B.N. Misra, J.
1. Appellant has been convicted under Section 302, I.P.C. and sentenced to rigorous imprisonment for life by judgment dated 23-11-1977 passed by the learned Additional Sessions Judge, Dhenkanal in S. T. No, 22/27-D of 1976,
2. The facts may be briefly stated. Appellant Suresh Samal is the elder brother of the deceased Kuanri Dei's husband Aparti Samal. They belong to village Thokar. The occurrence took place on 16-8-1975. Previous to the occurrence, the appellant and the deceased had at times quarrelled with each other and on one occasion the appellant had assaulted the deceased. On the day of occurrence. Mt about 6 p. m. the appellant brought a cart-load of fuel from a mango tree and handed over the same to his brother-in-law. On seeing this the deceased protested saying that the appellant was misappropriating fuel without giving her the share which was due to her. The deceased abused the appellant in filthy language. As a result the appellant chased the deceased with an axe and gave her several axe-blows near the Bhagabat Ghar. The deceased fell down at the spot with severe bleeding injuries and died. The deceased's husband was not present in the village at the time of occurrence. P.W. 1, a co-villager, who returned to the village at about 6 p. m. learnt about the occurrence from P.W. 13 and on going back home he found the deceased lying dead near his Sadar door with multiple bleeding injuries. P.W. 1 went to the Police Station along with his uncle P.W. 8 and lodged F.I.R. Ext. 1 with P.W. 15, the officer-in-charge. P.W. 15 registered the present case under S, 302, I.P.C. and took up investigation. After completion of investigation charge-sheet was submitted against the appellant, The appellant was charged under Section 302, I.P.C and put on trial.
3. The defence plea is one of denial. The defence case is that on 16-8-1975 the appellant returned home from his paddy fields in the evening and in the village he learnt from D.Ws. 1 and 2 and Ors. that someone had killed his brother's wile and that the dead body was lying in front of P.W. l's house. The appellant went straight to the Police Station and on the way told P.W, 13 that someone had killed his brother's wife. At the Police Station the appellant informed the Officer-in-charge that he was suspecting the son of P.W. 1 as the perpetrator of the crime. At that time P.Ws. 1 and 9 arrived at the Police Station, and gave-some bribe to the Officer-in-charge. The latter wrote out the information given; to him by P.Ws. 1 and 8, and committed the appellant to custody, The appellant has denied that he had produced any; blood-stained Tangia at the Police Station.
4. At the trial 16 witnesses were; examined on behalf of the prosecution. and 5 on behalf of the defence. The learned Additional Sessions Judge who tried& the case found the appellant guilty under S, 302, I.P.C, convicted and sentenced? him as noted above.
5. P.W. 16 is the doctor who had conducted post-mortem examination on the dead body of deceased Kuanri Dei on. 18-8-1975 on police requisition, Ext. 13 is the post-mortem report. P.W. 16 had found the following injuries:
(1) One incised wound 21/2'x1/2'x1/4' running transversely below the occipital protuberance and at the mid-line of the back. There is complete detachment of the vertebral column with spinal cord, that is the whole spinal cord with vertebra at the site found cut in two pieces.
(2) One incised wound 1 1/2'x1/2'x1/2' running longitudinally 2' below the left upper scapular line close to the mid-line,
(3) One incised wound 21/2|'x1/2'x1/2' running longitudinally over the left arm at deltoid region that is 2' below the tip at the shoulder joint.
(4) One incised wound over the left scapula (2 1/2'x1/2'x1/2') area 7 1/2' below the occipital protuberance and 3' laterally to the mid-line.
(5) One lacerated wound 1/2'x1/4'x1/3' at the middle of the left arm and on dessec-tion there is complete fracture of the humerus,
(6) One lacerated wound 1/4'x1/8' over the-front of the left knee joint.
(7) One lacerated wound 1/4'x1/4' over the front of the right knee joint.
