JUDGMENT :

Dr.D.P.Choudhury, J.

This Jail Criminal Appeal is filed by the appellant from Jail assailing the judgment of conviction and sentence passed under Section 302 of the Indian Penal Code (hereinafter called as “I.P.C.”) by the learned Sessions Judge, Dhenkanal-Angul in S.T. Case No.73 of 2002 sentencing him to undergo imprisonment for life for the offence under Section 302 of the Indian Penal Code (hereinafter called as “I.P.C.”) and to pay a fine of Rs.5,000/-in default to undergo R.I. for one year for the said offence.

2. The unfolded story of the case of the prosecution is that the deceased Syama Soren and Surya Soren were residents of Village-Sundhikateni. The villagers were suspecting the deceased persons as witchcrafts. So, on 19.06.2001 at about 1.00 pm, Kusunu Hesa (P.W.3) informed the Gramarakhi of the Village Suresh Mallick (P.W.1, informant) that the present appellant has caused murder of deceased Syama Soren and Surya Soren by assaulting them by means of an axe. Then the informant went to the spot and found the deceased persons lying with pull of blood. Therefore, he came to know that the present appellant suspected the deceased persons to have exercised witchcraft on his person and for that he has killed them. Then, the informant informed the police.

3. During investigation, police visited the spot, made inquest over the dead body of the deceased persons and sent the same for post-mortem examination, examined the witnesses, seized the weapon of offence and wearing apparels of the deceased and after completion of the investigation, submitted charge sheet.

4. The plea of the appellant, as revealed from his statement recorded under Section 313 Cr.P.C. and the cross-examination led to the P.Ws, that he has been falsely implicated in this case and he pleads innocence.

5. The prosecution, in order to bring the charge against the appellant, has examined as many as 13 witnesses and defence examined none. Relying upon the evidence of the prosecution witnesses and the documents exhibited, learned Sessions Judge found the appellant convicted under Section 302 of IPC and sentenced him to undergo imprisonment for life and to pay a fine of Rs.5,000/-in default to undergo R.I. for another one year.

6. Mr.Pani, learned counsel for the accused-appellant submitted that most of the witnesses being villagers are hostile to the prosecution.

P.W.12 although arrayed as an eye witness by the prosecution, he is related to the deceased persons for which his evidence cannot be solely reliable. Leading to discovery of weapon of offence has not been proved by the prosecution. Moreover, as the blood stained with seized wearing apparels of the appellant have no proof of blood group of blood stain found on wearing apparels of the deceased, the question of conviction has no foundation. Hence, it is submitted by the learned counsel for the appellant to acquit the appellant.

7. Learned State Counsel submitted that the evidence of the eye witness cannot be discarded even if he is related to the deceased persons because the evidence of P.W.12 is very clear, cogent and consistent and could not be well shaken by the defence. The witness who has been hostile to the prosecution also has got evidentiary value to the extent of evidence supporting the case of the prosecution. He further submitted that the prosecution has well proved the leading to discovery of weapon of offence at the instance of the present appellant and the same is great circumstance against the present appellant. On the whole, there being well evidence made out, the conviction of the appellant and the sentence passed thereunder should be upheld.

8. DISCUSSONS

It is well settled in law that the conviction can be maintained basing on the sole evidence of the eye witness if his/her evidence is clear, cogent, consistent and above the reproach. The evidence should be counted but not be weighed. It is reported in Rizan and another Vs. State of Chatisgarh ; AIR 2003 SC 976 Where Their Lordships at