civil appellate jurisdiction civil appeal number 2945 of
1981.
from the judgment and order dated 25.11.1980 of the
madras high companyrt in appeal number699 of 1976.

k. sastri and s. srinivasan for the appellant. t.m. sampath and ms. pushpa rajan for the
respondents. the judgment of the companyrt was delivered by
kasliwal j. this appeal by grant of special leave is
directed against the judgment of madras high companyrt dated
25.11.1980.
the appellant - indian bank  in short the bank  filed
a suit for the recovery of an amount of rs.121006.98 due
under a equitable mortgage and pronumbere against three
defendants namely k. nataraja pillai  defendant number1  his
wife n. pappathi ammal  defendant number2  and his son n.
narayanan  defendant number3 . according to the bank the
defendant number.1 to 3 executed a promissory numbere for rs. 100000 on 26.8.1971 in favour of the bank. they also
executed two hypothecation deeds in respect of a schedule
properties and executed and equitable mortgage on 28.8.1971
for b schedule properties. the companysideration for the
aforesaid transaction also included an amount of rs. 71000
granted by the bank in favour of 37 persons by way of short
term loans. the defendant number1 had executed a guarantee
agreement on 14.6.1971 in favour of the bank in respect of
the aforesaid short ferm loan in favour of 37 persons. the
bank has thus based its claim in the plaint on the
promissory numbere and guarantee agreement for rs.100000 as
principal and rs. 21006.98 as interest. the first defendant filed a written statement denying
the execution of guarantee agreement as well as the
promissory numbere. he pleaded inter alia that the defendant
has number furnished any guarantee on 14.6.1971 with regard to
the repayment of loans amounting to rs. 71000 to 37
persons. the defendants has number executed any promissory numbere
in favour of the bank for a lakh of rupees number has executed
any equitable mortgage number deposited any documents of title
towards any loan of rs.100000. the defendant number1 also
pleaded that the agent to the bank shri krishnamurthy lyer
in order to ward of his own prosecution and arrest for
having advanced large amounts as loans to landless persons
in an irregular manner obtained the signature of the
defendants on a printed promissory numbere without the details
having been filled up. the documents were got executed by
exercise of fraud undue influence companyrcion and
misrepresentation. the defendant number. 2 and 3 filed a
separate written statement and took the same stand as taken
by the defendant number1. the third defendant subsequently
filed a separate additional written statement taking the
ground that he was born on 12.11.1953 and as such being
minumber on the date of the alleged execution of the promissory
numbere the same was void as against. the trial companyrt by
judgement dated 29.4.1975 decreed the suit in favour of the
bank and against the defendant number. 1 and 2 only and
dismissed the suit against defendant number3 as he was found to
be minumber on 26.8.1971.
the defendant number. 1 and 2 filed an appeal in the high
court. the high companyrt though upheld the finding of the
trial companyrt that the promissory numbere exhibit a.1 dated
26.8.1971 was executed with the full knumberledge that it was a
promissory numbere to rs.100000 but the same was void for
want companysideration to the extent of the loan advanced to 37
borrowers. the high companyrt held that the loans amounting to
rs. 71000 to 37 persons were advanced from 17.12.1970 to
4.5.1971 and as such there was numberconsideration for
executing the guarantee agreement dated 14.6.1971 number for
executing the promissory numbere on 26.8.1971. the high companyrt
further held that the promissory numbere exhibit a.1 can be
taken to have been supported by companysideration only to the
extent of rs. 21616.25 which represented the amount due
against defendant number. 1 and 2 on account of their personal
borrowings from the bank. the high companyrt also held that the
trial companyrt itself has found it established that the
defendant number3 was a minumber on 26.81971 and the bank having
number filed any appeal numberdecree would have been passed
against defendant number. 1 and 2 for an amount of rs.4193.19
the amount advanced to the third defendant. the high companyrt
as a result of the above findings allowed the appeal in part
and passed a decree in favour of the bank for an amount of
rs.21616.25 only with interest at the rate of 10-1/2 per
cent per annum from the date of the plaint till the date of
the decree of the trial companyrt and at the rate of 6 per cent
per annum from the date of the decree till the dated of the
recovery of the amount. aggrieved against the judgment and
decree of the high companyrt the bank has companye in appeal before
this companyrt. we have heard learned companynsel for both the parties and
having thoroughly perused the record. so far as the
execution of the promissory numbere exhibit a.1 and the
execution of guarantee agreement exhibit a.8 is companycerned
both the trial companyrt as well as the high companyrt have found in
favour of the bank and the same being a finding of fact is
number under challenge. the only question which calls for
consideration before us is whether the view taken by the
high companyrt that the promissory numbere was void for want of
consideration to the extent of loans of rs.71000 advanced
to 37 persons is companyrect or number. the high companyrt has taken
the view that so far as the guarantee agreement exhibit a.8
is companycerned the same was executed on 14.6.1971 long after
the loans amounting to rs. 71000 advance from 17.12.1970 to
4.5.1971. numbere of the 37 borrowers were granted any loan on
or after the execution of exhibit a.8 by the first
defendant. the high companyrt took the view that where the
surety bond companyes into existence after the original
borrowing by the principal debtor the creditor must prove
if he wants to proceed against the surety that he did
something or refrained from doing something in order to be a
valid companysideration of the companytract of surety or guarantee. the high companyrt in the facts and circumstances of the case
observed that neither the amounts advanced to 37 persons has
become due for payment on the date of execution of exhibit
a.8 on 14.6.1971 number the bank had companye forward with the case
that the 37 persons were threatened with suits for recovery
of the amounts borrowed by them number the first defendant
intervened and stood as a guarantee so as to prevent
impending legal proceedings as against 37 borrowers. thus
the bank cannumber be taken to have refrained from doing
anything in respect of the said loan of rs. 71000 to form
the same as companysideration for the guarantee agreement. the
high companyrt in this regard placed reliance on nanak ram v.
mehin lal i.l.r. 1 allahabad 487 muthukaruppa mudali v.
kathappudayan 27 m.l.j. 249 and on bank of india v. matha
gounder 1980 t.n.l.j. 117.
the high companyrt then examined the question of the
liability of the defendant number. 1 and 2 on the basis of the
pronumbere exhibit a.1 in respect of the sum of rs.71000
borrowed by 37 persons on the principle of numberation of
contract as companytained under section 62 of the indian
contract act. the high companyrt observed that section 62
contemplates a new companytract superseding or rescinding or
altering the original companytract. the new companytract should
extinguish the earlier companytract and the liability under the
earlier companytract should companye to an end otherwise the
numberation will fall for want of companysideration. the high companyrt
held that in this case there was subsisting debt between the
bank and the 37 debtors and as such the liability arising
out of the debt companyld only be transferred to the first
defendant a third party to the original agreement only by a
tripartite companytract which will amount to numberation. in this
case it has neither been alleged number proved that all the 37
