Referring to the decision of the Supreme Court in the case of Mithu v. State of Punjab reported in
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK JCRLA No.45 of 2005 From the judgment dated 25.01.2005 passed by the learned First Additional Sessions Judge, Puri in S.T. Case No.6/316 of 2002. Nilu @ Nihar Ranjan @ Niharkanta Biswal …. Appellant -versus- State of Odisha …. Respondent Advocates appeared in this case through Hybrid Mode : For Appellant : Mr. Manoranjan Kar, Advocate For Respondent : Ms. Saswata Pattnaik, AGA CORAM: JUSTICE S.TALAPATRA AND JUSTICE SAVITRI RATHO ……………………………………………………………………….. Date of Judgment : 31.03.2023 ……………………………………………………………………….. Savitri Ratho, J. Challenging his conviction for commission of offence under Section 302 of the Indian Penal Code (in short “IPC”) by the First Additional Sessions Judge, Puri in S.T. Case No.6/316 of 2002 vide judgment dated 25.01.2005, the appellant has filed this Criminal Appeal. By the said impugned judgment, the appellant has been sentenced to undergo rigorous imprisonment for life. No fine has been imposed. JCRLA No.45 of 2005 Page 1 of 28 //2// 2. It is apparent from the impugned judgment that the appellant was earlier convicted in S.T. Case No.293/1993 arising out of G.R. Case No.121/1993 corresponding to Konark P.S. Case No.21/93 under Sections 302/324 of IPC and sentenced to undergo R.I. for life under Section 302 of IPC and R.I. for one year under Section 324 of IPC by order dated 21.02.1995 by the First Additional Sessions Judge, Puri and this conviction had been confirmed by the High Court in Criminal Appeal No.76/95. Referring to the decision of the Supreme Court in the case of Mithu v. State of Punjab reported in 1983 Criminal Law Journal, 811: (1983) 2 SCC 277, where the provision of Section 303 of IPC has been held to be arbitrary and oppressive and has been struck down as unconstitutional, while sentencing the appellant the learned trial Court has held that the Section 303 IPC has no application. PROSECUTION CASE 3. The prosecution case in brief is that the deceased had a tea stall in Balianimuhan Chhak in village Mankaragoradi. One Basanta who was staying as a tenant in the house of the deceased-Lokanath Jena, had kidnapped Bandita, the sister of the accused a few days before the occurrence. On the date of occurrence i.e. 08.08.2001, at about 5.00 P.M., JCRLA No.45 of 2005 Page 2 of 28 //3// the accused had come to the tea-stall of the deceased holding an axe and enquired about the whereabouts of Basanta. When the deceased denied any knowledge, the accused got enraged and dealt a number of blows with the sharp side of the axe on the deceased who sustained several bleeding injuries and fell down. After he fell down, the deceased dealt some more blows. When many persons including the sons of the deceased rushed to
Facts
the spot, the accused first threatened them showing the axe and then ran away from the spot alongwith the blood stained axe. P.W.13-Trilochan Badjena, son of the deceased lodged a written report before P.W 20 the IIC, Konark Poilce Station. P.W.20, registered Konark P.S. Case No.79/01 and took up investigation on the same day. He visited the spot, held inquest over the dead body of the deceased, forwarded the dead body for postmortem report and prepared the spot map, seized the incriminating articles, examined the other witnesses and arrested the accused. The accused while in police custody, made disclosure statement and gave recovery of the weapon of offence, i.e., axe (M.O.II) alongwith his blood stained wearing apparels (M.O.III and M.O.IV) which