Criminal Appeal No 96 of 1979
From the Judgment and Order dated 9111977 of the Patna High Court in Criminal Appeal No 332 of 1971
Khanna for the Appellants
D Goburdhan for the Respondent
The Judgment of the Court was delivered by FATHIMA BEEVI J
This appeal by special leave is di rected against the judgment and order dated 9111977 of the High Court of Patna whereby the conviction and sentences of the appellants for the offences under Sections 302394 and 34 I PC have been confirmed
The three appellants are brothers
The deceased Bigna Bedia lived with his wife Sohagia Bedia and sons in village Karmatola
The incident happened on the night of 569
Bigna was sleeping 574 along with his son Jhalku in the verandah while Sohagia was sleeping along with Malku on cot
At about midnight the intrud ers entered the house by cutting the tatti and attacked Sohagia and her husband
Binga Bedia sustained fatal injuries and died instantaneously
Sohagia was injured
The intruders took away the utensils and two she goats kept at one end of the verandah
Jiwan Bedia the brother of the deceased on being informed by Jhalku and Lalku about the incident reached the house and after making enquiries he lodged the first information report at the police station at about 1000 AM in the next morning
The crime was registered against unidentified persons
In the course of the investigation these appellants were arrested and were finally charge sheeted
There had been ill feeling between the appellants on the one hand and the deceased and his wife on the other though the appellants are the sons of the eider sister of Sohagia
The prosecution case is that on account of enmity the three appellants committed the crime
Sohagia claimed to be an eye witness
According to this witness the three appellants were armed
Gurja had a tangi Birja had a lathi and Mukund had a pharsa
On entering the house Gurja and Birja dealt blows on Sohagia with the weapons they had
She got injured and cried
On hearing the alarm the deceased was awakened from sleep and when he was trying to get up all the three appellants left her and killed her husband
PW 14 asserted that Gurja had been flashing a torch and that she had iden tified all the three appellants
She also stated that she became unconscious and regained consciousness only the next day when the police arrived at the scene
According to the prosecution PW 14 is the only eye witness
Lalku and Jhalku who ran to the house of PW 1 had not seen the as sailants
The trial court accepted the testimony of PW 14 corroborated by the medical evidence and other circumstances as the basis for the conviction
The High Court agreed with the trial court in holding that the prosecution has succeed ed to bring home the guilt of all the appellants
The learned counsel for the appellants urged before us that the testimony of PW 14 suffers from serious infirmi ties casting reasonable doubt as to the identity of the assailants and the conviction is therefore unwarranted
The circumstances relied on by the learned counsel is that in the first information report the identity of the accused had not been revealed
It is argued that if PW 14 had identi fied the assailants it would have been possible for PW 1 to disclose the identity of the accused at the time the first information report was lodged and the circumstances are such that the statements 575 of PW 14 are inspired and the prosecution has introduced the theory of unconsciousness of PW 14 only in an attempt to explain away the lacuna
To appreciate this contention it is necessary to scrutinise the first information report in detail
PW 1 Jiwan Bedia is the full brother of the deceased
He has been residing in village Jawabera which is at a distance of about half a kilometer from Karmatola
Lalku and Jhalku reached his house at about midnight and raised hulla that some thieves had entered their house and killed their father and were also killing their mother
On hearing this PW 1 got up and went to village Jawabera where he informed his gotias about the incident
Then taking Sawna Bedia Jhopra Bedia and others along with him he went to the house of Bigna Bedia
There he did not find any thief
On entering the house he found Bigna Bedia lying dead with bleeding injuries on his head and legs
The wife of Bigna was also injured with a cut injury on her face
He learnt there from the wife and both the sons of Bigna that 5 or 6 persons had entered the house by cutting the tatti and had inflicted injuries on Bigna and his wife with tangi bhujali etc
and they also removed the lock and peg and took away utensils and two she goats from the house
PW 1 then went to the villagers of Karmatola and told them about this incident
PW 1 also contacted the Mukhia of the village Hindebilli and others before going to the police station
PW 1 in narrating the incident in the Fard byan stated that he learnt from the wife and sons of the deceased that 5 or 6 persons had entered the house and committed the crime and details could be furnished by the widow and the sons of the deceased
PW 1 no doubt in cross examination supported the version of PW 14 that Sohagia was lying unconscious when he reached the house at night and she narrated the incident after regaining consciousness the next day when the police reached there
The statement of PW 1 at the earliest point of time belies the truth of what he has deposed before the court
