D. Dash, J.

1. The Appellant, by filing this Appeal, has called in question the judgment of conviction and order of sentence dated 31.10.2017 passed by the learned Additional Sessions Judge, Rairangpur, in Sessions Trial Case No.46 of 2015 arising out of G.R. Case No.440 of 2013 (T.C. No.309 of 2015) of the Court of the learned S.D.J.M., Rairangpur.

The Appellant (accused) has been convicted for commission of offence under section-302 of the Indian Penal Code, 1860 (for short ‘the IPC’) and accordingly, he has been sentenced to undergo imprisonment for life and pay fine of Rs.10,000/- with default stipulation to undergo rigorous imprisonment for a period of three months.

2. Prosecution case is that on 14.08.2013 night, Sarbeswar Giri (deceased) was sleeping in his shop room. It was around 2.30 a.m., on 15.08.2013, Santosh Giri, who happens to be the son of Sarbeswar Giri, got an information that his father has died. Hearing the same, when he went and found his father lying dead in the road side hotel (dhaba) situated in front of the shop room. One Samu Naik, who was staying in that road side hotel, being asked disclosed that his father had been killed by the accused namely, Chhotu @ Mukunda Lohar. Having come to know the fact from Samu Naik (P.W.11); Santosh Giri (informant-P.W.1) when presented the written report before the Inspector-in-Charge (IIC) of Bisoi Police Station to the above effect, case was immediately registered and investigation commenced.

3. The IIC (I.O.-P.W.14) in course of investigation, examined the informant (P.W.1), visited the spot i.e. the road side hotel owned by one Sunil Giri situated at Budhamara Chowk. Finding the dead body to be lying there, he held inquest over the dead body and prepared the report. He then sent the same by issuing requisition for post mortem examination. He also examined other witnesses including Samu Naik (P.W.11), seized the incriminating articles which he collected in course of investigation under separate seizure lists. On completion of investigation, the I.O (P.W.14) submitted the Final Form placing the accused to face the trial for commission of offence under section 302 of IPC.

4. Learned SDJM, Rairangpur, on receipt of the Final Form as above took cognizance of the said offences and after observing formalities committed the case to the Court of Sessions. That is how the trial commenced by framing the charge for the above offences against the accused.

5. In the Trial, the prosecution in total has examined fourteen (14) witnesses. Out of them as already stated P.W.1 is the informant, who happens to be the son of the deceased and P.W.11 is the said eye witness who had disclosed the incident implicating the accused as the author of the crime in intentionally causing death of Sarbeswar before P.W.1. The Doctor, who had conducted the autopsy over the dead body of Sarbeswar has come to the witness box as P.W.8 and the Investigating Officer has appeared at the end as P.W.14.

6. The prosecution besides leading the above witnesses has also proved several documents which have been admitted in evidence and marked Ext.1 to 9. Out of those, the FIR is Ext.1, Inquest Report is Ext.2/3 and the Post Mortem Report is Ext.8. The seizure lists etc. have also been proved and marked as exhibits.

7. As it reveals from the evidence of P.W.8, the Doctor, who had conducted Post Mortem Examination over the dead body of Sarbeswar, the death was on account of asphyxia resulting from strangulation. The post mortem examination being held on 15.08.20113, it has been deposed by P.W.8 that the death was within 24 hours of his examination. He has stated in his evidence to have noticed during Post Mortem Examination bleeding from both the nostrils and mouth, bruise over occipital region of the size of 3x8 c.m., lacerated injury over right hand elbow, abrasion over right buttock, lacerated injury over right hand, dorsal aspect and bruise on right wrist portion. It is also been his evidence that the neck of the deceased was found tied with a cotton dhoti and knot was present over the trachea with face cyanised (bluish), tongue bitten by teeth. Ligature mark was completely encircling the neck 3 c.m. breadth below the thyroid cartilage with knot mark on the anterior aspect of the trachea. On dissection, P.W.8 has stated to have found out white bant subcutaneous tissue with presence of patechial hemorrhage. The lymph nodes above and below the ligature mark were found congested and hemorrhage. He also noticed trachea to be continue the bloody mucous. With all such features being noticed during Post mortem examination, basing upon the same, his positive evidence is that the death was due to asphyxia on account of strangulation. It is also his evidence in reiteration of the opinion that he had given opinion in course of investigation being asked by the I.O (P.W.14) that asphyxia due to strangulation is possible by user of that dhoti. The deposition of P.W.8 being gone through, it is found that practically his evidence with regard to the cause of death basing upon the detail features which he noticed in support said opinion has not been shaken. With such evidence on record as also the evidence of P.W.14, who had held inquest over the dead body of the deceased and his report Ext.2/3, the nature of death of Sarbeswar as has been found out by the Trial Court to be homicidal stands affirmed. It may be stated here that the defence either before in the Trial Court nor before us has very much disputed this aspect of the case.

