G.B. Patnaik, J.
1. Appellant Dhania Naik has preferred this appeal from Dhenkanal Jail challenging his conviction and sentence passed by the Sessions Judge, Dhenkanal, in Sessions Trial No. 33-D of 1978. The learned Sessions Judge has found him guilty under Section 302, Penal Code, and has sentenced him to undergo rigorous imprisonment for life,
2. The prosecution case in brief is that Gura, Bonda and Sukra were three brothers and were living separately from each other, Accused is the son of Gura and deceased Cheru was the son of Bonda, Balia (P. W, 1) is the son of Sukra. Gura died leaving his wife Dangei. Wife of Bonda also died. Thereafter Bonda went and stayed with Dangei treating her as his wife and enjoyed the usufructs of the lands which had fallen to Gura's share as well as his own share leaving his own son Cheru uncared for. After the daath of Bonda. accused alao continued to enjoy the usufructs of the lands which, had fallen to Gura's share as well as Bonda's share. On 27-9-1978, at 7 P. M., the deceased requested P. W. 1 and P. W. 2 to accompany him to the house of the accused, where he would ask for his share of paddy from the accused. P. Ws. 1 and 2 acceded to the request of the deceased and accompanied him to the house of the accused. P. Ws. 1 and 2 remained outside whereas the deceased went inside the house of the accused and asked for his share of paddy which was flatly refused by the accused. A quarrel ensued between them whereafter P. Ws. 1 and 2 left the place being followed by the deceased. While proceeding on the village path, P.Ws. 1 and 2 heard the voice of the deceased to the effect 'KAKA HO, DHANIA HANI-DELA'. P. Ws. 1 and 2 looked back and found deceased Cheru lying with cut injury on his neck and accused Dhania standing near him with a 'Farsa'. On seeing P. Ws. 1 and 2, the accused ran away with the 'Farsa'. P. Ws. 1 and 2 informed the Grama Rakshi and came to the police station on the next day early morning. On the oral report of P. W. 1, the concerned police officer recorded the F.I.R. which was read over and explained to P. W. 1 and P. W. l affixed his thumb impression on the same. The Investigating Officer then proceeded to the spot and held inquest over the dead body and sent the dead body for postmortem examination. The doctor conducting post-mortem (P. W. 6) opined that the injury on the neck was sufficient in the ordinary course of nature to cause death. The accused was arrested on 29-9-1978 and while in police custody, he stated that he would give discovery of the 'Tangf' (weapon of offence) and led the police to his house and gave dis-covery of the 'Tangi' (M. O. I) which was seized under the seizure list (Ext. 5). P, w. 3 is a witness to the seizure. The said M. O. I was sent for serological test and on examination though blood was found on it, the Serologist could not opine whether the blood was human blood or not. After completion of investigation, charge-sheet was submitted against the accused under Section 302, Penal Code.
3. The defence plea was one of denial. The accused in his statement under Section 313, Criminal P. C. also took a further plea that the deceased had illicit connection with the wife of P. W. 1 and that P. W. 1 was giving out that he would kill the deceased.
4. The learned Sessions Judge did not accept the plea of the accused regarding deceased having illicit connec tion with the wife of P. W. 1 since nc cross-examination was made on this point and there was no suggestion giver to any of the witnesses in this regard The learned Sessions Judge from the materials on record found a strong motive, inasmuch as Gheru was being deprived of his legitimate share from the property which was being forcibly enjoyed by the accused and accused did not want to part with the same. Ho further found from the evidence of P. Ws. 1 and 2 that they heard the cry of the deceased 'KAKA HO. DHANIA HANI DELA' and immediately these P. Ws saw the accused standing near the deceased wi.h a 'Farsa' in his hand. Recovery of 'Tangi' (M. O. I) at the in stance of the accused while the accused was under custody was taken into con-sidera ion. The learned Judge also took the finding of the Serologist that blood was detected on M. O. I into consideration and on consideration of these materials, held the accused guilty of murder and convicted him under Section 302, Penal Code.
