judgement:
ivil Appeal No 138 of 1955.
Appeal from the judgment and decree dated October 15, 1953, of the Mysore High Court at Bangalore in Regular Appeal No. 255 of 1950 51, arising out of the order dated September 18, 1950, of the Court of the District Judge, Bangalore, in Misc.
Case No. 39 of 1947 48.
G. Channappa, Assistant Advocate General, Mysore R. Gopala Krishnan and T. M. Sen, for the appellant ' A. V. Viswanatha Sastri, M. A. Rangaswami, K. R. Sarma and K. R. Choudhury, for the respondent.
November 7.
The Judgment of the Court was delivered by section K. DAS, J.
This appeal by the Special Land Acquisition Officer, Bangalore, has been brought to this Court on a certificate granted by the High Court of Mysore, and is from the decision of the said High Court dated October 5, 1953, in a regular appeal from an order made by the 2nd Additional District Judge, Bangalore, on September 18, 1950, on a reference under section 18 of the Land Acquisition Act (herein.
after referred to as the Act).
The facts so far as they are relevant to the appeal before us are these.
An area of about 51,243 squard 406 yards of land was acquired by Government under Notification No. M. 11054 Med.
80 45 25 dated April 16, 1946, for development of the Appiah Naidu Maternity Home at Malleswaram, Bangalore City, into a Maternity Hospital.
There were eight owners interested in the property acquired, out of whom two objected to the award made by the Special Land Acquisition Officer, now appellant before us.
One of these two was T. Adinarayana Shetty, a diamond merchant of Mysore City.
Originally, he was the respondent before us, and on his death his son and legal representative has been brought into the record as the sole respondent to this appeal.
The deceased respondent Adinarayana Setty (hereinafter called the respondent) was interested in 48,404 sq.
yards out of the total area, and it may be stated here that there is no dispute before us that out of the said 48,404 sq.
yards an area of about 3,000 sq.
yards consists of land which has been variously characterised as a depression or a pit or low lying land (called 'halla ' in the local vernacular language).
Out of the total amount of compensation awarded by the Special Land Acquisition Officer, a sum of Rs. 1,41,169/was awarded to the respondent.
The Special Land Acquisition Officer proceeded on the following basis for his award.
Firstly, he found that the land value in and around Bangalore City had increased in recent years owing to the war and the respondent had paid to the Deputy Commissioner, Bangalore District, a sum of money called a conversion fine for sanctioning a scheme of converting the land into non agricultural land.
Thereafter, a layout for building sites was prepared and approved by the Municipality and the res pondent sold a few of the sites shown in the layout to some purchasers.
This was done before the publication of the preliminary notification of acquisition; but the sale of further building sites was stopped after the said publication.
Secondly, the Special Land Acquisition Officer took into consideration the value of the sites sold by the respondent and came to the conclusion that Rs. 10/ per sq.
yard was the market value of the land in question.
He awarded to the respondent compensation for approximately 48,404 sq. yards at the 407 rate of Rs. 10/ per sq. yard, but after deducting therefrom an area of 26,248 sq. yards which, according to the Special Land Acquisition Officer, was required for making roads and drains as per the layout scheme.
The total amount thus calculated came to Rs. 2,21,563.
and odd and from this a sum of Rs. 98,807 was again deducted as representing the expenditure which would be required for making roads and drains.
The net amount was thus found to be Rs. 1,22,756 and odd and adding 15% as the statutory compensation payable to the respondent the total amount awarded by, the Special Land Acquisition Officer to the respondent, came to Rs. 1,41,169/ .
Against this award, the respondent raised an objection, and a reference was accordingly made to the District Judge of Bangalore under section 18 of the Act.
This reference was heard by the 2nd Additional District Judge who, by his order dated September 18, 1950, came to the following conclusions: (i) that the rate awarded by the Land Acquisition Officer at Rs. 10/ per sq.
yard was fair and should be,upheld; (ii) that a sum of Rs. 10,000/ for providing electric installation out of the sum of Rs. 98,807/ deducted by the Land Acquisition Officer from the compensation payable to the respondent should not be deducted; and (iii) that with regard to the area of the low lying.
land which I was completely excluded by the Land Acquisition Officer, the respondent should get at the rate of Rs. 3/ per sq. yard or approximately a sum of I Rs. 10,000/ .
In other words, the learned Additional District Judge increased the compensation in favour of the respondent by a sum of about Rs. 20,000/ .
Not being satisfied, the respondent preferred an appeal to the High Court of, Mysore.
The learned Judges of the High Court found that the proper compensation for the land,.
except the portion characterised as low lying, should be Rs. 13/8/per sq. yard and as to the low lying portion it should be reduced by Rs. 51 per sq.
yard inasmuch as a sum of Rs. 15,000/ was necessary, according to the 408 evidence given in the case, for filling it up; in other words, the High Court awarded compensation at the rate of Rs. 8/8/ per sq. yard for the low lying land.
The High Court also reduced the area which had to be deducted for making roads, etc., according to the layout scheme from 26,248 sq.
yards to 12,101 sq.
yards.
It also reduced the layout charges to Rs. 64,432/ .
The High Court added to the compensation a sum of Rs. 7,000/ as the value of a building which the respondent had constructed on one of the sites on the finding that the construction was made prior to the preliminary notification.
In this respect the High Court departed from the finding of the Land Acquisition Officer that the building was put up after the publicaion of the preliminary notification.
The total amount of compensation which the High Court awarded came to about Rs. 4,80,000 and odd.
As the judgment of the High Court was a judgment of reversal and the appellant felt dissatisfied with it, a certificate of fitness was asked for and was granted by the High Court on July 6, 1954.
The present appeal has been brought to this Court in pursuance of that certificate.
The appellant has confined his appeal to the following three points: (1) payment of compensation of a sum of Rs. 7,000/ for the building said to have been constructed before the publication of the preliminary notification; (2) payment of compensation at Rs.
,8/8/per sq. yard for the low lying land (halla); and (3) payment of compensation at Rs. 13/8/ for the remaining land after deducting the area for making roads and buildings.
We may state that there is no dispute before us now as to the area which should be so deducted and also as to the amount of layout charges, as the findings of the High Court on these two points nave not been challenged before us.
On behalf of the respondent our attention has been ' drawn to the decisions of the Privy Council in Charan Das vs Amir Khan (1), Narsingh Das vs Secretary of State for India (2) and Nowroji Bustomji Wadia vs (1) (1920) 47 I.A. 255.
(2) (1924) 52 I.A. 133.
409 Bombay Government (1).
On these decisions it is submitted by learned counsel that though section 26 of the Act was amended in 1921 by insertion of sub section
(2) which says that every award shall be deemed to be a decree ' and thus an appeal therefrom must be considered and determined in the same manner as if it is a judgment from a decree in an ordinary suit the established practice of the Privy Council has been not to interfere with a finding on the question of valuation, unless there is some fundamental principle affecting the valuation which renders it unsound.
The practice, it is stated, was based on two considerations: first, that the courts in India were more familiar with local conditions and circumstances on which the valuation depended and, secondly, the Privy Council found it necessary to limit the extent of the enquiry in order to spare the parties costly and fruitless litigation.
On behalf of the appellant it is submitted that this Court has no doubt adopted the practice that it will not ordinarily interfere with concurrent findings of fact, but this Court has no such established practice as was adopted by the Privy Council in valuation cases even where a difference of opinion has occurred between two courts upon the number of rupees per yard to be allowed for a plot of land.
He has further submitted that the reasons for the practice adopted by the Privy Council do not apply with equal force to this Court.
In view of the facts of this case and the opinion which we have formed after hearing learned counsel for both parties, we do not think it necessary to make any final pronouncement as to the practice which this Court should adopt in a valuation case where two courts have differed.
