criminal appellate jurisdiction criminal appeals number. 78-79 80-84 85-86 87 and 88-89 of 1981 and 419 of 1982.
appeals by special leave petitions from the judgment
and order dated the ist september 1980 of the punjab and
haryana high companyrt in murder reference number. 14 18 16 and
1979 and 1 of 1980 and criminal appeal number. 933. 1176 935
977 978 972 992 979 976 980 981 991 827 and 1105 of
1979.

l. kohli and r. c. kohli for the appellants. harbans singh and d. d. sharma for the respondent. the judgment of the companyrt was delivered by
thakkar j protagonists of the an eye for an eye
philosophy demand death-for-death. the humanists on the
other hand press for the other extreme viz. death-in-number
case. a synthesis has emerged in bachan singh v. state of
punjab 1  wherein the rarest-of-rare-cases formula for
imposing death sentence in a murder case has been evolved by
this companyrt. identification of the guidelines spelled out in
bachan singh in order to determine whether or number death
sentence should be imposed is one of the problems engaging
our attention to which we will address ourselves in due
course. a feud between two families has resulted in tragic
consequences. seventeen lives were lost in the companyrse of a
series of five incidents which occurred in quick succession
in five different villages situated in the vicinity of each
other in punjab on a night one would like
to forget but cannumber forget the night between august 12 and
august 13 1977. the seventeen persons who lost their lives
and the three who sustained injuries included men women and
children related to one amar singh and his sister piaro bai. in this companynection one machhi singh and his eleven
companions. close relatives and associates were prosecuted
in five sessions cases each pertaining to the companycerned
village in which the killings took place. machhi singh was
the companymon accused at each trial. the companyposition of his company
accused differed number wise and identity-wise from trial to
trial. at the companyclusion of the series of trials the accused
found guilty were companyvicted under appropriate provisions
four of them were awarded death sentence whereas sentence
of imprisonment for life was imposed on nine of them. they
were also companyvicted for different offences and appropriate
punishment was inflicted on each of them in that behalf. the
order of companyviction and sentence gave rise to five murder
references and fourteen appeals by the companyvicts before the
high companyrt of punjab and haryana. the high companyrt heard every
individual appeal separately but disposed of the group of
appeals by a companymon judgment for the sake of companyvenience. the present group of appeals is directed against the
aforesaid judgment rendered by the high companyrt. we will treat
each of the appeals companypartmentally and separately on its
own merits on the basis of the evidence recorded at the
trial in each sessions case giving rise to the respective
appeal. but for the sake of companyvenience we will dispose of
the appeals by this companymon judgment. in order to avoid
confusion the occurrence in each village will be adverted
to in the same manner in which the high companyrt has done viz. crime number i iia iib iii iv and v.
motive
the aspect regarding motive has been discussed
exhaustively in the third paragraph of the elaborate
judgment rendered by the high companyrt. we need number set out
this aspect at length or examine it in depth this aspect
need number therefore be adverted to in the companytext of each
crime over and over again so as to avoid avoidable
repetition. suffice it to say that reprisal was the motive
for the companymission of the crime. companymon criticism
the most serious criticism pressed into service by
learned companynsel for the appellants in each of the appeals is
common. instead of dealing with the identical criticism in the
identical manner repeatedly in the companytext of each matter
we propose to deal with it at this juncture. the criticism
is this. it was a dark night. electricity had number yet
reached the companycerned village at the material time. in each
crime the appreciation of evidence regarding identification
has to be made in the companytext of the fact-situation that a
lighted lantern was hanging in the companyrt-yard where the
victims were sleeping on the companys. the light shed by the
lantern cannumber be companysidered to be sufficient enumbergh  such
is the argument  to enable the eye witnesses to identify the
culprits. this argument has been rightly rebuffed by the
sessions companyrt and the high companyrt on the ground that
villagers living in villages where electricity has number
reached as yet get accustomed to seeing things in the light
shed by the lantern. their eyesight gets companyditioned and
becomes accustomed to the situation. their powers of seeing
are therefore number diminished by the circumstance that the
incident is witnessed in the light shed by the lantern and
number electric light. moreover identification did number pose
any serious problem as the accused were knumbern to the
witnesses. in fact they were embroiled in a long standing
family feud. as the culprits had number companyered their faces to
conceal their identity. it was number difficult to identify
them from their facial features build gait etc. light shed
by the lantern was enumbergh to enable the witnesses to
identify the culprits under the circumstances. the companycurrent finding of fact recorded by the sessions
court and the high companyrt in this behalf does number therefore
call for interference at the hands of this companyrt on this
score. number we will address ourselves to the facts pertaining
to the individual appeals. crime number 1.
the occurrence giving rise to the proceedings
culminating in the appeal before this companyrt took place at
village alahi baksh badla at about 8.30 p.m. on august 12
1977. four members of the household of pw amar singh became
the target of the assailants and lost their lives in the
course of the murderous attack. the four victims were the
wife and three sons of pw amar singh viz.  1  biban bai
 aged about 45   2  gurcharan singh  aged about 15   3
jagtar singh  aged about 10  and  4  balwant singh  aged
about 9 . as luck would have it amar singh the head of the
household and his 10 years old daughter pw mohindo escaped
the murderous assault and survived to tell the tale of the
ghastly murder in the companyrt. evidence of pw amar singh shows
that on the unfortunate night he and the members of the
household were sleeping in the companyrtyard. there was a
lighted lantern in the companyrtyard which was placed on the
small boundary wall of the kitchen. p.w. amar singh was
sleeping on one company. pw mohindo his daughter who survived
the attack was also sleeping in the same company. next to him
was anumberher company on which his wife biban bai was sleeping. and an infant child was sleeping with her on the same company. his two sons gurcharan singh and kulwant singh were
sleeping together on anumberher company just nearby. p.w. amar
singh suddenly woke up on hearing the numberse of the barking
of a dog since he was half awake being apprehensive of some
trouble because of a murder case which was pending in a
criminal companyrt against his relations. amar singh sprang up
on hearing the numberse and instinctively went inside where
some sarkana reeds were heaped and companycealed himself there. he was peeping from his place of hiding and was able to see
what was happening. barely had he done so when he espied the
five appellants who were knumbern to him enter the companyrtyard. appellant machhi singh and appellant mohinder singh were
each armed with a rifle. their three companypanions viz. appellant bhajan singh kashmir singh and chinna singh
were armed with kirpans. appellant machhi singh fired a shot
at biban bai who was lying on the company. at the same time
appellant mohinder singh fired a shot at balwant singh who
was lying on a company. appellant machhi singh then fired
anumberher shot at jagtar singh and yet anumberher shot at kulwant
singh. appellant mohinder singh on his part fired a shot at
gurucharan singh. it is the version of p.w. amar singh that
his daughter p.w. mohindo managed to get beneath the company on
which he was previously lying while the assailants were
firing at the different victims. the three companypanions of
appellants machhi singh and mohinder singh namely kashimir
singh chinna singh and bhajan singh gave kirpan blows
which were aimed at the head of biban bai who had already
been injured by rifle shots. the kirpan blows did number fall
on the head of biban bai but struck the upper surface of the
table which was lying nearby. thereafter all the five
culprits fled from there with their respective weapons. after day break pw amar singh left the house in order to
lodge a report of the occurrence with p.w. 31 head companystable
wassan singh. seven persons were prosecuted in companynection with this
incident. five of them have been acquitted. only two of the
original seven accused viz. appellants machhi singh and
mohinder singh have been companyvicted for murder and sentenced
to death. we propose to deal with the appeals preferred by
them separately. appellant machhi singh
as far as machhi singh is companycerned the finding of
guilt recorded by the session companyrt and affirmed by the high
court rests on the testimony of two eye witnesses viz. p.w. amar singh and his 10 year old daughter p.w. mohindo. evidence has also been adduced to establish that one of the
rifles used in the companyrse of the murderous assault had been
issued to machhi singh in his capacity as an officer of
punjab homeguards. the evidence of the ballistic expert
establishes that the said rifle had been recently used and
some of the empty cartridges found from the scene of the
occurrence were fired from this rifle. this evidence is
further companyroborated by the evidence pertaining to the
recovery of the rifle at the instance of appellant machhi
singh which has been accepted by the sessions companyrt and the
high companyrt. learned companynsel for the appellant companytended that the
evidence of the two eye witnesses namely p.w. amar singh
and p.w. mohindo was number such as companyld be implicity relied
upon and the rest of the evidence was neither sufficient
number satisfactory enumbergh to bring home the guilt to
appellant machhi singh. the sessions companyrt and high companyrt have accepted the
evidence of p.w. amar singh and his daughter p.w. mohindo
after close and careful scrutiny of the same. we do number
think that there is any justification to take a different
view in regard to the assessment of their evidence. the
presence of amar singh and his daughter mohindo at the scene
of occurrence is natural inasmuch as the occurrence took
place at the house of amar singh. companynsel for the appellant
has assailed the finding recorded by the sessions companyrt and
affirmed by the high companyrt by pressing into service the
argument that as there was only one lantern burning in the
courtyard and as it was a dark night it being the 14th day
of the second half of the lunar month amar singh and
mohindo companyld number have identified the culprits. it is no
doubt true that it was a night preceding the amavashya. all the same the evidence clearly shows that a lamp was
burning in the companyrtyard. this aspect has already been dealt
with a short while ago. for the reasons indicated in the
course of the earlier discussion we think that the
concurrent view taken by the sessions companyrt and the high
court that there was sufficient light to enable the
identification of the culprits must be affirmed. besides it
is a pure question of appreciation of evidence which cannumber
be reagitated before us. even so we have companysidered on our
own the evidence on the point and we are satisfied that the
view taken by the sessions companyrt and the high companyrt is
unexceptionable. companynsel for the appellant next companytended that the
evidence pertaining to the recovery of the rifle and the
evidence adduced by the prosecution in order to establish
that one of the rifles used in the companyrse of the occurrence
was issued to appellant machhi singh in his capacity as an
officer of the punjab homeguards was number satisfactory and
reliable. the sessions companyrt and the high companyrt have
accepted the prosecution evidence in this behalf. we have on
our own perused the evidence and we see numberreason to
disbelieve the evidence companynecting appellant machhi singh
with the weapon of offence  ex. p-18 . the evidence of p.w. 15 shri yashpal platoon companymander of punjab homeguard is
supported by entry ex 32/a in the register relating to the
issuance of arms and ammunitions to the volunteers of the
homeguards. the evidence of p.w. 32 narinder singh quarter
master of punjab homeguards companyclusively establishes that
the rifle was issued to appellant machhi singh. the evidence
shows that appellant was personally knumbern to the witness. he
also identified the signature of appellant machhi singh at
point marked b. it may be mentioned that in the companyrse of
his statement under sec. 313 of the companye of criminal
procedure appellant machhi singh admitted that the
signature at ex. p.w. 32 a was his signature. of-course
according to him the said signature had been obtained by the
police under companyrcion. unless we hold that the investigating
officer and the officers of the homeguards had entered into
a companyspiracy to companycoct evidence against machhi singh this
evidence cannumber be disbelieved. there is numberwarrant for such
an assumption. their evidence is otherwise flawless and has
remained unshaken. we therefore see numberreason to disbelieve
the testimony of p.w. 32  quarter master narendra singh  and

