidence
conviction could not be sustained.

(iii) The evidence of P.Ws. 5 & 6 were not
believable as there was no material to the
effect that they were close to the appellant and
accordingly appellant had reposed confidence
on them.

(iv) No motive/intention had been proved by the
prosecution. Therefore, the case was not
coming under the purview of Section 302
I.P.C. but under Section 304 IPC.

(v) All the witnesses were related to the informant
and therefore, their evidence ought to be
discarded in toto.

7. Mr. Zafrulla, learned Additional Standing Counsel strongly

contended that the evidence of the eye witnesses were very clear and

cogent with regard to the assault on the deceased by means of a Tangia by

the appellant. According to him, the Doctor (P.W.7), who conducted the

autopsy also corroborated the evidence of ocular witnesses. He specifically

stated that the injuries were caused by the Tangia on the head of the

deceased. He further contended that the accused appellant had confessed

before P.W.5, P.W.6 and others by holding the Tangia, which was

stained with blood. The said Tangia was seized by the police in presence

of the witness.

8. Minutely gone through the evidence on record.

P.W.1 is the wife of the deceased, who in her examination in

chief, had stated that on the day of occurrence, her husband had been to
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Brinjal field to take care of the Brinjal plants. During course of work, the

appellant went there and dealt a Tangia blow to the head of her husband

who was taking rest under a mango tree in that field. Kanda Patra (P.W.8)

of their village came to her house and informed her about the incident.

She rushed immediately to the spot and found her husband lying dead

with profuse bleeding. Thereafter, she lodged report at Nuagaon out-post

and as she was in distress mood, she requested village boy to scribe the

F.I.R. on which she put her signature. She further stated that one day

prior to the incident, when she went to the well to fetch water, the present

appellant along with Pitamber Beheradalai and Purusotam Beheradalai

who were sitting in the verandah of Pitamber Beherdalai have told that on

the next day she would become widow. She came to home and informed

this thing to her deceased husband. She has also stated that prior to this

incident, the daughter of the present appellant expired out of Malaria

fever. The appellant along with some others doubted that her husband

(deceased) might have practiced witch-craft to kill his daughter for which a

village meeting was also convened but the dispute could not be resolved

and the appellant and some female folk of the village gave stool to her

husband. On the day of occurrence, she saw appellant going to the well to

bring water at about 10:00 AM, the appellant going towards the brinjal

field at about 10 AM with the Tangia. In cross-examination, she admitted

that witnesses Niranjan Bisoi (P.W.2) and Satyaban Bisoi are her own

brothers. Kanda Patra (P.W.8) was her elder father-in-law in village

courtesy and Bhanumati Patra (P.W.10) was the wife of her father-in-law's
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younger brother. Manorama Patra (P.W.4) was her sister in village

courtesy. She also admitted that she could not remember the date of her

examination before the magistrate for recording her statement under

section 164 Cr.P.C. She was at home when her husband was murdered

by the accused-appellant. She could not say the exact time when she

arrived at the spot, which was one furlong away from her house. She

admitted that a boy of her village scribed her F.I.R.

P.W.2 is the brother of the informant. On getting information,

he came to the house of P.W.1. He stated that police came to the village

where after they accompanied the police and went to the spot. On reaching

at the spot, he saw the dead body of the deceased was lying there with an

injury on his head. Police held inquest over the dead body in there

presence and prepared the inquest report (Ext.3). Police also took blood

stained sample earth and sample earth from the spot and seized the same

under Ext.4. In cross-examination, he admitted that Nuagaon Out post is

at a distance of 15 km away from her village. A person informed regarding

the incidence for which he first went to Nuagaon out post and thereafter

he went to village Kuduteli. Nuagaon police informed this matter to

Sarangagada Police and Sarangagada police informed that incidence in

his home. He came to Nuagaon Police Station by jeep and from Nuagaon to

Kuduteli on walk. He admitted that he could not remember in which

direction the dead body of the deceased was lying. The inquest report was

prepared at the spot and he along with his brother Satyaban Bisoi signed
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the inquest report. The sample earth and blood stained sample earth were

seized, Besides the two brothers some other persons were also present at

the time of preparation of inquest report.

