Madan Mohan Raj 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. - according to him, the circumstances highlighted by learned trial judge do not make out a complete chain and on the other hand there are a lot of missing links, which rendered prosecution version unreliable and in any event do not prove guilt of accused. state of orissa, (1991) 72 clt 298 :(1991 cri lj 1809) (sc) it was observed that court has to bear in mind a caution that in cases depending largely upon circumstantial evidence, there is always a danger that the conjecture or suspicion may take the place of legal proof and such suspicion however strong cannot be allowed to take the place of proof. the court must satisfy itself that the various circumstances in the chain of evidence are established clearly and that the completed chain is much as to rule out a reasonable likelihood of the innocence of the accused. need for removal of necklaces has been established by referring to bad financial condition of the accused. extra-judicial confession is not necessarily a weak piece of evidence. like any other evidence, it has to be tested on the touchstone of credibility and cogency. but his evidence clearly established presence of the accused in the house of deceased.a. pasayat, j.1. undisputedly there has been homicidal death of two persons and serious injuries on the throat of another. prosecution alleges that mohan raj @ madan mohan raj (hereinafter referred to as 'accused') is the author of these crimes and therefore, has to be dealt with under section 302 of indian penal code, 1860 (in short, 'ipc') and sections 307 and 309 thereof. learned 1st addl. sessions judge, puri has accepted that to be the case. accused assault his order of conviction and sentence of imprisonment for life as awarded for offence punishable under sections 302/307, i.p.c. and one year for offence punishable under section 309, i.p.c.2. prosecution version as unfolded during trial essentially is as follows:dasarathi barik (p.w. 1) of village goanda under odagaon police station in the district of puri is the brother of one biswanath barik (p.w. 8) who had married marka dei (hereinafter referred to as 'deceased ranka') the eldest daughter of dandu pradhan (p.w. 2) of the same village. after separation from biswanath, dasarathi used to stay in the house of his father-in-law. on 4-3-1989 in the night deceased ranka with her sisters urmila (p.w. 3) and pramila and her minor son sukanta were sleeping in one room while one kulamani pradhan (hereinafter referred to as 'deceased kulamani') was sleeping in another room with annoda (p.w. 7) who happens to be the other son of deceased ranka. at about 3 a.m., elder brother of p.w. 1 called dasarathi and informed that somebody committed murder of deceased ranka by cutting her throat, in her bed room. on hearing this, he along with others went to that room and found deceased ranka was lying dead in a pool of blood with her throat cut and a lady wrist watch was lying nearby. they also found deceased kulamani, brother of deceased ranka dead in the other room with four cuts. they also found that the culprit had also attempted to commit murder of pitambar @ ananda barik (p.w. 7) who was sleeping with the deceased kulamani. he had received bleeding injury on his neck. on receipt of information from p.w. 1 investigation was undertaken. during investigation, the i.o. visited the spot, did inquest over the dead bodies and sent them for post-mortem examination. he also seized incriminating articles used for locking entrance door as blood stain finger print mark was found on it and sent it to finger print expert for examination, suspecting the finger print to be that of the accused. since materials existed to show that on the night of occurrence, the accused was sleeping inside the house in question with deceased kulamani, it was inferred that taking advantage of such situation, he committed theft of gold necklaces worn by deceased ranka, and escaped by killing both the deceased persons and giving cut injury to ananda. he was found moving in suspicious manner at pancharida bus stand on 16-3-1989, and was caught red handed while attempting to commit suicide. he expressed his repentance for having caused death of two persons and to that effect he made extra judicial confession before the witnesses, and tried to commit suicide. his finger print was taken by the scientific officer for comparison. one torch light and napkin of the accused were seized as bloodstains existed on those articles. after completion of investigation, charge-sheet was submitted and the accused faced trial for offences under sections 302, 307 and 309, i.p.c. the accused pleaded his innocence. in his statement recorded under section 313 of the code of criminal procedure, 1973 (in short, the 'code') he admitted to be a close friend of p.w. 9 who happens to be the brother of deceased sanka and kulamani, and