"Possession of the Note Determines Standing to Foreclose"
We are compelled to point out that possession of the note determines standing to foreclose. See Taylor v. Bayview Loan Servicing, LLC, 74 So. 3d 1115, 1117 (Fla. 2d DCA 2011). The holder of the original note endorsed in blank has standing. Id. "[A] mortgage is but an incident to the debt, the payment of which it secures, and its ownership follows the assignment of the debt. If the note or other debt secured by a mortgage be transferred without any formal assignment of the mortgage, or even a delivery of it, the mortgage in equity passes as an incident to the debt . . . ." WM Specialty Mortg., LLC v. Salomon, 874 So. 2d 680, 682 (Fla. 4th DCA 2004)(quoting Johns v. Gillian, 184 So. 140, 143 (Fla. 1938)). More fundamentally, however,"[e]ven if [the plaintiff] lacked standing when it filed suit, the final judgment is merely voidable, not void." Dage v. Deutsche Bank Nat'l Trust Co., 95 So. 3d 1021, 1024 (Fla. 2d DCA 2012) (citing Phadael v. Deutsche Bank Trust Co. Americas, 83 So. 3d 893, 895 (Fla. 4th DCA 2012)).
As a result, the trial court's order was reversed.
In 2010, the Commissioner issued four summonses to third-party financial institutions to determine whether the Tribe had complied with its federal withholding requirements during the period from 2006 to 2009. The Tribe petitioned to quash the summonses on the grounds of sovereign immunity, improper purpose, relevance, bad faith, and overbreadth. The district court denied those petitions. Because we conclude that tribal sovereign immunity does not bar the issuance of these third-party summonses, the district court did not clearly err when it found that the summonses were issued for a proper purpose, and the Tribe lacks standing to challenge the summonses for overbreadth, we affirm.
"Indian tribes are required by law to deduct and withhold income taxes from gambling revenues paid to Indian tribe members. 26 U.S.C. § 3402(r)(1). Indian tribes are also subject to backup withholding, id. § 3406(a), and reporting requirements, id. § 6041(a). In 2005, the Commissioner of the Internal Revenue Service began to investigate the Miccosukee Tribe to determine whether the Tribe had complied with its reporting and withholding requirements."
The claim to tribal sovereign immunity here fails for two reasons. First, the summonses are not suits against the Tribe. Second, tribal sovereign immunity cannot bar a suit by the United States.
Are property owners who have recovered final judgments against the State of Florida in inverse condemnation proceedings constitutionally entitled to invoke the remedies provided in section 74.091, Florida Statutes, without first petitioning the Legislature to appropriate such funds pursuant to section 11.066, Florida Statutes?
The court's opinion in the case, released on July 25, 2012, can be viewed HERE. In the July 25th opinion, the court held: "We reverse that portion of the Palm Beach County order allowing execution against the Department and remand to the circuit courts for further proceedings consistent with this opinion. We also reverse that portion of the Broward County order holding that section 11.066(3) was constitutional as applied, because the issue was not yet ripe."
Soleil Builders filed a Motion for Summary Final Judgment. Several months later, the parties convened for the hearing on the Motion, which resulted in a Partial Summary Final Judgment in favor of Soleil Builders for the total amount it sought. This judgment is the first reference to Soleil Builders’ motion as having sought only a partial summary judgment: the court reserved jurisdiction to determine pre-judgment interest and attorney’s fees and “all issues that remain pending before the Court, including deciding the issues raised in the counterclaim filed by the SANCHEZES.” Sanchez subsequently filed for rehearing of the Partial Summary Final Judgment, contending, among other things, that her affirmative defenses had not been considered at the hearing; Sanchez wanted her defenses heard and the counterclaims considered. Sanchez argued that since Soleil Builders had failed to refute her affirmative defenses or address the counterclaims, summary judgment was improper. Shortly thereafter, Soleil Builders filed its Motion for Summary Final Judgment on Sanchez’s counterclaims.
The problem in entering the Partial Summary Final Judgment and leaving for another day the issues raised in the affirmative defenses and counterclaims was made all the more apparent when Soleil Builders used the entry of the Partial Summary Final Judgment to successfully argue at the subsequent hearing that the affirmative defenses and counterclaims had already been decided adversely to Sanchez. In short, the case below was a muddle and reversal is required because of the error that occurred when the trial court entered the two summary judgments without properly addressing the issues raised by the affirmative defenses and counterclaims filed by Sanchez. Accordingly, the judgments under review are reversed and this case is remanded for further proceedings.
In Slominski v. Citizens Property Insurance Corporation (4D10-4372), the Fourth District affirmed the circuit court's summary judgment in favor of the appellee. The appellant's filed a lawsuit claiming their property was damaged by Hurricane Wilma on October 24, 2005. Three and a half years after the hurricane, the appellant's filed their claim with Citizens.
the contractor concluded that the wind damage would not have occurred “without hurricane-force winds,” but admitted that he could not be “100% sure” that the wind damage was caused by Hurricane Wilma, as opposed to Hurricane Frances in 2004. On the other hand, he testified that the direction from which the respective storms hit varied, which formed the basis for his opinion. He admitted that, with regard to water damage, there was “no way to differentiate” one storm from another. However, in his affidavit, the contractor stated: “Based on my expertise and personal knowledge of the Slominski home, I am able to determine that the damages as alleged in the lawsuit against Citizens occurred to the property as a result of Hurricane Wilma."
Additionally, "in deposition testimony, the engineer admitted that he was unable to determine exactly when the interior staining or roof damage occurred, but opined only that it was caused by a hurricane."
The Fourth District stated: "In delayed notice cases, “while prejudice to the insurer is presumed, if the insured can demonstrate that the insurer has not been prejudiced thereby, then the insurer will not be relieved of liability merely by a showing that notice was not given ‘as soon as practicable.’” (citations omitted). In this case, the only evidence submitted to rebut the prejudice to the insurer was the affidavit submitted by the contractor and the affidavit submitted by the engineer. However, in both cases, the affidavits conflicted with deposition testimony by the same person stating they could not determine when the damage to the property occurred Therefore, the insurer was prejudiced and the judgment was affirmed.
In Tennant v. West Virginia Secretary of State, a unanimous Supreme Court reversed a three judge district court's decision that agreed with the plaintiff's "claim that West Virginia’s 2011 congressional redistricting plan violates the “one person, one vote” principle that we have held to be embodied in Article I, §2, of the United States Constitution."
Deutsche Bank argues that Mr. Raza failed to prove a reasonable fee under Florida Patient's Compensation Fund v. Rowe, 472 So. 2d 1145 (Fla. 1985). Principally, it argues that the record contains no information regarding the number of hours spent by Mr. Raza's counsel and the amount of work performed. Mr. Raza responds that the flat fee satisfies any evidentiary burden. We cannot agree.
Emphasis supplied. The court later stated that "We do not hold that the absence of time records is fatal to an effort to recover fees under a flat fee arrangement." The flat fee may be sufficient when "combined with expert testimony...if it accounts for all matters addressed in Florida Patient's Compensation Fund." In this case, the fee expert's affidavit "was facially inadequate" Finally, "Even if Mr. Raza did present sufficient evidence, the amount of fees remains in the trial court's discretion"
In Swan Landing Development LLC v. First Tennessee Bank National Association (2D11-3410), the Second District reviewed the trial court's imposition of sanctions against the Appellant and its attorneys. Ultimately, the sanctions order was reversed because the organization had a colorable claim and basis to file a motion seeking relief they sought.