P.Ws.3 and 4 have deposed that there was hullah in the village

that the deceased had been murdered and his dead body was lying in the

field. The evidence of P.W.4 is that he heard from the villagers that the

appellant had killed the deceased. Both of them were declared hostile by

the prosecution and their previous statements before the police were

confronted to them but they denied to have made such statements before

the police. In cross-examination, P.W.3 admitted that the land of the

deceased was about two furlongs away from his land.

P.W.5 was working as a bus conductor. He stated that on the

day of DOLA festival, while he was returning to Baliguda in Rajalaxmi bus,

the appellant got up in the bus at Mahasingi with an axe. On being asked

for payment of bus fare, the appellant expressed his inability to pay the

same and told that the Thana Babu would pay his bus fare. The appellant

told this witness that he had killed a man and would kill another man, if

necessary, when he asked him to pay the bus fare. Out of fear, this

witness sat down in his seat. On his further query, he told that he had

killed a man of his village and was going to Baliguda Police Station.

Thereafter, the appellant got down from the bus and went towards

Baliguda Bus Owner Association Office. He admitted that he stated this

fact to the police at the time of his examination. In cross-examination,
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P.W.5 admitted that he had no previous acquaintance with the accused at

any point of time. He could not say the father's name of the accused nor

regarding the family members and relatives of the accused. He further

admitted that voluntarily he did not tell to anybody regarding the incident.

He was examined by the police on the date he identified the accused and

after two months the police again examined him. He also admitted that he

had not stated before the I.O. that after getting down from the bus, the

appellant went towards the Bus Owners Association Office as the police

did not ask him the question. He denied the suggestions that accused did

not come in his bus, and that at the instance of the informant and other

members of the Bus Owners Association, he falsely implicated the

accused.

P.W.6 is another man, who stated that on the day of

occurrence, he was sitting in Bus Owners Association Office at Baliguda.

At that time, the appellant got down from Rajalaxmi bus and came to the

association office holding with an axe. The appellant disclosed his identity

before this witness. The appellant brandished the axe and told that if any

body demands bus fare, he would kill him as he had already killed a man

of his village. Immediately, he contacted the police station over phone and

lodged the information. At that time another bus owner, namely, Lokanath

Padhi was present. Police came to the spot and seized the axe from the

possession of the appellant in presence of this witness and prepared the

seizure list under Ext.5. P.W.6 and said Lokanath Padhi put their
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signature on Ext.5. he also identified the seized axe (M.O.I). In cross-

examination, he admitted that except seizure list police obtained his

signatures in other paper. He admitted that there was special mark of

identification in the tangia (axe) and similar type of axe (tangia) was not

available in the locality. He also admitted in the Cross Examination that

the content of seizure list were read over and were explained to him after

which he put his signature in the seizure list. He denied a suggestion that

on the date of seizure the appellant did not go to the Association Office. He

admitted that the accused brandished the axe (Tangia) saying that he had

killed a man in village Kuduteli and would kill if any body demands bus

fare. After receipt of the telephone call from the association office police

came and seized the Tangia (axe).

P.W.7 is the doctor who conducted the autopsy over the dead

body of the deceased and found the following injuries:

"I ) Abrasion of size ½" X ½" on the right elbow joint;

ii) Abrasion of size 1" X ½" on the left side of chest; and

iii) Deep lacerated wound of size 3" X 2" on the left side
of chest of head on parietal bone with fracture of right
parietal bone and right frontal bone exposing the brain
matter."

He opined that all the injuries might have been caused by hard

and blunt weapon. The cause of death was due to bleeding, haemorrhage

and shock. He also opined that death was homicidal in nature. On

examination of the axe, he gave his opinion that the injuries found on the
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person of the deceased may be caused by the said axe and the injuries

sustained with bleeding are sufficient to cause death of the deceased. In

cross-examination, he admitted that the injuries mentioned in the post

mortem report cannot be possible by fall on a stone inside the water.

Injuries mentioned in the post mortem report might be caused by the

blunt side of M.O.I depending upon the force used by the assailant. He

also deposed that the injury might have been caused by the sharp side of

blunt side of the weapon of offence. He denied the suggestion to the effect

that M.O. I was not produced before him. P.W.7 also stated that the

injuries of three inches size can be caused by the sharp side of the weapon

having length of two inches.

