State of Uttar Pradesh v Sukhbasi and Others
Supreme Court of India

10  May  1985
Cr.As. Nos. 267-270 of 1975
The Judgment was delivered by: SEN, J.
1.  These appeals by special leave are preferred by the State Government against the judgment and order of the Allahabad High Court dated May 25, 1973 acquitting the respondents Sukhbasi, Ram Sanehi and Ram Shanker of offences punishable under S.302 read with S.34 and under S.449, 460 and 394 of the Indian Penal Code, 1860, for the commission of which the Civil and Sessions Judge, Farrukhabad by his judgment dated September 21, 1972 had sentenced them to death on the first count and rigorous imprisonment for a period of 7 years under the remaining three counts. The learned Sessions Judge had also convicted the respondent Chhotelal under S. 411 of the Indian Penal Code, 1860 and sentenced him to undergo rigorous imprisonment for 3 years and the respondent Ashok Kumar under S. 120B of the Indian Penal Code, 1860 and sentenced to undergo rigorous imprisonment for 2 years. These respondents have also been acquitted by the High Court for the commission of offences with which they were charged.
2.  We have with the assistance of learned counsel, appearing for the parties, gone through the judgment of the High Court as well as the evidence of the material prosecution witnesses. This was a case where during the night between December 25/26, 1970, there was a brutal and dastardly murder of Lala Bhagwat Dayal, a millionaire and his wife Smt. Ramwati Devi at their house in Chhibramau. They had been tied with rope and strangulated to death after being subjected to torture. Lala Bhagwat Dayal was the richest person of the town and earlier carried on the sarafa business, but had closed the business due to his old age and started lending money on pawn of gold and silver ornaments at his house. The miscreants broke open the iron safe kept in the bedroom of Bhagwat Dayal and removed all gold and silver ornaments worth about Rs. 10 lakhs and cash worth Rs. 22,424/-. The last persons to have seen Bhagwat Dayal alive were their servant Rameshwar, P.W. 7 and old Munim Bharat Singh, P.W. 18. Their version is that they both saw the respondents Sukhbasi and Ram Sanehi, two of the carpenters working on the remodelled house of Bhagwat Dayal and their companion Ram Shanker entering the house as they left on the fateful evening at about 7.30 p.m. The respondents Sukhbasi and Ram Sanehi along with their companion Ram Shanker effected an entry into the house on the pretext that they wanted to pledge their ornaments. On the next morning at about 7 a.m. Rameshwar, P.W. 7 reported for duty but found the sadar door still closed from inside although the deceased Bhagwat Dayal was an early riser and used to open it much earlier. Shortly thereafter, the other carpenter Sheo Murti, P.W. 15 also came for work. On finding no response they were apprehensive that something untoward had happened and Rameshwar immediately left for the house of Gajadhar Prasad, brother of the deceased, nearby and reported this to him and his sons Chandra Prakash, P.W. 28 and Ram Prakash. On hearing this, Ram Prakash returned with Rameshwar, P.W. 7 and again raised shouts but still there was no response. The two of them climbed over the roof of the house of Bakshiji and from that roof they went over to the roof of the deceased's house and finding the door of the staircase open which was rather unusual they descended over the flight of the stairs and came to the ground floor. They entered the living room and found the furnitures and other effects scattered about. They further noticed that in the bedroom though the beds were still spread over the cots the deceased Bhagwat Dayal and his wife Smt. Ramwati Devi were not to be found.
3.
In the meantime, Gajadhar Prasad and his son Chandra Prakash and other inmates of their house also arrived on the scene. They noticed that the anteroom next to the living room had been locked from outside and felt suspicious that perhaps some persons had intruded into the house the previous night and after murdering the old couple decamped with valuables keeping the dead bodies inside the anteroom. We are told that the gold and silver ornaments and cash worth about Rs. 10 lakhs were taken away, out of which gold and silver ornaments worth Rs. 1.50 lakhs were recovered from the house of the three respondents Sukhbasi, Ram Sanehi and Ram Shanker apart from currency notes of the value of Rs. 12, 424/- from that of the respondent Sukhbasi.
4.  The First Information Report (Exh. Ka 60) was lodged by Chandra Prakash, P.W. 28 at Chhibramau Police Station at about 7.45 a.m. The report stated that the list of the looted property will be furnished later and contains the following recitals on which there was quite some discussion at the Bar.
"We saw that all the articles were lying scattered in the big room and the small room close-by was locked. Thereupon, all of us searched for the uncle and the aunt in the whole of the house; but they were not found.
It appears that at some hour during the night, bad characters murdered my uncle and aunt and shut them in the room and have looted away property."
5.  Undoubtedly, this was a case where murder and robbery are proved to have been the integral parts of one and the same transaction. As held by us in Earabhadrappa v. State of Karnataka 1983 Indlaw SC 1611983 Indlaw SC 161, in somewhat similar circumstances where the servant betraying the trust of his employer strangulated the mistress of the house and decamped with her gold and silver ornaments which were later recovered, the presumption arising under Illustration (a) to S. 114 of the Evidence Act, 1872 is that not only the accused if their complicity is proved committed the murder of the deceased Bhagwat Dayal and his wife Ramwati Devi but also committed robbery of the gold and silver ornaments which formed part of the same transaction. It was cruel hand of destiny that they met the violent end by being strangulated to death by persons who committed the robbery in a cruel and dastardly manner and in cases of such murders committed with extreme brutality the only sentence is one of death as it fulfils the test of 'rarest of the rare' laid down in Bachan Singh v. State of Punjab 1980 Indlaw SC 5861980 Indlaw SC 586.
6.  The heinous manner in which the diabolical act was committed is apt to prejudice one's mind and therefore, we have scrutinized the prosecution evidence with care to determine whether the conviction of the respondents by the learned Sessions Judge for different offences with which they were charged was proper or not or whether the order of acquittal recorded by the High Court has caused a flagrant miscarriage of justice which warrants an interference. Having given the matter our anxious consideration we cannot say that this was a case where the only view possible was the one taken by the learned Sessions Judge, namely, that of guilt of the respondents particularly the accused Sukhbasi, Ram Sanehi and Ram Shanker. There is much to be said for the contrary view expressed by the learned Judges of the High Court who have in their judgment carefully marshalled the evidence and drawn out serious infirmities in the prosecution case.
7.  The prosecution case against the respondents rests purely on circumstantial evidence. The circumstances relied upon by the prosecution against the principal accused Sukhbasi, Ram Sanehi and Ram Shanker for the charge of commission of murder of the old couple Bhagwat Dayal and his wife Smt. Ramwati Devi and robbery of their gold and silver ornaments, are :
(1) The fact that they were seen entering into the house of the deceased at about 7.30 p.m. on the fateful evening and were not seen leaving the house later that night by anyone.
(2) The accused Sukhbasi and Ram Sanehi along with Sheo Murti, P.W. 15 were engaged by the deceased Bhagwat Dayal as carpenters for the woodwork of his newly remodelled house.
(3) On the next morning i.e. on December 26, the accused Sukhbasi and Ram Sanehi did not come for work although the other carpenter Sheo Murti, P.W. 15 turned up as usual.
(4) The recovery of gold and silver ornaments and cash from the house of Sukhbasi at village Behta, seven miles away from Chhibramau on December 27 and 28 i.e. soon after the commission of the murders and robbery, by the Station Officer Ganga Prasad Tripathi, P.W. 31 and seized under seizure memos (Exhs. Ka 53, 54 and 55), and recovery of gold and silver ornaments from the house of the accused Ram Sanehi at village Akbarpur, some 8-10 miles away therefrom, by Station Officer P.W. 31 on December 28 and seized under seizure memo (Exh. Ka 57).
(5) The seizure of gold and silver ornaments from the house of the accused Chhotelal, P.W. 25, brother of the accused Sukhbasi at village Behta by P.W. 31 on January 19, 1971 and seized under seizure memo (Exh. Ka 56).
(6) The retracted confession (Exh. Ka 61) made by the accused Ram Shanker before Shri Harish Chander, P.W. 29, Magistrate (First Class), Farrukhabad on January 22, 1971 and the fact that he had sold a gold ring to Ram Chander, P.W. 27. The circumstances appearing against the accused Ashok Kumar are that the slip (Exh. Ka 42) purported to have been given by Kirpal Singh Munim was in his handwriting and given to the accused Sukhbasi, Ram Sanehi and Ram Shanker by way of introduction.
