the appellant is a retired government official and that before obtaining no dues certificates from the respondent-authority, the appellant has deposited a sum of Rs.6,79,557/- and that after obtaining actual physical possession, the appellant has spent his hard earned money and also substantial part of his retiral benefits in putting up the construction and that the appellant be permitted to retain the plot and the building constructed over the plot in question. It was also submitted that by so permitting the appellant to retain the plot, HUDA may not loose in any manner. To substantiate the contention that the appellant has put up the construction, photographs were also filed by the appellant which shows that only finishing work is to be completed. 11. Considering the facts and circumstances of the case and that the appellant has put up substantial construction, we directed the respondent-authority to file rate of the plot in Sector-64 at various point of time so as to consider the claim of the appellant to permit him to retain the plot in question with the construction thereon. Pursuant to the order dated 19.11.2015, the respondent-authority has filed its affidavit, relevant part of which is extracted herein below:- “(1) It is submitted that the present circle rate of Sector-64 in which the disputed plot is situated is fixed @ Rs. 22,000/- per sq. mtrs. for the year 2014-15. (2) That the last allotment in Sector-64, Faridabad was made @ Rs. 6200/- per sq. mtrs. in the year 2010. (3) That the current rate and circle rate of Sector-2 & 65, Faridabad (which are in the vicinity of Sector-64) is as under:- | Sector |Current HUDA Rate |Circle Rate | | |(per sq.mtr.) |(per sq.mtr.) | | 2 |Rs. 15,500/- |Rs. 22,000/- | | 65 |Rs. 12,000/- |Rs. 22,000/- | (4) That the year-wise rates of allotment of Sector-64 are as under:- | Year |HUDA Rate (per sq. yard) | |2001 |Rs.2718/-including enhanced compensation. | |2005 |Rs. 2718/- including enhanced compensation. | That the rate for the year 2010 was Rs. 6200/- per sq. mtrs. and after the year 2010, the rate was not finalized till the year 2014-15, hence the deponent is not in position to intimate the rate of the year 2011. Moreover it is submitted that the rate of the year 2014-15 is Rs. 10500/- per sq. mtr.” Considering the fact that the appellant has deposited the then cost of the plot way back in 2009 and other facts and circumstances and in the interest of justice, we direct HUDA to permit the appellant to retain the plot subject to the condition that the appellant pays the cost of plot at the prevailing HUDA rate i.e. Rs.10,500/- per sq. mtr. 12. The impugned orders passed by the National Commission are set aside and these appeals are allowed. Respondent-authority/HUDA shall permit the appellant to retain the plot subject to the appellant’s depositing the amount at the current HUDA rate of the year 2014-15 i.e. Rs.10,500/- per sq. mtr. after adjusting the amount already deposited by the appellant. The appellant shall deposit the said amount within four months from the date of this judgment and on such deposit, HUDA shall execute the necessary document and issue no objection certificate and clearances as may be required within four weeks thereafter. It is further directed that the respondent-authority shall proceed against the delinquent officials/officers who are responsible for the lapses in accordance with law. In so far as action taken in the disciplinary proceedings, the respondent-authority shall file compliance report before this Court within nine months. In the facts and circumstances of the case, we make no order as to costs.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                    CIVIL APPEAL  NOS.  52-53    OF 2016
             (Arising out of SLP (Civil) Nos.5567-5568 of 2012)

PARDEEP SHARMA                                        ..Appellant

                                   Versus

CHIEF ADMINISTRATOR
HARYANA URBAN DEV. AUTHORITY & ANR.             ..Respondents



                               J U D G M E N T


R. BANUMATHI, J.


            Leave granted.
2.          These appeals are filed assailing the  orders  dated  19.07.2011
and  29.09.2011  passed  by  the  National   Consumer   Disputes   Redressal
Commission, New Delhi  (for  short  ‘National  Commission’)  dismissing  the
Revision Petition No.671/2011 and also the Review  Application  No.142/2011,
thereby confirming the order dated 02.12.2010 passed by the  State  Consumer
Disputes  Redressal  Commission,  Haryana  (for  short  ‘State  Commission’)
whereby it was observed that the appellant-complainant having  accepted  the
refund amount of  10% and was no longer a consumer and has no  locus  standi
to seek  possession of the plot allotted to him.
3.          Brief facts which led to the filing  of  these  appeals  are  as
follows:- The appellant/complainant was allotted a plot bearing  No.1048  in
Sector 64, Faridabad  measuring  250  sq.  yds.  vide  Memo  No.  399  dated
01.01.2001 at the rate of Rs.1,865/- per sq. yd. The  appellant  along  with
the application form had deposited 10% as earnest money and 15% of the  sale
consideration was deposited on 22.01.2001.  Balance amount  of  75%  of  the
total cost was to  be  deposited  by  the  appellant  in  six  yearly  equal
instalments with  15%  interest  per  annum  to  Haryana  Urban  Development
Authority (for  short  ‘HUDA’).   HUDA  issued  the  demand  notice  to  the
appellant calling upon him to pay a sum of Rs.59,782.50 vide  Memo  No.38698
dated 04.10.2002 on account of enhancement  of the cost of the  plot,  which
as per the terms of  allotment they have right to do so.  The appellant  has
failed to deposit the said amount and hence the possession of the  plot  was
not delivered to him.  Alleging that there was deficiency  on  the  part  of
HUDA for not delivering the possession,  the  appellant  filed  a  complaint
before the District Consumer Disputes Redressal Forum, Faridabad (for  short
‘District Forum’) praying for issuance of direction to  HUDA  to  hand  over
the possession of the plot  by  adjusting  the  amount  already   deposited.
During the pendency of the said complaint before  the  District  Forum,  the
amount deposited by the appellant towards price of the plot was refunded  to
and accepted by the appellant.   The  fact  that  the  appellant  had  taken
refund was however not brought to the notice of  the  District  Forum  which
passed the award  on  19.12.2005.   The  District  Forum  vide  Order  dated
19.12.2005 allowed the complaint and directed the  respondents  to  re-allot
the same plot to  the  appellant  on  the  same  price  and  hand  over  the
possession of the same to him.  The District Forum ordered that  the  amount
already paid by the appellant to be adjusted against price of the  plot  now
to  be  allotted  to  the  appellant  as  per  the   order.    Additionally,
respondents were also directed to  pay  Rs.50,000/-  on  account  of  mental
agony, harassment and damages and also Rs.5,000/- on account  of  litigation
expenses.
4.           Aggrieved  by  the  said  order,  HUDA  filed  appeal   bearing
No.708/2006 before the  State  Commission.   When  the  appeal  was  pending
before the State Commission, the appellant filed execution petition  and  in
compliance of the order dated 02.09.2009 by the District Forum in  Execution
Petition No.504 dated 12.05.2006, physical possession  was  handed  over  to
the appellant. The State Commission vide order dated 02.12.2010 allowed  the
appeal and thereby  set  aside  the  award  passed  by  the  District  Forum
observing that the  respondent/complainant  cannot  claim  any  relief  with
respect to the plot voluntarily surrendered by him and  the  District  Forum
erred in accepting the complaint. The State  Commission  further  held  that
the complainant having accepted the refund amount of 10% after  surrendering
the plot, the respondent/complainant was no longer a consumer.   As  against
the order passed by  the  State  Commission,  appellant  preferred  revision
before the National Commission and the same was dismissed  by  the  impugned
order dated 19.07.2011.  The review application  No.142/2011  filed  by  the
appellant also came to be  dismissed  by  another  order  dated  29.09.2011,
which is also now under challenge.
5.          Mr.  S.R.  Singh,  learned  Senior  Counsel  for  the  appellant
submitted that the State Commission and the  National  Commission  erred  in
not taking into consideration that the appellant has already  deposited  the
total of sale consideration and that he obtained DPC completion  certificate
after construction as per the sanctioned building  plan.  It  was  submitted
that the action of HUDA for cancellation of the allotment of  the  plot  and
refund of the amount deposited by the appellant was  without  providing  any
reasonable opportunity  of  hearing  to  the  appellant  which  was  totally
arbitrary and that the District Forum rightly passed the award directing re-
allotment of the plot  at  the  same  rate  and  the  State  Commission  and
National Commission ought not to have interfered with the same.
6.           Learned  counsel  for  the  respondents  submitted    that   in
compliance of the order dated 02.09.2009 passed by  the  District  Forum  in
Execution Petition No. 504 dated  12.05.2006,  physical  possession  of  the
plot was handed over to the appellant. Learned counsel for  the  respondents
further submitted that having accepted refund of the amount,  the  appellant
was no longer a consumer and cannot seek  for  allotment  of  plot  and  the
State Commission and the National  Commission  rightly  reversed  the  award
passed by the District Forum.
7.          We have carefully considered the rival submissions  advanced  by
both the parties and perused the impugned orders and material on record.
8.          As noticed above that even while the matter was  pending  before
the State Commission in  appeal,  the  Estate  Officer  of  the  respondent-
authority in pursuance  of  the  order  passed  by  the  District  Forum  in
Execution Petition No.504 and by letter  dated  15.04.2008  regularized  the
allotment of the  plot  and  handed  over  the  possession  thereof  to  the
appellant.   Possession  was  actually  delivered  to   the   appellant   on
07.10.2009. Taking note of these facts,  by  order  dated  01.11.2013,  this
Court has directed the respondent-authority to hold an inquiry and  identify
the   person(s)   responsible   for   issuing    orders/certificates    like
regularization, delivery of possession etc.  We may usefully  refer  to  the
relevant part of the order dated 01.11.2013 which reads as under:-
“We have heard learned counsel for the  parties  at  some  length.   In  the
ordinary course, we would have, in the light of the affidavit filed  by  the
respondent-Authority, disposed of  the  matter  with  a  suitable  direction
regarding  payment  of  the  extension  of  fee  by  the  petitioner.   What
dissuades us from doing so is  the  fact  that  consequent  upon  the  order
passed by the District  Consumer  Forum  and  while  the  matter  was  still
pending before the State Commission in appeal, the  Estate  Officer  of  the
respondent-Authority had by letter dated 15th April,  2008  regularised  the
allotment of the plot and offered the possession thereof to the  petitioner.
 This order, it appears, was passed either in ignorance  of  the  fact  that
the HUDA had challenged the order passed by the District Consumer  Forum  or
in deliberate suppression of the same.  In the ordinary course if  HUDA  had
assailed the order passed by the  District  Consumer  Forum,  there  was  no
question of the Estate  Officer  going  ahead  with  regularization  of  the
allotment or delivering possession of the plot-in-question.  Not  only  that
we find that the possession was actually delivered to the petitioner on  7th
October, 2009 and a “no encumbrance certificate” issued on 9th August,  2013
while the matter was pending before the  State  Commission.   Building  plan
for the proposed construction was sanctioned on 21st September,  2010.   All
this happened  while  the  proceedings  before  the  State  Commission  were
pending  to  which  respondent-HUDA  was  a  party.   The  State  Commission
eventually set aside the order passed by the District Consumer Forum on  2nd
December, 2010.  Even so the respondent-HUDA issued  a  DPC  Certificate  on
20th December, 2010, no matter the order passed  by  the  District  Consumer
Forum directing regularised/re-allotment and  possession  had  already  been
set aside by the State Commission.