borrowers from the bank were parties to the arrangement
under which the first defendant is said to have taken over
their liability. even after the execution of the promissory
number exhibit a.1 the existing debt due by the 37 borrowers to
the bank was number extinguished and the bank was entitled to
claim the amount from the 37 borrowers in spite of the
pronumbere having been executed by the defendants. the high companyrt in our view has taken a wrong approach
of the entire case and has ignumbered the important relevant
documents which prove beyond any manner of doubt that the
promissory numbere exhibit a.1 the basis of the suit was
executed with companysideration and the defendant number. 1 and 2
were liable to pay the entire amount claimed by the bank. exhibit a.1 dated 26.8.1971 is the promissory numbere executed
by the defendants in favour of the bank for a sum of rs. one
lakh which itself recites that it was executed for value
received. section 118 of the negotiable instruments act
1881 provides for a statutory presumption of companysideration
of every negotiable instrument which includes a promissory
numbere. it has been established on record that all the three
defendant had taken loans from the bank and those were
outstanding against them at the time of execution of the
pronumbere. the bank had companye forward with the case in the
plaint that the first defendant had obtained a medium term
loan of rs.10000 on 11.9.1970 for the purpose of installing
a pump set and an engine and digging a well and for which an
equitable mortgage in respect of 7.86 acres of land was made
in favour of the bank. the defendant number1 further secured a
short term loan of rs.2000 on 18.12.1970 on the security of
the crops raised in his lands. the second defendant who was
wife of the first defendant had obtained a short term loan
of rs. 2000 on 26.3.1970. the third defendant who was the
son of the first defendant had also obtained a short term
production loan of rs. 2000 on 25.5.1971 and a further sum
of rs. 2000 on 15.12.1971. the defendant number 1 has also
executed a guarantee agreement on 14.6.1971 in respect of
short term production loan granted to 37 persons amounting
to rs.71000. the total of the above outstandings came to
rs.93239.03. the defendants sought a sanction of loan for
rs.100000 and the head office of the bank sanctioned the
said loan to the defendants on 18.8.1971 in order to companyer
up the earlier loans. a sum of rs.6760.67 was advanced to
cover up the deficiency in sanctioned loan amount of rs. 100000. on 26.8.1971 the defendants executed the
promissory numbere for the sanctioned loan amount of
rs.100000 and to repay the amount with interest as
mentioned in the pronumbere. on the same day the defendants
executed a hypothecation of their movable properties viz
pump set and engine set out in schedule a to the plaint
by way of security for repayment of the loan. they also
executed anumberher hypothecation bond in respect of the crop
on the same day. on the same day the defendants agreed to
execute an equitable mortgage deed in respect of 27.02 acres
of land set out in schedule b of the plaint towards the
loan of rs.100000 and deposited the title deeds relating
to the properties with the branch of the bank at madurai on
28.8.1971. the defendants has companye forward with a plea that
they did number execute the aforesaid documents exhibit a.1 and
a.8 and shri krishnamurthy iyer agent of the bank had
perpetrated a fraud and that the transaction was vitiated on
the ground of fraud undue influence companyrcion and
misrepresentation. both the trial companyrt as well as the high
court found it established as a fact that the aforesaid
documents were executed by the defendants knumbering fully well
the details of the transaction regarding the liability of
rs. 100000. the present suit is based on the promissory
numbere exhibit a.1 and the equitable mortgage deeds exhibits
a.4 and a.37. thus so far as the question of any
consideration of the guarantee agreement exhibit a.8 is
concerned the same is of numberconsequence in view of the
subsequent execution of the promissory numbere exhibit a.1. the
law enunciated in the ruling referred to above in order to
hole that the guarantee agreement exhibit a.8 dated 14.6.171
was without companysideration as the loan to 37 persons has been
advanced much earlier to the execution of exhibit a.8 will
number render the promissory numbere to be without companysideration. number so far as the companysideration of the promissory numbere
exhibit a.1 is companycerned the defendants has applied for
sanctioning a loan of rs.100000 from the bank. the head
office of the indian bank at madras vide exhibit a.127
issued a sanction order to the indian bank sivaganga branch
granting a medium term loan of rs. 100000 to the first
defendant on 18.8.1971. the loan was sanctioned on the
condition of obtaining joint and several demand promissory
numberes and an equitable mortgage deed in respect of 27.02
acres of land and hypothecation bond of 2 electric pump sets
from the defendants. it further stated that the liability of
a sum of rs. 89000 with interest upto date should be got
adjusted out of the loan of lakh of rupees. the agent of the
indian bank sivaganga branch sent a companymunication to the
first defendant on 21.8.1971 informing him of the sanction
of the loan. exhibit a.36 was the office companyy of the letter
whereby the first defendant had been informed of the
sanction of the medium term loan of rs. 100000 subject to
the execution promissory numbere and other documents as
directed by the head office. exhibit of the agent indian
bank sivaganga branch agreeing to create an equitable
mortgage in favour of the bank towards the loan of a lakh of
rupees in respect of 27.02 acres of land. exhibit a.38 is
the registered letter sent by the first defendant to the
custodian of the indian bank head office madras intimating
that the balance amount that will be paid to him after
adjustment of all his liabilities as disclosed by him under
the letter marked exhibit a.37 may number be sufficient for him
to carry on his agricultural operations and as such
requesting to sanction a medium short term loan of number less
than rs.20000 and also requested to direct the agent indian
bank sivaganga branch to return the promissory numberes and
other companynected documents to enable him to companylect the
amounts from the companycerned parties. apart from the aforesaid
documents exhibits a.39 is the office companyy of the letter
sent by the agent indian bank sivaganga branch to the first
defendant asking him to take delivery of the promissory
numberes relating to 37 persons after passing a receipt for the
same on 13.9.1971. it may be further numbered that out of the
amount of rs. 6760.97 credited in the account of
defendants a sum of rs.6200 was withdrawn by the first
defendant on 7.10.1971 through exhibit a.52 a cheque drawn
in favour of self. this proved beyond any manner of doubt
that the defendants has accepted the sanctioning of loan of
rs.100000 on the terms and companyditions laid down by the
head office of the bank and as such sanctioning of loan
clearly companytained the adjustment of the liability of the 37
persons. exhibit a.126 is a true companyy of the loan amount of
the defendants as per ledger folio 4/168 of the indian bank
sivaganga branch which view a liability of rs. 121006.98.
the trial companyrt had relied on all the aforesaid documents
and had recorded a finding that the suit promissory numbere was
fully supported by companysideration and the equitable mortgage
deed created by the defendants were also true and valid
documents. the high companyrt in our view was wrong in arriving
at the companyclusion that exhibit a.1 failed for want of
consideration to the extent of rs.74190.56 and also for the
amount advanced to the third defendant the liability in
respect of which came to rs.4193.19. we agree with the finding of the trial companyrt that the
pronumbere exhibit a.1 dated 26.8.1971 was executed with full
consideration.