8.  The High Court has with meticulous care analyzed the entire evidence to support its judgment of acquittal. We shall first take up the appeal against the respondent Ashok Kumar who had been found guilty by the learned Sessions Judge of a charge under S. 120B of the Indian Penal Code, 1860. The gravament of the charge against him was that he in agreement with the accused Sukhbasi, Ram Sanehi and Ram Shanker forged the slip (Exh. Ka 42) purporting to be a note of Kirpal Singh Munim. It is the prosecution case that with the help of the same the three accused were successful in getting an entry into the house of the deceased Bhagwat Dayal. The slip was alleged to have been found by P.W. 31 beneath the pillow of the deceased in his bedroom sometime after the nightfall of December 26, 1970 i.e. long after the police arrived at the scene. To substantiate a charge under S. 120B of the Code, there must be a criminal conspiracy at least between two or more persons. There is not an iota of evidence to establish that the three accused prior to the commission of the offences had conspired together with the accused Ashok Kumar and got forged from him the ruqqa (Exh. Ka 42) in the name of Kirpal Singh Munim to secure an entry into the house of the deceased. There is nothing to show that the accused Ashok Kumar had been associating with the other accused. Although the accused Ashok Kumar had admitted that the parcha (Exh. Ka 42) was in his handwriting, but his version is that when he was arrested on January 2, 1971 the document was got written by him by P.W. 31 by use of force. The High Court rightly observed that it is difficult to believe that the Investigating Officer did not even touch the cot of the deceased for about 8 to 10 hours in order to find out if there was any clue. Again, the two accused Sukhbasi and Ram Sanehi did not stand in need of any recommendatory letter when they were working at the house of the deceased for about a month and were therefore very well known to him personally. Further, the deceased in all probability would know the handwriting of Munim Kirpal Singh and he would at once have detected the forgery. In view of all this, learned counsel for the appellant fairly stated that he could not support the appeal against the respondent Ashok Kumar and accordingly the State appeal against his acquittal by the High Court is dismissed.
9.  That takes us to the appeal against the three respondents Sukhbasi, Ram Sanehi and Ram Shanker. In a case in which the evidence is of a circumstantial nature, the facts and circumstances from which conclusion of guilt is sought to be drawn by the prosecution must fully established beyond all reasonable doubt and the facts and circumstances so established should not only be consistent with guilt of the accused, but they must be entirely incompatible with the innocence of accused and must exclude every reasonable hypothesis consistent with his innocence. Such a conclusion is not possible in the instant case. It appears that the deceased Bhagwat Dayal earlier carried on a sarafa business but had closed that business due to his age and started lending money on pawn of gold and silver ornaments at his house. He had remodelled his residential house and the woodwork was going on for about a month and the accused Sukhbasi and Ram Sanehi along with Sheo Murti, P.W. 15 were employed by him as carpenters. The topography of the place as evident from the site plan shows that there was only one sadar darwaza i.e. the main door from which one could get an entry into the house. In support of its case that the three accused had effected an entry into the house of the deceased on the fateful evening at about 7.30 p.m., the prosecution has examined 4 witnesses, namely, Rameshwar P.W. 7, servant of the deceased Bhagwat Dayal, Bharat Singh P.W. 18, old Munim of the deceased who had started a sarafa business of his own, Dr. Sukhbasi Lal P.W. 5, Homoeopath who had his shop in line with the sadar darwaza of the house of the deceased and Abdul Qarim P.W. 9, a shopkeeper nearby. The High Court on a careful consideration of these witnesses found considerable doubt as to their credibility as truthful witnesses and has given weighty and cogent reasons for discarding their evidence.
10.   In the first place, it is difficult to believe that deceased would have relieved his old servant Rameshwar, P.W. 7 when at least one unknown person, namely, the accused Ram Shanker, was present inside the house and there was no evidence to show that he knew him from before.
11.   Secondly, it seems somewhat odd that the act of the accused Sukhbasi in closing the sadar darwaza from inside should not have aroused the suspicion of Rameshwar, P.W. 7 since the deceased was left alone in the house with his wife. The version of Rameshwar, P.W. 7 is that after finishing the day's work he left a glass of milk and bread in the bedroom of the deceased who asked him to go. At that precise moment Bharat Singh, P.W. 18 brought a jhola (Exh. 18) containing silver ornaments and handed it over to him for being given to the deceased for safe custody. He states that Bharat Singh told him that he had just returned from Agra with silver ornaments weighing 20.95 kg. but did not have the keys of his shop with him and therefore wanted to keep the ornaments with the deceased and would come in the morning to take them away. He further states that he took the jhola and passed it on to the deceased and as he was about to leave, he saw the three accused Sukhbasi, Ram Sanehi and Ram Shanker in the passage leading to the sadar darwaza and that they had come with a note (Exh. Ka 42) from Kirpal Singh Munim asking the deceased to accept the ornaments in pledge.Again, he had admitted before the committing Magistrate that he stayed on at Bhagwat Dayal's house till 8 p.m. but when confronted with this statement (Exh. Ka 2) he could not explain it away. During his cross-examination he denied that he knew the accused Sukhbasi and Ram Sanehi although the prosecution case is that they along with Sheo Murti, P.W. 15 were working as carpenters at the house of the deceased for about a month. The story that the accused carried a ruqqa (Exh. Ka 42) from Munim Kirpal Singh as a letter of introduction to the deceased appears to be rather improbable. There was no need for them to have taken a letter of introduction when two of them were known to the deceased.
12.   Thirdly, the story that Bharat Singh, P.W. 18 came that night with newly purchased silver ornaments in a jhola (Exh. 18) from Agra and instead of keeping the ornaments at his own shop or his house, should have gone to the house of the deceased at 7.30 p.m. appears to be more than a mere coincidence. The testimony of Bharat Singh, P.W. 18 is that while he was coming out of the house of the deceased after entrusting the jhola containing silver ornaments, he noticed the three accused Sukhbasi, Ram Sanehi and Ram Shanker passing through the gallery and when he questioned Sukhbasi as to where he was going, was told that he had come to pledge his ornaments. His version is that he saw the ruqqa (Exh. Ka 42) but it did not raise his suspicion although he knew the handwriting of Kirpal Singh Munim. It was found beneath the pillow of the deceased in his bedroom. The High Court observes that the document was brought into existence subsequently. It is somewhat strange that the list of stolen ornaments furnished by Chandra Prakash, P.W. 28 to the Station Officer, P.W. 31 at about 12 noon contained all the particulars of the silver ornaments belonging to Bharat Singh, P.W. 18. He admits that he had given the particulars of the stolen gold and silver ornaments from the pawn register. If the prosecution case is true, then the moment Bharat Singh, P.W. 18 left he was followed by the three accused Sukhbasi, Ram Sanehi and Ram Shanker and the deceased could have found no time to have made entries of these ornaments in the register.
13.   Fourthly, neither the testimony of Dr. Sukhbasi Lal, P.W. 5, nor of Abdul Qarim, P.W. 9 to the effect that they had seen the accused effecting an entry into the house of the deceased through the sadar darwaza at about 7.30 p.m. is worthy of any credence. The site plan shows that the shop of Dr. Sukhbasi Lal, P.W. 5 was in line with the sadar darwaza of the house of the deceased and he could not have seen the accused entering into the house through the door. His version is that on that evening he was sitting on the chabutra and the three accused came and sat at his shop for about 15 minutes saying that they had come to pledge their ornaments with the deceased Bhagwat Dayal. He asserts that he saw the accused entering into the house at 7.30 p.m. and they did not come out till 10.30 p.m. He explains that he kept on sitting on the chabutra till late into the night because his nephew had come and they were discussing some family matters. The High Court has disbelieved this witness observing that it was a chilly night in the month of December and it was improbable that Dr. Sukhbasi Lal, P.W. 5 would have sat on the chabutra of his shop rather than inside the shop and that if he had to discuss some family matters with his nephew, they would not have gone to his house which was nearby after closing the shop. The evidence of Abdul Qarim, P.W. 9 is no better. His shop admittedly is at some distance from the main door of the house of the deceased. In view of these infirmities, learned counsel for the appellant conceded that he could not rely on the prosecution evidence relating to the entry of the three accused Sukhbasi, Ram Sanehi and Ram Shanker.
14.  We would have unhesitatingly maintained the conviction of the respondents Sukhbasi, Ram Sanehi and Ram Shanker for these offences as also the sentence of death passed on them by the learned Sessions Judge, if the evidence led by the prosecution to establish the recovery and seizure of the stolen property was credible and worthy of acceptance. Unfortunately for the State, the High Court has in its Judgment brought out serious infirmities in the prosecution case which create considerable doubt and suspicion about the complicity of the accused in the commission of the crime and the alleged recovery of the stolen property made at their instance.
15.  A careful reading of the judgment of the High Court creates many doubts and difficulties. The learned Judges in the course of their judgment bring out the various serious infirmities in the prosecution case. We feel it would be better to set out in extenso the portion of the judgment dealing with the various circumstances appearing from the prosecution evidence which makes the alleged recoveries not free from suspicion.
