ORISSA HIGH COURT,CUTTACK JCRA NO. 236 OF 2000 From the judgment and order dated 4.5.2000 passed by Sri A.C.Patnaik, Additional Sessions Judge, Malkangiri in Sessions Case No.77 of 1999 (S.C.No.34/98 of Sessions Judge,Koraput-Jaypore). ---------- Manglu Kirsani … Appellant -versus- State of Orissa … Respondent For appellant - Mr. G.S.Pani For respondent - Addl. Standing Counsel. PRESENT: THE HONOURABLE SHRI JUSTICE L.MOHAPATRA AND THE HONOURABLE SHRI JUSTICE B.K.PATEL ----------------------------------------------------------------------------------- Date of hearing & judgment- 27.10.2011 ----------------------------------------------------------------------------------- B.K.Patel,J. This jail criminal appeal is directed against the judgment and order dated 4.5.2000 passed by the Additional Sessions Judge, Malkangiri in Sessions Case No.77 of 1999 (S.C.No.34/98 of Sessions Judge,Koraput-Jaypore) convicting and sentencing the appellant to undergo imprisonment for life under section 302 of the Indian Penal Code ( for short, the I.P.C.). for committing murder of deceased Mangala Kirsani. 2. Prosecution case is that on 19.9.1997 at about 7.30 P.M. Mangala Kirsani appeared before P.W.6, O.I.C. of Mudulipada Police Station and orally reported that at about 5.00 P.M. while he was going towards Dangara, in the middle of the village the appellant abused and threatened him saying that he would not spare the deceased. Thereafter the appellant brought out knife M.O.I from his waist, stabbed on the deceased’s belly and left the place with M.O.I. P.W.6 reduced the oral report of the deceased into F.I.R. Ext.5 and registered the case under section 307 of the I.P.C. Deceased was sent to Khoirput Hospital. As his condition became serious he was sent to Jeypore and he died on the way. In course of investigation P.W.6 examined witnesses and effected seizure of articles including knife M.O.I. On completion of investigation, charge-sheet was submitted against the appellant under section 302 of the I.P.C. 3. Appellant took plea of complete denial. 4. In order to substantiate the charge, prosecution examined 6 witnesses. P.W.1 is the witness to seizure of knife M.O.I. P.W.2 denied his knowledge regarding the occurrence. P.W.3 is deceased’s son whereas P.W.4 is deceased’s brother before whom the deceased made dying declaration implicating the appellant. P.W.5 is the doctor who conducted Post Mortem Examination over the dead body of the deceased. Prosecution also relied upon documents marked Exts.1 to 13 and material object M.O. I. No defence evidence was adduced. Placing reliance on the dying declaration made before P.Ws. 3 and 4 stated to have been corroborated by medical evidence and 2 circumstance of seizure of M.O.I, trial court held the prosecution to have proved the charge against the appellant. 5. In assailing the impugned judgment it is contended by the learned counsel for the appellant that there is no eyewitness to the occurrence though in the F.I.R. Ext.5 stated to have been lodged by the deceased many persons are alleged to have witnessed the occurrence. Prosecution adduced evidence of deceased’s son P.W.3 and brother P.W.4 to prove that the deceased implicated the appellant in his dying declaration. P.Ws. 3 and 4 both alleged in a bald manner that the deceased told them that the appellant stabbed the deceased. Evidence is silent as to when and under what circumstances the occurrence took place. Therefore, trial court should not have placed reliance on the evidence of any of the said two witnesses. It is further argued that though in the F.I.R. it is stated that one Sundari, daughter of the deceased, accompanied him to the police station, she has not been examined by the prosecution. There is no corroboration to the evidence of P.W.6 with regard to the contents of the F.I.R. which has been treated as dying declaration. Alternatively it is argued by the learned counsel for the appellant that admittedly one stab injury was found on the deceased. F.I.R. Ext.5 also indicates that appellant dealt single knife blow on the abdomen of the deceased. Deceased appears to have died two days after the occurrence. Alleged occurrence took place all in a sudden and there is no premeditation on the part of the appellant in 3 inflicting the injury. In such circumstances, appellant cannot be said to have committed offence of murder. 6. In reply, learned Additional Standing Counsel contends that after receiving fatal injury deceased himself lodged the F.I.R. Ext.5 implicating the appellant to have stabbed on his abdomen. Contents of the F.I.R. find corroboration from the evidence of P.Ws. 3 and 4. That apart, evidence of P.W.1 and P.W.6 establishes seizure of knife M.O.I from the house of appellant. Knife M.O.I was found stained with human blood on chemical examination. Therefore, there is no infirmity in the impugned judgment. 7. We have carefully examined the materials on record. There is no eyewitness to the occurrence. It is in the evidence of P.W.6 that the case was registered on the basis of F.I.R. Ext.5 prepared on the basis of oral narration of the occurrence by the deceased on 19.9.1997. The deceased having died soon thereafter, F.I.R. amounts to a dying declaration. In the dying declaration deceased alleged that when he was going to Dangara the appellant abused him and stated that he would not spare him. Thereafter, he brought out the knife from his waist, stabbed on deceased’s abdomen and fled away with the knife. Both P.Ws. 3 and 4 have stated that the deceased told them that the appellant stabbed him with the knife. P.W.5 in course of Post Mortem Examination found one incised wound over the left upper abdomen. Cause of death of the deceased was due to severe uncontrollable intra- abdominal bleeding which led to severe shock and death. On 4 examination of M.O.I P.W.5 opined that the injury of the deceased was possible by said knife. It is in the evidence of P.W.5 that the deceased died while undergoing treatment at hospital before he could be shifted for further treatment. Evidence of P.W.6 regarding seizure of knife M.O.I from the house of the appellant under seizure list Ext.6 finds corroboration from the evidence of P.W.1. 8. Thus, prosecution has adduced cogent evidence to establish that the deceased made oral dying declaration not only before P.Ws. 3 and 4 but also before P.W.6 implicating the appellant with commission of offence. Dying declaration finds corroboration from the medical evidence and circumstance of seizure of M.O.I which was stained with human blood from appellant’s house. Therefore, finding of the trial court that the appellant stabbed the deceased by means of the knife M.O.I which resulted in death of the deceased is immune from interference. 9. However, admittedly, circumstances established in the case do not indicate that there was premeditation on the part of the appellant to kill the deceased. Appellant dealt one stab blow on the deceased and fled away. Medical evidence does not disclose injury to any vital organ. In the circumstances, we are of the considered view that appellant does not appear to have required mens rea for commission of offence under section 302 of the I.P.C. Taking the nature of injury inflicted on the deceased into account and other circumstances indicated above, it is also does not appear that the 5 appellant had any intention to inflict injury as was likely to cause death of the deceased. However, assault on the deceased’s abdomen with knife M.O.I was certainly inflicted with knowledge to cause bodily injury which was likely to cause deceased’s death. Therefore, we find appellant guilty of commission of offence under section 304, Part-II of the I.P.C. 10. In view of the above, appeal is allowed in part. Conviction and sentence against the appellant under section 302 of the I.P.C. is set aside. Instead, appellant is convicted for commission of offence under section 304, Part-II of the I.P.C. and sentenced to undergo rigorous imprisonment for seven years. It is stated that the appellant is in custody for more than 10 years. If that be so, the appellant Manglu Kirsani be set at liberty forthwith if his detention is not required in any other case. …………………… L.Mohapatra,J. ……………………… B.K.Patel,J Orissa High Court, Cuttack, Dated 27th October,2011/Palai 6