N Criminal appeal No 512 of 1979
From the Judgement and Order Dated 1871979 of the Allahabad High Court Crl
A No 564 of 1974
UR Lalit Sobhag Mal Jain Sudhanshu Atreya Ms P Jain and SK Jain for the Appellants
Vijay Bahuguna Prashant Chaudhary and D Bhandari NP for the Respondent
The Judgement of the Court was delivered by VRAMASWAMI J
The four appellants along with 15 others were charged for offences punishable under Section 302 read with section 149 and also section 201 read with section 149 and section 147 and 148 of the Indian Penal Code
The charges were that they were members of an unlawful assembly in prosecution of the common object of namely to deter Ram Sewak PW2 from filing the nomination paper for the post of Pradhan Gaon Sabha Tikhra and to commit the murder of his associates including one Gajendra Singh Yadav deceased a resident of village Bibiapur and in furtherance of that common object did commit the murder of the said Gajendra Singh Yadav and live cartrides belonging to the deceased
They were also charged that in furtherance of the said common objects and knowing that the murder of the said Gajendra Singh was punishable with death or imprisonment for life and caused the evidence of the said offence to disappear by scraping the blood stained earth at the scene of occurrence and burning it and taking away the dead body of Gajendra Singh and thereafter burning it with the intention of screening of evidence
The first Additional District and Sessions Judge Kheri in Sessions Trial No 264 of 1973 acquitted all the accused persons of all the charges on the ground that there are many infirmities rendering the prosecution evidence unworthy of belief
The State of Uttar Pradesh preferred Criminal Appeal No 654 of 1974 before the Lucknow 859 Bench of the Allahabad High Court
The High Court set aside the acquittal of the first appellant Bhupendra Singh 1 and convicted him for offence under section 302 of the Indian Penal Code and sentenced him to a term of life imprisonment
The High Court also set aside the acquittal of the second third and fourth appellants A4 7 and 8 in part convicted them under section 201 IPC and sentenced them to a term of seven years rigorous imprisonment under that section
The acquittal of the appellants under the remaining charges were confirmed
The High court also acquitted the other 15 appellants of all the charges
The prosecution case was that the deceased and Ram Sewak PW2 who are residents of village Bibiapur alongwith Tarun Kumar PW1 son of the deceased Ram Avtar Yadav PW3 and their party people came to the village Padarial Tula in a bullock cart on 2541972 for the purpose of filing the nomination papers of Ram Sewak PW2 for the election of Pradhan of Gaon Sabha
they reached around 1030 AM the Mela Maidan near the compound of school cum temple in village Padaria Tula
They left the bullock cart and the bullocks in a nearby place to the west of the eastern pathway about 50 paces away from the school where the nomination papers had to be filed
Bhupendra Singh the first accused was also a candidate for the office of Pradhan of Gaon Sabha
He had also come for filing the nomination along with the other accused who were his supporters
On seeing the party of the deceased arrive Bhupendra Singh enquired Ram Sewak PW2 whether he had come to file nomination paper against him
At that time Gajenddra Singh deceased intervened and challengingly told the first accused that he should ask him
This resulted in verbal altercation between the first accused and the deceased
The first accused then fired a shot with his rifle at the deceased and on receiving the bullet injury the deceased fell on the ground
The prosecution case further was the six other accused had also guns and they also fired at the deceased
The other accused who were armed with lathis and ballams physically assaulted the deceased
Thereafter the accused dragged the deceased to a small mound on the west of the scene of occurence and then loaded the dead body on the trolley of a tractor belonging to the first accused which had been used by the accused to reach at the scene and which driven by the first accused and the deceased was taken away
All the accused got into the trolley and shouting loudly that they are going to burn the body and throw its remains in the water drove the tractor towards the north
PWs 1 to 6 are stated to be eye witnesses to this part of the occurrence
PWs 789 and 10 are stated to have seen the first accused driving the tractor to 860 which the trolley was attached and the three other appellants and 15 or 16 more people sitting on the tractor and going towards a revolt shouting that they are taking the body of Gajendra Singh and that the will be burnt and thrown into the river
PW 10 Lalji also claimed that he saw the burning of the dead body near the river and the ashes thrown in river suita
