judgement:
: Criminal Appeal No. 7 of 1979.
From the Judgment and Order dated 13.2.1978 of the Andhra Pradesh High Court in Criminal Appeal No. 812 of 1976 and 807 of 1977.
K. MadhaVa Reddy, TVSN.Chari, Narashima P.V.P.L. and Ms. M. Gupta for the Appellant.
R.K. Garg, T. Rama Mohan Raj, N.M. popli and V.J. Fran cis for the Respondents.
The Judgment of the Court was delivered by AHMADI, J.
Ram Subba Reddy, an advocate, politician ' (an ex MLA) cum trade unionist was done to death when he was sleeping on the terrace of his house in Proddatur, District Cuddapah, on the night 'between 14th and 15th April, 1975.
The incident in question occurred at about 3.30 a.m. in which, apart from the deceased Ram Subba Reddy having re ceived fatal blows by lethal weapons, his daughter PW 1 Krishnaveni, aged about 24 years, received injuries when she attempted to 'go to help her father.
As many as 19 persons were put up for trial before the learned Additional Sessions Judge, Cuddapah on different charges.
Original accused Nos. 1 and 7 to 19 were charged for criminal conspiracy under section 120B; original accused Nos. 1 to 6, 12 and 13 were charged for rioting with deadly weapons under section 148; original accused No. 16 was charged under section 147 along with original accused Nos.
1 to 6, 12 and 13; original accused Nos. 1 to 6, 12 and 13 were also charged for murder under section 302; the said accused alongwith original accused No. 16 were also charged under section 302/149; original accused No. 5 was charged under section 324 and he as well as original accused Nos. 1 to 604 4, 6, 12, 13 and 16 were charged under Section 324/149, I.P.C. To bring home the charges against them the prosecu tion mainly relied on the testimony of PW 1 Krishnaveni, PW 2 Venkata Subbamma, widow of the deceased, PW 3, Venkat Rami Reddy and PW 4 Kasireddy sambasiva Reddy, both of whom it is claimed were sleeping on the ground floor of the house of the deceased and PW 5 Annapu Reddy Venkata Subba Reddy, a neighbour who arrived at the scene of incident on hearing the commotion and who at the instance of PW 1 lodged the FIR Exh.
P 56 at about 4.30 a.m.
The learned Additional Sessions Judge accepted the evidence of PWs 1, 2, 3 and 5, PW 4 having turned hostile, and convicted original accused Nos. 1 and 3 under section 148 and section 302 and 324 with the aid of section 149, I.P.C. and original accused ' No. 5 under sections 148, 302 and 324, I.P.C., substantively.
All the three of them were sentenced to life imprisonment for mur dering Ram Subba Reddy and to rigorous imprisionment for 3 years under section 148, I.P.C. No separate sentence was imposed for causing injuries to PW 1.
The rest were acquit ted of all the charges levelled against them.
No appeal was preferred to the High Court against their acquittal but the three convicted accused preferred an appeal to the High Court challenging their conviction while the State appealed for enhancement of the sentence of accused No. 1 from life imprisonment to capital punishment.
The High Court doubted the testimony of PWs 1, 2, 3 and 5 and their capacity to identify the assailants and, therefore, acquitted them of all the charges levelled against them.
Consequently the State 's appeal for enhancement of accused No. 1 's sentence also failed.
While the State has preferred this appeal against the order of acquittal or ' original accused Nos. 1, 3 and 5, no appeal has been preferred against the dismissal of he State 's appeal for enhancement of the accused No. 1 's sentence.
A few facts leading to this appeal may be noticed.
The deceased was a practising lawyer and a congressman.
He was member of the Legislative Assembly during the 1967 ,1972 term.
He had his own house in which he resided.
AcCused No. 1, a medical practitioner, was a trade union activist be longing to the Communist party of India (Marxist Leninist group) and weilded considerable influence among the working classes.
Accused No. 2 was a lower division clerk in the judicial department, District Cuddapah, but was on cave at the material time.
He was a close associate of accused No. 1.
Accused Nos. 3 and 5 were employees of Andhra Cotton Mills, Proddatur, while accused Nos. 4 and 6 were employees of International Packaging Company, Proddatur, and took part in trade union activities.
In the first quarter of 1974 the workers of the International Packaging Com .
605 pany had served the management with a charter of demands and accused No. 1, who was the President of the Union had served the management with a strike notice on the ' failure of the negotiations which the management countered by declaring a lock out.
Thereafter PW 21 Jutura Ramaniah partner of the company was assaulted on the night of March 30, 1974 for which a case was registered against accused No. 1 and his companions.
The deceased who was a lawyer for the company is stated to have advised accused No. 1 not to resort to vio lence for settlement of such industrial disputes.
As the deceased was representing the company the relations between the deceased and accused No. 1 which were cordial were soured and the latter stopped visiting the former.
In the month of November 1974, on the advise of the deceased, the management brought workers from Bangalore and started the factory.
However the workers ' union could prevail upon those workers not to report for.
work and the unit again same to a standstill within about ten days of commencement.
The dis pute was referred to the arbitration Of three persons but they could not resolve it on account of the uncompromising attitude of the workers led by accused No. 1.
While this unrest continued trouble started brewing with the transport workers union of which accused No. 1 was the President striking work.
Here too the management was repre sented by the deceased.
The atmosphere in the township was surcharged and tense.
With the intervention of the State Minister the dispute between the transport workers and the owners was settled but so far as the International PaCkaging Company is concerned its employees did not participate in the meeting called by the Minister.
A warrant for the deten tion of accused NO. 1 under MISA was issued on February 14, 1975 but the same could not be executed as he went under ground.
On the advice of the Minister the management unilat erally opened the factory w.e.f. March 19, 1975.
The de ceased had throughout taken a very active interest in ensur ing the starting of the factory notwithstanding the stand taken by the union.
The union had also complained about the unilateral imposition of certain conditions on the ' workmen but to no avail.
The workers began to report for work though the union was not reconciled.
On the other hand since the warrant for accused No. 1 's arrest could not be executed a warrant for the attachment of his properties was issued on April 9, 1975.
PW 11 M. Sajjana, Assistant Station Master, Cuddapah, had started an INTUC branch at Cuddapah sometime ' in Decem ber, 1973.
Under its banner a youth conference was organised on January 26, 606 1975.
PW H presided.
over that conference and a decision was taken explore the possibility of starting an INTUC branch at Proddatur with the help of the deceased.
Pursuant thereto PW 11 and others visited Proddatur on March 27, 1975 to discuss the matter with the deceased.
The deceased promised all possible help and agreed to provide space for the office of INTUC in his own office.
Ultimately to counter the militant activities of accused No. 1 who was in control of most of the labour unions in the town a decision was taken to start an INTUC branch in Proddatur w.e.f. April 19,1975.
Pamphlets were issued in this behalf soliciting the co operation ,of workers and others.
This was the last straw on the camel 's back.
The physical condition of the. place.
of occurrence may be noticed to.
appreciate the ocular evidence.
The house faced southward and lay along a public road with open space in the front covered by a.compound,wall in the front with no such wall on the remaining three sides.
In the front was a verandah and thereafter came the drawing room in which was installed a telephone.
Further to the north was.
a room and beyond that was a hall.
Then came another covered verandah with a tin sheet sloping roof at a height of about 7 feet from the ground level.
This was the ground floor accommoda tion.
The staircase.leading ' to the terrace was situate in the hall.
This staircase opened in a room leading to the open terrace.
This terrace room had an asbestos 'sheet projection whereunder there was an electric bulb.
The ter race had a parapet wall all round of the height of about 3 feet.
On the south west side of the terrace room along.
the parapet wall there existed a 24 feet long pial of the.
height of 20 inches and width of 18 inches.
A window in the western wall had a cement shade 4 feet x 2 feet in size, Adjacent to.
that window was a telephone pole hardly five feet away from the wall with the upper end hardly 6 1/2 inches from the cement shade.
The prosecution case is that this telephone pole was used by the assailants to launch the attack on the deceased.
The family of the deceased comprised of his wife PW 2, two daughters, one of whom was married and lived with her husband and, the other PW 1 was a medical student, and three sons none of whom was in town on that day.
Pw. 1 was study ing in the third year at Kakinada and had come home as the college was closed from April 12 to April 20, 1975.
PW 1 deposed that on the date of the incident after dinner she and her parents chit chatted for sometime and thereafter her father went to the terrace as it Was summer and retired for the night.
