Sukadev Bhoi. Vs. State of OrissA. - Court Judgment

SooperKanoon Citationsooperkanoon.com/913364
SubjectCriminal
CourtOrissa High Court
Decided OnMar-16-2010
Case NumberCRIMINAL APPEAL NO.285 OF 1999; CRIMINAL APPEAL NO.302 OF 1999; RIMINAL APPEAL NO.41 OF 2005.
JudgePRADIP MOHANTY; B.P.Ray, JJ.
ActsIndian Penal Code (IPC) - Sections 302, 304; Arms Act - Sections 25, 27; Code of Criminal procedure - Section 313.
AppellantSukadev Bhoi.
RespondentState of OrissA.
Appellant AdvocateM/s D. Panda; D.C. Swain; D.B. Dhal; G.R. Mohanty; A.K. Parida; M/s D. Panda; B.B. Biswal; R.Biswal; M.R. Panda; D.K. Biswal; P.R. Chhatoi; B.K. Choudhury; S.K. Swain; B.R. Biswal, Mr. Braja Mohan Biswal, Advs.
Respondent AdvocateMr. J.P. Pattnaik; M/s D. Das; R.R. Chhotray; B.R. Dalai; S. Satpathy, Advs.
Excerpt:
[aftab alam ; r.m. lodha, jj.] - narcotics drugs & psychotropic substance act, 1985 - sections 8 - prohibition of certain operations -- the suspected narcotic recovered from the appellant was seized under seizure memo, exhibit p.22. the trial court by judgment and order dated 9.11.2005 passed in special case no.4/2005 held all the three accused, including the appellant guilty of offences punishable under sections 8/21(b) of the ndps act and sentenced them as noted above. against the judgment of the trial court, the appellant preferred criminal appeal no.2511/2005 before the high court. the high court dismissed both the appeals by judgment and order dated april 17, 2008. the appellant alone has come in appeal against the judgment of the high court. the present appeal arises out of the judgment dated 10.12.2007 passed by the learned single judge of the high court of allahabad (lucknow bench) whereby the learned single judge has dismissed the tax revision filed by the appellant under section 11 of the u. p. trade tax act (hereinafter referred to as "the act") impugning the judgment dated 14.8.2007 passed by the trade tax tribunal, lucknow rejecting the second appeal of the appellant/assessee. the interest charge on the tax could not have been charged under section 8(1) as the case falls under section 8(1b). as in the present case the tax becomes admittedly payable once it has been held that the tax is payable under the act, the interest would be payable in terms of subsection (1) of section 8 of the act and not in terms of subsection (1b) of section 8 of the act. this court in the case of commissioner of sales tax v. qureshi crucible centre, 1993 supp (3) scc 495 has held that where a dealer fails to pay tax at the correct rate because he claimed not to know the revision in the rate, the dealer remains liable to pay interest at a higher rate, penal rate under section 8 (1) from the date when the tax became due and payable. 1. these three appeals arise out of the common judgment dated 11.10.1999 passed in s.t. case no.464 of 1998 whereby the learned addl. sessions judge, jagatsinghpur has convicted the appellants under section 302/34, ipc and sentenced them to undergo imprisonment for life and pay a fine of rs.1000/- each in default to undergo rigorous imprisonment for one month.2. case of the prosecution, as unfolded during trial, is that one sadananda jena, a school teacher, was entrusted with the job of preparing list of persons of sankharisahi village, to which both appellants and the deceased belonged, to get the benefits under the below poverty line scheme. deceased rasmiranjan was assisting him in identifying the persons entitled to get the benefit under the scheme. it is alleged that the teacher sadananda jena did not enlist the names of the appellants in the below poverty line list. due to that, there was some dissension between him and the appellants. on 08.11.1997, the deceased learnt that the appellants had planned to assault said sadananda jena and intimated him not to come to his village. on the very day at about 4.00 pm, when the deceased was going to his house, near the house of appellant gagan barik, appellant sukadev bhoi saw him and abused him in obscene language. both of them (appellants gagan barik and sukadev bhoi) chased the deceased being armed with bhujali. the deceased ran from the spot and fell near the house of one indramani behera. appellant gagan barik caught hold of his hand and appellant alekha dealt a bhujali blow on the face of the deceased. appellant sukadev brought one 'silupua' and dealt blows on the face of the deceased. many persons including the brother of the deceased were present there and witnessed the occurrence, but none of them intervened out of fear. it is further alleged that appellant gagan barik and alekha senapati pointed a revolver to the witnesses and threatened to kill them if the matter was reported to the police. after committing the crime, the appellants left the place. deceased succumbed to the injury at the spot. p.w.5, the brother of the deceased went to biridi outpost and lodged written report. on the basis of the same, the case was registered, investigation commenced and after it closure charge-sheet was submitted