According to Ext. 13 and the evidence of P.W. 16 the first four injuries were incised and the last three were lacerated wounds. Death was due to haemorrhage and shock caused by the aforesaid injuries which were ante-mortern in nature, P.W. 16 stated in Court that the injuries on the deceased could be caused with the axe M.O. I and Ext. 10/1 is his opinion on police requisition that the injuries on the deceased could have been caused by M.O. I. In cross-examination P.W. 16 has stated that the lacerated injuries on the deceased might not have been caused by any weapon, they could have been caused by fall. Injury No. 1 was positively caused by a heavy stroke. The medical evidence clearly establishes that the death of the deceased was homicidal in nature and that the injuries were sufficient in the ordinary course of nature to cause death.
6. P.W. I is a co-villager. He has stated that he came back to the village on the day of occurrence at about 6 p. m. On the way he heard from P.W. 13 that the appellant had killed the deceased. On returning home he found the deceased lying dead near his Sadar door with bleeding injuries. His wife (P.W. 31 also told him that the appellant had killed the deceased. P.W. 1 went to the Police Station along with his uncle P.W. 8 and lodged F.I.R. Ext. l with P.W. 15 at 7 p. m. P.W. 15 had read over the contents of the F.I.R. to P.W. 1 who thereafter signed the same. P.W. 1 has further stated that while he and P.W. 8 were present at the Police Station, the appellant arrived there along with the blood-stained axe M.O. I. P.W. 15 seized the said axe as per seizure list Ext. 2 which was signed by P.Ws. 1 and 8. The Dhoti M.O. II worn by the appellant at that time was also bloodstained and it was seized by P.W. 15 as per seizure list Ext. 3 which was signed by P.Ws. 1 and 8. P.W. 1 has further stated that prior to the occurrence the appellant and the deceased had occasional quarrels. He has stated in the F.I.R. Ext. 1 that his wife P.W. 3 and Ors. had seen the occurrence. P.W. 8 fully corroborates the evidence of P.W. 1. He had accompanied P.W. 1 to the Police Station and was present at the time when the F.I.R. was recorded, He was also present when the appellant arrived at the Police Station and the Tangia M.O. I and the Dhoti M.O. II were seized from the appellant.
7. P.Ws. 3, 5 and 6 are the eye-witnesses. P.W. 3 is the wife of P.W. 1. She has stated that her house is about 40 cubits away from the house of the deceased. On the day of occurrence about one Ghadi before sunset she had come out of her house to pick up her clothes which had been left on the fence for drying. She heard the deceased questioning the appellant as to why he was appropriating the entire fuel from the mango tree without giving her share to her. The appel- lant replied that the deceased had previously brought fuel with the help o2 labourers and therefore he was not going to give her any more fuel. The deceased-then filthily abused the appellant using words like 'Pokara Sakuni-khia, Bada-rogia'. The appellant threatened the deceased who retorted that she might have been assaulted once before, but that waa not going to happen again. Then the appellant who was holding an axe chased the deceased and gave axe-blows on her back side. The deceased cried out 'Marigali Lo', fell down in front of P.W. l's house and died. Out of fear P.W. 3 went inside the house and closed the door. She had stated that she had seen one blow being given and that at the time of occurrence there were four children playing cards in the Bhagabai Ghar close to the place of occurrence. She has further stated that previous to-the occurrence the appellant and the deceased were not pulling on well and that about five years ago the appellant had; quarrelled with the deceased and given her a slap when the deceased had abused him. In cross-examination P.W. 3 ha stated that the deceased was abusing the appellant while she was on the verandah of the Bhagabat Ghar and the appellant was near her about 10 cubits away. The place where the deceased fell down dead was about 15 cubits from the Bhagabat Ghar. She has explained that she did not raise any hullah out of fear. She was to cubits away from the place of occurrence. She has further stated that she was not examined by the police on the night of occurrence. To a question put to her in cross-examination she stated that it is not a fact that the had not stated before the police that the appellant had chased the deceased with a TangiA.P.W. 15 has stated that P.W. 3 had stated before him that, the appellant came running and rushed-; at the deceased with a Tangia while the: deceased was trying to escape. P.W. 15 j has denied that P.W. 3 had not stated; before him that the appellant had chased, the deceased with a Tangia. In her Section 161 Cr.P.C. statement P.W. 3 had stated that the appellant had rushed at the deceased and dealt axe-blows on her. 