Akhaya Behera Vs. State of Orissa - 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. - one of them was of good built and held a knife, and another was a short man. it was evident that the culprits were well acquainted with the affairs of the house of informant. 1, 9 and 49 clearly establish the accusations so far as the appellants-accused persons arc concerned in respect of the offence under section 395, ipc.a. pasayat, j.1. these two appeals are interlinked as they are directed against the same judgment of conviction and sentence dated 1-5-1992 passed by learned assistant sessions judge, jagatsinghpur in s.t. no. 249 of 1991. since the points for determination are common, this judgment shall govern both the appeals.2. the appellants, also described hereinafter as accused, faced trial before the learned assistant session judge, jagatsinghpur on the accusation of having committed offences punishable under sections 457/395/392 of the indian penal code, 1860 (in short, 'ipc'), and under section 9(b) of the indian explosives act, 1884 (in short, the 'explosives act'). it was alleged that they along with others committed lurking house trespass by night by entering into the house of informant mukunda rath (p.w. 49), and committed dacoity with deadly weapons, and were in possession of explosive substances which were used at the time of commission of dacoity. though accusations related to a number of persons, the case was split up so far as the present appellants and one anama lenka were concerned.3. stated in essence prosecution case is as follows :on receipt of information from one sarat naik that dacoity had been committed in the house of mukunda rath, and dacoits had decamped with huge amount of valuables, the sub-inspector of police, raghunathpur out post rushed to the village of the informant and a written first information report was handed over to him by the informant mukunda. the background as reflected in the first information report was that on 25-7-1990 at midnight the occurrence took place. the informant and his family members had gone to bed as usual at about 11 p.m. at about 12.30 a.m. by breaking open the front door, the dacoits entered into the court-yard. thereafter the door of bed-room of the informant was broken open, and two of the culprits entered into the said room, while one kept watch by standing near the door. the culprits dragged the informant and his wife from the bed, assaulted them and threatened them at point of knife with dire consequences if they made any sound. they broke open a wooden almirah and a wall almirah and threw away the articles and collected only golden articles and cash tied them in a napkin. thereafter they went to the other room and threw certain articles on the floor. they went to the room where the informant's eldest daughter-in-law was sleeping. as disclosed by the daughter-in-law, door of her room was broken open by a grinding stone. the culprits were four in number and they lifted the mosquito net and asked her to hand over the keys. they threatened to kill her children if the keys were not handed over. she told that the keys were in the almirah. they brought the boxes and attaches and threw them on the floor of the room. they broke open the boxes, and took away gold articles and cash of rs. 2500/-. they asked her for a gold chain, and she told them that the same was in the almirah. they also asked her to hand over golden bangles, which she did, but the culprits did not take them and threw them at the bed. the dacoits were wearing black half pants and black banians. some of them had wrapped towels on their heads. one of them was of good built and held a knife, and another was a short man. ages of the dacoits ranged from 25 to 35 years, and they were talking in oriya. it was evident that the culprits were well acquainted with the affairs of the house of informant. they were holding torches and focussing the lights on the face of the inmates. the informant, his wife, his daughter-in-law could identify the culprits in the torch light and light emitted by electric bulbs. the culprits assaulted the field servant rama manthan, and abused him in filthy language. he managed to escape through the back door. the informant, his wife and the field servant rama manthan were injured on account of assault by the culprits. though list of the entire articles looted could not be prepared, yet details of the articles stolen from the rooms of the informant, the daughter-in-law and the middle room were indicated. while the dacoits were decamping with looted booty after commission of dacoity, they exploded bombs as a result of which one bhagaban sethi and another person were injured. those two persons were trying to apprehend the dacoits. cash amounting to rs. 53,000/-, gold, silver ornaments and silver coins were removed from the bed-room of the informant, while one philips tape-recorder from the middle room and gold ornaments and cash of rs. 2500/- were taken from the room of the daughter-in-law. a list was appended to the f.i.r. as the report revealed a cognizable case under sections 457/395, ipc and under section 9(b) of the explosives act, investigation was taken up by the officer-in-charge of jagatsinghpur police station. subsequently the case was supervised by the additional superintendent of police, and superintendent of police, cuttack, but no clue could be obtained. as per the direction of the inspector general of police, crimes, p.w. 52 took charge of investigation on 8-11-1990. after elaborate investigation, he could collect definite materials relating to the incident, arrested the accused persons and forwarded them to custody. during investigation, articles as per seizure lists exts. 2 to 16 were seized. test identification parade was conducted in respect of the accused persons and the stolen articles. after completion of investigation, charge-sheet was submitted against the accused persons, including the present appellants.4. the accused persons pleaded innocence. their plea was that the witness had seen them at kirtol before test identification parade was conducted. accused