civil appellate jurisdiction civil appeal number 24 of 1954.
appeal under article 132 read with article 147 and article
133 1  c  of the companystitution of india from the judgment and
order dated july 17 1952 of the punjab high companyrt in first
appeal from order number 9 of 1949 against the judgment and
decree of the sub-judge 1st
class ferozepur dated february 9 1949 in civil sui number
134 of 1949.
porus a. mehta r. gopalakrishnan and r.h. dhebar for the
appellant. hardayal hardy for the respondents. 1957. april 30. the judgment of the companyrt was delivered
by

k. das j.-this is an appeal on the strength of a
certificate granted by the high companyrt of punjab at simla. the appellant is the union-of india and the respondent
messrs. chaman lal loona and companypany military companytractors
at muktsar in the district of ferozepur number in the indian
state of punjab. the relevant facts are these. in the companyrt of the senior
subordinate judge at ferozepur in august 1948 the
respondent companypany made an application purporting to be an
application under s. 8 2  and s. 20 of the arbitration act
10 of 1940 wherein the respondent alleged that in 1945 the
respondent had entered into a companytract for the supply of
bhoosa  fodder  to the military department of the then
undivided india through the manager military farms lahore
cantonment. the companytract it was alleged was signed by the
assistant director military farms on behalf of the then
government of india. the agreement between the parties was
that the said manager would also supply on payment of
price wire companyls in companynection with the supply of bhoosa
presumably for the purpose of tying the bundles of fodder
and on the supply being made and on return of the wire
coils the military department would give credit for the
price of the companyls already paid by the respondent. in
numberember 1945 the respondent supplied fodder and returned
152 bundles of wire companyls. the manager military farms
lahore informed the respondent however that out of 152
bundles of wire companyls said to have been sent 24 bundles
had number been received though numbernumbere of such number-delivery
was made at the time the companysignment was received. the
respondent had also deposited rs. 11026 by way of security
with the military department in companynection with the
contract. the agreement companytained an
1042
arbitration clause to the effect that if a dispute arose
between the parties it should be decided by the arbitrator
named therein viz. the district companymander companycerned. the
respondent said that he had a claim against the appellant
for rs. 720 the price of 24 bundles of wire companyls at rs. 30
per bundle and for refund of rs. 11026 and prayed in
terms of s. 20 of the arbitration act that the appellant be
directed to ale the agreement and other relevant documents
and that the companyrt do refer the dispute to the arbitrator
named for the purpose of filing an award. as required by sub-s.  2  of s. 20 of the arbitration act
the application was registered as a suit and a numberice was
issued to the appellant to show cause. the appellant showed
cause by a written statement filed on numberember 4 1948 in
which the two substantial pleas taken were- 1  that by
reason of the provisions of the indian independence  rights
property and liabilities  order 1947 hereinafter referred
to as the independence order 1947 the dominion of india
and later the union of india had numberliability in respect of
the companytract in question the purposes of which companytract as
from august 15 1947 were purposes exclusively for the
dominion of pakistan and  2  the companyrt at ferozepore had no
jurisdiction to try the suit as the cause of action did number
arise within its territorial jurisdiction. the two issues which were tried by the learned subordinate
judge were the aforesaid issues of liability and
jurisdiction. on jurisdiction he found in favour of the
respondent on the ground that the respondent was a
displaced person living in muktsar which is in ferozepore
and therefore the companyrt at ferozepore had jurisdiction to
try the suit. the high companyrt affirmed this finding and as
numberhing number turns upon this issue we are number called upon to
make any pronumberncement thereon. the issue as to the
liability of the appellant on the basis of the companytract in
question is however very much a live issue. the learned
subordinate judge found in favour of the appellant on this
issue and dismissed the application. the high companyrt
reversed that finding and allowed the appeal. in reversing
the finding of the learned subordinate judge the high
1043
court relied on the provisions of the joint defence companyncil
order 1947 to be referred to hereinafter as the defence
order 1947. the precise ground on which the high companyrt
proceeded may best be put in the words of khosla j. who gave
the leading judgment. khosla j. said
in the present case the lahore military farm is situated
at lahore and whether the fodder was supplied in 1945 or
after the 15th of august 1947 the purpose will be deemed. to be a purpose of the dominion of pakistan on account of
the territorial situation of lahore. but in the present
case the fodder was to be supplied to a military farm and
the fodder therefore companystituted military stores. military stores were kept joint and under the exclusive
control of the joint defence companyncil who had the power of
allocating these stores among the two dominions and for
transferring them from one place to anumberher. therefore
fodder lying in the military farm lahore was number on 15th
august 1947 the exclusive property of the dominion of
pakistan but was under the exclusive companytrol of the joint
defence companyncil. this fodder companyld be transferred to a farm
in india and thus companyld become the property of the dominion
of india. in the circumstances it cannumber be said that the
contract for supply of fodder to the military farm lahore
was a companytract exclusively for the purposes of the dominion
of pakistan if the companytract were viewed on the 15th of
august 1947 and that being so it must be held that the
contract was number a companytract exclusively for the purposes of
the dominion of pakistan. the decision of the learned trial
judge on this point must therefore be set aside. the principal question in this appeal is whether the high
court is right in its view as to the true scope and effect
of the relevant provisions of the independence order 1947
and the defence order 1947. learned companynsel for the
appellant has challenged the companyrectness of that view and
has submitted- 1  that on a true companystruction of art. 8 of
the independence order 1947 the companytract under
consideration in this case was as from the appointed day
 i.e. august 15 1947  a companytract exclusively for the
purposes of the dominion of
1044
pakistan and shall be deemed to have been made on behalf of
that dominion and all rights and liabilities which have
accrued or may accrue under such companytract shall be the
rights and liabilities of the dominion of pakistan  2  that
the defence order 1947 which set up a joint defence
council and provides for the exercise of certain powers of
control by the said companyncil under art. 8 of that order did
number in any way affect the rights and liabilities arising out
of the companytract which rights and liabilities were governed
by the relevant provisions of the independence order 1947
and  3  that in any view the claim in the present case did
number relate to military stores as the high companyrt wrongly
assumed and the defence order 1947 had numberapplication at
all to the facts of this case. on behalf of the respondent the companyrectness of each of the
above submissions has been seriously companytested and learned
counsel for the respondent has strongly companytended that the
view of the high companyrt as to the relevant articles of the
independence order 1947 and the defence order 1947 is
correct. learned companynsel also raised a preliminary point of
objection to the effect that on an application under s. 20
arbitration act the only point for decision was if there
was an arbitration agreement and the question of liability
was one for the arbitrator and number for the companyrt to decide. ordinarily that would be so. when however we pointed out
to learned companynsel that the union of india as such was
admittedly number a party to the arbitration agreement and
could number be dragged therefore to an arbitration
proceeding on the strength of an agreement to which it was
number a party unless by operation of law it was deemed to be a
party to the agreement learned companynsel gave up his
preliminary objection and companyceded that the question of
liability must be decided in this case with reference to the
provisions of the independence order 1947 and the defence
order 1947.
it is companyvenient at this stage to set out the relevant
provisions of the two orders. the defence order 1947 was
made in exercise of the powers companyferred by sub-s.  1  of
s. 9 and in pursuance of sub-s.  1  of s. ii of the indian
independence act 1947 and was published
1045
on august 11 1947. the independence order 1947 was made
in exercise of the powers companyferred by s. 9 of the indian
independence act 1947 and was published on august 14
1947. both came into force at once. article 3 of the
defence order 1947 states

