JUDGMENT : 1. Appellant was sole accused in Sessions Case No. 24 of 1995 (Sessions Case No. 46/94 GDC). Learned Second Additional Sessions Judge, Berhampur on 27.11.195 delivered the impugned judgment convicting the Appellant for the offence u/s 302, Indian Penal Code and sentencing him to undergo imprisonment for life. 2. Facts and allegations which led to the trial of the Appellant are that there was difference of opinion between deceased Ramesh Panigrahi and the Appellant on the proposal of the latter for construction of a library room and in that matter, view of the deceased prevailed and the Library room could not be constructed. For the aforesaid reason, Appellant was having grudge against the deceased. On 31.01.1994 at about 6.30 P.M., accused attacked and dealt stab blows by use of the knife, M.O.I and on sustaining multiple injuries, the deceased died. The occurrence was witnessed by the co-villagers P. Ws. 1, 2, 3 and 7. On getting the First Information Report, Ext. 1, police undertook the investigation and on completion thereof, submitted charge-sheet against the Appellant and accordingly, in the Trial Court the accused was charged for the offence u/s 302, Indian Penal Code on the basis of prima facie evidence. Appellant denied to the charge and claimed for trial. 3. In course of the trial, prosecution examined ten witnesses and relied on documents, marked Exts. 1 to 13 and the different material objects as M. Os. I to VII. Out of that M.O.I is the knife. As noted above, prosecution relied on the evidence of P. Ws. 1, 2, 3 and 7 as eye-witnesses to the occurrence. P.W. 6 was examined to prove leading to discovery of M.O.I u/s 27 of the Evidence Act. P.W. 8 was the Doctor, who conducted postmortem examination and proved the postmortem report, Ext.6 and Ext. 8 is his opinion report on M.O.I, being the possible weapon of offence. P. Ws. 4 and 5 are the two post-occurrence witnesses and between them P.W. 5 is the younger brother of the deceased. P. Ws. 9 and 10 are respectively the A.S.I. of Police and the O.I.C., who participated in investigation. Ext. 3 is the seizure list on recovery and seizure of M.O.I and Exts. 4, 5 and 11 are three other seizure lists in connection with blood-stained earth etc. and other incriminating materials. Ext. 1/1 is the F.I.R., Ext. P. Ws. 9 and 10 are respectively the A.S.I. of Police and the O.I.C., who participated in investigation. Ext. 3 is the seizure list on recovery and seizure of M.O.I and Exts. 4, 5 and 11 are three other seizure lists in connection with blood-stained earth etc. and other incriminating materials. Ext. 1/1 is the F.I.R., Ext. 10 is the spot map and Ext.13 is the report of the R.F.S.L. Berhampur on the basis of the forwarding letter, Ext.12. In his defence, the Appellant has examined a retired doctor i.e. Dr. Sadhu Charan Sahoo as D.W.I in support of his version that M.O.I could not have caused the injuries found on the body of the deceased. No other oral or documentary evidence was adduced by the accused. 4. On analysis of the evidence adduced during the trial and consideration of the contention of the parties, Learned Additional Sessions Judge rejected the contention of the defence that P. Ws. 1, 2, 3 and 7 could not have identified the culprit due to darkness at 6.30 P.M., inasmuch as, on the relevant date according to the almanac, sunset was at 5.31 P.M. In that context, considering argument of the defence and repelling it, Learned Additional Sessions Judge held that by 6.30 P.M. it would not have been that dark so as to incapacitate a co-villager to identify the culprit from a close distance of 15 to 20 cubits. In that context, he relied on the ratio in the cases of State of Uttar Pradesh v. Monoharlal and Ors. 1981 S.C.C. (Crl.) 672 and State Vs. Chaitu Kisan and Others. In that context, Learned Addl. Sessions Judge did not follow the ratio in the cases of Pandab Naravan and Ors. v. State of Orissa, 1975 C.L.R.245, Kalia alias Kasinath Muni and ten others v. State, (1993) 6 O.C.R. 23, Ram Narain Singh Vs. State of Punjab, on the grounds that facts and circumstances in those cases are distinguishable. Thus, Learned Addl. Sessions Judge held that identification of the accused by P. Ws. 1, 2, 3 and 7 from a short distance is possible at about 6.30 P.M. even if the day of occurrence was in the dark fortnight. 5. State of Punjab, on the grounds that facts and circumstances in those cases are distinguishable. Thus, Learned Addl. Sessions Judge held that identification of the accused by P. Ws. 1, 2, 3 and 7 from a short distance is possible at about 6.30 P.M. even if the day of occurrence was in the dark fortnight. 