Dapanga Singh vs State Of Odisha
2023 Latest Caselaw 6262 Ori

                                    IN THE HIGH COURT OF ORISSA AT CUTTACK
                                                CRLA No.378 of 2019

                                (From the judgment of conviction and order of sentence dated
                                06.02.2019 passed by the learned 1st Additional Sessions Judge,
                                Baripada in S.T. Case No.03 of 2014)


                                Dapanga Singh                             ....          Appellant

                                                           -versus-

                                State of Odisha                           ....         Respondent


                                Advocates appeared in the case:
                                For Appellant             :           Smt. Padmaja Pattnaik, Adv.
                                                           -versus-



                                For Respondent             :            Ms. Samapika Mishra, ASC




                                           CORAM:
                                           MR. JUSTICE D. DASH
                                           DR. JUSTICE S.K. PANIGRAHI

                                             DATE OF HEARING:-03.01.2023
                                            DATE OF JUDGMENT:-17.05.2023

                                  Dr. S.K. Panigrahi, J.

1. This appeal is directed against an order, dated 06.02.2019,

passed by the 1st Additional Sessions Judge, Baripada in S.T.

Case No.3 of 2014 (arising out of G.R. Case No. 372/2013

Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR pg. 1 Designation: Secretary Reason: Authentication Location: OHC, Cuttack Date: 18-May-2023 13:57:32 corresponding to Sarat P.S. Case No. 37 of 2013) convicting

the appellant for commission of offence under Sections 302 of

IPC. The appellant is sentenced to undergo imprisonment for

life and pay a fine of Rs.5,000/- only in case of default in the

payment of fine, he shall undergo R.I. for 6 (six) months.

I. CASE OF THE PROSECUTION:

2. On 03.09.2013, at about 5 P.M., Baburam @ Kiti Singh ("the

deceased") was proceeding to his house along with his wife,

near Dumkukania village road. Meanwhile, they were being

followed by the Dapang Singh ("the appellant"), who had a

"bala/tangia" in his hand. He ambushed Baburam and

brutally attacked him with the said "Bala" on his neck and

fled. As a result Baburam died at the spot after sustaining

severe mortal wounds.

3. Madhu Singh ("the informant") is the son of Baburam. He

was acquainted about the occurrence and death of his father

from the ward member of Mata Singh of Matiabua. He

immediately proceeded to village Dumkunia along with his

younger brother. After inquiring his mother about the

occurrence, he lodged a report in the Police Station which was

scribed by one Lambodhar Mohanta. After registration of the

F.I.R, the investigation of the case was taken up by the then

O.I.C., Sarat P.S, Sri Niranjan Kumar Dhir.

Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR pg. 2 Designation: Secretary Reason: Authentication Location: OHC, Cuttack Date: 18-May-2023 13:57:32

4. During course of investigation, the I.O. visited the spot,

prepared the spot map, conducted inquest over the dead

body of the deceased, seized the sample blood stained earth

and pair of ladies slippers from the spot, sent the dead body

for P.M. examination and then arrested the appellant. The

accused, while in custody, paved the recovery of the blood

stained "bala" used in the commission of crime. The I.O. sent

the accused for medical examination, seized the biological

samples of the accused, seized the apparel of the deceased,

sent the weapon of offence for opinion of the Medical Officer,

sent the seized exhibits and weapon of offence to R.F.S.L.,

Balasore. On completion of investigation, after examination of

all the material witnesses, he submitted charge sheet against

the accused under Section 302 I.P.C.

5. The plea of the defence is one of the complete denial of the

prosecution allegation and of false implication.

6. The prosecution examined sixteen (16) witnesses and led

evidence with several material objects. The Defence, on the

other hand, examined no witnesses.

II. TRIAL COURT JUDGMENT

7. The trial Court began the analysis of the case by with the

examination of the testimonies of the P.Ws.