We are content to proceed in this case on the footing that we should not interfere unless there is something to show, not merely that on the balance of evidence it is possible to reach a different conclusion, but that the judgment cannot be supported by reason of a wrong application of principle or because some important point affecting valuation has been overlooked or misapplied.
(1) (1925) 52 I.A. 367.
52 410 We are satisfied that there is no error of principle or otherwise in the findings of the High Court as to the first two points urged in support of the appeal.
As to the construction of the building for which a compensation of Rs. 7,000 has been awarded, the clear finding of the High Court is that it was constructed prior to the preliminary notification.
It has been further stated before us that the building is in actual occupation of the medical department.
Learned counsel for the appellant has taken us through the evidence on the question of construction of the house and the application for a licence for building the said ' house which was made by the respondent to the Bangalore Munici pality.
We are unable to hold that that evidence has the effect of displacing the clear finding of the High Court.
As to the low lying land, we consider that the High Court has given very good reasons for its finding.
Admittedly, the area of the low lying land (halla) is about 3,000 sq.
yards.
The Land Acquisition Officer valued it at Rs. 3 per sq. yard.
A sum of Rs. 15,000 has been deducted from the compensation payable to the respondent on the ground that that amount will be required for filling up the low lying land and converting it into building sites.
Therefore, the position is that the respondent has not only been made to part with 3,000 sq.
yards of land at 3 per sq. yard, but he has also been made to pay Rs. 15,000 for filling up the land.
If these two figures are added, even then the market value of the land comes to about Rs. 8 per sq. yard.
This is so even if we do not follow the method adopted by the High Court that the sum of Rs. 15,000 for 3,000 sq.
yards gives an average of Rs. 5 per sq. yard and that amount should be deducted from the rate of Rs. 13 8 0 per sq. yard fixed as the proper compensation for the remaining land.
We are of the opinion that on the materials before us the value per sq. yard fixed by the High Court for the low lying land is fully justified even on adoption of the method suggested by learned counsel for the appellant.
Learned counsel for the respondent has referred us to the circumstance that some of the sales 411 of building sites which the respondent had made appertained to the low lying land and he has further emphasised the circumstance that just opposite the low lying land which is at the eastern end of the entire area, some houses had been built.
We have taken these circumstances into consideration, but do not think that the conclusion which learned counsel for the respondent wishes us to draw follows therefrom.
First of all, it is by no means clear that the sales of the building sites at the low rate of Rs. 6 8 0 or thereabout appertained to the low lying land only, and, secondly, the mere circumstance that some buildings have been made on land opposite the low lying lands but on the other side of the road, does not necessarily mean that the low lying lands are as valuable as the other land in the area.
We are therefore of the view that the compensation fixed by the High Court for the low lying land is not vitiated by any error of the kind which will justify our interference with it.
We now proceed to consider the third and main point urged on behalf of the appellant, namely, the rate of 13/8 per sq. yard for the other land in the area.
Learned counsel for the appellant has submitted before us that the High Court has committed two fundamental errors in arriving at this finding.
Furthermore, the High Court has been influenced by extraneous considerations such as the purpose for which the land was acquired, the report of certain medical authorities as to the unsuitability of the land for the purpose for which it was acquired, and the delay in putting the land to the use for which it was acquired.
We agree with learned counsel for the appellant that these were extraneous considerations which had no bearing on the question of valuation and the learned Judges of the High Court misdirected themselves as to the scope of the enquiry before them when they imported these considerations into the question of valuation.
We further think that the High Court committed an error of principle in arriving at the figure Rs. 13/8 and the error was committed by adopting a wrong method in ascertaining the market value of the land at the 412 relevant time.
It is not disputed that the function of the court in awarding compensation under the Act is to ascertain the market value of the land at the date of the notification under section 4(1) and the methods of valuation may be (1) opinion of experts, (2) the price paid within a reasonable time in bonafide transactions of purchase of the lands acquired or the lands adjacent to the lands acquired and possessing similar advantages and (3) a number of years ' purchase of the actual or immediately prospective profits of the lands acquired.
In the case under our consideration the High Court adopted the second method, but in doing so committed two serious errors.
There were altogether seven transactions of alienation made by the respondent.
One was a gift which must necessarily be excluded.
The earliest of the sales was in favour of Muniratham which was made on May 15, 1945.
Another was made on July 18, 1945.
This was in favour of Venugopal who was the husband of a grand daughter of the respondent.
Four other transactions in favour of Kapinapathy, Puttananjappa, Shamanna and Rajagopal Naidu were made in August, 1945.
The notification under section 4 of the Land Acquisition Act was made on October 4, 1945.
What the learned Judges of the High Court did was to take only four out of the aforesaid six transactions into consideration and then to draw an average price therefrom.
The learned Judges gave no sufficient reason why two of the transactions were left out.
In one part of their judgment they said : " The evidence discloses that the appellant has effected four sales about a couple of months prior to the date of preliminary notification and the rates secured by him are Rs. 12, 15, 14 and 7/8 which on calculation give an average of Rs. 12/2 per sq. yard ".
Why the transaction of May 15, 1945, which was at a rate of Rs. 6/8 per sq. yard only was left out it is difficult to understand.
Similarly, the transaction of July 18, 1945, was at the rate of Rs. 10 per sq. yard.
That also was left out.
We are of the view that this arbitrary selection of four transactions only out of six has vitiated the finding of the High Court.
If all the six transactions of sale are taken into consideration, the average rate comes to about Rs. 10/13 per sq. yard only.
Having arbitrarily discarded two of the transactions, the learned Judges of the High Court committed another error in taking a second average.
Having arrived at an average of Rs. 12/2 per sq. yard from the four transactions referred to above, they again took a second average between Rs. 15, which was the maximum price obtained by the respondent, and Rs. 12/2.
Having struck this second average, the learned Judges of the High Court arrived at the figure of Rs. 13/8.
No sound reasons have been given why this second average was struck except the extraneous reasons to which we have already made a reference.
It is obvious that the maximum price Rs. 15 per sq. yard had already gone into the average when an average was drawn from the four transactions.
It is difficult to understand why it should be utilised again for arriving at the market value of the land in question.
We are of the view that if the aforesaid two errors are eliminated, then the proper market value of the land in question is Rs. 11 only.
Learned counsel for the appellant has drawn our attention to the claim made by the respondent himself before the Land Acquisition Officer (exhibit 11).
The respondent had therein said: Hence, under the standing orders compensation has to be paid at rates for building land in the neighbourhood.
This rate ranges from Rs. 10 to Rs. 12, an average of Rs. 10 a sq. yard, as could be verified from entries in the local Sub Registrar 's Office and Bangalore City Municipal Office.
At any rate, I myself have sold in the course of this year some six sites out of the land proposed to be acquired for rates ranging from Rs. 7 to Rs. 15 or on an average of Rs. 10 per sq. yard.
At this rate the compensation amount will be Rs. 5,12,430 and adding the statutory allowance of Rs. 76,860 at 15 per cent.
on the compensation amount on account of the compulsory nature of the acquisition, the total cost of the land will be Rs. 5,89,290 or nearly six lakhs of rupees.
" 414 The learned Judges of the High Court took the aforesaid claim to mean that the average rate was Rs. 10 ,per sq.
yard, only if the entire area was taken into consideration; but the rate would be different if small building sites were sold according to a layout scheme.
It is worthy of note, however, that in his claim the respondent clearly stated that even as building land the average rate in the neighbourhood ranged from Rs. 10 to Rs. 12 per sq. yard and he had himself sold six building sites at an average rate of about Rs. 10 per sq. yard.
It is worthy of note that the six transactions to which the respondent referred were sales of small building sites.