'Rushed at and 'chased' practically mean the-same thing. Thus, actually there is no contradiction in the statement of P.W. 3 that the appellant had chased the deceased and given axe-blows to her. In Court she stated that she had seen one blow being given although before P.W. 15 she had stated that the appellant had give stroke after stroke on the neck of the deceased. It is urged on behalf of the appellant that no reliance should be placed on the statement of P.W. 3 in view of the aforesaid contradiction. This contention cannot be accepted as the evidence of P.W. 3 is otherwise wholly consistent as regards the quarrel between the appellant and the deceased immediately preceding the assault, the fifthy words of abuse uttered by the deceased and the assault by the appellant on the deceased. The 164 Cr.P.C. statement of P.W. 3 fully corroborates her evidence in Court. Discrepancies of the kind as referred to above are bound to occur in the testimonies of witnesses particularly when they are called upon to depose in Court a long time after the occurrence. It is further pointed out on behalf of the appellant that P.W. 3's evidence should not be accepted as that of an eye-witness as according to her own statement she was not examined by P.W. 15 on the night of occurrence and that in the forwarding report submitted by P.W. 15 to the Court the statement of P.W. 1 recorded under Section 161, Cr.P.C. had not been sent as required under Section 167, Cr.P.C. In support of this contention reliance is placed on a decision reported in AIR 1957 Andh Pra 561 : (1957 Cri LJ 1062)(In re Jaya-rami Reddi). In that case it was inter alia held that from the omission to send the copies of the case diary with the remand report to the Court it might reasonably be informed that the entries in the case diary had not come into existence by that time. In the facts and circumstances of that case their Lordships observed that it might be reasonable to inform that the entries in the case diary had not come into existence by the time the forwarding report was submitted to the Court. The facts and circumstances of this case do not justify such an inference nor would it be reasonable to draw such an inference. P.W. 3 has no doubt stated that she was not examined on the night of occurrence. The occurrence took place on 16-8-1975 and P.W. 3 gave her evidence in Court on 10-5-1977. In view of the long lapse of time it is just possible that out of confusion P.W. 3 who is a rustic village woman has stated that she was not examined on the night of occurrence. Along with his forwarding report dated 17-8-1975 which is on record, P.W. 15 had enclosed the seizure list, but he does not appear to have sent the 161 Cr.P.C. statements of witnesses already examined by Jism. In the forwarding report P.W. 15 has stated that there are eye-witnesses to the occurrence, but it would have been proper for him to have enclosed the statements of the eye-witnesses to t Court. It was his duty to do so. However, a close and careful scrutiny of the case diary shows that it has been properly maintained. There is nothing therein the indicate that there was any subsequent interpolation. P.W. 15 has clearly stated that he had examined P.W. 3 on the night of occurrence in the village. Therefore, in the present case, the materials available do not justify an inference that P.W. 3 is not an eye-witness to the occurrence. P.W. 3 has described the occurrence in a natural and consistent manner and there is no reason why her evidence should not be believed. P.W. 3 has denied the suggestion that the appellant was not pulling on well with her and P.W. 1.
8. The other two eye-witnesses, P.Ws. 5 and 6, are child-witnesses, aged 14 and 12 years respectively. The learned trial Judge had put questions to both these witnesses and was satisfied about their capacity and competence to depose. These two witnesses have stated that at about 4 p. m. on the day of occurrence they were playing cards in the Bhagabat Ghar along with two others. At the time the appellant brought fuel on a bicycle. The deceased abused the appellant using Filthy words likePokara, Badarogia' etc. The appellant's brother-in-law hesitated to take the fuel brought by the former. The deceased again abused the appellant whereupon the appellant dealt cutting blows with an axe on the deceased who fell down about 10 to 12 cubits away from the Bhagabat Ghar. P.Ws. 5 and 6 and their two friends ran away from the spot out of fear. In cross-examination P.W. 5 has stated that he has seen one stroke with the axe given by the appellant. He did not see the deceased's head being separated from the body. P.Ws. 5 and 6 were confronted with their previous statements before P.W. 15 that the appellant dragged the deceased holding her saree and then gave the blows. In Court these two witnesses have not stated that the appellant had caught hold of the Saree of the deceased. This omission is insignificant and a minor one and must be ignored. P.Ws. 5 and 6 have withstood their cross-examination quite well. Their evidence is consistent and convincing. It may be recalled that P.W. 3 stated in her evidence that during the occurrence P.Ws, 5 and 5 and two others were present in the Bhagabat Ghar where they were playing cards. P.Ws. 3, 5 and 6 corroborate each other and their evidence is consistent.