5. Mr. Achutananda Routray, appearing as amicus curiae for the appellant, seriously contended before us that the evidence of P. Ws. 1 and 2 cannot be relied upon. He also contended that from the evidence of the Investigating Officer, it is apparent that the place of occurrence is somewhere else and not the place as deposed to by P. Ws. 1 and 2 and if the place of occurrence found by the Investigating Officer would be the place of murder, then in ordinary course it would not have been possible for P. Ws. 1 and 2 to see the occurrence to the extent they have staled to have seen. He further submitted that since on serological test human blood has not been found out on M. O. I., recovery of M. O. I. at the instance of the accused while the accused was in custody would be of no consequence and could not be considered as an incriminating circumstance. The learned Counsel for the appellant also took us through the evidence on record and made his submission with regard to some omissions and inconsistencies in the statements of the witnesses so as to discard their testimony.
6. That the death was homicidal in nature has not been challenged before us in this appeal. From the evidence of the doctor (P. W. 6) who conducted the post-mortem on the dead body, it is crystal clear that the injury on the right side upper part of the neck was ante mortem in nature and was sufficient in the ordinary course of nature to cause the death of the deceased. In this view of the matter, the learned Counsel for the appellant rightly did not assail the conclusion of the learned Sessions Judge that the death was homicidal in nature.
7. Admittedly, P. Ws. 1 and 2 have not seen the actual assault on the deceased and, therefore, the case depends on circumstantial evidence. The circumstances which have been relied upon by the prosecution are :-
(i) motive for the murder;
(ii) P. Ws. 1 and 2 heard the cry of the deceased 'KAKA HO, DHANIA HANIDELA';
(iii) P. Ws. 1 and 2 saw the deceased lying with cut injury and accused standing near the deceased with a 'Farsa' in his hand and the accused running away from the place seeing PWs 1 and .2;
(iv) leading to recovery of M.O.I, by the accused while in custody and M.O.I, was found to be stained with blood; and
(v) medical evidence to the effect that the injury on the deceased could have been caused by one blow with a 'Farsa' like M.O.I.
8. The law relating to circumstantial evidence is now fairly well settled by a catena of decisions of the Supreme Court and other High Courts. A particular circumstance by itself may not be decisive and yet the said circumnstance along with all other circumstances proved may strengthen the conclusion of the guilt of the accused. It is also of paramount necessity that all the links in the chain of circumstances must be conclusively established by cogent and unimpeachable evidence. The circumstances from which the conclusion of guilt is to be drawn should, in the first instance, be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. The circumstances should be of a conclusive nature and should be such as to exclude other hypothesis but that of guilt. The chain of evidence must be so far complete as not to leave any reasonable ground for conclusion consistent with innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. See Shankar-lal Gyarasilal Dixit v. State of Maharashtra : 1981CriLJ325 and State of Maharashtra v. An-nappa Bandu Kavtage : 1979CriLJ1089 . Where the links have been satisfactorily established and the circumstances point to the accused as the probable assailant with reasonable definiteness and proximity to the deceased as regards time and situation and he offers no explanation, which, if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence, such absence of explanation or false explanation would itself be an additional link which completes the chain. See Deonandan Mishra v. State of Bihar : 1955CriLJ1647 .
9. Keeping in view the aforesaid principles of law, we would examine the circumstances which have been proved in this case. So far as the motive for the murder is concerned, it appears from the evidence on record that the deceased Cheru was being deprived of his ligiti-mate dues from the property ever since his father Bonda married Dangei, the mother of the accused. Cheru could not assert his right during the lifetime of his father. On his father's death, the accused also deprived Cheru of his legitimate dues and did not give anything out of the property of Bonda. Therefore, Cheru wanted to assert his right over the property and accused, on the other hand, wanted io grab the property in question. This has been proved through the evidence of P. Ws. 1 and 2 and in our view has been satisfactorily proved. The learned Counsel appearing for the appellant does not challenge this aspect of the case. Thus, the motive for the murder has been well established.