He had been categoric that he made enquiries with the wife and sons of the deceased before proceeding to the police station and asserted that 5 or 6 unknown persons had committed the crime
It clearly indicates that an attempt had been made by the prosecution to introduce the case of unconsciousness of PW 14 to explain the infirmity
It may be that PW 14 on account of the shock could not have been so eloquent and depressed but PW 1 had been in the house the whole night and he had contacted all the concerned persons and also made enquiries
The statement in exhibit p 6 that details would be given by the wife and sons who were present in the house also affirms that he could not gather any 576 useful information regarding the identity of the assailants
The courts below have failed to appreciate the evidence of PW 14 in the correct perspective in the light of the clinching evidence in the case
The circumstances that the identity of the assailants was unknown until the police arrived at the scene is clear indication that PW 14 or her children had not identified the assailants at the time of the occurrence
It could be that on account of enmity and ill will their suspicion has turned against these appellants and inspired by that suspicion the investigation had been misdirected
We do not therefore consider it safe to sustain the conviction when there is reasonable doubt regarding the participation of the appellants
The benefit of doubt must necessarily go to the appellants
In the result the appeal is allowed
The convictions and sentences are set aside
The bail bonds shall stand canceled
PSS Appeal allowed


Summary:
The dispute in these appeals by special leave relates to the inter se seniority of officers in Class A  of the Indian Defence Estate Service
Class A  of the said service com prised of officers promoted from two different channels viz Assistant Military Estate Officers and Assistant Military Estate Officers Technical of the Military and Cantonment Service Class B 
The manner of selection and appointment of these categories of officers is different
Whereas Assistant Military Estate Officers were promoted from among the service Class III staff of the military Lands and Cantonments Service Assistant Military Estate Officers Technical were appointed on the recommendations of the Union Public Service Commission from amongst the officers who were released from Engineering Service of Army after 1962
There was however no difference in the performance of their duties
AMEOS were included in Class II of Military Land and Cantonment Service Class I and II Rules 1951 for the first time in 1964 by virtue of a notification issued in 1964 and was incorporated in 1951 Rules when it was amended in 1968
But no such notification was issued in the case of AMEOS Technical until 1976 nor any other rule was applied to them
In other words selections and appointments of AMEOS Technical was made without any statutory basis
To avoid the anomoly AMEOT were included in Class II of 1951 Rules in 1976
Thus from this date officers appointed as AMEOT either under the 1968 Rules or prior to it became members of Military Land and Cantonment Service to whom 1951 Rules applied
But no provision was made for the period of service rendered from 1964 to 1976 which affected their seniority and promotion
According to the appellant Union the service rendered during this period has to be deemed as ad hoc
Respondents being aggrieved filed a Petition before the Central Administrative Tribunal
The Tribunal allowed the Petition and held that the seniority of AMEOT was to he determined under Rule 11 of 1951 Rules on length of regular service in the cadre and accordingly directed the appellant Union to re determine 605 the seniority of officers
Hence this appeal by the Union of India
Dismissing the appeal this Court HELD Seniority of an employee and its determination depends on service in the cadre to which he belonged or to which he was appointed
611B Effect of Tribunal s order in the instant case is that it cured the injustice perpetrated due to absence of exer cise of power by the Government under Rule 4vc of 1951 Rules as it stood amended since 1964
Substantial justice being one of the guidelines for exercise of power by this Court the order is not liable to interference
611F Justice is alert to differences and sensitive to dis crimination
It cannot be measured in terms of money
A Government of a welfare state has gruelling task of being fair and just and so justice oriented in its approach and outlook
611H Mere rectification of mistakes or omissions by Courts and Tribunals should not prompt parties to approach this Court by Special Leave merely for taking a chance or to protect some vested interest except for sake of justice or for laying down law for benefit of Court and its guidance
AMEOS were granted seniority from the date of appointment in MLC service whereas similar benefit was denied to AMEOT as they were working as ad hoc
To remove this irritant Tribu nal directed that they shall be deemed to be holding regular posts
Officers working since 1964 without any flaw could not be treated as ad hoc
In any case once review DPCs were held it was incumbent on it to include these persons and if necessary to evaluate their services or get it evaluated by appropriate authority to regularise them and then determine seniority
But ignoring them in 1987 even they had become member of MLC service was arbitrary and unjustified
612A D Col DD Joshi and Ors
vs Union of India and Ors   Ranga Reddy and Ors
vs State of Andhra Pradesh