REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NOS.410-411 OF 2012 <NAME> … APPELLANT VERSUS STATE OF MADHYA PRADESH … RESPONDENT J U D G M E N T

<NAME>, J.

These appeals are directed against the common impugned judgment dated 24th March, 2011 passed by <ORG>, Principal Seat at Jabalpur, by which <ORG> upheld the judgment of conviction and sentence for the offences u/s 302, 307, 394, 397 and 450 IPC , as follows:

|Section |Sentence imposed | |For offence under Section 302  |Sentenced to death. | |(on two counts); | | |For offence under Section 307  |Sentence for life on each count | |(on two counts); |with fine of Rs.10,000/- each on | | |failure of payment RI for two years| | |each. |

|For offence under Section 394 read |RI for ten years on each count with| |with Section 397 (on four counts); |fine of Rs.5,000/- each on failure | | |of payment further RI for one year | | |each. | |For offence under Section 450 . |RI for ten years with fine of | | |Rs.5,000/-. On failure of payment, | | |further RI for one year. |

2. The learned counsel for the appellant assailed the conviction, inter alia, on the following grounds:

(a) The trial was not fair as the appellant was not given an opportunity to defend by the counsel of his choice.

(b) <ORG> gravely erred in placing implicit reliance on the statement of <NAME> (PW-4) and <NAME> (PW-

3) and on the evidence of recovery of the ornaments and other articles from the possession of the appellant.

(c) The death sentence awarded by <ORG> as confirmed by <ORG> is not justified, as no case of rarest of the rare is made out.

3. The case of the prosecution is that the accused-<NAME> was known to the family of <NAME>. including his wife, <NAME>, son <NAME>, and daughters viz. <NAME> @ <NAME> and <NAME>. On 7th May, 2010, accused came to their house in Sector No.12, Quarter No.B-664, N.C.L. Colony, Singrauli at about 2 p.m. He had a chat with <NAME> Begum (deceased) for about 30 minutes. In the same room besides her <NAME> @ <NAME> Khatoon(PW-4) and <NAME> (PW-3) were also present. <NAME> (deceased), son of <NAME> Begum was sleeping in the bedroom. After accused left, <NAME> Begum (deceased) started offering <NAME>, <NAME> @ <NAME> went to bathroom to take bath and <NAME> was sitting in the outside room. After sometime, accused came back and knocked the door; <NAME> opened the door and the accused came inside. At that time <NAME> @ <NAME> came out of the bathroom and saw accused talking to <NAME> in the outside room, at that moment, the accused suddenly pulled out an iron hammer from his T-shirt and hit on the head of <NAME> Parween two-three times with hammer. <NAME> screamed and became unconscious. The accused, thereafter, with intention to kill <NAME> Begum and <NAME> also hit them with hammer on their heads, because of which both fell down and became unconscious. After that accused hit <NAME> @ <NAME> by the hammer on her head with an intention to kill her resultantly <NAME>’s head got fractured. Thereafter, the accused opened the almirah, suitcases and boxes and looted two gold chains, one pair of tops, one pair of bali, one pair of jhala, three rings, one nose pin and four pairs of silver anklets, artificial jewellery etc. and Rs. 23,000/- cash of <NAME> Begum. He also took out four brass bangles from the hands of <NAME> Begum. As a result of assault <NAME> Begum died on the spot. On hearing shrieks of <NAME> @ <NAME>, <NAME> (PW-1), <NAME> (PW-5) and other people of the colony came. At the time of incident, <NAME>. (PW-2) was on duty and on receiving the news he came to the place of incident and took <NAME> @ <NAME>, <NAME> and <NAME> to Nehru Hospital.

4. On the basis of the report, Ext.P-10, of <NAME> @ Razia Khatoon(PW-4), a case Crime No.0/10 was registered under Section 302 , 307 , 450 , 394 & 397  at the Police Station Vindhya Nagar. After receiving the news of the death of <NAME> and <NAME>, <NAME> (PW-13) recorded the marg intimation of Ext.P-24 & 25 in Police Chauki Jayant, P.S. Vindhya Nagar and the marg intimation-Ext.P/10 was sent to the concerned Police Station, on the basis of which Crime No.Ka-0-304/10 was registered at P.S. Baidhan and investigation was started.

5. Sub-Inspector, <NAME> (PW-12), on the same day, went at the spot and prepared the inquest memo of the body of <NAME> (Ext.P/12).The dead body of <NAME> was sent for postmortem examination. After conducting inquest proceedings in respect of the dead body of <NAME>, the same was also sent for postmortem examination. Dr. <NAME>) examined the injuries of <NAME> and <NAME> and found injuries on their heads. The injuries, grievous in nature, were dangerous to life.

6. Dr. <NAME> (PW-10) conducted autopsy of the body of <NAME>. He found three injuries on her skull, skull bones were fractured. He submitted his postmortem report-Ext.P/19. In his opinion, death of the deceased was homicidal in nature. Dr. <NAME> (PW-10) also conducted autopsy of body of <NAME> and found two injuries on his head. There was depressed fracture of skull bone underneath the injuries. In his opinion, death of the deceased was homicidal in nature. Postmortem report of <NAME> is Ext.P/20.

7. <NAME> (PW-11) was the Investigation Officer, who on the same night apprehended the accused from Khariya Chowk and recovered Rs.23,020/- from the pocket of his pants. On the information given by the appellant under Section 27 of the Indian Evidence Act, he recovered stolen articles, iron hammer and blood stained clothes from the house of the accused situated in N.C.L. Colony. The recovered articles were identified by <NAME> (PW.2) and <NAME> (PW-4).

8. After due investigation, the chargesheet was filed and the case was committed for trial. The appellant denied the guilt and pleaded false implication but he did not adduce any evidence in his defence.

9. Prosecution examined altogether 16 witnesses and produced a number of documentary evidence to prove their case. The Trial court on the appreciation of the evidence held the accused guilty and convicted and sentenced him for the offence as mentioned above, which was affirmed by <ORG>.

10. Dr. <NAME> (PW-10), who performed the postmortem examination of the body of <NAME> found the following injuries on her body:

“(1)Reddish contusion 5 cm x 4 cm present on right side of forehead. Red blood clot was deposited under the skin.

(2)Lacerated wound 5 cm x 3 cm x bone deep on middle of the forehead posteriorly with depressed multiple fractures of underlying bone.

(3) Lacerated wound 4 cm x 3 cm x bone deep on left occipito parietal region of head with depressed multiple fractures of underlying bones.