It appears to us, therefore, that the High Court had in effect given the respondent a rate more favourable than what he had himself claimed.
We consider, therefore, that on a proper consideration of the materials in the record and after eliminating the two errors which the High Court had committed, the proper value of the land in question should be Rs. 11 per sq. yard.
The result, therefore, is that we allow this appeal to this limited extent only, namely, the order of the High Court will be modified by substituting the figure Rs. 11 per sq. yard for the figure Rs. 13/8 awarded by the High Court as compensation to the respondent for land other than the low lying land.
We maintain the order of the High Court that the parties will receive and pay costs in proportion to their success and failure, as now determined, in the courts below; but so far as the costs of this Court are concerned, the parties must bear their own costs in view of their divided success here.
Appeal partly allowed.

summary:
Certain land belonging to the respondent was compulsorily acquired by the Government for a maternity hospital.
Most of the land consisted of building sites but there was a building on a small portion of the land and a portion was low lying land.
The Special Land Acquisition Officer held on the basis of the value of sites previously sold by the respondent, that the market value of the land was Rs. 10/ per sq. yard and awarded a sum of Rs. 1,41,169/ to the respondent as compensation.
He did not give any compensation for the low lying land or for the building.
Against this award the respondent raised an objection and a reference was made to the District judge.
The District judge accepted the rate of Rs. 10/ per sq. yard as fair, reduced the amount of deductions for providing electric installations by Rs. 10,000/ and allowed a sum of Rs. 10,000/ for the low lying area at the rate of Rs. 3/ per sq.
yard, thereby increasing the amount of compensation by Rs. 20,000/ .
Not being satisfied the respondent appealed to the High Court.
The High Court held that the rate of compensation for the land except the low lying portion, should be Rs. 13/8/ per sq yard and for the low lying portion it should be Rs. 8/8/ per sqyard.
It further awarded a sum of Rs. 7,000/ for the building.
In arriving at the figure of Rs. 13/8/ the High Court took into account only four sale transactions which had been made by the respondent at the rates of Rs. 12, I5, 14 and 7/8/ per sq. yard but did not take into consideration two other transactions which had been made by the respondent at the rates of Rs. 6/8/ and Rs. 10 per sq. yard.
It calculated the average of the four transactions to be Rs. 12/2/per sq. yard and then took a second average between Rs. 15/ , 405 which was the maximum price obtained by the respondent and RS.
12/2/ and arrived at the figure of Rs. 13/8/ .
The High Court was also influenced by considerations such as the purpose for which the land was acquired.
, the report of certain medical authorities as to the unsuitability of the land for the maternity hospital and the delay in putting the land to the use for which it was acquired.
Held, that with regard to the valuation of the land, other than the low lying portion, the High Court misdirected itself by taking into account extraneous considerations and had committed an error of principle in arriving at the figure of Rs. 13/8/ by adopting a wrong method of ascertaining the market value.
The High Court ought to have taken the average of all the six sale transactions and arrived at the proper valuation of Rs. 11/. per sq. yard.
There was no justification for ignoring two of the sale transactions or for taking a second average.
With respect to the compensation for the low lying land and the building there was no error of principle or otherwise in the findings of the High Court and no interference was called for.


judgement:
tition No. 226 of 1986.
(Under Article 32 of the Constitution of India).
WITH Civil Appeal No. 1263 of 1990.
From the Judgment and Order dated 28.4.1989 of the Central Administrative Tribunal, Hyderabad in T.A. No. 1146 of 1986.
Dr. L.M. Singhvi, Dr. Gauri Shankar, C. Mukopadhya, P.N. Misra and H.S. Parihar, for the Petitioners.
Madhava Reddy, Vivek Gambhir, S.K. Gambhir, R.D. Upadhyaya and Surender Karnail for the Respondents.
The Judgment of the Court was delivered by RANGANATH MISRA, J.
Petitioners are employees under the State Insurance Corporation, respondent No. 1.
According to the notification dated 22nd of April, 1977, issued in exer cise of powers 121 conferred by section 97(1), ( 1, 2)(xxx), section 2A and section 17(2) of the , (hereinafter re ferred to as 'the Act ') which came by way of supersession of the Employees State Insurance Corporation (Recruitment) Regulations, 1965, the post of Insurance Inspector/Manager Grade II was treated partly as selection and partly as nonselection.
There was no age limit for departmental candi dates and two thirds of the vacancies were to be filled up promotion and onethird by competitive examination under the Rules.
By advertisement dated 6th August, 1983, applications were invited for filling up the one third vacancies by direct recruitment to the category of post of Insurance Inspector/Manager Grade II.
The petitioners in this applica tion under article 32 of the Constitution responded to the said advertisement and were in due course declared as successful in the test.
In consideration of the fact that a good number of vacancies were then existing and in anticipation of the position that more vacancies were about to occur, a select list was drawn up for the existing and future vacancies.
In the said select list petitioners featured at Sr.
114, 116, 121, 159, 171, 172 and 188 respectively.
The panel was notified and in accordance with the practice petitioners along with other successful candidates were individually intimated by respondent No. 2 on 1.9.1984.
As already, indicated, the direct recruitment was on the basis of examination and interview.
The advertisement did not prescribe any pass marks in the interview though for the written examination 40% was prescribed.
Selection was, however, made on the basis of 40% in the interview test and those who did not secure 40% in the interview were not selected.
Challenge was made by the unsuccessful candidates questioning their rejection by contending that in the ab sence of any prescription of pass marks for the interview test, there was no justification to apply the 40% basis.
Writ Petitions were also filed when the respondents instead of appointing people from the panel of successful candidates went on filling up existing vacancies out of the category of promotees.
Such petitions were pending before the Calcutta, Madras and Andhra Pradesh High Courts when the Central Administrative Tribunals came to be set up.
These were transferred to the respective Benches of the Central Admin istrative Tribunals and on being clubbed were disposed of by a common judgment dated 28th of April, 1989, by the Hydera bad Bench of the Central Administrative Tribunal.
The Tribu nal held: "We would direct in these cases that the respondents shall work out and estimate the vacancies available upto 20th 122 June, 1986 accurately (we have used the word 'accurately ' as an apprehension has been expressed that direct recruits are not getting their due since over 320 posts were filled up between May, 1986 and December, 1988 by promotees on ad hoc basis or otherwise).
After such estimation, the respondents shall deduct therefrom 116 vacancies which have already been filled and make available the remaining vacancies to the applicants and others who took the examination on the basis of aggregate marks, i.e. total marks obtained in the written test and the oral interview.
Such of the applicants in all the three cases before us and heard by us at Hyderabad, Madras and Calcutta, who come within the zone of selection in accordance with this procedure as directed by us would be entitled to appointment.
" The writ petition is by the successful candidates whose names appear in the panel but who have not been given ap pointments.
They have contended that the respondents were entitled to the issue of appointment orders to them inasmuch as vacancies exist and there was no indication that the life of the select list would expire either at the end of one year or on the expiry of the further extended period of six months and when there has been no fresh select list as yet.
The decision of the Central Administrative Tribunal referred to above has been assailed by special leave chal lenging the direction of the Tribunal that the fresh select list filling up the remaining vacancies as on 20th June, 1986, should be prepared on the basis of total marks ob tained in the written examination and interview in disregard of the qualifying marks for the latter.
We granted special leave and have heard the writ petition and the civil appeal together.
As already indicated, the last list on the basis of recruitment examination was drawn up in 1984.
There have been a good number of vacancies then existing and subse quently a number of them have arisen as against which only 116 appointments have been made, including 16 out of the reserved categories.
