Is Rule 13(v) of the Rajasthan Panchayati Raj Prabodhak Service Rules, 2008 , insofar as it provides age relaxation to the persons serving under educational projects discriminatory and contrary to Article 14 of the Constitution of India; Was the award of bonus marks to the project employed applicants discriminatory and ultra vires the Rules; Were the guidelines sanctioning the award of bonus marks on a differential basis for applicants with project experience and other applicants invalid for any other reason.

[2024] 7 S.C.R. 196 : 2024 INSC 466

Mahesh Chand Bareth & Anr.

v.

State of Rajasthan & Ors.

(Civil Appeal No. 7906 of 2010)

08 July 2024

[Surya Kant and K. V. Viswanathan,* JJ.]

Issue for Consideration

Is Rule 13(v) of the Rajasthan Panchayati Raj Prabodhak Service

Rules, 2008 , insofar as it provides age relaxation to the persons

serving under educational projects discriminatory and contrary to

Article 14 of the Constitution of India; Was the award of bonus

marks to the project employed applicants discriminatory and ultra

vires the Rules; Were the guidelines sanctioning the award of bonus

marks on a differential basis for applicants with project experience

and other applicants invalid for any other reason.

Headnotes†

Rajasthan Panchayati Raj Prabodhak Service Rules, 2008 –

r.13(v) – Age relaxation – Selection to the post of Prabodhak

(Teacher) – Constitution of India – Article 14 – r.13(v), if

discriminatory and contrary to Article 14:

Held: Validity of r.13(v) is upheld – The relaxation provided for in

r.13(v) is not arbitrary or unreasonable – Fixing of minimum and

maximum age requirement is a policy decision – r.13 reveals that

the minimum age required was 23 years and the maximum outer

limit was 35 years – In the proviso there were several categories

to which relaxation was granted – The challenge of the appellants

is only to sub clause (v) – Insofar as the clause (v) is concerned,

the historical background leading to the enactment of the Rules

itself provides a justification for granting relaxation to the persons

serving under the educational project, if they fulfil the condition that

they were within the age limit when they were initially engaged –

The projects were designed to deal with absentee teachers in

the far flung areas which was causing a serious jeopardy to the

education of the rural children – The para teachers worked under

difficult circumstances – They had the advantage of interacting

personally with the children of the far-flung areas – They only

received an honorarium – The projects themselves played a large

* Author

[2024] 7 S.C.R. 197

Mahesh Chand Bareth & Anr. v. State of Rajasthan & Ors.

part in uplifting the elementary education programme in the State

of Rajasthan – The para teachers motivated the children to come

to school – It was in this background that the grade of ‘Prabodhak’

(teacher) and Senior ‘Prabodhak’ were encadred and separate rules

enacted – Those who served in projects formed a separate class –

There was a valid classification based on intelligible differentia which

distinguished applicants with project experience and those who

lacked project experience – The differentia had a rational relation

to the object sought to be achieved by the Rules – The job of a

Prabodhak was exactly the job that the para teachers carried out in

the projects and if the Government felt that the experience gained

by them should not be lost and in that regard granted them age

relaxation, provided they fulfil the condition of being within the age

limit at the time of their initial appointment in the project, no fault can

be found with the same – No error, perversity or mala fide in the

criterion adopted on the peculiar facts of the present case – Also,

there is no illegality in the prescription of additional marks for those

applicants who had experience of working in projects, while recruiting

Prabhodhaks – The statutory rules in r.13(v) recognize that project

employed applicants were a class apart with the idea being that

their experience should not be wasted Before the advertisement

was issued, the guidelines setting out various aspects including

the aspect of bonus marks were issued and no infirmity can be

found with the same – Opportunity was given to all, with the only

difference being that by an executive instruction additional marks

were granted for project experience – The executive guidelines only

supplemented the Rules and did not supplant them – No illegality

in the award of bonus marks. [Paras 20, 22-25, 28, 29, 37]

Case Law Cited

Union of India & Ors v. Shivbachan Rai (2001) 9 SCC 356; Srinivas

K. Gouda v. Karnataka Institute of Medical Sciences and Others

[2021] 6 SCR 1144 : (2022) 1 SCC 49 – relied on.

Satya Dev Bhagaur & Ors. Vs. The State of Rajasthan & Ors.

(2022) 5 SCC 314 – held applicable.

Bedanga Talukdar vs. Saifudaullah Khan & Ors. [2011] 11 SCR

635 : (2011) 12 SCC 85; State of Maharashtra vs. Raj Kumar

(1982) 3 SCC 313; Kailash Chand Sharma vs State of Rajasthan

& Ors. [2002] Supp. 1 SCR 317 : (2002) 6 SCC 562; Official

Liquidator vs. Dayanand & Ors. [2008] 15 SCR 331 : (2008) 10 

198 [2024] 7 S.C.R.

Digital Supreme Court Reports

SCC 1; State of Rajasthan vs. Archana (2017) 11 SCC 421; Manoj

Kumar Acharya vs. State of Rajasthan & Ors. (Civil Appeal 12335

of 2016 dated 18.01.2022) – held inapplicable.

List of Acts

Rajasthan Panchayati Raj Prabodhak Service Rules, 2008;

Constitution of India; Rajasthan Panchayati Raj Act, 1994.

List of Keywords

Rule 13(v) of the Rajasthan Panchayati Raj Prabodhak Service

Rules, 2008; Service Rules; Prabodhak; Senior Prabodhak;

Teachers; Advertisement; Recruitment; Service conditions;

Age relaxation not discriminatory and contrary to Article 14;

Age relaxation to persons serving under educational projects;

Educational projects; Fixing of minimum and maximum age

requirement; Within the age limit at the time of initial appointment;

Direct recruitment; Policy decision; Project employed applicants;

Bonus marks; Bonus marks to project employed applicants;

Bonus marks for teaching experience; Far flung areas; Children

of the far-flung areas; Encouraging/motivating children to attend

schools; Absentee teachers; Education of rural children; Para

teachers; Difficult circumstances; Honorarium; Dropouts; Drop

out of students; Dropouts from schools; Elementary education

programme; Separate class; Valid classification; Valid classification

based on intelligible differentia; Intelligible differentia; Project

experience; Guidelines sanctioning the award of bonus marks

on differential basis; Lack of Project experience; Differentia

had a rational relation to the object sought to be achieved;

Executive instruction; Executive guidelines; Executive guidelines

supplemented the Rules and did not supplant them; Rajiv Gandhi

Pathshala; Shiksha Karmi Board; Lok Jumbish Pariyojana;

Sarva Shiksha Abhiyan; District Primary Education Programme;

Guidelines in public domain; Rules of the game were not changed

after the match had begun; Error; Perversity; Mala fide.

Case Arising From

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 7906 of 2010

From the Judgment and Order dated 21.05.2010 of the High court of

Rajasthan at Jaipur in DBSAW No. 402 of 2009

With

[2024] 7 S.C.R. 199

Mahesh Chand Bareth & Anr. v. State of Rajasthan & Ors.

Civil Appeal No. 7250 of 2024, Civil Appeal Nos. 8656-8668, 9618,

10709, 10712, 10711 and 10710 of 2011, Civil Appeal Nos. 6898, 1668

and 1038 of 2012, Civil Appeal Nos. 11332, 11442 and 11407 of 2011,

Civil Appeal Nos. 4559, 6096-6104 and 8661 of 2012, Civil Appeal Nos.

7251-7252 of 2024, Civil Appeal No. 322 of 2013, Civil Appeal Nos.

9328-9331 and 10281 of 2010, Civil Appeal Nos. 2800-2802, 2806-2808,

2803, 2804-2805, 2980, 2978, 2979, 2976, 2977, 4569, 3732, 5180,

5183, 3731, 5182 and 7646 of 2011, Civil Appeal No. 1210 of 2012,

Civil Appeal No. 8302 of 2010, Civil Appeal Nos. 2982, 2981, 2921,

3730, 4688, 4745 and 5258 of 2011 and Civil Appeal No. 8215 of 2013

Appearances for Parties

Sushil Kumar Jain, Ms. Archana Pathak Dave, Dr. Manish Singhvi,

Sr. Advs., Puneet Jain, Mrs. Christi Jain, Ms. Akriti Sharma, Mann

Arora, Ms. Lisha Bhati, Ms. Pratibha Jain, Ms. Chitrangda Rastravara,

Aishwary Mishra, Dhananjai Shekhwat, Dashrath Singh, Anirudh

Singh, Rakesh Dahiya, Aditya Dahiya, Kapil Dahiya, Satyavan

Kudalwal, Praveen Swarup, Sarad Kumar Singhania, P. K. Jain,

Ajay Choudhary, Rameshwar Prasad Goyal, Abhijeet Singh, Anjali

Saxena, Gp. Capt. Karan Singh Bhati, Bankey Bihari Sharma, Ajit

Kumar Thakur, R N Verma, Sanjay Misra, Mukul Kumar, H. D.

Thanvi, Rishi Matoliya, Nikhil Kumar Singh, Raghuveer Pujari, Ms.

Sumati Sharma, Ms. Parul Shukla, Udayaditya Banerjee, Ms. Tanvi

Chuphal, Ms. Shubhangi Pandey, Abhishek Kumar, Ms. Deeksha

Saggi, Rituparn Uniyal, B Tyagi, Nayyar Siddiqui, Ram Lal Roy,

Milind Kumar, Ms. Shubhangi Agarwal, Apurv Singhvi, Rohan Darade,

Nikilesh Ramachandran, Ms. Ruchi Kohli, Sandeep Kumar Jha, Ranbir

Singh Yadav, Prateek Yadav, Puran Mal Saini, Pati Raj Yadav, Ms.

Akansha Singh Yadav, Ankit Yadav, Dr. Nirmal Chopra, Ms. Pragati

Neekhra, Ram Nath, Ms. Kalpana Kumari, Dr. Sushil Balwada, R.K.

Rathore, Sandeep Singh Dingra, Amit Kumar Chawla, Ms. Tanishka

Grover, Niharika Dewivedi, Mahi Pal Singh, Ms. Manisha Chawla, T.R.

Meena, Vijay Rathore, Satpal Singh, Advs. for the appearing parties.

Judgment / Order of the Supreme Court

Judgment

K.V. Viswanathan, J.

1. Leave granted in SLP (Civil) No. 34742 of 2013 and SLP (Civil) No.

34663 of 2013.

200 [2024] 7 S.C.R.

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2. This batch of 47 appeals involves common questions of law. They

arise from the judgments of the Division Bench of the High Court of

Judicature for Rajasthan at Jaipur Bench, Jaipur. The main appeal,

namely, Civil Appeal 7906 of 2010 (Mahesh Chand Bareth & Anr.

Vs. State of Rajasthan & Ors.) (hereinafter referred to as ‘Mahesh

Chand Bareth’) arises out of a judgment of the Division Bench of

the High Court of Judicature for Rajasthan at Jaipur Bench, Jaipur

in D.B. Civil Special Appeal No. 402 of 2009 dated 21.05.2010.

The other matters arise out of the same batch as Mahesh Chand

Bareth or out of the judgments relying on Mahesh Chand Bareth or

based on the judgments which, in turn, relied on Mahesh Chand

Bareth. By virtue of the said judgments, the appellants were denied

relief. The appellants challenged the selection of candidates to the

post of “Prabodhak” (teacher) by virtue of advertisement issued on

31.05.2008. Recruitment and other service conditions for the post of

Prabodhak are governed by the Rajasthan Panchayati Raj Prabodhak

Service Rules, 2008 (hereinafter referred to as the ‘Rules’).

3. About 20060 vacancies were advertised and the vacancies came to

be filled up soon thereafter. The grievance of the appellants is that

their candidature should also be considered for the appointment on

the post of ‘Prabodhak’, by adopting similar criteria in the grant of

bonus marks for teaching experience as was done in the case of the

applicants who had experience of working in Government educational

projects. Their further grievance is that Rule 13(v) of the Rules

insofar as it provides for age relaxation to those persons serving

under educational projects is a provision which is unconstitutional

and invalid.

Background facts:

4. A brief narration of the background facts is essential for appreciating

the issues involved in this case. The Shiksha Karmi Project was a

unique initiative launched in the State of Rajasthan in 1987 with

assistance from the Swedish International Development Cooperation

Agency (SIDA). The object was to seek to reach out to children

in remote rural areas where the formal primary schools are either

not in existence or dysfunctional. Local youth with some basic

educational qualifications were identified, trained and provided

continuous educational support to teach children in Shiksha Karmi

Day Schools, Prehar Pathshalas (Schools of convenient timings)

and Angan Pathshalas (Courtyard Schools). 

[2024] 7 S.C.R. 201

Mahesh Chand Bareth & Anr. v. State of Rajasthan & Ors.

5. The concept of Shiksha Karmi Project (as is clear to us from the

document containing a study, placed on record by the appellants)

indicates that the Shiksha Karmi Project rested on the assumption

that barefoot teachers belonging to the local community, who enjoy

local community support if intensively trained, can overcome lack of

formal educational qualification.

6. They were selected through an established procedure laid out in the

manuals and once the Gram Sabha voted on the creation of a Shiksha

Karmi School, spot tests were held to identify Shiksha Karmis. The

Shiksha Karmi Project had significant overlaps with the Lok Jumbish

Project and the District Primary Education Programme (DPEP).