In his opinion, death of deceased <NAME> had occurred as a result of coma due to head injury. Death was homicidal in nature. The postmortem examination report (P/19) was written and signed by him.” On the same day, Dr. <NAME> (PW-10) performed postmortem examination of the body of deceased <NAME> and found the following injuries:

“(1) Lacerated wound on left parietal region of head 2 cm x 1 cm x bone deep with peripheral contusions in size of 6 cm x 5 cm. subcutaneous reddish blood clot with multiple depressed fractures of underlying bone.

(2) Reddish contusion on occipital region of head 5 cm x 4 cm in size with subcutaneous reddish blood clot with depressed fracture of underlying bone.

In his opinion, death of <NAME> had occurred as a result of coma due to injury. Death was homicidal in nature.”

11. From the inquest memorandums (Ext.P/6 and P/12) and the evidence of Sub-Inspector, J.S. Paraste (PW-12) and constable <NAME> (PW-

15), who conducted inquest, it was established that <NAME> and <NAME> died of homicidal injuries found on their bodies.

12<NAME> <NAME> (PW-11), Investigation Officer arrested the accused from Khariya Chowk, Main Road, P<NAME>S<NAME> Shakti Nagar in the presence of witnesses <NAME><NAME><NAME> (PW-6) and <NAME><NAME> Yunus (PW-7) and seized money from him and prepared seizure memo-Ext<NAME>P-15<NAME> After arrest the accused was brought to the Police Station-Jayant and was interrogated in front of the witnesses<NAME> During interrogation accused gave information regarding jewellery and the hammer which was used in committing crime; the clothes, hammer and jewellery were seized from the house of the accused vide memorandum-Ext<NAME>P-13, written by <NAME> (PW-11)<NAME> <NAME> stated that he went to the house of accused and seized the jewellery article from articles-A1 to A 24; seizure memo-Ext<NAME>P-14 was prepared<NAME> He had also stated that blood stained clothes and iron hammer were seized in the presence of witnesses vide seizure memo-Ext<NAME>P-16<NAME>

13. <NAME> (PW.6) and <NAME> (PW-7) are the independent witnesses of the memorandum of seizure. In their statement they deposed that the <ORG> arrested the accused at Khariya Chowk in their presence and seized about Rs. 23,000/-from him and the accused was brought to the <ORG> Station-Jayant for inquiry. At the <ORG> Station the accused disclosed about the jewellery, hammer and clothes, on the basis of which jewellery, hammer and clothes were seized. Both the witnesses thereby have corroborated the statement of <NAME>). During the cross- examination both the witnesses, PW-6 and PW-7 admitted that they visited the house of <NAME>. There is no infirmity or contradiction in the statements of the two witnesses.

14. <NAME> (PW-9) stated that on 8th July, 2010 at the request of the <ORG> he conducted identification of the jewellery at stadium Baidhan and prior to the identification <ORG> had handed over other jewellery in a sealed packet. He mixed it and then conducted the identification and during the identification <NAME>. and <NAME> had identified the original jewellery. After identification he had handed over the jewellery in a packet to the <ORG> who were standing outside the stadium.

15. <NAME>) and <NAME> (PW-4), daughters of deceased <NAME> and sisters of deceased <NAME> are the injured eyewitnesses; both of them received serious injuries at the incident. Both the witness PW-3 and PW-4 clearly stated that sometime before the incident, the accused had come to their house and he being a prior acquaintance, the accused had taken refreshment sitting with their mother and also was talking with her. From the statements of both the witnesses the facts of the accused coming to their house before the incident, taking refreshment with deceased <NAME> and talking with her are proved, which is also corroborated from the FIR-Ext.P-10. Both these witnesses have also stated that in the past the accused used to come for tuitions and their mother used to treat the accused like her son and the photograph of the accused was also hanging in their house. From the aforesaid evidence, it is clear that the PW-3 and PW-4 were in a position to identify the accused, the accused was well acquainted with both PW-3 and PW-4 since long. The prosecution proved beyond reasonable doubt that even prior to the incident the accused was known to the deceased and the injured witnesses PW-3 and PW- 4 and on the date of incident also, the accused had come to their house and had taken refreshments and had talks.

16. <NAME> (PW-3) and <NAME> (PW-4) in their statements clearly stated that initially the accused left their house and after sometime the accused had come again to their house. On opening the door he had hit the hammer on the head of <NAME>, who had come out after hearing screams of <NAME> and then after entering into the bedroom he hit deceased <NAME> on her head. From the statement of <NAME> (PW-4), it is also clear that the accused after entering the store-room had hit on her head and then the accused had taken out the money and jewellery from the almirah, suitcase, box and attaché, etc. In paragraph 7 <NAME> (PW-3), has also stated that she had seen the accused hit <NAME> on his head but she could not see as to who hit <NAME> and her mother. Such statement cannot be stated to be contradiction and does not adversely affect the case of the prosecution in view of the deposition made by <NAME>(PW-4).

17. Similarly, from the statement of <NAME> (PW-4), we find that the accused after hitting <NAME>, <NAME> and <NAME> took away jewellery, cash amount and the bangles of <NAME> and then he ran away after bolting the door from outside.

18. PW-4 further deposed that after the accused run away by bolting the door from outside she went into the balcony and stop <NAME> (PW-1), who at that time had taken out his vehicle and was going somewhere. Then, the door was got open. Statements of <NAME> (PW-4) about shouting from the balcony stopping <NAME> (PW-1) and then opening of the door by <NAME> are also proved by the statement of Ramesh <NAME> (PW-1), who made similar statement.

19. In view of the statements made by the injured witnesses <NAME> (PW-3) and <NAME> (PW-4) as corroborated by the postmortem report, seizure of jewellery, hammer, blood stained clothes (Ex.P-13)and statement of <NAME> (PW-11), as corroborated by <NAME> (PW-6) and <NAME> (PW-7), <ORG> rightly held the accused guilty for the offences u/s 302, 307, 394 r/w 397 and 450 IPC .

20. First ground taken by the learned counsel for the appellant with respect to denial of opportunity to the accused to be defended by a counsel of his choice is incorrect as from the record we find that proper opportunity was given to the accused.

21. The order sheets of <ORG> dated 25th September, 2010 shows that the appellant made an application that appellant wanted to get the witnesses cross-examined by senior Advocate, Mr. <NAME>, therefore, he requested to defer the cross-examination of the witnesses. The Trial court rejected the application. On 27th September, 2010, counsel of the accused, Mr. <NAME>, who was defending the accused, refused to defend him. <ORG> then appointed one Mr. <NAME>, Advocate, as defence counsel on <ORG> expenses.