She continued to talk with her mother and in the meantime PWs 3 and 4 arrived.
They carried their beddings to the verandah and slept 607 there.
PW 3 used to sleep at their house since the last couples of years whereas PW 4 came there occasionally.
After they left for the verandah the witness closed the 'ground floor door to the house, carried an anatomy book and went to the terrace to sleep.
She read in the terrace light which was under the asbestos projection and then went to bed on the cot laid for her keeping the light on as was the usual practice.
Her mother did not sleep on the terrace as she was not allowed to climb the stairs since she had recently undergone an operation.
Her father was sleeping on the bed laid on the floor wearing a banian.
A hurricane lantern was also kept lighted on account of frequent power failures.
At about 3.30 a.m. she woke up hearing the cries of her father and saw accused No. 1 and 6 or 7 others stabbing her father with daggers.
She raised an alarm and tried to go to the rescue of her father but she was prevented by three of them from getting up.
According to her accused No. 3 had gagged her mouth with his hand and had pinned her down to the cot.
Thereafter accused No. 5 tried to stab her with a dagger twice but on both the occasions she warded off the blows and in the process sustained injuries on her left index finger, thumb and palm region extending to another finger.
Till the assailants had finished with her father she was pinned down to her bed and thereafter the assailants went to the west, climbed the parapet wall and went down the terrace.
She then ran down crying that accused No. 1, whom she knew since quite sometime, and his companions had killed her father.
She woke up her mother and informed her of what had hap pened.
On hearing a knock on the main entrance to the house, she opened the door and found PWs 3 and 4 holding a torch.
On inquiry she told them that accused No. 1 and his compan ions had killed her father and she too was injured.
She learnt from them that they had seen accused No. 1 and 4 or 5 others slide down the telephone pole situated to the west of the house.
She then tried to contact the police on phone but found that the same was disconnected.
Since PW 5 a neighbour was there she requested him to go tO the police station and fetch the police.
On receipt of information a Sub Inspector of police and a few constables arrived by about 5.00 or 5.30 a.m. to whom she narrated the incident whereupon her state ment was recorded which has been introduced on record as Exh.
The Sub Inspector held the inquest on the dead body between 7.00 and 10.30 a.m., drew up a panchnama of the scene of occurrence, attached the anatomy text book and other blood stained articles from the terrace, including the electric bulb from the socket of the electric holder on the terrace, At the identification parade held later she identi fied accused Nos. 3 and 5 as the companions of accused No. 1.
In cross examination she ' denied the suggestion that accused Nos. 3 and 5 were shown to her while they were in the sub jail before 608 she was asked to identify them.
It transpires from her cross examination that the defence case was that she had not slept on the terrace, that the cut injuries on her left hand were self inflicted and that she was falsely implicating accused Nos. 3 and 5 as they had supported her rival Padma in a college election when she was in the B.Sc.
class.
It was also suggested that photographs of accused.
Nos. 3 and 5 were shown to her from a group photo obtained from A.C. Mills Union Office.
It may be mentioned that the suggestions made to this witness in regard to the identity of accused Nos. 3 and 5 are self contradictory in the sense that if the suggestion that she was falsely involving these two accused because they had helped Padma who contested the election against her is correct it would follow that they were known to her since long in which case there would be no need to point them out to her while they were in the sub jail or to show their photographs to her.
Suffice it to say that.
nothing very striking, except minor contradictions, has been elicited in her cross examination which would shake her credibility.
PW 2, her mother, corroborates her say in regard to the incident and the involvement of accused No. 1.
PW 3 has deposed that since he and PW 4 anticipated danger to the life of the deceased on account of the dis turbed management labour relationship they slept at the house of the deceased.
PW 3 states that he saw eight persons sliding down the telephone pole.
Amongst them were accused Nos. 1 to 5 and S.V. Subbarayadu whom he identified as accused No. 6.
PW 4 has stated that on the date of the incident he had heard about the murder when he was at his residence at about 4.30 a.m.
He was treated as hostile and was allowed to be cross examined by.
the prosecution.
PW 5, whose house was only about 100 yards away, deposed that when he was sleeping on his terrace he heard cries at about 3.30 a.m. and went to the house of the deceased.
PWs 1 to 4 were present there alongwith other.
neighbours.
PWs 1 and 2 were.weeping while PWs 3 and 4 were trying to console them.
PW 1 asked him to inform the police that her father was murdered.
He then went and informed the police about the incident and returned with the police to the scene of of fence.
Thus the evidence of this witness also corroborates PW 1.
The inquest was!held between 7.00 and 10.30 ' a.m.
The statements of PWs 1 to 5 were also recorded and certain articles were attached from the terrace.
These included blood stained bed sheets, pillows, towel, shawl, shrit, etc., and Cunningham 's text book on.
human anatomy which PW 1 was reading before going to bed.
The telephone connection was found snapped and there were drops of blood from.
the place where the dead body was found till the drawing room down stairs where the telephone was: installed which.
corrobo 609 rated the story of PW 1.
The banian worn by the deceased, was blood stained and had cuts corresponding to injuries found on.
the chest of the deceased.
Several other articles found on the person.
of the deceased were blood stained.
There were as many as 33 injuries on the person of the deceased which is clearly indicative of the involvement of a group of persons in the killing.
This stands corroborated by the post mortem report.
On the cot which was occupied by PW 1 there were blood drops on the bed, bed cover and bed sheet.
The reports of the Chemical Analyser and Serologist, Exhs.
P 18 and P 19. show that all the articles were stained with human blood.
A lantern was burning nearby and the electric light on the terrace was also on.
This inquest panchnama Exh.
P 6 leaves no room for doubt that the inci dent occurred on the terrace portion of the residence of the deceased.
PW 1 was medically examined by the medical officer PW 13 on the same day at about 11.45 a.m. She had incised wounds on the left index finger 1/2" x 1/4", on the left hand below tile wrist 1" x 118" x 1/8", on the middle of the left palm 1" x 1/8" x 1/8" and on the little finger of left hand 1/2" x 1/8" x 1/8".
This would indicate that she received these injuries while trying to ward off the blows.
Identification parades were held on May 23, 1975.
In the first one accused Nos. 7, 10 and 11 were made to stand with non suspects, in the second parade accused Nos. 12, 13 and 16 were made to take their positions along with several others and in the last parade accused Nos.17, 18 and 19 were concerned.
PW 1 could not identify any one from amongst the said accused persons in all the three parades.
Out of the three parades PW 3 identified all the three accused of the second parade.
In the evening an identification ' parade was held concerning accused Nos.
2 to 6 and 9.
PW 1 could iden tify. 'accUsed Nos. 3 and 5 while PW 3 could not identify any of them.
The defence of all the accused was of total 'denial and false involvement.
In fact accused No. 1 contended that.he was out of station from May 13, 1975 and learnt of the murder on his return to Proddatur.
When he learnt of his false involvement he surrendered before the Court.
Accused Nos. 12, 13 and 16contended that they were shown to PW 3 before the identification parade while accused Nos. 3 and 5 pleaded that the police had taken a group photograph in which they figured from the union office and had shown it to PW Accused Nos. 7, 11, 14, 15, 17 and 19 were not examined under section 313 of the Criminal Procedure Code as no evidence incriminating them was tendered on record.
No defence witness came to be examined.
610 The learned Additional Sessions Judge, Cuddapah, came to the conclusion that the prosecution had failed to establish the charge of criminal conspiracy under section 120B, I.P.C. He came to the conclusion that the evidence on record, however, indicated that accused Nos. 1 to 6 had a direct and strong motive to kill the deceased and the likelihood of the others having shared their feelings could not be ruled out altogether.
The direct testimony of PWs 1 to 5 and the other circumstantial evidence adverted to earlier established beyond any manner of doubt that the incident occurred at 3.30 a.m. on the terrace of the residence of the deceased.
The learned Judge held that intimation of the incident was given to the police without loss of time and PW 1 had lodged her complaint by about 6.00 a.m. when the police came to the scene of occurrence alongwith PW 5 who had gone to call them.
The suggestion that injuries found on the person of PW 1 were selfinflicted or that PW 2 was giving false evidence as she was promised financial help to the tune of Rs. 1,50,000 were brushed aside by the learned Judge as totally imaginary ,and unfounded.
The learned Judge, however, did not treat PW 1 's complaint EXh.
P 1 as admissible in evi dence as he came to the conclusion that it was hit by sec tion 162 of the Code since information regarding the inci dent had reached the police station through PW 5.
