Appeal Nos3465 69 of 1988
From the Judgment and Order dated 26101987 of the Punjab and Haryana High Court in CWP Nos 755 5141  365987  313888
357 Shanti Bhushan and Prem Malhotra for the Appellants
Ms Nisha Bagchi for Ms Indu Malhotra US Chowdhary and Ravindra Bana for the Respondents
Bhal Singh Malik and SM Hooda for the Intervenor
The Judgment of the Court was delivered by BP JEEVAN REDDY J
This batch of appeals is preferred against a common judgment of Punjab an Haryana High Court dismissing a batch of six writ petitions
There are three wingsbranches in the Public Works Department of the Government of Haryana viz Irrigation Roads and Buildings and Public Health
We are concerned herein with the Irrigation branch
The Engineering service in the Irrigation branch comprises both class I and class II services
Recruitment to and conditions of service of class I are governed by the Haryana Service of Engineers Class I PWD Irrigation Branch Rules 1964 whereas recruitment to and conditions of service of class 11 is governed by Haryana Service of Engineers Class 11 PWD Irrigation Branch Rules 1970
The lowest category in class I is that of Assistant Executive Engineers
Above it is the category of Executive Engineers and above it Superintending Engineers
Recruitment to the category of Assistant Executive Engineers is only by direct recruitment
Recruitment to the category of Executive Engineers is a by direct recruitment b by transfer of an officer already in class I service of the Government of India or of a State Government and c by promotion from class 11 service
Sub rule 2 of Rule 5 of the class I Rules says recruitment to the service shall be so regulated that the number of posts filled by promotion from class 11 service shall not exceed 75 of the number of posts in the service excluding the posts of Assistant Executive Engineers for the first 10 years from the date of commencement of these Rules and thereafter shall not exceed 50 of the number of posts in the service excluding the post of Assistant Executive Engineers
 The proviso to this sub rule however says that in case an adequate number of Assistant Executive Engineers who are eligible and considered fit for promotion are not available the actual percentage of officers promoted from class 11 service may be larger than 75 or 50 as the case may be In other words after the year 1974 the share of class 11 officers in the promotion quota to the category 358 of Executive Engineers categroy shall not exceed 50 the balance being allocated to the Assistant Executive Engineers who are also entitled to be promoted to the categroy of Executive Engineers
But in case adequate number of Executive Engineers are not available the said ceiling can be exceeded
Though the Assistant Executive Engineers are in class I and Assistant Engineers are in Class II both these categories discharge similar functions duties and responsibilities
Members of both these categories are posted as Sub Divisional OfficersSub Divisional Engieers
Both are eligible for promotion to the category of Executive Engineers as stated above but while the cadre strength of Assistant Engineers is very large the cadre strength of Assistant Executive Engineers is quite small with the consequence that in the matter of promotion to the category of Executive Engineers the Assistant Executive Engineers enjoy a marked advantage in view of the inter se quota prescribed by sub rule 2 of Rule 5
The Assistant Executive Engineers get promoted far sooner than the Assistant Engineers
The cadre strength of Assistant Executive Engineers is stated to be 49
While the cadre strength of Assistant Engineers is not stated before us it is admittedly far larger
In the year 1985 the Haryana Public Service Commission issued a notification stating that a combined competitive examination for recruitment to the post of Assistant Executive Engineers C in the PWD will be held by the Haryana Public Service Commission in AugustSeptember 1985 in accordance with the rules of Haryana PWD Irrigation BR and Public Health Branches as amended from time to time Then followed the table of particulars which must be noticed Reserved Reserved Reserved Name Of Post No
Of For Scof For Bc
Post For exhibit Haryana Haryana Service 1 2 3 4 5 i Haryana Service of Engineers 15 4 2 1 Class I Junior Sca les in PWD Public Health Branch
359 ii Haryana Service of 8 2 1 enginners Class I Enginee rs Class I Junior Scales in PWD B  R Br
iiiHaryana Service of Engineers Class I Junior Scale posts in the PWD Irrigation Branch are also likely to be filled from the suitable candidates from this very advertisement after the receipt of demand from the Government
The number of posts given against each category is liable to variation
Three posts two for SCof Haryana and One BC of Haryana in PWD B  R Branch are reserved failing with other shall be considered
Seven posts four for SC of Haryana two for BC of Haryana and one for Ex Servicemen in PWD Public Health Branch are reserved failing whom others will be considered
It is significant to notice the wording of item iii in the table
It is clear therefrom that the Public Service Commission had notified the vacancies in the category of Assistant Executive Engineers referred in the Rules and in the notification as Engineers class I Junior Scale even without a requisition from the Government