against the appellants.3. plea of the appellants is one of complete denial and false implication.4. in order to prove its case, prosecution examined as many as eleven witnesses including the doctor and the i.o., and exhibited eighteen documents. defence examined none.5. the learned addl. sessions judge after conclusion of the trial while acquitting the appellants of the charge under sections 25 and 27 of the arms act, convicted and sentenced them as mentioned hereinbefore with the findings that the accused persons in furtherance of their common intention caused the death of the deceased by means of bhujali and 'silupua'.6. heard mr. parida, learned counsel appearing for appellants alekha senapati and gagan barik, and mr. b.m. biswal, learned counsel appearing for appellant sukadev bhoi. they assail the impugned judgment mainly on the following grounds:(i) fir story does not tally with the evidence adduced in court.(ii) the so-called ocular witnesses have developed the prosecution case in court and, therefore, no reliance can be placed on their testimony.(iii) none of the so-called ocular witnesses has seen the occurrence and due to enmity they have falsely implicated the appellants.(iv) the evidence of the so-called ocular witnesses suffers from major contradictions.(v) with regard to the alleged place of occurrence, the evidence is inconsistent.(vi) some of the neighbors who had allegedly seen the occurrence have not been examined by the prosecution.(vii) their alternative argument is that if at all the appellants are found guilty of coming any crime, the act committed by them would at best come within the ambit of section 304 part-ii, ipc.7. mr. pattnaik, learned additional government advocate, on the other hand, contends that a conjoint reading of the evidence of the eye witnesses, viz., p.ws.2 to 7 clearly establishes that the appellants are the authors of the crime. p.w.5, the brother of the deceased, is the informant in this case and in the fir he has categorically mentioned the names of the appellants, the role played by each of them and the weapon used. the ocular evidence gets corroboration from the medical evidence. the blood stains of human origin were found from the wearing apparels of the appellants. thus, it cannot be said that the trial court has committed any infirmity or illegality in convicting the appellants.8. perused the lcr. p.w.5 is the informant and brother of the deceased. he specifically stated that one sadananda jena, a school teacher, was preparing the bpl list. his deceased brother was assisting said sadananda to identify the persons entitled to get the benefit under the scheme. the said sadananda had not enlisted the names of the accused persons in that bpl list. accused persons wanted to take away the life of sadananda on that day. his deceased brother came to know about it and sent away sadananda to save him. on the occurrence day, while his deceased brother was going to his house, near the house of accused gagan, accused sukadev bhoi scolded him in obscene language. accused alekha and gagan chased his deceased brother by holding bhujali. his deceased brother ran from the spot and fell near the house of one indramani behera. accused gagan caught hold of both the hands of his deceased brother. accused alekha dealt bhujali blow on the face of his deceased brother. accused sukadev brought one 'silapua' and gave blows to the face of his deceased brother. as a result, his deceased brother succumbed to the injuries at the spot. he then proceeded to biridi outpost and lodged a written report. he proved the fir marked ext.2 and his signature thereon as ext.2/1. in cross- examination this witness admitted that accused gagan and his brother were not pulling on well since 1995, as his brother had deposed against accused gagan in a murder case. the spot was 100 cubits away from his house. hearing hullah he came out of his house. he also admitted that about 30 persons of their village had seen the occurrence. accused gagan caught hold of the hands of his brother and others assaulted him. out of fear, he did not go to the spot to rescue his brother. his brother tried to escape from the clutches of gagan, but failed. he further admitted that all the accused persons were present near the spot for about five minutes after the assault. a suggestion was given with regard to the spot and he admitted that the spot was in front of the house of indramani. the fir (ext.2) corroborated the version of this witness. p.w.6 is said to be another ocular witness. he specifically stated that there was exchange of hot words between the accused sukadev and the deceased. at that time, accused alekha armed with a bhujali arrived at the spot along with accused gagan and threatened to kill the deceased. out of fear, the deceased ran towards the house of one indramani and there he fell down on the ground. accused gagan caught hold of the hands of the deceased and accused alekha dealt bhujali blow on the face of the deceased. thereafter, sukadev gave blows by a 'silupua' on