"In the first instance, there is evidence to show that valuable ornaments were found spread out inside and outside the main living room but we have been left guessing as to what happened to these. Rameshwar, Bharat Singh and Chandra Prakash (P.Ws. 7, 18 and 28) have admitted that ornaments were found scattered inside or outside the room. Chandra Prakash has approximated the value thereof at Rs. 12,000/-. The Investigating Officer, Ganga Prasad Tripathi, P.W. 31 has also admitted the existence of these ornaments. He has not said a word as to how he dealt with these. No recovery memo was prepared in respect of these valuables; or at any rate, he does not say so. He does not even say as to how he dealt with these ornaments, that is to say, did he take them into custody or handed them over to someone, and if so, to whom. The witnesses aforesaid are also silent about it. The suggestion made by the learned counsel for the appellants is that these ornaments were subsequently utilized for the purpose of being shown as recovered ornaments. It is quite true that the appellants have been unsuccessful in proving it to be so but the matter is not free from suspicion. It was the duty of the prosecution to have explained what happened to these ornaments and it is unfortunate that we have been made to guess about itSecondly, the First Information Report was made at 7.45 a.m. The police station only two furlongs distance from the scene of the murder. The First Information Report expressed suspicion of two murders. The Investigating Officer arrived, as he says, not as the crime had been registered. He arrived at the scene and went inside and saw ornaments and other household effects lying scattered here and there. He found the anteroom locked from outside and broke open the lock. He went into the anteroom and found bodies covered by daris and clothings and also discovered that the necks of the two persons were fastened by ropes and their hands were tied behind their backs. He then became busy with controlling a large crowd which had invaded the house and had to devote about one and half hours in controlling it. He could have easily deployed subordinate police personnel or that purpose. The learned counsel for the appellants argued that he has introduced delay because the list of stolen properties was still being prepared and if he admits that the investigation had already started, this list may become inadmissible evidence, as a document prepared during the course of the investigation may not be available for reference during the trial.
It is undoubtedly true that a rich man of the town had died and a crowd would collect, but that does not mean that it could not be controlled by the lesser hierarchy of police authorities. It was not a violent crowd but a crowd which had collected out of sympathy and curiosity. It would assist and not hinder investigation. The list Exh. Ka 41 is said to have been prepared by one Ram Gopal (Munim of Bharat Singh, P.W. 18) by the help of the pawn register Exh. Ka 40 and on the basis of the knowledge of Bharat Singh and Chandra Prakash as to the ornaments that possibly had been stolen and carried away. The list was ready by about 11.30 or 12 mid-day and then it was handed over to Ganga Prasad Tripathi. It is obviously hit by s. 161 read with s. 162 of the Code of Criminal Procedure Thirdly, the pawn Register is Exh. Ka 40. The evidence indicates that it came into the custody of Chandra Prakash, P.W. 28 sometime about 8 a.m. and on its basis, the list continued to be prepared till about 11.30 or 12 mid-day. No recovery memo was prepared in respect of this register, although it was taken into custody by the Investigating Officer, as stated by Bharat Singh. Fourthly, we are surprised at the conduct of the Investigating Officer in practically doing nothing on December 26 regarding the arrest of the suspects or search of their houses with a view to get hold of them as quickly as possible and to recover the properties, if these were with them. We still proceed on the basis of two hypothesis, one advanced by the learned counsel for the appellants to the effect that suspicion against the appellants Sukhbasi, Ram Sanehi and Ram Shanker came into existence not on December 26 or even in day time on December 27 but sometime in the night between December 27/28th, 1970 or on December 28 and then the activities started; and the second one advanced by the learned Deputy Government Advocate that the names of these three suspects were known latest by mid-day of December 26 and attempts were made to arrest them but this attempt had failed. Chandra Prakash, P.W. 28 was informed about the incident at 7 a.m. on December 26. He made his first information report at a distance of two furlongs at 7.45 a.m. On his own admission, therefore, he had an interval of 45 minutes to think about the matter. Rameshwar suspected the hands of these three appellants quite early. His deposition shows that he did not impart this information to Chandra Prakash till after the First Information Report had already been made and that is the reason why the names of these three suspects have not been mentioned in the First Information Report. The question is whether or not this is probable, in the circumstances of the case. Rameshwar and Chandra Prakash and the latter's family members had reconnoitered the scene. They realized loss of jewellery of huge amount. They suspected murders of two persons. It will be natural, in the circumstances, therefore, for them to start guessing as to who could be the possible culprits. Chandra Prakash would only question Rameshwar, the domestic servant of the deceased, as to when he had left the house in the preceding night and as to what intruders were there; and to imagine that nothing of the sort will be done, would be rather improbable. Rameshwar knew that these three suspects had entered the house. He also knew that they had come for the ostensible purpose of pawning ornaments but he himself had not seen any with them. He knew that as soon as he had come out of the house, the door had been closed from inside. He, however, did not say all these things to Chandra Prakash, and for that matter, Chandra Prakash also did not prove into these things. Be that as it may, we will now proceed to discuss the subsequent conduct. Before arriving on the scene, the Investigating Officer had got into touch on the telephone with Kanpur and had made a request for the despatch of the Dog-SquadNow, that would be explainable on the footing that he had no clues and wanted to utilize the Dog-Squad to hound up the culprits by their sense of smell. He had himself stated that he needed the Squad to furnish clues concerning the culprits. He started recording statements of witnesses who could possibly throw some light. These witnesses are Dr. Sukhbasi Lal, Rameshwar, Sheo Murti, Bharat Singh and Chandra Prakash. They furnished important clues pointing to the incrimination of these three appellants. Baba Mst. Giri also furnished clues about offerings made at the temple. These statements were over by about 1 p.m. Ganga Prasad Tripathi, therefore, had ample material. Dog-Squad arrived at 4 p.m. and he waited till then before taking any tangible steps towards substantial investigation. The Dog-Squad furnished no clues, as admitted by him. What would be his reaction in such circumstances ? Would or would he not take effective steps for the arrest of these three suspects and for the search of their houses. He has stated that he had deputed some Sub-Inspectors of police to arrest the suspects. None of them, however, has been examined either to corroborate him or to let the Court know as to what steps they had taken or attempts they had made. The evidence given by the other witnesses is also inconclusive. The appellant Sukhbasi is a native of Behta, eight miles from the police station. But he had a house and a shop at Chhibramau also. The appellant Ram Sanehi resides in another village, some miles away from the police station, but works at the shop of the appellant Sukhbasi. The appellant Ram Shanker was in the service of Mahadeo Halwai. Chandra Prakash, P.W. 28 himself did not go to locate any of these three persons. His deposition is that he had deputed Sheo Murti, P.W. 15 for that purpose and on return, it was reported to him that he had gone to the shop of Sukhbasi but had found it closed. His evidence is hearsay, like that of Ganga Prasad Tripathi that his Sub-Inspectors had made attempts. Rameshwar has stated that he and Sheo Murti had found Sukhbasi's shop closed and he had passed on that information to Chandra Prakash. He did not go to Behta. He did not go to the house of Ram Sanehi. He did not even go to find if Ram Shanker was at the Halwai's shop. Abdul Karim, P.W. 9 has stated that so far as his knowledge goes, no one had gone to make any search but he had heard that a search was being made. His evidence, therefore, is also useless. Sheo Murti visited only the shop of the appellant Sukhbasi. He did not go to Halwai's shop, or Sukhbasi's house in Behta or Ram Sanehi's house in the rural area. Bharat Singh also visited Sukhbasi's shop alone. Now, this is the picture presentedIf we assume that the Investigating Officer had no clues and had to call the Dog-Squad for that reason and admittedly the Squad also furnished no clues, and if we further assume that the statements of these witnesses were not recorded on December 26 and, therefore, they had also not furnished any clues on that date, the conduct of the Investigating Officer will become consistent with the fact that he had no clues in hand on December 26. On the other hand, let us assume that he had evidence before him by about mid-day on December 26, that these three suspects had a possible hand in the crime, he would move in a frantic and hectic manner to get hold of them. Police personnel would be sent to Behta, where Sukhbasi resides and also the native village of Ram Sanehi and to Mahadeo's shop to arrest, and if none of them was available, to take a search of their houses in the hope of recovering properties. This was not done and that again is consistent with the fact that the Investigating Officer had no clues in his hand and would be consistent with the fact that he knew and still did not take the steps which any prudent Investigating Officer would have taken."
We agree with these observations made by the High Court
16.  The testimony of the Investigating Officer, Ganga Prasad Tripathi, P.W. 31 shows that while he was recording the statements of the witnesses they revealed certain information on the basis of which he suspected the involvement of the accused. The Dog-Squad came at about 4 p.m. The dogs went on a track first over the roof to the joint from where the bad characters had gone down by fixing a rope and then passed through the lane by the shop of the accused Sukhbasi to the temple of Baba Mastgir where they offered 8 silver coins (Exh. 98) and from there to the bus-stand Chhibramau where the track ended. Apparently, the accused had boarded the bus and disappeared. He states that he got definite information about the complicity of the accused Sukhbasi, Ram Sanehi and Ram Shanker at about 1 a.m. on the night intervening December 27/28 i.e. in the early hours of the 28th morning. He states that on receiving the information he immediately left with police force in a truck for village Behta to which the accused Sukhbasi belongs. He left the truck on the outskirts of the village and took Chhotelal, P.W. 25, Radha Kishan, Ramlal and Nathuram from the village. The police party surrounded the house of the accused Sukhbasi. On seeing the police party, four of the inmates tried to escape by placing a ladder against the compound wall. Three managed to escape but the fourth i.e. the accused Sukhbasi was apprehended. He was administered a beating and offered to hand over some ornaments which he had buried inside the kotha. He dug out from the ground a bundle of silver ornaments (Exh. 96). He volunteered that there were other ornaments with the accused Ram Sanehi. P.W. 31 states that he did not search the other rooms as he was in a hurry to apprehend Ram Sanehi. He then took the accused Sukhbasi and members of his family in a truck for the house of Ram Sanehi in village Akbarpur but he was not to be found. It was learnt that he had gone to take a bath in the Ganges at Shringi Rampur. P.W. 31 states that he left for Shringi Rampur and arrested the accused Ram Sanehi near Rajepur. He disclosed that he had buried the share of the looted property in his house and offered to hand them over. P.W. 31 then took him to his house at Akbarpur. The accused Ram Sanehi took P.W. 31 to the kotha and from there gold and silver ornaments were recovered kept concealed in an earthen pot, seized under Exh. 57. P.W. 31 then returned to the house of the accused Sukhbasi at village Behta and confronted the accused Ram Sanehi with accused Sukhbasi.
