Kondagiri Dangeya vs State Of Orissa

B.P.Routray, J

This appeal has been preferred against the conviction and sentence to imprisonment for life on the appellant by the learned Sessions Judge, Koraput

in C.T.Case No.196 of 2003.

The charge was for murder simplicitor. The prosecution case, in short, is that, on that fateful evening i.e. on 19.12.2002 at about 5 P.M., the

appellant and the deceased were returning to the house of the latter after taking liquor from the village and on the way near the hut of P.W.3, they

abused each other. Hearing the shout, P.W.3 came out from his hut and saw that the appellant assaulted the deceased on his head and face by a lathi

he was holding. The appellant was also seen assaulting the deceased by pressing that lathi on different parts of the body of the deceased forcibly

including his scrotum. The deceased fell down on the ground and died. The appellant then fled away. Said P.W.3 then disclosed the occurrence to the

son of the deceased, the informant (P.W.2). He then lodged information in Bondhugaon police outpost under Narayanpatna Police Station on

20.12.2002, resulting registration of Narayanpatna P.S.Case No.111/21.12.2002. P.W.8, the then O.I.C. of Narayanpatna Police Station, took up

investigation, held inquest over the dead body (Ext.1) and prepared a spot map (Ext.8). The appellant was arrested on 22.12.2002 and while in police

custody, he gave recovery of weapons of offence i.e., lathi and two pieces of stones. The said lathi and stone pieces were sent for chemical

examination and the report has been marked as Ext.14. Ultimately charge-sheet was submitted for commission of offence under Section 302 of the

Indian Penal Code.

In course of trial, the prosecution examined eight witnesses. The appellant as accused examined himself as the sole defence witness.

Learned trial court, relying on the ocular evidence of the sole eyewitness (P.W.3) and other corroborated materials like leading to discovery of

weapons of offence by the appellant and the medical evidence etc., has concluded the guilt of murder on the appellant sentencing him to undergo

imprisonment for life.

Learned counsel for the appellant argued to discredit the version of the sole eyewitness on the ground that, it is not possible to see the occurrence at

a distance of 60 meters. It is further argued that there is delay in lodging the F.I.R., which itself creates a doubt on the prosecution version.

On the other hand, Mr.Katikia, learned Additional Government Advocate submitted that, the conclusion rendered by the learned trial court is

without any infirmity in view of the evidences brought on record through P.W.3, P.W.7 and other witnesses. It is also submitted that delay in lodging

the F.I.R. is well explained on the face of the record and moreover, nothing was asked from the side of the defence to that effect either to the

informant (P.W.2) or to the I.O.(P.W.8).

We have carefully heard both the parties and minutely scrutinized the record of the learned trial court. Being it a case of murder, nature of death as

homicidal is not disputed by either party. In this regard, P.W.7, the Medical Officer, who conducted the postmortem examination over the dead body

of the deceased, has stated to have found six injuries on the head and face, which are mostly punctured wounds and opined that the said injuries are

sufficient to cause of death in ordinary course of nature. So, hardly any doubt remains about homicidal death of the deceased.

Amongst the prosecution witnesses, P.W.3 as stated earlier is the sole eyewitness, P.W.2 is the informant and P.W.4 is the witness to discovery

and seizure of the weapons of offence i.e., lathi and two pieces of stone (M.O.I-III). They are the most relevant witnesses relied upon by the learned

trial court to record conviction. Therefore, it is necessary to have a relook to their evidences. It is seen that P.W.3 in clear terms has stated about the

assault made by the appellant on the deceased by means of a bamboo thenga (M.O.I). The defence argues that, it is not possible on his part to see the

assault from near his hut due to distance factor. This argument is without any basis. The reason lies in the statement given by the said eyewitness in

his cross, which is to the effect that he saw the assault from a distance of 20/30 feet. It is true that as per the spot map under Ext.8, the distance of

the hut and the spot is 60 meters away, but the same cannot be the basis to opine that the witness has seen the assault from that distance. Since it is

the version of P.W.3 that he came out from the hut hearing the shout, it is quite natural that he would have stepped forward towards the spot and in

that course assault took place, which could be seen by him from a distance within 20/30 ft. Moreover, nothing has been brought on record either

through P.W.3 or through the I.O. or any other witness to suggest if any physical hindrance was there to bar his visibility. Therefore, the evidence as

adduced by P.W.3 appears clinching and reliable one. We see no point to discard his evidence.

