N Criminal Appeal No 480 of 1979
From the Judgment and Order dated 341979 of the Madhya Pradesh High Court in Criminal Appeal No 239 of 1974
RC Kohli for the Appellant
UN Bachawat and Uma Nath Sing with him for the Respondent
457 The Judgement of the Court was delivered by AHMADIJ The appellant has been convicted under Section 30234 IPC for causing the murder of one Negji son of the Parthesingh of village Melakhedi
The prosecution case was that the family of the appellant and the family of the deceased were at loggerheads since quite sometime and there was bad blood between them
In 1967 Bhowansingh a member of the complainant s family is stated to have been murdered by the appellant s party
Thereupon the deceased along with others is stated to have fatally assaulted Bhagwansingh and Bahadursingh and inflicted grievous injuries of Govardhansingh
These three are none other than the sons of the appellant
The deceased and his companions were however acquitted
It is said the appellant Daryao Singh was therefore keen to avenge the deaths of his sons
As a sequel to the earlier incident it is said that the incident in question occurred on 25th September 1970 at about 400 pm
The fact that relations between the two families were strained is therefore not in dispute
On 25th September 1970 the deceased Negji was working in his field along with his son PW 4 Bhanwar Singh
At that time the appellant went there in the company of Nagusingh Govardhansingh and Bapusingh
Nagusingh was armed with a gun and a stick with dharia like blade Govardhansingh was armed with a similar weapon the appellant was armed with a sword and Bapusingh possessed a gun
They lanuched an attack on the deceased Negji whereupon the the latter raised an alarm which attracted the attention of Pw 1 Bherusingh and Pw 3 Bhuwan Singh who were working in the adjacent filed
They reached the spot and witnessed the incident
On their raising a hue and cry the appellant and his companions fled away
PW 4 had run away frightened when a shot was fired at him
The deceased Negji sustained serious injuries on the head and his right leg was cut into two
PWs 1 and 3 went in search of PW 4 but on the way met two police constables PW 8 Chhotelal and PW 10 Itratkhan
They narrated the incident and disclosed the names of the assailants to them
All the four returned to the place of occurrence placed Negji in a cart and proceeded towards the police station
But the injured passed away on the way
The dead body appears to have been taken to the hospital on the next day at about 520 pm PW 2 Dr
Sharma performed the post mortem examination on 27th September 1970 at about 700 am Except the appellant the rest of the assailants could not be put to trial as they were reportedly absonding
458 The prosecution mainly relies on the evidence of PW 13 and 4
In addition the prosecution seeks corroboration from the evidence of the two Police Constables PWs 8 and 10 whom the names of the assailants were disclosed immediately after the incident
PW 8 however turned hostile and was permitted to be cross examined by the learned Public Prosecutor
This in brief is the prosecution evidence against the appellant
The learned Trial Judge on an appreciation of the prosecutiion evidence concluded that having regard to the long standing enmity between the two families it was hazardous to place implicit reliance on the interested testimony of PWs 13 and 4 more so because their testimony was not corroborated in material particulars by independent evidence
Besides according to the Trial Judge the evidence of DW 3 Keshav Shanker Varang established that the appellant was a physically disabled person who could not have weilded the sword with such ferocity as to cut the right leg into two pieces
To disbelieve the prosecution case the learned Trial Judge referrd to the evidence of the hostile Constable PW 8 but failed to take note of the evidence or PW 10
As the three eye withnesses were closely related to the deceased the learned Trial Judge applied the rule of prudence and thought it wise not to base a conviction on thier uncorroborated evidence
He therefore acquitted the appellant
Feeling aggrieved by the order of acquittal passed by the learnd Trial Judge the State of Madhya Pradesh preferred an appeal of the High Court which was disposed of by a Division bench by its impugned judgment and order dated 3rd 1979
The Division Bench held that although the three prosecution witnesses were closely related to the deceased their evidence could not be discarded solely on the ground that they were interested and partisan witnesses but all that the rule of prudence demanded was to evaluate their evidence with caution
On a close scrutiny of the evidence of the said three witnesses the Hight Court found that nothing was brought out in their cross examination to doubt their credibility
