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2015 DIGILAW 328 (ORI)

Kumi alias Kumar Nahak v. State of Orissa

2015-05-12

S.K.SAHOO, VINOD PRASAD

body2015
JUDGMENT VINOD PRASAD, J. - Appellant Kumi @ Kumar Nahak having being found guilty of offences u/s.302/506 (II) I.P.C. was convicted of those crimes and was sentenced to life imprisonment with a fine of Rs.1000/- and in default in payment of fine to serve additional imprisonment of six months on the first count and one year imprisonment on the second count by Additional Sessions Judge ( FTC), Chatrapur, district Ganjam in Sessions Case No.11 of 2003/Sessions Case No.82 of 2003 (GDC) vide impugned judgment and order dated 12.12.2003, hence this appeal at the behest of the convicted accused appellant challenging the aforesaid decision. 2.Trotting out the background facts which had it’s genesis in nature’s curse, it becomes manifest from the prosecution case unfurled during trial that village Baunsia Nuapalli under police circle Kabi Surya Nagar has a locality/lane Bauri Sahi, Nature’s wrath broke out epidemic in that area resulting in untimely and premature deaths of many infants prior to the date of present incident (3.9.2002), which had sent jittery and deterrence amongst local inhabitants. Worsening to the suspicious fearful psyche was the theft of two He-goats purchased for the purpose of scared sacrifice for alleviating supernatural spirits. Local inhabitants were of the view that all the miseries were the result of some black magic and therefore in a conclave they decided to contact some foreteller and also to employ the services of a sorcerer to get rid of their misfortune. Local inhabitants were of the view that all the miseries were the result of some black magic and therefore in a conclave they decided to contact some foreteller and also to employ the services of a sorcerer to get rid of their misfortune. As decided one person from each house of the locality jointly approached one Ramesh Gosinhi of village Ramshaw and after having met him returned back to their village in the afternoon where they received information that youngest daughter of Santosh Nahak, elder brother of the appellant, expired due to dysentery at mid noon (12 a.m.) While such eerie situation had engulfed and persisted in the area, the misfortune dawned upon Sani Nahak, the deceased and mother of Soura Nahak the informant/PW5, who after performing some exorcism (Jhada-Phunka) in local dialect called Bhandari Atika, on her grandson, who was ailing, went to the village tank to dispose off the materials used in such Bhandari Atika (exorcism).While returning from the tank when Sani Nahak reached in the vicinity of her house near the house of one Ganapati Nahak, just four house away from her residential abode, at 8 p.m. on 3.9.2002, that she was repeatedly assaulted by the appellant by Kati sputtering that it was she who had caused death of his niece (jhiari) by practising sorcery. When informant endeavoured to intervene and save the life of his mother, he was threatened with life and was chased to be assaulted and so the informant scampered inside his house and bolted the door to save his life. Appellant thereafter perambulated in a fit of anger challenging local inhabitants not to report the matter to the police and thereafter the situation subsided as the appellant left the incident scene. Informant/PW5 being terrified because of hurled life threatening intimation could not muster enough courage to proceed for the police station during incident night itself and therefore following day morning he accompanied with Pitabash Padhi, village Gramarakhi tramped to the police station Kabisurya Nagar, at a distance of 13 KMs, where he orally dictated his FIR to O.I.C., Subash Chandra Panda/PW15, which was recorded at 8.10 a.m. and after verifying the contents that the informant had put his thumb impression on it which FIR is Ext. 8 and Ext.8/2 is the formal FIR recorded as crime no.111 of 2002 u/s.302 IPC. 8 and Ext.8/2 is the formal FIR recorded as crime no.111 of 2002 u/s.302 IPC. 3.O.I.C. S.C. Panda/PW 15 immediately embarked upon the investigation, dispatched constables Dibakrar Swain/P.W. 13 and constable Surjyanarayan Rath along with, command certificate Ext.5 to guard the cadaver of the deceased at the spot, examined the informant and Gramarakhi and slated their statements and then he came to the incident spot and sketched spot map Ext. 9.Witness Sukanti Nahak was examined and thereafter inquest over the corpse of the deceased was performed and inquest memo Ext.1 was prepared. After examining inquest witnesses I.O. seized blood stained and plain earth vide seizure list Ext.2 and then dispatched the dead body for post mortem examination along with dead body chalan Ext.6 through constables Debakrar Swain/P.W. 13 and constable Surjyanarayan Rath and subsequent thereto other witnesses were examined