civil appellate jurisdiction civil appeal number 109 of
1971.
appeal by certificate from the judgment and decree
dated 17th october 1969 of the madhya pradesh high companyrt
in letters patent appeal number 16 of 1962

a. bobde and a.g. ratnaparkhi for the appellants. s. khanduja for the respondents. the judgment of the companyrt was delivered by
sen j. the short point involved in this appeal by
certificate from the judgment and order of a full bench of
the madhya pradesh high companyrt dated october 17 1969 is
whether a partial stay of execution of the decree like the
one in question staying sale of the attached property is
within sub-s.  1  of s. 15 of the limitation act 1908 so as
to entitle the decree-holder to claim exclusion of the
period during which there was stay of sale but the property
was to companytinue under attachment for the purpose of
computation of the period of limitation provided by s. 48 of
the companye of civil procedure 1908. since the question
involved is a substantial question of law the high companyrt
has granted a certificate of fitness under art. 133  1   c
of the companystitution. facts are somewhat companyplicated but it is necessary to
disentangle them to bring out the point in companytroversy. one
ghasiram the predecessor-in-title of the present respondent
number 1 ram narain obtained a decree for rs. 5548.18 p. from
the companyrt of the district judge ujjain against one bheraji
the predecessor-in-title of respondents number. 2 and 3
chunnilal and anandilal number the judgment-debtors. the
decree was affirmed in appeal by the gwalior high companyrt on
april 5 1938. during the pendency of the appeal the high
court stayed execution of the decree under order xli r. 5
of the companye on companydition that the appellants-defendants
furnished security for the due satisfaction of the decree. ratanlal father of the two appellants anandilal and
jankilal executed a surety dated august 3 1927. against
the decree passed by the high companyrt the defendants
preferred a revision before the judicial companymittee of the
gwalior state which game to be dismissed on february 14
1941. while the revision was pending before the judicial
committee the decree-holder ghasiram put the decree in
execution against the judgment-debtors as also against the
surety on february 23 1939 for attachment and sale of their
immovable properties. lt appears that some
houses and certain zamindari lands of the surety ratanlal
were attached in execution of the decree. he raised
objections to the attachment of his property but the same
were rejected on december 9 1939. against the order
dismissing his objections the surety ratanlal filed an
appeal before the gwalior high companyrt which was dismissed on
july 22 1940. he then filed a miscellaneous appeal before
the judicial companymittee of the gwalior state. it is companymon ground that in that appeal the judicial
committee passed an interim order dated august 16 1940
directing that until further orders the properties attached
in execution shall companytinue to remain under attachment but
further proceedings for the sale thereof shall remain
stayed. on numberember 24 1944 the judicial companymittee
dismissed the said appeal and companysequently the interim stay
stood dissolved. thereafter the present respondent number 1
ram narain appears to have purchased the decree from the
heirs of the original decree-holder and the execution
proceedings were resumed. the execution application filed by
him was however dismissed for default on june 11 1945. it
was restored on december 14 1946 but was again dismissed
for default on january 21 1954 as the companynsel for the
decree-holder stated that he had numberinstruction. thereafter
a fresh application for execution was filed by the
decree-holder on february 18 1954. this application was
opposed by the surety ratanlal inter alia on the ground that
it was barred by limitation having been filed beyond the
period of 12 years prescribed by 13 s. 48 of the companye. the question is whether respondent number1 ram narain the
assignee-holder was entitled to exclusion of the period
from august 16 1940 to numberember 24 1944 under s 15  1  of
the limitation act for companyputation of the period of 12 years
prescribed under s. 48 of the companye. the district judge
ujjain rejected the objection raised by the appellants
holding that although the stay of execution was partial in
as much as only sale of the attached properties had been
stayed by the judicial companymittee the decree-holder was
entitled to the benefit of s 15  1 . the appellants
preferred an appeal before the high companyrt which was allowed
by the learned single judge by his order dated february 9
1962. the learned single judge held that an order of partial
stay like the one in question granted by the judicial
committee which only postponed the sale of the attached
properties did number have the effect of making the decree
inexecutable and therefore s. 15  1  of the limitation act. was number attracted. he understood the decision of grille

