Nityananda Nayak and ors. 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. - of bhubaneswar, as it is well known, it is well connected by road being adjacent to national highway which runs through bhubaneswar and khurda. he has staled in his cross-examination that he knew the accused persons only by their nick names and he did not know their good names. 9, good names of the accused persons had been given by p. 3 did not know the good names of the accused persons, he could not have disclosed as such before the police.p.k. misra, j.1. the three appellants have been convicted under section 302/34 of the indian penal code for having committed murder of prafulla rout.2. briefly stated, the prosecution case is as follows:informant, p.w. 1 and his brother, prafulla rout, the deceased, had gone to jatni on 22-4-91 from their village which is about six kilometres away from jatni. on their return, they were told by their father, p.w. 6 that nityananda (appellant no. 1) has thrown stone at their house and p.w. 6 being hit by a stone had sustained a bleeding injury. the informant and the deceased specified their father and lefi for jatni by moped at about 9.30 p.m. for the purpose of lodging a report. while they were passing through a mango tope, locally known as gossintota situated at the outskirts of the village somebody shouted 'salaku hana'. the deceased stopped the moped, p.w. 1 focussed the torchlight, and could identify the three appellants of whom appellant nityananda was holding a sword, akhaya was holding a farsa and ajay was holding a bhujali. ajay gave a bhujali blow on the right side head of the deceased, as a result of which the deceased fell down and thereafter the three appellants gave out blows to the deceased. when the accused persons threatened to kill him, he ran away to his house shouting and calling others to come to the rescue of his brother. reaching his house he found jagabandhu parida, p.w. 5, purna rout, p.w. 7 and a co-villager, bali nayak. he told them regarding the incident and all the four came in a motorcycle driven by p.w. 5. they found that the deceased was lying in a senseless condition. p.w 1 with the help of p.w. 7 removed the deceased on a motorcycle to jatni hospital, where the doctor, p.w. 4, found the deceased was already dead and accordingly a report was sent to the police station. subsequently, p.w. 1 want to the police station and reported the matter orally which was treated as the f.i.r.after completion of investigation, charge sheet was filed and the accused persons were charged under section 302/34, ipc. their plea was one of denial.3. prosecution examined nine witnesses, of whom p.w. 1 and 4 to 7 have already been introduced. besides the said witnesses, p.w. 2 is a seizure witness, p.w. 3 is a pre-occurrence witness and had seen the appellants being variously armed just prior to the incident, p.w. 8 is the doctor who conducted the post-mortem examination and p.w. 9 is the investigating officer.4. relying upon the evidence of the informant p.w. 1, as corroborated by the post-occurrence witnesses, p.ws. 5 and 7, pre-occurrence witness, p.w. 3 and the post-mortem report, the trial court held all the accused persons guilty of having committed the offence under section 302/34, ipc and sentenced them to undergo imprisonment for life.5. in this appeal mr.g.n. mohapatra, learned counsel appearing on behalf of the appellants has assailed the findings of the trial court on several grounds. he has contended that though the fir is alleged to have been lodged at 10.45 p.m., it was not sent to the court of the s.d.j.m. forthwith. it is also submitted that in the inquest report the names of the appellants having not been mentioned, a doubt is created. he has further submitted that the sole testimony of p.w. 1 who is the brother of the deceased should not have been accepted in the absence of corroboration in respect of material particulars. he has criticised the prosecution for not having examined any independent witness of the village including bati nayak. it is further submitted by him that the allege motive was not sufficient for killing the deceased.the learned addl. government advocate has supported the judgment of the trial court.6. as already indicated p.w. 1 is the sole eye witness to the occurrence, p.w. 1 is the brother of the deceased and there are materials on record to indicate that there was animosity between the family of p.w. 1 and the family of the appellants. there is no bar in law to base a conviction on the sole testimony of an eye witness even if he is a close relation of the deceased if the evidence is otherwise trustworthy.the learned counsel for the appellant has contended that as per the version of p.w. 1 he saw the occurrence by focussing the torchlight which was carried by him. p.w. 1 has stated that he has produced the torchlight before the investigating officer, on the other hand, the investigating officer, p.w. 9, has stated no such tonchlight has been produced, before him. it, in tact, the torchlight was produced, in noirmal) course, the same should have been seized during the investigation. since the torchlight allegedly carried by p.w. 1 has not been seized, it is submitted that the very basis of the prosecution case that p.w. 1 identified the appellants by focussing the torchlight becomes doubtful. if this circumstance would have been the only suspicious feature in the evidence of the witness, we could have overlooked the same, but we find that there are other suspicious features as discussed hereunder which create some doubt regarding the veracity of the evidence of p.w. 1.it is alleged that p.w. 1 lodged the fir at 10.45 p.m. soonafter the occurrence. if the fir would have been otherwise found to be promptly made, that would have corroborated the testimony of p.w. 1. however, there is sufficient doubt regarding the genuineness of the fir itself. the fir though allegedly lodged at 