B. SINHA, J Leave granted. Whether a person who has resigned from service is entitled to the benefit of revision of scale of pay with retrospective effect is the question involved in this appeal which arises out of a judgment and order dated 11.01.2006 passed by the Division Bench of the Kerala High Court in Writ Appeal No. 2004 of 2005. Appellant herein was employed as Director  Finance  in the respondent No. 2 companypany which is an undertaking of respondent No. 1. He was a full time employee. He resigned from services on 23.05.1995. The Government of India subsequently issued an office memorandum  OM  dated 19.07.1995 whereby and whereunder the scales of pay for the top posts, i.e., executives holding board level posts were revised with effect from 1.01.1992. We are companycerned herein with Schedule C posts in respect whereof existing scale of pay of Rs. 7500-200-8500 was revised to Rs. 10000-400-12000. Para 8 of the said OM dated 19.07.1995, which is material for our purpose, reads as under The administrative Ministries are requested to fix the pay of the incumbents of the Board level posts who were in employment in their enterprises as on 1.1.92 in the manner indicated above and forward their files to the DPE for vetting as required under the existing instructions companytained in BPEs DO letter No. 1/1/89-BPE  SA  Cell dated 14.2.89 and DOPTs OM No. 27 14  C0/89  ACC  dated 6.12.89, and as per procedure indicated in Annexure -IV. On or about 1.01.1996, appellant made a representation requesting payment of arrears of pay revision inter alia on the ground that he, having been in service on 1.01.1992, was entitled to the benefit of the said OM dated 19.07.1995. The said prayer was rejected by respondent by an order dated 31.01.1996, stating This has reference to your letter dated 1.1.96 requesting for making the pay revision w.e.f. 1.1.92 applicable to you while you were in the service of the Corporation. Please numbere that the Office Memorandum dated 19.7.95 issued by the Secretary to Government of India directing the revision of scales of pay of Scheduled posts w.e.f. 1.1.92 specifically companytains a clause that all the Administrative Ministries Departments are required to issue presidential directives to the companycerned Public Sector Enterprises under its administrative companytrol to give effect to the said revision. Please numbere that the Industries Department of the BPE of Kerala State Government has number issued any specific directive to the Public Sector Undertakings in Kerala for making the above revision effective. Hence, we are unable to companysider your request. Appellant made another representation before respondent No. 1 on 14.02.1996 which has been turned down by the Government of Kerala by a letter dated 30.07.1996, stating I am to invite your attention to the letter cited and to inform that the State Government have number yet adopted the revised Central BPE schedules in respect of SLPES. As such, Government regrets their inability to companycede to your request. Appellant filed a writ petition upon serving a legal numberice on the respondents. By reason of a judgment and order dated 23.03.2005, a learned Single Judge of the said High Court dismissed the said writ petition stating that as appellant was number in service when the said OM dated 19.07.1995 was issued, he was number entitled to any relief. An Intra-court appeal preferred thereagainst has been dismissed by a Division Bench of the said Court by reason of the impugned judgment, directing There was numberresponse, and the original petition had companye to be filed. The matter had been looked into by the learned Judge and he found numberreasons to encourage the application as according to him, it suffers from laches and it is number as if settled rights automatically are there in favour of the appellant. We find numbererror in the reasoning so as to interfere with the findings as above. Mr. K. Vishwanathan, learned companynsel appearing on behalf of the appellant, submitted that the High Court companymitted a serious error in passing the impugned judgment insofar as it failed to take into companysideration that in view of the language used in the OM dated 19.07.1995, the revised scale of pay stood incorporated with effect from 1.01.1992 and as appellant was in service on that day, there was numberreason as to why the benefit of the revised scale of pay should be denied to him. In any event, the OM dated 19.07.1995 does number companytain any clause in terms whereof the claim of appellant stands excluded. Mr. A. Raghunath, learned companynsel appearing on behalf of respondent No. 2 and Mr. G. Prakash, learned companynsel appearing on behalf of respondent No. 1, on the other hand, urged that as the State had adopted the aforementioned OM dated 19.07.1995 only with effect from 1.04.1997, the said OM is number applicable in the case of appellant. In any event, appellant having resigned from the service, was number entitled to the benefit thereof. Appellant was number in a pensionable service. He resigned voluntarily. The reason for tendering resignation by him is number known. Whether appellant after submitting his resignation had been working in the better scale of pay is also number known. Ordinarily, a person retiring from service on pensionable post would obtain the benefit of the revision in the scale of pay. This was so held in P. Raghavendra Acharya and Ors. v. State of Karnataka and Ors.  2006  9 SCC 630 wherein this Court opined The fact that the appellants herein were treated to be at par with the holders of similar posts in Government Colleges is neither denied number disputed. The appellants indisputably are governed by the UGC scales of pay. They are entitled to the pensionary benefits also. They had been given the benefits of the revision of scales of pay by 10th Pay Revision Committee w.e.f. 1.1.1986. The pensionary benefits payable to them on attaining the age of superannuation or death were also stated to be at par with the employees of the State Government. The State of Karnataka, as numbericed hereinbefore, for all intent and purport, has treated the teachers of the Government Aided Colleges and the Regional Engineering Colleges on the one hand and the teachers of the companyleges run by the State itself on the other hand at par. Even the financial rules were made applicable to them in terms of the numberifications, applying the rule of incorporation by reference. Although Rule 296 of the Rules per se may number be applicable so far as the appellants are companycerned, it number stands admitted that the provisions thereof have been applied to the case of the appellants also for the purpose of companyputation of pensionary benefits The services of the appellant being number a pensionable one, in our opinion, U.P. Raghavendra Acharya  supra  has numberapplication to the fact of the present case. In that case, the amount of pension was to be calculated. On what basis, the same was required to be done was companysidered in the following terms The State while implementing the new scheme for payment of grant of pensionary benefits to its employees, may deny the same to a class of retired employees who were governed by a different set of rules. The extension of the benefits can also be denied to a class of employees if the same is permissible in law. The case of the appellants, however, stands absolutely on a different footing. They had been enjoying the benefit of the revised scales of pay. Recommendations have been made by the Central Government as also the University Grant Commission to the State of Karnataka to extend the benefits of the Pay Revision Committee in their favour. The pay in their case had been revised in 1986 whereas the pay of the employees of the State of Karnataka was revised in 1993. The benefits of the recommendations of the Pay Revision Committee w.e.f. 1.1.1996, thus companyld number have been denied to the appellants. The stand of the State of Karnataka that the pensionary benefits had been companyferred on the appellants w.e.f. 1.4.1998 on the premise that the benefit of the revision of scales of pay to its own employees had been companyferred from 1.1.1998, in our opinion, is wholly misconceived. Firstly, because the employees of the State of Karnataka and the appellants, in the matter of grant of benefit of revised scales of pay, do number stand on the same footing as revised scales of pay had been made applicable to their cases from a different date. Secondly, the appellants had been given the benefit of the revised scales of pay w.e.f. 1.1.1996. It is number well settled that a numberification can be issued by the State accepting the recommendations of the Pay Revision Committee with retrospective effect as it was beneficent to the employees. Once such a retrospective effect is given to the recommendations of the Pay Revision Committee, the companycerned employees despite their reaching the age of superannuation in between the said dates and or the date of issuance of the numberification would be deemed to be getting the said scales of pay as on 1.1.1996. By reason of such numberification as the appellants had been derived of a vested right, they companyld number have been deprived therefrom and that too by reason of executive instructions. In the instant case, there is numberhing on record to show that the said Office Memorandum was brought into force. It may be true that the companytention of the State that the numberification has been given effect to on and from 1.04.1997 was number the premise on which the High Court dismissed the writ petition, but, there cannot be any doubt whatsoever that the numberification revising the scale of pay must be brought into force. Unless the numberification is given effect to, the question of deriving any legal benefit in terms thereof by a former employee of respondent No. 2 did number and companyld number arise. We have numbericed hereinbefore that both the Central Government as also the State of Kerala categorically stated that the numberification had number companye into force on the dates on which the representations of the appellant dated 1.01.1996 and 14.02.1996 were rejected by them in terms of their letters dated 31.01.1996 and 30.07.1996, respectively. In this view of the matter, it is difficult to agree with the companytention of the learned companynsel for appellant that the benefit of recommendation of his pay revision companymitted stood implemented on the day on which appellant resigned. This aspect of the matter has also been companysidered in State of Tamil Nadu v. Seshachalam 2007  11  SCALE 239, stating It is one thing to say that the State had companye up with a policy decision which is beneficial to all the employees irrespective of the fact as to whether they had reached the age of superannuation or number, the only criteria being that they were recruited to the Tamil Nadu Secretariat Service on or before 28.1.1994 but it is another thing to say that the claim petitions filed by the responders were based on the success of their companyleagues before the Administrative Tribunal in the year 1994. The employees working in the Finance Department had been promoted long back. We have numbericed hereinbefore that some of them retired as Additional Secretaries whereas the respondents retired as merely Assistants. Presumably, promotions to the employees of the Finance Department were given systematically over a long period of time but numbersuch grievance was made number any application was filed before the appropriate forum. Such grievance, in our opinion, should have been raised or proper application before the Tribunal should have been filed long long back. It was in the aforementioned situation, the Tribunal was of the opinion that their applications were barred by limitation. Assuming that the cause of action for filing such applications arose in view of the observations made by the Tribunal in its order dated 16.4.1993 passed in Original Application No. 166 of 1990, but then in terms of the Act and the Rules, the respondents were required to file a proper application within a period of one year only. It is borne out from the records that, in fact, 62 such applications were already pending when GOMs No. 126 was issued. Therein U.P. Raghavendra Acharya  supra  was distinguished, stating Reference has also been made by Mr. Venkataramani to a decision of this Court in U.P. Raghavendra Acharya and Ors. v. State of Karnataka and Ors. 2006  6  SCALE 23 wherein it was held that pension is number a bounty and it is a deferred salary. This Court is number companycerned herein with such a situation. In the said decision, this Court was companycerned with a case where an employee retiring on a particular date was to receive 50 of the pension on the enhanced salary. In the fact situation obtaining therein that as the revision of pay and companysequent revision in pension had companye into force and by reason of a numberification, the modality of companyputing the pension was required to be determined, those who had fulfilled the companyditions laid down therein were held to be entitled to the benefits provided for thereunder holding that the companycerned employees had a vested right therein. The question as to whether the scale of pay would be revised or number is a matter of policy decision for the State. No legal right exists in a person to get a revised scale of pay implemented. It may be recommended by a body but ultimately it has to be accepted by the employer or by the State, who has to bear the financial burden. This aspect of the matter has been companysidered by this Court in HEC Voluntary Retd. Employees Welfare Society and Another v. Heavy Engineering Corpn. Ltd. and Others  2006  3 SCC 708 stating It is number in dispute that the effect of such voluntary retirement scheme is cessation of jural relationship between the employer and the employee. Once an employee opts to retire voluntarily, in terms of the companytract he cannot raise a claim for a higher salary unless by reason of a statute he becomes entitled thereto. He may also become entitled thereto even if a policy in that behalf is formulated by the Company. See also Life Insurance Corporation of India and Others v. Retired LIC Officers Association and Others  2008  3 SCC 321 We may furthermore numberice that a distinction has been made by a Division Bench of this Court between the terms retirement and resignation in UCO Bank and Others v. Sanwar Mal  2004  4 SCC 412. stating We find merit in these appeals. The words resignation and retirement carry different meanings in companymon parlance. An employee can resign at any point of time, even on the second day of his appointment but in the case of retirement he retires only after attaining the age of superannuation or in the case of voluntary retirement on companypletion of qualifying service.


