MV Act - Enhancement of compensation - 50% disability - entitled for compensation for Rs.4 lakhas =where the appellant has proved that he has lost his speaking power as also lost his memory retention power due to causing of head injury and further he is not able to move freely at the age of 35 years and lastly due to these injuries, he has also lost his job, we fail to appreciate as to how and on what reasons the MACT and the High Court could come to a conclusion that a compensation of Rs.4,00,000/- claimed by the appellant was on a higher side and thus reduced it to Rs.1,54,200/-. Indeed we found no reason. In our considered opinion, keeping in view of the nature of injuries sustained by the appellant, resultant permanent disabilities caused to him to the extent of 50% or 30% due to such injuries which are held proved by the appellant coupled with the amount spent by him in receiving medical treatment also duly held proved (Ex-P-1 to Ex-P-58) by him, loosing the permanent job due to injuries sustained by him, future loss of income caused as a result of the injuries and lastly the continuous mental pain and agony suffered by him, a sum of Rs.4,00,000/- claimed by the appellant by way of compensation is just and reasonable. In a case of this nature, in our opinion, the injuries sustained by the claimant-appellant herein are more painful because he has to live his remaining life with such disabilities, which he did not have before accident. This undoubtedly deprives him to live his normal life. The Courts below failed to take note of this material fact while determining the compensation, which in our opinion, calls for interference by this Court. We are not impressed by the submission urged by the counsel appearing for respondent No.1 as in our opinion in the absence of any rebuttal evidence adduced by respondent No.1 and in the light of the findings recorded by the Courts below mentioned supra, the submission is found to be devoid of any merit and it is accordingly rejected. In view of foregoing discussion, the appeals filed by the claimant succeed and are hereby allowed. Impugned order is modified in appellant- claimant’s favour by awarding a sum of Rs.4,00,000/- by way of compensation against respondent No.1-Corporation. An awarded sum, i.e. Rs.4,00,000/- (Rs. 4 lakhs) would carry interest at the rate of 6% per annum payable from the date of claim petition till realization. No costs.

    REPORTABLE
                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                     CIVIL APPEAL Nos. 7201-7202 OF 2015
               (ARISING OUT OF SLP (C) Nos. 36512-36513/2013)


Mithusinh Pannasinh Chauhan  …….Appellant(s)


                             VERSUS


Gujarat State Road Transport
Corporation & Anr.                      ……Respondent(s)



                               J U D G M E N T

Abhay Manohar Sapre, J.
1.    Delay condoned. Leave granted.
2.    These appeals are directed  against  the  common  final  judgment  and
order dated 14.03.2012 passed by the High Court of Gujarat at  Ahmedabad  in
First Appeal No. 1536 of 2001 and First Appeal No. 1819 of 2001 which  arise
out of the award dated  30.05.2000  passed  by  the  Motor  Accident  Claims
Tribunal (MACT), Panchmhals at Godhra in Motor Accident Claim  Petition  No.
1071 of 1987.
3.    By impugned judgment, the High Court partly allowed the  appeal  filed
by the respondent– Corporation and reduced the compensation awarded  to  the
appellant–claimant herein by the MACT and in  consequence  directed  him  to
refund the excess awarded amount with interest at the rate of  12%  p.a.  to
the respondent-Corporation and in consequence dismissed the appeal filed  by
the appellant herein for seeking enhancement of the compensation awarded  by
the MACT.
4.    In order to appreciate  the  issue  involved  in  these  appeals,  few
relevant facts need mention infra,

5.    On 13.09.1987, when the appellant–claimant was going  on  his  bicycle
from Godhra to Popatpura, at that time,  respondent No.2,  who  was  driving
S.T. Bus No. GRU-8749 belonging to Gujarat State Road Transport  Corporation
(in short “Corporation”) came from Lunawada side and hit the appellant as  a
result of which he fell down and sustained serious injuries.  The  appellant
was taken to the hospital at Godhra  but  later  on  transferred  to  Baroda
Hospital  and  from  there  to  Civil  Hospital  at  Ahmedabad  for  further
treatment.  He sustained a serious head injury as a result of which he  lost
his memory.  Now, he  is  neither  able  to  speak  and  nor  able  to  move
properly.  He underwent medical treatment in hospital for a long  time.   At
the time of accident, he was aged about  35  years  and  was  working  as  a
Constable in SRP.  His earning was Rs.1400/- p.m.   Due to the accident  and
resultant injuries sustained,  the  appellant  unfortunately  lost  his  job
also.
6.    The appellant then filed a claim petition being Motor  Accident  Claim
Petition No. 1071 of  1987  before  the  Motor  Accident   Claims  Tribunal,
Panchmahals at Godhra under Section 166 of the Motor Vehicle Act,  1988  (In
short, “the Act) for award of compensation and claimed a sum of Rs. 4  lakhs
under various heads.  By award dated 30.05.2000,  the  MACT  partly  allowed
the appellant’s claim petition  and  held  that  accident  in  question  was
caused due  to  negligence  of  respondent  No.1  therein  (respondent  No.2
herein) that the appellant had suffered 50% disability in his  body  due  to
injuries  sustained  and  accordingly  awarded  to  him  a  total   sum   of
Rs.2,19,000/-  as  compensation  which  included   expenses   in   receiving
treatment and compensation for injuries sustained.
7.    Dissatisfied with the compensation awarded by the MACT, the  appellant
filed an appeal being F.A.  No.  1819  of  2001  for  enhancement  of  claim
awarded by the MACT whereas the  Corporation-respondent  No.1  herein  filed
F.A. No. 1536 of 2001 against that part of   the  award  which  allowed  the
claim petition in part and awarded Rs.2,19,000/- contending that it  was  on
the higher side  and hence be reduced.
8.    By the common impugned judgment, the High  Court  partly  allowed  the
appeal filed by respondent-  Corporation  and  held  that  the  claimant  is
entitled  to  Rs.1,15,200/-  towards  future  loss  of  income  instead   of
Rs.1,80,000/- awarded by the MACT and directed the claimant  to  refund  the
excess amount of Rs.64,800/- with interest at the rate of 12%  p.a.  to  the
respondent–Corporation. As a consequence, the appeal filed by the  appellant
herein for enhancement for compensation, was dismissed.
9.    Aggrieved by the judgment passed by the  High  Court,  the  appellant-
claimant has filed these appeals by way of special leave.
10.   Heard Mr. Nikhil Goel, learned counsel for the appellant and Mr.  R.P.
Bhatt, learned senior counsel for respondent-1(Corporation).
11.    Learned  counsel  for  the  appellant-claimant  while  assailing  the
legality and correctness of the  impugned  order  contended  that  the  High
Court erred in allowing  the  appeal  filed  by  the  respondent-Corporation
thereby erred in reducing the compensation awarded to the appellant  by  the
MACT and further erred in dismissing the  appellant’s  appeal.  It  was  his
submission that having regard to the nature of  the  injuries  sustained  by
the appellant in the accident and the percentage of  permanent  disabilities
caused to the appellant due to the injuries on his  body  such  as  loss  of
speech and  memory,  his  inability  to  move  freely  and  lastly  loss  of
permanent job of Constable  on  account  of  these  disabilities,  the  MACT
should have awarded Rs.4,00,000/- as claimed by the appellant in  his  claim
petition rather than awarding Rs.2,19,000/- including expenses  incurred  on
treatment. Learned counsel contended that since the  MACT  failed  to  award
Rs.4,00,000/-, the High Court  should  have  corrected  the  said  error  by
enhancing  the  compensation  amount  to  Rs.4,00,000/-  by   allowing   the
appellant's appeal and in consequence dismissing the respondent's appeal.
12.   Learned counsel pointed out that the appellant had proved  the  nature
of injuries so  also  the  resultant  disabilities  caused  to  him  due  to
sustaining of such injuries by examining Dr. Usha Goswami and also from  his
own evidence which remained rebutted for want of  any  evidence  adduced  by
the respondents and  hence  taking  into  account  the  appellant’s  monthly
salary, age 35 years,  percentage of permanent disability duly  proved  (50%
assessed by the MACT and 30% assessed by the High Court), expenses  incurred
in  receiving  long  medical  treatment  in  several  hospitals  proved   by
documents  (Ex-P-1  to  Ex-P-58),  future  loss   of   income   and   lastly
compensation payable under the  head  of   pain  and  suffering,  a  sum  of
Rs.4,00,000/- claimed by the appellant was just and reasonable  compensation
and hence it should have been awarded by the MACT or in  any  event  by  the
High Court by modifying the award of the MACT in appellant's favour.
13.   In contra, Mr.  R.P.  Bhatt,  learned  senior  counsel  appearing  for
respondent No.1 while supporting the impugned  judgment  contended  that  it
does not call for any interference. His submission was  that  having  regard
to the nature of injuries sustained  by  the  appellant  and  the  resultant
permanent disability caused to the appellant and the loss caused,  what  was
awarded by the MACT was on the higher side and, therefore,  it  was  rightly
reduced by the High Court by allowing the respondent's appeal.
14.   Having heard the learned counsel for the parties  and  on  perusal  of
the record of the case, we find force in the submissions of the appellant.
15.   We have examined the evidence adduced by the parties with  a  view  to
see the nature of injuries  and  the  resultant  disability  caused  to  the
appellant due to such injuries.
16.    This issue was dealt with by the High Court in Para 6 and we find  no
good ground to differ  with  this  finding  of  the  High  Court,  which  is
otherwise not under challenge.  It reads as under :
“As far as disability is concerned, Dr. Usha Goswami who  has  examined  the
claimant was Professor in Psychology Department and she is  a  head  of  the
Psychology Department in the Civil Hospital,  Ahmedabad.  She  categorically
stated that due to injury, the claimant has lost his service and he  is  not
able to speak properly and he had lost his memory and he is unable  to  move
properly outside.  However, the disability certificate was not  produced  by
the claimant before the  Tribunal.   Therefore,  in  absence  of  disability
certificate, 50% disability was assessed by the Tribunal which is on  higher
side.  It should be 30% as the claimant is not able to speak  and  lost  his
memory…..”