Tarun Kumar PW1 son of the deceased went to his village Bibiapur wrote the report exhibit Ka 1 and gave the first information report before the Station House Officer Thana Mira which is about 12 miles from the scene of occurrence at 330 PM on that day
Rama Nand Tewari PW17 took up the investigation reached the scene of occurrence at 530 PM and seized some blood stained earth at a point market A  in the plan and also some ashes besides 55 pellets wads teeth and some buttons on the spot under Mahazars which were attested by Rajendra Prasad PW4 and Durga Prasad PW5 and another
On the 27th of the April 1972 he interrogated Asharfi PW7 Chhotanney PW8 Reoti Prasad PW9 and Lalji PW10 and accompanied by them he reached the jungle at the outskirts of village Daulatpur where he found burnt leaves near a Shisham tree
He seized burnt earth ashes and burnt pieces of bones under recovery memo in the presence of Rajendra Prasad PW4 and Durga Prasad PW5
On the 14th of May 1972 in Village Mudia he interrogated Ram Autar PW3 Ram Sewak PW2 Gaua Din PW6 and others submitted the charge sheet on 4th December 1972
As already stated the charge against the first appellant was one under section 302 read with section 149 IPC and the Trial Court had acquitted him of that offence
The High Court on appeal by the State while setting aside the acquittal of the first appellant convicted him for the substantive offence under section 302 IPC on the ground that the he was the principal offender that his shot resulted in death of Gajendra Singh and the other accused persons to whom no specific part has been brought home were entitled to benefit of doubt
The High Court also believed the prosecution case relating to the disposal of body by taking it away from the scene of occurrence and burning it and throwing the ashes in the river but held that PWs 789 and 10 speak of the appellants alone by name as among the persons in the tractor and trolley and the names of others were not mentioned by them and therefore set aside the acquittal in respect of the offence under section 201 of IPC in so far as the appellants are concerned and convicted them and sentenced them a term of seven years of rigorous imprisonment
The four appellants have filed the above criminal appeal against this conviction and sentence of the High Court
861 There could be no doubt that an occurrence of type spoken to by the prosecution witnesses had taken place at the Mela Maidan Padaria Tula 2541972 was the date fixed for filing nomination papers for the election of Pradhan of the Gaon Sabha comprising Padaria Tula
The place where the nomination papers had to be filed is the school premises at the place
Ramesh Chander Mishra PW15 the Sub Deputy Inspector of Schools had been authorised to receive the nomination papers
He was assisted by the Gram Sewak Verma CW1 and Rajendra Prakash PW14 among others
They had stated in their evidence that they were inside the school premises and that around 1030 A M they heard gun shots near the school
PW2 Ram Sewak as also the first appellant Bhupendra Singh had come there to file their nomination papers along with other party people
The investigating officer had made certain recoveries from the scene of occurrence along with bullock cart and the two bullocks in which the deceased and his party had come to the sense
The evidence of PWs 1 to 6 are also uniform that the occurrence had taken place at that place
We can therefore safely assume that the incident took place at the Mela Maidan near the compound of School cum temple in Village Padaria Tula as stated by the prosecution
It is true that the pieces of burnt bones recovered from the place where the body was stated to have been burnt were set to the Serologist but he was unable to tender any opinion regarding origin sex and age
Though it was contended by the learned counsel for the appellants that the prosecution had not established that any such occurrence had taken place that morning and that Gajendra Singh had fallen the victim in such occurence we are unable to agree with the learned counsel that the occurrence had not taken place at all that Gajendra Singh had not been proved to have been killed
There could be no doubt that corpus delieti could be established by the prosecution through direct evidence and that is what the prosecution had done in this case in the circumstances we are of the view that the prosecution had established that there was an occurence at 1030 AM on 2541972 at the place mentioned by the prosecution in which Gajendra Singh had fallen a victim and died
Mr Lalit learned counsel for the appellants took us through the entire evidence and contended that the prosecution had not established the complicity of the first appellant for murder and the appellants for the offence of screening the evidence punishable under section 201 IPC