7. The Shiksha Karmi Project was fairly successful in reaching out

to children from disadvantaged communities. A person serving in

various educational projects possessed rich experience of teaching

and motivating people for education in rural areas. The workers were

engaged in the name of Shiksha Karmis to address the problem

of teacher absenteeism, poor enrolment, high dropout trends and

inadequate access to education. The workers were to get only

a fixed honorarium. The projects were introduced to accelerate

universalization of elementary education. After the passage of the

83rd Constitutional Amendment and the setting up of an elected

Panchayat structure, the project worked in tandem with the elected

representative members of the Panchayat.

Formulation of Rules:

8. When matters stood thus, a Cabinet note was prepared which set

out that to provide access to education to children living in far-flung

areas/difficult terrain/small villages (Hamlet) called Dhanis, a new

regular cadre in the name of Prabodhak and Senior Prabodhak be

created. As a first step, Section 89 of the Rajasthan Panchayati Raj

Act, 1994 was amended and in 89(2)(v) ‘Prabodhak’ and ‘Senior

Prabodhak’ were added as one of the grades. Section 89(2)(v), (5)

& 6B reads as under:

“89. Constitution of the Rajasthan Panchayat Samiti

and Zila Parishad Service.

(2) The Service may be divided into different categories,

such category being divided into different grades, and

shall consist of -

202 [2024] 7 S.C.R.

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(v) Prabodhak and Senior Prabodhak.

(5) All appointed to posts in the service shall be made-

(a) by direct recruitment; or

(b) By promotion ; or

(c) by transfer.

6B. Appointed on the posts specified in clause (v) of Subsection (2) Shall be made by additional Chief Executive

Office-cum-District Education officer (ElementaryEducation) of the District concerned in accordance with

the rules made in this behalf by the State Government,

from out of persons selected for the posts by the

recruitment committee constituted by the Government in

accordance with the rules made by the State Government

in this Behalf:

9. Thereafter, in accordance with Section 102 of the Rajasthan

Panchayati Raj Act, 1994 were framed the Rajasthan Panchayati

Raj Prabodhak Service Rules, 2008. Certain relevant clauses of

the Rules are extracted hereunder:

“2. Definitions.

In these rules unless the context otherwise requires,-

(c) “Direct recruitment” means recruitment made in

accordance with Part IV of these rules;

(k) “Teaching Experience” for the purpose of direct

recruitment includes the experience gained in supervisory

capacity in any recognized educational institution or

project;

6. Methods of Recruitment.

Recruitment to the service after the commencement of

the rules shall be made by the following methods:-

(a) by direct recruitment in accordance with Part IV of

these rules,

(b) by promotion in accordance with Part V of these rules.

[2024] 7 S.C.R. 203

Mahesh Chand Bareth & Anr. v. State of Rajasthan & Ors.

13 Age.

A candidate for direct recruitment to a post enumerated

in the Schedule must have attained the age of 23 years

and must not have attained the age of 35 years on the

first day of January following the last date fixed for receipt

of applications:

Provided

(v) that the person serving under the educational project

in the State viz Rajiv Gandhi Pathshala/Shiksha Karmi

Board/Lok Jumbish Pariyojana/Sarva Shiksha Abhiyan/

District Primary Education Programme shall be deemed

to be within age limit, had they been within the age limit

when they were initially engaged even though they may

have crossed the age limit at the time of direct recruitment.

14. Academic and Professional Qualifications.

A candidate for direct recruitment to the posts specified

in the Schedule shall, in addition to such experience as

is required shall possess –

(i) the qualification and experience given in column 6

of the schedule, and

(ii) working knowledge of Hindi written in Devnagri Scripts

and knowledge of Rajasthani culture.

25. Recommendation of the Committee:-

The committee shall prepare a list of the candidates

whom, they consider suitable for appointment to the posts

concerned, arranged in the order of merit and forward the

same to the Appointing Authority:

Provided that the Committee may, to the extent of 50%

of the advertised vacancies, keep names of suitable

candidates on the reserve list. The names of such

candidates may, on requisition, be recommended in the

order of merit to the Appointing Authority within 6 months

from the date on which the Committee forwards the original

list to the Appointing Authority.

204 [2024] 7 S.C.R.

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Schedule

S.

No.

Name of

Post

Method of

Recruitment

with

percentage

Post from

which

promotion

is to be

made

Qualifications

and

experience

for Promotion

Qualification

and

experience

for direct

Recruitment

Remarks

2 Prabodhak

(4500-

7000)

100% by

Direct

Recruitment

- - Senior

Secondary

School

Certificate or

Intermediate or

its equivalent,

with Diploma

or certificate in

basic teachers

training of a

duration of

not less than

two years of

Diploma or

certificate in

elementary

teachers

training of a

duration of not

less than two

years.

OR

Bachelor of

Elementary

Education (B.

El. Ed.)

OR

Graduation

with Bachelor

of Education

(B. Ed.) or its

equivalent

AND

Must have at

least 5 years

continuous

teaching

experience

without any

break in any

recognized

educational

institution/

educational

project.

[2024] 7 S.C.R. 205

Mahesh Chand Bareth & Anr. v. State of Rajasthan & Ors.

Guidelines of 27.05.2008 & advertisement of 31.05.2008:

10. Before the advertisement was issued on 31.05.2008, appropriate

guidelines were formulated on 27.05.2008 for the purpose of

selection of Prabodhak. The guidelines dealt with various aspects

including award of bonus marks. Among the matters dealt with

apart from educational qualifications and emoluments were also

matters pertaining to disqualification if the applicant had more than

two children on or after 01.06.2002; disqualification with regard

to persons having more than one spouse and of persons who

had obtained dowry during their weddings. The guidelines also

dealt with the requirements with regard to community certificate;

reservation of 30% for women of which 5% was to be for widows;

requirements of age limit and relaxation. One of the clauses

provided as under :

“Selection Process: -

Selection will be done entirely through interview for which

a total of 100 marks have been allotted.

The classification of these numbers is as follows: -

General Knowledge – maximum 40 marks

Personality – maximum 35 marks

Experience - maximum 25 marks

A maximum of 10 marks will be given according to 2 marks

per year for a maximum of 5 years of teaching/supervision

experience. If the experience is for the employee receiving

honorarium under the projects run by the state government,

then he will be given 5 marks for each academic session,

maximum 25 marks.”

11. Thereafter, on 31.05.2008, advertisement for district-wise recruitment

for the post of Prabodhak was issued and selection came to be

made. The appellants, who are teachers in recognized educational

institutions filed writ petitions aggrieved by the award of excess

bonus marks for the candidate with project experience. In some

writ petitions, the age relaxation granted to the project employed

applicants were also challenged. 

206 [2024] 7 S.C.R.

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Contentions of Appellants:

12. The appellants contend that Rule 13 (v) of the Rules providing age

relaxation only to a few categories of teachers of certain government

projects and denial of the same to other similarly situated teachers is

discriminatory and violative of Article 14 of the Constitution of India.

Insofar as the award of bonus marks is concerned, learned counsels

relying on Rule 2(k) which deals with teaching experience, point

out that granting additional marks to para teachers having teaching

experience from government projects is ultra vires the Rules.

13. Learned counsels also contend that the advertisement of 31.05.2008

did not sanction the grant of bonus marks and the administrative

guidelines dated 27.05.2008 were not brought in public domain. It

was argued that the rules of the game have been changed after

the match has begun. It was contended that if the intention of the

legislature was to create the said post only for para teachers working

in project, the same would not have been offered to private and other

teachers at all. Learned counsels further contend that the Rules do

not provide for grant of any bonus marks. Learned counsels for the

appellants argued that the effect of awarding extra bonus marks for

project experience has the effect of an indirect absorption of all the

project appointees and this, according to learned counsels, was

contrary to the Rules. Learned counsels for the appellants relied

on the judgment in Bedanga Talukdar vs. Saifudaullah Khan &

Ors., (2011) 12 SCC 85 to argue that the selection process should

be strictly in accordance with the stipulated selection procedure.

Learned counsels also cited State of Maharashtra vs. Raj Kumar,

(1982) 3 SCC 313.

Contentions of the State:

14. The State contended that there was a historical background to the

introduction of the Rules; that there was a laudable objective of

achieving the universalization of elementary education and such

educational projects initiatives had led to significant increase in

literacy rate in Rajasthan from 38% to 66% between 1991 to 2011;

that persons who had worked in the aforesaid educational projects

were having valuable experience working in far flung areas and had

direct interaction and connection with children. That the projects

were started to mitigate the absenteeism of teachers in the rural

areas especially in small villages. Added to this, there were dropouts 

[2024] 7 S.C.R. 207

Mahesh Chand Bareth & Anr. v. State of Rajasthan & Ors.

from schools and to tackle all these several initiatives in the form of

educational projects were introduced.

15. According to the State, ‘Prabodhak’ was to facilitate and encourage

children to attend schools. The State contended that as part of the

selection process guidelines for the purpose of giving marks for

experience can always be legally prescribed. All the Prabodhaks who

were recruited possessed the minimum educational qualification and

according to the State that was clear from the advertisement, which

contained a specific clause with regard to the minimum qualification of

Basic School Teaching Certificate (BSTC) for primary and Bachelor of

Education (B.Ed) for imparting education for middle school students.

16. The State contended that the experience gained in the projects has

reasonable nexus with the concept of Prabodhak for which the newly

framed Prabodhak Rules and Cadre were created. Insofar as age

relaxation was concerned, it was contended by the State that it was

meant for persons who worked in the projects after joining within the

age limit but have now become over age. According to the State,

the idea was not to oust from consideration these persons who had

worked in the education projects for significant number of years. Hence

age relaxation was provided to them. According to the State, there

was nothing discriminatory about it. In support of the submission,

learned counsels for the State relied on Satya Dev Bhagaur & Ors.

Vs. The State of Rajasthan & Ors., (2022) 5 SCC 314.

17. The learned Single Judge and the Division Bench declined relief to

the appellants. Aggrieved the appellants are before us. We have

also heard the learned counsels for the parties proposing to implead

or intervene.

Questions for consideration:

18. The two questions that arise for consideration are:

i. Is Rule 13(v) of the Rules, insofar as it provides age relaxation

to the persons serving under educational projects discriminatory

and contrary to Article 14 of the Constitution of India?

ii. Is the award of bonus marks to the project employed applicants

discriminatory and ultra vires the Rules? Are the guidelines

of 27.05.2008 sanctioning the award of bonus marks on a

differential basis for applicants with project experience and

other applicants invalid for any other reason?

208 [2024] 7 S.C.R.

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Question No. 1:

19. To answer this, a full look at Rule 13 is essential:

“13. Age.

A candidate for direct recruitment to a post enumerated

in the Schedule must have attained the age of 23 years

and must not have attained the age of 35 years on the

first day of January following the last date fixed for receipt

of applications :

Provided -

(i) that the upper age limit mentioned above, shall be

relaxed by 5 years in the case of male candidates

belonging to the Scheduled Castes, Scheduled Tribes

and the Other Backward classes.

(ii) that the upper age limit mentioned above shall be

relaxed by 5 years in case of women candidates

belonging to General Category.

(iii) that the upper age limit mentioned above shall be

relaxed by 10 years in the case of women candidates

belonging to the Scheduled Castes, Scheduled Tribes

and the Other Backward classes.

(iv) that the upper age limit mentioned above shall be 50

years in the case of Ex-service personnel and the

reservists, namely the Defence Service Personnel

who were transferred to the reserve.

(v) that the person serving under the educational project

in the State viz Rajiv Gandhi Pathshala/Shiksha

Karmi Board/Lok Jumbish Pariyojana/Sarva Shiksha

Abhiyan/District Primary Education Programme shall

be deemed to be within age limit, had they been within

the age limit when they were initially engaged even

though they may have crossed the age limit at the

time of direct recruitment.

(vi) that the upper age limit mentioned above shall be

relaxed by a period equal to the service rendered

in the NCC in the case of Cadet instructors and if 

[2024] 7 S.C.R. 209

Mahesh Chand Bareth & Anr. v. State of Rajasthan & Ors.

the resultant age does not exceed the prescribed

maximum age limit by more than three years, they

shall be deemed to be within the prescribed age limit.

(vii) that the Released Emergency Commissioned Officers

and Short Service Commissioned Officers after

release from the Army shall be deemed to be within

the age limit even though they have crossed the age

limit when they appear before the Committee had

they been eligible as such at the time of their joining

the Commission in the Army.

(viii) that there shall be no upper age limit in the case of

widows and divorced women.”

20. Fixing of minimum and maximum age requirement is a policy decision.

In this case, the said decision is engrafted in Rule 13. A careful

perusal of the Rule reveals that the minimum age required was 23

years and the maximum outer limit was 35 years. In the proviso

there are several categories to which relaxation has been granted.

Under clause (i) of the proviso, a relaxation of 5 years is granted

to male candidates belonging to the Scheduled Castes, Scheduled

Tribes and the Other Backward classes. Under clause (ii) of the

proviso, the upper age limit is relaxed by 5 years in case of women

candidates belonging to General Category and under clause (iii) it is

relaxed by 10 years in the case of women candidates belonging to

the Scheduled Castes, Scheduled Tribes and the Other Backward

classes. Under Clause (iv), the age relaxation is of 50 years in the

case of Ex-service Personnel and the reservists, namely the Defence

Service Personnel who were transferred to the reserve.