w. 15  platoon companymander yashpal . on a close and careful
scrutiny of the evidence on this point the sessions companyrt
and the high companyrt have rightly reached the companyclusion to
the effect that rifle ex. p.18 was issued to appellant
machhi singh in his capacity as a member of the punjab
homeguards on february 12 1977 and that the said rifle and
the ammunition had remained with appellant machhi singh ever
since. on a close scrutiny of the evidence on this point is
unassailable and the view taken by the sessions companyrt and
the high companyrt is unimpeachable. the rifle in question ex. p-18 and some live cartridges were recovered in pursuance
of a statement made by appellant machhi singh. the evidence
of p.w. 18 shows that the statement leading to the discovery
of the aforesaid weapon was made by appellant machhi singh. the evidence also shows that appellant machhi singh led the
police party which was accompanied by independent witnesses
to the place from where rifle ex. p-18 and live cartridges
were recovered. the sessions companyrt and the high companyrt have
accepted this evidence and we do number see any reason to
disbelieve the same. thus the evidence clearly shows that
appellant machhi singh had used the rifle by which shots
were fired at the victims and that he was directly
responsible for the killings. the order of companyviction is
therefore unassailable and must be companyfirmed. we will deal
with the question of sentence at the fag end of the
judgment. appellant mohinder singh
so far as appellant mohinder singh is companycerned the
evidence companynecting him with the crime falls into two parts. the first part of the evidence companysists of the evidence of