to be in visiting terms to their house. he also admitted that he used to go to forest for hunting.3. eighteen witnesses were examined to further the prosecution case. p.w. 1 is the informant. p.w. 2 is the father of deceased who stated about the wrist watch lying near the head of the deceased ranka and missing of gold necklaces from her neck. p.w. 3 is the sister of deceased and p.w. 4, a neighbour of p.w. 2 found the accused running away on the night of occurrence. p.w. 7 in the injured and son of deceased ranka. p.w. 8 is the husband of deceased ranka while p.w. 9 is the brother of both the deceased and close friend of the accused. p.w. 10 has stated about extra-judicial confession made before him and p.w. 11 is the scientific officer who compared the finger prints. since there was no eye-witness to the occurrence, learned trial judge referred to circumstantial evidence led by prosecution. some of the circumstances highlighted by prosecution are : (a) deceased ranka was last seen with the accused; (b) recovery of articles and finger prints on the articles used for closing the door; (c) conduct of the accused; and (d) extra-judicial confession. learned trial judge held that there was complete chain of circumstance which unerringly pointed out the accused to be the author of crime. with those conclusions, he held the accused guilty and sentenced him as aforesaid.4. mr. m. jain, learned counsel appearing on behalf of accused submitted that in a case where there is no direct evidence, a close scrutiny of circumstance is necessary to show whether only possible conclusion is that about guilt of accused. according to him, the circumstances highlighted by learned trial judge do not make out a complete chain and on the other hand there are a lot of missing links, which rendered prosecution version unreliable and in any event do not prove guilt of accused. mr. a. mohapatra, learned counsel for state on the other hand supported judgment and staled that circumstances proved beyond shadow of doubt that accused was guilty of offence and has been rightly sentenced.5. there is no doubt that the act as done in disable in its conception and cruel in its execution. where prosecution relies on circumstantial evidence to establish guilt of accused for committing crime, each and every link in chain of circumstances has to be proved to the hilt, so as to exclude all reasonable hypothesis relating to innocence of accused, and conclusively pointing at guilt of the accused. standard required is that circumstances relied upon must be fully estalished and chain of evidence furnished by these circumstances should be so complete as not to leave any reasonable ground for a conclusion consistent with innocence of accused. it must be such as to rule out a reasonable likelihood of the innocence of accused. circumstances must point the accused as the probable assailant with reasonable definiteness and proximity to the deceased as regards time and situations and if he offers no explanation which if accepted, though not proved, would offer a reasonable basis for a conclusion on the entire case consistent with his innocence. absence of such explanation of false explanation would be itself an additional link which completes the chain. but this does not mean that before prosecution can succeed in a case resting upon circumstantial evidence alone, it must meet any and every hypothesis suggested by the accused however extravagant and fanciful it might be. in otherwords, when deciding question of sufficiency, what the court has to consider is the total cumulative effect of all proved facts each one of which reinforces conclusion of guilt, and if combined effect of all these facts taken together is conclusive in establishing guilt of accused, conviction would be justified, even though it may be that any one or more of these facts by itself is not decisive. as observed by apex court in sharad birdhichand sarda v. state of maharashtra, air 1984 sc 1622 : (1984 cri lj 1738) the following conditions must be fulfilled before a case against an accused based on circumstantial evidence can be said to be fully established.(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. the circumstances concerned 'must or should' and not 'may be' established.(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.(3) the circumstances should be of a conclusive nature and tendency.