were seized vide seizure lists Ext.3 and Ext.4. After completion of investigation, P.W.20 submitted charge sheet against the accused under Section 302 IPC. JCRLA No.45 of 2005 Page 3 of 28 //4// DEFENCE PLEA 4. The plea of the defence was one of denial and false implication. WITNESSES 5. To prove its case, the prosecution examined as many as 21 witnesses. P.W.5 Anama Jena son of the deceased and P.W.15 Bhaskar Mallik, who was having tea in the tea stall of the deceased, are the eye witnesses to the assault on the deceased. P.W.13-Trilochana Badjena is the informant and another son of the deceased. P.W.2-Bichitra Kumar Jena saw the accused entering into the tea stall of the deceased and after sometime leaving the tea stall holding the blood stained axe. P.W.4- Niranjan Sahu, P.W.7 - Sarbeswar Naik, P.W.9 - Kartika Pradhan and P.W.16 - Bishnu Charan Jena are the post occurrence witnesses, who hearing hue and cry rushed to the tea stall of the deceased and found the accused coming out from the tea stall with the blood stained axe and running away towards the jungle. P.Ws. 9 and 16 were cross examined under Section – 154 of the Evidence Act by the prosecution as they did not state a part of what they had stated before the police during investigation. They saw the deceased lying in his shop with bleeding injuries on his person. P.W.1-Bidyadhar Jena brother of the deceased and JCRLA No.45 of 2005 Page 4 of 28 //5// P.W.3-Jambeswar Raut are two other post occurrence witnesses, who found the deceased lying in his shop with severe bleeding injury. P.W.8- Krushna Chandra Swain is the witness to the disclosure statement of the deceased and seizure of the weapon of offence by the P.W.20, the I.O. P.W.6-Pabitra Kumar Jena, P.W.10-Dwijabar Behera, P.W.11-Constable Sumanta Singh Raut and P.W.12-Police Constable Prabhat Kumar Pradhan are the witnesses to the seizure of different incriminating articles by the I.O., i.e., command certificate, bicycle, axe, sample blood, blood stained apparel etc. P.W.14-Budhanath Jena is a witness to the inquest. P.W.17-Kanhei Charan Sethi is the photographer and P.W.19-Arun Kumar Swain is the Scientific Officer of D.F.S.L., Puri. The two of them took pictures and collected the incriminating articles from the spot. P.W.18-Dr. Pramod Chandra Swain is the Medical Officer, who conducted the postmortem examination on the dead body of the deceased. P.W.20, Prafulla Kumar Baliarsingh was the then IIC, Konark Police Station and the Investigating Officer who registered the case, conducted investigation and submitted charge sheet. P.W.21-Deba Narayan Das is the C.S.I. of the Sadar Courts, Puri who proved the previous conviction of the accused under Sections 302/324 of IPC in S.T. Case No.293 of 1993. 6. The prosecution proved a number of documents marked as Exts 1 -21 and produced the material objects marked as M.Os-I to VIII. JCRLA No.45 of 2005 Page 5 of 28 //6// No witness was examined on behalf of the defence nor any document exhibited on its behalf. IMPUGNED JUDGMENT 7. The trial court after scrutiny and appreciation of the material evidence on record, came to the conclusion that the prosecution had successfully brought home the guilt of the appellant in committing the murder of the deceased and convicted him under Section 302 IPC and sentenced him to undergo imprisonment for life vide judgment and order dated 25.01.2005. SUBMISSIONS 8.
Legal Reasoning
reliance on various earlier judgments of this court including Jagdish Prasad Vs. State of M.P., AIR 1994 SC 1251; and Vadivelu Thevar Vs. State of Madras, AIR 1957 SC 614.