22. On perusal of records it transpires that <NAME>, Advocate had filed his Vakalatnama for representing the appellant. On 25th September, 2010, when the case was fixed for evidence though he was competent to cross-examine the witnesses but he moved the application to defer the cross-examination of the witnesses on the ground that the accused wanted to engage senior Advocate, Mr. <NAME>. However, neither <NAME> was present nor any Vakalatnama was filed on his behalf. On that day, two witnesses, namely <NAME> (PW-1) and <NAME>. (PW-2) were examined and Mr. <NAME>, Advocate had cross- examined those witnesses. None of those witnesses were eyewitnesses; in fact one of them, <NAME> (PW-1) was declared hostile. On 27th September, 2010, Mr. <NAME> refused to appear on behalf of the appellant, when the appellant on asking expressed his inability to appoint any counsel. Since there was none to represent the accused, <ORG> appointed Mr. <NAME>, Advocate, to pursue the appeal. The appellant has failed to show that Mr. <NAME> was not competent or was incapable of handling the case. On the contrary from the cross-examination of the witnesses made by Mr. <NAME> we find that he was competent to deal with the case. Even on the next date neither Mr. <NAME>, Advocate appeared nor he filed his Vakalatnama.

23. The next question is whether death sentence awarded to the appellant is excessive, disproportionate on the facts and circumstance of the case, i.e. whether the present case can be termed to be a rarest of the rare case.

24. Guidelines emerged from <CITATION> , 1980 (2) SCC 684 were noticed by this Court in <CITATION> , 1983 (3) SCC 470. In the said case the Court observed:

38. In this background the guidelines indicated in <NAME> case, 1980 (2) SCC 684 will have to be culled out and applied to the facts of each individual case where the question of imposing of death sentence arises. The following propositions emerge from <NAME> case(supra):

“(i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability.

(ii) Before opting for the death penalty the circumstances of the ‘offender’ also require to be taken into consideration along with the circumstances of the ‘crime’.

(iii) Life imprisonment is the rule and death sentence is an exception. In other words death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.

39. In order to apply these guidelines inter alia the following questions may be asked and answered:

(a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence?

(b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender?

40. If upon taking an overall global view of all the circumstances in the light of the aforesaid proposition and taking into account the answers to the questions posed hereinabove, the circumstances of the case are such that death sentence is warranted, the court would proceed to do so.”

25. In Ronny alias <CITATION> , 1998 (3) SCC 625, this Court held:

“45. These principles have been applied in various judgments of this Court thereafter and it is unnecessary to multiply the cases here. Whether the case is one of the rarest of the rare cases is a question which has to be determined on the facts of each case. Suffice it to mention that the choice of the death sentence has to be made only in the rarest of the rare cases and that where culpability of the accused has assumed depravity or where the accused is found to be an ardent criminal and menace to the society and; where the crime is committed in an organised manner and is gruesome, cold-blooded, heinous and atrocious;

where innocent and unarmed persons are attacked and murdered without any provocation, the case would present special reason for purposes of sub-section (3) of Section 354 of the Criminal Procedure Code.” In <NAME> alias <NAME> (supra) this <ORG> noted the law laid-down by this <ORG> in <NAME> & <NAME>. Vs. State of Bihar, , that unless the nature of the crime and circumstances of the offender reveal that criminal is a menace to the society and the sentence of life imprisonment would be altogether inadequate, the <ORG> should ordinarily pass a lesser punishment and not punishment of death which should be reserved for exceptional case only. Considering the cumulative effect of all the factors, like the offences committed under the influence of extreme mental or emotional disturbance, the young age of the accused, the possibility of reform and rehabilitation, etc. the <ORG> may convert the sentence into life imprisonment.

26. <CITATION> , 2011 (7) SCC 437, this Court made the following observation:

“30. The principles governing the sentencing policy in our criminal jurisprudence have more or less been consistent, right from the pronouncement of the <ORG> judgment of this Court in <CITATION> ,. Awarding punishment is certainly an onerous function in the dispensation of criminal justice. The court is expected to keep in mind the facts and circumstances of a case, the principles of law governing award of sentence, the legislative intent of special or general statute raised in [pic]the case and the impact of awarding punishment. These are the nuances which need to be examined by the court with discernment and in depth.

31. The legislative intent behind enacting Section 354(3) CrPC clearly demonstrates the concern of the legislature for taking away a human life and imposing death penalty upon the accused. Concern for the dignity of the human life postulates resistance to taking a life through law’s instrumentalities and that ought not to be done, save in the rarest of rare cases, unless the alternative option is unquestionably foreclosed. In exercise of its discretion, the court would also take into consideration the mitigating circumstances and their resultant effects.

32. The language of Section 354(3) demonstrates the legislative concern and the conditions which need to be satisfied prior to imposition of death penalty. The words, “in the case of sentence of death, the special reasons for such sentence” unambiguously demonstrate the command of the legislature that such reasons have to be recorded for imposing the punishment of death sentence. This is how the concept of the rarest of rare cases has emerged in law. Viewed from that angle, both the legislative provisions and judicial pronouncements are at ad idem in law. The death penalty should be imposed in the rarest of rare cases and that too for special reasons to be recorded. To put it simply, a death sentence is not a rule but an exception. Even the exception must satisfy the prerequisites contemplated under Section 354(3) CrPC in light of the dictum of the <ORG> in <NAME>).

33. The Constitution Bench judgment of this Court in <NAME> (supra) has been summarised in para 38 in <CITATION> , , and the following guidelines have been stated while considering the possibility of awarding sentence of death: (<NAME> case(supra), SCC p. 489) “(i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability.

(ii) Before opting for the death penalty the circumstances of the ‘offender’ also requires to be taken into consideration along with the circumstances of the ‘crime’.

(iii) Life imprisonment is the rule and death sentence is an exception. … death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.

(iv) A balance sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.” (emphasis supplied) [pic]

34. The judgment in <NAME>), did not only state the above guidelines in some elaboration, but also specified the mitigating circumstances which could be considered by the <ORG> while determining such serious issues and they are as follows: (SCC p. 750, para 206) “206. … ‘Mitigating circumstances.—In the exercise of its discretion in the above cases, the court shall take into account the following circumstances:

(1) That the offence was committed under the influence of extreme mental or emotional disturbance.

(2) The age of the accused. If the accused is young or old, he shall not be sentenced to death.

(3) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society.