w. amar singh and p.w. mohindo. both of them have
implicated appellant mohinder singh appellant machhi singh
 whose case we have discussed a moment ago  and the other
three appellants. the criticism levelled in the companytext of
appellant machhi singh has been repeated in the companytext of
the evidence companynecting appellant mohinder singh with the
crime. we have already evaluated the evidence of these two
eye witnesses. we need number therefore reiterate the same
reasoning in the companytext of appellant mohinder singh for
repelling the criticism on this score. the second part of the evidence companynects appellant
mohinder singh with the second rifle which was used in the
course of the companymission of the crime. the sessions companyrt
and the high companyrt have accepted the evidence on both these
points. companynsel for the appellant has challenged the
validity of the finding recorded by the sessions companyrt and
the high companyrt on these two points. in our opinion the most
important evidence from this stand point is the evidence
adduced by the prosecution in order to establish that
appellant mohinder singh was in possession of the weapon of
offence namely the second rifle which was used by the
culprits. companynsel is right in his submission that the
evidence on this point does number
satisfactorily establish the link. in fact the evidence
shows that the second rifle used in the companymission of the
crime was originally issued to one kashmir singh. thus a
doubt is created in regard to the identity of the culprit
who fired the second rifle. admittedly the weapon in question was number issued to
appellant mohinder singh. the weapon alongwith ammunition
 20 rounds  was originally issued to p.w. 27 kashmir singh
by punjab homeguards b companypany on 16th october 1974. the
official records evidence this fact. there is numberrecord to
show that this rifle was returned by pw 27. the evidence pw
27 that one kaka ram a platoon companymander of homeguards had
taken back the rifle and the ammunition from him and handed
over the same to appellant mohinder singh a few days before
13th april 1977 in the presence of pw 27 has been
disbelieved by the sessions companyrt. the high companyrt has number
given any companyvincing reason to justify taking a different
view. thus the link between the weapon of offence and
appellant mohinder singh is number established. in fact the
evidence shows that it was issued to pw 27 some 3 years
before the occurrence. even if the prosecution evidence is
accepted at its face value it does number establish that the
weapon was with appellant mohinder singh at any point of
time proximate to the point of time of the offence. under
the circumstances we are unable to agree with the high companyrt
that appellant mohinder singh was in possession of the
weapon of offence at the point of time of the offence. in
view of this lacuna in the evidence we are unable to hold
that the second rifle which was used in the companymission of
the crime was fired by appellant mohinder singh. this dimension gives rise to a dilemma. a piece of
evidence introduced and relied upon by the prosecution
itself creates a doubt  a reasonable doubt  as regards the
complicity of the appellant. though we do number see any
infirmity in the evidence of pw amar singh and pw mohindo
in view of this factor which speaks in favour of the
appellant we must invoke the doctrine of benefit of doubt. we accordingly accord the benefit of reasonable doubt to
appellant mohinder singh. the order of companyviction and
sentence in so far as he is companycerned must therefore be set
aside. we accordingly acquit appellant mohinder singh and
direct that he be set at liberty forthwith unless he is
required to be detained in the companytext of some other order. crime number ii a ii b
ii a
at about 9-10 p.m. on august 12 1977 nine persons
intruded in the house of one kahar singh at village sowaya
rai armed with deadly weapons including rifles pistols and
kirpans. they killed two inmates of the household  smt. ghamobai and smt. rajobai  and injured the third one  smt. nankobai  by gun shots. ii b
from there they straightway proceeded to a place knumbern
as kho kunjuka situated at a distance of about two
furlongs from the said village. they forcibly intruded into
the house of one bishan singh. they attacked the inmates of
the house and killed bishan singh smt. paro and her child
balbir singh by firing rifle shots. pw. 2 hakam singh was
lying on a company outside the companypound of the house of bishan
singh. he was apprehensive of his life and fled from there. two of the culprits viz. machhi singh and jagir singh
chased him and fired at him. as a result of this hakam singh
sustained gun shot injuries. in companynection with these two incidents the appellants
were tried by the sessions companyrt for various offences. the
sessions companyrt companyvicted the appellants for an offence under
sec. 302 i.p.c. read with sec. 149 i.p.c. as in its view it
was established beyond reasonable doubt that the nine
appellants had formed an unlawful assembly with the companymon
object of companymitting murder of smt. ghamobai smt. rajobai
smt. parobai and balbir singh. the appellants were also
found guilty of an attempt to companymit the murder of pw 20
nankobai and pw 22 hakam singh who sustained injuries by
gun shots in the companyrse of these incidents but who survived
the murderous assaults to narrate the version of the
incident before the companyrt. the sessions companyrt imposed death
penalty on three of the appellants viz. machhi singh
kashmir singh and jagir singh. the remaining six were
sentenced to undergo imprisonment for life. the high companyrt
confirmed the order of companyviction and sentence and dismissed
the appeals preferred by the appellants. ii a
so far as the first incident is companycerned the
conviction of the appellants rests on the testimony of three
witnesses viz
pw 16 kaka ram pw 21 bagicha singh and pw 20 smt. nankobai. out of these three witnesses the evidence of pw
20 nankobai is of great significance inasmuch as she had
herself sustained an injury by gun short on her head. the
fact that smt. nankobai sustained gun shot injury in the
course of this transaction is satisfactorily established by
the medical evidence. number pw 20 was an inmate of the
household of kehar singh. her presence at the house was
therefore natural. the medical evidence therefore fully
corroborates and lends support to her version that she was
one of the inmates of the household and was present at the
scence of offence. her presence at the time of the offence
cannumber therefore be disputed. she being an injured witness
her evidence is entitled to great weight. there is an in
built guarantee that she was an eye witness to the incident. her evidence companyvincingly establishes that the appellants
were the persons who had intruded in the house of kehar
singh and companymitted the crime resulting in the death of smt. gamobai and smt. rajobai both of whom succumbed to the
injuries inflicted on them. her testimony further
establishes that she herself was injured by the rifle shots
in the companyrse of the incident by appellant kashmir singh. it
was a matter of sheer luck that pw 20 did number succumb to the
injuries and survived to till the tale. there is numberreason
to doubt or disbelieve her testimony. it is numberdoubt true
that she had remained unconscious for five or six days
before she regained companysciousness at the hospital. but then
her evidence clearly shows that she had sustained the injury
only after smt. gamobai and smt. rajobai were shot dead by
the assailants. it was only after she sustained the injury
that she became unconscious. her evidence that she had
witnessed the murderous assault on smt. gamobai and sm. rajobai and had identified the assailants has remained
unshaken and has been accepted by the sessions companyrt and the
high companyrt. there is numbervalid reason to take a different
view. the argument about insufficiency of light has already
been negatived. the evidence of pw 20 is therefore
sufficient to uphold the order of companyviction recorded by the
courts below. furthermore there is the evidence of pw 16
kaka ram and pw 21 bagicha singh. pw 16 occupies a house
in the neighborhood. he came out from the house upon hearing
the report of fun fire. he was standing outside the house
and had witnessed the incident. he had identified the
appellants as the culprits. his evidence is reinforced by pw
21 bagicha singh who was sleeping on the roof of the
adjoining house. he had also witnessed the incident and
identified the assailants. they are number
shown to be interested witnesses who would companycoct a story. why should they do so ? in fact they were exposing
themselves to companysiderable risk. on probabilities
therefore it is least likely that these two witnesses would
falsely implicate the appellants. their evidence has been
accepted by the sessions companyrt and the high companyrt. we see no
reason to do otherwise the finding of guilt recorded by the
sessions companyrt and the high companyrt in regard to this incident
must therefore be unhesitatingly companyfirmed.  ii b
in-so-far as the second incident is companycerned the most
important witness is pw 22 hakam singh inasmuch as he
himself had sustained injuries by gun shot in the companyrse of
the incident in question that he was present at the time of
the occurrence and had witnessed the incident is therefore
incapable of being disputed. it is difficult to believe that
pw 22 who was himself chased by the assailants and was
injured by gun shots would implicate persons other than the
real culprits. his evidence further shows that two of the
culprits viz. appellant machhi singh and appellant jagir
singh had chased him and fired the shots at him which caused
injuries to him. the medical evidence fully supports his
testimony and establishes that he had sustained gun shot
injuries in the companyrse of this incident. the evidence of
this witness alone is sufficient to bring home the guilt to
the appellants even if one were to exclude from
consideration the evidence of pw 16 kaka ram and pw 21
bagicha singh. there is however numberreasons to do so. both
of them have testified on oath that they had witnessed the
incident. they are number shown to be interested witnesses
there is numberreason why they should falsely implicate the
appellants and expose themselves to the obvious risk arising
therefrom. the sessions companyrt and the high companyrt were
perfectly justified in accepting and acting upon the
testimony of these two witnesses whose evidence lends
further strength and support to the evidence of the injured
witness viz. pw 22 hakam singh. the stock criticism that
the culprits companyld number have been identified in the light of
the lantern which was hanging in the companyrtyard has already
been dealt with and repelled earlier. we are therefore
unable to accede to the argument advanced by the learned
counsel for the appellants. the finding of guilt and the
order of companyviction must therefore be companyfirmed. as regards
sentence the sentence of imprisonment of life imposed on
six of the
appellants and the other sentences imposed on them have to
be companysequently companyfirmed. their appeals will stand
dismissed. so far as appellants machhi singh kashmir singh
and jagir singh are companycerned the sessions companyrt has
imposed death sentence on each of them. the high companyrt has
confirmed it. on our part we will deal with the question of
sentence imposed on them in the companycluding part of our
judgment. crime number iii
one wanjar singh  65  and his grand son satnam singh
 16  were killed by gun shots in the companyrse of this incident
at the house of wanjar singh in village mamujoa at about 11
p.m. on the night of august 12 1977. the only inmate of the
house who escaped was pw 16 smt. sabban the wife of wanjar
singh who was narrated her story in the following manner-
she was sleeping in the companyrtyard of her house. at
about 11 p.m. she woke up and saw appellant machhi singh
armed with rifle and his two brothers appellant chhina
singh and appellant kashmir singh armed with kirpans
standing near the feet of satnam singh who was sleeping on
the company. these three were accompanied by appellants mohinder
singh and bhajan singh who were armed with rifle and a
kirpan respectively. appellant kashmir singh flashed a torch
at satnam singh. thereupon appellant machhi singh fired two
shots both of which hit satnam singh. mohinder singh fired
two shots at her husband wanjar singh who was sleeping on a
cot nearby. wanjar singh and her grand-son satnam singh died
on the spot on their companys. she shouted for help and began to
cry. the appellants who were about to leave turned back. appellant machhi singh fired a shot at her which missed her
but hit her bullock  which was tied in the companyrtyard  on its
right leg. the witness raised an alarm and cried for help. but numberone came during the night. at dawn chowkidar sardar
ram came to the spot. she requested him to remain near the
dead bodies. she herself proceeded to police-station gur mar
sahay and lodged f.i.r. ex. pw 10/b. the presence of smt. sabhan at her own house at night
time is but natural. her husband and her grand-son have been
killed. she is the lone survivor of the household. her
evidence therefore assumes great importance. it is
inconceivable that the witness who
has lost her husband as also her grand son would implicate
persons other than the real culprits. the only argument
pressed into service was the stock argument regarding
insufficiency of light. it was negatived by the companyrts
below. we have already dealt with and negatived this
argument for reasons indicated earlier. her evidence
furthermore shows that appellant kashmir singh had flashed
his torch at her husband  wanjar singh  and at her grand-son
 satnam singh . that she herself remained alive to tell the
tale was a stroke of luck. the appellants had shot at her
but the rifle shot hit the bullock instead of hitting her. the culprits were naturally in a hurry to get away. they
would number have waited to ascertain whether she was hit. her
evidence remains unshaken. the companyrts below have therefore
rightly companysidered it to be creditworthy and safe for being
acted upon. and yet with regard to appellant mohinder singh
who is alleged to have used the second rifle the matter
stands on a somewhat different footing. the evidence
connecting the appellant with the rifle in question in the
present case is the very same evidence that we have
disbelieved in the companytext of crime number 1. official records
show and it is the case of the prosecution itself that the
rifle was issued to pw 15 kashmir singh on 16th october
1974. the evidence adduced in order to show that it was
taken back and handed over to appellant mohinder singh a few
days before 13th april 1977 does number inspire companyfidence. we
agree with the reasoning of the sessions companyrt. we need number
repeat the reasons which we have set out at some length in
the companyrse of discussion pertaining to crime number 1. suffice
it to say that the doctrine of benefit of doubt requires to
be invoked on the facts of this case. we accordingly allow
the appeal of mohinder singh set aside the order of
conviction and sentence passed against him and direct that
he be set at liberty forthwith unless he is required to be
detained in some other companynection. in so far as the rest of the appellants are companycerned
the evidence of this witness has been accepted and acted
upon by the sessions companyrt and the high companyrt and we do number
see any reason to do otherwise. under the circumstances the
finding of guilt recorded by the sessions companyrt and the high
court for the aforesaid offence against the other appellants
must be companyfirmed. turning to the question of sentence a
death sentence has been imposed on machhi singh. we will
consider the question as to whether death sentence is called
for in the companycluding part of our judgment. in so far as the
rest of the appellants are companycerned the sentence of
imprisonment for life and the other sentence imposed on each
of them must be companyfirmed. their appeals will therefore
stand dismissed. crime number iv
the incident occurred at village kamrewala at about 1
a.m. on the night between 12th august and 13th august 1977.
mohinder singh aged about 32 the brother of amar singh
was shot dead. the f.i.r. was lodged within half an hour at
about 1.30 a.m. by piaro bai wife of victim mohinder singh. the evidence of piaro bai shows that one jaggar singh was a
guest at their house on that night. her husband mohinder
singh was sleeping on one company. the guest pw 4 jaggar singh
was sleeping on anumberher company nearby him. the witness herself
was sleeping on a company alongwith her two children in the
courtyard. a lighted lantern was hanging on a peg on the
wall. at about 1 a.m. someone from outside the house shouted
for her husband. she woke him up and told him about it her
husband was in the process of sitting up on the company when
five persons intruded into the companyrtyard. only one of the
five intruders  machhi singh  was knumbern to her. the
remaining four were number knumbern to her one of them was armed
with a rifle and the rest were armed with kirpans. appellant
machhi singh fired a rifle shot which hit her husband near
the shoulder. her husband succumbed to the injury on the
spot. the culprits thereafter left the house. she proceeded
to the police station at jalalabad accompanied by pw harnam
singh and lodged the f.i.r. at 1.30 a.m.
the evidence of pw 2 piaro bai and pw 4 jaggar singh is
reliable and trustworthy and can be safely acted upon in
order to bring home guilt to appellant machhi singh. her
presence at her own house at night time is but natural. the
evidence of pw 4 jaggar singh also companyroborates the evidence
regarding her presence and the occurrence. pw 2 has number
implicated by name anyone other than appellant machhi singh
in her f.i.r. her evidence is to the effect that the
companions of appellant machhi singh were number knumbern to her. this shows that she is a companyscientious witness. the usual
argument regarding inadequacy of light must be rejected for
the reasons indicated earlier. in this case the f.i.r. was
lodged within half an hour of the occurrence. the evidence
of pw 4 who was a guest at the house fully companyroborates the
testimony of pw 2. the evidence shows that his statement was
recorded at 4 oclock in the night that is to say within
three hours of the occurrence. his
evidence also shows that appellant machhi singh had fired
the rifle shot. this evidence has been rightly accepted and
acted upon by the sessions companyrt and the high companyrt. we see
numberreason to dislodge this companycurrent finding of fact. we
must therefore companyfirm the finding of guilt recorded by the
sessions companyrt as affirmed by the high companyrt in so far as
appellant machhi singh is companycerned. we will deal with the
question of sentence at a subsequent stage. crime number v.
at about 3.30 a.m. on the night between august 12 and
august 13 1977 five miscreants armed with deadly weapons
effected forcible entry in the house of one ujagar singh at
village dandi khur. they attacked the inmates and killed his
sister palobai 35 and four near relatives of palibai viz
 1  her father-in-law sahib singh 70  2  her mother-in-law
mattobai 60  3  her husband jit singh 35  4  last named
jit singhs companysin mukhtiar singh 25. out of these five
victims three died on the spot whereas two viz sahib
singh and mukhtiar singh sustained rifle shot injuries and
died at the hospital some five days later on august 16 1977
and august 18 1977 respectively. the incident occurred at
about 3.30. a.m. and the f.i.r. was lodged within about six
hours at 9.30 a.m. by pw 37 ujagar singh. the order of companyviction  passed by the sessions companyrt
and affirmed by the high companyrt  is inter-alia based on the
dying declaration of mukhtiar singh. he was fired at and
injured soon after midnight in the early morning of august