the different parts of his face. in cross-examination, this witness admitted that he saw the assault from a distance of 200 feet. about 3 to 4 persons were present near the spot where accused sukadev assaulted the deceased. he also admitted that at that time p.ws.2, 5, 7 and another person were present at the spot but they did not intervene. the entire occurrence took place within ten minutes. he further admitted that he did not go to the spot to rescue the deceased. he had no enmity with the accused persons. to a suggestion given by the defence, he admitted that he had stated before the police that he had seen the occurrence by standing near the house of accused gagan barik which is 15 cubits away from the spot. nothing substantial has been brought out by way of cross-examination to demolish the evidence of p.ws.5 and6. p.w.7 is said to be another ocular witness. he stated that on the date of occurrence while going to the river embankment he heard hullah near the house of gagan barik, went there and saw the occurrence. he corroborated the evidence of p.w.6 with regard to assault by the accused persons. in cross-examination, he admitted that 4 to 5 persons were present near the spot at the time of assault. no person of goudasahi was present near the spot. he also admitted that p.w.6 and one srikanta jena were present at the spot. there is nothing in his cross- examination which can outweigh his evidence in the examination-in-chief. p.w.2 is yet another ocular witness. she stated that at the time of occurrence she was going to the shop of one abhaya behera to purchase some grocery articles. when she reached the shop, she saw accused sukadev standing near the house of accused gagan and rebuking the deceased saying "sala bpl list karuchu sala ku maridebu". when the deceased came there, all the accused persons chased him up to the house of one indramani behera. there, accused gagan held the hands of the deceased and accused alekha dealt blow by means of bhujali. accused sukadev assaulted the deceased by a 'silu pua'. seeing the ghastly crime, she left the place and went to her house. in cross-examination, she admitted that no other customer was present near the shop of said abhaya behera except herself. she further admitted that she became frightened seeing the deceased and did not raise any hue and cry to help the deceased. except herself no other person was present near the spot and all the doors of the houses were closed. she did not proceed to rescue the deceased from the assault. all the blows were dealt while the deceased was lying on the ground facing upward. she further admitted that the occurrence took place in front of the house of indramani behera. it is elicited by way of cross-examination that the length of 'silupua" is 1 feet length and 4 inch diametre. she saw accused sukadev dealing blow by holding 'silupua' from the middle. nothing substantial has been elicited by way of cross-examination to belie her testimony. p.w.3 is another eye witness who stated about the assault to the deceased by the accused persons. he admitted in cross-examination that 7 to 8 houses were there near the house of indramani behera and his house. but he did not see the persons who had got their houses near his house at the time of occurrence. seeing the bhujali blow dealt to the deceased, he became frightened and did not raise any hullah. he also admitted that he had no enmity with the accused. nothing has been elicited through cross-examination to demolish the testimony of this witness. p.w.4 is a witness to the occurrence who stated to have seen the assault to the deceased by the accused persons. he stated that when the accused persons left the spot, he and one gyana samantaray chased them. but as accused gagan and alekha showed revolver, they did not chase them out of fear. he is also a witness to the seizure of the wearing apparels of the deceased vide ext.1. p.w.8 is the doctor who conducted autopsy over the dead body of the deceased and found the following injuries:"(1) incised injury 3" x 1/2" of bone depth.(2) incised injury 1/2" x 1/2" x 1/2" frontal.(3) left maxillary region 1 cm x 1/2 cm.(4) incised injury 1/2" x 1/4" x 1/4".(5) left mandible 1/2" x 1/2" x 1/2".(6) incised injury vertex 2" x 1/2" bone depth.(7) multiple lacerated injury on left maxilla.(8) contusion left temporal region 1/2" x 1/2".(9) contusion right temporal 1/2" x 1/2"."he opined that injury nos.1 to 6 are caused by sharp cutting instruments and injury nos.7 to 9 are caused by hard and rough weapon. all the injuries are ante mortem in nature. he specifically opined that the cause of death was due to shock as a result of injury to brain. he proved the postmortem report marked as ext.3. in cross-examination, he admitted that injuries no.1 and 2 are on the left forehead. nothing has been elicited from the mouth of this witness through cross- examination to disbelieve his testimony. p.w.1 is a co-villager who specifically stated that on the date of occurrence at 3.30 pm while going to the house of one carpenter he saw accused gagan, sukadev and alekha standing near the house of accused gagan and rebuking the deceased in obscene language. thereafter, he went to the house of the carpenter and came back to his house as the said carpenter was not present in his house. 