Point of law: Offence of Murder – Conviction upheld – Testimony of sole witness wife of deceased duly corroborated by the objective determination of the spot and also gets corroboration from the evidence of P.W.6, the Doctor

JUDGMENT :

S.K.Mishra, J.

The appellants have assailed their conviction and order of sentence for the offence under Section 302/34 of the Indian Penal Code (hereinafter referred to as the “Penal Code” for brevity) by the learned Addl. Sessions Judge, Bhanjanagar in S.C. Case No.41/14 of 2001. The learned Addl. Sessions Judge has convicted them on 15.7.2002 and sentenced them to undergo imprisonment for life.

2. The gravamen of the charges against the appellants is that on 3/ 4.10.2000 in the night the deceased Brajasundar Sabar after taking his dinner went to sleep on a cot in front of his house on the Varandah. He had no foreboding that it was his last night. His wife and children were sleeping inside the room by keeping the doors open. At the dead of the night his wife heard an unusual sound and noticed that the appellants were assaulting her husband by means of an axe (Tabal). At that time his wife could not come outside out of fear. Sometimes thereafter the appellants causing the death of her husband fled away. After this incident the informant called some of the villagers to the spot and lodged an F.I.R. on the next day at 7.15 A.M. at Khariar P.S. Police registered P.S. Case No.112 dated 4.10.2000 for the offence under Section 302/34 of the Penal Code and took up investigation.

3. In course of investigation the Investigating Officer, P.W.14, examined the informant in this case, examined other witnesses, visited the spot, held inquest on the dead body of the deceased, dispatched the dead body for post mortem and arrested the accused. After completion of investigation, the I.O. submitted charge sheet against the accused for the offence under Section 302/34 of the Penal Code.

4. The defence took the plea of complete denial.

5. In order to prove its case, the prosecution has examined fourteen witnesses. P.W.1 is the informant and P.W.2 is the daughter of the deceased. P.W.9 is the scribe of the F.I.R. P.Ws.3,4 and 5 are the post occurrence witnesses. P.W.6 is the autopsy doctor. P.Ws.7,8 and 13 are the seizure witnesses. P.W.10 is one Kundugutu Sabar who had seen the appellant-Mohan Sabar with an axe prior to the occurrence, P.Ws.11 and 12, the police constables assisted P.W.14 the Investigating Officer of the case.

The prosecution has also relied upon twenty three documents as exhibits and nine material objects. The defence, on the other hand, neither examined any witness nor relied on any documents to prove its case.

6. Mr. Trilochan Nanda, learned Amicus, submits that the learned Addl. District and Sessions Judge, Nuapada has recorded the order of conviction relying upon the sole testimony of P.W.1, the wife of the deceased. He would further submit that there is grave doubt as regards the identification of the accused persons by P.W.1. Admittedly, there was no electricity in the house of the deceased and it was a dark night. P.W.1 has clearly testified in her evidence that it was a dark night. Learned Amicus for the appellants submits that non-mention of the names of the accused persons in the inquest report casts a serious doubt on the prosecution case. Terming the testimony of P.W.1 being highly unreliable and untrustworthy and the evidence of P.W.2 being highly inconsistent and contrary to the evidence of P.W.1, the learned Amicus would submit that the evidences are discrepant with regard to the exact place of occurrence inasmuch as as per the evidence of P.Ws.1 and 2 that the deceased was sleeping in the Parchi it is not known how the dead body could be detected on the open verandah. It is submitted that the prosecution has not established the exact place of occurrence by cogent and reliable evidence. Learned Amicus would submit that P.W.1 never stated that axe was the weapon of offence. Learned Amicus would submit that the findings of the learned trial court are wholly unreasonable and not plausible both on facts and in law. He would further submit that the order of conviction is highly illegal and improper.

7. Learned Amicus