M. PAPANNA, J. ( 1 ) THE impugned judgment dated 30-9-1993 passed by the learned Additional Sessions Judge, Bargarh in S. T. No. 144/6 of 1992-93 convicting the accused-Kanista Barik under S. 302, I. P. C. and sentencing him to imprisonment for life is under callenge in the present criminal appeal preferred from Jail. ( 2 ) PROSECUTION case is that Mahadev Khamari (hereinafter referred to as "the deceased") and Saileshnandan Chhuria (P. W. 2) have taken lease of a stone quarry locally known as Tamparsara situated at Daltangarhpara, hamlet of village Bhaludunguri where accused (appellant) including accused-Jhumuru and Ramesh who have absconded after the occurrence were engaged as labourers to cut stone from the quarry for which they were paid a sum of Rs. 18,000. 00 towards the advance wages but the work done by them by the date of occurrence justified wages for Rs. 3000. 00 only. Accused Thelu and absconders Jhumuru and Ramesh were residing in a temporary hut at Bhaludunguri near the quarry site whereas accused Kanista (appellant) and Chandrasekhar were residing at Gambharipali. On 4-4-1992 at about 9. 30 p. m. the deceased accompanied by P. Ws. 1 and 2 had been to Bhaludunguri by a motor cycle to collect the balance amount which accused Thelu and absconders Jhumuru and Ramesh refused to return for which the quarrel among them ensued and at that juncture accused Kanista and Chandrasekhar who arrived at the spot joined hands with other accused persons and assaulted the deceased and P. W. 2 by means of a hammer and an iron rod. Accused Kanista dealt a fatal blow on the back of the head of the deceased by means of hammer (M. O. III) causing his death instantaneously. Bipin Pardia lodged FIR (Ext. 1) at Godhaga Police Out Post and set criminal law into motion by which Atabira Police investigated into the case and submitted charge-sheet against the accused persons. ( 3 ) THE accused persons who pleaded innocence took a defence plea that they were working as labourers under Thakur Pradhan (another lessee of the stone quarry) and they have been falsely roped in the case as P. W. 2 is inimical to Thakur Pradhan. ( 4 ) TO bring home the charges to the accused persons, prosecution examined as many as ten witnesses of whom P. Ws. ( 4 ) TO bring home the charges to the accused persons, prosecution examined as many as ten witnesses of whom P. Ws. 1 and 2 accompanied the deceased to the spot in the fateful night of occurrence; P. W. 3 is a Private Medical Practitioner at Larambha in whose clinic the deceased succumbed to the injuries soon after the incident; P. W. 4 is a witness to the inquest held by the police over the dead body of the deceased; P. W. 5 is an eye witness to the occurrence; P. W. 6 is a post occurrence witness; P. W. 7 is a seizure witness; P. Ws. 8 and 9 are the Investigating Officers whereas P. W. 10 is a Constable, who had carried the dead body to the V. S. S. Medical College Hospital for post-mortem examination. ( 5 ) ON the other hand, defence examined no witness in support of its stand taken during trial. ( 6 ) ON consideration of evidence of the P. Ws. on record, the learned trial Judge who held the accused Thelu Nag and Chandrasekhar Nag not guilty under Ss. 302/323/34, I. P. C. found accused Kanista Barik (appellant) guilty under S. 302, I. P. C. and convicted and sentenced him to imprisonment for life which is under challenge in the present appeal. ( 7 ) LEARNED counsel, Sri Subhagya Ketan Naik, for the appellant assailed the impugned judgment and order of conviction on the ground that the evidence on record has not been properly appreciated by the learned trial Judge and that on the self same facts and evidence when the co-accused have been acquitted of the charges, the conviction of the present appellant of the said charges is bad in law and is unsustainable. ( 8 ) ON the other hand, according to learned Addl. Govt. Advocate, Shri G. K. Mohanty, the impugned order of conviction and sentence being quite justified should not be interfered with, in this appeal. ( 9 ) IN view of the contentions raised by the learned counsel appearing for the appellant, we are called upon to examine the evidence of P. Ws. on record to see if the learned trial Judge has committed any illegality or irregularity in appreciating the evidence of the P. Ws. on record and thereby recording the order of conviction and sentence which is impugned in the present appeal. on record to see if the learned trial Judge has committed any illegality or irregularity in appreciating the evidence of the P. Ws. on record and thereby recording the order of conviction and sentence which is impugned in the present appeal. ( 10 ) TO begin with the medical evidence, the post-mortem report (Ext. 17) which we have perused, indicates injuries both external and internal, the delineation of which is as below :-external injuries (I) Bruise 3" x 1/2" red colour left deltoid direction above and downwards from back. (ii) Abrasion 1/2" x 1/2" on dried surface left kneel. (iii) Abrasion 2" x 1/2" situated 2" above right wrist on ulnar side of right forearm. (iv) Lacerated wound 2" x scalp deep on right forehead near hair line. (v) Lacerated wound 11/2" x scalp deep on right occipit. Internal injuries (i) Subperiorteal haematoma found on the left temporal, paraetal