Full Judgment
ORISSA HIGH COURT, CUTTACK. Jail Criminal Appeal No.74 of 2003 Arising out of the order of conviction and sentence dated 27.06.2003 passed by Shri M .K. Mohanty, learned Sessions Judge, Mayurbhanj in S.T. Case No.46 of 2000, under Section 302, I.P.C. ---------- Debendra Sidu … Appellant … Respondent Versus State of Orissa For Appellant : Mr. Arunrendra Mohanty. For Respondent : Mr. Sangram Das, Addl. Standing Counsel. ---------- PRESENT: THE HONOURABLE MR. JUSTICE L. MOHAPATRA AND THE HONOURABLE MR. JUSTICE C.R. DASH --------------------------------------------------------------------------------------------------- Date of argument & judgment :
17. 04.2012 --------------------------------------------------------------------------------------------------- C.R. Dash, J.This appeal is directed against the judgment of conviction and order of sentence dated 27.06.2003 passed by learned Sessions Judge, Mayurbhanj in Sessions Trial Case No.46 of 2000 convicting the appellant under Section 302, I.P.C. and sentencing him to suffer imprisonment for life.
2. The occurrence happened at about 11.00 A.M. on 09.11.1999 in front of the house of the appellant. The prosecution case 2 is to the effect that, the appellant was suspecting the deceased to have killed his (appellant’s) daughter by practicing sorcery. At the relevant time the appellant was preparing to bury his deceased daughter in presence of Dubraj Sidu(P.W.3) and Harish Chandra Sidu(P.W.4). The appellant at that time dealt an axe blow to the deceased causing her instantaneous death. On the basis of the F.I.R. lodged by Laxmidhar Sidu (P.W.1), who happens to be the brother of the deceased, the case was registered and after completion of investigation, the appellant was charge-sheeted for offence under Section 302, I.P.C.
3. The prosecution examined twelve witnesses to prove the charge. P.W.1 is the informant and brother of the deceased. P.Ws.3 and 4 are the eye witnesses to the occurrence. P.W.2 is another brother of the deceased and he is also a post-occurrence witness like P.W.1. P.W.5 is the wife of P.W.2. P.W. 6 is the constable, who took the dead body for post-mortem examination. P.W.7 is a witness, who had accompanied P.W.1 to the Police Station at the time of lodging of the F.I.R. and saw the appellant appearing in the Police Station holding the weapon of offence (M.O.-I). P.Ws. 8 and 9 are witnesses to the seizure of weapon (M.O.-I) on production by the appellant on his voluntary appearance in the Police Station. P.W.10 is a postoccurrence witness. P.W.12 is the Medical Officer, who conducted autopsy on the dead body of the deceased. P.W.11 is the Investigating Officer.
4. The defence plea is one of complete denial but none was examined by the defence”
5. Learned counsel for the appellant submits that P.W.3 having testified in his cross-examination that he had already left the spot by the time of occurrence, he cannot be believed as eye witness to the occurrence and conviction of the appellant on the basis of his testimony is not sustainable in the eye of law. Learned Additional Standing Counsel on the other hand supports the impugned judgment.
6. Perusal of the evidence on record shows that P.Ws.3 and 4 were examined as eye witnesses to the occurrence out of whom P.W.4 is the brother of the appellant. As P.W.4 turned hostile in course of his examination in court, he was cross-examined by the prosecution under Section 154 of the Evidence Act. After such fate of the evidence of P.W.4, the prosecution is left with the evidence of P.W.3, who remains to be the sole eye witness to the occurrence. P.W.3 in his evidence has testified that he was there in the house of the appellant to help him to cremate the dead body of his daughter. He has further testified that Harish Chandra Sidu(P.W.4) was also present with him and they were digging a pit in the graveyard for the purpose of burial of the dead body. He (P.W.3) has specifically testified that the appellant killed the deceased Suryamani with the help of (M.O.-I) in his presence; Suryamani died in front of the house of the appellant. There has been no cross-examination of P.W.3 to elicit any contradiction which may assume relevance under Section 145 of the Evidence Act. In his cross-examination P.W.3 has testified that he was present in the house of the appellant till 9.00 A.M. He has further testified that the burial place is situated in front of the house of the appellant. Taking clue from the aforesaid answer of P.W.3 in his cross-examination it is submitted by learned counsel for the appellant 4 that when P.W.3 ipse dixit has testified that the occurrence happened at about 12.00 (noon) A.M. in front of the house of the appellant, how could he happened to witness the occurrence, if he was there in the house of the appellant till 9.00 A.M.
7. We are constrained to say here that in a murder trial, time and space assume less relevance if there is a ring of truth in the evidence taken as a whole. The answer of P.W.3 in cross-examination regarding his presence till 9.00 A.M. relates to “in the house”.. The house of the appellant is not the spot which is situated according to P.W.3 in front of the house of the appellant. In his cross-examination he (P.W.3) has testified that he was there in the house of the appellant till 9.00 A.M., so the reference “in the house”. may not be understood as spot and cannot be stretched to mean that P.W.3 had already left the spot by 9.00 A.M. It is the evidence of P.W.3 that Harish Chandra Sidu (P.W.4) was present with him and was helping him in digging a pit. When they were digging the pit at the spot for burial of the deceased daughter of the appellant, the occurrence had happened. In view of such fact, P.W.3 cannot be disbelieved on the basis of aforesaid facts as obtained in his cross-examination.
8. Harish Chandra Sidu (P.W.4) has turned hostile. Even if his evidence to the extent he has turned hostile is eschewed it is there in his evidence to shows that P.W.3 and he himself were there in the house of the appellant to dig the pit for burial of the deceased daughter of the appellant. Such a fact lends ample corroboration to the evidence of P.W.3 on the point of his presence at the spot. There are other evidence of post-occurrence witnesses like P.Ws.1, 2 and 5, who 5 came to the spot on being informed by the minot daughter of the deceased about the occurrence and saw the dead body lying there at the spot. There is evidence of P.Ws.7 and 8 to show that the appellant on his own volition appeared at the Police Station and produced the weapon of offence (M.O.-I), which was stained with blood. Though confession of the appellant before the police in presence of the aforesaid witnesses is not admissible, his conduct of producing the axe out of his own volition on making appearance in the Police Station is a relevant piece of evidence to corroborate P.W.3 especially in view of the fact that the chemical examination report is indicative of presence of blood of human origin on the axe (M.O.-I).
9. Taking into consideration the entire evidence on record, we do not find force in the contentions raised by learned counsel for the appellant and we do not find any infirmity in the impugned judgment. In the result, the appeal being devoid of any merit is dismissed. …………………… C.R. Dash, J.…………………… L.Mohapatra, J.Orissa High Court, Cuttack. The 17th day of April, 2012. /A.K.Dhal.