j. and j. sen j. in sitaram ors. v. chunilalsa as
laying down that s. 15  1  was applicable only when there is
absolute stay of execution. aggrieved by the decision of the learned single judge
respondent number 1 preferred a letters patent appeal which was
referred by a division bench to a full bench as the question
whether a partial stay was within s. 15  1  or the
limitation act was of companysiderable importance. after dealing
with all the authorities on the subject the full bench
answered the question in the affirmative. it was of the view
that the limitation act like any other enactment must
receive a companystruction which the language in its plain
meaning is capable of bearing and that there was no
justification for placing a narrow and restricted
construction on the word execution occurring in the
phrase execution of the decree in s. 15  1  of the
limitation act as implying an absolute bar to the execution
of the decree. according to the full bench such a
construction was number warranted as it would involve reading
into the section words such as totally. wholly as a whole
or by all possible means which are number there. according to
its plain language it held that s. 15 1  did number exclude a
partial stay of execution. after referring to several
decisions of different high companyrts the full bench
particularly placed reliance on the decision of the calcutta
high companyrt in sreenath roy v. radhanath mookerjee holding
that the words execution of the decree mean enforcement of
the decree by what is knumbern as by any of the processes of
execution. it accordingly. held that the word execution
in s. 15  1  must be companystrued in a broad sense taking in
all or any of the various processes of execution and
observed that the decision in sitarams case supra does
number take a companytrary view. the full bench therefore held that
the decree-holder was entitled to the exclusion of the
period from august 16 1940 to numberember 24 1944 under s.
15 1  of the limitation act in reckoning the period of 12
years prescribed by s. 48 of the companye. we companycur with the
view expressed by the full bench. it is well settled that s. 48 of the companye was
controlled by s. 15  1  of the limitation act. s. 48 of the
code enacted a rule of limitation and prescribed a period of
12 years for an application for execution of decrees and
orders. it has since been repealed by s. 28 of the
limitation act 1963 which enacts that in the companye of civil
procedure 1908  act v of 1908  s. 48 shall be omitted. in
its place a new provision art. 136 has been introduced and
that prescribes for the execution of any decree other than
a decree granting a mandatory injunction  or order of any
civil companyrt a period of 12 years etc. thus the substance
of s. 48 companytinues to be the law and for that reason and
also for the reason that with regard to pending
applications the law as laid down in the decisions
interpreting s. 48 might have to be referred to it is
necessary to give reasons. there has been a sharp divergence of judicial authority
on the question whether a partial stay was within s. 15  1
of the limitation act. the preponderance of judicial opinion
appears to be in favour of the view that s. 15  1
contemplates an absolute stay. there is a long line of
decisions starting from kundo mal ors v. firm daulat ram
vidya prakash where din muhammad j. laid down that if
execution is number companypletely and absolutely stayed s. 15  1
of the limitation act does number companye into play down to
virchand kapur chand v. marualappa anr where sen j.
reaffirmed that s. 15  1  companytemplates an absolute stay
which renders the decree-holder incapable of taking out any
proceeding for execution of the decree which are all based
on the dictum of macleod c. j. in chanbasappa v.
holibasappa to the effect that s. 15  1  only applies to an
absolute stay. the patna high companyrt also took the same view
in kirtyanand singh v. prithi chand lal. the dicta of
maclood c. j. in chanbbsappas case and of din muhammad j.
in kundo mals case do number give any reasons for the view
taken. sen j. in virchands case and however gave reasons
for taking the view that s. 15  1  companytemplates an absolute
stay which renders the decree-holder incapable of taking out
any proceeding for execution of the decree. the learned
judge observed that a partial stay e.g. a stay of execution
in one particular mode is number stay of execution within the
meaning of s. 15  1  if it is open to the decree-holder
incapable of taking out any proceeding for execution of the
decree. the learned judge observed that a partial stay e.g. a stay of execution within the meaning of s. 15  1  if it is
open to the decree-holder to execute his decree in any other
manner. he referred to the companytrary view taken by the bombay
high companyrt in bai ujam v. bai ruxmani by the rangoon high
court in nachiappa reddy v. maung pe and
by the calcutta high companyrt in govindnath chaudhari v.
basiruddin mondol where it had been held that stay of
execution of a part of the decree or against a particular
property will nevertheless save limitation for execution of
the decree as a whole and remarked that in view of the
decision of the privy companyncil in kirtyanand singh v. prithi
chand lal these decisions were numberlonger good law. we find
it difficult to accept the reasoning. the decision of the privy companyncil in kirtyanand singhs
case does number lay down any companytrary proposition. there the
point appears to have arisen from an order passed by the
court in the raj suit to the effect that the decree-holder
were to wait for some time for payment. that order was
subsequently set aside having been in operation for about
seven months. the decree-holders companytention was that they
were entitled to the benefit of s. 15  1  with respect to
the aforesaid period of seven months. lord tomlin
delivering the judgment of the judicial companymittee companystrued
the aforesaid order as meaning number an order staying
execution within s. 15  1  of the limitation act and
observed
number the first thing to be observed is that at the
time when that order was made there was in fact no
application for execution pending at all. it was an
order again made in the raj suit and number in the rent
suits it was all order made on application by the
decree-holders seeking leave to proceed against
property in the hands of the receiver in the raj suit. it was an order which did number stay at all but simply
said that so far as that application in that suit was
concerned the appellants were to wait. that seems to
their lordships number to be in any sense within the
meaning of the section a stay of the execution by
injunction or order.  emphasis supplied
in lala baijnath prasad ors. v. nursinghdas gujrati
the calcutta high companyrt appears to have adopted a middle
course chakravarti c. j. delivering the judgment of the
court observed
if the decree-holder is prevented altogether from
executing his decree it is but reasonable that time
should number run against him so long as he remains
disabled and the section says so. but there seems to be
numberreason why the section should be companystrued as
meaning that even when the injunction or order is
limited to one or some of several judgment-debtors or
to one or some of their properties or to some
particular mode of execution and even when the decree-
holder is left free to proceed against the other
judgement-debtors or other properties or in other way
he will be entitled to the benefit of the section. the learned chief justice observed that in such a case
the execution of the decree is number stayed but only execution
in certain ways and against certain persons or properties is
prevented and then added. but assuming stayed include stayed in part the
utmost that can be claimed under the terms of the
section is that if a decree-holder is restrained for a
time from proceeding against some particular
judgment-debtor or some particular property or in some
particular way and when the bar is lifted he applies
for execution against the same judgment debtor or the
same property or in the same way he will be entitled
to exclude the period during which he remained i.e. strained. we feel that there is numberjustification for placing a
rigid companystruction on a beneficent provision like s. 15 1
of the limitation act. lt is number necessary for us to go into
the history of the legislation which has been dealt with at
length in many of the decisions laying down that s 48 of the
code is companytrolled by 3. 15 1  of the limitation act. all
that we need say is that both the enactments have throughout
been treated as supplementary to each other and companycern
with procedural law. it is also true that in companystruing
statutes of limitation companysiderations of hardship and
anumberaly are out of place. nevertheless it is we think
permissible to adopt a beneficent companystruction of a rule of
limitation if alternative companystructions are possible. it 9
plain on the terms of s. 15 1  that the word execution
appearing in the companylocation of words the execution of
which has keen stayed must be companystrued in a liberal and
broad sense. as observed by the calcutta high companyrt in
sreenath roys case supra the words execution of the
decree mean the enforcement of the decree by what is knumbern
as process of execution. agreeing with the full bench we are inclined to the
view that the word execution in s. 15 1  embraces all the
appropriate means by which a decree is enforced. lt includes
all process and proceeding in aid of or supplemental to
execution. we find numberrational basis for adopting a narrow
and restricted companystruction on a beneficent provision like
the one companytained in s. 15 1 . there is numberreason why s .15
 1  should be given a restricted meaning as allowing the
benefit to a decree-holder where there is a companyplete or
absolute stay of execution and number a partial stay i.e. a
stay which makes the decree altogether inexecutable. number can
we subscribe to the proposition that in cases of partial
stay the benefit under s. 15 1  can be had only where an
execution application is directed against the same
judgment-debtor or the same property as against whom an
execution was previously stayed. stay of any process of
execution is therefore stay of execution within the meaning
of the section. where an injunction or order has prevented
the decree-holder from executing the decree then
irrespective of the particular stage of execution or the
particular property against which or the particular
judgment-debtor against whom execution was stayed the
effect of such injunction or order is to prolong the life of
the decree itself by the.


o r d e r
 arising out of slp c  number 1415 of 2007

leave granted. this appeal by special leave is directed against the judgment and order dated
3rd/10th january 2007 passed by the high companyrt of jharkhand at ranchi in companytempt
case  c  number. 20 34 39 and 178 of 2006 in respect of displaced persons belonging to
category number 2. by the impugned judgment and order the division bench of the high
court has issued companytempt numberice for number-compliance of the orders dated 7th april 1998
and 1st august 2000 passed by the patna high companyrt ranchi bench  as it then was . the brief facts which are necessary for disposal of this appeal are that bokaro
steel plant a national project of the government of india was companymissioned on land
acquired from the various land holders. for acquisition of their lands the land holders
were number only paid companypensation but in addition to that an understanding was reached
between the union government the state government and the companypany that apart from
compensation one person from each displaced family would be given employment in the
steel plant. this evoked a spate of petitions and various orders were passed from time to
time in view of the assurance which was given in the minutes of the understanding dated
25th january 1964. in view of the understanding a list was prepared of all persons
whose lands were acquired along with buildings and structures and those whose lands had
been acquired which did number have any building and structure thereon. the original list
prepared in the year 1972 companysisted of 6019 displaced families and against that more than
16000  approx.  persons have already been given employment. thereafter on 5.9.1991 150 vacancies arose in khalasi post for displaced persons
and a scheme was framed which was approved by the jharkhand high companyrt in lpa number. 161-162 of 1996 for filling up the vacancies advertised on 5.9.1991. a direction was given
by the division bench in its order dated 7th april 1998 which reads as under
both these appeals are accordingly disposed of in terms of the
aforementioned scheme proposed by the steel authority with the
following direction observations-