The learned trial Judge, therefore, accepted the evidence of PWs 1, 2, 3 and 5 as reliable and convicted them as stated earlier while acquitting their companions.
The said three convicted accused preferred an appeal, being Criminal Appeal No. 812 of 1976, in the High Court.
,State also preferred an appeal for awarding capital punish ment to accused No. 1, being Criminal Appeal No. 807 of 1976.
The State 's appeal came to be dismissed and that is where the matter rests.
However, the appeal by the convicted accused came to be allowed and the appellants were acquit ted.
It is against the said order of acquittal that the State has approached this Court by way of special leave.
It would, therefore, be proper to ascertain the grounds on which the impugned order of the High Court is founded.
The High Court came to the conclusion that the complaint of PW 1 was not recorded at the time it purports to have been for if it were so it would not have reached the con cerned Magistrate as late as 1.40 p.m.
In that case even the inquest report Exh.
P 6 would not have been delayed till 10.55 p.m.
The explanation for the delay found in Exh.
P 25 cannot be accepted at its face value.
The evidence of PW 1 is tainted, in that, although she knew accused No. 1 as he visited her father quite often the rest of the assailants were total strangers and yet 611 the names of accused Nos. 2 and 4 appear in her statement Exh.
P 1 which goes to show that she was tutored into giving their names.
That according to the High Court raises a serious doubt regarding her trustworthiness.
On the question of identity of accused Nos. 3 and 5, the High Court points out that even before the identification parade she had told the Magistrate that she would be able to identify only two persons and later pointed an accusing finger at accused Nos. 3 and 5 at the identification parade.
This, says the High Court, reinforces the defence version that she was shown the group photo before she was called to identify the accused persons.
The identification parade was delayed upto May 23, 1975 as till then the photograph was not secured by the police.
In the circumstances the High Court did not find the evidence of PW 1 regarding the identity of accused Nos. 3 and 5 acceptable.
The High Court also held that the injuries on the left hand of PW 1 were in all probability self in flicted, more so because she is not a left hander.
So also the absence of blood stains on the bed lying on the floor of the terrace casts a serious doubt regarding her version of the incident.
The High Court found the prosecution story that the electric light as well as the kerosene lamp were kept on throughout the night rather unusual.
In this view of the evidence, the High Court did not consider PW 1 a truth ful witness.
As regards PW 3 the High Court found his ver sion that he slept at the residence of the deceased since sometime unacceptable.
It also noticed that PW 3 claimed to know accused Nos. 1 to 6 by their names and he gave out those names to the police and yet he could not identify any of them at the test identification parade.
For this reason the High Court did not place reliance on his evidence.
The High Court, therefore, found the evidence led by the prose cution untrustworthy and acquitted the accused/appellants.
Hence the present appeal.
Mr. Madhav Reddy, the learned counsel for the appellant State contended that the presence of PW 1 at the time of the incident was not only deposed to by PWs 2 and 3 but also by PW 5.
The presence of PW 3 at the house at about 4.30 a.m. is deposed to even by the hostile witness PW 4.
He, therefore, submitted that the presence of PWs 1 to 5 is clearly established and is reinforced by the evidence of PW 13, the medicalman, who examined PW 1 at the Government Hospital at about 11.45 a.m. on the same day.
The Sub In spector PW 24 also deposes that PW 5 had told him that PW 1 had sent him to report the murderous assault on her father.
He submitted that once the presence of PWs 1 and 3 was established there was no reason to doubt their testimony merely because PW 3 was honest enough not to falsely involve any one by pointing an accusing finger at the identification 612 parade.
He submitted that even PW 1 was honest enough to identify only two persons, namely, accused Nos. 3 and 5, Whom she had an occasion, to see near her cot on the ter race.
To reject her evidence as regards the identity of these two accused on the specious plea that their photo graphs were shown to her '.
before the identification parade would be, to say the least, unjust.
If she could be shown the photograph why not PW 3 also! He also submitted that it was preposterous to hold that the injuries found on the left hand of PW 1 were self inflicted.
The absence of blood on the bed sheet of the bed on the floor of the terrace clearly explained that the deceased must have rolled onto the ter race floor where the presence of blood was noticed.
He, therefore, submitted that the High Court had reversed the well reasoned judgment of the. trial court on totally imagi nary grounds which had resulted in grave miscarriage of justice.
Mr. R.K.Garg, learned counsel for the respondents/ac cused, submitted that this Court should not interfere with the decision of the High Court ' unless it ' finds the view taken by the High Court as perverse and wholly improper, resulting in miscarriage of justice.
In support he cited State of Jammu & Kashmir vs Hazara Singh & Anr., [1980] Supp, SCC 641.
He also submitted that the investigating agency had shown extra zealousness as the deceased was a prominent lawyer and an ex MLA.
Supporting the view of the ' High Court he urged that the presence of PW 1 was highly doubtful and in any case it would be risky to rely on her interested testimony regarding the identity of accused Nos. 3 and 5.
The 'absence of blood on the bed shows that the same was planted after the event to concoct the story that PW 1 ' was sleeping on the cot and not downstairs with her mother PW 2 who ' had recently undergone an operation. ' Once the evidence of PW 1 is excluded there is no direct testimony since PW 3 had not identified any of the accused at the identification parades.
In short he supported the judgment of the High Court and prayed that we should not interfere in exercise of our extra ordinary powers under Article 136 of the Constitution.
The motive for the commission of the crime was the indus trial unrest occasioned on account of the strike by the workers of the International Packaging 'Company and later by the transport workers.
Indisputably accused No.1 commanded considerable clout over the employees of various industrial units such as the International Packaging Company, Andhra Cotton Mills and the transport industry in Proddatur.
Accused No. 1 was championing the cause of the workmen during the.
prolonged agitation and strike by the workers of the Inter 613 national Packaging Company and also spearheaded the agita tion by the transport workers.
The deceased was the lawyer for the managements and was considered the main obstacle, in the realisation of the workers* demands.
There was, there fore, animosity between the deceased and accused No. 1.
This is more than clear from the oral evidence of PWs 2.3.4, 10.
11.21 to 23 and from the documentary evidence tendered as Exhs.
P 2 to P 5.
P 30 to P 37 and P 40 to P 55.
In view of this overwhelming documentary evidence which corroborates the ocular evidence of the aforesaid prosecution witnesses, it is established beyond any manner of doubt that the rival ry between the trade unions headed by accused No. 1 and the managements.
advised by the deceased had assumed ugly.
proportions.
The starting of the INTUC branch at Proddatur with the active participation of the deceased was perhaps the last straw on the camel 's back which worsened the rela tions between accused No. 1 and the deceased.
This is the motive according tO the prosecution for the crime in ques tion.
But as has often been commented bitter animosity can be a double edged Weapon which may be instrumental for deliberate false involvement or for the witnesses wrongly inferring and strongly believing (without having actually witnessed it) that the crime must have been committed by the rival group.
This possibility has to be kept in mind while evaluating the prosection evidence regarding the involvement of accused No. 1 and his companions in the commission of the crime.
There is no dispute regarding the description of the residential house of the deceased and the location of the telephone pole to the west thereof.
It is not disputed that the said pole could be conveniently used for slidding down from the terrace.
So also the fact that the telephone con nection was snapped is not put in issue.
The fact that the incident occurred on the terrace is not disputed but the fact that the deceased was sleeping on the floor and PW 1 was sleeping on the cot is disputed.
It was suggested in the course of cross examination of the prosecution witnesses that the deceased alone was sleeping on the cot on the terrace and PW 1 was in fact not in town and even if she was in town she must have been sleeping with PW 2.
Lastly the fact that the deceased died a homicidal death on receipt of as many as 33 injuries is not disputed The find of human blood on the various articles attached by the police, i.e. those worn by the deceased as well as PW 1 and those found lying on the terrace, is clearly established by the reports Exhs.
P 18 and P 19 which have not been questioned.
It is in this background that we must consider if the High Court has commit.
ted any grave error requiring interference under Article 136 of the Constitution.
614 On the question of presence of PW 1 in Proddatur on the date of the incident, apart from the oral evidence of PWs 1 to 3 and 5, there is the documentary evidence in the form of the entry Exh.
56 recorded by PW 24 in the general diary on April 15, 1975 at about 4.30 a.m.
That entry was made on the information supplied by PW 5.
It is clearly stated therein by PW 5 that he had been told by PW 1 that her father was murdered at his residence.