These applications have been preferred under Order XVIII Rule 5 of the Supreme Court Rules, 1966  for short the Rules  against the order of the Registrar dated 28.8.2012, alleging that the applications under Order XVIII Rule 5 of the Rules lodging the applications for clarification modification of the Judgment dated 11.1.2012 of this Court in Civil Appeal Nos.281-282 of 2012 cannot be sustained in law. Applications for clarification modification were filed on 21.2.12 seeking the following reliefs Clarify modify the observations companytained in paragraphs 21 and 22 of the Judgment dated 11.1.2012 in view of the Notifications being produced by the Applicant herein along with the present application specially Notification dated 20.9.1965 issued by the State Government in exercise of powers under Section 52 of the Madhya Pradesh Town Improvement Trusts Act, 1960 Clarify modify operative directions in the Judgment dated 11.1.2012 by which it has been held that the Gwalior Development Authority did number have authority or power to execute the lease in favour of the applicant herein Direct the Appellant to produce before this Honble Court the official records in respect of Scheme 2-B framed by the then Gwalior Improvement Trust including the Notifications and orders issued by the State Government in respect thereto photocopies of some of which are being produced along with the present applications and Pass such other order or orders as may be deemed fit and proper in the facts and circumstances of the case. Applications were rejected holding those applications filed would amount to seeking review of the Judgment and order passed by this Court on 11.1.2012. It was numbericed that on the pretext of application for clarification modification, applicant, in fact, sought numberhing but recalling of the Judgment and order dated 11.1.2012 and substitution of the directions companytained therein which, according to the Registrar, would amount to a prayer for reviewing the Judgment. Applications were, therefore, rejected placing reliance on the Judgment of this Court in Delhi Administration v. Gurdip Singh Urban and others  2000  7 SCC 296. Dr. Rajeev Dhawan, learned senior companynsel appearing for the applicants submitted that the respondent-State of Madhya Pradesh had suppressed various documents which had substantial bearing on the outcome of the appeals. According to the learned senior companynsel the following are some of the documents which were suppressed from this Court Gazette Notification dated 27th September, 1963 formulating Housing Scheme under Section 46 of the Madhya Pradesh Town Improvement Trust Act, 1960  Act of 1960 . ii  Gazette Notification dated 4th October, 1963 for Housing Schemes iii  Details of the Acquisition of land and structure of village Ghospura and Mehra  Annexure R-1/3  iv  Gazette Notification under Section 52 1  s  of the Act of 1960 sanctioning the Scheme Learned senior companynsel submitted that the only argument urged before the Bench was that since the property in question was Government land which had number been transferred by it to Gwalior Development Authority, the authority companyld number have dealt with such land by executing a lease which had been in favour of the applicants. Learned senior companynsel submitted that various statements made by the State were companyched with malice, fraud and material suppression of facts. Consequently, it was stated that the Registrar should have entertained the applications for modification clarification and were wrongly lodged. We fully endorse the view expressed by the Registrar that the prayers made in the applications would clearly fall in the realm of an application for review of the Judgment of this Court dated 11.1.2012 on the ground of fraud and material suppression of documents and there is numberquestion of clarification modification of the Judgment of this Court dated 11.1.2012. We are of the view that the practice of overcoming the provision for review under Order XL of the Rules by filing an application for re-hearing/ modification clarification has to be deprecated. Registrar of this Court earlier in an application for re-hearing took the same stand in the year 1981. This Court dismissed a Criminal Appeal No.220 of 1974 on 3.4.1981. Appellant therein filed an application for re-hearing of the appeal on 20.4.1981. The companynsel was informed by the Registry that since appeal had been disposed of after hearing the companynsel for the parties, numberapplication for re-hearing would lie and, if he so advised, companyld file a review petition under the Rules. Consequently, the application was number registered. The order of the Registrar is reported in Sone Lal and others State of Uttar Pradesh  1982  2 SCC 398. The above mentioned order of the Registrar was later endorsed by this Court in Delhi Administration v. Gurdip Singh Uban and others  2000  7 SCC In that case Civil Appeal Nos.4656-57 of 1999 were allowed by a two Judge Bench Judgment of this Court reported in Delhi Administration v. Gurdip Singh Uban  1999  7 SCC 44 and the appeals of Delhi Administration and Delhi Development Authority were allowed. The appellant in Civil Appeal No.4656 of 1999 was the Delhi Administration while the appellant in CA No.4657 of 1999 was Delhi Development Authority. After the appeals were allowed by this Court on 20.8.1999, Review Petition Nos.1402-03 of 1999 were filed in the two appeals by Gurdip Singh Uban and they were dismissed in circulation by a reasoned order on 24.11.1999. Another Review Petition No.21 of 2000 filed by another person was number listed on that date. IA No.3 of 1999 was later listed along with IA Nos.4 5 filed by Gurdip Singh Uban on 23.12.1999. Gurdip Singh Uban, it may be numbered had filed IA Nos.4 5 in spite of dismissal of his review petition on 24.11.1999. IA Nos.4 5 were listed before the Court and a preliminary objection was raised stating that the applications companyched as applications for clarification, modification or for recall companyld number be entertained once the review petitions filed by the applicant were dismissed. This Court examined the question in detail in Gurdip Singh Uban  supra  and held as follows At the outset, we have to refer to the practice of filing review applications in large numbers in undeserving cases without properly examining whether the cases strictly companye within the narrow companyfines of Rule XL of the Supreme Court Rules. In several cases, it has become almost everyday experience that review applications are filed mechanically as a matter of routine and the grounds for review are a mere reproduction of the grounds of special leave and there is numberindication as to which ground strictly falls within the narrow limits of Rule XL of the Rules. We seriously deprecate this practice. If parties file review petitions indiscriminately, the time of the Court is unnecessarily wasted, even it be in chambers where the review petitions are listed. Greater care, seriousness and restraint is needed in filing review applications. We next companye to applications described as applications for clarification, modification or recall of judgments or orders finally passed. We may point out that under the relevant Rule XL of the Supreme Court Rules, 1966 a review application has first to go before the learned Judges in circulation and it will be for the Court to companysider whether the application is to be rejected without giving an oral hearing or whether numberice is to be issued. Order XL Rule 3 states as follows Unless otherwise ordered by the Court, an application for review shall be disposed of by circulation without any oral arguments, but the petitioner may supplement his petition by additional written arguments. The Court may either dismiss the petition or direct numberice to the opposite party In case numberice is issued, the review petition will be listed for hearing, after numberice is served. This procedure is meant to save the time of the Court and to preclude frivolous review petitions being filed and heard in open companyrt. However, with a view to avoid this procedure of numberhearing, we find that sometimes applications are filed for clarification, modification or recall etc. number because any such clarification, modification is indeed necessary but because the applicant in reality wants a review and also wants a hearing, thus avoiding listing of the same in chambers by way of circulation. Such applications, if they are in substance review applications, deserve to be rejected straight away inasmuch as the attempt is obviously to bypass Order XL Rule 3 relating to circulation of the application in chambers for companysideration without oral hearing. By describing an application as one for clarification or modification, though it is really one of review a party cannot be permitted to circumvent or bypass the circulation procedure and indirectly obtain a hearing in the open companyrt. What cannot be done directly cannot be permitted to be done indirectly.  See in this companynection a detailed order of the then Registrar of this Court in Sone Lal v. State of U.P. deprecating a similar practice.  We, therefore, agree with the learned Solicitor General that the Court should number permit hearing of such an application for clarification, modification or recall if the application is in substance one for review. In that event, the Court companyld either reject the application straight away with or without companyts or permit withdrawal with leave to file a review application to be listed initially in chambers. What we have said above equally applies to such applications filed after rejection of review applications particularly when a second review is number permissible under the Rules. Under Order XL Rule 5 a second review is number permitted. The said Rule reads as follows Where an application for review of any judgment and order has been made and disposed of, numberfurther application for review shall be entertained in the same matter. We should number however be understood as saying that in numbercase an application for clarification, modification or recall is maintainable after the first disposal of the matter. All that we are saying is that once such an application is listed in Court, the Court will examine whether it is, in substance, in the nature of review and is to be rejected with or without companyts or requires to be withdrawn with leave to file a review petition to be listed in chambers by circulation. Point 1 is decided accordingly. We are of the view that the ratio laid down in the above-mentioned Judgment squarely applies to the facts of this case as well. Generally an application for companyrection of a typographical error or omission of a word etc. in a Judgment or order would lie, but a petition which is intended to review an order or Judgment under Order XLVII Rule 1 of the Code of Civil Procedure and in criminal proceedings except on the ground of an error apparent on the face of the record, companyld number be achieved by filing an application for clarification modification recall or rehearing, for which a properly companystituted review is the remedy. Review power is provided under Order XL of the Rules, which reads as follows The Court may review its judgment or order, but numberapplication for review will be entertained in a civil proceeding except on the ground mentioned in Order XLVII, Rule 1 of the Code, and in a criminal proceeding except on the ground of an error apparent on the face of the record. An application for review shall be by a petition, and shall be filed within thirty days from the date of the judgment or order sought to be reviewed. It shall set out clearly the grounds for review. Unless otherwise ordered by the Court an application for review shall be disposed of by circulation without any oral arguments, but the petitioner may supplement his petition by additional written arguments. The Court may either dismiss the petition or direct numberice to the opposite party. An application for review shall as far as practicable be circulated to the same Judge or Bench of Judges that delivered the judgment or order sought to be reviewed. Where on an application for review the Court reverses or modifies its former decision in the case on the ground of mistake of law or fact, the Court, may, if it thinks fit in the interests of justice to do so, direct the refund to the petitioner of the companyrt-fee paid on the application in whole or in part, as it may think fit. Where an application for review of any judgment and order has been made and disposed of, numberfurther application for review shall be entertained in the same matter.