21. Thereafter, we have clause (v) which states that the person serving

under the educational project in the State, namely, Rajiv Gandhi

Pathshala/Shiksha Karmi Board/Lok Jumbish Pariyojana/Sarva

Shiksha Abhiyan/District Primary Education Programme shall be

deemed to be within age limit, had they been within the age limit

when they were initially engaged even though they may have crossed

the age limit at the time of direct recruitment. Thereafter, we have

clause (vi) which states that the upper age limit mentioned above

shall be relaxed by a period equal to the service rendered in the

NCC in the case of Cadet instructors and if the resultant age does

not exceed the prescribed maximum age limit by more than three 

210 [2024] 7 S.C.R.

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years, they shall be deemed to be within the prescribed age limit.

In clause (vii) the Released Emergency Commissioned Officers and

Short Service Commissioned Officers after release from the Army

shall be deemed to be within the age limit even though they have

crossed the age limit when they appear before the Committee had

they been eligible as such at the time of their joining the Commission

in the Army. So finally in clause (viii) it is provided that there shall

be no upper age limit in the case of widows and divorced women.

22. The challenge of the appellants is only to sub clause (v). We find

that the provisions generally including sub clause (v) are not arbitrary

or discriminatory. Insofar as the clause (v) is concerned, as has

been mentioned hereinabove, the historical background leading to

the enactment of the Rules itself provides a justification for granting

relaxation to the persons serving under the educational project, if

they fulfil the condition that they were within the age limit when they

were initially engaged.

23. As the counter affidavit of the State indicates that the projects were

designed to deal with absentee teachers in the far flung areas which

was causing a serious jeopardy to the education of the rural children.

The para teachers, as they were called, worked under difficult

circumstances. They had the advantage of interacting personally

with the children of the far-flung areas. They only received an

honorarium. The projects themselves played a large part in uplifting

the elementary education programme in the State. The para teachers

motivated the children to come to school. It was in this background

that the grade of ‘Prabodhak’ and Senior ‘Prabodhak’ were encadred

and separate rules enacted.

24. No doubt, under the Rules, opportunity to apply was also given to all

those who possess the essential qualifications and who had teaching

experience in any recognized educational institutions apart from the

educational projects. This, however, does not mean that those who

served in projects did not form a separate class. There was a valid

classification based on intelligible differentia which distinguished

applicants with project experience and those who lacked project

experience. Further the differentia had a rational relation to the

object sought to be achieved by the Rules. In fact, the job of a

Prabodhak was exactly the job that the para teachers carried out in

the projects and if the Government felt that the experience gained 

[2024] 7 S.C.R. 211

Mahesh Chand Bareth & Anr. v. State of Rajasthan & Ors.

by them should not be lost and in that regard granted them age

relaxation, provided they fulfil the condition of being within the age

limit at the time of their initial appointment in the project, no fault

can be found with the same.

25. Dealing with the similar challenge in Union of India & Ors v.

Shivbachan Rai, (2001) 9 SCC 356, this Court held that the

prescribing of any age limit for a given post, as also deciding the

extent to which any relaxation can be given to the said age limit

are essentially matters of policy. It was further held that it was open

for the Government while framing the rules to prescribe such age

limits or to prescribe the extent to which any relaxation can be given.

Applying the said principle to this case, we find that the relaxation

provided for in Rule 13(v) is not arbitrary or unreasonable.

Question No.2:

26. Insofar as the award of bonus marks is concerned, a careful perusal

of the guidelines indicates that it was issued before the advertisement

and all that it provided was out of the allotted maximum marks of

25 for the experience, ordinarily 2 marks were to be given for every

year with a cap of 10 marks. However, if the experience is for the

employee receiving honorarium under the projects run by the State

Government, then he was to be given 5 marks for each academic

session with the maximum of 25 marks. Even if part of the experience

was in a project to that extent extra marks were provided to all the

applicants.

27. In the application form, there was a specific column, namely, column

fourteen which asked about details of the experience. The form also

asked for the name of the employer and the address of the institution

employed. Thereafter, there was another column asking for the

post in which they were employed and the period during which the

emoluments were received.

28. Apart from this, the justification offered for defending the age relaxation

is also available for the grant of excess bonus marks. In fact, as is

clear from the background set out above, the creation of the post

of ‘Prabodhak’ and ‘Senior Prabodhak’ was to get the advantage of

the benefits that the projects gave to the State. At the same time,

opportunity was given to all, with the only difference being that by

an executive instruction additional marks were granted for project 

212 [2024] 7 S.C.R.

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experience. The executive guidelines only supplemented the Rules

and did not supplant them.

29. Moreover, intrinsically from Rule 13(v) the validity of which we have

upheld, evidence is available to show that the Rule recognized the

experience gathered from project work stood on a higher pedestal

because it was in tune with the nature of the work of Prabodhak.

Further, under Rule 25, the Committee was to prepare a list of

candidates whom they consider suitable for appointment.

30. In Srinivas K. Gouda v. Karnataka Institute of Medical Sciences

and Others (2022) 1 SCC 49, a notification was issued inviting

applications for the post of Junior Lab Technician. Eligibility and

requirements were prescribed. At the time of selection, the Selection

Committee decided that out of the 15% marks for interview, 10% of

the marks were to be set apart for the length of work experience and/

or additional training in teaching hospitals of the medical college, with

special preference to those who had worked in teaching hospitals

of Government/autonomous medical colleges and the remaining

5% marks were to be assigned to the personality of the candidates

based on viva voice. In the minutes, it was set out as under:

“4. …. It was decided that in order to select the most

suitable candidates, proportionate weightage based on the

length of experience and/or additional training to the extent

of 10 marks be given to those candidates who had work

experience and/or additional training in medical college

teaching hospitals and especially those who had worked

in government/autonomous medical college teaching

hospitals. It was agreed that the type of work in these

institutions most closely resembled the working conditions

at Karnataka Institute of Medical Sciences, Hubli and hence

the candidates who had experience in such institutions

would be the most suitable. It was also decided to set

apart a maximum of 5 marks for the personality of the

candidate and his/her presentation and performance….”

(Emphasis supplied)

31. The appellant in that case was selected and the selection had

been set aside by the Division Bench of the High Court. The

appellant secured 9.5 marks in the experience category while the 

[2024] 7 S.C.R. 213

Mahesh Chand Bareth & Anr. v. State of Rajasthan & Ors.

writ petitioner who had challenged his appointment had secured

one (1) mark under the component of experience. On appeal, the

appellant contended that the selection committee, an expert body,

was entitled to apportion marks, and that the appellant had experience

in Government/Autonomous medical institutions. The writ petitioner

had contended that no explanation was furnished for dividing the

marks and bifurcating the same. This Court while allowing the appeal

in para 19 held as under:

“19. It is in this background that we need to determine

whether the marks allotted to the appellant in the

category of experience and personality are arbitrary. The

appellant at the time of submitting the application had

a one year work experience in Bapuji Medical College,

Devanagere (a private institution) and three years of work

experience with the first respondent. On the other hand,

the respondent at the time of the application, had six

months’ experience of working under a doctor who was

undertaking private practice. Not only did the appellant have

more years of work experience, he had work experience

in a governmental institution. Hence, the marks awarded

to the third respondent and the appellant bore a nexus to

the yardstick determined by the Selection Committee. It

is not the case of the third respondent that the appellant

was given more marks for experience despite having less

work experience. On a comparison of the marks allotted

to both the candidates with reference to the yardstick

determined by the Selection Committee, no mala fides

could be imputed to the Selection Committee. Nor is

there an obvious or glaring error or perversity. The Court

does not sit in appeal over the decision of the Selection

Committee.”

32. In the present case too, we find no glaring error or perversity in the

criterion adopted on the peculiar facts of the present case. No mala

fide could also be attributed to the State and the Selection Committee.

33. Satya Dev Bhagaur (supra) was a case wherein the State of

Rajasthan had issued a notification providing that such of the

candidate who had worked under the Government, Chief Minister

BPL Life Saving Fund, NRHM Medicare Relief Society, AIDS Control 

214 [2024] 7 S.C.R.

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Society, National TB Control Program, Jhalawar Hospital and

Medical College Society, Samekit Rog Nirgrani Pariyojna or State

Institute of Health Family Welfare would be entitled to bonus marks

as per the experience attained. It was provided that for one year of

experience, the bonus marks will be 10, for two years of experience

the bonus marks will be 20 and for three years of experience it will

be 30. This notification was challenged by certain persons who

had experience of working in NRHM Scheme on contract basis

in States other than Rajasthan. They sought a direction to accept

their experience certificate so as to entitle them to obtain the bonus

marks. While the Single Judge allowed the Writ Petitions, the Division

Bench reversed the same and the aggrieved Writ Petitioners were

in Appeal. Examining the question whether bonus marks would

be available to employees of NRHM Scheme in other States, this

Court while repelling the contention held that in matters of policy,

Courts should be slow in interfering, unless the policy is found to

be palpably discriminatory and arbitrary. It was further held that the

court would not interfere with the policy decision when the State was

in a position to point out that there was an intelligible differentia in

the application of the policy and that such intelligible differentia had

a nexus with the object sought to be achieved. On the facts of that

case, the Court held as follows:

“20. It could thus clearly be seen that the Division Bench

in Jagdish Prasad [Jagdish Prasad v. State of Rajasthan,

2016 SCC OnLine Raj 646] after considering the record,

has come to the finding that the Government of Rajasthan

has conducted several training programmes for the persons

working with it on contractual basis, as well as under

different schemes. The training programmes mainly pertain

to the peculiar working pattern in the rural areas of the State

of Rajasthan including tribal and arid zones. The Division

Bench has further come to a finding that participation in

such a training is mandatory and non-joining of the same

would result in non-renewal of service contracts. It has been

held that persons having special knowledge in working

in the State of Rajasthan form a class different than the

persons not having such experience of working in the

State. It was found that the benefit extended by the State

policy was only that of giving a little more weightage on the 

[2024] 7 S.C.R. 215

Mahesh Chand Bareth & Anr. v. State of Rajasthan & Ors.

basis of experience and all the candidates were required

to undergo the rigor of selection process. The Division

Bench has clearly held that the experienced candidates

in other States cannot be compared with the candidates

working in the State of Rajasthan, as every State has

its own problems and issues and the persons trained to

meet such circumstances, stand on a different pedestal.”

34. We find that the ratio laid down in the said judgment is applicable to

the facts of the present case also to uphold the action of the State.

35. The judgment of this Court in Raj Kumar (supra) cited by the learned

counsel for the appellants is clearly distinguishable. That case dealt

with the Rule which provided that any person who has passed the

SSC examination and is supposed to be a rural candidate was to

be given weightage by the Public Service Commission by awarding

10% marks in each subject for such a candidate. It was also provided

that the Viva Voce Board was to put relevant questions to judge

the suitability of the candidate for working in rural areas and to test

whether or not they had sufficient knowledge of rural problems. Rural

candidate was defined to mean a candidate who comes from the

rural area and who has passed SSC examination which is held from

a village or a town having only a ‘C’ type Municipality. The purported

object of the Rule was to take officers who had full knowledge of rural

life, its problems, aptitudes and working of the people in villages. This

Court held that the Rule did not fulfil or carry out the object sought

to be achieved since as the Rules stood any person who may not

have lived in a village at all can appear for SSC Examination from

a village and yet become eligible for selection. The Court found

that there was no nexus between the classification and the object

sought to be achieved. The Court also faulted the weightage marks

given by holding that since in the viva voce questions to judge the

suitability of the candidate for working in rural areas were anyway

being put, there was absolutely no occasion for giving weightage

which would convert demerit into merit and merit into demerit. On

the facts of that case, the Court found the rule of weightage to be

manifestly unreasonable and wholly arbitrary. The said case has no

application to the facts of the present case.

36. Equally the judgment in Kailash Chand Sharma vs State of

Rajasthan & Ors., (2002) 6 SCC 562 has also no application. 

216 [2024] 7 S.C.R.

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This Court in that case held that the award of bonus marks to the

residents of the district and residents of the rural areas of the district

amounts to impermissible discrimination. The Court found that there

was no rational basis for such preferential treatment on the material

placed before the Court. The Court found that the ostensible reasons

advanced by the State were non-existent or irrelevant, having no

nexus with the object sought to be achieved. It also found that no

criteria was set out for determining as to residents in rural areas.

The Court in Kailash Chand Sharma (supra) followed the judgment

in Raj Kumar (Supra).

37. The judgment in Official Liquidator vs. Dayanand & Ors. (2008)

10 SCC 1 cited by the appellants has no connection at all with the

issues raised in the present case. Yet another case cited by the

appellants is Bedanga Talukdar (supra). The appellants relied on

the said judgment to contend that there could be no relaxation in

the terms and conditions contained in the advertisement and even if

there was power of relaxation the same will have to be specifically

indicated in the advertisement. The case is wholly inapplicable. In

this case, before the advertisement was issued, the guidelines setting

out various aspects including the aspect of bonus marks were issued

and, as discussed earlier, no infirmity can be found with the same.

38. Similarly, the judgment in State of Rajasthan vs. Archana (2017)

11 SCC 421 and the judgment in Civil Appeal 12335 of 2016 dated

18.01.2022 in Manoj Kumar Acharya vs. State of Rajasthan

& Ors., cited by the State have no application to the facts of the

present case.

39. The argument that the guideline was not in public domain was not

an argument canvassed either before the learned Single Judge or

before the Division Bench. In any event, the contention does not

impress us on the facts of the present case. The guideline setting

out the selection process was issued before the advertisement and

it was applied uniformly and across the board to all the applicants.