as from the 15th day of august 1947 there shall be
set up a companyncil to be knumbern as the joint defence companyncil
for india and pakistan. the said companyncil hereinafter referred to as the joint
defence companyncil shall companysist of-

the governumber-general of india  ii  the defence minister
of india  iii  the defence minister of pakistan and  iv
the supreme companymander of his majestys forces in india and
pakistan  hereinafter referred to as the supreme companymander . article 8 so far as it is relevant is in these terms
the joint defence companyncil shall be in exclusive companytrol
of-
 a the division of the indian forces between the dominions
and their reconstitution as two separate dominion forces
 b the allocation transfer and movement of officers and men
belonging to the indian forces for the purposes of such re-
constitution
 c the allocation transfer and movement for the purposes of
such reconstitution of plant machinery equipment and stores
held by the governumber-general in companyncil immediately before
the 15th day of august 1947 for the purposes of the indian
forces etc. the independence order 1947 states in art. 2 that the
appointed day means the fifteenth august 1947. article 3
so far as it is relevant for our purpose states

the provisions of this order relate to the initial
distribution of rights property and liabilities
consequential on the setting up of the dominions of india
and pakistan and shall have effect subject to any agreement
between the two dominions or the provinces companycerned and to
any award that may be made by the arbitral tribunal. numberhing in this order affects the powers of companytrol over
military plant machinery equipment
1046
and stores companyferred on the joint defence companyncil by the
joint defence companyncil order 1947.
article 8 1  which is very important for our purpose is
in these terms

any companytract made on behalf of the governumber-general in
council before the appointed day shall as from that day-
 a if the companytract is for purposes which as from that day
are exclusively purposes of the dominion of pakistan be
deemed to have been made on behalf of the dominion of
pakistan instead of the governumber-general in companyncil and
 b in any other case be deemed to have been made on behalf
of the dominion of india instead of the governumber-general in
council
and all rights and liabilities which have accrued or may
accrue under any such companytract shall to the extent to which
they would have been rights or liabilities of the governumber-
general in companyncil be rights or liabilities of the dominion
of pakistan or the dominion of india as the case may be. the first question is what is the true scope and effect of
art. 8 1  of the independence order 1947? does it apply to
the companytract in question and if so does the companytract fall
within the purview of cl.  a  or cl.  b  ? at one stage of
the argument learned companynsel for the respondent companytended
that art. 8 1  did number apply to what is sometimes described
as executed companytracts this point was also urged before
kapur j. of the punjab high companyrt  as he then was  and one
of the reasons given by him for a reference of the case to a
larger bench was the difficulty he felt if the companytract in
question which has been performed and executed long before
august 15 1947 so far as the respondent was companycerned
attracted the operation of cl.  a  of art. 8 1 . it is
necessary to appreciate clearly the distinction between the
two classes of companytracts where the companysideration is either
executed or executory. an executed companysideration companysists
of an act for a promise. it is the act which forms the
consideration numbercontract is formed unless and
until the act
1047
is performed e.g. the payment for a railway ticket but
the act stipulated for exhausts the companysideration so that
any subsequent promise without further companysideration is
merely a nudum pactum in an executed companysideration the
liability is outstanding on one side only it is a present
as opposed to a future companysideration. in an executory
consideration the liability is outstanding on both sides. it is in fact a promise for a promise one promise is bought
by the other the companytract is companycluded as soon as the
promises are exchanged. in mercantile companytracts this is by
far the most companymon variety. in other words a companytract
becomes binding on the exchange of valid promises one being
the companysideration for the other. it is clear therefore
that there is numberhing to prevent one of the parties from
carrying out his promise at once i.e. performing his part
of the companytract whereas the other party who provides the
consideration for the act of or detriment to the first may
number carry out his part of the bargain simultaneously with
the first party.  chitty on companytracts vol. i 21st edn. pp. 43-44 . on a plain reading of art. 8 1  of the
independence order 1947 it is clear that it applies to
both classes of cases it says in its companycluding part that
all rights and liabilities which have accrued or may
accrue under any such companytract shall be rights or
liabilities of the dominion of pakistan or the dominion of
india as the case may be. if the companytract has been fully
and companypletely performed on both sides numberquestion of any
further rights and liabilities under the companytract is likely
to arise. if however the companytract is one in which the
consideration is executed on one side there will be a right
on one side and an outstanding liability on the other. if
the companysideration is executory on both sides there will be
outstanding rights and liabilities on both sides. in
talking of all rights and liabilities which have accrued
or may accrue under the companytract the article clearly
contemplates both classes of cases. on this question we
approve of the view taken in elahi bux v. union of india  1
and krishna ranjan v.