P.W.8 is an eye witness to the occurrence. He had stated that

the appellant is the men of his sister in village by courtesy. On the day of

occurrence, he was fencing his land situated in their village. At that time

P.W.9 was cultivating the land as a labourer. Rudramani Beheradalai

(P.W.4) and Manorama Patra (P.W.3) were also working in the land of

Rudramani Beheradalai. By that time, the appellant came there with an

axe from the side of their village. Deceased after doing some work in his

Brinjal field, which was situated near his land, was taking rest under a

mango tree. At that time, the appellant asked the deceased to give some

intoxicated substance 'nasa'. When the deceased turned to a side after

giving some 'nasa', the appellant dealt a blow by the means of the said axe

to middle of the head of the deceased. P.W.8 saw the incident as he was
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present there. The deceased shouted "marigali" and fell down on the

ground and succumbed to injury at the spot. After the assault, the

appellant fled away from the spot. Out of fear, they all left the spot. When

the women labourers protested, the appellant told that they would also

face the same consequence. Thereafter, P.W.8 went to the house of the

Ranjita Patra (P.W.1) and informed her about the incident. Thereafter, the

wife of the deceased (P.W.1) lodged the report. Police came to the village

and he went to the spot along with police in the police jeep. Police verified

the dead body and he identified the dead body of the deceased Pratapsingh

Patra. They found a deep cut injury on the head of the deceased. The spot

where the dead body was lying was drenched with blood. Police held

inquest over the dead body and prepared the inquest report (Ext.3). He

further stated that the appellant suspected that the deceased had used

witch-craft on his daughter causing her death prior to three months of this

incident. So on that grudge and in order to take revenge, he killed the

deceased. He heard this from the appellant himself for which a village

meeting was convened. In his re-examination he stated that he could

identify the Axe used by the appellant for communication of offence and

accordingly stated that M.O. I was that axe. In cross-examination, he

admitted that he was not related to the deceased-Pratapsingh Patra and

the informant Ranjita Patra. His land at Gamadadi is at a distance of 150

cubits away from the land of the deceased. On the year of occurrence, he

took on Bhag-Chas basis from Balunki Beradalai of his village and

cultivated Dalua variety of paddy. So he could say the boundary of the
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land of Balunki Beheradalai. He had stated that in the east side of the

land, there was land of Sudhir Beheradalai, on the west side of the land,

there was land of Purusottam Patra, in the North side of the land, there

was land of Simanchal Beheradalai and in the south side there was forest.

He also admitted that he had engaged Brukodar Amayat (P.W.9) as

labourer in his Bhag -Chas field. He and Brukodar Amayat came to the

court on the date when the statement was recorded by the Magistrate

under section 164 Cr.P.C. Thana Babu brought both of them to the court

for recording the statement and the magistrate recorded the same in his

chamber and Thana Babu was not present there. He further stated that

appellant belonged to a different street of the village. His house stands in

another Sahi. Suggestion was given that he had not seen the accused on

the date of occurrence and prior to the date of occurrence, he denied the

same. He admitted that the axe was fitted with a wooden handle. He

denied suggestions to the effect that the appellant was not holding M.O. I.,

i.e. the axe on the date of occurrence and that the appellant did not use

the same for commission of crime on the date of occurrence.

P.W.9 is another eye witness to the occurrence. He stated that

on the day of occurrence, he had been to the field of Uttam Patra. Uttam

Patra and Bholanath Patra were present in their fields which were

adjacent to the spot. Manorama Patra (P.W.3), Buduku Beheradalai and

Rudramanai Beheradalai (P.W.4) were transplanting paddy. By that time,

the appellant came from the village side with an axe on his shoulder. The
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appellant went near the deceased who was taking rest under a mango tree

being tired. The appellant asked the deceased to give some 'nasa'.

Deceased gave 'nasa' and by the time the deceased was turning a little to

his side, the appellant dealt an axe blow on the head of the deceased an a

result of which he fell down on the ground and trembled. On being asked

as to why he dealt the axe blow, the appellant replied that he would kill

the persons who would protest his action. Out of fear, they left the spot

and informed the wife of the deceased accordingly. By the time, the

villagers reached the spot, the deceased had already expired. In cross-

examination, he stated that he did not remember the date of his birth so

also the date of birth of his son and daughter. He could not say whether

Kanda Patra (P.W.8) was the younger brother of the father-in-law of the

wife of the deceased. A suggestion was given that at the instance of Kanda

Patra he was deposing falsehood, he denied the same. A suggestion was

also given that he had not seen the occurrence, but he denied the same.

