Gopinath Naik and Four ors. Vs. State of Orissa - Court Judgment

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criminal - benefit of doubt - sections 148, 149 and 302 of indian penal code,1860 (ipc) - appellants five in numbers are convicted for offence under sections 148,149 and 302 of ipc - hence, present appeals - held, during pendency of appeal, three appellants died so appeal filed by them is abated - perusal of evidence indicates that there is no proof of offence under sections 148 and 149 of ipc - under such circumstances, accused persons are entitled to acquittal from charges under sections 148 and 149 of ipc as not established - on reference to evidence of concerned witnesses, there is no direct allegations against one accused for causing injury on any particular part of body of deceased - under such circumstance benefit of doubt granted to one accused and acquitted him of all charges and his conviction order is set aside - after eliminating charge under section 148 and 149 of ipc, conviction of one appellant under section 302 of ipc maintained - accordingly, appeal is allowed in part as indicated above - 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 3, 4 and 5 and found their evidence to be credible, consistent and reliable.1. in sessions case no. 11/1 of 1993 learned addl. sessions judge, balangir on 30.6.1993 found the accused persons, five in numbers, guilty of the offence under sections 302/149 ipc and also for the offence under section 148 ipc and accordingly convicted them. the accused persons were sentenced to imprisonment for life for the offence under sections 302/149 ipc and separate sentence of r.i. for one year was inflicted on each of them for the offence under section 148 ipc. both the sentences were directed to run concurrently.2. it is the admitted case of the parties that accused barna and kasta and the deceased niranjan naik are the three sons of late usha naik. accused gopinath and baikuntha are sons of accused barna and accused bhagirathi is the son of accused kastha. banabasi (p.w.5) is the widow of deceased niranjan naik and baleswar naik (p.w.3) and ganeswar naik (p.w.4) are their two sons. though the landed property was recorded jointly in the name of accused barna and kastha and deceased niranjan but they possessed different patches of lands separately. a few days preceding the occurrence, deceased niranjan developed the ridge of his land by putting some earth over it and in the process some each spread over the land of accused persons for which they got annoyed and a village panchayat was convened. the village gentry directed the deceased niranjan to remove the earth spread over the land possessed by the accused persons. on the date of occurrence, i.e., 3.7.1992 during morning hours when the deceased was busy in removing the earth spread over the land of accused persons, according to the prosecution as stated in the f.i.r., the accused persons working in the neighbouring field came to the spot and picked up quarrel with the deceased. the exchange of words between niranjan in one side and accused persons on the other side ultimately resulted in assault. all on a sudden accused bhagirathi dealt an axe. blow on the head of the deceased and it was followed by randum assault by use of spade by accused barna, gopinath and kastaand that accused baikuntha dealt lathi blows, p.w.3, who saw the occurrence, on being chased by the accused persons took to his heels. p.ws. 4 and 5 saw the occurrence from a distance of 100 cubits. the persons who were working in neighbouring area, hearing the commotion, rushed to the spot, at whose sight the accused persons fled away with their weapons. the deceased was brought to the village and then to the primary health center. the f.i.r. was lodged in the police station by p.w.3. initially the case was registered under section 307 ipc with other allied offences, but when the doctor (p.w.7) of the p.h.c., declared the deceased dead, the investigation was taken up for the offence under section 302/149 and section 148 ipc where under charge sheet was submitted and the accused persons faced trial.3. to substantiate the charges, prosecution examined as many as 12 witnesses and relied on a series of documents marked ext.1 to 17. the weapons of offence, viz. axe and sticks were marked as m.o.iv and m.o.iii respectively. accused persons did not adduce any defence evidence. among the witnesses, p.ws. 3,4 and 5 are the eye witnesses, p.w.7 is the doctor, who declared the deceased dead, p.w.8 is another doctor, who conducted post mortem on the dead body and proved the post mortem report, ext.8 and his written report, ext.9. p.w.12 is the investing officer, the other witnesses deposed regarding land dispute between the parties and convening the village panchayat etc.4. on assessment of evidence on record, learned addl. sessions judge recorded the finding that because of the incised wound an the right shoulder, lateral aspect of right elbow, right mustoid of scalp and right occipital parietal region, besides a scapular haematoma over the