Arguments
Mr. Manoranjan Kar, learned counsel for the appellant has challenged the impugned judgment on the following grounds: (i) P.W.5-Anama Jena should be disbelieved as he is a child witness and his evidence does not inspire confidence . (ii) There is difference between the ocular evidence and medical evidence as the alleged eye witnesses have stated that the accused dealt 7-8 blows to the deceased as per P.W.5 and more than 3-4 blows as per P.W.15. But during post mortem examination only five cut injuries were found on the deceased. JCRLA No.45 of 2005 Page 6 of 28 //7// (iii) The testimonies of P.W 5 and P.W 15 should be disbelieved became of their unnatural conduct- none of them tried to stop the assault on the deceased. (iv) In appellant had not motive or enmity with the deceased . He had come looking for Basanta and not with the intention of causing the death of the deceased . Therefore , a case under Section 302 of IPC is not made out against the appellant and at worst he can be convicted under Section 304 Part-I of the IPC (v) Although the appellant had been granted bail but as he could not furnish the bail bonds he has remained in custody and completed more than 20 years in custody. 9. Ms. S. Pattanaik, learned Additional Government Advocate has supported the impugned judgment stating that the prosecution has proved beyond reasonable doubt that the appellant had come armed to the spot with an axe looking for Basanta and when the deceased denied knowledge about the whereabouts of Basanta, the appellant assaulted him with sharp side of the axe inflicting 5 cut injuries and other injuries. This assault on the deceased had been seen by P.W.5 son of the deceased and P.W. 15 who are the eye witnesses to the occurrence and who have no JCRLA No.45 of 2005 Page 7 of 28 //8// reason to falsely implicate him. Their evidence is corroborated by P.W.13 and P.W.16 who are post occurrence witnesses. Apart from that, the appellant has made disclosure statement which was recorded under Section 27 of the Indian Evidence Act and has led to discovery of the weapon of offence namely the axe and his blood stained clothing which have been seized. On chemical examination, these articles were found to contain blood of human origin. As he has dealt at least five blows with the axe on the deceased and also assaulted him after he had fallen down, there is no question of modifying his conviction to one under Section- 304 Part I of the I.P.C. EVIDENCE OF WITNESSES (MEDICAL EVIDENCE) 10. Although P.W.18, the doctor who conducted post mortem examination of the deceased has not stated specifically that death of the deceased was homicidal in nature, but the same is evident from the nature of injuries sustained by the deceased. The time of death as mentioned in the postmortem report and by P.W 18 in his evidence matches with the time the eye witnesses have stated the deceased was assaulted by the appellant. P.W 18 who was working as Assistant Surgeon on the relevant date i.e., 9.8.2001 found the following injuries of the deceased : “…External- JCRLA No.45 of 2005 Page 8 of 28 //9// 1. Chop wound on the anterior aspect of right arm, size 5” x 2 1/2” x bone deep, vertically placed, its upper end touching the right side shoulder joint. 2. Chop wound: present over medial aspect of rt.arm size 3/2” x 2” x bone deep, vertically placed, its upper end was 1” below to the bit of rt. axillary. 3. Chop wound on rt. Side chest vertically placed, size 4” x 2” x bone deep, its upper end is 2 ½” below to the bit of rt. Side axillary. 4. Chop wound on the left side chest, size 3 ½” x ½” x bone deep obliquely placed, its medial end was 2” away from xiphistphrna and its later end was in the 4th inter-costal space. 5. Chop wound on the left side parietal region of head, size 2 ½” x ½” x bone deep (external deploy of parietal bone was cut), obliquely placed, adjacent to the lower part of parietal eminence. 6. Linear abrasion on the rt. Side hypochondrum of abdomen, size 2 1/2 “ long obliquely placed, tailing downwards. Internal injury 1.There were fractures of ribs over rt. Chest and their angles, 5th, 6th and 8th ribs were fractured. JCRLA No.45 of 2005 Page 9 of 28 //10// 2.The lateral aspect of middle and lower ribs of rt. Lung were lacerated of size 4 1/2” x ½” x 1/6”, the rt. Side of lung was covered with clotted blood on the anterior and lateral surface. 3.The intra-coastal muscles in the 5th and 6th space on the left side chest were lacerated, size 2 1/2 “ x 2. 4.There was sub-dural haemorrhage of size ½ cm thickness over left side hemisphere of brain.” He has further stated as follows : “ Opinion:- Cause of death was injuries to vital organs like brain and lung . 2. The injury mentioned above are ante mortem in nature. The time since death from the P.M. exmn. was from 18 to 24 hours. 