Virender Singh, C.J.
1. Appellants Jitu Acharya and Madan Kaibarta (hereinafter to be referred to as the accused) are stated to be in custody for the last about 14 years, therefore, preference has been given to the instant appeal for its final consideration.
2. Both the accused were charged for the offence under Sections 302/34 IPC for having caused the death of one Santosh Samal (hereinafter to be referred to as the deceased) on 26.05.2002 at about 3.30 A.M. failing within the jurisdiction of police station Rajnagar. The first informant is the wife of the deceased, namely, PW-8 Moti Devi on whose statement the present case was registered. She stated that she along with the deceased and daughters of real brother-in-law (in common parlance Bhatiji) namely, Baijanti Samal and Mausmi Samal had gone to nearby village known as Tentoposi where Chaiti Mela was organized and they had gone to see Chau Dance. It is further stated that in-laws of her daughter were also there and that the said Mela was organized in front of the house of her own daughter, namely, Geeta Mohanti. She further stated that after taking meal, they left for Mela and when they were enjoying it, both the accused asked them, whether they had come to see Mela, upon which the deceased told them that they should mind their own business. It is thereafter, both the accused left the place and they continued seeing Chau Dance. It is then alleged that both the accused sat beside them and started talking with each other. They were again scolded by the deceased and then they left the place. At about 12 O''clock in the night, she and the daughters of her brother-in-law (Bhatiji) came back and slept whereas her husband remained sitting there at Mela who returned at about 3.30 A.M. in the morning and told her to come along with him as he had to go for his work at 5 A.M. in the morning. It is then alleged that when they all were going to their village and came out of village Tentoposi and reached near the bank of the river where the house of the accused was situated on one side of the bank of the river, both the accused were found standing on the road and remarked that where were they going at the late night, upon which the deceased again scolded them. It is then alleged that when they were crossing Kharkhai river, both the accused again appeared from the back side and caught hold of her (first informant) and tried to outrage her modesty and made an attempt to open her Saree whereupon the deceased protested and released her from them, upon which a scuffle ensued between both the accused and the deceased. The daughters of her brother-in-law hurriedly crossed the river and shouted "save-save". It is then alleged that both the accused abused the deceased and said that since he had scolded them, they would not leave him, upon which accused Madan Kaibarta took out a knife from his pocket and gave an injury in the stomach of the deceased. Thereafter, accused Jitu Acharya also took the knife from the accused Madan Kaibarta and gave an injury in the chest of the deceased, consequently he fell on the ground. The first informant and daughters of her brother-in-law started throwing stone towards the accused and raised alarm also, upon which both the accused fled away from the scene of occurrence. The deceased succumbed to the injuries at the spot itself.
3. On the basis of the aforesaid allegations, formal F.I.R. bearing No. 21 of 2002 under Sections 302/34 IPC came to be registered in police station Rajnagar, investigation of which was carried out by P.W. Rajiv Kumar Singh which culminated into filing a challan against both accused who consequently were charged under Sections 302/34 IPC and now stand convicted and sentenced to undergo imprisonment for life, aggrieved thereof, both of them are before us through the medium of the instant criminal appeal.
4. In support of this case, the prosecution has examined Krishna Prasad Nayak - P.W. 1, Vinod Raut - P.W. 2, Baijanti Samal - P.W. 3, Pradeep Kumar Pall - P.W. 4, Geeta Mahati - P.W. 5, Mausami Samal - P.W. 6, Basant Kumar Mahanti - P.W. 7, Moti Devi - P.W. 8 and Rajiv Kumar Singh - P.W. 9, the Investigating Officer of the present case.
5. The documents which were exhibited during the trial are Signature on Inquest Report (Ext. 1), Post-Mortem Report (Ext. 2), Inquest Report (Ext. 3), Statement of the first informant upon which the formal F.I.R. was registered (Ext. 4), formal FIR (Ext. 5) and the seizure memo (Ext. 6).
6. The case of both the accused as one finds from their examination under Section 313 Cr.P.C. is of denial simplicitor. However, they have not adduced any evidence in defence.
