JUDGMENT
R.K. Dash, J.
1. Tutu alias Biswajit Pattanaik (appellant herein) stood charged with having committed an offence Under Section 302, of the Indian Penal Code (hereinafter referred to as ‘IPC’) whereas one Anam Das alias Bhoi (since acquitted) stood charged Under Section 212, IPC. Upon trial, the learned Sessions Judge, Puri while acquitting Anam Das of the charge, convicted the appellant Under Section 302, IPC and sentenced him to undergo imprisonment for life. Aggrieved by the judgment and order of conviction, the appellant has preferred the present appeal.
2. The pith and substance of the prosecution case culled out during trial may be stated thus :
Budharama Narayan Mohapatra alias Gedu (hereinafter referred to as ‘deceased’) was the driver of a Matador vehicle bearing Registration No. OAC 825. On 13.11.1989 in the afternoon, he left with the vehicle from Puri to Brahmagiri. The appellant travelled in the said vehicle sitting by the side of the deceased. On the same day, the vehicle returned to Puri and reached at 8.45 P.M. Besides the appellant, there were four passengers who alighted from the vehicle and left for their home. The appellant got down from the vehicle and had some discussion with the deceased, in course of which he whipped out a knife and stabbed the deceased on his abdomen, shoulder, arm and forehead. Being so assaulted, the deceased ran for life. The appellant chased him shouting that he would not spare him. After running for a while, the deceased fell under a cocoanut tree. Babula Dalei (P.W. 7), the helper of the Matador vehicle raised hue and cry, but nobody did dare to come to the rescue of the deceased. He then went to the house of Gopala Nayak (P.W. 1) situated nearby, narrated the incident to him whereafter both of them came to the place where the deceased was lying injured and carried him to the hospital. On the way, Magi alias Satyanarayan Mohapatra (P.W. 8) brother of the deceased joined them. They brought the deceased to the casualty department of the District Headquarters Hospital, Puri for treatment where he succumbed to the injuries. It is further stated that the deceased on being asked by his brother (P.W. 8) as to how he received the injuries, stated that he was stabbed with a knife by the appellant. On the very night of occurrence Magi alias Satyanarayan Mohapatra (P.W. 8) lodged FIR at Town P.S. on the basis of which a case Under Section 302, IPC was registered and after due investigation charge-sheet was laid against the appellant to stand trial for the said offences.
3. The appellant while denying the prosecution case, pleaded that the deceased attempted to stab on his abdomen with a knife and missed the aim, as a result the knife struck on his right knee. Then he chased and assaulted him causing injuries on both the palms. Again when deceased attempted to strike, there was a scuffle in course of which the knife pierced into his (deceased’s) abdomen.
4. The prosecution in order to bring home the charge to the appellant examined 15 witnesses and brought in evidence the post mortem report, serologist report, etc. and the learned trial Judge after evaluation of the evidence held the appellant guilty of the charge and convicted and sentenced him as hereinbefore stated.
5. Shri S.C. Mohapatra, learned counsel for the appellant assailing the judgment and order of conviction has urged that the evidence of sole eye-witness (P.W. 7) being inconsistent with the medical evidence, the learned Court below should not have relied upon the same to base conviction. He has further urged that as deposed to by P.W. 7, there was another witness present at the spot who was withheld from the witness box, and no explanation having been offered for his non-examination, adverse inference should have been drawn against the prosecution. It is further contended that the learned trial Court relied upon that part of the evidence of P.Ws. 1, 7 and 8 which according to it is the dying declaration of the deceased and the evidence of the aforesaid three witnesses being discrepant, the same should not have been accepted as true without being sufficient corroboration. A further contention has been made that the evidence of P.W. 3 with regard to extra judicial confession of the appellant does not inspire confidence since nothing is borne-out as to why the appellant selected him to repose confidence to make such statement implicating himself in the assault to the deceased. Lastly it is urged that even if prosecution case is accepted on its face value, yet circumstances reveal that there was hot discussion during which the appellant assaulted the deceased and therefore, he would be liable Under Section 304, Part I and not 302, IPC, since as would appear from the evidence the incident occurred at the spur of the moment and the appellant had no intention to cause the death of the deceased.