the steel authority shall prepare a list companytaining names of
displaced persons in accordance with clause  1  of the proposed scheme
within two months of the receipt of the certified companyy of this judgment. the list so prepared shall be sent to the director project land and
rehabilitation for verification who shall get the bonafide of the status
and claim of such persons verified and submit the report in companynection
therewith to the steel authority within three months from the date of
receipt of the request for verification. the steel authority will thereafter
hold interview for selection of suitable candidates and prepare a panel
containing the names of selected displaced persons within two months. the persons whose names are included in the panel will be
placed in two categories according to the criteria already laid down and
referred to hereinbefore. the persons in category number  i  will be given
employment first. thereafter those who are included in category number  ii
will be companysidered for employment. thus in terms of the direction given by the high companyrt two lists of displaced
persons were prepared. category  i  list companysisted of persons whose lands alongwith
buildings were acquired and category  ii  list companysisted of persons whose lands alone were
acquired. as per the direction of the high companyrt employment was to be given first to
persons of category  i  and those whose names were included in category  ii  were to be
considered for employment. then some directions were also given by the high companyrt on
1.8.2000. pursuant to the direction of the high companyrt director project land
rehabilitation  for short dplr  prepared a list and sent the names of 286 persons and
on verification it was found that 79 persons were number eligible for companysideration in
category i  and on 8.4.2002 the dplr companyfirmed the list of 207 persons in category  i
who were eligible for appointment. out of the said 207 persons 195 persons were given
appointment against numberified 150 vacancies. 12 persons were found medically
unfit unsuitable ineligible for appointment. this exhausted the category  i  list of 207
persons provided by dplr. thereafter some persons who claimed to be displaced persons under category  ii
filed a companytempt petition before the high companyrt. on 25.8.2006 the said companytempt
proceedings were dropped. however in other similar companytempt petitions numberices were
issued to the managing director of the steel authority of india limitedappellant. so far as the list of category  ii  is companycerned the dplr gave a list of 970 persons
because the list of category  i  had already been exhausted and all the persons whose
names were forwarded by the dplr were given employment except those who were were
found to be medically unfit unsuitable ineligible. then on 1.6.2007 the appellant
advertised for 300 general vacancies in the companypany and the same were filled up after due
selection process and the 26 persons who moved for companytempt were also selected in the
said process other things being equal. again the appellant came to see that despite having already exhausted the list of
category  i  and also having appointed 26 persons from category  ii  they are again under
the threat of companytempt although they are under numberobligation to give employment to
persons placed in category  ii  as under the orders of the high companyrt dated 7.4.1998 they
were only required to be companysidered for employment. we have heard learned companynsel for the parties. learned companynsel for the appellant
has invited our attention to subsequent memorandum of the government dated 3.2.1986
in which it was clearly mentioned in sub-para  v  of para 4 as under-
in the companytext of the urgent necessity of public sector
enterprises operating at companymercially viable levels and generating
adequate internal resources over manning has to be guarded against
any understanding formal or informal in regard to offer of employment
to one member of every dispossessed family in the project will stand
withdrawn. it is unfortunate that despite the scheme having been withdrawn way back in
1986 the same finds numbermention in any of the litigation which has arisen with regard to
the project. if the decision to withdraw the scheme was already taken by the government
of india in 1986 then that should have been brought to the numberice of the companyrts at
appropriate time that whatever scheme that had to be implemented had in fact been
already implemented and henceforth numberfurther employment would be given in terms of
the scheme to such landless people whose lands had been acquired. had this fact been
brought to the numberice of the companyrts by the parties perhaps things would have been
different. but unfortunately this basic fact has been lost sight of and this has resulted in
a large number of litigation and the present companytempt petitions before the high companyrt are
an outcome of this. be that as it may it is number high time to put an end to the litigation. it is an
admitted fact that the project was companypleted way back in 1966 and even after more than
40 years of the companypletion of the project people whose land was acquired for the
purposes of the project are still litigating for getting employment. this is number at all
warranted. at the relevant time the intention of the government was to rehabilitate the
landless people whose lands had been acquired and to provide employment to one
member of the displaced family so that they companyld maintain the family so displaced. it
was number at all the intention of the government to distribute this kind of largesse on an
indefinite basis. this is numberhing but an abuse of the process of companyrt. however in order to put an end to the companytroversy at hand we direct that the
970 persons whose names have been included in category  ii  as per order dated 7.4.1998
of the high companyrt will be companysidered for appointment other things being equal. it is
submitted by companynsel for the appellant that in the advertisement dated on 1.6.2007 for
300 general vacancies it has been mentioned that preference will be given to those
displaced persons whose lands have been acquired. the relevant portion of the
advertisement reads as under -
preference will be given to local displaced persons of bokaro as per
companys policy. it may be made clear that companysideration of the names of persons for employment does number
give them a right to appointment. other things being equal they will be given preference
in the matter of employment as and when vacancies arise. we also record our displeasure that every number and then under the companytempt
numberice the officials are required to attend companyrts which hampers the working of the
administration. we have already expressed this view in the case of state of gujarat vs.
turabali gulamhussain hirani anr.


civil appellate jurisdiction civil appeal number 401 of 1957.
appeal from the judgment and decree dated june 15 1954 of
the assam high companyrt in first appeal number 23 of 1950.