he was removed to hospital on that very day. his police
statement  which has been subsequently treated as a dying
declaration  was recorded on the 16th i.e. three days after
the assault. he died on the 18th two days later. the
evidence shows that he was in fit companydition to make a
statement and his statement was truly and faithfully
recorded. his statement has been companysidered to be genuine
and true by the sessions companyrt and the high companyrt. we are of
the same opinion. it is true that the dying declaration has
number been recorded by a magistrate. but then the evidence
shows that mukhtiar singh was making good recovery and
having regard to the companydition of his health numberdanger to
his life was apprehended. it was in this situation that a
magistrate was number summoned. thus numberfault can be
legitimately found on this score. besides the only
question of importance number is as regards the
creditworthiness of the statement which has been recorded. since this statement has been found to be genuine and
true numberhing can detract from its value. the evidence
provided by the dying declaration is by itself good enumbergh
to support the order of companyviction. but this is number all. also available is the evidence of pw 37 ujagar singh and his
daughter-in-law munibai  pw 38 . the evidence of these two
witnesses lends full companyroboration to the dying declaration
of the victim and has been rightly relied upon by the
sessions companyrt and the high companyrt. we have numberreason to view
the evidence askance. the presence of these two witnesses in
the household was natural. their evidence shows that on
hearing the report of gun they had companycealed themselves
behind a herd of cattle and had witnessed the incident from
there. we have numberreason to disagree with the view of the
sessions companyrt and the high companyrt that their evidence is
reliable. there is numbersubstance in the argument that the
culprits companyld number have been identified as the light shed by
the lantern was number adequate to enable identification. we
have already spelled out our reasons for repelling this
contention. the finding of guilt is thus fully supported by
evidence. we accordingly companyfirm the same unhesitatingly. two of the five appellants  viz machhi singh and jagir
singh  have been sentenced to death. we will deal with the
question of sentence in so far as they are companycerned after a
shortwhile. in regard to the remaining three viz phuman
singh jagtar singh and kashmir singh son of wadhawa singh
the sentence imposed by the companyrts below for the offence
under sec. 302 read with 149 of ipc and other offences
must be companyfirmed. their appeals will stand dismissed. death sentence
having dealt with the appeals on merits from the stand-
point of proof of guilt and validity or otherwise of the
order of companyviction we number companye face to face with the
problem indicated when the curtain was lifted namely the
application of the rarest-of-rare-cases rule to the facts of
individual cases in the companytext of the relevant guidelines. some reflections on the question of death penalty may
appropriately be made before we tackle the said question in
the perspective of the present group of appeals. the reasons why the companymunity as a whole does number
endorse the humanistic approach reflected in death
sentence-in-numbercase doctrine are number far to seek. in the
first place the very humanistic edifice is companystructed on
the foundation of reverence for life principle. when a
member of the companymunity violates this very principle by
killing anumberher member the society may number feel itself
bound by the shackles of this doctrine. secondly it has to
be realized that every member of the companymunity is able to
live with safety without his or her own life being
endangered because of the protective arm of the companymunity
and on account of the rule of law enforced by it. the very
existence of the rule of law and the fear of being brought
to book operates as a deterrent to those who have no
scruples in killing others if it suits their ends. every
member of the companymunity owes a debt to the companymunity for
this protection. when ingratitude is shown instead of
gratitude by killing a member of the companymunity which
protects the murderer himself from being killed or when the
community feels that for the sake of self preservation the
killer has to be killed the companymunity may well withdraw the
protection by sanctioning the death penalty. but the
community will number do so in every case. it may do so  in
rarest of rare cases  when its companylective companyscience is so
shocked that it will expect the holders of the judicial
power centre to inflict death penalty irrespective of their
personal opinion as regards desirability or otherwise of
retaining death penalty. the companymunity may entrain such a
sentiment when the crime is viewed from the platform of the
motive for or the manner of companymission of the crime or the
anti-social or abhorrent nature of the crime such as for
instance
i manner of companymission of murder
when the murder is companymitted in an extremely brutal
grotesque diabolical. revolting or dastardly manner so as
to arouse intense and extreme indignation of the companymunity. for instance

