The central legal point established in the judgment is the interpretation and application of the legal provisions under section 302 and section 304 of the IPC in the context of the evidence presented.

JUDGMENT

D Dash, J. - 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 crossexamination when he has stated to have seen the A