It was on receipt of this infor mation that the police went to the house of the deceased, drew up the inquest report and recorded the statements of those present there including PW I. The presence of PW 1 is, therefore, clearly established by this document prepared within an hour from the time of the incident.
This contempo raneous document corroborates the oral evidence of the aforesaid witnesses.
She was examined by the medical officer PW 13 on the same day at about 11.45 a.m.
In addition there to, the find of the Anatomy book and slippers on the ter race, also lends assurance to the prosecution evidence in this behalf.
Therefore, even if it is assumed that the time of recording her statement ' Exh.
P 1 is not correctly re corded, her presence at the scene of offence at the material time is established beyond a shadow of doubt.
Accused No. 1 was a friend Of the deceased till they fell out.
He was a regular visitor to the house of the deceased and, therefore, PW 1 knew him quite intimately.
She has frankly admitted that others were strangers but she was able to identify accused Nos. 3 and 5 because she had an opportunity to see them from close quarters when they were near her cot.
The existence of a cot and a bed on the ter race is indicative of the fact that two persons were sleep ing on the terrace.
There were only three family members present on the date of the occurrence, one of whom was PW 2 who had undergone surgery only recently and was advised not to climb the stairs.
It is, therefore, obvious that the deceased and PW 1 slept on the terrace.
The submission that the bed on the floor was planted is based on the fact that there was no blood on the bed sheet of that bed.
But this submission overlooks the existence of blood drops nearabout the bed.
The dead body of the victim was also found lying on the terrace floor nearby.
The High Court relied on the photograph Exh.
D 4 for holding that the bed was fresh and unused.
But as is apparent from the, crossexamination of PW 24 that the said photograph shows "the bed sheet spread over the bed on the cot is tucked beneath the bed".
Thus the said photograph is not of the bed on the floor.
The High Court seems to have misread the evidence.
Secondly, it is clear that the dead body was lying at some distance from the bed suggesting that the deceased had rolled over during the night or in the course of the attack.
The 615 other articles lying nearby e.g towel, shawl, etc.
were blood stained and there Were fresh drops of blood between the dead body and the western waif leading to the telephone pole.
Since there were Only three family members one of whom, PW 2, had undergone an operation in the recent past, it is difficult to understand how PW 1 alone could shift the dead body of her father from the cot to the place where it was found to concoct evidence against the accused.
It is too much to attribute such intelligence to PW 1 or for that matter PW 3 also.
If the dead body which was bleeding had in fact been shifted there would have been blood drops from the cot to the place where it was found.
Besides, where was the time for the entire exercise? PW 5 was sent to call the police and he had returned with the police after his report was entered in the general diary at 4. 30 a.m. It.
there fore, seems difficult to believe that the bed on the floor was planted to support the prosecution version that PW 1 slept on the terrace that night.
The medical officer PW 13 found four incised wounds on the left hand of PW 1, possible by a sharp cutting weapon like a dagger or knife.
These injuries were indeed minor in nature.
The High Court has concluded that the possibility of these injuries being self inflicted cannot be ruled out, PW 1 says she received these injuries in the process of warding off the blows aimed at her.
PW 13 also deposes that these injuries could have been received while trying to ward off the blows on her.
Thus the medical evidence supports her say.
However, in crossexamination he stated that all the four injuries were cut injuries and not stab wounds.
In response to a suggestion made in cross examination he stated that the possibility of the injuries being self inflicted was not an impossibility.
Merely from this suggestion and PW 1 not being a left hander the High Court concluded that the possibility of the injuries being self inflicted could not be ruled out.
With respect, the High Court failed to realise that when an injury is on an accessible part of, the body which the individual can himself reach, such any injury could also be self inflicted and when a medical witness is asked if it was possible to self inflict it he would have to answer in the affirmative unless the direction 'of the injury or such other factors show otherwise.
But merely because the medical officer says that they could be selfin flicted, there is no reason.
to jump to such a conclusion unless ' circumstances establish such a possibility.
In the present case there was hardly any opportunity to self in flict them.
Her not being a left hander should make no difference because she is bound to.
use that hand to ward off the blows if her assailant is on that side of her bed.
We, therefore, feel that the High Court was not justified in concluding that PW 1 had self inflicted the wounds found on her left hand.
With 616 respect, this conclusion of the High Court is, to say the least, wholly conjectural and totally against the weight Of evidence on record.
The delay in Sending the FIR Exh.
P 1 to the Magistrate has been seriously commented upon by the High Court while rejecting the explanation given in Exh.
This comment has lost its significance as the said document has not.been admitted in evidence by both 'the courts below on the ground that it is hit by section 162 of the Code.
We would have examined the explanation if that document.
had formed part of the record. ' Any way that cannot impinge On the credibil ity of PW 1 if her evidence is otherwise acceptable, which we find it is '.
On the question of identity it is clear from the evi dence of PW 1 that accused No. 1 was known to her quite well Since before the incident.
She could, therefore, have no difficulty in identifying him even in poor light.
Immediate ly after the accused fled she ran down and informed her mother that accused.
No. 1 and his companions had killed her father.
Since PW 1 had not disclosed the name of accused No. 1 as one of the assailants to PW 5, the latter did not speak about him to the police and hence his name does not appear in the FIR recorded at 4.30 a.m.
Accused No. 1 pleaded an alibi: which he miserably failed to probabilise.
The absence of names of assailants in the general diary entry made on the basis Of information supplied by PW 5 at the behest of PW 1 has weighed considerably in the High Court doubting the version regarding the involvement of accused No. 1 in the commission of the crime.
It must, however, be realised that PW 1 had disclosed the name of accused No. 1 at the earliest point of time when the complaint Exh.
P I and the inquest report Exh.
P 6 were recorded.
It must also be realised that,PW 1 was under terrible strain at that time.
Not only had this young girl lost her father in a ghastly assault, she had also to look after her ailing mother: and console her.
She frantically tried to inform the police on telephone but found the instrument dead with the wires snapped.
therefore, asked this young boy aged 'about 16 years, PW 5, to go to the police station and fetch the police.
There was hardly any time to give details of the incident.
Under the circUmstances the absence of the name of accused 'No. 1 as One of the assailants in the entry made in the general diary at the instance of PW 5 is quite understandable.
Once it is accepted that PW 1 had slept on the terrace and had sus tained the injuries in the incident, her evidence regarding the identity of accused No. 1 who was quite well known to her cannot be doubted. 'We are, therefore, of the view that the High Court was not justified in disturbing the view taken by the trial court in this behalf.
617 That takes us to the question of the involvement of accused Nos. 3 and 5.
The evidence of PW 1 is that when she heard the cries of her father she woke up and saw accused No. 1 and six or seven others belabouring him.
This means that she did not know and could not identify the companions of accused No. 1.
However, when she tried to raise an alarm three of the assailants approched her and pinned her down to the bed, and one of them threatended to stab her.
He did carry out his threat as is evident from the injuries sus tained by her.
She Was able to identify two of them 'at the identification parade held on May 23, 1975.
This is proved through the 'evidence of PW 14 who conducted the test iden tification parades Now accused Nos. 3 and 5 had surrendered before the court on May 13, 1975.
PW 14 received the requi sition for arranging a test identification parade on May 17, 1975.
The identification parade was actually held on May 23, 1975.
There ' is no valid explanation tendered by the prose cution for the delay in holding the.
identification parades.
The defence has suggested in the cross examination of PW 1 and PW 25 that in the meantime the accused who were in custody were shown to the witnesses and the police had secured a group photograph in which accused Nos. 3 and 5 figured to facilitate their identification.
The High Court was, however, reluctant to place absolute reliance On the evidence of PW 1 regarding the identity of accused Nos. 3 and 5.
In the absence of a ,valid explanation for the delay we do not think that this approach of the High Court can be said to be manifestly wrong to call for our intervention. ' In the result this appeal is partly allowed insofar as it relates to original accused No. 1 i.e., respondent No. 1 before us.
The High Court 's order acquitting him is set aside.
The appeal is, ' however, dismissed so far as original accused Nos. 3 and 5 i.e., respondent Nos. 2 and 3 before us are concerned We restore the order of conviction and sen tence of original accused NO.
1 respondent No. 1 recorded by the learned Additional Sessions Judge, Cuddapah for his involvement in the crime with several other unknown persons.
We, however, give the benefit of doubt to original accused Nos. 3 and 5, i.e, respondent Nos. 2 and 3 and confirm the order of their acquittal recorded by tire High Court.
