Sashi Behera Vs. State of Orissa and Etc. - 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. - the evidence of an interested witness is not like the evidence of an approver which would need corroboration and the rule of caution cannot be confined in a strait jacket (also see 1980crilj1330 ,hari obula reddi v. it is well settled that in a free fight, no right of private defence is available to either party and each individual is responsible for his own acts. since however there is no appeal on behalf of the state government, the conviction, as well as the sentence, cannot be displaced 8. in the complaint case, sashi behera (p. according to his opinion the injuries could have been cansed due to fall or by coming into contact with a nail or thorn like substance. 5) was unreliable, (iii) the injuries sustained by sashi behera were three minor scratches, (iv) the case diary maintained by the investigating officer in the case against sashi behera under section 307, i. 10. after full scrutiny of the evidence, facts and circumstances, as well as, the reasons which weighed with the learned chief judicial magistrate, i find it impossible to agree with him. sashi behera clearly made out a case of assault under section 323, i.k.p. mohapatra, j.1. criminal appeal no. 281 of 1981 and criminal appeal no. 210 of 1980 were heard analogously and this common judgment will govern both.2. in criminal appeal no. 281 of 1981 the appellant sashi behera was convicted for an offence under section 326, penal code ('i.p.c for short) and was sentenced to undergo rigorous imprisonment for two years. criminal appeal no. 210 of 1980 was preferred by him against the order of acquittal passed on his complaint for offences under sections 148, 323/149 and 427, i.p.c. the facts giving rise to both the appeals are narrated in brief.the parties belong to village hirma. sashi behera is a todday tapper and umashankar and gangaram are land-holders. there is. a kata (water reservoir) in the village. adjoining the embankment of the kata umashankar and gangaram have got lands. there were two date palms in between the embankment of the kata and the lands of umashankar and gangaram. they claimed that the date palms standing on their respective lands belonged to them, whereas, sashi behera claimed that the date palms stood on the embankment of the kata. he had obtained a licence from the local excise authority to tap todday from the date palms standing on the embankment of the kata and according to him he was entitled to tap todday from these two disputed date palms, whereas, umashankar and gangaram disclaimed such right. in order to tap todday sashi behera had cut down the leaves of the date palms belonging to umashankar and gangaram at which the letter became annoyed and cut down the date palm which he claimed to be his own. the occurrence took place on 15-12-1978 at about 11 a.m. it was alleged that sashi behera along with other accused persons (since acquitted) arrived at the embankment of the kata being armed with bow, arrow and lathis and asked injured bhagaban thakur (p.w. 7) to stop felling the date palm which umashankar claimed to be his own. at this, sashi behera became enraged and shot an arrow at bhagban thakur (p.w. 7) which hit and pierced into his abdomen. being injured he fell down unconscious. the associates of sashi behera assaulted gangaram who sustained injuries. f.i.r. (ext. 4) was lodged at the police station and the injured persons were examined by dr. a. k. das (p.w. 2), after close of investigation, the charge-sheet against sashi behera and other accused persons (since acquitted) was submitted for offences under sections 323, 326 and 307/34, i.p.c.3. the defence of sashi behera in the case against him is the subject-matter of the complaint petition he filed against umashankar, gangaram and 8 others. his case is that the two date palms actually stood on the embankment of the kata and did not belong to umashankar and gangaram. he had right to tap toddy from these two date palms and in fact he had been doing so. on the date of occurrence umashankar and gangaram along with their associates broke down the earthern jars fixed to the date palms for flow of toddy. when he protested, umashankar started cutting down the standing date palm through bhagaban thakur. when he protested, gangaram attacked him by means of a barchhi (spear) and caused a bleeding injury. when he snatched away the barchhi gangaram assaulted him by means of a lathi. umashankar who was armed with bow and arrow aimed and shot the arrow at him, but the arrow missed the target and hit bhagaban thakur. he reported the incident at the police station and produced the barchhi, but as the police did not take any action, he filed the complaint petition against umashankar, gangaram and 8 others on 2-1-1979.4. the learned assistant sessions judge, held that sashi behera had shot the arrow which pierced the abdomen of bhagaban thakur(p.w. 7) and thereby he exceeded the right of private defence. he found him guilty under section 326, i.p.c., and sentenced him to undergo rigorous imprisonment for two years, but acquitted the other accused persons. he functioning as chief judicial magistrate further disbelieved the complaint case brought by sashi behera against umashankar, gangaram and 8 others and acquitted them of all the charges.5. dr. a. k. das (p.w. 2) examined bhagaban thakur (p.w. 7) on the date of occurrence and found the following facts and injuries :(i) one arrow having two points at a distance of 1' had pierced and stuck on the left side of the abdomen at the lateral aspect. on operation it was found that the two points of the arrow had pierced the peritoneum and had injured a portion of the small intestines.(ii) one lacerated wound over the right index finger of the size of w x y4'.