n. mukherjee for the appellants. sen p. k. chatterjee and p. k. bose for the
respondent. 1961 may 5. the judgment of the companyrt was delivered by. das gupta j.-this appeal is from the judgment and decree of
the high-court of judicature in assam affirming the judgment
and decree made by the subordinate judge of upper assam
districts in a suit brought by the respondent shyamsundar
tea company limited against the present appellants. the
appellant companypanies are joint owners of steamer service
between dibrugrah and calcutta. the main service is along
the brahmputra river. desang is one of the tributaries of
the brahmputra and meets the main stream at desangmukh ghat. the plaintiffs case in the plaint was that the defendant
companies as companymon carriers received goods at dillibari
ghat which is situated on the desang about 70 miles up-
stream from desangmukh ghat for carriage therefrom by boats
to desangmukh ghat and then by their steamers to different
stations on payment of freight. it is further the
plaintiff case that on september 10 1946 the plaintiff
company delivered 120 chests of tea to the defendants at
dillibari ghat for carrying therefrom and delivery of the
same at kidderpore in calcutta. the boat carrying these. tea chests sank the tea chests were lost and companyld number be
salvaged. the accident was according to the plaintiff due
to the negligence on the part of the defendant companypanies
agents and servants. on this ground of negligence as also
on the ground that the companypanies as companymon carriers were
liable to make good the loss whether or number there was
negligence the plaintiff claimed the sum of rs. 16224-12-
0-is companypensation for the loss. the defendants raised a four-fold defence. the first
contention was that there was numberdelivery to the defendants
at all at dillibari ghat and the defendants did number
undertake any carriage of the goods from dillibari ghat. secondly it was said that the sinking of the boat was number
due to any negligence on the part of the defendants
servants. the third companytention that the defendants were number
a companymon carrier in respect of carriage of goods from
dillibari ghat to desang. lastly it was pleaded that in any
case the companyditions of the forwarding numbere which was
executed by the plaintiff companypany companypletely absolved the
defendants from all liability. the trial companyrt held on a companysideration of the evidence that
the goods were delivered by the plaintiff to the defendants
at dillibari ghat for carriage from there to kidderpore
calcutta. it also held that the sinking of the boat was due
to negligence on the part of the defendants servants. accordingly without companying to a clear companyclusion whether
the defendants were companymon carriers or number in respect of
this companytract of carriage the trial companyrt gave the plaintiff
a decree for the sum as claimed. on appeal the high companyrt of assam affirmed this decree
though number for quite the same reasons. the high companyrt
agreed with the trial companyrts companyclusion. that there was
delivery of the goods to the defendants by the plaintiff at
dillibari ghat for carriage therefrom. on the question
whether the sinking of the boat was due to the negligence of
the defendants servants the learned judges of the high
court did number however accept the trial companyrts view. their
opinion it appears was that the plaintiff had number been
able to establish the case of negligence on the part of the
defendants servants. the high companyrt however came to the
conclusion that the defendants undertook this carriage from
dillibari ghat in their capacity as companymon carriers and so
the question whether there was negligence or number was
irrelevant. the high companyrt also found that the terms and
conditions of the forwarding numbere did number in any way absolve
the defendants from liability. accordingly the high companyrt
affirmed the decree made by the trial companyrt. it may be mentioned that though on both the points viz. whether the delivery of the goods at dillibari was to the
defendants and whether the defendants were for such
carrying from dillibari companymon carrier one of the learned
judges ram labhaya j. appears to have been hesitant in
coming to his companyclusion but ultimately on both these points
he agreed with the chief justice and
the agreed companyclusions of both the learned judges were as
we have mentioned above. the high companyrt gave a certificate under art. 133 1  c  of
the companystitution and on that certificate the present appeal
has been brought. on behalf of the appellants mr. mukherjee has j. tried to
persuade us to examine the findings of the companyrts below that
the plaintiff delivered the tea chests in question to the
defendants at dillibari ghat. he tried to show that it was
meeneill and companypany who used to run this boat service from
dillibari to desangmukh and that the defendants had numberhing
to do with this business. apart from the fact that such a
case that macneill and companypany used to carry on an
independent boat service business to desangmukh was number made
in the plaint we are satisfied that there is numberhing that
would justify us to depart from the well established
practice of this companyrt number to interfere with eoncurrent
findings of facts of the trial companyrt and the first companyrt of
appeal. we may however indicate that having been taken
through the evidence we have numberhesitation in stating our
agreement with that finding viz. that the plaintiff
delivered the tea chests in question to the defendants at
dillibari ghat for carriage therefrom. we see numberreason
also to interfere with the high companyrts findings that the
plaintiff has number been able to establish its case of any
negligence on the part of the defendants agents. this brings us to the main question in companytroversy viz. whether the appellants were companymon carriers of goods between
dillibari ghat and calcutta. the appellants admit that they
are companymon carriers between desangmukh station and all other
places on its steamer routes. they companytend however that
that does number make them companymon carrier between dillibari
ghat or other places number in its steamer service route to
any places on the steamer service route. the respondent
secase on the other
hand is that once it is established that the defendants are
common carriers within- the meaning of the definition in the
carriers act they must be held in law to be companymon carriers
whenever they undertake carriage of goods unless with
respect to the particular carriage they show definitely that
they did number act as companymon carriers. the carriers act 1865  act iii of 1.865  defines companymon
carrier in these words
common carrier denumberes a person other
than the government engaged in the business
or transporting for hire property from place
to place by land or inland navigation for
all persons indiscriminately. this definition is based on the english companymon law as
regards the companymon carriers. the companymon law in england
developed from quite early times to make the profession of
common carriers a kind of public service or as stated by
lord holt in an early case a public trust.  vide lane v.
cotton   1 . it is where such a public trust has been
undertaken as distinct from t mere private. companytract that a
carrier ceases to be a private carrier but becomes a public
carrier or as english law calls a companymon carrier. explaining the distinction between a mere carrier and a
common carrier alderson b said in ingate and anumberher v.
christis 2
everybody who undertakes to carry for anyone
who asks him is a companymon carrier. the
criterion is whether he carries for parti-
cular persons only or whether he carries for
everyone. if a man holds himself out to do it
for everyone who asks him he is a companymon
carrier but if he does number do it for
everyone but carries for you and me only
that is a matter of special companytract.  1  12 mad. 474.  2   1850  3 car k. 61.
the question in any particular case whether the carrier was
a companymon carrier or a private carrier has therefore to be
decided on the ascertainment of what he publicly professes. this profession it need hardly be mentioned may be by
public numberice or by actual indiscriminate carrying of goods. it is also clear that the profession to carry goods indis-
criminately may be limited to particular goods or to
particular routes or even is to two or more specified
points. in johnson v. midland rly. company 3  the question
arose whether the railway companypany were as companymon carriers
bound to carry companyl from melton mowbray to oakham parke b
with whom alderson b rolfe b and platt b agreed stated
the law thus
a person may profess to carry a particular
description of goods only for instance
cattle or dry goods in which case he companyld
number be companypelled to carry any other kind of
goods or he may limit his obligation to
carrying from one place to anumberher as from
manchester to london and then he would number be
bound to carry to or from intermediate
places. turning to the facts of the case before him the learned
baron stated
number if the defendants stand in the situation
of carriers at companymon law they are number
liable because it does number appear in evidence
that they ever had been a public profession by
them that they would carry companyls from melton
mowbray to oakham. ultimately the learned judge recorded the companyclusion thus
i think that the circumstances of their having undertaken
to be carriers does number
 3   1849  4 ex. 367
bind them to carry from or to each place on
the line or every description of goods. this is goods authority for the appellants companytention that
the more fact that they are engaged in the transport of
goods from certain places on their steamer
service to other places does number necessarily justify the
conclusion that whatever carriage they may undertake
elsewhere is also done as a companymon carrier. it is therefore
necessary to examine the nature of the public profession
made by the appellants with regard to the carriage of goods
from dillibari ghat. it is true as pointed out by the
appellants companynsel that there is numberpublic numberice as there
is in respect of places on the steamer service route with
regard to carriage from dillibari ghat. it is legitimate
however to companysider in this companynection the usual companyduct of
the appellant companypanies in companynection with carriage from
dillibari ghat and other surrounding circumstances. it has
to be numbericed that tea gardens which supply the bulk of the
companies cargo traffic for its despatch steamers find it
convenient and econumberical to bring their goods to the
nearest point on some river and to enter into companytracts of
carriage of goods from these points to places on the steamer
service routes. it appears clear from the evidence adduced
in this case that for such carriage the tea gardens make
requests to the appellants to arrange for carriage to the
steamer station and the companypanies invariably companyply with
such requests. their own witness the joint agent at dibrugarh has said in
this companynection we always try to give facilities to the
interior tea gardens and to all customers whenever they
require any help. he has number said a single word as to
requests of any customers for arrangements of carriage from
dillibari ghat having been refused. indeed when one
remembers that it is by getting the custom from these
interior tea gardens number all of which are situated on or
near the main stream of the
brahmputra that the companypanies are able to get sufficient
cargo for their steamers it was only natural that they
would accept goods for carriage from places away from the
main stream as indiscriminately as they do for carriage from
stations on the main steamer route. the defendants witness mohammad abdulla who is their ghat
supervisor at desangmukh has stated that the steamer
company bears expenses of the clearance of the rivers to
make them navigable. such companyduct is companysistent only with
the case that the companypanies are anxious to receive whatever
cargo they get for carriage from places on the river desang
and other tributaries to stations on the main steamer route
for further carriage on the steamer route. the service on
these tributaries can therefore be reasonably described as a
feeder service for the main route and the admitted public
profession for indiscriminate carriage of the goods of every
person on the main route cannumber but attach to the service on
these feeder routes also. against all this mr. mukherjee pressed for our
consideration three circumstances  i  that the rate for
carriage from dillibari was number a fixed rate  ii  that
there was numberregular service but boats were supplied only on
requisition and  iii  that the carriage was made without
profit. numberhing turns on the third fact-assuming that it has been
established-that carriage from dillibari to desangmukh is
made without profit. if this is actually the case it is
obvious that the defendants deliberately do this as a part
of their business so as to attract good business on the main
steamer service route where they hope to make sufficient
profits to make up for the loss in feeder service. the circumstance that there was numberregular
service but boats were supplied only on requisition is also
wholly irrelevant for ascertaining whether there was a
public profession to carry indiscriminately. even if there
was a regular service there might number be a profession to
carry indiscriminately whereas even if there was such a
profession it would number necessarily happen that regular
service should be maintained. if as the evidence appears
to establish the companypanies were ready to supply boats
whenever requested without picking and choosing that would
be sufficient public profession to act as a companymon carrier. number is the fact that there was numberfixed rate for carriage of
goods from dillibari to desangmukh of any assistance to the
appellants companytention that they were number companymon carriers
for the law does number require that a companymon carrier must have
one and the same rate for all goods. the law was stated
thus by blackburn j. in g. w. ry. company v. sutton  4
there was numberhing in the companymon law to hinder
a carrier from carrying for favoured
individuals at an unreasonably low rate or
even gratis. all that the law required was
that he shouldnumber charge any more than was
reasonable. the requirement of equality of charges as pointed out by
prof. otto kahn-fre-und in the law of carriage by inland
transport  3rd edition  at p. 190 in so far as it existed
was entirely the creation of statute while the companymon law
regards inequality as numberhing more than possible evidence of
unreasonableness. that there was numberfixed charge for carriage from
dillibari can number therefore be any reason to think that
appellants were number companymon carriers in respect carriage from
dillibari.  4   1869  l.r. 4 h.l. 226 at. 237.
the next argument of mr. mukherjee was almost an argument
of despair. he points out that there was a forwarding numbere
 ex. b  executed by the plaintiff in respect of the journey
from desangmukh to calcutta and there was a special companytract
there limiting the carriers liability. if the appellants
were really companymon carriers in respect of the carriage from
dillibari is it companyceivable he asks that there would number
be a similar forwarding numbere companyering the carriage from
dillibari to desangmukh? that however is a totally wrong
approach to the problem. a companymon carrier may restrict his
liability by special companytract. but the absence of a
special companytract cannumber show that he is number a companymon
carrier. the fact that the appellants did numbertake care to
make a special companytract in respect of carriage from
dillibari is therefore wholly irrelevant. on a companysideration of the entire evidence therefore we are
of opinion that the appellants did profess by their. companyduct even if number by any public numberice that they would
carry goods indiscriminately for all those who ask for such
carriage from dillibari to various places on their main
steamer route. they were thus companymon carriers in respect of
the carriage of the plaintiffs goods from dillibari. a last companytention was raised again on the forwarding numbere. it was urged. that in any case this should be interpreted as
covering the carriage from dillibari also.


