Kulamani Sandha Vs. State - Court Judgment

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- labour & services pay scale:[tarun chatterjee & r.m. lodha,jj] fixation - orissa service code (1939), rule 74(b) promotion - government servant, by virtue of rule 74(b), gets higher pay than what he was getting immediately before his promotion - circular dated 19.3.1983 modifying earlier circular dated 18.6.1982 resulting in reduction of pay of employee on promotion held, it is not legal. statutory rules cannot be altered or amended by such executive orders or circulars or instructions nor can they replace statutory rules. - ws, 5 and 9, both the appellant and the deceased came from the village side and the deceased complained before him of being -abused by the appellant in filthy language. 7) conducting the post mortem examination on the back, the witnesses must be held to be unreliable. but merely because of that, i do not think the evidence of the two witnesses his to he thrown out since it is well -known that when there is conflict between the ocular statement and the medical evidence, the ocular statement is to be preferred. 1 is the son of the person who was in litigation with--the appellant it is possible to be contended that he had an adverse interest againt the appellant and hence under such circumstances when independent witnesses ware available, the prosecution would have been well advised to examine such witnesses to allay any charge of only interested and inimical witnesses having been examined. death, indeed in the well known case of pakala narayana swami v. hence so far as the transaction is one in which the death resulted, the assault by the appellant on the deceased which resulted in injuries which developing the infection resulted in his death would undoubtedly be a circumstances of the transaction and the statement being regarding such circumstance is clearly admissible under section 32(1). in another case, air o 1924 nagpur 115(2) (chunnilal v. 8 is also clearly admissible under section 8 of the evidence act as the conduct of a person, the offence against whom is the subject of the proceeding, i.l. rath, j.1. the appellant, who faced the trial under section 304, ipc but was convicted under section 323, ipc and sentenced to six months' rl has preferred this appeal. the indictment which he faced was that on 15-7-1983 at about 9 a. m. he called the deceased from his house, took him towards a banian tree where in the presence of p. ws, 1, 5, 9 and 12 and some others, he abused the deceased in filthy language and assaulted him with a yoke which was lying there causing head injury and an injury to his right thigh. the deceased looped a station diary entry ext 8 in the police station on the same day. the deceased was sent for medical examination but as the injuries were found to be simple, he was advised by the police to approach the court. the deceased was not admitted to any hospital but was taking treatment as an outdoor patient, but subsequently, infections having set in, he died on 28-7-1983. f. i. r. was lodged by his .son on 29-7-1981 2. though the prosecution examined p.ws. 1, 5: 9 and 12 as ocular witnesses, yet the learned additional sessions judge did not re!y upon the evidence of p. ws. 9 and 12 and hence the only residuary evidence to establish the culpable conduct of the appellant is the evidence of p. ws. 1 and 5. such fact is also not disputed by mr. h. k. jena, the learned additional government advocate. w, 1 stated that he is a cycle pepairer who carries on repairing, work under a banian tree at the end of the village and that on the day of the occurrence at about 2 or 3 p. m. while he was sitting under the banian tree along with p. ws, 5 and 9, both the appellant and the deceased came from the village side and the deceased complained before him of being - abused by the appellant in filthy language. the appellant also abused the deceased filthily in his presence p. w. 1 advised the appellant as to why he was abusing the deceased but the appellant esserted that he would assault the deceased and notwithstanding the persuasions of the witness, picked up a yoke m. o i which was lying there arid gave three blows, one to the back of the deceased, the second blow to his head and, when the deceased fell down, the third blow on his right thigh. after that he threw m. o. i. and left the place. due to the assault the deceased received bleeding injuries. 1 he evidence of p. w. 5 was also to the same effect. so far as p. w. 9 is concerned he was permitted to be cross-examined by the prosecution since he stated of the appellant having given only one blow to the back of the deceased on account of which he fell down and of not having seen ' any other blow having been given. he however stated that he saw bleeding injuries on the left side head of the deceased but could not- say as to how that injury came by.3. the evidence of p. ws. 1 and 5 has been assailed since p. w. 1 admitted that the appellant had initiated a proceeding under section 145 cr, p. c. three to four years back against his father and cousin brother pitambar sandha and of his father having filed a damage suit in 1980 against the appellant in the court of the munsif, sonepur. the evidence of p. w. 5 has been assailed as he ii admittedly the brother-in-law of p. w. 1 having married his sister. it was for such reason contended that the witnesses were inimical to the appellant and could not be relied upon. besides, mr. das also contended that since both the witnesses consistently stated of the deceased having received three injuries, the first being on his back f off owed by the injury on the' head and thereafter on the right thigh but no injury hiving been found by the doctor (p. w. 7) conducting the post mortem examination on the back, the witnesses must be held to be unreliable. the third submission of mr. das is that since admittedly-other independent eye witnesses were available but were held back by the prosecution, its case must be viewed with suspicion and the conviction of the appellant must be set aside.4. so far as the evidence of p. w. 7, the doctor having not found any injury on the back of the deceased is concerned, i do not think it has any relevance. it is the evidence of p. w. 5 that due to the assault on the back of the deceased his back had swollen up. p. w. 7 did not notice such injury when he examined the deceased. but merely because of that, i do not think the evidence of the two witnesses his to he thrown out since it is well -known that when there is conflict between the ocular statement and the medical evidence, the ocular statement is to be preferred. it is however a fact that apart from p. ws. 1 and 5, other independent witnesses were available. it is the very statement p;w. 1 that dolamani, nilamani and gourahari were sitting near him when the occurrence took place. such persons have not been examined. since p. w. 1 is the son of the person who was in litigation with-- the appellant it is possible to be contended that he had an adverse interest againt the appellant and hence under such circumstances when independent witnesses ware available, the prosecution would have been well advised