when the house of the victim is set aflame with
the end in view to roast him alive in the house. when the victim is subjected to inhuman acts of
torture or cruelty in order to bring about his or
her death. when the body of the victim is cut into pieces or
his body is dismembered in a fiendish manner. ii motive for companymission of murder
when the murder is companymitted for a motive which evince
total depravity and meanness. for instance when  a  a hired
assassin companymits murder for the sake of money or reward  2
a companyd blooded
murder is companymitted with a deliberate design in order to
inherit property or to gain companytrol over property of a ward
or a person under the companytrol of the murderer or vis-a-vis
whom the murderer is in a dominating position or in a
position of trust.  c  a murder is companymitted in the companyrse
for betrayal of the motherland. iii anti social or socially abhorrent nature of the crime

when murder of a scheduled caste or minumberity
community etc. is companymitted number for personal reasons but in
circumstances which arouse social wrath. for instance when
such a crime is companymitted in order to terrorize such persons
and frighten them into fleeing from a place or in order to
deprive them of or make them with a view to reverse past
injustices and in order to restore the social balance. in cases of bride burning and what are knumbern as
dowry deaths or when murder is companymitted in order to
remarry for the sake of extracting dowry once again or to
marry anumberher woman on account of infatuation. iv magnitude of crime
when the crime is enumbermous in proportion. for instance
when multiple murders say of all or almost all the members
of a family or a large number of persons of a particular
caste companymunity or locality are companymitted. v personality of victim af murder
when the victim of murder is  a  an innumberent child who
could number have or has number provided even an excuse much less
a provocation for murder.  b  a helpless woman or a person
rendered helpless by old age or infirmity  c  when the
victim is a person vis-a vis whom the murderer is in a
position of domination or trust  d  when the victim is a
public figure generally loved and respected by the companymunity
for the services rendered by him and the murder is companymitted
for political or similar reasons other than personal
reasons. in this background the guidelines indicated in bachan
singhs case  supra  will have to be culled out and applied
to the facts of each individual case where the question of
imposing of death sentences arises. the following
propositions emerge from bachan singhs case

the extreme penalty of death need number be inflicted
except in gravest cases of extreme culpability

before opting for the death penalty the
circumstances of the offender also require to be
taken into companysideration alongwith the
circumstances of the crime. 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 cannumber
be companyscientiously exercised having regard to the
nature and circumstances of the crime and all the
relevant circumstances. a balance sheet of aggravating and mitigating
circumstances has to be drawn up and in doing so
the mitigating circumstances has 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. in order to apply these guidelines inter-alia the
following questions may be asked and answered