We are compelled to conclude based on the facts of this case that the trial court abused its discretion in awarding fees under section 57.105. Rule 1.540(b) permits a trial court to relieve a party from a final judgment based, in part, on "newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial or rehearing, . . . fraud . . . , misrepresentation, or other misconduct of an adverse party . . . ." Here, the Bank's audit inquiry letter, which was sent after entry of the final judgment of foreclosure, facially contradicted the Bank's position at trial that the parties had agreed to a concession. And because Swan Landing's efforts seeking an explanation of this contradiction proved unsuccessful, we conclude it was reasonable under these circumstances for Swan Landing and its attorneys to pursue the 1.540(b) motion.
THIS published opinion released by the Eleventh Circuit last week had a Da Vinci Code feel to it.
The Plaintiff/Appellant was a religious order of the Roman Catholic Church. The Defendant/Appellee was "The Florida Priory of the Knights Hospitallers of the Sovereign Order of Saint John of Jerusalem, Knights of Malta, The Ecumenical Order (The Florida Priory) is also a charitable organization, having an expressly ecumenical, rather than Catholic, association." The two organizations have similar roots that the opinion discusses in some detail. The dispute related to allegedly confusingly similar marks used by both organizations.
The district court cancelled four of the Plaintiff's marks for fraud on the Patent and Trademark Office. The district court found the only remaining service mark visually dismissal to the defendants mark and rejected the Lanham Act claims for that remaining mark. Finding no likelihood of confusion, the district court also denied the Plaintiff's state law claims.
The Eleventh Circuit noted that "The district court explained that Pace was personally unaware of the existence of The Ecumenical Order at the time he signed the applications and the accompanying oath." The Eleventh Circuit discussed its prior law on the issue and held that "Pace had no awareness that any other organization was using the marks for which Plaintiff Order sought federal protection. This fact alone compels reversal of the fraud finding, as Pace could not have intended to deceive the PTO in attesting to an oath that he believed was entirely accurate."
The Eleventh Circuit also rejected the District Court's basis to support its finding of fraud. "To support its finding of fraud, the district court analogized to the Supreme Court’s recent decision in Global-Tech Appliances, Inc. v. SEB S.A., 563 U.S. ___, 131 S. Ct. 2060 (2011). Global-Tech considered whether knowledge of infringement was required to sustain a claim that a party actively induced infringement of a patent under 35 U.S.C. § 271(b). Id. at 2063." …. "It was error to look to this case for the applicable standard to analyze a claim for fraud on the PTO. We have been admonished to exercise caution before importing standards from one area of intellectual-property law into another….The Florida Priory has not pointed to any authority to establish the sort of 'historic kinship' that may justify translation of a patent-infringement standard into the mark-application context."
For its final note on the fraud claim, the Eleventh Circuit stated "[t]here is one additional aspect of the fraud analysis that the district court did not address. If the declarant subjectively believes the applicant has a superior right to use the mark, there is no fraud, even if the declarant was mistaken."
"The Lanham Act prohibits the unauthorized use of a mark in commerce that is confusingly similar to a registered service mark. 15 U.S.C. § 1114(1)(a). To prevail on a civil infringement claim brought under 15 U.S.C. § 1125, a plaintiff must establish that (1) its mark is entitled to protection and (2) the defendant 'adopted an identical or similar mark such that consumers were likely to confuse the two.' Int’l Stamp Art, Inc. v. United States Postal Serv., 456 F.3d 1270, 1274 (11th Cir. 2006) (per curiam)."
After describing the test it applies, the court held: "Here, because the district court did not make any additional factual findings to aid us in evaluating whether it committed clear error, we have an “insufficient basis” to evaluate its ultimate conclusion. Id. As a result, we remand the infringement claim so the district court may conduct the proper, multi-factor infringement analysis for the design marks. The district court should also conduct this analysis for Plaintiff Order’s word marks, which were improperly canceled for fraud."
"Under the Lanham Act, an entity that misrepresents the 'nature, characteristics, qualities, or geographic origin' of its services in commercial advertising or promotion is liable to the persons damaged by the false or misleading representation. 15 U.S.C. § 1125(a)(1)." ... "The district court essentially agreed with the version of history as presented by The Florida Priory and, specifically, by Papanicolaou. On appeal, Plaintiff Order argues that its witnesses, rather than those of The Florida Priory, accurately recited the relevant history. It attributes error to the district court’s reliance on the testimony of Papanicolaou—who did not hold himself out to be an expert in history—over the testimonies of Gamble and Dr. Vann—only one of whom was qualified as an expert in the history of the Order of Malta. We conclude that the district court did not clearly err in its factual findings and therefore affirm its disposition of the false advertising claim."
"The success of Plaintiff Order’s state unfair competition and FDUTPA claims is tied to the federal Lanham Act claims for infringement and false advertising. See Natural Answers, Inc. v. Smithkline Beecham Corp., 529 F.3d 1325, 1333 (11th Cir. 2008). Because we vacate the ruling on the infringement claim as related to the design mark and remand for reconsideration utilizing the multifactor test, we likewise vacate the district court’s conclusions with regard to the analogous state claims.
Next, because we reverse the district court’s cancellation of the registered word marks, we also vacate the portion of the district court’s order disposing of the state claims based on these word marks so it has the opportunity to revisit them based on a complete analysis under the correct standard."
The Village concedes that Harvard, as the representative of her son, qualifies as a "victim." However, the Village emphasizes that although section 985.04(3) permits the release of a juvenile offense report to a victim, such a release is discretionary, not mandatory. In support of its argument, the Village emphasizes the presence of the word "may" in the statute.
First, we address whether the Village was required to produce the requested juvenile offense report to Harvard under section 985.04(3). Our analysis begins by applying accepted rules of statutory construction. "Legislative intent is the polestar that guides a court?s statutory construction analysis." Bautista v. State, 863 So. 2d 1180, 1185 (Fla. 2003). In attempting to discern legislative intent, we first look to the actual language used in the statute. Joshua v. City of Gainesville, 768 So. 2d 432, 435 (Fla. 2000). If the statute is clear and unambiguous, we will not look behind its plain language for legislative intent or resort to rules of statutory construction to ascertain intent. See Lee County Elec. Coop., Inc. v. Jacobs, 820 So. 2d 297, 303 (Fla. 2002). In such an instance, “the statute’s plain and ordinary meaning must control, unless this leads to an unreasonable result or a result clearly contrary to legislative intent.” State v. Burris, 875 So. 2d 408, 410 (Fla. 2004). Here, the issue is whether the term “may” as used in section 985.04(3) is permissive or mandatory. We hold that the plain language of section 985.04(3) is unambiguous, and thus interpret the word “may” as a permissive term. Noel v. Sheldon J. Schlesinger, P.A., 984 So. 2d 1265, 1267 (Fla. 4th DCA 2008) (“The word ‘may’ denotes a permissive term rather than the mandatory connotation of the word ‘shall.’”) (citations and quotations omitted). Accordingly, we affirm the trial court’s ruling that the Village was not required to produce the requested juvenile offense report to Harvard.