The Commission by stating that posts in the said category are also likely to be filled from the suitable candidates from this very advertisement after the receipt of demand from the Govern ment had made it known to the candidates of the absence of authority
Admittedly no such demand or requisition was ever received by the Government at any time after the issuance of the said notification
It is equally relevant to point out that under the notification applications for selection to the category of Assistant Executive Engineers in all the three wings of the PWD were called for
The eligibility criteria and the qualifications required for appointment to the said category is stated to be indentical in all the three wings though they are governed by different sets of rules
It is also stated before us that no separate applications were necessary and that one could apply for appointment in all or any of the three wings indicating his choice and subject to his fulfilling the prescribed qualifications
In response to the notification aforesaid several Engineers including 360 the appellants herein applied
A written test was
conducted followed by an oral interview
On the basis of the marks obtained in the written test and the oral interview certain persons were selected for Public Health and Buildings  Roads wings
No selections were made for the Irrigation wing evidently for the reason that even by the date of finalisation of selections no requisition or demand had come from the Government
It is only then that the appellants approached the Punjab and Haryana High Court with a batch of writ petitions praying for the issuance of an appropriate writ order or direction to the respondents Government of Haryana and the Haryana Public Service Com mission to fill up 44 vacancies of Assistant Executive Engineers and others falling to the quota of direct recruits from amongst the applicants who had applied in pursuance of the advertisement 
They asked for a further direction to the State of Haryana to send requisition to the Respondent Commission to fill up all the vacancies in the Class I service which are meant for direct recruits forthwith and to make appointment to the class I service by the method of direct recruits as required by the Rules
 The appellants challenged the method of selection followed by the Commission as also the refusalfailure of the Government to fill up the vacancies in the category of Assistant Executive Engineers
The writ petitions were opposed by the Public Service Commission as also by the State Government
The High Court dismissed the writ petitions rejecting the several contentions urged by the appellants
In this appeal Sri Shanti Bhushan the learned counsel for the appellants urged the following contentions 1 The cadre strength of Assistant Executive Engineers in the Irrigation wing is 49
As against the said strength there were only 5 persons holding the posts which means the vacancies are 44 in number
There has been no recruitment to this category since 1979
In that year the Government had sent a requisition for 22 posts but only 8 were selected by the Commission
From out of these eight only five were appointed to the category
In the year 1983 the Government sent a requisition to the Commission for 23 posts but none were selected or appointed
It is in this situation that the notification issued by the Commission in the year 1985 envisaged a selection to the category of Assistant Executive Engineers in the Irrigation Branch as well
The Commission expected that in view of the vacancies earlier notified the Government would be sending a requisition and with 361 a view to save time and effort it included the vacancies in Irrigation wing as well in the Notification which pertained to the vacancies in the very same category in the other two wings of the PWD for which requisition was received
The Government acted arbitrarily and unreasonably in no sending the requisition inspite of the fact that 44 vacancies have been existing in this category in Irrigation Branch since a long number of years
This refusal to fill up the said vacancies is mala fide and is designed to help and promote the interest of class II officers
Though according to the Rules the number of promotees from class 11 in the category of Executive Engineers should not exceed 50 the fact is that practically all the promotion posts in the category of Executive Engineers are held by erstwhile class II officers for the reason that the category of Assistant Executive Engineers in this branch is being kept practically empty
When the statutory rules have created a particular category and a cadre strength is also fixed therefor and more particularly when a quota is reserved for them in the channel of promotion to the category of Executivie Engineers it is not open to the Government to nullify the spirit and object behind the Rules by refusing to make appointment to the said category
If these 44 posts are filled up many of the appellants if not all are likely to be selected and appointed
2 The procedure adopted by the Haryana Public Service Commission is contrary to statutory Rules
Whereas the Rules say that a candidate obtaining 50 marks in the written test is entitled to be called for viva voce the Commission has arbitrarily prescribed a threshold of 65 which it had no jurisdiction to do
