minal Appeal No 818 of 1985
From the Judgment and Order dated 471985 of the Kerala High Court in Criminal Appeal No 251 of 1982
PS Poti and Ms Malini Poduval for the Appellant
MT George for the Respondent
The Judgment of the Court was delivered by NP SINGH J
The appellant along with others was put on trial for offenses under sections 302 read with 149 148 323 of the Penal Code on the charge of committing the murder of Moideen Kutty hereinafter referred to as the deceased
The Trial Court on consideration of the 695 materials on record came to the conclusion that the charges leveled against the accused persons have not been established beyond all reasonable doubt and on that finding acquitted the appellant as well others
On appeal being filed on behalf of the State of Kerala the High Court convicted the appellant under section 302 of the Penal Code and sentenced him to undergo rigorous imprisonment for life
So far another accused Alavi who had been acquitted by the Trial Court was also convicted by the High Court under section 323 of the Penal Code and sentenced to pay a fine of Rs 250 and in default thereof to suffer simple imprisonment for a term of one month
The acquittal of other accused persons was affirmed by the High Court by dismissal of the appeal against them
The case of the prosecution is that on 1691980 Mammed Kutty at 600 AM in the morning pelted stones at the house of the deceased
At about 1200 in the noon while Mammed Kutty and his brother Abdulla Kutty were passing in front of the house of the deceased a protest was made by the deceased in respect of the morning incident
They denied that any stone had been pelted by them
It is the further case of the prosecution that at about 2 PM while the deceased was sitting with his wife PW4 and others on the varandah of his house five persons including the appellant came to his courtyard and challenged him to come out if he wanted to beat aforesaid Mammed Kutty and Abdulla
The deceased stepped out into his courtyard and asked the accused persons not to create a scene
At this the appellant and the other accused since acquitted gave some blows to the deceased on his hand
Thereafter the deceased raised his hand to give a blow to the appellant
At this very moment the appellant took out a dagger from his waist and gave an injury on the upper part of the chest of the deceased near the left shoulder and above the armpit
The deceased ran towards the house of PW1 and fell on the varandah
Thereafter the accused persons escaped
The victim was removed to the Medical Hospital Calicut where he was examined by PW9
But soon thereafter he expired
The First Information Report was lodged at 715 PM
After investigation the charge sheet was submitted against five accused persons
At the trial prosecution examined four eye witnesses PW1 to PW4
The doctor who held the post mortem examination was examined as PW8
He found only one incised penetrating wound vertically placed on the front of left shoulder above the left armpit tailing 6 cm
in length running towards from the lower sharp end
 According to his opinion The an 696 died because the artery was cut 
This injury became dangerous only because it cut the artery 
In the cross examination PW8 stated that it was impossible to cause an injury like one which was found on the person of the victim by the assailant standing in front of the victim
He also stated that the tailing of the injury show that either the knife was dragged after stabing or that the injury was caused during the course of the struggle
According to him if the accused had given a direct blow as is normally done there would not have been the tailing of the injury
The learned counsel appearing for the appellant placed the statement made in the First Information Report the evidence of the eye witnesses in connection with the morning incident of pelting of stones to show that it was a concoction and none had pelted any stone on the house of the deceased
According to the learned counsel if this part of the prosecution case is disbelieved then it shall have a bearing on the main occurrence itself
It was also pointed out that the prosecution has suppressed real manner of occurrence in as much as one Abdulla on the side of the accused persons was first assaulted by the prosecution party on the same day at about 130 PM and he was hospitalised after having received the injuries
That incident was an integral part of the occurrence which has not been disclosed by the prosecution
In this connection our attention was drawn to the evidence of DW1 who has stated that he had examined the injuries on the person of one Abdulla on 1691980 at 430 PM and found three injuries on his person i A contusion on the left shoulder 4 x 2 cm ii abrasion below the right collar bone 3 x 5 cm
and iii injury on the outer side of the left ankle 4 x 3 cm
He has also stated that the said Abdulla had alleged that he had been assaulted with a wooden stick at 130 PM the same day
The Trial Court while acquitting the accused persons has attached great importance to the injury found on the person of aforesaid Abdulla and has drawn adverse inference against the prosecution case
The High Court has rightly pointed out that merely non disclosure of the aforesaid superficial injuries on the person of Abdulla even if those injuries had been caused in the same occurrence shall not in any manner affect the prosecution case It is well settled that if the evidence of the eye witnesses are held to be reliable and inspire confidence then the accused cannot be acquitted solely on the ground that some superficial injuries found on the person of the accused concerned had not been explained by the prosecution
697 According to us if the evidence of four eve witnesses including the evidence of the son and the wife of the deceased are accepted as reliable and trust worthy then the prosecution case cannot be rejected merely on the ground that the incident of pelting of the stones on behalf of the accused in the early morning had not been proved or established or that some minor injuries on the person of Abdulla caused in the same occurrence had not been disclosed and explained by the prosecution
So far the four eve witnesses are concerned they have been named in the First Information Report
The First Information Report was lodged at 715 PM the same evening within two hours of the death of the victim
In the First Information Report the details of the occurrence was men tioned
The version disclosed in the First Information Report has been supported by the eye witnesses before the Court
The learned counsel appearing for the appellant could not point out any reason why their evidence against the appellant should not be accepted