and their statements were taken down. P.W. 15/I.O. also requisitioned scientific team which had also visited the spot. On 5.9.2002 I.O. seized command certificate issued by him along with blood stained white saree, ornaments, waist thread and Karata of the deceased and prepared it’s seizure list Ext. 3. Ornaments were handed over to the informant through Zimanama Ext. 10. Accused appellant voluntarily surrendered before J.M.F.C. Kodala on 6.9.2002. I.O./P.W. 15 received autopay report on 19.10.2002 and he also seized sample blood and heir of the deceased sent by the doctor vide Ext.4. Lantern, M.O.II, associated with the incident was seized vide Ext.11.Seized articles were dispatched for chemical examination vide forwarding report Ext. 12 and scientific officers report is Ext. 13. Investigation was called off by laying down a charge sheet against the appellant on the strength of which G.R. Case No.209 of 2002 was registered against the appellant in the Court of J.M.F.C., Kodala. 4.Autopsy on the cadaver of the deceased was performed by Dr. Sachidananda Mohanti/P.Wlk.14, a professor, F.M.T. Deptt. M.K.G.C. Medical College, on 4.9.2002 at 4 p.m. who found following ante mortem injuries on the dead body. (i)Cut wound of size 6 cm. X 2.5 cm. X muscle deep present lover the deltoid region starting 4 cm. lateral to the shoulder tip, extending backwards. (ii)Cut wound of size 9 cm. X 3 cm. X bone deep placed obliquely over the shoulder blade starting 3 cm. Behind to the tip of the shoulder extending posteriorly downwards. (iii)Cut wounds 3 in number, measuring from 12 cm. X 3 cm. lateral to the shoulder tip, extending backwards. (ii)Cut wound of size 9 cm. X 3 cm. X bone deep placed obliquely over the shoulder blade starting 3 cm. Behind to the tip of the shoulder extending posteriorly downwards. (iii)Cut wounds 3 in number, measuring from 12 cm. X 3 cm. X 14 cm. X 3 cm. X vetibra col. deep situated almost parallel to each other with a gap of 1.5 cm. to 2 cm. present over the back of neck, involving the right scapular area crossing the midline with a direction of above downwards and medially. (iv)Cut wound of size 8 cm. X 5 cm. X muscle deep situated just below the external injury no.3 over the right scapula region. (iv)Cut wounds 4 in number varying from 18 cm. X 5 cm. X bone deep to 20 cm. X 5 cm. X bone deep present almost parallel one below and other involving the right side of lower face and upper neck, staring from the lateral boarder from nose extending posterioly and downwards with cutting up underlying muscles vessels nerves and mediable at multiple places. (v)Cut wound of size 5 cm. X 0.5 cm. X skin deep present over the left molar area and nose starting from the bridge of the nose extending left laterally in a horizontal manner. (vii) Cut wound of size 5 cm. X 1 cm. X bone deep present obliquely over the left temple. (viii)Cut would of size 8 cm. X 5 cm. X muscle deep situated over the right deltoid area in obliquely manner. (ix)Cut wound of size 2 cm. x 1 cm X muscle deep present 3 cm. below external injury no. viii. Internal examination of the cadaver revealed that injury No.iii had travelled up to the body of cervical vertebra cutting over lying vessels, muscles nerves and spine process with surrounding infiltrations. All the injuries were ante mortem and homicidal in nature and were the outcome of infliction by moderately heavy cutting weapon.Cumulatively and specially injuries no. (iii) and (v) including internal damages caused by them were fatal in ordinary course of nature and haemorrhage and shock were the cause of death which had occurred 18 to 24 hours prior to autopsy examination. Post Mortem examination report is Ext.7.These injuries were possible by seized Kati, M.O. II. (iii) and (v) including internal damages caused by them were fatal in ordinary course of nature and haemorrhage and shock were the cause of death which had occurred 18 to 24 hours prior to autopsy examination. Post Mortem examination report is Ext.7.These injuries were possible by seized Kati, M.O. II. 5.Since committal Court of J.M.F.C. Kodala, which has submitted the record, found the offence against the accused appellant triable by Sessions Court it committed the case of the appellant to the Sessions Court for trial on 22.02.2003 and before the Sessions Court the same was registered as Sessions Case No.82 of 2003.State versus Kumi @ Kumar Nahak. 6.Learned trial judge on 11.09.2013 charged the appellant with offences punishable under Section 302/506-(II) IPC and since appellant abjured those charges by pleading not guilty and claimed to be tried therefore, to prove his guilt and establish the charge, the sessions trial procedure was restored to by the learned trial judge. 7.Prosecution was satisfied by examining in all fifteen witnesses during the trial and tendering thirteen documentary evidences in the form of exhibits most of which have already been recorded hereinabove. Two material objects such as MO-I, the blood stained saree and MO-II, the Lantern were produced. 