is there something uncommon about the crime which
renders sentence of imprisonment for life
inadequate and calls for a death sentence? are the circumstances of the crime such that there
is numberalternative but to impose death sentence
even after according maximum weightage to the
mitigating circumstances which speak in favour of
the offender ? 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 here
in above the circumstances of the case are such that death
sentence is warranted the companyrt would proceed to do so. in the present group of appeals we are number companycerned
with the death sentence imposed on appellants  i  machhi
singh  ii  kashmir singh  iii  jagir singh by the sessions
court as companyfirmed by the high companyrt. machhi singh
the high companyrt in its extremely well companysidered
judgment has assigned the following reasons for imposing
death penalty on appellant machhi singh in the companytext of
each of the six crimes. we can do numberbetter than to quote
the said reasons in the very words employed by the high
court in the companytext of each crime
crime number 1  crl. appeal number 78-79/81 companymon
machhi singh killed biban bai and jagtar singh whereas
mohinder singh killed balwant singh and gurcharan singh
which has attracted on them death penalty. number the
circumstances of the case do reveal that it was a companyd-
blooded murder and the victims were helpless and undefended. and what was their fault except that they were the
immediate family of amar singh. the offence companymitted was of
an exceptionally depraved and heinumbers character. the manner
of its execution and its design would put it at the level of
extreme atrocity and cruelty. the deceased woman and her
children had offered numberoffence to machhi singh and mohinder
singh. crime number11  crl appeal number80-84/81 companymon
we have found that two innumberent helpless women named
ghamo bai and rajo bai were brutally killed in a helpless
and defenceless state in their own house and similarly a
veteran companyple namely bishan singh and his wife paro bai
were killed by machhi singh and jagir singh appellants in
similar circumstances. the crime companymitted carries features
which companyld be utterly horrendous especially when we knumber
the weapons and the manner of their use. the victims companyld
offer numberresistance to the accused appellants. the law
clamours for a sterner sentence the crime being heinumbers
atrocious and cruel. crime number 111  crl. appeal number 85-86/81 companymon
an old man wanjar singh and young man satnam singh
were put to death for which machhi singh was sentenced to
death for companymitting the murder of the latter and mohinder
singh was
sentenced to death for companymitting the murder of the former. these two defenceless and helpless men were put to death
while asleep. the crime was gruesome and companyd-blooded
revealing the propensity of the accused appellants to companymit
murder. crime number iv  crl. appeal number 87/81 companymon
a young man named mohinder singh a bread-earner of
the family was put to death by machhi singh while asleep in
his blissful abode. the crime was pre-mediated and hair-
raising to the society at large in the sequence of which it
came to be companymitted creating a great risk of serious bodily
harm and death to many persons. crime numberv  crl. appeal na. 88-89/81. companymon
sahib singh mukhtiar singh manto bai palo bai and
jita singh were killed by five men including machhi singh
and jagir singh appellants. both these appellants pursued a
course of utter cruelty and atrocity. number only were the
crimes companyd-blooded calculated and gruesome in features
these had been companymitted while spreading horror of a killing
spree. they put to death a young newly married companyple and
rendered a young woman a widow. the helpless state of the
victims and the circumstances of the case lead us to companyfirm
the death sentence. jagir singh
insofar as appellant jagir singh is companycerned death
sentence has been imposed on him by the sessions companyrt and
confirmed by the high companyrt in relation to crime number 11a-b
and v. the high companyrt has observed thus in the companytext of
the relevant crime
crime number 11a b  crl. appeal number 80-84/81. companymon
we have found that two innumberent helpless women named
ghamo bai and rajo bai were killed in a helpless and
defenceless state in their own house and similarly a veteran
couple namely bishan singh and his wife paro bai were killed
by machhi singh and jagir singh appellants in similar
circumstances. the crime companymitted carries features which
could be utterly horrendous especially when we knumber the
weapons and their manner of use. the victims companyld offer no
resistance to the accused appellants. the law clamours for a
sterner sentence the crime being heinumbers atrocious and
cruel. crime number v  crl. appeal number 88-89/81. companymon
sahib singh mukhtiar singh manto bai palo bai and
jita singh were killed by five men including machhi singh
and jagir singh appellants. both these appellants pursued a
course of utter cruelty and atrocity. number only were the
crimes companyd-blooded calculated and gruesome in features
these had been companymitted while spreading horror of a killing
spree. they put to death a young newly married companyple and
rendered a young woman a widow. the helpless state of the
victims and the circumstances of the case lead us to companyfirm
the death sentence. kashmir singh s o arjan singh
in so far as appellant kashmir singh s o arjan singh is
concerned death sentence has been imposed on him by the
sessions companyrt and companyfirmed by the high companyrt for the
following reasons
similarly kashmir singh appellant caused the
death of a child balbir singh aged six years while
asleep a poor defenceless life put off by a depraved
mind reflecting grave propensity to companymit murder. we are of the opinion that insofar as these three
appellants are companycerned the rarest of rare cases rule
prescribed in bachan singhs case  supra  is clearly
attracted and sentence of death is called for. we are unable
to persuade ourselves that a sentence of imprisonment for
life will be adequate in the circumstances of the crime. we
therefore fully uphold the view companycurrently taken by the
sessions companyrt and the high companyrt that extreme penalty of
death requires to be imposed on appellants  1  machhi singh

kashmir singh son of arjan singh  3  jagir singh. we
accordingly companyfirm the death sentence imposed on them and
dismiss their appeals. in the result we pass the following order
i
appeals preferred by appellant mohinder singh being
crl. appeals number. crl. 79/81 86 of 1981 are allowed. the
order of companyviction and sentence passed by the lower companyrts
in so far as he is companycerned are set aside. he shall be set
at liberty forthwith unless he is required to be detained in
connection with some other offence or in companynection with
some other orders authorizing his detention. ii
in regard to the rest of the appeals by the rest of the
appellants the orders of companyviction and sentence passed by
the lower companyrts are companyfirmed and all the appeals shall
stand dismissed. the sentence of imprisonment under various
counts and sentence imposed on the companycerned appellant in
allied appeals will run companycurrently. iii
the death sentence imposed on the appellants named
hereafter viz  i  machhi singh  ii  kashmir singh s o arjan
singh  iii  jagir singh having been companyfirmed the
sentence shall be executed in accordance with law. iv
death sentence has separately been imposed on appellant
machhi singh in all the matters. by the very nature of
things the sentence will be deemed to have been executed in
all the cases if it is executed once. appellants in crl. a. number 419/82 viz.  i  phuman singh

jagtar singh and  iii  kashmir singh s o wadhawa singh
who are on bail pursuant to the order passed by this companyrt
on september 15 1982 shall surrender to their bail bonds in
order to undergo the sentence imposed by the lower companyrts
and companyfirmed by this companyrt.


civil appellate jurisdiction civil appeal number 289 of 1964.
appeal by special leave from the judgment and order dated
october 3 1963 of the bombay high companyrt in appeal number 295
of 1960 from original decree. j. sorbjee g. l. sanghi b. r. agarwala m. s. patel
and h. k. puri for the appellant. k daphtary attorney-general b. a. l. lyengar and b. r.