17.  Upon interrogation the accused Sukhbasi revealed that he had kept currency notes of the value of Rs. 12,424/- and other gold and silver ornaments concealed in a room to the east of the courtyard under a heap of cowdung cakes. Then his house was searched the second time at about 3 p.m. on the 28th. The accused Sukhbasi took P.W. 31 inside that room and took out the bundle containing Rs. 12,424/- and stolen articles marked Exh. 97 seized under seizure memo (Exh. 55). P.W. 31 found 37 pawn slips detached from the ornaments lying in that room and took possession of the same (marked Exhs. Ka 3 to 39 and seized under seizure memo Exh. Ka 54). A week thereafter on January 1, 1971 he arrested the accused Ashok Kumar from Kaimganj. On the next day i.e. on the 3rd, he recorded the statement of Chhotelal, P.W. 25 and the other witnesses at the Police Station. A fortnight thereafter the accused Ram Shanker surrendered himself before the Magistrate on January 19, 1971. On interrogation he revealed that he had sold a gold ring to Ram Chander at Farrukhabad and offered to hand over some of the ornaments of his share which he had kept concealed in his house. On the night between January 19/20, P.W. 31 took him inside the house and the accused Ram Shanker dug out a jhola (Exh. 18) from inside a heap of bhoosa which contained gold and silver ornaments seized under seizure memo (Exh. 56). The accused Ram Shanker expressed his desire to make a confession. The confession made by the accused Ram Shanker (Exh. Ka 61) was recorded by Shri Harish Chander, P.W. 29, Magistrate (First Class), Farrukhabad on January 22, 1971, but he later retracted the confessional statement in the Court of Session. Some four months thereafter on May 25, 1971, Shri Harish Chander held a test identification parade of the stolen articles and almost all of them were identified as either belonging to the deceased Bhagwat Dayal or pledged with him, by Chandra Prakash, P.W. 28, Bharat Singh, P.W. 18 etc.
18.  If the matter stood at that, there would have been no difficulty in reversing the judgment of acquittal recorded by the High Court. There are however certain mysterious circumstances. During his cross-examination P.W. 31 revealed that on information gathered from the statements of the witnesses he suspected that the accused were involved in the commission of murder and robbery. He therefore despatched a team of Sub-Inspectors to village Behta at 4 p.m. If that be so, then there was no reason for him to wait till 1 a.m. i.e. for nine hours. The arrival of the Dog-Squad proved abortive as it tracked down the escape route up to the bus stand. P.W. 31 explains that he made a search for the accused but they were not to be found in Chhibramau. He should then have proceeded at once to village Behta to which the accused Sukhbasi belongs. But he evidently waited till 1 a.m. and then went with the police party to the village in a truck. This long unexplained delay is shrouded in mystery.  Further, the manner of recovery creates considerable doubt.
The house of Sukhbasi was raided twice and two lots of ornaments recovered, the first on the 27th seized under seizure memo (Exh. Ka 53) and the second on 28th seized under seizure memo (Exh. Ka 55). The accused Sukhbasi was not arrested till 28th even after the recovery of the stolen ornaments and of pawn slips (Exhs. Ka 3 to 39). The next recovery of gold and silver ornaments from the house of Ram Sanehi at village Akbarpur on the 28th morning was under seizure memo (Exh. 57). The fourth lot of ornaments was not recovered from the accused Chhotelal, brother of the accused Sukhbasi, till January 19, 1971 and seized under seizure memo (Exh. 56) i.e. after about 22 days. There was no recovery from the accused Ram Shanker but he made the retracted confession (Exh. Ka 61) before Shri Harish Chander, Magistrate, (First Class), Farrukhabad on the 22nd and confessed that he had sold a gold ring to Ram Chander, P.W. 27. P.W. 31 suggests that on seeing the police party the accused Sukhbasi and his companions tried to escape by placing a ladder against the compound wall but the accused Sukhbasi was apprehended and then administered a beating. The witnesses of seizure are common. All these circumstances create a doubt and the High Court has acquitted the accused Sukhbasi, Ram Sanehi and Ram Shanker giving them the benefit of such doubt. There appears to be no just and compelling reasons for us to interfere with the judgment of acquittal
19.  It is unfortunate that the accused in this case of the heinous and gruesome murders of the deceased Lala Bhagwat Dayal and his wife Smt. Ramwati Devi and the robbery of their property worth several lakhs of rupees should escape. Though we have considerable suspicion that the accused Sukhbasi, Ram Sanehi and Ram Shanker were the persons who may have committed these murders and robbery, the judgment of acquittal recorded by the High Court must stand. There is no legal evidence to sustain their conviction for the offences with which they were charged. The prosecution evidence falls short of the proof required. Mere suspicion, however grave, cannot take the place of proof
20.  As regards the disposal of the gold and silver ornaments seized and the cash of Rs. 12, 424/-, it is not disputed that they were all stolen and belonged to the deceased Bhagwat Dayal but their recovery from the accused is in doubt. The accused Sukhbasi, Ram Sanehi and Ram Shanker have disclaimed that these ornaments and cash were seized from them or belonged to them. That was also the stand of the learned counsel appearing for the respondents.
In the circumstances, we modify the direction made by the High Court that the seized gold and silver ornaments shall remain in custody till the claims for their right and title are settled by a Civil Court of competent jurisdiction. We think it necessary in the interests of justice to direct that the stolen gold and silver ornaments and currency notes worth Rs. 12, 424/- seized by the police are restored to the legal heirs of the deceased Lala Bhagwat Dayal and his wife Smt. Ramwati Devi, subject to the right or claim of any third party which may be established in a competent Civil Court
Subject to this modification, the appeals fail and are dismissed.
Appeals dismissed.


Ashok Kumar Chatterjee v State of Madhya Pradesh
Supreme Court of India

2  May  1989
Cr.A. No. 417 of 1978 (From the Judgment and Dt. 7 May 1977 of the Madhya Pradesh High Court in Cr.A. No. 307 of 1977)
The Judgment was delivered by: RATNAVEL PANDIAN, J.
1.  This appeal under special leave is directed against the judgment passed by the High Court of Madhya Pradesh at Jabalpur disposing Criminal Reference No. 1 of 1977 submitted by the learned Sessions Judge, Raipur u/s. 366(1) of the Criminal Procedure Code for confirmation of the sentence of death awarded by him in Session Trial No. 5 of 1977 and the criminal Appeal No. 307 of 1977 preferred by the appellant, Ashok Kumar Chatterjee challenging the correctness and legality of the judgment made by the trial court convicting him u/s. 302 and 201 IPC and sentencing him to death and to undergo rigorous imprisonment for 3 years respectively.
The facts of the case briefly stated are as follows
2.   The deceased Ravindra, who was 19 years of age at the time of occurrence in 1976 was the son of Pritosh Kumar Chatterjee who was employed in Bhatapara as Laboratory Assistant in Government Multi-Purpose Higher Secondary School. He hailed from West Bengal. The appellant, aged about 22 years, is a cousin of Pritosh.
3.  Pritosh was living with his wife (PW 2), his only daughter, aged about 15 years namely Supriya @ Bina and the appellant in Bhatapara in the house of PW 11. The deceased who was a student in Raipur College had come to Bhatapara during the summer vacation.
4.  Though the motive for the appellant to murder Ravindra, as put forth now by the prosecution, is that there was a quarrel between Ravindra and the appellant on some money matters, the real motive seems to be a story of shameful intrigue as disclosed from the evidence of PW 2, the wife of Pritosh. According to PW 2, her husband Pritosh was a man of very bad and indecent character and he was living in a private hell of his own satisfying his lust with his own daughter, Supriya. In the cross-examination also PW 2 affirms that her husband had illicit relations with Supriya. On account of this abnormal sexual and obnoxious behaviour of Pritosh, there used to be frequent quarrels between PW 2 and her husband. It further transpires from the evidence that the appellant who was none other than the cousin brother of Pritosh, was also making overtures to Supriya and this was resented by the deceased Ravindra who was in the prime of his youth.
5.  During that summer vacation, PW 2 along with her daughter Supriya had been to her village Gangoria, leaving her husband, the appellant and the deceased at Bhatapara. Some time later, Pritosh also come to the village where PW 2 and her daughter Supriya were staying. After the arrival of Pritosh, PW 2 left the village taking her daughter with her to Bhadria by travelling in a bus. But even before she reached Bhadria, she sent her daughter back to Gangoria from Barasal, probably a place midway between Gangoria and Bhadria. In Gangoria, PW 2's mother and brother were living.
