(1.) THE Appellant, a convict, has preferred this appeal from jail having been convicted and sentenced to imprisonment for life under Section 302 IPC for having murdered one Surumani Majhi on 3.10.81 at 6.00 p.m., assaulting him on his head by a pole, M.O. I. It is prosecution case that while Surumani, hereinafter referred to as "the deceased" was standing at the time of the occurrence in front of his house, the Appellant came out of his house and blamed him of having stolen his Kumuda (pumpkin) and so saying dealt a blow by M.O. I. as a result of which the deceased fell down and thereafter the Appellant gave two more strokes and throwing away the M.O. I. filed away. The incident was witnessed by P.Ws. 4 and 5 whose evidence has been relied upon by the learned Sessions Judge besides the extra -judicial confession deposed to by P.Ws. 6 and 7 to find the charge established against the Appellant. The information with the police was lodged the next day, i.e. 4.10.81 at 7.00 a.m. by P.W. 1 who belongs to a different village and had been addressing the deceased as uncle (KAKA) though the deceased was not in actuality his paternal uncle. P.W. 1 stated to have been informed by P.W. 4 regarding the death having been caused by the Appellant.
(2.) SO for as the evidence of P.Ws. 4 and 5, the eye -witnesses, is concerned, it is highly discrepant improbabilising their character as witnesses to the occurrence. It is the statement of P.W. 4 that he witnessed the entire occurrence sitting on his verandah and while the Appellant gave the last two blows, the wife of the deceased came out of her house and P.W.5 also arrived there in cross -examination he stated that both he and P.W. 5 reached the spot together after the deceased had fallen down receiving the blows. It is however the evidence of P.W. 5 that he was taking gruel in his house when the wife of the deceased came to call him. P.W. 4 was also taking gruel in his house and he called P.W. 4 therefrom and also informed him that the wife of the deceased had called him to see her husband in front of his house as something had happened. Such evidence of P.W. 5 completely belies the statement of P.W. 4 of his having witnessed the occurrence. P.Ws. 4 and 5 are relations of the deceased P.W. 5 has admitted the deceased to be his cousin while P.W. 5 has admitted to be a relation of P.W. 5 having married his cousin's daughter. Both P.Ws. 4 and 5 have been found to be not truthful in substantial parts of their evidence and hence it is difficult to rely on the evidence of such persons as eye -witnesses.
(3.) I agree.