L. Mohapatra, J.
1. The appellant having been convicted under Section 302 of the Penal Code for commission of murder of Suta Tandi and further being convicted under Section 323 of the Penal Code for injuring Maheswar Tandi (P.W. 4) and having been sentenced to imprisonment for life by the learned Sessions Judge, Kalahandi has preferred this appeal.
2. Prosecution case in short is that P.W. 4, Maheswar Tandi had got four sons namely, Gandharba Tandi (appellant), Suta Tandi (Deceased), Trilochan Tandi (P.W. 3) and Trinath Tandi. Trinath Tandi was residing at Raipur leaving his wife and only child in the village. Wife of the appellant who was acquitted by the Trial Court and wife of Trinath Tandi are sisters. On 18.7.1993 some unknown person went inside the room of wife of Trinath Tandi in absence of Trinath and having seen it Trilochan Tandi (P.W. 3) and the deceased Suta Tandi objected to such conduct of wife of Trinath. Next day morning wife of Trinath Tandi (Raj Kumari) went to her parent's house leaving her son. On 18.7.93 at about 8.30 P.M., Sana wife of the appellant, and wife of Trinath Tandi picked up quarrel with the mother-in-law questioning as to why wife of Trinath (Raj kumari) was driven out from the house. During such quarrel, Maheswar, father of the appellant and the deceased, also came and objected. At the relevant time, the appellant returned home and at the instigation of his wife brought out an iron spear and assaulted on the head of his father causing bleeding injury. Seeing the assault on the father deceased Suta Tandi came out from the house and objected, where after the appellant pierced the spear on the chest of Suta Tandi which resulted in his death. When the informant (P.W. 3) came near the appellant to snatch the spear the appellant and his wife caught hold of his neck and made him to lie on the ground. Thereafter father of the appellant Maheswar Tandi snatched away the spear and went towards police station. P.W. 3 also went to police station and gave an oral report which was reduced to writing by the O.I.C. (P.W. 9). Upon investigation, prima facie case is being found, charge sheet was submitted against the appellant and his wife Sana Dei for having committed the offence under Section 302/34 of Penal Code for causing death of Suta Tandi and were further charged under Section 307/34 of Penal Code for attempting to commit murder of P.W. 3 and P.W. 4.
3. Defence plea was one of denial of the entire prosecution case.
4. In order to bring home the charges the prosecution examined ten witnesses. On consideration of the evidence on record the learned sessions Judge held that the prosecution failed to establish charges against the wife of the appellant and accordingly acquitted her of the charges. However the learned Sessions Judge held that the prosecution has been able to bring home charges under Section 302 of the Penal Code so far as the appellant is concerned for commission of murder of his brother Suta Tandi. Learned Sessions Judge further held that charge under Section 307 of Penal Code was not proved against the appellant, but convicted him under Section 323 of Penal Code for causing hurt to his father Maheswar Tandi by means of spear.
5. P.W. 3 in his evidence has stated that his brother Trinath Tandi was staying in Raipur leaving his wife and child in his house. On the Bouda Jatra day an unknown person entered into the house and misbehaved with the wife of the Trinath for which he and his brother objected. On the next day wife of Trinath was driven out but her son was kept with him. Wife of Trinath is the sister of wife of the appellant. About two to three days after the incident Raj Kumari and wife of appellant challenged mother-in-law as to why Raj Kumari was driven out from the house. When father-in-law Maheswar came and objected the wife of the appellant quarrelled and at the instigation of his wife and appellant brought out spear and assaulted his father, Maheswar (P.W. 4) which caused bleeding injury. Having seen assault on the father, the deceased came out and intervened, as a result of which the appellant pierced the spear into the left side chest of the deceased and when P.W. 3 wanted to snatch the spear from the appellant, the appellant and his wife throttled his neck and made him to lie down. In the meantime father of the appellant snatched away the spear from the appellant. Same is the evidence of P.W. 4, father of the appellant. P.Ws. 5 and 6 are independent witnesses. P.W. 8 is also an independent witness to the occurrence who has supported the prosecution case in toto.
6. Learned counsel for the appellant tried to bring out some improbabilities in the prosecution case referring to the evidence of P.W. 7. P.W. 7 in his evidence has stated that he had seen assault on the deceased, but he hadn't seen blood coming out from the body of the deceased. On the basis of such statement of P.W. 7, it is argued by the learned counsel for the appellant that the entire prosecution story with regard to assault on the deceased by the appellant can not be believed. We are unable to agree with such submission of the learned counsel for the appellant. No other eye-witness to the occurrence has stated that the injury sustained by the deceased didn't result in bleeding. Therefore, at best wecan discard the evidence of P.W. 7 who claims to be an eye-witness. Even if we discard the evidence of P.W. 7, we find that the other witnesses to the occurrence namely P.Ws. 3, 4, 5, 6 and 8 supported the prosecution case in every respect.
P.W. 1 is the doctor who conducted post-mortem examination on the dead body of the deceased. He found penetrating injury over the left mammary region just over the nipple. This injury corresponds to the prosecution case that the deceased was assaulted on the left side of the chest by means of spear. The said doctor also examined weapon of offence and opined that such injury can be caused by the said weapon. P.W. 1 also examined father of the appellant and found lacerated injury over the scalp of the frontal region simple in nature. Therefore, the prosecution case finds support from evidence of P.W. 1 that the appellant assaulted on the head of his father Maheswar by means of spear. The spear was sent for chemical examination and the report of the chemical examiner shows that the spear contained human blood of group 'B' which tallies with the blood group of the deceased. No explanation is forthcoming from the appellant as to how the spear contained human blood of Group 'B'.
7. Considering the evidence of eye-witnesses, report of the post-mortem examination as well as the report of the chemical examiner, we do not find any reason to differ with the findings of the learned Sessions Judge. The appeal being devoid of merit is dismissed and the order of conviction and sentence passed by the learned Sessions Judge is affirmed.
B. Panigrahi, J.
1. I agree.
8. Appeal dismissed