8.Defence of the accused was one of denial and false implication. No defence witness was examined by the accused- appellant to establish his innocence nor any document was filed by him. 9.Out of the witnesses examined Smt. Sukanti Nahak/PW1 and her husband informant Soura Nahak/PW5 are the fact witnesses. Arjuna Nahak/P.W. 2 and Pravakar Nahak/P.W. 4 are the inquest witnesses. Rabi Nahak/P.aW.3 is a witness of the feast and regarding the lantern story putforth by the prosecution. Pitabas Padhi/P.W. 6 is the Grama Rakhi, who had covered the body of the deceased with a saree and had accompanied the informant to the police station. Judhistir Nahak/P.W. 7, Prakash Nahak/P.W.8, Surata Nahak/P.W. 9 and Ranka Nahak/P.W. 10 all had turned hostile although, they have given evidence regarding cause of murder, theft of goat and carrying of Bhandari Atika to the village pond for submersion, going to the foreteller in village Ramshaw and returning from there in the evening B. Lachamaya Reddy/PW 12 is a police constable and a seizure witness. Debakar Swain/P.W. 13 is also a police constable, who had guarded the dead body and then he carried it to the doctor, where he identified it. Dr. Debakar Swain/P.W. 13 is also a police constable, who had guarded the dead body and then he carried it to the doctor, where he identified it. Dr. Sachidananda Mohanty, autopsy doctor is PW 14 and the Investigating Officer/recorder of the FIR, OIC Subash Chandra Panda is P.W. 15. 10.Learned trial judge after critically appreciating the overall testimonies of the witnesses, scanning over the documents in the form of exhibits and summating facts and circumstances of the incident found the prosecution witnesses to be reliable and guilt of the appellant anointed convincing without any ambiguity ultimately conclude that the charges against the appellant have been proved to the hilt and, therefore, convicted him on both the counts and sentenced him for life imprisonment of the charge of murder and one year for the charge of criminal intimidation, which decision has now been impugned in the instant appeal. 11.In the above factual matrix, we have heard Mr. Chitaranjan Sahoo, learned counsel for the appellant in support of the appeal and Sri J. Katikia, learned Addl. Government Advocate for the respondent-prosecutor State and have vetted through the trial Court record. 12.From the oral and documentary evidence, it is evidently discernible that the incident had occurred on 03.09.2002 at 8 p.m. in village Bounsia Nuapalli under Kabisuryanagar Police Station. Scanning simultaneously for the sake of brevity and to avoid repetition, the evidence of both the fact witnesses Smt. Sukanti Nahak/P.W. 1 and her husband-informant Soura Nahak/P.W. 5 it becomes apparent that the accused-appellant was known to them being a close neighbour and the deceased was the mother-in-law of P.W. 1 and mother of informant PW 5. The incident had occurred when the deceased was returning to her house from the village tank where she had gone, accompanied by informant PW5, to submerge ‘Bhandari Atika’ and the place of assault on her by the appellant by a Kati was just four houses prior near the house of Ganapati Nahak. Parts of body where she was assaulted were on her head, neck and other parts of the body and when the deceased mother-in-law had raised shrieks “Marigali” after sustaining injuries that her daughter-in-law/P.W.1 had witnessed the incident standing on her veranda. Parts of body where she was assaulted were on her head, neck and other parts of the body and when the deceased mother-in-law had raised shrieks “Marigali” after sustaining injuries that her daughter-in-law/P.W.1 had witnessed the incident standing on her veranda. Husband of PW 1, informant/PW 5 had arrived at the incident spot, from “Kotha Ghara” from a distance of about 60 feet and when he mustered the courage to save his mother, accused-appellant threatened and chased him, which forced him to enter into his house and bolt the door to save his and PW 1’s lives. The accused then rambled around the street sputtering and forbidding the inmates not to report the incident to the police nor to come out. Throughout the night, the cadaver of the deceased was left open on the road. Next day at early morning hours, on opening the door of their house, when PWs 1 & 5 could not spot the appellant that they stepped out and informant PW 5 went to inform village watchman (Gramrakhi). The background motive for the assault was suspicion of the appellant that the witch craft practiced by the deceased had caused the life of his niece, daughter of his elder brother who had expired on that very day, which is evident from the fact that while assaulting the deceased, the appellant was sputtering that it was she who had killed his