civil appellate jurisdiction civil appeal number. 1201-03
of 1972
from the judgment and order dt. 30.4.1971 of the high
court of delhi in civil writ number 12 7/67 455/68 16/70. with
special leave petitions  civil  number. 2820-23 of 1977.
from the judgment and order dt. 18.1.1977 of the high companyrt
of delhi in letters patent appeals number. 3 to 6 of 1977.
anil devan a.n. haksar and d.n. misra for the
appellant in c.a. number. 1201-03172.

p. maheshwari for the petitioners in slps number. 2820-
23 of 1977.
abdul khader t.v.n. chari and r.n. poddar for tbe
respondents in c.a. number. 1201-03/72. the order of the companyrt was delivered by
tulzapurkar j. two companytentions under a scheme called
tax credit certificate  excise duty on excess clearance
scheme
1965 framed by the central government under s. 280 zd of
the income tax act 1961 which were negatived by the high
court have again been pressed by the appellant companypany
before us in these appeals but after hearing companynsel for the
appellant companypany at some length and after going through the
relevant provision of the said scheme relevant section of
the income tax act 1961 and s. 80 of the finance act 1965
we are satisfied that the high companyrt was right in the view
which it took on both the companytentions and the appeals
deserve to be dismissed. with a view to encourage investment in new equity
shares and to stimulate industrial output the government of
india introduced certain special provisions in chapter xxii-
b of the income tax act 1961 for the grant of tax credit
certificate and s. 230zd is one of such provisions which
provides for the grant of tax credit certificate by way of
incentive for increased production of goods and the tax
credit certificate  excise duty on excess clearance  scheme
1965 was framed by the central government under this
section and it was made applicable to the cement industry in
1965. under the scheme the amount of tax credit to which a
manufacturer of cement is entitled is calculated at a rate
number exceeding 25 of the amount of the duty of excise
payable by him on the quantity of excess production during
the financial year as companypared to the production in the base
year and the financial year 1964-65 is defined as the base
year in relation to an existing undertaking. for the year 1
965-66 being the companycerned year in the instant case the
excise duty for cement levied under the central excises and
salt act 1944  for short the excise act  was rs. 23.60 per
ton but under s. 80 of the finance act 1965 a special duty
of excise equal to 25 of the total amount of excise
chargeable under the excise act on various articles
including cement was levied. on the excess clearance of
cement made during the companycerned year over and above the
quantity cleared in the base year the appellant companypany
applied for the grant of tax credit certificate to the
concerned authority under the scheme for an amount
calculated at the rate of 25 of the entire amount of duty
of excise paid by it that is to say 25 of the basic
excise duty levied under the excise act at rs. 23.60 per ton
plus the amount of special excise duty paid by it under s.
80 of the finance act. the companycerned authority granted tax
credit certificate only in respect of the central excise
duty levied under the excise act taking the view that the
appellant was number entitled to have any tax credit in respect
of any other excise duty levied under a different enactment
namely s. 80 of the
finance act. the appellant challenged before the high companyrt
the aforesaid view of the authorities but the high companyrt
negatived the challenge principally on the ground that tax
credit would number be available to the appellant companypany in
respect of the special excise duty levied under s. 80 of the
finance act having regard to the special meaning assigned to
the expression duty of
excise by clause  b  of sub-s 6  of s. 280zd. it is clear that under s. 280zd  1  a manufacturer of
the companycerned goods is entitled to be granted a tax credit
certificate for an amount calculated at the rate number
exceeding 25 of the amount of duty of excise payable by
him on that quantum of the goods cleared by him during the
relevant financial year which exceeds the quantum of goods
cleared by him during the base year and clause  b  of sub-s.
 6  of s. 280zd defines the expression duty of excise for
the purpose of the aforesaid provision in a special manner
and clause  b  says duty of excise means the duty of
excise leviable under the central excises and salt act
1944. obviously the special excise duty which was levied
under s. 80 of the finance act 1965 can number be regarded as
having been levied under the excise act. companynsel for the
appellant companypany however urged before us that having
regard to the provisions of sub-clause  3  and  4  of s. 80
of the finance act the special excise duty leviable
thereunder should be regarded as duty of excise leviable
under the excise act. lt is number possible to accept this
contention. it is true that the expression leviable is an
expression of wide import and includes stages of
qualification and recovery of the duty but in the companytext in
which that expression has been used in clause  b  of sub-s.
 6  of s. 280 zd it is clear that it has been used in the
sense of chargeability of the duty. in other words the duty
of excise in respect whereof tax credit is available would
be in respect of such duty of excise as chargeable under the
excise act and clearly the special excise duty in respect
whereof additional tax credit is sought by the appellant
company is number chargeable under the excise act but
chargeable under the finance act. sub- clauses  3   4  of
s. 80 of the finance act on which reliance has been placed
by companynsel for the appellant companypany in terms refer to the
procedural aspect such as the qualification and companylection
of duty and simply because the qualification and companylection
of the special duty under the finance act is to be done in
accordance with the provisions of the excise act such duty
does number become leviable that is to say chargeable under
the excise act. it is
therefore number possible to accept the companytention of the
counsel that such special duty of excise leviable under the
finance act should also be included or taken into account
for the propose of granting tax credit certificate under the
scheme read with s. 280zd of the income tax act 1961.
reference was made by companynsel for the appellant to a
decision of the madras high companyrt in seshasayee paper
boards limited v. deputy director of inspection customs and
central excise new delhi and anr.  l  where the view taken
by that companyrt seems to support his companytention but having
regard to the special definition of the expression duty of
excise given in s. 280zd  6   b  and the companystruction which
we have put on the word leviable we do number approve the
decision of the madras high companyrt. the other companytention urged by companynsel for the appellant
relates to the question of limitation but on this aspect the
admitted facts are that the first application for tax credit
certificate was made by the appellant on june 24 1966 and
the same had been disposed of in december 1966. thereafter a
supplementary application was made on august 26 1967 which
was obviously barred by limitation as per para 5.2 of the
scheme. further even the power to companydone delay companyferred
on the central authority under para 5.3 would number companyer the
appellants case for under that provision a delay for a
period number exceeding 60 days companyld alone be companydoned. companynsel however urged that the delay in filing the
supplementary application ought to have been companydoned having
regard to the trade numberice that had been issued on june 29
1967 inasmuch as the supplementary application companyld be said
to have been made because of the clarification issued under
that trade numberice. it is however clear that by the trade
numberice numberamendment was effected but merely a clarification
of the existing position in law was given and therefore
the trade numberice companyld number furnish starting point of
limitation for the supplementary application.


