Allowed

Kondagiri Dangeya v. State

Orissa HC8 Apr 2021JCRLA/134/2004

Case brief

AI extract

What is this about?

In a double bench disagreement, Justice Dash allowed the appeal by convicting the appellant for culpable homicide under section 304 IPC instead of murder under section 302 IPC, ruling it was a sudden fight without premeditation and sentencing him to ten years rigorous imprisonment.

What did the court decide?

Appellant convicted under Section 304 Part I IPC instead of Section 302 IPC and sentenced to ten years rigorous imprisonment.

Kondagiri Dangeya Vs State — Murder and Culpable Homicide | Orissa HC (2021)

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HIGH COURT OF ORISSA: CUTTACK.

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JCRLA No.134 of 2004

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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.

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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:

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THE HONOURABLE SHRI JUSTICE D.DASH

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Date of hearing-18.03.2021:: Date of judgment-08.04.2021

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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.

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Being aggrieved by the said judgment of conviction and order of sentence, he has filed the Appeal.

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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

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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.

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2. Facts as are necessary run as under:-

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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

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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.

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The defence plea is that of denial.

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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.

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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.

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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.

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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 crossexamination 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

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this witness with the Appellant in having the tendency to grind axe against him appears.

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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.

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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.

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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

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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.

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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

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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.

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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

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decisive factor or impediment for the said Exception to be attracted.

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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.

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Consequently, in my considered view, sentence of rigorous imprisonment for a period of ten years would meet the ends of justice.

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The Appeal is allowed to the aforesaid extent.

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…. ………………

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D. Dash, J.

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Dated the 8th day of April, 2021/Aswini

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Orissa High Court, Cuttack,

Kondagiri Dangeya v. State

Case brief

What is this about?

What did the court decide?

Kondagiri Dangeya v. State

Case brief

What is this about?

What did the court decide?

What the court decided

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