17.   Having rendered the aforementioned finding in appellant’s favour,  the
High Court, in  our  opinion,  should  not  have  reduced  the  compensation
awarded by the  MACT  but  it  should  have  enhanced  the  compensation  by
allowing the appellant’s appeal.
18.   In our considered opinion, in a case where the  appellant  has  proved
that he has lost his speaking power as also lost his memory retention  power
due to causing of head injury and further he is not able to move  freely  at
the age of 35 years and lastly due to these injuries, he has also  lost  his
job, we fail to appreciate as to how and on what reasons the  MACT  and  the
High Court could come to a conclusion that a compensation  of  Rs.4,00,000/-
claimed by the appellant was on  a  higher  side  and  thus  reduced  it  to
Rs.1,54,200/-.  Indeed we found no reason.
19.   In our considered opinion, keeping in view of the nature  of  injuries
sustained by the appellant, resultant permanent disabilities caused  to  him
to the extent of 50% or 30% due to such injuries which are  held  proved  by
the appellant coupled with the amount spent  by  him  in  receiving  medical
treatment also duly held proved (Ex-P-1 to  Ex-P-58)  by  him,  loosing  the
permanent job due to injuries  sustained  by  him,  future  loss  of  income
caused as a result of the injuries and lastly the  continuous   mental  pain
and agony suffered by him, a sum of Rs.4,00,000/- claimed by  the  appellant
by way of compensation is just and reasonable.
20.   In a case of this nature, in our opinion, the  injuries  sustained  by
the claimant-appellant herein are more painful because he has  to  live  his
remaining life  with  such  disabilities,  which  he  did  not  have  before
accident.  This undoubtedly deprives him  to  live  his  normal  life.   The
Courts below failed to take note of this  material  fact  while  determining
the compensation, which in our  opinion,  calls  for  interference  by  this
Court.
21.   We are not impressed by the submission urged by the counsel  appearing
for respondent No.1 as in  our  opinion  in  the  absence  of  any  rebuttal
evidence adduced by respondent  No.1  and  in  the  light  of  the  findings
recorded by the Courts below mentioned supra, the submission is found to  be
devoid of any merit and it is accordingly rejected.
22.   In view of foregoing discussion, the appeals  filed  by  the  claimant
succeed and are hereby allowed. Impugned order  is  modified  in  appellant-
claimant’s favour by awarding a sum of Rs.4,00,000/- by way of  compensation
against respondent No.1-Corporation.  An  awarded  sum,  i.e.  Rs.4,00,000/-
(Rs. 4 lakhs) would carry interest at the rate of 6% per annum payable  from
the date of claim petition till realization.  No costs.

                     ………...................................J.
                                  [J. CHELAMESWAR]


                  …...……..................................J.
                               [ABHAY MANOHAR SAPRE]
      New Delhi;
September 18, 2015.


-----------------------
13

‘last seen together’ theory = It will be hazardous to come to a conclusion of guilt in cases where there is no other positive evidence to conclude that the accused and deceased were last seen together. The prosecution story relies upon the ‘last seen together’ theory, which resulted into the death of Ganesh. This Court has time and again laid down the ingredients to be made out by the prosecution to prove the ‘last seen together’ theory. The Court for the purpose of arriving at a finding as to whether the said offence has been committed or not, may take into consideration the circumstantial evidence. However, while doing so, it must be borne in mind that close proximity between the last seen evidence and death should be clearly established. Yet, the prosecution has failed to prove the evidence which establishes the ‘last seen together’ theory beyond reasonable doubt to prove the guilt of the accused. The prosecution merely proved the motive which could have compelled the accused, and that the accused went to the bar with one other person, but the identity of that other person is not clearly established at all. The post-mortem report fails to specify any approximate time of death and in light of the recovery of the dead body on 20.01.2001, after 4 days, which is not a small gap since the deceased disappeared on 16.01.2001, it is not appropriate to convict the accused when his role is not firmly established. Thus, in the light of the above discussion, we are of the view that the present appeal is devoid of merits, and we find no grounds to interfere with the judgment passed by the High Court. The appeal is, accordingly

                                                              NON REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
                      CRIMINAL APPEAL NO. 1547  OF 2011
STATE OF KARNATAKA          …..                   APPELLANT
                                   VERSUS
CHAND BASHA            …..                  RESPONDENT



                                  JUDGMENT
Pinaki Chandra Ghose, J.
This appeal, by special leave, has been directed against  the  judgment  and
order dated 1st March, 2007  passed  by  the  High  Court  of  Karnataka  at
Bangalore in Criminal Appeal No. 1047/2003, whereby the High  Court  allowed
the criminal appeal filed by the respondent herein and acquitted him.

The brief facts necessary to dispose of this appeal are that one  Ganesh,  a
daily-wage mason, went missing on 16.01.2001. On 20.01.2001,  PW1  D.  Ramu,
Dhobi by profession, saw a dead body floating in a well near the Dhobi  Ghat
with hands tied at the back and  the  ankles  were  also  tied.  The  police
recovered the dead  body,  shifted  it  to  Bowring  Hospital  Mortuary  and
thereafter published the photograph of the dead body in the newspaper.  From
this photograph, PW3 father of the deceased, reached  the  Bowring  Hospital
and identified the body as that of his son Ganesh. PW1  lodged  a  complaint
with K.G. Halli Police Station and  investigation  started,   and  from  the
apprehension of PW3, accused Chand Basha was  arrested  on  23.01.2001.  The
investigation revealed that on 17.01.2001, PW12 (Appu)  told  PW3  that  his
son had gone to a wet party with the accused on  16.01.2001.  The  said  wet
party took place at Sindhur Bar at Lingarajapuram.  PW5  (the  bar-boy)  and
PW6 (owner of the bar) testified that on 16.01.2001, the accused along  with
one other person visited their  bar.  Building  further,  the  investigation
came across with PW8 (shopkeeper) who testified that the accused along  with
one other person bought 2 cigarettes from  his  shop  on  16.01.2001  at  10
p.m., and  the accused  thereafter  was  arrested  on  23.01.2001,  but  the
deceased was never seen alive again.

Police filed the charge sheet  against  accused  Chand  Basha,  after  which
charges for offence punishable under Sections 302  and  201  of  the  Indian
Penal Code, 1860 (hereinafter referred to  as  “IPC”)  were  framed  by  the
Trial Court and the charges were read over and explained to the accused  but
he pleaded not guilty and claimed trial.

The Trial Court  by its judgment and order dated 14.02.2003,  convicted  the
respondent Chand Basha for the offence punishable under Section 302 IPC  and
sentenced him to rigorous imprisonment for life and a fine of Rs.15,000/-  ,
and in default of payment of fine, further  rigorous  imprisonment  for  six
months was awarded. Being aggrieved by the aforesaid judgment and  order  of
the Trial Court, the respondent-accused filed  an  appeal  before  the  High
Court of Karnataka at Bangalore, being Criminal  Appeal  No.1047  of   2003.
The High Court by the impugned  judgment  and  order  allowed  the  criminal
appeal on the ground that the prosecution might have proved the  motive  but
had miserably failed to prove the incriminating last seen  circumstance  and
had also failed to successfully  prove  the  discovery  evidence.  The  High
Court held that the death may be a homicidal, but there is  no  evidence  to
connect the accused with the crime. In view of the aforesaid  discrepancies,
the High Court set aside the order of conviction passed by the  Trial  Court
and acquitted the respondent.