5 or 10 minutes thereafter, he found some female folk were present near a chhaka situated adjacent to his house. when he went there, his cousin brother abhaya behera informed him that the accused persons had committed murder of the deceased. he further stated that accused gagan pointed a revolver saying that he would kill if anyone reported to the police against him. in cross-examination, he admitted that no body was present when gagan pointed a pistol and threatened to kill if anyone will report the police about the incident. p.w.9 is a police constable and a witness to the inquest. p.w.10 is the investigating officer who registered the case, examined the informant, held inquest over the dead body of the deceased, seized the weapons of offence, blood stained earth vide ext.7, prepared the spot map, seized the blood stained wearing apparels of accused alekha vide ext.10, blood stained wearing apparels of accused gagan vide ext.11 and blood stained wearing apparels of accused sukadev vide ext.12 and sent them for chemical examination, and ultimately submitted charge-sheet. nothing has been confronted to the investigating officer about the previous statement of the witnesses. the only suggestion given to him was that he had not properly investigated the case. p.w.11 is the i.i.c. of sahidnagar p.s. who arrested accused gagan and alekh and produced them in court.9. on careful scrutiny of the evidence, this court does not find anything from which it can be inferred that ocular witnesses have exaggerated the facts or developed the prosecution case while deposing in court. although there are some minor contradictions in their evidence, such contradictions are bound to occur even in case of truthful witnesses. there is no dispute that all the injuries on the person of the deceased were ante mortem in nature. p.ws.2, 3, 4, 6 and 7 who had seen the actual occurrence are co-villagers of the accused persons as well as the deceased and there is no material to show that they were inimically disposed towards the accused persons prior to the occurrence. in other words, there is no reason as to why these witnesses would falsely implicate the accused persons. rather, their evidence is very clear, cogent and reliable. p.w.5, the brother of the deceased, is the informant in this case. he had seen the occurrence in question. nothing has been elicited from him through cross-examination to disbelieve his evidence. in fir also he has narrated in detail the incident and also the role played by each of the accused persons. evidence of this witness also gets full corroboration from the fir. his evidence does not suffer from any material contradiction. there is no reason as to why he would falsely implicate the accused persons and spare the real culprits. the contention of the defence that some of the neighbours who had seen the occurrence have not been examined by the prosecution has no substance, simply because the prosecution cannot be compelled to examine all the witnesses said to have seen the occurrence. material witnesses considered necessary by the prosecution for unfolding the prosecution case alone need to be examined and in this case prosecution has examined p.ws.2 to 4, 6 and 7, who are co-villagers, as eye witnesses. the i.o. had seized the "silupua" m.o.i and two pieces of broken bricks m.o.ii from the spot as well as the wearing apparels of the deceased and the accused persons stained with blood which on chemical examination was found to be of human origin. but it seems no question in regard to that has been put to the accused persons while recording their statements under section 313, cr.p.c. therefore, this court feels it proper not to utilize the chemical examination report against the accused persons. the medical evidence of p.w.8 is found to have supported the evidence of the ocular witnesses. therefore, taking into consideration the ocular evidence and the medical evidence available on record, this court is satisfied that the trial court has rightly convicted the accused persons under section 302/34, ipc. this court does not find anything from record to convert the conviction of the accused persons from section 302, ipc to section 304 part-ii, ipc.10. for the reasons stated above, this court does not find any justification to interfere with the impugned judgment which is hereby upheld. the appeals are accordingly dismissed.
Judgment:
1. These three appeals arise out of the common judgment dated 11.10.1999 passed in S.T. Case No.464 of 1998 whereby the learned Addl. Sessions Judge, Jagatsinghpur has convicted the appellants under Section 302/34, IPC and sentenced them to undergo imprisonment for life and pay a fine of Rs.1000/- each in default to undergo rigorous imprisonment for one month.

