Circumstantial evidence, including medical evidence, motive, eyewitness testimony, and recovery of incriminating materials, can be sufficient to establish guilt in a murder case.

JUDGMENT :

M. Papanna, J. - Jail Criminal Appeal No. 351 of 1993 is against the judgment of Shri R.N. Biswal, Sessions Judge, Phulbani in S.C. No. 4 of 1993 and Jail Criminal Appeal No. 161/95 is against judgment of Shri M.R. Behera, Sessions Judge, Phulbani in S.T. No. 4/93(A). In the former case, learned Sessions Judge convicted the accused, Gopia Digal under Sections 302/201/34 Indian Penal Code He sentenced him to under Sections 302/201/34, Indian Penal Code. He sentenced him to undergo R.I. for life and R.I. for three years, respectively, with direction to run the sentences concurrently. In the latter case, learned Sessions Judge convicted the accused, Senapati Digal, undergo R.I. for life and to pay fine of Rs. 2000/- and in default of payment of fine to undergo further R.I. for 40 days. However, no separate penalty is imposed on him u/s 201 Indian Penal Code

2. On consent of learned Counsel for the Appellants and the learned Additional Government Advocate for the State, these two appeals were heard analogously and are being disposed of by this common judgment.

3. Accusation against the accused (hereinafter referred to as "appellants") is that they were habitual offenders in respect of property offences. That is why, Mehendra Digal, Grama Rakhi of village Bahadapada (hereinafter referred to as "the deceased") was keeping watch on them. On 10.8.1992 at about 4 P.M. the deceased was following them at village Tulirupada. The Appellants having noticed this fact, became annoyed. They assaulted the deceased in front of house of Biswa Kanhar at village Lumbrakhole. As a result, the deceased became unconscious. Then the Appellants carried him on a bhara towards Kakasuga Hill. There, they assaulted him again by means of a Gadi. As a result, he succumbed to the injuries. Thereafter, the Appellants burried his dead body in the padar (dry) land of Kaibalya Digal. Basing on the report of his nephew Bisiketan Digal (P.W. 5) a Station Diary Entry was made in Tikabali P.S. During enquiry, O.I.C., Tikabali P.S. could ascertain that the deceased was murdered by the Appellants. Basing on a plain paper F.I.R. drawn by him, he investigated into the case. In presence of Executive Magistrate (P.W. 4) the dead body was exhumed from the dry land of Kaibalya Digal. Inquest over the dead body was held. It was sent for autopsy. The accused persons (appellants) were arrested by the police. While in custody, on the information of Gopia Digal the weapons of offence (badi) and Phauda were recovered from Turmeric field of Biswa Kanhar. On completion of investigation, the Appellants were charge sheeted under Sections 302/201/34 Indian Penal Code

4. The accused pleaded innocence. Total denial of the allegation of the prosecution is the defence plea. Appellant Gopia Digal further set up the defence theory of enemity between him and Bisiketan Digal (P.W. 5).

5. Evidence of fifteen witnesses has been pressed into service to prove the charges against the Appellants in S.C. No. 4 of 1993. But in the midst of trial after examination of P.W. 5, Appellant Senapati Digal absconded. After he was apprehended trial of the case against him resumed in S.T. No. 4 of 1993(A). So the witnesses who have been examined in S.C. No. 4 of 1993 have also been examined on S.T. No. 4 of 1993(A) though not chronologically.

6. Defence on behalf of the Appellant Gopia Digal has examined one witness to prove the enimical relation with P.W. 5. However, no defence witness has been examined on behalf of Appellant Senapati Digal.

7. On consideration of evidence of witnesses on record, the learned trial Judges in both the cases convicted the Appellants and sentenced them as stated above.

8. Contention of the learned Counsel for the Appellants is that prosecution has not examined any eye witnesses to the occurrence of murder of the deceased alleged to have been caused by the Appellants. As such the learned trial Judge has committed illegality in convicting the Appellant of a serious charge of murde