We are told by learned counsel for the  petitioner  that  construction  over
the  plot-in-question  has  since  been  completed.   We  however  fail   to
appreciate how despite orders  passed  by  the  State  Commission  and  that
passed  by  the  National  Commission,  the   petitioner   was   granted   a
regularisation certificate, given possession  of  the  plot,  issued  a  “no
encumbrance certificate”, granted a DPC certificate and given  sanction  for
the construction of  the  proposed  building.   It  is  obvious  that  utter
confusion and lack of communication prevails within  HUDA  for  one  section
does not appear to be knowing what the other section  is  doing  which  does
not speak well about the working of the Authority.  At any rate,  before  we
pass any further direction in the matter we  deem  it  just  and  proper  to
direct that the Chief Administrator, HUDA, shall hold an  inquiry  into  the
circumstances in which the developments, mentioned above, have  taken  place
and  also  identify  the  persons  responsible  for   issuing   orders   and
certificates like regularisation, delivery of  possession,  “no  encumbrance
certificate”, DPC certificate and sanction of the  building  plans  for  the
construction of the proposed building, despite  the  orders  passed  by  the
State Commission and that passed by the National  Commission.   The  inquiry
shall be expedited and  a  report  to  this  Court  submitted  as  early  as
possible but not later than four months from the date of receipt of  a  copy
of this order.”

9.          Inspite of the  above  order,  there  was  delay  in  conducting
inquiry  and  also  taking  action  against  the  officials  of   the   HUDA
responsible for dereliction of  duties.  By  order  dated  17.11.2015,  this
Court has directed the Chief Administrator, HUDA to be present in the  Court
and also to file the response.  Thereafter, HUDA has filed its  response  on
19.11.2015  indicating the  names of the officials responsible  for   lapses
in this case and also the status of action taken and  we  are  of  the  view
that the action taken against erring officials are  to  be  taken  to  their
logical conclusion.
10.         On behalf of the appellant, it was submitted that the  appellant
is  a  retired  government  official  and  that  before  obtaining  no  dues
certificates from the respondent-authority, the appellant  has  deposited  a
sum of Rs.6,79,557/- and that after obtaining  actual  physical  possession,
the appellant has spent his  hard earned money and also substantial part  of
his retiral benefits in putting up the construction and that  the  appellant
be permitted to retain the plot and the building  constructed over the  plot
in question.  It was also submitted that by so permitting the  appellant  to
retain the plot, HUDA may not loose  in  any  manner.  To  substantiate  the
contention that the appellant has put up the construction, photographs  were
also filed by the appellant which shows that only finishing work  is  to  be
completed.
11.         Considering the facts and circumstances of  the  case  and  that
the  appellant  has  put  up  substantial  construction,  we  directed   the
respondent-authority  to file rate of the  plot   in  Sector-64  at  various
point of time so as to consider the claim of the appellant to permit him  to
retain the plot in question with the construction thereon. Pursuant  to  the
order dated 19.11.2015, the respondent-authority has  filed  its  affidavit,
relevant part of which is extracted herein below:-
“(1)  It is submitted that the present circle rate  of  Sector-64  in  which
the disputed plot is situated is fixed @ Rs. 22,000/- per sq. mtrs. for  the
year 2014-15.

(2)   That the last allotment in Sector-64, Faridabad was made @ Rs.  6200/-
per sq. mtrs. in the year 2010.

(3)   That the current rate and circle rate  of  Sector-2  &  65,  Faridabad
(which are in the vicinity of Sector-64) is as under:-

|     Sector |Current HUDA Rate     |Circle Rate               |
|            |(per sq.mtr.)         |(per sq.mtr.)             |
|        2   |Rs. 15,500/-          |Rs. 22,000/-              |
|       65   |Rs. 12,000/-          |Rs. 22,000/-              |


(4)  That the year-wise rates of allotment of Sector-64 are as under:-

|    Year   |HUDA Rate (per sq. yard)                           |
|2001       |Rs.2718/-including enhanced compensation.          |
|2005       |Rs. 2718/- including enhanced compensation.        |


      That the rate for the year 2010 was  Rs.  6200/-  per  sq.  mtrs.  and
after the year 2010, the rate was  not  finalized  till  the  year  2014-15,
hence the deponent is not in position to  intimate  the  rate  of  the  year
2011.  Moreover it is submitted that the rate of the  year  2014-15  is  Rs.
10500/- per sq. mtr.”

Considering the fact that the appellant has deposited the then cost  of  the
plot way back in 2009 and other facts and circumstances and in the  interest
of justice, we direct HUDA to  permit  the  appellant  to  retain  the  plot
subject to the condition that the appellant pays the cost  of  plot  at  the
prevailing HUDA rate i.e. Rs.10,500/- per sq. mtr.
12.         The impugned orders passed by the National  Commission  are  set
aside  and  these  appeals  are  allowed.   Respondent-authority/HUDA  shall
permit  the  appellant  to  retain  the  plot  subject  to  the  appellant’s
depositing the amount at the current HUDA rate  of  the  year  2014-15  i.e.
Rs.10,500/- per sq. mtr. after adjusting the  amount  already  deposited  by
the  appellant.  The appellant shall deposit the  said  amount  within  four
months from the date of this  judgment  and  on  such  deposit,  HUDA  shall
execute the necessary  document  and  issue  no  objection  certificate  and
clearances as may be required within four weeks thereafter.  It  is  further
directed that the respondent-authority shall proceed against the  delinquent
officials/officers who are responsible for the  lapses  in  accordance  with
law.  In so far  as  action  taken  in  the  disciplinary  proceedings,  the
respondent-authority shall file compliance report before this  Court  within
nine months.  In the facts and circumstances of the case, we make  no  order
as to costs.

                                                              .…………………….CJI.
                                (T.S.THAKUR)



                               ....…………………….J.
                                     (R. BANUMATHI)

New Delhi;
January   7, 2016

mere non mentioning of two of the names in the F.I.R cannot be fatal to the case of the prosecution.=“149. Every member of unlawful assembly guilty of offence committed in prosecution of common object: If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence”.=when we examine the case on hand, the motive for the alleged assault is the grudge of the accused-Ashok Das alias Gopal Das who contested in the college student election in which P.W.8 also contested, who stated to have ultimately won the elections. According to the case of the prosecution, all the appellants gathered under a mango tree and the recoveries made at that spot disclose, whisky bottles etc., to show that they were waiting at the place of occurrence. The recovery of bhujali and the cover at the place of occurrence as disclosed in the inquest report supported by the version of P.W.13, investigating officer, clearly proved that the assailants while waiting at the spot, shared their common object. The common object shared by them resulted in the assault on P.W.8. We can deduce from the evidence of P.W.8 that at the spot, he could notice the accused making their appearance from behind a mango tree with each one of them holding a deadly weapon. According to P.W.8, accused-Ashok Das alias Gopal Das was holding a sword; A1 was holding a Bhujali and rest of the accused were holding cycle chains. On seeing their sudden appearance, while riding the motor cycle, P.W.11 apparently lost control and in that process, it is narrated by P.W.8 and 11 that accused-Ashok Das alias Gopal Das gave a sword blow to P.W.8 on his face and when P.W.11 fell down from the motorcycle along with P.W.8, A3 and A4 stated to have held the deceased while accused-Ashok Das alias Gopal Das dealt a sword blow on the backside of the head of the deceased, who cried for help. A1, stated to have inflicted Bhujali blow on the left scapula of the deceased and when A1 attempted to inflict another blow with the bhujali, the deceased stated to have attempted to catch hold of the bhujali and sustained injuries on his left hand. While the accused were thus inflicting injuries on P.W.11, P.W.8 they made an attempt to flee, when accused-Ashok Das alias Gopal Das dealt a sword blow on the left chest of P.W.8. When P.W.11, attempted to run away, A2 Pitambar kicked more than thrice and on seeking a Trekker moving in that direction, the appellants stated to have ran away, which was noticed by P.W.7 who was crossing that side along with one Debendra Padhi who was not examined. In the evidence of P.W.7, 8 and 11, it is clearly noted that the appellants participated in the crime and all five of them ran away from the place of occurrence after causing severe injuries on the deceased as well as P.Ws.8 and 11. Having regard to the said evidence, as spoken to by P.Ws.7, 8 and 11, there can be no room for doubt about the presence of all the five appellants at the place of occurrence.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO.244 OF 2009