8. According to the Mani Kui (P.W. 2), wife of the deceased; on

the relevant day, she and her husband had been to the Sarat

Signature Not Verified pg. 3 Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Secretary Reason: Authentication Location: OHC, Cuttack Date: 18-May-2023 13:57:32 hat. At about 4 P.M, while they were returning from the hat,

the appellant ambushed them and inflicted a 'bala' blow on

the right side of the neck of the deceased. As a result, the

husband fell and died at the spot. She further deposed that

she asked the appellant as to why he had killed her husband

but the accused threatened her of dire consequences and fled

from the spot. In her cross-examination, she failed to state the

date, month and year of occurrence. She admitted that on the

date of occurrence, she and her husband had consumed

'handia', a type of intoxicant drink. She has deposed that the

appellant killed her husband due to a previous land dispute

although, no case had been instituted in the P.S. regarding the

said land dispute between them. She had also denied that it

was dark at the time of occurrence. She categorically stated

that she witnesses the appellant inflicting the blow on the

deceased. After the incident one Mata Singh (P.W.1) got to the

spot and witnessed the post-occurrence scene.

9. She revealed that she is the second wife of the deceased and

the first wife of the deceased resides at Ranipokhari. She

further deposed that the deceased was wearing a red colour

shirt, white colour dhoti and chapals on the relevant day. She

vehemently disputed the suggestion that she was not present

with the deceased at the spot on the relevant day and that the

accused had not killed the deceased.

Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR pg. 4 Designation: Secretary Reason: Authentication Location: OHC, Cuttack Date: 18-May-2023 13:57:32

10. Mata Singh (P.W.1) stated that there was land dispute

between the deceased and the appellant. On the date of

occurrence, while he was returning to his village at Sukuabata

hamlet, he heard that the appellant had murdered the

deceased. Thereafter, he went to the spot along with his wife

Jema Singh and the informant. At the spot, he found the dead

body of the deceased. At the spot, Mani Kui disclosed before

him that she and her husband had been to the hata (market)

and while they were returning from the hata (market), they

halted at Dumkubania square and consumed liquor.

Thereafter, the accused appeared and inflicted a 'tangia' blow

on the neck of the deceased. As a result, her husband died on

the spot. He also testified that the appellant confessed, before

the police, that he had murdered the deceased suspecting him

to be a sorcerer.

11. The trial court took note of the fact that the case of the

prosecution is dominantly based on the version of P.W.2.

There are no independent eye witnesses to the occurrence

except her.

12. The court also took into account the deposition of Lanka

Singh (P.W.5). The occurrence is stated to have taken place

near his house; as stated by Mani Kui. P.W.5 deposed that, on

the day of occurrence, while he was returning from the hata

(market), he found the wife of the deceased sitting beside the

Signature Not Verified pg. 5 Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Secretary Reason: Authentication Location: OHC, Cuttack Date: 18-May-2023 13:57:32 dead body of the deceased and on being asked, she told him

that the appellant had inflicted a 'tangia' blow to the deceased,

as a result of which he died. He was also a witness to the

inquest. He is stated to have seen the injury mark on the left

side of the neck of the deceased.

13. Now, the trial court examined the Post Mortem report of the

dead body of the deceased. The autopsy of the dead body was

conducted by Dr. Debasis Marandi (P.W.15). He deposed that

the he noticed an external cut injury posterior to the left ear,

cutting in the middle of left mandible and underline structure

and exposure of left side of cervical vertebra, cutting of major

vessels. He has also opined that all the injuries were ante-

mortem in nature; caused by a sharp and heavy cutting

weapon, possibly by the 'bala' produced by the police. The

cause of death as opined by him was due to haemorrhage and

shock as a result of cut injury on the face and neck and due to

cutting of major neck vessels. He admitted that the weapon of

offence was not stained with blood at the time of production

before him nor had he verified the blood group of the

deceased.