As a result of the said arbitrary stipultion several of the appellants have been denied the opportunity of selection
The Commission must now be directed to make selection afresh for all the three wingsbranches in the Public Works Department
With a view to clear the ground it would be appropriate to deal with the second contention first
It is based upon the proviso to sub rule 2 of Rule 7 of the 1964 Rules
Rule 7 deals with direct appointment
For the sake of convenience we may set out sub rules 1 and 2 of Rule 7 DIRECT APPOINTMENT 1 A Candidate for direct appointment shall not be less than 20 years and more than 25 years on age of or before the first day of August next precedin g the last date of submission of applications to the commission 362 Provided that a in the case of candidates who are displaced persons and in whose case the age limit for admission to Engineering College had been relaxed and in the case of candidates belonging to the Scheduled Castes Scheduled Tribes and other backward classes the upper age limit shall be such as may be fixed by the Government from time to time
b in the case of candidates possessing the requisite qualifications who are already in the service of the State Government the upper age limit shall be 30 years 2 The selection of candidates including those belonging to Scheduled Castes Scheduled Tribes or Backward Classes shall be made by the Commission after holding a competitive examination the syllabus for which shall be such as may be prescribed by the Government from time to time
The Commission shall recommend the required number of candidates after arranging their names in the order of merit and indicating which out of them belong to Scheduled Castes Scheduled Tribes or Backward Classes Provided that a candidate shall not be considered qualified for appointment unless he obtains not less than forty per cent marks in each subject and also not less than fifty per cent marks in the aggregate and no candidate who does not obtain the qualifying marks shall be called for interview by the commission
Provided further that where a vacancy has been reserved for a person belonging to Scheduled Castes Scheduled Tribes or Backward Classes who secures the highest marks in the aggregate and has qualified for an appointment shall be selected irrespective of his position with respect to the other candidates
 363 A reading of the first proviso to Sub Rule 2 of Rule 7 shows that it prescribes a minimum percentage of marks in the written test hoth for appointment as well as for being called for interview viva voce
It does not create a right in the candidate who has obtained the prescribed percentage of marks to be called for interview
This is how a similar Rule has been understood by a Constitution Bench of this Court in Ashok Kumer Yadav vs State of Haryana AIR 1987 SC 454
Regulation 3 in the Appendix to the Haryana Civil Service Executive and other allied services read as follows 3
No candidate shall be eligible to appear in the viva voce test unless he obtains 45 per cent marks
in the aggregate of all subjects including at least 33 per cent marks in each of the language papers in Hindi in Devanagri Script and Hindi Essay provided that if at any examination a sufficient number of candidates do no obtain 45 per cent marks in the aggregate the Commission may at their discretion lower this percentage to not below 40 per cent for the language papers remaining unchanged
 Construing the said Regulation the Court held it is clear on a plain natural construction of Regulation 3 that what is prescribes is merely a minimum qualification for eligibility to appear at the viva voce test
Every can didate to be eligible for appearing at the viva voce test must obtain at least 45 per cent marks in the aggregate in the written examination
But obtaining of minimum 45 per cent marks does not by itself entitle a candidate to insist that he should be called for the viva voce test all candidates who satisfy the minimum eligibility requirement
It is open to the Harvana Public Service Commission to say that out of the candidates who satisfy the eligibility criterion of minimum 45 per cent marks in the written examination only a limited number of candidates at the top of the list shall be called for interview
And this has necessarily to be done because otherwise the viva voce test would be reduced to a farce
It is indeed difficult to see how a viva voce test for properly and satisfactorily measuring the personality of a candidate can be carried out if 364 over 1300 candidates are to be interviewed for recruitment to a service
If a viva voce test is to be carried out in a thorough and scientific manner as it must be in order arrive at a fair and satisfactory evaluation of the personality of a candidate the interview must take anything between 10 to 30 minutes
 In view of this decision we do not think it necessary to deal wit the decisions cited by Sri Shanti Bhushan namely Umesh Chandra vs Union of India   Nilima Shangla vs State of Haryana  and PK Ramachandra Iyer  Ors
vs Union of India  Ors
  Suffice it to say that neither of them lays down any principle contrary to the one quoted above from Ashok Kumar Yadav
Coming to the first submission of Sri Shanti Bhushan the defence of the Government is to the following effect It is also admitted