(4) they should exclude every possible hypothesis except the one to be proved, and(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.it needs no elaboration that a case can be said to be proved only when there is certain and explicit evidence and no person can be convicted on pure moral conviction. where on the evidence two possibilities are available one which goes in favour of prosecution and the other which benefits an accused, the benefit of doubt has to be extended to him. in jaharlal das v. state of orissa, (1991) 72 clt 298 : (1991 cri lj 1809) (sc) it was observed that court has to bear in mind a caution that in cases depending largely upon circumstantial evidence, there is always a danger that the conjecture or suspicion may take the place of legal proof and such suspicion however strong cannot be allowed to take the place of proof. the court has to be watchful and ensure that conjectures and suspicions do not take the place of legal proof. the court must satisfy itself that the various circumstances in the chain of evidence are established clearly and that the completed chain is much as to rule out a reasonable likelihood of the innocence of the accused.6. it is pleaded by accused that there is no mention in the fir about the missing of necklaces. the report of finger print expert is also assailed on the ground that his expertise has not been proved. so far as recovery of incriminating materials are concerned, it is submitted that no recovery from the accused was established. exaggerations and deliberate after- ' thoughts in making developments during examination has also been pleaded. learned counsel for state on the other hand submitted that elaborate analysis of facts situation has been made and learned trial judge has rightly held that there was complete chain of circumstance to establish guilt of accused.7. keeping in view the aforesaid principles in mind, it is to be seen whether prosecution has been able to prove its accusations. circumstances indicated by the prosecution are as follows :-(a) accused was last seen with deceased.(b) motive and opportunity to commit the crime.(c) recovery of incriminating articles such as lady wrist watch lying near the dead body of deceased ranka.(d) blood-stained finger print on mo ii.(e) conduct of the accused.(f) extra-judicial confession.8. some aspects which have been found relevant by the learned trial judge to fasten culpability on the accused need be highlighted. the accused has accepted that he was in regular visiting terms to the house where deceased ranka used to stay. it is also not in dispute that accused is a close friend of kulamani who is brother of deceased ranka. from the evidence of p.ws. 2, 3 and 9, it is clear that on the previous night of occurrence, accused had also met the deceased ranka. evidence of p.ws. 4 and 7 throws considerable light about the complicity of the accused. the letter witness, a neighbour of p.w. 2 claimed to have seem the accused running from the house of ranka in an unusual manner. vulnerability was attached to his evidence on the ground of delayed examination by the learned counsel for accused. the witness has offered an explanation for delayed examination. according to him, he did not venture to go out and meet police official, as accused was a rowdy person and the witness was afraid of him. evidence of p.w. 2 establishes presence of the accused in the house on the night of occurrence. evidence of p.w. 4 is to the affect that almost every night accused used to go to the house of deceased ranka. evidence of p.w. 8 is also relevant. he stated that he found two necklaces which were with his wife was missing. p.w. 9 has stated that out of ornaments worn by ranka, two necklaces were missing from her neck. it has been stated by p.w. 8' that a wrist watch (mo i) was lying near the neck of deceased ranka. p.w. 4 has stated that he identified accused through torch light on the night of occurrence. he is an independent witness and his statement to the effect that he was in cordial terms with the accused has not been challenged. absence of any mention about two necklaces in the fir was emphasised. it is to be noted that the fir is not an encyclopaedia of the prosecution case. non-mention of minor details in the f.i.r. may be an honest omission and due to inadvertent mistake, and may be due to various conceivable reasons and a man shocked at the death of his relation would not be expected to maintain mental equanimity of an unconcerned man to give an elaborate report of the incident complete in all aspects. learned trial judge has rightly observed that non-mention of ornaments in the f.i.r. would not affect value of the same and it shall not be a circumstance to discard evidence of the witnesses in this regard. it cannot also be lost sight that p.w. 1 being the elder brother of p.w. 8 who is husband of deceased ranka, would not normally get chance of knowing what ranka was wearing in view of social custom prevalent in our state. need for removal of necklaces has been established by referring to bad financial condition of the accused. p.w. 9 has stated that accused was in need of rs. 400/- and short time prior to the occurrence accused had asked him to give rs. 400/- presence of the writ watch which was found lying near the dead body of the deceased is another relevant factor. the said lady wrist watch was seized on 5-3-1989 vide ext. 30 and was marked mo i. from