5. In the same context, while answering to the criticism on the evidence of P.W. 1 by the defence that P.W. 1 developed the case by stating that he was possessing a torch light and identified the accused by focusing the torch light is an after thought of the prosecution, Learned Addl. Sessions Judge referring to the statement of the eye witnesses recorded by the Investigating Officer in the occurrence night itself, found that P.W. 1 made statement that he focused the torch light and identified the accused. Therefore, he did not find any contradiction or improbability in the evidence of P.W. 1, because while on his way from his house to the threshing floor (to spend the night there), P.W. 1 was carrying a torchlight. At the same time, Learned Addl. Sessions Judge alternatively discussing the issue held that even without the help of torch light, there was no difficulty for P.W. 1 to identify the accused and the deceased like the other eyewitnesses because of the close proximity of distance from which the occurrence was witnessed by him. 6. Learned Addl. Sessions Judge also found that evidence of P.W. 8, the postmortem report, Ext.6 and the opinion report, Ext.8 are sufficient to record finding that the deceased suffered homicidal death. In that context, discussing on the evidence of D.W.1, a Retired Professor of F.M.T. Department of M.K.C.G. Medical College and Hospital, Berhampur, he held that the opinion expressed by D.W.1 appeared to him to be motivated. In other words, he did not find fairness in his opinion as an expert by the D.W.1. On the other hand, Learned Addl. Sessions Judge found evidence of P.W. 8 and his opinion reliable and credible, so as to prove the cause of death as homicidal and also M.O.I (knife) to be the weapon of offence. 7. Learned Addl. Sessions Judge further found evidence of P.W. 6 and the seizure list, Ext.3 prepared u/s 27 of the Evidence Act to be corroborating factor in furtherance of the proof of the charge. 7. Learned Addl. Sessions Judge further found evidence of P.W. 6 and the seizure list, Ext.3 prepared u/s 27 of the Evidence Act to be corroborating factor in furtherance of the proof of the charge. Thus, on a conspectus of such evidence on record, leaned Addl. Sessions Judge recorded the finding against the Appellant and convicted and sentenced him in the manner already indicated. 8. Dr. G.D. Tripathy, Learned Counsel while challenging the aforesaid judgment of the Trial Court argues that evidence of P. Ws. 1, 2, 3 and 7 and the finding recorded by the Trial Court about the prosecution witnesses identifying the accused and the deceased at the spot of occurrence is highly improbable and if that contention of the Appellant is accepted, then he is entitled to the benefit of doubt. On that score, he relies on the cases of Kalia alias Kasinath Muni and ten others v. State, (1993) 6 O.C.R. 23 and Gambhir Vs. State of Maharashtra, . 9. Dr. Tripathy advances the alternative argument and submits that if the aforesaid contention of the Appellant is not accepted for any reason, then looking to the whole facts and circumstance of the case, it would be appropriate to record the conviction against the Appellant for the offence u/s 304, Indian Penal Code instead of the conviction u/s 302, Indian Penal Code In support of that contention, Dr. Tripathy relies on the cases of Madhusudan Satpathy and others Vs. State of Orissa, and Panchaiah and others Vs. State of Karnataka, . 10. Mr. A.K. Mishra, Learned Standing Counsel advances argument supporting the order of conviction. In the context of competency of P. Ws. 1, 2, 3 and 7 to identify the accused and the deceased at the spot of occurrence, he relies on the ratio in the cases of Lalita Badnaik Vs. State of Orissa, and Chittarmal v. State of Rajsthan, 2002 (3) Sup, 221. He argues that evidence of P.W. 8 and the postmortem report, Ext. 6 indicates about as many as ten stabbed injuries inflicted by the accused to the various parts of the body of the deceased including the chest and waist and the instantaneous death of the deceased because of such stabbed injuries. Apart from that, there was no provocation given by the deceased nor there was any immediate cause for assaulting the, deceased in such a heinous manner. Apart from that, there was no provocation given by the deceased nor there was any immediate cause for assaulting the, deceased in such a heinous manner. Under such circumstance, the number of injuries caused by the accused clearly depicts its intention to kiil the deceased and therefore the alternative argument the Appellant is also not entertainable. No other contention is raised from either of the parties. 