that cadre strength of Assistant Executive Engineer was fixed on 22182 and is 49 out of which 5 persons are in position
However at present there is no vacant post of Assistant Executive Engineer in the Department
The true facts are that during the year 197980 some major projects viz Drainage Projects Jawahar Lal Nehru Project and Linning etc
under the World Bank Schemes were taken into hand and there was immediate requirements of technical staff
For this purpose and to take up the time bound works 212 Assistant Engineers were recruited on adhoc basis and 178 Sub Divisional Officers were promoted from Junior EngineersDraftsmen etc
on adhoc basis to meet the immediate requirement during the aforesaid period till their replacement by the joining of regular Assistant Engineers through Haryana Public Service Commission
The Haryana Public Service Commission recommended 176 number of Assistant Engineers in December 1981 for regular appointment against the posts of those who were appointed promoted as Assistant EngineerSub Divisional Officers on adhoc basis
They were given offer of appointment on 2911982On joining of regular Assistant Engineers the 365 services of about 45 adhoc Assistant Engineers were terminated by the Government
The adhoc Assistant Engineers whose services were terminated by the Government filed Civil Writ Petition No 152989 Amarjeet Singh and others vs State of Haryana and other writs involving the same cause of action challenging their termination orders
Upon regular hearing the above Civil Writ Petition the Punjab and Haryana High Court Hon ble Justice Mr IS Tiwana in its orders dated 3984 decided the matter in favour of the adhoc Assistant Engineers recruited during the year 1980
Thus the services of adhoc Assistant Engineers could not be terminated and they continued to hold the posts of Assistant Engineers till date
However Government have filed Letter Patent Appeal No186 90 of 1985 and 374 381 of 1985Amarjeet Singh etc
vs State and the same is pending for decision in the Hon ble Punjab and Haryana High Court
Similarly the Sub Divisional Officers who are promoted on adhoc basis in the year 1979 80 in excess of their quota could not be reverted by the Government for want of finalisation of Ranking List for the purpose of promotion to the post of Sub Divional Officers in pursuance of the directio n given by the Hon ble Punjab and Haryana High Court in Civil Writ Petition No 5630 5631 of 1981
JP Gupta and Shri Krishan vs State 152476 ML Verma vs State and 448982 Shri RK Jain vs State
 The learned counsel appearing for the Government of Haryana explains that 176 Assistant Engineers selected by the Commission in December 1981 for regular appointment are in addition to 390 Officers 212 Assistant Engineers recruited on adhoc basis and 178 Sub Divisional Officers promoted from the category of Junior EngineersDraftsment etc
on adhoc basis
This statement is however disputed by learned counsel for the appellants
Be that as it may the submission of the learned counsel for the Government of Haryana is this both the Assistant Engineers and Assistant Executive Engineers are posted as Sub Divisional OfficersSub Divisional Engineers
There is no other posting available for them
In the circumstances explained in the counter affidavit a large number of Assistant Engineers are in surplus over and above the cadre strength
They have to be posted some 366 where and they can be posted only as Sub Divisional Officers Sub
Divisional Engineers
If Assistant Executive Engineers are also appointed as demanded by the appellants they will be in further surplus inasmuch as they too can be posted only as Sub Divisional OfficersSub Divisional Engineers and there are no posts available to post them
The Government is finding it difficult to give postings to the already existing Assistant Engineers who have been recruitedpromoted on adhoc basis as stated above and who could not be ousted because of the orders from courts
It is for this reason that the Government did not send requisition for filling up the 44 posts of Assistant Executive Engineers in Irrigation Branch
The said decision is a bona fide decision actuated by relevant considerations
There are absolutely no mala fides on the part of the Government in not filling up the said posts of Assistant Executive Engineers
It is also brought to our notice that though a requisition was sent to the Commission in the year 1983 for 23 posts of Assistant Executive Engineers in the Irrigation Branch the Government had withdrawn the said requisition on May 20 1983 itself ie even before any selection could be made
It was for this reason that no one was selected or appointed to the said category in that year
Counsel submitted supported by the counsel for the Commission that in these circumstances the Commission was justified in not selecting anyone against the post of Assistant Executive Engineers in the Irrigation wing more particularly when the expectation of the Commission that the Government may send a requisition therefor did not materialise even by the date of finalisation of selections
The question that arises in the above circumstances is whether the Government can be compelled to send a requisition to the Commission for the selecting Assistant Executive Engineers in respect of 44 vacant posts and if it can be so compelled would it be appropriate to direct that those posts shall be filled by the candidates who applied for and appeared at the selection held in the year 1985 The first thing to notice is that the Public Service Commission had no authority to include the vacancies in the Irrigation branch in the notification issued by it when the Government had not asked for it
