Ghasiram Lakra 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. - panda, the learned counsel appearing for the accused-appellant has strenuously urged that the items of evidence on which strong reliance has been placed by the trial court have no evidentiary value in the eye of law. without referring to the decision of this court to be presently mentioned wherein it is succinctly stated that extra-judicial confession to afford a piece of reliable evidence must pass the test of reproduction of exact words, the reason or motive for confession and person selected in whom confidence is reposed. i5 the brother of the deceased and testing the same on the touchstone of the principles indicated by the apex court as well as this court, i am not able to persuade myself that the same can be accepted because neither exact words nor the words substantially stated by the accused reproduced; though this witness had no acquaintance with the accused he had clearly stated the person assaulting was wearing a lungi and a white banian. he has also clearly stated that p. in his cross-examination, he has clearly stated that he had known the accused prior to the date of occurrence.dipak misra, j.1. in this appeal from jail ghasiram lakra (here in after referred to as 'the accused') calls in question the legality of his conviction for the offence punishable under section 304, part i of the indian penal code, 1860 (in short 'i.p.c.') and the sentence of imprisonment for ten years as awarded by the learned additional sessions judge, rourkela, in s.t. case no. 153/ 39 of 1992.2. the prosecution version as depicted during trial is as follows :-on 29-4-92 at about 8.45 p.m. a telephonic message was received at biramitrapur police station from the octroi check-gate located at talsara intimating that a man having been assaulted was lying senseless near the check-gate. the fact was entered in the station diary vide s.d. entry no. 602 (ext.23) and the sub-inspector (p.w.16) along with some other police officials immediately rushed to the spot. at the spot, the wife of the ,deceased (p. w. 12) reported the matter to the sub-inspector. as per her version, the deceased was in visiting terms to the house of lady named damayanti alias tuni 'singaldhipa'. the people of the said locality were suspecting illicit relationship between the deceased and damayanti. on the date of occurrence at about 11.30 a.m., the deceased left the house for rourkela and was scheduled to come back by the evening train. at about 7.30 p.m. the train reached biramitrapur. after some time of the arrival of the train, the brother of the informant (p.w.14) came to her house and called her to go to their residence without ascribing any reason. accordingly, she came to her father's house at talasara, where she was informed by her mother that the accused had committed murder of her husband manga near the octroi check-gate. she came near the check-gate and found her husband lying dead afflicted with serious injuries. on arrival of the police she stated her complaint orally which was treated as f.i.r. (ext.3). the investigating agency conducted the investigation and after completing the formalities ultimately submitted the charge-sheet, and the petitioner faced his trial. 3. the accused denied the charges in totality.4. in order to establish the charges, the prosecution examined sixteen witnesses and number of documents were also brought on record. the learned trial judge took into consideration the evidence of p.ws. 8, 9, 10 and 13 who were the eye-witnesses to the occurrence and further taking into consideration the extra-judicial confession of the accused before the younger brother of the deceased (p.w. 15) came to hold that the accused had assaulted the deceased but there was no premeditation to commit murder. on the basis of the aforesaid conclusion, he found the accused guilty under section 304 (part-i) and convicted him as aforesaid.5. miss. s. panda, the learned counsel appearing for the accused-appellant has strenuously urged that the items of evidence on which strong reliance has been placed by the trial court have no evidentiary value in the eye of law. her submission is that the evidence of p.ws. 8, 9, 10 and 13 are replete with inherent improbabilities and intrinsic discrepancies and, therefore, the said witnesses should have been regarded as untrustworthy. she has been severely critical of the acceptance of the extra-judicial confession as the aforesaid confession does not inspire confidence and apparently unnatural. she has highlighted when the confession has been made before a person who was the brother of the deceased, the same should have been discarded on the ground that the same was absolutely unbelievable. she has further submitted that the f.i.r. in question has been manipulated inasmuch as the ' statement has been deleted and report inserted. that apart, there is also over-writing and there is discrepancy with regard to the place where the f.i.r. was lodged. all taken together submission of miss. panda is that it is entirely suspicious and has to be carefully scanned. her last submission is that if ultimately it is found that the learned trial judge was justified in finding the accused guilty, the sentence imposed was extremely excessive in the background of the peculiar facts and circumstances.sri sangram das, the learned counsel for the state on the other hand supported the judgment of conviction and sentence. his submission is to the effect that the evidence of p.ws.8, 9, 10 and 13 cannot be thrown away from consideration as the said witnesses have no axe to grind against the accused and if any discrepancy is noticed that is but natural. so far as the extra-judicial confession is concerned, it is canvassed by sri das the same is clear, cogent and voluntary and cannot be ignored, solely on the ground that the person before whom confession was made was a close relation of the deceased. his alternative submission is that even if the extra-judicial confession is brushed aside, there are other cogent evidence on record to sustain the conviction.6. let me first deal with the contention of miss. panda, with