akhaya behera took a further plea that while he was sitting in his shop and engaged in business activities police came, arrested him and filed this case falsely. accused kapila ojha took a plea that while he was working at cuttack in the shop of his brother nari maharana, police arrested him and entangled him in this case falsely. accused anama lenka took a plea that while he was praying at mahadev temple, police came, arrested him and filed this case falsely against him.5. fifty-two witnesses were examined in support of the prosecution case. out of them, p.ws. 1,2,47, 48 and 49 claimed to be witnesses to occurrence. p.w. 50 is the magistrate who conducted t. i. parade. p.ws. 3 to 6 are post-occurrence witnesses. p.ws. 7 to 17 primarily deposed about the incident near the house of bhagaban sethy and injury on laxmidhar sahoo. p.w. 46, the doctor, who examined the injured persons, p.ws. 45,51 and 52 are the investigating officers.one witness was examined by the accused persons to show that the t. i. parade was not conducted in proper manner.6. on consideration of the materials on record, learned assistant sessions judge found the accused persons guilty of the offences punishable under sections 457 and 395. ipc, and under section 9(b) of the explosives act. he sentenced each one of the accused persons to undergo rigorous imprisonment for two years in respect of the offence punishable under section 457, ipc five years' r.i. in respect of the offence punishable under section 395, ipc, and one year's r. i. in respect of the offence punishable under section 9(b) of the explosives act. he also imposed fine of rs. 1,000/- on each of the accused persons in respect of the offence under section 457, rs. 2,000/- in respect of the offence under section 395, in default to undergo rigorous imprisonment for six months and one year respectively.7. in support of the appeals, learned counsel for the appellants laid great emphasis on the evidence of two witnesses, i.e., p.ws. 1 and 49 to submit that the evidence is not credible. the conclusions about validity of the t. i. parade were assailed. so far as conviction under section 457, ipc is concerned, it is submitted that essential ingredients necessary to constitute the said offence have not been established. it is further admitted that the the direction for consecutive running of the sentences is uncalled for. miss sanju panda, learned counsel for state supported the judgment of conviction and sentence.8. i shall first deal with the plea relating to offence punishable under section 457, ipc. the offence under the said section is an aggravated form of the offence described in section 456, ipc. in order to support a conviction under section 457, it is necessary to prove that the lurking house-trespass by night or house breaking by night was committed in order to the committing of any offence punishable with imprisonmment. 'lurking house-trespass' is defined in section 443, ipc, while 'lurking house-trespass by night' is defined in section 444. the said section provides that whoever commits lurking house-trespass after sunset and before sunrise, is said to commit lurking house-trespass by night. 'house-trespass' is defined in section 442. house-trespass may be aggravated by being committed in a surreptitious or in a violent manner. the former aggravated form of house-trespass is designated as 'lurking house-trespass', the latter is designated as 'house-breaking'. the offence of 'criminal trespass' as defined in section 441, may be aggravated in several ways. it may be aggravated by the way in which it is committed and by the ends for which it is committed. house-trespass in every form may be aggravated by the time at which it is committed. trespass of this sort has for obvious reasons, always been considered as a more serious offence when committed by night than when committed by day. more aggravated form of that sort of criminal trespass have been designated as house-trespass, lurking house-trespass, house breaking, lurking house-trespass by night and house breaking by night. in order to constitute lurking house-trespass the offender must take some active means to conceal his presence. the mere fact that a house-trespass it committed by night and darkness helped the accused to conceal his presence, does not make the offence one of lurking house-trespass. the mere fact that a house-trespass was committed by night does not make the offence one of lurking house-trespass within the meaning of section 457. in order to constitute lurking house-trespass, the offender must take some active means to conceal his presence. where the accused made no attempt to conceal himself offence punishable under section 457 is not committed.in the instant case there is no material to show that the accused persons made any attempt to conceal themselves. therefore, section 457, ipc has no application. the charge related to commission of offence relating to house-trespass by night punishable under section 457, ipc. in view of insufficiency of materials about attempt to conceal offence under section 457, ipc is not made out, as far as the accused persons are concerned.9. coming to the question whether the prosecution has been able to prove the offences punishable under section 395, ipc, and under section 9(b) of the explosives act, it is relevant to note that p.w. 1, the daughter-in-law of the informant mukunda rath, and the informant (p.w. 49) identified the accused persons in the t. i. parade. it is stated that the said witnesses had the opportunity to see accused persons earlier. great emphasis is laid on the statement of the investigating officer (p.w. 52) that one narayan behera, who was suspected to be a member of the gang committed the dacoity was called to tirtol police station and was let off when the informant and his family members did not identify him. it is stated that same procedure might have been adopted so far as the present appellants are concerned. with reference to the evidence of p.w. 1, it is stated that she and her father-in-law (p.w. 49) had also gone to tirtol police station. on a