(4) The probability that the accused can be reformed and rehabilitated.

The <ORG> shall by evidence prove that the accused does not satisfy Conditions (3) and (4) above.

(5) That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence.

(6) That the accused acted under the duress or domination of another person.

(7) That the condition of the accused showed that he was mentally defective and that the said defect impaired his capacity to appreciate the criminality of his conduct.’”

35. Now, we may examine certain illustrations arising from the judicial pronouncements of this <ORG>.

36. <CITATION> .,, this Court took the view that custodial torture and consequential death in custody was an offence which fell in the category of the rarest of rare cases. While specifying the reasons in support of such decision, the Court awarded death penalty in that case.

37. <CITATION> , , this Court also spelt out in paras 56 to 58 that nature, motive, impact of a crime, culpability, quality of evidence, socio-economic circumstances, impossibility of rehabilitation are the factors which the court may take into consideration while dealing with such cases. In that case the friends of the victim had called him to see a movie and after seeing the movie, a ransom call was made, but with the fear of being caught, they murdered the victim. The Court felt that there was no evidence to show that the criminals were [pic]incapable of reforming themselves, that it was not a rarest of the rare case, and therefore, declined to award death sentence to the accused.

38. Interpersonal circumstances prevailing between the deceased and the accused was also held to be a relevant consideration in <CITATION> , , where constant nagging by family was treated as the mitigating factor, if the accused is mentally unbalanced and as a result murders the family members. Similarly, the intensity of bitterness which prevailed and the escalation of simmering thoughts into a thirst for revenge and retaliation were also considered to be a relevant factor by this Court in different cases.

39. This <ORG> in Satishbhushan Bariya (supra) also considered various doctrines, principles and factors which would be considered by the <ORG>s while dealing with such cases. The <ORG> discussed in some elaboration the applicability of the doctrine of rehabilitation and the doctrine of prudence. While considering the application of the doctrine of rehabilitation and the extent of weightage to be given to the mitigating circumstances, it noticed the nature of the evidence and the background of the accused. The conviction in that case was entirely based upon the statement of the approver and was a case purely of circumstantial evidence. Thus, applying the doctrine of prudence, it noticed the fact that the accused were unemployed, young men in search of job and they were not criminals. In execution of a plan proposed by the appellant and accepted by others, they kidnapped a friend of theirs. The kidnapping was done with the motive of procuring ransom from his family but later they murdered him because of the fear of getting caught, and later cut the body into pieces and disposed it off at different places. One of the accused had turned approver and as already noticed, the conviction was primarily based upon the statement of the approver.” “41. The above principle, as supported by case illustrations, clearly depicts the various precepts which would govern the exercise of judicial discretion by the courts within the parameters spelt out under Section 354(3) CrPC. Awarding of death sentence amounts to taking away the life of an individual, which is the most valuable right available, whether viewed from the constitutional point of view or from the human rights point of view. The condition of providing special reasons for awarding death penalty is not to be construed linguistically but it is to satisfy the basic features of a reasoning supporting and making award of death penalty unquestionable. The circumstances and the manner of committing the crime should be such that it pricks the judicial conscience of the court to the extent that the only and inevitable conclusion should be awarding of death penalty.”

27. This Court in <NAME> and others vs. State of Chattisgarh, 2012 (4) SCC 257, noticed the aggravating and mitigating circumstances with respect to a crime and held as follows:

“76. The law enunciated by this Court in its recent judgments, as already noticed, adds and elaborates the principles that were stated in Bachan Singh,(1980) 2 SCC 684, and thereafter, in Machhi Singh,(1983) 3 SCC 470. The aforesaid judgments, primarily dissect these principles into two different compartments—one being the “aggravating circumstances” while the other being the “mitigating circumstances”. The court would consider the cumulative effect of both these aspects and normally, it may not be very appropriate for the court to decide the most significant aspect of sentencing policy with reference to one of the classes under any of the following heads while completely ignoring other classes under other heads. To balance the two is the primary duty of the court. It will be appropriate for the court to come to a final conclusion upon [pic]balancing the exercise that would help to administer the criminal justice system better and provide an effective and meaningful reasoning by the court as contemplated under Section 354(3) CrPC.

Aggravating circumstances (1) The offences relating to the commission of heinous crimes like murder, rape, armed dacoity, kidnapping, etc. by the accused with a prior record of conviction for capital felony or offences committed by the person having a substantial history of serious assaults and criminal convictions. (2) The offence was committed while the offender was engaged in the commission of another serious offence. (3) The offence was committed with the intention to create a fear psychosis in the public at large and was committed in a public place by a weapon or device which clearly could be hazardous to the life of more than one person. (4) The offence of murder was committed for ransom or like offences to receive money or monetary benefits. (5) Hired killings.

(6) The offence was committed outrageously for want only while involving inhumane treatment and torture to the victim. (7) The offence was committed by a person while in lawful custody.

(8) The murder or the offence was committed to prevent a person lawfully carrying out his duty like arrest or custody in a place of lawful confinement of himself or another. For instance, murder is of a person who had acted in lawful discharge of his duty under Section 43 CrPC. (9) When the crime is enormous in proportion like making an attempt of murder of the entire family or members of a particular community.

(10) When the victim is innocent, helpless or a person relies upon the trust of relationship and social norms, like a child, helpless woman, a daughter or a niece staying with a father/uncle and is inflicted with the crime by such a trusted person.

(11) When murder is committed for a motive which evidences total depravity and meanness.

(12) When there is a cold-blooded murder without provocation. (13) The crime is committed so brutally that it pricks or shocks not only the judicial conscience but even the conscience of the society.

Mitigating circumstances (1) The manner and circumstances in and under which the offence was committed, for example, extreme mental or emotional disturbance or extreme provocation in contradistinction to all these situations in normal course.

(2) The age of the accused is a relevant consideration but not a determinative factor by itself.

[pic] (3) The chances of the accused of not indulging in commission of the crime again and the probability of the accused being reformed and rehabilitated.

(4) The condition of the accused shows that he was mentally defective and the defect impaired his capacity to appreciate the circumstances of his criminal conduct.

(5) The circumstances which, in normal course of life, would render such a behaviour possible and could have the effect of giving rise to mental imbalance in that given situation like persistent harassment or, in fact, leading to such a peak of human behaviour that, in the facts and circumstances of the case, the accused believed that he was morally justified in committing the offence.

(6) Where the court upon proper appreciation of evidence is of the view that the crime was not committed in a preordained manner and that the death resulted in the course of commission of another crime and that there was a possibility of it being construed as consequences to the commission of the primary crime.