6. Shri Behera, learned Addl. Government Advocate controverting the aforesaid submission urged that the learned trial Court on a thread bare discussion of the evidence and the attending circumstances has rightly held the appellant guilty of the charge and no sufficient ground is made out to upset the same in the present appeal. Elaborating his argument Shri Behera contends that P.W. 7 is a witness of truth and his evidence being unimpeachable, inspires confidence and the learned trial Court, who had the occasion to mark his demeanour, has after proper evaluation accepted his evidence that it was the appellant who stabbed the deceased with a knife and caused his murder. Besides the ocular account of P.W. 7, contends Shri Behera, the other circumstantial evidence, such as dying declaration and the extra judicial confession, as deposed to by other witnesses, make the evidence of solitary eye-witnesses credit-worthy. In that view of the matter, the impugned judgment and order of conviction being impeccable deserves no interference in the present appeal.
7. The fact that the deceased received ante mortem injuries and died a homicidal death has not been disputed by the appellant.
8. The evidence on which the prosecution relied upon to establish the charge may be catalogued as follows :
(i) Ocular account of the sole eye-witness P.W. 7;
(ii) Oral dying declaration of the deceased to P.W. 1, 7 and 8;
(iii) Extra judicial confession of the appellant made before P.W. 3;
(iv) Stains of human blood of Group-B, which is the blood group of the deceased found on the Dhotis belonging to the appellant.
9. What was the motive for the crime is neither borne out from the averments made in the FIR nor from the statements of the witnesses. However, as we find from the evidence of P.W. 1, a girl Sumi alias Sumitra by name was the cause for the macabre. As deposed by him, both appellant and the deceased were visiting Sumitra without the knowledge of the other and it was the appellant who at last eloped with her and kept her in his house in order to marry her. Except this evidence, nothing is borne out from the record that the relations between the appellant and the deceased were strained on account of said girl. A criminal act is always preceded by a motive, and therefore, motive plays an important role and becomes a compelling force to commit the crime. It is not always possible for the prosecution to prove motive since motive is known to the perpetrator of the crime. But once motive is ascribed, it is the bounden duty of the prosecution to prove the same like any other evidence. In the present case, since no motive was ascribed to the appellant, we need not search for the same to know as to what impelled the appellant to suddenly stab the deceased and to commit his murder.
10. Coming to the ocular account of P.W. 7, we have scrutinised his evidence with the assistance of the counsel appearing for the parties. He has given a graphic picture as to how the incident occurred. He was the helper of the vehicle. He stated that the appellant got down from the vehicle after opening the door of the driver’s side and talked something with the deceased. At that time the vehicle was in start. Suddenly, the deceased shouted that he was killed, hearing which he came out from the vehicle and noticed the appellant pulling out the knife from the abdomen of the deceased. His evidence would reveal that the appellant further assaulted the deceased on the forehead, shoulder and the right arm whereupon he ran for life. The appellant chased him saying that he would finish him. During cross-examination he candidly admitted that he had not seen the first blow that was inflicted on the abdomen of the deceased. He however, categorically stated that he had seen the appellant pulling out knife. His evidence has been commented by Shri Mohapatra mainly on the ground that his statement is in conflict with medical evidence, inasmuch as, according to the autopsy doctor (P.W. 13)- besides injuries on abdomen and parietal region (head) the deceased had one cut injury on the left elbow joint; whereas P.W. 7 while corroborating first two injuries stated that the deceased also sustained injuries on the right arm and shoulder. Basing on such discrepancy, it is contended that implicit reliance should not be placed on the evidence of P.W. 7 and to act upon it. Needless to mention that human memory is short. Therefore, when a witness to the incident is examined in the Court after a year or so, he may not place the facts in seriatim and some discrepancies are bound to occur in his evidence and those discrepancies if do not affect the substratum of the prosecution case, the same should not weigh in the mind of the Court to cast a doubt on his veracity. In the present case, the discrepancy in the evidence of P.W. 7, as pointed out above, in our opinion, being trivial in nature, does not impeach his credibility.
11. It was not the prosecution case that besides P.W. 7, others had witnessed the incident: However, during cross-examination of P.W. 7 it was elicted that one Ganu Mohanty was near the spot and had seen the assault to the deceased. It is urged by Sri Mohapatra that the said witness being material one, in all fairness the prosecution should have examined him, and no explanation having been offered for his non-examination, adverse inference should have been drawn against the prosecution. It is an usual argument advanced in almost all criminal cases that for non- examination of a material witness, prosecution case should be viewed with suspicion. Section 134 of the Evidence Act is the answer to such argument which provides that no particular number of witness, shall in any case be required for proof of any fact. Supreme Court had the occasion to deal with such contention advanced on behalf of the appellant in case of Vadivelu Thevar v. The State of Madras : AIR 1957 SC 614. Their Lordships, on consideration of relevant authorities and provisions of the Evidence Act laid down the following propositions :
(1) As a general rule, a Court can and may act on the testimony of a single witness though uncorroborated. One credible witness outweighs the testimony of a number of other witnesses of indifferent character.