14. Herein, the trial court noticed that, from the evidence, the

deposition of P.W.2 is contradictory to the other depositions

and autopsy report. The P.W.2 had deposed that the accused

assaulted her husband with a 'tangia' on the right side of his

Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR pg. 6 Designation: Secretary Reason: Authentication Location: OHC, Cuttack Date: 18-May-2023 13:57:32 neck while the wound was clearly found on the left side of the

neck.

15. While the trial court has held that the testimony of the doctor

and other inquest witnesses cannot be disbelieved, it gave a

benefit of doubt to Mani Kui. Mani Kui was an illiterate tribal

lady and it is not expected that she would properly

differentiate between the right and left side of the portion of

the body. Also, the confusion could have been possible due to

her intoxicated state. Nonetheless, the trial court refused to

completely disregard the testimony of P.W.2 for immediately

after consuming 'handia', they had left for their house. Hence,

the intoxication level would not have reached a yonder point

by the time of assault.

16. The court considered the deposition of Ramai Singh (P.W.4)

who claims to have been at the Aiban Chhak. He deposed that

he had seen the accused sitting there, holding a 'tangia' prior

to the incident. On hearing hullah, he rushed to the spot and

found the dead body of the deceased lying there and the wife

of the deceased was sitting near the dead body of the

deceased. In his cross-examination, he admitted that he had

not seen the occurrence. The trial court recorded his evidence

as a vital piece of evidence for this establishes the presence of

the accused at the spot just prior to the incident.

Signature Not Verified pg. 7 Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Secretary Reason: Authentication Location: OHC, Cuttack Date: 18-May-2023 13:57:32

17. The trial court concluded that the deceased died due to

injuries sustained by him owing to a 'tangia' or 'bala' blows

and the presence of the appellant at the spot committing the

offence is also not disbelieved.

18. The I.O., N.K. Dhir (P.W.16) has stated that, as per the

disclosure statement of the accused, he along with the

witnesses proceeded to the spot of concealment i.e. under the

Bahada tree situated at the eastern direction of the house of

the appellant, in village Matiachua. He further deposed that

the accused led them to the spot and gave recovery of the

blood stained 'bala'

19. Lambodar Mohanta (P.W.11) corroborated the version of the

P.W.16 and had admitted that the accused led them to the

place where he had concealed the blood stained 'bala' and

gave recovery of the same from a Bahada tree. The same was

seized by the I.O.; in the presence of Mata Singh and

Bidyadhar Mahanta.

20. Although, Bidyadhar Mohanta (P.W.10) turned hostile from

the very beginning and Mata Singh in his cross-examination,

denied his presence at the spot when the weapon of offence

was recovered, but, P.W.11 in his cross-examination

consistently and categorically stated that the place where the

'bala' was concealed was not accessible to the public and the

said place was not visible to others. He has also stated that he

Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR pg. 8 Designation: Secretary Reason: Authentication Location: OHC, Cuttack Date: 18-May-2023 13:57:32 was present when the accused confessed his guilt before him

to the I.O. and other villagers that he had killed the deceased

suspecting him to have practised witchcraft on his son.

21. The trial court further notes that the confession of the accused

to the I.O. is hit by Section 25 of the Indian Evidence Act.

However, the evidence of P.W.11 certainly lends

corroboration to the recovery of the weapon of offence at the

instance of the accused as deposed by the I.O.

22. The trial court also took note of the fact that the chemical

examination report of S.F.S.L., Bhubaneswar reveals that the

blood group on the weapon of offence, matched with the

blood found on the wearing apparels of the deceased.

23. The Trial Court, upon cumulative examination of evidence,

held the accused guilty of committing the murder of the

deceased, Baburam. Accordingly, the accused has been

convicted for offences punishable under Section 302 IPC.

III. APPELLANT'S SUBMISSIONS:

24. Learned counsel for the Appellant completely denied the

charges pressed herein and decried false implication. It was

submitted that the judgment of conviction and sentence

passed by the trial is unjust, illegal, improper and without

proper verification of the case record which is not sustainable

in the eye of law for the trial court failed to consider that this

case does not lie within the four corners of Section 302 I.P.C.