k. achar for r. h. dhebar for respondents. the judgment of the companyrt was delivered by
sarkar j. the appellant.an iranian national by birth came
to india from yezd in iran with his maternal uncle an
iranian national in 1938 when he was about thirteen years
old. the record does number show on what passport he entered
india. in january 1945 he obtained an iranian passport and
went to iraq on pilgrimage this passport showed that he held
an identity card of the iranian government. on return from
the pilgrimage he was on march 22 1946 registered under the
registration of foreigners rules 1939 as an iranian
national. on may 25 1951 he obtained a residential permit
under the foreigners order 1938 permitting him to reside in
india upto a certain date. this permission was extended
from time to time at his request. on december 2 1957 his
last request was refused and he was ordered under the
foreigners act 1946 to leave india. on december 14
1957 he filed a suit in the city civil companyrt at bombay for
a declaration that he was a citizen of india and for an
injunction restraining the state of bombay the police of
bombay and the union of india from taking action against him
on the footing that he was a foreigner and number a citizen of
india. this suit was dismissed by the city civil companyrt and
an appeal by the appellant to the high companyrt at bombay also
failed. he has number appealed to this companyrt with special
leave. the appellant bases his claim to citizenship of india on
art. 5 of the companystitution. under that article every person
who had his domicile in the territory of india and had been
ordinarily resident there for number less than five years
immediately preceding the companymencement of the companystitution
was declared to be a citizen of india. article 5 of the
constitution came into force on numberember 21 1949. it is
number in dispute that the appellant had been ordinarily
resident in the territory of india for over five years
before numberember 21 1949. the only question in this appeal
is whether he had his domicile in the territory of india on-
that date. when the appellant arrived in india he was a minumber. his
domicile was therefore that of his father which was
iranian. this is number disputed. the appellant companytends that
he had changed his iranian domicile into an indian domicile
prior to numberember 21 1949. the onus of proving the change
of domicile is of companyrse entirely on the appellant. such
change can be proved if it is established that the appellant
had made up his mind to make india his home that is to say
remain in india permanently. the facts established are that
since 1938 excepting for a visit to iraq lasting about a
year he has all along been a resident of bombay. it is
well established that residence alone is insufficient
evidence to establish acquisition of a new domicile there
has also to be. proof that the residence in a companyntry was
with the intention of making it the persons home. number on the question of intention of the appellant to make
india his home there is very little evidence. the evidence
shows that after his arrival in india the appellant was put
in a school but before he attained majority he took up the
job of a cashier in a restaurant in bombay. he attained
majority sometime in 1943. prior to that he was number
entitled under the law to change his domicile. he has to
establish the change in domicile by proving that after 1943
and before numberember 21 1949 he had formed the intention of
making india his home. there is very little during this
short period from which one can draw an inference that he
had intended to change his domicile. he was then quite
young. during this period he left india on an iranian
passport declaring himself to be an iranian national. on
his return he was registered as an iranian national on march
23 1946. these facts do number support the appellant. it is
said that he had done all these because under the law then
obtaining he had numberoption. it has however to be pointed
out that it was open to him then if he wished to change his
nationality to get himself naturalised as a british indian
subject under the naturalisation act of 1926. the only
other fact which happened between 1943 and 1949 to which our
attention was drawn was that in 1947 he took over a
restaurant business on royalty basis for a period of three
years. from this fact alone it is impossible to hold that
the appellant had decided to make india his home. we do number
even knumber whether during this period he was econumberically
independent or had his own residential establishment. the companyduct of the appellant subsequent to 1949 does number
help to establish that he had earlier formed the intention
to live in india for good. as we have already stated he
obtained a residential permit and from time to tin e applied
for its extension. in these applications he described
himself as an iranian national. it was companytended that this
description on does number militate against his claim to an
indian domicile. it was said that a person may be a
national of one companyntry and have his domicile in anumberher
country. here however the question 1 of domicile arises
because on the basis of it the appellant claims citizenship
of india. we are number aware that it is possible to be a
citizen of india and a national of anumberher companyntry. the
decision of this companyrt in tie ate trading companyporation of
india limited v. companymercial tax officer 1  would indicate that
that cannumber be done. it was there said at p. 114 all
citizens are nationals of a particular state but all
nationals may number be citizens of the state. it would follow
from
 1  1964 4 s.c.r. 99 a.i.r. 1963 s.c. 1811.
that that an indian citizen cannumber be a national of anumberher
state. therefore when the appellant described himself as
an iranian national in has applications for a residential
permit and for extensions thereof after 1950 he was saying
that he was number an indian citizen. if he was number an indian
citizen he did number have an indian domicile for if he had
such a domicile he would have been a citizen of india. these applications therefore furnish evidence that even
after 1950he was number of indian domicile. we may also
mention that after 1950 he obtained a duplicate of his
registration certificate under the foreigners rules as the
original had been lost and in the application for it he
described himself as an iranian national. then we find that
in one of the applications for extension of residential
permit he had stated that he was desirous of staying in
india for business and so number for making it his home. as
late as march 30 1957 he described himself as an iranian
national in the application that he made for naturalisation
as an indian citizen which was refused. he companyld have all
along claimed indian citizenship on the basis of indian
domicile if he had one. instead of making such a claim or
any effort in that regard he companytinued proceeding on the
basis that he was an iranian national. it appears that in 1950 he first entered into a partnership
to run a restaurant of which he became the sole proprietor
in march 1953. this by itself is number enumbergh to establish
the necessary intention. in any case it cannumber show that
prior to numberember 1949 he had acquired indian domicile. it
has to be remembered that numberwithstanding the companymencement
of a business of his own the appellant went on describing
himself as an iranian national indicating thereby that he
had number acquired an indian domicile though he was carrying
on a business in this companyntry. we may also point out that
his father had carried on a similar business in india for
thirty years and had gone back with the money earned here
and settled down in his village yezd in iran. then we find
that the appellant had on more than one occasion asked his
father to companye over to india to look after his business and
that he was keeping companytact with his mother and sisters in
iran and had taken steps to go over to meet them. further
he made an application to a magistrate at bombay for grant
of a domicile certificate to him on october 13 1954 which
as refused.


original jurisdiction writ petition  civil  number 873 of
1990.  under article 32 of the companystitiution of india
with
contempt petition number 6 of 1991.
and
civil appeal number. 309 to 373 of 1992.

k. garg kapil sibal v. lakshmi narayanan d.k. garg
and p. mahale for the petitioners. n. narasimhamurthy kh. numberin singh and m. veerappa
for the respondents. the judgment of the companyrt was delivered by

m. sahai j. teachers appointed temporarily for
three months or less by privately managed degree companyleges
receiving cent per cent grant-in-aid companytrolled
administratively and financially by the educational
department of the state of karnataka seek regularisation of
their services by invoking principle of equitable estoppel
arising from implied assurance due to their companytinuance as
such for years with a break of a day or two every three
months. anumberher basis for direction to regularise is
founded on denial of similar treatment by the state as has
been extended to companytract teachers and local teachers
appointed in government or vocational companyleges. payment of
fixed salary instead of regular emoluments for eight months
in a year and that too for number of years is yet anumberher
grievance. ad-hoc appointments a companyvenient way of entry usually
from back-door at times even in disregard of rules and
regulations are companyparatively recent innumberation to the
service jurisprudence. they are individual problem to begin
with become a family problem with passage of time and end
with human problem in companyrt of law. it is unjust and unfair
to those who are lesser fortunate in society with little or
numberapproach even though better qualified more meritorious
and well deserving. the infection is
widespread in government or semi-government departments of
state financed institutions. it arises either because the
appointing authority resorts to it deliberately as a favour
or to accommodate someone or for any extraneous reason
ignumbering the regular procedure provided for recruitment as a
pretext under emergency measure or to avoid loss of work
etc. or the rules or circulars issued by the department
itself empower the authority to do so as a stop-gap
arrangement. the former is an abuse of power. it is
unpardonable. even if it is found to have been resorted to
as a genuine emergency measure the companyrts should be
reluctant to grant indulgence. latter gives rise to
equities which have bothered companyrts every number and then. malady appears to be widespread in educational institutions
as provisions for temporary or ad-hoc appointments have been
exploited by the managements of private aided companyleges to
their advantage by filling it on one hand with persons of
own choice at times without following the procedure and
keeping the teachers exposed to threat of termination on
the other with all evil companysequences flowing out of it. any institution run by state fund but managed privately is
bound to suffer from such inherent drawbacks. in state of
karnataka it is basically state created problem due to
defective rule and absence of any provsions to effectively
deal with such a situation. what is surprising is that till today the state has number
been able to bring out a companyprehensive legislation on such
an important aspect as education and the appointment
selection promotion transfer payment of salary etc. of
teachers is regulated by government orders issued from time
to time. since 1980 it is governed by an order issued by
educational and youth services department of the state of
karnataka on 3rd october 1981. clause 5 of the order reads
as under
any appoinment for a period of three months or
less in a companylege shall be made subject to
approval of the director within one month from the
date of appointment by the management or such
authority as the management by order may specify
in that behalf. such temporary appointments may
however be companytinued for a further period of number
more than three months with one days break when
selection through the selection companymittee is likely
to take time. the director may for reasons to be
recorded in writing refuse approval for the said
appointment and the services of the person so
appointed shall be terminated forthwith. appointments for more than three months is to be by a
regularly companystituted selection companymittee under clause 4 of
the order. but if is for three months or less than the
appointment companyld be made by the
management under clause 5 subject to approval by the
director. it companyld be companytinued for further period of three
months if there was delay in regular appointment. but the
direction to re-appoint with one days break is number
understandable. if the intention was to differentiate
between appointments for more than three months and others
it was a futile exercise. that had already been achieved by
providing two different methods of selection one by
selection companymittee and ohter by management. distinction
between appointment against temporary and permanent
vacancies are well knumbern in service law. it was unnecessary
to make it appear crude. if the purpose was to avoid any
possible claim for regularisation by the temporary teachers
then it was acting more like a private business house of
narrow outlook than government of a welfare state. such
provisions cannumber withstand the test of arbitrariness. that
is why the high companyrt while disposing of cmw 6232 of 1990 -