10. So far as the next circumstance is concerned, namely, P, Ws. 1 and 2 while coming back from the house of the accused heard the voice of the deceased to the effect 'KAKA HO, DHANIA (accused) HANIDELA' and on looking back they saw the accused standing near the deceased with a 'Farsa' in his hand and thereafter ran away from the spot, the only evidence on record is that of P. Ws. 1 and 2. The learned Counsel appearing for the appellant strenuously urged before us that the evidence of P. Ws. 1 and 2 should be disbelieved. He pointed out to us that the first information report did not contain a part of the prosecution story unveiled during evidence, namely, that P. Ws. 1 and 2 accompanied the deceased to the house of the accused on the fateful night. The learned Counsel contended that this was a subsequent development which cast a doubt in the prosecution case. He further contended that it was a dark night and it could not have been possible for P. Ws. 1 and 2 to recognise the accused from that distance. In attacking the intrinsic worth of P. Ws. 1 and 2, the counsel further contended that though the occurrence took place near the house of Budhu, nobody from Budhu's house ha3 been examined in the case who could have been the most probable witness to the occurrence. We have carefully examined the submissions made by the learned Counsel for the appellant, but we are not prepared to accept the same. It is no ddubt true that in the F.I.R., it had not been stated that P. Ws. 1 and 2 accompanied the deceased on being requested by the deceased to the house of the accused. It must be remembered that the F.I.R. is an oral version of P, W. 1 converted to writing by the Officer-in-charge of the Police Station. Besides, the substratum of the prosecution case was there in the F.I.R., namely, P. Ws. 1 and 2 heard the voice of the deceased to the effect 'Kaka Ho, Dhania Hani-dela' as well as PWs 1 and 2 saw the accused standing near the deceased with a 'Farsa' in his hand and ran away on seeing P. Ws. 1 and 2.Since there has been no development or embellishment or exaggeration with regard to the substratum of the prosecution case, we cannot throw away the prosecution case merely because a part of the prosecution version was not there in the F.I.R.
The learned Counsel's comment that since it was a dark night, it would not have been possible for P, Ws. l and 2 to recognise the accused is also without any force, P. W. 2 in his evidence has itated that though it had been dark, still the visibility was not affected due to a clear sky and the rays of the stars, Accused is no other than the first cousin of P. W. 1 and the deceased. In this view of the matter, we cannot hold the testimony of P. Ws, 1 and 2 that they could see the accused with a 'Farsa' in his hand and then running away from the place of occurrence', as unreliable.
The further comment regarding non-examination of Budhu or anybody from Budhu's house is also not of much substance. It was a small village and from the evidence of p. W. 2, it appears that the deceased was at a distance of 40 cubits from the house of Budhu. It is not known as at that hour of the evening whether anybody in Budhu's house could have at all heard the voice of the deceased P. W. 2 has stated on oath that he does not go to the house of Budhu since he was not on talking terms.
P. Ws. 1 and 2 on seeing their companion Cheru being assaulted by the accused must have been perplexed and in that situation their conduct in not going to Budhu's house to call him cannot be said to be unusual. There is no evidence that either Budhu or any of his inmates were present at the time of occurrence and yet they were not examined by the prosecution. Accordingly, non-examination of Budhu in our view cannot be held to be fatal to the prosecution case.
There has been a variation with regard to the distance of the spot from Budhu's house. Though according to P. Ws. 1 and 2, the distance would be about 30 to 40 cubits according to the Investigating Officer (P. W. 5), it would be about 209 feet. Taking into account the knowledge of these rustic people about distance, we cannot attach any importance to this variation particularly when nothing turns on the said distance. We have gone through the evidence of P. Ws. 1 and 2 and in our view their evidence has not been shaken in any manner. We, therefore, hold that the evidence of p. Ws. 1 and 2 is reliable and the prosecution has been able to establish the circumstances (ii) and (iii) narrated above.
11. The next circumstance is the recovery of M.O.I. while the accused was in custody. P. W. 5, the Investigating Officer, stated in his evidence:-.After arrest on 20-9-78, I interrogated the accused. During interrogation, the accused stated that he had concealed the tangi, with which he killed Cheru in his house and making such a statement he led me and the witnesses and gave recovery of the said tangi from a heap of straw ropes (Benti) where the tangi had been kept concealed. I seized the tangi and prepared a seizure list in presence of the witnesses. Ext. 5 is the seizure list, M. O. I. is the tangi....'This statement of the Investigating Officer has been corroborated by PW 3, who is a witness to the seizure. Though the portion of the statement '....with which he killed Cheru in his house' is not admissible in evidence, but the statement of the accused that he had concealed the 'Tangi' and further that he led the Investigating Officer as well as the witnesses and gave recovery of the 'Tangi' will be admissible under Section 27, Evidence Act. This 'Tangi' on being sent for sero-logical examination was found to be stained with blood, as would appear from the reports (Exts. 13 and 13/1). The learned Counsel for the appellant contended before us that since the Sero-logist could not opine as to whether the blood that was found on the 'Tangi' was of human origin Or not, recovery of the 'Tangi' is not very material. In support of his contention he placed reliance on the decision of the Supreme Court in the case of poley v. State of U. P., 1969 Cri App R (SC) 17. In that case, the Supreme Court was examining whether the High Court was right in holding that there was no conflict between medical evidence and oral evidence of the eyewitnesses. It is not the ratio of the case that unless the weapon of offence is found to be stained with human blood, the accused giving discovery of the weapon of offence while under arrest is not an incriminating circumstance. We, therefore, reject the submission of the learned Counsel for the appellant on this score and hold that the prosecution has been able to prove that accused while under custody led the police and gave discovery of M. O.I., the weapon of offence.