Signature Not Verified pg. 9 Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Secretary Reason: Authentication Location: OHC, Cuttack Date: 18-May-2023 13:57:32

25. It was submitted that P.W.2 is the wife of the deceased and

sole eye witness to the occurrence. She had stated that while

she was 15 ft ahead of her deceased husband, the accused

appellant suddenly appeared on the road and assaulted her

husband by a 'tangia' on the right side of his neck and fled

from the spot. It was submitted that it is contradictory to the

medical report of the P.W.15 which shows that the injury is

found on the left side of the neck of the deceased. Therefore

the ocular version of the eye witness is not corroborated by

the medical opinion of the doctor. So, the statement of the sole

eye witness should not be accepted.

26. It was submitted that the fact that the weapon of offence i.e.

'tangia' by the I.O. (P.W.16) was found after the confessional

statement of the appellant is doubtful. There is no

independent eye witness to corroborate the statement except

P.W.11. P.W.2 and P.W.10 have not supported to the

prosecution case and the evidence of P.W.11, who appears to

be a stock witness, cannot support the prosecution case.

Moreover, the said 'tangia', as alleged by the prosecution, is

also not produced in the court at the time evidence which is

also casts doubt on the prosecution case.

27. It was also argued that both P.W.1 and P.W.4 are post-

occurrence and hearsay witnesses to the occurrence.

Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR pg. 10 Designation: Secretary Reason: Authentication Location: OHC, Cuttack Date: 18-May-2023 13:57:32 Therefore, their evidence should not be taken into account by

the court.

28. It was contended that P.W.4, who in his evidence, stated that

much prior to the alleged occurrence he had seen the accused

appellant was sitting by the side of the road by holding an axe

in his hand. However, his statement has not been

corroborated by any other witnesses.

29. It was further submitted that the motive of the purported act

is also doubtful. At one hand it is stated that there land

dispute between the parties. On the other hand it is stated that

the deceased was suspected by the appellant of practising

witchcraft.

IV. RESPONDENT'S SUBMISSIONS:

30. Learned counsel on behalf of the prosecution countered the

submissions of the appellant by contending that the testimony

of P.W. 2 is quite clear and cogent. Her testimony also

corresponds to the post-mortem report and deposition of

other P.Ws.

31. It was submitted that while there seems to be a slight

contradiction in the deposition of P.W.2, it is a common and

trivial mistake which is understandable since P.W.2 is

illiterate, and at the time of occurrence, was intoxicated.

32. The prosecution submitted all in favour of the findings

returned by the Trial Court in holding the accused to be the

Signature Not Verified pg. 11 Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Secretary Reason: Authentication Location: OHC, Cuttack Date: 18-May-2023 13:57:32 author of the crime. According to him, the Trial Court on

detail analysis of evidence on record did commit no error in

returning the finding that the prosecution has established its

case against the accused in causing the murder of Baburam

beyond reasonable doubt and therefore, the judgment of

conviction and order of sentence are not liable to be interfered

with.

V. COURT'S ANALYSIS AND REASONING:

33. Keeping in view the submissions made, we have carefully

read the judgment passed by the Trial Court. We have also

bestowed our due attention to the evidence on record, both

oral and documentary.

34. At the outset, there is no dispute over the fact that the

deceased, Baburam @ Kiti Singh, met a homicidal death,

which has been well established through the doctor

conducting the autopsy over the dead body of the deceased

and in view of his opinion remaining unchallenged as to the

cause of death.

35. In the given case, we cannot help but notice that the story

embroidered by the prosecution is dominantly based on the

testimony of P.W.2. It is no doubt that there is only one eye

witness who is also a relative of the deceased, viz. his wife.

But it is well-settled that it is quality of evidence and not

quantity of evidence which is material. Quantity of evidence

Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR pg. 12 Designation: Secretary Reason: Authentication Location: OHC, Cuttack Date: 18-May-2023 13:57:32 was never considered to be a test for deciding a criminal trial

and the emphasis of Courts is always on quality of evidence.

