R. Jagadish Murty Vs. Balaram Mohanty and ors. - 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. - he elaborately discussed the evidence of various witnesses and medical evidence to come to conclusion that prosecution has failed to bring home charges against accused persons. this course can be adopted where lower court has acted (i) in a manner contrary to well-established principles of law, (ii) without any evidence to support the finding, and (iii) illegally in arriving at a finding which is perverse, or such as reasonable person could have arrived at on the evidence produced 9. keeping these well-settled principles of law in view, i find that learned trial judge had made an elaborate analysis of evidence on record.a. pasayat, j.1. order of acquittal passed by learned assistant sessions judge, chatrapur is assailed by the alleged victim.2. prosecution version is that on 21-8-1984 in the evening one cangadhar behera, informant (pw 1) was coming along with ulia mahakuda (pw 6 ) from jamuni in a bicycle when they reached at a road-junction, the lungi of informant gave way for which they stopped there. at that point of time, petitioner along with one jagat mohan patnaik (pw 12) were coming, riding a luna moped. when the petitioner and the said jagat mohan patnaik reached the panchudola tota junction accused balaram mohanty kept his bicycle in front of the luna, in order to obstruct petitioner's movement. at that time accused laxminarayan mohanty, pari mohanty and suduru mallik armed with deadly weapons came out of the shop of accused govinda padhi, surrounded petitioner and assaulted him. accused laxminarayan dealt a kati blow which struck the left thumb of petitioner, he raised his left hand to obstruct the blow, thereafter successive kati blows were inflicted on petitioner and pw 12 who was trying to ward off attack on him sustained cut injuries. petitioner was also assaulted by a lathi and he fell down after having received several bleeding injuries. accused laxminarayan and balaram trampled over his leg, as a result of which it was fractured. assault was going on at the behest of govinda padhi and ghanashyam padhi. it continued till gangadhar behera (pw 1) and others intervened. gangadhar behera lodged fir at purushottampur police station at about 7-30 p. m. investigation was taken up, petitioner and pw 12 were sent to the p. h. c. for examination and treatment. later on, petitioner was removed to the m. k. c. g. medical college hospital, berhampur as his condition deteriorated. after completion of investigation, charge-sheet was submitted for offences punishable under sections 148, 307 and 324 read with section 149 of the indian penal code, 1860 (in short the 'ipc').3. plea of accused persons was one of complete denial. their case was that petitioner and jagat mohan patnaik sustained injuries due to fall from luna.4. according to the fir lodged, pws 1, 2, 6 to 9 were allegedly present at the spot of occurrence. pw 12 was indicated to be one of the victims of assaults. during trial, evidence of pw 12 was to the effect that he and petitioner were coming in a luna from taratarini junction at about 12 noon and on their way they met with an accident as a result of which they fell down and sustained injuries. he further stated that since luna ran over a stone, jaga lost balance and they fell down. evidence of pw 12 is very vital. but instead of furthering petitioner's case it has corroded it to the core. evidence of pw 4 was also to similar effect. pw 2 did not say anything regarding the occurrence. pw 3 deposed that accused suduru assaulted the bearded boy meaning jagat mohan, but he did not state if accused suduru and laxminarayan assaulted petitioner by means of kati causing injury on his right hand. evidence of pw 5 was at variance with that pws 3 and 14. his evidence is of no consequence since it depicts an entirely new picture. evidence of pw 10 is not acceptable because same is at variance with what was stated by him before the i. o. during investigation. charge under section 324, ipc was held to be not sustainable against accused suduru and laxminarayan by learned trial judge. so far as charge under sections 148, 307 and 149, ipc is concerned, all the accused persons stood charged thereunder. referring to the evidence of pws 2 and 6 to 9, learned trial judge found that they did not further case of the prosecution and on the contrary, their evidence was highly discrepant. he also found that evidence of pw 12, alleged co-injured dealt a death blow to the prosecution version. he elaborately discussed the evidence of various witnesses and medical evidence to come to conclusion that prosecution has failed to bring home charges against accused persons. he specifically referred to medical evidence. various discrepancies were highlighted by learned trial judge to indicate non-sustainability of prosecution version. injuries as apparent from xray plates were completely at variance with evidence of the injured and eye witnesses. he therefore, disbelieved prosecution version regarding assaults and alleged injuries on petitioner held that accused persons opp. parties were entitled to acquittal, and and acquitted them under section 235(1) of the criminal procedure code, 1973 (in short the 'code').5. learned counsel for petitioner assails correctness of order of acquittal, on the ground that the same suffers from vice of non-consideration of evidence and non-application of judicial mind. learned counsel for opp. parties 1 to 7 however, submits that revision at the instance of alleged victim was not maintainable, particularly when he was not informant. it is further submitted that this is not a case of non-consideration of material evidence, but a case of inference