On the contrary the High Court felt that their evidence was partly corroborated by PW 10 and medical evidence
So far as the evidence of PW 8 is concerned the High Court observed that he had turned hostile and had deliberately departed from his earlier statement to the Police as well as the entry in his police diary
In this view of the matter the High Court reversed the order of acquittal and convicted the appellant under section 30234 IPC
It is this conviction which is assailed before us in this appeal by the appellant
459 The learned counsel for the appeallant took us through the evidence of PWs 13 and 4
PWs 1 and 3 are the brothers of the deceased and PW 4 is his son
Indisputably there was bad blood between the two families on account of past incidents which may have ignited a desire for vendatta in the appellant and his companions
At the same time the High Court also cautioned itself to the possibility of false involvement on account of the long standing enmity
The Hight Court then scrutinised the evidence of the aforesaid three witnesses and found that their evidence had no been shaken by elaborate cross examination
That means according to both the Courts if their evidence can be trusted as credible it would prove the appellant s involvement in the crime
Therefore if their evidence is otherwise found to be reliable there can be no doubt that a conviction can be based on their evidence notwithstanding i their close relations with the deceased and ii the long standing enmity between the two families
We too have perused their evidence and taken at its face value we find no infirmity
Even the learned counsel for the appellant did not contend that there was any intrinsic infirmity in their evidence
All that he submitted was that it would be unwise to convict the appellant on their evidence without seeking corroboration
Since PW 8 has deliberately departed from his earlier version and has not told the truth his evidence cannot dilute their evidence
Immediately after the incident  while PWs 8 and 10 were passing by they were informed of the incident and the names of the assailants were disclosed to them in regard to which they made enteries in their respective diaries
The contradiction brought on record in the cross examination of PW 8 shows that the names of the assailants were disclosed to him
This was sought to be further reinforced by the entry in his diary wherein the name of the appellant appeared as one of the assailants
The learned Trial Judge wrongly attributed this entry to the ingenuity of the investigation officer
It is therefore obvious that PW 8 is not a dependable witness
The High Court s conclusion in this behalf is unassailable
The learned Trial Judge made no reference to the evidence of PW 10
The High Court has referred to his testimony
This witness stated that while he and PW 8 were passing by a frightened PW 1 approached them and reported that his brother was assaulted by the appellant and his companions
The High Court has accepted the testimony of the witness and we think rightly
The evidence of the witness therefore lends corroboration to the prosecution version regarding the involvement of the appellant
This discloseure was made to PW 10 immediately after the incident before there was any time of deliberation or concoction
the medical evidence shows that the deceased had as many as seven injuries one of which was on the skull
the number and nature of the 460 injuries clearly indicate that more than one person was involved in the assault
It is therefore clear that the medical evidence also lends corroboration to the prosecution version to this limited extent
Strong reliance was however placed by the learned counsel for the appellant on the evidence of PW 2 Dr
Sharma
This witness has after describing the various injuries stated that the body was cold rigor mortis and passed off and the body was decomposed when he performed the post mortem examination on the morning of 27th September 1970
He also noticed blisters containing reddish fluid all over the body
The abdomen was swollen and greenish discoloration was noticed
In his opinion death was caused on account of the brain injury
In paragraph 6 of his deposition he stated the duration of injury since death was 36 to 48 hours
In cross examination he said As the dead body was decomposed externally and internally blisters had formed all over the body scrotum distented marks of swelling on body presence of magets on body all these symptoms do indicate that their duration of injury since death could be 14 to 20 days also
 On the basis of these statements made by PW 2 counsel for the appellant strongly argued that death must have taken place long before 25th September 1970 since blisters had appeared on the body
In this connection he placed reliance on the table found at page 134 of Modi s Medical Jurisprudence and Toxicology12th Edn
