LAW FOR ALL

Monday, July 28, 2014

Conflicting Decisions - No - whether the excess payment can be recovered paid by the fault of employer / can not be refunded, paid due to bonafide mistake of employer - Excess payment made to employees for no fault of them - can not be recoverable by employer after belated stage - Excess payment received by Employee -liable to be refunded like recovery of excess tax payments as no one can enrich wrongfully - Apex court held that former decisions is an equitable relief under Art.142 ,given under facts and circumstances of that case and is not binding precedent and Apex court further held that the later decisions is a declaration of law under Art.136 is binding on all as no one can enrich wrongfully and when it came to know his knowledge , he is liable to refund the same like income tax department and as such returned the reference and remanded the case to decided as per law = STATE OF PUNJAB & ORS. PETITIONER(S) VERSUS RAFIQ MASIH (WHITE WASHER) RESPONDENT(S) = 2014 – July. Part – http://judis.nic.in/supremecourt/filename=41794

Conflicting Decisions - No - whether the excess payment can be recovered paid by the fault of employer / can not be refunded, paid due to bonafide mistake of employer - Excess payment made to employees for no fault of them - can not be recoverable by employer after belated stage - Excess payment received by Employee -liable to be refunded like recovery of excess tax payments as no one can enrich wrongfully - Apex court held that former decisions is an equitable relief under Art.142 ,given under facts and circumstances of that case and is not binding precedent and Apex court further held that the later decisions is a declaration of law under Art.136 is binding on all as no one can enrich wrongfully and when it came to know his knowledge , he is liable to refund the same like income tax department and as such returned the reference and remanded the case to decided as per law =

"In View of an apparent difference of views expressed on the
one hand
in Shyam Babu Verma and Ors. vs. Union of India & Ors. (1994) 2
SCC 521 and Sahib Ram Verma vs. State of Haryana (1995) Supp. 1 SCC 18;
and
on the other hand in Chandi Prasad Uniyal and Ors. vs. State of
Uttarakhand & Ors. (2012) 8 SCC 417,
we are of the view that the remaining
special leave petitions should be placed before a Bench of Three Judges.
The Registry is accordingly directed to place the file of the remaining
special leave petitions before the Hon'ble the Chief Justice of India for
taking instructions for the constitution of a Bench of Three Judges, to
adjudicate upon the present controversy."
Shyam Babu Verma and Ors. vs. Union of India & Ors. (1994) 2
SCC 521
"Although we have held that the petitioners were entitled only
to the pay scale of Rs.330-480 in terms of the recommendations of the Third
Pay Commission w.e.f. January 1, 1973 and only after the period of 10
years, they became entitled to the pay scale of Rs.330-560 but as they have
received the scale of Rs.330-560 since 1973 due to no fault of theirs and
that scale is being reduced in the year 1984 with effect from January 1,
1973, it shall only be just and proper not to recover any excess amount
which has already been paid to them.
(emphasis supplied)."

Sahib Ram Verma vs. State of Haryana (1995) Supp. 1 SCC 18;
"Admittedly the appellant does not possess the required
educational qualifications. Under the circumstances the appellant would
not be entitled to the relaxation. The principal erred in granting him the
relaxation. Since the date of relaxation the appellant had been paid his
salary on the revised scale. However, it is not on account of any
misrepresentation made by the appellant that the benefit of the higher pay
scale was given to him but by wrong construction made by the Principal for
which appellant cannot be held to be fault. Under the circumstances the
amount paid till date may not be recovered from the appellant."

Chandi Prasad Uniyal and Ors. vs. State of Uttarakhand & Ors. (2012) 8 SCC 417,

"14. We are concerned with the excess payment of public money which
is often described as "taxpayers' money" which belongs neither to the
officers who have effected overpayment nor to the recipients. We fail to
see whey the concept of fraud or misrepresentation is being brought in such
situations. The question to be asked is whether excess money has been paid
or not, may be due to a bona fide mistake. Possibly, effecting excess
payment of public money by the government officers may be due to various
reason like negligence, carelessness, collusion, favouritism, etc. because
money in such situation does not belong to the payer or the payee.
Situations may also arise where both the payer and the payee are at fault,
then the mistake is mutual. Payments are being effected in many situations
without any authority of law and payments have been received by the
recipients also without any authority of law. Any amount paid/received
without the authority of law can always be recovered barring few exceptions
of extreme hardships but not as a matter of right, in such situations law
implies an obligation on the payee to repay the money, otherwise it would
amount to unjust enrichment.

16. The appellant in the appeal will not fall in any of these exceptional
categories, over and above, there was a stipulation in the fixation order
that in the condition of irregular/wrong pay fixation, the institution in
which the appellants were working would be responsible for recovery of the
amount received in excess from the salary/pension. In such circumstances,
we find no reason to interfere with the judgment of the High Court.
However we order that excess payment made be recovered from the appellants
salary in 12 equal monthly instalments.”

Apex court held that

In our view, the law laid down in Chandi Prasad Uniyal's case,
no way conflicts with the observations made by this Court in the other two
cases.
In those decisions, directions were issued in exercise of the
powers of this Court under Article 142 of the Constitution, but in the
subsequent decision this Court under Article 136 of the Constitution, in
laying down the law had dismissed the petition of the employee.

This Court in the
case of Indian Bank v. ABS Marine Products (P) Ltd., 2006 5 SCC 72, Ram
Pravesh Singh v. State of Bihar, (2006) 8 SCC 381 and in State of U.P. v.
Neeraj Awasthi (2006) 1 SCC 667, has expounded the principle and extolled
the power of Article 142 of the Constitution of India to new heights by
laying down that the directions issued under Article 142 do not constitute
a binding precedent unlike Article 141 of the Constitution of India. They
are direction issued to do proper justice and exercise of such power,
cannot be considered as law laid down by the Supreme Court under Article
141 of the Constitution of India. The Court have compartmentalized and
differentiated the relief in the operative portion of the judgment by
exercise of powers under Article 142 of the Constitution as against the law
declared. The directions of the Court under Article 142 of the
Constitution, while moulding the relief, that relax the application of law
or exempt the case in hand from the rigour of the law in view of the
peculiar facts and circumstances do not comprise the ratio decidendi and
therefore lose its basic premise of making it a binding precedent. This
Court on the qui vive has expanded the horizons of Article 142 of the
Constitution by keeping it outside the purview of Article 141 of the
Constitution and by declaring it a direction of the Court that changes its
complexion with the peculiarity in the facts and circumstances of the case.

12. Therefore, in our opinion, the decisions of the Court based on
different scales of Article 136 and Article 142 of the Constitution of
India cannot be best weighed on the same grounds of reasoning and thus in
view of the aforesaid discussion, there is no conflict in the views
expressed in the first two judgments and the latter judgment.

13. In that view of the above, we are of the considered opinion
that reference was unnecessary. Therefore, without answering the
reference, we send back the matters to the Division Bench for its
appropriate disposal.

2014 – July. Part – http://judis.nic.in/supremecourt/filename=41794

REPORTABLE

IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION

SPECIAL LEAVE PETITION (C) No.11684 of 2012

STATE OF PUNJAB & ORS. PETITIONER(S)

VERSUS

RAFIQ MASIH (WHITE WASHER) RESPONDENT(S)