3. Blood samples collected in dry-swab and kept in a glass- bowel, sealed and handed over to accompanied police. The injuries found on the dead body of deceased are possible by axe. I also examined one axe being produced by police. The seize of axe was 3” x ¾” breadth fitted with wooden handle. The injuries found by me are possible by axe, which I examined (the weapon of offence i.e. axe has not been submitted to Court by the I.O.). I have prepared the P.M. report in carbon process. The report bears by signature. Ext.13 is the P.M. report and JCRLA No.45 of 2005 Page 10 of 28 //11// Ext.13/1 is my signature thereon (Marked with objection). Ext.14 is my report regarding examination of axe, the weapon of offence. Ext.141 is my signature thereon. Cross – exmn. by SDC All the injuries are possible by the weapon of offence. Injuries no.1, 2 and 3 are possible by sharp glasses. The injuries to the brain are possible by fall. It is not a fact that the deceased died due to fall.” EYE WITNESSES 11. In order to be satisfied with the finding of the learned trial court that the appellant is the author of the injuries, which culminated in his death, we need to examine the evidence of the eye witnesses. P.W.5-Anama Jena is the son of the deceased. He was aged about 11 and ½ years on the date of occurrence and is an eye witness to the occurrence. He has stated that the occurrence took place 1 and ½ years back and they have a tiffin stall and a betel shop at Balianimuhan Chhak of Konark NAC and he and his father were there in the tiffin shop while his brother –Bailochana Jena was present but had gone for marketing. After providing betel to the customer when he went to the tiffin shop he found the accused inflicting 7 to 8 blows by a kuradhi (axe) to his father, as a result of which his father fell on the ground with severe bleeding injury. The accused then fled away with the axe. He denied a suggestion JCRLA No.45 of 2005 Page 11 of 28 //12// that he has not stated before police that he was in the betel shop or that they had a betel shop and that he was not present in the shop and that he had not seen anything and that he is deposing falsely. No other questions were asked to him during the cross-examination. P.W.15-Bhaskar Malik has stated that the occurrence took place two years back at about 4 P.M. at Balianimuhan Chhak in the tea stall of Lokanath Jena. He, Dhaneswar and Radheshyam Khatua were there and were taking tea. At that time, the accused came holding an axe and entered into the tea stall and talked with the deceased. All of a sudden, he heard some shout and turned around and found the accused giving blows with axe on the right arm of the deceased. Receiving the blow the deceased fell down and thereafter the accused gave further three to four blows on the deceased and blowing the axe towards others came outside and fled away towards jungle side. Soon thereafter, the deceased was carried to hospital where he was found dead. During cross- examination, he has stated that he was examined by the police after 2 to 3 days of the date of occurrence. The tea-stall of the deceased is at the corner of the main road and the branch road. He saw the occurrence from a distance of about 15 feet. He has further stated that seeing the accused assaulting the deceased, he shouted at him and ran towards him. But seeing the accused coming “blowing” the axe, he re-treated to the side and JCRLA No.45 of 2005 Page 12 of 28 //13// the accused ran away. He has stated further that the accused dealt blow in his presence and the accused dealt blow on the right arm, left arm-pit, belly and the back side spinal. The deceased fell after receiving first blow towards his right and he was conscious when he arrived there. Simultaneously many persons arrived there. There was dense forest near the place of occurrence and half an hour thereafter he heard that the deceased died. He has denied the suggestion that he has not seen the occurrence and was deposing falsely at the instance of the informant. INFORMANT 12. The informant P.W.13-Trilochan Badjena is another son of the deceased. He is not an eye witnesses as at the relevant time he had gone to a grocery shop nearby. He has stated that the occurrence took place on August, 2001 at Balinimuhan Chhak in their tiffin stall at about 4.30 P.M. At that time, his father and younger brother were present in the tiffin stall and he had been to the grocery shop nearby. One Baina Jena and Bisnu Jena called him saying that the accused dealt blows with axe. When he turned back, he found the accused running away with the axe from the tiffin stall. He rushed to the tiffin stall and found his father had sustained bleeding injury on his right arm, belly and back. Then they removed his father to the hospital. The doctor declared him to be dead. JCRLA No.45 of 2005 Page 13 of 28 //14// His younger brother –Anam Jena stated before him that the accused came to their tiffin stall and enquired from his father about Basu of Nimapara. His father denied knowledge about whereabouts of said