The evidence of P.W.4 is to the effect that the appellant while in police custody by confessing to have concealed the weapons of offence gave

recovery of the same from a bush, which was seized by the I.O. The disclosure statement has been marked as Ext.3 and the seizure list has been

marked as Ext.2. To examine the circumstances of such disclosure and recovery of the weapons under M.O.I, II and III to make the same reliable

under Section 27 of the Indian Evidence Act, we do not find any infirmity on record to discard the same. Though the learned trial court has gone extra

steps at para 11 of the judgment to state that the appellant himself confessed to have assaulted the deceased by means of a bamboo stick, which is not

permissible under the law, but still no fallibility is seen in admissibility of the information limiting to discovery of weapons of offence under Section 27

of the Indian evidence Act.

Law is clear on the point how much of information received from the accused is admissible under Section 27 and has been well explained in

various decisions including the famous Pulukuri Kottaya case (AIR 1947 PC 67), which is a locus classicus. It is to be stated hear that so much of

such information as it relates distinctly to the facts of discovery, which is well proved, is only admissible.

A close scrutiny of evidence of P.Ws.4 and 8, thus only makes admissible of the fact of discovery of the bamboo thenga (M.O.I) at the instance

of the accused. It would be worth stating here that discovery of two pieces of stone under M.O.II and III are not relevant for the purpose since none

of the witnesses including P.W.3 have said use of the same in inflicting the injuries on the person of the deceased.

So far as delay aspect in lodging the F.I.R. is concerned, reasonings given by the learned trial court to discard the contention of the defence in that

respect is also seen well founded. When the place of occurrence is remotely situated around 45 kilometers away from the police station in a tribal

dominated valley, it is naturally difficult on the part of people like P.W. 2 and other witnesses to have immediate access to the police station. So, it

would not be correct to find undue delay on the part of the prosecution in lodging the F.I.R. after one day of the occurrence. Therefore, this aspect

cannot be a reasonable basis to doubt prosecution version.

On the submission of the learned counsel for the appellant, we have given much stress to examine the case if falls under the category of culpable

homicide not amounting to murder.

A close perusal of the events of facts of the occurrence clearly shows that the same can never be a case falling under any of the Exceptions

enumerated under Section 300 of the Indian Penal Code since there was no sudden provocation or right of private defence or other relevant factors.

To examine the case specifically for Exception 4, we resort to the reported case of Surinder Kumar Vs. Union Territory Chandigarh, A.I.R.1989 SC

1094, wherein the Hon’ble Supreme Court has ruled that to invoke Exception 4 to Section 300 of the I.P.C., four requirements must be satisfied,

which are; (i) there was a sudden fight, (ii) there was no premeditation, (iii) the act was done in a heat of passion, and (iv) the assailant had not taken

any undue advantage or acted in a cruel manner.

In the instant case, no material has been brought there on record to reveal any fight between the deceased and the appellant nor it is the case of

the defence that action was in a heat of passion. Rather the number of external injuries found on the body of the deceased and the description of

assault stated by P.W.3 discloses a clear intention of the appellant to kill. Though the appellant examined himself as D.W.1, but except making some

denial statements, has not stated anything to infer a state of anger in his mind at the time of commission of offence. In the above quoted decision, the

Hon’ble Supreme Court has further held that of course, the offender must not have taken any undue advantage or acted in a cruel manner and it

is important that the occurrence must have been sudden, unpremeditated and the offender must have acted in a fit of anger, but none of such factors

is seen present in the case at hand. Thus, considering the facts and circumstances of the present case, we, despite our persuasion, could not be able to

see any factor in favour of the appellant to conclude this as a case of culpable homicide not amounting to murder. Accordingly, we desist from opining

so and conclude that this is definitely a case of murder. Accordingly, the sentence of life imprisonment imposed by the learned trial court is hereby

confirmed.