niece. On the Court’s query the daughter-in-law/PW 1 divulged that by magical power (Jhada-phunka) her mother-in-law used to cure ailments in the village prior to her murder. Cross examination of P:W.1 indicates that she had disclosed that prior to the incident the deceased had done Jhada-phunka on her son and then had gone to the village tank to throw the material Bhandari Atika along with her husband/PW 5, but the mother-in-law was returning earlier as the informant had stayed back to attend nature’s call and he came subsequently to the spot. Appellant was a resident of Bauri Sahi, which was on the other side of the road. Kothaghara, from where the informant/PW5 had arrived at the incident scene was at a distance of 30 cubits from their house and 60 cubits from the house of the accused. P.W. 1 further disclosed that there were 20 to 25 houses in all on both the sides of the street Bauri Sahi. Kothaghara, from where the informant/PW5 had arrived at the incident scene was at a distance of 30 cubits from their house and 60 cubits from the house of the accused. P.W. 1 further disclosed that there were 20 to 25 houses in all on both the sides of the street Bauri Sahi. She further stated that the street light was at a distance of about 4 houses from the place of the incident and the electricity light on the other side of the street was about 60 cubits away. She denied the defence suggestion that there was no electric light at the spot nor her husband had returned to the house at the time of the incident.P.W.1 clearly testified that she did not endeavour to save her mother-in-law and people of the street had bolted themselves inside their houses during the incident. P.W 1 had witnessed her mother-in-law sustaining three to four Kati blows at the hands of the appellant and being terror stricken, she could not raise any alarm to call his brother-in-law and his wife who were taking their dinner in the backside of their house, which was situated at the other end of the inner Court yard. None of the neighbours of the locality also came to save the deceased. She along with others had gone to see the cadaver of the deceased only after the police had arrived at the spot. Divulging motive for the murder P.W.1 corroborated the prosecution story of theft of two he-goats purchased from the community fund for the purpose of sacred sacrifice and also the decision taken in the committee that one person from each house of Bauri Sahi will go to the foreteller of Ramshaw village to find out a sorcerer to get rid off the super natural wrath and to be made known the reason for deaths of the infants. P.W 1 further disclosed that her husband was earning his livelihood by bringing fire wood for sale from Ghoda pahada, which was about 3 to 4 hours walking distance from their house. She refuted the defence suggestion that she was not a witness to the incident as she was inside her house and PW 5 had informed her about the murder. PW. She refuted the defence suggestion that she was not a witness to the incident as she was inside her house and PW 5 had informed her about the murder. PW. 1 further abjured the defence case that the appellant had not assaulted her mother-in-law by a Kati and that she had spelt out a mendacious story and had prevaricated statements because of animosity. 13.Turning to the evidence of the informant P.W. 5, he corroborated his wife P.W. 1 in all material significant aspects about the murder of his mother and in examination-in-chief had stated those very facts regarding date, time, place and manner of assault which had already been narrated by P.W. 1, and hence we eschew repetition for the sake brevity and convenience. Concurring P.W. 1, informant/PWs also stated that after submerging the articles, used in Jhada-phunka to cure his ailing son, in the tank he remained behind to attend the call of nature while his mother alone returned back to her house. While returning to his house, after attending the call of nature, informant/PW 5 when reached near Kothaghara, he heard shrieks (hullah_) of his mother and witnessed the accused assaulting her by Kati shouting “Sabu Pilaku Gaon ra Mari Deuchu”, in front of the house of Ganapati Nahak and when PW 5 endeavoured to save his mother appellant forbade him not to do so and even chased him to assault which forced the appellant to enter his house and bolt the door to save his and P.W. 1’s lives. P.W. 5 had confirmed the presence of his wife P.W. 1 who, according to him, was standing in the veranda of her house at that time and was watching the incident and both had entered into the house and bolted the door to save their lives while the accused-appellant was tramping on the street hurling life threats. Next day morning at 6 a.m. the informant/P.W. 5 had proceeded to the Police Station along with the Choukidar/Gramarakhi and had narrated the entire murderous episode to the OIC of the Kabisuryanagar