Susanta Das & Ors.                                 …Appellants

                                   VERSUS

State of Orissa                                    …Respondent

                                    With

                       CRIMINAL APPEAL NO.1523 of 2015

Ashok Das alias Gopal Das                          …Appellant

                                   VERSUS

State of Orissa                                    …Respondent



                               J U D G M E N T

FAKKIR MOHAMED IBRAHIM KALIFULLA

These two appeals arise out of a common judgment  dated  15.10.2008,  passed
in Criminal Appeal No.251 of 1997 preferred by the accused-Ashok  Das  alias
Gopal Das and Government Appeal No.20 of 1999 as against  the  acquittal  of
accused Nos.1   to 4.


As per the case of the prosecution on 03.04.1996, at about 04.00  p.m.  when
P.Ws.8, 11 and the deceased Padma Lochan Jena were proceeding  from  Bhadrak
to Agarapada  in  a  Rajdoot  Motorcycle,  about  half  a  kilometer  before
Kadabaranga Chhaka, the accused numbering five, each one of them armed  with
deadly weapons obstructed them and when the three persons tried  to  escape,
the accused chased them and assaulted them with the aid of the weapons  held
by them.  At that point of time, a trekker passed through the  road  and  on
seeing the same, the accused persons fled away.   The  trekker  however  did
not stop, but P.W.7 along with one Debendra Padhi who were  also  proceeding
on that road in a motorcycle stopped at the place of occurrence, helped  the
deceased as well as P.Ws.8 and 11 who were also injured by shifting them  to
a hospital in a mini bus called  Santoshi  coming  on  that  road  and  that
before they could reach the hospital the deceased Padma Lochan succumbed  to
the injuries.


At the hospital P.W.1,  the  uncle  of  the  deceased,  who  rushed  to  the
hospital on hearing the news of the death of the deceased,  after  gathering
the information from P.Ws.8 and 11 as to how the  deceased  along  with  the
injured eye witnesses were assaulted  by  the  accused,  lodged  the  F.I.R.
(Ex.1) by around 5.45 p.m. The injured were attended by  P.W.12  Doctor  who
issued the injury reports (Exs.7 & 8).  P.W.9, Dr.  S.  N.  Panda  conducted
autopsy on the body of  the  deceased  and  issued  Ex.6,  the  post  mortem
report.  Though P.W.10, the passenger in the Trekker was cited and  examined
as an eye witness to the  occurrence,  did  not  support  the  case  of  the
prosecution. P.Ws.13 and 14 were the investigating officers  and  the  major
portion of the investigation was conducted by  P.W.13.  P.W.13  recovered  a
Bhujali and the cover of  the  Bhujali  (M.Os.II  &  III)  and  the  wearing
apparels of the injured and the deceased (M.Os.IX & XI).  M.O.I  is  a  pair
of chappal, which  was  also  recovered  along  with  other  articles  viz.,
plastic comb, plastic glass, whisky and rum bottles. Ex.2  was  the  inquest
report and Ex.10 was the dead body challan. Exs.3  to  5  and  12  were  the
different seizure lists.  Ex.9 was the crime detailed form while  Exs.14  to
18 are the documents in support of  sending  M.Os.  to  the  State  Forensic
Science Laboratory and the report received therefrom.


On behalf of the prosecution, P.Ws.1 to 14 were examined and on the side  of
the defence, D.W.1 was examined and Exs.D & D/1 were  marked.   The  accused
were arrested on  different  dates.   The  first  accused  was  arrested  on
06.04.1996, the second accused was arrested on  11.04.1996,  the  third  and
fourth  accused  surrendered  before  Court  on  12.07.1996  and  19.07.1996
respectively. Accused-Ashok Das alias Gopal Das was arrested on  19.03.1997.
 The wearing apparels of the first accused was recovered which  was  stained
with blood, but the same was not sent for chemical analysis.


The appellants were charged for the offences under Sections 147,  148,  341,
326, 307, 302 r/w Section 149 I.P.C.  The accused  denied  the  charges  and
were tried by the Sessions Court.  Though the accused were charged  for  the
offence under Section 149, the Trial Court  while  analyzing  the  evidence,
both the eye witnesses account, medical  evidence,  as  well  as  the  other
evidence, took the view that there was no clinching evidence to support  the
individual role played by each  of  the  accused  except  accused-Ashok  Das
alias Gopal Das and consequently  while  acquitting  A1  to  A4,  ultimately
convicted the accused-Ashok Das  alias  Gopal  Das  for  the  offence  under
Section 302 I.P.C. for the killing of the deceased  Padma  Lochan  Jena  and
for causing grievous hurt on P.W.8, convicted  him  for  the  offence  under
Section 326 I.P.C.   He  was  acquitted  of  the  offence  under  the  other
Sections by granting the benefit of doubt.  Ultimately, he was imposed  with
the punishment of imprisonment for life for the offence  under  Section  302
I.P.C and three years R.I for the  offence  under  Section  326  I.P.C.  and
directed the punishment to run concurrently.


As against the said  conviction  and  sentence  imposed,  accused-Ashok  Das
alias Gopal Das preferred Criminal Appeal No.251 of 1997 while the State  of
Orissa preferred Government Appeal No.20 of 1999 against  the  acquittal  of
A1 to A4.  As stated earlier, the High Court by the impugned judgment  while
reversing the acquittal of A1 to A4 found them guilty of the offences  under
Section 302 r/w 149 I.P.C., Sections 148,  326  r/w  149,  307  r/w  149  of
I.P.C. and imposed them with the sentence of imprisonment for life  for  the
offence under Section 302 r/w 149 I.P.C. and they were acquitted of  offence
under Section 307 r/w 149 of I.P.C. Thus, convicting them for offence  under
Section 302 r/w 149 did not impose  a  separate  sentence  for  the  offence
under Section 326 r/w 149 and 148 I.P.C.  The appeal preferred  by  accused-
Ashok Das alias Gopal Das was dismissed. It is as against the  above  common
judgment of the Division Bench of the High Court, the appellants are  before
us.


We heard Mr. Ratnakar Dash, learned Senior Counsel  for  the  appellants  in
Crl.A.No.244  of  2009,  Mr.Anup  Kumar,  learned  Amicus  Curiae  for   the
appellant in Crl.A.No.1523 of 2015 and we also heard  Mr.  Ashok  Panigrahi,
learned counsel for the respondent State.


Mr. Ratnakar Dash, learned Senior Counsel for the appellants,  after  taking
us through the evidence of P.Ws.1, 7, 8, 9, 11 and 13 as well as Ex.7/1  and
8/2 and certain other documents  and  also  the  conclusions  drawn  by  the
learned Trial Judge and the analysis made by the Division Bench of the  High
Court, submitted that the offence under Section 302 as well as 326  r/w  149
was not made out in as much as though P.Ws.8 and 9 claim to be  injured  eye
witnesses, their evidence did not support the case of  the  prosecution  for
invoking Section 149 of I.P.C.


According to the learned Senior Counsel,  though  Ex.1,  F.I.R  came  to  be
lodged at 5.45 p.m. at the instance  of  P.W.1,  who  lodged  his  complaint
based on the information furnished by  P.Ws.8  and  11,  significantly,  the
names of all the accused were not mentioned in the F.I.R  and  even  in  the
Section 161 statement of P.W.8 and 11, the names of  all  the  accused  were
not mentioned.  The learned Senior Counsel also submitted that  in  none  of
the contemporaneous documents either  prepared  by  P.W.13  or  the  medical
reports, there was any specific reference to the names of all  the  accused,
in particular, the appellants for whom he appeared, in a  consistent  manner
in order to implicate  them  either  for  the  offence  of  killing  of  the
deceased or for causing any injury on P.Ws.8 and  11.   The  learned  Senior
Counsel therefore contended that in the light of the said  fact  viz.,  lack
of  necessary  evidence  to  show  the  participation  of  all  the  accused
together, the invocation of Section 149 I.P.C to rope in the appellants  for
whom he appeared was not made out and  consequently,  the  reversal  of  the
judgment of the Trial Court by the High Court  was  not  justified  and  the
appellants in Criminal Appeal No.244 of 2009 viz., A1  to  A4  were  rightly
acquitted by the Trial Court giving them the benefit of doubt.