9. P.W. 2 is a co-villager. He has stated that on the day of occurrence before sunset he way sitting in the shop of P.W. 11 along with P.W. 4 and Anr.. ' The shop is about 70 yards away from the house of the ceased. He heard the deceased's abusive words ''Pokcira, Badarogia' etc. Thereafter the appellant came near the place, where P.W. 2 was sitting, holding an axe which was stained in red colour and stated before P.Ws. 2 and 4 that he had finished Kuanri Dei (deceased) and was going to the Police Station. P.W. 4 has stated that on the day of occurrence at about 5 p. m. he was sitting on the verandah of P.W. ll's shop which is 83 cubits away from the house of the deceased. P.Ws. 2 and 11 were present at the shop. P.W. 4 had seen the appellant bringing fuel on his cycle und he had heard the voice of the deceased when she was abusing the appellant. Some time after, the appellant came to he shop with a Tangia which had blood marks on it and stated that he had killed the deceased and was going to the Police 'Station, While returning home P.W. 4 saw the dead body of the deceased lying in the spot with bleeding injuries. P.W. 11 stated in Court that at about 4 P. m. on the day of occurrence he was present in his shop along with P. Ws. 2 and 4. He was declared hostile as he failed to say anything further. However, there is no reason to doubt the veracity of the statements made by P. Ws. 2 and 4. These two witnesses were cross-examined at length and nothing has been elicited from them to shake their credibility. They have firmly denied the defence suggestion that they were deposing falsely against the appellant on account of previous enmity. P. W. 12 is a co-villager who has stated that on the day of occurrence he was returning to the village before sunset when he met the appellant coming from the opposite side and the appellant stated that he had finished his brother's wife. The appellant was holding a Tangia which bore some red marks. In cross-examination P. W. 12 has stated that the appellant had voluntarily confessed before, him. P. W. 12 has also denied that he was deposing falsely in Court on account of enmity with the appellant. P. W. 13 has stated that at about 4 p. m. he returned home and at that time he found the appellant walking very fast, The appellant asked P.W. 13., for water and then stated that his brother's wife had been finished. P.W. 13 was declared hostile as in his statements recorded under Sections 161 and 164, Cr.P.C. he had stated that the appellant had confessed to have killed hi6 brother's wife. P.W. 13 appears to have veered away from the truth at the trial However, the evidence of P.Ws. 2, 4 and 12 clearly establishes that soon after the occurrence the appellant had confessed before them that he had killed the deceased.
10. P.W. 7 is a co-villager. On the day of occurrence late in the afternoon he heard the cries 'Marigali, Marigali'. He went to the spot and saw the deceased lying in a pool of blood in front of the house of P.W. 1. He also saw the appellant rapidly going away from the spot with an axe on his shoulder. The axe appeared to P.W. 7 to be blood-stained.
11. P.W. 15 has stated that the appellant came to the Police Station at about 7-30 p. m. with a blood-stained axe M.O. I. The appellant's wearing cloth M.O. II was also stained with blood. M.Os. I and II were seized by P.W. 15 in presence of P.Ws. l and 8 and they were sent for chemical examination. P.Ws. 1' and 8 fully corroborate P.W. 15 in this regard. It is significant to note that as per Exts. 8/1 and 8/2, the reports of the Chemical Examiner and the Serologist, M.Os. I and II were found to be stained with human blood. In him statement recorded in Court under Section 313, Cr.P.C. the appellant failed to give any explanation though he was specifically told that M.Os. I and II were seized from him and that they had been found to be stained with human blood. The appellant merely denied that he had held M.O. I or that M.Os. I and II were seized from him. P.Ws. 1, 8 and 15 have clearly stated that M.O. I is the axe and M.O. II is the wearing cloth of the appellant which were seized at the Police Station from the appellant in their presence. The presence of human blood on M.Os. I and II must be held to be a circumstance against the appellant.