Basu and the accused abused him and assaulted by the axe giving 4 to 5 blows. Prior to the occurrence, the sister of accused Bandita had eloped with someone of Nimapara. The accused suspected the hand of Basu and enquired about him as Basu was acquainted with his father. He has further stated that he lodged a written report at Konark P.S. soon after the occurrence and the report was scribed by Bidyadhar Jena (P.W.1) who is his uncle. The report was scribed as per his instruction. Ext.9 is the FIR and Ext.9/1 is his signature and Ext.9/2 is the signature of his uncle Bidyadhar Jena. He has stated that he was present at the time of inquest and has signed the inquest report which is Ext.10. In cross-examination, he has stated that he had been to the grocery shop which is about 20 ft. from the tea stall and the place of occurrence is not visible from that shop and he has not seen the accused dealing the blows and he had no direct knowledge regarding the manner of giving blows. He denied a suggestion that his father connived with Basu and was harassing the accused and that there was no such occurrence and that he was deposing falsely. JCRLA No.45 of 2005 Page 14 of 28 //15// POST OCCURRENCE AND SEIZURE WITNESSES 13. Apart from P.W.13, the evidence of the two eye witnesses is corroborated by the evidence of six other occurrence witnesses - P.W.2- Bichitra Kumar Jena, P.W.4-Niranjan Sahu, P.W.7-Sarbeswar Naik, P.W.9-Kartika Pradhan and P.W.16 -Bishnu Charan Jena, who rushed to the tea stall of the deceased on hearing hue and cry and saw the appellant coming out from the tea stall with the blood stained axe and running away towards the jungle. They saw the deceased lying in his shop with bleeding injuries. Their evidence has not been shaken in cross examination. P.W.2-Bichitra Kumar Jena has stated that the occurrence took place on 08.08.2001 at about 5.00 P.M. and he was in his shop and saw the accused was going to the sweet shop of the deceased. After providing tea to the customers inside the stall when he came out of the stall, he saw the accused coming out of the shop of the deceased with a blood stained axe (kuradhi) and running away from the shop. Immediately thereafter, the deceased –Lokanath with bleeding injury was taken to Konark hospital in a rickshaw. Subsequently, he ascertained that he died in the hospital. He has stated that one Bhaskar Malik (P.W.5), Radhashyam Khatua and Jalandhar Khatua were present in his shop and had seen the incident. In the cross-examination, he has stated that he JCRLA No.45 of 2005 Page 15 of 28 //16// cannot name the person who was present in the shop of the deceased and that other shops were there close to the shop of the deceased. He has further stated that a road intervenes in between his shop and that of the deceased and he has not seen the accused inflicting the blow. He has denied the suggestion that he has no such shop and he has not seen anything. P.W.4-Niranjan Sahu has stated that the occurrence took place one year back and he was present near a betel shop and Balianimuhan Chhak and hearing shout from the shop of the deceased, he rushed there and found that the accused armed with a blood stained axe (kuradhi) was coming out of the shop of the deceased. He went inside the shop and found that the deceased was lying on the ground with bleeding injuries on her chest, shoulder and back. He called an auto and took the deceased to Konark hospital where he was declared dead. On that day, the police seized an old Atlas Cycle in his presence at Baliani Chhak which the accused had left there. M.O.1 is the said cycle and Ext.1 is the seizure list and Ext.1/1 is his signature. He also stated that one Sarbeswar Naik also signed vide Ext.1/2. In the cross-examination, he has stated that he was examined by the police after two days and he was not a direct witness to the assault. The shop of the deceased situated at a distance of 100 feet from the Baliani Chhak and he did not recollect if the cycle was seized on JCRLA No.45 of 2005 Page 16 of 28 //17// the same day or on the next date. Many persons had assembled near the shop of the deceased. He has stated that he did not distinguish them and denied the suggestion that he was deposing falsely. P.W.7-Sarbeswar Naik has stated that the occurrence took place one and half years hack and he was sitting on a platform in front of the shop of the deceased. Hearing shout that the accused had inflicted cut blows to the deceased-Lokanath Jena, he rushed to the spot and found the accused running away being armed with an axe (kuradhi) which was stained with blood. He went inside the shop house of the deceased and found him lying with bleeding injury. He and others took him to Konark hospital in an auto where he was declared dead. The police had come and seized the cycle M.O.1 in his presence vide seizure list, Ext.1 and Ext.1/2 is his signature. In the cross-examination, he has stated that soon