When we find that under one head, reasonable amount has been awarded and under another head, nothing has been awarded though it should have been so awarded and at the same time, we notice that eventual figure of the award of compensation payable to the claimants appears to be just and reasonable then in such eventuality, we do not consider it proper to interfere in such award in our appellate jurisdiction under Article 136 of the Constitution. In other words, if by applying the tests and guidelines, we find that overall award of compensation is just and fair, then, in our view, such award deserves to be upheld in claimants’ favour. We find it to be so in the facts of this case having taken note of all relevant facts and circumstances of the case.

                                                       NON-REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                        CIVIL APPEAL No.3862 OF 2013

D.M., Oriental Insurance Co. Ltd.  ……Appellant(s)


                             VERSUS


Swapna Nayak & Ors.               ……Respondent(s)

      WITH

                     CIVIL APPEAL Nos.3863-3864 OF 2013

Swapna Nayak & Ors.                ……Appellant(s)


                             VERSUS


M/s Oriental Insurance Co. Ltd.   ……Respondent(s)


                               J U D G M E N T
Abhay Manohar Sapre, J.
1)    C.A. No. 3862 of 2013 is  filed  by  the  Oriental  Insurance  Company
Ltd.(for short, “the Insurance Company”) and C.A.  Nos.  3863-3864  of  2013
are filed by the claimants.  These appeals  are  filed  against  the  common
final judgment and order dated 21.09.2012 of the High  Court  of  Orissa  at
Cuttack in M.A.C.A. No.1 of 2012 and M.A.C.A. No. 62  of  2012  whereby  the
High
Court partly allowed M.A.C.A. No.1 of 2012 filed by  the  Insurance  Company
and,  in  consequence,  dismissed  M.A.C.A.  No.62  of  2012  filed  by  the
claimants.
2)    In order to appreciate the issue  involved  in  these  appeals,  which
lies in a narrow compass, it is necessary to set out the relevant  facts  in
brief infra.
3)    On 16.12.2006, one Mathurananda Nayak, a resident of U.S.A.,  and  his
mother Jita Nayak along with two  others  while  coming  from  Cuttack  side
towards Aredi on NH No. 5 by a car bearing  Registration  No.  OR-02-S-0565,
collided with a truck bearing Registration No. OR-09-E-6357  driven  by  its
driver which was coming from Paniloili  side.   As  a  result  of  the  said
accident, Mathurananda Nayak, Jita  Nayak  along  with  driver  of  the  car
sustained injuries and later succumbed to the injuries on the same day.
4)    The claimants in this  appeal  are  wife  and  sons  of  the  deceased
Mathurandanda Nayak, who was aged about 36 years at the  time  of  accident.
He was working as a Senior Information  System  Analyst  under  Traci  Cagle
Human Resource Representative a Xilinx Inc-2100 Logic Drive  San  Jose,  CA-
95124, U.S.A. and was earning $97,080,60 per annum by  way  of  salary.   He
had come to India for few days when unfortunately he met  with  an  accident
and died.
5)    The legal heirs of the deceased filed two separate claim  applications
for  compensation  under  Section  166  of  the  Motor  Vehicles  Act,  1988
(hereinafter referred to as “the Act”)  before  the  Motor  Accidents  Claim
Tribunal, Cuttack (for short, “the Tribunal”)  being  MAC  No.  25  of  2007
(filed by legal heirs of Mathurananda Nayak) and MAC No. 30 of  2007  (filed
by the legal heirs of Jita Nayak) against the owner of the vehicle  and  the
Oriental Insurance Company Ltd. being the insurer of the truck.
6)    The owner of the insured vehicle did not appear in  spite  of  service
and the applications were proceeded ex-parte.
7)    By a common Award  dated  25.10.2011  in  MCA  No.  25  of  2007,  the
Tribunal allowed the applications. So far  as   M.C.A.  No.25  of  2007  was
concerned, the Tribunal held that the accident was caused due  to  rash  and
negligent driving of truck driver, that the  deceased  was  aged  36  years,
that annual income of the deceased was Rs.43,68,624/-  (in  Indian  currency
by applying the exchange rate of Rs.45/- per  dollar).   The  Tribunal  then
applied the multiplier of 15 and  after  deducting  1/3rd  towards  personal
expenses and adding therein some amount towards conventional heads,  awarded
a total sum of Rs.4,36,95,740/- to the claimants  and  accordingly  directed
the Insurance Company to pay the awarded sum to  the  claimants  along  with
interest at the rate of 7.5% from the date of application.
8)    So far as MCA No. 30 of 2007 was concerned, the Tribunal, by  applying
the multiplier of 5, awarded a sum of Rs.1,29,500/-  with  interest  at  the
rate of 7.5% p.a. for the death of Jita Nayak.
9)    Challenging the said award, the Insurance Company filed MACA  No.1  of
2012 before the High Court and the claimants filed MACA No.62  of  2012  for
enhancement of compensation amount awarded to them by the Tribunal.
10)   By impugned common judgment dated 21.09.2012, the  High  Court  partly
allowed  the  appeal  filed  by  the  Insurance  Company  and  reduced   the
compensation amount of Rs.4,36,95,740/-, which was awarded by the  Tribunal,
to  Rs.3,75,00,000/-.  It was held that the Tribunal deducted 1/3rd  towards
personal expenses of the  deceased  but  did  not  deduct  anything  towards
income tax from the salary. The High Court, therefore, interfered  with  the
determination  made  by  the  Tribunal   and   accordingly   re-worked   the
compensation and reduced it to Rs.3,75,00,000/-.  All  other  findings  were
withheld.  As a  consequence,  the  claimants’  appeal  for  enhancement  of
compensation was dismissed.
11)   Challenging the  said  judgment  of  the  High  Court,  the  Insurance
Company has filed C.A. No. 3862 of 2013 seeking  further  reduction  in  the
award of compensation whereas the claimants have filed C.A.  Nos.  3863-3864
of 2013 seeking enhancement in the compensation.
12)   Heard Mr. Vishnu Mehra, learned counsel  for  the  Insurance  Company.
None appears for the claimants though served.
13)    Mr.  Vishnu  Mehra,  learned  counsel  appearing  for  the  appellant
(Insurance Company-insurer of the  offending  vehicle)  contended  that  the
High Court though was right in allowing the appeal filed  by  the  Insurance
Company in part and was also right in reducing the quantum  of  compensation
awarded by the Claims Tribunal from Rs.4,36,95,740/-  to  Rs.3,75,00,  000/-
but according to him,  the  High  Court  should  have  further  reduced  the
compensation instead of confining it to Rs.3,75,00,000/- only.
14)   Placing reliance on the decisions in   Bijoy  Kumar  Dugar  vs.  Bidya
Dhar Dutta & Ors.,  2006 (3) SCC 242,  Reshma  Kumari  &  Others  vs.  Madan
Mohan And Another, 2013 (9) SCC 65 and United  India  Insurance  Co.  Ltd  &
Others vs. Patricia Jean Mahajan And  Others,  2002  (6)  SCC  281,  learned
counsel contended that the High Court erred in  applying  multiplier  of  15
for determining the  quantum  of  compensation  payable  to  the  claimants.
According to him, keeping in view the law laid down in the  cases  cited  at
the bar, the multiplier of 10 at best could  be  applied  in  place  of  15.
Learned Counsel further contended  that  in  the  absence  of  any  evidence
adduced by the claimants on the issue of future prospects  of  the  deceased
in his life, no case is made out for award of any  compensation  under  this
head.
15)    Having  heard  the  learned  counsel  for  the  appellant  (Insurance
Company) and on perusal of the entire record of the case, we have formed  an
opinion to dismiss both the appeals and, in  consequence,  are  inclined  to
uphold the order of the High Court which, in our view,  does  not  call  for
any interference.
16)   On perusal of the decisions  cited  at  the  bar  and  further  having
regard to the totality of the facts and circumstances of the  case  and  the
concurrent findings of two  courts  and  on  material  issues  such  as  the
determination of annual income of the  deceased,  his  age,  the  number  of
dependents etc., we do  not  find  any  good  ground  to  interfere  in  the
impugned order.  In our view, such findings, apart  from  being  concurrent,
cannot be said to be, in any way, arbitrary and nor they result in  awarding
a bonanza or a  windfall  to  the  claimants  so  as  to  call  for  further
reduction in the compensation awarded by the High Court.
17)   In other words, in our view, what has been eventually awarded  to  the
claimants by the High Court appears to be just and  reasonable  compensation
within the meaning of Section 166 of the Act and there does not  appear  any
good ground for further enhancement under any of the heads  including  under
the head of future prospects as claimed by the  claimants  in  their  appeal
and nor any case is made out for further reduction by  applying  the  lesser
multiplier or to make further deduction  in  the  salary  component  of  the
deceased as claimed by the Insurance Company.
18)   When we find that under one head, reasonable amount has  been  awarded
and under another head, nothing has been awarded though it should have  been
so awarded and at the same time, we  notice  that  eventual  figure  of  the
award of compensation payable to  the  claimants  appears  to  be  just  and
reasonable then in such  eventuality,  we  do  not  consider  it  proper  to
interfere in such award in our appellate jurisdiction under Article  136  of
the Constitution. In other words, if by applying the tests  and  guidelines,
we find that overall award of compensation is just and fair,  then,  in  our
view, such award deserves to be upheld in claimants’ favour. We find  it  to
be so in the facts of this case having taken note of all relevant facts  and
circumstances of the case.
19)   In the light  of  foregoing  discussion,  we  find  no  merit  in  the
appeals, i.e., the appeal filed by the  Insurance  Company  seeking  further
reduction in the  compensation  and  the  appeals  filed  by  the  claimants
seeking enhancement in the compensation and accordingly dismiss the  appeals
and, in  consequence,  uphold  the  order  of  the  High  Court  calling  no
interference therein.
20)   Let the entire amount of compensation awarded to the claimants by  the
High Court be paid to the claimants by  the  Insurance  Company  within  one
month from the date of receipt of this judgment after adjusting  the  amount
already paid. No costs.