It may be pointed out that in the First Information Report itself PW1 the informant stated that this appellant came to the house of the deceased and challenged him as to who was there to beat Abdulla and Muhammed Kutty
He further stated that having heard this the deceased moved towards them and asked them to go back
At that very moment this appellant and the other co accused Alavi gave him blows on his hand
Thereafter the deceased tried to give counter blow to the appellant
Then the appellant took out a knife from his waist and gave a blow from the said knife to the deceased at his left collar bone
The prosecution very fairly admitted that accused persons were not carrying any weapon in their hands and during the protest made a sudden quarrel and fight took place between the prosecution party and the accused persons
Even at trial evidence the eve witnesses have admitted this part of the version and have stated that first the appellant and the other co accused gave blows on the hand of the deceased
The knife blow was given by the appellant when the deceased was trying to give a counter blow to the appellant
There is no dispute that the appellant suddenly took out the knife during the course of the quarrel and fight from his waist
From the evidence of doctor PW8 referred to above it appears that injury aforesaid could not have been caused by the assailant standing in front of the victim
It could have been caused only during the struggle
In view of the admitted position that a sudden fight and quarrel preceded the giving of the knife 698 blow by the appellant to the victim which in all probabilities was given not while the victim and the appellant were standing face to face but during a struggle between them causing tailing of the injury it shall not be just and proper to hold that appellant had an intention to cause the death of the victim
Taking the evidence of the witnesses along with circumstances of the case according to us the appellant had the knowledge that injury which he was causing was likely to cause death but he had no intention to cause the death of the victim
In such a circumstances it is not possible to uphold the conviction of the appellant under section 302 of the Penal Code
Accordingly the conviction and sentence passed against the appellant under section 302 of the Penal Code are set aside
The appellant is convicted under section 304 part 11 of the Penal Code and sentenced to undergo rigorous imprisonment for seven years
The appeal is allowed in part to the extent indicated above
The bail bond is cancelled
NVK Appeal partly allowed


Summary:
Recruitment to the Andhra Pradesh Higher Judicial Service is governed by The Andhra Pradesh State Higher Judicial Service Special Rules
Rule 1 constitutes the service
Category 1 consists of District and Sessions Judges 1st grade and Category 11 consists of District and Sessions Judges Second Grade
Appointment to Category 1 is from Category 11
Appointment to Category 11 is from two sources by transfer from amongst the Subordinate Judges and by direct recruitment from the Bar
The petitioner were direct recruits whereas respondents 4 to 16 were promoted from the Subordinate judiciary
The respondents were Initially appointed on temporary basis in the yew 19781979 but they were made substantive in the year 1983
The petitioners who were appointed substantively in the year 1981 claimed seniority over the said respondents and riled the Writ Petition under Article 32 of the Constitution of India for relief
It was contended on their behalf that 1 The Service consists of only permanent posts there is no provision under the Special Rules for adding temporary posts to the cadre consequently the appointment of respondents 4 to 16 to the post of District and Sessions Judges Second Grade on temporary basis can at best be treated under Rule 10ai of the Andhra Pradesh State and Subordinate Service Rules
2 The temporary service rendered by the respondents 4 to 16 being outside the cadre cannot be counted towards seniority
3 Porviso to Rule 2 and Rule 6 of the Special Rules have to be read together and as such the permanent vacancies having been made available for them in the year 1983 their service 548 prior to that date cannot be counted towards seniority
The respondents constested the writ petition by contending that the petitioners were appointed in the year 1981 and since then till the year 1988 twelve seniority lists have been published showing the petitioners below respondents 4 to 16 and at no point of time they challenged the seniority lists in the Court
Even when the Writ Petition THB Chalapathi  Ors
vs High Court of Andhra Pradesh  Ors was pending in the High Court they did not intervene
The petitioners were thus guilty of gross delay and latches and as such are not entitled to get relief in the Writ Petition
Dismissing the writ petition this Court HELD 1
i Rule 1 has to be interpreted to mean that the service under the Special Rules consists of all the posts permanent and temporary which have been designated as District and Sessions Judge Second Grade
Even otherwise in the absence of any prohibition under the Special Rules the State Government can always create temporary posts as addi tions to the cadre
554 B ii Rule 10ai of the Andhra Pradesh State and Subordinate Service Rules has no application to the Andhra Pradesh Higher Judicial Service which is governed by the Special Rules
Rule 10ai provides for emergency appointments made on stop gap basis to meet a temporary exigency
Apart from that the temporary appointments under the said Rules are made without following the procedure prescribed under the Rules governing the relevant Service
554 C D In the instant case the appointments of respondents 4 to 16 were made under Rule 2 of the Special Rules by the State Government in consultation with the High Court
The Special Rules provide a complete scheme for the appointment and seniority of the members of the Service
554 D 2
Temporary posts of District and Sessions Judges Second Grade being part of the Service the seniority has to be counted on the basis of length of service including the service against the temporary posts
554 F 3
Rule 6 of the Special Rules is in no way dependent on the proviso to Rule 2 of the Special Rules
Both are to be operative independently
In 549 the scheme of the rules the seniority rule is not dependent on the quota Rule
Quota has been provided for the direct recruits only against permanent posts
The seniority rule permits the counting of total period of service from the date a person is on duty against a post in the category
554 G H In the instant case even though the petitioners were appointed substantively to the service earlier to respondents 4 to 16 but in view of Rule 6 they cannot be declared senior on the basis of continuous length of service
Respondents 4 to 16 have been rightly given seniority above the petitioners
555 A