after the occurrence, the police reached the spot and he was examined on the following day. The cycle was also seized on the following day. As a co- villager, he knew the cycle-M.O.1 belonging to the accused. For 3 to 4 years the accused was in jail in another murder case and the deceased died on the way to hospital. The accused fled away towards the forest after the occurrence and he denied the suggestion that out of enmity, he was deposing falsely. JCRLA No.45 of 2005 Page 17 of 28 //18// P.W.9-Kartika Pradhan has stated that the occurrence took place one and half years back. He had a grocery shop at Balianiamuhin Chhak and the deceased had a sweet stall near his shop and a road intervenes between their shops. He was present in his shop when the eldest son of the deceased came to his shop for purchase of some grocery articles. At that time, he heard hulla in the shop of deceased for which he rushed there and found the accused fled away from the shop being armed with a blood stained axe. Thereafter, on entering into the shop of the deceased they found the deceased lying with profuse bleeding and while he was being taken to Konark hospital in an auto, he succumbed to the injuries on the way and the doctor declared him dead. Out of fear, he did not obstruct the accused. He was examined by the police. He was declared hostile by the prosecution as he did not state in Court that he had seen the accused inflicting 4 to 5 axe blows upon the deceased, as a result of which the deceased fell down on the ground. In the cross-examination by defence, he has denied that there was no such occurrence and he was deposing falsely and he was deposing falsely and that the axe was of normal size. P.W.16-Bishnu Charan Jena has stated that the occurrence took place about 2 years back at 4.30 P.M. while he was present in his tea stall. The accused came there. Hearing hue and cry, he came out of his tea JCRLA No.45 of 2005 Page 18 of 28 //19// stall and found the accused running away holding an axe from the tea stall of the deceased towards jungle. He went to the tea stall of the deceased and found the deceased lying with incised wounds on his person. Out of fear, he called Trilolochan who was present in the nearby grocery shop. Thereafter, the deceased was removed to hospital and half an hour thereafter, he heard that the deceased died. He was cross-examined by the prosecution but stated that he has not been examined by the police and he has not seen the accused entering the shop blowing the axe and running away towards the jungle and that he was suppressing the truth being gained over by the accused. In the cross-examination by the defence, he has stated that his tea stall is adjacent to the tea stall of deceased at a distance of 15 feet. The grocery shop was at a distance of 100 feet from the shop of the deceased and he has not been examined by the police. He denied the suggestion that he was deposing falsely at the instance of the informant. SEIZURE OF WEAPON OF OFFENCE and WEARING APPAREL. 14. P.W.8-Krushna Chandra Swain is the witness to recovery of the axe at the instance of the accused. He has stated that on 08.08.2001 at about 7.30 P.M. there was a huge gathering at Konark P.S. and he went there and found that the accused had been arrested by the police. After JCRLA No.45 of 2005 Page 19 of 28 //20// that the accused led the police, himself and other witnesses to the back side of Chhayadevi temple at Konark and gave recovery of an axe concealed under a cashew-nut tree saying to have used that axe for murdering the deceased. Police prepared the seizure list at the spot and he signed thereon. Ext.3 is the seizure list and Ext.3/1 is his signature. The seized axe was marked with blood. He has also stated that the accused led the police to the village tank and from under ditch gave recovery of a white cloth stained with blood saying that he had worn that cloth at the time of occurrence. Police seized that cloth and prepared the seizure list, Ext.4 where he had signed. Ext.4/1 is his signature. He has also stated that one Raju Mohapatra was present and he had also signed on Exts.3 and 4 in his presence. In cross-examination, he has stated that he did not find the seized articles in Court and the axe was of normal size and was fitted with wooden handle and Chhayadebi temple is at a distance of 200 yards from the police station. The second seizure was successively after the first seizure. He has further stated that the tank is situated at a close distance from Chhayadebi temple. He has denied a suggestion that there was no such leading to discovery by the accused and that nothing was seized in his presence. He has further stated that police had recorded the confessional statement of the accused regarding leading to discovery wherein he had signed. Ext.5 is the said statement and Ext.5/1 is his JCRLA No.45 of 2005 Page 20 of 28 //21// signature and that the witness-Raju Mohapatra