The Appellant - State has challenged before us  the  judgment  of  acquittal
passed by the High Court.  Learned counsel for the appellant has inter  alia
raised the following grounds as incriminating circumstances in this  appeal.
Firstly, the motive behind the murder of the deceased was  consistently  and
cogently proved by the testimony of  PW3 father of the  deceased,   and  PW4
sister of the deceased. Agreeing to this submission,  the  High  Court  also
held that motive can be successfully attributed upon  the  accused  that  he
wanted  to  marry  PW4  (sister  of  the  deceased)  which  was   vehemently
disapproved by the deceased  and  PW3  (father).  Secondly,  the  death  was
argued to be homicidal and there is already  a  concurrent  finding  of  the
courts below that the death was homicidal. Thirdly, the present  case  rests
on the last seen theory, and by the  consistent  testimonies  of  PW5  (bar-
boy), PW6 (owner of the bar), PW8  (shopkeeper)  and  PW12  (Appu),  it  was
proved that on 16.01.2001 the deceased was last seen in the company  of  the
accused. Lastly, the learned  counsel  for  State  rests  her  case  on  the
recovery of the material objects at the voluntary instance of  the  accused.
This recovery has itself been testified by independent witnesses.

Learned senior counsel appearing for the respondent rebutted  the  arguments
advanced by the appellant State  by  putting  his  weight  on  the  decision
arrived at by the High Court.  Learned  senior  counsel  appearing  for  the
respondent did not rebut the arguments put forward to prove the  motive  and
also that the death was homicidal. However, it was  argued  that  the  ‘last
seen together’ theory was not proved beyond reasonable doubt. The  discovery
of  material objects was argued on the line of the High  Court  decision  to
be an artificial theory. Learned senior counsel went ahead arguing that  the
extra-judicial confession made by the accused to PW4,  who  narrated  it  to
PW3, was not trustworthy. Attention was also drawn to the  cross-examination
of  PW12 who contradicted his examination-in-chief that it was  Raju  Mistry
and not the accused who hosted the wet party.

The Trial Court convicted the respondent on the  basis  of  the  prosecution
story of  'last seen together'   corroborated  with  'recovery  of  material
objects' and the 'motive of the accused'.  The High Court  also  dealt  with
the  issue  and  held  that  the  Trial  Court  failed  to  appreciate   the
discrepancies occurring in the evidences. The High  Court  has  examined  at
length the record of the case and reversed the finding of the Trial Court.

In   the  present   appeal,   we   are   concerned   with   the   last   two
contentions  as to whether   the  ‘last  seen  together’   theory  has  been
proved beyond reasonable doubt and also whether the recovery is a  naturally
occurring fact or an artificially planted one?

The High Court pointed out discrepancies in the statements of PW5  and  PW6.
Both the witnesses stated that they did not  personally  know  the  deceased
and neither of them were friends to him nor  they  ever  took  his  personal
details. It was only during the investigation on 24.01.2001,  that  the  two
came  to  know  that  the  deceased’s   name  was  Ganesh.  The  High  Court
considered the fact of recovery of material  objects,  but  disbelieved  the
recovery of Saree and shoe lace as ‘artificial’ as  they  could  not  adduce
confidence of having occurred naturally in the chain of events.

We have heard the learned counsel appearing for the appellant  as  also  the
learned senior counsel appearing for the respondent  and  have  perused  the
records. The prosecution story relies upon the 'last seen together’   theory
as its pivotal  evidence  which  is  hereunder  examined.   The  prosecution
examined PW5, PW 6 and PW8 to prove the ‘last seen theory’. PW5 the bar  boy
claims to be the person who served the accused and one more  person  with  3
quarters of RR Brandi and 1 Knock-Out beer on 16.01.2001. PW6 is  the  owner
of the bar who testified in his statement that the accused came  along  with
one  other  person.  These  witnesses   were   first   questioned   by   the
Investigation Officer on 24.01.2001 and both deposed before the  Court  that
their bar is usually crowded and they neither make personal  interaction  to
each and  every  customer  nor  do  they  take  details  of  each  of  their
customers. PW 5 and PW6 also deposed that the two persons were  also  served
2 fried chicken. According  to  these  witnesses,  the  two  customers  were
served at about 8:30 PM. PW8 (shopkeeper)  is  another  prosecution  witness
who testified that at about 10.00 PM on 16.01.2001, the accused  along  with
one other person came to his shop  and  bought  two  cigarettes   of  Rs.2/-
each. This witness has also deposed that he does  not  personally  know  the
accused or the other accompanying person. On careful  examination  of  their
depositions and cross-examination and also in light  of  the  other  medical
evidence, some doubt is raised upon the chain of events. PW5 and PW6  stated
that they were not personally acquainted to  the  accused.  However,  during
investigation when the Investigating Officer, accompanied  by  the  accused,
asked them, they were able to identify him as their  customer  who  came  on
16.01.2001 along  with  one  other  person.  At  this  point  of  time,  the
Investigating Officer disclosed the name of that other person as Ganesh  and
stated  that  he  was  dead.  Thereafter,  PW6  did  not  depose  about  any
photograph being shown to him. However, PW5 was shown a  photograph  of  the
deceased and thereby he stated that he was the same person who  was  present
with the accused on 16.01.2001. The role of  the  Investigating  Officer  is
therefore doubted, as within a very short span of  time,  why  PW6  was  not
shown the photograph and only PW5 was shown the photograph of the  deceased.
 PW5 also did not disclose the details of the  photograph,  but  it  can  be
presumed that he was shown the photograph of the dead body. From  a  perusal
of medical evidence it appears that the dead body was stout, the  complexion
had changed and bite marks of aquatic animals  were  present  especially  on
the face, since it was recovered from the well.  From  a  perusal  of  post-
mortem report, it transpires that the stomach contained  partially  digested
vegetables and rice.  However, PW5 and PW6 deposed that the accused and  the
deceased at last ordered 2 chicken fry. During investigation,  PW8  was  not
shown the photograph of  the  deceased,  moreover,  in  the  examination  no
question was asked about the identity of the other person who  was  together
with the accused. This goes on to create a serious doubt on the  ‘last  seen
together’ theory.

The prosecution pressed hard on the fact that the accused  as  well  as  the
deceased were together on 16.01.2001 and the deceased was never seen  again.
The dead body was recovered on 20.01.2001 i.e. after 3 days  and  4  nights.
PW1 Dhobi deposed that he goes to the well daily  to  wash  clothes  and  no
question was asked as to the presence of a dead  body  in  the  well  before
20.01.2001. Thus, the possibility of the  deceased  being  thrown  into  the
well later than 16.01.2001 cannot  be  ruled  out  completely,  particularly
when the post-mortem revealed that the victim last ate vegetables and  rice.
Even if depositions of PW5 and PW6 are relied upon, there exists  a  missing
link between the visit to the bar and the deceased  being  thrown  into  the
well i.e. the deceased having another meal.

The High Court  rightly  rejected  the  two  recoveries  made  as  it  seems
artificial that the accused intending to kill the deceased will not  prepare
well. Having two shoe laces at his disposal, why will he  cut  a  shoe  lace
into two to tie the hands of the deceased. Similarly,  the  piece  of  Saree
which was recovered near the well is doubted  as  an  accused  intentionally
committing a crime will not bother to cut a piece of cloth into  two  before
tying. These evidences were sent to FSL on 25.2.2001 i.e. after 1  month  of
the alleged recovery. The recovery of these material objects seems  more  of
an unnatural occurrence. The  High  Court  also  rightly  ruled  out  extra-
judicial confession as deposed by PW4. PW4 in her cross-examination  deposed
that she narrated the said extra-judicial confession of the accused  to  her
father PW3. PW3 also came to know  that his son  (deceased)  had  gone  with
the accused to a wet party. There arises doubt upon the conduct of  PW3  who
knew that his son was missing since 16.01.2001 and he also heard  of  extra-
judicial confession of the accused, yet he did not report to the police.

This Court in Bodhraj v. State of J & K, (2002) 8 SCC 45, held that:
“31. The last seen theory comes into play where the gap  between  the  point
of time when the accused and the deceased were last seen alive and when  the
deceased is found dead is so small that  possibility  of  any  person  other
than the accused being the author of the crime becomes impossible.”