The court also rejected the mother's attempt to obtain a copy of the video interview of her son. The public records request fell into an exemption.
Because we find there were genuine issues of material fact as to whether Haim was a resident spouse on the date of loss, and because the Assignment did not relieve Alexandra of her post-loss obligations as a named insured under the policy, we reverse.


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1. Lands "in place" granted to a state for the support of schools and subsequently included within a reservation by the United States are exchangeable for unappropriated, nonmineral public lands of equal acreage outside the reservation under the Act of February 28, 1891, c. 384, 2 Stat. 796, amending §§ 2276, 2276, Rev.Stats. P. 255 U. S. 493.
2. Although, under other general provision (Rev.Stats. §§ 441, 453, 2478), the lieu lands are selected by the state under the direction of the Secretary of the Interior, this implies no discretion in him or in the Land Department to refuse approval of selections duly made, their function here being purely the judicial one of determining whether selections, with accompanying surrenders of base land, complied with the act of Congress and the Secretary's directions under the conditions existing at the time when the selections were made and completed. P. 255 U. S. 496.
3. When such a selection, with accompanying waiver or surrender, has been duly made and completed in full conformity with the act and the directions of the Secretary, the equitable title to the tract selected passes to the state, the United States acquiring a like title to the base land, and the rights of the state cannot be affected by a subsequent attempt by the executive to reserve the tract selected or a subsequent discovery that it contains mineral. P. 255 U. S. 497. Wisconsin Central R. Co. v. Price County, 133 U. S. 496, and Cosmos Exploration Co. v. Gray Eagle Oil Co., 190 U. S. 301, explained.
4. It is a general rule that the question of the mineral or nonmineral character of land selected or entered shall be determined as of the time when the selector or entryman fully complied with all conditions precedent resting upon him. P. 255 U. S. 500.
5. The exception to this rule found in the case of lands claimed under railroad aid grants, where the question of mineral character remains open until patent issues, is based upon the peculiar terms and subject matter of the granting acts, their long administrative interpretation, and their restrictive construction in favor of the government. P. 255 U. S. 507.
6. Legislation of Congress designed to aid the common school should be construed liberally, rather than restrictively. P. 255 U. S. 508.
7. The Act of June 25, 1910, c. 421, 36 Stat. 847, did not, and constitutionally could not, authorize executive withdrawal of land equitably vested in a state under a lieu election. P. 255 U. S. 509.
This is a suit by the United States to establish title in it to eighty acres of land and to the proceeds of oil taken therefrom. The district court rendered as decree dismissing the bill on the merits, which the circuit court of appeals reversed (United States v. Ridgely, 262 F. 675), and the defendants bring the case here.
One of the defendants, the State of Wyoming, * claims under a lieu selection, made in 1912, and the other defendants under a lease from the state made in 1916. It is against the selection and the lease that the United States seeks to establish title.
place after passing under the school grant should be included within a public reservation, to waive its right thereto and select in lieu thereof other lands of equal acreage from unappropriated nonmineral public lands outside the reservation and within the state. See California v. Deseret Water, etc., Co., 243 U. S. 415; Payne v. New Mexico, ante, 255 U. S. 367. Other laws of general application, §§ 441, 453, 2478, Rev.Stats., required that the selections be made under the direction of the Secretary of the Interior.
"the state did everything necessary to show a perfect title to the land relinquished and perfect relinquishment thereof to the government, and everything that was required either by statute or regulation of the Land Department"
in selecting the lieu land instead of the relinquished tract.
regular course, the local officers transmitted the list and other papers to the General Land Office with a certificate stating that no adverse filing, entry, or claim to the selected land was shown by the records in their office, and that the filing of the list was allowed and approved by them. The list remained in the General Land Office awaiting consideration by the Commissioner for upwards of three years. In the meantime, on May 6, 1914, two years after the selection, the selected land, with other lands aggregating more than 88,000 acres, was included in a temporary executive withdrawal as possible oil land under the Act of June 25, 1910, c. 421, 36 Stat. 847. On April 29, 1915, the Commissioner, coming to consider the selection, declined to approve it as made and called on the state either to accept a limited surface right certification of the selected land or to show that it still was not known or believed to be mineral. The state declined to accede to either alternative, and insisted that its rights should be determined as of the time when the waiver and selection were made, and that, applying that test, it became invested with the equitable title to the selected land two years prior to the temporary withdrawal, and at a time when that land plainly was neither known nor believed to be mineral. The Commissioner thereupon ordered the selection cancelled -- not because it was in any respect objectionable when made, but on the theory that he was justified in rejecting it by reason of the subsequent withdrawal and subsequent oil discoveries in that vicinity. The state appealed to the Secretary of the Interior, and, on October 25, 1916, he affirmed the Commissioner's action.
to the time the lease was given, but, thereafter, the oil company began drilling and at large cost carried the same to discovery and successful production. This was four years after the selection.
The question presented is whether, considering that the selection was lawfully made in lieu of the state-owned tract contemporaneously relinquished, and that nothing remained to be done by the state to perfect the selection, it was admissible for the Commissioner and the Secretary to disapprove and reject it on the ground that the selected land was withdrawn two years later under the Act of June 25, 1910, and still later was discovered to be mineral land -- that is, to be valuable for oil. Or, putting it in another way, the question is whether it was admissible for those officers to test the validity of the selection by the changed conditions when they came to examine it, instead of by the conditions existing when the state relinquished the tract in the forest reserve and selected the other in its stead.
their action was to be judicial in its nature, and directed to an ascertainment and declaration of the effect of the waiver and selection by the state in 1912. If these were valid, then, if they met all the requirements of the congressional proposal, including the directions given by the Secretary, they remained valid notwithstanding the subsequent change in conditions. Acceptance of such a proposal and full compliance therewith confer vested rights which all must respect. Equity then regards the state as the owner of the selected tract and the United States as owning the other, and this equitable ownership carries with it whatever of advantage or disadvantage may arise from a subsequent change in conditions, whether one tract or the other be affected. Of course, the state's right under the selection was precisely the same as if, in 1912, it had made a cash entry of the selected land under an applicable statute, for the waiver of its right to the tract in the forest reserve was the equivalent of a cash consideration. And yet it hardly would be suggested that the Commissioner or the Secretary, on coming to consider the cash entry, could do otherwise than approve it if, at the time it was made, the land was open to such an entry and the amount paid was the lawful price.
"When the price is paid, the right to a patent immediately arises. If not issued at once, it is because the magnitude of the business in the Land Department causes delay. But such delay in the mere administration of affairs does not diminish the rights flowing from the purchase, or cast any additional burdens on the purchaser, or expose him to the assaults of third parties."
that, when a purchaser has paid the full purchase price, his equitable rights are complete, and there is nothing left in the vendor but the naked legal title, which he holds in trust for the purchaser. And this general rule of real estate law has been repeatedly applied by this Court to the administration of the affairs of the Land Department of the government, and the ruling has been uniform that, whenever, in cash sales, the price has been paid, or, in other cases, all the conditions of entry performed, the full equitable title has passed, and only the naked legal title remains in the government in trust for the other party, in whom are vested all the rights and obligations of ownership."