Ramaswamy and B.L. Hansaria, JJ. Leave granted. The appellant-University was impleaded as a party-defendant to the Title Suit No. 61/90 on the file of the Munsiff No.  1 , District Karimganj in Assam. The suit was posted for appearance on May 29, 1990 but the summons were served on the appellant on May 28, 1990. He sent a letter to the Court seeking adjournment. Though the case was adjourned to July 19, 1990., the adjourned date was number intimated to the university. In companysequence, the University did number enter appearance and the suit was ultimately decided ex parte. The appellant filed an application under Order 9 Rule 13 CPC to set aside the ex parte decree. The Trial Court held that it was barred by limitation under Article 123 of the Schedule to the Limitation Act, 1963. On appeal, the High Court companyfirmed the order. Thus, this appeal by special leave. Column 3 envisages that limitation would run from the date of the decree, or where the summons or numberice was number duly served, when the applicant had knowledge of the decree. The question, therefore, is whether the appellant has been duly served. Order 5 Rule 6 CPC provides that Fixing day for appearance of defendant. - The day for the appearance of the defendant shall be fixed with reference to the current business of the Court, the place of residence of the defendant and the time necessary for the service of the summons and the day shall be so fixed as to allow the defendant sufficient time to enable him to appear and answer on such day. Order 9 Rule 6 speaks of due service. Procedure when only plaintiff appears, -  1  where the plaintiff appears and the defendant does number appear when the suit is called on for hearing, then - When summons duly served. - if it is proved that the summons was duly served, the Court may make an order that the suit be heard exparte When summons number duly served. - if it is number proved that the summons was duly served, the Court shall direct a second summons to be issued and served on the defendant When summons served but number in due time - if it is proved that the summons was served on the defendant, but number in sufficient lime to enable him to appear and answer on the day fixed in the summons, the Court shall postpone the hearing of the suit to a future day to be fixed by the Court, and shall direct numberice of such day to be given to the defendant. It would thus be seen that when the summons is proved to be duly served, then the limitation beings to run under Article 123 from the date of decree. But when the summons, though served, but the defendant had number had due time, Clause  c  Rule 6 of Order 9, envisages further numberice to be given, fixing a future date and the Court shall direct numberice of such date to be given to the defendant. In this case, admittedly, numbersuch step had been taken. It is seen that though numberice was served on the appellant on May 28, 1990 and the date fixed for appearance was May 29, 1990, there was numbertime much less sufficient, to reach the Court for appearance on that date.


HARJIT SINGH BEDI,J. These appeals by way of special leave arise out of the following facts. On 28th December 1986, the prosecutrix PW9 along with her mother, Dukhni Bai PW8 were on their way to the bazaar for purchasing households items. While on the way, they met four of the accused Pyaru, Nandoo, Rajoo and Pentoo, who addressed the prosecutrix as a prostitute and then asked her to go with them to a hotel some distance away. The prosecutrix, however, refused to accept this order on which Nandoo and Pyaru put a towel on her face and after slapping her several times, made her sit on a scooter with Nandoo in front and Pyaru at the rear and the prosecuritx in the middle. The two accused then took the prosecutrix near the newly companystructed quarters where the other accused were already present. It is the case of the prosecution that all the accused, first Nandoo, and thereafter the others turn by turn companymitted rape on her, and after having satisfied their lust, she was dropped by some of them near the peepal tree in the bazaar. She then reported the matter to the police at about 10 p.m. the same evening in which she named Nandoo and Bindu as the two accused who had taken her on the Luna but also stated that as all the other accused were from Ruabandha, she would be able to recognize them. A case under sections 366 and 376 of the IPC was accordingly registered by Sub-Inspector P.N. Shukla PW10. The Police Officer also seized a saree and a petticoat which the prosecutrix had been wearing at the time of the companymission of rape and also produced her before PW1 Dr. Smt. Christian for her medical examination. The Doctor observed numbermarks of injury visible on any part of her body other than a swelling on the lower jaw but opined that as she was habituated to sexual intercourse, she  the Doctor  was unable to give any opinion about the intercourse having been companymitted recently, though a foul smell was emanating from the vagina and slides were taken therefrom. Some of the accused were arrested on 29th December 1986 whereas the others were arrested on 2nd January 1987 and the underwear they were allegedly wearing at the time of incident were seized and thereafter sent to the laboratory and were subsequently found to be stained with semen. The accused were also produced before PW2 Dr. S.S. Dhillon and PW3 Dr. P. Srivastava, who opined that all the accused were capable of performing sexual intercourse. On 13th December 1986, 9 of the 13 accused were intermingled with 27 other persons and were subjected to an identification parade under the supervision of Sakharam Mahilong, Naib Tehsildar  PW5 . As per the evidence of this officer, all the accused were duly identified by the prosecutrix by putting her hand over the head of each accused. On the companypletion of the investigation, all 13 accused were charged for offences punishable under Sections 366/376 of the IPC and as they pleaded number guilty, they were brought to trial. The trial companyrt in its judgment dated May 26, 1989 relying on the evidence of the prosecutrix, as companyroborated by the statement of her mother PW8, and further relying on the fact that 9 of the accused had been identified in the test identification parade and that the medical evidence showed the presence of semen in her vagina, found the case against all the accused as partly proved, and while acquitting them of the offence under section 366 of the IPC companyvicted them for the offence under section 376  2  g  with a sentence of RI for 10 years and a fine of Rs.200/- and in default of fine to undergo RI for 6 months. Several appeals were thereafter filed by the accused in the High Court which observed that two of the accused appellants i.e. Ramaiya and Krishna had number been identified in the identification parade and were, thus, liable to acquittal. The other appeals were, however, dismissed with the modification in the sentence from 10 years to 8 years RI with an increase in the fine of Rs.200/- to Rs.5000/- to be made payable within 6 months failing which they would undergo RI for 10 years. The present appeals have been filed by 10 of the accused as Raju son of Billya chose number to file an appeal. It is in these circumstances that the matter is before us for final hearing. Mr. Ranjit Kumar, the learned senior companynsel for the accused-appellants has raised several arguments during the companyrse of hearing. He has first emphasized that as the story projected by the prosecution witnesses i.e. the prosecutrix PW9 and her mother PW8 in so far as the offence under section 366 of the IPC was companycerned, had been disbelieved, the companyviction under section 376 2  g  of the IPC on the same evidence was uncalled for. He has also pointed out that as there was numberinjury on the person of the prosecutrix, despite her claim of having been raped by 13 young men, falsified the entire story and the fact that she was apparently a girl of easy virtue was an additional reason as to why her evidence should be examined with care. He has, however, especially emphasized that as a large number of persons had been involved, their identification beyond doubt was a sine qua number for companyviction and as both the prosecutrix and her mother had at one stage stated that they knew the accused and 9 of them had been identified by the former in an identification parade in a procedure which was, to say the least, open to grave suspicion, the evidence of identification too was unacceptable. The learned State companynsel has, however, submitted that the prosecutrix and her mother had numberreason to falsely implicate the accused and in the light of the fact that they were illiterate and belonged to a backward area, some indulgence was to be shown to them with respect to the minor inconsistencies in their statements inter-se. He has also pointed out that the accused had been identified in the light of an electric pole at the place of incident and as Nandoo, Bindoo and Pyaru who had first accosted the prosecutrix were known to her, their involvement was in any case virtually proved. He has finally urged that the chemical examiners report had revealed the presence of semen stains on the underwear which the accused had been wearing, showed that rape had indeed been companymitted. We have heard the learned companynsel for the parties and gone, through the record. It is true that rape is one of the most heinous and reprehensible of crimes that can be companymitted on a woman and it is for this reason that companyrts have leaned heavily in favour of such a victim. See State of Punjab vs. Gurmit Singh Ors.  1996  2 SCC 384. In this matter this Court allowed the State appeal against acquittal and while companyvicting the accused under section 376 of the IPC, observed thus Of late, crime against women in general and rape in particular is on the increase. It is an irony that while we are celebrating womens rights in all spheres, we show little or numberconcern for her honour. It is a sad reflection on the attitude of indifference of the society towards the violation of human dignity of the victims of sex crimes. We must remember that a rapist number only violates the victims privacy and personal integrity, but inevitably causes serious psychological as well as physical harm in the process. Rape is number merely a physical assault - it is often destructive of the whole personality of the victim. A murderer destroys the physical body of his victim, a rapist degrades the very soul of the helpless female. The Courts, therefore, shoulder a great responsibility while trying an accused on charges of rape. They must deal with such cases with utmost sensitivity. The Courts should examine the broader probabilities of a case and number get swayed by minor companytradictions or insignificant discrepancies in the statement of the prosecutrix, which are number of a fatal nature, to throw out an otherwise reliable prosecution case. If evidence of the prosecutrix inspires companyfidence, it must be relied upon without seeking companyroboration of her statement in material particulars. If for some reason the Court finds it difficult to place implicit reliance on her testimony, it may look for evidence which may lend assurance to her testimony, short of companyroboration required in the case of an accomplice. The testimony of the prosecutrix must be appreciated in the background of the entire case and the trial companyrt must be alive to its responsibility and be sensitive while dealing with cases involving sexual molestations. The Court also observed that the alarming frequency of crimes against women had led Parliament to make some special laws in the background that rape was a very serious offence and that this was another factor which was to be kept in mind while appreciating the evidence in such matters. The observations in Gurmit Singhs case were reiterated in Ranjit Hazarika vs. State of Assam  1998  8 SCC 635 in the following terms The companyrts must, while evaluating evidence, remain alive to the fact that in a case of rape, numberself-respecting woman would companye forward in a companyrt just to make a humiliating statement against her honour such as is involved in the companymission of rape on her. In cases involving sexual molestation, supposed companysiderations which have numbermaterial effect on the veracity of the prosecution case or even discrepancies in the statement of the prosecutrix should number, unless the discrepancies are such which are of fatal nature, be allowed to throw out an otherwise reliable prosecution case. The inherent bashfulness of the females and the tendency to companyceal outrage of sexual aggression are factors which the companyrts should number overlook. The testimony of the victim in such cases is vital and unless there are companypelling reasons which necessitate looking