Mahendra Rana Vs. State of Orissa - 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. - therefore, their evidence is unreliable ;(3) that in case there is a defence version which explains the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which completes in probability with that of the prosecution one. the homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side.a. pasayat, j. 1. appellant mahendra rana (hereinafter referred to as 'the accused') faced trial for allegedly having committed offence punishable under section 302 of the indian penal code, 1860 (in short, 'ipc'), and on being found guilty by the learned additional sessions judge, sambalpur has been sentenced to undergo rigorous imprisonment for life.2. prosecution version in short is as follows :on 18-7-1993 at about 8 p. m. the accused was standing in front of the house of lalit kanta and was abusing him. on hearing the shouts of the accused, the informant sricharan kanta (pw 1) came out of his house, and intervened. at that point of time sricharan's elder brother gopal kanta (hereinafter referred to as 'the deceased') came out of the house and chastised the accused for creating tension. there was exchange of hot words, wordy and physical duel. the accused suddenly picked up a piece of wood which was lying on the ground and gave a blow above the right ear of the deceased, on receipt of which the deceased fell down and became unconscious. seeing this the accused dropped the piece of wood there, and ran away to his house. in spite of treatment by the doctor, deceased breathed his last around 10.30 p. m. that night. first information was lodged upon which investigation was undertaken. on completion of investigation charge-sheet was submitted.3. the accused pleaded innocence. according to him, he was assaulted by sricharan kanta (pw 1), sankar kanta (pw 2), sitaram kanta (pw 3) and lalita kanta (pw 6) and deceased. since he sustained bleeding injuries on his head, he reported the matter at the police station and was examined by the doctor on police requisition.4. twelve witnesses were examined to further the prosecution version. pws 1, 2 and 3 claimed to be eye-witnesses. placing reliance on their evidence learned trial judge found the accused guilty and convicted and sentenced him as aforesaid.5. in support of the appeal mr. b. panda, learned counsel submitted that only interested and partisan witnesses were examined which affects credibility of the prosecution version. the prosecution has not explained the injuries on the body of the accused. that also is a vulnerable factor. additionally it is submitted that only one blow was given by the accused during a sudden fight upon a sudden quarrel and therefore, a case under section 302, ipc is not made out. the teamed counsel for state supported the judgment of conviction and sentence.6. so far as examination of interested and partisan witnesses is examined, it is to be seen that presence of any other person at the alleged spot of occurrence has not been established. there is no evidence to show that any other person other than the- eye-witnesses saw the occurrence. additionally the witnesses are related to both the accused and the deceased. the witnesses who are related to the deceased are normally expected to point the accusing finger at the real assailant and not to shield him. no enmity has been proved between the accused and the witnesses. a witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such an enmity against the accused, to wish to implicate him falsely. when a plea of hostility is advanced, foundation for the same has to be laid. without it same has to be rejected out-right. the learned trial judge on analysis of evidence of the witnesses found nothing improbable in their evidence as regards the occurrence. he was justified in placing reliance on the evidence of witnesses.7. so far as infliction of single blow is concerned, there is no probation that whenever a single blow has resulted in the death. section 302, ipc is not to be applied. it would all depend upon the facts and circumstances of each case, the nature of weapon used, the part of the body where the assault is made, and the background facts leading to assault are to be borne in mind. the admitted case is that there was a mutual fight between the accused and the deceased. the question is whether prosecution has explained injuries on the accused; and if there is no such explanation what would be its effect it cannot be said that in each and every case where prosecution fails to explain the injuries on some of the accused, the prosecution case should automatically be rejected, without any further probe. where the prosecution fails to explain the injuries on the accused, two results follows: that is, the evidence of the prosecution witnesses is untrue, injuries probabilise the plea taken by the accused. as observed by the apex court in lakshmi singh and ors. v. state of bihar : (1976) 4 scc 394, in a case involving murder or serious injuries, non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance from which the court can draw following inferences :(1) that the prosecution has suppressed the gensis and the origin of the occurrence and has thus not presented the true version; (2) that the witnesses who have denied the presence of the injuries on the person of the accused one lying on a most material point, and. therefore, their evidence is unreliable ; (3) that in case there is a defence version which explains the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which completes in probability with that of the prosecution one. but where the evidence is clear, cogent and creditworthy and where the court can distinguish the truth from falsehood the mere fact that injuries are not explained by the prosecution cannot by itself be a sole basis to reject such evidence, and consequentially the whole case. additionally, prosecution version does not become suspect because some minor or superficial injuries are not explained by the prosecution. much depends on the facts and circumstances of each case.8. in the case at hand, the blow was given in course of a quarrel. the fourth exception of section 300, ipc covers acts done in a sudden fight. the said exception deals with a case or prosecution not covered by the first exception, after which its place would have been more appropriate. the exception is founded upon the same principle for in both there is absence of pre-meditation, but while in the case of exception i there is the total deprivation of self-control in case of exception 4 there is only that heat of passion which clouds men's sober reason and urges them to deeds which they would not otherwise do. there is provocation in exception 4 as in exception 1, but the injury done is not the direct consequence of that provocation. in fact, exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet toe subsequent conduct of both parties puts them in respect of guilty upon equal footing. a 'sudden fight' implies mutual provocation and blows on each side. the homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the whole blame be placed on one side. for if it were so the exception more appropriately applicable would be exception 1. there is no previous deliberation pr determination to fight. a fight suddenly takes place, for which both parties are more or less to be blamed. it may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. there is then mutual provocation and aggravation and it is difficult to apportion the share of blame which attaches to each fighter. the help of exception 4 can be invoked if death is caused; (a) without premeditation; (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or usual manner; and (d) the fight must have been with the person killed. to bring a case within exception 4 all the ingredients mentioned in it must be found. it is to be noted that the 'fight' occurring in exception 4 to section 302, ipc is not defined in the ipc. it takes two to make a fight. heat of passion requires that there must be no time for the passion to cool down and in this case the parties have worked themselves into a fury on account of the verbal altercation in the beginning. a fight is a combat between two and more persons whether with or without weapons. it is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel, it is s question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. for the application of exception 4, it is not suffidient to show that there was a sudden quarrel and there was no premeditation. it must further he shown that the offender has not taken undue advantage or acted in cruel or unusual manner. the expression 'undue advantage' as used in the provision means 'unfair advantage'. considering the background facts as indicated above, in our opinion, this was a case where exception 4 to section 300 is to be applied.9. section 304 applies when the case falls under one or the other clauses of section 300, but is covered by the exceptions to that section. a reference to section 304 would show that in part i there is intention while in part ii there is only knowledge or intention is expressly excluded. the second limb applies when the act is dons with the knowledge that it is likely to cause death, but without any intention to cause death. there is recognised difference in criminality between an intentional act and an unintentional act done with the knowledge of the consequences. in the case at hand, one blow as given in course of a sudden fight upon a sudden quarrel without any premeditation, as the facts situation would go to show. but the accused can be attributed to the knowledge that the blow given by him causing injury was likely to cause death, in the circumstances, we are of the view that the second limb of sec 304, ipc, is applicable. the accused is to be convicted accordingly.10. the conviction of the accused under section 302, ipc is set aside, and he is convicted under second limb of section - 04, ipc. considering the background, seven years' custodial sentence would be meet and proper.the appeal is allowed to the extent indicated above.p.c. naik, j. 11. i agree.