So, the argument of the defence against presence of only one

eye-witness to the occurrence is not enough to dilute the case

of the prosecution.

36. The principle of law also rules that a conviction can be based

on sole eye witness testimony.1 The rider, however, remains

that in order to draw the inference as to the guilt of the

accused from such testimony the eye-witness shall be wholly

reliable. This is the test of Section 134 of Evidence Act.

37. Here, the counsel for the appellants has raised objections on

the reliability of the testimony of P.W. 1 calling her an

interested party of to the criminal occurrence. However, they

have not produced any substantial evidence or witnesses to

back their hypothesis. Per se, their accusation against P.W. 2 is

farfetched; based on conjecture and surmises.

38. The mere fact that the witnesses were relations or interested

would not by itself be sufficient to discard their evidence

straightway unless it is proved that their evidence suffers

from serious infirmities which raises considerable doubt in

the mind of the court.2

Amar Singh v. State (NCT of Delhi), (2020) 19 SCC 165; Sunil Kumar v. State (NCT of Delhi), (2003) 11 SCC 367

State of Gujarat v. Naginbhai Dhulabhai Patel, AIR 1983 SC 839

Signature Not Verified pg. 13 Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Secretary Reason: Authentication Location: OHC, Cuttack Date: 18-May-2023 13:57:32

39. Interested witnesses are not necessarily false witnesses.

Evidence of interested witness cannot be equated with that of

a tainted witness. There is no absolute rule that the evidence

of an interested witness cannot be accepted without

corroboration.

40. Further, "Related" is not equivalent to 'interested'. A witness

may be called 'interested' only when he or she derives some

benefit from the result of litigation; in the decree in a civil

case, or in seeing an accused punished. A witness who is a

natural one and is the only possible eye witness in the

circumstances of a case cannot be said to be 'interested'. Ergo,

the fact that P.W.2 is the wife of the deceased does not per se

discredit her testimony as the sole eye witness of the

occurrence.

41. Next, coming to the question of discrepancy in the testimony

of P.W.2, which cannot be brushed aside as the discrepancy is

minor one. The Supreme Court has pointed out that when eye

witnesses give all necessary details regarding assault,

weapons and role played by the accused and when the

presence of the eye witness is corroborated by other

witnesses, in such circumstances, the evidence of eye

witnesses cannot be simply thrown out or doubted on the

basis of some trivial contradictions. In the decision reported

Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR pg. 14 Designation: Secretary Reason: Authentication Location: OHC, Cuttack Date: 18-May-2023 13:57:32 in, Boya Ganganna v. State of Andhra Pradesh,3 the Supreme

Court has observed that minor contradictions are bound to

appear when ignorant and illiterate women are giving

evidence. Even in case of trained and educated persons,

memory sometimes plays false and this would be much more

so in case of ignorant and rustic women. The evidence given

by a witness would very much depend upon his power of

observation and it is possible that some aspects of an incident

may be observed by one witness while they may not be

witnessed by another though both are present at the scene of

offence, and therefore, it would not be right to reject the

testimony of such witnesses merely on the basis of minor

contradictions.

42. It must be taken into consideration that Mani Kui (P.W.2) is

an illiterate tribal woman who, at the time of the occurrence,

was intoxicated. A confusion of directions or sides, such as in

this case, is condonable. Therefore, the fact that P.W.2

mentioned the wrong side of injury can be ignored.