8. The defence being provided with the opportunity has neither examined any witness nor has proved any document in support of his plea of complete denial and false implication.

9. Learned counsel for the Appellant (accused) submitted that the entire case of the prosecution is based on the evidence of P.W.11. Inviting the attention of the Court to the deposition of P.W.11. He submitted that the Trial Court ought not to have relied upon the solitary testimony of P.W.11 to fasten the guilt of the accused in holding him to be the author of the crime, as according to him, the very presence of P.W.11 at the relevant time is quite doubtful and he having not disclosed the incident on his own before others and voluntarily to P.W.11 and rather has stated so being threatened by P.W.1, the Trial Court ought not to have held his evidence as safe to be relied upon. He further submitted that if the evidence of P.W.11 is kept beyond the arena of consideration, no other evidence being available on record to connect, the accused with the said death, he is entitled to be acquitted.

10. Learned counsel for the State refuting the above submission contended that there is no material on record to show that P.W.11 is not a witness of truth and as such his evidence is untrustworthy and not reliable. He submitted that this P.W.11 has narrated in detail with regard to the happening in that night and the specific role played by this accused which he had seen in his own eyes, being the person who was then sleeping by the side of deceased in cot. He further submitted that this P.W.11 too has narrated as to how and at what point of time he woke up and then saw the overtact committed by the accused. He submitted that there being no material on record that this P.W.11 been carrying with him, even any not remote reason to falsely implicate the accused, the Trial Court did commit no mistake in accepting the evidence of P.W.11 who has attributed the accused with the authorship of the crime in strangulating the deceased to death.

11. Keeping in view the submissions made, we have carefully read the impugned judgment of conviction passed by the Trial Court. We have also gone through the depositions of the witnesses and more importantly that of P.W.11 and have perused the documents admitted in evidence from the side of the prosecution and marked Exts.1 to 9.

12. Prosecution case is that in the night of 15.08.2015, the incident took place in the road side dhaba owned by one Sunil Giri which situates in front of the shop room of the accused. The son of the deceased (P.W.1) when was in his house, which is situated at a distance of 3 k.m. from the said road side dhaba. He was informed by that Sunil Giri, who happens to be his cousin brother and he is none other than the owner of the road side dhaba that his father had been killed. It is the evidence of P.W.1 that having gone to the place, he found his father lying dead in a cot in that road side dhaba. He has further stated that one Jhantu, who was working in that road side dhaba told him that accused had killed his farther Sarbeswar by pressing his neck by means of a dhoti. This Jhantu has been examined as P.W.11, who is the star witness of the prosecution. Sunil Giri, who is the owner of that dhaba has been examined as P.W.3. It is his evidence that when he was in his house in the night, he got a telephonic message from a driver of the truck that his elder brother, Sarbeswar was lying dead in a cot in his dhaba and he, therefore informed the son of the deceased i.e. P.W.1 and his another cousin brother P.W.2. He has stated that then he with P.W.1 and 2 rush to the dhaba and found deceased lying on a wooden cot placed in his dhaba. The worker of that Dhaba i.e. P.W.11 searched for and sometime later, he was traced as sleeping in a dhaba hotel situated in a nearby place. He has stated that on enquiry, P.W.11 disclosed that when he was sleeping with the deceased in a cot adjoining the cot where the deceased was sleeping, accused came and climbing over the body of the deceased put dhoti around his neck and stretched both the ends that dhoti which caused the death of Sarbeswar. The disclosure of P.W.11 appears to be immediate on being first asked. P.W.1, P.W.2 and P.W.3 have not stated that P.W.11 then was avoiding to say so and on being insisted upon, he disclosed. It has also been stated by P.W.1, P.W.2 and P.W.3 as to what that P.W.11 told before them that how he could see the incident, having woke up from the sleep and that as per his evidence was due to forceful kicks from the deceased who at the act of the accused at first did so which is quite natural.