signed thereon and he has denied the suggestion that there was no such confession and that he was deposing falsely. WITNESS TO INQUEST 15. P.W.14 –Budhanath Jena is the brother of the deceased. He has stated that getting information about the death of deceased, he went to the hospital and found him there. Police made inquest on the dead body. He was present alongwith one Raju Mohapatra at the time of inquest and Ext.10 is the inquest report which has already marked as inquest report. In the cross-examination, he has stated that there was mark of injury on the right arm, abdomen and back of the deceased and that while preparing the inquest report as the said report there was some mistake for which a second report was prepared and that he had signed the inquest report and he cannot say the colour of the lungi put on by the deceased. SCRIBE OF FIR 16. P.W.1 Bidyadhar Jena is the brother of the deceased and scribe of the FIR. He has stated that the occurrence took place on 08.08.2001. He was at home after returning from school and heard that the accused had inflicted cut blows on his brother who had been shifted to hospital. He went to the Konark hospital and found his brother dead with JCRLA No.45 of 2005 Page 21 of 28 //22// cut injuries on upper part of his right chest close to the shoulder joint, mid portion of the belly, on the forehead and on the back. Trilochan Jena (P.W.13) who was present in the hospital told him that the accused inflicted those blows. He scribed the FIR on his instructions, read over and explained the contents to him where he signed and he also signed the FIR as the scribe. He also stated that prior to the incident, the accused was involved in a murder case for having caused the murder of an employee of the fishery department. He denied the suggestion that he has not stated before the police that his nephew Trilochan told him that the accused had inflicted cut blows on the deceased. ANALYSIS AND DISCUSSION 17. We have examined the evidence of P.W.5 Anama Jena, a child witness. The learned trial Court has found him to be fully capable of understanding the questions properly and giving rational answers. He was aged about 13 years when his evidence was recorded. He has stated about the incident in brief. His evidence has been discussed in extensor earlier in this judgment. He has stated that he was a student of Class-VI at the time of occurrence and he has denied the suggestions that he has not stated to the police that he was in the betel shop or that they had a betel shop and that he was not present in the betel shop and he had not seen anything and JCRLA No.45 of 2005 Page 22 of 28 //23// was deposing falsely. No other questions had put to him. We find no compelling reason discard his evidence. 18. The contention of the learned counsel for the appellant that many witnesses have been suppressed by the prosecution is not of any consequence as it is the settled position of law that it is quality of the evidence and not the number of witnesses which is important. In the case of Bipin Kumar Mandal vs State of West Bengal : (2010) 12 SCC 91 , the Supreme Court upheld the conviction which was based on the testimony of a sole eye witness holding as follows : …“25. In Sunil Kumar Vs. State Govt. of NCT of Delhi, (2003) 11 SCC 367, this Court repelled a similar submission observing that as a general rule the Court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Evidence Act, 1872. But if there are doubts about the testimony the courts will insist on corroboration. In fact, it is not the number, the quantity, but the quality that is material. The time-honoured principle is that evidence has to be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise. JCRLA No.45 of 2005 Page 23 of 28 //24// 26. In Namdeo Vs. State of Maharashtra, (2007) 14 SCC 150, this Court re-iterated the similar view observing that it is the quality and not the quantity of evidence which is necessary for proving or disproving a fact. The legal system has laid emphasis on value, weight and quality of evidence rather than on quantity, multiplicity or plurality of witnesses. It is, therefore, open to a competent court to fully and completely rely on a solitary witness and record conviction. Conversely, it may acquit the accused in spite of testimony of several witnesses if it is not satisfied about the quality of evidence. 27. In Kunju @ Balachandran Vs. State of Taml Nadu, AIR 2008 SC 1381, a similar view has been re-iterated placing
Decision