(7) Where it is absolutely unsafe to rely upon the testimony of a sole eyewitness though the prosecution has brought home the guilt of the accused.

While determining the questions relating to sentencing policy, the <ORG> laid down the Principles at paragraph 77 which reads as follows:

“77. While determining the questions relatable to sentencing policy, the court has to follow certain principles and those principles are the loadstar besides the above considerations in imposition or otherwise of the death sentence. Principles (1) The court has to apply the test to determine, if it was the “rarest of rare” case for imposition of a death sentence. (2) In the opinion of the court, imposition of any other punishment i.e. life imprisonment would be completely inadequate and would not meet the ends of justice.

(3) Life imprisonment is the rule and death sentence is an exception.

(4) The option to impose sentence of imprisonment for life cannot be cautiously exercised having regard to the nature and circumstances of the crime and all relevant considerations. (5) The method (planned or otherwise) and the manner (extent of brutality and inhumanity, etc.) in which the crime was committed and the circumstances leading to commission of such heinous crime.”

28. Recently, this Court in <CITATION> , 2013 (5) SCC 546, dealing with a case of death sentence, observed:

“52. Aggravating circumstances as pointed out above, of course, are not exhaustive so also the mitigating circumstances. In my considered view, the tests that we have to apply, while awarding death sentence are “crime test”, “criminal test” and the “R-R test” and not the “balancing test”. To award death sentence, the “crime test” has to be fully satisfied, that is, 100% and “criminal test” 0%, that is, no mitigating circumstance favouring the accused. If there is any circumstance favouring the accused, like lack of intention to commit the crime, possibility of reformation, young age of the accused, not a menace to the society, no previous track record, etc. the “criminal test” may favour the accused to avoid the capital punishment. Even if both the tests are satisfied, that is, the aggravating circumstances to the fullest extent and no mitigating circumstances favouring the accused, still we have to apply finally the rarest of the rare case test (R-R test). R-R test depends upon the perception of the society that is “society- centric” and not “Judge-centric”, that is, whether the society will approve the awarding of death sentence to certain types of crimes or not. While applying that test, the court has to look into variety of factors like society’s abhorrence, extreme indignation and antipathy to certain types of crimes like sexual assault and murder of intellectually challenged minor girls, suffering from physical disability, old and infirm women with those disabilities, etc. Examples are only illustrative and not exhaustive. The courts award death sentence since situation demands so, due to constitutional compulsion, reflected by the will of the people and not the will of the Judges.”

29. In the present case the appellant is an educated person, he was about 26 years old at the time of committing the offence. The accused was a tutor in the family of the deceased-Noorjahan. He was in acquaintance with the deceased as well as <NAME> (PW-3) and <NAME> (PW-4). There is nothing specific to suggest the motive for committing the crime except the articles and cash taken away by the accused. It is not the case of the prosecution that the appellant cannot be reformed or that the accused is a social menace. Apart from the incident in question there is no criminal antecedent of the appellant. It is true that the accused has committed a heinous crime, but it cannot be held with certainty that this case falls in the “rarest of the rare category”. On appreciation of evidence on record and keeping in mind the facts and circumstances of the case, we are of the view that sentence of death penalty would be extensive and unduly harsh.

30. Accordingly, we commute the death sentence of appellant to life imprisonment. The conviction and rest part of the sentence are affirmed. Appeals are partly allowed.

………………………………………………J.

(H.L. DATTU) ……….……………………………………J.

(SUDHANSU JYOTI MUKHOPADHAYA) ………………………………………………J.

(<NAME>) NEW DELHI, JULY 3, 2014.


JUDGMENT <NAME>, J.

1. Delay Condoned.

2. Leave granted.

3. Challenge in these appeals is to the direction given to the <ORG> by <ORG> of <ORG> to dispose of application for renewal filed by the respondents expeditiously, in the background of views expressed on the factual aspects.

4. Shorn of theatric and bereft of legal controversy which constitutes bulk of the armoury as regards attack to the legality of judgment of <ORG> by which four Letters Patent Appeals were disposed of, the factual background is as follows:

5. The respondents applied for and were granted permits under the provisions of the Maritime Zones of India (Regulation of Fishing by Foreign Vessels) Act, 1981 (in short 'the Act') and the Maritime Zones of India (Regulation of Fishing by Foreign Vessels) Rules, 1982 (in short 'the Rules'). Permits were granted in the Exclusive Economic Zone of India in the prescribed form. The said permit authorized the applicants respondents to obtain on lease and operate Foreign Deep Sea Fishing Vessels in terms of the Act and the Rules. The permit was, however, not renewed after its period of initial currency. Stand of the applicants was that in each case permit was valid for a period of 15 years from the date of issue, since they were granted in accordance with the Government of India's policy relating to fishing of Deep Sea Resources in India Exclusive Economic Zone by leased Foreign Deep Sea Fishing Vessels, and were operative for a period of 15 years. There is a marked distinction between periods have been prescribed for currency of the concerned permits. Though applications for renewal were filed with requisite fees, no express order was passed in any of the cases declining to grant permit. However, pay orders covering renewal fee were returned to the applicants. Grievance is made that no reason has been indicated and, there is also no reference to any policy decision for not effecting the renewal. The applicants filed writ applications before <ORG>. The applications were taken up by a learned Single Judge. With reference to earlier order passed by <ORG> in the case of <ORG> and Anr. v.

<ORG> and the counter affidavit filed by the present appellants, the writ applications were dismissed. In the said case <ORG> noticed that renewal of permission was not a matter of right, since there was change in <ORG> policy. In larger public interest, the deep sea fishing policy had to be reframed. <ORG> was appointed which submitted its recommendations, and in that view of the matter there was no question of directing renewal of the permits. It was noticed by the <ORG> that having regard to the policy decision adopted by the <ORG> of India in the year 1996 pursuant to the report of <ORG> constituted under the Chairmanship of Mr. <NAME>, the <ORG> was in the process of formulating a new deep sea fishing policy. In view of the non-success before the learned Single Judge, the applicants filed Letters Patent Appeals before the High <ORG>, wherein the impugned judgment has been passed. The High <ORG>, inter alia, came to the conclusions that renewal of the permit is a valuable right; it could be refused only on cogent and valid grounds; though plea was taken that the renewal period was mentioned by mistake same appears to be an afterthoughts, and the concerned authorities were required to consider the prayer for renewal of the permit in accordance with law. The authorities were directed to pass an appropriate order thereupon. Principles of natural justice were required to be applied. Though licence has not been granted for a period of 15 years, there has been a legitimate expectation that renewal shall be granted. Policy decision which is contrary to the statute cannot be upheld. The earlier decision in <ORG> (supra) was not a binding precedent, as several relevant provisions had not been brought to the notice of <ORG> hearing the case.