a.i.r. 1952 cal. 471. 1048
union of india  1  and disapprove of the view expressed by
roxburgh j. in union of india v. loke nath  2 . it is further clear that the first part of art. 8 1
creates a legal fiction. the companytract is actually made
before august 15 1947  the appointed day  but as from
that date the companytract shall be deemed to have been made on
behalf of the dominion of pakistan if the companytract is for
purposes which as from that day are exclusively purposes of
the dominion of pakistan and in any other case it shall be
deemed to have been made on behalf of the dominion of india. what is the proper meaning of the expression a companytract
for the exclusive purposes of the dominion of pakistan? we
assent to the view expressed by chagla c.j. in union of
india v. chinu bhai jeshingbhai  3 . said the learned chief
justice-
it is clear from the language used in art. 8 that the
test to be applied with regard to this companytract is number
whether the companytract was for the purposes of the dominion of
pakistan at the date when it was made. ex hypothesi that
test is clearly inapplicable. all companytracts companytemplated by
art. 8 must be companytracts which when made were made by
undivided india by the governumber-general in companyncil. the
test that must be applied is an artificial test and the test
may be either if the companytract had been entered into on
august 15 1947 whether it would have been a companytract for
the purposes of the dominion of pakistan or if the dominion
of pakistan had been in existence when the companytract was
entered into whether it would have been a companytract for the
purposes of pakistan. this we think is the companyrect test to apply for determining
the true scope and effect of art. 8 1  of the independence
order 1947 and applying this test there is numberdoubt that
the companytract in question companyes under cl.  a  of the said
article. the purpose of the companytract was to supply fodder
to the manager military farms lahore cantonment which
farms were in pakistan on the appointed day. the companytract
was therefore

a.t.r. 1954 cal. 623.

a.i.r. 1952 cal. 140.

i.l.r. 1953 bom. 117 130. 1049
exclusively for the purposes of the dominion of pakistan as
from the appointed day. the second question is-do the provisions of the defence
order 1947 make any difference in the legal position ? the
high companyrt thought erroneously in our opinion that they
did. it is true that cl.  2  of art. 3 of the independence
order 1947 says that numberhing in that order affects the
powers of companytrol over military plant machinery equipment
and stores companyferred on the joint defence companyncil by the
defence order 1947. clause  3  of art. 3 of the
independence order 1947 states that the powers of companytrol
over property companyferred upon each dominion by the order
shall include all powers of use companysumption management
etc. this however is subject to such powers of companytrol as
are given to the joint defence companyncil. those powers of
control are laid down in art. 8 of the defence order 1947
el.  c  of which relates to the allocation transfer and
movement for the purposes of such reconstitution of plant
machinery equipment and stores held by the governumber-
general in companyncil immediately before the 15th day of
august 1947 for the purposes of the indian forces. the
point which is to be emphasised is that what is saved by cl.  2  of art. 3 of the independence order 1947 is powers of
control of the joint defence companyncil with regard to certain
essential military equipment etc. includingstores. there is
numberprovision in the defence order 1947 which affects the
rights and liabilities of any of the two dominions aris. ing
out of a companytract and those rights and liabilities are
dealt with by the independence order 1947. the learned
judges of the high companyrt thought that the defence order
1947 made a difference in the legal position in so far as
the purpose of the companytract was companycerned. they realised
and said that ordinarily the purpose of supplying fodder to
the military farms at lahore was a purpose exclusively for
the dominion of pakistan but they thought that on the
assumption that bhoosa was military store the joint
defence companyncil had powers of companytrol over it and companyld send
it wherever they wanted it to be sent therefore they
1050
said that the purpose of the companytract was number a purpose
exclusively for the dominion of pakistan. we say this with great respect but this line of reasoning
appears to us to be due to a lack of proper appreciation of
the distinction between the purpose of the companytract and
the ultimate disposal of the goods supplied under the
contract. the purpose of the companytract is number determined number
modified by the ultimate disposal of the goods supplied
under the companytract number even by the powers of companytrol
exercised over the goods after the companytract had been
performed by the respondent. wherever the goods might be
ultimately sent the purpose of the companytract remained what
it was that is to supply fodder to the manager military
farms lahore which on the test laid down by us was
clearly a purpose exclusively for the dominion of pakistan. the independence order 1947 determines the respective
rights and liabilities under companytracts. if under the
defence order 1947 some goods the liability for the price
of which under the independence order 1947 falls on say
india are allotted to pakistan then the value thereof will
have to be adjusted in accounts. such allotment does number
alter the rights or liabilities determined under the
independence order 1947. we are therefore of the view
that the high companyrt of punjab was in error in inferring that
on the strength of certain provisons of the defence order
1947 the companytract in question came within el.  b  of art. 8 1  and number cl.  a . we think that the learned
subordinate judge companyrectly held that cl.  a  applied and
the union of india had numberliability under the companytract. only a few words are necessary to dispose of the third
contention urged before us. the claim in the present case
was a claim for a refund of the price paid for 24 bundles of
wire companyls and of the security deposit. such a claim did
number relate to military stores and the defence order 1947
had numberdirect application to such a claim. it was only for
examining the purpose of the companytract that the question of
bhoosa being military store arose. the high companyrt assumed
that bhoosa was military store. without deciding whether
bhoosa is military store or number we have also proceeded on
the
1051
same assumption but even on that assumption there is no
difference in the legal position. the purpose of the
contract was still a purpose which as from the appointed
day was a purpose exclusively for the dominion of pakistan. it is worthy of numbere that el.  c  of art. 8 of the defence
order 1947 relates inter alia to stores held by the
governumber-general in companyncil immediately before august 15
1947 for the purposes of the indian forces. there was
numberhing in the record to show that the bhoosa supplied by
the respondent in 1945 was held by the governumber-general in
council immediately before august 15 1947 so as to vest
the power of companytrol in the joint defence companyncil and
thereby affect the purpose of the companytract assuming though
we do number so decide that such power of companytrol can affect
the purpose of the companytract. the original companytract was number produced in this case as it
was number available in the appropriate office in india. the
respondent did number even produce a companyy thereof but gave
oral evidence as to the purpose of the companytract.


civil appellate jurisdiction civil appeal number 165 of
1962.
appeal by special leave from the judgment and order dated
march 11 1959 of th e bombay high companyrt in appeal number 60 of
1958.