12. D.Ws. 1 to 5 have been examined on behalf of the defence. D.W. 1 has stated that on the day of occurrence in the afternoon he was sitting in the shop of P.W, 11. He saw the appellant and D.Ws. 3, 4 and 5 coming together. Before arrival of the appellant and D.Ws. 3, 4 and 5, D.W. 1 heard the female folk shouting in the village that someone had killed the deceased. He went to the spot where he found the deceased lying dead and while he was returning he met the appellant and D.Ws. 3, 4 and 5 and informed them that his brother's wife had been killed by someone. D.W. 2 has similarly stated that he saw D.W. 1 and Anr. sitting at the shop at the time of occurrence. At that time he heard a hullah coming from the northern side. They went to the spot and found the deceased lying there. While returning D.W. 2 met the appellant and D.Ws. 3, 4 and 5 and D.Ws. 1 and 2 informed the appellant that someone had killed the deceased. D.Ws. 3 and 5 have stated that they returned to the village along with the appellant around 5 p. m. on the day of occurrence and they were informed by D.Ws. 1 and 2 that someone had killed the deceased. D.W. 4 has also stated that he had returned to the village along with the appellant and D.Ws. 3 and 5. However, D.W. 4 does not say that D.Ws. 1 and 2 had informed them that someone bad killed the deceased. In his 313 Cr.P.C. statement the appellant has stated that he returned to the village along with D.Ws. 3, 4 and 5 and on the way he heard that someone had killed the deceased. D.Ws. 1' and 2 have stated that they heard a hullah in the village that someone had killed the deceased and both of them had gone to the spot. It is indeed surprising that even after going to the spot they did not seek any information as to who had killed the deceased. This conduct of D.Ws. 1 and 2 is most unnatural. As al-fleady noticed, D.W. 4 does not support D.Ws. 3 and 5 as regards D.Ws. 1 and 2 Informing the appellant that someone had killed the deceased. The appellant and D.Ws. 3, 4 and 5 surprisingly did not make any attempts to find out who the assailant was either from D.Ws. 1 and 2 Or from any one else. D.W. 3 has stated lhat on the day of occurrence the appellant was working in the paddy fields along with some labourers from morning till his return along with D.Ws. 3, 4 and 5 late in the afternoon. In his 313 Cr.P.C. statement the appellant has not stated that he had come back from the paddy fields along with D.Ws. 3, 4 and 5 or that he had been working in the paddy fields since morning along with his labourers. None of the labourers has been examined by the defence. D. W. 3 mentioned about the labourers but failed to name them. It is also significant that no suggestion had been made to any of the prosecution witnesses Including the eye-witnesses that the appellant was not present at the spot at the time lot occurrence. The evidence of the deference witnesses does not inspire any confidence. The defence plea which appears to be false and concocted must be rejected.
13. The consistent evidence of the eyewitnesses P.Ws. 3, 5 and 6 clearly establishes that the appellant had dealt axe-blows on the deceased thereby causing her death. P.W. 7's evidence that he had heard cries of 'Marigali, Marigali' and on going to the spot he had seen the accused going away swiftly with an axe fully corroborates the evidence of the eye-witnesses. The extra-judicial confession of the appellant has been duly proved by P.Ws. ''2, 4 and 12. M.Os. I and II seized from the appellant have been found to be stained with human blood Further corroboration comes from the medical evidence. In the opinion of the doctor, the injuries on the deceased could have been caused by M.O. I. Thus it must be held that the prosecution has fully brought home the charge under Section 302, I.P.C. against the appellant.
14. In the result this appeal is dismissed. The convietion and sentence of the appellant are confirmed.
P.K. Mohanti, J.
15. I agree.