6. However, it was held that in the circumstances relief was not available by issuing & Mandamus directing the concerned officials to renew the licence. Consideration was to be made by the statutory authorities at the first instance. With the aforesaid conclusions, the authorities were directed to consider the applications and take a decision within a period of six weeks from the date of communication.

7. In support of the appeals, Mr. <NAME>, learned Solicitor General submitted that <ORG> has lost sight of the fact that if the license/permit is renewed, it would be only by going against the specific stipulations in the policy decision. <ORG> was not justified in its conclusion that there was legitimate expectation or promissory estoppel involved, and that the policy decision was contrary to the statute. Reference was made to the recommendations made by <ORG> which specifically prohibit renewal, extension of existing licence and put prohibition on issuance of permits in future for fishing to joint venture/charter/lease/test fish vessels. The recommendations were approved and accepted. It was pointed out that fishing in Indian Exclusive Zone by foreign vessels is governed and regulated by the Act and the Rules thereunder while fishing by Indian vessels in the said zone is governed by executive orders.

8. Responding to the aforesaid pleas, learned counsel for the respondents submitted that <ORG> judgment is flawless and suffers from no infirmity to warrant interference. It was rightly turned down the plea that the authorities were not bound by the period indicated in several documents so far as currency of the licence/permits is concerned. Merely because licence was not indicated to be valid for a period of 15 years that did not clothe the authorities with any jurisdiction to refuse renewal. It was highlighted that in respect of 32 vessels a departure was made from the so-called policy and they were permitted to fish in the concerned zone. This clearly establishes the discrimination, and is impermissible in law. The 32 vessels are secondhand deep sea fishing vessels and could not have been imported except against vessel specific import licence granted by Director General of Foreign Trade, which has not been granted though it is a pre-requisite for import. The so-called import, have been made by companies, which were not in existence at the time permits were granted to operate. One of the companies which has been given permission to operate is only <ORG> with no financial resources. The factual aspects brought on record clearly establish that illegally and without any justifiable reasons, they have been permitted to operate, while the same benefit was not extended to the respondents herein. I was further pointed out that <ORG> has not in reality granted any relief to which the applicants were entitled in law. It has merely directed that the applications for renewal were to be disposed of expeditiously preferably within a period of six weeks from the date of communication of its order.

9. By way of reply to the submissions made by learned counsel for the respondents, learned Solicitor General submitted that directions were not merely to consider. Had it been so, and the matter would have been left open to be decided in accordance with law, there could have been no difficulty. But in view of the specific findings recorded by <ORG> on several aspects more particularly policy being opposed to statute, and/or that the documents established entitlements for renewal, the exercise by the concerned authorities in dealing with the applications for renewal would amount to an empty formality. Further, 32 vessels to which reference has been made stood on entirely different footing. The vessels in question were imported under the prevailing policy of the <ORG> and were registered by <ORG> under the Merchant Shipping Act , 1958. The said vessels were not in any way connected with the cases at hand which relate to lease and charter permits. The aforesaid 32 vessels were imported as per EXIM policy of the <ORG>. The said EXIM policy in the year 2000-2001 allowed import of deep sea fishing vessels by surrendering special import licence which had been done in the case of the concerned vessels and, therefore, the licences on those cases have no relevance so far as the present appeals are concerned. Even if it is conceded for the sake of argument that there was anything improper in the permission granted it may be ground for taking action against the concerned vessels, but it cannot be a ground to renew licence of the applicants.

10. Though there can be quarrel with the proposition that renewal of a permit carries with it a valuable right, it cannot be lost sight of that for outweighing reasons of public interest renewal can be refused. It is not in dispute that licences have not been granted for a period of 15 years. If at the time when the matter is taken up for considering whether renewal to be granted, there is a change in policy; it cannot be said that the right is defeated by introduction of a policy. In such an event, the question of applying doctrine of legitimate expectation or promissory estoppel looses significance. It has not been disputed that in fact the policy decision exists. But the stand of the respondents is that it cannot outweigh the legitimate expectation or the unbuilt rights. Additionally it is submitted that the issue has to be considered in the background of 32 vessels referred to above.

11. Rival contentions need to be cogitated.

12. Legitimacy of the policy decision has not been questioned by the respondents. What is highlighted is that notwithstanding the policy their rights are unaffected.

13. Doctrines of promissory estoppel and legitimate expectation cannot came in the way of public interest. Indisputably, public interest has to prevail over private interest. The case at hand shows that a conscious policy decision has been taken and there is no statutory compulsion to act contrary. In that context, it cannot be said that respondents have acquired any right for renewal. <ORG> was not justified in observing that the policy decision was contrary to statute and for that reason direction for consideration of the application for renewal was necessary. Had <ORG> not recorded any finding on the merits of respective stands, direction for consideration in accordance with law would have been proper and there would not have been any difficulty in accepting the plea of the learned counsel for the respondents. But having practically foreclosed any consideration by the findings recorded, consideration of the application would have been mere formality and grant of renewal would have been the inevitable result, though it may be against the policy decision. That renders <ORG> judgment indefensible.

14. What remains now to be considered, is the effect of permission granted to the 32 vessels. As highlighted by learned counsel for the appellants, even if it is accepted that there was any improper permission, that may render such permissions vulnerable so far as 32 vessels are concerned. But it cannot come to the aid of respondents. It is not necessary to deal with that aspect because two wrongs do not make one right. A party cannot claim that since something wrong has been done in another case; direction should be given for doing another wrong. It would not be setting a wrong right, but would be perpetuating another wrong. In such matters there is no discrimination involved. The concept of equal treatment on the logic of Article 14 of the Constitution of India, 1950 (in short 'the Constitution') cannot be pressed into service in such cases. What the concept of equal treatment presupposes is exis ence of similar legal foothold. It does not countenance repetition of a wrong action to bring both wrongs or par. Even if hypothetically it is accepted that wrong has been committed on some other cases by introducing a concept of negative equality respondents cannot strengthen their case. They have to establish strength of their case on some other basis and not by claiming negative equality.

15. It is (SIC) law that Article 14 of the Constitution applies also to matters of governmental policy and if the policy or any action of the <ORG>, even in contractual matters, fails to satisfy the test of reasonableness, it would be unconstitutional.