2. Case of the prosecution, as unfolded during trial, is that one Sadananda Jena, a school teacher, was entrusted with the job of preparing list of persons of Sankharisahi village, to which both appellants and the deceased belonged, to get the benefits under the Below Poverty Line Scheme. Deceased Rasmiranjan was assisting him in identifying the persons entitled to get the benefit under the scheme. It is alleged that the teacher Sadananda Jena did not enlist the names of the appellants in the Below Poverty Line list. Due to that, there was some dissension between him and the appellants. On 08.11.1997, the deceased learnt that the appellants had planned to assault said Sadananda Jena and intimated him not to come to his village. On the very day at about 4.00 PM, when the deceased was going to his house, near the house of appellant Gagan Barik, appellant Sukadev Bhoi saw him and abused him in obscene language. Both of them (appellants Gagan Barik and Sukadev Bhoi) chased the deceased being armed with bhujali. The deceased ran from the spot and fell near the house of one Indramani Behera. Appellant Gagan Barik caught hold of his hand and appellant Alekha dealt a bhujali blow on the face of the deceased. Appellant Sukadev brought one 'SILUPUA' and dealt blows on the face of the deceased. Many persons including the brother of the deceased were present there and witnessed the occurrence, but none of them intervened out of fear. It is further alleged that appellant Gagan Barik and Alekha Senapati pointed a revolver to the witnesses and threatened to kill them if the matter was reported to the police. After committing the crime, the appellants left the place. Deceased succumbed to the injury at the spot. P.W.5, the brother of the deceased went to Biridi Outpost and lodged written report. On the basis of the same, the case was registered, investigation commenced and after it closure charge-sheet was submitted against the appellants.