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


                     ………..................................J.
                                      [ABHAY MANOHAR SAPRE]

      New Delhi,
      January 23, 2017.
-----------------------
10

A.P. Fire Subordinate Service Rules and A.P. State and Subordinate Service Rules. In our view, these Rules do not empower the State to make the classification as was sought be done by the State for determining the inter se seniority of SFOs in this case. 31) In our opinion, taking into account the three undisputed facts mentioned above and the Rules governing the probation and the seniority, there was neither any justifiable basis for creation of such classification nor it satisfied the requirement of the Rules which governed determination of their inter se seniority. In other words, firstly, when the respondents successfully cleared their probation, secondly, when the respondents cleared two tests, thirdly, when the Government itself exempted the respondents from appearing in the third test, and lastly, when the Rules did not provide for creation of two classes between the employees working in one Cadre (SFO), then in our view, there was no justification on the part of the Government to have issued G.O. dated 22.05.2012 for determination of inter se seniority by making classification. 32) Our view also finds support from the view recently taken by this bench in the judgment rendered in Civil Appeal No.9856-9860 of 2016 R. Venkata Ramudu and Another Etc. vs. State of A.P. & Ors. decided on 27.09.2016.

                                                                  REPORTABLE
                            IN THE SUPREME COURT OF INDIA
                             CIVIL APPELLATE JURISDICTION

                             CIVIL APPEAL No.  795  OF 2017
                       (ARISING OUT OF SLP (C) No.35697/2013)

S. Sreedhar Reddy & Ors.                …….Appellant(s)

                             VERSUS

Government of Andhra Pradesh
& Ors.                                  ……Respondent(s)

                                    WITH

                        CIVIL APPEAL No. 796 OF 2017
                       (ARISING OUT OF SLP (C) No.36680/2013)
K. Madhusudhan Rao & Ors.         …….Appellant(s)

                             VERSUS

Government of Andhra Pradesh
& Ors.                                  ……Respondent(s)

                     CIVIL APPEAL Nos. 797-798  OF 2017
                    (ARISING OUT OF SLP (C) Nos.1134-1135/2014)
A.A.F. Vijay Kumar & Ors.         …….Appellant(s)

                             VERSUS

Government of Andhra Pradesh
& Ors.                                  ……Respondent(s)

                      CIVIL APPEAL Nos. 800-801 OF 2017
                    (ARISING OUT OF SLP (C) Nos.7931-7932/2014)
Munduri Srihari Jagannath         …….Appellant(s)

                             VERSUS

Government of Andhra Pradesh
& Ors.                                  ……Respondent(s)

                                     AND
                        CIVIL APPEAL No. 802 OF 2017
                       (ARISING OUT OF SLP (C) No.12804/2014)
  T. Purna Chander                      …….Appellant(s)

                             VERSUS

Government of Andhra Pradesh
& Ors.                                  ……Respondent(s)