7. Learned counsel for the accused vehemently contended that all the three eye-witnesses have stated that both the accused have caused one injury each on the person of the deceased by the same weapon (knife) which was initially in the hands of accused Madan Kaibarta, whereas if one looks at the post-mortem report, there are as many as four injuries of the similar nature on the person of the deceased and this creates doubts about the truthfulness of the eye version account and it appears that the eyewitnesses to the occurrence had actually not seen the occurrence.
8. Learned counsel submitted that according to the PW-1 namely Krishna Prasad Nayak who otherwise happens to be the witness of hearsay evidence and is a signatory to the Inquest Report, when he reached the place of occurrence at 4.00 A.M. in the morning, none of the eye witnesses was at the site and this would go to show that the three so-called eye witnesses now projected were actually not with the deceased at the time of the alleged occurrence.
9. Learned counsel then submitted that the motive projected herein is the altercation ensued between both the accused and the deceased in a Mela which was witnessed by the first informant and the daughters of his brother-in-law, but when P.W. 5 Geeta Mahati, stepped to witness box, did not whisper a word about any altercation even ensued between the deceased and the accused on account of teasing of the ladies. Learned counsel submitted that otherwise case of the first informant is that PW Geeta Mahati was all along with her and enjoyed the Mela as well. Learned counsel developed that in fact it is a case without there being any motive.
10. Learned counsel then submitted that as per the case set up by the prosecution, blood stained clothes of one of the accused namely Madan Kaibarta were recovered from his house and exhibited also during the trial, but those clothes were never sent to F.S.L. for matching the blood group from the clothes of the deceased. Therefore, prosecution cannot derive any benefit from it.
11. Learned counsel thus submitted that the prosecution has not even able to prove its case against the accused beyond any shadow of reasonable doubt, therefore, both the accused deserve acquittal.
12. Per contra, learned A.P.P. contended that there is no infirmity in the impugned judgment and order of conviction. The learned trial court after due appreciation of the evidence and material on record has passed well reasoned judgment, thus, the judgment requires no interference. The learned A.P.P. further drew our attention over the evidences adduced by the prosecution witnesses especially P.W. 3, P.W. 6 and P.W. 8 who were the eye witnesses of the occurrence.
13. On perusal of the record it is evident that the prosecution case is based upon the evidence of P.W. 3, P.W. 6 and P.W. 8. P.W. 3 Baijanti Samal and P.W. 6 Mausami Samal are two niece of the deceased. P.W. 8 Moti Devi is the widow of the deceased. They all are eye witnesses of the occurrence.
(i) On perusal of the deposition of PW-3 it appears that the accused persons followed them to Kharkhai river and wanted to outrage the modesty of her Aunt (Bari Maa) (PW-8), the wife of deceased while they were returning from the Mela. Being attacked by the accused/convict she (PW-8) raised hulla, while her husband, i.e. the deceased came forward who was at a little distance, protested to it when the accused/convict, Madan gave a chaku (knife) blow on his chest as a result he fell down and succumbed to the injuries.
(ii) From the deposition of PW-6 it is evident that when they reached near river, accused Madan came there and tried to outrage the modesty of PW-8 and when deceased resisted, Madan stabbed knife into his stomach and accused Jitu Acharya also stabbed knife in his chest. Consequently deceased fell down and died.
(iii) The most vital witness is PW-8, the wife of the deceased and the first informant who fully supported her case as made out in the fardbayan. She deposed that when they reached near Karkhai river, Madan tried to outrage her modesty. When she raised Hulla, upon which the deceased resisted and then accused Madan took out a knife and gave blow to the deceased and then Jitu took away Chra from him and gave another blow on the chest of the deceased, as a result thereof he fell down and succumbed to the injuries.
14. Doctor - PW-4 conducted the postmortem of the dead body of the deceased and found the following injuries on his person:-
(i) Incised wound over right side of chest above one inch medial of right nipple 2 1/2" x 1 1/4" deep into chest cavity cutting right 4th and 5th ribs pleura underneath.
(ii) Incised wound over interior aspect of right lung 3" x 1/2" right chest cavity contained about 300 ml blood.
(iii) Incised wound 1 1/4" x 1" deep into the cavity over the anterior abdominal wall in the cubical region cutting the peritorium underneath exposing loops of intestine out but there was no injury to intestine loops.
(IV) Abrasion x 2? over left leg knee.
