Orissa High Court
From The Judgment And Order Dated ... vs State Of Orissa on 8 April, 2021
HIGH COURT OF ORISSA: CUTTACK.
JCRLA No.134 of 2004
From the judgment and order dated 05.10.2004 passed by Shri K.C.
Pattanaik, Sessions Judge, Koraput at Jeypore in C.T. Case No. 196 of
2003.
Kondagiri Dangeya ......Appellant
- Versus-
State of Orissa ...... Respondent
For Appellant : Miss Anima Kumari Dei, advocate
For Respondent : Mr. K.K. Das, Additional Standing
Counsel
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PRESENT:
THE HONOURABLE SHRI JUSTICE D.DASH
Date of hearing-18.03.2021:: Date of judgment-08.04.2021
The Appellant having faced the Trial in the court of
learned Sessions Judge, Koraput in C.T. Case No. 196 of
2003 for commission of offence under section 302 of the
Indian Penal Code (for short, 'the IPC'), has been convicted
thereunder and sentenced to undergo imprisonment for life.
Being aggrieved by the said judgment of conviction and
order of sentence, he has filed the Appeal.
The Hon'ble Division of this Court having heard the
Appeal delivered the judgment. The Bench delivered two
judgments. While one of the Hon'ble Judges is of the opinion
that the Appellant has been rightly convicted by the Trial
Court for commission of offence under section 302 of the IPC
and sentenced to imprisonment for life; the other Hon'ble
Judge in expressing the difference of opinion having arrived at
a conclusion that the Appellant is not guilty of the commission
of offence under section 302 of the IPC, has held him guilty
for the offence under section 304, Part-I of the IPC and
accordingly, he has been sentenced to undergo rigorous
imprisonment for a period of ten years. The matter is thus
placed before me as provided under sections 370 and 392 of
the Code of Criminal Procedure as per the order of the Hon'ble
The Chief Justice.
2. Facts as are necessary run as under:-
The Appellant and the deceased on the relevant date and
time were returning to the house of the deceased. They had
taken liquor from the village beforehand. At one place near the
hut of one Pidika Erapa (P.W.3), the Appellant and the
deceased started abusing one another. It is stated that the
Appellant assaulted the deceased on the head and face by
means of a lathi. He also assaulted the deceased by that lathi
on other parts of his body. The deceased then fell down and
died. P.W. 3 is said to have seen the entire incident having
come out of his hut, hearing the shout. After having assaulted,
the Appellant fled away. This P.W. 3 then disclosed the
occurrence before the son of the deceased who in turn lodged
the information at Bondhugaon Police Outpost and that led to
the registration of criminal case against the Appellant and
commencement of investigation thereof. The Appellant being
arrested after two days while in police custody is said to given
recovery of the weapons of offence i.e. lathi and two pieces of
stone.
The defence plea is that of denial.
3. The Trial Court placing the reliance upon the evidence of
P.W. 3, further receiving corroboration from other material
including medical evidence has held the Appellant guilty of
murder.
The nature of death as homicidal has been well proved by
the prosecution by leading evidence, more importantly the
evidence of doctor P.W. 7 who had conducted post mortem
examination over the dead body.
4. The prosecution in order to bring home the charge in
total examined eight witnesses whereas the Appellant has
examined himself in his defence. As already stated P.W 3 is
the solitary eye witness. P.W. 2 is the son of the deceased
before whom P.W. 3 has narrated the incident and he is the
informant. Besides the two above, P.W. 4 has been examined
to prove the seizure of lathi and two pieces of stones said to
have been recovered pursuant to the statement of the
Appellant while in police custody.
The incident having taken near the hut of P.W. 3, he is
said to have come out of the hut hearing shout and
seen the incident as to the assault by the Appellant upon the
deceased with the bamboo lathi which took place on the foot
path village road as turn out in evidence from none other than
I.O.(P.W.8). The evidence of this witness is sought to be
impeached from the side of the defence on the ground that he
could not have seen the incident by coming out of his hut
which is situated at a quite distance apart from the place
where the deceased and the Appellant were present and
engaged in spat of words. The contention of the defence is that
based on the version of P.W. 3 obtained during the cross-
examination when he has stated to have seen the Appellant by
remaining at a distance of 20 to 30 feet whereas distance as
per the spot map proved from the side of the prosecution
Ext. 8 is shown to be 60 meters. In view of the clear version of
the P.W. 3 that he saw the incident having come out of the hut
when no further material has been brought out from him
during the cross-examination that he was all along standing at
that place close to his hut and practically when his evidence
as to his witnessing the assault part has otherwise remained
unshaken nor discredited to any extent; the objection of the
defence as to the acceptability of the ocular version of P.W. 3,
in my considered opinion has to be overruled more so when
even no such other factor as to the enimical relationship of
this witness with the Appellant in having the tendency to grind
axe against him appears.