P.W.10 has stated that the appellant along with his wife and

children were residing in their house being separated from his father. Prior

to the incident, one daughter of the appellant died out of fever. The

appellant suspected that the deceased had killed his daughter by

practising witch-craft for which a meeting was convened in the village and

the matter was compromised. She has further stated that on the previous

day of occurrence, while P.W.1 was going to fetch water from the tube well

which was situated in front of the house of the appellant, at that time the
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accused-Pitamber Beheradalai and Pursushottam patra were sitting in the

verandah told P.W.1 (AJI PANI NEYITHA KALIKI RANDHA HEBU". She

heard this incident from P.W.1 and the next day at about 11:00 AM, she

heard from P.W.5 that the appellant killed the deceased by axe blow near

their paddy land. In cross-examination, she admitted that Kanda Patra

(P.W.8) was not the Dadi Sasura of the informant. The father of

Pratapsingh Patra (deceased) married for the second time for which there

was a difference between the deceased and his father and for this reason,

the deceased was staying in their house. He also admitted that four years

prior to the occurrence, the daughter of the appellant died. He could not

say the distance between the house and the paddy field to which the

deceased had been to plough. She was examined by the police on the next

day of the occurrence.

P.W.11 is the police constable who took the appellant to the

hospital for examination of nails. The doctor clipped the nails and kept in

a bottle along with a paper. He handed over the same to the I.O, who

seized the same in his presence. On the same day, the appellant produced

a shirt before the O.I.C. and the O.I.C. suspecting blood stains in the shirt,

seized the same in his presence and prepared the seizure list (Ext.10). In

cross-examination he admitted that the bottle containing the nail clippings

of the accused was handed over to him by the doctor and the same was in

a sealed condition. He admitted that the nail clippings were seized at the

police station. He had seen the accused producing the shirt (M.O.II) before
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the O.I.C. He had not singed the seizure list and he could not say whether

the appellant had signed the seizure list or not.

P.W.12 is the O.I.C. of Baliguda P.S. On the day of

occurrence, at about 5:30 PM, while he was at Nuagaon out Post, he

received a written report from the informant (P.W.1) and entered the said

fact in the station diary. The report was sent to police station for

registration. During course of investigation, he examined the complainant,

held inquest over the dead body of the deceased and prepared inquest

report, send the dead body for post mortem examination, visited the spot

and prepared the spot map, examined some witnesses at the spot, seized

blood stained earth and sample earth and a wooden lathi stained with

blood fro the spot and the prepare the seizure list (Ext.4). On the same

day, he apprehended the appellant and seized the wearing apparel of the

deceased under Ext.13. On that day also, he seized the blood stained shirt

of the appellant (M.O.II) and prepared the seizure list (Ext.10). He stated

that on 2.3.1999, A.S.I. of police Ananda Chandra Dhal (P.W.14) seized

the Tangia from the possession of the present appellant and kept the same

at the police. He sent the seized Tangia to the doctor, who conducted the

post mortem examination with a request opine as to whether the injures

inflicted over the deceased could be caused by the said Tangia. On

17.5.99

, he handed over the charge or investigation to his successor (P.W.13) on transfer. During his investigation, he also examined P.W.3 and P.W.4. In cross-examination, he admitted that he had not ascertained who had scribed the F.I.R. (Ext.1) and after receipt of Ext. 1, he examined the

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informant at Nuagaon Police out post and held inquest over the dead body. He also examined P.Ws. 2, 8 and 9 on the same day at the spot. He also examined P.Ws. 3, 4 and 10 at village Kuduteli on the same day. He deposed that P.W.1 had not stated before him that the appellant was telling in different places that he would kill her husband. He had also examined Brukodar Amayat (P.W.9) who had not stated before him that soon after the occurrence, on return to the village he informed the incident to the wife of the deceased. He also stated that P.W. 10 had not stated before him about the well from where P.W.1 had gone to fetch water was situated in front of the house of the appellant. P.W. 10 had also not stated before him that P.W.1 on returning home told about the talk between the appellant, Pitambar and Purushottam to her husband in her presence.

P.W.13 is the O.I.C. Baliguda P.S. who took charge of the investigation from his successor (P.W.12). He forwarded the seized articles to the laboratory for chemical examination. After completion of the investigation, he filed charge-sheet against the present appellant. In cross- examination he admitted that he had properly investigated into the matter. To the suggestion that there were no material against the accused to submit charge sheet against him, he denied the same.