The original accused No. 1 respondent No. 1 will submit to his bail forthwith The bail bonds in respect of other two respondents will stand cancelled.

dataset_name: IN-Abs

summary:
One Ram Subba Reddy, an advocate, politician and a tradeunionist, was murdered on the night between 14th and 15th April, 1975, at his house in Proddatur, when the de ceased is stated to have received fatal blows by lethal weapons whilst his daughter (PW 1), sleeping nearby received injuries when she attempted to go to help her father.
Ac cording to the prosecution, Accused No. 1 (Respondent No. 1), was a friend and a regular visitor to the house of the deceased, till they fell out on account of trade union activities.
Accused No. 1 was the President of the workmen 's unions of Andhra Cotton Mills, Proddatur, International Packaging Company, Proddotur and Transport Workers, espous ing the cause of workmen and directing their union activi ties while the deceased, a practising Advocate represented the managements of these companies and tendered legal advice to them in connection with the various labour problems arising in those companies.
The deceased who was a lawyer for the companies had advised the accused No. 1 not to resort to violence for settlement of industrial disputes.
The fact that infuriated accused No. ' 1 further was the help which the deceased agreed to provide to PW 11 for setting up an office of INTUC in his own office.
This was intended to counter the militant activities of Accused 1 who was in control of most of the labour unions in the town.
According to the prosecution at about 3.30 a.m. on the day of occurrence, PW 1 who was sleeping on the terrace of the house nearby her father, woke up bearing the cries of her father ans saw accused 1 with 6 or 7 others stabbing her father with daggers.
She raised an alarm and tried to go to rescue her father but she was prevented by three of them from getting up; accused No. 3 had gagged her mouth with his hand and had pinned her down to the cot.
Thereafter accused 5 tried to stab her with a dagger twice but on both the occasions she warded off the blows and in the process sus tained injuries on her left index finger, 601 thumb and palm extending to another finger.
After the as sailants left, she got down and informed her mother PW 2 about the incident; she opened the door to PWs 3 and 4, who were sleeping outside.
She sent a message to the police through PW S, her neighbour, as telephone lines were cut.
The police took up investigation and 19 persons including the respondents were put up for trial before the Additional Sessions Judge, Cuddapah on different charges e.g. criminal conspiracy, rioting and murder, etc.
The learned trial judge came to ie conclusion that the prosecution had failed to establish the Charge of criminal conspiracy under Section 120B, I.P.C. It accepted the testimony of PWs 1to 5 and held (i) that the incident occurred at 3.30 a.m. on the terrace of the residence of the deceased; (ii) the injuries borne on the fingers of PW 1 were not self inflicted as suggested by defence and (iii) that the intimation of the incident was the police without loss of time.
Accordingly the trial Judge convicted Accused Nos. 1 and 3 under Sections 148 and 302 and Sec. 324 with the aid of Section 149, I.P.C. and accused No. S under Section: 148, 302 and 324, I.P.C. and sentenced all the three to life imprisonment for murdering Ram Subba Reddy and to rigorous imprisonment for 3 years under section 148, IPC.
The other 16 accused were acquitted.
The convicted persons appealed to the High Court and the State filed an application for enhancement of the sentence imposed on Accused No. 1 to capital punishment.
The High Court allowed the appeal by the convicted persons and acquitted them.
Hence this appeal by the State against the order of acquit tal, by special leave.
The High Court bold that the evidence of PW 1 is tainted in that the names of accused 2 and 4 who were strangers to her figure in her statement Exh.
P 1 and further her statement regarding identity of Accused 3 and S was unacceptable.
The High Court therefore found the evi dence led by the prosecution untrustworthy.
and thus acquit ted the accused appellants before it.
Partly allowing the appeal, this Court, HELD: On the question of presence of PW 1 in Proddatur on the date of the incident, apart from the oral evidence of PWs 1 to 3 and 5, there is the documentary evidence in the form of the entry exhibit S6 recorded by PW 24 in the general diary on April 15, 1975 at about 4 30 a.m.
That entry was made on the information supplied by PW 5.
It is clearly stated therein by PW S that he had been told by PW 1 that her father was murdered at his residence.
It was on receipt of this information that the police went to the house of the deceased, drew up the inquest report and recorded the state ments of those present there including PW 1.
The presence of PW 1 is, therefore clearly established 602 by this document prepared within an hour from the time of the incident.
This contemperaneous document corroborates the oral evidence of the aforesaid witnesses.
[614A.C] The High Court failed to realise that when an injury is on an accessible part of the body, which the individual can himself reach, such an injury could also be self inflicted and when a medical witness is asked if it was possible to self inflict it he would have to answer in the affirmative unless the direction of the injury or such other factors show otherwise.
But merely because the medical officer says that they could be self inflicted, there is no reason to jump to such a conclusion unless.
circumstances establish such a possibility.
In the present case there was hardly any opportunity to self inflict them.
Her not being a left hander should make no difference because she is bound to use that hand to ward off the blows if her assailant is on that side of her bed.
The High Court was not justified in con cluding that PW 1 had self inflicted the wounds found on her left hand.
This conclusion of the High Court is, to say the least, wholly conjectural and totally against the weight of evidence on record.
[615F 616A] Once it is accepted that PW 1 had slept on the terrace and had sustained the injuries in the incident, her evidence regarding the identity of accused No. 1 who was quite well known to her cannot be doubted.
[616G] The evidence of PW1 is that when she heard the cries of her father she woke up and saw accused No. 1 and six or seven others belabouring him.
This means that she did not know and could not identify the companions of accused No. 1.
However, when she tried to raise an alarm three of the assailants approached her and pinned her down to the bed, and one of them threatened to stab her.
He did carry out his threat as is evidenced from the injuries sustained by her.
She was able to identify two of them at the identification parade held on May 23, 1975.
This is proved through the evidence of PW 14 who conducted the test identification parades.
Now accused Nos. 3 and S had surrendered before the Court on May 13, 1975.
PW 14 received the requisition for arranging a test identification parade on May 17, 1975.the identification parade was actually held on May 23, 1975 There is no valid explanation tendered by the prosecution for the delay in holding the identification parades.
The High Court was reluctant to place absolute reliance on the evidence of PW 1 regarding the identity of accused Nos. 3 and 5.
In the absence of a valid explanation for the delay, the Court did not think that this approach of the High Court can be said to be manifestly wrong to call for intervention.
[617A E] 603 The Court, in the result, partly allowed the appeal in so far as it related to original Accused No. 1 respondent No. 1 set aside the High Court 's order acquitting him and restored the order of trial Judge convicting and sentencing him.
The Court affirmed the High Court 's order of acquittal passed in respect of other accused, giving them the benefit of doubt.
[617E G] State of Jammu and Kashmir vs Hazara Singh & Anr., , referred to.


judgement:
ivil Appeal No. 3447 of 1990.
From the Judgment and Order dated 26.4.1990 of the Madhya Pradesh High Court in Misc.
Petition No. 4059 of 1989.
Rajinder Sachar, Vijay Gupta, Vivek Gambhir, S.K. Gamb hir and Surinder Karnail for the Appellant.
B.S. Banthia, S.S. Khanduja and S.K. Agnihotri for the Respondents.
The Judgment of the Court was delivered by RANGANATHAN, J.
Getting an admission into a professional course has become so difficult and competitive of late that litigation instituted by disappointed candidates has become a regular feature.
431 This appeal, arising out of such a context, throws up for consideration certain aspects which call for a difficult exercise in balancing equities.
We, therefore, proceed to discuss the facts and issues at some length.
The appellant Dr. Ku.
Nilolaf Insaf and respondent No. 4, Dr. Devraj Jain, were competitors for a single seat in the Master 's Degree (M.D.) course in Radiology at Gandhi Medical College, Bhopal.
The appellant got admission to this seat in preference to Dr. Jain because she had obtained average marks of 59.60 per cent in the examinations of the M.B.B.S. course whereas Dr. Jain had obtained only 58.50 per cent.
Dr. Jain successfully challenged the admission granted to the appellant in preference to himself in a writ petition in the Madhya Pradesh High Court.
Dr. Insaf, who has for feited her admission in consequence of the judgment of the High Court, has filed the present appeal.
In order to appreciate the circumstances in which the admission granted to the appellant was quashed by the High Court, though she had admittedly got a higher percentage of marks than Dr. Jain, it is necessary to set out a few fur ther facts.
Dr. Jain and Dr. Insaf both completed their M.B.B.S. course in the years 1983 87.