and both right and left occipital region and right frontal region. (ii) Fracture of skull 9" length situated 2" below the inion at back and 2" below the midline of left side. Extension on back at occipit 3" to right and surrounding to left 6" ending last above a level above the ear (L) root. (iii) Membrance of brain :- Tense intact on dissection subdural and subarachnoidal haematoma found all over the brain. Intracerebral haemorrhages were present. The aforesaid injuries were no doubt and undisputedly ante-mortem in nature caused by hard and blunt object and were sufficient in ordinary course of nature to cause death of the deceased instanteously and the cause of death of the deceased was due to injuries to skull and brain. The learned trial Judge relying on the post-mortem examination report (Ext. 17) came to hold that the injuries were ante-mortem in nature and the death of the deceased was homicidal which was never challenged by the defence during trial before him nor the learned counsel appearing for the appellant challenged the same before us in course of hearing of this appeal. The bone of contention raised at the bar is whether post-mortem report (Ext. 17) submitted by Dr. B. C. Das, who conducted autopsy over the dead body of the deceased having not been examined, can be relied upon. True it is that Professor (Dr. The bone of contention raised at the bar is whether post-mortem report (Ext. 17) submitted by Dr. B. C. Das, who conducted autopsy over the dead body of the deceased having not been examined, can be relied upon. True it is that Professor (Dr. B. C. Das) of F. M. T. Department of V. S. S. Medical College, Burla, conducted autopsy over the dead body of the deceased and submitted Ext. 17 but since his attendance could not be procured for the reasons that in the meantime he retired from service on sperannuation and his present address having not been furnished by the Department of Health, Orissa, the post-mortem report (Ext. 17) has been admitted into evidence under S. 32 of the Indian Evidence Act, in support of which the learned trial Judge has rightly relied on AIR 1989 SC 702 (Pritivi Chand v. State of Himachal Pradesh) wherein it has been held as follows (para 4):-"section 32 of the Evidence Act provides that when a statement, written or verbal, is made by a person in discharge of professional duty, whose attendance cannot be procured without an amount of delay, the same is relevant and admissible in evidence. "in the case at hand, attendance of the Medical Officer, who conducted autopsy over the dead body of the deceased and submitted Ext. 17, could not be procured without an amount of delay or expense which under the circumstancs of the case, appeared to the learned trial Judge unreasonable for which no illegality or irregularity has been committed by him in admitting Ext. 17 into evidence under S. 32 of the Indian Evidence Act. In the light of the proposition of law, the post-mortem examination report (Ext. 17) cannot be brushed aside merely for the reason that the Doctor who conducted the autopsy over the dead body of the deceased has not been examined and, in that view of the matter, we are cock sure that the deceased died a homicidal death. Accordingly, we hereby affirmed that the findings of the learned trial Judge that the injuries, as per Ext. 17, were ante-mortem in nature and the deceased died a homicidal death. Accordingly, we hereby affirmed that the findings of the learned trial Judge that the injuries, as per Ext. 17, were ante-mortem in nature and the deceased died a homicidal death. ( 11 ) NOW coming to most pertinent question, whether accused Kanista who is the appellant herein, is the real author of the felony, it is necessasry to examine P. W. 5, who is the sole natural witness to the occurrence. On thorough scrutiny of evidence of P. W. 5, we are convinced that he being a resident of Bhaludunguri, where the accused persons were residing in their huts at the material time, he saw the incident of altercation between the accused persons on the one hand and the deceased on the other in course of which accused AKanista dealt a blow on the back of the head of the deceased by means of a hammer and in his attempt to dissuade the accused persons to assault the deceased he sustained injury on his right hand. During cross-examination to which he was subjected, he stood by his testimony by emphatically deposing that he witnessed the occurrence in the light of a Dibiri (M. O. V) and lantern (M. O. IV) burning near the place of occurrence of ghastly and cold blooded murder committed by accused Kanista and his evidence being clear and trust worthy having been unassailed during cross-examination, the learned trial Judge has rightly relied on the same basing on which he came to hold that Kanista is liable for causing death of the deceased but not the other accused persons whom he found not guilty of the charge of murder of the deceased and acquitted them of the charges thereunder. The above being the state of evidence of sole eye-witness (P. W. 5), who has not been inimically disposed of towards the accused persons in any manner, cannot be disbelieved. ( 12 ) THAT apart, while in custody accused Kanista gave information to the I. O. (P. W. 9) who in pursuance of which seized a hammer (M. O. III) from the hut near the stone quarry. In this regard, evidence of the I. O. (P. W. 9) cannot be lost sight of. His version shows that he seized the weapon of offence (M. O. III) under seizure list Ext. 5 in presence of witnesses. In this regard, evidence of the I. O. (P. W. 9) cannot be lost sight of. His version shows that he seized the weapon of offence (M. O. III) under seizure list Ext. 5 in presence of witnesses. The learned counsel appearing on behalf of the appellant has criticised the evidence of the Police Officer (P. W. 9) as untrustworthy in the present case particularly when no witness to the seizure of M. O. III has been examined to corroborate his statement. The Apex Court, in the case of State Government of N. G. T. of Delhi v. Sunit and another, reported in Supreme Today (Part VII) at page 728, has taken the view that non-attestation of seizure memo by independent witness cannot be a ground to disbelieve recovery of articles seized consequent upon statement of the accused. Their Lordships are of the view that it is not necessary to obtain signature of independent witness under S. 27 of the Evidence Act or under S. 161, Cr. P. C. Thus it is left to the Court either to believe version of the I. O. , who seized the weapon of offence to be correct, if it is not otherwise shown to be unreliable or to reject it out- right. In the case at hand, we believe the version of the I. O. (P. W. 9) to the effect that he has,on the information of accused Kanista, seized from the hut near the quarry, the weapon of offence M. O. III. ( 13 ) BESIDES the evidence of P. W. 5, the eye-witness to the occurrence, evidence of P. Ws. 1 and 2 establishes clearly beyond doubt that they have gone to the spot along with the deceased and witnessed the occurrence. No doubt, P. Ws. 1 and 2 have been declared hostile by the prosecution for having resiled from their previous statements made to the I. O. during the investigation of the case but they have never denied to have gone to the spot during the fateful night of occurrence along with the deceased. It is P. W. 1, who set the criminal law into motion by lodging F. I. R. (Ext. 1) in the Police Out Post at Godbhaga. It is P. W. 1, who set the criminal law into motion by lodging F. I. R. (Ext. 1) in the Police Out Post at Godbhaga. The evidence of P. W. 2 clearly goes to indicate that he along with the deceased had taken lease of the stone quarry in question and engaged the accused persons as labourers for cutting stones. During the fateful night of occurrence he was present at the spot where he himself was assaulted by the accused persons for which he sustained injuries and was examined by the Doctor. In this regard the injury reports (Exts. 18 and 19) submitted by Dr. D. K. Panda have been admitted into evidence by the learned trial Judge, applying the provisions of S. 32 of the Indian Evidence Act. No doubt, he has not spoken regarding the assault committed by the accused on the deceased but his version, to the effect that on the fateful night of occurrence he went to the spot along with the deceased, has been established. The evidence of P. W. 6, who is a post occurrence witness, also goes to indicate that he found the accused-Kanista along with another returning from the quarry side. During the said night the deceased was shifted to the nearby clinic of P. W. 3 but of no avail as he succumbed to the injuries soon after he was taken to the said clinic. P. W. 7 is a witness to the seizure of hammer (M. O. III) which was seized under seizure list Ext. 5 prepared by the I. O. (P. W. 9 ). That apart, seizure of M. O. I another hammer, M. O. II, an iron rod, M. O. IV, a lantern, M. O. V a Dibiri and M. O. VI a crow bar used by the labourers at the stone quarry as per seizure list Ext. 6 has been established beyond doubt. P. W. 8, A. S. I. of Godbhaga Out Post, who reduced the oral report of P. W. 1 into writing, proved the F. I. R. (Ext. 1) and also made Station Diary Entry No. 89 dated 5-4-1992 to the said effect. He also proved Ext. 2, inquest report, which he prepared during preliminary investigation of the case and thus he played his role properly in the investigation of the case. 1) and also made Station Diary Entry No. 89 dated 5-4-1992 to the said effect. He also proved Ext. 2, inquest report, which he prepared during preliminary investigation of the case and thus he played his role properly in the investigation of the case. ( 14 ) WHILE parting with the judgment, we are of the view that the learned trial Judge has never committed any illegality or irregularity in appreciating the evidence of the P. Ws. on record for which we are in full agreement with the findings arrived at by him on the evidence of P. W. 5, the sole eye-witness to the occurrence, coupled with the evidence of the I. O. (P. W. 9) and medical evidence that accused Kanista is the real author of the ghastly crime of murder of the deceased with intention to cause his death by means of M. O. III for which we hesitate to interfere with the impugned order of conviction and sentence recorded by the learned trial Judge. ( 15 ) IN the ultimate result, the Criminal Appeal preferred from the Jail merits no consideration and the same is hereby dismissed. 16 B. P. DAS, J. :- ( 16 ) I agree. Appeal dismissed.