WITH

SPECIAL LEAVE PETITION No.....CC No. 14663 of 2010
SPECIAL LEAVE PETITION (C) No. 21554 of 2013
SPECIAL LEAVE PETITION No.....CC No. 20144 of 2010
SPECIAL LEAVE PETITION No.....CC No. 9303 of 2011
SPECIAL LEAVE PETITION (C) No. 30751 of 2012
SPECIAL LEAVE PETITION (C) No. 15307 of 2013
SPECIAL LEAVE PETITION No.....CC No. 15876 of 2011
SPECIAL LEAVE PETITION No.....CC No. 16190 of 2011
SPECIAL LEAVE PETITION No.....CC No. 16326 of 2011
SPECIAL LEAVE PETITION No.....CC No. 16327 of 2011
SPECIAL LEAVE PETITION No.....CC No. 16350 of 2011
SPECIAL LEAVE PETITION No.....CC No. 16309 of 2011
SPECIAL LEAVE PETITION No.....CC No. 16325 of 2011
SPECIAL LEAVE PETITION No.....CC No. 16303 of 2011
SPECIAL LEAVE PETITION No.....CC No. 16548 of 2011
SPECIAL LEAVE PETITION No.....CC No. 16723 of 2011
SPECIAL LEAVE PETITION No.....CC No. 16594 of 2011
SPECIAL LEAVE PETITION No.....CC No. 16580 of 2011
SPECIAL LEAVE PETITION No.....CC No. 16582 of 2011
SPECIAL LEAVE PETITION No.....CC No. 16850 of 2011
SPECIAL LEAVE PETITION No.....CC No. 16904 of 2011
SPECIAL LEAVE PETITION No.....CC No. 17204 of 2011
SPECIAL LEAVE PETITION No.....CC No. 17193 of 2011
SPECIAL LEAVE PETITION No.....CC No. 17201 of 2011
SPECIAL LEAVE PETITION No.....CC No. 17192 of 2011
SPECIAL LEAVE PETITION (C) No. 30473 of 2011
SPECIAL LEAVE PETITION No.....CC No. 17388 of 2011
SPECIAL LEAVE PETITION No.....CC No. 17534 of 2011
SPECIAL LEAVE PETITION No.....CC No. 17507 of 2011
SPECIAL LEAVE PETITION No.....CC No. 17508 of 2011
SPECIAL LEAVE PETITION No.....CC No. 17709 of 2011
SPECIAL LEAVE PETITION No.....CC No. 17711 of 2011
SPECIAL LEAVE PETITION No.....CC No. 17735 of 2011
SPECIAL LEAVE PETITION No.....CC No. 17798 of 2011
SPECIAL LEAVE PETITION No.....CC No. 17888 of 2011
SPECIAL LEAVE PETITION No.....CC No. 17846 of 2011
SPECIAL LEAVE PETITION No.....CC No. 17835 of 2011
SPECIAL LEAVE PETITION No.....CC No. 18261 of 2011
SPECIAL LEAVE PETITION No.....CC No. 18286 of 2011
SPECIAL LEAVE PETITION No.....CC No. 18227 of 2011
SPECIAL LEAVE PETITION No.....CC No. 18312 of 2011
SPECIAL LEAVE PETITION No.....CC No. 18337 of 2011
SPECIAL LEAVE PETITION No.....CC No. 18310 of 2011
SPECIAL LEAVE PETITION No.....CC No. 18423 of 2011
SPECIAL LEAVE PETITION No.....CC No. 18536 of 2011
SPECIAL LEAVE PETITION No.....CC No. 18527 of 2011
SPECIAL LEAVE PETITION No.....CC No. 18526 of 2011
SPECIAL LEAVE PETITION No.....CC No. 18525 of 2011
SPECIAL LEAVE PETITION No.....CC No. 18524 of 2011
SPECIAL LEAVE PETITION No.....CC No. 18535 of 2011
SPECIAL LEAVE PETITION No.....CC No. 18628 of 2011
SPECIAL LEAVE PETITION No.....CC No. 18630 of 2011
SPECIAL LEAVE PETITION No.....CC No. 18767 of 2011
SPECIAL LEAVE PETITION No.....CC No. 18784 of 2011
SPECIAL LEAVE PETITION No.....CC No. 18805 of 2011
SPECIAL LEAVE PETITION No.....CC No. 18802 of 2011
SPECIAL LEAVE PETITION No.....CC No. 18796 of 2011
SPECIAL LEAVE PETITION No.....CC No. 18769 of 2011
SPECIAL LEAVE PETITION No.....CC No. 18857 of 2011
SPECIAL LEAVE PETITION No.....CC No. 18834 of 2011
SPECIAL LEAVE PETITION No.....CC No. 18960 of 2011
SPECIAL LEAVE PETITION No.....CC No. 19116 of 2011
SPECIAL LEAVE PETITION No.....CC No. 19236 of 2011
SPECIAL LEAVE PETITION No.....CC No. 19527 of 2011
SPECIAL LEAVE PETITION No.....CC No. 19590 of 2011
SPECIAL LEAVE PETITION No.....CC No. 19552 of 2011
SPECIAL LEAVE PETITION No.....CC No. 19556 of 2011
SPECIAL LEAVE PETITION No.....CC No. 19580 of 2011
SPECIAL LEAVE PETITION No.....CC No. 19594 of 2011
SPECIAL LEAVE PETITION No.....CC No. 19597 of 2011
SPECIAL LEAVE PETITION No.....CC No. 19599 of 2011
SPECIAL LEAVE PETITION No.....CC No. 19601 of 2011
SPECIAL LEAVE PETITION No.....CC No. 19663 of 2011
SPECIAL LEAVE PETITION No. 33651 of 2011
SPECIAL LEAVE PETITION No.....CC No. 19727 of 2011
SPECIAL LEAVE PETITION No.....CC No. 19864 of 2011
SPECIAL LEAVE PETITION No.....CC No. 19837 of 2011
SPECIAL LEAVE PETITION No.....CC No. 20024 of 2011
SPECIAL LEAVE PETITION No.....CC No. 20022 of 2011
SPECIAL LEAVE PETITION No.....CC No. 20048 of 2011
SPECIAL LEAVE PETITION No.....CC No. 20291 of 2011
SPECIAL LEAVE PETITION No.....CC No. 20454 of 2011
SPECIAL LEAVE PETITION (C) No. 35876 of 2011
SPECIAL LEAVE PETITION No.....CC No. 20794 of 2011
SPECIAL LEAVE PETITION No.....CC No. 20891 of 2011
SPECIAL LEAVE PETITION No.....CC No. 21915 of 2011
SPECIAL LEAVE PETITION No.....CC No. 22256 of 2011
SPECIAL LEAVE PETITION No.....CC No. 22255 of 2011
SPECIAL LEAVE PETITION No.....CC No. 22257 of 2011
SPECIAL LEAVE PETITION (C) No. 519 of 2013
SPECIAL LEAVE PETITION No.....CC No. 133 of 2012
SPECIAL LEAVE PETITION No.....CC No. 178 of 2012
SPECIAL LEAVE PETITION (C) No. 523 of 2013
SPECIAL LEAVE PETITION No.....CC No. 434 of 2012
SPECIAL LEAVE PETITION (C) No. 524 of 2013
SPECIAL LEAVE PETITION No.....CC No. 887 of 2012
SPECIAL LEAVE PETITION No.....CC No. 1147 of 2012
SPECIAL LEAVE PETITION No.....CC No. 1166 of 2012
SPECIAL LEAVE PETITION No.....CC No. 1168 of 2012
SPECIAL LEAVE PETITION No.....CC No. 1188 of 2012
SPECIAL LEAVE PETITION No.....CC No. 1200 of 2012
SPECIAL LEAVE PETITION No.....CC No. 1291 of 2012
SPECIAL LEAVE PETITION No.....CC No. 1303 of 2012
SPECIAL LEAVE PETITION No.....CC No. 1306 of 2012
SPECIAL LEAVE PETITION No.....CC No. 1391 of 2012
SPECIAL LEAVE PETITION No.....CC No. 1596 of 2012
SPECIAL LEAVE PETITION No.....CC No. 1637 of 2012
SPECIAL LEAVE PETITION No.....CC No. 1644 of 2012
SPECIAL LEAVE PETITION No.....CC No. 1657 of 2012
SPECIAL LEAVE PETITION No.....CC No. 1653 of 2012
SPECIAL LEAVE PETITION No.....CC No. 1739 of 2012
SPECIAL LEAVE PETITION No.....CC No. 1869 of 2012
SPECIAL LEAVE PETITION No.....CC No. 1864 of 2012
SPECIAL LEAVE PETITION No.....CC No. 1928 of 2012
SPECIAL LEAVE PETITION No.....CC No. 1935 of 2012
SPECIAL LEAVE PETITION No.....CC No. 2209 of 2012
SPECIAL LEAVE PETITION (C) No. 6692 of 2012
SPECIAL LEAVE PETITION No.....CC No. 2818 of 2012
SPECIAL LEAVE PETITION No.....CC No. 2798 of 2012
SPECIAL LEAVE PETITION No.....CC No. 2821 of 2012
SPECIAL LEAVE PETITION No.....CC No. 2832 of 2012
SPECIAL LEAVE PETITION No.4822 of 2012
SPECIAL LEAVE PETITION No.11690 of 2012
SPECIAL LEAVE PETITION No.11702 of 2012
SPECIAL LEAVE PETITION No.11693 of 2012
SPECIAL LEAVE PETITION No.11694 of 2012
SPECIAL LEAVE PETITION No.11697 of 2012
SPECIAL LEAVE PETITION No.11699 of 2012
SPECIAL LEAVE PETITION No.11703 of 2012
SPECIAL LEAVE PETITION No.11704 of 2012
SPECIAL LEAVE PETITION No.11705 of 2012
SPECIAL LEAVE PETITION No.11706 of 2012
SPECIAL LEAVE PETITION No.11709 of 2012
SPECIAL LEAVE PETITION No.11707 of 2012
SPECIAL LEAVE PETITION No.11710 of 2012
SPECIAL LEAVE PETITION No.11712 of 2012
SPECIAL LEAVE PETITION No.....CC No. 6093 of 2012
SPECIAL LEAVE PETITION No.....CC No. 6483 of 2012
SPECIAL LEAVE PETITION No.....CC No. 6604 of 2012
SPECIAL LEAVE PETITION Nos. 6632-6633 of 2012
SPECIAL LEAVE PETITION No.....CC No.6659 of 2012
SPECIAL LEAVE PETITION (C) No. 13023 of 2013
SPECIAL LEAVE PETITION No.....CC No. 6800 of 2012
SPECIAL LEAVE PETITION No.....CC No. 6829 of 2012
SPECIAL LEAVE PETITION No.....CC No. 10109 of 2012
SPECIAL LEAVE PETITION (C) No. 11068 of 2013
SPECIAL LEAVE PETITION (C) No. 11069 of 2013
SPECIAL LEAVE PETITION No.....CC No. 12769 of 2012
SPECIAL LEAVE PETITION No.....CC No.13044 of 2012
SPECIAL LEAVE PETITION No.....CC No. 13114 of 2012
SPECIAL LEAVE PETITION No.....CC No. 13300 of 2012
SPECIAL LEAVE PETITION (C) No. 26386 of 2012
SPECIAL LEAVE PETITION (C) No. 26388 of 2012
SPECIAL LEAVE PETITION (C) No. 26389 of 2012
SPECIAL LEAVE PETITION No.26391 of 2012
SPECIAL LEAVE PETITION (C) No. 26306 of 2012
SPECIAL LEAVE PETITION No.26307 of 2012
SPECIAL LEAVE PETITION (C) No. 26308 of 2012
SPECIAL LEAVE PETITION (C) NO. 28655 of 2012
SPECIAL LEAVE PETITION (C) NO. 28812 of 2012
SPECIAL LEAVE PETITION (C) NO. 28813 of 2012
SPECIAL LEAVE PETITION (C) NO. 28814 of 2012
SPECIAL LEAVE PETITION (C) NO. 28816 of 2012
SPECIAL LEAVE PETITION (C) NO. 28815 of 2012
SPECIAL LEAVE PETITION (C) NO. 28818 of 2012
SPECIAL LEAVE PETITION (C) NO. 28817 of 2012
SPECIAL LEAVE PETITION (C) NO. 28823 of 2012
SPECIAL LEAVE PETITION (C) NO. 28819 of 2012
SPECIAL LEAVE PETITION (C) NO. 28824 of 2012
SPECIAL LEAVE PETITION (C) NO. 28825 of 2012
SPECIAL LEAVE PETITION (C) NO. 28827 of 2012
SPECIAL LEAVE PETITION (C) NO. 28828 of 2012
SPECIAL LEAVE PETITION (C) NO. 28829 of 2012
SPECIAL LEAVE PETITION (C) NO. 33343 of 2012
SPECIAL LEAVE PETITION (C) NO. 33345 of 2012
SPECIAL LEAVE PETITION (C) NO. 30246 of 2012
SPECIAL LEAVE PETITION (C) NO. 33347 of 2012
SPECIAL LEAVE PETITION (C) NO. 33350 of 2012
SPECIAL LEAVE PETITION (C) NO. 33348 of 2012
SPECIAL LEAVE PETITION (C) NO. 33352 of 2012
SPECIAL LEAVE PETITION (C) NO. 33353 of 2012
SPECIAL LEAVE PETITION (C) NO. 33354 of 2012
SPECIAL LEAVE PETITION (C) NO. 33356 of 2012
SPECIAL LEAVE PETITION (C) NO. 35328 of 2012
SPECIAL LEAVE PETITION (C) NO. 37149 of 2012
SPECIAL LEAVE PETITION (C) NO. 37151 of 2012
SPECIAL LEAVE PETITION (C) NO. 37152 of 2012
SPECIAL LEAVE PETITION (C) NO. 37153 of 2012
SPECIAL LEAVE PETITION (C) NO. 37154 of 2012
SPECIAL LEAVE PETITION (C) NO. 39202 of 2012
SPECIAL LEAVE PETITION (C) NO. 15852 of 2013
SPECIAL LEAVE PETITION (C)... of 2013 CC NO. 2335
SPECIAL LEAVE PETITION (C) NO. 5765 of 2013
SPECIAL LEAVE PETITION (C) NO. 5821 of 2013
SPECIAL LEAVE PETITION (C) NO. 5753 of 2013
SPECIAL LEAVE PETITION (C) NO. 5810 of 2013
SPECIAL LEAVE PETITION (C) NO. 5838 of 2013
SPECIAL LEAVE PETITION (C) NO. 5751 of 2013
SPECIAL LEAVE PETITION (C) NO. 9907 of 2013
SPECIAL LEAVE PETITION (C) NO. 9909 of 2013
SPECIAL LEAVE PETITION (C) NO. 9912 of 2013
SPECIAL LEAVE PETITION (C) NO. 9911 of 2013
SPECIAL LEAVE PETITION (C) NO. 9914 of 2013
SPECIAL LEAVE PETITION (C) NO. 9915 of 2013
SPECIAL LEAVE PETITION (C) NO. 9913 of 2013
SPECIAL LEAVE PETITION (C) NO. 9916 of 2013
SPECIAL LEAVE PETITION (C) NO. 9918 of 2013
SPECIAL LEAVE PETITION (C) NO. 10927 of 2013
SPECIAL LEAVE PETITION (C) NO. 10928 of 2013
SPECIAL LEAVE PETITION (C) NO. 10929 of 2013
SPECIAL LEAVE PETITION (C) NO. 10930 of 2013
SPECIAL LEAVE PETITION (C) NO. 10931 of 2013
SPECIAL LEAVE PETITION (C) NO. 10936 of 2013
SPECIAL LEAVE PETITION (C) NO. 10933 of 2013
SPECIAL LEAVE PETITION (C) NO. 10934 of 2013
SPECIAL LEAVE PETITION (C) NO. 10935 of 2013
SPECIAL LEAVE PETITION (C) NO. 10938 of 2013
SPECIAL LEAVE PETITION (C) NO. 10939 of 2013
SPECIAL LEAVE PETITION (C) NO. 10941 of 2013
SPECIAL LEAVE PETITION (C) NO. 10940 of 2013
SPECIAL LEAVE PETITION (C) NO. 10942 of 2013
SPECIAL LEAVE PETITION (C) NO. 10943 of 2013
SPECIAL LEAVE PETITION (C) NO. 11072 of 2013
SPECIAL LEAVE PETITION (C) NO. 13021 of 2013
SPECIAL LEAVE PETITION (C).... of 2013 CC NO. 6861
SPECIAL LEAVE PETITION (C) NO. 14780 of 2013
SPECIAL LEAVE PETITION (C) NO. 14782 of 2013
SPECIAL LEAVE PETITION (C) NO. 15299 of 2013
SPECIAL LEAVE PETITION (C) NO. 15300 of 2013
SPECIAL LEAVE PETITION (C) NO. 20830 of 2013
SPECIAL LEAVE PETITION (C) NO. 15301 of 2013
SPECIAL LEAVE PETITION (C) NO. 15302 of 2013
SPECIAL LEAVE PETITION (C) NO. 15303 of 2013
SPECIAL LEAVE PETITION (C) NO. 15305 of 2013
SPECIAL LEAVE PETITION (C) NO. 19469 of 2013
SPECIAL LEAVE PETITION (C) NO. 17618 of 2013
SPECIAL LEAVE PETITION (C) NO. 20529 of 2013
SPECIAL LEAVE PETITION (C) NO. 16788 of 2013
SPECIAL LEAVE PETITION (C) NO. 18880 of 2013
SPECIAL LEAVE PETITION (C) NO. 8086 of 2014
SPECIAL LEAVE PETITION (C)... of 2014 CC NO. 3626
SPECIAL LEAVE PETITION (C) NO. 8103 of 2014
AND
WITH
SPECIAL LEAVE PETITION (C) NO. 21492 of 2013
O R D E R

