Jagan Saha and anr. Vs. State - Court Judgment

Excerpt:
- 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. - 7. the evidence of pw 2 clearly establishes guilt of the accused persons. on the contrary, it is clearly provided in section 134 of the indian evidence act, 1872 that no particular number of witnesses shall in any case be required for the proof of any fact.a. pasayat, j.1. the two petitioners and one sadhu saha faced trial on the accusation of having committed an offence punishable under section 429 of the indian penal code, 1860 (in short, 'ipc') read with section 34, thereof the learned sdjm, titilagarh found all the three accused persons guilty of such offence and convicted and sentenced each one of them to pay a fine of rs. 500/-, in default of payment of fine, rigorous imprisonment for one month was imposed. in appeal, the learned addl. sessions judge. titilagarh set aside conviction and sentence of sadhu saha, but maintained them so far, as the petitioners are concerned.2. prosecution case, in short, is as follows:while madhaba saha (pw 1) was searching his missing goat, he was intimated by kirati saha (pw 2) at about 5 p. m. on 1-5-1991 that the said goat had entered into the backyard of the petitioners; they had killed it by lathi and threw the body to the backyard of. one linga saha (dw 1). kirati informed madhaba that raja bisi (pw 3) and padu jhankar (pw 4) had also witnessed the occurrence. report was lodged at police station by pw 1, before which attempt was made by the villagers to settle the dispute amicably. since there was no positive: response by the accused-petitioners, pw 1 reported the matter at titilagarh police station. investigation was undertaken and on completion thereof, charge-sheet was submitted.3. accused persons denied the allegations and took a positive stand that the case was falsely foisted against them oft account of previous enmity.4. the learned sdjm believed the evidence of pws 2, 3 and 4, and convicted the petitioners as aforesaid. in appeal, the learned appellate judge discarded the evidence of pws 3 and 4 but relied on the evidence of pw 2 and fastened culpability on the accused-petitioners. 5. according to the learned counsel for petitioners, on the sole testimony of pw 2 the learned appellate judge should not have maintained the conviction so far as the petitioners are concerned, and should have discarded the evidence of pw 2 as tainted. he submitted that the courts below lost sight of the accepted animosity between the parties, which is sufficient to throw doubt on the credibility of prosecution case. it was also submitted that the sentence is harsh, considering the social status of the petitioners, who belong to remote areas of bolangir district, and the fact that dispute was over a goat which is claimed, to have strayed into the backyard of the accused persons.6. section 429 deals with mischief by killing, poisoning, maiming or rendering useless of animals mentioned therein, of whatever value, or any other animal of the value of fifty rupees or upwards. the provision is similar to the offence as contemplated in section 429. ipc except that it mentions particular animals, and a value in respect of the left-out animals. section 428 is intended to prevent cruelty to animals and consequent loss to the owner. section 429 provides for enhanced punishment owing to the greater value of the animals mentioned therein. this section is applicable where injury is caused by the offence of mischief. intention is the gist of the offence. in order to establish the offence the evidence must prove-(i) that the accused caused the destruction of some property, or some change in such property or in the situation thereof; (ii) that the above act destroyed or diminished the value or utility of such property, or affected it injuriously, (iii) that the accused did as in intending or knowing that he was likely to cause loss or damage to the animal; (iv) that causing such damage or injury was wrongful; and (v) that the property injured consisted of any of the animals mentioned in the section and that such property consisted of any animal of the value/or of rs. 50/- or more. expression 'mischief is defined in section 425, ipc, and section 426 provides punishment for mischief. offence created by section 429 and the one under section 9(1) read with section 50 of the wild life protection act, 1972 are substantially the same offence. (see state of bihar v. murad ali khan and others: air 1989 sc 1). in order to constitute act of mischief under section 429, there must be a physical injury from a physical cause. 7. the evidence of pw 2 clearly establishes guilt of the accused persons. merely because the evidence of some others have been discarded that cannot be a ground to discard the evidence of this witness. unless it is shown that the evidence of any particular witness suffers from any infirmity and is incredible that is not to be discarded because evidence of some others has been discarded. truth has to be separated from falsehood. when that becomes impossible, edifice of prosecution version collapses. 8. it is submitted that on the basis of sole testimony of pw 2 conviction should not have been made. it is not a requirement in law . that particular number of witnesses need be examined. on the contrary, it is clearly provided in section 134 of the indian evidence act, 1872 that no particular number of witnesses shall in any case be required for the proof of any fact. it is not the number of witness, but quality of evidence that counts, (see magsoodan v. state of u. p. : air 1983 sc 126). there is nothing wrong in the learned appellate judge finding the petitioners guilty on the basis of evidence of pw 2, which as indicated supra is credible and cogent. the conviction is accordingly maintained. but considering the nature of accusations, i reduce the fine imposed to twenty-five rupees. in case of default of payment, the custodial sentence shall be two days. if default sentence operates, period undergone in custody till today in connection with the case shall be taken into consideration. the revision application is accordingly disposed of.