"A change in the conditions occurring subsequently to the sale, whereby new discoveries are made, or by means whereof it may become profitable to work the veins as mines, cannot affect the title as it passed at the time of sale. The question must be determined according to the facts in existence at the time of the sale."
"The subsequent discovery of lodes upon the ground and their successful working does not affect the good faith of the application. That must be determined by what was known to exist at the time."
"The grantees, the Baca heirs, were authorized to select this body of land. They were not at liberty to select lands already occupied by others. The lands must be vacant. Nor were they at liberty to select lands which were then known to contain mineral. Congress did not intend to grant any mines or mineral lands, but, with these exceptions, their right of selection was coextensive with the limits of New Mexico. We say 'lands then known to contain mineral' for it cannot be that Congress intended that the grant should be rendered nugatory by any future discoveries of mineral. The selection was to be made within three years. The title was then to pass, and it would be an insult to the good faith of Congress to suppose that it did not intend that the title, when it passed, should pass absolutely, and not contingently upon subsequent discoveries. This is in accord with the general rule as to the transfer of title to the public lands of the United States. In case of homestead, preemption, or townsite entries, the law excludes mineral lands, but it was never doubted that the title, once passed, was free from all conditions of subsequent discoveries of mineral."
"This insistence cannot prevail. It not only is opposed to the settled rule that the character of the land -- whether agricultural or known to be chiefly valuable for coal -- must be determined according to the conditions existing at the time when the applicant does all that he is required to do to entitle him to a patent, but is grounded in a misapprehension of the authority and duty of the officers of the Land Department in respect of such an application. Whilst it undoubtedly is subject to examination and consideration by them, this is not that they may elect whether or not they will consent to its allowance, but that they may ascertain whether or not the applicant has acquired a right to its allowance -- a right which is acquired, if acquired at all, at that point of time when the applicant has done all that he is required to do in the premises, instead of at the time of its recognition by them."
The last expression on this subject in this Court is found in Payne v. New Mexico, ante, 255 U. S. 367, where it was held in respect of a state lieu selection like the one in question here that the Commissioner and the Secretary, in acting thereon, are required to give effect to the conditions existing when it was made; that, if it was valid then, they are not at liberty to disapprove or cancel it by reason of a subsequent change in conditions; and that, in this regard, the statute under which the selection was made does not differ from other land laws offering a conveyance of the title to those who accept and fully comply with their terms.
sale or other disposal, and no change in such conditions subsequently occurring can impair or in any manner affect his rights."
"These established principles, in the opinion of the department, are applicable to selections under the act of June 4, 1897. The act clearly contemplates an exchange of equivalents. Such is the unmistakable import of its terms. In the case of the relinquishment of patented lands, title is to be given by the government for title received."
"It would be strange indeed if, by the latter  act, Congress intended that one who, accepting the government's offer of exchange, relinquishes a tract to which he has obtained full title in a forest reservation, and in lieu thereof selects a tract of land which at the time is vacant and open to settlement, and does all that is required of him to complete the selection and to perfect the exchange, should thereby acquire only an inchoate right to the selected tract, liable to be defeated by subsequent discoveries of mineral at any time before patent, or before final action upon the selection by the Land Department. Such a construction would not only tend to defeat the objects for which the act was passed by discouraging owners of lands in forest reservations from giving up their titles, but would be against both the letter and spirit of the act. Parties would be slow indeed in relinquish their complete titles if it were once understood that they could obtain only doubtful or contingent rights in return for them. It could not have been the intention of Congress that parties accepting the government's offer of exchange should be embarrassed by any such conditions of doubt and uncertainty."
no right attached under such a selection unless and until it was approved by him, and therefore that, even though the selection was lawfully made, he possessed a discretion to reject it and give effect to an intervening change in conditions, as where a new claimant settled upon the land or sought to make entry of it while the selection was pending.
as of the time when the exertion of the authority was invoked by the lawful filing of the list of selections."
As the circuit court of appeals in the present case, like the Secretary in the other, regarded the decisions in the Wisconsin Central case and the Cosmos case as showing that no right attaches under a lieu selection unless and until approved by the Secretary, it is well to point out just what was involved in those cases, for it then will be apparent that there was no purpose in either to go to the length suggested.
defeat the right of selection by withholding his approval, nor that if, through a mistake of law, he rejected a selection which was valid at the time it was made, the company would be remediless. There was no occasion to consider those questions, nor could they properly be determined without the presence of parties not then before the court. And that the court did not intend its words to be taken so broadly is illustrated by the fact that it cited with approval the case of Saint Paul & Sioux City R. Co. v. Winona & Saint Peter R. Co., 112 U. S. 720, 112 U. S. 733, wherein an indemnity selection lawfully made, but disapproved by the Secretary, was sustained against an adverse certification on the ground that "this erroneous decision of his" did not deprive the selector "of rights which became vested by its selection of those lands."
"Concluding, as we do, that the question whether the complainant has ever made a proper selection of land in lieu of the land relinquished has never been decided by the Land Department, but is still properly before that Department, the courts cannot take jurisdiction and proceed to decide such question themselves. The government has provided a special tribunal for the decision of such a question arising out of the administration of its public land laws, and that jurisdiction cannot be taken away from it by the court. United States v. Schurz, 102 U. S. 378, 102 U. S. 395. The bill is not based upon any alleged power of the court to prevent the taking out of mineral from the land, pending the decision of the Land Department upon the rights of the complainant, and the court has not been asked by any averments in the bill or in the prayer for relief to consider that question. For the reasons stated, we think the bill does not state sufficient facts upon which to base the relief asked for, and that the defendants' demurrer to the same was properly sustained."
interpretation of the Cosmos case cannot be justified." Besides, it was adjudged in the Daniels case that a lieu selection which is lawful at the time it is made does invest the selector with equitable rights which he may enforce in an appropriate way where the Secretary, through an error of law, rejects the selection. And that ruling was reaffirmed and applied in Payne v. Central Pacific Ry. Co., ante, 255 U. S. 228, and Payne v. New Mexico, ante, 255 U. S. 367.
"This practice having been uniformly followed and generally accepted for so long a time, there should be, in my judgment, the clearest evidence of error, as well as the strongest reasons of policy and justice controlling, before a departure from it should be sanctioned. It has, in effect, become a rule of property."
railroads" and to "no other grants." The grounds on which the decision was put were: (a) that the railroad land grants, besides being confined in the granting clause to lands "not mineral," contain provisos declaring in words or effect "that all mineral lands be, and the same hereby are, excluded from the operation of this" grant; (b) that such grants, although expressly requiring that the question whether the lands are otherwise excepted be determined as of the time the map of definite location is filed, contain no such provision in respect of the exception of mineral land; (c) that it was well understood that many years would necessarily elapse between the filing of the map and the time when by construction of the road the grantee would be entitled to patents, and, as the grants covered great areas, in one instance nearly equal to that of Ohio and New York, it hardly could have been intended to arrest mineral development in those areas in the meantime; (d) that such grants "must be strictly construed," and "if they admit of different meanings, one of extension and one of limitation, they must be accepted in a sense favorable to the grantor;" and (e) that the long prevailing construction and practice of the Land Department ought not to be disturbed. Plainly the decision in that case is without bearing here, save as it recognizes that rights under other land laws are to be tested by a different rule. And this is emphasized by the fact that, in Shaw v. Kellogg, supra, where the selection of Baca tract No. 4 was involved, the Court distinguished the Barden case, and applied the general rule before stated. And it is of further significance that this Court has recognized that the legislation of Congress designed to aid the common schools of the states is to be construed liberally, rather than restrictively. Beecher v. Wetherby, 95 U. S. 517, 95 U. S. 526; Johanson v. Washington, 190 U. S. 179, 190 U. S. 183.
the lieu selection was lawfully made it suffices to say, following the recent decision in Payne v. Central Pacific Ry. Co., ante, 255 U. S. 228, that the Act of 1910, under which the withdrawal was made, is confined to "public lands," that, by the selection, this land had ceased to be public, and that the act could not be construed to embrace it without working an inadmissible interference with vested rights.