                               J U D G M E N T
Abhay Manohar Sapre, J.
1)    Applications for impleadment are allowed.
2)    Leave granted.
3)    These appeals are filed against the common final  judgment  and  order
dated 20.09.2013 passed by the High Court of Andhra Pradesh at Hyderabad  in
Writ Petition Nos. 5161 and 7297 of 2013 whereby the High Court allowed  the
writ petitions and  set  aside  the  order  dated  01.02.2013  of  the  A.P.
Administrative Tribunal, Hyderabad in O.A. No. 4283 of 2012  and  batch,  in
consequence thereof,  quashed memorandum No. 83/E1/2001 dated 22.05.2012  of
the Director General of the State  Disaster  Response  and  Firer  Services,
Andhra Pradesh, Hyderabad.
4)    Facts of the case need mention, in detail,  infra  to  appreciate  the
controversy involved in the appeals.
5)     The  dispute  in  these  appeals  essentially  relates  to  inter  se
seniority of the Station Fire Officers (for short, “SFOs”).
6)    In the year 1993, the appellants  and  the  private  respondents  were
appointed as SFOs by direct recruitment, which is a multi-zonal post,  after
passing the  test  conducted  by  the  Andhra  Pradesh  State  Level  Police
Recruitment Board (hereinafter referred to as “the Board”).   By  virtue  of
that examination, 59 candidates were selected in the Multi Zone-I and  Multi
Zone-II.   The said post is covered by the Andhra Pradesh  Fire  Subordinate
Service Rules (for short, “the Rules”) issued under G.O. Ms. No.  568,  Home
(Prisons-A) Department, dated 24.11.1992.   According  to  Rule  12  of  the
Rules, an SFO appointed through direct recruitment must  pass  three  tests,
namely, (i) Accounts Test  for  Subordinate  Officers  Part-I;  (ii)  Andhra
Pradesh Fire Service Manual; and (iii) A certificate  course  of  competence
in wearing and instructions on Breathing Apparatus,  within  the  period  of
probation which, in turn, described in Rule 9 of the Rules.
7)    The first and second tests were conducted from time to  time  but  the
Government did not conduct the third test for years together for one  reason
or the other.
8)    According to the appellants, they cleared the first and  second  tests
and taking note of the fact that the third test was  not  conducted  by  the
Government itself, the Fire Services  Department  vide  Rc.  No.  83/E1/2001
dated 31.07.2003 issued a provisional Seniority List of SFOs in Multi  Zone-
I and Multi Zone-II.  In this provisional  Seniority  List,  the  appellants
were placed below the private respondents  based  on  select  list  ranking.
The Department called for the objections to the said  Seniority  List.   The
appellants objected to the said Seniority List by filing representations.
9)    The Fire Services Department vide Rc. No. 83/E1/2001 dated  15.11.2007
issued revised Seniority List of SFOs in Multi  Zone-I  and  Multi  Zone-II.
In this Seniority List also, the  appellants  were  put  below  the  private
respondents.
10)   According to the appellants, the Government of A.P. vide G.O. Ms.  No.
454 of 2009 dated 06.11.2009 exempted  59  SFOs  of  1993  batch  of  direct
recruits belonging to Multi Zone-I and Multi  Zone-II  from  undergoing  the
third  test,  i.e.,  certificate  course  of  “competence  in  wearing   and
instructions on Breathing Apparatus test” as prescribed in Rule  12  of  the
Rules, as a special case, as the training  in  Wearing  Breathing  Apparatus
Set is included in the syllabus  of  Refresher  Course  and  will  meet  the
requirements of certificate  course  and  all  the  SFOs  have  successfully
undergone and passed the similar training during the year 2006.
11)   The Fire Services Department vide Memo No. 8206/PRI.A/A2/2009-8  dated
27.01.2010  issued  certain  clarifications  regarding  the  completion   of
probation of SFOs mentioning that the penal provisions of Rule 16(h) of  the
A.P. State and Subordinate Service Rules 1996 (for  short  “the  Subordinate
Rules”) shall not be applied to the SFOs of 1993 batch but  the  same  shall
apply on the employees, who failed to acquire the qualifications within  the
period of probation due to their lapse.  As per this memorandum,  the  penal
provision of Rule 16(h) of the Subordinate Rules shall be applicable to  the
private respondents only.
12)   Though Seniority List was  not  finalized  based  on  the  provisional
Seniority List, the appellants and the  private  respondents  were  promoted
from SFOs to the post of Assistant District Fire Officers on 14.10.2010.
13)   The Fire Services Department vide Rc. No.83/E1/2001  dated  23.12.2011
issued revised provisional Seniority List of SFOs in Multi  Zone-I  and  II.
In this list also, the appellants were placed below the private  respondents
and again objections were called for.
14)   On 03.04.2012, the Fire Services Department vide  memorandum  Rc.  No.
83/E1/2001, after quoting the legal opinion of the  Government  Pleader  for
Home (Services), A.P. High Court received, mentioned that the  decision  was
taken to decide the dates of commencement and completion of  initial  period
of two years for passing the tests as the basis for the seniority.   It  was
also mentioned that the penal provisions of Rule 16(h)  of  the  Subordinate
Rules should also be taken into consideration and the final  Seniority  List
would be prepared on that basis.
15)   The Fire Services Department vide Rc. No. 83/E1/2001 dated  22.05.2012
issued final Seniority List of SFOs in Multi Zone-I and II taking the  dates
of commencement and completion of initial period of two  years  for  passing
the tests as the basis for the  seniority.   The  penal  provision  of  Rule
16(h) of the Subordinate Rules was also  applied  in  preparing  this  final
Seniority List.  In the said list, the  appellants  were  placed  above  the
private respondents on the basis  that  they  passed  the  prescribed  tests
(other than exempted test) within the period of probation.
16)   Aggrieved by the final Seniority List dated  22.05.2012,  the  private
respondents filed O.A. No. 4283  of  2012  before  the  A.P.  Administrative
Tribunal  at  Hyderabad  (for  short,  “the  Tribunal”)  for  quashing   the
memorandum No. 83/E1/2001 dated 22.05.2012.
17)   The Tribunal, vide its judgment and order  dated  01.02.2013  in  O.A.
No. 4283 of 2012 and connected matters dismissed all the O.As filed  by  the
private respondents.
18)   Aggrieved by the said judgment/order, the  private  respondents  filed
petitions being W.P.Nos. 5161 and 7297 of 2013 before the High Court.
19)   The High Court, by impugned judgment  dated  20.09.2013,  allowed  the
writ petitions and set aside the judgment and order dated 01.02.2013  passed
by the Tribunal in O.A. No. 4283 of 2012 and  batch   consequently,  quashed
the G.O./Seniority List dated 22.05.2013.
20)   On the basis of the impugned judgment,  the  Director  General,  State
Disaster Response and Fire  Services,  Hyderabad  (respondent  No.2  herein)
issued revised seniority list on  10.11.2013  whereby  the  appellants  were
placed below the rank of private respondents herein.  Further 15 days’  time
was given to raise objections.
21)   Before the expiry of the period of raising objections, the  appellants
have filed these appeals by way  of  special  leave  before  this  Court  on
21.11.2013.
22)   This Court issued notice to the respondents and  directed  that  until
further orders, the appellants shall not be reverted.
23)    Heard  Mr.  B.  Adinarayana  Rao,  learned  senior  counsel  for  the
appellants and Mr. S. Gururaj Rao, learned senior counsel  for  the  private
respondent, Mr. G. Prabhakar, learned counsel, for the  State  of  A.P.  and
Mr. S. Udaya Kumar Sagar, learned counsel for the State of Telangana.
 24)  Mr. B. Adinarayana Rao,  learned  Senior  Counsel  appearing  for  the
appellants reiterated the submissions which were  urged  by  the  appellants
before the High Court  while  opposing  the  writ  petitions  filed  by  the
private respondents against the appellants.
25)   In reply, learned counsel for the respondents supported  the  impugned
order and prayed for dismissal of the appeals and,  in  consequence,  prayed
for upholding of the order of the High Court, which had set aside the  order
of the  Tribunal  and  quashed  the  memorandum  dated  22.05.2012  and,  in
consequence, the seniority list.
26)    Having heard the learned counsel for the parties and  on  perusal  of
the record of the case, we find no merit in these appeals.
27)   In our considered  opinion,  the  High  Court  was  justified  in  its
reasoning and the conclusion in allowing the  writ  petition  filed  by  the
private respondents (original applicants before the Tribunal)  and  quashing
of Memorandum No. 83/E-1/2001 dated 22.05.2012 impugned  in  OA  before  the
Tribunal out of which the aforementioned writ petitions arose.
28)   It is not in dispute that the  private  respondents  herein  (original
applicants before the Tribunal) being the direct recruits  had  cleared  two
tests as provided in Rule 12 (i) and (ii) of the Rules though late but  with
the permission of  the State.  It is also not in dispute that so far as  the
third test, as provided in Rule 12 (iii) was concerned, the respondents  and
all others alike them in the same cadre  were  exempted  from  passing  vide
G.O.Ms No. 454 of 2009 dated 6.11.2009 issued by the  State  Government.  It
is further not in dispute that the private respondents  had  also  completed
their probation successfully.
29)   In the light of these undisputed facts, the question before  the  High
Court was whether Rc.  No.83/E1/2001  dated  22.05.2012  which  created  two
classes amongst SFOs for determination of their inter se seniority,  namely,
one class which cleared the two tests in time and other class which  cleared
the tests late, was legally justifiable  and,  if  so,  whether  it  was  in
conformity with the Rules for giving  effect  to  it  for  determination  of
their inter se seniority.  The two classes created by the impugned GO  dated
22.05.2012 for determination of inter se seniority of SFOs had  resulted  in
disturbing the seniority list.
30)   We have perused the  relevant  Rules,  which  have  bearing  over  the
controversy at hand, namely, A.P. Fire Subordinate Service  Rules  and  A.P.
State and Subordinate Service Rules.   In  our  view,  these  Rules  do  not
empower the State to make the classification as was sought be  done  by  the
State for determining the inter se seniority of SFOs in this case.
31)   In our  opinion,  taking  into  account  the  three  undisputed  facts
mentioned above and the Rules governing the  probation  and  the  seniority,
there was neither any justifiable basis for creation of such  classification
nor it satisfied the requirement of the Rules which  governed  determination
of their inter se seniority.  In other words, firstly, when the  respondents
successfully  cleared  their  probation,  secondly,  when  the   respondents
cleared  two  tests,  thirdly,  when  the  Government  itself  exempted  the
respondents from appearing in the third test, and  lastly,  when  the  Rules
did not provide for creation of two classes between  the  employees  working
in one Cadre (SFO), then in our view, there  was  no  justification  on  the
part  of  the  Government  to  have  issued  G.O.   dated   22.05.2012   for
determination of inter se seniority by making classification.
32)   Our view also finds support from  the  view  recently  taken  by  this
bench in the judgment rendered in  Civil  Appeal  No.9856-9860  of  2016  R.
Venkata Ramudu and Another  Etc.  vs.  State  of  A.P.  &  Ors.  decided  on
27.09.2016.
33)   We are, therefore, not impressed  by  the  submissions  urged  by  the
learned counsel  for  the  appellants  which,  in  our  view,  were  rightly
repelled by the High Court while allowing the writ petitions  filed  by  the
private respondents herein which rightly quashed  the  GO  dated  22.05.2012
being irrational, unreasonable and contrary to the Rules.   We  concur  with
the findings of the High Court and find no good ground to interfere  in  its
reasoning.