regard to the suspicious nature of the f.i.r. and its impact on the prosecution case. with regard to the submission of the learned counsel for the appellant that there has been interpolation in the f.i.r. and the message on the telephone should have been recorded as an f.i.r. and as the very initiation of the criminal action is shrouded with suspicious circumstances, the appellant is entitled to an order of acquittal. i find from the evidence of p.w.8 that he had stated that he had lodged a report at the police station. effort is being made to take advantage from this statement. this statement can be explained in as much as p.w. 12 lodged the f.i.r. after arrival of the police and p.w.8 became a signatory. that apart, the telephone message has been entered in the station diary of the police station and the said entry has been brought on record as ext.23. moreover, the investigating officer, p.w. i6 has categorically stated that no other written report about the occurrence was lodged by any person except ext. 13, the f.i.r. lodged by p.w.2. in this regard, the learned counsel for the appellant has referred to a decision in the case of sevi v. state of tamil nadu air 1981 sc 1230 : 1981 cri lj 736. the apex court in that case, has held that when there is suppression by police officer with regard to the original f.i.r. and there is substitution by another and there is non-production of general diary at the police station and further the first f.i.r. was something altogether different than the substituted one, the prosecution case becomes suspicious. in the instant case, the facts are absolutely different. there is only one f.i.r. and s.d. entry has been produced. the ratio of the aforesaid decision is not applicable to the facts of the present case.7. let me now deal with the contention of the learned counsel for the appellant in regard to the propriety and reliability of the extra-judicial confession. the attack on the extra-judicial confession requires a close scrutiny because of the relationship of the witness with the deceased. it is relevant to state here that the accused had confessed as alleged before p. ws. 14 and 15. p.w.14 has turned hostile and rightly, the learned trial judge has discarded his testimony and the confession alleged to have been made before him. while analysing the evidence of p.w.15 the younger brother of the deceased, it has been observed by the learned trial judge that after hearing about the death of his brother he was going to the spot. while so proceeding, he halted near the house of the accused and asked him about the offence to which he confessed by stating that as the deceased had quarrelled with him he had assaulted the deceased by means of a brick. the trial court has believed the evidence of this witness and has accepted that there was an extra-judicial confession by the accused. miss. panda, has vehemently attacked the extra-judicial confession. while considering the evidentiary value of an extra-judicial confession, it is to be borne in mind that such confession is not a normal reaction of an accused. it is not a natural act. it is not an ordinary affair. it is, in fact, against the natural human proclivity. while accepting the extra-judicial confession as a truthful aspect of the evidence, the court has to be very cautious. an extra-judicial confession in order to be acted upon, must stand the test of reproduction of the exact words and it must be shown by the prosecution as to what was the reason or motive for an accused to make an extra-judicial confession and as to whether the accused would repose confidence in the person before whom such a confession is made. the apex court in the case of heramba brahma v. state of assam 1983 cri lj 149 : air 1982 sc 1595, in paragraph 18 expressed thus:18. we are at a loss to understand how the high court accepted the evidence on this extra-judicial confession without examining the credentials of p.w.2 bistiram; without ascertaining the words used; without referring to the decision of this court to be presently mentioned wherein it is succinctly stated that extra-judicial confession to afford a piece of reliable evidence must pass the test of reproduction of exact words, the reason or motive for confession and person selected in whom confidence is reposed.... in this decision, reference was made to the case of rahim beg v. state of u.p. air 1973 sc 343 : 1972 cri lj 1260. the apex court in the case of kishore chand v. state of himachal pradesh air 1990 sc 2140 : 1990 cri lj 2289 has held as follows :-the unambiguous extra-judicial confession possesses high probative value force. as it emanates from the person who committed the crime and is admissible in evidence provided it is free from suspicion and suggestion of its falsity....the court has to look into the surrounding circumstances and to find whether the extra-judicial confession is not inspired by any improper or collateral consideration or circumvention of the law suggesting that it may not be true one. for this purpose, the court must scrutinise all the relevant facts, such as, the person to whom the confession is made, the time and place of making it, the circumstances in which it was made and finally the actual words used by the accused. this court in the case of arjuna pradhan v. the state reported in 1992 cri lj 3614 made the following observation (para 5):- if the person before whom the confession is made is a close relation of the person making confession, or has possibility of being in his confidence, the same can be a piece of evidence to be utilised against the accused. it is worthwhile to mention here, this court in the case of jaypal munda v. state of orissa (1990) 2 crimes 221, held thus :-a confession should always be voluntary in the sense that the person making the confession will approach others and speak out of his heart that he had committed a crime. the bombay high court almost in a similar circumstance did not accept such a statement by the accused as an extra-judicial confession in the case of sitaram vishnu chalka v. state of maharashtra 1993 cri lj 3364. nowhere it has been laid down as a rule that