It read as under Putrefactive changes Time 1 to 3 days after 1
Greenish coloration death
over the iliac fossae The eyeballs soft and yielding
Green coloration spreading 3 to 6 days over the whole abdomen after death
external genitals and other parts of the body
Frothy blood from mouth and nostrils
Abdomen distrended with gas
Cornea 8 to 10 days fallen in and concave
Pur after death
lish red streaks of veins prominent on the extremities Sphincters relaxed Nails firm
461 4
Body greenish brown
Blisters 14 to 20 days froming all over the body
Skin after death
peels off
Features unrecogniz able
Scrotum distension
Body swallow up owing to distorsiopn Maggots on the body
Nails and hair loose and easily detached
Soft parts changed into a thick semi 2 to 5 fluid black mass
Skull abdomen and months thorax burst
Bones exposed
Orbits after empty
death
_______________________________________________________ It is indeed suprising that no such submission was made on behalf of defence before the Trial Court as well as the High Court
Even in the memo of appeal no such precise contention appears
Hoeever we have thought it proper to examine the submission on merits rather than reject it on a technical ground
Counsel of the appellant strongly relied on this statement of PW 2 Dr
Sharma and contended that the presence of blisters all over the body is a sure pointer to the fact that death had taken place 14 to 20 days before the post mortem examiniation
It may be recalled that the deceased was 45 years of age and was the victim of violent attack with lethal weapons in which he had suffered a fatal semi circular woundon the scalp 6 x 4 extended by 2 to the left mid line
In addition thereto he had received incised wounds on his left forearm resulting in fractures
His right leg was cut into two pieces 6 below the tibia liquified blood was oozing out maggots were prersent blisters were seen all over the body and the soft cuticle peeled off easily
There was another cut wound on the left leg exposing the tibia
A 5 wound was seen at the right side of the mouth
It was the scalp injury which caused the death
It is common knowledge that after death the body starts to cool down to the surrounding temperature
The cooling of the body is the earliest phenomenon which is followed by post mortem lividity resulting from discontinuance of blood circulation and collection of blood in certain parts under gravitational action depending on the position of the dead body
the stoppage of blood circulation and the inaction of the natural defensive mechanism result in the bacteria present in the body as well as those that enter from outside getting scattered in everypart of the body setting in the process of putrefaction unless special 462 care is taken to prevent the same
Decomposition in thus essentially the process of putrefaction which is dependent on environmental climatic conditions
In the present case death had occurred on 25th September and the dead body lay in the police station with the wounds exposed till it was brought to the hospital at 520 pm on the next day
The body remained in the same condition in the hospital till 700 am on the next day when the post mortem examination was undertaken
The bdy thus remained fully exposed to the heat and humidity of the month of September for over thirty hours and hence it is not surprising that the rigor mortis had passed off
Ordinarily after rigor mortis has passed off the process of putrefaction sets in but it may set in even earlier during summer depending on the heat and humidity
Body changing colour and emitting foul smell are the two special characteristics of the decomposition process
The first external evidence of putrefaction is the formation of greenish discoloration of the abdominal skin over the iliac fossae which occurs within six to twelve hours in summer and spreads all over the body within twelve to eighteen hours of death
As time passes they deepen in colour and become purple
With the spread of bacteria there is gradual development of gases in the intestines within twelve to eighteen hours and liquefaction also takes place and soon spreads to other parts of the body
Putrefaction thus results in general disintegration of the tissues due to residual enzymatic activity in the cells causing widespread formation of gases emitting foul smell and if the body is exposed as in the present case files lay eggs on exposed wounds forming maggots
The body gets bloated and liquified the skin looses coherence the superficial layers peel off easily and blisters are formed
it is therefore not suprising that owning to the formation of gases the penis and the scrotum were swollen and there was the presence of maggots
Before we answer the contention it is essential to notice a few facts
The evidence of PWs 13 and 4 is that the incident occurred in the field of the deceased
This fact is corroborated of PW 5 Motilal and PW 6 Parbatsingh