However, while Dr. Jain had been admitted into and completed that course in the Gandhi Medical College, Bhopal, the appellant had initially joined her M.B.B.S. course in the M.S. Ramayya Medical College, Bangalore, wrote the first examination and complet ed the first year of the M.B.B.S. course there.
Thereafter, in August 1984, she made an application for her transfer to the Gandhi Medical College, Bhopal.
Her request was granted by the Gandhi Medical College with the approval of the State of Madhya Pradesh and with "no objection" from the Ramayya Medical College.
Thereafter she sat in the second and third examinations pertaining to the MBBS degree along with Dr. Jain and completed her MBBS course along with Dr. Jain in 1987 from the Gandhi Medical College, Bhopal.
Thereafter, both of them cleared their internship of one year and also joined a house job in Radiology in the same college and completed the same in August 1989.
It was at this stage that both of them applied for being admitted to the M.D. course with the result already set out.
As already mentioned, it is not in dispute that, if the total number of marks obtained by the two contestants in all the examinations of the M.B.B.S. degree are taken and re duced to an "effective" percentage and a common maximum as per the rules, Dr. Nilofar does get a higher percentage of marks than the respondent.
In fact, we 432 find from the papers filed before us that another candidate, Dr. Km.
Indu Fotedar, had obtained a percentage of 59.04 which was also higher than the percentage obtained by Dr. Jain.
However, she is no longer in the race for a seat in M.D. (Radiology) as she appears to have joined the M.D. course in medicine that was offered to her.
Thus it was that the Radiology seat went to Dr. Insaf.
Dr. Jain 's challenge to the admission granted to the appellant cannot be a direct one as the latter had clearly secured higher percentage of marks than himself in the M.B.B.S. examinations.
He, therefore, attacks her candida ture for the M.D. course on other grounds which may be described as collateral or indirect.
According to him, the transfer of the appellant from the Bangalore Medical College to the Bhopal Medical College was itself invalid and he urges that, since the very admission of the appellant to the M.B.B.S. degree in the Bhopal College was invalid, she could not at all have been considered for admission to the M.D. course which was available only to the institutional candi dates.
The grounds on which the transfer of the appellant from Bangalore to Bhopal is challenged by Dr. Jain are: (a) The appellant had appeared in the pre medical test for admission to medical colleges in Madhya Pradesh.
It is not known whether she passed the test or did not get a sufficiently high rank but the fact is that she did not get admission in any of the medical colleges in Madhya Pradesh.
To overcome this difficulty, she joined the Bangalore Medical College (the admission to which did not perhaps require qualification in a pre medical examination) by paying a capitation fee.
She has thus circum vented the requirement of a pre medical test by getting admitted first at Bangalore and then getting a transfer to Bhopal; (b) According to the rules, no transfer of a candidate to a medical college in Madhya Pradesh was permissible to students of medical colleges outside the State who had secured admission in a college after paying a capita tion fee, development fee or 'donation in any form.
As the appellant had obtained admission in the Bangalore college by paying a capita tion fee, her application for transfer to the Bhopal Medical College could not and ought not to have been entertained; (c) The rules also require, where a person makes an application for a transfer to a medical college in Madhya Pradesh, that the application should state the grounds on which he got admission 433 in a medical college of another State and whether he had appeared for a pre medical test or similar examination of.
that State.
The appellant 's application for transfer did not contain any reference to this crucial aspect which was fundamental to a valid transfer to the college in Madhya Pradesh; (d) Even assuming that the transfer itself was not bad, a comparison between the marks ob tained by the appellant and those obtained by the respondent was not a fair or proper one.
The appellant had appeared for one examination at Bangalore and two examinations at Bhopal whereas Dr. Jain had appeared for all the three examinations at Bhopal/At Bangalore, for the first year, the appellant had three papers whereas in the Bhopal college there were only two papers in the first year.
Having regard to the disparity in the syllabus, the subjects for the examination, the standards of valua tion and quality of teaching the comparison between himself and the appellant was not valid.
If at all a comparison had to be made, it should have been made by excluding the marks got by both in the first examination and taking into account Only the marks obtained by them in the other two examinations which were common to both.
The above contentions found favour with the High Court quashed the admission of the appellant and directed Dr. Jain to be admitted to that seat.
Hence the present appeal.
In our opinion, contentions (a) and (d) cannot stand by themselves and rest, for their validity, on contentions (b) and (c).
While it is true that the appellant does not appear to have qualified in the premedical test for admission to colleges in Madhya Pradesh, it cannot be said that she has circumvented the rules by first getting admitted to the Bangalore college and then seeking a transfer to Bhopal; that course, if permissible under the rules, was unobjec tionable.
So also, the last contention by itself has no force.
It is well known that, in these competitive days, students are not able to get admission, in the first in stance, in an institution at their own place and have, very often, to seek admission elsewhere initially and then try to get a transfer back.
This is also envisaged by the rules which permit the transfer of a student only after the first year course is completed.
In such cases, if a valid transfer is made, the position is as if the candidate has completed the course in the second place and the rules (the validity of which are not in issue) permit a comparison of the aver age of marks obtained by the candidates in all the examina tions after reducing them as a 434 percentage of a uniform maximum.
There can, therefore, be no doubt that such transfers and comparisons can be valid and permissible.
The real question, therefore, is whether there has been a valid transfer on the facts of the present case.
An annexure has been filed before us it was also before the High Court which purports to set out the "rules for transfer of the students from other medical colleges to Madhya Pradesh State medical colleges".
Though the High Court and the parties before it proceeded on the basis that these were "rules" governing transfer, there has been some controversy before us on this to which we shall advert later.
The following rules are relevant for our present purpose: 1.
The applications from students for transfer from Medical Colleges outside the State and studying in 1st M.B.B.S. (Pre Clinical block) will not be considered.
Applications of those candidates who have cleared the 1st M.B.B.S. examination of the university in Anatomy & Physiology (including Biochemistry) and are studying in higher classes will be considered provided the Col lege in which he was studying was a Medical Council of India approved College.
Applications of only those will be consid ered who satisfy the following conditions in accordance with the premedical examination rules of Madhya Pradesh (a) possessed minimum qualification for ap pearing in the pre medical examination at the time of admission.
(b) is a bona fide resident of Madhya Pradesh as per rules of Pre medical Examination of M.P. (c) was within the prescribed age limit as per rules of Premedical Examination of Madhya Pradesh at the time of admission.
Government would consider relaxation of rules in respect of those candidates who are married to a Government Servant employed in the Madhya Pradesh State.
Applications of those candidates for trans fer from 435 Medical Colleges outside the State will not be considered who have secured admission in a College after paying capitation, development fee or donation in any form.
Application should also state the grounds on which he got admission in a Medical College of another State and whether he had appeared for pre medical test or similar examination of that State. 9.
The appellant will submit a 'No Objec tion ' Certificate of the concerned Medical College and the University where he was study ing before his transfer.
The applicant will submit his applications with all the required information first to the Dean, Medical College where he wants to be transferred and the application will then be routed through the Chairman, Pre Medical Examination Board to Government for final orders.
On the basis of these rules, the objec tions to the transfer raised on behalf of Dr. Jain may now be considered: (a) A submission was made that the Bangalore college is not an approved medical college (vide rule 2 above) but this is not substanti ated.
The document relied upon in support of this contention is only a list of medical colleges in India published by the Health Ministry of the Central Government.
There is no mention in it that only these colleges and none else have been approved by the All India Medical Council.
Also, the list does not bear a date.
It appears to be an old one and does not refer to any college recognised after 1979.
There is nothing to show that the Banga lore medical college was established before that.
That apart, it appears that the Banga lore college is affiliated to the Bangalore University, and there is no reason to believe that it was not an approved medical college.
(b) The objection that the transfer is bad because the appellant had not qualified in a pre medical test, conducted either in Madhya Pradesh or in Bangalore, does not appear to be well founded.
While the rules no doubt contain a reference to premedical tests, rules 3, 5 and 13 make it clear that the passing of a pre medical test is not a pre requisite for a transfer.
No doubt rule 4 requires that the application for transfer should say whether the applicant had appeared for a pre medical or similar 436 test in the State from which a transfer is sought.
The omission of the appellant in the present case to mention this in her applica tion may be a defect but, in the absence of any clear rule to the effect that a pass in a pre medical test is an essential condition for transfer, it cannot be treated as a vital defect vitiating the transfer.
(c) There is, however, force in the contention that the transfer in the present case was violative of the first part of rule 4.