At one stage of the hearing we had indicated to Shri Madhav Reddy, appearing for the respond entCorporation that the existing vacancies should be filled up out of the panel of 1984 and in answer to this sugges tion, an affidavit has been filed to say that candidates have been waiting for the holding of fresh recruitment examination and if out of the panel of 1984 all the existing vacancies are directed to be filled up, they would be frus trated.
There is force in the submission.
The Tribunal in its decision has indicated 123 that even upto 20th June, 1984, there were some vacancies which were available to be filled up out of the panel.
On account of respondents ' inaction in holding of annual re cruitment examinations, vacancies have accumulated.
Keeping all these aspects in view, we direct that 50% of the vacan cies existing upto 31st of December, 1989, relatable to the one third quota should be filled up out of the panel after giving credit to 116 appointments noticed by the Tribunal.
The remaining vacancies should be filled up by holding of a fresh recruitment examination latest before 30th of Septem ber, 1990.
So far as the remaining question that was debated before the Tribunal is concerned, we are of the view that the scheme intended for recruitment should be on the basis of an examination comprising of written test and interview.
We agree with the submission of Shri Madhav Reddy that inter view has its own place in the matter of the selection proc ess and the choice of the candidate.
Once this is recog nised, it would be appropriate to require every candidate to pass the interview test and for that purpose there should be a basic limit provided.
In the absence of any prescription of qualifying marks for the interview test the same pre scription of 40% as applicable for the written examination seems to be reasonable.
That has been the view expressed by one of us (Punchhi, J.) in a decision (Rajesh Sood & Ors.
vs Director General, Employees State Insurance Corporation & Anr., decided on August 7, 1985) to which our attention has been drawn.
We approve of the view.
Accordingly, we modify the direction of the Administrative Tribunal and hold that in the oral examination the pass mark shall be 40% and 40% pass marks shall be insisted separately for the written as also the oral test for qualifying in th selection.
The appeal is partly allowed and both the matters are disposed of by this common judgment.
There shall be no order as to costs.
T.N.A. Appeal allowed in part.

dataset_name: IN-Abs

summary:
The respondent Corporation prepared a panel for the post of Insurance Inspector, for filling up the direct recruit quota, on the basis of written test and interview.
In the absence of prescribed marks for the interview 40% was made as basic limit for selection.
The unsuccessful candidates challenged their rejection before the Central Administrative Tribunal contending that the selection based on 40% marks in the interview was unjus tified.
Petitions were also filed by the successful candi dates seeking directions to the respondent Corporation to issue appointments pursuant to the panel prepared.
The tribunal directed that a fresh select list be pre pared for filling up the remaining vacancies on the basis of the total marks obtained in the written examination and interview, in disregard of the qualifying marks of the interview.
Hence this appeal.
The successful candidates also filed a Writ Petition contending that they were entitled to appointment order since there was no indication of the expiry of the panel.
Allowing the appeal in part and disposing of the matter, this Court, 120 HELD: 1.
Interview has its own place in the matter of the selection process and the choice of the candidate.
Once this is recognised, it would be appropriate to require every candidate to pass the interview test and for that purpose there should be a basic limit provided.
In the absence of any prescription of qualifying marks for the interview test the prescription of 40% as applicable for the written exami nation seems to be reasonable.
[123C D] Rajesh Sood & Or3 '.
vs Director General, Employees State Insurance Corporation & Anr., decided on August 7, 1985, approved.
50% of the vacancies existing upto 31st December, 1989, relatable to the one third quota should be filled up out of the penal after giving credit to appointments already made.
The remaining vacancies should be filled up by holding of a fresh recruitment examination.
The scheme intended for recruitment should be on the basis of an examination com prising of written test and interview.
In the oral examina tion the pass mark shall be 40% and 40% pass marks shall be insisted separately for the written as also the oral test for qualifying in the selection.
[123B; D E]


judgement:
Special Leave Petition (Civil) No. 11493 of 1989 From the Judgment and Order dated 7.9.1989 of the Bombay High Court in W.P. No. 3762 of 1989.
Mrs. Indira Jaisingh, Tripurari Ray and M.N. Shroff for the Petitioner.
V.N. Ganpule and A.S. Bhasme for the Respondents.
The Judgment of the Court was delivered by KANIA, J.
This Special Leave is directed against the judgment of a Division Bench of the Bombay High Court dis missing summarily Writ Petition No. 3762 of 1989 filed by the petitioner.
The petitioner passed the Higher Secondary Certificate (hereinafter referred to as "the H.S.C.") examination held in March 1989, and sought admission to a medical college in Bombay conducted by the Government or one of the Municipal Medical Colleges in the city of 3 Bombay on the footing that she belonged to the Scheduled Tribe of Mahadeo Koli.
In support of her claim she tendered certain caste certificates.
Her application was referred, in accordance with the relevant rules to the Scrutiny Commit tee.
which is an expert body for determination of caste claims, for verifying her claim to belong to the aforesaid Scheduled Tribe.
In support of her claim, the petitioner submitted several caste certificates obtained by her.
At the hearing before the Scrutiny Committee the petitioner also furnished the Secondary School Leaving Certificate of her father.
Her father was requested to furnish his Primary School Leaving Certificate or birth certificate in order to ascertain the correct caste of the petitioner but he failed to produce the same.
The Committee, therefore, conducted the necessary inquiries at the Municipal Primary School, Worli, Koliwada, Bombay where the petitioner 's father had taken his primary education.
That school by its letter dated April 29, 1989, disclosed entries made in register of the said school showing inter alia, that the caste of the petitioner 's father was recorded as "Son Koli".
These entries were made in 1945 when there was no special advantage which the Sched uled Tribe of Mahadeo Koli enjoyed over the members of the caste of Son Koli.
It was pointed out by the Committee that these entries are entitled to a very great probative value as they have been made at a time when no question of making any manipulation arose.
The certificates relied upon by the petitioner have been rejected by the Scrutiny Committee primarily because these certificates were inconsistent with the entries in the said Register of the Primary School relating to the petitioner 's father to which the Committee attached great probative value.
The reasons given by the Scrutiny Committee for the rejection cannot be said to be irrelevant or perverse.
There is no complaint that the rules of fairplay have not been observed by the scrutiny Commit tee.
It rejected the claim of the petitioner that she be longed to the Scheduled Tribe of Mahadeo Koli.
This decision was upheld by the Additional Commissioner for Tribal Devel opment, State of Maharashtra in an appeal preferred by the petitioner.
Against the decision the petitioner filed a writ petition in the Bombay High Court challenging the aforesaid decision and that writ petition was summarily dismissed by a Division Bench of that High Court.
We have heard learned counsel for the petitioner who has strongly urged that the High Court was in error in rejecting the writ petition summarily as it is done.
We find, however, that it has not been shown how the decision of the Scrutiny Committee or the Appellate decision of the Commissioner for Tribal Welfare discloses any error calling for any interfer ence in a writ petition.
The entire controversy 4 has to be appreciated in the light of the admitted fact that Mahadeo Koli is a Scheduled Tribe whereas Son Koli is a caste.
We cannot find fault with the Scrutiny Committee for placing great reliance on the entries in the register of the primary school where the petitioner 's father took his pri mary education, as at the time when these entries were made there was no reason why he should have made a wrong state ment about the caste or tribe to which he belonged.
It was sought to be contended by learned counsel for the petitioner that Scrutiny Committee has proceeded on an entirely erroneous basis as the real claim of the petitioner is that Son Kolis are a section of the Scheduled Tribe of Mahadeo Koli.
We find, however, that this contention has nowhere been raised before the Scrutiny Committee or before the Commissioner of Tribal Welfare although it does appear to have been raised in the writ petition.
It was not open to the petitioner to raise this contention for the first time in the writ petition.
Learned counsel drew our attention to the list of the Scheduled Tribes in the State of Maharashtra appearing in Para 9 of the .