The find of blood on the grass blades and on the earth attached under the seizure memo Exh
p 8 confirms their testimony
The evidence of these witnesses further shows that the injured was taken in a cart to the village and from there to the Bhakheda police station
this is further established by PW 10 who has deposed that the vitim was brought in a cart to the village
the circle Inspector PW 12 also deposes that the corpse was brought to the police station and from there it was sent to the hospital for post mortem examination which was undertaken on 27th September 1970 at 700 am
This evidence establishes the chain of events showing the movement of the dead body and rules out of the theory that death had taken 463 place many days before 25th September 1970 a theory not put to the witnesses in cross examination
The direct testimony therefore does not support the theory urged on behalf of the appellant
Counsel for the appellant however emphasised that the statement of PW 2 in cross examination clearly established the existence of blisters an objective fact which clearly supports the defense theory that death had taken place 14 to 20 days prior to the date on which the post mortem examination was held and thereby disprove the prosecution version that the victim of assault died on the evening of 25th September 1970
It is interesting to note that table on which the learned counsel for the appellant relies is omitted from the 19th and 20th edition of the book
But that apart at pages 128 129 of the bok Twentieth Edition it is stated as under From twelve to eighteen hours after death in summer the green coloration spreads over the entire abdomen and the external genitals  
Side by side with the appearance of the greenish patch on the abodomen the body begins to emit a nauseating and unpleasant smell owing to gradual develoment of the gases of decomposition some of which are sulphuretted hydrogen marsh gas carbon dioxide ammonia and phosphoretted hydrogen
From twelve to eighteen hours after death in summer these gases collect in the intestine consequently abdomen swells up
The sphincters relax and the urine and faeces may escape
From eighteen to thirty six or forty eight hours after death the gases collect in the tissues cavities and hollow viscera under considerable pressure with the result that the features become bloated and distored the eyes are forcedout of their sockets the tongue is protruded between the teeth and the lips become swollen and everted
A frothy reddish fluid or mucus is forced from the mouth and nostrils
Ultimately the features become obilterated and unrecognizable
The abdomen becomes greately distended hence on opening the cavity the gas escapes with a loud explosive noise
Owing to the pressure of the gases the stomach contents are forced into the mouth the larynx and are seen running out of the mouth and nostrils
The breast of female bodies are greatly distended
The penis and scrotum become enormously swollen
The cellular tissues are inflated throughout so that the shole body appears stouter and older than it actually is
464 These gases from blisters under the skin containing a reddish coloured fluid on the various parts of the body
When these bursts the cuticle being softened peels of easily
These are characterised by absence of vital reaction
It will thus be seen that blisters appear after the process of decomposition sets in whithin eighteen to fotry eight hours
It shows that the existence of blisters does not mean that death had taken place 14 to 20 days ago
That is why PW 2 is cautious to use the pharseology the duration of the injury since death could be 14 to 20 days also 
Having regard to the nature of the direct testimony to which we have adverted earlier andthe passage reproduced above we find it difficult to accept the belated submissions of the learnd counsel for the appellant that the opinion of the medical expert PW 2 destroys the version of the prosecution witnesses particularly PWs 134 and 10 that the deceased suffered a fatal wound on the evening of 25th September 1970 to which he succumbed on that very day
We therefore reject this submission
It was lastly submitted that the evidence of the radiologist
Keshav Shanker Varang DW 3 goes to show that the appellant was a disabled person and it was not possible for him to cause an injury so serious as to cut the leg in two parts
In this connection our attention was drawn to paragraph 7 of his deposition wherein he has stated that looking to the fracture of the appellant s leg and his chest condition he was a disabled person who could not run fast or walk quickly and therefore argued counsel he could weild the sword with such ferocity as to cut the leg in to parts
In cross examination he has admitted that he had not examined the muscle power the appellant