close reading of the evidence of p.w. 1, the contention of learned counsel for the appellants is not acceptable. merely because at a particular point of time, the informant (p.w. 49) and p.w. 1 had been called to the police station that cannot per se be taken to be for the purpose of identifying the accused. there is no material to came to such a conclusion.10. the other point urged is that the t. i. parade was conducted after long lapse of time. record show that immediately after the accused persons were apprehended, they were taken to the magistrate for the purpose of t. i. parade. therefore, there is no substance in the plea that t. i. parade was not done with promptitude and that it lost its significance.11. the evidence of p.ws. 1, 9 and 49 clearly establish the accusations so far as the appellants-accused persons arc concerned in respect of the offence under section 395, ipc. so far as the accusation relating to offence under section 9(b) of the explosives act is concerned, evidence of p.ws. 7 and 8 are relevant. p.w. 7 is a person who sustained injuries on account of explosion. he has stated that the dacoits were throwing bombs. no similar effect is the statement of p.w. 8. there was not even any suggestion to these witnesses that the present appellants were not throwing bombs. in that view of the matter, evidence of p.ws. 7 and 8 regarding throwing of bombs by the present appellants is acceptable. i find no infirmity in the conviction of the appellants under section 9(b) of the explosives act.in the result, the convictions so far as they relate to offences punishable under section 395, ipc and section 9(b) of the explosives act are concerned are maintained, while the conviction in respect of section 457. ipc is set aside. sentences as awarded in respect of conviction in terms of section 395. ipc, and section 9(b) of the explosives act do not need any interference.12. a residual prayer has been made that the accused-appellants are in custody since december, 1990, and therefore, sentences should be directed to run concurrently instead of consecutively as directed by the learned trial judge. in order to appreciate this submission, it is relevant to take a bird's eye view of the provisions contained in sections 427 and 428 of the code of criminal procedure, 1973 (in short, the 'code'). former deals with sentence on an offender already sentenced for another offence. it fixes time from which a sentence can be passed on an offender. it states that when a person already undergone a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment or imprisonment for life such sentence shall commence at the expiration of the imprisonment to which he has been previously sentenced, unless the court directs that the subsequent sentence shall run concurrently with such previous sentence. the general rule is that sentences commence to run from the time of their being passed and this section makes an exception in the case of persons already undergoing imprisonment, i.e., subsequent sentence shall commence at the expiration of the previous sentence, unless the court directs that it shall run concurrently with the previous sentence. this rule has no application if (a) the transaction relating to the offence is not the same, or (b) if facts constituting two offences arc quite different. unless the court directs that such sentence shall run concurrently with previous sentence, the imprisonment shall commence at the expiration of sentence to which offender has been previously sentenced. sub-section (1) of section 427 contemplates a sentence anterior in time to the one which a person is undergoing, and also a subsequent sentence on a subsequent conviction. a concurrent sentence carries the inbuilt conception of the prisoner undergoing the sentence in connection with two different punishments imposed in two different cases simultaneously or concurrently at the same time. law has resorted to a fiction and has treated the sentence being undergone by the prisoner as being undergone for both the offences simultaneously or concurrently. the basic rule of thumb over the years has been the so-called single transaction rule for concurrent sentences. if a given transaction constituted two offences under two enactments, generally it is wrong to have consecutive sentences. it is proper and legitimate to have concurrent sentences. but this rule has no application if the transaction relating to offences is not the same or the facts constituting the two offences are quite different. no single consideration can definitely determine the proper sentence. the court must consider, and sometimes reject many factors. in consecutive sentences, in particular, the court cannot afford to be blind to imprisonment which the accused is already undergoing. the court must apply its mind to the facts and circumstances and should not make it a meaningless exercise, missing nuances of the case.13. section 428 comes into operation in a different setting. the object of section 428 is to relieve the anguish of prolonged detention of under-trials and to avoid over-crowding in jails. to dispense with slow motion justice and long distance investigation and trial proceedings the wholesome provision has been introduced. it simply aims at setting off or crediting the period of pre-conviction detention of the accused of a case towards the sentence ultimately awarded to him after his conviction in that very case. by granting set-off credit is given to the convict only in the calculation of the term of imprisonment awarded to him for the period he was in detention. in a case of hardened criminals, and habitual offenders, benefit was refused by kerala high court in sukumaran nair v. state of kerala, (1988) 2 klt 1018. it was observed in the said case that ends of justice requires that sentence should be run consecutively. the said view was accepted by me in dharmananda behera v. state of orissa, (1994) 7 ocr 434. looking at the accusations, direction for consecutive running of the sentences does not need any interference.14. both the appeals are allowed to the extent indicated above.