11. P.W. 8 stated in his evidence that on examining the dead body he found the following external injuries - (i) Incised stab injury on left thigh interiorly above the pattlus 1"x 1" x 1" depth. (ii) Incised stab injury 1" x 2" x 2" depth on the antrolateral aspect of the left knee joint. (iii) Incised stab injury 2" x 2" x 2" on the back side of the waist at L two level. (iv) Incised stab injury 1" x 2" x 2" depth over left side the waist on the iliac crest.. (v) Incised stab injury on the backside of left knee joint 2" x 1" x 2" depth. (vi) Incised stab injury on the back side of the left leg below the knee joint 1" x 1" x 2" depth. (vii) Incised stab injury 1" x 1" x 4" depth over front side of the chest lateral to the sternum at T 3 cartilage. (viii) Incised stab injury 1" x 1" x 2" depth on the left side of front part chest at the 5th intercostal space. (ix) Incised stab injury 1" x1" x 5" depth on the left thigh above the knee joint. (x) Incised stab injury 1" x 1" x 4" on the left side of the umbilicus. He further stated that - The cause of death - The incised stab injury on the front side of the chest over the pericardium which was pierced and punctured left atrium and right atrium. He also opined that upon production of M.O.I, he examined the same and gave his Opinion Report, Ext.8 that the injuries found on the dead body of the deceased are possible by that weapon. Thus, the unchallenged finding of Learned Addl. Sessions Judge regarding homicidal death of the deceased is found to be correct. 12. He also opined that upon production of M.O.I, he examined the same and gave his Opinion Report, Ext.8 that the injuries found on the dead body of the deceased are possible by that weapon. Thus, the unchallenged finding of Learned Addl. Sessions Judge regarding homicidal death of the deceased is found to be correct. 12. Amongst the eye witnesses, P.W. 1 deposed that at the relevant time, when he was proceeding to his thrashing floor, he found the deceased and P.W. 7 talking with each other standing on the roadside in front of the cowshed of Ramesh Panigrahi. He moved at the distance of ten cubits from them and then saw accused coming from the opposite direction and crossed him. He proceeded a further distance of about ten cubits and at that time heard the sound produced from his back by the accused and when he looked back focusing his torch, he saw the deceased was lying on the ground and accused was dealing successive blows to the deceased by means of a knife. He narrated that time to be about 6.30 p.m. P.W. 2, another eye witnesses to the occurrence stated that at about 6.30 p.m. while he was returning home after taking a bath in the river, he saw the deceased and P.W. 7 talking with each other at the same spot. He went to his house situated at a distance of 20 to 25 cubits from that spot. Therefrom he heard the shout of the deceased and rushed to the spot and there he saw the accused indiscriminately giving stab blows to the deceased by means of a knife. P.W. 3, the third eye witness to the occurrence sated in his evidence that at about 6.30 p.m. he was returning to the home after attending to call of nature in the river, and in that process he saw the deceased lying on the ground and the accused stabbing him by means of a knife. He also saw P. Ws. 1 and 2 reaching the spot. P.W. 7, the other eye witness to the occurrence stated in his evidence that while he was going to his (deceased) sugar-cane field, he saw the deceased standing in front of his cowshed. The deceased detained P.W. 7 and asked him to come to his house and shave him in the next morning. 1 and 2 reaching the spot. P.W. 7, the other eye witness to the occurrence stated in his evidence that while he was going to his (deceased) sugar-cane field, he saw the deceased standing in front of his cowshed. The deceased detained P.W. 7 and asked him to come to his house and shave him in the next morning. When he and the deceased were engaged in chitchatting, accused arrived at that place and attacked the deceased by dealing stab blows on the chest. On receiving that blows deceased fell down and shouted for help and thereafter accused again stabbed him and then number of persons including P. Ws. 1, 2 and 3 arrived at the spot. Though each of those Witnesses were cross examined, but nothing could be elicited from their mouth so as to discredit their version or to bring out any