P.S. Causa Causans of the incident was divulged to be the same as that of P.W. 1.Police had arrived at the incident spot at 10 a.m. and had conducted inquest over the cadaver and had obtained LTI of the informant on the inquest memo and thereafter the corpse was dispatched for autopay purposes. On being cross examined informant had disclosed that he did not remember the calendar date, month and year of the incident, but it was a Tuesday. From the evidence of the informant/P.W. 5 it further emerges that the distance between the house of the informant and the tank was 100 cubits. The village street was built up on a filled up Nala (drainage). House of the appellant was situated at the end of the street on the western side of the tank and three electric poles existed besides the street. Kothaghara from where the informant had heard his mother’s shrieks was 20 houses away from the incident spot land at the time of incident, electric bulb at Kothaghara was lighting. Informant has further disclosed that a meeting was convened at Kothaghara, which was scheduled to be held a the time of the incident to discuss about the cause of deaths of the children of the street and theft of two he-goats but due to murderous incident it did not take place. The informant has further deposed that reaching at the spot, he had witnessed the appellant giving Kati blows on the deceased, who was lying on the road. P.W. 5 had not given any emergency calls or had approached the persons sitting at the Kothaghara for help. The appellant had hurled threat calls to the local inhabitants about three times and because of this local inhabitants remained inside their houses by clasping their doors. Candidly the informant accepted that he had not informed about the murder to the Naib-Sarpanch or to the Ward member. House of Pitabas, village Choukidar ( watchman) was situated at village Boounsia at some distance from the place of the incident. Nobody had searched or disturbed the cadaver of the deceased. Although under some confusion the informant had stated that he did not know the contents of the report which was written, but he had flatly refuted defence case that the appellant had not assaulted and killed his mother and that he was deposing falsely. Nobody had searched or disturbed the cadaver of the deceased. Although under some confusion the informant had stated that he did not know the contents of the report which was written, but he had flatly refuted defence case that the appellant had not assaulted and killed his mother and that he was deposing falsely. 14.Looking to the evidence of hostile witnesses Judhistir Nahak/ P.W. 7, Praksh Nahak/P.W.8, Sarata Nahak/P.W. 9 and Ranka Nahak/P.W. 10, it becomes evident that they have also confirmed the prosecution case regarding theft of he-goats and decision by the village community to contact foreteller of Ramshaw village and death of the deceased taking place on the date, time and place alleged by the prosecution. The prosecution had cross examined all these witnesses and had got elicited the contradictions in their 161 Cr.P.C. statements confirming the prosecution case. P.W. 8 had even stated that he had heard the call of the informant that they were carrying Bhandari Atika, therefore, the villagers should remain inside their houses and because of that, the local people had closed the doors of their houses and had remained inside. Such a statement has also been made by Ranka Nahak/P.W. 10 and Bilambar Nahak/P.W. 11 corroborating P.W. 8. 15.Turning to the evidence of other witnesses, P.W. 2 is witness of inquest, but his evidence clearly spells out that soon after the incident, name of the appellant as perpetrator of the crime was echoing in the locality. He had accompanied the cadaver of the deceased and identified it to the doctor. He is also a witness of inquest and had put his LTI on the inquest report. Rabi Nahak/P.W.3 had deposed besides other things that Gobinda Nahak of the street had paid him Rs.5/- to inform the inhabitants of both the sides of the street to attend the feast to be hosted by Gobinda Nahak on the event of maturity of his daughter, which he had informed by shouting from veranda of Kothaghara where he had lighted a lantern and then had returned to his house. After taking the dinner when he again came out of his house, he found the aforesaid lantern kept on Kothaghara missing, which he found in front of the house of Ganapati Nahak, where a person was lying on the road. After taking the dinner when he again came out of his house, he found the aforesaid lantern kept on Kothaghara missing, which he found in front of the house of Ganapati Nahak, where a person was lying on the road. When this witness had gone to pick up the lantern, the accused appellant had nixed him not to take the lantern and threatened him to kill if he will remove it and at that time appellant was holding a Kati. P.W. 3 then returned