16. While the discretion to change the policy in exercise of the executive power, when not trammelled by any statute or rule is wide enough, what is imperative and implicit in terms of Article 14 is that a change in policy must be made fairly and should not give impression that it was so done arbitrarily on by any ulterior criteria. The wide sweep of Article 14 and the requirement of every <ORG> action qualifying for its validity on this touchstone irrespective of the field of activity of the <ORG> is an accepted tenet. The basic requirement of Article 14 is fairness in action by the state, and non-arbitrariness in essence and substance is the heart beat of fair play. Actions are amenable, in the panorama of judicial review only to the extent that the <ORG> must act validly for a discernible reasons, not whimsically for any ulterior purpose. The meaning and true import and concept of arbitrariness is more easily visualized than precisely defined. A question whether the impugned action is arbitrary or not is to be ultimately answered on the facts and circumstances of a given case. A basic and obvious test to apply in such cases is to see whether there is any discernible principle emerging from the impugned action and if so, does it really satisfy the test of reasonableness.

17. Where a particular mode is prescribed for doing an act and there is not impediment in adopting the procedure, the deviation to act in different manner which does not disclose any discernible principle which is reasonable itself shall be labelled as arbitrary. Every State action must be informed by reason and it follows that an act uninformed by reason is per se arbitrary.

18. The courts as observed in <CITATION> are kept out of lush field of administrative policy except where policy is inconsistent with the express or implied provision of a statute which creates the power to which the policy relates or where a decision made in purported exercise of power is such that a repository of the power acting reasonably and in good faith could not have made it. But there has to be a word of caution. Something overwhelming must appear before the <ORG> will intervene. That is and ought to be a difficult onus for an applicant to discharge. The courts are not very good at formulating or evaluating policy. Sometimes when the <ORG>s have intervened on policy grounds the <ORG>'s view of the range of policies open under the statute or of what is unreasonable policy has not got public acceptance. On the contrary, curial views of policy have been subjected to stringent criticism.

19. As Professor <NAME> points out (in Administrative Law by H.W.R. <NAME> 6th Edition) there is ample room within the legal boundaries for radical differences of opinion in which neither side is unreasonable. The reasonableness in administrative law must, therefore, distinguish between proper course and improper abuse of power. Nor is the test <ORG>'s own standard of reasonableness as it might conceive it in a given situation. The point to note is that the thing is not unreasonable in the legal sense merely because the <ORG> thinks it to be unwise.

20. <CITATION> , it was observed that decision taken by the authority must be found to be arbitrary, unreasonable and not taken in public interest where the doctrine of legitimate expectation can be applied. If it is a question of policy, even by ways of change of old policy, the <ORG> cannot intervene with the decision. In a given case whether there are such facts and circumstance giving rise to legitimate expectation, would primarily be a question of fact.

21. As was observed in <CITATION> .

/SC/0326/1999, the change in policy can defeat a substantive legitimate expectation if it can be justified on "Wednesbury reasonableness". The decision maker has the choice in the balancing of the pros and cons relevant to the change in policy. It is, therefore, clear that the choice of policy is for the decision maker and not the <ORG>. The legitimate substantive expectation merely permits the <ORG> to find out if the change of policy which is the cause for defeating the legitimate expectation is irrational or perverse or one which no reasonable person could have made. A claim based on merely legitimate extension without anything more cannot ipso facto give a right. Its uniqueness lies in the fact that it covers the entire span of time: present, past and future. How significant is the statement that today is tommorrows' yesterday. The present is an we experience it, the past is a present memory and future is a present expectation. For legal purposes, expectation is not same anticipation. Legitimacy of an expectation can be inferred only if it is founded on the sanction of law.

22. As observed in Attorney General for New Southwale v. <NAME> [1990 (64) Australian LJR 327) 'to strike the exercise of administrative power solely on the ground of avoiding the disappointment of the legitimate expectations of an individual would be to set the courts adrift on a featureless sea of pragmatism. Moreover, the negotiation of a legitimate expectation (falling short of a legal right) is too nebulous to form a basis for invalidating the exercise of a power when its exercise otherwise accords with law; 'If a denial of legitimate expectation in a given case amounts to denial of right guaranteed or is arbitrary, discriminatory, unfair or biased gross abuse of power or violation of principles of natural justice, the same can be questioned on the well known grounds attracting Article 14 but a claim based on mere legitimate expectation without anything more cannot ipso facto give a right to invoke these principles. It can be one of the grounds to consider, but the court must lift the veil and see whether the decision is violative of these principles warranting interference. It depends very much on the facts and the recognized general principles of administrative law applicable to such facts and the concept of legitimate expectation which is the latest recruit to a long list of concepts fashioned by the courts for the review of administrative action must be restricted to the general legal limitations applicable and binding the manner of the future exercise of administrative power in a particular case. It follows that the concept of legitimate expectation is 'not the key which unlocks the treasure of natural justice and it ought not to unlock the gates which shuts the court out of review on the merits', particularly, when the element of speculation and uncertainty is inherent in that very concept. As cautioned in Attorney General for New Southwale's case the <ORG> should restrain themselves and respect such claims duly to the legal limitations. It is a well-meant caution. Otherwise, a resourceful litigant having vested interest in contract, licences, etc. can successfully indulge in getting welfare activities mandated by directing principles thwarted to further his own interest. The caution, particularly in the changing scenario becomes all the more important.

23. If the <ORG> acts within the bounds of reasonableness, it would be legitimate to take into consideration the national priorities and adopt trade policies. As noted above, the ultimate test is whether on the touchstone of reasonableness the policy decision comes out unscathed.

24. Reasonableness of restriction is to be determined in an objective manner and from the standpoint of interests of the general public and not from the standpoint of the interest of persons upon whom the restrictions have been imposed or upon abstract consideration. A restriction cannot be said to be unreasonable nearly because in a given case, it operates harshly. In determining whether there is any unfairness involved; the nature of the right alleged to have been infringed the underlying purpose of the restriction imposed, the extent and urgency of the evil sought to be remedied thereby, the disproportion of the imposition, the prevailing condition at the relevant time, enter into judicial verdict. The reasonableness of the legitimate expectation has to be determined with respect to the circumstances relating to the trade or business in question. Cancalization of a particular business in favour of even a specified individual is reasonable where the interests of the country are concerned or where the business affects the economy of the country. ( <CITATION> .

/ <CITATION> , <CITATION> .

/ <CITATION> . (AIR 1997 SC 129).