6.  Pritosh came to Bhadria from Bhatapara. By that time Supriya also came there. PW 2 took a strong objection to the conduct of her husband coming to Bhadria and had a quarrel with him. Then she sent Supriya back to Gangoria on the very next day of the arrival of her husband. Thereafter PW 2 and her husband went to the village Mongram where the appellant also joined with them. It may be stated that the appellant's parents and brothers were residing at Mongram. At Mongram, PW 2 made enquiries with the appellant about her son Ravindra to which the appellant replied that Ravindra had gone to Bombay in search of some employment. Leaving the appellant and Pritosh at Mongram PW 2 went Gangoria. After some days PW 2 with her mother came to Bhatapara and asked her husband and the appellant about her son Ravindra to which both of them replied that Ravindra had gone in search of a job somewhere. PW 2 asked them to make a search for her son and if they failed to do so, she would herself make a search by handing over a photo of her son to the police.
7.  Be that as it may, it appears from the evidence that the deceased was last seen with the appellant in Bhatapara on June 8, 1976. On June 11, 1976, a headless body of a male without the limbs was found by PW 1 and the villagers in the field at Bhatapara. Some of the limbs of the body were also found at different places on the same day. At about 8.15 a. m. on June 11, 1976, PW 1 lodged a report (Ex. P-1) before PW 20, the then Section House Officer of Bhatapara Police Station. On the basis of Ex. P-1, the first information report, Ex. P-57 was prepared.
8.  PW 20 took up investigation, proceeded to the scene, held inquest over the headless body and the limbs and prepared the inquest report Ex. P-23. He also prepared a sketch of the scene Ex. P-50 and seized a rope, a pair of shoes and a cycle lying there.
9.  He sent that trunk and the limbs for post-mortem examination. On the very next day i. e. on June 12, 1976 on information, near the railway station he seized the decapitated head, over which he held an inquest and prepared the report Ex. P-59. He caused the photograph of the head to be taken under Ex. P-12. Then he sent the head for post-mortem.
10.  PW 10, the Medical Officer who conducted the autopsy on the headless trunk and the decapitated head opined that both were parts of the same body of a male of fair complexion of an estimated age of 17 to 25 years. According to the prosecution, the dead body was of Ravindra who of a fair complexion, aged 19 years at that time. Exs. P-45 and 47 are the post-mortem certificates. PW 10 states the body had not decomposed.
11.  PW 21, at the instruction of PW 20, inspected the house of the deceased and drew a sketch Ex. P-60. He found blood stains at wooden door at three points which he scraped.
12.  While the matter stood thus, PW 2 not being satisfied with the reply of her husband and the appellant both at Mongram and thereafter at Bhatapara about the missing of her son Ravindra, went to the police station of Bhatapara and handed over two photographs of her son Ex. P-2 and Ex. P-3 and also gave a report Ex. P-82 dated July 13, 1976.
13.  On the same day i. e. on July 13, 1976 after PW 2 had submitted the report Ex. P-82 to the police, Pritosh committed suicide by throwing himself before a running train.
14.  PWs 6 and 7 who were the Lecturers of the High School in which Pritosh was employed and in which the deceased studied and completed has matriculation, came to the police station and informed the suicidal death of Pritosh to PW 30 (Station House Officer). While PWs 6 and 7 were returning from the station, they saw the appellant entering the police station. The appellant told both these two witnesses that he knew of the death of Pritosh and further confessed that he was the person who murdered the deceased Ravindra and added that he had come there to surrender before the police.
15.  PW 30 arrested the accused, examined him and recorded his confessional statement in the presence of PWs 6 and 7. In pursuance of that statement, several articles and letters were seized. On June, 16, 1977, certain applications written by Pritosh were also recovered. During the inspection of the house, PW 30 found blood stains on the walls of the house which he scraped and recovered Ex. P-20 is the recovery mahazor. Among the letters seized, Exs. P-13 to P-15 (letters written in Bengali) and Ex. P-29 and Ex. P-31 (letters written in Hindi) and the envelopes Exs. P-30 and P-32 were found. Exs. P-61 and P-63 are the specimen Hindi writings of the appellant and Exs. P-18 to P-20 are the specimen Bengali writing of the appellant. These letters along with specimen handwriting were sent to PWs 22 and 23 who were the Additional and Assistant Station Examiners of Questioned Documents (i. e. handwriting experts) for comparison of the writings of these letters with the specimen writings of the appellant. The experts on comparison have opined that all the seized letters were in the handwriting of the appellant.
16.  Besides the opinion of the experts, PW 2 who claims to have studied up to 3rd standard and to have been conversant with the handwriting of the appellant also has deposed that the writings in Exs. P-13 to P-15, P-29 and P-31 are in the handwriting of the appellant. In Exs. P-13 and P-15 (addressed to his father), and in Ex. P-14 (addressed to Jamai Baboo), the appellant had given the detail of his love towards Supriya (@ Bina) and of his guilt of murdering the deceased. It may be pointed out that these letters were not posted. Exs. P-29 and P-31 (dated nil) found in the postal covers (Exs. P-30 and P-32) were addressed to the Collector and the Station House Officer but they too were not posted. The contents of those letters reveal that the appellant wanted to put an end to his life by committing suicide for the sin of murder he committed. It seems that the appellant could not muster courage to end his life and so surrendered before the police. Before leaving for the police station, the appellant wrote Ex. P-104 a postcard addressed to his father and posted the same. This postcard (Ex. P-104) written in Bengali was posted on July 13, 1976 at Bhatapara and it reached his father in Kalopur village on July 17, 1976. This is an important document about which we shall discuss in the ensuing portion of the judgment.
17.  During the investigation, a knife and some letters inclusive of Ex. P-104 were seized from the house of the father of the appellant in Kalopur village by PW 18. Exs. P-5 to P-11, P-16 and P-17 are the letters proved to be in the handwriting of Pritosh through PWs 2, 3 and 22. The contents of these letters show that after Pritosh and the appellant returned to Bhatapara from West Bengal the appellant confessed to Pritosh about his involvement in the murder of the deceased, and Pritosh who loved his son Ravindra and the appellant, without disclosing this confession of the appellant, decided to put an end to his life and ultimately did so. Two other letters (Exs. P-6 and P-33) further show that at the initial stage both Pritosh and the appellant decided to commit suicide. However, the sequence of events reveal that Pritosh alone committed suicide after his wife lodged the complaint with the police. We may point out at this juncture that though the letters written by Pritosh cannot be made use of as legal evidence against the appellant, we are mentioning those letters and their contents only for the proper understanding of the sequence of events and the complete narration of the prosecution case.
18.  Exs. P-184 and P-185 are the reports of the Chemical Examiner and Serologist respectively. As per the report of the Serologist the scrapings of the wall of the house and the pillow recovered from the house were stained with human blood. The blood stains on some of the items of the properties were disintegrated and as such their origin could not be determined. After completing the investigation PW 30 filed the charge-sheet on October 28, 1976.
19.  The appellant in his statement u/s. 313 CPC has denied his complicity in the offence in question and added that he does not know anything about the letters produced by the prosecution and that he was tortured and pressurised to write certain letters and documents inclusive of a postcard at the police station and under pressure his signatures were obtained thereon.
20.  The trial court, as pointed supra, convicted the appellant u/ss. 302 and 201 IPC and sentenced him to death and to undergo rigorous imprisonment for a period of 3 years. The High Court for the reasons assigned in its judgment affirmed the convictions recorded by the trial court but modified the sentence of death to imprisonment for life while retaining the rigorous imprisonment for 3 years u/s. 201 IPC.
21.  The learned counsel appearing on behalf of the appellant assailed the judgment of the High Court, inter alia, contending
(1) That the prosecution has not satisfactorily established the guilt of the appellant through cogent, reliable and trustworthy evidence from which the guilt of the accused is to be drawn and the evidence available on record does not lead to any irresistible conclusion that the appellant alone, and none else, committed this heinous crime;
(2) All the letters except Ex. P-104 have not been posted and they were all fabricated only at the police station under pressure brought on the appellant who was pressurised to sign those letters and as such the contents of all those letters should be rejected in toto.
(3) The date, July 11, 1976 mentioned in Ex. P-104 would indicate that the appellant had been taken into custody by the police either on July 11, 1976 or much earlier and that this letter had been fabricated while he was in the police custody and was posted on July 13, 1976. This postcard (Ex. P-104) raises a could of suspicion on the veracity of the prosecution case.
22.  Incidentally, a feeble argument was advanced that the prosecution has not established the identity of the trunk, limbs and the severed head as that of Ravindra beyond all reasonable doubt.
23.  This Court in a series of decisions has laid down the principles of law governing the exercise of powers by this Court to interfere in an appeal against conviction u/art. 136 of the Constitution of India of which we shall make reference to a few.