The requisition from the Government was to select Assistant Executive Engineers only for the other two wings viz Buildings and Roads and Public Health
May be the Commission did so bona fide
Even so the fact remains that none were selected against the vacancies in the Irrigation branch evidently because no demandrequisition ever arrived from the Government
Merely because the 367 appellants appeared at such selection they did not get any right to compe either the commission or the Government to select and appoint them
In deed it is not as if the appellants appeared only for the vacancies in Irrigation Branch
It was a composite notification for all the three wings
The appellant do not say that they confined their applications to Irrigation wing alone Those selected for the other two wings had admittedly scored more marks at the selection
Because the appellants could not get selected against the vacancies in the other wings they have turned their attention to Irrigation wing
The relevance of their attack upon the selection procedure adopted by the Commission becomes clearer in this context
Be that as it may the mere appearance at the selection does not clothe them with the right to selection andor appointment
This is the principle affirmed by this court in State of Haryana vs Subhash Chandra Marwaha  and IJ Divakar vs Government of Andhra Pradesh AIR 1982 SC 1555
At the same time we are constrained to observe that where the Rules have created a particular category fixed its cadre strength and have also prescribed a quota for such category in the matter of promotion to the higher category the Government would not be justified in not making appointments to such category for over a decade unless there are very strong and good reasons therefor
The Government would not be justified in nullifying though not in word but in spirit the Rules in this manner
We are also not persuaded that the defence put forward by the Government in this case is acceptable
There is no reason why the Government did not think it fit to make some adhoc appointments to the category of Assistant Executive Engineers when it was recruiting such a large number on adhoc basis to the category of Assistant Engineers
The situation in which the Government finds itself today is really of its own making
The problem is no doubt real
The courts have to think twice before adding the numbers to the already over loaded service
It is not so much a question of punishing  the errant but one of what to do with the surplus personnel and the consequent unwarranted burden upon the public exchequer
On balancing the contending rights and equities we are of the opinion that at least part of the cadre strength of Assistant Executive Engineers in the Irrigation branch should be filled up in the near future
The question then arises whether the selection held in 1985 86 at which the appellants had appeard should be directed to be finalised
We do not think so
The situation is not similar to the one considered by this court in Divakar
That was a case where the commission called for
applica tions pursuant to the requisition from the Government held the interviews 368 and was about to finalise the select list that the Government withdrew the requisition
In those circumstances this Court while holding that the candidates who appeared for the selection had no right to compel the commission or the Government to select and appoint them yet gave a direction in the interest of justice to finalise the selection process and forward the select Kg to the Government
The situation in this case as already explained hereinbefore is totally different
The only direction that can properly be made herein is to direct the Government to take steps for filling up the vacancies existing in the category of Assistant Executive Engineers in the Irrigation branch as early as possible Atleast half the vacancies therein should be filled within a period of one year from today
Before concluding we must refer to certian letters relied upon by Sri Shanti Bhushan to justify the notification issued by the Commission
He relied upon the letters of the Engineer in Chief dated 1681985 16 2051986 and another letter written in between the date of this letter is not given addressed to the Government of Haryana outing that while at the moment there was no vacancy of Assistant Executive Engineer there was a possibility of some vacancies arising on amount of retirement etc
He there fore requested the Government to take
steps to select persons therefor Firstly it may be noticed that the appointing authority for this category being the Government only the Government could send the requirsitiondemand to the commission and not the Engineer in Chief
The aforesaid letters are merely in the nature of recommendation to the Government
Secondly all the three letters are subsequent to the notification issued by the commission calling for applications
These letters therefore do not justify the commission calling for applications in respect of vacancies in the Irrigation branch