P.W.14 the A.S.I. of Police attached to the Balliguda Police Station. He stated that while he was at police station, he got information that one person is whirling a Tangia at Balliguda bus stand. He entered the information in the station diary and proceeded to the bus stand. After reaching there, he found the member bus owner associations guarding the

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appellant in front of the association office. He seized the said Tangia from the appellant in presence of the witnesses and prepared the seizure list (Ext.5). He also recorded the statement of the conductor (P.W.5) of the bus from which the appellant got down at the bus stand. In cross-examination, he had not mentioned the measurement of the Tangia seized. He admitted that he had not given any endorsement in Ext. 5 that he had read over and explained the contents to the seizure witnesses. He also stated the P.W.5 admitted that after getting down from the bus, the appellant went somewhere, which was not known to him. P.W.5 had not told before P.W.14 that the appellant had told him that Thana Babu would pay the bus fare. He (P.W. 14) further stated that P.W. 6 had not stated before him that the appellant confessed before him to have killed a man of Kuduteli.

9. From the above, it is evident that there is no material to disbelieve the evidence of P.W.1, the wife of the deceased, who went to the out-post and lodged FIR. She had also stated that on the previous date of occurrence the appellant, Pitambar Beheradali and Purusotam Beheradali were talking in the verandha of Pitambar Beheradali that she would become widow on the next date. The above noted version is supported by the statement of P.W.1 recorded under section 164 Cr.P.C. There is also no contradiction with regard to the motive of the accused. P.W.1 has clearly stated that the appellant doubted that his daughter was killed by the deceased practising witch-craft. This motive part has been corroborated by P.W.8

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P.W.2 is the brother of the informant, in whose presence the police held inquest over the dead body and prepared the inquest report. He (P.W.2) put signature on the inquest report. Not much has been elicited in his cross examination.

P.Ws. 5 and 6 both were examined by the prosecution as the witnesses to the extra judicial confession. P.W.5 was the conductor of the bus. He specifically stated that the appellant was holding an axe and when he demanded to pay the ticket charge, the appellant expressed his inability to pay and told that he had killed a man of his village and would kill another man, if necessary. P.W.6, who was sitting in Balliguda Bus Association Office also corroborated the statement of P.W.5 to the extent that the appellant told that if anybody demand bus fare, he would kill him. P.W. 6 had stated that the appellant disclosed himself to be Dhrutarashtra Beheradalai and stated that he had already killed a man of village Kuduteli while brandishing the axe. He immediately contacted police station over phone and informed the said fact, where after police came and seized the Tangia from the possession of the appellant. Police prepared the seizure list there and he put signature to the seizure list. It is evident from the above fact that when the conductor demanded fare, the appellant threatened the conductor and disclosed the fact of killing a man of Kuduteli village and the fact of killing was also corroborated by P.W.6. In presence of P.W.5 and 6 the appellant disclosed about the murder done by him after terrorising the said witnesses. Therefore, the accused voluntarily disclosed the killing of a man of Kuduteli by him, which amounts to extra

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judicial confession. Nothing material has been demolished in the cross examination to the above effect. The M.O.I, which was seized by the police was identified by P.W.6, who had stated that such type of axe was not available in that locality. In such background, this Court cannot reject the evidence of P.Ws.5 and 6 merely because there is no material to show that the appellant was close to P.Ws. 5 and 6 so as to repose confidence in them before making confession. Rather there is no reason for P.Ws. 5 and 6 to state falsely against the appellant. In fact both of them have denied suggestion relating to false implication.

P.Ws. 8 and 9 are the ocular witnesses, who narrated the incident. P.W.8 had specifically stated that the appellant came from the side of their village with an axe and at that time deceased was taking rest under a mango tree near their land. The appellant asked the deceased to give him some intoxicant substance 'nasa' and when the deceased was turning sides after giving 'nasa' to the accused, the accused dealt a 'Tangia' blow on the middle of the head of the deceased. He had seen the incident as he was present there. The deceased shouted 'marigali' and died at the spot instantaneously and the accused fled away form the spot. He identified axe, M.O. I used by the appellant for commission of the crime. In the cross examination nothing has been elicited to demolish the above version of P.W. 8. Rather he specifically stated that he was in no way related to the deceased. On the year of occurrence, he took that land on Bhag Chas basis from Balunki Beheradalei and he engaged P.W.9 as labourer to work in his Bhag Chas field. His statement recorded under