24.  In Hem Raj v. State of Ajmer this Court has clearly made the position of law thus:
25.   Unless it is shown that exceptional and special circumstances exist that substantial and grave injustice has been done and the case in question presents features of sufficient gravity to warrant a review of the decision appealed against, this Court does not exercise its overriding powers u/art. 136(1) of the Constitution
26.  In Ramaphupala Reddy v. State of Andhra Pradesh this Court expressed its view on this proposition of law thus:
27.   Although the powers of this Court under that article (Art. 136 of the Constitution) are very wide, this Court following the practice adopted by the Judicial Committee has prescribed limits on its own power and in criminal appeals, except under exceptional circumstances it does interfere with the findings of facts reached by the High Court unless it is of the opinion that the High Court had disregarded the forms of legal process or had violated the principles of natural justice or otherwise substantial and grave injustice has resulted. This Court does not ordinarily reappraise the evidence if the High Court has approached the case before it in accordance with the guidelines laid down by this Court unless some basic error on the part of the High Court is brought to the notice of this Court. It is best to bear in mind that except in certain special cases, the High Court is the final court of appeal and this Court is only a court of special jurisdiction.
28.  Chandrachud, J as he then was in Balak Ram v. State of U. P. speaking for the bench said:
29.   The powers of the Supreme Court u/art. 136 are wide but in criminal appeals this Court does not interfere with the concurrent findings of fact save in exceptional circumstances. In Ramaphupala Reddy v. State of A. P., it was observed that it was best to bear in mind that normally the High Court is a final court of appeal and the Supreme Court is only a court of special jurisdiction. This Court would not therefore reappraise the evidence unless, for example, the forms of legal process are disregarded or principles of natural justice are violated or substantial and grave injustice has otherwise resulted.
30.  This Court in Bharwada Bhoginbhai Hirjibhai v. State of Gujarat wherein the High Court had affirmed the pure findings of facts recorded by the Sessions Court, observed:
31.   Such a concurrent finding of fact cannot be reopened in an appeal by special leave unless it is established:
(1) that the finding is based on no evidence or
(2) that the finding is perverse, it being such as no reasonable person could have arrived at even if the evidence was taken at its face value or
(3) the finding is based and built on inadmissible evidence, which evidence, if excluded from vision, would negate the prosecution case or substantially discredit or impair it or
(4) some vital piece of evidence which would tilt the balance in favour of the convict has been overlooked, disregarded or wrongly discarded
32.  In a recent decision in Appabhai v. State of Gujarat the following dictum is laid down:
Before we consider the contentions urged for the appellants, we may recall that these are appeals by special leave u/art. 136 of the Constitution. If conclusions of the courts below are supported by acceptable evidence, this Court will not exercise its overriding powers to interfere with the decision appealed against. This Court also will not consider the contentions relating to re-appreciation of the evidence which has been believed by the courts below. The fact that the special leave has been granted should not make any difference to this practice. The grant of special leave does not entitle the parties to open out and argue the whole case. The parties are not entitled to contest all findings recorded by the courts below unless it is shown by error apparent on the record that substantial and grave injustice has been done to them.
33.  We shall now, bearing in mind the scope of interference by this Court in an appeal against concurrent findings, dispose this appeal in this light of the principle of law enunciated by this Court in the abovementioned authoritative judicial pronouncements.
34.  This appeal arises against the concurrent findings of facts except for the modification of the sentence made by the High Court. There is no direct evidence to prove this case and the conviction is founded solely on circumstantial evidence. This Court in a line of decisions has consistently held that when a case rests upon circumstantial evidence such evidence must satisfy the following tests
(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused
(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else, and
(4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.
35.  See also Rama Nand v. State of Himachal Pradesh, Prem Thakur v. State of Punjab, Earabhadrappa v. State of Karnataka, Gian Singh v. State of Punjab and Balwinder Singh v. State of Punjab
36.  Before adverting to the arguments advanced by the learned counsel, we shall first of all dispose of the contention with reference to the identity of the victim
37.  The unfortunate victim in this case is one Ravindra who was aged about 19 years at the time of the occurrence and who was the only son of Pritosh and PW 2. According to the prosecution, the scene of occurrence was the house of the deceased himself and he was done away with at about 4.45 a. m. on June 10, 1976. Indisputably, it is a very macabre incident in which the deceased had been brutally parts of Bhatapara city. Though the headless body and the various limbs were seen and recovered on June 11, 1976, the decapitated head was seen and recovered only on June 12, 1976. A photograph of the head was taken under Ex. P-12. Though PW 2, the mother of Ravindra on seeing Ex. P-12 identified it to be that of her son, the learned Judges held that since the features of the face in x. P-12 cannot be deciphered, it is impossible for any person to identify the deceased from Ex. P-12. In view of this, they were reluctant to place reliance on the identification by PW 2 on seeing Ex. P-12. However, the High Court relying on other facts of the case concurring with the trial court came to the conclusion that the deceased was Ravindra.
38.   According to the evidence, Ravindra was of a fair complexion aged about 19 years. The Medical Officer has deposed that the skin of the deceased was of fair complexion. In the post-mortem certificate (Ex. P-45), the approximate age of the male body is given as 18 to 29 years and the skin was of fair colour. The Medical Officer has further stated that the decapitated head was that of the body recovered on the earlier day. The scrapings of the wall of the kitchen portion of the scene house are proved to have been stained with human blood. The pillow recovered from the house also is proved to have been stained with human blood. These circumstances indicate that the occurrence had taken place inside the house of the deceased. In the number of letters inclusive of Ex. P-104 the appellant himself has unequivocally conferred that the deceased was Ravindra. The letters written by Pritosh about which we have made reference in the narrative portion of this judgment also refers to the murder of Ravindra. In view of the above unassailable circumstances, we are fortified in our view that both the courts have rightly found that the dead body was that of Ravindra and we do not see any reason to dislodge that concurrent finding.
39.  The prosecution rests its case on a number of attending circumstances, which establish the guilt of the appellant. As was pointed out during the earlier part of this judgment though the prosecution has suggested the motive for the accused to commit this murder on a money dealing, the real motive behind the occurrence seems to be a gross indecent behavior of the appellant towards Supriya @ Bina, who is done other than the sister of the deceased. It is in the evidence of PW 2 that even Pritosh, the father of Supriya had sexually assaulted his own daughter on earlier occasions and that this appellant was also making overtures towards Supriya thereby exhibiting his asinine behaviour. Therefore, it is but natural that the deceased should have taken a strong objection to the conduct of the appellant and this had resulted in the murder of Ravindra.
40.  At the time when the victim was murdered except the appellant and the deceased, there was none in the scene house because PW 2 had left Bhatapara with her daughter and Pritosh and followed them some time later. In the evidence of PW 11 who is the landlord of the scene house it is said that Ravindra was seen in the house in the company of the appellant up to June, 1976. The appellant was not found in the village after this murder till he surrendered before the police i. e. on June 13, 1976. After this incident, the appellant went to Mongram where his parents and brothers reside and met Pritosh and PW 2. When PW 2 asked the appellant at Mongram about her son's whereabouts, the appellant falsely replied that Ravindra had gone to Bombay in search of some employment. The conduct of the appellant in giving this manifestly blatant false reply to PW 2's enquiry, spells out his guilty conscience. The number of letters namely Exs. P-13 to P-15, Exs. P-29 and P-31 written in Bengali and Hindi were seized from the house. These letters are proved to be in the handwriting of the appellant, as seen from the evidence of PW 22 and PW 23 who were the State Examiners of Questioned Documents. PW 2 who claims to have studied up to 3rd standard has also deposed that the writing of those letters are in the handwriting of the appellant. In fact the accused also did not deny his handwriting but would try to explain that those letters were got written under pressure brought by the police on him. In these letters which were not posted, the accused had confessed that he had murdered the deceased. There is one more clinching evidence connecting the appellant with the crime in question is the contents of the postcard (Ex. P-104). This postcard had been posted at Bhatapara on July 13, 1976 i. e. on the very same day of the suicidal death of Pritosh. Much argument was advanced on this postcard. According to the prosecution this postcard which was posted at Bhatapara on July 13, 1976 reached the appellant's father on July 17, 1976 at Kalopur. This postcard is written in Bengali. PW 23 has testified that the writing in the postcard is that of the appellant. This Ex. P-104 is dated July 11, 1976. The learned counsel for the defence advanced his argument contending that since the postcard is dated July 11, 1976, the appellant should have been taken to the police custody even much earlier to July 13, 111976 and this letter was fabricated. We are unable to accept this contention.
41.   In fact, a similar argument was raised before the High Court which repelled the same. Admittedly Pritosh committed suicide on July 13, 1976. In the postcard there is reference to the death of Pritosh Therefore, it is evident that this postcard should have been written after the death of Pritosh and then posted. Presumably, the appellant would have put the date on the postcard as July 11, 1976 by mistake. In view of the surrounding circumstances and the contents found in the postcard we are in total agreement with the finding of the High Court that the appellant should have put the date by mistake, and hold that this argument of the learned counsel for the appellant is not acceptable. The contents of this letter clearly show that Ravindra was murdered by the appellant on June 10, 1976 and that the appellant coming to know about the suicide of his cousin brother, Pritosh had decided to surrender before the police and suffer the consequences. Though the appellant in general had stated that he was tortured by the police and pressurised to write certain letters and documents and to sign them, he when specifically questioned u/s. 313 CPC answered that he did not know anything about those letters.
