P.K. Mohanti, J.
1. This appeal has been preferred against an order of conviction under Section 302, Indian Penal Code and a sentence of imprisonment for life.
2. The appellant is one of the five accused persons who were jointly tried on the charges under Sections 302/34, 326/34 and 324/34, Indian Penal Code. The learned Additional Sessions Judge convicted the appellant only under Section 302, Indian Penal Code and acquitted the other accused persons of all the charges framed against them. There being no appeal by the State, the order of acquittal has become final.
3. The incident took place on 31-8-1969 at about 10 p. m. at a lonely place on a cart track running through the paddy fields at village Ujala Gopinathpur under Tangi P.S. in the District of Puri. The distance between the place of occurrence and the village busti is about half a mile.
4. The prosecution story may be outlined as follows: There were two rival parties in the village, one headed by the deceased Madhusudan Pradhan and the other by accused Ramchandra Routray. There was long standing enmity between the parties and several litigations were pending between them. The relations between the parties got so exacerbated that proceedings under Section 107, Criminal Procedure Code had to be drawn up against them.
The deceased had taken up a contract work to construct a bundh at a distance of about 4 miles from the village and he used to go there to supervise the work. On the night of occurrence, while the deceased and P. Ws. 2 to 7 and 10 were returning to the village, the five accused persons, who were lying in wait for their arrival, focused a torchlight on them and all of a sudden the appellant fired a gun shot which hit the deceased. Some more shots fired by the accused party hit P. Ws. 2 to 7. The deceased died at the spot. P. Ws. 2 to 7 sustained injuries. P.W. 1 Laxmidhar Parida who had gone for attending the call of nature heard gun-shot sounds and saw the accused persons running away.
5. F. I. R. was lodged by P.W. 1 on 1-9-69 at 4 a.m. in Tangi P.S. about 11 kilometres distant from the spot. The Investigating Officer P.W. 14 arrived at the spot at 8.45 a.m. He held inquest over the dead body and despatched it for post-mortem examination. He seized two empty cartridge cases and seven wads from the spot. On the next day i.e. 2-9-69 he recorded the statements of P. Ws. 2 to 7 at Bhubaneswar Hospital. The appellant evaded arrest and ultimately surrendered in court on 8-10-1969. After due investigation, the police submitted charge-sheet on 22-7-1970.
6. The appellant's plea was denial simpliciter.
7. At the trial, prosecution examined 17 witnesses and the learned Additional Sessions Judge, on a consideration of their evidence, held the appellant guilty and acquitted the other accused persons, as aforesaid.
On appeal, it is urged that the order of conviction is not supportable on the evidence on record.
8. No doubt is left in our mind, having regard to the direct evidence of the eyewitnesses and the corroborative evidence of the doctor that the death of the deceased was due to the injuries which affected the vital organs. The doctor P.W. 15--who conducted the autopsy over the dead body on 1-9-1969 found as many as 17 gun shot wounds on different parts of the body. On Sub-Section, he found that the left temporal bone had been fractured and the left side lung and the pleura had been punctured. In his opinion, the injuries were ante-mortem in nature and some of the injuries were individually sufficient in the ordinary course of nature to cause death. We would, accordingly, hold that the death was homicidal.
9. The crucial question that next arises is whether the appellant is responsible for the death. The order of conviction is based mainly on the direct testimony of P. Ws. 2 to 7 and the circumstantial evidence of P. Ws. 1 and 10. P. Ws. 2 to 5 and 7 are unanimous in regard to the firing of gun shot by the appellant. Their evidence reveals that while they were proceeding, they saw all the accused persons at a distance of 40 cubits from them. Accused Rama Rout-ray focused a torchlight and directed the appellant to fire. Then the appellant fired a gun shot which hit the deceased Madhu Padhan who was going in the front. The deceased fell down with bleeding injuries and died at the spot. Then the accused party fired two to three other shots which hit the witnesses. Nothing substantial has been elicited in their cross-examination so as to discredit their sworn testimony. They had sustained gun shot wounds as found by the doctor--P. W. 15. Some pellets were also recovered from the wounds on the persons of P. Ws. 2, 4, 5 and 7. The presence of the injuries on their bodies lends assurance to their testimony that they were present at the scene of occurrence. P.W. 6 Aintha Parida stated in his examination-in-chief that he had also seen the appellant firing the gun shot which hit the deceased, but in his cross-examination he changed the version and stated that he could not recognise the appellant during the occurrence and subsequently learnt the name of the appellant from P.W. 5. In view of the conflicting statements, we place no reliance on his testimony. P. Ws. 1 and 10 who were at some distance from the spot did not see the actual firing but they stated that they heard gun shot sounds and saw the appellant running away from the spot along with the other accused persons. They went and found the deceased and P. Ws. 2 to 7 lying injured at the spot. The evidence of P.W. 1 shows that P. Ws. 3 and 7 reported to him that the accused persons had fired the gun shots and on the basis of this information, he lodged the F. I. R. in the next morning. In our opinion, the evidence of P. Ws. 1 to 5, 7 and 10 clearly establishes the guilt of the appellant.