This clearly precludes the consideration of an application for transfer from a person who had gained admission to a medical college on payment of a capitation fee, development fee or donation.
Neither the appellant nor the State contradicted Dr. Jain 's averment in the writ petition that the appellant had secured admission in the Bangalore college only on the basis of such payment.
There is, therefore, an infringement of rule 4 atleast in part and we shall proceed to consider the effect of the same.
But before we proceed to do so, we should like to digress a little to make some general observations.
From the facts stated earlier, it is not clear how, in the face of the specific provisions contained in the rules, the appellant 's transfer was considered and sanctioned, particularly when the application had to be scrutinised by a number of authorities: the Bhopal medical college, the Chairman of the Pre medical Board referred to in rule 13, the University of Bhopal and the State Government.
It is difficult to believe that they were not conscious that the limitations imposed by the rules operated in this case.
The application of the appellant (a copy of which has been placed before us) contained a bare and simple request for transfer and nothing more and the authorities did not even care to call for the details required under the rules before taking a decision.
The respondent has alleged that this was done by reason of the influence exerted by the appellant 's father but this is not substantiated.
All that has been brought out is that the appellant is a resident of Bhopal and her father is a doctor practising at Bhopal.
In the circumstances we think that the authorities must have acted bona fide on considerations of sympathy towards, and the hardship of, the appellant in pursuing her course of study for a number of years at distant Bangalore.
They must have thought that their decision would only help the appellant and harm no one.
But the facts of the present case show how even well meant decisions, which seem innocuous at the time they are taken, can rebound in the long run and affect the interests of others in manner that could not have been even conceived of earlier.
It is, 437 therefore, necessary to emphasise that, in matters of this type, the authorities should carefully and strictly apply the relevant rules.
Now reverting to the question as to the impact of this infringement of the rules on the situation in the present case, Sri Sachar, appearing for the appellant, puts forward two aspects for consideration.
In the first place, he sub mits that the rules relied upon for the respondent are merely internal guidelines or instructions not having the force of law and that a deviation therefrom here or there would not affect the validity of the order accepting the application for transfer.
Sri Sachar may be right in saying this but unfortunately, both parties and the High Court have proceeded on the basis that there were "rules" i.e. some instruments having statutory force.
No material has been placed before us either to support or repel this assumption and so we will not be justified in treating them to be otherwise.
However, we think that, even if they are viewed as "rules" they should not be treated as rigid, inflexible and mandatory, having in mind the context and purpose in which they are made.
These are rules setting out circum stances in which the application for transfer will be grant ed and deal with a matter primarily concerning the applicant and the authorities.
The validity of an order for transfer may be challenged contemporaneously by a third party whose claim for admission or transfer is superseded by such order but cannot be al lowed to be challenged by a third party because he finds, in retrospect, at a future point of time, that it has affected his interests as a result of subsequent events.
We would, therefore, hold that the order of the State of Madhya Pra desh permitting the transfer of the appellant cannot be struck down as void.
There has been some irregularity but, in the circumstances in which it was passed, it was one within the competence of the State Government.
The second answer, furnished on behalf of the appellant to Dr. Jain 's challenge is that Dr. Jain was aware, even as early as 1987, that in the order of merit of M.B.B.S. candi dates the appellant ranked higher than the respondent.
Apart from the fact that this was just a matter of arithmetic, an "order of merit" had indeed been published by the University at the time the medical graduates of 1987 were being consid ered for house jobs.
Reference is made in this context to a chart entitled "Merit list for the selection of House Offi cers, Gandhi Medical College, Bhopal, for the year 1988" placed at p. 68 of the paper book before us This list is incomplete but it contains the names, in order of merit, of 58 students who had completed M.B.B.S. in 1987 438 who had, apparently, applied for house jobs in the college.
It sets out their aggregate marks in the M.B.B.S. examina tions with certain adjustments and also the effective per centage thereof.
The appellant 's percentage is shown as 59.60 and his rank as 37; Dr. Indu Fotedar is at 44 with a percentage of 59.04; and Dr. Jain is No. 49 with a percent age of 58.50 Sri Sachar invites our attention to the "Rules for Postgraduation (M.D./M.S. course) in clinical, para clinical and nonclinical disciplines, in medical colleges in Madhya Pradesh".
These rules provide a scheme whereby (a) the marks obtained by candidates in the M.B.B.S. examina tions (sometimes at different colleges and universities which have different maxima for the examinations) are to be standardised to a common maximum; (b) adjusted by giving certain penalty marks (for example, where a candidate has made extra attempts in any examination) and bonus marks (where he has some special distinctions in academics or extra curricular activities: for example, distinction in a subject or National Cadet Corps certificates); and (c) determining the "effective marks" and their percentage.
The process of selection of merit candidates for the post gradu ate course is outlined in rules 8.1 to 8.3.
They read thus: "8.1 Merit candidates in clinical subjects shall be selected from out of those who are completing their house jobs within that ca lender year.
8.2 Candidates under 8.1 shall be selected by the Dean of the Medical College, strictly on the basis of merit from amongst the students passing from that college, on the recommenda tion of the college and Hospital Council or the P.G. Committee of the college. 8.3 The merit list of candidates under 8.1 and 8.2 would be prepared by each Dean of the College every year and notified on the College Notice Board.
Any objection or representation received within 10 days of notification would be considered by the Dean of the College who shall make modifications, if necessary, after placing the objection or representation before the College and Hospital Council or P.G. Committee.
" On the strength of these rules, Sri Sachar contends that the respondent, not having preferred objections to the merit list referred to earlier, is now estopped from challenging the merit list.
439 We find that there is a good deal of confusion about the relevant facts in this regard.
In the High Court, the re spondent 's case was that he had duly filed his objections to the merit list of 1989 in July 1989 and well within time.
The list that is relied upon by him is a list published by the Dean which bears the heading "Particulars of the candi dates who have applied for registration in M.D. Radiology for the year 1989" placed at page 49 of the paper book.
It contains 9 names (including Drs.
Insaf, Jain and Fotedar) and the details of their period of study and internship.
The last two columns are headed "Effective Marks" and "Effective Percentage".
They are not, however, arranged in order of merit but are arranged on a different basis.
The first four names are of candidates who had applied for the M.D. course in Radiology, whereas the others had applied also for admis sion to M.D. courses in other subjects.
It is on the basis of this list apparently, that the selections were made and, in his petition for special leave before us, the appellant also admitted this position.
Sri Sachar, however, contends, that the earlier list produced by him (p. 68) is the merit list referred to in the rules and not this one which does not even purport to be a "merit list".
The merit list of 1988 (p. 68) was clearly one prepared in the context of selection for house jobs in 1988.
The rules regulating admissions for that purpose have not been placed before us.
We can only guess from the contents and columns in the list that they apparently run on the same lines as the rules for admission for M.D.
If this be treated as the merit list referred to in rule 8.3, of the relevant rules, Dr. Jain is clearly precluded from challenging it after one year.
But rule 8.3 refers to merit list for selec tion of candidates for the diploma course being published every year.
None of the parties including the college au thorities have been able to clarify whether (apart from the list at p. 49 of the paper book) any "merit list" for the year 1989 in respect of admission to M.D. courses, on the pattern of the list at p. 68, had at all been published by the Dean of the college.
In this context, we should ' point out that the list earlier published (p. 68) contained all the relevant details for preparation of such a merit list.
There is nothing before us to show that the procedure for adjustment, standardisation and averaging were not the same for preparing a merit list for selection of house officers as for the selection of candidates to the M.D. courses outlined in rule 8.5 (and this appears to be so from the adjustment columns in the list at p. 68).
The only differ ence is that this list is restricted only to the nine candi dates seeking admission to the M.D. course in radiology.
Apparently, having regard to the small number of applicants for the course in question, the authorities merely.
440 prepared a short list containing the relevant extracts regarding effective marks and percentage from the earlier list without calling it a merit list and made the selec tions.
In the circumstances, we think that there can be no practical or legal difficulty in treating the list at p. 49 as the relevant merit list for the present purpose.
Learned counsel for Dr. Jain is, therefore, correct in saying that, in this view, he could and did lodge his objections within the time specified in rule 8.3 and he cannot be precluded from contesting the correctness or validity of the list on the grounds of delay.
On strictly legal considerations, therefore, the respondent cannot be shut out from raising his objections at this stage.
But, it seems to us, questions of this nature cannot be decided on considerations of pure law.