34)   In view of foregoing discussion, we find no merit  in  these  appeals,
which  are  devoid  of  any  merit.   As  a  consequence,  the  appeals  are
dismissed.

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


                  …...……..................................J.
                               [ABHAY MANOHAR SAPRE]     New Delhi;
January 23, 2017

-----------------------
16

the validity of admission granted to the petitioner by respondent No.3 (C.M. Medical College & Hospital - for short the College) to the MBBS course. In our opinion, the admission granted by the College to the petitioner was unjustified and therefore his admission is set aside.= The question before this Court is not who is to be blamed for the present state of affairs - whether it is the students or the College or the State of Chhattisgarh. The question is really whether the rule of law should prevail or not. In our opinion, the answer is unambiguously in the affirmative. The College and the State of Chhattisgarh have not adhered to the law with the result that the petitioner became a victim of circumstances giving him a cause of action to proceed against the College and the State of Chhattisgarh being a victim of their maladministration. The plight of the petitioner is unfortunate but it cannot be helped.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                         CIVIL ORIGINAL JURISDICTION

                    WRIT PETITION (CIVIL) NO. 677 OF 2016



Rishabh Choudhary                                         .….Petitioner

                                   versus

Union of India & Ors.                                    ….Respondents

                                    WITH

                    WRIT PETITION (CIVIL) NO. 862 OF 2016

Sandeep Kumar & Anr.                            ….Petitioners



                                   versus

State of Chhattisgarh & Ors.                    ….Respondents



                              J U D G M E  N T

Madan B. Lokur, J.

W.P. (C) No. 677 OF 2016

1.    The question for consideration  in  this  writ  petition  filed  under
Article 32 of the Constitution concerns the validity  of  admission  granted
to the petitioner by respondent No.3 (C.M. Medical College & Hospital -  for
short the College) to  the  MBBS  course.  In  our  opinion,  the  admission
granted by the College to the petitioner was unjustified and  therefore  his
admission is set aside.
2.    On 21st December, 2010  a  gazette  notification  was  issued  by  the
Medical Council of India  amending  the  “Regulations  on  Graduate  Medical
Education, 1997” to the effect, inter alia,  that  admissions  to  the  MBBS
course  shall be based solely on marks obtained in the National Eligibility-
cum-Entrance Test (for short NEET).  This notification  was  challenged  by,
amongst others, Christian Medical College Vellore in a  batch  of  petitions
before this Court which came to be allowed. The decision of  this  Court  is
dated 18th July, 2013 and is reported as Christian Medical College,  Vellore
& Ors. v. Union of India & Ors.[1]   The  gazette  notification  dated  21st
December, 2010 was quashed.  As a result, admission  of  a  student  to  the
MBBS course through NEET was no longer mandatory.

3.    Subsequently, petitions were  filed  for  a  review  of  the  decision
rendered by this Court and these review  petitions  ultimately  came  to  be
referred to a Bench of five learned judges  of  this  Court.   By  an  order
dated 11th April, 2016 in Medical Council  of  India  v.  Christian  Medical
College, Vellore &  Ors.[2]  the  review  petitions  were  allowed  and  the
decision rendered by this Court on 18th July, 2013 was recalled and  it  was
directed that all the matters be considered afresh.
4.    Prior to this, the College wrote to the State of  Chhattisgarh  on  or
about 29th October, 2015 seeking permission to conduct examinations for  the
management quota and NRI seats for the MBBS course  for  the  academic  year
2016-17.  The State of Chhattisgarh granted permission  to  the  College  to
conduct examinations by its letter dated 5th November, 2015.

5.    Consequent upon the permission granted by the  State  of  Chhattisgarh
to conduct  examinations,  the  College  issued  an  advertisement  inviting
applications on 28th January, 2016 and eventually conducted the  examination
on 3rd April, 2016.  The examination called CGMAT-2016 was monitored by  the
State of Chhattisgarh and according to the College  as  well  as  the  State
there were no irregularities in the conduct of the examination.

6.    The result of the examination was declared on  11th  April,  2016  and
the petitioner qualified in the examination.  On 19th April,  2016  that  is
after this Court had decided to review its decision  and  had  recalled  the
judgment dated 18th July, 2013, counseling was conducted for the  petitioner
and  he was granted admission for the MBBS course by the College  after  all
formalities were completed.
7.    At this stage, it may be mentioned that the Medical Council  of  India
published a notification in  2015  amending  the  “Regulations  on  Graduate
Medical Education, 1997” whereby a  time  schedule  for  completion  of  the
admission process for First MBBS Course was prescribed.   This  notification
is reproduced and the Schedule given therein was approved in  Ashish  Ranjan
v. Union of India[3] decided on 18th January, 2016.  As per  the  prescribed
schedule, the conduct of entrance examination was to take place between  1st
and  7th  May  and  the  result  of  the   qualifying   examination/entrance
examination  was  to  be  declared  by  1st  June.   In  other  words,   the
examination conducted by the College on 3rd  April,  2016  being  CGMAT-2016
was in defiance of the notification issued by the Medical Council of  India,
and the schedule approved by this Court.  Similarly,  admission  granted  to
the petitioner on 19th April, 2016 was notwithstanding the  orders  of  this
Court passed on 11th April, 2016  read  with  the  notification  dated  21st
December, 2010 and the schedule prescribed by the Medical Council of India.

