ORISSA HIGH COURT, CUTTACK JAIL CRIMINAL APPEAL NO. 24 OF 2001 From the judgment dated 14.02.2001 passed by Sri S. K. Mishra, Additional Sessions Judge, Jeypore in Sessions Case No.32 of 1999. -------- Mandingi Malati .....…. Appellant Versus State of Orissa ……… Respondent For appellant - Mrs. Mina Das For respondent - Mr. S.K. Nayak, Addl. Government Advocate PRESENT:- THE HON’BLE MR. JUSTICE PRADIP MOHANTY AND THE HON’BLE KUMARI JUSTICE S. PANDA ------------------------------------------------------------------------------------- Date of hearing & judgment : 16.04.2010 PRADIP MOHANTY, J. This appeal is directed against the judgment and order dated 14.02.2001 passed by the learned Additional Sessions Judge, Jeypore in S.C. Case No.32 of 1999 convicting the appellant under Section 302, I.P.C. and sentencing him to undergo imprisonment for life. 2. The prosecution case in brief is that on 18.02.1999 Kondagori Taudu (P.W.2) lodged FIR before the A.S.I., Bondhugaon Out-post alleging therein that on 16.02.1999 at about 7 P.M., the accused-appellant dealt an axe blow on the chest of the deceased- Kondagiri Gumpha causing severe bleeding injury. On the next day, the deceased succumbed to the injury. The A.S.I. of police dispatched the FIR to Narayanpatna P.S. for registration and accordingly the case was registered and investigation taken up. During the course of investigation, police examined the witnesses and recorded their statements, seized the wearing apparels of the accused and the weapon of offence, sent the dead body for post mortem examination and upon completion of investigation submitted charge-sheet against the appellant under Section 302, IPC. 3. Plea of the appellant is complete denial of the allegation. His specific plea is that P.W.1 has committed the murder of the deceased. 4. The prosecution in order to prove the charge examined as many as twelve witnesses including the I.Os. and the doctor and exhibited 13 documents. Defence examined none. 5. Mrs. Das, learned counsel for the appellant assails the impugned judgment on the following grounds: (i) The trial court has convicted the appellant solely basing upon the evidence of P.W.1, who is not an independent witness. There is major contradiction in his statement regarding the assault. Conviction of the appellant based on the evidence of a solitary eye-witness cannot be sustained in absence of any independent corroboration. (ii) The alleged dying declaration made by the deceased is a very weak piece of evidence and is not believable. (iii) There is delay in lodging the FIR. 2 (iv) The act committed by the appellant would at best come within the purview of Section 304-II IPC. 6. Mr. Nayak, learned Additional Government Advocate vehemently contends that P.W.1 is an eye witness and his evidence is very clear and cogent to establish the guilt of the appellant. He has no relationship with the deceased. The deceased had made the dying declaration before P.Ws.1, 2, 4, 5 and 6 to the effect that the appellant had assaulted him. Moreover, the appellant confessed before the villagers that he had committed murder of the deceased. Therefore, the impugned judgment needs no interference by this Court. 7. Perused the L.C.R. P.W.1 is a witness to the occurrence and a neighbour of both the deceased and the appellant. He deposed that the occurrence took place on a Tuesday at about 7 P.M. Two days prior to the occurrence on a Sunday the deceased and the appellant had quarrelled with each other in a village meeting. The villagers present in the meeting intervened and separated them. He further stated that at the time of occurrence he was taking bath just outside his own house. When the deceased was urinating, the appellant dealt an axe blow on the left side chest of the deceased, as a result of which the deceased fell down sustaining bleeding injury on his chest. Seeing this, he raised hullah. The appellant then dropped the axe there and fled away. Hearing his hullah, P.Ws.4 and 5, one Kadraka Gouri and others came to the spot. They shifted the deceased to his house. In his house the deceased declared before the villagers that the appellant had assaulted him. On the following Wednesday, the deceased succumbed to the injuries in the village and on Thursday P.W.2 reported the matter before the police. On arrival of the police, he produced the weapon of offence, i.e., Tangia M.O.I, who seized the same. Nothing has been elicited by the defence in cross-examination to discredit his testimony. P.W.2 is the 3 informant and a post-occurrence witness. He deposed that P.W.1 informed him about the assault given by the appellant to the deceased by means of a knife. Getting such information, he went to the house of the deceased and found him sustaining one injury on his chest. Some other villagers were also present at that time. The deceased declared before him that the appellant had assaulted him on his chest by means of an axe. On the