drawn from available material. therefore, there is no scope for interference with the order, the same being one of acquittal.6. question whether an alleged victim can move for interference needs examination. it is to be noted that section 397(1) of the code does not say on whose motion court may call for the records of the lower court, but sub-section (3) indicates that an aggrieved party may make an application. so far as high court is concerned, section 401(1) expressly authorises the court to exercise power of revision suo motu apart from the application from a party. the complainant is entitled to move a revision even if state does not. on the same consideration, revision is maintainable at the instance of aggrieved private party, even if prosecution was instituted by police and not on the basis of a complaint. (see air 1972 sc 1788 (k. chinnaswamy reddy v. state of andhra pradesh and anr. : air 1970 sc 272 : khetra basi samal and anr. v. the state of orissa etc. air 1973 sc 799 : amar chand agarwala v. shanti bose and anr. : and air 1975 sc 1854. pakafapati narayana gajapati raju and ors. v. bonapalli peda appadu and anr.). therefore, revision as filed by injured is maintainable.7. next question is whether any interference is called for in this revision. high court in a revision is empowered to interfere with an order of acquittal and direct fresh trial. while high court sitting in appeal under section 386 of the code, can convert finding of acquittal into one conviction, section 401, sub-section (3) debars converison of acquittal into conviction. high court, however, would not disturb a finding of fact unless it appears that trial court shut out any evidence, or overlooked any material evidence or admitted inadmissible evidence or where there has been manifest error on a point of fact. circumstances in which retrial may be ordered, without being exhaustive are (i) where trial court has no jurisdiction to try a case, (ii) where trial court has wrongly shut out evidence which prosecution sougnt to produce, (iii) where material evidence has been overlooked, (iv) where acquittal is based on a compounding of the offence which is invalid under law; and (v) where the appellate court has wrongly held evidence admitted by trial court as inadmissible.8. though power to determine correctness of finding extends to a finding of fact, a court of revision would not ordinarily re-assess evidence and interfere merely because view of trial court as to evidence does not commend to itself, because that would be exercising power of appeal in the guise of revision in a case where right of appeal has been curtailed by legislature. revision would not lie on the mere ground of misappreciation of evidence. (see air 1975 sc 580 : satyendra nath dutta and anr. v. ram narain.) it is however, permissible to go into evidence as to the facts, where it is necessary to do justice to the parties. this course can be adopted where lower court has acted (i) in a manner contrary to well-established principles of law, (ii) without any evidence to support the finding, and (iii) illegally in arriving at a finding which is perverse, or such as reasonable person could have arrived at on the evidence produced9. keeping these well-settled principles of law in view, i find that learned trial judge had made an elaborate analysis of evidence on record. his conclusions cannot be termed to be perverse and unreasonable, considering evidence of each material witness in its material particulars. i do not find any material evidence which has been overlooked.10. emphatic assertion was made by petitioner about discarding of evidence relating to fracture. it is urged that where medical evidence is at variance with evidence of eye witnesses, latter is to prevail.11. ordinarily, the value of medical evidence is only corroborative. it proves that the injuries could have been caused in the manner alleged and nothing more. the use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eye-witnesses. unless, however the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by eye-witnesses, the testimony of the eye witnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence. (see solanki chimanbhai ukabhai v. state of gujarat: air 1983 sc 484 ).12. where the 'eye witnesses' account is found credible and trustworthy, medical opinion pointing to alternative possibilities is not accepted as conclusive. witnesses, as bantham said, are the eyes and ears of justice. hence the importance and primacy of the quality of trial process. eye witnesses' account would require a careful independent assessment and evaluation for their credibility which should not be adversely prejudged making any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. the evidence must be tested for its inherent consistency and the inherent probability of the story, consistency with the account of other witnesses held to be credit-worthy consistency with the undisputed facts; the 'credit' of the witnesses, their performance in the witness box; their power of observation etc. then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation. (see state of u. p. v. krishna gopal and anr. : air 1988 sc 2154).13. judged in that background, it is to be seen whether even though medical evidence is accepted to be at variance with the version of the eye-witnesses, latter passed test of credibility. learned trial judge has highlighted inherent improbabilities and inconsistencies in prosecution evidence his conclusions cannot be termed as conjectural inferences. intrinsic merits have been adequately and appropriately scanned.14. therefore, in the ultimate analysis, the order of acquittal is irreversible and there is no scope for interference in this revision application.