the evidence of p.w. 9 it is clear that the said wrist watch belonged to the accused and he had seen him wearing it some time prior to the occurrence. p.w. 9 is a close friend of the accused. there is no reason as to why he would tell falsehood. presence of the wrist watch near the dead body of the deceased has been mentioned in the f.i.r. presence of blood-stained finger print on the wooden kilini (mo ii) is also very relevant. p.w. 11 has stated that he detected partial chance blood-stained finger print on mo ii. since the finger print was stained with blood it was preserved and taken to laboratory and he took the photograph in the laboratory. mos iv and v are negatives of first and second photographs respectively. according to report of the director, state finger prints bureau (ext. 38), finger print of accused tallied with finger print on kilini marked mo ii. as has been observed by apex court in jaspal singh v. state of punjab, air 1979 sc 1708 : (1979 cri lj 1386) science of identifying thumb impression is an exact science and does not admit of any mistake or doubt. it is a great incriminating circumstance. finger print was noticed by p.w. 11 much prior to the arrest of accused as found from the evidence of p.w. 8.9. so far as extra-judicial confession is concerned, it is submitted that there is no reason to repose confidence on a complete stranger. it is true that normally a person would not repose confidence on a complete stranger. where such a stand is taken for the prosecution. court is required to evaluate evidence and come to a conclusion whether the evidence is credible. extra-judicial confession is not necessarily a weak piece of evidence. like any other evidence, it has to be tested on the touchstone of credibility and cogency. if the court after analysing evidence comes to hold that extra-judicial confession was made voluntarily before the person who claims to have heard it, conviction solely on such extra-judicial confession can be made. normally a person would not repose confidence on a complete stranger. that would be against normal human conduct, because a person would not speak something before a stranger which will ultimately implicate him. but the circumstances highlighted by prosecution show that accused has developed remorse for the crimes committed by him and wanted to take out his own life as an act for repentance. p.w. 10 has no axe to grind with the accused and there is no reason as to why he could falsely implicate an innocent person. in that view of the matter, learned trial judge was justified in placing reliance on the evidence of p.w. 10.10. so far as evidence of p.w. 7 is concerned, though he had not stated many aspects before the i.o. but his evidence clearly established presence of the accused in the house of deceased. p.w. 9 is a very close friend of accused. in view of such close friendship, it is inconceivable that there would be an attempt to implicate the accused, a friend, falsely and shield the actual culprit.11. though motive is not relevant for establishing guilt of accused, but for paucity of funds and desparation of accused to get money, has been established through evidence of p.w. 9.12. conduct of the accused in disappearing immediately after the occurrence is also a very suspicious circumstance. no explanation has been offered as to why accused was not found in the vicinity of the spot of occurrence immediately after the occurrence till his arrest, though he was regularly coming to the house of deceased almost without a break.13. combined effect of evidence leaves no manner of doubt about guilt of the accused. circumstances established provide a complete chain, with no missing link. guilt of the accused has been established beyond reasonable doubt, so far as offence under section 302, ipc is concerned. so far as offence under section 307, ipc is concerned, the evidence referred to above amply establishes it. it is seen that no separate sentence has been awarded, and a combined sentence for section 302/307, ipc has been awarded. the same is not regular. the sentence for section 307, ipc shall be seven years rigorous imprisonment. the sentence has to run concurrently. in view of the decision of the apex court in p. rathinam nagabhusan patnaik v union of india, (1994) 7 ocr 476 (sc) holding section 349, ipc to be ultra vires, the conviction and consequently the sentence are set aside. to conclude, conviction under sections 302 and 307 ipc is maintained with sentences as indicated above. conviction under section 309, ipc is set aside, so is the corresponding sentence.the appeal is accordingly disposed of.p. ray, j.14. i agree.after judgment was delivered as oral prayer was made in terms of article 134 of the constitution of india for grant of leave. after having heard learned counsel for appellant and learned counsel for state, we do not consider this to be a fit case for grant of leave.