Dadu @ Millu Munda 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. - the father was not satisfied with the quantity of rice brought by the accused and rebuked him and shot an arrow at him which hit him on the back causing bleeding injury. 3 and 4, who were stated to be the eye-witnesses, is kept out of consideration, the circumstantial evidence on record clearly establish the guilt of the accused. the evidence of this witness is clearly unreliable and contains no cogency and/ or consistency. 8. in view of the shaky and unreliable evidence of the witnesses it would be unsafe to convict the accused.a. pasayat, j.1. dadu @ millu munda (hereinafter referred to as 'accused') faced trial for allegedly having caused intentional murder of his father singha @ singrai munda (hereinafter referred to as the 'deceased') thereby committing an offence punishable under section 302 of the indian penal code, 1860 (in short 'i.p.c.').2. in nutshell, the prosecution case is as follows: on 22-9-1989 the accused went to a market taking some quantity of blackgram to exchange the same for rice. in the evening at about 5 p.m. he returned home with some quantity of rice. the father was not satisfied with the quantity of rice brought by the accused and rebuked him and shot an arrow at him which hit him on the back causing bleeding injury. at this the accused got angry, snatched away the bow and arrow from his father's hands and shot an arrow which pierced into the latter's chest. another arrow shot caused injury on the right wrist joint. the deceased succumbed to the injuries at the spot. on the next day, the accused surrendered at nayakote police station. on the basis of his oral report station diary entry was made, investigation was undertaken, seizures were made and charge-sheet was submitted.3. the accused pleaded innocence and took the plea that the witnesses were deposing against him on being tutored by the investigating officer.4. eight witnesses were examined to prove the accusation. two of them, p.ws. 3 &4, the wives of the accused and the deceased respectively, were stated to be the eye-witnesses to the occurrence. the learned sessions judge, koonjhar placed reliance on their evidence though they resiled from their statements made during investigation, and with reference to the evidence of the doctor, p.w. 1, found the accused guilty, convicted and sentenced him to imprisonment for life.5. in support of the appeal mr. namtour, learned counsel for the appellant urged that there is no material worth the name to link the accused with the crime. it is submitted that merely because there was quarrel between the accused and the deceased that does not necessarily lead to the conclusion that the accused was the author of the crime. mr. a.k. mohapatra, learned counsel for the state submitted that even if the evidence of p.ws. 3 and 4, who were stated to be the eye-witnesses, is kept out of consideration, the circumstantial evidence on record clearly establish the guilt of the accused.6. for appreciating the rival submissions of the parties it is necessary to refer to relevant portions of evidence of p.ws. 3 and 4. p.w. 3 stated in court that she cannot say how the deceased died. in response to leading questions put in terms of section 154 of the indian evidence act, 1972 (in short the 'evidence act'), she accepted to have stated before the investigating officer about the assault by her husband. but during her cross-examination, she stated that she had not seen her husband shooting arrow at her father-in-law. she also expressed ignorance as to cause of her father-in-law's death. the evidence of this witness is clearly unreliable and contains no cogency and/ or consistency. though p.w. 4 stated that her husband, the deceased, died on account of arrow shot made by the accused, in cross-examination she accepted to have stated before the police that when her husband and the accused started quarrelling she went away to the jungle out of fear. she also stated that she made a statement before the magistrate on being tutored by the police and the police was present when she gave statement in court. her evidence is of no help to the prosecution. in the aforesaid back-ground there is no material to link the accused with the crime. merely because the accused has accepted that there was a quarrel between him and the deceased, it is not sufficient to lead to an inference that he was the author of the crime.7. learned counsel for the state submitted that being close relatives, p.ws. 3 and 4 have tried to shield the accused, and in view of their acceptance to have stated to police about role of accused, the variance as developed in court should be discarded. in a criminal case, normal rule is that the prosecution has to establish its case beyond reasonable doubt. proof beyond reasonable doubt stems out of the compelling presumption of innocence inherent in our adversary system of criminal justice. to displace the presumption, the evidence of prosecution must prove beyond reasonable doubt, not beyond the shadow of any doubt, the person accused is guilty of the offence charged. proof beyond reasonable doubt means proof of an offence with the certainty of criminal law. the certainty is that the offence has been committed and that no other person, but the accused person, on the evidence committed the offence. the primary onus of establishing the guilt of the accused is on the prosecution and does not shift. what does shift is the secondary onus of adducing some evidence which may render the prosecution case improbable and, therefore, unlikely to be true and thereby create a reasonable doubt. it has to be borne in mind that vague hunches cannot take place of judicial evaluation, presumptions, conjectures and surmises cannot take place of evidence. the plea of learned counsel of state is indefensible.8. in view of the shaky and unreliable evidence of the witnesses it would be unsafe to convict the accused. the order of conviction and sentence is, therefore, set aside and the accused be set at liberty forthwith, unless he is required to be in custody in connection with any other case. appeal is allowed.p. ray, j.9. i agree.