BAMIA HO @ SAYAN Vs. STATE OF ORISSA

JUDGEMENT

(1.) THIS appeal is directed against the judgment and order dated 28.7.2005 passed by the learned Additional Sessions Judge (F.T.C.), Baripada, Mayurbhanj in S.T. Case No. 13/26 of 2004 convicting the appellant for commission of offence under Section 302 of the Indian Penal Code (in short 'IPC') on allegation of committing murder of one Nitima Ho and sentencing him to undergo imprisonment for life. He has also been convicted for commission of offence under Sections 323 and 324 of IPC and has been sentenced to imprisonment for one year for offence under Section 324 of IPC but no separate sentence has been imposed for conviction under Section 323 of IPC. All the sentences have been directed to run concurrently.

(2.) CASE of the prosecution is that on 21.9.2003, the informant (P.W.1), who is also the husband of the deceased, had gone along with his son Abhiram to Tato Hat leaving the deceased, daughter Binapani and Jema, (P.WA) and son Mansingh (P.W.12) in the house. In the evening when he returned from the Hat he was informed by P.W.4 that the appellant assaulted the deceased in his house by means of an axe causing her death. When his son (P.W.12) intervened the appellant also assaulted him for which P.W.12 became unconscious at the spot. Hearing about the incident, P.W.1 proceeded to his house and found his wife lying dead and also found cut injury over the head of his son. He thereafter informed the village Choukidar (P.W.5) to go to Tangabila to inform to the Police Station over telephone. The O.I.C., Jashipur Police Station (P.W.13) came to the house of P.W.1 on the next day at about 5.30 a.m. and received the F.I.R. from P.W.1 written by P.W.6. It was further alleged by P.W.1 that in the morning of 20th September, 2003, cattle of the appellant damaged the paddy of P.W.1 for which complaint was lodged before Jadumani Mahanta, Ward Member (P.W.2) and (P.W.2) had directed the appellant to pay compensation to P.W.1. On completion of investigation, charge sheet was submitted for commission of offence under Sections 302, 307 and 323 of IPC and the appellant also faced trial for commission of the said offence. The appellant denied the prosecution case and took a specific plea that due to land dispute, a false case has been foisted against him.

(3.) MISS Sonali Biswal, learned counsel for the appellant placed the evidence of P.Ws. 4 and 12 and submitted that there are material inconsistencies in the evidence of both the eye -witnesses making them unreliable. According to Miss. Biswal, learned counsel for the appellant, if the Court finds that these two witnesses are not reliable merely on the evidence of P.Ws. 8 and 9, no conviction can lie for all the offences for which the appellant had been charged. Learned counsel for the State placed reliance on the evidence of two eyewitnesses and submitted that inconsistencies pointed out by the learned counsel for the appellant are not so important for the purpose of proving the charge and ignoring those inconsistencies, the Court can rely on the said two eye -witnesses. It was further submitted by the learned counsel for the State that evidence of two eye witnesses is fully corroborated by the evidence of P.Ws. 8 and 9 and, therefore, there is no reason to discard the evidence of P. Ws. 4 and 12.