front parietal region of the right side and the depressed fracture on the right lower occipital parietal region, the deceased suffered homicidal death. as noted by learned addl. sessions judge, the defence did not dispute to the homicidal death of the deceased. before us also nothing was placed disputing to the finding of the trial court on homicidal death of the deceased. on perusal of the medical evidence we concur with the findings of homicidal death of the deceased.5. the evidence of p.ws. 3 and 4 and 5 were found jo be true and trustworthy as corroborated with the medical evidence and therefore learned addl. sessions judge following the ratio in the case of state of u.p. v. binod kumar(dead) and udai bhan singh 1992, crl. law journal-1115- held that interestedness of p.ws. 3,4 and 5, the occurrence witnesses is no ground to discard their evidence but at the same time such evidences should be carefully scrutinized with due care and caution. learned addl. sessions judge applying that standard assessed the evidence of p.ws 3, 4 and 5 and found their evidence to be credible, consistent and reliable. on the basis of that evidence, he held that it was proved by the prosecution that accused persons were the author of the injuries, which resulted in death of the deceased niranjan and since accused were five in numbers, offence under section 148 and 302 read with section 149 of ipc were made out. accordingly, he recorded the conviction and passed the order of sentence. when we took up this case for hearing, it was stated by the learned counsel appearing for the accused persons and admitted by the prosecution on instruction that accused barna, kasta and baikuntha have died during pendency of the appeal. accordingly, the appeal abates against them. therefore only accused gopinath and bhagirathi are before us.6. learned counsel for the appellants argues that there are contradictions in description of the occurrence in the f.i.r and in the evidence of p.w.3. according to them p.ws. 3, 4 and 5 cannot be believe to have witnessed the occurrence. such argument is found to be factually not correct, inasmuch as, there is nothing in the f.i.r. ext.5, which could give rise to the impression that the aforesaid three eye witnesses could not have seen the occurrence. in the f.i.r., p.w. 3 has stated that while coming to the spot of occurrence, he heard the commotion created due to altercation between the accused persons and the deceased. he witnessed that occurrence while proceeding to the spot and also saw the assault part. that description does not in any way indicte that p w 3 was not an eye witness to the occurrence. in f.i.r. it has been mentioned that p.w. nos. 4, 5 and some other villagers witnessed the occurrence, there is no reason to disbelieve the presence of p.ws. 4 and 5 at the spot during the occurrence. even if p.ws. 4 and 5 are eliminated as eye witnesses to the occurrence', still then that cannot take away evidence of pw.3 as eye witnesses and his evidence has been found to be trust worthy. under such circumstances, inclusion or exclusion of p.ws, 4 and 5 as eyewitnesses is non-consequential.7. learned counsel for the appellants further argues that though there is allegation against accused bhagirathi dealing axe blow to the head of the deceased, there is no specific allegation against accused gopinath (the other surviving accused) that he dealt a spade blow on any part of the body of the deceased causing injury. he further argues that there was absolutely no unlawful assembly nor there was any common object to commit murder of the deceased, inasmuch as, the occurrence took place on the land belonging to accused kasta. it is so because the deceased was engaged in removing the spread over earth from that land learned addl. standing counsel does not counter the aforesaid submission so far as the offence under sections 148/149 ipc are concerned, because of want of sufficient evidence in that respect. on perusal of evidence on record, we also find that there is no proof of offence under section 148/149 ipc. under such circumstances, accused persons are entitled to acquittal from the charges under section 148 and the offence of common object under section 149 ipc, as not established.8. learned counsel for the appellants argues that on the basis of omnibus statement, accused gopinath should not be convicted and at least he be given the benefit of doubt. on a reference to the evidence of p.ws. 3, 4 and 5, we see that there is no direct allegations against gopinath for causing injury on any particular part of the body of the deceased learned addl. standing counsel also concedes to the aforesaid contention of the appellant. under such circumstance, we grant benefit of doubt to gopinath and acquitted him of all the charges and his conviction order is set aside.9. as stated above after eliminating charge under section 148 we maintain the order of conviction of the appellant-bhagirathi under section 302 ipc and so also the sentence of imprisonment for life.10. accordingly, the criminal appeal is allowed in part.