following Wednesday the deceased succumbed to the injury. On the next day, i.e., on Thursday, he went to the Police Station and reported the matter. Ext.1 is the F.I.R. and Ext.1/1 is his signature thereon. He further stated that the police held inquest over the dead body of the deceased in his presence. Ext.2 is the inquest report and Ext.2/1 is his signature thereon. P.W.3 is a co-villager, who supported the version of P.W.2 regarding inquest. He put his L.T.I. on the said inquest report. He also admitted in his cross-examination that no blood- stained earth or sample earth was seized from the backside of P.W.1’s house. But no materials are forthcoming to demolish his evidence. P.W.4 is a co-villager and a post-occurrence witness, who supported the version of P.W.2. P.W.5 is another co-villager and an immediate post-occurrence witness, who also supported the version of P.W.2 and further stated about the dying declaration made by the deceased. P.W.6 also supported the version of P.Ws.2 and 4. Nothing has been elicited by the defence during cross-examination to demolish the evidence of P.Ws.5 and 6. P.W.7 is the scribe of the F.I.R. and put his signature Ext.1/2. He also gave an endorsement at the bottom of the F.I.R. that he read over and explained the contents of the F.I.R. to the informant (P.W.2). P.W.8 is a co-villager and a post-occurrence witness. He supported the version of P.W.6. P.W.9 is a constable and a witness to the seizure of the wearing apparels of the deceased and command certificate of Ram Chandra Majhi C/35. P.W.10 is the I.O., who initially investigated into the matter. P.W.11 is the S.I. of Police who was in charge of Bondhugaon Out-post at the relevant point of time. He took charge of the investigation from P.W.10 and submitted 4 charge-sheet. P.W.12 is the doctor who conducted autopsy and found the following external injury on the body of the deceased. “(i) One stab wound of the size 2” length X depth 3”, situated over the left chest 1” below the left clavical just lateral to sternal margin. The injury was obliquely placed.” On dissection he found the following internal injury corresponding to the external injury. “(i) The second costal cartilage, the 3rd rib at the costo junction, the left bronchus, left lung along with plura, intra costal vessels, inter costal muscles were cut.” He opined that the injury was ante-mortem in nature and was sufficient to cause death. Death was due to hypovolumic shock resulting from the above injury. He also stated that the injury found on the deceased cannot be possible if the axe blow is given on the deceased from his backside. Nothing has been elicited from his cross- examination by the defence to demolish his evidence. 8. From the above analysis of the evidence, It is crystal clear that P.W.1 is the solitary eye witness and there is no material to disbelieve his evidence. Though some minor discrepancies are there in his evidence, the same are not very significant. His evidence is supported by the medical evidence. P.Ws.3, 4, 5, 6 and 8 also stated about the dying declaration made by the deceased. P.W.8 also stated about the extra-judicial confession made by the appellant in presence of witnesses. Taking into consideration the medical evidence, dying declaration and the extra-judicial confession made by the appellant, there is no dispute that the appellant was the assailant of the deceased. In the instant case, since the appellant gave only one blow with an axe on the chest of the deceased, the intention to cause death cannot be imputed to him, and it would be reasonable to infer that he had the knowledge that such injury on the vital part of the body of the deceased would cause death. By applying the ratio decided in 5 Sanyasi Palasi @ Sania Vrs. State of Orissa, (2009) 44 OCR-236, this Court is of the considered opinion that the act committed by the appellant squarely comes under the purview of Section 304-II I.P.C. 9. In the result, the appeal is allowed in part. The conviction of the appellant under Section 302 I.P.C. passed by the learned Additional Sessions Judge, Jeypore in S.C. No.32 of 1999 is converted to one under Section 304-II I.P.C. and he is sentenced to undergo rigorous imprisonment for eight years. It is stated by Mrs. Das, learned counsel for the appellant that the appellant is in custody from the date of his arrest and by now has completed more than eleven years. If that be so, the appellant be set at liberty forthwith, unless his detention is required otherwise. …………………………… PRADIP MOHANTY, J. SANJU PANDA, J. I agree. …………………………… SANJU PANDA, J. Orissa High Court, Cuttack The 16th April, 2009/Alok 6 Therefore, this Court sets aside the judgment and order of his conviction under Section 302 I.P.C., as passed by the learned Additional Sessions Judge, Koraput-Jeypore. Instead, this Court convicts him under Section 304-II I.P.C. and sentence him to undergo rigorous imprisonment for eight years. 7