B.N. Misra, Acting C.J.

1. The two appellants have been convicted under Section 302/34, I.P.C., and sentenced to undergo imprisonment for life. They have also been convicted under Sections 201/34, I. P. C., and sentenced to undergo rigorous imprisonment for five years. The sentences have been directed to run concurrently.

2. The prosecution case may be briefly stated The two appellants belong to village Slindipadar. Deceased, Jigura Rupamajhi, belonged to village Sartulu. The distance between the two villages is approximately two miles. The deceased was an Adibasi and so are the two appellants and the two villages are Adibasi villages On 7.12.1980 around 8 a.m. the deceased left his house in the company of two other persons to fetch a fowl from village Rada to be used for the treatment of his daughter who had been ill for the past week. It is alleged that on his way to village Rada the deceased went to the house of the appellants and took Liquor. Thereafter the two appellants and the deceased went to Nadanga forest to drink Satapa juice and under a Salape tree the appellants assaulted the deceased with fist blows and kicks as a result of which the deceased died at the spot. It is further alleged that thereafter the appellants carried away the dead body of the deceased to Padhel Kuti forest and from there to Padasapanga forest where they discarded the dead body to conceal its presence and returned to their respective houses. In the meantime as the deceased had not returned home by the evening, his wife, P. W. 9 requested the deceaseds paternal uncle, P. W. 2, to go in search of the deceased. After two days the dead body of the deceased was found under a tamarind tree in Padasapanga forest, P. W. 2 informed P. W. 9 and then proceeded to Subarnagiri Out-post where he lodged a written report, Ext. 4, with the Assistant Sub-Inspector of Police, P.W. 10, on 10. 12. 1980 around 12 noon. P. W. 10 proceeded to the spot and held inquest over the dead body vide Ext. 5, the inquest report. P. W. 10 sent the dead body to the Government Doctor at Baliguda, P. W. 1, for post mortem examination. P. W. 10 seized blood stained earth, sample earth, blood stained stones, etc. from the spot vide seizure lists, Exts. 6 to 10. On 21-12-1980 P. W. 10 received the post mortem report from P. W. 1 to the effect that the death of the deceased was due to the injuries received by him and thereafter P. W. 10 drew up F. I. R., Ext. 11, on his own information and sent it to the Officer-in-Charge of Kothagarh P. S., P. W. 11, who registered the present case under Section 302, I..P.C. on 21-12-1980 at 7 p.m. On completion of investigation P. W. 11 submitted charge-sheet against the two appellants, The appellants were thereafter committed to the Court of Session.

3. The two appellants were tried for the offences under Section 302/34 and 201/34 I. P. C. At the trial 11 witnesses were examined on behalf of the prosecution and none on behalf of the defence. Prosecution also relied on documentary evidence. The defence plea is one of denial, in their statements recorded under Section 313, Cr. P. C., the two appellants have denied any knowledge about the occurrence and have further stated that they have been falsely implicated in the present case. The learned Sessions Judge who tried the case found the two appellants guilty under Sections 302/34 and 201/34, I. P. C, convicted and sentenced them there under as already noted.

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After discussing the facts, Their Lordships observed :

7. It appears from the evidence of the I. O. P. W. 11, that he had examined P. W. 3 on 24. 12. 1980 and P. W. 4 on 28. 12. 1980 Mr. Mohanty, learned counsel appearing on behalf of the appellants, has urged that in view of the delay in the examination of P. Ws. 3 and 4 their evidence should not be accepted. In support of his contention, learned counsel relied on two decisions of the Supreme Court reported in Balakrushna Swain v. The State of Orissa, and Ganesh Bhavan Patel and another v. State of Maharastra. In the former case , the. Supreme Court, infer alias observed that where the witness for no justificable reason was not examined for nearly 10 days and he was found to be telling falsehood on material aspects of the case, it became difficult to place any reliance on such testimony.

In the latter case the Supreme Court held :

"As noted by the trial Court, one unusual feature which projects its shadow on the evidence of P.Ws. Welji, Pramila and Kuvarbai and casts a serious doubt about their being eyewitnesses of the occurrence, is the undue delay on the part of the investigating officer in recording their statements. Although these witnesses were or could be available for examination when the investigating officer visited the scene of occurrence or soon thereafter, their statements under Section 161, Cr. P. C, were recorded on the following day. Welji (P. W. 3) was examined at 8 a. m., Pramila at 9.15 or 9.30 a. m., and Kuvarbai at 1 p. m. Delay of a few-hours, simpliciter, in recording the statements of eye-witnesses may not, by itself, amount to a serious infirmity in the prosecution case. But it may assume such a character if there are concomitant circumstances to suggest that the investigator was deliterately marking time with a view to decide about the shape to be given to the case and the eyewitnesses to be introduced. A catena of circumstances which lend such significance to this delay, exists in the instant case.

The principles decided in the aforesaid two cases of the Supreme Court can hardly have any application to the facts of this case which are clearly distinguishable. The village to which the appellants belong and the village to which the deceased belonged are very small Adibasi villages P. W. 2 has stated in cross-examination that there are only 5 to 6 houses in the two concerned villages. The present case under Section 302, IPC, was registered on 21. 12 1980. The learned Sessions Judge who had seen and heard these witnesses has accepted their evidence observing that these witnesses were illiterate and members of the Scheduled Tribes living in interior forest areas and it is quite likely that out of fear they have not disclosed the occurrence until after arrival of the police. Further nothing has been elicited in the cross-examination of these witnesses to suggest any motive on their part to falsely implicate the two appellants with a gruesome charge of murder. As already stated, P. W. 3 is the first cousin of the two appellants. Moreover, the evidence of P. Ws. 3, 4 and 8 cannot be discarded as untrustworthy merely because of delay in their examination by the police in the absence of any material indicative and suggestive of some unfair practice by the police (See Ranbir and others v. State of Orissa )

Thus on consideration we agree with the learned Sessions Judge that the evidence of P. Ws. 2, 3, 4, 8 and 9 together with the medical evidence clearly establishes the charges under Sections 302/34 and 201/34, IPC, against the appellants

8. In the result, this appeal is dismissed. The judgment of the learned Sessions judge is confirmed.

G.B. Pattnaik, J.

I agree