1. These batch of matters are placed before us for authoritative
pronouncement on the apparent difference of opinion expressed on one hand
in the cases of Shyam Babu Verma and Ors. v. Union of India & Ors. (1994) 2
SCC 521 and Sahib Ram Verma v. State of Haryana (1995) Supp. 1 SCC 18 and
on the other hand, in Chandi Prasad Uniyal and Ors. v. State of
Uttarakhand & Ors. (2012) 8 SCC 417. The order of reference made by this
Court reads as under :
"In View of an apparent difference of views expressed on the
one hand in Shyam Babu Verma and Ors. vs. Union of India & Ors. (1994) 2
SCC 521 and Sahib Ram Verma vs. State of Haryana (1995) Supp. 1 SCC 18;
and on the other hand in Chandi Prasad Uniyal and Ors. vs. State of
Uttarakhand & Ors. (2012) 8 SCC 417, we are of the view that the remaining
special leave petitions should be placed before a Bench of Three Judges.
The Registry is accordingly directed to place the file of the remaining
special leave petitions before the Hon'ble the Chief Justice of India for
taking instructions for the constitution of a Bench of Three Judges, to
adjudicate upon the present controversy."

2. The issue in this matter pertains to the recovery of excess
money from the pensionary benefit of the respondent-white washer, on
account of a wrong fixation of pay by the Petitioner No. 4- The Executive
Engineer. The respondent approached the High Court by filing a writ
petition. The question of law for consideration before the High Court was:
whether the Government is entitled to recover from an employee any payment
made in excess of what the employee is otherwise entitled to, in the
absence of any fraud or misrepresentation on the part of the employee. The
High Court relies on a Full Bench decision, and directed not to recover the
excess amount from the respondent.

3. We have heard Shri L.N. Rao, learned Additional Solicitor
General and the learned counsel for the respondents.

4. To answer the reference, the decisions need to be considered.

5. In Shyam Babu Verma's case (Supra), this Court while observing
that the petitioners-therein were not entitled to the higher pay scales,
had come to the conclusion that since the amount has already been paid to
the petitioner, for no fault of theirs, the said amount shall not be
recovered by the respondent-Union of India. The observations made by this
Court in the said case are as under:

"Although we have held that the petitioners were entitled only
to the pay scale of Rs.330-480 in terms of the recommendations of the Third
Pay Commission w.e.f. January 1, 1973 and only after the period of 10
years, they became entitled to the pay scale of Rs.330-560 but as they have
received the scale of Rs.330-560 since 1973 due to no fault of theirs and
that scale is being reduced in the year 1984 with effect from January 1,
1973, it shall only be just and proper not to recover any excess amount
which has already been paid to them.
(emphasis supplied)."

6. In Sahib Ram Verma's case (Supra), this Court once again held
that although the appellant-therein did not possess the required
educational qualification, yet the Principal granting him the relaxation,
had paid his salary on the revised pay scale. This Court further observed
that this was not on account of mis-representation made by the appellant
but by a mistake committed by the Principal. In a fact situation of that
nature, the Court was pleased to observe that the amount already paid to
the appellant need not be recovered. In the words of the Court:

"Admittedly the appellant does not possess the required
educational qualifications. Under the circumstances the appellant would
not be entitled to the relaxation. The principal erred in granting him the
relaxation. Since the date of relaxation the appellant had been paid his
salary on the revised scale. However, it is not on account of any
misrepresentation made by the appellant that the benefit of the higher pay
scale was given to him but by wrong construction made by the Principal for
which appellant cannot be held to be fault. Under the circumstances the
amount paid till date may not be recovered from the appellant."

7. In our considered view, the observations made by the Court not
to recover the excess amount paid to the appellant-therein were in exercise
of its extra-ordinary powers under Article 142 of the Constitution of India
which vest the power in this Court to pass equitable orders in the ends of
justice.

8. In Chandi Prasad Uniyal's case (Supra), a specific issue was
raised and canvassed. The issue was whether the appellant-therein can
retain the amount received on the basis of irregular/wrong pay fixation in
the absence of any misrepresentation or fraud on his part. The Court after
taking into consideration the various decisions of this Court had come to
the conclusion that even if by mistake of the employer the amount is paid
to the employee and on a later date if the employer after proper
determination of the same discovers that the excess payment is made by
mistake or negligence, the excess payment so made could be recovered.
While holding so this Court observed at paragraphs 14 and 16 as under:

"14. We are concerned with the excess payment of public money which
is often described as "taxpayers' money" which belongs neither to the
officers who have effected overpayment nor to the recipients. We fail to
see whey the concept of fraud or misrepresentation is being brought in such
situations. The question to be asked is whether excess money has been paid
or not, may be due to a bona fide mistake. Possibly, effecting excess
payment of public money by the government officers may be due to various
reason like negligence, carelessness, collusion, favouritism, etc. because
money in such situation does not belong to the payer or the payee.
Situations may also arise where both the payer and the payee are at fault,
then the mistake is mutual. Payments are being effected in many situations
without any authority of law and payments have been received by the
recipients also without any authority of law. Any amount paid/received
without the authority of law can always be recovered barring few exceptions
of extreme hardships but not as a matter of right, in such situations law
implies an obligation on the payee to repay the money, otherwise it would
amount to unjust enrichment.

16. The appellant in the appeal will not fall in any of these exceptional
categories, over and above, there was a stipulation in the fixation order
that in the condition of irregular/wrong pay fixation, the institution in
which the appellants were working would be responsible for recovery of the
amount received in excess from the salary/pension. In such circumstances,
we find no reason to interfere with the judgment of the High Court.
However we order that excess payment made be recovered from the appellants
salary in 12 equal monthly instalments.”

9. In our view, the law laid down in Chandi Prasad Uniyal's case,
no way conflicts with the observations made by this Court in the other two
cases. In those decisions, directions were issued in exercise of the
powers of this Court under Article 142 of the Constitution, but in the
subsequent decision this Court under Article 136 of the Constitution, in
laying down the law had dismissed the petition of the employee. This Court
in a number of cases had battled with tracing the contours of the provision
in Article 136 and 142 of the Constitution of India. Distinctively,
although the words employed under the two aforesaid provision speak of the
powers of this Court, the former vest a plenary jurisdiction in supreme
court in the matter of entertaining and hearing of appeals by granting
special leave against any judgment or order made by a Court or Tribunal in
any cause or matter. The powers are plenary to the extent that they are
paramount to the limitations under the specific provisions for appeal
contained in the Constitution or other laws. Article 142 of the
Constitution of India, on the other hand is a step ahead of the powers
envisaged under Article 136 of the Constitution of India. It is the
exercise of jurisdiction to pass such enforceable decree or order as is
necessary for doing ‘complete justice’ in any cause or matter. The word
‘complete justice’ was fraught with uncertainty until Article 142 of the
Constitution received its first interpretation in Prem Chand Garg v. Excise
Commissioner, U.P., AIR (1963) SC 996 which added a rider to the exercise
of wide extraordinary powers by laying down that though the powers are
wide, the same is an ancillary power and can be used when not expressly in
conflict with the substantive provisions of law. This view was endorsed by
a Nine-Judges Bench in Naresh Shridhar Mirajkar v. State of Maharashtra,
(1966) 3 SCR 744 reiterated by a Seven Judge Bench in A.R. Antulay v. R.S.
Nayak, (1988) 2 SCC 602 and finally settled in the Supreme Court Bar
Association v. Union of India, (1998) 4 SCC 409.

