The conviction for murder under Section 304(Part-II) is upheld based on credible eyewitness testimony, while the sentence is modified considering the appellant's age and time served.

JUDGMENT :
S.S. Mishra, J.

The present appeal is directed against the judgment and order dated 04.04.2002 passed by the learned Additional Sessions Judge, Rourkela in Sessions Trial No.25/157/1998, whereby the appellant, who was tried along with co-accused Kalia @ Saroj Praharaj, has been found guilty of offence under Section 304 (Part-II) of the IPC. The co-accused Kalia @ Saroj has been acquitted of all the charges. In lieu of the conviction of the appellant, the trial court has awarded ten years rigorous imprisonment.

2. Heard Mr. Byomakesh Sahoo, learned counsel for the appellant and Mr. P.K. Sahoo, learned counsel for the State.

3. From the record, it reveals that the appellant was arrested in the present case on 28.02.1998. He was admitted to bail by this Court vide order dated 17.09.2002. Therefore, the appellant has undergone more than four years in custody.

4. The allegation of the prosecution in the present case is that on 02.02.1999 at about 3.30 P.M. Ganju Bindhani (deceased) was present near Saraswati Puja Pendal at Balijodi. It is alleged that the present appellant along with co-accused Kalia wrongfully restrained Ganju, abused him and thereafter killed him by stabbing on his belly. On the basis of the aforementioned report, Raghunathpalli P.S. Case No.18 (1) of 1998 corresponding to G.R. Case No.156 of 1998 came to be registered. After investigation, charge sheet was filed against both the accused persons for the offence punishable under Sections 34 1/294/302/34 IPC. Accordingly, the charges were also framed for the aforesaid offences and the appellant along with the co-accused were put to trial.

5. The prosecution examined as many as thirteen witnesses to substantiate its case, whereas the appellant and the co-accused took stand of denial and claimed trial.

6. It appears from the record that the prosecution through their thirteen witnesses have broadly tried to bring on record direct evidence through P.W.4 and P.W.7 as eye witnesses, dying declaration of the deceased through the evidence of P.W.9 and the evidence of the doctor.

7. After analysing the evidence of the prosecution, the trial court recorded an acquittal in favour of the co-accused, as there was no cogent evidence against him. However, in paragraph-8 of the judgment, the trial court recorded the following findings in regard to the guilt of the appellant:-

“8. So far as the case of other co-accused Bulu Swain is concerned, there is direct evidence available against him. P.W.4 has deposed that Bulu Swain came and stabbed a knife on the belly of deceased and deceased fell down with bleeding injury and was shifted to hospital. Similarly, P.W.7 has also deposed that accused Bulu Swain assaulted on the belly of deceased by means of a Razer (KHURA) and deceased fell down and was removed to medical for his treatment. This evidence of P.Ws. 4 and 7 has not been shattered in the cross examination. Nothing has been put forth before the court to show, as to why these witnesses should be disbelieved. The learned counsel for this accused submitted that the witnesses being "Bindhanis‟, might have supported the case of the prosecution, as the deceased was "Bindhani‟. Such submission is too remote to be believed and hence discarded. The learned counsel further submitted that it is clear from the evidence of P.W.4 that about 20 to 30 persons were present near the puja pendal and there is no explanation from the side of prosecution as to why those witnesses (people) were no examined in this case. In this connection, it may be stated that some more witnesses have been examined in this case, but some of them have not been turned hostile (Namely pws, 2,3,6,8 and 10). In the above situation, it cannot be held that it was incumbent on the prosecution to examine all the 20 to 30 persons and to make them witnesses who were present at the spot. Out of the witnesses examined, two witnesses have supported the alleged incident of the case. It is to be seen, whether their evid