In the result, the appeal is dismissed.

S.K.Mishra, J.

(Dissenting partly), I have gone through the judgment rendered by my learned brother Hon’ble Justice B.P.Routray. Though I agree with His

Lordship’s opinion that the evidence of P.W.3 is sufficient to hold that death of the deceased has been caused by the sole appellant, I do not agree

with His Lordship’s opinion that it is a case of culpable homicide amounting to murder, but I am of the opinion that it is a case of culpable homicide

not amounting to murder.

The P.W.3 is the sole eyewitness in this case. He has stated on oath that he saw the accused and the deceased were coming together and were

going towards the hut of the deceased and the accused was holding a bamboo lathi in his hand. He further states that hearing sound in between them,

when he looked at them, he saw the accused assaulting Kandagiri Yenkanna-deceased by lathi on his head and face. He assaulted by that lathi by

pressing it forcibly on its both ends on different parts of the body including his scrotum. As a result of which, Kondagiri Yenkanna fell down on the

ground in injured condition and while he reached there, he found that the deceased has already died. Seeing the witness the accused-appellant fled

away from the spot.

The evidence of solitary eyewitness is sufficient to convict a person, but it has to be tested in the anvils of the objective circumstances of the case.

In the case of Hira Santa vs. State of Orissa, JCRLA No.130/2004, this Court held that the evidence of a single truthful witness may out weight

thousands untruthful witness. If the evidence of the witness fits into the anvils of the objective circumstances available in the case, then the conviction

recorded by the learned trial judge cannot be faulted with. In this case, the evidence of P.W.3 is tested by the objective circumstances, which are the

leading to discovery of the bamboo lathi, which was used for the purpose of commission of the offence, it was stained with human blood group of

group ‘AB’, the wearing apparels of the deceased were also stained with human blood of origin ‘AB’, (this is a very important

circumstance corroborative the eyewitnesses’ version) and the opinion of the doctor, who has conducted the post-mortem examination.

The effect of Section 134 of the Indian Evidence Act, 1872 and the principle that should govern a solitary witness have been examined by the

Hon’ble Supreme Court in the case of Vadivelu Thevar vs. State of Madras, AIR 1957 SC 614, 1957 SCR 98.1 The Hon’ble Apex Court

after taking into different judgments passed by the Hon’ble Supreme Court itself on the previous occasions held that it is a sound and well-

established rule of law that the Court is concerned with the quality and not with the quantity of the evidence necessary for proving or disproving a

fact. The Hon’ble Supreme Court further held the witnesses may be classified into three categories namely, (i) wholly reliable, (ii) wholly

unreliable, and (iii) neither wholly reliable nor wholly unreliable.

In the 1st category of proof, the Court should have no difficulty in coming to its conclusion either way, it may convict or may acquit on the testimony

of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the 2nd category, the Court

equally has no difficulty in coming to its conclusion. However, the Hon’ble Supreme Court cautioned that it is in the 3rd category of cases, the

Court has to be circumspect and has to look for corroboration in material particular by reliable testimony, direct or circumstantial. There is another

danger in insisting on plurality of the witnesses. Irrespective of the quality of the oral evidence of a single witness, if Courts were to insist on plurality

of witnesses in proof of any fact, they shall have indirectly encouraging subornation of witnesses.

Applying the aforesaid principles to the case in hand, we come to the conclusion that the witness, P.W.3 falls in the third category. He cannot be said

to be wholly reliable or wholly unreliable, but he is a witness neither wholly reliable nor wholly unreliable. In such cases, we have to seek some kind of

corroboration from the circumstances appearing in the case. The only short coming of this witness is regarding the distance from which he saw the

incident. Though he admitted occurrence took place near the Nala, which is about half kilometers away from his house, he has stated in cross-

examination that he came near the place of occurrence and saw the incident about 20 to 30 feet from the place of assault. Otherwise, the evidence of

this witness is corroborated by the medical opinion, the leading to discovery of the weapon of offence, which was stained with blood that was found to