For the above reasons the appeals are allowed partly A direction shall issue to the Government of Haryana to take steps for filling up the vacancies in the category of Assistant Executive Engineers in Irrigation branch of PWD as early A possible
in accordance with law Atleast half the vacancies shall be filled up within am year from today
It is further directed that if any of the candidates who had applied in pursuance of the 1985 Notification apply again and if they are found to have become age barred relaxation in the matter of age shall be granted to them so as to make them eligible for consideration
No other relief co be granted In these appeals
There shall be no order as to costs
TNA Appeals allowed


Summary:
The appellant and his wife went to sleep in the back varandah of their house on the fateful night of 25th26th July 1976 while the appellant s brother alongwith his wife and children went to sleep separately in their bed room in the same house
The Police Control Room was informed over the telephone by a neighbour Sulekh Chand Jain at 455 AM that an incident had taken place in the house and on receiving the telephone message the SI made a record of it in the daily diary and passed on the information to the duty officer at the police station who deputed an ASI to proceed to the spot for investigation
After reaching the spot the ASI informed the police station on telephone that a murder had taken place
The information was recorded and the SHO immediately left for the spot alongwith SI
The police party arrived at the spot at about 535 am and took charge of the investigation
The appellant was present near the dead body and on interrogation the appellant informed the police party that his brother and family had retired for the night in their bed room at about 1000 PM and he alongwith his wife had slept in the back verandah and that when he got up at 345 AM he noticed that his wife had been murdered by somebody by strangulation while committing the theft of the gold chain eartops and golden bangles that she was wearing
The crime team as well as the dog squad were summoned
Both the 227 dogs of the dog squad were first let loose and after picking up the smell from the lock lying in the corner of the back courtyard and from the spot went to the room where the appellant was sitting and each of the dogs pointed towards him by turn
That raised a suspicion against the appellant
The SHO then asked the appellant to remove his shirt and found that the appellant had injuries in the nature of bruises etc
on the front part of his body on the chest as well as on his back The appellant was thereafter taken for further interrogation to the police station and in the presence of the Sub Inspector PWI and PW2 he made a disclosure statement to the effect that he had concealed the golden chain and the bangles in his bathroom and in pursuance of the disclosure statement the appellant led the police party to the bathroom of his house and after removing the cover from the drain hole took out the golden chain and the bangles and handed them over to SHO
The appellant was placed under arrest
After the disclosure statement was made the case which was originally registered under Section 460 IPC was converted into one under Section 302 read with section 203 IPC
After completion of the investigation the challan was filed against the appellant and he was tried for offences under Section 302203 IPC in the Court of the Additional Sessions Judge
The prosecution sought to establish the case against the appellant on the basis of circumstantial evidence there being no eye witness of the occurrence
The circumstances set up by the prosecution were  i information to the police at 455 AM given by a neighbour and not the appellant ii that information that a murder had taken place was not given but intimating the happening of an incident iii The accused having slept at night in the verandah with tile deceased after having locked the collapsable door of the verandah from inside iv The deceased and accused were last seen together v The dogs of the dog squad having pointed out to the accused after picking up scent from the lock vi The ornaments which were on the person of the deceased while she was sleeping and found missing when she was discovered dead were recovered from the drain hole of the bath room attached to the bed room of the accused in consequence of and in pur suance to the disclosure statement made by the accused vii injuries found on the person of the accused in the nature of abrasions contusions and viii the accused having given false information to the police by means of his statement Ext
228 The Sessions Judge after carefully analysing the aforesaid circumstances held that the prosecution has entirely failed to prove any of the circumstances set up against the accused much less to establish the chain of circumstances so as to bring out a nexus between the crime and the accused and acquitted the appellant for the offences under Section 302203 IPC
The State appealed to the High Court and a Division Bench reveresed the order of acquittal of the appellant
The High Court held that the circumstances formed a chain and the sequences were so complete by themselves that one was left in no manner of doubt that the appellant alone had committed the crime