No prejudice has been caused to the applicants even assuming

that the guideline was not in the public domain. It was a procedure

adopted by the recruiting Authority and endorsed by the Selection

Committee. The appellants have had the opportunity to assail the

validity of the prescription of the award of bonus marks and as such

have had a fora to ventilate their grievance. They have failed in the 

[2024] 7 S.C.R. 217

Mahesh Chand Bareth & Anr. v. State of Rajasthan & Ors.

process. Hence, we cannot jettison the guideline on the alleged

ground that it was not in public domain. Equally, since the guidelines

of 27.05.2008 preceded the advertisement of 31.05.2008, there is

no merit in the argument feebly advanced that the rules of the game

had been changed after the match had begun.

40. On the special facts of this case, considering the peculiarity that

obtained in the State of Rajasthan with regard to absentee teachers

and drop out of students and the introduction of the projects with para

legals to address the situation, we find no illegality in the prescription

of additional marks for those applicants who had experience of

working in projects, while recruiting Prabhodhaks. The statutory rules

itself in Rule 13(v) recognize that project employed applicants were

a class apart and the idea being that their experience should not

be wasted. In view of the above, we find no illegality in the award

of bonus marks.

41. In view of the above, we find no merit in the appeals and all the

appeals are dismissed with no order as to costs. All applications for

impleadment and intervention are closed.

Result of the case: Appeals dismissed.

†

Headnotes prepared by: Divya Pandey

Code of Criminal Procedure, 1973 – s.313 – Penal Code, 1860 – s.302 r/w s.34 – Non-compliance of s.313 – Non-questioning on the twin incriminating circumstances to the appellant convicted u/s.302 r/w s. 34, IPC during his examination u/s.313, when the finding of common intention was based on the aforesaid twin incriminating circumstances, if caused material prejudice vitiating the trial qua him: Held: Yes – Non-questioning or inadequate questioning on incriminating circumstances to an accused by itself would not vitiate the trial qua the accused concerned and to hold that the trial qua him is vitiated it is to be established further that it resulted in material prejudice to the accused – Examination of the appellant u/s.313 reveals that both the incriminating circumstances appearing against the appellant in the prosecution evidence viz., exhortation to do away with the lives of the deceased and others in his family and the evidence that the appellant had caught hold of the hands of the deceased to enable his brother-co-accused to stab him repeatedly with knife, were not directly or even indirectly put to him while being examined u/s.313 – The conclusion that the appellant had shared the common intention to commit murder of the deceased was based only on the aforesaid two incriminating circumstances which were not put to him while being questioned u/s.313 – There was no charge of commission of an offence u/s. 300, IPC, punishable u/s. 302, IPC, simplicitor against the appellant, he was charged thereunder with the aid of s.34, IPC – Thus, when the finding of common intention was based on the twin incriminating circumstances and when they were not put to the appellant while he was being questioned u/s.313, and when they ultimately culminated in his conviction u/s.302 with the aid of s.34, IPC, and when he was awarded with the life imprisonment, the appellant was materially prejudiced and it had resulted in blatant miscarriage of justice – The failure is not a curable defect and it is a patent illegality vitiating the trial qua the appellant – Appellant’s conviction cannot be sustained, acquitted – Impugned judgments set aside qua the appellant. [Paras 20, 21, 24, 26, 27] Code of Criminal Procedure, 1973 – s.313 – Non-questioning/inadequate questioning on incriminating circumstances – Prejudice or miscarriage of justice – Onus to establish: Held: Onus to establish the prejudice or miscarriage on account of non-questioning or inadequate questioning on any incriminating circumstance(s), during the examination u/s. 313 is on the convict concerned. [Para 21] Code of Criminal Procedure, 1973 – s.313 – Code of Criminal Procedure (Amendment) Act, 2008 (Act 5 of 2009) – s.313(5) – “actus curiae neminem gravabit” – Contention as regards the non-examination/inadequate examination u/s.313 causing material prejudice to the appellant was not appropriately raised and argued before the High Court and was raised for the first time before Supreme Court – Said contention if can be maintained at this stage: Held: s.313 would reveal the irrecusable obligation coupled with duty on Court concerned to put the incriminating circumstances appearing in the prosecution evidence against accused concerned facing the trial providing him an opportunity to explain – Sub-Section (5) of Section 313 inserted under 2008 Amendment Act lends support to this view – Also, the act of court shall prejudice no one – In a charge for commission of a serious offence where extreme penalty alone is imposable in case the accused is found guilty, procedural safeguards ensuring protection of right(s) of accused must be followed and at any rate, in such cases when non-compliance of the mandatory procedure capable of vitiating trial qua the convict concerned is raised and revealed from records, irrespective of the fact it was not raised appropriately, it must be considered lest the byproduct of consideration of the case would result in miscarriage of justice – Being the Court existing for dispensation of justice, this Court is bound to consider and correct the mistake committed by the Court by looking into the question whether non-examination or inadequate examination of accused concerned caused material prejudice or miscarriage of justice. [Paras 15, 16] Code of Criminal Procedure, 1973 – s.313 – Object: Held: s.313 embodies salutary principle of natural justice viz., audi alteram partem and empowering the Court to examine the accused thereunder is to give the accused concerned an opportunity to explain the incriminating circumstances appearing against him in the prosecution evidence – The general position is that if any incriminating circumstance, appearing against an accused in the prosecution evidence, is not put to him it should not be used against him and must be excluded from consideration – At the same time, it is a well-settled position that non-examination or inadequate examination u/s.313 on any incriminating circumstance, by itself, would not vitiate a trial qua the convict concerned unless it has resulted in material prejudice to him or in miscarriage of justice. [Para 11] Practice and Procedure – Judgment not containing discussion on a particular point – Said point is to be prima facie assumed not to have been argued unless contrary is shown – Contention of the appellant as regards non-examination/inadequate examination u/s.313 causing material prejudice to him, if was argued before the High Court: Held: Normally, it has to be presumed that all the arguments actually pressed at the hearing in the High Court were noticed and appropriately dealt with and if the judgment of the High Court does not contain discussion on a point, then that point should be assumed prima facie not to have been argued at the bar unless the contrary is specifically shown – In the present case, though grounds A to Z and AA to GG were taken in this appeal, there was absolute absence of any contention in any one of them to the effect that despite being pressed into, the contention as regards non-examination u/s. 313 was not taken into consideration and appropriately dealt with by the High Court – Hence, the conclusion can only be that it was not argued. [Para 12]

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[2024] 7 S.C.R. 178 : 2024 INSC 464

Naresh Kumar v. State of Delhi

(Criminal Appeal No.1751 of 2017)

08 July 2024

[C.T. Ravikumar* and Sandeep Mehta, JJ.]

Issue for Consideration

Non-questioning the appellant convicted u/s.302 r/w s.34, Penal Code, 1860 on the twin incriminating circumstances during his examination u/s.313, Code of Criminal Procedure, 1973, if caused material prejudice to him vitiating the trial qua him.

Headnotes

Code of Criminal Procedure, 1973 – s.313 – Penal Code, 1860 – s.302 r/w s.34 – Non-compliance of s.313 – Non-questioning on the twin incriminating circumstances to the appellant convicted u/s.302 r/w s. 34, IPC during his examination u/s.313, when the finding of common intention was based on the aforesaid twin incriminating circumstances, if caused material prejudice vitiating the trial qua him:

Held: Yes – Non-questioning or inadequate questioning on incriminating circumstances to an accused by itself would not vitiate the trial qua the accused concerned and to hold that the trial qua him is vitiated it is to be established further that it resulted in material prejudice to the accused – Examination of the appellant u/s.313 reveals that both the incriminating circumstances appearing against the appellant in the prosecution evidence viz., exhortation to do away with the lives of the deceased and others in his family and the evidence that the appellant had caught hold of the hands of the deceased to enable his brother-co-accused to stab him repeatedly with knife, were not directly or even indirectly put to him while being examined u/s.313 – The conclusion that the appellant had shared the common intention to commit murder of the deceased was based only on the aforesaid two incriminating circumstances which were not put to him while being questioned u/s.313 – There was no charge of commission of an offence u/s. 300, IPC, punishable u/s. 302, IPC, simplicitor against the appellant, he was charged thereunder with the aid of s.34, IPC – Thus, when the finding of common intention was based on the twin incriminating circumstances and when they were not put to the appellant while he was being questioned u/s.313, and when they ultimately culminated in his conviction u/s.302 with the aid of s.34, IPC, and when he was awarded with the life imprisonment, the appellant was materially prejudiced and it had resulted in blatant miscarriage of justice – The failure is not a curable defect and it is a patent illegality vitiating the trial qua the appellant – Appellant’s conviction cannot be sustained, acquitted – Impugned judgments set aside qua the appellant. [Paras 20, 21, 24, 26, 27]

Code of Criminal Procedure, 1973 – s.313 – Non-questioning/inadequate questioning on incriminating circumstances – Prejudice or miscarriage of justice – Onus to establish:

Held: Onus to establish the prejudice or miscarriage on account of non-questioning or inadequate questioning on any incriminating circumstance(s), during the examination u/s. 313 is on the convict concerned. [Para 21]

Code of Criminal Procedure, 1973 – s.313 – Code of Criminal Procedure (Amendment) Act, 2008 (Act 5 of 2009) – s.313(5) – “actus curiae neminem gravabit” – Contention as regards the non-examination/inadequate examination u/s.313 causing material prejudice to the appellant was not appropriately raised and argued before the High Court and was raised for the first time before Supreme Court – Said contention if can be maintained at this stage:

Held: s.313 would reveal the irrecusable obligation coupled with duty on Court concerned to put the incriminating circumstances appearing in the prosecution evidence against accused concerned facing the trial providing him an opportunity to explain – Sub-Section (5) of Section 313 inserted under 2008 Amendment Act lends support to this view – Also, the act of court shall prejudice no one – In a charge for commission of a serious offence where extreme penalty alone is imposable in case the accused is found guilty, procedural safeguards ensuring protection of right(s) of accused must be followed and at any rate, in such cases when non-compliance of the mandatory procedure capable of vitiating trial qua the convict concerned is raised and revealed from records, irrespective of the fact it was not raised appropriately, it must be considered lest the byproduct of consideration of the case would result in miscarriage of justice – Being the Court existing for dispensation of justice, this Court is bound to consider and correct the mistake committed by the Court by looking into the question whether non-examination or inadequate examination of accused concerned caused material prejudice or miscarriage of justice. [Paras 15, 16]

Code of Criminal Procedure, 1973 – s.313 – Object:

Held: s.313 embodies salutary principle of natural justice viz., audi alteram partem and empowering the Court to examine the accused thereunder is to give the accused concerned an opportunity to explain the incriminating circumstances appearing against him in the prosecution evidence – The general position is that if any incriminating circumstance, appearing against an accused in the prosecution evidence, is not put to him it should not be used against him and must be excluded from consideration – At the same time, it is a well-settled position that non-examination or inadequate examination u/s.313 on any incriminating circumstance, by itself, would not vitiate a trial qua the convict concerned unless it has resulted in material prejudice to him or in miscarriage of justice. [Para 11]

Practice and Procedure – Judgment not containing discussion on a particular point – Said point is to be prima facie assumed not to have been argued unless contrary is shown – Contention of the appellant as regards non-examination/inadequate examination u/s.313 causing material prejudice to him, if was argued before the High Court:

Held: Normally, it has to be presumed that all the arguments actually pressed at the hearing in the High Court were noticed and appropriately dealt with and if the judgment of the High Court does not contain discussion on a point, then that point should be assumed prima facie not to have been argued at the bar unless the contrary is specifically shown – In the present case, though grounds A to Z and AA to GG were taken in this appeal, there was absolute absence of any contention in any one of them to the effect that despite being pressed into, the contention as regards non-examination u/s. 313 was not taken into consideration and appropriately dealt with by the High Court – Hence, the conclusion can only be that it was not argued. [Para 12]

Case Law Cited

V.K. Sasikala v. State [2012] 10 SCR 641 : (2012) 9 SCC 771; Suresh Chandra Bihari v. State of Bihar [1994] Supp. 1 SCR 483 : AIR 1994 SC 2420; Wariyam Singh & Ors. v. State of U.P. [1995] Supp. 3 SCR 807 : AIR 1996 SC 305; Amanullah v. State of U.P., AIR 1973 SC 1370; Shobit Chamar & Anr. v. State of Bihar [1998] 2 SCR 117 : AIR 1998 SC 1693; Oil and Natural Gas Company Limited v. Modern Construction and Company [2013] 10 SCR 466 : (2014) 1 SCC 648; Raj Kumar @ Suman v. State (NCT of Delhi) [2023] 5 SCR 754 : 2023 SCC OnLine SC 609; State of Punjab v. Swaran Singh 2005 Supp. 1 SCR 786 : (2005) 6 SCC 101 – referred to.

List of Acts

Code of Criminal Procedure, 1973; Penal Code, 1860; Code of Criminal Procedure (Amendment) Act, 2008 (Act 5 of 2009).

List of Keywords

Section 313 of Code of Criminal Procedure, 1973; Questioning under clause (b) Section 313 of Code of Criminal Procedure, 1973 is mandatory; Conviction under Section 302 read with Section 34, Penal Code, 1860; Examination under Section 313 of Code of Criminal Procedure, 1973; Incriminating circumstances; Non-questioning/inadequate questioning on incriminating circumstances; Material prejudice or blatant miscarriage of justice; Procedural safeguards; Protection of rights of accused; non-compliance of the mandatory procedure; Finding of common intention based on the incriminating circumstances; Exhortation; Non-curable defect; Patent illegality; Trial vitiated; Principle of natural justice viz., “audi alteram partem”; “actus curiae neminem gravabit”; Act of court shall prejudice no one; Contention not argued before the High Court; Contention not raised appropriately.