Mr. Anup Kumar, learned Amicus Curiae for the appellant in Crl.A.No.1523  of
2015 in his submissions contended that he was alleged to have used  a  sword
in the occurrence, which was neither seized  nor  recovered;  there  was  no
blood stained cloth of the said accused recovered of  him;  that  there  was
delay in forwarding the F.I.R to  the  learned  Magistrate;  that  the  non-
examination of the person who accompanied P.W.7 was fatal  to  the  case  of
the prosecution; that the so called eye witness P.W.10 who claimed  to  know
two of the accused viz.,  A1  and  A2  did  not  support  the  case  of  the
prosecution and therefore on that ground as well, the conviction  is  liable
to be set aside.  The learned counsel also submitted that  no  reliance  can
be placed upon the version of  P.W.11  against  whom  a  criminal  case  was
pending.


As against the above submissions of the learned  counsel  for  the  accused,
the learned standing counsel for the respondent State argued that there  was
specific reference about each of the accused  in  the  evidence  which  came
into existence at the earliest point of  time.   According  to  the  learned
counsel, the reference to involvement of A1  to  A4  and  accused-Ashok  Das
alias Gopal Das along with two others was specifically  mentioned  by  P.W.1
in his complaint, which came to be noted in the F.I.R  (Ex.1)  and  that  in
the Section 161 statement of P.W.8  the  names  of  A1  and  A3  along  with
accused-Ashok Das alias Gopal Das was  specifically  referred.   Though  the
learned standing counsel fairly submitted that there  was  no  reference  to
the role played by A2 in any of the reports or statements, which  came  into
existence at the earliest  point  of  time,  the  learned  standing  counsel
contended that the statement of P.Ws.1, 8 and the F.I.R amply  disclose  the
involvement of A1, A3, A4 and accused-Ashok Das alias Gopal Das  apart  from
the fact  that  the  medical  evidence  fully  supported  the  case  of  the
prosecution.  The  learned  standing  counsel  placed  reliance   upon   the
decisions reported in Rotash Vs. State of Rajasthan  -  (2006)  12  SCC  64,
Mritunjoy Biswas Vs. Pranab alias Kuti Biswas and another -  (2013)  12  SCC
796 and Bishna alias Bhiswadeb Mahato and others Vs. State of W.B. -  (2005)
12 SCC 657. On behalf  of  the  appellants  reliance  was  placed  upon  the
decision reported in Ajit Savant Majagvai Vs. State of Karnataka - (1997)  7
SCC 110.


Having heard the learned counsel for the appellants and the learned  counsel
for the respondent State and having bestowed our  serious  consideration  to
the materials placed before us and the judgments  of  the  Trial  Court  and
that of the High Court, we are convinced that no interference is called  for
with the impugned judgment.


While discussing about the various  contentions  raised  on  behalf  of  the
appellants, since we are  concerned  with  the  conviction  imposed  on  the
appellants, for the offence  under  Section  302  I.P.C.  with  the  aid  of
Section 149 I.P.C., it will be necessary to clearly set out  the  nature  of
offence detailed in Section 149 I.P.C. Section 149 reads as under :


“149. Every member of unlawful  assembly  guilty  of  offence  committed  in
prosecution of common object: If an offence is committed by  any  member  of
an unlawful assembly in prosecution of the common object of  that  assembly,
or such as the members of that assembly knew to be likely  to  be  committed
in prosecution of that  object,  every  person  who,  at  the  time  of  the
committing of that offence, is a member of the same assembly, is  guilty  of
that offence”.





When  we  read  Section  149,  since  at  the  very  outset  it  refers   to
participation of  each  member  of  an  unlawful  assembly,  it  has  to  be
necessarily shown that there was an assembly of five or more persons,  which
is designated as unlawful assembly under  Section  149  I.P.C.   When  once,
such a participation of five or more persons is shown,  who  indulge  in  an
offence as a member of  such  an  unlawful  assembly,  for  the  purpose  of
invoking Section 149, it is not necessary that there must be specific  overt
act played by each of the  member  of  such  an  unlawful  assembly  in  the
commission of an offence. What is required to be shown is the  participation
as a member in pursuance of a common object  of  the  assembly  or  being  a
member of that assembly, such person  knew  as  to  what  is  likely  to  be
committed in prosecution of any such common object.  In  the  event  of  the
proof of showing of either of the above conduct of a member of  an  unlawful
assembly, the offence, as stipulated in Section 149, will stand proved.   In
fact,  the  said  prescription  contained  in  Section  149  has  been  duly
understood by the Division Bench by making reference to some of the  earlier
decisions of this Court.  In this  context,  the  Division  Bench  chose  to
follow the decisions of this Court reported in  Rajendran  and  another  Vs.
State of T.N.  –  (2004)  10  SCC  689  and  Bishna  (supra),  wherein,  the
description contained in Section 149 I.P.C and in what  cases,  and  against
whom, the said provision can be applied has been clearly set out.


Keeping the above legal position pertaining to application of  Section  149,
when we examine the case on hand, the motive for the alleged assault is  the
grudge of the accused-Ashok  Das  alias  Gopal  Das  who  contested  in  the
college student election in which P.W.8 also contested, who stated  to  have
ultimately won the elections. According to the case of the prosecution,  all
the appellants gathered under a mango tree and the recoveries made  at  that
spot disclose, whisky bottles etc., to show that they were  waiting  at  the
place of occurrence. The recovery of bhujali and the cover at the  place  of
occurrence as disclosed in the inquest report supported by  the  version  of
P.W.13, investigating officer, clearly  proved  that  the  assailants  while
waiting at the spot, shared their common object.  The common  object  shared
by them resulted in the assault on P.W.8.  We can deduce from  the  evidence
of P.W.8 that at  the  spot,  he  could  notice  the  accused  making  their
appearance from behind a mango tree with each one of them holding  a  deadly
weapon.  According to P.W.8, accused-Ashok Das alias Gopal Das  was  holding
a sword; A1 was holding a Bhujali and  rest  of  the  accused  were  holding
cycle chains.  On seeing their sudden appearance,  while  riding  the  motor
cycle, P.W.11 apparently lost control and in that process,  it  is  narrated
by P.W.8 and 11 that accused-Ashok Das alias Gopal Das gave a sword blow  to
P.W.8 on his face and when P.W.11 fell down from the motorcycle  along  with
P.W.8, A3 and A4 stated to have held the deceased  while  accused-Ashok  Das
alias Gopal Das dealt a sword blow on  the  backside  of  the  head  of  the
deceased, who cried for help. A1, stated to have inflicted Bhujali  blow  on
the left scapula of the deceased and when A1 attempted  to  inflict  another
blow with the bhujali, the deceased stated to have attempted to  catch  hold
of the bhujali and sustained injuries on his left hand.


While the accused were thus inflicting injuries on P.W.11, P.W.8  they  made
an attempt to flee, when accused-Ashok Das alias Gopal  Das  dealt  a  sword
blow on the left chest of P.W.8.  When P.W.11, attempted  to  run  away,  A2
Pitambar kicked more than thrice and on seeking a  Trekker  moving  in  that
direction, the appellants stated to have ran  away,  which  was  noticed  by
P.W.7 who was crossing that side along with one Debendra Padhi who  was  not
examined. In the evidence of P.W.7, 8 and 11, it is clearly noted  that  the
appellants participated in the crime and all five of them ran away from  the
place of occurrence after causing severe injuries on the  deceased  as  well
as P.Ws.8 and 11.  Having regard to the  said  evidence,  as  spoken  to  by
P.Ws.7, 8 and 11, there can be no room for doubt about the presence  of  all
the five appellants at the place of occurrence.


It must be stated that P.Ws.8 and  11  while  undergoing  treatment  at  the
hospital, immediately after the occurrence  viz.,  between  04.00  p.m.  and
05.45 p.m. informed P.W.1, the  uncle  of  the  deceased,  who  reached  the
hospital. P.W.1 who gathered the information from P.Ws.8 and 11  as  to  how
and in what manner and by whom the injuries came to  be  inflicted,  in  his
complaint which he lodged at 5.45 p.m. made  a  specific  reference  to  the
names of A1, A4 and accused-Ashok Das alias Gopal Das along with two  others
who were armed with bhujalis, swords and cycle chain caused the injuries  on
the deceased and P.Ws.8 and  11.   Similarly,  the  immediate  statement  of
P.W.8, disclose the specific mention of A1, A3 and accused-Ashok  Das  alias
Gopal Das and the serious injuries  inflicted  by  accused-Ashok  Das  alias
Gopal Das on the deceased  as  well  as  P.Ws.8  &  11.  Similarly,  in  the
immediate statement of P.W.11, he specifically referred to the names of  A1,
A3 and accused-Ashok Das alias  Gopal  Das  and  the  manner  in  which  the
injuries were inflicted upon them.


A cumulative consideration of the evidence of P.Ws.1,  7,  8  and  11  amply
disclose that there were five who were involved  in  the  occurrence,  viz.,
accused 1 to 4 and  accused-Ashok  Das  alias  Gopal  Das,  apart  from  the
specific role played by each one  of  them.  Having  regard  to  the  motive
related to which the appellants stated to have nurtured  a  grievance  which
resulted in the assault on the deceased and P.Ws.8 and 11 and  all  of  whom
being known to the injured eye witnesses and accused-Ashok Das  alias  Gopal
Das being known to P.W.7, there is no reason to  disbelieve  their  version.
Therefore,  the  involvement  and  the  extent  of  participation   by   the
appellants has been sufficiently established by  the  prosecution  with  the
required evidence.


