BAAR ALIAS GHASIA HO Vs. STATE OF ORISSA

JUDGEMENT

(1.) The appellant stands convicted under section 302 of the Indian Penal Code and sentenced there under to undergo imprisonment for life by the Court of Session after accepting the case of the prosecution that on November 9, 1980, sometime before evening, the appellant called his wife Janga (hereinafter referred to as Tthe deceased) for sexual intercourse and as she did not to inside the house, the appellant, by means of a Mugura (M.O. 1), dealt two blows on her forehead while she was plastering mud and cowdung outside her house which resulted in her death. The order of conviction has been based on the evidence of P.W. 1 Kanga Ho, the brother of the deceased, who had been examined as the sole witness to the occurrence and that of P.Ws. 3 and 4, two co-villagers, one of them (P.W. 3) being the headman of the village, with regard to an extrajudicial confession said to have been made by the appellant before them and P.W. 1 besides the recovery of M.O. 1 on the spot in the course of investigation. Mr. Jena, appearing for the appellant, challenges the order of conviction as legally unfounded having been based on false and tainted evidence while the learned Additional Government Advocate finds no reason to discard the prosecution evidence on which reliance had been placed by the trial Court.

(2.) In order to be acted upon, the evidence of a solitary witness to the occurrence must be clear and cogent, true and trustworthy and above reproach: When a witness is neither an accomplice nor a person analogous to an accomplice, but is an ordinary witness, the court may, as a general rule, act on the testimony of such a solitary witness without corroboration unless the circumstances of a particular case necessitate it. But some corroboration should be sought from the other prose caution evidence in support of the testimony of a solitary, witness, particularly where such witness also happens to be closely related to the deceased. See Ramji Surya and another v. State of Maharashtral and Chintamani Nahak alias Naik v. State2.

(3.) In the instant case, P.W. 1 was no other person than the brother of the deceased. On his own showing, he had not been pulling on well with the appellant at the time of the occurrence. The evidence of a relation of the deceased is not to be discarded merely on the ground of relationship and the term related may not be equated with the term interestedT, but such evidence should be examined with care before its acceptance. If P.W. 1 was the brother-in-law of the appellant, he was also a person who had not been pulling on well with him. His evidence required very careful scrutiny and we are constrained to observe that the learned Sessions Judge had not critically examined his evidence as it should have been.