Entry 29 shows that "Koli Mahadeo" is a Scheduled Tribe recognised in Maharash tra.
In the list of Backward Classes issued by the State of Maharashtra we find that Kolis are recognised as belonging to "other backward classes".
Son Kolis are shown as belong ing to other backward classes in the list of other backward classes issued by the State of Maharashtra.
These documents, however, nowhere support the claim that Son Kolis are a section of Scheduled Tribe of Mahadeo Koli.
Learned counsel for the petitioner drew our attention to a publication entitled "Transactions of the Bombay Geograph ical Society from 1836 to 1838" which has been printed in 1844.
In this publication, Kolis are described as a tribe but a perusal of the relevant observations show that no distinction has been drawn in this publication between castes and tribes, and hence, the statements made in the said publication do not lend any support to the claim of the petitioner.
In the result, there is no merit in the special leave petition and it is dismissed.
No orders as to costs.
N.P.V. Petition dismissed.

summary:
The petitioner sought admission to a medical college in the State of Maharashtra on the footing that she belonged to the Scheduled Tribe of Mahadeo Koli and submitted several caste certificates, including her father 's Secondary School Leaving Certificate.
The Scrutiny Committee, the expert body for determining such claims, rejected her claim on the basis of entries made in 1945 in the register of the Municipal Primary School, where her father had his primary education, which showed that the caste of the petitioner 's father was recorded as 'Son Koli '.
This decision was upheld by the Additional Commissioner for Tribal Development.
The High Court summarily dismissed the petitioner 's writ petition.
In the Special Leave Petition before this Court, on behalf of the petitioner it was contended that the High Court was in error in rejecting the Writ Petition summarily and that the Scrutiny Committee had proceeded on an entirely erroneous basis as the real basis of the petitioner 's claim was that Son Kolis were a section of the Schedule Tribe of Mahadeo Koli.
Dismissing the Special Leave Petition, this Court, HELD: Entry 29 of the list of Scheduled Tribes in the State of Maharashtra, appearing in Para 9 of the shows that 'Koli Mahadeo ' is a Scheduled Tribe recognised in Maharashtra.
In the list of Backward Classes issued by the State, Kolis are recognised as belonging to "other backward classes".
Son Kolis are shown as belonging to other backward classes in the list of other backward classes.
These docu ments nowhere support the claim that Son Kolis are a section of Scheduled Tribe of Mahadeo Koli.
Though Kolis are de scribed as a tribe in the publication entitled "Transactions of the Bombay Geog 2 raphical Society from 1836 to 1838", a perusal of the rele vant observations shows that no distinction has been drawn in the said publication between castes and tribes.
[2D F] Admittedly, Mahadeo Koli is a Scheduled Tribe whereas Son Koli is a caste.
The Scrutiny Committee cannot be fault ed for placing great reliance on the entries in the register of the primary school where the petitioner 's father took his primary education, as at the time when these entries were made there was no reason why he should have made a wrong statement about the caste or tribe to which he belonged.
These entries were made in 1945, when there was no special advantage which the Scheduled Tribe of Mahadeo Koli enjoyed over the members of the caste of Son Koli.
The certificates relied upon by the petitioner have been rejected by the Scrutiny Committee primarily because these certificates were inconsistent with the entries in the said register of the Primary School relating to the petitioner 's father to which the Committee attached great probative value, as it was of the view that they were made at a time when no question of making any manipulation arose.
The reasons given by the Scrutiny Committee for the rejection cannot be said to be irrelevant or perverse.
There is no complaint that the rules of fair play have not been observed by the Scrutiny Commit tee.
[4A E]


judgement:
Criminal Appeal No. 386 of 1978.
From the Judgment and Order dated 19/20th July, 1977 of the Himachal Pradesh High Court in Crl.
A. No. 46 of 1976.
Rakesh Luthra, N.N. Bhatt, L.R. Singh (N.P.) and lrshad Ahmad for the Appellant.
K.G. Bhagat, N.K. Sharma and Ms. A. Subhashini (N.P.) for the Respondent.
The Judgment of the Court was delivered by K. RAMASWAMY, J.
The appellant, K.C. Sharma, alongwith two others was charged for the offence punishable under sections 302 and 201 read with section 34 of the Indian Penal Code for causing the death and concealing the dead body of Joginder Singh.
The Additional Sessions Judge, Kangra Division at Dharamsala convicted all the accused under section 302/34 and directed them to undergo imprisonment for life and to pay a fine of Rs.500 and also to the sentence of two years rigor ous imprisonment and fine of Rs.500 for the offence of section 201/34, in default of payment of fine for a further period of three months rigorous imprisonment.
All the sentences were directed to run concurrently.
On appeal the Division Bench of the High Court of Himachal Pradesh by judgment dated July 20, 1977 acquitted accused 2 and 3 of the offence under section 302 IPC and confirmed the conviction and sentence of the appellant and set aside the sentence of fine.
The leave having been granted by this Court, this appeal has been filed.
The narrative of prosecution case runs thus: The de ceased Joginder Singh, resident of Jogipura.
Kangra on November, 10, 1974.
while going to Pathankot with some currency notes in his possession went on his way to Jassur Village to meet his friend one Bala Pahalwan.
On enquiry the latter was said to be absent in the village.
The deceased came in contact with the appellant and both went to the Dhaba of PW. 7, Joginder Singh Paul to have some drink, but PW. 7 did not allow them to take liquor inside the Dhaba.
Both of them sat in the back side of the Dhaba to have drink.
PW. 8 Tamil Singh and one Jai Onkar were also invited to have drink with them.
All of them together consumed the liquor and ate meat.
The deceased paid the price of the liquor and meat and when he had become tipsy, PW. 8 suggest ed to take the deceased to Pathankot or to keep him at Dhaba 110 Beli where at he could make necessary arrangements for their stay but the appellant insisted upon taking the deceased to Kangra.
Thereafter the appellant and the deceased boarded the Truck No. HPK 4179 driven by A. 2, Madho Ram, Driver and A. 3, Bihari Lal, Cleaner.
PW. 8 and the other left the place.
The truck was loaded with the bricks and the appel lant and the deceased sat on the bricks in the body of the truck and went towards Kangra side.
PW. 12, the Octroi Clerk at Nagpur states that the truck driven by A. 2 went towards Baijnath.
PW. 13.
Burfiram, Chowkidar at Ichhi Marketing Co op.
Society spoke that he saw the truck driven by A. 2 and A. 3 and got unloaded the bricks at the godown of the said Society at about mid night but the deceased was not seen there.
It is further the case of the prosecution that while the deceased or accused were going in the truck, there ensued a quarrel between them over some money matter and the appellant took iron screw driver and gave blows on the head and face of the deceased.
Consequently the deceased was half dead.
He was thrown out of the truck but finding him not dead put him in the truck and all the accused severed the head with an iron saw and burried the trunk under stones in the outskirts of the village Dhadhu and carried the head with them in the truck.
The head was hidden at a place between Guggal and Chaitru on the Kachcha road branching off the main road to the village Ichhi.
On November 13, 1974, PW. 6 Karrudi Ram, the Chowkidar of Mauza Bandi, during twilight, had gone to answer nature 's call at the outskirts of the village Dhadhu and noticed the blood stains and a torn pant near the stones.
On further probe the hand of the deceased was seen projecting from the stones and he noticed the dead body.
He went and reported to Bidhu Ram, PW. 10.
the Pradhan of the village and two others.
All of them went to the spot, noticed the dead body.
10 kept a watch during the night.
On November 14, 1974 at about 7.00 or 8.00 a.m. PW. 6 went to the Police Station and lodged the com plaint.
PW. 26, the A,S.I. recorded and issued the First Information Report and proceeded to the spot.