As far as the injuries sustained by the deceased as well as P.Ws.8  and  11,
the High Court has noted specifically about the injuries  as  was  noted  by
P.W.9 in the Post Mortem report, which was inflicted on the deceased at  the
time of the occurrence which when compared with the oral evidence spoken  to
by P.W.8, the High Court has found that the  same  fully  tallied  with  the
oral evidence of P.W.8. In paragraph  14,  the  High  Court  has  noted  the
various injuries and the evidence of P.W.8 in support of the said injuries.


Similarly in paragraphs 15 and 16,  the  High  Court  has  referred  to  the
injuries sustained by P.Ws.8 and 11, which were spoken  to  by  P.W.12,  who
attended on them and has found that the evidence of P.Ws.8 and 11 was  fully
corroborated by the medical evidence and thus there was no  scope  to  doubt
their version as to the manner in which the injuries were inflicted  on  the
deceased as well as the injured P.Ws.8 and  11.   Thus,  we  find  that  the
appreciation of evidence  of  the  eye  witnesses  account,  the  supporting
version of the other witnesses read along with the expert  medical  opinion,
again supported by the Post Mortem report and the injury  report,  there  is
no reason to take a different view than what has been taken by the  Division
Bench in the impugned judgment.


When we consider the submission of the appellants, in the  first  place,  it
was contended that the participation of the five accused was not  duly  made
out.  As far as the said contention is concerned, we have noted  extensively
the evidence both oral as well as documentary to show  as  to  how  all  the
five accused were duly present at the  place  of  occurrence,  in  order  to
attract Section 149 I.P.C. We have also found  that  based  on  the  medical
evidence as well as the injured  eye  witnesses  account  to  show  how  the
appellants  revealed  their  common  object   in   the   course   of   their
participation when the deceased and the  injured  witnesses  were  inflicted
with serious injuries with the aid of deadly weapons and  consequently  none
of the accused could escape from the invocation of  Section  149  I.P.C.  in
the murder of the deceased falling under Section 302 I.P.C. as well  as  the
grievous injuries caused on P.Ws.8 and 11.


The attempt of the learned Senior  Counsel  for  the  appellants  by  making
reference to Exs.7, 1, 8 and 2 wherein, there was  some  omission  to  refer
the names of some of the appellants, are  so  trivial  as  compared  to  the
overwhelming evidence both oral as well as documentary to  reject  the  said
contention.  Though the  learned  senior  counsel  attempted  to  show  some
contradiction in the evidence of P.Ws.1, 7, 8 and 11,  having  gone  through
the evidence in detail and the appreciation made by the  Division  Bench  of
the High Court, we find no serious dent in the evidence of  those  witnesses
which was otherwise supported by the expert medical evidence in the form  of
oral version of P.Ws.9 and 12 supported by injury  report  and  post  mortem
report.  We are not therefore persuaded to take a different view  than  what
has been taken by the  High  Court.   Since  the  Trial  Court  doubted  the
presence of all the accused and had proceeded to hold only  as  against  the
accused-Ashok Das alias Gopal Das by relying upon  the  specific  overt  act
alleged  against  him,  while  the  evidence  rendered  on  behalf  of   the
prosecution fully establish the participation of  all  the  accused  in  the
offence, we are convinced that the principles laid  down  in  the  decisions
referred to and relied upon by the learned counsel  for  the  appellants  in
such situations did show that the conclusions drawn by  the  Division  Bench
in the impugned judgments was fully justified and it has  duly  applied  the
principles set  out  in  the  decision  reported  in  Ajit  Savant  Majagvai
(supra). In paragraph 16 of the said judgment this Court has spelt  out  the
principles while hearing an appeal by the High Court against  the  order  of
acquittal passed by the trial Court, as to in what manner  the  appreciation
of evidence could be made and the conclusions can be drawn.


That apart, we find the  decisions  relied  upon  by  the  learned  standing
counsel for the State as reported in Rotash  (supra)  and  Mritunjoy  Biswas
(supra) duly supported the submissions. In the decision reported  in  Rotash
(supra), in paragraph 14, this Court has held as under:


“14. The first information report, as is well known, is not an  encyclopedia
of the entire case. It need  not  contain  all  the  details.  We,  however,
although did not intend to ignore the importance of naming of an accused  in
the first information report, but herein we  have  seen  that  he  had  been
named in the earliest possible opportunity. Even  assuming  that  P.W.1  did
not name him in the first information report, we do not find any  reason  to
disbelieve the statement of Mooli Dev, P.W.6. The question is as to  whether
a person was implicated by way of an afterthought  or  not  must  be  judged
having regard to the  entire  factual  scenario  obtaining  in  the  case……”
(Emphasis added)





In the decision reported in Mritunjoy Biswas (supra) in  paragraphs  22  and
23, this Court by referring to the earlier decisions  has  noted  the  legal
principles as to how a person not named in the F.I.R when proceeded  against
can be considered.  Paragraphs 22 and 23 can  be  usefully  referred,  which
are as under:-


“22. In Mulla v. State of U.P. the accused persons were  not  named  in  the
FIR. Taking into consideration the material brought  on  record,  the  Court
observed that though none was named in the FIR, yet subsequently  the  names
of the appellants had come into light during investigation and, hence,  non-
mentioning the names of the accused  persons  would  not  be  fatal  to  the
prosecution case.


23. In Ranjit Singh v. State of M.P. , after referring  to  the  authorities
Rotash, Rattan Singh v. State of H.P., Pedda  Narayana  v.  State  of  A.P.,
Sone Lal v. State of U.P.,  Gurnam  Kaur  v.  Bakshish  Singh  and  Kirender
Sarkar v. State of Assam, the Court opined that:  (Ranjit  Singh  case,  SCC
p.344, para 14)


“14….in case the informant fails to name a particular accused  in  the  FIR,
and the said accused  is  named  at  the  earliest   opportunity,  when  the
statements of witnesses are recorded, it cannot tilt the balance  in  favour
of the accused.”


   (Emphasis added)





When we apply the above principles  to  the  facts  of  this  case,  we  are
convinced that the  implication  of  all  the  five  accused  was  perfectly
justified and was supported by legal  evidence  as  was  spoken  to  by  the
relevant witnesses which was duly  corroborated  by  the  medical  evidence.
Therefore, mere non mentioning of two of the names in the  F.I.R  cannot  be
fatal to the case of the prosecution.


As far as the submission made on the ground that some of  the  weapons  were
not recovered,  expert  opinion  relating  to  blood  stain  and  the  delay
involved in forwarding the F.I.R to the Magistrate, non examination  of  the
person who accompanied P.W.7, the hostility displayed by P.W.10,  where  all
though sought to be relied upon heavily on behalf of the  accused,  we  find
that those facts do not materially affect the case of the prosecution.


In so far as the alleged delay in forwarding the F.I.R  to  the  Magistrate,
we find that the High Court was conscious of the said fact and  has  made  a
specific reference to  the  said  fact  in  paragraph  24  of  the  impugned
judgment wherein, it ultimately held that there was no  material  on  record
to show or suggest that the F.I.R was tampered or it  was  fabricated  at  a
later date by antedating it or the delay in sending the F.I.R  by  P.W.3  or
the delay in placing it before SDJM by the Sub Inspector of  Police  or  the
delay in signing the F.I.R by SDJM on 06.04.1996 was so very vital to  doubt
the case of the prosecution.  We fully concur with the said  view  expressed
by the Division Bench.


Having regard to our above conclusion, we do  not  find  any  merit  in  the
appeals, the appeals fail and the same are dismissed.


Having regard to the able assistance rendered by the learned  Amicus  Curiae
Mr. Anup Kumar, we recommend a fee of Rs.10,000/- to be paid to him.





                                                 ……………………………………………………………….J.


                                          [Fakkir Mohamed Ibrahim Kalifulla]











                                                 ………….………………………………………………….J.


                                                          [Uday Umesh Lalit]


New Delhi


January 06, 2016

Hindi Vidyapeeth Deoghar wherein it has been mentioned that any recognition given to such degrees including Sahityaalankar is only for the purpose of Hindi examination and not at par with graduation or equivalence = the validity of Sahityaalankar degree from the Hindi Vidyapeeth Deoghar and its equivalence with the graduation degree has been considered in detail by the Patna High Court in subsequent decisions filed by the State of Bihar in CWJC No.13343/2011 and several other connected matters. It is submitted that in the above batch matters, High Court has rejected the claim of the petitioners thereon that the Degree of Sahityaalankar is equivalent to graduation degree and the State of Bihar heavily relies upon the said judgment in CWJC No.13343/2011 and batch matters. It was also submitted that the letter dated 11.01.1991 should be read in consonance with earlier circular with respect to Hindi Vidyapeeth Deoghar wherein it has been mentioned that any recognition given to such degrees including Sahityaalankar is only for the purpose of Hindi examination and not at par with graduation or equivalence and in this regard reliance is placed upon Press Note dated 05.05.1988 issued by the Central Government. Having regard to the stand of the appellants and reliance placed upon order dated 25.11.2008 and the Press Note dated 05.05.1988 and the subsequent decision in CWJC 13343/2011 etc. and in the interest of justice without commenting on the merit of the case, we deem it necessary to remit the matter back to the High Court for consideration afresh.