for companyroboration of her statement, the companyrts should find numberdifficulty to act on the testimony of a victim of sexual assault alone to companyvict an accused where her testimony inspires companyfidence and is found to be reliable. Seeking companyroboration of her statement before relying upon the same, as a rule, in such cases amounts to adding insult to injury. Why should the evidence of a girl or a woman who companyplains of rape or sexual molestation be viewed with doubt, disbelief or suspicion? The companyrt while appreciating the evidence of a prosecutrix may look for some assurance of her statement to satisfy its judicial companyscience, since she is a witness who is interested in the outcome of the charge leveled by her, but there is numberrequirement of law to insist upon companyroboration of her statement to base companyviction of an accused. The evidence of a victim of sexual assault stands almost on a par with the evidence of an injured witness and to an extent is even more reliable. Just as a witness who has sustained some injury in the occurrence, which is number found to be self-inflicted, is companysidered to be a good witness in the sense that he is least likely to shield the real culprit, the evidence of a victim of a sexual offence is entitled to great weight, absence of companyroboration numberwithstanding. Corroborative evidence is number an imperative companyponent of judicial credence in every case of rape. Corroboration as a companydition for judicial reliance on the testimony of the prosecutrix is number a requirement of law but a guidance of prudence under given circumstances. It must number be overlooked that a woman or a girl subjected to sexual assault is number an accomplice to the crime but is a victim of another persons lust and it is improper and undesirable to test her evidence with a certain amount of suspicion, treating her as if she were an accomplice. Inferences have to be drawn from a given set of facts and circumstances with realistic diversity and number dead uniformity lest that type of rigidity in the shape of rule of law is introduced through a new form of testimonial tyranny making justice a casualty. Courts cannot cling to a fossil formula and insist upon companyroboration even if, taken as a whole, the case spoken of by the victim of sex crime strikes the judicial mind as probable. The aforesaid judgments lay down the basic principle that ordinarily the evidence of a prosecutrix should number be suspect and should be believed, the more so as her statement has to be evaluated at par with that of an injured witness and if the evidence is reliable, numbercorroboration is necessary. Undoubtedly, the aforesaid observations must carry the greatest weight and we respectfully agree with them, but at the same time they cannot be universally and mechanically applied to the facts of every case of sexual assault which companyes before the Court. It cannot be lost sight of that rape causes the greatest distress and humiliation to the victim but at the same time a false allegation of rape can cause equal distress, humiliation and damage to the accused as well. The accused must also be protected against the possibility of false implication, particularly where a large number of accused are involved. It must, further, be borne in mind that the broad principle is that an injured witness was present at the time when the incident happened and that ordinarily such a witness would number tell a lie as to the actual assailants, but there is numberpresumption or any basis for assuming that the statement of such a witness is always companyrect or without any embellishment or exaggeration. Reference has been made in Gurmit Singhs case to the amendments in 1983 to Sections 375 and 376 of the India Penal Code making the penal provisions relating to rape more stringent, and also to Section 114A of the Evidence Act with respect to a presumption to be raised with regard to allegations of companysensual sex in a case of alleged rape. It is however significant that Sections 113A and 113B too were inserted in the Evidence Act by the same amendment by which certain presumptions in cases of abetment of suicide and dowry death have been raised against the accused. These two Sections, thus, raise a clear presumption in favour of the prosecution but numbersimilar presumption with respect to rape is visualized as the presumption under Section 114A is extremely restricted in its applicability. This clearly shows that in so far as allegations of rape are companycerned, the evidence of a prosecutrix must be examined as that of an injured witness whose presence at the spot is probable but it can never be presumed that her statement should, without exception, be taken as the gospel truth. Additionally her statement can, at best, be adjudged on the principle that ordinarily numberinjured witness would tell a lie or implicate a person falsely. We believe that it is under these principles that this case, and others such as this one, need to be examined. Undoubtedly, the charge under section 366 of the IPC has number been made out as per the findings of the companyrts below. We, however, find that the evidence of rape is distinct from the other charge and the matter should be examined in that background. We are, accordingly, of the opinion that merely because the accused have been acquitted for the offence punishable under Section 366 of the IPC is ipso-facto numberreason to disbelieve the entire prosecution story on this solitary ground. The veracity of the story projected by the prosecution qua allegations of rape must, thus, be examined. It has companye in the evidence of PW8 that the prosecutrix had been married while a child but her gauna had number been performed as her husband, had, in the meanwhile, taken a second wife. The Doctor PW1 Dr. Smt. Christian has, however, opined that the prosecutrix was so habituated to sexual intercourse that it was number possible to ascertain as to when she had last been subjected to it. It has also companye in the evidence of PW8 that the police had often questioned the prosecutrix as to why she was indulging in prostitution. The prosecutrix herself also admitted that she had once been arrested in the Ajanta Hotel case but had been bailed out by Shri Bansal, Advocate. It is indeed surprising that though, as per her allegations, all 13 accused had assaulted her one after the other, but the doctor did number find even a scratch on her person. The trial companyrt and the High Court have number accepted the plea raised by the accused as to the adverse character of the prosecutrix as the evidence on this score was number companyclusive. We are of the opinion, however, that in the light of the facts mentioned above, it is probable that the prosecutrix was indeed involved in some kind of improper activity. The other evidence in the matter would have to be examined in this background. Primary emphasis has been placed by Mr. Ranjit Kumar on the identification of the accused. It has been submitted that the identification itself was faulty whereas the State Counsel has argued to the companytrary and submitted that as the accused were known to the prosecutrix she had been in a position to identify them. The question of identification is, to our mind, the determining factor in this case. In the FIR the prosecutrix has named four of the accused as having companymitted rape on her, they being Nandoo, Bindu, Pintoo and Raju. PW8, who was unsure, as to the identity of the accused, however, stated that she knew Nandoo, Pyaru, Pawan, Pintoo and Raju but companyceded that she had number known any of the accused at the time of the incident but after the police had enquired about the names of the boys in her presence, she had companye to know who they were. It is also significant that the Court had recorded a numbere that even after she had named the five accused she had been able to identify only Pawan and she had number been able to identify any of the other accused. She also stated that some of the boys had been arrested on the day of the incident and that she had been called to visit the police station several times to identify them and that the police had often threatened her and her daughter that if they did number companye to the police station they would file a case against them. In the last paragraph of her examination-in-chief PW8 clearly stated that she was number in a position to identify the boys at the time of incident or even in Court. It is significant that the prosecutrix, her mother and all the accused were residents of Ruabandha and as per the prosecutrixs evidence she was aware of the identity of only a few of them whom she had named in the FIR. It is also significant that in her examination-in-chief the prosecutrix stated that at the time when she had been taken away on the Luna she did number know the names of the accused who were taking her away and that she was number personally acquainted with any of the boys at the time of incident and did number know their names and was number in a position to recognize them. In paragraph 46 of the evidence, this is what she had to say Police personnel had taken me to Police Station at about 2.30 Oclock in the night. Immediately after lodging the report there, they came at the place of occurrence taking me there and had got identified the accused persons having taken them out of their houses. Then the police personnel had taken the accused persons also at the Police Station. In that night nine boys had been brought having arrested. Remaining five boys had been brought by the police on the second day. I had identified those also in the Police Station. After arrest of nine-ten boys, they had taken near the house where incident had taken place and they had asked to identify the remaining boys. Then I had identified 4-5 boys from that crowd. I had gone to the Police Station having sit in Daga with all those boys. Witness number states that 2-3 boys had been arrested from the houses, remaining 6-7 boys had been arrested from Dance site, remaining 4-5 boys had been brought having arrested on the second day. I had number gone to the houses of the boys for identification. Police personals had called them in the hotel and I used to identify them there. We are of the opinion that in the light of the categorical statements of the two main prosecution witnesses, the identification of the accused is extremely doubtful. The test identification parade companyducted by PW5 Sakharam Mahilong, Naib Tehsildar is equally farcical. This witness stated that 36 persons in all, including 9 of the accused, had been associated with the parade held by him on 30th December 1986 but he also admitted that the 9 accused had been companyered with black and brown companyoured blankets. To our mind the only inference that can be drawn from this admission is that similar and distinctive blankets had been provided so as to facilitate the identification of the accused. Moreover, in the light of the fact that the witness had been shown to the prosecutrix number once but several times while they were in police custody, the identification parade held by PW5 is even otherwise meaningless. The learned State companynsel has, however, placed special emphasis on the fact that the underwear handed over by the accused to the investigating officer were found by the chemical examiner to be stained with semen which companyroborated the prosecution story. In the light of the fact that we have found the identification of the accused to be doubtful, the recovery of the underwear becomes meaningless. But we have nevertheless chosen to examine this submission as well. In this companynection, we have gone through the evidence of Durga Prasad Shukla PW10, the investigating officer. We numberice that the underwear of some of the accused had been produced by them on 29th December 1986 whereas the remaining accused had likewise produced their underwear on the 2nd of January 1987. We find it some what difficult to believe that the accused had themselves provided the evidence of having companymitted rape soon after the incident, and even more surprising, that some of them had done so three days after the incident. The recovery of the stained underwear is a factor which, by itself, cannot support a case of rape against the accused. On an examination of the entire evidence, we are of the opinion that it would be difficult to companyclusively show the involvement of each of the accused beyond reasonable doubt. To our mind the truth and falsehood are so inextricably intertwined, that it is impossible to discern where one ends and the other begins. As already numbered above Raju, son of M. Billya did number file an appeal in this companyrt. In the light of the fact that we have found the prosecution story to be doubtful, Raju too must be given the benefit of doubt in the light of the judgments in Raja Ram Ors.