Reiterating the above ratio, this Court recently in Krishnan @ Ramasamy  and
Others v. State of Tamil Nadu, (2014) 12 SCC 279, held that:

“23. There is unexplained delay of six days  in  lodging  the  FIR.  As  per
prosecution story the deceased Manikandan  was  last  seen  on  4-4-2004  at
Vadakkumelur Village during Panguni Uthiram Festival at  Mariyamman  Temple.
The body of the deceased was taken from the borewell  by  the  fire  service
personnel after more than seven days. There is no  other  positive  material
on record to show that the deceased was last seen together with the  accused
and in the intervening period of seven days  there  was  nobody  in  contact
with the deceased.”


It will be hazardous to come to a conclusion of guilt in cases  where  there
is no other positive evidence to conclude  that  the  accused  and  deceased
were last seen together.

The prosecution story relies upon the ‘last  seen  together’  theory,  which
resulted into the death of Ganesh. This Court has time and again  laid  down
the ingredients to be made out by the prosecution to prove  the  ‘last  seen
together’ theory. The Court for the purpose of arriving at a finding  as  to
whether  the  said  offence  has  been  committed  or  not,  may  take  into
consideration the circumstantial evidence. However, while doing so, it  must
be borne in mind that close proximity between the  last  seen  evidence  and
death should be clearly established. Yet,  the  prosecution  has  failed  to
prove the evidence which establishes the ‘last seen together’ theory  beyond
reasonable doubt to prove the guilt of the accused. The  prosecution  merely
proved the motive which could have  compelled  the  accused,  and  that  the
accused went to the bar with one other person,  but  the  identity  of  that
other person is not clearly  established  at  all.  The  post-mortem  report
fails to specify any approximate time of death and in light of the  recovery
of the dead body on 20.01.2001, after 4 days,  which  is  not  a  small  gap
since the deceased disappeared on 16.01.2001,   it  is  not  appropriate  to
convict the accused when his role is not firmly established.

Thus, in the light of the above discussion, we are  of  the  view  that  the
present appeal is devoid of merits, and we  find  no  grounds  to  interfere
with the judgment passed by the High  Court.  The  appeal  is,  accordingly,
dismissed.

                                 ….........................................J
                                    (Pinaki Chandra Ghose)


                                  …........................................J
                                     (R.K. Agrawal)

New Delhi;


September 18, 2015.

The charge under Section 376 of the Indian Penal Code was framed against the respondent. The respondent pleaded not guilty and claimed trial. After examining the witnesses and after hearing the counsel for the parties, the Trial Court found that the charge was proved beyond reasonable doubt. The Trial Court found the age of the prosecutrix to be less than 16 years, in which case the question of consent did not arise and the respondent having committed rape on a girl of less than 16 years of age, the offence clearly fell within the parameters of rape under Section 376 of IPC. Consequently, the respondent was convicted for the charge and was sentenced to seven year rigorous imprisonment by the Trial Court by its judgment and order dated 30.07.1994.From the X-ray report of the ossification test, the doctor opined that the age of the prosecutrix could not be more than 14 years. However, since the doctor was never examined, the X-ray report is not sufficient to prove the age of the prosecutrix. The prosecutrix was examined as PW5 but the prosecution failed to question the prosecutrix on her age, therefore no fact could be gathered from her regarding the issue of age. PW6 Malti Devi mother of the prosecutrix was examined where she stated the age of prosecutrix to be 13 years. However, in her cross-examination, she stated that her marriage was performed about 20 years ago and after two years of her marriage the elder daughter (Sunita) was born, and 2-3 years thereafter the prosecutrix was born. It means that the prosecutrix was aged about 15- 16 years at the time of the incident. But this is not sufficient to come to any conclusion about the exact age of the prosecutrix. It appears that the Ossification Test X-ray report is not sufficient to prove the age of the girl. Further, the mother of the prosecutrix also was not able to give the exact age of the prosecutrix. No question was also asked to the prosecutrix by the prosecution about her age. Taking into account all these facts, the High Court correctly came to the conclusion that the prosecution has totally failed to prove beyond reasonable doubt that the girl was less than 16 years of age at the time of the incident. Therefore, the High Court presumed that the girl was more than 16 years of age and was competent to give her consent. In a criminal case, the conviction of the appellant cannot be based on an approximate date which is not supported by any record. It would be quite unsafe to base conviction on an approximate date.” In view of the evidence on record and the rationale in the aforementioned cases, we are of a considered view that the prosecution has totally failed to prove beyond reasonable doubt that the girl was less than 16 years of age at the time of the incident. Therefore, it can be held that the girl was more than 16 years of age and she was competent to give her consent as held by the High Court. Hence, in the present case, the question of rape does not arise as consensual intercourse has been proved.

                                                              NON REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
                      CRIMINAL APPEAL NO. 658  OF 2011
STATE OF MADHYA PRADESH                      APPELLANT
                                   VERSUS
MUNNA @ SHAMBHOO NATH                        RESPONDENT


                                  JUDGMENT
Pinaki Chandra Ghose, J.
This appeal, by special leave,  is directed against the judgment  and  order
dated 14th August, 2008 passed by  the  High  Court  of  Madhya  Pradesh  at
Jabalpur in Criminal Appeal No.776 of  1994, whereby the High Court  allowed
the criminal appeal filed by the respondent herein and acquitted him.

The brief facts necessary to dispose of this appeal are that the  family  of
the prosecutrix (PW5) was the tenant of  the  father  of  the  accused.   As
per     the     prosecution     story,     on    5th    May,    1991,    the
                                                   prosecutrix,  aged  about
13 years, was sleeping in the night with her mother in the corridor  of  her
house. At about 4:30 am, the respondent-accused entered into  the  house  of
the prosecutrix, took her to the adjoining  room  at  the  point  of  knife,
bolted the door and committed rape on her. After committing the offence  the
accused and the prosecutrix remained in that room.  Thereafter,  the  mother
and  sister  of  the  prosecutrix  came  to  that  room  in  search  of  the
prosecutrix and when the door was opened, the accused-respondent fled  away.
The prosecutrix lodged the FIR at  Garha  Police  Station  after  which  the
Investigating Officer sent the prosecutrix for medical  examination  wherein
the report was handed over by Dr.  Nisha  Sahu.  The  Investigating  Officer
received the date of birth of the prosecutrix.  The  respondent-accused  was
arrested on 6th May, 1991. The Ossification  Test  of  the  prosecutrix  was
conducted and the report was proved in the present case.

The charge under Section 376 of the Indian Penal  Code  was  framed  against
the respondent. The respondent pleaded not guilty and claimed  trial.  After
examining the witnesses and after hearing the counsel for the  parties,  the
Trial Court found that the charge was proved beyond  reasonable  doubt.  The
Trial Court found the age of the prosecutrix to be less than  16  years,  in
which case the question of consent did not arise and the  respondent  having
committed rape on a girl of less than 16 years of age, the  offence  clearly
fell within the parameters of rape under Section 376 of  IPC.  Consequently,
the respondent was convicted for the charge and was sentenced to seven  year
rigorous imprisonment by the Trial Court by its  judgment  and  order  dated
30.07.1994.

Being aggrieved by the judgment and order dated 30.07.1994,  passed  by  the
Trial Court, the respondent preferred Criminal Appeal No.776 of 1994  before
the High Court of Madhya Pradesh. The  High  Court  found  that  the  school
certificate was not proved without doubt. The medical evidence  relied  upon
by the Trial Court was  disbelieved by the High  Court  as  the  doctor  who
conducted the ossification test was not examined.  X-ray  report  containing
the opinion of the doctor was also disbelieved by the High Court as  it  was
merely technical opinion and the doctor was not produced for examination  by
the Trial Court. The pivotal fact for overturning the judgment of the  Trial
Court was the deposition  made  by  PW6  i.e.  Malti  Devi,  mother  of  the
prosecutrix where she stated that in the  morning  when  she  saw  that  the
prosecutrix was not lying with her,  she  and  her  elder  daughter  started
searching the prosecutrix and when they opened the door of  the  room,  they
found that the accused was standing with the prosecutrix  behind  the  bags.
The  High  Court,  therefore,  allowed  the  said  appeal,   set-aside   the
conviction of the respondent and acquitted him of the charge  under  Section
376 IPC.

The State is  thus  before  us  in  appeal  against  the  acquittal  of  the
respondent. The learned counsel appearing for the  State  has  attacked  the
judgment of acquittal passed by the  High  Court,  mainly  on  two  grounds.
First is whether the sexual intercourse was consensual; and second,  whether
the age of the prosecutrix was below 16 years.