                                         NON-REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

            CIVIL APPEAL NO.4274 OF 2014

State of Bihar & Ors.                                        ..Appellants
                                   Versus
Sanjay Kumar
..Respondent
                                    WITH
                        CIVIL APPEAL NO. 4273 OF 2014

State of Bihar & Ors.                                      ...Appellants
                                   Versus
Azad Kumar Singh                                     ...Respondent

                               J U D G M E N T

      R. BANUMATHI, J.

            These appeals have been filed challenging  the  common  impugned
order dated 17.11.2009 passed by the Patna  High  Court  allowing  the  writ
petitions in CWJC Nos. 5129/2009 and 18039/2009  filed  by  the  respondents
herein and directing  the  appellant-State  of  Bihar  to  redo  the  entire
selection process for the post of Librarian  considering  the  case  of  the
respondents also and further restraining the State from issuing  appointment
letters to other selected candidates.
2.          Brief facts giving rise to these appeals are  as  under:-  State
of Bihar  framed  Bihar  District  Council,  Secondary  &  Higher  Secondary
Teacher (Employment & Service Conditions) Manual  2006  under  Article  243G
and Section 73 read with Section 146 of  Bihar  State  Panchayat  Raj   Act,
2006.  Rule 4(k) (vii) (a) of the said Rules was amended in 2008.  The  said
amendment  prescribes  an  essential  qualification  for   appointments   of
teachers and librarians in the schools  and  also  regulating  appointments.
As  per  amended  Rule  4  for  appointment  as   teachers/librarians,   the
candidates  must  possess  the  graduation  degree   from   any   recognized
university   with   minimum   45%   marks.    An    advertisement    bearing
No.11/employment1-13/91(Part-II)-1337  dated  25.08.2008   was   issued   by
Government  of  Bihar,  Human  Resources  and  Development  Department   for
appointment to the post of Librarian and Teacher in different schools  under
Zila  Parishad  and  Nagar  Nikaya  in  the  State  of  Bihar.    The   said
advertisement specifically referred to Recruitment Rules 2006  although  the
qualification or eligibility criteria was not specifically mentioned.
3.          Respondents herein applied for the  posts  of  Librarian.  After
the advertisement was issued,  the  Department  issued  order  No.  11/Ma.1-
01/2008  on  27.08.2008  containing  exhaustive   list   of   twenty   eight
colleges/universities/degrees  that  were  not  then   recognized   by   the
Government of Bihar for the purpose of the Recruitment Rules  2006  and  the
advertisement  dated  25.08.2008  and  those  degrees  were  not  valid  for
employment of  teachers.   The  Department  issued  another  Order  No.11/M-
44/2008-1968 (Annexure P/5) on  25.11.2008  declaring  that  the  degree  of
Sahityaalankar awarded by Deoghar Vidyapeeth is not  valid  for  employment.
The State Government issued a letter dated 27.07.2007 clarifying  the  stand
of the State regarding the degree of Sahityaalankar  awarded  by  Vidyapeeth
Deoghar is not equivalent  to  degree  of  graduation  for  the  purpose  of
appointment under Bihar Education District  Council,  Secondary  and  Higher
Secondary Teachers (Employment/  Services)  Rules  2006.  The  letter  dated
27.07.2007 was subject matter of challenge in  Writ  Petition  No.  15237/07
titled Pramod Paswan vs. State of Bihar and in the said Writ  Petition,  the
State was directed to take  a  fresh  decision  on  the  same.    The  State
Government examined the matter and vide  Memo  No.  11/M-44/2008-1968  dated
25.11.2008, it was declared that the degree  of  Sahityaalankar  awarded  by
Deoghar  Vidyapeeth  is  not  valid  for  employment.  On   13.12.2008,  the
Government of Bihar, Human Resources Development Department,  issued  letter
No.11/Na.1-9/2008-2053 wherein  inter–alia  it  was  specifically  mentioned
that the degree of Sahityaalankar awarded by Deoghar  Vidyapeeth  cannot  be
attached to merit  list of candidates.
4.          Pursuant to the said advertisement, respondents applied for  the
post of Librarian.  The respondents possessed the degree  of  Sahityaalankar
awarded by Deoghar  Vidyapeeth.   Challenging  the  validity,  legality  and
correctness of the amendment of Rule  4(k)  (vii)  (a)  of  the  Recruitment
Rules 2006 as amended in 2008, respondents filed two writ petitions  bearing
Nos.5129/2009 and 18039/2009. The  Patna  High  Court  vide  impugned  order
dated 17.11.2009  allowed  the  writ  petitions  filed  by  the  respondents
directing the State of Bihar to redo the entire selection process  as  above
mentioned.   Aggrieved by the same, State of Bihar has filed  these  appeals
assailing the impugned order.
5.          Mr. Gopal Singh, learned counsel for  the  appellants  submitted
that State of Bihar has issued order dated  27.08.2008  containing  list  of
twenty eight institutions which were not recognized  under  the  recruitment
rules. It was submitted that the State has considered the matter at  several
occasions and has decided not to grant  benefits  to  un-recognized  degrees
and accordingly the degree of Sahityaalankar awarded by  Deoghar  Vidyapeeth
is  not  equivalent  to  graduation  degree  and  the  High  Court  has  not
considered the matter in the  light  of  order  dated  25.11.2008  (Annexure
P/5).
6.          Per contra, Mr. N. Rai  and  Mr.  S.B.  Sanyal,  learned  Senior
Counsel for the respondents contended  that  the  degree  of  Sahityaalankar
makes the person eligible for  appearing  in  the  competitive  examinations
conducted by the Bihar Public Service Commission and it would  be  arbitrary
to say that  degree of Sahityalankar does not make a person eligible as  per
 Bihar District Council, Secondary & Higher Secondary  Teacher   (Employment
&  Service Conditions) Manual 2006 as  amended  in  2008  and  the  same  is
violative of Articles 14 and 16 of the Constitution of India.
7.          We have considered the rival contentions  of  both  the  parties
and perused the material on record.
8.          The issue involved  in  these  appeals  is  concerned  with  the
interpretation of provisions in Rule 4  (k)  (vii)  (a)  of  Bihar  District
Council,  Secondary  &  Higher  Secondary  Teacher  (Employment  &   Service
Conditions) Manual 2006 as  amended  in  2008.   As  noticed  earlier,  Rule
4(k)(vii)(a) prescribes that  the  candidate  must  have  passed  graduation
examination with minimum 45% marks from any recognized  university.   It  is
the contention of  the  State  that  the  respondents  do  not  fulfill  the
eligibility criteria  as  they  possessed  graduation  degree  from    Hindi
Vidyapeeth Deoghar which is not a recognized university.  As noticed  above,
as per the direction of the Patna High  Court  in  CWJC  No.15237/2007,  the
State of Bihar examined the matter and by an  order  dated  25.11.2008  held
that degree of Sahityaalankar cannot be a valid degree  for  appointment  as
teacher.  Para 6 of the said order reads as under:-
      “In  Bihar  District  Council/Urban  Body  Secondary/Higher  Secondary
(Employment and Service Conditions) Manual, 2006, there is no  provision  to
employing on any equivalent  degree.   Besides  it,  for  employment,  after
deciding the all phases, the degree of  “Sahityaalankar”  given  by  Deoghar
Vidyapeeth and  other  many  degrees  have  not  been  decided  recognized.”
Mainly, the holder of  Sahityaalankar Degree appear only  at  exam  of  some
Sahitya papers while general B.A.  pass  the  exam  of  graduation  in  many
papers, which is more useful for education, due to this  reason  the  degree
of Sahityaalankar from Deoghar  Vidyapeeth is not valid for employment.”

Contention of the appellants is that pursuant to the above, the  State  sent
instructions to all the districts  vide  Order  dated  13.12.2008  directing
them to have appointment of  teachers  and  librarians  in  accordance  with
Recruitment Rules 2006 as amended in 2008  and  notification  governing  the
validity of  degrees.
9.          On behalf of  the  State,  it  is  further  submitted  that  the
validity of Sahityaalankar degree from the Hindi Vidyapeeth Deoghar and  its
equivalence with the graduation degree has been considered in detail by  the
Patna High Court in subsequent decisions filed by  the  State  of  Bihar  in
CWJC No.13343/2011 and several other  connected  matters.  It  is  submitted
that in the above batch matters, High Court has rejected the  claim  of  the
petitioners thereon that the  Degree  of  Sahityaalankar  is  equivalent  to
graduation degree and the State  of  Bihar  heavily  relies  upon  the  said
judgment in CWJC No.13343/2011 and batch matters.   It  was  also  submitted
that the letter dated 11.01.1991 should be read in consonance  with  earlier
circular with respect to  Hindi  Vidyapeeth  Deoghar  wherein  it  has  been
mentioned  that  any   recognition   given   to   such   degrees   including
Sahityaalankar is only for the purpose of Hindi examination and not  at  par
with graduation or equivalence and in this regard reliance  is  placed  upon
Press Note dated 05.05.1988 issued by the Central Government.
10.         Having regard to  the  stand  of  the  appellants  and  reliance
placed upon order dated 25.11.2008 and the Press Note dated  05.05.1988  and
the subsequent decision in CWJC 13343/2011  etc.  and  in  the  interest  of
justice without commenting on the merit of the case, we  deem  it  necessary
to remit the matter back to the High Court for consideration afresh.
11.         In the light of the aforesaid discussion, the impugned order  is
set aside and the same is remitted back to the High Court for  consideration
of the matter afresh after affording  sufficient  opportunity  to  both  the
parties.    Liberty   granted   to   the   parties   to   file    additional
documents/pleadings. We request the High Court to dispose of the  matter  as
expeditiously  as  possible.   The  appeals  are  disposed  of  accordingly.
Consequently, intervention application stands disposed of  granting  liberty
to the interveners to approach the High Court in accordance with  law.    In
the facts and circumstances of the case, we make no order as to costs.