10. Article 136 of the Constitution of India, confers a wide
discretionary power on the Supreme Court to interfere in suitable cases.
Article 136 is a special jurisdiction and can be best described in the
words of this Court in Ramakant Rai v. Madab Rai, (2003) 12 SCC 395, “It is
a residuary power, it is extraordinary in its amplitude, its limits when it
chases injustice, is the sky itself”. Article 136 of the Constitution of
India was legislatively intended to be exercised by the Highest Court of
the Land, with scrupulous adherence to the settled judicial principle well
established by precedents in our jurisprudence. Article 136 of the
Constitution is a corrective jurisdiction that vest a discretion in the
Supreme Court to settle the law clear and as forthrightly forwarded in the
case of Union of India v. Karnail Singh, (1995) 2 SCC 728, it makes the law
operational to make it a binding precedent for the future instead of
keeping it vague. In short, it declares the law, as under Article 141 of
the Constitution.

11. Article 142 of the Constitution of India is supplementary in
nature and cannot supplant the substantive provisions, though they are not
limited by the substantive provisions in the statute. It is a power that
gives preference to equity over law. It is a justice oriented approach as
against the strict rigors of the law. The directions issued by the court
can normally be categorized into one, in the nature of moulding of relief
and the other, as the declaration of law. ‘Declaration of Law’ as
contemplated in Article 141 of the Constitution: is the speech express or
necessarily implied by the Highest Court of the land. This Court in the
case of Indian Bank v. ABS Marine Products (P) Ltd., 2006 5 SCC 72, Ram
Pravesh Singh v. State of Bihar, (2006) 8 SCC 381 and in State of U.P. v.
Neeraj Awasthi (2006) 1 SCC 667, has expounded the principle and extolled
the power of Article 142 of the Constitution of India to new heights by
laying down that the directions issued under Article 142 do not constitute
a binding precedent unlike Article 141 of the Constitution of India. They
are direction issued to do proper justice and exercise of such power,
cannot be considered as law laid down by the Supreme Court under Article
141 of the Constitution of India. The Court have compartmentalized and
differentiated the relief in the operative portion of the judgment by
exercise of powers under Article 142 of the Constitution as against the law
declared. The directions of the Court under Article 142 of the
Constitution, while moulding the relief, that relax the application of law
or exempt the case in hand from the rigour of the law in view of the
peculiar facts and circumstances do not comprise the ratio decidendi and
therefore lose its basic premise of making it a binding precedent. This
Court on the qui vive has expanded the horizons of Article 142 of the
Constitution by keeping it outside the purview of Article 141 of the
Constitution and by declaring it a direction of the Court that changes its
complexion with the peculiarity in the facts and circumstances of the case.

12. Therefore, in our opinion, the decisions of the Court based on
different scales of Article 136 and Article 142 of the Constitution of
India cannot be best weighed on the same grounds of reasoning and thus in
view of the aforesaid discussion, there is no conflict in the views
expressed in the first two judgments and the latter judgment.

13. In that view of the above, we are of the considered opinion
that reference was unnecessary. Therefore, without answering the
reference, we send back the matters to the Division Bench for its
appropriate disposal.

Ordered accordingly.

..................J.
(H.L. DATTU)

..................J.
(R.K. AGRAWAL)

..................J.
(ARUN MISHRA)
NEW DELHI;
JULY 08, 2014.

ITEM NO.101 & 126 COURT NO.2 SECTION IVB

S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS

SLP(C) No.11684 of 2012
(Arising out of judgment and order dated 17.01.2011 in civil Writ Petition
No. 16277 of 2010 passed by the High Court of Punjab and Haryana at
Chandigarh )

STATE OF PUNJAB & ORS. Petitioner(s)

VERSUS

RAFIQ MASIH (WHITE WASHER) Respondent(s)

(With office report)
WITH
S.L.P. No.....CC No. 14663 of 2010
(With c/delay in filing SLP and office report)

S.L.P. (C) No. 21554 of 2013
(With office report)]

S.L.P. No.....CC No. 20144 of 2010
(With c/delay in filing SLP and office report)

S.L.P. No.....CC No. 9303 of 2011
(With c/delay in filing/refiling SLP and office report)

S.L.P.(C) No. 30751 of 2012
(With c/delay in filing/refiling SLP and office report)

S.L.P.(C) No. 15307 of 2013
(With office report)

S.L.P. No.....CC No. 15876 of 2011
(With c/delay in filing/refiling SLP and office report)

S.L.P. No.....CC No. 16190 of 2011
(With c/delay in filing/refiling SLP and office report)

S.L.P. No.....CC No. 16326 of 2011
(With c/delay in filing/refiling SLP and office report)

S.L.P. No.....CC No. 16327 of 2011
(With c/delay in filing/refiling SLP and office report)

S.L.P. No.....CC No. 16350 of 2011
(With c/delay in filing/refiling SLP and office report)

S.L.P. No.....CC No. 16309 of 2011
(With c/delay in filing/refiling SLP and office report)

S.L.P. No.....CC No. 16325 of 2011
(With c/delay in filing/refiling SLP and office report)

S.L.P. No.....CC No. 16303 of 2011
(With c/delay in filing/refiling SLP and office report)

S.L.P. No.....CC No. 16548 of 2011
(With c/delay in filing/refiling SLP and office report)

S.L.P. No.....CC No. 16723 of 2011
(With c/delay in filing/refiling SLP and office report)

S.L.P. No.....CC No. 16594 of 2011
(With c/delay in filing/refiling SLP and office report)

S.L.P. No.....CC No. 16580 of 2011
(With c/delay in filing/refiling SLP and office report)

S.L.P. No.....CC No. 16582 of 2011
(With c/delay in filing/refiling SLP and office report)

S.L.P. No.....CC No. 16850 of 2011
(With c/delay in filing/refiling SLP and office report)

S.L.P. No.....CC No. 16904 of 2011
(With c/delay in filing/refiling SLP and office report)

S.L.P. No.....CC No. 17204 of 2011
(With c/delay in filing/refiling SLP and office report)

S.L.P. No.....CC No. 17193 of 2011
(With c/delay in filing/refiling SLP and office report)

S.L.P. No.....CC No. 17201 of 2011
(With c/delay in filing/refiling SLP and office report)

S.L.P. No.....CC No. 17192 of 2011
(With c/delay in filing/refiling SLP and office report)

S.L.P.(C) No. 30473 of 2011
(With prayer for interim relief and office report)

S.L.P. No.....CC No. 17388 of 2011
(With c/delay in filing/refiling SLP and office report)

S.L.P. No.....CC No. 17534 of 2011
(With c/delay in filing/refiling SLP and office report)

S.L.P. No.....CC No. 17507 of 2011
(With c/delay in filing/refiling SLP and office report)

S.L.P. No.....CC No. 17508 of 2011
(With c/delay in filing/refiling SLP and office report)

S.L.P. No.....CC No. 17709 of 2011
(With c/delay in filing/refiling SLP and office report)

S.L.P. No.....CC No. 17711 of 2011
(With c/delay in filing/refiling SLP and office report)

S.L.P. No.....CC No. 17735 of 2011
(With c/delay in filing/refiling SLP and office report)

S.L.P. No.....CC No. 17798 of 2011
(With c/delay in filing/refiling SLP and office report)

S.L.P. No.....CC No. 17888 of 2011
(With c/delay in filing/refiling SLP and office report)

S.L.P. No.....CC No. 17846 of 2011
(With c/delay in filing/refiling SLP and office report)

S.L.P. No.....CC No. 17835 of 2011
(With c/delay in filing/refiling SLP and office report)

S.L.P. No.....CC No. 18261 of 2011
(With c/delay in filing/refiling SLP and office report)

S.L.P. No.....CC No. 18286 of 2011
(With c/delay in filing/refiling SLP and office report)

S.L.P. No.....CC No. 18227 of 2011
(With c/delay in filing/refiling SLP and office report)

S.L.P. No.....CC No. 18312 of 2011
(With c/delay in filing/refiling SLP and office report)

S.L.P. No.....CC No. 18337 of 2011
(With c/delay in filing/refiling SLP and office report)

S.L.P. No.....CC No. 18310 of 2011
(With c/delay in filing/refiling SLP and office report)

S.L.P. No.....CC No. 18423 of 2011
(With c/delay in filing/refiling SLP and office report)

S.L.P. No.....CC No. 18536 of 2011
(With c/delay in filing/refiling SLP and office report)

S.L.P. No.....CC No. 18527 of 2011
(With c/delay in filing/refiling SLP and office report)

S.L.P. No.....CC No. 18526 of 2011
(With c/delay in filing/refiling SLP and office report)

S.L.P. No.....CC No. 18525 of 2011
(With c/delay in filing/refiling SLP and office report)

S.L.P. No.....CC No. 18524 of 2011
(With c/delay in filing/refiling SLP and office report)

S.L.P. No.....CC No. 18535 of 2011
(With c/delay in filing/refiling SLP and office report)

S.L.P. No.....CC No. 18628 of 2011
(With c/delay in filing/refiling SLP and office report)

S.L.P. No.....CC No. 18630 of 2011
(With c/delay in filing/refiling SLP and office report)

S.L.P. No.....CC No. 18767 of 2011
(With c/delay in filing/refiling SLP and office report)

S.L.P. No.....CC No. 18784 of 2011
(With c/delay in filing/refiling SLP and office report)

S.L.P. No.....CC No. 18805 of 2011
(With c/delay in filing/refiling SLP and office report)

S.L.P. No.....CC No. 18802 of 2011
(With c/delay in filing/refiling SLP and office report)

S.L.P. No.....CC No. 18796 of 2011
(With c/delay in filing/refiling SLP and office report)

S.L.P. No.....CC No. 18769 of 2011
(With c/delay in filing/refiling SLP and office report)