12. The evidence of the doctor (PW 6) is to the effect that the injury on the deceased could have been caused by one blow with a 'Farsa', like M.O.L This statement was made after examining M.O.I. on being sent by the Investigating Officer. The medical evidence, therefore, corroborates the prosecution case.
13. In his statement under Section 313, Criminal P. C, when all these incriminating materials were put to the accused, 1984 Cri. L. J./26 III the accused merely denied them. In out view, the ratio of the case reported in AIR 1955 SC 801 : (1955 Cri Lj 1647) (supra) would apply to this case as the accused offered no explanation with regard to his presence near the deceased with a 'Farsa' in his hand and then running away from the spot on seeing PWs 1 and 2.
In summing up. therefore, we would hold that all the circumstances narrated earlier have been established and the chain is complete.
14. The learned Counsel for the appellant then urged before us that the accused was not given an opportunity to lead defence evidence and his application to examine defence witnesses was rejected by the learned Sessions Judge, which has caused miscarriage of justice. It appears from the statement of the accused under Section 313, Criminal p. C, that he took a plea to the effect that the deceased was in illicit connection with the wife of PW 1, and PW 1 was giving out that he would kill the deceased. After the statement was made by the accused, the learned Counsel for the defence wanted to examine some witnesses in support of that plea and also wanted to cross-examine PWs. 1 and 2 further. PWs. 1 and 2 were examined and cross-examined at length on 3-9-1979 and there was not an iota of suggestion to any of them on this score. There was not a whisper of this plea at any stage and only the last statement of the accused while he was being examined under Section 313, this plea came out. The learned Sessions Judge was, therefore, right in the facts and circumstances of the case to hold that the plea was belated. Moreover, in view of the unimpeachable evidence of PWs 1 and 2 and all other circumstances proved in this case beyond reasonable doubt, such a plea is of no consequence. We, therefore, are not in a position to accept the submission of the learned Counsel for the appellant that there has been miscarriage of justice or a denial of opportunity to the accused in rejecting the prayer to lead evidence in the case.
15. The last submission made by the learned Counsel for the appellant is that since one blow had been given which became fatal, keeping in view the volatile nature of these Adivasi people, the accused can be convicted under Section 304, Part-II and not under Section 302, Penal Code. In support of this submission, reliance was placed on the decision of the Su-preme Court in the case of Jagtar Singh v. State of Punjab : 1983CriLJ852 . In that case, on account of sudden quarrel, on spur of the moment, a young man caused a single blow by knife on the chest of the victim. Keeping those circumstances into consideration, their Lordships held that the offence was one under Section 304. Part-II. Whether the offence is one under Section 300 or under Section 304, Part-II has to be tested keeping in view the facts and circumstances of each case. As it appears, in this case, the deceased had left the house of the accused and had travelled some distance from the house of the accused and at that moment the accused came from the back and gave one blow on the most vital part of the body, namely the neck. The blow was so severe as to cause an incised wound 5' x 31/2' x 2' extending from right mastoid process to the third cervical vertebra. On dissection, it was found that all the veins and arteries had been cut at the relevant place. In this view of the matter, we cannot accept the submission of the learned Counsel for the appellant that the offence, if any, is one under Section 304, Part-II and not under Section 300, penal Code.
16. In the result, all the submissions made by the learned Counsel for the appellant are of no substance. The Criminal Appeal is, therefore, dismissed and the conviction and sentence passed by the learned Sessions Judge are confirmed.
17. Before parting with this case, we cannot but record our deep appreciation for the efforts made by the learned Counsel for the appellant on all the four dates of hearing. He has been able to place the case as efficiently as any senior counsel and deserves commendation from the Court. It is unfortunate that under the rules of the Court, counsel appearing amicus curiae is not entitled to any fees though in all fairness he should be entitled to get the fees as applicable to the public prosecutor. We hope that Government would take steps in this regard.
18. I agree.