The High  Court  while  setting  aside  the  Trial  Court  judgment  rightly
appraised the evidence on record and held that the  sexual  intercourse  was
consensual. In her statement the  prosecutrix  (PW5)  states  that  she  was
sleeping between her mother and brother and  the  accused  had  reached  her
after hopping over them and he dragged her into another room  on  the  point
of a knife. However, sneaking in with such ease is highly doubtful. Even  if
the accused made it through to the prosecutrix, it seems unnatural that  the
prosecutrix was not alarmed by the knife upon being awaken from  her  sleep.
It is also to be noted that  the  prosecution  never  recovered  any  knife.
Further examination of the  statement  of  PW5  that  the  accused  and  the
prosecutrix remained in the room for couple of hours and it  was  only  when
her mother and elder sister came searching for her that the prosecutrix  was
found in the room with the  accused,  hiding  behind  the  bags.  The  above
narration leads to the inference  that  the  prosecutrix  was  a  consenting
party.

Section 375 (as it stood before the Criminal Law  Amendment  Act,  2013)  of
the Indian Penal Code, 1860 states –

“A man is said to  commit  ‘rape’   who,  except  in  the  case  hereinafter
excepted, has sexual intercourse with a woman  under  circumstances  falling
under any of the six following descriptions:-
…     …     …    …     …
Sixthly – With or without her consent, when she is under  sixteen  years  of
age...”

In light of the aforementioned provision, the  second  issue  regarding  the
determination of age of the prosecutrix is crucial to establish whether  the
respondent is liable for rape or not.

To prove its case,  the  prosecution  produced  evidences  including  school
certificate, opinion of the doctor who conducted medical examination of  the
prosecutrix, bone ossification test, but the High Court held  that  none  of
them could bring home the case of the prosecution. The prosecution  produced
school certificate of the prosecutrix and examined  the  Principal  of  Babu
Manmohandas Hitkarini Girls Higher Secondary School, Dixitpura (PW1),  where
the prosecutrix studied in her 9th standard. In his  cross-examination,  PW1
stated that the age of the prosecutrix was noted at the  time  of  admission
but he had no knowledge about the fact as to what date of birth  would  have
been mentioned in her letter of  declaration.  The  examination-in-chief  of
PW8 (Dr. Nisha  Sahu)  does  not  support  the  prosecution  story.  In  her
opinion, the girl could not have attained the age of 14 years,  but  further
in her examination-in-chief  and  cross-examination,  she  stated  that  she
could not opine about the present intercourse. Other  findings  of  PW8  are
mere opinions and cannot be relied upon completely to  establish  the  guilt
of the accused.

From the X-ray report of the ossification test, the doctor opined  that  the
age of the prosecutrix could not be more than 14 years. However,  since  the
doctor was never examined, the X-ray report is not sufficient to  prove  the
age of the  prosecutrix.  The  prosecutrix  was  examined  as  PW5  but  the
prosecution failed to question the prosecutrix  on  her  age,  therefore  no
fact could be gathered from her regarding the issue of age. PW6  Malti  Devi
mother of  the  prosecutrix  was  examined  where  she  stated  the  age  of
prosecutrix to be 13 years. However, in her  cross-examination,  she  stated
that her marriage was performed about 20 years ago and after  two  years  of
her marriage the elder daughter (Sunita) was born, and 2-3 years  thereafter
the prosecutrix was born. It means that the prosecutrix was aged  about  15-
16 years at the time of the incident. But this is not sufficient to come  to
any conclusion about the exact age of the prosecutrix.  It appears that  the
Ossification Test X-ray report is not sufficient to prove  the  age  of  the
girl. Further, the mother of the prosecutrix also was not able to  give  the
exact age of the prosecutrix. No question was also asked to the  prosecutrix
by the prosecution about her age. Taking into account all these  facts,  the
High Court correctly  came  to  the  conclusion  that  the  prosecution  has
totally failed to prove beyond reasonable doubt that the girl was less  than
16 years of age at the time of  the  incident.  Therefore,  the  High  Court
presumed that the girl was more than 16 years of age and  was  competent  to
give her consent.

This Court in the case of Birad Mal Singhvi v. Anand Purohit,  (1988)  Supp.
SCC 604, has held:

“17. ...the entries regarding dates of  birth  contained  in  the  scholar’s
register and the secondary school examination have no  probative  value,  as
no person  on  whose  information  the  dates  of  birth  of  the  aforesaid
candidates were mentioned in the school record was examined.”

Further it was held by this Court in the case of Sunil v. State of  Haryana,
(2010) 1 SCC 742 that –
“26. ………… In a criminal case, the conviction  of  the  appellant  cannot  be
based on an approximate date which is not supported by any record. It  would
be quite unsafe to base conviction on an approximate date.”
In view of the evidence on record and the rationale  in  the  aforementioned
cases, we are of a considered view that the prosecution has  totally  failed
to prove beyond reasonable doubt that the girl was less  than  16  years  of
age at the time of the incident. Therefore, it can be  held  that  the  girl
was more than 16 years of age and she was competent to give her  consent  as
held by the High Court. Hence, in the present case,  the  question  of  rape
does not arise as consensual intercourse has been proved.

Thus, in the light of the above discussion, we are  of  the  view  that  the
present appeal is devoid of any merit, and we find no  ground  to  interfere
with the judgment passed by the High  Court.  The  appeal  is,  accordingly,
dismissed.

                                      …....................................J
                                                           (Pinaki Chandra
                                   Ghose)




                                       …...................................J
                                                               (R.K.
Agrawal)

New Delhi;


September 18, 2015.

Time Schedule - The Essentiality Certificate and the consent of affiliation were admittedly not annexed along with the application filed under Section 10A of the said Act. According to the petitioner, the Essentiality Certificate was issued on 28.8.2014 and the consent of affiliation was communicated on 30.8.2014. After about 10 days i.e. 10.9.2014, the petitioner submitted Essentiality Certificate and Certificate of Affiliation. The application so submitted by the petitioner was, however, rejected on 15.10.2014 on the ground that the certificates aforesaid were not submitted before the cut-off date i.e. 31.8.2014. By the said order, the petitioner was given liberty to apply for the next academic year. In the facts and circumstances of the case, no directions can be issued to the respondent to consider the case of the petitioner-college for the academic year 2015-2016 and 2016-17, since the matter is yet to be decided by the Central Government. However, we do not express any opinion with regard to the recommendation made by the Council to the Central Government disapproving the scheme for the academic year 2016-2017 also. Hence, it is for the petitioner to move the appropriate forum as against the decision of disapproval for the academic year 2016-2017.

                                                                  REPORTABLE

                         IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION


              SPECIAL LEAVE PETITION (CIVIL) NO. 14838 OF 2015


POONAIYAH RAMAJAYAM INSTITUTE
OF SCIENCE AND TECHNOLOGY TRUST      …….. PETITIONER(S)

                            VERSUS

MEDICAL COUNCIL OF INDIA AND ANOTHER ……. RESPONDENT(S)



                                  O R D E R

M.Y. EQBAL, J.
      We have heard Dr. Rajeev Dhawan, learned senior counsel appearing  for
the petitioner and Mr. Vikas Singh, learned  senior  counsel  appearing  for
Respondent No.1 – Medical Council of India (MCI).

2.    Aggrieved by the judgment and order dated 5th May, 2015 passed by  the
Division Bench of the Delhi High Court  in  L.P.A.  No.  234  of  2015,  the
petitioner filed this special leave petition.

3.    By the impugned judgment, the Division Bench allowed the appeal  filed
by the respondent-Medical Council  of  India  and  set  aside  the  judgment
passed by the learned Single Judge in the Writ Petition.

4.    Indisputably, the petitioner submitted application, as required  under
Section 10A of the Medical Council of India Act, 1956 (hereinafter  referred
to as 'the Act') for establishment of new medical college for  the  academic
year  2015-2016.   The  Essentiality  Certificate   and   the   consent   of
affiliation were admittedly not annexed along  with  the  application  filed
under Section 10A of  the  said  Act.   According  to  the  petitioner,  the
Essentiality  Certificate  was  issued  on  28.8.2014  and  the  consent  of
affiliation was  communicated  on  30.8.2014.   After  about  10  days  i.e.
10.9.2014,   the   petitioner   submitted   Essentiality   Certificate   and
Certificate of Affiliation.  The application so submitted by the  petitioner
was, however, rejected on 15.10.2014 on the  ground  that  the  certificates
aforesaid were not submitted before the cut-off  date  i.e.  31.8.2014.   By
the said order, the petitioner was given  liberty  to  apply  for  the  next
academic year.