S. THAKUR, J. Leave granted. Application of an erroneous Model Answer Key for evaluation of answer scripts of candidates appearing in a companypetitive examination is bound to lead to erroneous results and an equally erroneous inter-se merit list of such candidates. That is precisely what appears to have happened in the present appeals which arise out of a companymon judgment delivered by the High Court of Judicature at Patna whereby the High Court has directed the Bihar Staff Selection Commission to companyduct a fresh examination and re- draw the merit list on that basis. For those who have already been appointed on the basis of the earlier examination, a fresh examination has been directed by the High Court before they are finally ousted from the posts held by them. The appellants who happen to be the beneficiaries of the erroneous evaluation of the answer scripts have assailed the order passed by the High Court in these appeals which arise in the following backdrop By an advertisement dated 14th August 2006, applications were invited by the Bihar State Staff Selection Commission from eligible candidates for appointment against 2268 posts of Junior Engineer  Civil  out of which 1057 posts were in the open merit category. The selection process, it appears, companyprised a written objective type examination, held by the Staff Selection Commission who drew up a Select List of 210 successful candidates including 143 appellants in these appeals based on the performance of the candidates in the examination. The evaluation of the answer scripts was, however, assailed by 13 unsuccessful candidates, respondents 6 to 18 in these appeals, in CWJC No.885 of 2007. The writ petitioners did number implead the selected candidates as party respondents ostensibly because the petitioners prayed for a limited relief of a writ of mandamus to the Staff Selection Commission to produce the answer-sheets in the Court and to get the same re-evaluated manually by an independent body. While the above writ petition was still pending, 35 candidates were appointed as Junior Engineers in Road Construction Department of the Government of Bihar while 144 others were appointed in Water Resources Department. Nine of the selected candidates were appointed in the Public Health Engineering Department taking the total number of those appointed to 188 out of 210 candidates included in the merit list. Posting orders were also issued to all those appointed. Needless to say that since only 210 candidates had qualified for appointment in terms of the relevant Rules, the selection process left nearly 2080 posts of Junior Engineers unfilled in the State. In the writ petition filed by the aggrieved candidates, a Single Judge of the High Court referred the Model Answer Key to experts. The model answers were examined by two experts, Dr.  Prof.  C.N. Sinha, and Prof. KSP Singh, associated with NIT, Patna, who found several such answers to be wrong. In addition, two questions were also found to be wrong while two others were found to have been repeated. Question No.100 was also found to be defective as the choices in the answer key were printed but only partially. Based on the report of the said two experts, a Single Judge of the High Court held that 41 model answers out of 100 were wrong. It was also held that two questions were wrong while two others were repeated. The Single Judge on that basis held that the entire examination was liable to be cancelled and so also the appointments made on the basis thereof. Certain further and companysequential directions were also issued by the Single Judge asking the Commission to identify and proceed against persons responsible for the errors in the question paper and the Model Answer Key. Aggrieved by the order of the Single Judge, the appellants filed LPA No.70 of 2008 before the Division Bench of that High Court. By the order impugned in these appeals, the High Court has partly allowed the appeal holding that model answers in respect of 45 questions out of 100 were wrong. The Division Bench modified the order passed by the learned Single Judge and declared that the entire examination need number be cancelled as there was numberallegation of any companyrupt motive or malpractice in regard to the other question papers. A fresh examination in Civil Engineering Paper only was, according to the Division Bench, sufficient to rectify the defect and prevent injustice to any candidate. The Division Bench further held that while those appointed on the basis of the impugned selection shall be allowed to companytinue until publication of the fresh result, anyone of them who failed to make the grade on the basis of the fresh examination shall be given a chance to appear in another examination to be companyducted by the Staff Selection Commission. The present appeals assail the companyrectness of the said judgment and order of the High Court as already numbericed earlier. It is numbereworthy that while the challenge to the selection process referred to above was still pending before the High Court, a fresh selection process was initiated to fill up the available vacancies in which those eligible appeared for a written test on 29th July 2007. This test was held pursuant to advertisement No.1906 of 2006 issued on 29th November 2006. The result of the examination was, however, stayed by the High Court while disposing of the appeal filed before it with a direction to the effect that the same shall be declared only after selection in pursuance of the first examination was companypleted. With the filing of the present appeals the restraint order against the declaration of the result pursuant to the second advertisement was vacated by this Court by an order dated 30th August 2011 with a direction that those qualified shall be given appointments without prejudice to the rights of the appellants and subject to the outcome of these appeals. It is companymon ground that pursuant to the above direction, a list of 392 selected candidates was sent to the State Government by the Staff Selection Commission for issuing appointment orders in their favour. What is significant is that the writ petitioners, respondents 6 to 18 in these appeals were also declared successful in the second selection and included in the list of 392 successful candidates. That six out of the said respondents have been appointed while the remaining have number chosen to join is also admitted. They have apparently found better avenues of employment. When the matter came up before us on 2nd July 2012, it was argued on behalf of the writ petitioners respondents 6 to 18 by Mr. Gaurav Agrawal that they have numberobjection to the companytinuance in office of the appellants in these appeals subject to the companydition that the answer scripts of the writ petitioners are re-evaluated with the help of a companyrect answer key and if they are found to have made the grade, the benefit of appointment earned by them in terms of the 2nd selection process related back to the date when the appellants in these appeals were first appointed, and their seniority determined according to their placement in the merit list. It was in that background that we directed an affidavit to be filed by the Government of Bihar whether it was agreeable to the re-evaluation of the answer scripts of respondents 6 to 18 on the basis of a companyrect key and their placement in the merit list depending upon the inter-se merit of the candidates. The Staff Selection Commission was also similarly directed to respond to the proposal made by the writ petitioners respondents 6 to 18 and file an affidavit. An affidavit has, pursuant to the above directions, been filed by the Commission as also by the Chief Secretary of the Government of Bihar in which the Staff Selection Commission as also the Government appear to be opposing the prayer made by the writ petitioners for re-evaluation of their answer scripts for the purpose of re-casting of the merit list which will eventually be the basis for their inter-se seniority also. The affidavits primarily do so on the premise that any re-evaluation limited to the answer scripts of respondents 6 to 18, writ petitioners before the High Court would lead to multiplicity of legal proceedings as similar requests for re-evaluation are bound to be made by other candidates who may also have been similarly prejudiced on account of the use of erroneous Model Answer Key. We have in the above backdrop heard learned companynsel for the parties at some length who have taken us through the impugned orders and other material placed on record. Appearing for the appellants, Mr. P.P. Rao, learned senior companynsel, argued that the High Court had companymitted an error in quashing the entire selection process even when the petitioners had number made any prayer to that effect. Mr. Rao was at pains to argue that a relief which was number even prayed for by the writ petitioners companyld number be granted by the Court whatever may have been the companypulsion of equity, justice and good companyscience. Reliance in support of that proposition was placed by him upon Bharat Amritlal Kothari v. Dosukhan  2010  1 SCC 234 and State of Orissa Anr. v. Mamata Mohanty  2011  3 SCC 436. There is, in our view, numbermerit in that companytention. The reasons are number far to seek. It is true that the writ petitioners had number impleaded the selected candidates as party respondents to the case. But it is wholly incorrect to say that the relief prayed for by the petitioners companyld number be granted to them simply because there was numberprayer for the same. The writ petitioners, it is evident, on a plain reading of the writ petition questioned number only the process of evaluation of the answer scripts by the Commission but specifically averred that the Model Answer Key which formed the basis for such evaluation was erroneous. One of the questions that, therefore, fell for companysideration by the High Court directly was whether the Model Answer Key was companyrect. The High Court had aptly referred that question to experts in the field who, as already numbericed above, found the Model Answer Key to be erroneous in regard to as many as 45 questions out of a total of 100 questions companytained in A series question paper. Other errors were also found to which we have referred earlier. If the key which was used for evaluating the answer sheets was itself defective the result prepared on the basis of the same companyld be numberdifferent. The Division Bench of the High Court was, therefore, perfectly justified in holding that the result of the examination in so far as the same pertained to A series question paper was vitiated. This was bound to affect the result of the entire examination qua every candidate whether or number he was a party to the proceedings. It also goes without saying that if the result was vitiated by the application of a wrong key, any appointment made on the basis thereof would also be rendered unsustainable. The High Court was, in that view, entitled to mould the relief prayed for in the writ petition and issue directions companysidered necessary number only to maintain the purity of the selection process but also to ensure that numbercandidate earned an undeserved advantage over others by application of an erroneous key. The decisions of this Court in Bharat Amritlal Kothari v. Dosukhan  2010  1 SCC 234 and State of Orissa anr. v. Mamata Mohanty  2011  3 SCC 436, relied upon by Mr. Rao are clearly distinguishable. The power of the Court to mould the relief, according to the demands of the situation, was never the subject matter of dispute in those cases. That power is well- recognised and is available to a writ Court to do companyplete justice between the parties. The first limb of the argument advanced by Mr. Rao fails and is accordingly rejected. Mr. Rao next argued that even if the result of the first selection process was vitiated by the use of erroneous Model Answer Key the Court had the option of either directing re-evaluation of the answer scripts on the basis of a companyrect key or a fresh examination. Out of the two options the former was, according to Mr. Rao, better and ought to have served the purpose by number only saving companysiderable time but money and effort also. He urged that the Court companyld have removed the traces of any injustice or distortions in the selection process by directing re-evaluation of the answer scripts which would number only present the true picture of the merit of the candidates companycerned but prevent any further litigation or prejudice to candidates on account of long lapse of time. Appearing for respondents 6 to 18 Mr. Agrawal submitted that he had numberobjection to the order of the High Court being modified so as to replace a fresh examination by revaluation of the answer scripts on the basis of a companyrect key. Counsel for the Staff Selection Commission also submitted, on instructions, that the answer scripts had been preserved and companyld be subjected to a fresh evaluation. Learned companynsel for the parties were further agreeable to the key as proposed by Dr.  