In the FIR Tarun Kumar PW1 had mentioned the names of the four appellants and the presence of PWs 2 to 6 at the scene of 862 occurence
All these eye witnesses had uniformly stated that they saw only Bhupendra Singh firing at the deceased which brought him down to the ground and stated further that immediately on hearing the first shot they ran and hid themselves behind the dilapidated wall of the temple and they had heard only 6 and 7 shots thereafter
They have not attributed over acts to any of the accused other than Bhupendra Singh the first appellant
It is in those circumstances the High Court confirmed the acquittal of all the accused other then Bhupendra Singh of the offence under section 302 read with section 149 IPC
PWs 3 to 6 have stated in their evidence that during the course of verbal altercation between the first accused and the deceased the first accused shot Gajendra Singh with rifle on the fore head
On the basis of that shooting with the rifle on the fore head the first appellant was convicted for the substantial offence of murder under section 392 IPC and sentenced to life imprisonment
In the FIR though Tarun Kumar PW1 has stated that the first appellant fired at his father first he had not stated that the bullet hit fore head bringing down its father to the ground
It is stated in the FIR Bhupender then first of all fired on my father along with all other started firing
My father then fell down as a result of attack by fire arms then others with lathis and ballams started assaulting
From there I noticed that Bhupender Singh and his companions carried the dead body of my father along with his gun in his tractor trolley towards Karmapura Thus though an overt act had been assigned to the first appellant in the FIR it had not been stated where the bullet shot hit the deceased
It is true that in their oral evidence PWs 3 to 6 have assigned the first shooting to the first appellant but their evidence relating to the shot hitting at the fore head could not be accepted for more than one reason
As already stated PW1 first went to his village Bibiapur from the scene of occurrence at Padaria Tula prepared the FIR in his house and then delivered the same at 330 PM at the Police Station
In spite of time gap and his being with deceased at the time of the occurrence he had not specifically stated that the first aim of the first appellant hit the fore head of the deceased
the names of PWs 2 to 6 are given in the FIR itself
However PWs 3 and 6 were examined by the Investigating Officer only on 14th of May and no explanation was forthcoming 863 as to why they were not examined earlier
PWs1 and 2 did not say in their oral evidence that the shot aimed by the first appellant hit the fore head of the deceased
PWs 345 and 6 gave the evidence to the effect that the first rifle shot of the appellant hit the deceased on his fore head
But this part of the statement we are unable to believe because PW1 Tarun Kumar had not confirmed this either in the FIR or in his evidence as PW1
This was also not stated by PW2 in his evidence or during investigation as seen from the evidence of PW17 the investigation officer
PWs 3 and 6 were examined by PW17 only after 20 days ie on the 14th of May 1972 though their names were mentioned in the FIR
In the circumstances the contention of the learned counsel for the appellants that the possibility of an improvement in the case to implicate A 1 for a substantive offence cannot be ruled out
While we could accept the case of the prosecution trying to establish corpus delicti through the evidence of PWs 1 to 6 we could not accept the evidence in so far as it not known where the bullet hit and whether that injury caused by the same and that injury is sufficient to cause death the offence under section 302 IPC could not be said to have been made out
In the circumstances therefore we are unable to agree with the High Court that the first appellant is guilty of offence under section 302 IPC of causing the death of Gajendra Singh
However we are of the view that while the first appellant shot at the deceased there could be no doubt that either he had the intention to kill him or at least he had the knowledge that the act could cause the death
All the witnesses also say that the shot by A 1 brought down the deceased to the ground
There could therefore be no doubt that the shot had caused some hurt or injury could have caused the death
In the circumstances we consider that the offence would come under the second limb or second part of section 307 IPC
Though imprisonment for life also could be awarded as sentence for such an offence on the facts and circumstances we impose a sentence of 10 years rigorous imprisonment
Accordingly we alter the conviction under section 302 IPC as one under section 307 IPC and sentence him to term of 10 years rigorous imprisonment