3. Plea of the appellants is one of complete denial and false implication.

4. In order to prove its case, prosecution examined as many as eleven witnesses including the doctor and the I.O., and exhibited eighteen documents. Defence examined none.

5. The learned Addl. Sessions Judge after conclusion of the trial while acquitting the appellants of the charge under Sections 25 and 27 of the Arms Act, convicted and sentenced them as mentioned hereinbefore with the findings that the accused persons in furtherance of their common intention caused the death of the deceased by means of bhujali and 'SILUPUA'.

6. Heard Mr. Parida, learned counsel appearing for appellants Alekha Senapati and Gagan Barik, and Mr. B.M. Biswal, learned counsel appearing for appellant Sukadev Bhoi. They assail the impugned judgment mainly on the following grounds:

(i) FIR story does not tally with the evidence adduced in court.

(ii) The so-called ocular witnesses have developed the prosecution case in court and, therefore, no reliance can be placed on their testimony.

(iii) None of the so-called ocular witnesses has seen the occurrence and due to enmity they have falsely implicated the appellants.

(iv) The evidence of the so-called ocular witnesses suffers from major contradictions.

(v) With regard to the alleged place of occurrence, the evidence is inconsistent.

(vi) Some of the neighbors who had allegedly seen the occurrence have not been examined by the prosecution.

(vii) Their alternative argument is that if at all the appellants are found guilty of coming any crime, the act committed by them would at best come within the ambit of Section 304 Part-II, IPC.

7. Mr. Pattnaik, learned Additional Government Advocate, on the other hand, contends that a conjoint reading of the evidence of the eye witnesses, viz., P.Ws.2 to 7 clearly establishes that the appellants are the authors of the crime. P.W.5, the brother of the deceased, is the informant in this case and in the FIR he has categorically mentioned the names of the appellants, the role played by each of them and the weapon used. The ocular evidence gets corroboration from the medical evidence. The blood stains of human origin were found from the wearing apparels of the appellants. Thus, it cannot be said that the trial court has committed any infirmity or illegality in convicting the appellants.

8. Perused the LCR. P.W.5 is the informant and brother of the deceased. He specifically stated that one Sadananda Jena, a school teacher, was preparing the BPL list. His deceased brother was assisting said Sadananda to identify the persons entitled to get the benefit under the scheme. The said Sadananda had not enlisted the names of the accused persons in that BPL list. Accused persons wanted to take away the life of Sadananda on that day. His deceased brother came to know about it and sent away Sadananda to save him. On the occurrence day, while his deceased brother was going to his house, near the house of accused Gagan, accused Sukadev Bhoi scolded him in obscene language. Accused Alekha and Gagan chased his deceased brother by holding bhujali. His deceased brother ran from the spot and fell near the house of one Indramani Behera. Accused Gagan caught hold of both the hands of his deceased brother. Accused Alekha dealt bhujali blow on the face of his deceased brother. Accused Sukadev brought one 'SILAPUA' and gave blows to the face of his deceased brother. As a result, his deceased brother succumbed to the injuries at the spot. He then proceeded to Biridi Outpost and lodged a written report. He proved the FIR marked Ext.2 and his signature thereon as Ext.2/1. In cross- examination this witness admitted that accused Gagan and his brother were not pulling on well since 1995, as his brother had deposed against accused Gagan in a murder case. The spot was 100 cubits away from his house. Hearing hullah he came out of his house. He also admitted that about 30 persons of their village had seen the occurrence. Accused Gagan caught hold of the hands of his brother and others assaulted him. Out of fear, he did not go to the spot to rescue his brother. His brother tried to escape from the clutches of Gagan, but failed. He further admitted that all the accused persons were present near the spot for about five minutes after the assault. A suggestion was given with regard to the spot and he admitted that the spot was in front of the house of Indramani. The FIR (Ext.2) corroborated the version of this witness. P.W.6 is said to be another ocular witness. He specifically stated that there was exchange of hot words between the accused Sukadev and the deceased. At that time, accused Alekha armed with a bhujali arrived at the spot along with accused Gagan and threatened to kill the deceased. Out of fear, the deceased ran towards the house of one Indramani and there he fell down on the ground. Accused Gagan caught hold of the hands of the deceased and accused Alekha dealt bhujali blow on the face of the deceased. Thereafter, Sukadev gave blows by a 'SILUPUA' on the different parts of his face. In cross-examination, this witness admitted that he saw the assault from a distance of 200 feet. About 3 to 4 persons were present near the spot where accused Sukadev assaulted the deceased. He also admitted that at that time P.Ws.2, 5, 7 and another person were present at the spot but they did not intervene. The entire occurrence took place within ten minutes. He further admitted that he did not go to the spot to rescue the deceased. He had no enmity with the accused persons. To a suggestion given by the defence, he admitted that he had stated before the police that he had seen the occurrence by standing near the house of accused Gagan Barik which is 15 cubits away from the spot. Nothing substantial has been brought out by way of cross-examination to demolish the evidence of P.Ws.5 and