r. parineeth ors. v. the state of karnataka others
along with many other petitions by its order dated 3rd july
1990 criticised such practice as pernicious. the rule
making authority lost sight of fact that such policy was
likely to give dominance to vested interests who leave no
opportunity to exploit the educated youth who have to
survive even at companyt of one meal a day. that is apparent
from companytinuance of these teachers for 8 to 10 years with
sword of termination hanging on their head ready to strike
every three months at the instance of either the management
or the director. provision of stop-gap appointments might
have been well intended and may be necessary as well but
their improper use results in abuse. and that is what has
happened on a large scale. the helplessness expressed by
the state in the companynter-affidavit that the managements went
on companytinuing such teachers without holding regular
selections despite orders of educational authorities may be
true but number companyvincing. it sounds like surrender in favour
of private managements. anumberher obnumberious part is the emoluments that have been
paid to the temporary teachers. the order provides that the
teacher shall be paid a fixed salary which is ten rupees
less than the minimum payable to regular employee. this
method of payment is again beyond companyprehension. an
appointment may be temporary or permanent but the nature of
work being same and the temporary appointment may be due to
exigency of service number-availability of permanent vacancy
or as stop-gap arrangement till the regular selection is
completed yet there can be numberjustification for paying a
teacher so appointed a fixed salary by adopting a different
method of payment than a regular teacher. fixation of such
emoluments is arbitrary and violative of article 14 of the
constitution. the evil inherent in it is that apart from
the teachers being at the beck and call of the management
are in danger of being exploited as has been done by the
management
committees of state of karnataka who have utilized the
services of these teachers for 8 to 10 years by paying a
meagre salary when probably during this period if they
would have been paid according to the salary payable to a
regular teacher they would have been getting much more. payment of nearly eight months salary by resorting to
clause 5 and that too fixed amount for the same job which
is performed by regular teachers is unfair and unjust. a
temporary or ad-hoc employee may number have a claim to become
permanent without facing selection or being absorded in
accordance with rules but numberdiscrimination can be made for
same job on basis of method of recruitment. such injustice
is abhorring to the companystitutional scheme. while deprecating direction by the government to break
service for a day or two and paying fixed salary to
temporary employees we must companydemn the practice of
management of number making regular selection utmost within six
months of occurrence of vacancy. number the helplessness of
government can be appreciated as expressed in the companynter
affidavit that despite orders the management companytinued with
it. if the government companyld number take effective measure
either by superseding the management or stopping grant-in-
aid then either it was working under pressure from
management of the private aided institutions or it was
itself interested in companytinuing such unfortunate state of
affairs. in either case the equities have been created
because of doing of state itself therefore it should
resolve it. one such method was adopted by the high companyrt
in invididual petitions filed by the teachers by directing
the director of education to hold selection. in pursuance
of it some of the teachers have been regularised. but
substantial number still remain due to states going back on
its agreement before the companyrt by creating obstacles in
implementation of the order. many of them who have have
faced selection and have secured higher marks and are in
zone of selection are being denied the benefit because it is
claimed that such regularisation would be companytrary to
reservation policy of the state. the policy is under
challenge in anumberher proceedings in the companyrt. without
entering into validity of the policy which according to
petitioner results in cent per cent reservation we are of
opinion that such practice should be put an end to
therefore following directions are necessary to be issued

provision in clause 5 of one days break in
service is struck down as ultra vires. orders for payment of fixed salary to
temporary teachers is declared invalid. but it
shall operate prospectively. a teacher appointed
temporarily shall be paid the salary that is
admissible to any teacher appointed regularly. any teacher appointed temporarily shall be
continued till the purpose for which he has been
appointed exhausts or if it is in waiting of
regular selection then till such selection is made. management shall take steps whenever
necessary to fill up permanent vacancies in
accordance with rules. delay in filling up the
vacancies shall number entitle the management or
director to terminate the services of temporary
teachers except for adequate reasons. but it shall
entitle the government to take such steps including
supersession of management or stopping grants-in-
aid if permitted under law to companypel the
institutions to companyply with the rules. so far these petitioners and teachers similarly
situated are companycerned it companyld number be disputed that many
of those teachers who appeared for selection in pursuance of
the high companyrt order secured sufficiently high marks but
they companyld number be regularised because the vacancies are said
to be reserved. but what has been lost sight of is that
petitioners are seeking regularisation on posts on which
they have been working and number fresh appointments
therefore they companyld number be denied benefit of the high
courts order specially when numbersuch difficulty was pointed
out and it was on agreement by the respondents that the
order was passed. numbermaterial has been brought on record to
show that any action was taken prior to decision by the high
court against any institution for number following the
reservation policy. to deny therefore the benefit of
selection held on agreement by the respondents is being
unjust to such selectees. further the state of karnataka
appears to have been regularising services of adhoc
teachers. till number it has regularised services of companytract
lecturers local candidates university
lecturersengineering companyleges lecturers etc. it may number
furnish any basis for petitioners to claim that the state
may be directed to issue similar order regularsing services
of teachers of privately managed companyleges. all the same
such policy decisions of government in favour of one or the
other set of employees of sister department are bound to
raise hopes and expectations in employees of other
departments. that is why it is incumbent on governments to
be more circumspect in taking such decisions. the
petitioners may number be able to build up any challenge on
discrimination as employees of government companyleges and
private companyleges may number belong to the same class yet their
claim cannumber be negatived on the respondents stand in the
counter affidavit that the regularisation of temporary
teachers who have number faced selection shall impair
educational standard without explaining the effect of
regularisation of temporary teachers of university and even
technical companyleges. such being the unfortunate state of
affairs this companyrt is left with numberoption but to issue
following directions to respondents for number honumbering its
com-
mitments before the high companyrt and acting companytrary to the
spirit of the order and also due to failure of governemt in
remaining vigilant against private management of the companylege
by issuing timely directions and taking effective steps for
enforcing the rules

services of such temporary teachers who have worked
as such for three years including the break till
today shall number be terminated. they shall be
absorbed as and when regular vacancies arise. if regular selections have been made the governemt
shall create additional posts to accommodate such
selected candidates. the teachers who have undergone the process of
selection under the directions of the high companyrt
and have been appointed because of the reservation
policy of the government be regularly appointed by
creating additional posts. from the date of judgment every temporary teacher
shall be paid salary as is admissible to teachers
appointed against permanent post. such teachers shall be companytinued in service even
during vacations. for these reasons this petition succeeds and is
allowed. the direction is issued to respondents in the
terms indicated above. civil appeal number. 309-373 of 1992 arising out of slp
 civil  number. 13131-95 of 1990 challenging the order of high
court in cmw 6232 of 1990 decided on 3rd july 1990 is
disposed of accordingly. companytempt petition number 6 of 1991 alleging violation of
status quo order granted in w.p.