5.    Against the aforesaid order,  the  petitioner  moved  the  Delhi  High
Court by filing Writ Petition being Writ Petition No.  7424  of  2014.   The
learned Single Judge, after hearing the parties, by judgment dated  8.4.2015
allowed the Writ Petition and directed  the  Medical  Council  of  India  to
consider the application of the petitioner and make recommendations.

6.    The respondent-Medical Council of India assailed  the  impugned  order
passed by the learned Single Judge by filing a  Writ  Appeal  being  Letters
Patent Appeal No. 234 of 2015.  The Division Bench,  by  a  reasoned  order,
allowed the appeal and set aside  the  judgment  and  order  passed  by  the
learned  Single  Judge.   The  Division  Bench  rejected  the  plea  of  the
petitioner based on the need for medical assistance in the country  and  the
resulting disuse of the infra structure for one year.  The  petitioner-Trust
dissatisfied with the order passed by the Division Bench, filed the  instant
special leave petition.

7.    The matter was firstly heard on 15th July,  2015  by  this  Bench  and
after taking note of the facts of the case and sequence of events,  disposed
of the application with a direction to  the  respondent-Medical  Council  of
India to consider the petitioner’s application and make  its  recommendation
within a period of three weeks from that day.  The matter  was  directed  to
be listed after four weeks  to  enable  the  respondent-Medical  Council  of
India to submit the recommendation in a sealed cover.

8.    The relevant portion of the order dated 15th July, 2015 is  reproduced
herein below:-
“4.   Indisputably, the petitioner as far back  as  on  25.8.2014  submitted
application as required under Section 10A  of  the  Indian  Medical  Council
Act,  1956  for  the  establishment  of  the  Institute.   The  Essentiality
Certificate was issued by the State of Tamil Nadu only  on  28.8.2014.   The
said communication was received by the petitioner only in the  1st  week  of
September, 2014.  Similarly, the Tamil Nadu MGR University  granted  Consent
of Affiliation for starting  of  MBBS  Degree  course  in  the  new  medical
college.  On receipt of this communication, the  petitioner  immediately  on
10.9.2014   submitted   Essentiality   Certificate   and   Certificate    of
Affiliation.  Curiously enough after about a month, the  respondent  no.2  –
Central Government rejected the application on the ground that  Essentiality
Certificate was not submitted before the cut-off date i.e. 31.8.2014.
5.    Aggrieved by the said rejection of application, the  petitioner  filed
writ petition being W.P. No.7424 of 2014.  The learned Single Judge  of  the
High Court by a detailed judgment and order allowed the  writ  petition  and
directed the respondent no.1 MCI to consider the  case  of  the  petitioner.
Instead of doing so, the respondent no.1  being  dissatisfied  assailed  the
said judgment of the learned Single Judge by filing writ appeal.   The  said
appeal was heard and disposed of on 5th  May,  2015.   The  Division  Bench,
after giving reasons, refused to uphold the direction issued by the  learned
Single  Judge  for  processing  the  application  of  the   petitioner   and
consequently the direction was set aside.

6.    From the aforesaid facts narrated in brief, we do not find any  fault,
laches or negligence from the side  of  the  petitioner  in  the  matter  of
submission of application and other required documents.  As  noticed  above,
although the Essentiality Certificate and Certificate  of  Affiliation  were
filed on 10.9.2014, but after  a  month  application  was  rejected  by  the
Central Government merely on the ground that  the  same  was  not  submitted
before the cut-off date i.e. 31.8.2014.  This reason given  by  the  Central
Government is highly  unjustified.   The  Division  Bench  in  the  impugned
judgment also took note of the fact and  held  that  the  rejection  of  the
application merely on the ground that the said documents were not  submitted
along with application would not be  proper  since  such  pedantic  approach
serve no purpose.  For better appreciation, paragraph  39  of  the  impugned
judgment is quoted hereinbelow:

“39. However, when the deficient documents are available  with  the  Central
Government  as  on  the  date  of  consideration  of  the  applications  for
reference to the MCI for  their  recommendations,  it  appears  to  us  that
nothing precludes the Central Government to  consider  the  applications  on
merits. Rejection of the applications in such circumstances  merely  on  the
ground  that  the  said  documents  were  not  submitted  along   with   the
applications may not be proper since such pedantic approach does  not  serve
any purpose.  Therefore,  we  too  agree  that  the  Central  Government  in
appropriate cases may exercise the discretion in favour  of  the  applicants
and consider the applications which are complete  in  all  respects  by  the
date  of  consideration  under  Section  10A(2)  of  the   MCI   Act.   Such
consideration in our considered opinion cannot be  found  fault  with  since
the same would not affect the adherence  to  the  statutory  time  schedule.
However, the question with which we are concerned in  the  present  case  is
whether the failure of the Central Government to  exercise  such  discretion
can be held to be erroneous and contrary  to  law  and  whether  a  positive
direction can be issued by this court to consider the  applications  of  the
petitioners particularly at the fag end of the statutory time schedule.”

7.    Prima facie, therefore, we are of the  view  that  in  the  facts  and
circumstances of the case, the respondents have not  discharged  their  duty
in accordance with the provisions of  the  Act  and  Rules  made  thereunder
rather acted in a biased manner.

8.    We, therefore, dispose of this application with  a  direction  to  the
respondent Medical Council of India to consider  the  application  and  make
its recommendation within a period of three weeks from today.

9.    Let the matter be listed after four weeks to  enable  the  respondents
to submit the recommendation in a sealed cover.”

9.    In compliance  of  the  aforesaid  direction,  the  respondent-Medical
Council of India conducted inspection and submitted its report in  a  sealed
cover.  Thereafter the matter was again listed before us for hearing.

10.    Dr.  Rajeev  Dhawan,  learned  senior  counsel  appearing   for   the
petitioner, assailed the impugned report submitted by  the  Medical  Council
of India on various  grounds  including  that  the  same  is  arbitrary  and
biased.
11.   Dr. Rajeev Dhawan has drawn our attention  to  the  Inspection  Report
and submitted that as a matter of fact, the Medical  Council  of  India  was
fully aware that the inspection was carried out for the academic year  2015-
2016 and, therefore, there is no reason why the petitioner-Trust  shall  not
be granted permission for the academic year 2015-2016.  Dr.  Dhawan  further
drawn our attention to the decision rendered  by  a  three-Judges  Bench  of
this Court in the case of Royal Medical Trust (Regd.) and Another vs.  Union
of India and Another, reported in 2015 (9) SCALE 68, and submitted that  the
respondent-Medical Council of India  totally  failed  in  the  discharge  of
their duties and acted in  a  totally  biased  manner.  Dr.  Dhawan  further
submitted that the decision of Medical  Council  of  India  recommending  to
cancel the prayer for approval not only for the academic year 2015-2016  but
also for the academic year 2016-2017 is wholly illegal and  arbitrary.   The
petitioner,  therefore,  reserves  its   right   to   challenge   the   said
recommendation before the appropriate forum in accordance with law.

12.   On the other hand, Mr. Vikas Singh, learned senior  counsel  appearing
for the respondent-Medical Council of India,  drawn  our  attention  to  the
inspection report submitted by the Medical Council of  India  and  contended
that in addition to various deficiencies  which  are  not  remediable,  fake
faculty was also found in the said Institution.

13.   Mr. Vikas Singh further  submitted  that  the  instant  special  leave
petition was heard along with Special Leave Petition (Civil)  No.  15043  of
2015 titled as Padmashree Dr. D.Y.  Patil  Medical  College  versus  Medical
Council of India and Another and in the similar facts and  circumstances  of
the case, this Court,  by  a  reasoned  judgment  dated  31st  August,  2015
dismissed the special leave petition mainly after considering the  statutory
time schedule which is already over and held that no positive direction  can
be issued for the academic year 2015-2016.