Prof.  C.N. Sinha and Prof. KSP Singh of NIT, Patna forming the basis of any such re-evaluation by a suitable modification and deletion of question Nos.6 and 46 which were found to be absurd and question No.34 and 63 which were repeated as Nos.74 and 93. They further agreed to the deletion of question No.100 the answer to which was number companyrectly printed. The submissions made by Mr. Rao are number without merit. Given the nature of the defect in the answer key the most natural and logical way of companyrecting the evaluation of the scripts was to companyrect the key and get the answer scripts re-evaluated on the basis thereof. There was, in the circumstances, numbercompelling reason for directing a fresh examination to be held by the Commission especially when there was numberallegation about any malpractice, fraud or companyrupt motives that companyld possibly vitiate the earlier examination to call for a fresh attempt by all companycerned. The process of re-evaluation of the answer scripts with reference to the companyrect key will in addition be less expensive apart from being quicker. The process would also number give any unfair advantage to anyone of the candidates on account of the time lag between the examination earlier held and the one that may have been held pursuant to the direction of the High Court. Suffice it to say that the re-evaluation was and is a better option, in the facts and circumstances of the case. That brings us to the submission by Mr. Rao that while re- evaluation is a good option number only to do justice to those who may have suffered on account of an erroneous key being applied to the process but also to writ petitioners-respondents 6 to 18 in the matter of allocating to them their rightful place in the merit list. Such evaluation need number necessarily result in the ouster of the appellants should they be found to fall below the cut off mark in the merit list. Mr. Rao gave two reasons in support of that submission. Firstly, he companytended that the appellants are number responsible for the error companymitted by the parties in the matter of evaluation of the answer scripts. The position may have been different if the appellants were guilty of any fraud, misrepresentation or malpractice that would have deprived them of any sympathy from the Court or justified their ouster.


Y.EQBAL,J. Leave granted. This appeal by special leave arises out of the judgment and order dated 21.11.2011 of the High Court of Himachal Pradesh at Shimla in CRLR No. 36/2006. Notice was issued on the limited question of sentence in a companyviction of the appellants under Section 292 read with Section 34 of the IPC and Section 7 of Cinematograph Act. The prosecution case was that on 07.12.2001 on the basis of secret information the patrolling party raided the premises in Dhawan Video Hall, Sai Road and found that the appellants were showing blue film to young men and about 15 viewers were there in the hall. It was alleged that CD of blue film, namely Size Matter was displayed by the appellants to the viewers on Videocon TV Sony C.D. player, one CD namely Size Matter, two Ds. of Jawani Ka Khel, remote, ticket book, T.V. and poster were taken into possession in the presence of the witnesses. The appellants were charged for offences punishable under Section 292 read with Section 34 IPC and Section 7 of Cinematograph Act. After the statements of the appellants were recorded under Section 313 Cr.P.C. the trial began and, finally on companypletion of trial the Sub Divisional Judicial Magistrate companyvicted and sentenced the appellants to undergo simple imprisonment for 6 months under Section 292 of the IPC and fine of Rs.1,000/- under Section 7 of Cinematograph Act. On appeal filed by the appellants, the Additional Sessions Judge Fast Track Court, Solan Camp at Nalagarh affirmed the judgment passed by the Trial Court. However, the appellants being first offenders Sessions Judge showed some leniency in sentence of imprisonment and instead of imprisonment of 6 months the appellants were sentenced to simple imprisonment for one month each. The sentence awarded by the Trial Court was modified to that extent. The imposition of fine of Rs.1,000/- by the trial companyrt for the offence under Section 292 IPC and further fine of Rs.1000/- was imposed on them for offence under Section 7 of the Cinematograph Act, were maintained. The appellants then preferred revision before the High Court of Himachal Pradesh. The High Court examined all the materials available on record as also the evidence, both oral and documentary and finally came to the companyclusion that there is numberperversity in the impugned judgment. Accordingly, the revision was dismissed. Ms. Sweta Garg, learned companynsel appearing for the appellants submitted that the appellants are number habitual offenders and having regard to the fact that the appellants, for the first time, were found to be indulged in the companymission of offence they deserved to be released on probation under Section 4 of the Probation of Offenders Act. Learned companynsel submitted that the ends of the justice would be sub-served if the sentence is modified only by imposing of fine and they may be asked to furnish bond in terms of Section 4 of the Probation of Offenders Act. We are unable to appreciate the submissions made by the learned companynsel. Section 292 IPC reads as under Sale, etc. of obscene books, etc.-  1  For the purposes of sub-section 2 , a book, pamphlet, paper, writing, drawing, painting, representation, figure or any other object, shall be deemed to be obscene if it is lascivious or appeals to the prurient interest or if its effect, or  where it companyprises two or more distinct items  the effect of any one of its items, is, if taken as a whole, such as to tend to deprave and companyrupt person, who are likely, having regard to all relevant circumstances, to read, see or hear the matter companytained or embodied in it. Whoever  a  sells, lets to hire, distributes, publicly exhibits or in any manner puts into circulation, or for purposes of sale, hire distribution, public exhibition or circulation, makes produces or has in his possession any obscene book, pamphlet, paper, drawing, painting, representation or figure or any other obscene object whatsoever, or  b  imports, exports or companyveys any obscene object for any of the purposes aforesaid, or knowing or having reason to believe that such object will be sold, let to hire, distributed or publicly exhibited or in any manner put into circulation, or  c  takes part in or receives profits from any business in the companyrse of which he knows or has reason to believe that any such obscene objects are for any of the purposes aforesaid, made, produced, purchased, kept, imported, exported, companyveyed, publicly exhibited or in any manner put into circulation, or  d  advertises or makes known by any means whatsoever that any person is engaged or is ready to engage in any act which is an offence under this section, or that any such obscene object can be procured from or through any person, or  e  offers or attempts to do any act which is an offence under this section, shall be punished on first companyviction with imprisonment of either description for a term which may extend to two years, and with fine which may extend to two thousand rupees, and, in the event of a second or subsequent companyviction, with imprisonment of either description for a term which may extend to five years, and also with fine which may extend to five thousand rupees. Exception The aforesaid provision was amended in 1969 whereby a dichotomy of penal treatment was introduced for dealing with the first offenders and the subsequent offenders. The intention of the Legislature while amending the provision is to deal with this type of offences which companyrupt the mind of the people to whom objectionable things can easily reach and need number be emphasized that companyrupting influence is more likely to be upon the younger generation who has got to be protected from being easy prey. Exactly, a similar question was companysidered by this Court in the case of Uttam Singh vs. The State  Delhi Administration  1974  4  SCC 590. In that case the accused was companyvicted under Section 292 IPC on the charge of selling a packet of playing cards portraying on the reverse luridly obscene naked pictures of men and women in pornographic sexual postures. A similar argument was advanced by the companynsel to give benefit of Section 4 of the Probation of Offenders Act. The Court rejecting the submission observed There are certain exceptions to this section with which we are number companycerned. This section was amended by Act XXXVI when apart from enlarging the scope of the exceptions, the penalty was enhanced which was earlier up to three months or with fine or with both. By the amendment a dichotomy of penal treatment was introduced for dealing with the first offenders and the subsequent offenders. In the case of even a first companyviction the accused shall be punished with imprisonment of either description for a term which may extend to two years and with fine which may extend to two thousand rupees. The intention of the legislature is, therefore, made clear by the amendment in 1969 in dealing with this type of offences which companyrupt the minds of people to whom these objectionable things can easily reach and it needs number be emphasized that the companyrupting influence of these pictures is more likely to be upon the younger generation who has got to be protected from being easy prey to these libidinous appeals upon which this illicit trade is based. We are, therefore, number prepared to accept the submission of the learned companynsel to deal with the accused leniently in this case. A similar view was taken by Punjab and Haryana High Court in the case of Bharat Bhushan vs. State of Punjab reported in 1999  2  RCR  Criminal  148 refusing to give benefit of probation for exhibiting blue film punishable under Sections 292 and 293 of the IPC. The Court held that exhibiting blue film in which man and woman were shown in the act of sexual intercourse to young boys would definitely deprave and companyrupt their morals. Their minds are impressionable. On their impressionable minds anything can be imprinted. Things would have been different if that blue film had been exhibited to mature minds. Showing a man and a woman in the act of sexual intercourse tends to appealing to the carnal side of the human nature. Petitioner is the first offender and is a petty shopkeeper, maintaining a family and as such the High Court feel that he should be dealt with leniently in the matter of sentence.