                                     ….…………………..CJI.
        (T.S. THAKUR)



                               .….……………………..J.
                                                                    (R.
BANUMATHI)
New Delhi;
January  06, 2016

“415. Cheating.—Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to “cheat”. Explanation.—A dishonest concealment of facts is a deception within the meaning of this section.”The ingredients required to constitute the offence of Cheating have been discussed by this Court in the case of Ram Jas v.State of U.P.[1] as under: “(i) there should be fraudulent or dishonest inducement of a person by deceiving him; (ii)(a) the person so deceived should be induced to deliver any property to any person, or to consent that any person shall retain any property; or (b) the person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived; and (iii) in cases covered by (ii)(b), the act or omission should be one which causes or is likely to cause damage or harm to the person induced in body, mind, reputation or property.” A careful reading of evidence on record clearly shows that there is no evidence against the appellant from which it can be conclusively inferred by this Court that there was any fraudulent or dishonest inducement of the prosecutrix by the appellant to constitute an offence under Section 415 of IPC. For conviction of the Appellant for above said offence, it is important that all the necessary ingredients constituting an offence under the said Section must be proved beyond reasonable doubt. In the instant case, the appellant cannot be convicted for the offence of cheating punishable under Section 417 of IPC as the prosecution has failed to prove all ingredients of the said offence beyond reasonable doubt. 22. Further, Section 506 of IPC prescribes punishment for the offence of criminal intimidation as defined under Section 503 of IPC. Section 503 of IPC reads thus: “503. Criminal intimidation.—Whoever threatens another with any injury to his person, reputation or property, or to the person or reputation of any one in whom that person is interested, with intent to cause alarm to that person, or to cause that person to do any act which he is not legally bound to do, or to omit to do any act which that person is legally entitled to do, as the means of avoiding the execution of such threat, commits criminal intimidation. Explanation.—A threat to injure the reputation of any deceased person in whom the person threatened is interested, is within this section.” A reading of evidence on record in the light of aforesaid legal provision shows the insufficiency of evidence to hold the conviction of the appellant for the offence of criminal intimidation punishable under Section 506 part I of IPC. From the aforesaid, it is clear that the evidence of the prosecution is neither believable nor reliable to bring home the charges leveled against the appellant. We are of the view that the impugned judgment and order passed by the High Court is not based on a careful re-appraisal of the evidence on record by the High Court and there is no material evidence on record to show that the appellant is guilty of the charged offences i.e., offence of cheating punishable under Section 417 of IPC and offence of criminal intimidation punishable under Section 506 part I of IPC.

|Non-REPORTABLE           |



               IN THE SUPREME COURT OF INDIA
                    CRIMINAL APPELLATE JURISDICTION


                 CRIMINAL APPEAL NO. 13  OF 2016
            (Arising out of SLP(Crl.) No.4896 of 2015)



TILAK RAJ                         … APPELLANT

                            Versus


THE STATE OF HIMACHAL PRADESH     … RESPONDENT




                       J U D G M E N T



V. GOPALA GOWDA, J.


      Leave granted.


This criminal appeal is directed against the  impugned  judgment  and  order
dated 06.01.2015 passed by the High Court of Himachal Pradesh at  Shimla  in
Criminal Appeal No. 369 of 2012 whereby  it  has  partly  allowed  the  said
Criminal Appeal filed by the respondent-State and has upheld  the  acquittal
order passed by the trial court in favour of the appellant  herein  for  the
offence punishable under  Section  376  of  Indian  Penal  Code  (for  short
“IPC”). However, it has convicted  the  appellant  for  offences  punishable
under Sections 417 and 506 part I of IPC but instead  of  imposing  sentence
on the appellant for the aforesaid offences,  vide  order  dated  17.03.2015
the High Court has  released  him  under  Section  4  of  the  Probation  of
Offenders Act, 1958 on his entering into a personal bond in the sum  of  Rs.
25,000/- with two sureties in the like amount.

Brief facts of the case are stated hereunder to appreciate the  rival  legal
contentions urged on behalf of the parties:
On 06.01.2010, the Assistant Sub-inspector of Police  (ASI),  Chamba  (H.P.)
received  a  complaint  from  prosecutrix  through  the  office  of   Deputy
Superintendent of Police (DSP), Shri. K.D.  Sharma,  Chamba  (H.P).  In  the
said complaint, it was alleged by her that on 01.01.2010 she was  raped  and
physically assaulted by the appellant. It was also alleged by her that  when
she went to the police station  to  register  her  complaint  regarding  the
offence of rape she was threatened with dire consequences by  the  appellant
on phone. Allegation of sexual exploitation on the pretext of  marriage  was
also made by her in the said complaint.

On the basis of said written complaint FIR No. 6 of 2010 was  registered  by
the ASI under Sections 376,  417  and  506  of  IPC  and  investigation  was
conducted by the investigation officer. After investigation a  report  under
Section 173 of Code of Criminal Procedure, 1973 was filed.


The case of the prosecution is that the appellant  developed  intimacy  with
the prosecutrix (PW 2) about two years prior to the  incident.   He  allured
her on the  pretext  of  marriage.  On  01.01.2010  the  appellant  sexually
violated the person of  prosecutrix  in  her  residential  accommodation  in
Karian, Chamba. At the  same  time,  he  not  only  ravished  her  but  also
physically assaulted her by slapping her and twisting her arm.

On the next day i.e., on 02.01.2010, the  prosecutrix  decided  to  approach
the Police Station, Chamba to get FIR registered against the  appellant  for
the offence of rape. However, at about 6 AM when  she  reached  near  Police
Station the appellant threatened her against making any complaint or  report
about him to the police officials otherwise he would kill  the  prosecutrix.
Thereafter, she did not make any complaint.

On the same day, the appellant met prosecutrix near the  Regional  Hospital,
Chamba and offered to take her to his home. He persuaded her  not  to  lodge
FIR against him and even promised in writing to marry her.  He  assured  her
that both of them would stay  as  husband  and  wife.  However,  instead  of
taking her to his house he dropped her at her residence with a promise  that
he would return soon. The  appellant  did  not  return  thereafter.  Feeling
cheated thereby, on the same day,  she  reported  the  matter  to  Sh.  K.D.
Sharma, DSP, Chamba.

On 05.01.2010, both the appellant and the prosecutrix  were  called  in  the
office of DSP, wherein the appellant agreed in presence of DSP,  Chamba  and
one Yoginder Mohan (PW 3) to marry the prosecutrix the  next  day  i.e.,  on
06.01.2010. On 06.01.2010, when the prosecutrix along with her  family  came
forward for solemnization of marriage, the appellant did not  turn  up.  The
same day FIR No. 06 of 2010 was registered against  the  appellant.  He  was
booked for the offences punishable under Sections 376, 417 and 506 of IPC.

The Court of Sessions, Chamba in  sessions  trial  no.  40  of  2010,  after
examination of the evidence on record, vide its  judgment  and  order  dated
30.04.2012 acquitted the  appellant-accused  of  all  the  charges  levelled
against him by giving him a benefit of doubt.

Aggrieved  by  the  decision  of  the  trial  court,  the   respondent-State
preferred Criminal Appeal No. 369 of 2012 before the High Court of  Himachal
Pradesh, at Shimla urging various grounds and prayed for setting  aside  the
judgment and order of acquittal passed by the  trial  court  and  prayed  to
convict and sentence the accused-appellant for the charges levelled  against
him.

The High Court partly allowed  the  said  Criminal  Appeal.  It  upheld  the
acquittal order passed by the trial court in favour  of  the  appellant  for
the offence punishable under Section 376 of IPC. However, it  convicted  him
for the offences punishable under Sections 417 and 506 part I of  IPC.   The
High Court instead of imposing sentence on the appellant for  the  aforesaid
offences released him under Section 4 of the  Probation  of  Offenders  Act,
1958 on his entering into a personal bond in the sum of  Rs.  25,000/-  with
two local sureties in the like amount. Hence, this appeal.

Mr. Aditya Dhawan, the learned counsel for the appellant contended that  the
High Court has failed to appreciate the facts of  the  case  in  actual  and
correct perspective and its judgment is based on surmises  and  conjectures.
Therefore, the order of conviction and sentence is liable to  be  set  aside
by this Court in exercise of its appellate jurisdiction.

He further contended that the High Court has partly  set  aside  a  reasoned
judgment passed  by  the  trial  court  without  proper  re-appreciation  of
evidence on record and facts and circumstances of the case in hand.  It  was
further  submitted  by  him  that  in  an  appeal  against  acquittal,   the
interference by the Appellate Court is  not  warranted  in  the  absence  of
perversity of the finding of fact  in  the  judgment  of  the  trial  court.
Furthermore, it is well settled position of law that if two plausible  views
are possible on the basis of evidence on record, the appellate  court  shall
not exercise its appellate jurisdiction to set aside the order of  acquittal
unless the findings of the trial court  on  the  charge  of  offences  under
Sections 417 and 506 Part I of IPC are found erroneous.