8.    There are a few other orders passed by this Court which  are  of  some
significance.  On 28th April, 2016 it was directed by this Court in  Sankalp
Charitable Trust & Anr. v. Union of India & Ors.[4] that NEET Phase I  would
be held in terms of the notification dated 21st  December,  2010  issued  by
the Medical Council of India.  The All India Pre-Medical Test would be  held
on 1st May, 2016.  Thereafter, Phase II of NEET for the left out  candidates
would be held on 24th  July,  2016.   It  was  made  clear  that  since  the
judgment  and  order  dated  18th  July,  2013  had   been   recalled,   the
notification dated 21st December, 2010 was in operation.
9.    By an order dated 6th May, 2016 in Sankalp  Charitable  Trust  it  was
made clear that no examination shall be permitted to be held  for  admission
for  MBBS  studies  by  any  private   college   or   association   or   any
private/deemed University.
10.   Subsequently on 9th May, 2016 this Court declined to modify the  order
dated 28th April, 2016.  An order was also passed making it clear  that  all
such candidates who could not appear in NEET-I and those  who  had  appeared
but had an apprehension that they had not prepared well, would be  permitted
to appear in NEET-II subject to an option from these candidates to  give  up
their candidature for NEET-1. It was further clarified that only NEET  would
enable students to get admission to MBBS studies.
11.   In view of all these orders passed by this Court from  time  to  time,
it is more than abundantly clear that the notification dated 21st  December,
2010 stood resurrected and that admissions to the  MBBS  course  could  only
through NEET-I and NEET-II.  No other process of admission was  permissible.
  Given this background, the Director of Medical Education  in  Chhattisgarh
wrote to the College on or about 13th July, 2016 to  take  steps  to  cancel
all the admissions made by the College in terms of the examination  CGMAT  –
2016 held for students for the management quota and  NRI  quota.  Eventually
by a letter dated 28th July, 2016  the  Director  of  Medical  Education  in
Chhattisgarh recommended to the College to cancel  admissions  made  to  the
MBBS course.  This prompted the petitioner to file a writ petition  in  this
Court.
12.   It is submitted and  prayed  by  the  petitioner  that  since  he  had
already been granted admission by the College after the  examination  CGMAT-
2016 was conducted by the College and supervised and monitored by the  State
of Chhattisgarh and in which there were no allegations of  impropriety,  his
admission should not be disturbed.   It is  submitted  that  the  petitioner
was certainly not at fault and there is no  reason  why  he  should  be  the
victim of an apparent wrong committed by the College as also  by  the  State
of Chhattisgarh.
13.   We have considered the submissions made by learned  counsel  appearing
on behalf of the petitioner and the  College  supporting  him  but  are  not
inclined to accept them.  It is quite clear that the examination  CGMAT-2016
was conducted by the College on 3rd April, 2016  contrary  to  the  schedule
prescribed by the Medical Council of India (and approved by this Court)  for
holding  the  MBBS  entrance  examinations.  The  question  is  not  of  any
impropriety in the conduct of the examination but  the  question  is  really
one of adhering to a particular discipline laid down by the Medical  Council
of India and approved by this Court.
14.   Furthermore we find that counseling was carried  out  insofar  as  the
petitioner is concerned on 19th April, 2016 which is after the  decision  of
this Court on 11th April, 2016  recalling  the  decision  dated  18th  July,
2013.  There was absolutely no occasion for the College  to  have  conducted
the counseling after the recall order passed by this Court  on  11th  April,
2016.   The effect of the recall order, as mentioned  above,  was  that  the
notification issued by the Medical Council of India on 21st  December,  2010
effectively stood revived in  the  sense  that  NEET  was  the  only  option
available for admission to the MBBS course.  The College and  the  State  of
Chhattisgarh ought to have been aware of  these  facts,  but  seem  to  have
turned a blind eye not  only  to  the  orders  of  this  Court  but  to  the
notifications issued by the Medical Council of India.
15.   The question before this Court is not who is  to  be  blamed  for  the
present state of affairs - whether it is the students or the College or  the
State of Chhattisgarh.  The question is  really  whether  the  rule  of  law
should prevail or not.  In our opinion, the answer is unambiguously  in  the
affirmative.   The College and the State of Chhattisgarh  have  not  adhered
to the  law  with  the  result  that  the  petitioner  became  a  victim  of
circumstances giving him a cause of action to proceed  against  the  College
and the State of Chhattisgarh being a  victim  of  their  maladministration.
The plight of the petitioner is unfortunate but it cannot be helped.
16.   We were told during the course  of  submissions  that  some  similarly
placed students participated in  NEET  and  qualified  in  the  examination.
Those students like the petitioner who  did  not  participate  in  NEET  and
placed their trust only in the College and the State of Chhattisgarh took  a
gamble  and  that  gamble  has  unfortunately  not  succeeded.   While   our
sympathies may be with the petitioner  and  similarly  placed  students,  we
cannot go contrary to the orders passed by this  Court  from  time  to  time
only for their benefit.
17.   Under the circumstances, we find no  ground  has  been  made  out  for
granting relief to the petitioner.  There is no merit in this writ  petition
and it is accordingly  dismissed.   However,  we  make  it  clear  that  the
petitioner is at liberty to proceed against the College  and  the  State  of
Chhattisgarh in any appropriate manner.

W.P. (C) No. 862 OF 2016

18.   We find no reason to entertain this petition under Article 32  of  the
Constitution and it is accordingly dismissed.

19.   In view of the order passed in the writ petition the  application  for
impleadment stands disposed of.


                                                               …………………………..J
                                                          ( Madan B. Lokur
)



New Delhi                                         ………………………….J.

January 23, 2017                            ( Prafulla C. Pant )





-----------------------
[1]   [2] (2014) 2 SCC 305
[3]   [4] (2016) 4 SCC 342
[5]   [6] (2016) 11 SCC 225
[7]   [8] (2016) 7 SCC 487

As against the case of total exclusion and absolute deprivation of a chance to be considered as in the case of Deepak Agarwal (supra), in the instant case certain additional posts have been included in the feeder cadre, thereby expanding the zone of consideration. It is not as if the writ petitioners or similarly situated candidates were totally excluded. At best, they now had to compete with some more candidates. In any case, since there was no accrued right nor was there any mandate that vacancies must be filled invariably by the law existing on the date when the vacancy arose, the State was well within its rights to stipulate that the vacancies be filled in accordance with the Rules as amended. Secondly, the process to amend the Rules had also begun well before the Notification dated 24.11.2011. In our view, the instant case is fully covered by the law laid down by this Court in Deepak Agrawal (supra) and the High Court was completely in error in allowing the writ petition and in dismissing the writ appeals.

                                                              Non-Reportable

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                   CIVIL APPEAL Nos.    691-693    OF 2017
             (ARISING OUT OF SLP (CIVIL) Nos. 21462-64 OF 2013)


State of Tripura & Ors.                                 ….Appellants

                                   Versus

Nikhil Ranjan Chakraborty & Ors.                …. Respondents

                                    WITH

               CIVIL APPEAL Nos.     694-698           OF 2017
             (ARISING OUT OF SLP (CIVIL) Nos. 21465-69 OF 2013)


                               J U D G M E N T



Uday Umesh Lalit, J.


Delay condoned.  Leave granted.



These appeals challenge the  common  Judgment  and  Order  dated  30.08.2012
passed by  the  Division  Bench  of  Guwahati  High  Court,  Agartala  Bench
dismissing Writ Appeal  Nos.62,  63  and  64  of  2012  and  confirming  the
decision of the Single Judge in Writ Petition  (Civil)  Nos.104,  105,  106,
153 and 181 of 2012.



The Tripura Civil Service  Rules,  1967  (hereinafter  referred  to  as  the
“Rules”) made  in  exercise  of  power  conferred  by  Article  309  of  the
Constitution, deal inter alia with constitution  of  Tripura  Civil  Service
and its classification.    Part  III  deals  with  “Method  of  Recruitment”
while Part-V deals with “Recruitment by Selection”.   Rule  13  contemplates
constitution of a “Selection Committee” to consider from time  to  time  the
cases of officers eligible to be considered for selection.   Under  Schedule
IV to the Rules, names of posts are set  out  which  are  feeder  posts  for
Tripura Civil Service.