* The state was not made a party at first, but afterwards, at its own request, was admitted as a defendant to enable it to defend the lieu selection.

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Before :- Kumar Rajaratnam and Manjula Chellur, JJ.
For the Appellants :- H.S. Chandramouli and K.A. Chandrashekhar, Advocates.
For the Respondent :- B.C. Muddapa, H.C.G.P., for SPP.
A. Evidence Act, Section 32 - Indian Penal Code, Sections 302 - Murder - Deceased having 95% burn injuries - Dying declaration recorded by Executive Magistrate - Conviction could not be based on dying declaration particularly when there was no certificate of Doctor about fitness of deceased - Although fitness certificate is not required in law, but it would have been prudent considering the deceased had suffered burns to the extent of 95%. 2002 AIR SCW 3479 relied.
B. Criminal Procedure Code, Section 318 - Indian Penal Code, Section 84 - Trial of accused who is deaf and dumb, but not of unsound mind - Merely because an accused is deaf and dumb but not of unsound mind cannot be absolved of his criminal liability if he is guilty of the offence with which he is charged - Deaf and dumb persons are liable to be punished for offences committed by them as any other persons - However, the trial Court is required under Section 318 to report to the High Court with respect to this aspect of the matter and to get on with the trial with respect to the other accused who do not suffer from any disability. 1963(2) Mys LJ 225 relied.
(1) In such cases trial Court will proceed that accused was not pleaded guilty.
(2) If the accused does not engage an Advocate, Court will engage an experienced criminal lawyer .
(3) It is also permissible for the trial Court to secure the services of an Expert to communicate with the accused at the expense of the State.
D. Criminal Procedure Code, Section 318 - Indian Penal Code, Section 84 - Trial of a person who is not of unsound, but deaf and dumb and cannot be made to understand proceedings of Court - Trial court is empowered to refer the matter of High Court when trial court gives a finding that prima facie offence has been made out - Once a reference has been made under Section 318, the High Court may pass such orders as it thinks fit - It may convict the accused or acquit the accused or direct re-trial. AIR 1960 Bombay 526 relied.
Laxman v. State of Maharashtra, 2002(4) RCR(Criminal) 149 (SC) : 2002 AIR SCW 3479.
Uka Ram v. State of Rajasthan, 2001(2) RCR(Criminal) 416 (SC) : 2001(5) SCC 254.
Panchdeo Singh v. State of Bihar, 2002(1) RCR(Criminal) 126 (SC) : (2002)1 SCC 577.
State of Mysore v. Hakaha and another, 1963(2) Mys LJ 225.
State v. Radhamal Sangatmal Sindhi, AIR 1960 Bombay 526.
Kumar Rajaratnam, J. - Cri. A. No. 479/2001 is filed by the appellants-accused Nos. 1, 3 and 4 against the Judgment of the trial Court rendered by IIIrd Addl. Sessions Judge, Belgaum in S.C. No. 85/1994, dated 17-3-2001 convicting accused 1, 3 and 4 for an offence punishable under Sections 302 read with Section 34, IPC and Section 324 read with Section 34, IPC. Under Section 302 read with 34, IPC, the accused were convicted and sentenced to imprisonment for life and to a fine of Rs. 5,000/- each in default to undergo S.I. for a period of one year. Under Section 324 read with Section 34, I.P.C., the accused were sentenced to undergo imprisonment for 6 months. The sentences were ordered to run concurrently.
2. Cri. R. No. 1/2001 is filed by the petitioner-the Registrar General of the High Court of Karnataka, Bangalore under Section 318 of Criminal Procedure Code on the judgment of the trial Court dated 17-3-2001 with respect to accused No. 2-respondent No. 2. At the stage of recording the statement under Section 313 of Cr.P.C. it was noticed by the trial Court that accused No. 2 was short of hearing, practically a deaf. Hence a reference on the report of the trial Court under Section 318, Cr.P.C. After the judgment, the accused No. 2, who was on bail during the trial has been remanded to judicial custody on 17-3-2001 and he is also in judicial custody since then.
3. Criminal Appeal No. 479/2001 is filed by A-1, A-3 and A-4. Criminal Referred Case No. 1/2001 is filed by the petitioner-Registrar, General of this Court with respect to accused No. 2. Apart from this A-2 who was convicted by the trial Court but not sentenced on account of the Criminal Referrred Case No. 1/2001 filed by the Registrar General is also before us with respect to the conviction and not sentence in Criminal Appeal No. 1089/2002.
4. There is a delay of 435 days in filing the Criminal Appeal No. 1089/2002. Heard the learned Public Prosecutor and the learned counsel for the appellant-accused No. 2. Considering the fact that the Reference No. 1/2001 with respect to A-2 is pending before this Court, after hearing the learned Public Prosecutor and the learned counsel for the appellant and in the facts and circumstances of the case the delay in filing the appeal is condoned and I.A.I. is allowed and we have after condoning the delay admitted Criminal Appeal No. 1089/2002.
5. Accordingly Criminal Appeals Nos. 479/2001 and 1089/2002 and the Criminal Referred Case No. 1/2001 are taken up together and a common judgment is rendered since the criminal referred case as well as the criminal appeals arise out of the same judgment and with respect to the same alleged occurrence.
6. The prosecution case, in brief, is as follows :- Deceased Venkatesh was the conductor on duty in the KSRTC bus bearing No. CAF 3502. P.W.8 was the driver on duty in respect of the said bus. On the night of 17-8-1993 the bus reached Sutagatti village and was parked near the society office, a little away from the village. The deceased and P.W.8 the driver were admittedly sleeping in the said bus on the night of 17-9-1993. The deceased was sleeping in the rear portion of the bus and the driver P.W.8 was sleeping in the front portion of the bus.
7. According to the evidence of P.W.8 who was the driver of the bus and according to P.W.4 who was co-conductor in the KSRTC bus deceased was suspended from his duties as a conductor. He was subsequently reinstated with backwages.