Case Arising From

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 1751 of 2017

From the Judgment and Order dated 20.12.2016 of the High Court of Delhi at New Delhi in CRLA No. 540 of 2000

Appearances for Parties

S. D. Singh, Ms. Bharti Tyagi, Ms. Shweta Sinha, Ram Kripal Singh, Dhiraj Kumar, Siddharth Singh, Advs. for the Appellant.

Ms. Sonia Mathur, Sr. Adv., Shreekant Neelappa Terdal, Ms. Ruchi Kohli, Ms. Swarupama Chaturvedi, Ms. Noor Rampal, Shantnu Sharma, Mukesh Kumar Maroria, Advs. for the Respondent.

Judgment / Order of the Supreme Court

Judgment

C.T. Ravikumar, J.

1.Births of crimes and culprits concerned, occur together. Yet, under the criminal justice delivery system only on concluding findings on commission of the crime concerned in the affirmative, the question whether the accused is its culprit would arise. Culpability can be fixed, if at all it is to be fixed, on the accused upon conclusive proof of the same established by the prosecution only after following various procedural safeguards recognizing certain rights of an accused. Failure to comply with such mandatory procedures may even vitiate the very trial, subject to the satisfaction of conditions, therefor. Foremost among one such right is embedded in Section 313 of the Code of Criminal Procedure, 1973 (for short the ‘Cr.PC’). Though questioning under clause (a) of sub-Section (1) of Section 313, Cr.PC, is discretionary, the questioning under clause (b) thereof is mandatory. Needless to say, a fatal non-compliance in the matter of questioning under Clause (b) of sub-section (1) thereof, in case resulted in material prejudice to any convict in a criminal case the trial concerned, qua that convict should stand vitiated. This prelude becomes necessary as in the captioned appeal the main thrust of the argument advanced is founded on fatal, non-compliance in the matter of questioning under Section 313, Cr.PC, qua the appellant who is a life convict. We will dilate on this a little later.

2.The appellant, who was accused No.4 in Sessions Case No.3/97 is challenging the confirmation of his conviction under Section 302, IPC, with the aid of Section 34, IPC, under the impugned judgment in Criminal Appeal No.540/2000 dated 20.12.2016 passed by the High Court of Delhi. As per the prosecution, an argy-bargy over spilling of drops of water over the roof of the appellant’s house while Laxmi, the sister of the deceased-Arun Kumar was cleaning the chajja (parapet) of their house resulted in the accurst incident, where the said Arun Kumar lost his life on 14.06.1995 at 08.45 pm. The case of the prosecution is that enraged by the dropping of water over the roof, the wife of the appellant, namely, Meena, hurled filthy words at Laxmi. Then the appellant came out and he, too, started abusing. Thereupon, the deceased asked him to stop abusing his sister and then the appellant exhorted his brother Mahinder Kumar to come out and finish them. Soon, Mahinder came out with a knife and the appellant-Naresh Kumar caught hold of Arun Kumar and Mahinder stabbed on his chest repeatedly with the knife. The necroscopic evidence in this case consists of the oral testimony of PW-17, Dr. LK Baruah and the postmortem report Ext.PW7/A, which disclosed that the deceased had sustained the following antemortem injuries:

"1.Incised wound size 1.3 cm x 0.5 cm. On the left side front of chest. There is 1-1/2 medial to the left nipple placed abliquely.

2.Incised wound size .3 cm x 0.5 cm.x? on the middle of chest situated 1.5 cm. Right to the mid line and below a line drawn between two nipples.

3.Two incised wounds size 1.3 cm. And other 1.5 cm. In the right epigeastric region.

4.Incised wounds left side lower part of chest 9 cm. Below left nipple size 1.4 cm x 2.3 cm.

5.Abrasion on the dorsom left forearm and hand

6.Abrasion seen below left eye.”

3.Taking note of the said necroscopic evidence corroborating the events unfolded through the oral testimonies of the eye-witnesses viz., Anil Kumar (PW-7), Smt. Prem Devi (PW-8), Sanjay (PW-20), who are respectively the brother, mother and one cousin of the deceased and Smt. Madhu (PW-19) and Anand Kumar (PW-22) besides the other evidences, the trial Court found that the homicidal death of Arun Kumar amounts to murder and culpability was fixed on Mahinder Kumar, the first accused. We make it clear that we are not going to make any observation in respect of Sri Mahinder Kumar in this appeal and reference about him was made solely for the purpose of disposing this appeal.

4.As noticed earlier, the conviction of the appellant under Section 302, IPC, was then made with the aid of Section 34, IPC, and upon which he was awarded imprisonment for life. The conviction of the appellant herein was confirmed under the impugned common judgment dated 20.12.2016 in Criminal Appeal No.540/2000 (filed by the appellant herein), and Criminal Appeal No.764/2000 (filed by Mahinder Kumar).

5.Heard Sh. S.D. Singh, learned counsel appearing for the appellant and Ms. Sonia Mathur, learned senior counsel appearing for the respondent State.

6.As noticed earlier, the thrust of the argument for the appellant was founded on prejudicial non-compliance of Section 313, Cr.PC, during the examination thereunder, qua the appellant. Before going into its details, we think it appropriate to consider whether the appellant is raising this contention for the first time before this Court. In this context, it is to be noted that there is nothing on record which would reveal that specific contention in this regard was raised before the High Court in the appeal. True, that in the appeal before the High Court a ground in this regard was raised as ‘ground No.13’ as hereunder: -

“13. That has been no proper examination of the appellant u/s. 313 Cr.P.C. which has caused material prejudice to the appellant.”

7.There is nothing in the impugned judgment to reveal that this point was argued with specific details establishing prejudice, before the High Court. The innumerable grounds (grounds A to Z and AA to GG) raised in this appeal would reveal that neither directly nor indirectly, this core contention was taken in any of them. At any rate, no ground was raised to the effect that despite raising this ground, the High Court had failed to consider it. Be that as it may, the order dated 21.07.2017 of this Court would reveal that the learned counsel for the appellant argued before this Court that while recording the statement of the appellant under Section 313, Cr.PC, no incriminating circumstances appearing in the prosecution evidence against him, were put to him and that vitiated the whole trial. Obviously, thereupon notice was issued in the Special Leave Petition from which this appeal arose. Later, only in the first application for bail, a contention on the following lines was taken and it was reiterated in the second application for bail as well:

“7. That on completion of the evidence statement of accused under Section 313 Cr. PC have been recorded on 6.6.2000 and the mere perusal of the statement would show that no incriminating evidence which had been subsequently considered for the conviction of the appellant by the Ld. Trial Court as well as Hon’ble High Court had been put to the Appellant. Therefore, the entire trial against the Appellant is vitiated.”

8.During the course of the arguments by the learned counsel for the appellant submitted that this contention is based on non-questioning on two incriminating circumstances appeared against the appellant in the prosecution evidence viz., exhortation to do away with their lives (aaj inko jaan se hi khatam karde) and the evidence that ‘the appellant had caught hold of the hands of the deceased Arun Kumar to enable Mahinder Kumar to stab him repeatedly with knife’ and they formed the foundation for holding that the appellant had shared common intention with the first accused and ultimately, for holding the appellant guilty with the aid of Section 34, IPC, for the offence under Section 300, IPC, punishable under Section 302, IPC.

9.In view of the aforementioned core contentions, we are of the considered view that we need to consider the other grounds taken up in the appeal on the merits only if the appellant could not succeed based on non-examination under Section 313, Cr.PC, qua the appellant. We may consider any other relevant aspect, circumstance or evidence if we find that it is required for a proper consideration and appreciation of the above-mentioned core contention.

10.We have taken note of the absence of materials to show that the aforesaid core contention was appropriately raised and argued before the High Court. In the captioned appeal, it was not taken at all. In view of the circumstances the contention is resurrected, we are of the considered view that to entertain the same, it is essential to have a short survey on the authorities on the scope of maintaining such a contention at this stage in the aforementioned circumstances. Subject to its answer, we may also have to consider the question of prejudice or miscarriage of justice due to the non-compliance with mandate for questioning under Section 313, Cr.PC.

11.In the context of the issues thus involved, it is only proper to look into the very object of Section 313, Cr.PC. This aspect has been considered many a times by this Court to hold that it embodies one salutary principle of natural justice viz., audi alteram partem and empowering the Court to examine the accused thereunder is to give the accused concerned an opportunity to explain the incriminating circumstances appearing against him in the prosecution evidence. In the decision in V.K. Sasikala v. State 1, this Court held that examination of an accused under Section 313, Cr.PC, would not only provide an opportunity to him to explain the incriminating circumstances appearing in evidence against him, but also would permit him to forward his own version with regard to his alleged involvement in the crime. Furthermore, it was held that such an examination would have a fair nexus with a defence he might choose to bring and, therefore, any failure in such examination might take the effect of curtailing his right in the event he took up a specific defence. The general position is that if any incriminating circumstance, appearing against an accused in the prosecution evidence, is not put to him it should not be used against him and must be excluded from consideration. At the same time, we may hasten to add that it is a well-neigh settled position that non-examination or inadequate examination under Section 313, Cr.PC, on any incriminating circumstance, by itself, would not vitiate a trial qua the convict concerned unless it has resulted in material prejudice to him or in miscarriage of justice. In the decision in Suresh Chandra Bihari v. State of Bihar 2 and in Wariyam Singh & Ors. v. State of U.P. 3, this Court held that mere defective/improper examination under Section 313, Cr.PC, would be no ground to set aside a conviction of the accused unless it has resulted in prejudice to the accused. In view of the said position which is being followed with alacrity we do not think it necessary to multiply the authorities on it.

12.We have already noted that ‘ground No.13’ raised in the appeal before the High Court was too vague, in the sense without clarity whatsoever, as to what were the incriminating circumstances that appeared in the prosecution evidence not being put to the appellant while being examined and what is the material prejudice or miscarriage of justice caused consequent to such failure. To make matters worse, a scanning of the impugned judgment of the High Court would not disclose whether before the High Court, the said contention was pressed into service much-less whether it was argued with precision on quintessential materials to establish that the trial qua the appellant was vitiated. In the contextual situation it is relevant to refer to the decision of this Court in Amanullah v. State of U.P.4. Normally, it has to be presumed that all the arguments actually pressed at the hearing in the High Court were noticed and appropriately dealt with and if the judgment of the High Court does not contain discussion on a point, then that point should be assumed prima facie not to have been argued at the bar unless the contrary is specifically shown, it was so, held in the said judgment. In the case on hand though grounds A to Z and AA to GG were taken in this appeal, there is absolute absence of any contention in any one of them to the effect that despite being pressed into the said contention was not taken into consideration and appropriately dealt with by the High Court. Hence, the conclusion can only be that it was not argued.

13.This position takes us to the next question as to whether in such circumstances the contention based on non-examination/inadequate examination under Section 313, Cr.PC, causing material prejudice qua the appellant can be maintained at this stage. In this context, it is only appropriate to refer to the decision of this Court in Shobit Chamar & Anr. v. State of Bihar 5. It was held therein that where the plea as to non-compliance of the provisions of Section 313, Cr.PC, was raised for the first time before the Supreme Court, in case no prejudice had resulted to the accused was proved, the trial could not be held as vitiated. In that case, though the non-compliance was taken for the first time before the Supreme Court, the records showed that the relevant portion of the statement of witnesses were put to the accused in examination under Section 313, Cr.PC, and, thereupon, the plea was rejected. It is to be noted that was also a case of murder.

14.In the light of the aforesaid question posed for consideration, it is only appropriate to refer to the relevant provisions under Section 313 (1), (4) and (5).

“313. Power to examine the accused. — (1) In every inquiry or trial, for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him, the Court—

(a) may at any stage, without previously warning the accused put such questions to him as the Court considers necessary;

(b) shall, after the witnesses for the prosecution have been examined and before he is called on for his defence, question him generally on the case:

Provided that in a summons-case, where the Court has dispensed with the personal attendance of the accused, it may also dispense with his examination under clause (b).

(2) …

(3) …

(4) The answers given by the accused may be taken into consideration in such inquiry or trial, and put in evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed.

(5) The Court may take help of Prosecutor and Defence Counsel in preparing relevant questions which are to be put to the accused and the Court may permit filing of written statement by the accused as sufficient compliance of this section.”

15.A bare perusal of the provisions under Section 313, Cr.PC, extracted above, would undoubtedly reveal the irrecusable obligation coupled with duty on Court concerned to put the incriminating circumstances appearing in the prosecution evidence against accused concerned facing the trial providing him an opportunity to explain. Sub-Section (5) of Section 313, Cr.PC, which was inserted under Code of Criminal Procedure (Amendment) Act, 2008 (Act 5 of 2009) with effect from 31.12.2009, would lend support to this view. It reads thus:-

“Section 313. Power to examine the accused.

*** *** *** ***

(5) The Court may take help of Prosecutor and Defence Counsel in preparing relevant questions which are to be put to the accused and the Court may permit filing of written statement by the accused as sufficient compliance of this section.”