14.   Before we consider the rival contentions made by the learned  counsel,
we would like to  refer  the  report  and  the  decision  of  the  executive
committee of MCI dated 5.8.2015 in compliance to our order dated  15.7.2015.
 From the said report, it  reveals  that  the  executive  committee  of  the
council  considered  the  council’s  assessment  report   and   noted   many
deficiencies. Some of the major deficiencies are extracted hereinbelow:-
“1) Deficiency of teaching faculty is 83% as detailed in the report.
2)  Shortage of residents is 100% as detailed in the report.
4)  As many as 42 Senior/Junior Residents as detailed  in  the  report  have
provided wrong information in the Declaration Form regarding  address  proof
as during  round it was found that no staff  member/faculty/resident  doctor
is staying/residing in the staff quarters/residents’ hostel in the campus;
6). OPD: Attendance was 150-175  on  day  of  assessment  which  is  grossly
inadequate. Institute has given figure of 707 which is inflated.   When  the
assessors arrived in the morning,  few  patients  were  found.   After  some
time, during rounds, around 150  people  were  found  sitting  in  front  of
registration counters,  with  only  3-4  patients  actually  registering  at
counters.  When visited again in the afternoon, the same people  were  found
sitting there without any intention of registering  at  OPD  counter.   Many
patients in the  OPD  were  having  very  minor/fake  complaints  for  which
normally  no  person  will  come  to  the  hospital.   In  departmental  OPD
registers, no information regarding admitted patients was given. In  Medical
OPD, at 1 p.m., 61 patients were claimed to have been  seen  but  there  was
not a single patient was admitted.   There  was  no  display  board  of  OPD
timings, doctor’s name, Unit information.
7).   There was NIL patient in Casualty on day of assessment.
12).  There were NIL Major & Minor operations in  the  hospital  on  day  of
assessment.
13).  There  were  NIL  Normal  Delivery  &  Caesarean  Section  on  day  of
assessment.
16).  MEU: It is not furnished.
24).  ICUs: There was NIL patient in ICCU &  SICU  and  only  1  patient  in
NICU/PICU on day of assessment.
31).  There is Engineering college in the same campus.  Engineering books  &
instruments were found in some rooms  of  medical  college  hostel/quarters.
It appears as if the hostels  &  quarters  shown  for  Medical  College  are
actually used by Engineering College.
32).  Dean has refused to sign the report after reading it for  1  hour  due
to instruction from the management.
33).  Other deficiencies as pointed out in the assessment report.”


15.    The  executive  committee,  therefore,  decided   to   apply   clause
8(3)(1)(d) of the Establishment of Medical College  Regulation  (Amendment),
2010 and further  decided to return the application for establishment  of  a
new  Medical  College  of  the  petitioner   to   the   Central   Government
recommending disapproval of the scheme under Section 10A of  IMC  Act,  1956
for the academic year 2015-2016 and 2016-2017.

16.   Indisputably, now it is for  the  Central  Government  to  approve  or
disapprove and to take a final decision  on  the  report  of  the  executive
committee of the Council.

17.   The crucial question that falls for consideration  is  as  to  whether
this Court having regard to the facts of the case and the decision taken  by
the Council, which is not even looked into by the Central  Government,  this
Court can issue any direction to consider the grant  of  permission  to  the
petitioner for the academic year 2015-2016.

18.   Another Special Leave Petition being SLP (C) No.  15043  of  2015  was
heard along with this case at the preliminary stage and decided by  judgment
dated 31.08.2015, in which one of us (M.Y. Eqbal, J.) was a  member  of  the
Bench.   In that case, this Court elaborately discussed  the  time  schedule
which has to be strictly adhered and followed in catena of decisions.  After
discussing the ratio laid down in number of cases, the Bench observed:-


“20. On an analysis of the aforesaid decisions, it  is  crystal  clear  that
the time schedule is required to be strictly observed. Hence, it  would  not
be appropriate to issue any  direction  for  consideration  of  petitioner’s
case for the ongoing academic session 2015-16 in which inspection is yet  to
be made. It is too late in the day to  direct  inspection  for  the  session
2015-16 as all the dates fixed in the time schedule are  over  and  fixation
of time schedule has a purpose behind it and  from  a  particular  date  the
session has to commence and part of seats to  be  filled  by  a  competitive
examination held on all-India basis. Any relaxation  in  the  time  schedule
would make holding of examinations  on  an  all  India  basis  a  farce  and
several complications would  arise.  Everything  cannot  be  allowed  to  go
haywire. The entire curriculum would be unsettled in  case  breach  of  time
schedule is permitted. The power given to Central Government  to  relax  can
be exercised in exceptional circumstances and that  too  without  disturbing
the academic session.  The  decision-making  process  after  inspection  has
various steps and it cannot be ordered to be done in haste resulting in sub-
standard education and half-baked doctors.

21. On behalf of the petitioner, reliance has been placed on a  decision  of
this Court in S.L.P. [C] No.14838/2015 – Ponnaiyah  Ramajayam  Institute  of
Science and Technology Trust v. Medical Council of India & Anr. (decided  on
15.7.2015) wherein this Court has directed the inspection to be made and  to
submit the recommendation in a sealed cover after four weeks to this  Court.
No doubt about it that the application which was filed was for the  academic
session 2015-16  but  this  Court  has  not  decided  the  question  whether
inspection would enure for the benefit of the ongoing academic session 2015-
16 and in case on inspection it is decided  to  recommend  the  prayer  made
whether it would be for academic year 2016-17 or  for  the  ongoing  session
2015-16 and also question of breach of time  schedule.  What  has  not  been
decided, cannot be  deduced  by  inferential  process.  What  would  be  the
ultimate recommendation on inspection, can  also  not  be  anticipated.  The
requisite Committee of the MCI and Central  Government  have  to  ultimately
consider  the  report/recommendations.  Various   aspects   including   time
schedule are required to be taken into consideration  for  issuance  of  any
positive direction as to session.
                                   Xxxxxx

23. Considering the statutory time schedule and that  the  same  is  already
over and in the facts and  circumstances  of  the  case,  it  would  not  be
appropriate to direct inspection to be made and thereafter a decision to  be
taken for the current academic session 2015-16 as that would  be  in  breach
of the law laid down in various decisions of this Court  which  is  binding.
Thus, we direct that  the  application  which  has  been  submitted  by  the
college for  the  academic  session  2015-16  be  considered  for  the  next
academic session, subject to fulfilment of other requisite  formalities,  as
may be necessary, and thereafter the MCI shall conduct an  inspection  well-
in-time as per the time schedule fixed under the Regulations  of  1999.  The
Special  Leave  Petition  is  dismissed  with  the  aforesaid  modification.
Ordered accordingly”



19.   In the facts and circumstances of  the  case,  no  directions  can  be
issued to the respondent to consider the case of the petitioner-college  for
the academic year 2015-2016 and 2016-17, since  the  matter  is  yet  to  be
decided by the Central Government.  However, we do not express  any  opinion
with regard to the  recommendation  made  by  the  Council  to  the  Central
Government disapproving the scheme for the  academic  year  2016-2017  also.
Hence, it is for the petitioner to move the  appropriate  forum  as  against
the decision of disapproval for the academic year 2016-2017.

20.   With the aforesaid directions and  observations,  this  special  leave
petition stands disposed of.



                                                  ........................J.
                                                    (M.Y. EQBAL)



                                                 .........................J.
                                 (C. NAGAPPAN)
New Delhi,
September 17, 2015

Sections 7 and 13 of the P.C.whether having regard to the facts and circumstances of the case, any case is made out by the appellant to call for any interference in the quantum of punishment awarded to him by the two courts below and if so, to what extent. = Taking into consideration the totality of the facts and circumstances of the case, such as firstly, the incident is of 1995; secondly, this litigation is pending for the last 20 years; thirdly, the appellant is now quite old and suffering with ailments; fourthly, he has already lost his job, we consider it just and proper, in peculiar facts of this case, to reduce the punishment awarded to the appellant from two years to that of one year. Since at the relevant time when the offence was committed by the appellant, the minimum punishment prescribed in Sections 7 and 13 was six months and one year respectively, which may extend to five years and seven years respectively hence this Court can reduce the punishment of 2 years awarded to the appellant to one year notwithstanding the amendment made in Sections 7 and 13 by Act No. 1 of 2014 (w.e.f.16.01.2014) which, in our view, will not apply to the case of the appellant in the light of Article 20 of the Constitution of India.