He recovered the articles on and near the dead body under PW. 11, Panch nama and conducted inquest and sent the dead body for post mortem.
The Doctor conducted autopsy.
On November 15.
1974 the parents of the deceased came to the Police Station and identified the clothes of the deceased.
On November 16, 1974, PW. 27, the Sub Inspector of the Police took over the investigation.
He contacted one Kuldip Singh, a Conductor in Kapila Transport Company from whom he came to know that on November 10, 1974, the deceased and the appellant were seen consuming liquor at Jassur.
Thereafter PW. 27 and PW. 10, Bidhu Ram, Pradhan of Guggal Panchayat went to the appel lant 's village Sahaura and was sent for the appellant.
The appel 111 lant on coming to him was found to have shaved off his moustaches.
PW. 27 had enquired as to why he had removed his moustoches upon which the appellant was claimed to have replied that he had removed his moustaches due to demise of his maternal uncle.
PW. 10 and PW. 27 took the appellant to Jassur for identification purposes.
The appellant pointed out PW. 7, the owner of the Dhaba and the latter identified the appellant as one seen in the company of the deceased and having consumed liquor.
Equally of PW. 8.
Thereafter the appellant was taken back to PW.
10 's village and PW.
27 left the village for further investigation.
On enquiry made by PW. 10, in the shop of one Mangath Ram and in the company of one Raghunath, to reveal the truth to him, the appellant was stated to have requested PW. 10 whether he could save him if he would tell the truth.
Thereupon PW. 10 stated that he could not save him but if he would speak the truth he would help himself.
Thereupon the appellant was stated to have made extra judicial confession giving out the details of consuming liquor with the deceased; their going together on the truck, the quarrel that ensued between them; his hitting the deceased with the screw driver, throwing the. dead body, thinking that he died, on the road realising that he was not dead, lifting him and putting him in the body of the truck and all the accused cutting the head of the deceased with the saw blade and burrying the trunk under the stones and hiding the head at different place and thereby they had committed the crime.
10 gave this information to PW. 27 on the next day, namely, November 25, 1974.
Thereon all the accused were arrested.
On November 27, 1974, the Driver A. 2 was stated to have made a statement under section 27 of the Evidence Act.
exhibit PW. 9/A leading to discovery of the hidden head at a place between Guggal and Chaitru.
This statement had been made in the presence of PW. 9 and another and the severed head was recovered under Memo exhibit PW. 9/B. This was in the presence of PW. 10 and another.
The head was sent to the Doctor for post mortem examination.
The Doctor verified and found it to be correct and the doctor corelated the trunk of the dead body and the head belonging to the de ceased.
On November 30., 1974, pursuant to statement made by the appellant and A. 3 under exhibit PW.
16/B leading to recover one iron saw without handle and a piece of cloth wrapped to one of its sides was recovered from a bush near Kathman Mor and PW. 10 and another are Panch witnesses and found the saw blade contained with blood stains and a piece of cloth of torn pant.
They were recovered under exhibit PW. 16/C.
The clothes of the appellant were also claimed to have been recovered from his house under exhibit PW.
16/H which was stained with blood and the same were recovered in the presence of PW. 16 The Serologist found the blood stains disintegrated on all the 112 items.
On the basis of this evidence the prosecution laid the chargesheet against all the accused.
As stated earlier the appellant now stands convicted and sentenced for the offences under sections 302 and 201, I.P.C. The two others did not file appeal against their convict under section 201 I.P.C.
The entire prosecution case rested on circumstantial evidence.
As regards the appellant, the circumstances relied on the prosecution are three, namely,(i) the appellant and the deceased were last seen together by PW. 7, the owner of the liquor shop Dhaba and PW. 8, the companion who had liquor with the deceased and the appellant; (ii) the extra judicial confession made to PW. 10, the Pradhan of Guggal Gram Panchayat; and (iii) the discovery of saw blade pursu ant to the statement made by the appellant and A. 3 under section 27 of the Evidence Act.
The question, therefore, is whether the prosecution proved guilt of the appellant beyond all reasonable doubt.
In a case of circumstantial evidence.
all the circumstances from which the conclusion of the guilt is to be drawn should be fully and cogently established.
All the facts so estab lished should be consistent only with the hypothesis of the guilt of the accused.
The proved circumstances should be of a conclusive nature and definite tendency, unerringly point ing towards the guilt of the accused.
They should be such as to exclude every hypothesis but the one proposed to be proved.
The circumstances must be satisfactorily established and the proved circumstances must bring home the offences to the accused beyond all reasonable doubt.
It is not necessary that each circumstances by itself be conclusive but cumula tively must form unbroken chain of events leading to the proof of the guilt of the accused.
If those circumstances or some of them can be explained by any of the reasonable hypothesis then the accused must have the benefit of that hypothesis.
In assessing the evidence imaginary possibilities have no role to play.
What is to be considered are ordinary human probabilities.
In other words when there is no direct wit ness to the commission of murder and the case rests entirely on circumstantial evidence, the circumstances relied on must be fully established.
The chain of events furnished by the circumstances should be so far complete as not to leave any reasonable ground for conclusion consistent with the inno cence of the accused.
If any of the circumstances proved in a case are consistent with the innocence of the accused or the chain of the continuity of the circumstances is broken, the accused is entitled to the benefit of the doubt.
113 In assessing the evidence to find these principles.
it is necessary to distinguish between facts which may be called primary or basic facts on one hand and inference of facts to be drawn from them.
on the other.
In regard to the proof of basic or primary facts.
the court has to judge the evidence in the ordinary way and in appreciation of the evidence in proof of those basic facts or primary facts, there is no scope for the application of the doctrine of benefit of doubt.
The court has to consider the evidence and decide whether the evidence proves a particular fact or not.
Whether that fact leads to the inference of the guilt of the accused or not is another aspect and in dealing with this aspect of the problem the doctrine of benefit would apply and an inference of guilt can be drawn only if the proved facts are inconsistent with the innocence of the accused and are consistent only with his guilt.
There is a long distance between may be true and must be true.
The prosecution has to travel all the way to establish fully the chain of events which should be consistent only with hypothesis of the guilt of the accused and those circumstances should be of conclu sive nature and tendency and they should be such as to exclude all hypothesis but the one proposed to be proved by the prosecution.
In other words.
there must be a chain of evidence so far consistent and complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all probability the act must have been done by the accused and the accused alone.
The question emerges, therefore is whether the prosecu tion has established the three circumstantial evidence heavily banked upon by the prosecution in proof of the guilt of the appellant.
The first circumstance is that the de ceased and the appellant were last seen together by PW. 7 and PW. 8.
From the evidence it is clear that there is no prior intimacy of the appellant and the deceased.
They happened to meet per chance.
Equally from the evidence it is clear that PW. 7, the liquor shop owner and PW. 8 who had liquor with the appellant and the deceased are also absolute strangers to the deceased and the appellant.
Admittedly there is no identification parade conducted by the prosecu tion tO identify the appellant by PW. 7 or PW. 8.
The appel lant was stated to have pointed out to PW. 7 as the one that sold the liquor and PW 8 consumed it with him and the de ceased.
Therefore it is not reasonably possible to accept the testimony of PW. 7 and PW. 8 when they professed that they have seen the appellant and the deceased together consuming the liquor.
It is highly artificial and appears on its face a make believe story.
114 The next piece of evidence is the alleged extra judicial confession made by the appellant to PW. 10.
An unambiguous extra judicial confession possesses high probative value force as it emanates from the person who committed the crime and is admissible in evidence provided it is free from suspicion and suggestion of its falsity.