So far as the offence under section 201 IPC is concerned the 864 prosecution relied upon the evidence of PWs 789 and 10
The evidence of PWs 78 and 9 only go to show that they had seen 15 to 20 people sitting in the trolley of the tractor driven by the first accused
They have referred to the names of the appellants among the 20 people who were in the trolley
However none of them had stated that they had seen the body of Gajendra Singh alive or dead in the trolley
The prosecution tried to establish that the accused were carrying body of Gajendra Singh in the trolley from the statement of PW7 who said the Chet Ram one of the persons who was travelling in the trolley along with other and who is now dead was saying or shouting that Gajender Singh had been killed and he would roasted and eaten and thrown in the river And the statement of PW3 that The people sitting the trolley were talking amongst themselves and uttering the words today we have killed and brought a lion  But PWs 7 and 8 had not given any such version to PW17 in their statements during investigation
PW 9 turned hostile and his evidence is also worth nothing
PW 10 had stated that Chet Ram said We have killed Gajendra Singh and brought him on his tractor why you have come here
and then he ran about 250 steps towards the east and stood there but the version given in the statement before PW 17 was different
This evidence can be relied on only for the purpose of showing that about 15 or 20 people were travelling in the trolley of a tractor driven by the first accursed which was going towards the river
This evidence does not bring home the offence of screening the evidence
Of course PW 10 said that the body was burnt with wooden pieces and grass after it was all burnt Chet Ram who is now dead collected the whole residual ashes and threw them in the Sutia rivulet
he mentioned the name of Chet Ram and no other name
Further though he sated to be neighbour of Ram Sewak PW 2 and Ram Sewak and himself used to meet everyday he did not tell PW 2 about the burning of the body of the appellants
This witness also belongs to the Ahir community which is the community of the deceased Gajendra Singh also
It appears that only the bones stated to have been recovered were sent for chemical analysis and the report of the serologist was that it was not possible to 865 give any opinion regarding the origin sex and age
The report had not even stated that they were human bones
Though PW 10 had stated that there were with him two others at the time and PW 17 had taken PW 10 and the said two others also to the place where the body was stated to have been burnt they had not been examined
We have read the evidence carefully and the evidence also does not impress us that he is telling the truth
In the result we set aside the conviction of the appellants under section 201 IPC
The conviction of the first appellant is modified into one under section 307 IPC and we sentence him to 10 years rigorous imprisonment
The bail bonds of appellants 23 and 4 are cancelled
The first appellant is directed to surrender
RNJ Appeal partly allowed


Summary:
In the Punjab Excise and Taxation Department there were two separate cadres known as Assistant Excise  Taxation Officers governed under the State Service Class III A Rules 1956 and Excise  Taxation Officers governed by the State Service Class II Rules
Under the class II Rules appointments were made in the ratio ofa 50 by direct recruitment and b 50 by promotion from amongst Assistant Excise and Taxation Officers
Likewise under the Class III A Rules 50 of the vacancies were filled by direct recruitment and 50 by promotion from the subordinate staff comprising the Taxation Inspectors Excise Inspectors Ministerial Staff Head Office and Ministerial Staff Sub office who within themselves had shares as laid down
The Writ Petitioners and the contesting respondents Ram Saran and OP Singhla had initially joined the Punjab Excise and Taxation Department as clerks and were confirmed as such
The Petitioners were promoted and appointed as ExciseTaxation Inspectors by transfer under Rule 7aii of the Punjab Excise Subordinate Service Rules 1943 and their lien in the taxation department suspended under Rule 314b of the Punjab Civil Service Rules
Whereas Ram Saran and OP Singhla continued in the ministerial cadre and were Assistant and Superintendent respectively at the relevant time
730 Following reorganisation of the department the carde of Assistant Excise  Taxation Officers was abolished and all the Assistant Excise  Taxation Officers were redesignated as Excise and Taxation Officers
Consequently Class III A Rules became redundant
