Judgment:
B.K. Behera, J.
1. The appellant stands convicted under Section 302 of the Indian Penal Code and sentenced to undergo imprisonment for life for having caused the death of his maternal uncle Sania Sisa (hereinafter described as 'the deceased') at about supper-time on November 7, 1980 at Muralaguda by stabbing him by means of a spear (M.O. II) on his back which ultimately resulted in his death on the day following and the motive for this murder was said to be the refusal by the deceased to part with a larger area of land for cultivation by the appellant who had been reared up by the deceased and had been given a portion of the land of the deceased for cultivation. The prosecution has relied on the evidence of two witnesses to the occurrence, namely, P. W. 4 Sukra Khilto and P.W. 5 Pitam alas Pitambar Khillo, the dying declaration made by the deceased before his brother (P. W. 1) and his wife (P. W. 2), the evidence of P. W. 2 that on hearing the cry raised by P. W. 4 that the appellant had stabbed the deceased, she came out of her house and saw the appellant moving away in the darkness and the recovery of M. O. II on the basis of a statement said to have been made by the appellant while in custody which, on chemical and serological test, contained human blood. Accepting the case of the prosecution, the learned trial Judge has found that the charge under Section 302 of the Indian Penal Code has been brought home to the appellant.
2. Appearing on behalf of the appellant, Mr. Pati, has contended that the evidence of P. Ws. 2, 4 and 5 is not worthy of credence and there has been conflict between the statements made in the first information report (Ext. 7) lodged by the brother of the deceased (P. W. 1) and the evidence of P. Ws. 2, 4 and 5. He has submitted that the order of conviction cannot be sustained on the evidence. He has invited our attention to the fact that the appellant has not properly been examined under Section 313 of the Code of Criminal Procedure and no question has been put to him regarding the dying declaration or about recovery of M. O. II. The learned Additional Standing Counsel has supported the order of conviction.
3. It is not disputed that the deceased had died a homicidal death as a result of the injury on his back which had pierced into the abdomen and had caused injuries sufficient in the ordinary course of nature to cause death and it would be seen from the medical evidence that the external and the consequent internal injuries could be caused by an instrument like M. O. II.
4. There is evidence that the appellant had not been pulling on well with the deceased as the latter bad refused to part with a larger portion of his land for cultivation by the appellant.
5. Coming to the dying declaration and the recovery of M. O. II which contained human blood, it is highly disquieting to note that the learned trial judge has not taken care to put any question to the appellant with regard to these two items of important evidence on which the prosecution sought reliance The Court of Sessions should take an intelligent part in the proceedings and should be alive to its responsibility while examining the accused under Section 313 of the Code of Criminal Procedure. To rely on the evidence with regard to the dying declaration and recovery of M. O. II stained with human blood would cause serious prejudice to the defence. Thus It would not be legal, reasonable and proper to rely on these items of evidence against the appellant. (See AIR 1984 S. C. 1622 Shared Birdhichand Sarda v. State of Maharashtra).
6. There is, however the clear and clinching evidence of P. Ws. 4 and 5 who have testified that the appellant was the author of the crime. According to both these witnesses, while they were sitting and chitchatting with the deceased in front of the latter's house at about supper-time, the appellant abruptly came to the scene, being armed with a spear and bow and arrows and by means of the spear which he had, pierced on the back portion of the deceased who cried in agony and fell on the ground with severe bleeding from his person. Both the witnesses have further testified that the appellant immediately look to his heels after the assault on the person of the deceased with the weapons he had moved away in the darkness. While P. W. 4 has identified M. O. II as the spear which the appellant had, P. W. 5 has testified that the appellant had a spear like M. O. II.
7. We have been taken through the evidence of P. Ws. 4 and 5. It was, no doubt, a dark night and there had been no illumination near about the place of occurrence. It must, however, be kept in mind, as the evidence would clearly show, that the appellant, a co-villager, was very well-known to P. Ws. 4 and 5 and was a close relation of the deceased and his wife. In. such circumstances, the evidence of identification of the appellant by P Ws. 4 and 5 is not to be thrown over-board merely because it was a dark night. Persons who are very well-known can be identified when seen at very close quarters by the light of the stars and by their centours and gait. No doubt, there can be no authority on a question of fact, but in similar circumstances, the evidence of identification had been accepted by this Court in 1982 CLR (Criminal) 241: Budhia Singh v. State.
8. Some statements have been made by P. Ws. 4 and 5 that in the darkness, it was not possible to see faces and at one stage of his cross-examination, P, W. 5 has stated that he had not been able to see anything, but he has stated that he did see the stabbing by the appellant on the person of the deceased and in a later part of his cross-examination, has denied the suggestion made by the defence that on account of darkness, he had not seen the appellant, stabbing the deceased. The evidence of a witness is to be read as a whole and is not to be discarded by picking out some sentences here and there. Read as a whole the evidence of P. Ws. 4 and 5 reads well and has rightly been accepted by the trial Court.
9. The evidence of P. Ws. 2, 4 and 5 would show that P. W. 2 had been informed by P. W. 4 about the occurrence immediately thereafter. The ocular testimony of P. Ws. 4 and 5 did get support from the evidence of the doctor (P. W. 3) who had conducted the autopsy over the dead body of the deceased, as per his post mortem report (Ext. 4).
10. The first information report had been lodged by P. W. 1 who was not a witness to the occurrence. The first information report, strictly speaking, cannot be treated as substantive evidence and can corroborate or contradict the evidence of the maker at the trial. Apart from this question, however, we see no inconsistency or material discrepancy between the contents of the first information report and the evidence of P. Ws. 4 and 5 in the Court except with regard to the actual time of occurrence which illiterate persons of the types of P. Ws. 1, 2, 4 and 5 are not supposed to say with accuracy.
11. Apart from the intrinsic worth of the testimony of P. Ws. 4 and 5, nothing has been brought out by the defence as to why these two witnesses would falsely involve the appellant in the commission of a heinous offence. Disinterestedness, by itself, may not be sufficient to accept the testimony of a witness, but if the evidence is otherwise acceptable, the fact of disinterestedness would lend further assurance to his testimony.
12. There was the evidence of P. W. 2 that on hearing the cry of Sukra (P. W. 4) that the appellant had stabbed her husband, she came out and saw the appellant running away from his house towards the path in the darkness. But we are not prepared to place implicit reliance on her testimony with regard to her seeing and identifying the appellant as in her statement under Section 161 of the Code of Criminal Procedure, she had not stated that she had seen the appellant getting into the darkness.
13. The evidence of P. Ws. 4 and 5 supported by the medical and other evidence referred to above would justify the conclusion that the appellant was the author of the crime.
14. The appellant had stabbed the deceased on a vital part and had caused injuries sufficient in the ordinary course of nature to cause death evidently with the intention of causing his death. The order of conviction recorded under Section 302 of the Indian Penal Code is well-founded.
15. The appeal fails and is dismissed.
G.B. Pattnaik, J.
I agree