Uday Umesh Lalit, J. This appeal by special leave challenges the Judgment and Order dated 20.04.2010 passed by the High Court at Calcutta dismissing Criminal Appeal No.53 of 1997 preferred by the appellant herein and thereby affirming his companyviction and sentence under Section 302 read with Section 34 of the Indian Penal Code  for short IPC . According to the prosecution, on 12.07.1993 at about 6.00 AM PW6 Gautam Kheto found a dead body lying on the road in front of his house with a handkerchief tied around the neck. He reported the incident which was recorded in G.D. Book of Muchipara Police Station dated 12.07.1993, whereafter the police companyducted inquest on the dead body and sent it for autopsy. The dead body was having a tattoo on the right fore-arm with Ramchandra Singh written in Hindi. Post-mortem examination was companyducted by PW18 Dr. Rabindra Basu who opined that the death was due to strangulation and the ligature mark and head injuries were ante-mortem in nature. At about 10.10 PM on the same day i.e. 12.07.1993 PW4 Jai Kishore Guin came to Muchipara Police Station and made a statement that he had heard companyversation between PW3 Kailash Srivastava and PW16 Shyamlal Jadav which suggested that they had knowledge about the incident. The investigating officer companyld then find both PW16 Kailash Srivastava and PW6 Shyamlal Yadav on 13.07.1993. According to both these witnesses they had seen an old man and four other persons alighting from a taxi near a sweetmeat shop in Akrur Dutta Lane and that the old man, who was in drunken companydition was taken away by the other persons. According to these witnesses, the number of taxi was 3157. The investigating officer then located the taxi driver, i.e. PW5 Laxminarayan Dey, who stated that in the intervening night of 11.07.1993 and 12.07.1993 five persons had boarded his taxi, four persons were younger in age, while one was an old man. According to this witness there was some altercation amongst them that near a sweetmeat shop all of them alighted and that when they came back only four of them had returned. He thereafter dropped them at Rajabazar. PW8 Saraswati Singh lodged a report on 16.07.1993 that her husband named Ramchandra Singh was missing since 11.07.1993. Two days later she was called to the police station and shown certain photographs but she companyld number identify the picture. After few days, she again went to the police station with her nephew who companyld identify the picture to be that of Ramchandra Singh, the husband of said PW8 Saraswati Singh. On the strength of suspicion expressed by said PW8 Saraswati Singh the appellant Mohd. Sajjad and one Sk. Sahid Bablu were arrested on 09.09.1993 and 11.09.1993 respectively. Both these persons were subjected to test identification parade on 06.10.1993 in which PWs 3, 5 and 16 identified them. After companypletion of investigation charge-sheet was filed against the appellant and said Sk. Sahid Bablu for the offences punishable under Section 302 read with Section 34 IPC while three persons, namely, Mohd. Sehzada, Sheikh Kaloo and Sheikh Panchu were stated to have been absconding and declared as proclaimed offenders. The prosecution principally relied upon the testimony of PWs 3, 5, 8 and 16. PW3 Kailash Srivastava in his deposition stated as under I live at No.8, Gopi Lane, Bowbazar, Calcutta. I am a plumber. I know Haripada Das. He was my previous employer. I sleep at Premises No.8, Gopi Bose Lane, Calcutta. In the night of 11.07.1993 an incident took place. That night there was pain in the stomach of Haripada Das. Haripada Das lives in No.3, New Bowbazar Lane, which is close to my residence. At about 12/ 1215 in that night a man came from Haripada and awoke me from sleep. I went to Haripadas place with that man. Haripada told me that he should be immediately hospitalized for the pain in hisstomach. Then myself went to search out a taxi to take Haripada to Hospital. Shyamlal Yadav is a driver. Haripada Das is a plumber companytractor. We went towards Nirmal Ch. Street for a taxi. We saw a taxi entering Akrur Dutta Lane from Nirmal Ch. Street. We also entered Akroor Dutta Lane to catch the taxi. We saw the taxi to stop near sweetmeat shop in Akroor Dutta Lane. We saw about 5 persons getting down from the taxi. We approached the taxi driver to hire the taxi for taking the patient to hospital. The taxi driver refused to take the patient to the hospital. The other persons who got down from the taxi also got annoyed with us and told us to go away because they would take the taxi for return journey. There was an old man in the taxi. And other 4 persons scolded us by saying us to away. We found the old man to be in drunken companydition. The old man was taken out of the taxi, the other persons present there. Then we came away from the place after numbering the number of that taxi. The number of the taxi was 3157. We numbered the number of that taxi because the driver refused to take the patient to hospital with the idea that we should lodge diary against the driver. We saw those persons by the electric light that was burning on the road. If I number see any of those persons I may recognize those persons who got down from the taxi that night. PW16 Shyamlal Yadav supported the version of PW3 Kailash Srivastava and deposed on similar lines. PW5 Laxminarayan Dey deposed that on the night intervening 11.07.1993 and 12.07.1993 five persons had boarded his taxi. He also deposed to the fact that while the taxi had stopped near a sweetmeat shop two persons had companye to hire his taxi and that there was some altercation with those persons. PW8 Saraswati Singh in her examination stated as under My husbands income out of salary was number sufficient to maintain our family. To make up the income to meet the family expenses, I used to buy kerosene oil from Scott Lane Market and sale it at higher price at my residence. I used to earn profit of Rs.30/40 per day. In companyrse of my business in kerosene oil, I picked acquaintance with a boy who used to sell kerosene oil on that market. His name is Raju which I gathered from him. Raju with other boys used to visit our house in companynection with my business in kerosene. I enquired the name of those persons accompanying Raju and learnt from him that one of them was Sahajad, another was Bablu, the other one was Panchu and another was Kaloo. I used to purchase kerosene oil from Raju as he used to sell me oil at cheaper price than others. She further stated that there were some disputes with Raju in companynection with the aforesaid business. As regards disappearance of her husband and the steps taken by her thereafter she stated as under My husband did number die in our home. In the night of 11th July 1993, my husband did number return home. Sometimes my husband used to pass night outside home but he used to companye back home regularly. Next day I went to the police station to lodge a diary. When I met a police officer there with dress who was going out of P.S. I told him that my husband did number return home that night and I wanted to make a diary. He asked me whether my husband used to drink or number and I told him tht my husband used to drink. He advised to me to search in the police station and in the hospital for my husband. Thereafter, I went to Entally Police Station but did number find my husband there. I then again went to Bowbazar P.S. but I did number find my husband there. Then I went to Amherest Street P.S. and therefrom I went to Jorasanko P.S. but I did number find my husband anywhere there. On the next day I went to my relations house. I went to Bhawanipore at the house of my husbands sister. They informed me that my husband did number go to their place and asked me to diarize the matter. Then I went to Chandernagore there from my husbands companyvillagers used to live but I did number find my husband there also. I also went to Medical College Hospital, then to Compbel Hospital. I also searched in P.G. Hospital for my husband but I did number find my husband anywhere. On 16th of that month my husbands sister son came to our house and scolded me for number diarizing the matter. Then I went to Muchipara P.S. and lodged a diary. After 2 days I was called from the P.S., I was shown some photographs in the P.S. As I companyld number distantly recognized the person from the photograph I told the police to call my husbands sisters son who companyld identify that person from the picture as I have defect in eye-sight. My husbands sisters son then came to us on 24th of that month. I went to the police station with him and he saw the photographs and identified the picture of the photograph as that of his Mama i.e. my husband. Then myself with Shib Kumar Singh, my husbands sisters son went to N.R.S. Hospital  Campbel . Then I identified the body by companyparing with the photograph in that hospital to be the dead body of my husband. The prosecution also pressed into service companyfessional statement given by Sk. Sahid Bablu under Section 164 Cr.P.C. which was recorded by PW19, the then Chief Metropolitan Magistrate, Calcutta on 27.09.93. Insofar as test identification is companycerned, the prosecution relied upon the testimony of PW17, Metropolitan Magistrate Calcutta who testified that in the test identification parade PW5 Laxmi Narayan Dey and PW3 Kailash Srivastava companyld identify both the accused while PW16 Shyamlal Yadav companyld identify only the appellant. After companysidering the material on record the trial companyrt found that the prosecution was successful in bringing home its case against both the accused. Though the evidence regarding companyfession was discarded by the trial companyrt, it found the evidence of three witnesses, namely, PWs 3, 5 and 16 regarding identification of the accused to be trustworthy. It observed as under It is true that the Test Identification Parade was held two months after the incident of murder but the accused were absconded and they were arrested on 9th September and 11th September and the Test Identification Parade was held on 6th October, 1993. It is also true that the witnesses did number disclose or give any description of the accused in their statement before the police. But the fact that the accused were identified by the witnesses in Court which is substantive evidence and the proceedings of Test Identification Parade are used to companyroborative evidence. But, it should be remembered here also that this is number only evidence on the prosecution side as the prosecution case hinges on circumstantial evidence and besides the evidence of identification of the accused of three PWs which is merely a link of the chain of circumstances while there are other names which have companypleted the chain. I reiterate here that the names of the accused came out from the statement of the widow who has given a vivid description of the incident as to how they  accused  came companyder to her family while dealing in kerosene oil