State of Tripura was desirous  of amending  the  aforesaid  Schedule  IV  by
including certain other posts as feeder posts in “Group  A”  and  “Group  B”
and a proposal to that effect  was  forwarded   to  Tripura  Public  Service
Commission  on 23.08.2011.     The Commission  accepted  the  proposal  vide
its communication dated 26.09.2011.  On 24.11.2011, in pursuance of Rule  13
of the Rules, a Selection Committee was constituted for  considering   cases
of eligible officers holding feeder posts in “Group  A”  and  “Group  B”  of
Schedule IV of the Rules for  appointment  to  the  post  of  Tripura  Civil
Service Gr.II against promotional quota. On 24.12.2011 a Notification  dated
19.12.2011  was  published  in  the  Gazette  amending  the  Rules  by  28th
Amendment including additional posts in Group A and Group B of  Schedule  IV
to the Rules, which was in conformity with  the  proposal  accepted  by  the
Commission.



Soon thereafter, a communication was  addressed  by  General  Administration
(Personnel & Training) Department of State of Tripura to all  the  concerned
departments that information/particulars of all  eligible  officers  holding
feeder posts of TCS (Groups- A&B) as amended by 28th Amendment  be  sent  to
the Department for taking necessary action.



The action on part of State of Tripura in relying  upon  the  amended  Rules
and thereby expanding the feeder posts  was  immediately  challenged  by  22
interested candidates by filing Writ Petition Nos.104,  105,  106,  153  and
181 of 2012.  It  was  submitted  that  the  Notification  dated  24.11.2011
having constituted a Selection Committee for filling up posts of TCS  Gr.-II
against promotional quota and information/particulars of  eligible  officers
having already been called for, 28th Amendment effected  in  December,  2011
could not be pressed into service; that the instant selection  ought  to  be
governed by pre-amendment situation and as such a  direction  be  issued  to
the State to confine the selection to those categories which were  mentioned
in Schedule IV to the Rules as they  existed  before  the  amendment.    The
Advocate General appearing for the State relied upon  certain  decisions  of
this Court including Deepak Agarwal & Anr.  v.  State  of  Uttar  Pradesh  &
Others[1] to contend that a vacancy ought to  be  filled  in  terms  of  the
amended Rules.  The Single Judge of the High  Court  allowed  the  petitions
holding that the selection in the present case ought  to  be  undertaken  in
terms of pre-amended Rules.



The aforesaid decision was questioned by interested  candidates,  who  as  a
result of the 28th Amendment were entitled to be considered, by filing  Writ
Appeal Nos.62, 63 and 64 of 2012.   These  appeals  were  dismissed  by  the
Division Bench of the High Court at the preliminary  stage.  The  submission
that the Single Judge had not considered the ratio of the decision  of  this
Court in Deepak Agarwal (supra) was dealt with  by  the  Division  Bench  as
under:

“17.  Mr. Bhowmik has tried to convince us that though  the  learned  Single
Judge took note of Deepak Agarwal (supra), but did not give any  reason  why
the ratio of the said decision would not apply in the case in hand.



18.   There is no doubt that  the  learned  Single  Judge  did  not  go  for
detailed reasoning, but it cannot be said that  he  has  not  discussed  the
said decision while passing the impugned judgment.   However,  as  the  said
decision is placed before us again, we have also gone through the paragraph-
26 of the said decision……”



The Division Bench however, confirmed the view taken  by  the  Single  Judge
and dismissed  the  appeals  at  the  admission  stage,  which  decision  is
presently under appeal.



We heard Mr. J.P. Cama, learned Sr. Advocate appearing for State of  Tripura
and Shri R. Basant, learned Sr. Advocate and  Ms.  Vandana  Sehgal,  learned
Advocate appearing for the concerned respondents who were the original  writ
petitioners.



In Deepak Agarwal (supra) the appellants were Technical Officers  who  along
with Assistant Excise Commissioners  were  eligible  to  be  considered  for
promotion to the post of Deputy Excise Commissioner.  Two  days  before  the
DPC was scheduled to meet to consider the cases  of  all  eligible  officers
for promotion, the concerned  Rules  were  amended  and  Technical  Officers
stood excluded as the feeder post for the next promotional  post  of  Deputy
Excise Commissioner.  The challenge to such exclusion  having  been  negated
by the High Court the matter reached this Court and the relevant  paragraphs
of the decision were:

“2. The old vacancies have to be filled under the old rules  is  the  mantra
sought to be invoked by the appellants in support of their  claim  that  the
vacancies arising prior to 17-5-1999, ought to  be  filled  under  the  1983
Rules as they existed prior to the amendment dated 17-5-1999. The  claim  is
based on the principle enunciated by  this  Court  in  Y.V.  Rangaiah  v  J.
Sreenivasa Rao[2]

………….

23. Could the right of the appellants, to be considered under the  unamended
1983 Rules be taken away? The promotions to the 12 vacancies have been  made
on  26-5-1999  under  the  amended  Rules.  The  High  Court  rejected   the
submissions of the  appellants  that  the  controversy  herein  is  squarely
covered by the judgment of this Court in Y.V. Rangaiah. The High  Court  has
relied on  the  judgment  of  this  Court  in  K.  Ramulu  (Dr.)  v  Dr.  S.
Suryaprakash Rao[3].

24. We are of the considered opinion that  the  judgment  in  Y.V.  Rangaiah
case would not be applicable in the facts and circumstances  of  this  case.
The  aforesaid  judgment  was  rendered  on  the  interpretation   of   Rule
4(a)(1)(i) of  the  Andhra  Pradesh  Registration  and  Subordinate  Service
Rules, 1976. The aforesaid Rule provided for preparation of a panel for  the
eligible candidates every year  in  the  month  of  September.  This  was  a
statutory duty cast  upon  the  State.  The  exercise  was  required  to  be
conducted each year. Thereafter, only promotion orders were  to  be  issued.
However, no panel had been prepared for the  year  1976.  Subsequently,  the
Rule was amended, which rendered the petitioners therein  ineligible  to  be
considered for promotion. In these circumstances, it was  observed  by  this
Court that the amendment would not be applicable to the vacancies which  had
arisen prior to the amendment. The vacancies which  occurred  prior  to  the
amended Rules would be governed by the old Rules and not the amended Rules.

25. In  the  present  case,  there  is  no  statutory  duty  cast  upon  the
respondents to either prepare a yearwise panel of  the  eligible  candidates
or of the selected candidates for promotion. In fact, the proviso to Rule  2
enables the State to keep any post unfilled. Therefore, clearly there is  no
statutory duty which the State  could  be  mandated  to  perform  under  the
applicable Rules. The requirement to identify the vacancies in a year or  to
take a decision as to how many posts are to be filled under  Rule  7  cannot
be equated  with  not  issuing  promotion  orders  to  the  candidates  duly
selected for promotion. In our opinion, the appellants had not acquired  any
right to be considered for promotion. Therefore, it is difficult  to  accept
the submissions of Dr. Rajeev Dhavan that the vacancies,  which  had  arisen
before 17-5-1999 had to be filled under the unamended Rules.