10, Mrs. A. K. Padhi, the learned Counsel appearing on behalf of the appellant strenuously urged that in view of the partisan character of the witnesses no reliance should be placed on their testimony without corroboration by any independent witness. It is, no doubt, true that between the P. Ws. and the appellant there was no love lost on account of several litigations, but the evidence of the witnesses cannot be mechanically rejected merely on that ground. In a faction-ridden village it is not expected that any independent witness would come forward to support the case of either party. There is also no rule of law or of prudence to the effect that the evidence of partisan witnesses cannot be accepted without corroboration by independent witnesses. If the witnesses are found to be partisan their evidence is to be scrutinised with more than ordinary care. But the absence of independent witnesses is not by itself a sufficient ground for discarding the sworn testimony of the witnesses.
11. We have judged the evidence of the witnesses with great care and have given it all the searching scrutiny that we could in order to ascertain the guilt of the appellant. There is nothing inherently improbable in their evidence. It is not also shown that they made any previous contradictory statement before the police or the Committing Magistrate. The medical evidence is quite consistent with their testimony and the F. I. R. which was lodged in the early morning disclosing the name of the appellant is of considerable corroborative value. The story deposed to by the witnesses appears to be probable and has been accepted by the trial Court, we see no reason, far less any compelling reason, to take a different view of their evidence.
12. It was next contended by Mrs. Padhi that the occurrence took place in a dark night and as the accused party were under the shadow of a tree as stated by P. Ws. 2, 3 and 4, the appellant could not have been recognised by the witnesses. The almanac shows that the date of occurrence was the fourth day of the dark fortnight and the moon was to rise at 10 p. m. The statements of the witnesses that they had recognised the appellant conveyed in it, by clear implication, the fact that there was sufficient visibility to enable them to recognise the appellant. The evidence of P. Ws. 1, 3 and 5 shows that there was moon light at the time of occurrence. P.W. 2 has specifically stated that the appellant was wearing a trouser at the time of occurrence. It might not have been possible for him to mark the dress of the appellant unless there was sufficient visibility. Even in a dark night one can also recognise a known person from a short distance by the light of the stars. The witnesses asserted that they recognised the appellant and they have not been dislodged in the cross-examination. Nothing has been brought out in their cross-examination to show that the existence of the trees and' bushes near the spot of occurrence obstructed their view. There is, therefore, no force in this contention.
13. The next argument of the learned Counsel is that the pellets and the wads seized in the case have not been examined by an expert. This argument overlooks the fact that no fire-arm was seized from the possession of the accused persons. On the other hand, the prosecution evidence leaves no room for doubt that the appellant was armed with a gun and he had fired the shot which hit the deceased. This contention is also without any force.
14. Non-mention in the F. I. R. of the fact that the appellant opened the attack and fired the gun shot was seriously commented upon by the learned Counsel. It is to be observed in this connection that P.W. 1 who lodged the F. I. R. is not an eye witness to the actual incident of firing. His evidence in court is that he heard sounds of gun shot and saw the appellant running away from the spot along with his co-accused persons. He lodged the F. I. R. on the basis of what he heard from P. Ws. 3 and 7. Therefore, the absence of the details as to who led the attack and fired the shot which resulted in the death of the deceased cannot be fruitfully taken advantage of by the appellant in the circumstances of the case.
15. On a review of the entire evidence on record, we are satisfied that the appellant is the author of the murder. The order of conviction and sentence is, therefore, justified. We see no merit in this appeal which is, accordingly, dismissed.
S.K. Ray, J.
16. I agree.