8. The bone of contention was the award of backwages. Sumitra the wife of the deceased was insisting upon the deceased that she should be given the back wages. However, the deceased Venkatesh apparently gave the amount received as backwages to his mother. This was not relished by Sumitra the wife of the deceased. It was further alleged that Sumitra being annoyed that her mother-in-law got the backwages committed the murder of the deceased's mother on 24-1992. A complaint in Crime No. 82/1992 was registered against Sumitra for an offence punishable under Section 302, IPC. The said Sumitra (wife of the deceased) was enlarged on ball and because of the estrangement started living with her brothers A-1 to A-3. It was further stated that Ashok and Ganapati are the minor sons of deceased and Sumitra. Both Ashok and Ganapati apparently witnessed the murder alleged to have been committed by Sumitra. It was further alleged that accused Nos. 1 and 3 and one Babu their relative kidnapped the two children from the custody of the deceased Venkatesh. A case was registered against the accused Nos. 1, 3 and one Babu in Crime No. 176/1992. It is also further submitted that A-1 and A-3 and the said Babu were acquitted by the trial Court by a judgment dated 7-9-1993.
9. On account of these two incidents Sumitra and accused Nos. 1 to 3 had nurtured deep enmity against the deceased and the deceased apprehended danger from the accused and his wife Sumitra. This appears to be the motive for the alleged occurrence.
10. Coming to the occurrence, the prosecution case is that about 3.30 or 4.00 a.m. some persons set fire to the bus, the deceased who was asleep woke up and informed P.W.8 that the bus was on fire. By that time, the deceased had already sustained burn injuries.
11. P.W.8 the driver had come out of the said bus and brought the deceased outside the said bus. Since the bus was (sic) burning P.W.8 rushed towards the Basaveshwar temple situated nearby and informed the villagers. An announcement was made through the loud speaker from the said temple calling upon the villagers to rush to the spot with water to extinguishing the fire. Many villagers including P.Ws. 1, 2 and 3 rushed to the spot and poured water on the said bus to douse the fire.
12. Venkatesh (deceased), the conductor had sustained burn injuries. P.W.8 the driver also sustained some burn injuries, with the help of the villagers both the injured persons were shifted to the nearby Government Hospital in the village. Thereafter, they were shifted to the Civil Hospital at Belgaum in a tempo. P.W.3 had accompanied the injured in the said tempo to the Civil hospital at Belgaum.
13. The prosecution case further was that the deceased had informed P.W.3 and other villagers who were extinguishing the fire that some persons who nurtured ill-will against him had set fire to the bus. P.W.3 had gone to the Nesargi police station from the hospital and presented a written complaint. The complaint is marked as Ex. P-1. The police had registered the said complaint in crime No. 63/1993. P.W.3 had also gone to the Taluka Executive Magistrate P.W.13 and informed him about the incident. PW.13 went to the hospital and in the presence of the medical officer P.W.13 recorded the dying declaration of the deceased between 10 a.m. to 10.30 a.m. on 18-8-1993. The dying declaration is marked as Ex.P-9. Injured Venkatesh had named the accused persons as responsible for the occurrence.
14. He had purportedly stated accused Nos. 1 to 3 are brothers of his wife Sumitra and accused No. 4 is the relative of accused Nos. 1 to 3. The accused persons were on inimical terms with him and, therefore, set fire to the bus in order to kill him.
15. Venkatesh succumbed to the burn injuries at about 7.15 p.m. on the same day i.e. on 18-8-1993.
16. Accused No. 1 was said to have made a voluntary statement as per Ex. P-20 and had pointed out the petrol bunk wherefrom he and other accused had purchased petrol. Inquest was held and statements of other witnesses were recorded. After completing the investigation the police filed charge-sheet against the accused for the offence punishable under Sections 302, 324 read with Section 34, IPC.
"The deceased had extensive burn injuries all over the body and he sustained about 65 to 80% burns."
18. P.W.15 is the Doctor who conducted post-mortem examination on the dead body of the deceased on 19-8-1993. The post mortem report is marked at Ex.P.12. P.W.15 opined that the cause of death was due to respiratory failure due to shock as a result of extensive burn injuries to an extent of about 95%.
19. Ex.P-1 is the complaint given by P.W.3 to the Police. P.W.3 is a resident of the village and a Panchayat Member. He has stated that he heard a message over the loud speaker of Basaveshwar Temple situate outside the village. The message was that a bus was set on fire at the bus stop and people of the village should bring water and douse the fire. P.W.3 got up on hearing the message and ran to the spot where the bus was parked.
20. In the complaint he states that hundreds of people came there with water to house the fire. The rear portion of the bus was burnt. The Conductor- deceased Venkatesh came out of the bus. He noticed that his body was fully burnt. The right hand of the driver was also burnt. Since the conductor suffered severe burn injuries, P.W.3 took the conductor from the bus. Afterwards he and other persons from the village took the conductor and the driver in a tempo to the Civil Hospital at Belgaum. P.W.3 asked the conductor what had happened. The conductor deceased Venkatesh stated that some persons inimical to him had set fire to the bus with an intention to kill him. Apart from P.W. 1, P.Ws. 2 and 3 also sought information from the deceased. The deceased told P.Ws. 2 and 3 also that some persons who were inimical to him had set fire to the Bus. In the oral dying declaration, the deceased did not implicate the accused by name.
21. It is only at the time of giving the judicial dying declaration-Ex.P.9. the name of the accused finds a place in the statement of the deceased.
22. Therefore, the entire case of the prosecution rests on the dying declaration-Ex. P.9 given to the Taluka Executive Magistrate in the presence of Doctor-P.W.20.
23. P.W.20-Doctor has stated in his evidence that the deceased was admitted in the hospital on 18-8-93 and the condition of the deceased was getting deteriorated. He had suffered from hypolmic shock and respiratory distress and was under pain and agony. The deceased was admitted in the hospital at about 4.50 a.m. and Ex.P.9 was recorded at 10 a.m. P.W.20-Dr. Shivappa has stated that the deceased suffered 60% to 80% burns. But P.W.15-the post mortem Doctor has stated that the deceased had suffered 95% burns.
24. P.W.20-Doctor gave evidence without bringing any medical records of the deceased. He admitted that the case sheet of the deceased was available in the Civil Hospital disclosing the nature of treatment given to him. It was suggested to P.W.20 that he was not the duty Doctor and he was not the Doctor who gave treatment to the deceased. This suggestion was denied by P.W.20. No effort was made by the Court to request P.W.20 to make available the case sheet of the deceased. P.W.20, however has stated in his evidence nearly 7 years after the occurrence that the deceased was in a fit condition to make a statement. P.W.20 had not made any endorsement that the deceased was in a fit condition either in Ex.P.9 or a separate certificate was given to the Taluka Executive Magistrate before recording dying declaration. It cannot be ruled out that when the dying declaration was recorded at 10 a.m., there was further deterioration in the state of health of the deceased.
25. However, the evidence of P.W.13 the Tahsildar who recorded the dying declaration cannot be brushed aside easily. He has stated in his evidence that he went to Belgaum Civil Hospital at 10 a.m and met the Doctor-P.W.20. He enquired from the Doctor that the deceased was in a position to talk and only after (that) he recorded the dying declaration. He also states that he was satisfied about the mental condition of the deceased. He however did not record in Ex. P.9 that the deceased was in a fit condition to give a statement.