(2) Unless corroboration is insisted upon by statute, Courts should not insist on corroboration except in cases where the nature of the testimony of the single witness itself requires as a rule of prudence, that corroboration should be insisted upon, for example in the case of a child witness, or of a witness whose evidence is that of an accomplice or of an analogous character.
(3) Whether corroboration of the testimony of a single witness is or is not necessary, must depend upon facts and circumstances of each case and no general rule can be laid down in a matter like this and much depends upon the judicial discretion of the Judge before whom the case comes.
In view of the aforesaid authoritative pronouncement of the apex Court and on thorough scrutiny of the ocular account of P.W. 7, the sole eye-witness, we have no hesitation to rely upon his evidence and to act upon it.
12. The next item of evidence on which the prosecution sought to rely upon is the oral dying declaration of the deceased made before P.Ws, 1, 7 and 8. Shri Mohapatra, counsel for the appellant submits that the evidence of the above three witnesses being discrepant, it would be hazardous to accept the same on its face value. We have scrutinised the evidence of the aforesaid three witnesses and do not find the same to be discrepant. P.W. 1 stated :
“Gedu informed us that accused Tutu Pattanaik stabbed him with a knife on account of a girl named Sumi alias Su-mitra Sahu.”
P.W. 7 stated :
“Gedu informed his brother that accused Tutu stabbed him with a knife.”
P.W. 8 stated :
“Gedu told me that he was stabbed by accused Tutu with a knife.”
The aforesaid declaration of the deceased was made in the circumstances when he was being taken in the vehicle to the hospital. It was quite but natural that P.Ws. 1 and 8, who on being informed reached at the spot, must have enquired from the deceased as to how he received the injuries and accordingly the deceased must have answered to their query. We do not find any inherent improbability in the statements of the aforesaid witnesses about the deceased making a statement as to how he received the injuries and by whom.
13. The next item of evidence which was pressed into service is the confessional statement of the appellant, made before P.W. 3. It would appear from the evidence of the said witness that the appellant was his friend and when he (P.W. 3) was plucking cocoanuts, the appellant arrived there and asked for some money saying that he had not taken food for last two to three days. To the query of P.W. 3 as to why he had not taken food, the appellant replied that since he stabbed the deceased with a knife, the police was searching for him and he concealed his presence. On a close scrutiny of his evidence we do not find anything to have been brought out during cross-examination to impeach his credibility.
14. In course of investigation P.W. 15, the Investigating Officer seized two “dhotis’ on being produced by the appellant which were stained with human blood. These ‘dhotis’ alongwith the rexin of the vehicle stained with blood were sent for chemical examination and as borne out from the Chemical Examination Report (Ext. 18) human blood of Group-B which was the blood group of the deceased could be noticed in them. So, the find of human blood of Group-B, the blood group of the deceased in the ‘dhotis’ of the appellant is a clinching circumstance which corroborates the prosecution case. On an evaluation of the evidence, as discussed above, we concur with findings of the trial Court that on the fateful day the appellant stabbed the deceased with a knife which ultimately resulted in his death.
15. Now question arises whether the appellant would be liable Under Section 302 or 304, Part I, IPC. To repeat with, the appellant death successive blows to the deceased with a lethal weapon, of which the first blow on the abdomen was with a heavy force causing extensive injury. The deceased after receiving the injuries when ran for life, the appellant followed him to further assault. Such conduct of the appellant would apparently show that he was determined to put an end to the life of the deceased. Materials on record are not suggestive of the fact that there was a wordy dual between the appellant and the deceased in course of which the former lost his temper and inflicted blows with a knife. On analysis of the evidence, we are of the firm view that the appellant had the intention to cause the death of the deceased and with that end in view he assaulted him which ultimately proved fatal. Therefore, finding of guilt recorded against him Under Section 302, IPC does not call for any interference.
Resultantly, appeal fails and the same is dismissed.
P.K. Mohanty, J.
I agree.