13. With such evidence of P.W.1, P.W.2 and P.W.3, We find P.W.11. to have stated that he had seen the accused asking something from deceased when the accused was in his shop and it was around midnight. His further evidence is that after that quarrel ensued between the deceased and accused and they fought with each other and in the process, Sarbeswar had sustained some bleeding injuries on his hands which he had noticed being shown by Sarbeswar, who had told that it was the result of the attack upon him by the accused. This P.W.11 further states that after sometime when he with Sarbeswar came to the dhaba and they slept on two wooden cots lying side by side. It is also his evidence that he asked Sarbeswar to go for sleep and about half an hour thereafter accused arrived, and put up that dibiri lamp which was nearby and then climbing upon the chest of the Sarbeswar pressed his neck by placing down the dhoti around his neck. It is further stated that Sarbeswar under pain, then to save himself pushed his legs and hands violently and in that process this P.W.11 who was on the side by cot, fell down. The accused thereafter threatened this P.W.11 to leave the place andso saying, he ran away. This witness during cross-examination has stated that to have not called anybody at the time of occurrence and to have also not raised any hue and cry. This omission in our view, under the circumstance narrated, as by this P.W.11 had divulged before P.W.1, P.W.2 and P.W.3 is not of consequence to give rise to any doubt in our mind that this P.W.11 is a got up witness. Keeping in view the time when the incident took place and the mood of the accused which this P.W.11 has narrated, he is not seen to have shown any abnormal conduct in remaining silent. Especially when he has stated to have been seriously threatened by the accused that is not shaken. The defence when has thrown a suggestion to the witness that he is the author of t e crime that being denied in clear terms and as nothing surfaces in the evidence of P.W.1, P.W.2 and P.W.3 that they had noticed any such abnormal behavior/conduct with P.W.11 when they asked him as to how the deceased was killed, the adverse comment upon his evidence as made by the learned counsel for the Appellant is found to be having no face at all. Furthermore, it is nowhere in the evidence that this witness P.W.11 had even any remote reason with him to falsely implicate the accused. We also find that this P.W.11 has withstood the cross-examination successfully and despite scathing crossexamination he has remained firm in him version that he had seen the accused strangulating the deceased to death by that dhoti which had been tied around the neck. True it is that the prosecution has not been able to prove the motive behind this crime. But that in view of the evidence of P.W.11 receiving full corroboration from the evidence of P.W.1, P.W.2 and P.W.3 on the material facts as to the final act of the accused, pales into insignificance and thus stands irrelevant for the purpose. No such doubtful feature emanate from the evidence of P.W.11 when side by side read with the evidence of P.W.1 to 3, We find no reason to discord the evidence of P.W.11 in branding her to be an untrustworthy witness. His evidence appears to be wholly reliable standing corroborated by evidence of P.W.1, P.W.2 and P.W.3 as also the evidence of P.W.8 and P.W.14 and the evidence of this P.W.11 also does in no way appear to be materially contradicting with the evidence of P.W.11 who had reiterated everything what he had stated during his examination under section 164 Cr.P.C. in course of the trial. And we too find no such great variance as of significance which would stand as an impediment for acceptance of his evidence.

On a conspectus of discussion of evidence as hereinabove, We are of the view that the finding of guilt recorded by the Trial Court against the accused for commission of the offence under section 302 of the IPC is well in order and the accused has rightly been convicted thereunder.

14. In the result, the Appeal stands dismissed and the judgment of conviction and order of sentence impugned in this Appeal are hereby confirmed.