5. It is the trite law that on the basis of evidence of solitary
eye witness a conviction can be recorded provided his evidence
is found to be above board and being tested in the evil of the
objective circumstances of the case if his evidence fits into
same. The evidence of P.W. 3 in any considered opinion do not
suffer from any such infirmity or deficiency so as not to be
relied upon for the purpose. Furthermore, in the instant case,
the evidence of P.W. 3 is found to have also received
corroboration from the evidence of the doctor P.W. 7 as also
the evidence as to leading to discovery of weapon of offence
stained with blood and matching with the group of human
blood found in the wearing apparels of the deceased thus
showing the connection as required.
In view of the aforesaid, the Trial Court is found to have
rightly banked upon the evidence of P.W. 3 as to the incident
and the role of the Appellant in assaulting the deceased
resulting his fall and ultimately, leading to his death. This
finding in my view is unassailable.
6. This now takes to the other angle of examination as to
whether the Appellant is to be held guilty of commission of
offence under section 302 IPC or for any lesser offence which
is the point of disagreement on the first round of hearing of
the Appeal before the Hon'ble Division Bench. The proven facts
now stand that the deceased and the accused having taken
liquor together were returning home and on the way suddenly
they started abusing each other. No such evidence however
has come to surface as to for what reason the situation so
ensued. Materials on record also do not indicate that they had
any prior enmity or even that for some time by then, it being
so pacified, the Appellant was still carrying the intent to take
revenge upon the deceased having merely pretended to have
forgotten the past and bitter feeling and for that he was
waiting for the opportune moment which he got at the time of
the incident. The that direction no such evidence as to the
prior conduct of the Appellant and his behaviour or attitude
towards the deceased is surfacing. Nor any such circumstance
has emerged in evidence to be taken note for the purpose or to
draw any such remote inference in that regard.
The obtained evidence is thus that in course of
altercation between the two, the Appellant has assaulted the
deceased and more particularly, by that time, the Appellant
was holding the small sixed bamboo lathi as it reveals from the
evidence of the doctor (P.W.7) who had examined that one
(M.O.I) that its rather a stick and as has also been stated by
P.W.1 that it was a 'bamboo badi' and not 'thenga', again
reiterated by the I.O. (P.W.8). All such given factual settings of
the case being cumulatively viewed persuade me to hold that
the Appellant cannot be attributed to be having the intention
of committing murder of the deceased. In all probabilities
rather it has thus to be held that the role of the Appellant in
assaulting the deceased is in a spur of moment.
For the said Exception 4 to Section 300 IPC to come into
play, the relevant factors are that the act must have been
committed without premeditation, in sudden fight in the heat
of passion upon a sudden quarrel without the offender having
taken undue advantage and not having acted in a cruel or
unusual manner. In the instant case the incident having
suddenly taken place both the Appellant and the deceased are
more or less to share the blame. It may be stated that the
prosecution evidence is wanting to show as to who of them has
ignited the quarrel and who is the other who aggravated it by
some conduct of his own and without that it would not have
taken the serious turn as it happened. Both having taken
liquor in the situation mutual provocation and aggravation in
all probability stand as the possibility with apportionment of
blame between them. Both were coming on foot and by the
time they arrived at the spot, they had already covered quite
some distance. Under the circumstances, it is not seen that
the Appellant has taken undue advantage as it means unfair
advantage or acted in cruel or unusual manner and in that
scenario, the number of wounds caused cannot stand as the
decisive factor or impediment for the said Exception to be
attracted.
Considering the factual background of the case at hand
as obtained in evidence, the Appellant is held guilty for the
offence under section 304, Part-I of the IPC.
Consequently, in my considered view, sentence of
rigorous imprisonment for a period of ten years would meet
the ends of justice.
7. The Appeal is allowed to the aforesaid extent.
......................
D. Dash, J.
Orissa High Court, Cuttack,
Dated the 8th day of April, 2021/Aswini