26. P.W.15 the Postmortem Doctor has stated that the deceased had suffered 95% burns and must have had severe burns while he being alive. He has also stated that in order to reduce the pain, the Doctor attending upon him must have administered a strong dose of sedation. He further stated that in such a condition, the patient would not be mentally fit to talk to anybody. The opinion of the Postmortem Doctor-P.W.15 cannot be brushed aside.
27. We must look at the timings in a chronological order. The alleged occurrence is said to have taken place at 3.00 or 4.00 in the morning on 18-8-1993, the deceased was taken to the local hospital and from there he was shifted to the Civil Hospital, Belgaum and was admitted in the hospital at about 4.50 a.m. The dying declaration was recorded at about 10 a.m. on the same day and the deceased died at 7.15 p.m., on the same day. It would have been perfectly possible to have accepted the judicial declaration Ex. P.9, but for the fact the earlier oral dying declaration given to P.Ws. 1, 2 and 3 only speaks of "those persons who were inimicaly disposed towards him". It is only in the light of this vital omission, we have carefully perused the evidence of P.W.15 the Doctor, who examined the deceased and was present at the time of giving judicial declaration. The dying declaration was recorded by P.W.13- Taluka Executive Magistrate. We have also carefully perused the evidence of Postmortem Doctor to verify for ourselves whether it was possible for the deceased to have mentioned the names of the accused in dying declaration.
"Since the deceased had died due to burn injuries with about 95% of burns, he must have had severe pains while being alive. It is true that in case of the patient of the burn injuries, in order to reduce the pain, Doctors attending upon him administer sedative dose. It is true to suggest that if a patient is given with sedative doses he will not be in a position to respond and talk naturally. It is true that owing to such sedative doses, the patient will be in more drowsy state. It is true that in such condition the patient will not be in mentally fit condition to talk to anybody."
29. Both the Doctors admitted that the deceased was in a grave state of health and was being administered medicines. It cannot be doubted that the said medicine injected to the deceased must have been to relieve pain and prevent infection.
30. If the deceased had identified the accused as he got down from the bus, it would have been possible for the deceased to have named the accused to P.Ws. 1 to 3 (those witnesses who saw the deceased immediately after the incident). Even P.W.8 does not speak about the deceased mentioning the name of the accused. Another curious aspect of the case is that P.W.8 the Conductor brings the deceased from the bus along with P.W. 1. Neither P.W.1 nor P.W.8 mentions that any of the accused were running away from the scene of occurrence. It would have been practically impossible at the dead of the night for the deceased to have identified the accused. Whoever did this ghastly act must have scooted in the darkness. That is why P.Ws. 1, 2, 3 and 8 state that the deceased did not mention the name of the accused. If the deceased had identified the accused in the darkness, he would have mentioned their names to the witnesses who were present immediately after the occurrence.
31. Let us look at the picture for a moment as presented by the prosecution. The Conductor was sleeping in the front of the bus and the deceased was at the rear portion. Some persons came in the middle of the night and set fire to the bus.
32. P.W.8 who was sleeping in the front portion suffers burns and he rescues the deceased, pulls him out of the bus by the time the seat on which he was sleeping was burnt. It is clear from the narration of the prosecution case that P.W.8 and the deceased came out of the bus at the same time. There is no mention about certain persons running away from the scene of occurrence. It was a case of hit and run in the darkness of the night. That is why the deceased states that he has strong suspicion that certain people who were inimical towards him might have done this. Even when P.W.1 gave the complaint, the name of the accused does not find a place. If the deceased saw all the accused, it would have certainly found a place in the complaint. Therefore, it is clear from the medical evidence that the oral dying declaration must have been the truth and not much reliance can be placed on the judicial dying declaration given by the deceased. He was admittedly suffering from hypovolaemia which means a condition in which the volume of the blood in the body has diminished and was in a state of shock at the time when judicial dying declaration was given.
33. The Constitutional Bench of the Supreme Court reported in Laxman v. State of Maharashtra, 2002(4) RCR(Criminal) 149 (SC) : 2002 AIR SCW 3479 has pronounced that the absence of certification of Doctor as to fitness of mind of declarant would not render dying declaration as unacceptable. Certification of the Doctor is only a rule of caution and voluntary and truthful nature of the declaration can be established by other evidence.
"3. The juristic theory regarding acceptability of a dying declaration is that such declaration is made in extremity, when the party is at the point of death and when every hope of this world is gone, when every motive to falsehood is silenced, and the man is induced by the most powerful consideration to speak only the truth. Notwithstanding the same, great caution must be exercised in considering the weight to be given to this species of evidence on account of the existence of many circumstances which must affect their truth. The situation in which man is on death bed is so solemn and serene, is the reason in law to accept the veracity of his statement. It is for this reason the requirements of oath and cross-examination are dispensed with. Since the accused has no power of cross-examination, the Court insists that the dying declaration should be of such a nature as to inspire full confidence of the Court in its truthfulness and correctness. The Court, however, has to always be on guard to see that the statement of the deceased was not as a result of either tutoring or prompting or a product of imagination. The Court also must further decide that the deceased was in a fit state of mind and had the opportunity to observe and identify the assailant. Normally, therefore, the Court in order to satisfy whether the deceased was in a fit mental condition to make the dying declaration looks up to the medical opinion. But where the eye-witnesses state that the deceased was in a fit and conscious state to make the declaration, the medical opinion will not prevail, nor can it be said that since there is no certification of the doctor as to the fitness of the mind of the declarant, the dying declaration is not acceptable. A dying declaration can be oral or in writing and in any adequate method of communication whether by words or by signs or otherwise will suffice provided the indication is positive and definite. In most cases, however, such statements are made orally before death ensues and is reduced to writing by someone like Magistrate or a Doctor or a police officer. When it is recorded, no oath is necessary nor is the presence of a Magistrate absolutely necessary, although to assure authenticity it is usual to call a Magistrate, if available for recording the statement of a man about to die. There is no requirement of law that a dying declaration must necessarily be made to a Magistrate and when such statement is recorded by a Magistrate there is no specified statutory form for such recording. Consequently, what evidential value or weight has to be attached to such statement necessarily depends on the facts and circumstances of each particular case. What is essentially required is that the person who records a dying declaration must be satisfied that the deceased was in a fit state of mind. Where it is provided by the testimony of the Magistrate that the declarant was fit to make the statement even without examination by the Doctor, the declaration can be acted upon provided the Court ultimately holds the same to be voluntary and truthful. A certification by the doctor is essentially a rule of caution and therefore the voluntary and truthful nature of the declaration can be established otherwise."
35. Reliance was also placed on the judgment of the Supreme Court in Uka Ram v. State of Rajasthan, 2001(2) RCR(Criminal) 416 (SC) : 2001(5) SCC 254. The Supreme Court held that before relying on a dying declaration the Court should be satisfied that the deceased was in a fit state of mind to make the statement. Once the Court is satisfied that the dying declaration was true, voluntary and not influenced by any extraneous consideration, it can base its conviction without any further corroboration. Any rule requiring corroboration is not a rule of law but only a rule of prudence.
36. In 2002(1) RCR(Criminal) 126 (SC) : (2002)1 SCC 577 (Panchdeo Singh v. State of Bihar) the Supreme Court pronounced that in a dying declaration. the deceased must evoke confidence of the Court that it was given voluntarily and in a fit state of mind and without being influenced by any extraneous influence.