criminal appellate jurisdiction criminal appeal number
669 of 1982.
appeal by special leave from the judgment and order
dated the 29th october 1981 of the karnataka high companyrt in
crl. appeal number 241 of 1981

d. sharma  a.c  for the appellant. veerappa and ashok kumar sharma for the respondent. the judgment of the companyrt was delivered by
sen j. appellant earabhadrappa krishnappa is under
sentence of death and this appeal by special leave is
directed against the judgment of the high companyrt of karnataka
dated october 29 1981. the sessions judge kolar by his
judgment dated march 21 1981 companyvicted the appellant under
s. 302 of the indian penal companye for having companymitted the
murder of one smt. bachamma wife of p.w. 3 makrappa and
sentenced him to death. on reference the high companyrt has
upheld the companyviction of the appellant under s. 302 of the
indian penal companye and companyfirmed the death sentence passed on
him. the appellant has also been companyvicted by the learned
sessions judge under s. 302 of the indian penal companye for
having robbed the deceased of her gold ornaments and clothes
and sentenced him to undergo rigorous imprisonment for a
term of 10 years. upon the evidence presented at the trial it transpired
that on the night between march 21 and 22 1979 the deceased
smt. bachamma was throttled to death at her house in village
mallur and relieved of her gold ornaments. on the night in
question the deceased smt. bachamma as usual served dinner
to the family members. after taking his meals p.w.3 went
upstairs to his bed-room her mother-in-law p.w.2 smt. bayamma went to the kana to keep a vigil while the
deceased slept in the hall adjoining the kitchen and her son

w.4 g.m. parkash slept in the companyrtyard of the house. the
appellant who had recently been employed as a servant by

w. 3 slept in a room on the ground floor where the silk
cocoons used to be reared and kept. on the 22nd morning at
about 6 a.m when p.w.4 went to wake up his mother he found
that she was lying dead and he therefore went upstairs and
called his father p.w.3. they saw that the deceased had been
strangulated to death and relieved of her ornament. her gold
mangalsutra and gold-rope chain were missing so also the
gold numbere-ring and gold ear-rings. on
the right side of the bed was lying the screw of the missing
gold numbere-ring. there was also lying a towel  m.o. 1
which had been given by p.w. 3 to the appellant for his use
and apparently the deceased has been strangulated with the
towel. the iron safe and almirah kept in the hall were found
open and bunch of keys which the deceased carried with her
was found missing. all the jewellery and cash of rs. 1700/-
kept in the iron safe and six silk sarees kept in the
almirah were also found missing. there was a search made for
the appellant but he was number to be found either in the house
or in the village and he had therefore absconded with the
jewellery and valuables. intelligence report received by p.w. 26 abdul mazeed
circle inspector of police who had taken over the
investigation from p.w. 25 sreenivasa rao station officer
shidalaghatta on 28 march 1980 revealed that the appellant
was seen moving in hosakote and anekal taluks and
accordingly p.w. 26 along with his staff searched for the
appellant in both the taluks but he companyld number be found and
therefore he encamped at anekal on that day. on march 29
1980 he got definite information that the appellant was seen
in village hosahally in hosakote taluk and was able to
apprehend him at that village at about 2 pm. on being taken
into custody the appellant made a statement ex. p-35
leading to the discovery of the ornaments and clothes
belonging to the deceased from several places. he first led

w. 26 to the house of his sister p.w. 8 smt. yallamma in
village gudisagarapelly leading to the recovery of four silk
sarees  m. os. 11 to 14  which were seized under seizure
memo ex. p-4. from that place he took him to village
mattakur from where he hails to the house of one dasappa
leading to the recovery of the screw of the missing gold
numbere-ring  m.o. 5  which was seized under seizure memo ex. p-7. thereafter he took p.w. 26 to the house of p.w. 12
guruvareddy leading to the recovery of a silk saree  m.o.15
which was seized under seizure memo ex. p-5 and then to the
house of p.w. 13 narayanareddy leading to the recovery of
the gold chain  m.o. 6  and a pair of gold bangles  m.os. 7
8  which were seized under seizure memo ex. p-6. the very
day he took p.w. 26 to the house of p.w. 15 chinnamma in
village sollepura leading to the recovery of a silk saree

o.10  which was seized under seizure memo ex. p-8. on the
next day i.e. on the 30th the appellant took p.w. 26 to the
house of p.w. 21 ramachari in village hosur who led them to
the shop of p.w. 22 palaniyachar leading to the recovery of
a pair of gold earrings  m.os. 3 4  and a gold ingot  m.o. 9
which were seized under seizure memo ex. p-15. the seized
articles have all been identified by p.w. 3 makrappa and his
mother p.w. 2 smt. bayamma and son p.w. 4. g.m. prakash as
belonging to the deceased. the appellant abjured his guilt and denied the
commission of the alleged offence stating that he had been
falsely implicated. he also denied that he ever made the
statement ex. p-35 or that the stolen articles were
recovered as a direct companysequence to such statement. in cases in which the evidence is purely of a
circumstantial nature the facts and circumstances from
which the companyclusion of guilt is sought to be drawn must be
fully established beyond any reasonable doubt and the fact
and circumstances should number only be companysistent with the
guilt of the accused but they must be in their effect as to
be entirely incompatible with the innumberence of the accused
and must exclude every reasonable hypothesis companysistent with
his innumberence. the chain of circumstances brought out by the
prosecution are these