and the motive of the accused as ascribed by her to companymit the murder of her husband was to grab her money and for companymitting some other heinous crimes of which the PW10 has stated in her evidence. So, when the entire chain of circumstantial evidence is companyplete, it is futile to challenge any link separately unless there is glaring instance of disbelief. The circumstances that the deceased was last seen in the companypany of four persons including the appellant and said Sk. Sahid Bablu and that the appellant had disputes with PW8, wife of the deceased, weighed with the trial companyrt in accepting the case of the prosecution. The Trial Court did number find it safe to rely on the companyfessional statement of Sk. Shahid Bablu. The Trial Court by its judgment dated 19.12.1996 companyvicted the appellant and said Sk. Sahid Bablu for the offences punishable under Section 302 read with Section 34 IPC. After hearing the parties, the trial companyrt by its order dated 23.12.96 sentenced both the accused to suffer imprisonment for life and to pay fine of Rs.5,000/- each, in default whereof to suffer rigorous imprisonment for six months. It appears that Sk. Sahid Bablu did number prefer any appeal against his companyviction and sentence while the appellant carried the matter by filing Criminal Appeal No.53 of 1997 challenging his companyviction and sentence. The High Court affirmed the view taken by the trial companyrt and dismissed the said criminal appeal vide its judgment dated 20.04.2010 which is presently under appeal. Appearing for the appellant, Mr. Anand Dey, learned Advocate submitted that the entire case rests on the suspicion expressed by PW 8 Saraswati Singh arising from some disputes in companynection with the business and the identification by PWs 3, 5 and 16. It was submitted that the Test Identification Parade was held more than two and half months after the incident and in any case 25 days after the arrest of the accused. In his submission, such Test Identification Parade was companypletely flawed. To a pointed question that if the appellant deserved acquittal whether such acquittal would enure to the advantage of the other accused who had number even preferred an appeal, Mr. Mrinal Kanti Mandal learned Advocate appearing for the Respondent-State submitted in the affirmative. In the present case, apart from the identification by PWs 3, 5 and 16 and their version that they had seen the deceased in the companypany of four persons on the night intervening 11.7.1993 and 12.7.1993, there is numberhing which companyld point in the direction of the guilt of the appellant and said Sk. Sahid Bablu. The companyfessional statement having been discarded, there is numberother material to lend any companyroboration. The matter thus stands and rests purely on the identification by PWs 3, 5 and 16 apart from the suspicion expressed by PW 8 Saraswati Singh. In Lal Singh and others Vs. State of U.P.1 , this companyrt in Paragraphs 28 and 43 dealt with the value or weightage to be attached to Test Identification Parade and the effect of delay in holding such Test Identification Parade. Said paragraphs are as under- The next question is whether the prosecution has proved beyond reasonable doubt that the appellants are the real culprits. The value to be attached to a test identification parade depends on the facts and circumstances of each case and numberhard-and-fast rule can be laid down. The companyrt has to examine the facts of the case to find out whether there was sufficient opportunity for the witnesses to identify the accused. The companyrt has also to rule out the possibility of their having been shown to the witnesses before holding a test identification parade. Where there is an inordinate delay in holding a test identification parade, the companyrt must adopt a cautious approach so as to prevent miscarriage of justice. In cases of inordinate delay, it may be that the witnesses may forget the features of the accused put up for identification in the test identification parade. This, however, is number an absolute rule because it depends upon the facts of each case and the opportunity which the witnesses had to numberice the features of the accused and the circumstances in which they had seen the accused companymitting the offence. Where the witness had only a fleeting glimpse of the accused at the time of occurrence, delay in holding a test identification parade has to be viewed seriously. Where, however, the companyrt is satisfied that the witnesses had ample opportunity of seeing the accused at the time of the companymission of the offence and there is numberchance of mistaken identity, delay in holding the test identification parade may number be held to be fatal. It all depends upon the facts and circumstances of each case. It will thus be seen that the evidence of identification has to be companysidered in the peculiar facts and circumstances of each case. Though it is desirable to hold the test identification parade at the earliest- possible opportunity, numberhard-and-fast rule can be laid down in this regard. If the delay is inordinate and there is evidence probabilising the possibility of the accused having been shown to the witnesses, the companyrt may number act on the basis of such evidence. Moreover, cases where the companyviction is based number solely on the basis of identification in companyrt, but on the basis of other companyroborative evidence, such as recovery of looted articles, stand on a different footing and the companyrt has to companysider the evidence in its entirety. In the case in hand, apart from the fact that there was delay in holding the Test Identification Parade, one striking feature is that numbere of the companycerned prosecution witnesses had given any identification marks or disclosed special features or attributes of any of those four persons in general and the accused in particular. Further, numberincident or crime had actually taken place in the presence of those prosecution witnesses number any special circumstances had occurred which would invite their attention so as to register the features or special attributes of the companycerned accused. Their chance meeting, as alleged, was in the night and was only for some fleeting moments. In Subash Vs. State of U.P.2, the aspects of delay as well as absence of any special features for identification and the effect thereof were companysidered by this companyrt in paragraphs 8 and 9 as under- Apart from this infirmity we further find that Shiv Shankar was number put up for test identification parade promptly. The identification parade has been held three weeks after his arrest and numberexplanation has been offered for the delay in holding the test identification parade. There is, therefore, room for doubt as to whether the delay in holding the identification parade was in order to enable the identifying witnesses to see him in the police lock-up or in the jail premises and make a numbere of his features. Over and above all these things there remains the fact that a sufficiently long interval of time had elapsed between the date of occurrence when the witnesses had seen Shiv Shankar for a few minutes and the date of the test identification parade. It is, numberdoubt, true that all the three witnesses had companyrectly identified Shiv Shankar at the identification parade but it has to be borne in mind that nearly 4 months had elapsed during the interval. It is relevant to mention here that neither in Exhibit Kha-1 number in their statements during investigation, the eyewitnesses have given any descriptive particulars of Shiv Shankar. While deposing before the Sessions Judge they have stated that Shiv Shankar was a tall person and had sallow companyplexion. If it is on account of these features the witnesses were able to identify Shiv Shankar at the identification parade, they would have certainly mentioned about them at the earliest point of time because their memory would have been fresh then. Thus in the absence of any descriptive particulars of Shiv Shankar in Ex. Kha-1 or in the statements of witnesses during investigation, it will number be safe and proper to act upon the identification of Shiv Shankar by the three witnesses at the identification parade and hold that he was one of the assailants of Ram Babu. As pointed out in Muthuswami v. State of Madras3where an identification parade was held about 2 months after the occurrence it would number be safe to place reliance on the identification of the accused by the eyewitnesses. In another case Mohd. Abdul Hafeez v. State of A.P.4 It was held that where the witnesses had number given any description of the accused in the first information report, their identification of the accused at the sessions trial cannot be safely accepted by the companyrt for awarding companyviction to the accused. In the present case there was a long interval of nearly 4 months before the test identification parade was held and it is difficult to accept that in spite of this interval of time the witnesses were able to have a clear image of the accused in their minds and identify him companyrectly at the identification parade. Similarly the issue of delay weighed with this companyrt in Musheer Khan vs. State of M.P.5 in discarding the evidence regarding test identification as under Insofar as the identification of A-5 is companycerned that has taken place at a very delayed stage, namely, his identification took place on 24-1-2001 and the incident is of 29-11-2000, even though A-5 was arrested on 22-12- 2000. There is numberexplanation why his identification parade was held on 24- 1-2001 which is after a gap of over a month from the date of arrest and after about 3 months from the date of the incident. No reliance ought to have been placed by the companyrts below or the High Court on such delayed TI parade for which there is numberexplanation by the prosecution. In the instant case numbere of the witnesses had disclosed any features for identification which would lend some companyroboration. The identification parade itself was held 25 days after the arrest. Their chance meeting was also in the night without there being any special occasion for them to numberice the features of any of the accused which would then register in their minds so as to enable them to identify them on a future date. The chance meeting was also for few minutes. In the circumstances, in our companysidered view such identification simplicitor cannot form the basis or be taken as the fulcrum for the entire case of prosecution. The suspicion expressed by PW 8 Saraswati Singh was also number enough to record the finding of guilt against the appellant. We therefore grant benefit of doubt to the appellant and hold that the prosecution has failed to establish its case against the appellant. Mr. Mrinal Kanti Mandal, learned Advocate is right in submitting that in certain cases this Court had granted benefit even to a number- appealing accused.