The appeal was allowed the order of acquittal was set aside and the appellant was sentenced to undergo rigorous imprisonment for life under Section 302 IPC and also to undergo rigorous imprisonment for a period of one year under Section 203 IPC
In the appeal to this Court it was contended on behalf of the appellant that the approach of the High Court was totally erroneous and that a well considered and well reasoned judgment of the Trial Court was upset by the High Court by drawing inferences which were not available from the record and by ignoring material discrepancies and infirmities in the prosecution evidence which not only did not establish various circumstances but which also showed that the chain of circumstantial evidence was wholly incomplete
It was further contended that the appellant had been roped in on the basis of misguided suspicion and that the circumstances relied upon by the prosecution were not exclude the hypothesis other than that of the guilt of the appellant
The appeal was contested by the State submitting that some of the circumstances like the pointing out of the appellant by the dogs of the Dog Squad the disclosure statement and the recovery of ornaments as a consequence thereof
and the presence of injuries on the person of appellant were of such a conclusive and clinching nature that they left no doubt that the appellant had committed the crime and this was fortified when the appellant had made the attempt to mislead the investigating officer by giving a false version with a view to screen himself
Allowing the appeal and setting aside the judgment of the High Court convicting the appellant this Court HELD  1
The High Court did not properly appreciate the prosecu 229 tion evidence while reversing the well considered judgment of the Sessions Judge
On independent appraisal of the evidence the prosecution evidence relating to the disclosure statement and the recovery of ornaments is not only discrepent and contradictory but also suffers from glaring infirmities and improbabilities rendering it unsafe to rely upon the same
244H 245B 2
The Sessions Judge was perfectly justified in acquitting the appellant of all the charges and the reasoning given and the findings recorded are sound cogent and reasonable
The High Court was not justified to set aside those findings on surmises and conjectures
The finding of guilt recorded against the appellant by the High Court is not sustainable in law and the prosecution has not established the case against the appellant beyond a reasonable doubt
249B 3a
In a case based on circumstantial evidence motive assumes pertinent significance as existence of the motive is an enlightening factor in a process of presumptive reasoning in such a case
The absence of motive however puts the court on its guard to scrutinise the circumstances more carefully to ensure that suspicion and conjecture do not take place of legal proof
In a case based on circumstantial evidence the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and those circumstances must be conclusive in nature
Moreover the established facts should be consistent only with the hypothesis of the guilt of the accused alone and totally inconsistent with his innocence
238E F 4
No motive has been established by the prosecution for the appellant to commit the murder of his wife and the evidence of Tara Chand father of the deceased as well as the sister of the deceased and the tenants living in the same house disclose that the relations between the husband and wife were cordial
238E 5
The circumstance of the disclosure statement and the consequent recovery pursuant thereto of the ornaments belonging to the deceased is of such an incriminating nature that if found established by reliable and trustworthy evidence it would go a long way to furnish proof of the guilt of the appellant and connect him with the crime and if the evidence in 230 support of that circumstance is found to be not reliable the entire chain of circumstantial evidence will snap so badly as to affect the credibility of the prosecution case as a whole
238G H 6
According to the prosecution after the appellant had been taken to the police station by the investigating officer he was interrogated after being placed under arrest
He voluntarily made a disclosure statement exhibit
The disclosure statement was recorded by the SHO and has been attested by Kuldip Kaul PWI SI Dalip singh PW6 and Harnaik Singh PW2
Pursuant to the disclosure statement the appellant is alleged to have led the police party to the recovery of the ornaments from a drain hole in his bathroom
The recovery memo EXPF was prepared at the spot and was attested by PW6
PWl and PW2 besides the Investigating Officer
239A B 7
According to the appellant however he had made no disclosure statement nor led the police party to the recovery of the ornaments as alleged and according to the defence version the missing ornaments had in fact been recovered by the police party around 11 AM during search from the service lane from underneath a slab near the boundary wall and at that time the appellant and Jagminder Dass Jain were also present
This defence version is supported by the evidence of DW2 Tara Chand father of the deceased
242D E 8
The Sessions Judge carefully considered the evidence led by the prosecution with regard to the disclosure statement and the recovery of ornaments