16.In this context, the maxim “actus curiae neminem gravabit” – “the act of court shall prejudice no one”, has also to be looked into. In the decision in Oil and Natural Gas Company Limited v. Modern Construction and Company 6, this Court held that the court has to correct the mistake it has done, rather than to ask the affected party to seek his remedy elsewhere. In the context of the decisions referred above, there can be no doubt that in a charge for commission of a serious offence where extreme penalty alone is imposable in case the accused is found guilty, procedural safeguards ensuring protection of right(s) of accused must be followed and at any rate, in such cases when non-compliance of the mandatory procedure capable of vitiating trial qua the convict concerned is raised and revealed from records, irrespective of the fact it was not raised appropriately, it must be considered lest the byproduct of consideration of the case would result in miscarriage of justice. Being the Court existing for dispensation of justice, this Court is bound to consider and correct the mistake committed by the Court by looking into the question whether non-examination or inadequate examination of accused concerned caused material prejudice or miscarriage of justice. We may hasten to add here, that we shall not be understood to have held that always such a mistake has to be corrected by this Court by examining the question whether material prejudice or miscarriage of justice had been caused. In this context, the summarization of law on the subject of consequence of omission to make questioning on incriminating circumstances appearing in the prosecution evidence and the ways of curing the same, if it is called for, by this Court in the decision in Raj Kumar @ Suman v. State (NCT of Delhi) 7, assumes relevance. Paragraph 16 of the said decision reads thus:-

“17. The law consistently laid down by this Court can be summarized as under:

(i)It is the duty of the Trial Court to put each material circumstance appearing in the evidence against the accused specifically, distinctively and separately. The material circumstance means the circumstance or the material on the basis of which the prosecution is seeking his conviction;”

(ii)The object of examination of the accused under Section 313 is to enable the accused to explain any circumstance appearing against him in the evidence;

(iii)The Court must ordinarily eschew material circumstances not put to the accused from consideration while dealing with the case of the particular accused;

(iv)The failure to put material circumstances to the accused amounts to a serious irregularity. It will vitiate the trial if it is shown to have prejudiced the accused;

(v)If any irregularity in putting the material circumstance to the accused does not result in failure of justice, it becomes a curable defect. However, while deciding whether the defect can be cured, one of the considerations will be the passage of time from the date of the incident;

(vi)In case such irregularity is curable, even the appellate court can question the accused on the material circumstance which is not put to him; and

(vii)In a given case, the case can be remanded to the Trial Court from the stage of recording the supplementary statement of the concerned accused under Section 313 of CrPC.

(viii)While deciding the question whether prejudice has been caused to the accused because of the omission, the delay in raising the contention is only one of the several factors to be considered.”

17.In view of the circumstances obtained in this case, factually and legally, it is also relevant to refer to paragraph 20 of the decision in Raj Kumar’s case (supra) and it reads thus:-

“21. Even assuming that the defect or irregularity was curable, the question is whether today, the appellant-accused can be called upon to explain the said circumstance. More than 27 years have passed since the date of the incident. Considering the passage of time, we are of the view that it will be unjust now at this stage to remit the case to the Trial Court for recording further statement of the appellant under Section 313 of CrPC. In the facts of the case, the appellant cannot be called upon to answer something which has transpired 27 years back. There is one more aspect of the matter which persuaded us not to pass an order of remand. The said factor is that the appellant has already undergone incarceration for a period of 10 years and 4 months.”

18.In this case, the incident in question occurred on 14.06.1995 and thus, obviously, more than 29 years have passed by. The appellant has already undergone incarceration for a period of more than 12 years. In the circumstances, we are inclined to proceed with the consideration of the contentions bearing in mind the aforesaid authorities laying down the position of law on various aspects of Section 313, Cr.PC.

19.In the case on hand, the appellant was convicted for the offence under Section 300, IPC, punishable under Section 302, IPC, with the aid of Section 34, IPC. In other words, the conviction was not under Section 302, Cr.PC, simpliciter. Upon finding guilty for commission of murder only one of two extreme penalties viz., death or imprisonment for life could be imposed on the convict. When this be the consequence of finding an accused to have committed murder or in any other serious offence where extreme punishment of like nature alone is imposable, the failure to comply with the mandatory questioning on incriminating circumstance(s) appearing in the prosecution case, if made out, the plea of non-examination or inadequate examination under Section 313, Cr.PC, whether resulted in material prejudice to the accused or total miscarriage of justice, shall not be ignored or declined to be taken into account by the Court.

20.We have already noted that crucial incriminating circumstances viz., (1) pertaining to the exhortation of the appellant to kill Arun Kumar and others in his family (2) he had caught hold of the deceased to enable Mahinder Kumar to stab on his chest repeatedly, were not allegedly put to the appellant while being examined under Section 313, Cr.PC. The first among the twin incriminating circumstances not to put to the appellant was virtually the charge framed against him to the effect that in furtherance of the common intention of Mohinder Kumar and the appellant caught hold of deceased Arun Kumar and the other accused Mohinder Kumar inflicted knife blows on deceased Arun Kumar and murdered him. The former incriminating circumstance relating to exhortation by the appellant did not form part of the charge against the appellant. There can be no doubt with respect to the position that the question whether the aforementioned twin incriminating circumstances appeared in the prosecution evidence and whether they were put to the appellant while being examined under Section 313, Cr.PC, to enable him an opportunity to offer explanation are not matters of argument as a bare perusal of the materials on record viz., the oral testimonies of the eyewitnesses and Section 313, Cr.PC, examination of the appellant would reveal the verity or otherwise of the said contentions. The oral testimonies of Anil Kumar (PW-7), Smt. Prem Devi (PW-8), Mrs. Madhu (PW-19) and Anand Kumar (PW-22) would reveal that they have deposed regarding the exhortation from the appellant though in slightly different manner, and also about the fact that he had caught hold of the deceased to enable Mohinder Kumar to stab on the chest of the deceased repeatedly. The examination of the appellant under Section 313, Cr.PC, which is available on record, would reveal that both the incriminating circumstances were not directly or even indirectly put to the appellant while being examined under Section 313, Cr.PC. The learned counsel appearing for the respondent would fairly admit that the said material on record would reveal the correctness of the contentions of the appellant.

21.We have already held that whether non-questioning or inadequate questioning on incriminating circumstances to an accused by itself would not vitiate the trial qua the accused concerned and to hold the trial qua him is vitiated it is to be established further that it resulted in material prejudice to the accused. True that the onus to establish the prejudice or miscarriage on account of non-questioning or inadequate questioning on any incriminating circumstance(s), during the examination under Section 313, Cr.PC, is on the convict concerned. We say so, because if an accused is ultimately acquitted, he could not have a case that he was prejudiced or miscarriage of justice had occurred owing to such non-questioning or inadequate questioning.

22.In the light of the above view of the matter, we are inclined to consider the further question whether the non-questioning on the aforesaid twin incriminating circumstances to the appellant during his examination under Section 313, Cr.PC, had caused material prejudice to him. The decision of this Court in State of Punjab v. Swaran Singh 8, constrain us to consider one another factor while considering the question of prejudice. In Swaran Singh’s case (supra), this Court held that where the evidence of the witnesses is recorded in the presence of the accused who had the opportunity to cross examine them but did not cross examine them in respect of facts deposed, then, omission to put question to the accused regarding the evidence of such witnesses would not cause prejudice to such an accused and, therefore, could not be held as grounds vitiating the trial qua the convict concerned. We have already found that Anil Kumar (PW-7), Smt. Prem Devi (PW-8), Mrs. Madhu (PW-19) and Anand Kumar (PW-22) have deposed about the said circumstances. A scanning of their oral testimonies, available on record, would undoubtedly reveal that on both the points, on behalf of the appellants they were cross examined.

23.The position, as above, would take us to the last question whether material prejudice was caused to the appellant on account of non-questioning him on the aforesaid incriminating circumstances and thereby depriving him an opportunity to explain. This question can better be considered by referring to paragraph 31 of the judgment of the Trial Court, which virtually got confirmance from the High Court under the impugned judgment. It reads thus:-

“31. As far the part played by accused Naresh is concerned, this has come in the evidence of PWs that he (Naresh) is the man, who called his brother Mahinder and exhorted “Mahender came out and kill them today” and thereafter his taking part in the incident, by catching hold of deceased Arun Kumar, clearly goes to show the common’ intention of the two, i.e. Naresh and Mahinder and even the Learned Defence Counsel, cannot be benefited from the above noted authorities.”

24.It is evident from the afore-extracted paragraph from the judgment of the Trial Court that the said conclusion that appellant had shared the common intention to commit murder of the deceased Arun Kumar was based only on the aforesaid two incriminating circumstances which were not put to the appellant while being questioned under Section 313, Cr.PC. When the very charge framed against him, as referred as above, would reveal that there was no charge of commission of an offence under Section 300, IPC, punishable under Section 302, IPC, simplicitor against the appellant whereas the said charge thereunder with the aid of Section 34, IPC. In such circumstances, when the finding of common intention was based on the twin incriminating circumstances and when they were not put to the appellant while he was being questioned under Section 313, Cr.PC, and when they ultimately culminated in his conviction under Section 302, IPC, with the aid of Section 34, IPC, and when he was awarded with the life imprisonment consequently, it can only be held that the appellant was materially prejudiced and it had resulted in blatant miscarriage of justice. The failure as above is not a curable defect and it is nothing but a patent illegality vitiating the trial qua the appellant.

25.Once, the upshot of the discussion is above, we do not think it proper to deal with the innumerable grounds raised by the appellant, not only because it has become unnecessary but also such consideration may adversely affect the co-accused whose appeal was also decided under the very same common judgment impugned in this appeal.

26.As noticed hereinbefore, the incident in question occurred more than 29 years ago and the appellant had already undergone incarceration more than 12 years. In such circumstances, if he is again subjected to examination under Section 313, Cr.PC, it would cause further prejudice to him in view of the patent illegality occurred qua the appellant. Hence, the conviction of the appellant could not be sustained.

27.For the aforesaid reasons, the appeal must succeed. Accordingly, the impugned judgment of the trial Court and the High Court are set aside qua the appellant. We make it clear that this judgment would not disturb the conviction of the other accused. We also make it clear that this observation shall not be taken as confirmation of his conviction as it is a matter which may be dealt with in an appeal, if any, filed by him. The appellant herein stands acquitted of the offences alleged against him. If his detention is not required in connection with any other case, he shall be released, forthwith.

28.The appeal is allowed on the above terms.

29.Pending application(s), if any, are disposed of.

Result of the case: Appeal allowed.

1 [2012] 10 SCR 641 : (2012) 9 SCC 771

2 [1994] Supp. 1 SCR 483 : AIR 1994 SC 2420

3 [1995] Supp. 3 SCR 807 : AIR 1996 SC 305

4 AIR 1973 SC 1370

5 [1998] 2 SCR 117 : AIR 1998 SC 1693

6 [2013] 10 SCR 466 : (2014) 1 SCC 648

7 [2023] 5 SCR 754 : 2023 SCC OnLine SC 609

8 [2005] Supp. 1 SCR 786 : (2005) 6 SCC 101

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Penal Code, 1860 – ss. 302 and 307, s. 300 exception 1 – Murder – Culpable homicide not amounting to murder, when – Plea of self-defence – Prosecution case that the appellant-police guard committed murder of the deceased inside the police station while he was on duty – Deceased was having illicit relationship with the appellant’s wife – Deceased and the appellant last seen together in conversation with each other inside the police station by more than one witnesses even minutes before these witnesses saw the appellant killing the deceased with his official 9 m.m. carbine – Plea of self defence by the appellant that the death of the deceased was caused by the appellant when the appellant was deprived of his power of self-control due to grave and sudden provocation caused by the deceased which resulted in his death by accident – Conviction and sentence of the appellant for offences ss. 302 and 307 by the courts below – Justification: Held: All the evidences are unassailable – Prosecution case stands secured on these evidences – It is a clear case of murder – Motive for the appellant that the deceased was having an affair with his wife, and the execution of the crime at the Police Station, all point towards the murder committed inside the police station by the appellant – One fire arm injury with blackening at the entry point also explains that the deceased was first shot from a close range – Remaining injuries also correlate with the testimony of the eye witnesses – Plea of self-defence and in the alternative the plea of grave and sudden provocation taken by the appellant that it was the deceased who came to the police station in full speed in his car thereby first hitting the gate of the police station and then making an attempt to snatch the weapon from the appellant in order to kill him, do not hold any ground – Defence not been able to establish a case of private defence by any evidence – Eye witness accounts of police personnels who were all present at the Police Station at that point of time, establish a case of murder beyond any reasonable doubt – Thus, the nature of weapon used; number of gun shots fired at the deceased; part of the body where gun shots are fired, all point towards the fact that the appellant was determined to kill the deceased and ultimately, he achieved his task – Not a case of any lesser magnitude, and definitely not culpable homicide not amounting to murder – Facts do not even remotely make out any case under exception 1 to s. 300, or under any other exceptions to s. 300 IPC – Interferance with the findings of the courts below not called for – Evidence Act, 1872 – s. 105. [Paras 19-26] Penal Code, 1860 – s. 300 exception 1 – Culpable homicide when not amounting to murder – Provocation when grave and sudden to bring the case under exception 1 to s. 300: Held: In order to convert a case of murder to a case of culpable homicide not amounting to murder, provocation must be such that would temporarily deprive the power of self-control of a “reasonable person” – Provocation itself is not enough to reduce the crime from murder to culpable homicide not amounting to murder – Time gap between this alleged provocation and the act of homicide; the kind of weapon used; the number of blows, etc, is also to be seen – These are again all questions of facts – There is no standard or test as to what reasonableness should be in these circumstances as this would again be a question of fact to be determined by a Court. [Para 25] Criminal trial – Cross-examination of witness deferred by two months – Effect: Held: Such long adjournment after examination-in-chief, should never be given – This may affect the fairness of the trial and may even endanger, in a given case, the safety of the witness – As far as possible, the defence should be asked to cross examine the witness the same day or the following day – Only in very exceptional cases, and for reasons to be recorded, the cross examination should be deferred and a short adjournment can be given after taking precautions and care, for the witness, if it is required – Courts should be slow in deferring these matters – This practice is not a healthy practice – Mandate of s. 231 Cr.PC and the law laid down on the subject to be followed in its letter and spirit – Code of Criminal Procedure, 1973 – s. 231.[Paras11,13]

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[2024] 7 S.C.R. 163 : 2024 INSC 424

Surender Singh v. State (NCT of Delhi)

(Criminal Appeal No. 597 of 2012)

03 July 2024

[Sudhanshu Dhulia* and Rajesh Bindal, JJ.]