Granting that it is open to Dr. Jain to challenge the merit list, one has to examine whether there are any limits to the scope of such challenge on grounds, if not of law, of justice and equity.
Of course, he can challenge the correctness of the order of merit, he can challenge any errors in the marks taken into account or the adjustments made thereto, and he can even challenge the eligibility of any of the candidates for consideration.
But there are abvious limitations to such challenge.
For example, it would seem difficult to say that one can challenge the correctness of the marks that one of the other candidates has obtained in the examinations and call for the revaluation of some or all of his papers or to permit a contention that one of the candidates has not been properly awarded the M.B.B.S. degree and that, therefore, his application should be ignored.
Their having obtained the marks noted in the list or a degree of a university or secured a transfer are actual events that have happened.
There may have been some irregularity at some earlier stage but it does not go to the root of the matter so as to render the qualification void abinitio capable of being ignored, without anything more, at any time for any purpose.
The position may be different where a person is claiming under a bogus degree.
The appellant has obtained the degree after a regular course; the only grievance is that she should not have been permitted to do part of it in a particular col lege.
The legality or validity of such qualifications must be directly challenged and got set aside in independent proceedings.
To permit a collateral attack on them in other proceedings, as here, will be beset with problems and com plications of a far reaching magnitude.
For obvious reasons, limitations have to be imposed on the grounds available for such challenge.
The need for such circumspection will be better appreciated if another situation of a similar nature is considered.
Suppose the competition between the two present contestants had arisen, 441 not, as it has, just two years after the M.B.B.S. degree, but, say, fifteen years later, when they both apply for a post in a hospital or Government open to M.B.B.S. graduates.
If, in that situation, it should be contended for Dr. Jain that the appellant cannot be considered for the post because her transfer to the Bhopal medical college was bad and, consequently, that the M.B.B.S degree obtained by her was not valid, we think the answer to the contention must pat ently be in the negative.
The need to avoid disturbing settled issues which affect the life and career of an indi vidual after a lapse of time or after the interposition of further events, as a result of which he has rightly de veloped a sense of security, has been emphasised by this Court in Mudgal vs Singh, 1 relying on the earlier decisions in Makashi vs Menon, ; and Malcolm Lawrence Cecil D 'Souza vs Union, [1975] Supp SCR 409.
What should be a reasonable period beyond which, or the intervening developments because of which, such challenge cannot be permitted must depend on the facts and circum stances of each case.
In the present case, there are valid considerations why Dr. Jain should not be allowed to challenge the merit list at this point of time.
We have referred earlier to the plea of Dr. Jain that he has challenged the merit list of 1989 within the period of time mentioned in the rules.
Technical ly, he is right, as we have already held.
But if we look at the position more closely, we find that the precedence of the appellant over Dr. Jain crystallised as soon as the M.B.B.S. results were published.
We do not know whether any merit list of the results of the examination were published or not at that time but it cannot be that Dr. Jain was not aware that the appellant had got higher percentage of marks than himself.
At any rate, this became clear when the merit list was published for the house jobs in August 1988.
It is true that the place accorded to the appellant in that list did not prejudice Dr. Jain in his selection for the house job.
Still, the rules of the university make it clear that the aggregate and average marks in the M.B.B.S. course would also be material for admission to the M.D. course.
The merit list of 1989 is nothing but a reproduction of the merit list of 1988 confined to a narrower group of students of the same batch.
The latter did show the appellant to have obtained more marks than Dr. Jain and, in this sense, was adverse to his interests.
The omission of Dr. Jain to challenge the correctness of the list then lulled the appellant into a sense of security that the merit list was acceptable to all.
We, therefore, think that Dr. Jain should be barred, on equitable considerations, from challenging the order of merit at the present stage.
Another important consideration which prevents us from giving 442 any relief to Dr. Jain even if we accept all his conten tions is this.
The M.D. course, admission to which is the bone of controversy, started in August 1989 and is coming to a close shortly.
Though the appellant lost in the High Court, she was permitted by this Court though, obviously, subject to the result of this appeal to continue attending the classes for M.D. in Radiology.
Now she has almost com pleted her course and, to deprive her of her seat at this stage, apart from irretrievably harming her, will not bene fit Dr. Jain who cannot now be admitted against the M.D. seat of 1989.
This again is a development which militates against the grant of any relief to Dr. Jain.
Before we conclude, we should like to touch upon one more aspect.
The course of events narrated above will show that Dr. Jain has been the victim, partly, of a lapse on the part of the medical college authorities in properly applying the rules governing transfer and, partly, of courts ' delay in disposing of his writ petition and the present appeal.
In the course of the hearing, therefore, we were tempted to consider whether we should give some relief to Dr. Jain by directing the authorities to consider his case for admission to the M.D. course atleast this year.
On careful thought, however, we find it difficult to make any specific direc tions or recommendations for a number of reasons.
In the first place, we are told that Dr. Jain has, in the meantime, undergone and completed a diploma course in Radiology and, in terms of a rule recently promulgated, is not eligible to apply for the M.D. course for another three years, even if he is interested to do so.
Secondly, as noted already, the rules permit admission in M.D. in any year only to candi dates who have finished their house jobs in that year and, Dr. Jain having completed his house job in 1989, may not be eligible to be considered for admission this year.
Thirdly, if any direction of the above nature is given by us, it will operate to the prejudice of some other candidate who is eligible for admission to that course in the normal course.
Fourthly, it would not also have been possible for us even if we had come to the conclusion that Dr. Jain and not the appellant should have been admitted in 1989 to direct the University to carry forward that vacancy and grant him admission to it now.
We therefore refrain from giving any directions to the authorities in the matter as had been mooted in the course of the hearing.
For the reasons above mentioned, we have come to the conclusion that the appeal should be allowed and the appel lant 's admission to the M.D. Radiology course 1989 91 should be upheld.
We direct accordingly.
No costs.
Y.L. Appeal allowed.

summary:
The appellant and Dr. Jain, respondent No. 4, completed their M.B.B.S. course in the years 1983 87.
from Gandhi Medical College, Bhopal.
While Dr. Jain had been admitted into that course in the Gandhi Medical College, Bhopal after he had passed the entrance test, the appellant first sought admission to M.B.B.S. course in the M.S. Ramayya Medical College, Bangalore, after paying the capitation fee and after completing the first year of the course in that Col lege she got herself transferred in 1984 to the Gandhi Medical College, Bhopal, with the approval of the State Government and with no objection from the Ramayya College, Bangalore.
After passing M.B.B.S. both of them cleared their internship of one year and also joined a house job in Radiology in the same college and completed the same in August 1989.
Both of them then applied for a single seat in the Master 's Degree (M.D.) course in Radiology at Gandhi Medical College, Bhopal.
The appellant having secured higher marks got admission to this seat in preference to Dr. Jain.
Dr. Jain, thereupon, challenged the admission of the appellant by means of a writ petition before the High Court on the ground inter alia that the transfer of the appellant from the Bangalore Medical College to the Bhopal Medical College was itself invalid and since the very admission of the appellant to the M.B.B.S. course degree in the Bhopal College was invalid, she could not at all have been considered for admission to the M.D. course which was available only to the institutional candidates.
The High Court allowed the writ petition, quashed the admission of the appellant and directed that Dr. Jain, be admitted to that seat.
Hence this appeal by the appellant.
Allowing the appeal, this Court, HELD: The validity of an order for transfer may be chal lenged 430 contemperaneonsly by a third party whose claim for admission or transfer is superseded by such order but cannot be al lowed to be challenged by a third party because he finds, in retrospect, at a future point of time, that it has affected his interests as a result of subsequent events.
[437E] The order of the State of Madhya Pradesh permitting the transfer of the appellant cannot be struck down as void.
There has been some irregularity hut, in the circumstances in which it was passed, it was one within the competence of the State Government.
[437F] There is the need to avoid disturbing settled issues which affect the life and career of an individual after a lapse of time or after the interposition of further events, as a result of which he has rightly developed a sense of security.
[441B] In the instant case, the merit list of 1989 is nothing but a reproduction of the merit list of 1988 confined to a narrower group of students of the same hatch.
The latter did show the appellant to have obtained more marks than Dr. Jain and, in this sense, was adverse to his interests.
The omis sion of Dr. Jain to challenge the correctness of the list then lulled the appellant into a sense of security that the merit list was acceptable to all.
Dr. Jain, should therefore be barred, on equitable consideration from challenging the order of merit at the present stage.
[441G]