25. As noted above, the appellants have relied upon the change in Government policy prescribing that there shall be no grant of renewal/extension for charter/lease permits. Learned Solicitor General has stated that if respondents apply in terms of prevailing EXIM policy, as was done by the affronted 32 vessels, due consideration in accordance with law shall be made.

26. Keeping in view the analysis made of legal positions, and in the absence of any material to discount legitimacy of policy, the respondents have not made out a case for interference.

27. In the aforesaid background the residual plea of the respondents regarding legitimate expectation is also sans merit.

28. The appeals deserve to be allowed; which we direct. Costs made easy.


CASE NO.: Appeal (civil) 6913-6914 of 2003 PETITIONER: <NAME> RESPONDENT: Vs. State of Karnataka and Ors. DATE OF JUDGMENT: 02/09/2003 BENCH: JUDGMENT:

J U D G M E N T (Arising out of SLP(C) Nos. 8113-8114/2002) <NAME>, J Leave granted.

Both these appeals have common factual matrix, and legal panorama and, therefore, are dealt with by this common judgment. Factual backdrop in a nutshell is as follows:

<ORG> (hereinafter referred to as the 'Corporation') invited applications for recruitment to two posts of Manager (Finance and Accounts) by advertisement dated 18.7.1995. The advertisement inviting applications for the two posts of Manager (Finance and Accounts), one post for general and one post of scheduled caste, prescribed the requisite educational qualification. It was stipulated in the advertisement that the age and other qualifications were to be reckoned as of 31.7.1995. It was also indicated that the applications in the prescribed format with complete information should reach the prescribed authority before 29th July, 1995 and incomplete applications and applications without necessary enclosures were to be rejected.

Appellant and respondents 4 and 5 were applicants in response to the advertisement. Though respondent No.4 was not qualified on the last date of submission of application, he was permitted to attend and appear for the written test. However, on the date of interview he was eligible. The written test was conducted on 1.10.1995 and the viva vice was conducted on 25.11.1995. Similar was stated to be the position vis- à-vis respondent No.5. When respondent No.4 was selected, appellant challenged his selection to be not in accordance with law. It is to be noted that waiting list is prepared and respondent No.5 was placed in the waiting list.

A writ application was filed before <ORG> at Bangalore challenging the selection of respondent No.4 and placing respondent <NAME> in the waiting list. Though, learned Single Judge of <ORG> held that respondent No.4 was ineligible as on the date of employment, he held that in public interest the selection was to be maintained.

A reference was made to the decision of this Court in <CITATION> . (1993 Supp (2) SCC 611) (described hereinafter as Ashok Kumar Sharma – case No.I) where it was held that if the applicant had acquired qualification by the time of interview that is sufficient.

A writ appeal was filed before <ORG>. The view of the learned Single Judge was affirmed by <ORG>. A review application was filed inter alia taking the stand that the view in <NAME> case No.I has been later on over-ruled in <NAME> and Ors. v <NAME> and Anr. (1997 (4) SCC 18) (described hereinafter as <NAME> – case No.II). Therefore, a review of the judgment of <ORG> was necessary. <ORG> by the impugned judgment held that though admittedly on 18.7.1995 i.e. on the date of advertisement the respondent No.4 was not qualified to make an application, yet few dates and facts are relevant. He had appeared for the M.B.A. examination in April 1995 and the results were declared on 4.9.1995. The written examination was held on 1.10.1995 and viva voce was conducted on 25.11.1995. At least by the time the written examination and the viva voce tests were held, he had acquired the requisite qualification. Judgment in <NAME> case No. I was delivered on 18.12.1992 and decision in the review petition in the said case was rendered on 10.3.1997. The appointment of respondent No.4 was made when the earlier decision of <NAME> case No.I held the field. It was, therefore, held that on the date of selection, the first judgment held the field; and, therefore, by applying logic of that decision the selection of respondent No.4 cannot be questioned.

Learned counsel for the appellant submitted that the approach of <ORG> is erroneous as the law declared by this <ORG> is presumed to be the law at all times. Normally, the decision of this <ORG> enunciating a principle of law is applicable to all cases irrespective its stage of pendency because it is assumed that what is enunciated by the Supreme <ORG> is, in fact, the law from inception. The doctrine of prospective over-ruling which is a feature of American jurisprudence is an exception to the normal principle of law, was imported and applied for the first time in <CITATION> . (AIR 1967 SC 1643). <CITATION> . (1993 (4) SCC 727) the view was adopted. Prospective over-ruling is a part of the principles of constitutional canon of interpretation and can be resorted to by this <ORG> while superseding law declared by it earlier. It is a device innovated to avoid reopening of settled issues, to prevent multiplicity of proceedings, and to avoid uncertainty and avoidable litigation. In other words, actions taken contrary to the law declared prior to the date of declaration are validated in larger public interest. The law as declared applies to future cases. ( <CITATION> . , <CITATION> ). It is for this <ORG> to indicate as to whether the decision in question will operate prospectively. In other words, there shall be no prospective over-ruling, unless it is so indicated in the particular decision. It is not open to be held that the decision in a particular case will be prospective in its application by application of the doctrine of prospective over-ruling. The doctrine of binding precedent helps in promoting certainty and consistency in judicial decisions and enables an organic development of the law besides providing assurance to the individual as to the consequences of transactions forming part of the daily affairs. That being the position, <ORG> was in error by holding that the judgment which operated on the date of selection was operative and not the review judgment in <NAME> case No.II. All the more so when the subsequent judgment is by way of Review of the first judgment in which case there are no judgments at all and the subsequent judgment rendered on review petitions is the one and only judgment rendered, effectively and for all purposes, the earlier decision having been erased by countenancing the review applications. The impugned judgments of <ORG> are, therefore, set aside.

That brings us to the ticklish question as to how the reliefs can be moulded. It is not in dispute that subsequently the appellant has also been appointed on 9.11.2002. Though it was permissible for this case to set aside the appointments of respondent no.4 and respondent no.5, on the peculiar facts of this case, we consider it to be not called for and the rights of parties instead could be adjusted by working out equities, in the interests of substantial justice by adopting a different course. The appellant shall rank senior to respondent No.4 by treating his appointment to be with effect from the date of selection of respondent No.4. This shall be only for the purpose of fixing the seniority and continuity of service only not for entitlement to any salary or other financial benefits. As respondent No.5 was only in the waiting list, and it is stated that he has been subsequently appointed, he will also rank below the appellant and respondent No.4. The appeals are accordingly allowed. There shall be no order as to costs.