be same group of human blood found in the wearing apparels of the deceased. Most importantly, in this case, spot of occurrence has also been

conclusively and objectively determined by the Investigating Officer. It is apparent from the spot map that he has indicated that the hut of the witness

situates near about 60 meters away from the place of occurrence. The place of occurrence located is also locally known as ‘Basita Nala’, a

natural canal like structure. The evidence of P.W.3 also reveals that the occurrence took place at Basita Nala. Moreover, the blood stained earth and

sample collected from the spot were found to be similar with respect to their physical characteristics. The blood stained earth was found to be stained

with human blood of origin AB. Hence, we are of the opinion that the evidence of P.W.3, if tested by the anvils of the objective circumstances of the

case, his evidence cannot be disbelieved merely because there is some distance between his hut and the place of occurrence.

Moreover, the evidence of P.W.6, the doctor shows that the deceased has sustained five numbers of injuries and the injuries were possible by the

stone recovered in the case and the punctured wound that was found possible by the lathi. It is also borne out from the record that the accused used

the lathi as a stabbing instrument to inflict injuries on the person of the deceased. So, the evidence of P.W.3, the sole eyewitness, is supported by the

circumstances, like leading to discovery of the weapon of offence, blood stained bamboo lathi, blood stained wearing apparels of the same group as

that was found in the weapon of offence and the doctor’s opinion.

However, I am not inclined to uphold the findings given my learned brother that this is an offence punishable under Section 302 of the IPC. It is

apparent from the records that the FIR itself contents a recitation to the fact that both the deceased and accused have taken liquor together and

without any rhyme and reason, there was a small altercation between them, which resulted in the assault of the deceased by the appellant. This aspect

is not disputed by the prosecution. The prosecution has not proved that there was any prior enmity between the appellant and the deceased. There is

no evidence to the effect that the appellant made any previous preparation for committing the offence. In fact, when they were walking together on

the road, the appellant was already holding a bamboo lathi, which the P.W.7 has stated to be a sharp pointed stick. Thus, we agree with the alternative

submission advanced by the learned Amicus Curiae that the appellant has no intention of committing murder of the deceased, but in a spur of moment

the occurrence took place, which led to death of the deceased. We rely upon the case of Surinder Kumar Vs. Union Territory Chandigarh, AIR 1989

Supreme Court 1094, wherein the Hon’ble Apex Court has ruled that to invoke the Exception 4 to Section 300 of the IPC, four ingredients must

be satisfied; (i) there was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailant had not

taken any undue advantage or acted in cruel manner. The cause of quarrel is not relevant. It is also not relevant as to who offered the provocation or

started the assault. The Hon’ble Apex Court further held that the number of wounds caused during the occurrence is not a decisive factor but

what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. The

Hon’ble Supreme Court further held that the offender should not have taken any undue advantage or acted in a cruel manner. Where, on a sudden

quarrel, a person in the heat of the moment picks up a weapon, which is handy and causes injuries, one of which proves fatal, he should be entitled to

the benefit of this exception provided he has not acted cruelly. Thus, in this case, it is seen that there was a small quarrel between the accused and the

deceased regarding a petty manner. There was no premeditation and during course of such quarrel, under the heat of passion, the accused dealt blows

by means of bamboo he was holding.

In that view of the matter, we are of the opinion that this case comes within the Exception 4 to Section 300 of the IPC. Therefore, the conviction

under Section 302 of the IPC is not sustainable. In the result, on the conspectus of the materials on record, the appeal is allowed in part. We set aside

the conviction and sentence of the accused under Section 302 of the IPC. Instead, we hold him guilty for the offence under Section 304, Part-I of the

IPC and convict him thereunder. We also sentence him to undergo rigorous imprisonment for a period of ten years. Period undergone during

investigation, as a under trial prisoner and upon appeal shall be set off against the substantive sentence under Section 428 of the IPC.

JCRLA No.134 of 2004

Since there is a difference of opinion of the two judges of the Court, the matter may be placed before the Hon’ble Chief Justice for

appropriate order to refer the case to a 3rd Judge to resolve the issue.