(iii) one lacerated wound of the size of 1' x y4' x y4' over the left knee joint at the lateral aspect.according to his opinion, injury no. (i) was caused due to arrow shot. it was grievous in nature and was dangerous to life.. the two other injuries though simple in nature, were possible by sharp cutting objects. the age of the injuries was within 6 hours (report and opinion vide ext. 2).6. bhagaban thakur (p.w. 7) who fortunately survived to give evidence, stated that he worked as a labourer at brajarajnagar and was serving under arjun tiwari. he came to the house of arjun tiwari at hirma, took his wages amounting to rs. 45.50 and at about 11 a.m. was returning home. on the way, he found sashi behera and other accused persons quarrelling with umashankar. when he intervened and asked sashi behera to stop quarrelling, the latter all of a sudden shot an arrow aiming at him which pierced his abdomen. he denied that he was cutting the date palm. his evidence has been substantially corroborated by umashankar tiwari (p.w. 1), gangaram tiwari (p.w. 4), rusikesh sethi (p.w. 5) and sankar bhue (p.w. 6). all of them stated that the arrow shot by sashi behera hit bhagaban thakur, pierced his abdomen and seriously injured him. it was suggested to umashankar (p.w. 1) in cross-examination that when bhagaban thakur (p.w. 7) came to protect him and stood on his front, the arrow shot by sashi behera hit the former. from the evidence of p.w. 9, the investigating officer, it appears that umashankar (p.w. 1) had stated before him that when bhagaban thakur came to protect and stood before him, sashi behera shot the arrow. whether sashi behera aimed the arrow at bhagaban thakur (p.w. 7) or aimed it at umashankar (p.w. 1) which accidentally hit bhagaban thakur is not a material question because, according to the overwhelming evidence, the arrow shot by sashi behera seriously injured bhagaban thakur (p.w. 7) and he was lucky that he survived.7. the witnesses have not made a secret of the facts that there were previous litigations and ill-feeling between both the parties. undoubtedly, however, the witnesses were either interested or partisan. on that ground, however, their evidence cannot be thrown overboard as ruled in : 1975crilj262 , ravulappalli kondaiah v. state of andhra pradesh. while appreciating the evidence of relation and partisan witnesses, the court should be on guard and scrutinise the same with more than ordinary care. it was held in : 1983crilj1638 state of uttar pradesh v. hari ram, that the mere fact that witnesses are interested is no ground for throwing out their evidence overboard. all that is necessary is that in such cases, the evidence of the witnesses should be examined with caution and having done that if the court feels that the evidence does not suffer from any other legal or factual infirmity, there is no reason to distrust the evidence of such witnesses. the evidence of an interested witness is not like the evidence of an approver which would need corroboration and the rule of caution cannot be confined in a strait jacket (also see : 1980crilj1330 , hari obula reddi v. state of andhra pradesh : 1981crilj1701 , state of u.p. v. manoharlal : 1982crilj850 , state of u.p. v. suresh and 1983 cri lj 1711 (orissa), madhuban dharai v. state). having very closely scrutinised the evidence of the witnesses examined on behalf of the prosecution and particularly the evidence of bhagaban thakur (p.w. 7) and dr. a. k. das (p.w. 2), the conclusion is inescapable that sashi behera was the assailant. there is material on record to show that there was a free fight between sashi behera on one side and umashankar and gangaram on the other. as a matter of fact rusikesh seth (p.w. 5) stated in his evidence of such a fight. despite such evidence, the learned assistant sessions judge considered the question of the right of private defence of sashi behera, though such a question was not available to be considered. it is well settled that in a free fight, no right of private defence is available to either party and each individual is responsible for his own acts. (see : 1978crilj484 , vishvas aba kurane v. state of maharashtra). the learned assistant sessions judge rather took a lenient view in convicting sashi behera for an offence under section 326, i.p.c. since however there is no appeal on behalf of the state government, the conviction, as well as the sentence, cannot be displaced8. in the complaint case, sashi behera (p.w. 1) alleged that gangaram attacked him with a barchhi (spear) and caused a bleeding injury. when he snatched away the spear, gangaram (another accused) assaulted him by means of a lathi causing a head injury. umashankar aimed the arrow at him, but it missed the target and hit bhagaban thakur. he stated in his evidence that gangaram attacked him with a spear and injured him on the left thigh. when he caught hold of the spear gayaram assaulted him by means of a lathi causing a head injury. the arrow discharged by umashankar hit bhagaban thakur. hira sahu (p.w. 2) deposed to the same effect. he clarified stating in cross-examination that except gangaram and gayaram the other persons, accused in the complaint case, did not take part in the assault dhubei bag (p.w. 3) corroborated the aforesaid act with regard to assault he also stated in cross-examination that except gaagaram and gayaprasad (gayaram) none assaulted sashi behera. makardhwaj bhoi (p.w. 4) corroborated the aforesaid version. the evidence of these witnesses will show that no material discrepancy was elicited so as to discard their evidence. the only caution that is necessary to be taken in appreciating their evidence is that they seem to be interested in the case of sashi behera but on close scrutiny of their evidence, no doubt is left as to the fact that gangaram and gayaram had assaulted sashi behera in the manner stated by them.9. their evidence is further corroborated by medical evidence. dr. a. k. das (d.w. 1) had examined sashi behera on police requisition on the date of occurrence (15-12-1978) and found the following injuries :(i) a scratch over the left buttock 4' in size.