42.  The learned defence counsel in support of his contention that there was police torture would draw the attention of this Court to certain admissions of PW 2 in the cross-examination admitting that the police had harassed all of them and persistently enquired about the reason for Pritosh to commit suicide, and that the appellant on being arrested by the police was highly perplexed and all of them went on admitting what the police said. We have carefully scanned these admissions of PW 2 but found that these admissions could not in any way affect the veracity of the prosecution case. As we have pointed out Pritosh committed suicide in very tragic circumstances by throwing himself before a running train only after PW 2 had approached the police by lodging Ex. P-82 and handing over two photographs of her son with the request to make an investigation about the missing of her son. Evidently Pritosh who on being put to painful ignominy by his obnoxious conduct of having sexual relationship with his own daughter should have resorted to putting an end to his life apprehending that the whole shameful intrigue would come out and he would be exposed to the public. PW 2 by then had not come out with the story of her husband's abnormal sexual behaviour.  Therefore, the police in order to unearth the real cause for the suicidal death Pritosh would have taken all the inmates of the house to the police station and subjected them to intensive and searching examination. It was only during such examination of these witnesses over the cause of the death of Pritosh, the whole truth about this case came out. It is not surprising that the appellant would have been in an agitated and perplexed state of mind because he was in exclusive knowledge of his own conduct of having committed the murder of the deceased which led to the suicidal death of Pritosh who on account of his uncivilized and filthy conduct in our opinion was only a beast in the human form.
Hence we hold that this argument of the earned counsel does not merit consideration.
43.  For all the discussions made above we are of the view that there are number of impelling circumstances attending this case leading to an irresistible and inescapable conclusion that it was the appellant and the appellant alone who caused the death of the deceased, Ravindra in a very ghastly manner by cutting him into pieces and throwing his various parts of body at different parts of the city, Bhatapara and there cannot be any dispute that this cold-blooded murder is diabolical in conception and extremely cruel in execution. The evaluation of the findings of the High Court does not suffer from any illegality, or manifest error or perversity nor it has overlooked or wrongly discarded any vital piece of evidence. Hence was hold that the findings of facts recorded by the courts below do not call for any interference.
In the result, the appeal is dismissed
Appeal dismissed.


Dr. Ms. O.Z. Hussain v Union Of India And Ors.
Supreme Court of India

15 November 1989
Writ Petition (Civil) No. 10 18 of 1989
The Judgment was delivered by: Ranganath Misra, J.
1.  This is an application u/art. 32 of the Constitution and the President of the National Council of Bio-Medical Scientists is the petitioner. The reliefs asked for are on the allegation that the Group 'A' scientists of the Ministry of Health and Family Welfare who are the members of the Council, are being discriminatingly treated; they have not been given any promotional benefits and, therefore, there is a large-scale stagnation in the service. It has been alleged that the Group 'A' scientists are recruited through the Union Public Service Commission. These scientists possess a Master Degree in the relevant disciplines and 3 years' experience to entitle them to be recruited. It has been indicated in a chart filed along with the Writ Petition that the total posts in this category are 243 including post of Drug Controller of India. The promotional posts available are filled up by direct recruitment and open competition and there is no promotional channel provided. Similar scientists in other Ministries, such as Ministry of Science and Technology, Ministry of Defence, Ministry of Environment and Ministry of Oceanography are recruited in terms of rules made under the proviso to Art. 309 of the Constitution and for their Group 'A' scientific and technical officers, promotional avenues are available. The petition further alleges that on their representations from time to time, meetings have been held but decisions taken in such meetings have not been given effect to and, therefore, all the representations have gone unheeded. Particular reference has been made to the Minutes of a meeting held on 15.5. 1989, where Shri Basudeven, Joint Secretary in the Ministry of Health and Family Welfare presided; several officers from different wings of the Ministry attended and representatives of the petitioner's Council participated. It has been alleged that though several demands were pressed by the representatives of the Council, only a few were considered and yet there was no follow-up action for their implementation.
2.  Notice was issued to the Union of India in the Ministries of Health, Human Resources, Science and Technology and Bio-Technology and the notice indicated that the matter would be taken up for final disposal. Though no return has been filed to the Rule Nisi, counsel appeared for the respondents and upon appropriate instructions, participated in the hearing of the matter.
3.  Annexure P-1 indicates the institutions located in different parts of the country where the posts of 'A' Group scientists who are members of the Council work. Their total number is 243 and this is not disputed. The petitioner has placed on record the rules framed in exercise of powers under proviso to Art. 309 of the Constitution in the Ministry of Science and Technology, covering Group 'A' scientists. Rule 13 thereof provides avenues for promotion.
4. This also is not disputed. Annexure P-3 is a tabuler statement prepared by the petitioner, showing the disparities in the service conditions between the BioMedical scientists and other similar scientists and the discrimination that Group 'A' specialists/scientists under the establishment of Director General of Health Services suffer. The pay-scale for different categories of Group 'A' scientists in the nonmedical posts and of doctors in the medical posts have been separately shown. It has been pointed out therein that while there is a difference in the pay-scale in the establishment of Director General of Health Services, there is no disparity in respect of similar posts in the Indian Council of Medical Research (ICMR) or in the All-India Institute of Medical Sciences, Delhi or the Post--Graduate Institute at Chandigarh. It has been further pointed out in the said chart that various kinds of allowances are admissible to the doctors in the medical wing, such as book allowance, higher degree allowance, risk allowance and conveyance allowance in the establishment of Director General of Health Services while the non-medical category manned by the 'A' Group scientists is denied all these allowances. It has also been alleged that while the medical category doctors get nonpractising allowance the benefit of such allowance is not extended to the non-medical category. Such discrimination, according to the petitioner, is not noticed in the I.C.M.R. or in the two Institute at Delhi and Chandigarh respectively.
The 4th Pay Commission in Chapter 29, paragraph 29.8 recommended:
"The question of granting incentive to officers and staff who acquire higher qualification has also engaged our attention. Railways have suggested a scheme for giving such incentives in the context of the need for updating the skills of the employees for the more efficient discharge of their duties in these days when modernisation and adoption of advanced technology is being undertaken in different fields of railway working. Suggestions have also been made for grant of post graduate allowance to veterinary surgeons and special allowances to EDP personnel. Some such schemes are in existence in the defence services. We suggest that some incentive should be given to employees who acquire qualifications which are useful for their work and contribute to their efficiency."
5.  On 15th of December, 1986, the Office Memorandum in the Ministry of Personnel, Public Grievances and Pension indicated that this recommendation of the Pay Commission has been accepted by the Government.
6.  Undoubtedly, in regard to the three other allowances, namely, book allowance, risk allowance and conveyance allowance, there is no scope for discrimination between Group 'A' scientists in non-medical and medical wings. In fact, at the hearing of the writ petition, respondent's counsel found it difficult to support the prevailing position. We are of the opinion that these four kinds of allowances, which are admissible to the medical doctors are also admissible to the Group 'A' scientists under the non-medical category employed in the establishment of Director General of Health Services.
7. The claim for nonpractising allowance stands on a somewhat different footing and we do not think on the present state of the record of this proceeding, we can come to a definite conclusion that the Group 'A' scientists in the non-medical category would be also entitled to such allowance. We, however, leave the question open and Government at their level in the appropriate Ministry would examine tenability of this claim as and when raised. It has been canvassed by petitioner's counsel at the hearing that there is no justification for the disparity in the scale of pay between the two categories of officers. Government counsel has taken the stand that the qualifications of officers in the two wings are different and the difference in the pay scales has always existed. It is difficult for us on the material available to take any final view of the matter but the respondent should examine tenability of the claim to equal scales of pay.
8.  This Court, has on more than one occasion, pointed out that provision for promotion increases efficiency of the public service while stagnation reduces efficiency and makes the service ineffective. Promotion is thus a normal incidence of service. There too is no justification why while similarly placed officers in other Ministries would have the benefit of promotion, the non-medical 'A' Group scientists in the establishment of Director General of Health Services would be deprived of such advantage. In a welfare State, it is necessary that there should be an efficient public service and, therefore, it should have been the obligation of the Ministry of Health to attend to the representations of the Council and its members and provide promotional avenue for this category of officers. It is, therefore, necessary that on the model of rules framed by the Ministry of Science and Technology with such alterations as may be necessary, appropriate rules should be framed within four months from now providing promotional avenue for the 'A' category scientists in the non-medical wing of the Directorate.
This Writ Petition is allowed and the following directions are issued:
(1) Within four months from today, the Ministry of Health and Family Welfare of the Union of India shall frame a set of appropriate rules, inter alia, providing suitable promotional avenue for the 'A' Group scientists in the non-medical wing of the establishment of Director General of Health Services;
(2) These 'A' Group scientists shall be entitled to book allowance, higher degree allowance, risk allowance and conveyance allowance at the same rate as is admissible to doctors in the medical wing in the Directorate w.e.f. 1.4.1989;
(3) Government shall examine the tenability of the claim of equal pay scales for this category of officers within four months from today.
There shall be no directions for costs.