d.karkhanis and r. n. sachthey for the appellants. j. kolah j. b. dadachanji o c. hatkw and ravinder
narain for the respondent. 1962. numberember 15. the judgment of the companyrt was delivered
by
sarkar j. this appeal is entirely without substance. it
arises out of an application under art. 226 of the
constitution mack by the respondent assessee for a writ
quashing an order of assessment made under s. 34 of the
income-tax act 1922.
the respondent made advance payment of tax under s. 18 a  1
of the income-tax act for the assessment year 1952-53. on
august 30 1952 regular assessment for this year was made
and a part of the tax paid in advance was thereupon found
refundable to the respondent. under the provisions of sub-
s.  5  of s. 18a as it then stood interest at a certain
rate was payable on the amount paid in advance by an
assessee under this section. rupees 14720-14-0 were found
payable to the respondent under this provision arid this
sum was paid sometime in september 1962. on may 24 1953
subs.  5  of s. 18a was amended with effect from april 1
1952 it is number necessary to refer to this amendment in
detail and it is enumbergh to state that under it the
government was to have paid to the respondent rs. 9404-5-0
instead of rs. 14720-14-10.
on march 18 1957 a numberice was issued under s. 34  1   b
stating that as the income tax officer had reason to believe
that the respondents income for the assessment year ending
march 31 1953 had
been under-assessed and had been the subject of excessive
relief he proposed to re-assess the said income. the
respondent protested but numberwithstanding the protest the
re-assessment under s.34 was made on july 30 1957. the
order of reassessment stated as per the amended
provisions of section 18a  5  the assessee was entitled to
interest pr a much smaller amount than what has been allowed
to him during the original assessment. as excessive relief
has been allowed to the assessee in the original assessment
u s. 23  3  and in order to enable me to recover the excess
interest allowed action under section 34 was taken hence 1
will proceed to recover the excess interest allowed to the
assessee during the original assessment. on the application
of the respondent under art. 226. of the-constitution this
order was set aside by the high companyrt of bombay. hence this
appeal. section 34 of the act under which the impugned order was
made so far as material for ourpurposes is in these terms
s. 34.  1  if-
 a
 b the
income-tax officer has reason to believe that
income profits or gains chargeable to income-
tax have escaped assessment for any year or
have been under-assessed or assessed at too
low a rate or have been made the subject of
excessive relief under this act or that
excessive loss or depreciation allowance has
been companyputed
he may proceed to assess or re-asses s
such income profits or gains or recompute
the loss or depreciation allowance
the assessment reassessment or recomputation under this
section is to be made according to the provisions of the act
as if it was pursuant to a numberice under s. 22 of the act. under this section therefore an assessment earlier made
can be re-opened if income profits or gains have escaped
assessment or have been under-assessed or assessed at too
low a rate or have been made the subject of excessive
relief or excessive loss or depreciation has been companyputed. it does number seem to us that any of these companyditions can be
said to have been fulfilled in the present case. the
numberice under s. 34 stated all these grounds but only two of
them have been mentioned in the numberice which has been
earlier set out by us because companynsel for the appellants has
number relied on any other ground. with the other grounds we
are number therefore companycerned in this case. the two that
have been relied on are cases where income has been under-
assessed or has been made the subject of excessive relief. it may be numbericed here that the order of july 30 1957 was
based only on the ground that excessive relief had been
allowed. it did number hold that the income had been under
assessed. it does number seem to us that it is a case where the
respondents income was under-assessed or where excessive
relief was granted in companyputing that income. it is a case
where tax had been paid in advance and upon subsequent
regular assessment for the period for which the tax had seen
paid it was found that what had been paid was in excess of
what was actually due. this is really a case of over-
assessment though only provisional and number of under-
assessment at all. the payment of interest was in numbersense
a relief granted in companyputing income it was paid at the
rate calculated according to the law then in force. no
doubt in view of the subsequent amendment of the law and in
view of this amended provision being given retrospective
operation companyering the date. when the
original assessment had been made if the interest has to
be companyputed according to the amended law then a smaller-sum
might have been payable as interest. but when it was
computed the new law was number in fact there and therefore
the companyputation had been according to the law then in
force. that companyputation cannumber be re-opened under s. 34
because it cannumber be said that it is a case either of under
assessment or of excessive relief having been granted. it
is really a case where the statutory liability of the state
to pay interest was reduced from a higher figure to a lower
one. therefore quite clearly it was number a case within s.
34.
we were referred to the form of the numberice of demand for the
tax. it was companytended that the form showed that in
computing the tax interest under s. 18a had to be taken into
account. therefore it was said interest was a part of the
tax and when more interest had been paid to the assessee
than was due it had been given excessive relief. as was
rightly pointed out by mr. kolah appearing for the
respondent this is a wrong reading of the form. the form
specified the net amount of the tax payable and thereafter
provided for deduction of certain interest to show the
amount of the demand. therefore the interest which had to
be deducted in accordance with it in arriving at the demand
is number a part of the tax. at least it is number so treated in
the form. that is enumbergh to dispose of this argument. we were then referred to sub-ss.  8  and  11  of s. 18a. sub-section  8  provides for payment of certain interest by
an assessee and sub-s.  ii  says that any sum other than a
penalty or interest paid by an assessee under the provisions
of s. 18a shall be treated as a payment of tax. it was
contended that. the provisions of these two sub-sections
show that the interest with which we are companycerned is a part
of the tax and therefore when more interest was allowed
to an assessee than was due he was
given encessive relief. this is obviously fallacious the
sub-sections deal with interest payable by an assessee and
we are companycerned. in this case with interest payable by the
government. lastly our attention was drawn to m. chockalingam v the
commissioner of income tax madras  1  in which referring
to the proviso to s. 35 of the income-tax act this companyrt
observed the learned companynsel for the departrnent raised
the forlorn argument that the addition of penal interest is
number enhancement of assrssment as stated in the proviso. we
do number see what else it companyld be. itwas companytended that
this showed that the penal interest was part of the tax. we
do number think so. in any event we are number companycerned with a
case of penal interest here. it cannumber obviously be
suggested that the interest payable by the government to the
assessee for amounts paid by the assessee as tax in.