S.L.P. No.....CC No. 18857 of 2011
(With c/delay in filing/refiling SLP and office report)

S.L.P. No.....CC No. 18834 of 2011
(With c/delay in filing/refiling SLP and office report)

S.L.P. No.....CC No. 18960 of 2011
(With c/delay in filing/refiling SLP and office report)

S.L.P. No.....CC No. 19116 of 2011
(With c/delay in filing/refiling SLP and office report)

S.L.P. No.....CC No. 19236 of 2011
(With c/delay in filing/refiling SLP and office report)

S.L.P. No.....CC No. 19527 of 2011
(With c/delay in filing/refiling SLP and office report)

S.L.P. No.....CC No. 19590 of 2011
(With c/delay in filing/refiling SLP and office report)

S.L.P. No.....CC No. 19552 of 2011
(With c/delay in filing/refiling SLP and office report)

S.L.P. No.....CC No. 19556 of 2011
(With c/delay in filing/refiling SLP and office report)

S.L.P. No.....CC No. 19580 of 2011
(With c/delay in filing/refiling SLP and office report)

S.L.P. No.....CC No. 19594 of 2011
(With c/delay in filing/refiling SLP and office report)

S.L.P. No.....CC No. 19597 of 2011
(With c/delay in filing/refiling SLP and office report)

S.L.P. No.....CC No. 19599 of 2011
(With c/delay in filing/refiling SLP and office report)

S.L.P. No.....CC No. 19601 of 2011
(With c/delay in filing/refiling SLP and office report)

S.L.P. No.....CC No. 19663 of 2011
(With c/delay in filing/refiling SLP and office report)

S.L.P.(C) No. 33651 of 2011
(With office report)

S.L.P. No.....CC No. 19727 of 2011
(With c/delay in filing/refiling SLP and office report)

S.L.P. No.....CC No. 19864 of 2011
(With c/delay in filing/refiling SLP and office report)

S.L.P. No.....CC No. 19837 of 2011
(With c/delay in filing/refiling SLP and office report)

S.L.P. No.....CC No. 20024 of 2011
(With c/delay in filing/refiling SLP and office report)

S.L.P. No.....CC No. 20022 of 2011
(With c/delay in filing/refiling SLP and office report)

S.L.P. No.....CC No. 20048 of 2011
(With c/delay in filing/refiling SLP and office report)

S.L.P. No.....CC No. 20291 of 2011
(With c/delay in filing/refiling SLP and office report)
S.L.P. No.....CC No. 20454 of 2011
(With c/delay in filing/refiling SLP and office report)

S.L.P.(C) No. 35876 of 2011
(With office report)

S.L.P. No.....CC No. 20794 of 2011
(With c/delay in filing/refiling SLP and office report)

S.L.P. No.....CC No. 20891 of 2011
(With c/delay in filing/refiling SLP and office report)

S.L.P. No.....CC No. 21915 of 2011
(With c/delay in filing/refiling SLP and office report)

S.L.P. No.....CC No. 22256 of 2011
(With c/delay in filing/refiling SLP and office report)

S.L.P. No.....CC No. 22255 of 2011
(With c/delay in filing/refiling SLP and office report)

S.L.P. No.....CC No. 22257 of 2011
(With c/delay in filing/refiling SLP and office report)

S.L.P.(C) No. 519 of 2013
(With appln. for c/delay in filing SLP and office report)

S.L.P. No.....CC No. 133 of 2012
(With c/delay in filing/refiling SLP and office report)

S.L.P. No.....CC No. 178 of 2012
(With c/delay in filing/refiling SLP and office report)

S.L.P.(C) No. 523 of 2013
(With c/delay in filing/refiling SLP and office report)

S.L.P. No.....CC No. 434 of 2012
(With c/delay in filing/refiling SLP and office report)

S.L.P.(C) No. 524 of 2013
(With c/delay in filing/refiling SLP and office report)

S.L.P. No.....CC No. 887 of 2012
(With c/delay in filing SLP and office report)

S.L.P. No.....CC No. 1147 of 2012
(With c/delay in filing SLP and office report)

S.L.P. No.....CC No. 1166 of 2012
(With c/delay in filing SLP and office report)

S.L.P. No.....CC No. 1168 of 2012
(With c/delay in filing SLP and office report)
S.L.P. No.....CC No. 1188 of 2012
(With c/delay in filing SLP and office report)

S.L.P. No.....CC No. 1200 of 2012
(With c/delay in filing SLP and office report)

S.L.P. No.....CC No. 1291 of 2012
(With c/delay in filing SLP and office report)

S.L.P. No.....CC No. 1303 of 2012
(With c/delay in filing SLP and office report)

S.L.P. No.....CC No. 1306 of 2012
(With c/delay in filing SLP and office report)

S.L.P. No.....CC No. 1391 of 2012
(With c/delay in filing SLP and office report)

S.L.P. No.....CC No. 1596 of 2012
(With c/delay in filing SLP and office report)

S.L.P. No.....CC No. 1637 of 2012
(With c/delay in filing SLP and office report)

S.L.P. No.....CC No. 1644 of 2012
(With c/delay in filing SLP and office report)

S.L.P. No.....CC No. 1657 of 2012
(With c/delay in filing SLP and office report)

S.L.P. No.....CC No. 1653 of 2012
(With c/delay in filing SLP and office report)

S.L.P. No.....CC No. 1739 of 2012
(With c/delay in filing SLP/refiling and office report)

S.L.P. No.....CC No. 1869 of 2012
(With c/delay in filing SLP/refiling and office report)

S.L.P. No.....CC No. 1864 of 2012
(With c/delay in filing SLP/refiling and office report)

S.L.P. No.....CC No. 1928 of 2012
(With c/delay in filing SLP/refiling and office report)

S.L.P. No.....CC No. 1935 of 2012
(With c/delay in filing SLP/refiling and office report)

S.L.P. No.....CC No. 2209 of 2012
(With c/delay in filing SLP/refiling and office report)

S.L.P.(C) No. 6692 of 2012
(With prayer for interim relief and office report)
S.L.P. No.....CC No. 2818 of 2012
(With c/delay in filing SLP/refiling and office report)

S.L.P. No.....CC No. 2798 of 2012
(With c/delay in filing SLP/refiling and office report)

S.L.P. No.....CC No. 2821 of 2012
(With c/delay in filing SLP/refiling and office report)

S.L.P. No.....CC No. 2832 of 2012
(With c/delay in filing SLP/refiling)

S.L.P.(C) No. 4822 of 2012
(Permission to urge new facts and file additional documents and prayer for
interim relief and office report)

S.L.P.(C) No. 11690 of 2012
(With office report)

S.L.P. (C) No 11702 of 2012
(With office report)

S.L.P. No. 11693 of 2012
(With office report)

S.L.P. No. 11694 of 2012
(With office report)

S.L.P. No. 11697 of 2012
(With office report)

S.L.P. No.11699 of 2012
(With appln. for permission to bring additional facts and documents on
record and office report)

S.L.P. No. 11703 of 2012
(With office report)

S.L.P. No.11704 of 2012
(With office report)

S.L.P. No. 11705 of 2012
(With office report)

S.L.P. No. 11706 of 2012
(With office report)

S.L.P. No. 11709 of 2012
(With office report)

S.L.P. No.11707 of 2012
(With office report)

S.L.P. No.11710 of 2012
(With office report)

S.L.P. No.11712 of 2012
(With office report)

S.L.P. No.....CC No. 6093 of 2012
(With c/delay in filing SLP and office report)

S.L.P. No.....CC No. 6483 of 2012
(With c/delay in filing SLP and office report)

S.L.P. No.....CC No. 6604 of 2012
(With c/delay in filing SLP and office report)

S.L.P. Nos. 6632-6633 of 2012
(With c/delay in filing SLP/refiling and office report)

S.L.P. No.....CC No.6659 of 2012
(With c/delay in filing SLP and office report)

S.L.P.(C) No. 13023 of 2013
(With office report)

S.L.P. No.....CC No. 6800 of 2012
(With c/delay in filing SLP and office report)

S.L.P. No.....CC No. 6829 of 2012
(With c/delay in filing SLP and office report)

S.L.P. No.....CC No. 10109 of 2012
(With c/delay in filing SLP and office report)

S.L.P.(C) NO. 11072 of 2013
(With appln. for c/delay in filing SLP and office report)

S.L.P.(C) No. 11068 of 2013
(With appln. for c/delay in filing SLP and placing addl. facts and
documents on record and office report)

S.L.P.(C) No. 11069 of 2013
(With appln. for c/delay in filing SLP and office report)

S.L.P. No.....CC No. 12769 of 2012
(With c/delay in filing SLP and office report)

S.L.P. No.....CC No.13044 of 2012
(With c/delay in filing SLP and office report)

S.L.P. No.....CC No. 13114 of 2012
(With c/delay in filing SLP and office report)

S.L.P. No.....CC No. 13300 of 2012
(With c/delay in filing SLP and office report)

S.L.P.(C) No. 26386 of 2012
(With office report)

S.L.P.(C) No. 26388 of 2012
(With office report)

S.L.P.(C) No. 26389 of 2012
(With office report)

S.L.P. No.26391 of 2012
(With office report)

S.L.P.(C) No. 26306 of 2012
(With office report)

S.L.P. No.26307 of 2012
(With office report)

S.L.P.(C) No. 26308 of 2012
(With office report)

SLP(C) NO. 28655/2012
(With office report)

SLP(C) NO. 28812/2012
(With office report)

SLP(C) NO. 28813/2012
(With office report)

SLP(C) NO. 28814/2012
(With office report)

SLP(C) NO. 28816/2012
(With office report)

SLP(C) NO. 28815/2012
(With office report)

SLP(C) NO. 28818/2012
(With office report)

SLP(C) NO. 28817/2012
(With office report)

SLP(C) NO. 28823/2012
(With office report)

SLP(C) NO. 28819/2012
(With office report)

SLP(C) NO. 28824/2012
(With office report)

SLP(C) NO. 28825/2012
(With office report)

SLP(C) NO. 28827/2012
(With office report)

SLP(C) NO. 28828/2012
(With office report)

SLP(C) NO. 28829/2012 ]
(With office report)

SLP(C) NO. 33343/2012
(With office report)

SLP(C) NO. 33345/2012
(With office report)

SLP(C) NO. 30246/2012
(PRAYER FOR INTERIM RELIEF AND OFFICE REPORT)

SLP(C) NO. 33347/2012
(With office report)

SLP(C) NO. 33350/2012
(With office report)

SLP(C) NO. 33348/2012
(With office report)