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section 164 Cr.P.C. also supports his version. In cross examination nothing has been brought out by the defence to discredit his testimony. P.W. 9 is another ocular witness, who also corroborated the evidence of P.W.8. P.W. 9 further stated that when he asked as to why he dealt the axe blow on the head of the deceased, the accused replied he would kill the person who would protest his action and disclose this fact. Nothing material has been elicited in the cross-examination by P.W.9 so as to demolish the core prosecution story. In such background, we are unable to accept the contention by the learned counsel for the appellant that the evidence of P.Ws. 8 and 9 are not believable and there exists no direct evidence with regard to assault by the appellant by a Tangia/Axe.

The medical evidence also complements the ocular evidence as the doctor (P.W.7) found that the injuries might have been caused by M.O. I, the Axe. P.W.7 has also opined that injuries sustained with bleeding was sufficient to cause death of the deceased. He opined that injuries might be caused by sharp side or blunt side of M.O. I. P.W. 10 in his evidence has tried to corroborate the motive of the appellant as has been stated by the informant, P.W.1 to the effect that prior to the occurrence one daughter of the appellant died out of fever and the appellant suspected the deceased to have killed the daughter by practising witch-craft. Though the matter was compromised in the village meeting, but the appellant still bore grudge against the deceased. He further corroborated the statement of P.W. 1 to the effect that on the previous day of the occurrence while P.W.1 was going to fetch water from

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the well, which was situated in front of the house of the accused, the appellant along with Pitambar Beheradalei and Purushottam Patra were sitting in the verandha of the appellant and told P.W.1 that "AJI PANI NEITHA KALIKI RANDHA HEBU' , where after P.W.1 came to her village and told her husband in presence of P.W.10 and P.W.10 consoled her saying "KIYE KAHAKU MARI DEVUCHI" . On the next date the incident took place. But this statement of P.W. 10 may not be acceptable as she had not stated all these things before I.O. (P.W.12). In any case as indicated earlier motive part has been proved by P.W. 1 & 8.

Chemical examination also proved human blood to be detected from the weapon of offence Tangia, wooden lathi and the full shirt of the appellant and no explanation was given by the accused under section 313 Cr.P.C. as to how the human blood came to his shirt and Tangia.

With regard to contention of the learned counsel for the appellant that all the witnesses were/are related to the informant and therefore their version should be discarded in toto, let us remind everybody that it is settled principle of law that relationship per se cannot be a ground to discard the evidence of a credible and truthful witness and their evidence is to be only critically scrutinised. Also in the instant case, there is no material that the main prosecution witnesses like P.Ws. 5, 6, 7 & 9 and I.Os. are the direct relatives of informant and therefore are interested witnesses. Besides, P.W.8 has clearly denied that he is no way related to the P.W.1 or deceased. P.W.10 has stated that P.W.8 is not the

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Dadi Sasura of informant (P.W.1). However, P.W.1 has stated in her cross examination that P.W.8 is her elder father-in-law by village courtesy. Thus, P.W.8 is not a direct relative of P.W.1. In any case his version has been corroborated by P.W.9 in material particulars. In the instant case, P.Ws.1 and 8 have specifically stated the motive/intention of the appellant to assault the deceased. Both P.Ws. 8 and 9 have seen the occurrence. After the occurrence, the appellant came in a bus holding the weapon of offence and in the bus, he declared that he had killed a person of village Kuduteli. The Tangia was seized in presence of the witnesses and the same along with the shirt of the appellant were sent for chemical examination. The Chemical examination revealed human blood in the weapon of offence and in the shirt.

Taking all these things into account, there cannot be any doubt that the present appellant was the author of the crime and non else. In such background, there is no force in the arguments advanced by the learned counsel for the appellant and also no material on the record to come to the conclusion that the case is coming under section 304 IPC.

In view of the above, this Court is not inclined to interfere with the impugned judgement of conviction and sentence.

JCRLA is accordingly dismissed.

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                                                Pradip Mohanty,J



Biswajit Mohanty, J.      I agree.I agree.
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                                             ...............................
                                             Biswajit Mohanty,J.




Orissa High Court, Cuttack
Dated      September, 2014/B. Nayak/Arun

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