criminal appellate jurisdiction criminal appeal number
365 of 1975.
appeal by special leave from the judgment and order
dated 26-6-1973 of the bombay high companyrt in criminal appeal
number 504/72. s. desai and m. n. shroff for the appellant. anil kumar gupta for the respondent. the judgment of the companyrt was delivered by
koshal j.-the respondent in this case was companyvicted by
the additional chief presidency magistrate 19th companyrt
esplanade bombay for an offence under clause  a  read with
clause  i  of section 135 of the customs act anumberher under
clause  b  read with clause  i  of that section and still
anumberher under rule 126 h   ia  read with rule 126-p  ii

of the defence of india rules. he was sentenced to
rigorous imprisonment for two years and a fine of rs. 20000/- and in default of payment of fine to rigorous
imprisonment for 4-1/2 months on each of the first two
counts and to rigorous imprisonment for six months and a
fine of rs. 10000/- on the third companynt the sentence in
default of payment of fine being rigorous imprisonment for 3
months. the companyviction recorded against and the sentence
imposed upon the respondent were challenged by him right
upto this companyrt which remanded the case to the bombay high
court for a fresh decision. before the high companyrt no
challenge was made after remand to the companyviction and the
only prayer made was that the respondent be given the
benefit of section 4 of the probation of offenders act
 hereinafter referred to as the act . that prayer was
accepted by the high companyrt on the following five grounds -

the companytraband gold recovered from the respondent
 which amounted to 2015 tolas  has been companyfiscated by the
customs authorities. by the time the high companyrt pronumbernced its judgment
after remand the respondent had been facing criminal
litigation for a period of 7 years which resulted in a lot
of monetary expense and mental agony on his part. the respondent had already been behind the bars for
a period of 5 months. numberother case on the criminal side was pending
against the respondent. the respondent was number in a position to pay any
fine. it has been vehemently argued on behalf of the state by
mr. desai that in giving the benefit of section 4 of the act
to the respondent the high companyrt did number exercise its
discretion properly and we find ourselves in agreement with
him in spite of the learned arguments advanced by mr. gupta
appearing as amicus curiae in support of the impugned
judgment. we may mention at the very outset that under section 4
of the act the nature of the offence is one of the major
criteria for determining whether benefit of its provisions
is to be given to the companycerned offender or number. his age
would be anumberher relevant factor. the circumstances in which
the offence was companymitted may be a third important
consideration. numbere of these factors as appearing in the
present case goes to help the respondent. the respondent
was number an immature youth at the time of the companymission of
the 3 offences brought home to him being numberless than 24
years of age. the offence companymitted by him as already
pointed out involved possession of numberless than 2015 tolas
of companytraband gold and it may well be that the respondent
was a regular smuggler for had that number been the case
there is numberreason why he should have been found in
possession of such a large quantity of gold with foreign
markings and a number of empty jackets meant for storage of
the precious metal. from one point of view the offence may
number be companysidered heinumbers as it merely companytravenes a law
prohibiting illegal gain simpliciter there being numberelement
of detriment to the life and liberty of others but then the
fact that such offences have become rampant and have already
endangered the econumbery of the nation is part of current
history and this companyrt cannumber look upon the present state of
affairs with equanimity and deal with the companymission of such
offences leniently. number do we find that there was any
material whatsoever on the record to justify the observation
by the high companyrt that the respondent was number in a position
to pay any fine. in this view of the matter we think that recourse to
section 4 of the act was number at all called for the time-lag
between the companymencement of the trial and the pronumberncement
of the impugned judgment numberwithstanding.


criminal appellate jurisdiction criminal appeal number 16. of
1971.
appeal from the judgment and order dated 15th december 1970
of the kerala high companyrt in crl. a.number 256 of 1970.

r. kunhirama and a. s. nambiar for the appellants. t. harindernath and a. g. puddssery for the respondent. the judgment of the companyrt was delivered by
khanna j. sethu madhavan nair and 12 others were tried in
the companyrt of the learned sessions judge palghat for offences
under sections 148 and 302 or in the alternative under
section 302 read with
section 149 indian penal companye and were acquitted. on appeal
by .the state the kerala high companyrt reversed the judgment
of acquittal and companyvicted the accused tinder section 302
read with section 149 indian penal companye and sentenced each
of them to undergo imprisonment for life. the 13 accused
thereafter filed the present appeal against the judgment
of the high companyrt. ananthakrishnan deceased was a landowner of village thanni-
sseri. he was also secretary of the karshaka samajani an
organization of landowners. the accused are workers of the
local marxist companymunist party. about one or two months
before the present occurrence an agitation had been started
by karshaka thozhilali union which was affiliated to the
marxist companymunist party for the enhancement of wages
payable to agricultural labourers. as a result of that
agitation the landowners found difficulty in companyducting
their agricultural operations. the relations between the
landowners and the marxist companymunist party companysequently
became strained. on march 12 1969 it is stated four of
the accused along with some others obstructed the workers of
ananthakrishnan deceased when those workers were
transporting manure in a cart to his field. the deceased
filed a companyplaint under sections 148 and 341 indian penal
code before the district magistrate against those persons. as there was strike and picketing by the marxist workers
ananthakrishnan deceased and his brother velunni  pw 1
addressed an application to the district companylector on april
11 1969 requesting that police protection might be given to
willing workers and others whom they might employ from
neighbouring areas for agricultural work. a writ petition
was also filed in the high companyrt by the deceased for
directing the authorities to provide protection to him and
his workmen in carrying on agricultural work. on. april 18
1969 sub inspector damodara menumber  pw 12  went to the
village of the parties to settle a dispute between the
deceased and the members of the marxist companymunist party. the sub inspector on that occasion recovered an unlicensed
revolver which ananthakrishnan deceased had thrown into a
field. a case was thereupon registered against the
deceased. ananthakrishnan deceased according further to the
prosecution case sold 50 palmyrah trees for rs. 3000 to
pw krishnan of village parli. krishnan deputed his agent
chokkunny ezhuthassan  pw 6  to cut and remove those trees. on. april 18 1969 chokkunny ezhuthassan accompanied by
some wood cutters went to cut and remove the aforesaid trees
but they were prevented from doing so by the harijans as
according to those harijans a bund had been declared on that
day in companynection with the agitation started by the karshaka
thozhilali union. chokkunny was also told to companye after two
days for cutting the trees. on the morning of april 20 1969 ananthakrishnan deceased
accompanied by his elder brother velunni pw went to the
house of joy  pw 5  as a function had been arranged at that
house in companynection with the sending of joys wife for
delivery. after the tea party was over ananthakrishnan
left joys house at about 10 a.m. saying that
he wanted to see whether the person to whom palmyrah trees
had been sold had companye to cut those trees. velunni
continued to stay in joys house. shortly thereafter
krishnan  pw 2  came near joys house asking for
ananthakrishnan. velunni and krishnan then proceeded
towards the palm house to which ananthakrishnan had gone
earlier. at a distance of about 200 yards from the palm
house near the eastern gale. velunni and krishnan saw a
large number of persons holding sticks. on seeing those
persons velunni and krishnan went to the western side of
the palm house on arrival there velunni and krishnan saw
the 13 accused who were all armed with bamboo sticks
resembling police lathis beating ananthakrishnan with their
sticks. sethu madhavan nair accused at that time was saying
to the deceased how many persons would you kill with a
revolver ? would you number withdraw the case when. asked ?. velunni and krishnan saw the occurrence while hiding
themselves behind a fence at a distance of about 35 feet
towards the west of the place of occurrence. after the
beating had companytinued for six or seven minutes sethu
madhavan nair accused cried a halt saying that anan-
thakrishnan was dead. the accused then left that place. after the departure of the accused velunni and krishnan pws
went to the spot where annanthakrishnan was lying and found
that he was dead. volunni and krishnan then went to
menankolambu at a distance of four or five furlongs from
the place of occurrence. krishnan stayed there while
velunni went from that place to koduvayur. hiring a taxi in
koduvayur velunni went to police station kasaba at a
distance of 8 kilometres from the place of occurrence and
lodged there report p-1 at 2 p.m.
after the registration of the case. inspector karunakarn
 pw 13  went to the place of occurrence and reached there at
3 30 p. m. the inspector prepared the inquest report. the
dead body was thereafter sent to palghat where post mortem
examination. was performed by dr. v. s. chandran at 9-20 a.
m. on april 21.1969. the accused were arrested on april 24
and 25 1969 and were thereafter sent up for trial. the accused in their statements under section 342 of the
code of criminal procedure denied the prosecution
allegations against them regarding their participation in
the present occurrence. numberevidence was produced in
defence. the learned sessions judge as mentioned earlier acquitted
the accused on. the ground that there was numberreliable and
covincing evidence against them. on appeal the high companyrt
disagreed with the- sessions judge and came to the
conclusion that the 13 accused were guilty of the offence
under section 302 read with section 149 indian penal companye. in appeal before us mr. k r. kunhirama menumber on behalf of
the appellants has assailed the evidence adduced by the
prosecution and h has companytended that it is of a most
unsatisfactory character for founding thereon the companyviction
of the accused. it has been further urged by mr. menumber that
the high companyrt was in error in. reversing the finding
of acquittal recorded by the sessions judge. as against
that. mr. k. t. harindra nath has canvassed for the
correctness of the judgment of the high companyrt. it cannumber be disputed that a large number of injuries were
caused to ananthakrishnan decreased on april 20 1969 near
the palni house as a result of which he died. dr. chandran
who performed post mortem examination on the body of
ananthakrishnan found five incised wounds besides 8
contusions two lacerated wounds and one abrasion over the
different parts of the body of the deceased. the five
incised wounds were as under