6. P.W.7 is said to be another ocular witness. He stated that on the date of occurrence while going to the river embankment he heard hullah near the house of Gagan Barik, went there and saw the occurrence. He corroborated the evidence of P.W.6 with regard to assault by the accused persons. In cross-examination, he admitted that 4 to 5 persons were present near the spot at the time of assault. No person of Goudasahi was present near the spot. He also admitted that P.W.6 and one Srikanta Jena were present at the spot. There is nothing in his cross- examination which can outweigh his evidence in the examination-in-chief. P.W.2 is yet another ocular witness. She stated that at the time of occurrence she was going to the shop of one Abhaya Behera to purchase some grocery articles. When she reached the shop, she saw accused Sukadev standing near the house of accused Gagan and rebuking the deceased saying "Sala BPL list Karuchu Sala Ku Maridebu". When the deceased came there, all the accused persons chased him up to the house of one Indramani Behera. There, accused Gagan held the hands of the deceased and accused Alekha dealt blow by means of bhujali. Accused Sukadev assaulted the deceased by a 'SILU PUA'. Seeing the ghastly crime, she left the place and went to her house. In cross-examination, she admitted that no other customer was present near the shop of said Abhaya Behera except herself. She further admitted that she became frightened seeing the deceased and did not raise any hue and cry to help the deceased. Except herself no other person was present near the spot and all the doors of the houses were closed. She did not proceed to rescue the deceased from the assault. All the blows were dealt while the deceased was lying on the ground facing upward. She further admitted that the occurrence took place in front of the house of Indramani Behera. It is elicited by way of cross-examination that the length of 'SILUPUA" is 1 feet length and 4 inch diametre. She saw accused Sukadev dealing blow by holding 'SILUPUA' from the middle. Nothing substantial has been elicited by way of cross-examination to belie her testimony. P.W.3 is another eye witness who stated about the assault to the deceased by the accused persons. He admitted in cross-examination that 7 to 8 houses were there near the house of Indramani Behera and his house. But he did not see the persons who had got their houses near his house at the time of occurrence. Seeing the bhujali blow dealt to the deceased, he became frightened and did not raise any hullah. He also admitted that he had no enmity with the accused. Nothing has been elicited through cross-examination to demolish the testimony of this witness. P.W.4 is a witness to the occurrence who stated to have seen the assault to the deceased by the accused persons. He stated that when the accused persons left the spot, he and one Gyana Samantaray chased them. But as accused Gagan and Alekha showed revolver, they did not chase them out of fear. He is also a witness to the seizure of the wearing apparels of the deceased vide Ext.1. P.W.8 is the doctor who conducted autopsy over the dead body of the deceased and found the following injuries:

"(1) Incised injury 3" x 1/2" of bone depth.

(2) Incised injury 1/2" x 1/2" x 1/2" frontal.

(3) Left maxillary region 1 cm x 1/2 cm.

(4) Incised injury 1/2" x 1/4" x 1/4".

(5) Left Mandible 1/2" x 1/2" x 1/2".

(6) Incised injury vertex 2" x 1/2" bone depth.

(7) Multiple lacerated injury on left Maxilla.

(8) Contusion left temporal region 1/2" x 1/2".

(9) Contusion right temporal 1/2" x 1/2"."