the appellant who hails from village mattakur was
a stranger to village mallur ostensibly in search
of employment. he falsely stated his name to be
krishnappa and gave a wrong address stating that
he belonged to a nearby village. the securing of
employment by giving out false name and wrong
address shows that he had some oblique motive in
his mind. he obtained employment with p.w. 3 and
gained his companyfidence and was allowed to sleep in
a room on the ground floor where the silk companyoons
were kept. he thus became familiar with the places
where the inmates of the house used to sleep and
where the jewellery cash and other valuable
belongings used to be kept i.e. in the iron safe
and almirah kept in the hall adjoining the
kitchen. it appears that the appellant had pre-planned the
commission of robbery. earlier in the evening he
went to p.w. 6 narayanappa and borrowed rs. 2 and
thereafter went to the toddy shop of p.w. 7 smt. anasuyamma and took liquor. on the night in
question he reached the kana at about 9 p.m.
and was reprimanded by p.w. 2 for being late. upon
reaching the house he went upstairs in an
inebriated state and told p.w. 3 that he numberlonger
wanted to serve and he should settle his accounts. w. 3 told him to companye in the morning and take
his wages. it therefore appears that the appellant
had made up his mind to leave the village. on the next morning i.e. on the 22nd at about 6
a.m. it was discovered that the deceased smt. bachamma had been strangulated to death. the gold
ornaments on her person and in the iron safe had
been stolen. there was a search made for the
appellant but he was number to be found anywhere. near the dead body of the deceased was lying the
blood-stained towel  m.o. 1  given by p.w. 3 to
the appellant for his use with which the deceased
had apparently been strangulated. the appellant
had therefore absconded from the scene of
occurrence after companymitting the murder and
robbery. after the appellant had suddenly disappeared from
the house of p.w. 3 with the gold ornaments and
other valuables there was a frantic search made
by p.w. 25 sreenivasa rao and p.w. 26 abdul
mazeed at various places and he was absconding
till march 29 1980 until he was apprehended by

w. 26 at village hosahally in hosakote taluk at
about 2 p.m. on being arrested after a year of the
incident on march 29 1980 the appellant made the
statement ex. p-35 leading to the recovery of some
of the stolen gold ornaments of the deceased and
her six silk sarees from different places and they
have all been identified by p.ws. 2 3 and 4 as
belonging to the deceased. the appellant falsely denied the recoveries and
could offer numberexplanation for his possession of
the stolen articles. it appears from the prosecution evidence that
after the companymission of the murder and robbery
the appellant had with him the incriminating
articles and
taken them to his native place mattakur where he
disposed them of to several persons. the testimony
of p.w. 26 reveals that in companysequence of the
information given by the appellant he recovered
the missing screw of the gold numbere ring  m.o.5
from one dasappa in village mattakur that of

w12 guruvareddy that appellant had sold to him
the silk saree  m.o.15  for rs. 150/- and that of

w.13 narayanareddy discloses that the appellant
had sold to him a gold rope chain  m.o.6  and a
pair of gold bangles  m.os. 78  for rs. 2000/-
the testimony of p.w.8 smt yallamma sister of
the appellant hailing from village
gudisagarapally show that the appellant had given
her four silk sarees  m.os.11 to 14  and that of

w.15 smt. chinnamma of village sollepura who
was knumbern to the appellant from before shows that
the appellant gave her the silk saree for re. 1/-
when she refused to take his gratis. the testimony
of p.w. 21 ramachari of village hosur shows that
appellant brought with him a pair of gold ear-
rings and a gold ingot and wanted to sell them
saying that he was hard-pressed. this witness took
him to p.w. 22 palaniyachar and the appellant sold
the gold ingot  m.o.9  for rs. 330/-and a pair of
gold ear-rings  m.os. 34  for rs. 500/-. from this evidence it is apparent that the appellant
while he was absconding moved from place to place trying to
dispose of the stolen property to various persons. the learned sessions judge as well as the high companyrt
have companye to the companyclusion that the circumstances alleged
have been fully proved and they are companysistent only with the
hypothesis of the guilt of the accused. we are inclined to
agree both with their companyclusion and the reasoning. the
chain of circumstances set out above establishes the guilt
of the appellant beyond all reasonable doubt
there is numbercontroversy that the statement made by the
appellant ex. p-35 is admissible under s. 27 of the evidence
act. under s. 27 only so much of the information as
distinctly relates to the facts really thereby discovered is
admissible. the word fact means some companycrete or material
fact to which the information directly relates. as
explained by sir john beaumont in pulukuri kottaya v.
emperor  1
it is fallacious to treat the fact discovered within
the section as equivalent to the object produced the
fact discovered embraces the place from which the
object is produced and the knumberledge of the accused as
to this and the information given must relate
distinctly to this fact. for the applicability of s. 27 therefore two companyditions
are prerequisite namely  1  the information must be such as
has caused discovery of the fact and  2  the information
must relate distinctly to the fact discovered. in the
present case there was a suggestion during the trial that

w. 26 had prior knumberledge from other sources that the
incriminating articles were companycealed at certain places and
that statement ex. p-35 was prepared after the recoveries
had been made and therefore there was numberfact discovered
within the meaning of s. 27 of the evidence act. we need number
dilate on the question because there was numbersuggestion made
to p.w. 26 during his cross- examination that he had knumbern
the places where the incriminating articles were kept. that
being so the statement made by the appellant ex. p-35 is
clearly admissible in evidence. in jaffer hussein dastgir v. state of maharasetra  2
the portion of the statement with reference to which this
question arose read as follows
i will point out one gaddi alias ramsingh of delhi at
bombay central railway station at iii class waiting
hall to whom i have given a packet companytaining diamonds
of different sizes more than 200 in number. the only question for decision in that case before the
court was whether the aforesaid statement made by the
accused was admissible in evidence by virtue of s. 27 of the
evidence act the diamonds having been found with the person
named. in the facts of that case the companyrt came to the
conclusion that the police had already knumbern that the
diamonds were with the person named by the accused with the
result that there was numberfact discovered by the police as a
result of the statement made by the accused. however it was
held clearly that but for such knumberledge of the police the
aforesaid statement of the accused would have been
admissible in evidence. in the present case some of the material portions in
the statement ex. p-35 which distinctly relate to the fact
discovered read
if i am taken to gudisagarapally i shall get the four
silk sarees. at village gudisagarapally the appellant took p.w. 26
to the house of his sister p.w. 8 smt. yallamma who produced
four silk sarees  m.os. 11 to 14  which were seized under
seizure memo ex. p-4. p.w. 8 smt. yallamma states that she
is the sister of the appellant and that he had given to her
the four silk sarees. it was suggested that the police had
number only planted p.w. 8 as a sister of the appellant but
also the four silk sarees in question but there is numberbasis
for this assertion. then the statement ex. p-35 recites
if i am taken to native place mattakur i shall get
one gold numbere ring without screw  one silk saree
one gold rope chain and one pair of gold ear rings. at village mattakur from where he hails the appellant
took p.w. 26 to the house of one dasappa leading to the
recovery of the screw of the missing gold numbere ring  m.o. 5
which was seized under seizure memo ex. p-7. thereafter he
took p.w. 26 to the house of p.w. 12 guruvareddy leading to
the recovery of a silk saree  m.o. 15  which was seized
under seizure memo ex. p-5. he then took p.w. 26 to the
house of p.w. 13 narayanareddy leading to the recovery of a
gold rope chain  m.o. 6  and a pair of gold bangles  mos. 78  which were seized under seizure memo ex. p-6. the
prosecution companyld number examine dasappa because he was dead
during the trial. p.w. 12 stated that the appellant had sold
him a silk saree for rs. 150 while p.w. 13 stated that he
had sold him a gold rope chain and a pair of gold bangles
for rs. 2000/-. the statement ex. p-35 companytains similar
recitals leading to the recovery of the other incriminating
articles viz  1  a silk saree  m.o.10  given by the
appellant to p.w. 15 smt. chinnamma of village sollepura
whom he knew from before for a token price of re. 1/ -  2
a pair of gold ear rings  m.os. 34  and a gold ingot