28. Thus, in view of the above, the bald contention made by Shri Bagga that no conviction can be recorded in case of a solitary eye-witness has no force and is negatived accordingly.”…. In the present case there are two eye witnesses to the occurrence. P.W.5 is the son of the accused and P.W.15 is a co –villager who is a chance but natural witness who had come to the shop to have tea. Minor inconsistencies in the depositions of P.Ws.5 and 15 is not a ground JCRLA No.45 of 2005 Page 24 of 28 //25// to reject their evidence as it is natural as these witnesses are being examined after about two years of the occurrence and P.W.5 was aged about eleven years at the time of occurrence. P.W.16 resiled from part of his evidence stating that he had not seen the accused entering the shop waving the axe or that he was earlier examined by the police. P.W.9 has stated in Court that he has not seen the assault on the deceased, but he has stated that he has seen the accused leaving the shop with blood stained axe. But even if their evidence is kept out of consideration, the evidence of the other post occurrence witnesses corroborates their evidence in material particulars. P.W.2- Bichitra Kumar Jena who has a sweet stall near the tea shop of the deceased has not seen the actual assault on the deceased but his testimony strengthens the prosecution case as he has stated he saw the accused entering into the tea stall of the deceased and after sometime leaving the tea stall holding the blood stained axe. He has stated as follows: “The occurrence took place at 08.08.2001 at about 5.00 p.m. I was in my shop and saw the accused going to the shop of the deceased. After providing tea to the customers inside the stall when I came out of the stall I found the accused coming out of the shop of the deceased with a blood stained axe (kurdai) and running away from the shop.”….. JCRLA No.45 of 2005 Page 25 of 28 //26// So the contention of the learned counsel for the Appellant is untenable. 19. The contention of learned counsel for the appellant that the evidence of the alleged eye witnesses cannot be accepted in view of their unnatural conduct in not preventing the appellant from assaulting the deceased is not tenable as the occurrence took place suddenly, without giving chance to any of the witnesses to intervene or stop the appellant. The appellant arrived at the spot and after talking with the deceased, suddenly assaulted him with the axe. There was no occasion or time for the eye witnesses P.W.5 and P.W.15 to suspect that the appellant would assault the deceased as there was no prior enmity between them. Moreover, P.W.5 was aged abut eleven years at that time and P.W.15 has stated that he had tried to go to the spot, but the appellant brandished the axe to him for which he retreated to the side. 20. The contention that the prosecution case should be rejected as the ocular evidence is not supported by the medical evidence is also liable for rejection as P.W.5 has seen the appellant deal 7-8 blows with the axe on the deceased. P.W.15 has said that he has seen the appellant deal blows with the tangia on the deceased on the right arm, left arm-pit, belly and the back side spinal. As discussed earlier, the doctor has detected five external chop wounds and one abrasion on JCRLA No.45 of 2005 Page 26 of 28 //27// the deceased . The ocular and medical evidence corroborate each other to a great extent. The chop wounds were found by the doctor on the right arm, right side chest, left side chest and the abrasion on the abdomen. Although P.W 5 has not stated on which parts, the appellant dealt blows but that does not render his evidence suspect. Slight variation between the ocular and medical evidence is not a ground to disbelieve the eye witnesses. It is only where there is gross contradiction between medical evidence and oral evidence, and the medical evidence makes the eye witness testimony totally improbable, the ocular evidence is to be disbelieved and this is not the case here. Hence, this contention of learned counsel for the appellant is rejected. 21. The contention of learned counsel for the appellant that the appellant cannot be convicted for committing murder under Section 302 IPC as no evidence has been adduced to prove the motive, is not acceptable as motive loses its importance, when eye witnesses are available . 22. The contention that the appellant had no intention to cause the murder of the deceased as he had come looking for Basu but got annoyed when the deceased did not reveal his whereabouts and assaulted him in fit of anger , for which he can at best be convicted for an offence punishable under Section 304 Part - I IPC is also not JCRLA No.45 of 2005 Page 27 of 28 //28// acceptable as the appellant has acted in an unusual cruel manner by inflicting number of serious cut injuries on the deceased for which the benefit of the Exception 4 under Section 300 IPC cannot be extended to him. 23. In view of the above discussion, we are satisfied that the impugned judgment does not suffer from any error or infirmity and hence does not call for any interference. 24. The appeal is accordingly dismissed. 25. Trial court records be sent back immediately. S.Talapatra, J. I agree. ………………… (Savitri Ratho) Judge ……………….. (S.Talapatra) Judge Orissa High Court, Cuttack Dated 31st March 2023 /Bichi JCRLA No.45 of 2005 Page 28 of 28