Full Judgment
L. Mohapatra, J.
1. This appeal is directed against the Judgment and order of conviction and sentence passed by the Learned Additional Sessions Judge, Bolangir in Sessions Case No. 85/22 of 1996 for convicting the Appellant under Section 302 IPC and sentencing him to imprisonment for life.
2. The case of the prosecution is that on the date of occurrence, i.e. on 13.6.1996 at about 4.00 p.m., the deceased-Dhubaleswar Parua had gone to Bagdol side by a cycle to bring fire-wood. In and around evening, Goal Parua (P.W.1), the brother of the deceased was informed by one Dukha Luha that the Dhubaleswar was lying by the side of the road near village Khasakhuta being injured. On receipt of the information, P.W. 1 and some others went to the spot and found Dhubaleswar lying in an unconscious state with injuries on his head and face. After administering water, he regained sense. On query he stated that the Appellant assaulted him by the blunt side of a tangia. Thereafter he was carried to the Belpada hospital where he was declared dead. P.W. 1 who is the brother of the deceased lodged oral report on 14.6.1996 before the OIC, Belpada Police Station and a case was registered under Section 302 IPC. After completion of investigation charge-sheet was filed for commission of the said offence.
3. Prosecution examined as many as eleven witnesses to prove the charge and none was examined on behalf of the defence. However, the statement of the Appellant was recorded under Section 164, Cr PC. The Learned Additional Sessions Judge on the basis of the evidence of the eye-witness (P.W. 6) and the dying declaration made before the other witnesses coupled with the statement of the Appellant leading to discovery to the weapon of offence, found the Appellant guilty of the charge and convicted him thereunder.
4. The Learned Counsel for the Appellant drew attention of the Court to the evidence of P.W. 6 and submitted that the sole eye-witness to the occurrence cannot be believed since in cross-examination he has admitted to be at a distance from where he could not have seen the occurrence. There is nothing on record to show that Dhubaleswar was in a fit state of mind to make a declaration and, therefore, the so-called dying declaration made before some witnesses cannot be accepted. There being no other evidence to connect the Appellant with the alleged offence, the Judgment of the Trial Court is liable to be set aside. The Learned Counsel for the State referring to the evidence adduced before the Court submitted that P.W. 6 is consistent in his stand that he had seen the assault on Dhubaleswar and in cross-examination he has nowhere admitted to have not seen the occurrence. The evidence of other witnesses who speak about the dying declaration, is also consistent and there is no reason why those witnesses should be disbelieved.
5. In order to appreciate the rival contentions of the Learned Counsel for the parties, we have examined the evidence of all the witnesses carefully. P.W. 1 is the informant and the brother of the deceased. In his deposition it is stated that upon receipt of information he went to the spot along with some villagers and found Dhubaleswar lying with bleeding injuries on his head and face and was in an unconscious state. Thereafter he was brought to his house by means of a Bhara and was administered water after which he regained sense and on being questioned, he stated that he had been assaulted by the Appellant on the blunt side of a tangia. The said evidence of P.W. 1 is corroborated by the evidence of P.Ws. 4 & 5. Nothing is brought out in cross-examination to disbelieve these three witnesses so far as dying declaration is concerned. All the three witnesses are consistent in their statement that after administering water, Dhubaleswar regained sense and made a declaration that he had been assaulted by the Appellant by the blunt side of the tangia. P.W. 6 is the sole eye-witness to the occurrence. In his deposition it is stated that on the date of occurrence he and Deba Dharua (brother-in-law) were cutting tree for the purpose of preparing a plough by the side of the road at about 3 p.m. The Appellant at that point of time was proceeding from the side of his village Banmal towards Bagdhol holding a tangia in his hand. At about 5 p.m. the Appellant returned and it was raining at that point of time. He along with the brother-in-law of the accused took shelter under the Mahul tree. At that time the deceased was returning in his cycle. The Appellant immediately ran towards Dhubaleswar and inflicted a blow on his head by blunt side of the tangia. On receiving the blow Dhubaleswar fell down whereafter the Appellant again assaulted him on his face successively. Out of fear, he and his brother-in-law ran away from the spot
6. In cross-examination, this witness has stated that before assault the Appellant had also threatened them to assault and they had ran away out of fear. Much reliance was placed by the Learned Counsel for the Appellant on the evidence of this witness made in cross-examination to support his submission that P.W. 6 had already left the place of occurrence by the time Dhubaleswar (deceased) was assaulted. We are not in a position to accept the said contention in view of the statement made by this witness immediately thereafter. He has further stated in cross-examination that at the time when they were threatened by the Appellant it was drizzling and they were standing under the Mahul tree. The occurrence took place about 80 cubits from the Mahul tree. The suggestion made by the defence that this witness had not seen the occurrence, was stoutly denied.
7. On reading the entire evidence of this witness in cross examination, nowhere he appears to have stated that he had left the place of occurrence before the Dhubaleswar (deceased) was assaulted. Apart from the dying declaration and the version of the eye-witness, it also appears from the deposition of P.Ws. 2 & 3 that the Appellant while in police custody, confessed to have killed Dhubaleswar and led the police to his house and gave recovery of a tangia which is said to be the weapon of offence. The said tangia was also sent for chemical examination and human blood was found on it. There is no explanation as to how blood was found on the tangia seized from the house of the Appellant. The evidence of the doctor conducting the post-mortem examination also corroborates the version of the eye-witness as well as the dying declaration. P.W. 11 who conducted the post-mortem examination, found one lacerated injury over left occipital region, two lacerated injuries on the fate and a fracture of right maxilla. He was also of the opinion that all the injuries are ante-mortem in nature and were sufficient to cause death in ordinary course of nature.
8. In view of such nature of evidence available on record, we Rardly find any reason to interfere with the impugned Judgment. We find no merit in the appeal which is accordingly dismissed.