to examine such witnesses to allay any charge of only interested and inimical witnesses having been examined. but that by itself is not sufficient to' discard the evidence of these two witnesses though their evidence is to be approached with greater caution and the evidence would be liable to closure scrutiny. under such circum- stances it will be safer to look for some other corroborations for their evidence,5. mr. das has strongly contended that ext. 8, the station diary entry made by the deceased, is not admissible in evidence as it does not satisfy the requirement of section 32(1) of the evidence act and for the purpose placed reliance on air 1961 sc 900 (moti singh and anr. v. the state of uttar pradesh), 1971 cri. i. j. 91 (chandrabhan singh and ors. v. state) and air 1943 calcutta 465 (abdul gani bandukchi and ors. v. emperor) it is his submission that since the death of the deceased was not due to the assault and as the doctor has opined that the deceased died due to asphyxia caused probably due to tetanus because of previous injuries, the death cannot be said to be re! stable to the injury on the head or the thigh and hence ext. 8 would not be a dying declaration, i am afraid such submission is not of such help to the appellant since apart from the question whether the statement is admissible under section 32(1) of the evidence act, it is also otherwise admissible under either section 6 or section 8 of the said act. in air 1964 sc 900 (supra) their lordships held that where the prosecution does not establish the death of the deceased to have occurred as a result of the injuries received by him during the incident where he was alleged to have been killed, the statement of the deceased relating to the incident cannot be said to be statement made as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death. the decision was rightly distinguished by a decision of this court in , 1990 (ii) olr 51 ,(1393) 3 ocr 73 (ohaneswar sahu v. damodar parida and others) where it was pointed out by justice j das. that in that case the deceased, who had received gun shot injuries, was treated in the hospital and after treatment had left the hospital. lt was not known as to whether he was discharged from the hospital after the injuries were healed up or before that. his dead body was also burnt before arrival of the investigating officer. the gun shot injuries were on 9-2-1960 whereas his death occurred 1 on .1-3-1960. there was thus no evidence as to what caused his death. but so far as the present case is concerned, there is no such uncertainty here. the deceased had received injuries op his head and thigh as was found by the doctor (p, w. 7) for which he was taking treatment but the injuries got infected. p. w. 7 stated that death was due to asphyxia probably due to tetanus as there was history of previous injuries and explained that by previous injuries, he meant the injuries as, was found in ext 4, the injury report on 15-7-1983. , the station diary may be. regarded as a statement relating to the circumstance , of the assault which is the transaction related to his. death, indeed in the well known case of pakala narayana swami v. emperor (air 1939 pc 47) the privy council held that a statement admissible under section 32(1) may be. made before the cause of death has arisen or before the day the deceased has any reason to anticipate being killed. it was pointed out that the words 'circumstances of the transaction' would mean circumstances that have some proximate relation to the actual occurrence and must be of the transaction which resulted in the death of the declarant and that in such context; the statements made by the deceased that he was proceeding to the spot where he was in fact killed, or as to his reasons for so proceeding, or that he was going to meet a particular person, or that he had been invited by such person to meet him, would each of them be circumstances of the transaction and would be so whether the person was unknown or was not the person accused. hence so far as the transaction is one in which the death resulted, the assault by the appellant on the deceased which resulted in injuries which developing the infection resulted in his death would undoubtedly be a circumstances of the transaction and the statement being regarding such circumstance is clearly admissible under section 32(1). in another case, air o 1924 nagpur 115(2) (chunnilal v. king-emperor) a report made by the deceased that he was slapped by a pahalman because he refused to deliver the keys of the house was held admissible under section 32(1) as disclosing the motive for the murder, where the next day the deceased was murdered by a person who was identified as his assailant on the previous day. 1971 cri. l j. 94 (supra) is a decision, which relies upon air 1964 sc 900 and air 1943 calcutta 465 (supra), to the effect that if there is nothing to show that the injury to which a statement relates was the cause of the injured's death, or that the circumstances under which it was received resulted in his death, the statement is not admissible under section 32(1) of the evidence act6. on the other hand, the learned additional government advocate has placed reliance on two decisions, air 1964 assam 53 (krishna ram das v. the state) and air 1968 allahabad 83 (state of u. p.. v. moti lal). in the former case where the deceased has received certain injuries on the ribs on 18-12-1959 and he died on 23-12-1959, and it was the evidence of the doctor, that the injuries were a contributing factor to the death, it was held that the statement of the deceased obviously related to the circumstances of the transaction which ultimately resulted in his death and was relevant under sec 32 (1) of the evidence act, and that such statement was also admissible under section 6 thereof since a statement made by a victim so shortly after the incident as to become part of the same transaction with it, are relevant the citation applies to the facts of the present case. in the latter case an fir lodged by the deceased was treated as the dying declaration.7. apart from the question of section 32(1) and section 6, ext. 8 is also clearly admissible under section 8 of the evidence act as the conduct of a person, the offence against whom is the subject of the proceeding, i. e. the trial, since such conduct is influenced by the fact in issue or relevant fact so far as section 324, ipc is concerned, i. e. the fact of his having received injuries at the hands of the appellant. hence the statement of the deceased shortly after the assault that in fact he was assaulted by the appellant is admissible as his conduct under the section. this view is also supported by air 1972 sc 622 (damodar prasad and ors. v. state of maharashtra) and air 1975 sc 757 (shankar v. state of u. p.).8. since i have already held that ext. 8 was admissible in evidence, it has to be held that it affords sufficient corroboration to evidence of p. ws. 1 and 5 regarding the assault on the person of the deceased and hence it must be held that the prosecution has been able to establish the offence against the appellant.9. in the result, the appeal has no merit and is dismissed.