15. Attempt made by learned counsel for the accused that there is discrepancy between the eye version account and the medical evidence, in our considered view, is of no help to the accused. No doubt there are four injuries noticed by doctor of autopsy on the person of the deceased, three incised wounds and one abrasion. Abrasion is possible by fall and it is the case of the prosecution that the deceased, after receipt of injuries, had fallen on the ground. Injury Nos. 1 and 2 are on the chest and very close to each other. It is quite possible that the witnesses could not see any of the accused causing third injury with the knife. So much minutest details are not expected from the eye witnesses and on this ground alone, their evidence is not to be discarded. It is not a case where the medical evidence totally demolishes the prosecution case.
16. However, what is most important in this case is whether the aforesaid three witnesses have actually seen the occurrence or have been projected as eye witnesses to the occurrence. We, after rescanning their evidence in its right perspective, do not find any flaw in their evidence so as to discard dubbing them untrue witnesses to the occurrence. Presence of these witnesses at Chaiti Mela cannot be said to be doubtful. It is very common in the village that residents of one village go to the other village to enjoy Mela. Chau Dance in this part of the country, especially in the villages, is very famous and everyone enjoys to the hilt. There appears to be no reason to doubt that the deceased, his wife and two young girls namely Baijanti Samal and Mausami Samal were not present enjoying Chou Dance where the present two accused also happened to be there and did some act to the disliking of the deceased as such scolded. It is also not unnatural that the deceased who had returned from Mela at 3.30 A.M. told her wife to accompany him as he had to go for work in the morning and they left for their village. Once we do not find anything unnatural in it, there appears to be no reason to disbelieve the presence of these three main witnesses along with the deceased. Not only that PW-8, the wife of the deceased, is categoric in stating that the present two accused made an attempt to open her Saree whereupon the deceased protested and then assaulted by these accused with sharp edged weapons. May be we find few contractions in the statement of these three eye witnesses to the occurrence, but all those pale into insignificance once their presence at the scene of crime is not doubted.
17. Learned counsel for the accused made an attempt to cause dent to the eye version account stating that PW-1 Krishan Prasad Nayak has stated that when he reached the place of occurrence at about 4.00 A.M., none of these eye witnesses were present on the site and this would go to show that the eye witnesses have not seen the occurrence. We are not inclined to accept the argument of learned counsel for the accused on this aspect. PW Krishan Prasad Nayak is only a witness to the Inquest Report. He is signatory to the said report. He otherwise happens to be witness of hearsay evidence. If he could not notice the presence of the wife of the deceased or two niece of the deceased at the time of the preparation of the Inquest Report, it would not mean that these witnesses were not accompanying the deceased. It can also be said to be a stray statement made by the PW Krishan Prasad Nayak which does not demolish the case of the prosecution.
18. Much has been said by learned counsel for the accused vis-a-vis motive part. We are conscious of the fact that the accused were not having any motive in their bosom prior to what had happened at Chou Dance but what appears to the Court is that they did not like the scolding done by the deceased when these two accused were trying to behave indecently with the wife of the deceased or the two young girls. We are conscious of the fact that P.W. 5 Geeta Mardi has not whispered a word about any incident happened during the Mela, but, that would not make the other witnesses untrue vis-a-vis motive part. Prosecution case is that they were scolded twice. It appears that it was not to their liking and they did not tolerate it and then made an attempt to even outrage the modesty of the wife of the deceased upon which the deceased resisted and then assaulted by both the accused with knife. Motive is how you take it upon yourself. These two accused might have thought that nobody could dare joining issue with them in their village. It is well settled that even for a very trivial motive a murder can take place. It is also well settled that motive pales into insignificance if the eye version account is believable but here in the present case, not only the eye version account as put forth by the prosecution is true to the core, there appears to be a motive also to commit the murder of the deceased.
19. We do not find certain lapses on the part of the investigation, as pointed out by learned counsel for the accused, but in our considered view, those are insignificant once we believe the eye version account.
20. After churning the entire prosecution evidence on the basis of the evidence available on record, we are of the view that/prosecution has been able to prove its case against both the accused beyond any shadow of reasonable doubt, as such their conviction and sentence for the charge of Section 302/34 IPC, as already recorded by the learned Trial Court vide its impugned judgment, deserves to be affirmed. Ordered accordingly.
21. The net result is that the appeal on hand stands dismissed in toto.