confession to a close relative of the deceased cannot be accepted as credible evidence. it would depend upon facts of each case. on perusal of the evidence of p.w.i5 the brother of the deceased and testing the same on the touchstone of the principles indicated by the apex court as well as this court, i am not able to persuade myself that the same can be accepted because neither exact words nor the words substantially stated by the accused reproduced; the knowledge of the witness in regard to the death of the deceased is not clear, the presence of the accused in front of his own house and confession in the manner to the accused appears to be highly improbable. possibly, this confession has been introduced by the brother with the intention to strengthen the prosecution case.8. presently, i have to proceed to find out if there are other materials on record to sustain the order of conviction. i have been taken through the evidence of p.ws. 8, 9, 10 and 13. p.w. 8 at the relevant time was posted as the octroi superintendent in biramitrapur municipality. on that 'date, he had come to the concerned octroi check-gate for official visit. while he was in the office room he was informed that a man was being assaulted by another near the gate. he sent his tax collector to go and verify. coming to know that the fact was true he went along with others and found a man lying on the road side and another man (accused) throwing a brick on his head. he has also mentioned with regard to the presence of the informant, the wife of the deceased. as far as this witness is concerned, he has stated that the f.i.r. was lodged at the police-station. this is the contradiction in the deposition of this witness and the evidence of the wife of the deceased as it has been stated by her that the f.i.r. was lodged on arrival of the a. s. i. at the spot. this witness has signed in the f.i.r. though this witness had no acquaintance with the accused he had clearly stated the person assaulting was wearing a lungi and a white banian. he has also given proper description of the physique, dress and height of the accused. p.w. 9, a peon working in biramitrapur municipality who was working at the octroi check-gate on the date of occurrence has narrated in detail with regard to throwing of the brick on the deceased. of course, this witness has not identified the accused. he has stated that there was an altercation and a fight between the accused and the deceased. in spite of his intervention, they did not stop. the deceased brought out a knife from his wearing apparel and at that juncture, accused threw a piece of brick on the head of the deceased. he has also clearly stated that p.ws. 8 and 9 who were other officials in the check-gate came and saw the incident. nothing much has been elicited from this witness to discredit his testimony. p.w. 13, another employee working under the octroi tax collector who was on duty at the relevant time has vividly described the assault. this witness has stated in chief that he found the accused showing a piece of brick on the injured manga, who was lying on the ground and thereafter ran away from the spot. while running away he was saying that he would commit murder of the deceased. in his cross-examination, he has clearly stated that he had known the accused prior to the date of occurrence.apart from the aforesaid oral evidence, full size and half-size bricks were sent for examination and on such examination, it was found there was human blood on all those bricks. this report lends corroboration to the occular testimony of the aforementioned witnesses. there is no reason to disbelieve these witnesses as they are creditworthy and have no connection whatsoever either with the accused or deceased. in fact, they have remained unshaken and firm on their ground. the submission of the learned counsel for the petitioner that these witnesses are not to be regarded as trustworthy is without any force inasmuch as the discrepancies and the contradictions are really not material and do not affect the prosecution case.9. coming to the last submission of miss panda, i find the learned trial judge had imposed a sentence of ten years having found the accused guilty under section 304 part i, i.p.c. the learned trial judge is justified in holding that there was no pre-meditation or pre-plan and the occurrence took place due to sudden fight. this finding cannot be found fault with for the simple reason that the deceased assaulted with a knife and had initiated the attack. from the analysis of the evidence, it is lucidly clear that there was no intention to commit murder. in fact, p.w. 8 who had seen the accused assaulting has told that the accused left the place saying that he would kill the deceased. such an occurrence would not have come if the accused was pre-determined to eliminate the deceased. while agreeing with the conviction as aforesaid, i find the quantum of sentence is quite excessive. while imposing a sentence, the peculiar facts of the case, are to be appreciated. admittedly, there was an altercation. it gave rise to a fight. the deceased took out a knife from his wearing apparel and seeing the same the accused assaulted him with bricks which resulted in his death. this was an instantaneous protective action. the whole occurrence took place, as it appears, on the spur of the moment. keeping the aforesaid in view, the quantum of sentence has to be determined.10. as i have already held, that the evidence of p.ws. 8, 9, 10 and 13 are acceptable and there is no reason to discredit their testimony, the judgment of conviction cannot be faulted. though i nave not accepted the extra-judicial confession, vet, there are other materials on record to justify {he conviction and the same is upheld.11. as the accused-appellant has been in custody from the date of his arrest, i am of the considered view, it would be sufficient if the custodial sentence is reduced to the period already undergone. the appellant be set at liberty forthwith, if his detention is not required in connection with any other case.12. with the aforesaid modification in sentence, the criminal appeal stands dismissed.