Issue for Consideration

Correctness of the order of the High Court upholding the conviction and sentence of the appellant for offences under ss. 302 and 307 IPC .

Headnotes

Penal Code, 1860 – ss. 302 and 307, s. 300 exception 1 – Murder  – Culpable homicide not amounting to murder, when  – Plea of self-defence – Prosecution case that the appellant-police guard committed murder of the deceased inside the police station while he was on duty – Deceased was having illicit relationship with the appellant’s wife – Deceased and the appellant last seen together in conversation with each other inside the police station by more than one witnesses even minutes before these witnesses saw the appellant killing the deceased with his official 9 m.m. carbine – Plea of self defence by the appellant that the death of the deceased was caused by the appellant when the appellant was deprived of his power of self-control due to grave and sudden provocation caused by the deceased which resulted in his death by accident – Conviction and sentence of the appellant for offences ss. 302 and 307 by the courts below – Justification:

Held: All the evidences are unassailable – Prosecution case stands secured on these evidences – It is a clear case of murder – Motive for the appellant that the deceased was having an affair with his wife, and the execution of the crime at the Police Station, all point towards the murder committed inside the police station by the appellant – One fire arm injury with blackening at the entry point also explains that the deceased was first shot from a close range – Remaining injuries also correlate with the testimony of the eye witnesses – Plea of self-defence and in the alternative the plea of grave and sudden provocation taken by the appellant that it was the deceased who came to the police station in full speed in his car thereby first hitting the gate of the police station and then making an attempt to snatch the weapon from the appellant in order to kill him, do not hold any ground – Defence not been able to establish a case of private defence by any evidence – Eye witness accounts of police personnels who were all present at the Police Station at that point of time, establish a case of murder beyond any reasonable doubt – Thus, the nature of weapon used; number of gun shots fired at the deceased; part of the body where gun shots are fired, all point towards the fact that the appellant was determined to kill the deceased and ultimately, he achieved his task – Not a case of any lesser magnitude, and definitely not culpable homicide not amounting to murder – Facts do not even remotely make out any case under exception 1 to s. 300, or under any other exceptions to s. 300 IPC – Interferance with the findings of the courts below not called for – Evidence Act, 1872 – s. 105. [Paras 19-26]

Penal Code, 1860 – s. 300 exception 1 – Culpable homicide when not amounting to murder – Provocation when grave and sudden to bring the case under exception 1 to s. 300:

Held: In order to convert a case of murder to a case of culpable homicide not amounting to murder, provocation must be such that would temporarily deprive the power of self-control of a “reasonable person” – Provocation itself is not enough to reduce the crime from murder to culpable homicide not amounting to murder – Time gap between this alleged provocation and the act of homicide; the kind of weapon used; the number of blows, etc, is also to be seen – These are again all questions of facts – There is no standard or test as to what reasonableness should be in these circumstances as this would again be a question of fact to be determined by a Court. [Para 25]

Criminal trial – Cross-examination of witness deferred by two months – Effect:

Held: Such long adjournment after examination-in-chief, should never be given – This may affect the fairness of the trial and may even endanger, in a given case, the safety of the witness – As far as possible, the defence should be asked to cross examine the witness the same day or the following day – Only in very exceptional cases, and for reasons to be recorded, the cross examination should be deferred and a short adjournment can be given after taking precautions and care, for the witness, if it is required – Courts should be slow in deferring these matters – This practice is not a healthy practice – Mandate of s. 231 Cr.PC and the law laid down on the subject to be followed in its letter and spirit – Code of Criminal Procedure, 1973 – s. 231.[Paras11,13]

Case Law Cited

State of U.P v. Shambhu Nath Singh [2001] 2 SCR 854 : (2001) 4 SCC 667; Ambika Prasad v. State (Delhi Admn.) [2000] 1 SCR 342 : (2000) 2 SCC 646; Mohd. Khalid v. State of W.B. [2002] Suppl. 2 SCR 31 : (2002) 7 SCC 334; State of Kerala v. Rasheed [2018] 13 SCR 587 : (2019) 13 SCC 297; State of M.P. v. Ramesh [2004] Suppl. 6 SCR 152 : (2005) 9 SCC 705; Salim Zia v. State of U.P. [1979] 2 SCR 394 : (1979) 2 SCC 648; K.M. Nanavati v. State of Maharashtra [1961] 1 SCR 497 : AIR 1962 SC 605 – referred to.

List of Acts

Penal Code, 1860; Evidence Act, 1872; Code of Criminal Procedure, 1973.

List of Keywords

Murder; Culpable homicide not amounting to murder; Plea of self defence; Power of self-control; Grave and sudden provocation; Motive; Testimony of the eye witnesses; Private defence; Burden of proof; Case under exception 1 to s. 300 IPC; Deferring of cross-examination of witness; Long adjournment after examination-in-chief; Fairness of the trial.

Case Arising From

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.597 of 2012

From the Judgment and Order dated 18.05.2011 of the High Court of Delhi at New Delhi in CRLA No.202 of 2008

Appearances for Parties

S K Agarwal, Sr. Adv., Arun K. Sinha, Rakesh Singh, Ms. Anjali Rajput, Sumit Sinha, Rohan Goel, Abhinav Mutyalwar, Vijay Raj Singh Chouhan, Advs. for the Appellant.

Satyajit A. Desai, Adv. (Amicus Curiae)

Mrs. Aishwarya Bhati, A.S.G., Mukesh Kumar Maroria, Ms. Ameya Vikrama Thanvi, Mrs. Chitrangda Rastaravara, Santosh Kumar, Ms. Sweksha, Ms. Poornina Singh, Chinmay Mehta, Advs. for the Respondent.

Judgment / Order of the Supreme Court

Judgment

Sudhanshu Dhulia, J.

1.The appellant before this Court has challenged the order of the High Court (dated 18.05.2011) which has dismissed his appeal while upholding his conviction and sentence by the Trial Court for offences under Sections 302 and 307 of the Indian Penal Code, for which he has been sentenced for life imprisonment and 7 years of rigorous imprisonment respectively.

2.We have heard the learned counsel for the appellant as well as for the State at length.

3.As the facts of the case would reveal the present case is of a brazen murder, committed inside a Police Station in Delhi. The prosecution case is that the appellant, who was posted as a police guard at Mayur Vihar Police Station, Delhi, executed this murder inside the police station, while he was on duty!

4.The deceased was married to the appellant’s first cousin and was also his neighbour. The prosecution case is that the deceased had an illicit relationship with the wife of the appellant. There are more than one witnesses to the fact that the deceased and the appellant were last seen together in conversation with each other inside the police station even minutes before these witnesses saw the appellant killing the deceased with his official 9 m.m. carbine.

5.An FIR was lodged at Police Station Mayur Vihar, New Delhi on 30.06.2002 at 2:30 pm, under Sections 302/307 IPC on the narration of PW-2 who was posted at the Police Station, Mayur Vihar, New Delhi as Head Constable at the relevant point of time. PW-2 states that on the date of the incident she reached the Police Station at around 11.30 am and saw the appellant talking to the deceased. She further states that at around 11.40 am, she heard sounds of fire and then saw the deceased running towards the Duty Officer’s room; he was bleeding with his hands held up in the air. The appellant was seen firing at the deceased from his Carbine. When the firing stopped, the deceased was seen lying outside the duty officer’s room, bleeding profusely. The appellant was apprehended along with his carbine by the police staff, and PW-2 who was also injured in the firing was taken to the LBS Hospital where she received medical aid, and later lodged the FIR.

6.The police after its investigation filed chargesheet and the case was committed to Sessions, where charges were framed under Sections 302/307 of IPC against the present appellant. The prosecution examined as many as 27 witnesses. The accused, after giving his statement under Section 313 CrPC, had also examined a witness as DW-1. The Trial Court ultimately convicted and sentenced the appellant under Sections 302 and 307 IPC as already stated above.

7.Strangely, and for reasons best known to the prosecution, it examined PW-6 who is the brother of the appellant and PW-25 who is wife of the appellant, as prosecution witnesses. Although these two witnesses have supported the case of the prosecution to the extent that they establish that the deceased was having an extra marital affair with the appellant’s wife, yet both of them added in their testimony that it was the deceased who was determined to kill the appellant!

8.PW-25, who is the wife of the appellant, says that, minutes prior to the incident, the deceased had come to her place and had warned her that he was going to the Police Station to kill her husband! PW-6 is also a witness to this expression on the part of the deceased.

9.The accused/appellant who as we shall see, has neither denied the incident nor the fact that he killed the deceased. His argument is that he did it as a matter of self-defence, and in the alternative if self-defence is not accepted by the Court, then it was a case of grave and sudden provocation at best, which led to the death of the deceased at the hands of the appellant. In other words, if at all, the appellant can be punished only for culpable homicide not amounting to murder.

It has been argued before us that on the fateful day (i.e. 30.06.2002), it was the deceased who had come to the police station to kill the appellant and the appellant used his weapon only in self defence, but unfortunately the deceased was killed.

The evidence of PW-25 and PW-6 which we have just referred apparently supports this theory, to the extent that the deceased was determined to kill the appellant. The appellant states in his Section 313 Cr.P.C. statement as under :-

“…I was doing my duty as a santari. At about11.40 Satish (deceased) who was my relative came there. I had half closed the doors of PS as per directions of SHO. He opened the doors by hitting car against these. He parked his car inside the PS. He started shouting at me. I took him towards near police quarters. He pounced at me. I forbade him from doing so. I took him towards duty officer’s room. I tried to snatch my carbine from his hand. In that process firing took place. Magazine fell down. I tried to pick it up and fit in the carbine. In that process it fired four-five times in air. Satish tried to snatch said carbine from me and in that process was hit by bullets. The carbine fired in rapid action from gate of PS up to police quarters. When we were near duty officer’s room the carbine was set at automatic mode. It fired which hit deceased Satish as well as walls, tube lights and windows of duty officer’s room.”

The entire case of the defence is built on the above statement of the accused appellant, which is that it was the deceased who had come rushing to the Police Station on that fateful day knowing very well that the appellant was posted there as a guard. He then tried to snatch the weapon from the appellant and in this scuffle, shots were fired from the weapon, which was an accident, which ultimately led to the death of the deceased. This, in short is the case of the defence.

All the same, this trumped up story did not find favour with the trial court and the appellate court and understandably so as the prosecution has an overwhelming evidence to the contrary, which only points towards a dastardly murder at the hands of the present appellant.

The prosecution case is primarily based on the statement of the eye witnesses present in the Police Station itself and mainly PW-2 who is a lady head constable and also the complainant. This witness has remained steadfast to her version of the incident, which was given in the first information report lodged by her; and later in her examination-in-chief and cross-examination, during the trial. She is an extremely credible and trustworthy witness and the veracity of her statement and deposition establishes the guilt of the accused beyond reasonable doubt, and has its corroboration with other evidences, including ocular evidences of PW-1, PW-14 and PW-17, who were also constables or head Constables posted at Police Station Mayur Vihar, New Delhi, and were present at the Police Station at the relevant time. Additionally, this is also confirmed by the forensic evidence which was gathered by the Police during investigation from the site itself, to which we shall refer in a while.

PW-2 was put to a lengthy cross-examination by the defence. In the cross-examination the defence made every possible attempt to cast doubt on the presence of this witness at the Police Station, but this was all in vain since there are more than one witnesses in this case which clearly establish the presence of PW-2 at the Police Station. Her presence is established by the other witnesses such as PW-1, PW-14 and PW-17, who were also Police constables posted at the same Police Station. Most importantly her presence is established by the fact that this witness (PW-2) is also an injured witness as she had sustained bullet injuries on her left shoulder. Her medical examination was done on the same day and the following injuries were found :

1.Lacerated wound 2x2 cm over left (L) shoulder near lateral end of clavicle, penetrating anterior aspect, fresh, oozing of blood.

2.Lacerated wound left (L) shoulder, posterior aspect near lateral end of clavicle, 3x3 cm, fresh, oozing of blood.

PW-11, Head Constable Jai Prakash, is the one who took PW-2 to the LBS hospital and also testified before the court in this regard. PW-27, the SHO of the police station who investigated the case, also testified that he reached the police station right after the incident and then rushed to the hospital where he recorded the statement of PW-2.