material contradictions save and except pointing out that P.W. 1 did not state before the police that he was possessing a torch light. In the case of Chittarmal (supra), taking into consideration omission in the statement of the eye witnesses about availability of illumination from the electric bulb, their Lordships held such omission to be of no consequence and fatal to the case of the prosecution and in that respect Their Lordships also took note of the fact that the site inspection made by the Investigating Officer mentioned about availability of an electric bulb. 13. In the case of Kalia (supra), this Court set aside the order of conviction of the Appellants on various grounds, such as non-availability of the eye witnesses because of gap in their evidence, delayed examination of the eye witnesses to the occurrence and no positive evidence about identification in the darkness at 7.45 p.m. in the night. The facts and circumstances in that case are distinguishable so also the ratio on identification in the night. In the same context, the ratio in the case of Gambhir (supra) is also not found relevant, in as much as, in that case there was no eye witness to the occurrence and the case was depending on circumstantial evidence. On the other hand, in the case of Lalita Badnaik (supra), taking into consideration identification of the accused by eye witnesses, their Lordships held that - We have been taken through the evidence of P. Ws. 4 and 5. On the other hand, in the case of Lalita Badnaik (supra), taking into consideration identification of the accused by eye witnesses, their Lordships held that - We have been taken through the evidence of P. Ws. 4 and 5. It was, no doubt, a dark night and there had been no illumination near about the place of occurrence. It must however, be kept in mind, as the evidence would clearly show, that the Appellant, a co-villager, was very well-known to P. Ws. 4 and 5 and "'(as a close relation of the deceased and his wife. In such circumstances, the evidence of identification of the Appellant by P. Ws. 4 and 5 is not to be thrown over-board merely because it was a dark night. Persons who are very well-known can be identified when seen at very close quarters by the light of the stars and by their centours and gait. No doubt, there can be no authority on a question of fact, but in similar circumstances, the evidence of identification had been accepted by this Court in 1982 CLR (Cri) 241: Budhia Singh v. State. It thus appears that identity of the accused cannot be doubted in this case. Under such circumstance, finding recorded by the Trial Court accepting Appellant as the assailant of the deceased has to be accepted. 14. At this stage, it is appropriate to consider the alternative argument of the Appellant for his conviction u/s 304, Indian Penal Code In the case of Madhusudan Satpathy (supra), several persons assaulted by wood planks and only the first Appellant gave a Valla blow. Taking into consideration that aspect, the High Court found it not to be case of intention to commit murder and accordingly, convicted the Appellants for the offence of culpable homicide punishable u/s 304, Part-I, Indian Penal Code In the case of Panchaiah (supra), the Apex Court found that due to the disputes on outraging the modesty of the sister of some of the Appellants, they along with other co-accused persons assaulted the deceased by means of cycle-chain and clubs and most of the injuries were minor and simple, save and accept the head injury. Taking consideration of such circumstance, the punishment from u/s 302, Indian Penal Code was modified to conviction u/s 304, Part-II, Indian Penal Code 15. Taking consideration of such circumstance, the punishment from u/s 302, Indian Penal Code was modified to conviction u/s 304, Part-II, Indian Penal Code 15. In the present case, it is the sole accused who dealt repeated knife blows on various parts of the body of the deceased so as to cause ten incised stab injuries. Though the fatal injury was stab injury to the front of the chest over the pericardium, but the facts and circumstances of the case leave no room for doubt that accused had intended to kill the deceased and therefore his conviction for the offence u/s 302, Indian Penal Code is appropriate. Accordingly, we do not find any merit in the argument of the Appellant for modification of the conviction and the sentence thereof. 16. For the reasons stated above, the Criminal Appeal is dismissed by maintaining the order of conviction and the sentence. 17. Appeal dismissed. Final Result : Dismissed