He conceded that the elbow was free and therefore he could use the weapon but not with great force
The High Court has considered this submission in paragraph 8 of its judgment and has rejected it
We do not think that having regard to the fact that the appellant alone was weilding the sword it is to rely on this opinion evidence in preference to the direct evidence of three witnesses
High Court has rigtly rejected this submission and we need not dilate on it
For the above reason we see no merit in this appeal and dismiss the same
Bail cancelled
The appellant will surrender forthwith


Summary:
Clause 9 of the promotion policy of the Appellant Bank provides that an officer in respect of whom disciplinary action is in process will be permitted to take Part in the promotion process subject to the condition that his promotion will be withheld until the officer is exonerated from the charges and in case such an officer is exonerated from the charges the promotion shall take effect from the date on which it would have been otherwise effective but for the disciplinary action
Respondent 1 a Bank Manager was Promoted from Scale II to Scale Ill under the aforesaid clause while disciplinary proceedings were contemplated against him
Later he was also interviewed for promotion from Scale IlI to Scale IV
thereafter the appellant Bank charge sheeted him and initiated a departmental inquiry against him
He challenged the legality of the bank s action by filing a declartory suit contending that in view of the promotion granted to him the appellant Bank must be deemed to have condoned the earner misconduct and subsequent to his promotion it was not open to the Bank to take any action against himn
The Trial Court allowed the suit and restraied the appellant bank from Proceeding with the inquiry by holding the charge sheet illegal
The order of the trial court was affirmed by the first appellate court and the second appeal filed by the bank was also dismissed by the High Court
In appeal to this court it was contended on behalf of the bank that the grant of promotion to the appellant under clause 9 cannot be regarded in law as condonation of pre promotion misconduct
On behalf of the respondent it was contended that even if the continuation of 474 disciplinary proceedings was valid it was not a ground for holding up of his promotion from Scale Ill to Scale IV because on the date of interview no charge sheet was served on him
Allowing the appeal and setting aside the order of the High Court this Court HELD 1
The mere fact that disciplinary proceedings are contemplated or under consideration against an employee does not constitute a good ground for not considering the employee concerned for promotion if he is in the zone of consideration nor would it constitute a good ground for denying the promotion if the employee is considered otherwise fit for promotion
Clause 9 of the Promotion Policy of the Bank gives rise to the implication that the disciplinary action is in process or initiated the officer concerned against whom allegations of misconduct might be made can neither be excluded from consideration for promotion if he is entitled to be considered for promotion otherwise nor can the promotion be denied to him
In these circumstances when the promotion from Scale II to Scale III was granted to respondent there could be no question of condonation of the earlier acts of misconduct by reason of this promotion because in law and in view of clause 9 of the Promotion policy appellant had no option but to consider respondent for promotion and if he was otherwise found fit for promotion to promote him
Hence the charge sheet submitted against respondent and the disciplinary proceedings pursuant to the said charge sheet cannot be said to be bad in law and cannot be interfered with on the ground of condonation
Therefore the courts below were in error in holding that the earlier alleged acts of misconduct of respondent had been condoned by the appellant and basing their conclusions thereon
476G H 477F H 488A LW Middleton vs Horry Play Fair AIR 1925 Cal 87 District Council Amraoti through Secretary vs Vithal Vinayak Bapat AER 1941 Nagpur 125 and Audhraj Singh vs State of Madhya Pradesh AIR
MP 284 held inapplicable
In view of the fact that the appellant bank has agreed that without creating a precedent it will grant promotion to respondent from Scale Ill to Scale IV if the departmental promotion Committee finds him fit for promotion and that this promotion will be granted from the date on which he would have been promoted but for the departmentl inquiry being contemplated against him it is unnecessary to express any opinion on the submission that since on the date of selection for promotion from Scale III to Scale IV no charge sheet was served on the 475 respondent it was not open to the bank to hold back the respondent s promotion from Scale IH to Scale IV
479C D