He opined that injury nos.1 to 6 are caused by sharp cutting instruments and injury nos.7 to 9 are caused by hard and rough weapon. All the injuries are ante mortem in nature. He specifically opined that the cause of death was due to shock as a result of injury to brain. He proved the postmortem report marked as Ext.3. In cross-examination, he admitted that injuries no.1 and 2 are on the left forehead. Nothing has been elicited from the mouth of this witness through cross- examination to disbelieve his testimony. P.W.1 is a co-villager who specifically stated that on the date of occurrence at 3.30 PM while going to the house of one Carpenter he saw accused Gagan, Sukadev and Alekha standing near the house of accused Gagan and rebuking the deceased in obscene language. Thereafter, he went to the house of the carpenter and came back to his house as the said carpenter was not present in his house. 5 or 10 minutes thereafter, he found some female folk were present near a Chhaka situated adjacent to his house. When he went there, his cousin brother Abhaya Behera informed him that the accused persons had committed murder of the deceased. He further stated that accused Gagan pointed a revolver saying that he would kill if anyone reported to the police against him. In cross-examination, he admitted that no body was present when Gagan pointed a pistol and threatened to kill if anyone will report the police about the incident. P.W.9 is a police constable and a witness to the inquest. P.W.10 is the investigating officer who registered the case, examined the informant, held inquest over the dead body of the deceased, seized the weapons of offence, blood stained earth vide Ext.7, prepared the spot map, seized the blood stained wearing apparels of accused Alekha vide Ext.10, blood stained wearing apparels of accused Gagan vide Ext.11 and blood stained wearing apparels of accused Sukadev vide Ext.12 and sent them for chemical examination, and ultimately submitted charge-sheet. Nothing has been confronted to the investigating officer about the previous statement of the witnesses. The only suggestion given to him was that he had not properly investigated the case. P.W.11 is the I.I.C. of Sahidnagar P.S. who arrested accused Gagan and Alekh and produced them in court.

9. On careful scrutiny of the evidence, this Court does not find anything from which it can be inferred that ocular witnesses have exaggerated the facts or developed the prosecution case while deposing in court. Although there are some minor contradictions in their evidence, such contradictions are bound to occur even in case of truthful witnesses. There is no dispute that all the injuries on the person of the deceased were ante mortem in nature. P.Ws.2, 3, 4, 6 and 7 who had seen the actual occurrence are co-villagers of the accused persons as well as the deceased and there is no material to show that they were inimically disposed towards the accused persons prior to the occurrence. In other words, there is no reason as to why these witnesses would falsely implicate the accused persons. Rather, their evidence is very clear, cogent and reliable. P.W.5, the brother of the deceased, is the informant in this case. He had seen the occurrence in question. Nothing has been elicited from him through cross-examination to disbelieve his evidence. In FIR also he has narrated in detail the incident and also the role played by each of the accused persons. Evidence of this witness also gets full corroboration from the FIR. His evidence does not suffer from any material contradiction. There is no reason as to why he would falsely implicate the accused persons and spare the real culprits. The contention of the defence that some of the neighbours who had seen the occurrence have not been examined by the prosecution has no substance, simply because the prosecution cannot be compelled to examine all the witnesses said to have seen the occurrence. Material witnesses considered necessary by the prosecution for unfolding the prosecution case alone need to be examined and in this case prosecution has examined P.Ws.2 to 4, 6 and 7, who are co-villagers, as eye witnesses. The I.O. had seized the "SILUPUA" M.O.I and two pieces of broken bricks M.O.II from the spot as well as the wearing apparels of the deceased and the accused persons stained with blood which on chemical examination was found to be of human origin. But it seems no question in regard to that has been put to the accused persons while recording their statements under Section 313, Cr.P.C. Therefore, this Court feels it proper not to utilize the chemical examination report against the accused persons. The medical evidence of P.W.8 is found to have supported the evidence of the ocular witnesses. Therefore, taking into consideration the ocular evidence and the medical evidence available on record, this Court is satisfied that the trial court has rightly convicted the accused persons under Section 302/34, IPC. This Court does not find anything from record to convert the conviction of the accused persons from Section 302, IPC to Section 304 Part-II, IPC.

10. For the reasons stated above, this Court does not find any justification to interfere with the impugned judgment which is hereby upheld. The appeals are accordingly dismissed.