10.45 p.m. on 22-4-91, was received by the s.d.j.m. on 24-4-91. though jatni is about 30 kilometres from the court of' the s.d.j.m. of bhubaneswar, as it is well known, it is well connected by road being adjacent to national highway which runs through bhubaneswar and khurda. the investigating officer has stated that the fir was sent on 23-4-91 through a special messenger. if that be so, there is no earthly reason as to why it reached the court of the s.d.j.m. on 24-4-91. the special messenger, who allegedly carried the fir to the court of the s.d.j.m. having not been examined, it is difficult to accept the statement of the investigating officer that in fact the fir was despatched on 23-4-91. as has been held in a decision reported in air 1980 sc 638 : 1980 cri lj 446 marudanal augusti v. state of kerala, the delayed despatch of fir to the court of the s.d.j.m. creates some doubt regarding the authenticity of the fir. coupled with the aforesaid suspicious circumstance, it is apparent from the evidence of the investigating officer that a tracking dog was pressed into service on the next date of occurrence evidently with a view to find out the culprits. if in fact, the fir containing the names of the three culprits was lodged at 10.45 p.m. on 22-4-91, there was no occasion to lake the help of tracking dog for the purpose of finding out the culprits. this circumstance adds to the suspicion regarding the genuineness of the fir.apart from the above two suspicious features, it is apparent from the evidence of doctor, p.w. 4 that he had sent report to the police station regarding commission of crime after the deceased was brought to the hospital by p.w. 1. the first intimation given by the doctor to the police has been withheld. if the same would have been produced it would have buttressed the prosecution case to the effect that p.w. 1 had seen the occurrence and had implicated the accused persons at the earliest. withholding of such intimation admittedly given by the doctor adds to the suspicion and coupled with the delayed despatch of the fir creates doubt as to whether p.w. 1 had actually seen the occurrence and had implicated the accused persons at the very first instance. the evidence of the investigating officer to the effect that in the night of the incident he did not examine other witnesses including the inmates of the family of the deceased, also creates doubt.7. it is alleged that soon after the occurrence p.w. 1 came rushing to his house shouting all the way asking people to come to the rescue of the deceased. it is further stated that he found p.ws. 5, 7 and bati nayak at the verandah of his own house and disclosed about the occurrence and all four of them went back near the deceased. p. ws. 5 and 6 are respectively brother-in-law and brother of the deceased and as such both are interested witnesses, specially in view of the background of admitted enmity between the family of the deceased and the informant. in such view of the matter, the prosecution should have examined bati nayak, an independent co-villager. withholding of bati nayak from the witness box without any reason creates a doubt regarding the version of p.w. 1.8. apart from the evidence of p.w. 1 and the post-occurrence witnesses p.ws. 5 and 7, the prosecution has tried to bolster its case through the mouth of p.w. 3, a pro-occurrence witness. p.w. 3 claims that soon before the occurrence he had seen the three appellants at a nearby place. however, the evidence of p.w. 3 regarding the identity of the three appellants is doubtful. he has staled in his cross-examination that he knew the accused persons only by their nick names and he did not know their good names. he claims that he disclosed the nick names of the accused persons before the police. however, according to the evidence of p.w. 9, good names of the accused persons had been given by p.w. 3. if p.w. 3 did not know the good names of the accused persons, he could not have disclosed as such before the police. thus the evidence of p.w. 3 becomes doubtful. if in fact, he saw the accused persons being armed with deadly weapons soon before the occurrence, in ordinary course, he would have disclosed the same before the other villagers after the crime was detected. however, as admitted by him he did not disclose about such fact to anybody in the village. such anaemic evidence of p.w. 3 cannot have the effect of bolstering the prosecution case which rests on rickety evidence of the sole eyewitness, p.w. 1 having regard to the other suspicious circumstances already discussed.9. the learned counsel for the appellants submitted that non-mentioning of the names of the accused persons in the inquest report creates doubt regarding the culpability of the three appellants. he has cited some decisions of the supreme court in respect of such contention which is being resisted by the counsel for the state. non-mentioning of the names of the accused persons in the inquest report may not create any doubt regarding the veracity of the prosecution case in each and every case. if the names would have been mentioned that would have gone a long way to corroborate the prosecution case. however, absence of such names does not have the effect of creating doubt. learned counsel for the appellants had also criticised the fact that there was some discrepancy in the registration number of the moped as indicated in the seizure list and the registration book. we are, however, not impressed by such submission of the learned counsel for the appellants.10. in view of the above facts and circumstances discussed above, we are not able to agree with the findings of the trial court and are of the view that the sole testimony of p.w. 1 is not sufficient to fasten the liability and the appellants are entitled to get the benefit of doubt.11. in the result, the appeal is allowed and the order of conviction and sentence is set aside. the appellants be released forthwith.