SLP(C) NO. 33352/2012
(With office report)

SLP(C) NO. 33353/2012
(With office report)

SLP(C) NO. 33354/2012
(With office report)

SLP(C) NO. 33356/2012
(With office report)

SLP(C) NO. 35328/2012
(C/DELAY IN FILING SLP AND OFFICE REPORT)

SLP(C) NO. 37149/2012
(With office report)

SLP(C) NO. 37151/2012
(With office report)

SLP(C) NO. 37152/2012
(With office report)

SLP(C) NO. 37153/2012
(With office report)

SLP(C) NO. 37154/2012
(With office report)

SLP(C) NO. 39202/2012
(With office report)

SLP(C) NO. 15852/2013
(C/DELAY IN FILING SLP AND OFFICE REPORT FOR DIRECTION)

S.L.P.(C)... /2013 CC NO. 2335
(C/DELAY IN FILING SLP AND OFFICE REPORT)

SLP(C) NO. 5765/2013
(With office report)

SLP(C) NO. 5821/2013
(With office report)

SLP(C) NO. 5753/2013
(With office report)

SLP(C) NO. 5810/2013
(With office report)

SLP(C) NO. 5838/2013
(With office report)

SLP(C) NO. 5751/2013
(With office report)

SLP(C) NO. 9907/2013
(With office report)

SLP(C) NO. 9909/2013
(With office report)

SLP(C) NO. 9912/2013
(With office report)

SLP(C) NO. 9911/2013
(With office report)

SLP(C) NO. 9914/2013
(With office report)

SLP(C) NO. 9915/2013
(With office report)

SLP(C) NO. 9913/2013
(With office report)

SLP(C) NO. 9916/2013
(With office report)

SLP(C) NO. 9918/2013
(With office report)

SLP(C) NO. 10927/2013
(C/DELAY IN FILING SLP AND OFFICE REPORT)

SLP(C) NO. 10928/2013
(C/DELAY IN FILING SLP AND OFFICE REPORT)

SLP(C) NO. 10929/2013
(C/DELAY IN FILING SLP AND OFFICE REPORT)

SLP(C) NO. 10930/2013
(C/DELAY IN FILING SLP AND OFFICE REPORT)

SLP(C) NO. 10931/2013
(C/DELAY IN FILING SLP AND OFFICE REPORT)

SLP(C) NO. 10936/2013
(C/DELAY IN FILING SLP AND OFFICE REPORT)

SLP(C) NO. 10933/2013
(C/DELAY IN FILING SLP AND OFFICE REPORT)

SLP(C) NO. 10934/2013
(C/DELAY IN FILING SLP AND OFFICE REPORT)

SLP(C) NO. 10935/2013
(C/DELAY IN FILING SLP AND OFFICE REPORT)

SLP(C) NO. 10938/2013
(C/DELAY IN FILING SLP AND OFFICE REPORT)

SLP(C) NO. 10939/2013
(C/DELAY IN FILING SLP AND OFFICE REPORT)

SLP(C) NO. 10941/2013 )
(C/DELAY IN FILING SLP AND OFFICE REPORT)\

SLP(C) NO. 10940/2013 (S. IVB)
(C/DELAY IN FILING SLP AND OFFICE REPORT)

SLP(C) NO. 10942/2013 (S. IVB)
(C/DELAY IN FILING SLP AND OFFICE REPORT)

SLP(C) NO. 10943/2013 (S. IVB)
(C/DELAY IN FILING SLP AND OFFICE REPORT)

SLP(C) NO. 13021/2013 (S. IVB)
(C/DELAY IN FILING SLP AND OFFICE REPORT)

S.L.P.(C)... /2013 CC NO. 6861
(With office report)

SLP(C) NO. 14780/2013
(With office report)

SLP(C) NO. 14782/2013
(With office report)

SLP(C) NO. 15299/2013
(C/DELAY IN FILING SLP AND C/DELAY IN REFILING SLP AND OFFICE REPORT)

SLP(C) NO. 15300/2013
(C/DELAY IN FILING SLP AND C/DELAY IN REFILING SLP AND OFFICE REPORT)

SLP(C) NO. 20830/2013
(With office report)

SLP(C) NO. 15301/2013
(C/DELAY IN FILING SLP AND OFFICE REPORT)

SLP(C) NO. 15302/2013
(C/DELAY IN FILING SLP AND OFFICE REPORT)

SLP(C) NO. 15303/2013
(C/DELAY IN FILING SLP AND OFFICE REPORT)

SLP(C) NO. 15305/2013
(C/DELAY IN FILING SLP AND OFFICE REPORT)

SLP(C) NO. 19469/2013
(C/DELAY IN FILING SLP AND OFFICE REPORT)

SLP(C) NO. 17618/2013
(C/DELAY IN FILING SLP AND OFFICE REPORT)

SLP(C) NO. 20529/2013

SLP(C) NO. 16788/2013
(With office report)

SLP(C) NO. 18880/2013
(With office report)

SLP(C) NO. 8086/2014
(PRAYER FOR INTERIM RELIEF)

S.L.P.(C)... /2014 CC NO. 3626
(C/DELAY IN FILING SLP)

SLP(C) NO. 8103/2014
(PRAYER FOR INTERIM RELIEF)

S.L.P.(C) No. 21492 of 2013
(With appln. for C/delay in filing SLP and prayer for interim relief and
office report)

Date : 08/07/2014 These petitions were called
on for hearing today.

CORAM :
HON'BLE MR. JUSTICE H.L. DATTU
HON'BLE MR. JUSTICE R.K. AGRAWAL
HON'BLE MR. JUSTICE ARUN KUMAR MISHRA

For Petitioner(s) Mr. L.N. Rao, ASG
Mr. Nikhil Nayyar, Addl Adv. Gen.
Mr. Jagdish Singh Chhabra, Adv.

For Respondent(s) Mr. Joginder Sukhija, Adv.
Mr. Anis Ahmed Khan, Adv.

Mr. Ajay Pal, Adv.

Mr. Kuldip Singh, Adv.

Ms. Naresh Bakshi, Adv.

Mrs. Rachana Joshi Issar, Adv.

Mr. Vineet Bhagat, Adv.

Dr.(Mrs.) Vipin Gupta, Adv.

Mr. Ansar Ahmad Chaudhary, Adv.

Mr. Dinesh Verma, Adv.
Mr. Subhasish Bhowmick, Adv.

Mr. Satyendra Kumar, Adv.

Mr. Kanhaiya Priyadarshi, adv.

Mr. Satyendra Kumar, Adv.

Mr. Mukesh K Verma, Adv.
Dr. Ashwani Bhardwaj, Adv.

Mr. Balbir Singh gupta, Adv.

Ms. Namita choudhary, Adv.

Mr. Anil Kumar Tandale, Adv.

Mrs. Kanchan Kaur Dhodi, Adv.

Mr. S.K. Sabharwal, Adv.

Mr. Sudhir Walia, Adv.
Mr. Abhishek Atrey, Adv.

Mr. Balbir Singh gupta, Adv.

Mr. Rahul Gupta, adv.

Mr. Sarad Kumar Singhania, Adv.

Mr. S.L. Aneja, Adv.

UPON hearing the counsel the Court made the following
O R D E R

Without answering the reference, the matters are sent back to
the Division bench for its appropriate disposal.

[ Charanjeet Kaur ] [ Vinod Kulvi ]
Court Master Asstt. Registrar

[ Signed order is placed on the file ]

Sec.302 - Murder of Wife - Circumstantial evidence - last seen theory - Accused in the last night with his wife - Sec.313 - non-explanation about his where abouts at the time of death which took place in the last night, by accused - recovery of assaulted weapon - clearly discloses the Accused is an offender - Apex court dismissed the appeal = KHIM SINGH … APPELLANT VERSUS STATE OF UTTARAKHAND … RESPONDENT = 2014 – July. Part – http://judis.nic.in/supremecourt/filename=41755

Sec.302 - Murder of Wife - Circumstantial evidence - last seen theory - Accused in the last night with his wife - Sec.313 - non-explanation about his where abouts at the time of death which took place in the last night, by accused - recovery of assaulted weapon - clearly discloses the Accused is an offender - Apex court dismissed the appeal =

The accused in his statement under Section 313 Cr.P.C. in reply to
the question Nos. 3 and 4 stated that on 17th July, 1987 he was not at his
house. Such statement cannot be believed in absence of any explanation
given by the accused as where he was in the night between 17th and 18th
July, 1987. The accused could not explain as to where he was in the night
of 17th July, 1987. The conduct of the accused was unnatural in not
disclosing the place where he remained in the fateful night, making it
clear that his statement under Section 313 Cr.P.C. was not believable. From
the testimony of the real mother of the accused, Manuli Devi (PW-1) as well
as Bachi Singh (PW-4), Pradhan of the village, it is fully established that
the accused was very much present in the house on the fateful night and
there was a quarrel between the accused and his wife. In the absence of any
reason for leaving his house, it can be held that the accused remained in
his house in that night.
The statements of Manuli Devi (PW-1)-mother of accused, Bachi Singh
(Pw-4)- Pradhan and Khimuli Devi (PW-2)- sister-in-law also suggest that
the accused was last seen with the deceased.
26. The above narration of chain of circumstantial evidence relied upon
by the prosecution in the present case lead to the inference that the
accused is guilty for the offence of murder of Himuli Devi as all the
circumstances taken together lead to only hypothesis of the guilt of the
accused-appellant. The chain of circumstantial evidence relied upon by the
prosecution is complete to hold the accused guilty of the offence
punishable under Section 302 IPC. We hold that the accused-appellant Khim
Singh was rightly convicted and sentenced under Section 302 IPC for life
imprisonment by the learned Sessions Judge as affirmed by the High Court.
27. As a result, the appeal preferred by the accused-appellant has no
force and the same is liable to be dismissed. The appeal is, accordingly,
dismissed.

2014 – July. Part – http://judis.nic.in/supremecourt/filename=41755

REPORTABLE
IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1986 OF 2009

KHIM SINGH … APPELLANT

VERSUS

STATE OF UTTARAKHAND … RESPONDENT

J U D G M E N T

Sudhansu Jyoti Mukhopadhaya, J.