Petition allowed


Council of Scientific and Industrial Research and Another v K. G. S. Bhatt and Another
Supreme Court of India

29 August 1989
C.A. No. 3967 of 1987
The Judgment was delivered by: JAGANNATHA SHETTY, J.
1. Mr. K. G. S. Bhatt - respondent No. 1 in this appeal was Civil Engineer - A in the Central Food and Technological Research Institute, Mysore, which is one of the national institutes under Council of Scientific and Industrial Research. He was not considered for any kind of promotion for nearly two decades. He approached the Central Administrative Tribunal, Bangalore Bench making that grievance and asking for relief. The Tribunal by judgment dated August 7, 1987 allowed his claim which has been challenged in this appeal by leave.
2. Council of Scientific and Industrial Research is a society registered under the Societies Registration Act. It is appellant No. 1 in this appeal. The Director of Central Food and Technological Research Institute at Mysore is appellant No. 2. They are hereinafter together called as 'the appellant'. The appellant has framed certain dye-laws for regulating promotion of technical and scientific staff. One such bye-law is bye-law 71(b)(ii) which expressly does not cover the case of civil engineers. The Tribunal, however, extended the benefit of that bye-law to respondent 1 also. It directed the appellant to consider his case for promotion in terms of the said bye-law with all consequential benefits.
3. Before turning to by-law 71(b)(ii), it is of some importance to see the relevant facts : On April 20, 1961, respondent 1 was appointed as Civil Engineer-A in the appellant's institute. He was given the pay scale of Rs.350-900. This pay scale was equivalent to that of starting pay scale of Junior Scientific Officers. The respondent 1 remained in the same cadre and pay scale till 1981 while Junior Scientific Officer and Junior Technical Officers were given periodical promotion under bye-law 71(b)(ii). In 1981, the appellant framed a separate scheme for promoting civil engineers and other administrative officers. The scheme is called the New Recruitment and Assessment Scheme (NR and AS). Under that scheme respondent 1 was considered and promoted to higher cadre with which we are not concerned in this appeal. We are only concerned with his claim for promotion for the period from 1961 to 1981, that is, from the date of his appointment till the NR and AS was introduced.
4. Prior to 1978, there were five categories of officers and staff working under the establishments of the appellant. They were as follows:
"(i) those engaged in research work;
(ii) those engaged in scientific work other than research work;
(iii) auxiliary technical;
(iv) administrative, ministerial and accounts; and
(v) supporting staff (class IV)"
5. Subsequent to October 1978, those five categories were reclassified as under:
"(i) Scientific; (ii) technical; and (iii) administrative."
This latter classification resulted in the limitation of supporting staff (class IV) and the category of 'auxiliary technical;. It is not disputed that the civil engineers were categorised as 'auxiliary technical; under the first classification, but under the latter classification, they were brought under the 'administrative' category. The exclusion of their cadre from the scientific or technical category and bringing them under the 'administrative' category led to a wave of protests and representations. The question was also raised in the Parliament about the injustice done to the civil and structural engineers. On August 3, 1979, the Governing Body of the appellant approved the proposal to classify the Civil Engineering and Architectural Personnel as 'technical' instead of as 'administrative', but it was only for the purpose of retirement at 60 years. No promotional benefits were however, extended to them till NR and  AS was approved.
6. We may now turn to bye-law 71(b)(ii) on which the Tribunal rested its conclusion. It reads as follows:
"Notwithstanding anything contained in these bye-laws
(ii) The merit of officers of the rank of a Junior Scientific Officer/Junior Technical Officer and Senior Scientific Officer Gr. II/Senior Technical Officer Gr. II engaged in scientific work may be assessed for promotion to the next higher grade, after every five years of the appointment of the officer concerned against that post. Such assessment will also be made after completing one year's service at the maximum of the scale of pay of his grade."
7. The Tribunal while considering this bye-law has observed that it could be applied to respondent 1 since he was in the rank of a Junior Scientific Officer/Junior Technical Officer. This view has been seriously criticised by counsel for the appellant. He argued that the said bye-law would be applicable only to Junior Scientific and Technical Officers who are engaged in scientific and technical work and it excludes others who are not engaged in scientific work. He also claimed that the bye-law was intended to give accelerated promotion to scientific and technical officers as an incentive for them and it cannot be extended to others who are doing routine administrative work.
8. It seems to us that the submission of counsel for the appellant is not unjustified. Apparently the bye-law governs only the promotion of junior scientific and technical staff grade II who are engaged in the scientific work. One who is "engaged in the scientific work" is alone entitled to the benefit to the bye-law. It is a necessary qualification for being considered for accelerated promotion. A person who is not engaged in the scientific work, therefore, stands excluded from the bye-law. In other words, it has no application to the staff who are doing administrative work. Under the categorisation of jobs, respondent 1 falls under the 'administrative' category and therefore, stands excluded from bye-law 71(b)(ii).
9. That then is the scope of bye-law 71(b)(ii). But that does not mean that we should interfere with the relief granted to respondent 1. By pointing out the error that crept into the decision of the Tribunal, we need not to take its logical end which will defeat justice. Respondent 1 is not a layman. He is a highly qualified engineer. Although he joined service with a diploma in engineering, he later passed Bachelor of Engineering (B.E.) and also acquired M. Tech. degree and one more diploma (D.P.M.).
He was, however, left without opportunity for promotion for about twenty years. This is indeed a sad commentary on the appellant's management. It is often said and indeed, adroitly, an organisation, public or private does not 'hire a hand' but engages or employs a whole man. The person is recruited by an organisation not just for a job, but for a whole career, One must, therefore, be given opportunity to advance. This is the oldest and most important feature of the free enterprise system. The opportunity for advancement is a requirement for progress of any organisation. It is an incentive for personnel development as well. Every management must provide realistic opportunities for promising employees to move upward.
"The organisation that fails to develop a satisfactory procedure for promotion is bound to pay a severe penalty in terms of administrative costs, misallocation of personnel, low morale, and ineffectual performance, among both non-managerial employees and their supervisors."
10. Respondent 1 has alleged in the counter-affidavit that electrical engineers, mechanical engineers, refrigeration engineers, glass blowers. etc. were promoted treating them as 'technical' personnel. He has stated that electrical engineer deals with electrical services. Mechanical engineer looks after laboratory equipments. Glass blower takes care of glass apparatus. Refrigeration engineer provides cold storage. It is said that they got benefit of promotion under bye-law 71(b)(ii). Not merely that even some of the plumbers, masons, mates, polishers, etc., who were working under respondent 1 were said to have been classified as 'technical' for giving them promotion. These averments have not been denied or disputed in the reply affidavit filed on behalf of the appellant. We have referred to these averments only to highlight the injustice done to respondent 1 and not to impeach the validity of categorisation. Indeed, we cannot meddle with the categorisation since it was done by the Expert Committee.
11. There is yet another reason for not interfering with the relief given by the Tribunal. We have accepted tribunalisation of justice by divesting jurisdiction of the High Courts with regard to service matters. The Service Tribunals have been constituted under the Administrative Tribunals Act, 1985, as final arbiter of controversies relating to conditions of service of officials. The Administrative Tribunals Act was enacted on the recommendations of this Court made in Harjeet Singh v. Union of India 1980 Indlaw SC 210, and in Kamal Kanti Datta v. Union of India 1980 Indlaw SC 148, There, this Court observed that the Tribunal should decide disputes as to service matters without being tied down to strict rules of evidence. In fact sub-s. (1) of S. 22 of the Administrative Tribunals Act, 1985, provides that a Tribunal should not be bound by the procedure laid down in the Code of Civil Procedure, 1908, but shall be guided by the principle of natural justice etc. S. 27 provides finality to orders of the Tribunal. S. 28 excludes the jurisdiction of courts except the Supreme Court or any Industrial Tribunal, Labour Court.
12. But this Court u/art. 136 exercises power only when there is supreme need. The decision on individual disputes of seniority, promotion, reversion, suspension, pay fixation etc., are not ordinarily interfered with even though it is viewed as erroneous. The Tribunal may fall into some legal errors but if substantial justice has been rendered to a person, this Court will not interfere with such a decision. In Rashpal Malhotra v. Satya Rajput 1987 Indlaw SC 28884, this Court expressed the view that even if legal flaws might be electronically detected in the order of the Tribunal or Court, this Court will not interfere unless there is manifest injustice or substantial question of public importance.
13. It may be borne in mind that the exercise of power u/art. 136 while granting a special leave and while hearing an appeal is one continuous process, and this Court will apply the same principles even at the time of disposal of the appeal.
(i) Bengal Chemical and  Pharmaceutical Work Ltd., v. Employees 1959 Indlaw SC 132,  and
(ii) Baldota Bros. v. Libra Mining Works, 1959 Indlaw SC 293.
14. In the instant case as already noticed the respondent 1 has suffered and stagnated for about twenty years in the same scale from inception due to defective promotional policy. Therefore, we decline to interfere with the relief granted by the Tribunal although we do not agree with the views expressed on the scope of bye-law 71(b)(ii).
15. In the result, the appeal fails and is dismissed. But in the circumstances of the case, we make no order as to costs.
Appeal dismissed.