(ii) one abrasion behind the left elbow joint of the size 1' x i/4'.(iii) one abrasion on the right side forehead 21/2%' above the middle of the right eyebrow.according to his opinion the injuries could have been cansed due to fall or by coming into contact with a nail or thorn like substance. they were simple in nature. the age of the injuries was within six' hours (vide report ext. a). it is pertient to point out that sashi behera got himself examined by dr. n. behera at sambalpuron 22-12-1978 who found injuries almost identical in nature (vide report ext 2). on consideration of the evidence of these, medical officers one fact is clear, which is, on 15-12-78 sashi behera had sustained simple injuries. the learned chief judicial magistrate disbelieved the case of sashi behera on the ground that (i) he was involved in a serious case of attempt to commit murder of bhagaban thakur, (a) the evidence of dr. n. behera (p.w. 5) was unreliable, (iii) the injuries sustained by sashi behera were three minor scratches, (iv) the case diary maintained by the investigating officer in the case against sashi behera under section 307, i.p.c., did not reveal a case of assault inflicted on him, and (v) the complaint petition was filed after long delay. none of these grounds has any susbtance and so cannot be sustained according to law, so far as the first ground is concerned, even if sashi behera was involved in a case under section 307, i.p.c. yet he was not prohibited from making a complaint either before the police or before the court of law against his assailants if he was himself assaulted. it was open to him to bring allegations against his assailants according to the common law and as a prima facie case was found, charges were framed against his assailants. therefore, after conclusion of the trial it could not be opined by the learned chief judicial magistrate that because of the case under section 307, i.p.c., against him and other members of his family, his allegation should be disbelieved. so far as the second ground is concerned, even if the evidence of dr. n. behera (p.w. 5) is not taken into consideration, yet on the basis of the evidence of dr. a. k. das (d.w. 1) it could be found that he had sustained injuries. so far as the third ground is concerned, even if the injuries on sashi behera were minor in nature, nevertheless they were injuries found on the date of occurrence and could not be lightly ignored. so far as the fourth ground is concerned even though both the cases were tried as case and counter case, it was not open to the learned chief judicial magistrate to make reference to the case diary of the counter case. the materials in one case cannot be referred to and relied upon in another case. the evidence in one case is not the evidence in the other case. this is the view of this court as would appear from (1984) 1 orissa lr 543, nishakar panigrahi v. kulamani dixit. the last ground is delay in filing the complaint petition. sashi behera stated that he reported the incident to the police. there were some injuries on his person and he was sent for medical examination. he was taken into custody on 15-12-78 and was detained in jail custody from 16-12-78 to 21-12-78. he was released on bail on 21-12-78 and got himself examined by dr. n. behera. the courts were closed on account of christmas holidays from 23-12-78 to 1-1-79. the complaint petition was filed on 2-1-79. this is the explanation given by sashi behera for delay in filing the complaint petition. when he was in custody and the courts were closed for christmas holidays, it is not understood how the complaint petition could have been filed earlier. therefore, the delay in filing the complaint petition has been sufficiently explained and no doubt can be cast as to the case of assault alleged by sashi behera.it is distressing to note that the learned chief judicial magistrate did not at all scrutinise the evidence of witnesses examined by sashi behera. he seems to have been more concerned with the case in which sashi behera was the accused of a serious offence and took the offence committed against sashi behera very lightly in a cavalier fashion. while deciding the case of sashi behera he was mostly influenced by the case against him.10. after full scrutiny of the evidence, facts and circumstances, as well as, the reasons which weighed with the learned chief judicial magistrate, i find it impossible to agree with him. on the other hand, i hold that the view taken by him was thoroughly unreasonable and unacceptable which resulted in miscarriage of justice. sashi behera clearly made out a case of assault under section 323, i.p.c., against gayaram and gangaram although no case was made out against the rest. in arriving at the above conclusion, i am not oblivious of the settled law relating to the duty of the high court while setting aside an order of acquittal. recent decisions of the supreme court have been reported in : 1983crilj334 , babu v. state of uttar pradesh : 1983crilj1072 , ram chander v. state of haryana.11. on the aforesaid analysis, criminal appeal no. 281 of 1981 is dismissed and the order of conviction and sentence passed against sashi behera is confirmed. criminal appeal no. 210 of 1980 is allowed in part the order of acquittal passed by the learned chief judicial magistrate, sambalpur in i.c.c. case no. 2 of 1979 t.r. no. 140 of 1979 is set aside. gangaram tiwary and gayaram tiwari are convicted under section 323, i.p.c., and sentenced to pay a fine of rs. 100/- each in default to undergo rigorous imprisonment for one month each.