But in the process of the proof of the alleged confession the court has to be satisfied that it is a voluntary one and does not appear to be the result of inducement, threat or promise envisaged under section 24 of the Evidence Act or was brought about in suspicious circumstances to circumvent Section 25 and 26 of the Evidence Act.
Therefore, the court has to look into the surrounding circumstances and to find whether the extra judicial confession is not inspired by any improper or colateral consideration or circumvention of the law suggest ing that it may not be true one.
For this purpose the court must scrutinise all the relevant facts such as the person to whom the confession is made, the time and place of making it, the circumstances in which it was made and finally the actual words used by the accused.
Extra judicial confession if found to be voluntary, can be relied upon by the court alongwith other evidence on record.
Therefore, even the extra judicial confession will also have to be proved like any other fact.
The value of the evidence as to the confes sion depends upon the verocity of the witness to whom it is made and the circumstances in which it came to be made and the actual words used by the accused.
Some times it may not be possible to the witness to reproduce the actual words in which the confession was made.
For that reason the law insists on recording the statement by a Judicial Magistrate after administering all necessary warnings to the accused that it would be used as evidence against him.
Admittedly PW.
10 and the appellant do not belong to the same village.
From the narrative of the prosecution story it is clear that PW. 27, and PW. 10 came together and appre hended the appellant from his village and was taken to Jassur for identification.
After he was identified by PW. 7 and PW. 8 it was stated that he was brought back to Gaggal village of PW. 10 and was kept in his company and PW. 27 left for further investigation.
Section 25 of the Evidence Act provides that no confession made to a police officer shall be proved as against a person accused of any offence.
Section 26 provides that no confession made by any person while he is under custody of the police officer, unless it be made in the immediate presence of a magistrate, shall be proved as against such person.
Therefore, the confession made by an accused person to a police officer is irrelevant by operation of Section 25 and it shall be proved against the appellant.
Likewise the confession made by the appellant while he is in the custody of the police shall not 115 be proved against the appellant unless it is made in the immediate presence of the magistrate, by operation of Sec tion 26 thereof.
Admittedly the appellant did not make any confession in the presence of the magistrate.
The question, therefore, is whether the appellant made the extra judicial confession while he was in the police custody.
It is incred ible to believe that the police officer, PW. 27, after having got identified the appellant by PW. 7 and PW. 8 as the one last seen the deceased in his company would have left the appellant without taking him into custody.
It is obvious, that with a view to avoid the rigour of Section 25 and 26, PW. 27 created an artificial scenerio of his leaving for further investigation and kept the appellant in the custody of PW. 10, the Pradhan to make an extra judicial confession.
Nothing prevented PW. 27 to take the appellant to a Judicial Magistrate and had his confession recorded as provided under section 164 of the Crl.
P.C. which possesses great probative value and affords an unerring assurance to the court.
It is too incredulous to believe that for mere asking to tell the truth the appellant made voluntarily confession to PW. 10 and that too sitting in a hotel.
The other person in whose presence it was stated to have been made was not examined to provide any corroboration to the testimony of PW. 10.
Therefore, it would be legitimate to conclude that the appellant was taken into the police custo dy and while the accused was in the custody, the extra judicial confession was obtained through PW. 10 who accommo dated the prosecution.
Thereby we can safely reach an irre sistible conclusion that the alleged extra judicial confes sion statement was made while the appellant was in the police custody.
It is well settled law that Sections 25 and 26 shall be construed strictly.
Therefore, by operation of Section 26 of the Evidence Act, the confession made by the appellant to PW. 10 while he was in the custody of the police officer (PW. 27) shall not be proved against the appellant.
In this view it is unnecessary to go into the voluntary nature of the confession etc.
The third circumstance relied on is the statement said to have been made by the appellant under section 27 of the Evidence Act leading to discovery of the consequential information, namely, saw blade, is not of a conclusive nature connecting the appellant with the crime.
The recover ies were long after the arrest of the appellant.
The blood stains on all the articles were disintegrated.
So it was not possible to find whether it is human blood or not.
Moreover, from the prosecution evidence it is clear that the deceased himself was an accused in an earlier murder case and it is obvious that he had enemies at his back.
Absolutely no motive to commit crime was attributed to the appellant.
116 No doubt the appellant and two others have been charged for an offence under section 302 and 201 read with Section 34, namely, common intention to commit the offences and A. 2 and A. 3 were acquitted of the charge under section 302/34, I.P.C. and that there is no independent charge under section 302, I.P.C.
If, from the evidence, it is established that any one of the accused have committed the crime individual ly, though the other accused were acquitted, even without any independent charge under section 302, the individual accused would be convicted under section 302, I.P.C. sim plicitor.
The omission to frame an independent charge under section 302, I.P.C. does not vitiate the conviction and sentence under section 302, I.P.C. Thus considered we find that the prosecution has utterly failed to prove any one of the three circumstances against the appellant and the chain of circumstances was broken at every stage without connecting the accused to the commission of the alleged crime as the prosecution failed to prove as a primary fact all the three circumstances, much less beyond all reasonable doubt bringing home the guilt to the accused, and to prove that the accused alone had committed the crime.
Therefore, the appellant is entitled to the benefit of doubt.
The conviction and sentence of the appellant for the offences under section 302 or Section 201 of I.P.C. are set aside.
The appellant is on bail granted by this Court after nine years ' incarceration.
The bail bond shall stand can celled.
He shall remain at liberty unless he is required in any other case.
Before parting with the case, it is necessary to state that from the facts and circumstances of this case it would appear that the investigating officer has taken the appel lant, a peon, the driver and the cleaner for ride and tram pled upon their fundamental personal liberty and lugged them in the capital offence punishable under section 302.
I.P.C. by freely fabricating evidence against the innocent.
Un doubtedly.
heinous crimes are committed under great secrecy and that investigation of a crime is a difficult and tedious task.
At the same time the liberty of a citizen is a pre cious one guaranteed by article 3 of Universal Declaration of Human Rights and also article 21 of the Constitution of India and its deprivation shall be only in accordance with law.
The accused has the fundamental right to defend himself under article 10 of Universal Declaration of Human Rights.
The right to defence includes right to effective and meaningful defence at the trial.
The poor accused cannot defend effec tively and adequately.
Assigning an experienced defence counsel to an indigent accused is a facet of fair procedure and an inbuilt right to liberty and life envisaged under articles 117 19 and 21 of the Constitution.
Weaker the person accused of an offence, greater the caution and higher the responsi bility of the law enforcement agencies.
Before accusing an innocent person of the commission of a grave crime like the one punishable under section 302, I.P.C., an honest, sincere and dispassionate investigation has to be made and to feel sure that the person suspected of the crime alone was re sponsible to commit the offence.
Indulging in free fabrica tion of the record is a deplorable conduct on the part of an investigating officer which under mines the public confi dence reposed in the investigating agency.
Therefore, great er care and circumspection are needed by the investigating agency in this regard.
It is time that the investigating agencies, evolve new and scientific investigating methods, taking aid of rapid scientific development in the field of investigation.
It is also the duty of the State, i.e. Cen tral or State Government to organise periodical refresher courses for the investigating officers to keep them abreast of the latest scientific development in the art of investi gation and the march of law so that the real offender would be brought to book and the innocent would not be exposed to prosecution.
Though article 39A of the Constitution provides fundamental rights to equal justice and free legal aid and though the State provides amicus curiae to defend the indigent accused, he would be meted out with unequal defence if, as is common knowledge the youngster from the Bar who has either a little experience or no experience is assigned to defend him.
It is high time that senior counsel practicing in the court con cerned, volunteer to defend such indigent accused as a part of their professional duty.
If these remedial steps are taken and an honest and objective investigation is done, it will enhance a sense of confidence of the public in the investigating agency.
We fervently hope and trust that concerned authorities and Senior Advocates would take appropriate steps in this regard.