10.In her examination-in-chief PW-2 says that on 30.06.2002, she was posted at Police Station, Mayur Vihar where she was to work as duty officer from 9 a.m. to 5 p.m., but as she had some personal work in the morning that day, she had taken prior permission from the SHO to arrive late. She hence reached the P.S. at 11.35 a.m. and at the gate, she saw the appellant-Surender (whom she identifies in the court), and who was posted as guard in the same Police Station, talking to a stranger near a corner of the premises. She then went straight to her duty room and while she was talking to the Head Constable Om Pal (PW-1) from whom she had to take the charge, and where constable Vinod (PW-17) and DHG Jai Singh (PW-5) were also present along with Munshi Gulzari Lal, she suddenly heard sounds of bullet shots in the compound of the Police Station. Then she saw the person with whom the appellant was having a conversation (i.e. the deceased) rushing towards the duty officers’ room with his hands up in the air; and he was bleeding. She also saw Constable Surender (i.e. the appellant before this Court), chasing this person from behind, still firing from his 9mm carbine, aiming at the deceased. She as well as the head Constable Om Prakash, Constable Vinod and DHG Jai Singh bent down and took shield in order to avoid stray bullets. She then saw the deceased lying outside the room, bleeding profusely. By this time, she had realized that she too had received bullet injuries on her left shoulder. She was then taken to LBS Hospital by Head Constable Jai Prakash. It was in the hospital that she was informed that the deceased (Satish) was a relative of Surender and that he is now dead, due to the bullet injuries sustained in the firing.

11.The defence did not cross-examine this witness immediately after her examination-in-chief, but sought that the cross examination be deferred, which was done and she was cross-examined only on 30.11.2004, which is more than two months after her examination-in-chief. We may just stop here for a while only to sound a note of caution. Such long adjournment as was given in this case after examination-in-chief, should never have been given. Reasons for this are many, but to our mind the main reason would be that this may affect the fairness of the trial and may even endanger, in a given case, the safety of the witness. As far as possible, the defence should be asked to cross examine the witness the same day or the following day. Only in very exceptional cases, and for reasons to be recorded, the cross examination should be deferred and a short adjournment can be given after taking precautions and care, for the witness, if it is required. We are constrained to make this observation as we have noticed in case after case that cross examinations are being adjourned routinely which can seriously prejudice a fair trial.

12.This Court had, on more than one occasion, condemned this practice of the trial court where examinations are deferred without sufficient reasons. We may refer here to some cases, which are State of U.P v. Shambhu Nath Singh (2001) 4 SCC 667; Ambika Prasad v. State (Delhi Admn.) (2000) 2 SCC 646; Mohd. Khalid v. State of W.B. (2002) 7 SCC 334.

13.As we have said cross examination can be deferred in exceptional cases and for reasons to be recorded by the Court, such as under sub-section 2 of Section 231 of CrPC1 but even here the adjournment is not to be given as a matter of right and ultimately it is the discretion of the Court. In State of Kerala v. Rasheed (2019) 13 SCC 297, this Court has set certain guidelines under which such an adjournment can be given. The emphasis again is on the fact that a request for deferral must be premised on sufficient reasons, justifying the deferral of cross-examination of the witness.

As we could see from the records in the present case the cross examination of PW-2 was deferred precisely on grounds referred in sub-section (2) of Section 231 of CrPC. The defence requested to examine PW-2 with another prosecution witness (Vinod-PW-17). Yet the records of the case also reveal that though the cross-examination was deferred yet the other witness (PW-17) was examined much later, nearly a year after the cross examination of PW-2. We only wanted to record this cautionary note to make our point that this practice is not a healthy practice and the Courts should be slow in deferring these matters. The mandate of Section 231 of Cr.PC and the law laid down on the subject referred above must be followed in its letter and spirit.

Thankfully, in the case at hand, the deferred cross-examination of PW-2 has not affected the course of the trial. This witness has remained consistent.

14.PW-19 is Dr. S.B. Jangpangi, Casualty Medical Officer posted at LBS Hospital Delhi, who had examined PW-2 as she had received bullet injuries on that fateful day. PW-19 in his statement mentions that two injuries were found on Panwati’s (PW-2) body. PW-19 had also examined the deceased who was declared dead by him and found his body riddled with bullet injuries.

15.PW-1, Ompal Singh, who was posted as head constable in P.S. Mayur Vihar is another key prosecution witness. He says that he was working as duty officer on 30.06.2002 in place of WHC Panwati (PW2). After PW-2 reported for her duties Constable Vinod (PW-17), DHG Jai Singh and PW-1 were also in the duty officers’ room. He recounts that on the day of the incident he heard sounds of firing at about 11.35 a.m. and saw a person with blood-stained clothes (i.e. the deceased) trying to reach the duty officers’ room. He was being chased by the appellant, who was identified by this witness in court. He states that the police staff tried to save their own life in the duty officer’s room and then saw the deceased lying on the ground. Constable Panwati (PW-2) also sustained bullet injuries in this firing. He then gave a wireless message of the incident to the SHO. This witness was cross examined later but again nothing has come in the cross to doubt the statement of this witness.

16.PW-11 and PW-17 were again, Head Constable and Constable respectively, who were posted at this police station on that fateful day of June 30, 2002. They were also witness to the crime and their deposition states similar facts as narrated by PW-1 and PW-2.

17.The post-mortem was conducted on 01.07.2002 by Dr. Vinay Kumar Singh (PW18) of LBS Hospital. He found 17 ante mortem injuries on the body of the deceased. He confirms his post-mortem report, in his deposition, where in his opinion the cause of death was shock resulting from fire arm injuries. He states that the injuries on the chest and on the back of the deceased were sufficient to cause his death. He also mentions that bullets were also recovered from the chest cavity of the deceased and one bullet was recovered from the right side of the back. There were 6 fire-arm entry wounds corresponding to 6 fire-arm exit wounds. At least one fire-arm entry wound has a blackening at the entry point which shows that this was fired at a point-blank range.

18.In all, the deceased had received 8 to 9 shots from the carbine of the appellant which are spread all over his body. Entry wounds exist on the front as well as on the back of the deceased’s body, which makes it clear that the deceased was shot not only from the front but also from the back, while he was trying to escape. The nature of these injuries corroborates with the ocular testimony of PW-2. It is PW-2 who had said that when she came to the Police Station, she had seen the deceased talking to the appellant at the gate of the police station and that the appellant was armed with a carbine. PW-21, Constable Devender Kumar who had to take the charge of ‘sentry’/guard at 12 noon, also states that he saw the appellant talking to the deceased before the incident. PW-2 heard the sound of firing few minutes later and then saw the deceased (who was bleeding) rushing towards the duty room with his hands in the air, and the appellant was seen firing at him from behind.

19.Taken together, all these evidences are unassailable. The case of the prosecution stands secured on these evidences. It is a clear case of murder. The motive for the appellant (admittedly the deceased was having an affair with the appellant’s wife), and the execution of the crime at the Police Station, all point towards the murder committed inside the police station by the present appellant. The one fire arm injury with blackening at the entry point also explains that the deceased was first shot from a close range. The remaining injuries also correlate with the testimony of the eye witnesses referred above.

20.The plea of self-defence and in the alternative the plea of grave and sudden provocation taken by the appellant is based on the theory that it was the deceased who came to the police station in full speed in his car thereby first hitting the gate of the police station and then making an attempt to snatch the weapon from the appellant in order to kill him. But these arguments do not hold any ground and most importantly there is not even an iota of evidence to sustain this bizarre line of defence.

21.Under Section 105 of the Indian Evidence Act 2, the burden of proof that the accused’s case falls within the general exception is upon the accused himself. This Court in State of M.P. v. Ramesh, (2005) 9 SCC 705 observed that:

“Under Section 105 of the Indian Evidence Act, 1872 (in short “the Evidence Act”), the burden of proof is on the accused, who sets up the plea of self-defence, and, in the absence of proof, it is not possible for the court to presume the truth of the plea of self-defence. The court shall presume the absence of such circumstances……Where the right of private defence is pleaded, the defence must be a reasonable and probable version satisfying the court that the harm caused by the accused was necessary for either warding off the attack or for forestalling the further reasonable apprehension from the side of the accused.”

This burden of proof though is not as onerous as the burden of proof beyond all reasonable doubts which is on the prosecution, nevertheless some degree of reasonable satisfaction has to be established by the defence, when this plea is taken. (See : Salim Zia v. State of U.P., (1979) 2 SCC 648).

22.In the case at hand, the defence has not been able to establish a case of private defence by any evidence. There is no evidence on this aspect and therefore this plea was rightly rejected by the Trial Court as well as the Appellate Court.

23.In fact, the plea of self-defence taken by the accused/appellant is childish to say the least, in the light of the facts of the case, and on the weight of the evidence of the prosecution. The case of the defence that the deceased came to the Police Station “unarmed” to kill the appellant knowing very well that the appellant was armed with a weapon is an awkward attempt to present the deceased as the aggressor. It does not make any sense. What is most important here is the eye-witness accounts of PW-2, PW-1, PW-11 & PW-17, which prove that the appellant did not stop at the initial firing of the shot, which he had fired from a close range (the entry wound of gun shot with blackening). Instead, he continued to spray bullets on the deceased even when he was trying to escape. The eye witness accounts of four police personnels who were all present at the Police Station at that point of time, establish a case of murder beyond any reasonable doubt.

24.The defence again has not even been able to discharge its burden by showing that it is a case of grave and sudden provocation, though an attempt has been made by the defence to bring the case under Exception I to Section 300 IPC. There is however, nothing on record to show that the deceased hit the car at the gate of the Police Station, which was found parked inside that Police Station with no scratch on its body, thus disproving that it had hit the gate as was the case of the defence. Moreover, all the facts which have been placed before the Court show that it was the appellant who had a motive to kill the deceased as the deceased was having an illicit relationship with his wife. In spite of best efforts by the family members of the appellant and the deceased, the deceased continued with this relationship with the wife of the appellant. This was hence the motive for the appellant to kill the deceased.

25.The appellant would argue that the Act attributable to him would fall under Exception 1 to Section 300 of the Indian Penal Code, which reads as under:

“Exception 1.—When culpable homicide is not murder.—Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.

The above exception is subject to the following provisos:—

First.—That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.

Secondly.—That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.

Thirdly.—That the provocation is not given by anything done in the lawful exercise of the right of private defence.

Explanation.—Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.”

According to the defence, the death of the deceased was caused by the appellant when the appellant was deprived of his power of self-control due to grave and sudden provocation caused by the deceased which resulted in his death by accident.

This court has reiterated in more than one cases right from K.M. Nanavati v. State of Maharashtra AIR 1962 SC 605 onwards that provocation itself is not enough to reduce the crime from murder to culpable homicide not amounting to murder. In order to convert a case of murder to a case of culpable homicide not amounting to murder, provocation must me such that would temporarily deprive the power of self-control of a “reasonable person”. What has also to be seen is the time gap between this alleged provocation and the act of homicide; the kind of weapon used; the number of blows, etc. These are again all questions of facts. There is no standard or test as to what reasonableness should be in these circumstances as this would again be a question of fact to be determined by a Court. Nanavati (supra) answers this question as follows:

“84. Is there any standard of a reasonable man for the application of the doctrine of “grave and sudden” provocation? No abstract standard of reasonableness can be laid down. What a reasonable man will do in certain circumstances depends upon the customs, manners, way of life, traditional values etc.; in short, the cultural, social and emotional background of the society to which an accused belongs. In our vast country there are social groups ranging from the lowest to the highest state of civilization. It is neither possible nor desirable to lay down any standard with precision : it is for the court to decide in each case, having regard to the relevant circumstances. It is not necessary in this case to ascertain whether a reasonable man placed in the position of the accused would have lost his self-control momentarily or even temporarily when his wife confessed to him of her illicit intimacy with another, for we are satisfied on the evidence that the accused regained his self-control and killed Ahuja deliberately.

85. The Indian law, relevant to the present enquiry, may be stated thus : (1) The test of “grave and sudden” provocation is whether a reasonable man, belonging to the same class of society as the accused, placed in the situation in which the accused was placed would be so provoked as to lose his self-control. (2) In India, words and gestures may also, under certain circumstances, cause grave and sudden provocation to an accused so as to bring his act within the First Exception to Section 300 of the Indian Penal Code. (3) The mental background created by the previous act of the victim may be taken into consideration in ascertaining whether the subsequent act caused grave and sudden provocation for committing the offence. (4) The fatal blow should be clearly traced to the influence of passion arising from that provocation and not after the passion had cooled down by lapse of time, or otherwise giving room and scope for premeditation and calculation.”

In the present case on every possible count the case is nothing but a case of murder. The nature of weapon used; the number of gun shots fired at the deceased; the part of the body where gun shots are fired, all point towards the fact that the appellant was determined to kill the deceased. Ultimately, he achieved his task and made sure that the deceased is dead. By no stretch of logic is it a case of any lesser magnitude, and definitely not culpable homicide not amounting to murder.

The facts of the present case do not even remotely make out any case under Exception 1 to Section 300 of the IPC, or under any other Exception(s) to Section 300 of IPC.

26.In view of the above, we are not inclined to interfere with the findings of the Trial Court and the High Court. Accordingly, this appeal is dismissed. The interim order dated 02.04.2012 granting bail to the appellant, hereby, stands vacated and the appellant is hereby directed to surrender before the trial court within four weeks from today. A copy of this Judgment shall be sent to the Trial Court to ensure that the appellant surrenders and undergoes the remaining part of his sentence.

Result of the case: Appeal dismissed.

1 231. Evidence for prosecution.—(1) On the date so fixed, the Judge shall proceed to take all such evidence as may be produced in support of the prosecution.

(2) The Judge may, in his discretion, permit the cross-examination of any witness to be deferred until any other witness or witnesses have been examined or recall any witness for further cross-examination.

2 105. Burden of proving that case of accused comes within exceptions.—When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the General Exceptions in the Indian Penal Code (XLV of 1860), or within any special exception or proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the Court shall presume the absence of such circumstances.

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