26. It is by now a settled proposition of  law  that  a  candidate  has  the
right to be considered in the light of the  existing  rules,  which  implies
the “rule in force” on the date the consideration took place.  There  is  no
rule of universal or absolute application that vacancies are  to  be  filled
invariably by the law existing on the date  when  the  vacancy  arises.  The
requirement of filling up old vacancies under the old rules  is  interlinked
with the candidate having acquired a right to be considered  for  promotion.
The  right  to  be  considered  for  promotion  accrues  on  the   date   of
consideration of the eligible candidates. Unless, of course, the  applicable
rule, as in Y.V. Rangaiah case lays down any particular  time-frame,  within
which the selection process  is  to  be  completed.  In  the  present  case,
consideration for  promotion  took  place  after  the  amendment  came  into
operation. Thus, it cannot be accepted that any accrued or vested  right  of
the appellants has been taken away by the amendment.”


The law is thus clear that a candidate has the right  to  be  considered  in
the light of the existing rules, namely, “rules in force on  the  date”  the
consideration takes place and that there is no rule of absolute  application
that vacancies must invariably be filled by the law  existing  on  the  date
when they arose.   As against the  case  of  total  exclusion  and  absolute
deprivation of a chance to be considered as in the case  of  Deepak  Agarwal
(supra), in the instant case certain additional posts have been included  in
the feeder cadre, thereby expanding the zone of consideration.   It  is  not
as if the writ petitioners or similarly  situated  candidates  were  totally
excluded.  At best, they now had to compete with some more  candidates.   In
any case, since there was no accrued right nor was there  any  mandate  that
vacancies must be filled invariably by the law existing  on  the  date  when
the vacancy arose, the State was well within its rights  to  stipulate  that
the vacancies be filled in accordance with the Rules as amended.   Secondly,
the process to amend the Rules had also begun well before  the  Notification
dated 24.11.2011.

In our view, the instant case is fully covered by the law laid down by  this
Court in Deepak Agrawal (supra) and the High Court was completely  in  error
in allowing the writ petition and  in  dismissing  the  writ  appeals.   We,
therefore, allow these appeals, set aside  the  judgment  under  appeal  and
dismiss the Writ Petition (Civil) Nos.104, 105,106 153 and 181 of 2012.


Before we part, we must also express that a selection  contemplated  in  the
year 2011 in which the original writ petitioners did not stand excluded  has
been stalled as a result of challenge raised  and  litigation  initiated  by
the original writ petitioners.   In  our  view  the  challenge  was  totally
uncalled for and avoidable.  However, it resulted  in  putting  in  abeyance
the entire process of selection and adversely affected  the  administration.
We, therefore, feel compelled to impose exemplary costs  of  Rs.10,000/-  on
each of the writ petitioners which shall be deposited with  the  High  Court
within six weeks from the date of this order  and  upon  such  deposit,  the
entire amount shall be  made over to the Chief Minister’s  Relief  Fund  for
State of Tripura.



                                                            ..…..…..…………..J.
                                                         (Adarsh Kumar Goel)



                                                                 ….…………………J.
  (Uday Umesh Lalit)

New Delhi,
January 20, 2017













-----------------------
[1]    (2011) 6 SCC 725
[2]     (1983) 3 SCC 284
[3]    (1997) 3 SCC 59

the last seen theory built up on the evidence of P.W.5 and P.W.7 leaves a significant margin of time during which the crime could have been committed by somebody other than the accused. The said fact must go to the benefit of the accused. In this regard, it may be recollected that P.W.5 and P.W.7 have deposed that they had last seen the accused person in the early morning of the date of the occurrence i.e. 12.09.1991 and that they were going away to some other place. Even if the evidence of P.W.12 is to be accepted, all it can be said is that the evidence of the said witness read with the evidence of P.W.5 and P.W.7 disclose that the accused persons were seen in the vicinity of the neighbourhood of the crime little before the same was committed. By itself, the said circumstance cannot lead to any conclusion consistent with the guilt of the accused. 12. The above circumstance, if coupled with the recovery of the ornaments of the deceased from the possession of the accused, at best, create a highly suspicious situation; but beyond a strong suspicion nothing else would follow in the absence of any other circumstance(s) which could suggest the involvement of the accused in the offence/offences alleged. Even with the aid of the presumption under Section 114 of the Evidence Act, the charge of murder cannot be brought home unless there is some evidence to show that the robbery and the murder occurred at the same time i.e. in the course of the same transaction. No such evidence is forthcoming. 13. In view of what has been found above, we do not see as to how the charge against the accused/appellant under Section 302 IPC can be held to be proved. The learned trial court as well as the High Court, therefore, seems to be erred in holding the accused guilty for the said offence. However, on the basis of the presumption permissible under Illustration (a) of Section 114 of the Evidence Act, it has to be held that the conviction of the accused appellant under Section 392 IPC is well founded.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO.1460 OF 2011


RAJ KUMAR @ RAJU                  ...APPELLANT

                            VERSUS

STATE (NCT OF DELHI)            ...RESPONDENT



                               J U D G M E N T

RANJAN GOGOI, J.


1.          The accused appellant had been convicted by  the  learned  trial
Court for the offence punishable under Section 302 read with Section 34  IPC
and has been sentenced to undergo rigorous imprisonment for life and a  fine
of Rs.2,000/-, in default, to suffer rigorous imprisonment for a  period  of
two months more.  He has also been convicted  under  Section  411  IPC   and
sentenced  to  undergo  rigorous  imprisonment  for  one  year.   Both   the
sentences  were  directed  to  run  concurrently.  In  appeal,   while   the
conviction under Section 302 IPC has been  maintained  along  with  sentence
imposed, the conviction under Section 411 IPC has been set  aside.  Instead,
the  accused  appellant  has  been  convicted  for  commission  of   offence
punishable  under  Section  392  IPC  and  sentenced  to  undergo   rigorous
imprisonment for one year for commission of  the  said  offence.  Aggrieved,
this appeal has been filed.
2.          We have heard the learned counsels for the parties.
3.          The entire case of the prosecution is  based  on  circumstantial
evidence.  P.W.5  –  Ombir  Singh,  the  husband  of  the  deceased  in  his
deposition has stated that  he resides with his wife,  three  children,  his
sister Raj Bala (P.W.9) and niece  Sarvesh  (P.W.21).   Accused  Raj  Nirmal
Gautam @ Raju (since deceased) was a tenant in  one  of  the  two  rooms  in
their house. On 11th September, 1991 at around 9.00 p.m. accused Raj  Nirmal
Gautam along with the present appellant Raj Kumar and one more person  named
Dharmender alias Babloo came to his house and together they  played  a  game
of cards.  After some time he went to his room and slept.  Raj  Nirmal,  Raj
Kumar (appellant herein) and Dharmender stayed in the  room  for  the  night
and left early next morning at about 6.30 a.m.  While leaving,  accused  Raj
Nirmal told P.W. 5 that he was going to his village and may not  return  for
the night.  At around 7.30 a.m., his sister Raj Bala  (P.W.9)  who  used  to
reside with him, his niece Sarvesh and the  children  left  for  school.  He
also left for his workplace at around 7.35 a.m.  According  to  P.W.  5,  at
about 2.30 p.m. he received a telephone call in  his  office  informing  him
that his wife had met with an accident.   He,  therefore,  reached  home  by
3.30 p.m. and found the dead body  of  his  wife.   The  almirah  was  found
unlocked and all the goods therein lying scattered.  A number  of  jewellery
items including gold ornaments were found missing.
4.          The accused Raj Nirmal Gautam and Raj Kumar  (appellant  herein)
were apprehended on 16th September, 1991 when they  were  alighting  from  a
bus. On their personal search, various jewellery items were  recovered  from
them which were duly seized by seizure memos Ex.PW-14/C and Ex.PW-14/D.  The
jewellery items so  recovered  from  the  possession  of  the  accused  were
identified by P.W.5 (Ombir Singh) to be belonging to his wife.  The  accused
had  no  reasonable  explanation  to  offer  for  their  possession  of  the
jewellery items. They however claimed that they were not guilty.