                                                              Non-Reportable
                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                      CRIMINAL APPEAL No. 1230 OF 2015
                (Arising out of S.L.P.(Crl.)No.5747 of 2015)


Kiran Chander Asri                           Appellant(s)

                             VERSUS

State of Haryana                        Respondent(s)

                                  O R D E R
Abhay Manohar Sapre, J.
Leave granted.
This appeal is directed against the final order dated 28.05.2015  passed  by
the High Court of Punjab and Haryana at Chandigarh in  Criminal  Appeal  No.
CRA-S-1070-SB of 2005 whereby the learned Single Judge  of  the  High  Court
dismissed the appeal filed by the appellant herein and  affirmed  the  order
dated 04.06.2005 passed by the Special Judge, Sonepat in Sessions  Case  No.
10 of 1999/2005 by which the Special Judge  convicted  the  appellant  under
Sections 7 and 13 of the Prevention of  Corruption  Act,  1988  (hereinafter
referred to as “the  P.C.  Act”)  and  sentenced  him  to  undergo  rigorous
imprisonment for a period of two  years  and  a  fine  of   Rs.1000/-  under
Section 7 and rigorous imprisonment of two years and  a  fine  of  Rs.2000/-
under Section 13 of the P.C. Act.  In default of payment of fine,  he  shall
undergo further rigorous imprisonment of six  months.   Both  the  sentences
shall run concurrently.
3.    In order to appreciate the  issue  involved  in  this  appeal,  it  is
necessary to state the relevant facts in brief.
4.    On  12.08.1978,  the  appellant  joined  as  Lecturer  in  English  in
Education Department, Government of Haryana and was later selected as  Block
Development and Panchayat Officer and joined as such on 21.04.1993.
5.    In the year 1995, the appellant was posted as  Block  Development  and
Panchayat Officer Mundlana.   By  letter  dated  26.10.1994,  the  Director,
Development and Panchayats, Haryana issued instructions to  all  the  Deputy
Commissioners in the State of Haryana that no auction of village fish  ponds
should be done without adequate advertisement and  secondly,  it  should  be
done under  the  supervision  of  the  Committee  after  following  the  due
procedure of reserved price fixation by Fisheries Department.
6.     The Gram Panchayat  of  Mundlana  village  passed  a  resolution  for
auction of fish ponds in the  village  and  sent  it  for  approval  to  the
appellant,  who  fixed  the  auction  for  15.03.1995.   On  that  day,  the
appellant did not go to the village but deputed the Panchayat  Officer,  who
auctioned only the Panchayat land and refused to  auction  the  fish  ponds.
Thereafter the auction of the fish ponds was fixed for 22.03.1995.  On  that
day also due to the absence of the appellant, the  auction  could  not  take
place.  Thereafter  when   Ranbir  Singh  –  the  Sarpanch  of  the  Village
(Complainant) met the appellant, he demanded Rs.2000/- as bribe  to  conduct
the auction. The Complainant, however, expressed his inability  to  pay  the
bribe amount. The  appellant  then  negotiated  the  amount  of  bribe.   On
22.03.1995,  again  the  appellant  did  not  go  to  Mundlana  Village  and
postponed the auction for 06.04.1995 but at that time he  clearly  told  the
Complainant that so long as the bribe money is not paid to him, the  auction
would not be held.
7.    On 04.04.1995, the Sarpanch filed an application to  the  S.P.,  State
Vigilance Bureau (in short “SVB”),  Karnal  stating  therein  the  aforesaid
facts.  On receipt of the application, Mr.  M.S.  Ahlawat,  the  then  S.P.,
SVB, Karnal (in  short  “Investigating  Officer”)  wrote  a  letter  to  the
Government seeking permission to arrange the raid.  On  06.04.1995,  he  got
the permission from the Government to carry out  the  raid.   Thereafter  he
wrote a letter to the Deputy Commissioner, Sonepat to  depute  one  Gazetted
Officer for being joined in the raiding party.  As per the direction of  the
Deputy Commissioner, Mr. Ram  Mehar,  Xen,  Irrigation  joined  the  raiding
party.
8.    On 07.04.1995, the raiding party went to the office of the  appellant.
 Hari Chand, the Inspector was deputed as a shadow  witness  and  instructed
to give a  fixed  signal  by  moving  his  hand  over  the  head  after  the
acceptance of the bribe money by the appellant The Sarpanch-the  Complainant
and shadow witness went  to  the  office  of  the  appellant  and  after  10
minutes, the shadow witness passed the signal upon which the  raiding  party
went inside the office of the appellant and saw  him  putting  something  in
the  drawer.   The  Investigating  Officer  gave  his  introduction  to  the
appellant, who after some persuasion opened the  drawer  and  took  out  the
bribe money and handed over the same to the  Investigating  Officer.   After
that, the appellant was taken into custody.
9.    On that basis FIR No. 11 dated 07.04.1995  was  registered  at  Police
Station Vigilance Bureau, Karnal against the appellant under  Sections  7  &
13 of the P.C. Act.
10.   After completion of investigation, challan was submitted  against  the
appellant before the Special Court  to  face  the  trial.   The  prosecution
examined  ten  witnesses  and  in  defence,  the  appellant  examined  three
witnesses.
11.   Vide order dated 04.06.2005 the Special  Judge,  Sonepat  in  Sessions
Case No. 10 of 1999/2005 convicted the appellant under Sections 7 and 13  of
the P.C. Act and sentenced  him  to  undergo  rigorous  imprisonment  for  a
period of two years and a fine of  Rs.1000/- under Section  7  and  rigorous
imprisonment of two years and a fine of Rs.2000/- under Section  13  of  the
P.C. Act.  In default of payment of fine, he shall undergo further  rigorous
imprisonment of six months.  Both the sentences shall run  concurrently.  It
was held that the prosecution was able to prove beyond reasonable doubt  the
demand and acceptance of bribe money of Rs.2000/- by the appellant.
12.   Challenging the order of conviction and sentence, the appellant  filed
an appeal being CRA-S-1070-SB of 2005 before the High  Court.  By   judgment
dated 28.05.2005, the learned Single Judge of the High Court concurred  with
the findings of the Special  Judge  and  finding  no  merit,  dismissed  the
appeal and upheld the order passed by the Special Judge.
Aggrieved by the said  judgment,  the  appellant–  accused  has  filed  this
appeal by way of special leave.
14.   It is pertinent to mention here that by order  27.07.2015  this  Court
issued notice  to  the  respondent  only  on  the  question  of  quantum  of
punishment awarded to the appellant.
15.   In the light of the order dated 27.07.2015,  the only  question  which
arises for consideration  in this appeal is whether  having  regard  to  the
facts and circumstances of the case, any case is made out by  the  appellant
to call for any interference in the quantum of  punishment  awarded  to  him
by the two courts below and if so, to what extent.
16.   In view of this limited question, it is not necessary for  this  Court
to examine the merits of the case insofar  as  it  relates  to  the  issues,
which resulted in appellant's conviction for the offences  punishable  under
Sections 7 and 13 of the P.C. Act.
17.   Learned counsel for the appellant, confining  his  submission  to  the
quantum of punishment, submitted that keeping in view  the  fact  that  this
litigation is pending  for the last  20 years because  the  incident  is  of
the year 1995 (07.04.1995),  secondly, the appellant is now  quite  old  and
is suffering from various ailments, and further he has  lost  his  job   and
also undergone few months in jail as under trial and again  few  days  after
conviction, and lastly  looking  to  the  small  amount  of  bribe  involved
(Rs.2000/-),  this Court should take some lenient view  in  awarding  lesser
punishment and reduce it to minimum as prescribed in Sections 7  and  13  of
the P.C. Act prior to the amendment  in these sections.  It is  more  so  as
the learned counsel submits when this  Court  has  now  finally  upheld  the
appellant’s conviction.
18.   In contra, learned counsel for the respondent  supports  the  impugned
order.
19.   Having heard the learned counsel for the parties  and  on  perusal  of
the record of the case, we are inclined to  accept  the  submission  of  the
learned counsel for the appellant in part.
20.     Taking  into  consideration  the   totality   of   the   facts   and
circumstances of the case,  such  as  firstly,  the  incident  is  of  1995;
secondly, this litigation is pending for the last  20  years;  thirdly,  the
appellant is now quite old and suffering with ailments;   fourthly,  he  has
already lost his job, we consider it just and proper, in peculiar  facts  of
this case, to reduce the punishment awarded to the appellant from two  years
to that of one  year.
21.   Since at the relevant time when  the  offence  was  committed  by  the
appellant, the minimum punishment prescribed in Sections 7 and  13  was  six
months and one year respectively, which may extend to five years  and  seven
years respectively hence this Court can reduce the  punishment  of  2  years
awarded to the appellant to one year notwithstanding the amendment  made  in
Sections 7 and 13 by Act No. 1 of  2014  (w.e.f.16.01.2014)  which,  in  our
view, will not apply to the case of the appellant in the  light  of  Article
20 of the Constitution of India.
22.   In view of the  foregoing  discussion,  the  appeal  succeeds  and  is
hereby allowed in part. Impugned order is modified to the  extent  that  the
appellant is awarded one year punishment for the offences  punishable  under
Sections 7 and 13 of the P.C. Act.  So far as the  fine  amount  imposed  by
the Courts below is concerned, it is upheld. If the appellant  is  on  bail,
his bail bonds stand cancelled and he be taken  into  custody  forthwith  to
undergo the  remaining period of  sentence awarded by this Court.

                     ………...................................J.
                                  [J. CHELAMESWAR]


                  …...……..................................J.
                               [ABHAY MANOHAR SAPRE]
      New Delhi;
September 17, 2015.

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