It was further contended by him that the High Court has failed to take  note
of important fact that there is a  considerable  and  unexplained  delay  of
five days in lodging the  FIR  against  the  appellant.  Further,  the  non-
examination of crucial witness namely Sh. K.D.Sharma, DSP,  Chamba  to  whom
the alleged incidence  was  first  reported  by  the  prosecutrix  certainly
rendered the prosecution case doubtful. In view of the above,  he  submitted
that the prosecution ought to have examined Sh. K.D.Sharma, DSP, Chamba  who
was a material witness. He further contended that the High Court has  failed
to appreciate  that  the  trial  court  was  right  in  drawing  an  adverse
inference from non-examination of a crucial witness in the case.

He  further  vehemently  contended  that  the  High  Court  has  failed   to
appreciate certain facts, namely, the age of the prosecutrix at the time  of
incident was about 40 years i.e., approximately 10 years more than  that  of
the appellant. Further,  she  was  a  government  servant  at  the  time  of
incident and in number of cases she  was  appointed  as  protection  officer
under the Protection of Women from Domestic  Violence  Act,  2005.  Further,
the prosecutrix was in relationship with the appellant for about  two  years
prior  to  the  alleged  incident.  All  the  aforesaid  facts  render   the
prosecution version completely unbelievable that the  appellant  established
physical intimacy with the prosecutrix on the  false  pretext  of  marriage.
Therefore, the impugned judgment and order is liable  to  be  set  aside  by
this Court.

It was further contended by him that the evidence of the prosecutrix is  not
clear and specific and the same is suffering from  material  inconsistencies
and contradictions with other evidence on record. He further submitted  that
the discrepancies in the evidence of the prosecutrix  is  incompatible  with
the credibility of his version is liable to be outrightly rejected  by  this
Court.

While concluding his submissions the learned counsel  submitted  that  there
is no evidence on record to suggest that the appellant on the false  pretext
of marriage with the prosecutrix and in furtherance of  his  intention  from
the very beginning induced her to surrender to him for  sexual  intercourse.
Further, the conviction of the appellant is based only on the  testimony  of
the prosecutrix (PW 2), which in itself could not have been relied  upon  by
the High Court in absence of any corroboration. Thus, the impugned  judgment
and order of the High Court is vitiated in law and is  required  to  be  set
aside by this Court.

Per  contra,  Mr.  Suryanarayana  Singh,  the  learned  Additional  Advocate
General on behalf of the respondent-State sought  to  justify  the  impugned
judgment and order passed by the High Court on the ground that the  same  is
well founded and is not vitiated in law.  Therefore,  no  interference  with
the impugned Judgement and Order of this Court is required  in  exercise  of
its appellate jurisdiction.

We have carefully heard both the parties at length and have also  given  our
conscious thought to the material on record and relevant provisions  of  The
Indian  Penal  Code  (in  short  “the  IPC”).  In  the  instant  case,   the
prosecutrix was an adult and mature lady of around 40 years at the  time  of
incident. It is admitted by the prosecutrix  in  her  testimony  before  the
trial court that she was in relationship with the  appellant  for  the  last
two years prior to the incident and the appellant used to stay overnight  at
her residence. After a perusal of copy of FIR and  evidence  on  record  the
case  set  up  by  the  prosecutrix  seems  to  be  highly  unrealistic  and
unbelievable.

The evidence as a whole including FIR,  testimony  of  prosecutrix  and  MLC
report prepared by medical practitioner clearly indicate that the  story  of
prosecutrix regarding sexual intercourse on false pretext  of  marrying  her
is concocted and not believable. In fact, the  said  act  of  the  Appellant
seems to be consensual in nature. The trial court has rightly held thus:
“23. If the story set up by the prosecutrix herself in the court  is  to  be
believed, it does come to the fore that the two were in a  relationship  and
she  well  knew  that  the  accused  was  duping  her  throughout.  Per  the
prosecutrix, she had not succumbed to the proposal of  the  accused.  Having
allowed access to the accused to her residential quarter, so much  so,  even
having allowed him to stay overnight, she knew the  likely  outcome  of  her
reaction. Seeing the age of the prosecutrix which is  around  40  years,  it
can be easily inferred that she knew  what  could  be  the  consequences  of
allowing a male friend into her bed room at night.

24. The entire circumstances discussed above and  which  have  come  to  the
fore from the testimony of none else but the prosecutrix, it cannot be  said
that the sexual intercourse was without her consent. The  act  seems  to  be
consensual in nature.

25. It is also not  the  case  that  the  consent  had  been  given  by  the
prosecutrix  believing  the  accused’s  promise  to  marry  her.  For,   her
testimony itself shows that the entire story of marriage has unfolded  after
05.01.2010 when the accused was stated to have been summoned to  the  office
of the Dy. S.P. Prior to 05.01.2010, there is  nothing  on  record  to  show
that the accused had been pestering the prosecutrix for  any  alliance.  The
prosecutrix has said a line in  her  examination-in-chief,  but  her  cross-
examination shows that no doubt  the  two  were  in  relationship,  but  the
question of marriage apparently had not been deliberated upon by any of  the
two. After the sexual contact, come  talk  about  marriage  had  cropped  up
between the two. Thus, it also cannot be said that the  consent  for  sexual
intercourse had been given by the prosecutrix under  some  misconception  of
marriage.”


As far as conviction of the appellant under Sections 417 and 506 part  I  of
IPC is concerned, a close scrutiny of evidence of  the  prosecutrix  (PW  2)
along with other prosecution  witnesses  is  done  by  this  Court.  Section
417 of IPC prescribes punishment for the  offence  of  Cheating  as  defined
under Section 415 of IPC. Section 415 of IPC reads thus:

“415.  Cheating.—Whoever,  by  deceiving   any   person,   fraudulently   or
dishonestly induces the person so deceived to deliver any  property  to  any
person, or to  consent  that  any  person  shall  retain  any  property,  or
intentionally induces the person so deceived to do or omit  to  do  anything
which he would not do or omit if he were not so deceived, and which  act  or
omission causes or is likely to cause damage  or  harm  to  that  person  in
body, mind, reputation or  property,  is  said  to  “cheat”.  Explanation.—A
dishonest concealment of facts is a deception within  the  meaning  of  this
section.”


The ingredients required to constitute the offence  of  Cheating  have  been
discussed by this Court in the case of Ram Jas v.State of U.P.[1] as under:
“(i) there should be fraudulent or  dishonest  inducement  of  a  person  by
deceiving him;
(ii)(a) the person so deceived should be induced to deliver any property  to
any person, or to consent that any person shall retain any property; or
(b) the person so deceived should be intentionally induced to do or omit  to
do anything which he would not do or omit if he were not so deceived; and
(iii) in cases covered by (ii)(b), the act or omission should be  one  which
causes or is likely to cause damage or harm to the person induced  in  body,
mind, reputation or property.”

A careful reading of evidence on record  clearly  shows  that  there  is  no
evidence against the appellant from which it can  be  conclusively  inferred
by this Court that there was any fraudulent or dishonest inducement  of  the
prosecutrix by the appellant to constitute an offence under Section  415  of
IPC. For  conviction  of  the  Appellant  for  above  said  offence,  it  is
important that all the necessary ingredients constituting an  offence  under
the said Section must be proved beyond  reasonable  doubt.  In  the  instant
case, the  appellant  cannot  be  convicted  for  the  offence  of  cheating
punishable under Section 417 of IPC as the prosecution has failed  to  prove
all ingredients of the said offence beyond reasonable doubt.

22. Further, Section 506 of IPC prescribes punishment  for  the  offence  of
criminal intimidation as defined under Section 503 of IPC.  Section  503  of
IPC reads thus:
“503. Criminal intimidation.—Whoever threatens another with  any  injury  to
his person, reputation or property, or to the person or  reputation  of  any
one in whom that person is interested, with intent to cause  alarm  to  that
person, or to cause that person to do any act which he is not legally  bound
to do, or to omit to do any act which that person  is  legally  entitled  to
do, as the means of avoiding the execution of such threat, commits  criminal
intimidation.  Explanation.—A  threat  to  injure  the  reputation  of   any
deceased person in whom the person threatened is interested, is within  this
section.”

A reading of evidence on record in the light of  aforesaid  legal  provision
shows the insufficiency of evidence to hold the conviction of the  appellant
for the offence of criminal intimidation punishable under Section  506  part
I of IPC.

23. From the aforesaid, it is clear that the evidence of the prosecution  is
neither believable nor reliable to bring home the  charges  leveled  against
the appellant. We are of the view  that  the  impugned  judgment  and  order
passed by the High Court is not based  on  a  careful  re-appraisal  of  the
evidence on record by the High Court and there is no  material  evidence  on
record to show that the appellant is guilty of the  charged  offences  i.e.,
offence of cheating punishable under Section  417  of  IPC  and  offence  of
criminal intimidation punishable under Section 506 part I of IPC.

24. For the reasons stated supra, this appeal is allowed and  we  set  aside
the impugned judgment and  order of conviction and sentence  passed  by  the
High Court against the appellant for the offences punishable under  Sections
417 and 506 part I of IPC. The appellant is acquitted  of  all  the  charges
levelled against him.
                              ……………………………………………………CJI.
                           [T.S. THAKUR]


                           …………………………………………………………J.
                   [V. GOPALA GOWDA]

New Delhi,
January 6, 2016
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[1]
      [2]  (1970) 2 SCC 740