Full Judgment
ORISSA HIGH COURT, CUTTACK. Jail Criminal Appeal No.92 of 2003 Arising out of the judgment of conviction and order of sentence dated 15.07.2003 passed by Shri M.K. Panda, learned Addl. Sessions Judge, (F.T.C.), Keonjhar in S.T. Case No.71/15 of 2002/03, under Section 302, I.P.C. ---------- Pratap Chandra Naik … Appellant … Respondent Versus State of Orissa For Appellant : For Respondent : Miss B.L. Tripathy, Miss B.P. Tripathy and Miss N. Tripathy. Mr. Sangram Das, Addl. Standing Counsel. ---------- PRESENT: THE HONOURABLE MR. JUSTICE L. MOHAPATRA AND THE HONOURABLE MR. JUSTICE C.R. DASH ------------------------------------------------------------------------------------------------------------------------ Date of Argument :
20. 04.2012 Date of Judgment :
20. 04.2012 ------------------------------------------------------------------------------------------------------------------------ L. Mohapatra, J.This appeal is directed against the judgment and order of sentence dated 15.07.2003 passed by learned Additional Sessions Judge, (F.T.C.), Keonjhar in S.T. Case No.71/15 of 2002/03 convicting the appellant under Section 302, I.P.C. and sentencing him to suffer imprisonment for life.
2. Case of the prosecution, as revealed from the evidence of the witnesses, is that on 17.11.2001 at about 7.30 A.M. when deceased Nanda 2 Kishore Parida was passing by a bicycle, the appellant suddenly appeared with a pickaxe (‘Gainti’) and assaulted the deceased. As a result of such assault, the deceased sustained injuries and died at the spot. The appellant thereafter pressed the bicycle on the body of the deceased and fled away. P.W.1, who was standing in front of her house, saw the occurrence and informed P.W.3, her son, about the said occurrence. P.W.3 thereafter informed the other witnesses and, P.W.2, a co-villager went to the Police Station along with the village ‘Choukidar’ Biswanath Mahanta (P.W.6) and lodged F.I.R. at Turumunga P.S. Investigation was taken up and on completion of the investigation, charge-sheet was submitted for commission of offence under Section 302, I.P.C.
3. The prosecution, in order to prove the charge, examined twelve witnesses, but none was examined on behalf of the appellant, though plea of the appellant was denial of the entire prosecution allegation. Out of the twelve witnesses examined on behalf of the prosecution, P.W.1 is the sole eye-witness to the occurrence. P.W.2 is the informant and is a post- occurrence witness. P.W.3 is the son of P.W.1 and he is also a postoccurrence witness. P.W.4 is a witness to seizure of the weapon of offence and also had come to the spot after the deceased was assaulted. P.W.5 is a witness to the seizure, vide Ext.4. P.W.6 is the Grama Rakhi, who, after being informed, came to the spot, found the dead body of the deceased and accompanied P.W.2 for lodging F.I.R. at the P.S., P.W.7 is a witness to the seizure in Ext.3. P.W.8 is the son of the deceased, who came to the village after hearing about the incident. P.W.9 is the doctor, who examined the blood group of the appellant, P.W.10 is a witness to the seizure in Ext.9, P.W.11 is the I.O. and P.W.12 is the doctor, who conducted post-mortem examination”
4. The trial court accepting the evidence of the sole eye-witness P.W.1 and other circumstantial evidence such as seizure of weapon of offence and the injuries found by P.W.12 on the body of the deceased in course of the post-mortem examination, held the appellant guilty of the charge under Section 302, I.P.C. and convicted him thereunder.
5. Miss Tripathy, learned counsel for the appellant assails the impugned judgment on the ground that P.W.1 could No.have been relied upon by the trial court, as she admitted in the cross-examination that her visibility is very poor and she canNo.see things clearly. She also admitted that she was No.mentally sound. This part of evidence of P.W.1 is also corroborated by her son P.W.3 and, therefore, P.W.1 canNo.be taken as a trustworthy witness.
6. So far as seizure of the weapon of offence is concerned, it was contended by learned counsel for the appellant that though P.W.4 stated that the appellant confessed before the villagers and the police that he had killed the deceased and led the police and witnesses to the backyard of his house and gave recovery of the weapon of offence, such evidence has been negatived by the evidence of P.W.7. According to the learned counsel for the appellant, neither there is any direct evidence against the appellant No.is there any circumstantial evidence against him and, therefore, the order of conviction recorded by the trial court is liable to be set aside.
