Significant Judgments
JUSTICE B.P. ROUTRAY
The present matter has been filed by the Appellant challenging the grant of probate under Section 276 of Indian Succession Act, 1925 in the judgement dated 22nd January, 1996. According to the facts of the case, Harekrushna is the testator and the Plaintiff is the legatee in respect of the Will. Before his death,Harekrushna executed an unregistered ‘Will’ in favour of the Plaintiff out of his free will in presence of the witnesses. Being a leprosy patient, he had lost the fingers and at the time of execution of the Will, the scribe attested the thumb impression (Santak) of Harekrushna on the Will in presence of the witnesses as per his direction as he was unable to put his signature.
The defendants contended that the no such Will was executed by Harekrushna. They also disputed the date of death of Harekrushna and as per them, he died prior to attaining the age of majority. Therefore, the interest of the alleged testator in the joint family property passed on to the surviving members of the joint family.
Considering that it is an unsigned and unregistered Will, the Court opined that the burden of proof is on the propounder and the test is satisfaction of conscience of the Court. They observed that it is the ultimate conscience of the Court that has to be satisfied and as such, the nature and quality of proof must commensurate with the need to satisfy that conscience and remove all suspicions which a reasonable man may entertain in the circumstances of the case. The Court upheld the decision of the Trial Court where it was observed that in absence of unimpeachable evidence from the side of the Defendants, it is difficult to arrive at any concrete conclusion if Harekrushna died prior to the date of execution of the Will. The appeals were found to be devoid of merit and as such were dismissed.
The case was an alleged case of uxoricide and the conviction was under Section 302of Indian Penal Code, 1860. In the absence of any direct eye-witnesses, the prosecution case rests on circumstantial evidence in case of a homicidal death. The evidence was adduced by PWs. 1, 2, 3, 5 & 6 which did not lend credence to establish the charge against the appellant.
There were no circumstances explained about the weapon of offense seized upon discovery. The prosecution had failed to bring forth material evidence to establish a connection between the appellant and alleged offense concerning the seizure of weapon of offense. The Court observed that the theory of extra-judicial confession as relied upon by the prosecution to sustain conviction was dispelled by the statement of PW-8 that the confession of the appellant was involuntary and exerted through fear and pressure due to the assault by villagers.
The Court held that the circumstances relied upon by the prosecution do not form a complete chain to hold the appellant guilty. Thus, the impugned judgment of conviction and sentence was set aside and the appellant is acquitted of the charge.
In this case, the Respondent no. 1 was serving as Senior Lecturer in Sambalpur University, when he was served a memorandum of charges on 23.07.1998 for alleged misconduct. After receipt of memo, he requested for certain documents which were not served to him on repeated requests. The inquiry officer furnished the report after examining four witnesses. Relying on his report, the disciplinary authority held Respondent No.1 guilty of the charges of misconduct and dereliction of duty in its order dated 24.06.2000, and asked him to submit his show cause against proposed punishment. The Respondent no.1 refuted the findings of inquiry officer and reiterated his contention for non-supply of documents. In 2015, a Single Judge set aside the order of dismissal on account of violation of principles of natural justice, which was challenged in present appeal.
The Court noted that the provisions enshrined in the OCS (CCA) Rules, 1962 were applicable to the employees and teachers of Sambalpur University and that it was a matter of record that the Respondent No.1 immediately upon service of the memorandum of charges asked for copies of documents referred in the statement of allegations, wherein not furnishing the same to the Respondent thus materialised to a procedural lapse on part of disciplinary authority. The Court also observed that the conclusion of guilt of the inquiry officer was based on the statement of witnesses in the course of preliminary inquiry who were not examined in the disciplinary proceedings, without further examining such relevant witnesses who would have had direct knowledge of the incident. Therefore, the Court decided that the findings of the inquiry officer were vitiated prima facie for violation of fundamental principles of proof.
Finally, in regards to supply of inquiry report before passing the final order of extreme penalty, the Court observed that the disciplinary authority asked the respondent to submit his show cause notice only against proposed punishment, treating the procedure of seeking a reply as an empty formality. This was also noted to be in contravention of Rule 15(10) of the OCS (CCA) Rules, 1962, which clearly mandates service of the inquiry report on the delinquent while calling upon him to submit his representation, if any, against the findings of the inquiry officer.Hence, the Court dismissed the writ appeal and vitiated the entire proceeding for non-compliance of substantive procedure.
