JUDGMENT : B. Panigrahi, J. - This is an appeal filed by the accused against the JUDGMENT of the Sessions Judge, Balasore, in S.T. No. 55 of 1995, whereby and whereunder the accused-appellant was convicted u/s 302, Indian Penal Code, and sentenced to undergo rigorous Imprisonment for life. 2. The skeletal picture of the prosecution story as revealed from the judgment of the trial Court is as follows: Accused-appellant Arjun and Phulamani (P.W. 2), daughter of P.W. 6, had some love arrairs three years prior to the date of occurrence which culminated in a non-traditional marriage in Gopinath Jew Temple, Remuna immediately following such marriage, the Appellant was living as a domestioated son-in-law in the parental house of P.W.,2" and out of their wedlock, a son was born, but their relationship did. not continue cordially. Some time afterwards, P.W. 2 went to the matrimonial house and stayed there for some time, but as it is alleged, she was subjected to physical torture by the Appellant and his mother as a reason whereof she was compelled to leave the matrimonial house and come to live in the house of her father. It is the further case of the prosecution that due to insufficiency of space in her father's house, on the fateful night she came and stayed with her maternal grandfather, the deceased. On 25.9. I 995 night around 10 P.M. to 11 P.M., she was sitting with her infant male child, near the entrance door; deceased Baina Dalei along with P.W. 5 Chhota alias Purna Dalei were sleeping on the verandah. All of a sudden, P.W. 2 heard a sound "ARJUNA MOTE HANI OELA" (the Appellant had dealt cut blow on me). Therefore, P.W. 2 woke up and found that the Appellant dealt a second blow and thereafter took to his heels with the weapon of offence. Before the trial Court, the Appellant as well as another co-accused Mangulia Dalei were prosecuted for having committed the offence of murder u/s 302/34, I.P.C., but the trial court on analysis of the evidence, recorded an order of acquittal of Mangulia Dalei, but held the Appellant guilty for commission of the offence. Immediately after such blows had been inflicted on the deceased, he raised alarm by stating that the Appellant had killed him. Immediately after such blows had been inflicted on the deceased, he raised alarm by stating that the Appellant had killed him. P.W. 1, the widow of the deceased, verbally informed the incident to the police, who reduced the oral report into writing and treated the same as F.I.R. and registered a case u/s 307, I.P.C. against the Appellant and accused Mangulia. Immediately after this, injured Baina Dalei was shifted to the hospital and in course of treatment he succumbed to the injuries and the case was converted into one of murder punishable u/s 302 I.P.C. Post?mortem examination of deceased had taken place and the doctor found that there were two external injuries which were sufficient in ordinary course of nature to cause death. On receipt of the F.I.R., the Investigating officer arrested the Appellant was well as Mangulia Dalei. and on the basis of discovery statement of the accused, the weapon of offence was recovered from a heap of straw kept in the front from of the house of the Appellant. The police has also seized the blood-stained clothes and gunny bags and those were chemically examined and after closure of investigation charge-sheet was placed against both the accused persons. 3. The defence plea was one of complete denial of the occurrence. 4. The learned trial Court on appraisal of the evidence recorded an order of acquittal of Mangulia Dalei and convicted the Appellant and sentenced him to undergo imprisonment for life. Hence, the present appeal. 5. Mr. Sahoo, the learned Counsel appearing for the Appellant vehemently argued that in the instant case, the prosecution had relied upon the evidence of only two alleged eye witnesses, namely P.W. 2 and 5. The trial Court unnecessarily placed undue emphasis on their oral testimony and did not consider the inconsistencies and improbabilities in their evidence before the Court as well as in their statements recorded during investigation. P.W. 2 is none else than the wife of the Appellant and there was no love lost between them prior to the incident. Therefore, in this background, the evidence of P.W. 2 should have been examined with closer scrutiny and more circumspection. It has been stated that a lantern which was used as a medium to identify the assailant was not seized, nor P.W. 2 stated before the I.O. that she could identify the Appellant with the light of the lantern. Therefore, in this background, the evidence of P.W. 2 should have been examined with closer scrutiny and more circumspection. It has been stated that a lantern which was used as a medium to identify the assailant was not seized, nor P.W. 2 stated before the I.O. that she could identify the Appellant with the light of the lantern. It has been further highlighted that