7. Learned counsel for the State, on the other hand, placed reliance on the evidence of P.W.1, seizure of the weapon of offence and confession by the appellant and also the evidence of P.W.12, the doctor, who conducted post-mortem examination, to support the findings of the trial court”
8. Out of twelve witnesses examined by the prosecution, undisputedly P.W.1 is the only eye-witness to the occurrence. She deposed that on the date of occurrence at about 8.00 A.M. while she was standing in front of her house, the deceased was passing through in a bicycle. The appellant all of a sudden arrived there and assaulted the deceased on his head by means of a pickaxe (‘Gainti’), as a result of which he died at the spot. After the deceased fell down, the appellant pressed the bicycle on his body and fled away. He subsequently came to the spot and took his own bicycle. Thereafter she informed about the incident to her son P.W.3. Some villagers and the village Choukidar came to the spot and the matter was reported to the police. In the cross-examination she stated that she may be aged about 50 to 60 years and her visibility is poor. She also stated that she canNo.see things clearly and was No.mentally sound. P.W.3, son of P.W.1 came to the spot after she was informed about the incident by his mother. Thereafter he called the village Choukidar and all of them went to the police station to report. He stated in the cross-examination that his mother P.W.1 canNo.see clearly, as she has poor eye sight and she is No.mentally sound because of poor eye sight. Relying on these statements of P.Ws.1 and 3, it was contended by Miss Tripathy, learned counsel for the appellant that P.W.1 having poor eye sight could No.have seen the occurrence. We are unable to accept such contention of learned counsel in view of the evidence of the I.O., P.W.11. In the cross-examination, P.W.11 stated that the place of occurrence is only thirty feet’s away from the house of P.W.1 and P.W.3. P.W.1 has specifically stated that at the time of incident she was standing in front of her house. Therefore, even though she has stated in the cross-examination that her visibility is poor, the distance between the place where she was standing and the place of occurrence being only thirty feet, it is difficult to accept the 5 contention of learned counsel for the appellant that P.W.1 could No.have seen the occurrence.
9. P.W.4 deposed that he came to the spot after the occurrence and found the dead body of the deceased lying on the road in front of the house of P.W.3. The appellant confessed before him, other villagers and the police that he had killed the deceased and led them to the backyard of his house and gave recovery of the pickaxe. This evidence of P.W.4 to some extent is found to be inconsistent with that of the evidence of P.W.7, who is a witness to seizure of the said pickaxe. P.W.7 in the cross-examination stated that police brought out the pickaxe and the appellant was No.present at that time. Therefore, we agree with learned counsel for the appellant that the claim of P.W.4 to have seen the appellant leading the police to the place of concealment of the weapon of offence after admitting his guilt is No.free from doubt. But the factum of seizure of the weapon of offence is No.in dispute. The said weapon of offence was sent for chemical examination, and human blood was found on the said pickaxe. No explanation has been offered by the appellant as to how human blood was found on the pickaxe belonging to him. This is a circumstance against the appellant.
10. Evidence of P.W.1 also gets corroboration from the evidence of P.W.12, the doctor, who conducted the post-mortem examination. P.W.12 found three injuries on the head of the deceased and cause of death was due to coma resulting from injuries to the brain matter. He further opined that injury no.(i), i.e. lacerated penetrating injury below the occipital region was sufficient to cause death in ordinary course of nature. He also opined that the injuries found on the body of the deceased could be inflicted by the weapon of offence seized in course of the investigation”
11. We, therefore, on analysis of the evidence of the witnesses, find that the evidence of P.W.1, the sole eye-witness to the occurrence, is reliable and her evidence is corroborated by the evidence of P.W.12. We also find that the pickaxe belonging to the appellant, which had been seized in course of the investigation, was containing human blood and the appellant has No.given any explanation whatsoever as to how human blood was found on the said pickaxe. Relying on the direct evidence available from the evidence of P.W.1 and the circumstantial evidence as stated above, we find no infirmity in the order of the trial court.
12. The appeal being devoid of merit is dismissed. …………………… L. Mohapatra, J.…………………… C.R. Dash, J.Orissa High Court, Cuttack. The 20th day of April, 2012. /Parida.