The appeal is accordingly allowed.
P.S.S. Appeal allowed.

summary:
The appellant was convicted under sections 302 and 201 read with section 34 IPC.
The prosecution case was that he and the deceased were last seen together in village J on November 10, 1974 by PW. 7, owner of a dhaba cum liquor shop, and PW. 8, and all of them had consumed liquor.
The deceased had by then become tipsy.
Thereafter the appellant and the deceased had boarded a truck driven by A 2 and A 3, the cleaner.
While they were going in the truck there ensued a quarrel between them over some money matters and the appellant attacked the deceased with an iron screw driver, and when the latter was half dead all the accused severed his head with an iron saw and burried the trunk under stones.
The head was hidden at a different place.
Three days later, PW 6, chowkidar of a neighboring village noticed the dead body and reported the matter to PW 10, the village pradhan, who accompanied him to the spot.
PW 6 lodged the FIR the next morning.
On receiving information that the deceased and the appellant were seen consuming liquor on November 10 the Sub Inspector, PW 27, and PW 10 went to appellant 's village and took him for identification to village J, where PWs 7 and 8 identified him as one seen in the company of the deceased and having consumed liquor.
The appellant was thereafter taken to PW 10 's village and PW 27 proceeded for further investigation.
The appellant then made an extra judicial confession to PW 10 of having committed the crime with the help of A 2 and A 3.
PW 10 passed on that informa tion to PW 27 the next day following which the accused were arrested.
Thereafter A 2 made a statement under section 27 of 106 the Evidence Act leading to the ' discovery of the severed head.
The weapon of offence was also recovered.
The High Court confirmed the conviction and sentence of the appellant but acquitted the other two of the charge under section 302 IPC.
Allowing the appeal by special leave, the Court, HELD: 1.
The prosecution has failed to bring home the guilt to the appellant beyond all reasonable doubt and to prove that he alone had committed the crime.
He is, there fore, entitled to the benefit of doubt.
[116D] 2.1 When there is no direct witness to the commission of murder and the case rests entirely on circumstantial evi dence, all the circumstances from which the conclusion of the guilt is to be drawn should be fully and cogently estab lished.
The proved circumstances should be of a conclusive nature and definite tendency unerringly pointing towards the guilt of the accused.
Imaginary possibilities have no role to play.
What is to be considered are ordinary human proba bilities.
It is not necessary that each circumstance by itself be conclusive but cumulatively must form unbroken chain of events leading to the proof of the guilt of the accused.
If any of the said circumstances are consistent with the innocence of the accused or the chain of the conti nuity of the circumstances is broken, the accused is enti tled to the benefit of the doubt.
[112D H] 2.2 In assessing the evidence to find these principles it is necessary to distinguish between facts which may be called primary or basic facts on one hand and inference of facts to be drawn from them, on the other.
In regard to the proof of basic or primary facts, the court has to judge the evidence in the ordinary way and in appreciation of the evidence in proof of those basic facts or primary facts, there is no scope for the application of the doctrine of benefit of doubt.
The court has to consider the evidence and decide whether the evidence proves a particular fact or not.
Whether that fact leads to the inference of the guilt of the accused or not is another aspect and in dealing with this aspect of the problem, the doctrine of benefit would apply and an inference of guilt can be drawn only if the proved facts are inconsistent with the innocence of the accused and are consistent only with his guilt.
[113A C] 3.1 In the instant case, from the evidence it is clear that there was no prior intimacy of the appellant and the deceased.
They happened to meet per chance.
PW 7, the liquor shop owner, and PW 8, who had 107 liquor with the appellant and the deceased were also abso lute strangers to the deceased and the appellant.
Admittedly there was no identification parade conducted by the prosecu tion to identify the appellant by PW 7 or PW 8.
The appel lant was stated to have pointed out to PW 7 as the one that sold the liquor and PW 8 consumed it with him and the de ceased.
Therefore, it is not reasonably possible to accept the testimony of the PW 7 and PW 8 when they professed that they had seen the appellant and the deceased together con suming the liquor.
It is highly artificial and appear on its face a make believe story.
[113F H] 3.2.1 An unambiguous extra judicial confession possesses high probative value force as it emanates from the person who committed the crime and is admissible in evidence pro vided it is free from suspicion and suggestion of its falsi ty.
But in the process of the proof of the alleged confes sion the court has to be satisfied that it is a voluntary one and does not appear to be the result of inducement, threat or promise envisaged under section 24 of the Evidence Act or was brought about in suspicious circumstances to circum vent ss, 25 and 26 of the Evidence Act.
For this purpose the court must scrutinise all the relevant facts such as the person to whom the confession is made, the time and place of making it, the circumstances in which it was made and final ly the actual words used by the accused.
[114A D] 3.2.2 Section 25 of the Evidence Act provides that no confession made to a police officer shall be proved as against a person accused of any offence.
Section 26 provides that no confession made by any person while he is under custody of the police officer, unless it be made in the immediate presence of a magistrate, shall be proved as against such person.
[114G] 3.2.3 In the instant case, the appellant did not make any confession in the presence of the magistrate.
From the narrative of the prosecution story it is clear that PW 10 and the appellant did not belong to the same village and that PW 27 and PW 10 came together and apprehended the appellant from his village and took him to village J for identification.
After he was identified by PW 7 and PW 8 it was stated that he was brought back to the village of PW 10 and was kept in his company and PW 27 left for further investigation.
It is incredible to believe that the police officer, PW 27 after having got an accused identified would have left without taking him into custody.
He seems to have created an artificial scenario of his leaving for further investigation and keeping the appellant in the custody of PW 10 to make an extra judicial confession, with a view to avoid the rigour of sections 25 and 108 26.
Nothing prevented him from taking the appellant to a Judicial Magistrate and having his confession recorded as provided under section 164 of the Crl.
P.C. which possesses great probative value and affords an unerring assurance to the court.
It is too incredulous to believe that for mere asking to tell the truth the appellant made voluntary confession to PW 10 and that too sitting in a hotel.
The other person in whose presence it was stated to have been made was not examined to provide any corroboration to the testimony of PW 10.
It would be legitimate, therefore, to conclude that the appellant was taken into police custody and the extra judicial confession was obtained there through PW 10 who accommodated the prosecution.
[115A E] 3.2.4 It is well settled law that sections 25 and 26 of the Evidence Act shall be construed strictly.
Therefore, by operation of section 26 the confession made by the appellant to PW 10 while he was in the custody of the police officer shall not be proved against him.
[115E] 3.3 The statement said to have been made by the appel lant under s 27 of the Evidence Act leading to discovery of the consequential information, namely.
saw blade, is not of a conclusive nature connecting the appellant with the crime.
The recoveries were made long after the arrest of the appel lant.
The blood stains on all the articles had disintegrat ed.
So it was not possible to find whether it was human blood or not.
Moreover, from the prosecution evidence it is clear that the deceased himself was an accused in an earlier murder case and it is obvious that he had enemies at his back.
Absolutely no motive to commit the crime was attribut ed to the appellant.
[115G H] 4.
The conviction and sentence of the appellant for the offences under sections 302 and 201 IPC are set aside.
The bail bond shall stand cancelled.
He shall remain at liberty unless he is required in any other case.
[116D] 5.
Indulging in free fabrication of evidence against an innocent and implicating him in the capital offence punisha ble under section 302 IPC, as in the instant case, is a deplora ble conduct on the part of an investigating officer.
The liberty of a citizen is a precious one guaranteed by consti tutional provisions and its deprivation shall be only in accordance with law.
Before accusing the appellant of the commission of such a grave crime an honest, sincere and dispassionate investigation should have been made to feel sure that he alone was responsible to commit the offence.
[117B; A] 109