to his house due to fear. This witness further confirmed that the person who was lying on the road was the deceased. During his cross examination, P.W. 3, however, stated that later on he heard that the person lying on the road was Sashi Nahak, the deceased. Pravakara Nahak/P.W. 4 had received the message that the appellant had killed Sashi Nahak on which he had came to the incident village and spotted the dead body and found injuries on the neck and other parts of the cadaver. He is a witness of inquest and had signed the inquest memo Ext. 1 prepared by the police. Nothing worthwhile has been got elicited from his cross examination. Pitabasa Padhi/P.W. 6 was a Village Choukidar/Gramarakhi since last 20 to 22 years. He was informed about the murder in the morning at 6 a.m. by the informant/P.W. 5 and then he accompanied the informant to the spot to locate the dead body lying in front of the house of Ganapati on the path way and then he brought a saree from the house of the deceased and had covered the dead body to save it from being mutilated by the vultures. He had accompanied the informant to the police station to lodge the F.I.R. He has also proved the collection of blood stained and sample earth and seizure list thereto, which is Ext. 2. Nothing worthwhile has come out from his cross examination to mulllify the prosecution case on the core issues. Autopay doctor and the Investigating Officer have stated those very evidences which have already been stated hereinabove attaching credence to the prosecution version and thereby confirming its authenticity. 2. Nothing worthwhile has come out from his cross examination to mulllify the prosecution case on the core issues. Autopay doctor and the Investigating Officer have stated those very evidences which have already been stated hereinabove attaching credence to the prosecution version and thereby confirming its authenticity. 16.In the background, learned counsel for the appellant criticized the impugned judgment for the reasons that there are discrepancies, inconsistencies, improvement in the statements of the witnesses and therefore, the witnesses are not reliable and the prosecution therefore, has failed to discharge its initial burden of proof and the appellant deserves to be acquitted. It has further been argued that the deceased was murdered in darkness when there was no source of light available and therefore, nobody was able to spot the real assailant. Next it was submitted that there was no motive for the appellant to murder the deceased and therefore, prosecution has not been able to attribute motive to the appellant to commit the murder of the deceased. Learned counsel therefore, submitted that the appeal be allowed and the appellant be acquitted. 17.Arguing conversely and putting forth the incriminating evidences appearing against the appellant, learned Additional Government Advocate referring to many circumstances clinchingly anointing the guilt of the appellant submitted that the prosecution has anointed guilt of the appellant convincingly without any ambiguity and therefore, the appeal being devoid of merit be dismissed and the conviction and sentence of the appellant be concurred. 18.Bestowing careful consideration on rival submissions and after critically appreciating facts and circumstances and the evidence of the fact witnesses as well as documentary evidences on record, it emerges that so far as date, time and place of the incident are concerned, the same have not been challenged with any seriousness by the defence. Testimonies of both the fact witnesses coupled with the deposition of even those witnesses who had turned hostile leaves no manner of doubt that the deceased was murdered on the date and time of the incident in front of the house of Ganapati Nahak. Collection of blood from the spot further cements the place of the incident. The defence has not been successful in getting any evidence in its favour which can even slightly create doubt in the prosecution story on all the above aspects. Collection of blood from the spot further cements the place of the incident. The defence has not been successful in getting any evidence in its favour which can even slightly create doubt in the prosecution story on all the above aspects. Credibility of the prosecution witnesses therefore, remains unshaken on the aforesaid scores and the inescapable conclusion which can safely be arrived is that the date, time and place of the incident have been successfully established by the prosecution. 