5.          P.W. 21 – Sarvesh deposed that at  around  10.15  a.m.  she  had
come back to the  house for lunch and at that time  she  found  the  accused
persons present in the house and were  playing  cards.  Her  aunt  gave  her
lunch and after that she again left for school. When she  returned  at  1.00
p.m. she saw her aunt Suman lying in the kitchen.   P.W.  21  was,  however,
disbelieved by the learned trial Court as she  was  found  to  have  falsely
implicated accused Jagpal who  has  been  acquitted  by  the  learned  trial
court.
6.          P.W.9 – Raj Bala, sister of P.W.5, in her evidence  had  deposed
that in the night of 11.09.1991 the accused persons were  in  the  room  and
they had left early in the morning of the next day. She has further  deposed
that she is a teacher in the school and had accompanied P.W.21 and  the  two
children of P.W.5 to school in the morning at about 7.30 a.m. She  has  also
deposed that at about 12.00–12.30 p.m. she had  sent  the  two  children  of
P.W.5 back home with an Aaya and on being informed  by  the  Aaya  that  her
sister-in-law (deceased) was not available in the house, she  came  home  to
find her sister-in-law lying dead in the kitchen.
7.          P.W.12 – Dhani Ram had deposed that  he  had  seen  the  accused
persons moving around in the neighbourhood looking  perplexed.   An  attempt
was made to discredit the said witness in view  of  his  further  deposition
that he had seen the accused in  police  custody  on  13th  September,  1991
whereas, according  to  the  prosecution,  accused  were  arrested  on  16th
September, 1991 when they were alighting from a  bus.  The  said  contention
was  negatived  by  the  High  Court  on  the  ground  that  the   aforesaid
discrepancy is on account of wrong recapitulation  and  confusion  over  the
specific dates.
8.          P.W. 15 – Raj Kumar, a TSR driver,  also  deposed  that  he  had
occasion to take the three persons including appellant Raj Kumar in his  TSR
at about 11.00 a.m. on 12th September, 1991  and  in  the  course  of  their
conversation he had overheard them discussing  as  to  whether  they  should
have killed “her” or not.  P.W. was disbelieved by the  High  Court  on  the
ground that the conversation attributed by him to the accused is opposed  to
normal human behavior and conduct.
9.          This is the sum total of  the  evidence  on  record.   From  the
above, it transpires that there are two material  circumstances  which  have
been proved by the prosecution.  Firstly, that in the  night  prior  to  the
incident i.e. on 11th September,  1991  the  accused  were  present  in  the
house; and secondly that on 16th September, 1991 from the possession of  the
accused persons recovery of gold ornaments was made which  belonged  to  the
deceased. Such possession has not been explained by  the  accused.  Even  if
the court is to accept the evidence of P.W.12 that in  the  morning  of  the
day of the incident the witness had seen the accused  in  the  neighbourhood
in   a   perplexed   state,   notwithstanding   the    contradictions    and
inconsistencies in the said evidence as already  noticed,  at  the  highest,
another circumstance could be added to  the  above  two,  namely,  that  the
accused persons were seen  in  the  neighbourhood  in  the  morning  of  the
incident. The question that confronts the court is whether on the  basis  of
the aforesaid circumstances the case of the  prosecution  can  be  taken  to
have been proved beyond all reasonable doubts.
10.         Learned  counsel  for  the  appellant  would  contend  that  the
aforesaid circumstances do not conclusively point to the involvement of  the
accused appellant in the crime. The chain leading  to  the  sole  conclusion
that it is the accused persons and nobody else who had committed  the  crime
is not established by the three circumstances set forth above, even  if  all
of such  circumstances  are  assumed  to  be  proved  against  the  accused.
Reliance has also been placed on the decision of this Court in the  case  of
Sanwat Khan and Anr. vs. State  of  Rajasthan[1],  wherein  this  Court  had
taken the view that recovery of ornaments of the deceased from  the  accused
or production of the same by the accused in  the  course  of  investigation,
howsoever suspicious, cannot be conclusive of the question  of  the  accused
having committed the offence. As per Illustration (a) to Section 114 of  the
Evidence Act, 1872 though recovery of the ornaments can lead to  presumption
that the accused had committed robbery or received stolen  property,  unless
there are circumstances to show that the theft/robbery and the  murder  took
place in the same transaction, the accused  would  not  be  liable  for  the
offence under Section 302 IPC.
11.         The facts in Sanwant Khan (supra) bear  a  striking  resemblance
to the facts that confront us in the present  appeal.  If  the  evidence  of
P.W.12 is to be discarded on the ground that such evidence is vague,  (there
is no mention of the date on which P.W.12 had seen  the  accused  person  in
the neighbourhood and also  as  the  said  testimony  runs  counter  to  the
prosecution case about arrest of the accused on 16.09.1991)  the  last  seen
theory built up on the evidence of P.W.5  and  P.W.7  leaves  a  significant
margin of time during which the crime could have been committed by  somebody
other than the accused. The  said  fact  must  go  to  the  benefit  of  the
accused. In this regard, it may be recollected that  P.W.5  and  P.W.7  have
deposed that they had last seen the accused person in the early  morning  of
the date of the occurrence i.e. 12.09.1991 and that they were going away  to
some other place. Even if the evidence of P.W.12 is to be accepted,  all  it
can be said is that the evidence of the said witness read with the  evidence
of P.W.5 and P.W.7 disclose that  the  accused  persons  were  seen  in  the
vicinity of the neighbourhood of  the  crime  little  before  the  same  was
committed. By itself, the said circumstance cannot lead  to  any  conclusion
consistent with the guilt of the accused.
12.         The above circumstance, if coupled  with  the  recovery  of  the
ornaments of the deceased from the  possession  of  the  accused,  at  best,
create a highly suspicious situation; but beyond a strong suspicion  nothing
else would follow in the absence of any other  circumstance(s)  which  could
suggest the involvement of the  accused  in  the  offence/offences  alleged.
Even with the aid of the presumption under Section 114 of the Evidence  Act,
the charge of murder cannot be brought home unless there  is  some  evidence
to show that the robbery and the murder occurred at the same  time  i.e.  in
the course of the same transaction. No such evidence is forthcoming.
13.         In view of what has been found above, we do not see  as  to  how
the charge against the accused/appellant under Section 302 IPC can  be  held
to be proved. The learned trial court as well as the High Court,  therefore,
seems to be erred in holding  the  accused  guilty  for  the  said  offence.
However, on the basis of the presumption permissible under Illustration  (a)
of Section 114 of the Evidence Act, it has to be held  that  the  conviction
of  the  accused  appellant  under  Section  392  IPC   is   well   founded.
Consequently, we hold that the prosecution has  failed  to  bring  home  the
charge under Section 302 IPC against the accused and he is acquitted of  the
said offence. The conviction  under  Section  392  IPC  is  upheld.  As  the
accused appellant, who is presently  in  custody,  had  already  served  the
sentence awarded to him under Section 392 IPC, we direct that he be  set  at
liberty forthwith.
14.         The appeal, consequently, is partly  allowed  in  terms  of  the
above.

                                                     ....................,J.
                                          (RANJAN GOGOI)


                                                     ....................,J.
                                                             (ASHOK BHUSHAN)

NEW DELHI
JANUARY 20, 2017
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[1]    AIR 1956 SC 54