43. Here, we would like to assert that the testimony of the eye

witness need not include every minuscule detail of the

occurrence. It is enough that he is able to process the

happenings of the occurrence, identify the faces participating

and reproduce an unambiguous sequence of events. As

AIR 1976 SC 1541

Signature Not Verified pg. 15 Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Secretary Reason: Authentication Location: OHC, Cuttack Date: 18-May-2023 13:57:32 Bentham said, "Witnesses are the eyes and ears of justice. Hence

the importance and primacy of the quality of the trial process. Eye

witnesses' account would require a careful independent assessment

and evaluation for their credibility which should not be adversely

prejudged making any other evidence as the sole touchstone for the

test of such credibility. The evidence must be tested for its inherent

consistency and the inherent probability of the story; consistency

with the account of other witnesses held to be credit-worthy;

consistency with the undisputed facts; the `credit' of the witnesses;

their performance in the witness-box etc. Then the probative value of

such evidence becomes eligible to be put into the scales for a

cumulative evaluation." Ergo, in absence of any other

substantial argument by the defence, the testimony of P.W. 2

stands credible.

44. Other than the aforementioned contradiction, the version

adduced by P.W.2 is duly corroborated by the testimonies of

other P.Ws. and the post-mortem examination report. The

Doctor conducting the autopsy over the dead body of the

deceased has opined that the death was due to shock and

haemorrhage caused by mortal wounds inflicted on the neck

and the head. It has also been opined by P.W. 15 that the

wounds could have been inflicted by the weapons discovered

by the police. The evidence as above has remained credible.

Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR pg. 16 Designation: Secretary Reason: Authentication Location: OHC, Cuttack Date: 18-May-2023 13:57:32

45. In the light of these principles, we proceed to consider the

evidence of P.W. 15, which was tendered at the trial. The

injuries were, no doubt, numerous, but what is relevant is the

nature, and not the number of the injuries. A scrutiny of these

injuries evidence strong and mortal blows on the body and its

vital organs such as the neck veins. Most of the injuries were

grievous and evidently sufficient in the ordinary course of

nature to cause death. Besides, the weapons used in the

occurrence are of considerable importance. The use of 'tangia'

is symptomatic of an intention to kill. The above inferences

are enough for us to hold that this case is being appropriately

dealt under Section 302 IPC.

46. The appellant has also questioned the veracity of the

independent witnesses, P.W. 11. They have decried a case of

bias and allege that the witness is a 'stock witness'. Due to

this, the counsel for the appellant has challenged his

deposition as independent witnesses.

47. Indeed, one of the earliest observations with respect to

independent witnesses in criminal cases was made by the

Supreme Court in Dalip Singh v. State of Punjab,4 wherein

this Court observed:

"A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually

AIR 1953 SC 364

Signature Not Verified pg. 17 Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Secretary Reason: Authentication Location: OHC, Cuttack Date: 18-May-2023 13:57:32 means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relative would be the last to screen the real culprit and falsely implicate an innocent person."

48. We think, it would be unreasonable to contend that evidence

given by P.W. 11 should be discarded based on hypothetical

conjectures. The mechanical rejection of such evidence on the

sole ground that it is partisan would invariably lead to failure

of justice. While no hard and-fast rule can be laid down as to

how much evidence should be appreciated, in absence of any

credible evidence by the appellants to the contrary, the plea

that such evidence should be rejected because it is partisan

cannot be accepted as correct.

49. It has also been argued that P.W.11 is a stock witness.

However, despite cross-examination, no material could be

elicited to discredit his testimony. There is no reason as to

why he would falsely implicate the accused. There was no

suggestion of any motive for such alleged false implication.

There was not even a suggestion that the witness had any

animosity towards the accused. It is common experience that

public persons are generally reluctant to join police

proceedings. There is generally apathy and indifference on

the part of public to join such proceedings. It cannot be

disregarded that public does not want to get dragged in

Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR pg. 18 Designation: Secretary Reason: Authentication Location: OHC, Cuttack Date: 18-May-2023 13:57:32 police and criminal cases and wants to avoid them because of

long drawn trials and unnecessary harassment. We cannot be

oblivious to the reluctance of the common man to join such

raiding parties organized by the police, lest they are

compelled to attend police station and Court umpteen

number of times at the cost of considerable inconvenience to

them, without any commensurate benefit. It is an irony of fate

that in the face of all these, if an independent witness joins

police proceedings, then he is labelled as a stock witness of

the police. In the instant case, the witness has been an active

part of the investigation for he can translate the tribal

vernacular 'kolha' to odia language. However, in absence of

any strong argument against his credibility as an independent

witness, his credence cannot be negated.