It was found that the evidence of Harnaik Singh PW2 who according to DW11 Sunder Lal constable of police station Defence Colony had been earlier also cited as a witness for the prosecution in a case investigated by Harmit Singh the then Sub Inspector of police and the present Investigation Officer was not reliable and that the Investigating Officer had not told the truth when he had deposed that he did not know Harnaik Singh earlier
The Sessions Judge also found the evidence of PW1 Kuldip Kaul as not reliable or trustworthy and disbelieved his testimony by giving cogent reasons after properly appreciating the evidence led by the prosecution
The defence version with regard to the recovery found as more probable and it was opined that the investigating officer had created false cluses and fabricated false evidence
243H 244A B D 9
The High Court on the other hand did not deal with the various discrepancies and contradictions appearing in the prosecution evidence 231 relating to the making of the disclosure statement and the recovery of the ornaments but place reliance on the testimony of Kuldip Kaul PWl and Harnaik Singh PW2 to hold that the disclosure statement and the recovery had been made in the manner suggested by the prosecution
244G 10
There is contradiction between the evidence of Kuldip Kaul PWl and the IO as to the place where Kuldip Kaul signed the recovery memo
According to the IO it was signed at the spot while according to Kuldip Kaul PW1 he had returned to the police station and there signed the recovery memo
After carefully analysing the evidence it is found that Kuldip Kaul PWl was a convenient witness and his evidence does not appear to be trustworthy
245B C 11
As regards the recovery of ornaments also there is a very serious infirmity which emerges from the testimony of Harnaik Singh PW2
Contrary to what the IO and the other witnesses stated Harnaik Singh PW2 deposed that the ornaments were taken out by the Sardarji IO from the drain hole and not by the appellant
This probabilises the defence version that the ornaments had been recovered during the search and were with the IO when the ritual of the recovery under Section 27 of the Evidence Act was performed
The contradictions in the evidence of the IO and SI Dalip Singh PW6 as to who had weight the ornaments after their alleged recovery also casts doubt on the correctness of the prosecution story and the bonafides of the investigation
245G H 12
Having regard to the serious discrepancies contradictions and the attempt of the Investigating Officer to create false clues and fabricate false evidence the Sessions Judge was perfectly justified in rejecting the prosecution evidence relating to the disclosure statement exhibit PC and the consequent recovery of the ornaments
247C 13
The prosecution has failed to establish that the appellant did make the disclosure statement as alleged by the prosecution or led to the recovery of the ornaments belonging to the deceased in the manner suggested by the prosecution
This piece of circumstantial evidence therefore has not at all been established much less conclusively
247D 14
Though with the ruling out of the circumstance relating to the recovery of the ornaments as not having been established conclusively the chain of the circumstantial evidence snaps badly there are some other 232 circumstances also in the prosecution case which militate against its correctness
Admittedly the nail clippings of the nails of the deceased had been taken by the police
Were was also recovery of the hair from near the cot where the dead body was lying and the removal of the hair from the scalp of the appellant by the IO for the purpose of their comparison
The report of the chemical examiner has not connected the hair recovered from the cot with those of the appellant
There is no material on the record either to show that the nail clipping had any blood which could have tallied with the blood group of the appellant
Thus both the nail clippings and the hair have failed to connect the appellant with the crime
247F H 15
The possibility that the entire case was built up on suspicion after the dogs of the dog squad pointed towards the appellant connot be ruled out
Since the appellant had slept in the verandah near the cot where the dead body of his wife was found had locked the collapsable door with the recovered lock before going to sleep and had himself been close to the dead body before the police came the picking up of the smell by the dogs and pointing towards the accused could not be said to be a circumstance which could exclude the possibility of guilt of any person other than that of the appellant or be compatible only with hypothesis of guilt of the appellant
The pointing out by the dogs could as well lead to a misguided suspicion that the appellant had committed the crime
248E F 16
The explanation of the appellant regarding the injuries on his person as having been caused by the police is also quite plausible because according to the father of the deceased the sister of the deceased the tenants of the house and other neighbours who had reached the spot the appellant was wearing only a vest and the pyjama and no shirt and there were no marks of injuries on his body before he was taken to the police station
The prosecution case regarding the presence of injuries on the person of the deceased also therefore is quite doubtful
248G H