37. Ultimately, it depends on the facts of each case. In this case we have the evidence of P.Ws. 1 to 3 and 8 about the oral dying declaration given by the deceased to the effect that the persons who are inimical towards deceased were responsible for setting fire to the bus.
38. We also have the judicial dying declaration. However, the judicial dying declaration does not inspire confidence in the Court, since the deceased suffered 95% of burns and must have been in a state of shock and under sedation. No note had been appended by the Doctor or the Taluka Executive Magistrate to have (sic) that the deceased was in a fit state of mind to give a declaration. Although that is not a requirement of law. It would have been prudent considering the deceased had suffered burns to the extent of 95%. The oral dying declaration does not implicate the accused. P.Ws. 1, 2, 3 and 8 are independent witnesses and the oral dying declaration given to them only refers to the persons who are inimically disposed towards the deceased. All the witnesses including the Petrol Bunk owner from where it is alleged that the deceased had purchased petrol did not support the prosecution.
39. In these circumstances we do not think that a conviction can be based solely on the judicial dying declaration which contradicts the oral dying declaration.
40. Accordingly the order of the trial Court is set aside and the criminal appeals stand allowed and the accused are acquitted for the offences for which they had been convicted and are directed to be set at liberty forthwith.
41. In view of our finding that the benefit of doubt must go to the accused the Reference by the trial Court under Section 318 of the Code has become academic. However, since submissions were made by Mr. Chandramouli, Senior learned counsel for the accused on this aspect of the matter we are inclined to say a few words on this subject, since such reference rarely comes to this Court.
"318. Procedure where accessed does not understand proceedings. - If the accused though not of unsound mind cannot be made to understand the proceedings, the Court may proceed with the inquiry or trial; and in the case of a Court other than a High Court, if such proceedings result in a conviction the proceedings shall be forwarded to the High Court with a report of the circumstances of the case, and the High Court shall pass thereon such order as it thinks fit."
43. Section 318 prescribes that if the proceedings end in a conviction where the accused though not of an unsound mind is unable to understand the proceedings of the Court, in such event the trial Court may refer the matter to the High Court and the High Court shall pass thereon such order as it deems fit.
44. In this case, the trial Court came to the definite conclusion that on the basis of the evidence, A-2 is liable to be convicted. The trial Court came to know the fact that the accused was deaf only at the stage of recording the statement under Section 313 of the Cr.P.C. The counsel for A-2 informed the Court on this aspect of the matter only after the evidence was recorded. The trial Court also came to the conclusion that A-2 was represented by a competent Advocate and no prejudice was caused to the accused and the counsel for the accused ably cross-examined the witnesses.
45. What is the procedure to be adopted by the Court with respect to an accused who is not of an unsound mind but who is not able to understand the proceedings of the Court has been dealt with by a judgment of this Court reported in 1963(2) Mys LJ 225 (State of Mysore v. Hakaha and another). This Court pronounced that merely because an accused is deaf and dumb but not of unsound mind cannot be absolved of his criminal liability if he is guilty of the offence with which he is charged. Deaf and dumb persons are liable to be punished for offences committed by them as any other persons. However, the trial Court is required under Section 318 to report to the High Court with respect to this aspect of the matter and to get on with the trial with respect to the other accused who do not suffer from any disability.
46. It is also the duty of the trial Court in such cases to proceed on the basis that the accused has pleaded not guilty. If the accused does not engage the service of an Advocate of his choice, the Court shall make available to him the assistance of an experienced Criminal Lawyer from the Bar. It is also permissible for the trial Court to secure the services of an Expert to communicate with the accused at the expense of the State. The trial Court shall also make available to the accused such other necessary facilities which may be of assistance in securing a fair trial. Needless to say that if the accused is of an unsound mind, the Court must proceed under Chapter XXV of the Code.
47. Section 318 deals with an accused though not of an unsound mind cannot be made to understand the proceedings. Section 318 also deals only with the situation where such proceedings result in a conviction. There must be a finding by the trial Court that prima facie an offence has been committed and a further finding that the accused cannot be made to understand the proceedings. Only then, the trial Court is empowered to refer the matter under Section 318. It also follows that once a reference has been made under Section 318 the High Court may pass such orders as it thinks fit. It may convict the accused or acquit the accused or direct re-trial.
48. A Division Bench of the Bombay High Court reported in AIR 1960 Bombay 526 (State v. Radhamal Sangatmal Sindhi) held that there is a duty cast on the part of the trial Court to make an enquiry and to find out if the accused can understand the proceedings against him. If it can be shown that such a person has sufficient intelligence to understand the criminal law he is liable to be punished if convicted by the trial Court.
49. In Boya Polamma's case reported in AIR 1941 Madras 225 : (1941 (42) Cri LJ 315) it was held by the High Court that even it was not brought to the knowledge of the trial Court that the accused was deaf the conviction can be sustained if it can be shown that the accused was able to understand the proceedings.
50. In an old case reported in AIR 1947 All 301 the High Court observed that there was no provision in the IPC under which an accused can be exempted from punishment merely because he was deaf and dumb.
51. However, the Courts have to do their best to see that the trial against an accused is fair one and that he gets a chance of putting up such defence as he can have.
52. A Division Bench of the Kerala High Court reported in AIR 1959 Ker 165 in Pethambaran's case took the view that the provisions of Section 341 (old Code) can be invoked only when the accused is unable to follow the proceedings. The trial Court making the reference should record a finding as to whether the accused, though a deaf mute, had sufficient intelligence to understand the criminal character of the act committed by him. The Court must be satisfied that the accused is sane and that he has sufficient intelligence as to know the criminal nature of the act alleged to have been committed.
53. Therefore, if the Court finds that an accused is deaf and dumb the Court may proceed with the enquiry or trial. But it should first enquire into the antecedents of the accused and try and help him to understand the proceedings and render all possible assistance in the trial.
54. When a reference is made under Section 318 the High Court has got wide powers to enquire a fair trial and make a fair trial of the accused if it decides to proceed against him. If the Court trying such an accused shall be directed to see that he has the necessary legal assistance and the trial shall proceed on the basis that the accused has pleaded not guilty of the charge and all possible defences open to him, in the circumstances of the case should be considered. However, merely because an accused is deaf and dumb would not exempt him from punishment if it is shown that he has sufficient intelligence to understand the criminal character of his act and if found guilty.
55. As stated earlier we were obliged to refer the powers of the High Court under Section 318, Cr.P.C. since a reference had been made by the trial Court. In view of the appeals being disposed of on merits, no direction is necessary with respect to accused No. 2. Criminal Reference is disposed of accordingly.
56. In the result, Criminal Appeal Nos. 479/01 and 1089/02 are allowed and the accused are set at liberty forthwith.

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The confessions of a party to acts of adultery or cruel treatment shall be received with great caution; if unsupported by corroborating circumstances and if made with a view to be evidence in the case, such confessions shall not be deemed sufficient to grant a divorce.
Orig. Code 1863, § 1674; Code 1868, § 1715; Code 1873, § 1716; Code 1882, § 1716; Civil Code 1895, § 2430; Civil Code 1910, § 2949; Code 1933, § 30-110.