As under Class II Rules there was no provision for promotion of subordinate staff direct as Excise  Taxation Officers the Government in order to provide avenues of promotion to the ministerial carde including Taxation Inspectors and Excise Inspectors brought in suitable amendments to these Rules on the following terms Rule 5
The members of the service shall be recruited in the following manner namely a xxx xxx xxx b
In the case of an Excise and Taxation Officer i by promotion from amongst the Taxation Inspectors and Excise Inspectors who have an experience of working as such for a minimum period of five years or ii by promotion from amongst the Superintendents Assistant Accountants and Senior Scale Stenographers working in the Excise and Taxation Commissioners Head Office and in the Divisional and District Offices of the Department of Excise and Taxation Punjab Applying the draft amended Rules before they were formally promulgated the contesting respondents Ram Saran and OP Singhla were promoted as Excise  Taxation Officers on 2281983
The Writ Petitioners who had been transferred earlier to other cardes of ExciseTaxation Inspectors and worked there for 1415 years beyond the probation period were not considered
They therefore filed writ petitions in the High Court challenging the promotion of the appellants mainly on the ground that on the basis of their seniority and lien in the ministerial cadre they had a right to be considered for promotion prior to the appellants
The appellants and the State contended that if the Petitioners wanted to be considered for this post on the basis of their lien in the ministerial carde they may seek reversion to this cadre and thereafter their case would be considered on merits in accordance with the eligilbility as prescribed under the amended Rule 5 which includes experience of working as such for a period of five years in the ministerial 731 cadre
To this reply of the Writ Petitioners was that if the service rendered by them in the other cadre as Excise and Taxation Inspectors was not considered as service rendered in the ministerial cadre they would be ineligible for consideration to this post
The learned single judge accepted the petitioners  contention and in allowing the Writ Petitions held that there was no conscious decision to apply the draft rules and consequently the Petitioners were entitled to be considered for the post of Excise  Taxation Officers without any bar of eligibility as their juniors had already been considered
On appeal the Division Bench took the view that the draft rules though not promulgated were rightly implemented
However on the question whether service rendered by the Petitioners on transfer to the other cadres could be considered as having been rendered in the Ministerial cadre the Division Bench relying on the decision of this court in State of Mysore  Anr
vs PN Nanjundiah  Anr  held that it did and that if that is counted the petitioners would be eligible for promotion under the relevant rules with their suspended lien reviving with effect from the date it had suspended and they shall be considered forthwith
Against this order Ram Saran and OP Singhla have preferred appeals by special leave and so has the State separately
Reversing the decision of the High Court and allowing the appeals dismissing the writ petitions this Court HELD From the scheme of the Rules and the method of recruitment it is clear that the petitioners while working as Inspectors on appointment by transfer to that cadre had the advantage of being considered for promotion as Officers under the amended Rule 5 out of the quota for Inspectors while the ministerial staff to the exclusion of the Inspectors were entitled to certain percentage
739E The petitioners without being on the ministerial cadre even by reversion could not claim promotion as a member of the ministerial cadre without revival of the lien
Such revival could be effected only on reversion and not while the lien remained suspended
739F If the Government employee was on deputation or holding a post in another cadre the lien shall revive as soon as he ceased to hold the post in another cadre
There is no revival of the lien during the period the employee continues to hold a post in another cadre
Therefore during the period the suspension is operative the employee cannot claim that he had been continuing in the post in the parent cadre and gaining experience
740G 732 When the rule is clear and specific that for the purpose of promotion from the cadre of Superintendents Assistants Accountants Senior Scale Stenographers to the post of Excise and Taxation Officers the eligibility qualification is experience of working  as such  for five years the employee is not entitled to claim the experience in the ex cadre as experience of working in the ministerial cadre
740H 741A State of Mysore  Anr
vs PN Nanjundian  Anr  distinguished
C Narasinga Rao  Ors
vs State of Andhra Pradesh by its Secretary Vol 2 relied upon