in a winter night it was unexpected for any person to remain awake till late midnight so that he or she can identify the actual culprit at the time of commission of the offence. While examining such submission, we were taken through the evidence of P.W. 2. She has stated that due to insufficiency of accommodation in her father's residence she came and stayed in the house of the deceased in the night. It cannot be said to be unlikely that a granddaughter living with her grandfather due to insufficiency of accommodation. Moreover, the deceased had also advised P.W. 2 to leave her matrimonial house and stay in the parental abode. The prosecution has adduced evidence that there was a quarrel between the deceased and the Appellant where the Appellant caused threat at to the deceased to do away with him. Therefore, in such situation, there would not be any doubt on the part of the deceased to identify the Appellant at the time of assault. 6. It has been further submitted that there has been no evidence as to at what distance P.W. 2 was sitting with her child on the lap. On examining the evidence, we find that she was reclining near the door with her male child on her lap and the deceased was sleeping on the outer verandah. The spot-map prepared by the I.O. disclosed the place where P.W. 2 was sitting and the place where the deceased was sleeping on the outer verandah. During investigation she has stated that she noticed two blows to have been inflicted on the deceased, but in evidence she positively stated to have noticed only one blow. From the evidence of the doctor, who conducted the post-mortem, it has been elicited that even if one blow is inflicted, such type of injuries can also be possible. Even assuming that there was some inconsistency, but that being minor in nature, for that reason alone, the statement of P.W. 2 cannot be treated as suspicious. From the evidence of the doctor, who conducted the post-mortem, it has been elicited that even if one blow is inflicted, such type of injuries can also be possible. Even assuming that there was some inconsistency, but that being minor in nature, for that reason alone, the statement of P.W. 2 cannot be treated as suspicious. Moreover, it is not expected of the wife, although enmity might have been there between P.W. 2 and her husband, the Appellant, that she would ordinarily bring false-allegation of murder against her own husband. 7. P.W. 5 has stated to have slept on the verandah to the west of the deceased in the night of occurrence. He wore up when the accused persons removed the napkin from his face. Accused Arjun showed Katari asking not to raise voice. He further stated that Mangulia Dalei (since acquitted) stood near him, when accused Arjun dealt Katari blows on the deceased, whereafter the accused persons left the spot together. In cross-examination, he further stated' "5. After the napkin from my face was removed I found accused Arjun standing near may head. After the threats given by accused Arjun I slept on my back putting napkin on my face but my eyes were open and I was awake. Accused Manguli was standing near my head. After the accused persons left the spot I removed the napkin from my face and got up." Mr. Sahoo, learned Counsel appearing for the Appellant, again contended that it was not possible to witness the occurrence through the napkin because once the person's face is covered, it was unlikely to witness the occurrence. It is not elicited in cross-examination as to the type of napkin used by P.W. 5, whether it was netted or thin one or too thick to notice the incident. In the absence of such event, the evidence of P.W. 5 could not have been brushed aside and there is no earthly reason as to why the evidence of P.W. 5 should be shorn. Even apart from the evidence of P.W. 5, there are ample evidence to establish that the deceased uttered the name of the Appellant that he was the assailant which was accepted by the learned Sessions Judge as a 'dying declaration'. The weapon of offence also was seized at the instance of the Appellant from his house. Even apart from the evidence of P.W. 5, there are ample evidence to establish that the deceased uttered the name of the Appellant that he was the assailant which was accepted by the learned Sessions Judge as a 'dying declaration'. The weapon of offence also was seized at the instance of the Appellant from his house. Therefore, the cumulative effect of all these evidence would raise no amount of suspicion that it was the Appellant and the Appellant alone who was the author of the crime. 8. No other point having been canvassed by Mr. Sahoo in displacing the case of the prosecution, we are, therefore, constrained to uphold the conviction and sentence recorded by the learned Sessions Judge. Accordingly, the appeal having no merit is, therefore, dismissed. The conviction and sentence passed by the learned Sessions Judge are hereby affirmed. Final Result : Dismissed