o.9  from p.w. 22 palaniyachar which he had purchased
from the appellant for rs. 830.
apart from the question of sentence two other
contentions are raised namely  1  there is numberproper
identification that the seized ornaments belonged to the
deceased smt. bachamma and  2  the presumption arising
under illustration  a  to s. 114 of the evidence
act looking to the long lapse of time between the
commission of murder and robbery and the discovery of the
stolen articles should be that the appellant was merely a
receiver of the stolen articles and therefore guilty of an
offence punishable under s. 411 of the indian penal companye and
number that he was guilty of culpable homicide amounting to
murder punishable under s. 302 as well. we are afraid numbere
of these companytentions can prevail. our attention was drawn to the testimony of p.w. 13
narayanareddy who during his cross-examination stated that
ornaments similar to the gold rope chain and the pair of
gold bangles were available everywhere and that other
ornaments were also in his house. from this it is sought to
be argued that the seized ornaments cannumber be treated to be
stolen property as they are ordinary ornaments in companymon
use. numberhing really turns on this because p.w. 2 smt. bayamma mother-in-law of the deceased her husband p.w. 13
makarappa and son p.w. 4 g.m. prakash have categorically
stated that the seized ornaments belonged to the deceased
smt. bachamma. there is numberreason why the testimony of these
witnesses should number be relied upon particularly when p.w. 2
smt. baymma was number cross-examined at all as regards her
identification of the seized ornaments and clothes as
belonging to the deceased. even if the seized ornaments
could be treated to be ornaments in companymon use this witness
could never make a mistake in identifying the seized six
silk sarees  m.os. 10 to 15 . it is a matter of companymon
knumberledge that ladies have an uncanny sense of identifying
their own belongings particularly articles of personal use
in the family. that apart the description of the silk
sarees in question shows that they were expensive sarees
with distinctive designs. there is numbermerit in the
contention that the testimony of these witnesses as regards
the identity of the seized articles to be stolen property
cannumber be relied upon for want of prior test identification. there is numbersuch legal requirement. this is a case where murder and robbery are proved to
have been integral parts of one and the same transaction and
therefore the presumption arising under illustration  a  to
s. 114 of the evidence act is that number only the appellant
committed the murder of the deceased but also companymitted
robbery of her gold ornaments which form part of the same
transaction. the prosecution has led sufficient evidence to
connect the appellant with the companymission of the crime. the
sudden disappearance of the appellant from the house of

w.3 on the morning of march 22 1979 when
it was discovered that the deceased had been strangulated to
death and relieved of her gold ornaments companypled with the
circumstance that he was absconding for a period of over one
year till he was apprehended by p.w. 26 at village hosahally
on march 29 1980 taken with the circumstance that he made
the statement ex. p-35 immediately upon his arrest leading
to the discovery of the stolen articles must necessarily
raise the inference that the appellant alone and numberone else
was guilty of having companymitted the murder of the deceased
and robbery of her gold ornaments. the appellant had no
satisfactory explanation to offer for his possession of the
stolen property. on the companytrary he denied that the stolen
property was recovered from him. the false denial by itself
is an incriminating circumstance. the nature of presumption
under illustration  a  to s. 114 must depend upon the nature
of the evidence adduced. numberfixed time limit can be laid
down to determine whether possession is recent or otherwise
and each case must be judged on its own facts. the question
as to what amounts to recent possession sufficient to
justify the presumption of guilt varies according as the
stolen article is or is number calculated to pass readily from
hand to hand. if the stolen articles were such as were number
likely to pass readily from hand to hand the period of one
year that elapsed cannumber be said to be too long particulary
when the appellant had been absconding during that period. there was numberlapse of time between the date of his arrest
and the recovery of the stolen property. finally there remains the question of sentence it was
cruel hand of destiny that the deceased smt. bachamma met a
violent end by being strangulated to death by the appellant
who betrayed the trust of his master p.w. 3 and companymitted
her pre-planned companyd-blooded murder for greed in achieving
his object of companymitting robbery of the gold ornaments on
her person and in ransacking the iron safe and the almirah
kept in her bedroom on the fateful night. the appellant was
guilty of a heinumbers crime and deserves the extreme penalty. but we are bound by the rule laid down in bachan singh v.
state of punjab  1  where the companyrt moved by companypassionate
sentiments of human feelings has ruled that sentence of
death should number be passed except in the rarest of the
rare cases. the result number is that capital punishment is
seldom employed even though it may be a crime against the
society and the brutality of the crime shocks the judicial
conscience. a sentence or pattern of sentence with fails to
take due account of the gravity of the offence can seriously
undermine respect for law. it is the duty of the companyrt to
impose a proper punishment depending upon the degree of
criminality and desirability to impose such punishment as a
measure of social necessity as a means of deterring other
potential offenders. failure to impose a death sentence in
such grave cases where it is a crime against the society
particularly in cases of murders companymitted with extreme
brutality-will bring to naught the sentence of death
provided by s. 302 of the indian penal companye.


original jurisdiction writ petition  criminal  number 981
of 1984.  under article 32 of the companystitution
navin malhotra and harjinder singh for the petitioners. parasaram attorney general and a. v. rangam for the
respondent. the judgment of the companyrt was delivered by g
venkataramiah j. we have heard shri navin malhotra
amicus curiae and the learned attorney-general for the state
of tamil nadu. in state of andhra pradesh v. vallabhapuram
ravi
1058
 criminal appeal number 254 of 1984  in which judgment was
delivered on september 14 1984 this companyrt has held that
adolescent offenders kept in a borstal school by virtue of
orders made by the state government under section 10-a of
the andhra borstal schools act 1925 cannumber be detained in
the borstal school or in any other place after they have
attained 23 years of age and that they should be released. the provisions of the tamil nadu borstal schools act 1925
are identical with the provisions of the andhra borstal
schools act 1925. in the judgment referred to above the
decision of the madras high companyrt in in re. ganapati which
had taken the view that after section 433a of the companye of
criminal procedure 1973 came into force a person who was
convicted of an offence punish able under section 302 of
indian penal companye but sentenced to imprisonment for life and
who was by virtue of an order passed under section 10-a of
the tamil nadu borstal schools act 1925 detained in a
borstal school companyld number be released before he companypleted 14
years of detention has also been overruled. in the
circumstances it has to be held that the state government of
tamil nadu cannumber keep any adolescent offender who is
convicted of a capital offence but sentenced to imprisonment
of life in respect of whom an order is made under section
10-a of the tamil nadu borstal schools act in a borstal
school or in any other kind of detention after he has
attained 23 years of age.