This appeal is directed against the judgment dated 24th August, 2005
passed by the High Court of Uttaranchal(now Uttarakhand) at Nainital in
Criminal Appeal No.1388 of 2001 (Old No.-Criminal Appeal No.1165 of 1988).
By the impugned judgment the High Court upheld the judgment and order of
conviction dated 30th March, 1988, passed by the Sessions Judge, Almora in
Sessions Trial No.54 of 1987, State vs. Khim Singh, whereby the accused-
appellant was convicted for the offence punishable under Section 302 IPC
and was sentenced to undergo imprisonment for life.
2. Brief facts, giving rise to the present appeal as emerging from the
material on record, are that the accused Khim Singh was residing with his
wife Himuli Devi in his residential house at village Simgari. He has a son,
named Mohan Singh, who was also residing with them, but sometimes, he
resided with his grandmother, who resides in the adjacent house of Laccham
Singh, brother of accused-Khim singh. Earlier accused-Khim Singh was in
service outside his village, but for the last 4-5 years he had come back
and was working as labourer. His wife, Himuli Devi, was a short- tempered
woman and she often quarrelled with Khim Singh. It was suspected in the
village that she was a woman of loose character and on account of this,
accused-Khim Singh was also not in good terms with her. Often they used to
be quarrelled with each other. On 17th July, 1987, also in the evening,
they had a quarrel. Early in the morning of 18th July, 1987, one Bahadur
Singh (since deceased), a resident of the village, while passing in front
of the house of the accused-Khim Singh found that the door was closed and
there was none outside. He opened the door and went inside the house and
found Himuli Devi lying dead. He raised an alarm, on which, the mother of
the accused also came there. He called the Sabhapati of the village, Bachi
Singh also. They all saw that Himuli Devi was lying inside the room, having
injuries on her body and she was dead.
3. The Sabhapati of the village, Bachi Singh, prepared a written report,
Ext.Ka-1. It was sent to the Patwari of the Kshetra through one Kishan
Singh. In the said report, Sabhapati mentioned that it was accused-Khim
Singh who killed his wife Himuli Devi and requested the Patwari to come and
investigate the matter. The written report was received by the Patwari,
Narain Singh, at 11.30 a.m. on 18th July, 1987 and on that basis he
prepared the FIR, Ext.Ka-3. He came to the house of Bachi Singh and
recorded his statement. Accompanied by Bachi Singh, he went to the house of
the accused, where Himuli Devi was found lying dead inside the house. The
dead body was taken into custody and the inquest report, Ext.Ka-4, was
prepared and the dead body was sealed. The letter with a request for
postmortem, Ext.Ka-5, was also prepared. The blood stained clothes were
taken into custody from the dead body and Fard, Ext.Ka-6 was prepared. From
the place where the dead body was lying, blood stained and plain earth were
also taken and sealed and a Fard, Ext.Ka-7, was prepared. The scene of
occurrence was also reflected in site plan Ext.Ka-8. The accused-Khim
Singh, who was present there, was arrested and a Fard, Ext.Ka-9, was
prepared. At the instance of the accused, a blood-stained Kulhari (axe) was
found inside the house and a Fard, Ext.Ka-2, was prepared. The sealed
articles were handed over to the peon and Fard, Ext.Ka-10 was prepared. The
statements of Manuli Devi (PW-1) and Khimuli Devi (PW-2) were recorded. In
between 19th and 22th July, 1987 the statements of other witnesses,
including Joga Singh (PW-5) were recorded. The sealed articles were sent
for chemical examination. The investigation was completed and the
chargesheet dated 22nd August, 1988, Ext.Ka-14, was submitted against the
accused.
4. The dead body was sent for postmortem which was conducted by Dr. N.D.
Punetha, on 19th July, 1987, at 11.30 a.m. at Bagesnwar. He found the
following ante mortem injuries on the dead body:
“1. Incised wound 5 cm x 2 cm bone deep present on the left side of
mastoid region of the head. Margins were lacerated and well defined.

2. Contusion 5 cm x 3 cm present on the occipital region of the head.
Semi digested food material was coming out from the mouth.”