19.Now the only question to be decided is as to whether it was the appellant who had committed murder of the deceased or it was an unknown assailant and the appellant has been roped in by foisting a false case by the informant. Analyzing the evidences, we find that the prosecution has successfully anointed the presence of the appellant at the spot with sufficient clarity. The background in which the incident had occurred has already been narrated hereinabove. After returning from village Ramshaw, the appellant received a message that younger daughter of his elder brother died because of dysentery. The entire area was under fear psychosis of evil spirit presence and was reverberating with practice of witchcraft by somebody which was bringing deaths of young girls of the locality. In such a view, when P.Ws. 1 and 5 both had stated that the deceased was curing ailments of the local people by exorcism, the apprehension of the appellant that because of her, calamity had fallen on the locality is not a difficult conclusion to arrive at. When the younger member of the family expired, the intuitive motive of the appellant to commit murder of the deceased came in his mind and when he found deceased was returning from the pond after submerging Bhandari Atika, the appellant, with total unfounded suspicion severely assaulted the deceased with a Kati and caused her death. Both the son and daughter-in-law in no uncertain terms have seen the appellant assaulting the decease with a Kati The evidence of the doctor also confirmed that the deceased had sustained injuries by a sharp moderating heavy cutting weapon and therefore, the medical evidence is consistent with that of the ocular version. Both the son and daughter-in-law in no uncertain terms have seen the appellant assaulting the decease with a Kati The evidence of the doctor also confirmed that the deceased had sustained injuries by a sharp moderating heavy cutting weapon and therefore, the medical evidence is consistent with that of the ocular version. Otherwise also the nature of the injury as was recorded by the doctor in the autopsy examination report leaves no manner of doubt that they were sharp edged weapon injuries and therefore, could have been inflicted by a Kati. Further it does not transpires from the evidence as to why prosecution will spare the real assailant and will foist a false case against the appellant with whom none of the eye witnesses had any animosity or compelling reason to falsely implicate. Defence has not been able to cross examine both the eye witnesses on that aspect and even failed to bring out the circumstances for the P.Ws. to prevaricate a cooked up story to implicate the appellant in a case of murder. The appellant in his 313 Cr.P.C. statement has also not been able to spell out any reason for his false implication. In such a view, once the defence has completely failed to dislodge the convincing statement of the two relative eye witnesses, who had no reason to depose falsely against the appellant, we find total absence of any reason to discard the testimony of those two eye witnesses. The site plan as well as the inquest report coupled with the statement of the I.O. further credits the prosecution version to be authentic and hence established convincingly. None of the castigations by the appellant’s counsel is significant to discard the prosecution of the main substratum of its charge. It is but natural that some discrepancies and inconsistencies will definitely occur in the statement of the witnesses and in cross examinations, but unless those discrepancies and inconsistencies are of vital nature pointing conversely than what has been alleged by prosecution, they cannot be taken into consideration to throw the entire prosecution version over board. No such discrepancy surfaced in the depositions of the witnesses and therefore, we are not impressed by the submissions of the learned counsel for the appellant that the inconsistency and incongruity occurring in the statement of the two fact witnesses demolishes the prosecution version. No such discrepancy surfaced in the depositions of the witnesses and therefore, we are not impressed by the submissions of the learned counsel for the appellant that the inconsistency and incongruity occurring in the statement of the two fact witnesses demolishes the prosecution version. As to whether the informant had arrived at the place of the incident subsequent to the murder where there was sufficient light at the electric pole, the defence has not been able to crumble the prosecution evidence by putting forth any significant evidence or circumstances of unimpeachable character as against the eye witnesses. 20.In view of our discussions, we find no merit in this appeal and we are in agreement with the learned trial Judge and therefore, the residue is that we are of the opinion that the impugned judgment is infallible. 21.In essence we do not find merit in this appeal which is liable to be dismissed and is hereby dismissed and the conviction and sentence of the appellant recorded through the impugned judgment is hereby confirmed. Appellant is in jail. He shall remain in Jail to serve out the remaining part of the sentence. 22.Let the trial Judge be informed accordingly. S.K. SAHOO, J.I agree. Appeal dismissed.