50. Coming to the discovery of the weapon, it is trite in law that it

is always permissible to admit that portion of the evidence in

the statement under Section 27, Evidence Act, which merely

leads to the discovery of any fact. Any other incriminating

statement combined with that should be ignored. The fact that

both these statements are part of one statement given by the

accused would not make that portion relating to the discovery

inadmissible in evidence. Ergo, the discovery of weapon from

the appellant is admissible but his confession is not.

Signature Not Verified pg. 19 Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Secretary Reason: Authentication Location: OHC, Cuttack Date: 18-May-2023 13:57:32

51. Nonetheless, even if it is accepted that the discovery of

murder weapon is precarious and inadmissible, the

prosecution case is credible given the consistent depositions

of the P.Ws. In State v. Laly @ Manikandan,5 the Supreme

Court has held that:

"Similarly, assuming that the recovery of the weapon used is not established or proved also cannot be a ground to acquit the accused when there is a direct evidence of the eye witness. Recovery of the weapon used in the commission of the offence is not a sine qua non to convict the accused. If there is a direct evidence in the form of eye witness, even in the absence of recovery of weapon, the accused can be convicted. Similarly, even in the case of some contradictions with respect to timing of lodging the FIR/complaint cannot be a ground to acquit the accused when the prosecution case is based upon the deposition of eye-witness."

52. The evidence in this case is clear to the effect that the

appellant was clearly involved in this crime. Albeit, some

minor discrepancies, the depositions of the P.Ws., including

eye-witness P.W.2, are credible and consistent. The

prosecution has adduced sufficient evidence to show that the

appellant was present at the spot at the time of the crime. The

defence has been blatantly unsuccessful in rebutting their

claim. Furthermore, the samples collected during the

2022 SCC online SC 1424

Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR pg. 20 Designation: Secretary Reason: Authentication Location: OHC, Cuttack Date: 18-May-2023 13:57:32 investigation and the later post-mortem also solidifies the

story of the prosecution.

53. It is significant to notice that the defence has been unable to

provide a satisfactory explanation to the accusations of the

prosecution save rebut them effectively. We are aware of the

fact that it is not necessary for the appellant to adduce

evidence in their favour and they can rely on the evidence

adduced by the prosecution to show that the prosecution has

not succeeded in establishing the case beyond reasonable

doubt. In the present case, the entire evidence has already

been discussed and it has been found that the circumstances

relied on by the prosecution have been established. Herein,

the non-explanation or the false explanation given by the

appellant person is yet another circumstance which goes

against them.

VI. CONCLUSION:

54. There is no reason to believe that the appellant has been

falsely implicated in this case. No such suggestion was made

by the witnesses or the investigating officer. All the

circumstances relied on by the prosecution have been proved

and they form a chain which leads to the only conclusion that

the offence must have been committed by the appellant

persons.

Signature Not Verified pg. 21 Digitally Signed Signed by: BHABAGRAHI JHANKAR Designation: Secretary Reason: Authentication Location: OHC, Cuttack Date: 18-May-2023 13:57:32

55. The result is that this Appeal is without merits and the same

is liable to be dismissed. We do so, confirming the conviction

and sentence passed by the court below.

56. Accordingly, this Appeal is dismissed.

( Dr. S.K. Panigrahi ) Judge

D. Dash, J. I agree.

( D. Dash ) Judge

Orissa High Court, Cuttack, Dated the 17th May, 2023/B. Jhankar

Signature Not Verified Digitally Signed Signed by: BHABAGRAHI JHANKAR pg. 22 Designation: Secretary Reason: Authentication Location: OHC, Cuttack Date: 18-May-2023 13:57:32