5. On internal examination, the bone under the two injuries was found to
be fractured. Clotted blood was also found beneath these injuries. In the
stomach, a small quantity of semi-digested food material was found. There
were gases in the small and large intestines. This death, in the opinion of
the Medical Officer resulted from shock and haemorrhage, caused by the two
injuries, found on the dead body, which were sufficient for death in
ordinary course of nature. The postmortem report, Ext.Ka-15, was prepared.
The time since death was about one day and in the opinion of the doctor,
this death could have occurred in the night of 17th/18th July, 1987. He has
also given an opinion that the injuries were caused with some heavy sharp
edged weapon like Kulhari.
6. The Patwari-Simgari, after completing necessary formalities,
submitted a charge sheet dated 22nd August, 1987, against the accused,
Ext.Ka-14, to the Court of CJM, Almora. Since the offence was exclusively
triable by the Court of Sessions, the case was committed to the Sessions
Judge, Almora for trial of the accused. The Sessions Judge charged the
accused under Section 302 IPC, who pleaded not guilty to the charge and
claimed to be tried.
7. In order to bring home the guilt of the accused, the prosecution, in
oral evidence, examined as many as seven witnesses, namely, Manuli Devi (PW-
1)-mother-in-law of the deceased; Khimuli Devi (PW-2)-sister-in-law of the
deceased(gotani), Mohan Singh(PW-3)-minor son of the deceased with the
accused, Bachi Singh(PW-4), Joga Singh(PW-5)- a neighbour; Narain Singh-
Patwari (PW-6) and Dr. N.D. Punetha(PW.7) who conducted the postmortem on
the dead body of the deceased. Prosecution also tendered in evidence
affidavit of Bhagwat Singh, peon of Patwari, dated 5th January, 1988. All
the documents referred to above were filed by the prosecution. The Trial
Court on appreciation of evidence, both oral and documentary, based on
circumstantial evidence held the accused-Khim Singh guilty of the offence
punishable under Section 302 IPC.
8. Mr. Feroz Ahmed, amicus curiae appearing on behalf of the accused
assailed the judgment mainly on the ground that there is no complete chain
of circumstantial evidence to bring home the guilt of the accused. It was
contended that the appellant cannot be convicted merely on suspicion in
absence of any eye-witness. It was also contended that the relatives like
mother-in-law (PW-1), sister-in-law (PW-2) and even the neighbours Bachi
Singh (PW-4) and Joga Singh (PW-5) were declared hostile and hence there
was no sufficient evidence to prove the accused guilty.
9. In this case, there was no eye-witness of the occurrence. The case
was based on the circumstantial evidence. Manuli Devi (PW-1), the mother of
the accused in her testimony, stated that there was quarrel between the
accused and his wife, Himuli Devi,in the evening of 17th July, 1987, on the
festival of Harela. On the next morning, i.e. 18th July, 1987, one Bahadur
Singh found the door of the house of the accused closed and when he pushed
the door, he found Himuli Devi lying dead inside the house. Bahadur Singh
called Bachi Singh (PW-4), the Sabhapati. Thereafter, the Patwari also came
on the spot. However, she stated that after the dispute between accused-
Khim Singh and Himuli Devi she had not seen accused-Khim Singh and she was
declared hostile. However, she admitted that in the house only Khim Singh
and his wife were living. His son Mohan Singh was living with her. Khimuli
Devi (PW-2), is the wife of Lachham Singh, brother of the accused, sister-
in-law of the deceased Himuli Devi (gotani). According to her, she did not
know whether any quarrel took place between the accused and the deceased.
She had gone to her field on the day of Harela festival. The next morning
also, she had gone to the field, but when she came back, she saw Himuli
Devi lying dead. Mohan Singh (PW-3), is the minor son of the accused. He
stated that he was inside the house of his grandmother and he did not know
as to what happened in the house of his father.
10. Bachi Singh (PW-4), is the Pradhan of the village. He stated that
Khim Singh and his wife Himuli Devi often quarrelled. It was also talked
amongst the villagers that the wife of the accused was of loose character
and on that count accused Khim Singh was annoyed with his wife and they
frequently quarrelled. He further stated that on 17th July, 1987, in the
evening, there was a quarrel between Khim Singh and his wife, deceased
Himuli Devi. Early in the morning, at about 6.30 a.m., the mother of the
accused came to him and informed that Himuli Devi had not got up and Khim
Singh was also not there. When he went to the house of Khim Singh, he found
that the door was open and found that Himuli Devi was lying injured and
dead. Khim Singh was not found there. Bahadur Singh, Joga Singh(PW-5),
Lachham singh, Ram Singh and others also came and by that time, Khim Singh
was also found coming towards his house. He also testified that he got
prepared the written report,Ext.Ka-1, scribed by Bahadur Singh, and the
same was sent to the Patwari concerned. He further stated that when Patwari
came, a blood stained Kulhari was recovered from the house at the instance
of the accused and the Fard, Ext.Ka-2, was prepared. Joga Singh(PW-5),
another resident of the village, in his testimony, very hesitatingly stated
that the wife of accused was not of loose character. He stated that he went
to the house of Khim Singh when the Sabhapati called him there. There he
found Himuli Devi dead. Accused-Khim Singh was not present there at that
time, but after a short-while he was seen coming to his house. Narain Singh
(PW-6), Patwari,is the Investigating Officer and Dr. N.D.Punetha(PW-7),
conducted postmortem on the dead body. Both of them are formal witnesses
and had proved their report. The evidence of Mohan Singh (PW-3), aged about
8 years, minor son of the accused-Khim Singh, is not at all material.
11. The accused-appellant in his statement under Section 313 Cr.P.C.
denied the accusations levelled against him. He, denied that his wife did
not obey him and he used to quarrel with her. He also denied that she was
of loose character and that he was annoyed with her on that count. He
asserted that he was not present there at the alleged time of death,
therefore, there was no question of quarrel and altercation between him and
his wife. The accused did not disclose as to where he was on the relevant
date. However, he denied the recovery of blood stained Kulhari at his
instance. He claimed that the witnesses were inimical to him hence they
have falsely given evidence against him. In reply to question No.11, the
accused stated that he cannot claim if his wife was murdered by Kulhari on
the relevant date and time. He admitted that Patwari arrested him on 18th
July, 1987. He also claimed that he had no reason to kill his wife, who had
been living with him for the last about 17 years.
12. Himuli Devi died in the night intervening 17th and 18th July, 1987
and her death was fully proved by the postmortem report prepared by
Dr.N.D.Punetha(PW-7). It is not disputed that the deceased suffered from
ante mortem injuries, as detailed above. It is also not disputed that two
injuries found on the person of the deceased were sufficient in the
ordinary course of nature to cause death. It has not been challenged that
the ante mortem injuries could be self-inflicted. The prosecution thereby
established that the deceased Himuli Devi died as a result of ante mortem
injuries sustained by her in the night intervening 17th and 18th July,
1987.
13. From the perusal of the entire evidence on record, we find that the
prosecution in order to bring home the guilt of the accused has relied upon
the testimony of Manuli Devi(PW-1), Khimuli Devi (PW-2), Bachi Singh(PW-4)
and Joga Singh (PW-5). In order to see whether frequent quarrels were there
between the accused and his wife, the statements of these witnesses are
relevant to be discussed.
14. Manuli Devi(PW-1), is the mother of the accused and mother-in-law of
the deceased. That being so, there can be no reason for her to falsely
implicate her son in the commission of murder. In her statement she stated
that the wife of Khim Singh, Himuli Devi, did not obey Khim Singh,
therefore, Khim Singh was unhappy with her. She further stated that on the
festival of Harela in the evening, there was a quarrel between Khim Singh
and his wife. The next day in the morning, when Bahadur Singh opened the
door of the house of Himuli Devi, she also found Himuli Devi lying dead. In
her cross-examination she further testified that in the evening of the
alleged mis-happening the accused was present in the house and he had a
quarrel with his wife. She also stated that Himuli Devi was s short-
tempered woman and had often the accused assaulted her. She also stated
that earlier Himuli Devi had gone to jungle to hang herself. The entire
testimony of such a natural witness cannot be thrown out merely if the
prosecution asked to declare her hostile and on their request she was cross-
examined by the prosecution. The first circumstance that Himuli Devi was
short-tempered was further corroborated by the statement of Bachi Singh (PW-
4) Pradhan of the village. Generally the Pradhan of the village keeps
general information regarding the family matters and tries to settle such
matter in the village. Pradhan is instrumental to settle family disputes at
his level, therefore, as and when any such incident happens, the Pradhan is
immediately intimated. In the instant case, Pradhan (PW-4) prepared the
written report, got it scribed by Bahadur Singh,who had first seen the
deceased lying dead inside her house and called the Pradhan immediately on
the spot. In his statement, Bachi Singh, Pradhan, specifically stated that
Khim Singh and his wife often used to quarrel and there was a rumour in the
village that Himuli Devi was a woman of loose character and on account of
the result accused Khim Singh was unhappy with her.
15. Joga Singh (PW-5), is also a resident of the same village. Though
hesitatingly, this witness stated that so far as he knew the character of
Himuli Devi was good. The learned Sessions Judge observed that such
statement of Joga Singh(PW-5) is indicative of fact that probably Himuli
Devi was a woman on whom Joga Singh (PW-5) never intended to make any
specific remark. However, Joga Singh (PW-5) stated that accused and his
wife sometimes used to have amicable relation and sometimes they used to
quarrel.
16. From the above narration of the testimony of the witnesses, it can be
concluded that for the reason aforesaid, the accused was unhappy with his
wife Himuli Devi and this resulted in quarrels between them off and on. The
quarrel took place even in the evening preceding the date of the death.
17. In the night intervening 17th and 18th July, 1987 Himuli Devi was
killed by means of a Kulhari. Except accused Khim Singh nobody was residing
in the said house. Therefore, Himuli Devi could not be killed as a result
of assault by anybody else other than the accused. The conduct of the
accused in the morning of 18th July, 1987 was unnatural. He failed to
explain as to where he remained on the fateful night. In the background of
the aforesaid circumstances, it has to be examined whether the
circumstances relied upon by the prosecution formed a series of events and
whether the chain of circumstantial evidence was complete, which could be
sufficient to show involvement of the accused in the commission of murder.
18. Manuli Devi (PW-1), clearly stated that in the evening of 17th July,
1987, Khim Singh and his wife had a quarrel. She, however, added that it
was before the sunset. Manuli Devi being the mother of the accused is a
very natural witness and the credibility of her testimony cannot be
discarded. It is in her statement that she lived with her another son
Lachham Singh in a separate house, which is adjacent to the house of the
accused. She stated in unequivocal terms that Khim Singh and his wife lived
together and she(Himuli Devi) did not obey the accused. Bachi Singh (PW-4),
who is also a close neighbor, also stated that on the festival of Harela,
i.e., on 17th July, 1987 at about 6.30 p.m., a quarrel took place between
the accused and his wife and the shouts were heard by him. This part of
his statement has not been challenged in the corss-examination. Bachi Singh
(PW-4), being Pradhan of the village is an independent witness and,
therefore, there was no reason for him to falsely implicate the accused for
the offence of murder. Therefore, the prosecution successfully proved that
there was a quarrel between the accused and his wife in the preceding
evening.
19. The accused in his statement under Section 313 Cr.P.C. in reply to
the question Nos. 3 and 4 stated that on 17th July, 1987 he was not at his
house. Such statement cannot be believed in absence of any explanation
given by the accused as where he was in the night between 17th and 18th
July, 1987. The accused could not explain as to where he was in the night
of 17th July, 1987. The conduct of the accused was unnatural in not
disclosing the place where he remained in the fateful night, making it
clear that his statement under Section 313 Cr.P.C. was not believable. From
the testimony of the real mother of the accused, Manuli Devi (PW-1) as well
as Bachi Singh (PW-4), Pradhan of the village, it is fully established that
the accused was very much present in the house on the fateful night and
there was a quarrel between the accused and his wife. In the absence of any
reason for leaving his house, it can be held that the accused remained in
his house in that night.
20. Joga Singh(PW-5), in his testimony stated that when Khim Singh was
found in the morning, he was asked about his whereabouts, in the night,
which he could not explain.
21. Learned Sessions Judge for the said reason in the judgment observed
that “this conduct of the accused in not explaining the alleged absence
from the house would go to show the case taken by him that he was absent
from the house is not believable. Obviously, the prosecution has been able
to establish beyond doubt that this accused was present at his house in the
night between 17th and 18th July, 1987. Having considered the material on
record, the High Court was unable to disagree with the finding arrived at
by the learned Sessions Judge on the point that the accused Khim Singh, was
very much present in his house on the fateful day and we do not find any
reason to disagree with such finding. Thus, the third circumstance is fully
proved by the prosecution.
22. The statement of Bachi Singh (PW-4), who clearly stated that none of
the residents of the village had any enmity with the deceased Himuli Devi
is very relevant. It is evident from the record that the accused failed to
assign any reason for the alleged enmity of the villagers and he could not
utter a single word to that effect in his statement under Section 313
Cr.P.C. Therefore, there is no reason to infer that anybody else from the
village could have committed the murder of Himuli Devi who was in the house
along with the accused-husband on the fateful night. The Investigation
Officer, Narain Singh (PW-6), Patwari, was examined by the prosecution. He
clearly stated that at the instance of the accused, Kulhari used in the
crime was recovered. He was cross-examined by the defence. In cross-
examination, he clearly denied the suggestion that the Kulhari (weapon of
assault) was not recovered at the instance of the accused. The Medical
Officer, Dr. N.D. Punetha (PW-7) in his examination in chief stated that
ante mortem injury No.1 on the person of the deceased could have been
caused by heavy sharp-edged weapon such as Kulhari and injury No.2 could
have been caused by the blunt/rear side blow of Kulhari or by fall on the
stony surface. This part of his statement was not questioned in his cross-
examination. It has come in the statement of Investigation Officer (PW.6)
that Kulhari recovered on the pointing of the accused was blood-stained and
hair was stuck on it. He was cross-examined regarding the blood-stained
portion of the Kulhari and the weight of the Kulhari, etc. It is
established that blood-stained Kulhari-Ext.Ka-2 was seized by the
Investigating Officer at the house of the accused.

23. Homicidal death of Himuli Devi is corroborated by the conduct of the
accused in the morning of 18th July, 1987. Joga Singh (PW-5) stated that
when the accused was found in the morning, he was asked about his
whereabouts in the night and he was not able to explain it. Even Khimuli
Devi (PW-2) wife of the brother of the accused, Lachham Singh, stated that
accused was outside the house in the morning wandering here and there.
Although accused was raising hue and cry that his wife was killed, he never
bothered to contact the Pradhan or the Patwari concerned to lodge a report
in the matter. However, statement of the accused that he was not present at
the house in the night seems to be unbelievable considering the positive
and credible testimony of Manuli Devi (PW-1) and other witnesses referred
to above.
24. Bachi Singh (PW-4), stated that door of the house of the accused was
not bolted from inside. This is one of the incriminating circumstances
which can be taken into consideration to conclude that the accused after
committing offence opened the door and went out.
25. The statements of Manuli Devi (PW-1)-mother of accused, Bachi Singh
(Pw-4)- Pradhan and Khimuli Devi (PW-2)- sister-in-law also suggest that
the accused was last seen with the deceased.
26. The above narration of chain of circumstantial evidence relied upon
by the prosecution in the present case lead to the inference that the
accused is guilty for the offence of murder of Himuli Devi as all the
circumstances taken together lead to only hypothesis of the guilt of the
accused-appellant. The chain of circumstantial evidence relied upon by the
prosecution is complete to hold the accused guilty of the offence
punishable under Section 302 IPC. We hold that the accused-appellant Khim
Singh was rightly convicted and sentenced under Section 302 IPC for life
imprisonment by the learned Sessions Judge as affirmed by the High Court.
27. As a result, the appeal preferred by the accused-appellant has no
force and the same is liable to be dismissed. The appeal is, accordingly,
dismissed. The impugned judgment under appeal is upheld. We appreciate the
endeavour made by the learned amicus curiae, Mr. Feroze Ahmed in assisting
the Court in the matter and direct to pay a sum of Rs.7,000/- as fee to the
amicus curiae.

………………………………………………J.
(SUDHANSU JYOTI MUKHOPADHAYA)

………………………………………………J.
(V. GOPALA GOWDA)

NEW DELHI,
JULY 8, 2014.
ITEM NO.IB (For Judgment) COURT NO.6 SECTION II

S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS

Criminal Appeal No(s). 1986/2009

KHIM SINGH Appellant(s)

VERSUS

STATE OF UTTRAKHAND Respondent(s)

Date :08/07/2014 This appeal was called on for judgment today.

For Appellant(s)
Mr. Feroz Ahmed (A.C.)

For Respondent(s)
Mr. Jatinder Kumar Bhatia, Adv.

Hon'ble Mr. Justice Sudhansu Jyoti Mukhopadhaya pronounced the
judgment of the Bench comprising His Lordship and Hon'ble Mr. Justice V.
Gopala Gowda.

The appeal is dismissed in terms of the signed judgment.

(Sukhbir Paul Kaur) (Usha Sharma)
Court Master Court Master

(Signed reportable judgment is placed on the file)

LAW FOR ALL

LawforAll

advocatemmmohan

Just for legal information but not form as legal opinion

Monday, July 28, 2014

2014 – July. Part – http://judis.nic.in/supremecourt/filename=41794

2014 – July. Part – http://judis.nic.in/supremecourt/filename=41755