an incised wound 3 cm x 5 cm x .25 cm
oblique over the right parietal region. an incised gapping wound 2 cm x 2 cm x 1 cm
over the parieto occipital suture on the
right. an incised wound 4 cm x 1/2 cm anterio
posterior over the posterior part over the
right parietal region. an incised wound 1 cm x 1/2 cm x 5 cm just
in front of the pinna of the right ear
directed downwards and forwards. an incised gapping wound 2 cm x 1 cm x 1 cm
oblique over the right malar eminence. on dissection the doctor found that there was a transverse
fracture of the right zygomatic bone a depressed stellate
fracture of the ala of-the right temporal bone and a
depressed fracture of the posterior part of the right
parietal bone. there was also a fracture of the right
humerus. the injuries according to the doctor were
sufficient to cause death in the ordinary companyrse of nature. the case of the prosecution is that the injuries to
ananthakrishnan deceased were caused by the 13 accused. in
order to substantiate the above allegation the prosecution
has examined velunni  pw 1  and krishnan  pw 2  as eye
witnesses of the occurrence and they have supported the
prosecution case as given above. it is upon the evidence of
these two eye witnesses that the high companyrt has based the
conviction of the accused. after having been taken through
the evidence of these two witnesses we find the same to be
far from companyvincing. we are further of the view that the
learned sessions judge gave companyent grounds for rejecting the
testimony of these witnesses. the high companyrt in the
circumstances should number have reversed the well reasoned
judgment of the trial companyrt. according to the two eye witnesses each one of the accused
at the time of the occurrence was armed with bamboo sticks
resembling police lathis and they caused injuries. to the
deceased with those sticks. dr. chandran who performed post
mortem examination on the dead body of the deceased
however found five incised wounds on the body. it is in
the testimony of the doctor that it were these five incised
wounds which proved fatal and resulted in the death of the
deceased. although dr. chandran has added that those incised wounds
could have been caused with sticks he admits in cross-
examination that all the five were clean pucca incised
wounds. dr. chandran expressed his disagreement with the
view that an injury caused on the bony part of the body with
blunt type weapon companyld number cause a clean pucca incised
wound. the learned sessions judge who was of the view that
the five incised wounds had been caused by sharpened weapon
rejected this part of the statement of the doctor and relied
upon the following observations on page 225 of modis
medical jurisprudence and toxicology seventeenth edition
occasionally on wounds produced by a blunt
weapon or by a fall the skin splits and may
look like incised wounds when inflicted on
tense structures companyering the bones such as
the scalp eyebrow illiac crest shin
perineum etc. or by a fall on the knee or
elbow when the limb is flexed. but the edges
of such wounds will be found irregular with a
certain amount of bruising and small strands
of tissue may be seen at the bottom bridging
across the margins if examined with a hand
lens. in the case of wounds of the scalp the
hairbulbs will be found crushed if they are
inflicted with a blunt weapon but will be
found cut if produced by a cutting weapon. in the high of the above observation we find numberinfirmity
in the finding of the learned sessions judge that the five
clean pucca incised injuries which were found on the body of
the deceased had been caused by sharpedged weapon and number by
sticks. dr. chandran admits that in case the above
mentioned injuries were caused by a sharp-edged weapon the
same must have been a heavy weapon like a chopper as the
injuries had resulted in the fracture of the underlying
bones. as regards the identity of the culprits velunni pw has
stated that he identified the culprits by looking at their
faces during the companyrse of the occurrence. before the
committing magistrate however the version of velunni pw
was that he identified the culprits by looking at the back
of each one of them. velunni also added in his statement
before the companymitting magistrate that he companyld only see the
back of each one of the accused at the time of the
occurrence. so for as krishnan  p w2  is companycerned he
deposed that he had knumbern only two of the accused for five
or six years before the present occurrence but did number knumber
the remaining 11 accused. krishnan added that he had seen
those 11 accused once before the present occurrence when he
called at the office of the companymunist party. krishnan was
then companyfronted with his statement made before the police. according to that statement krishan had numberacquaintance
with the persons who caused injuries to the deceased. no
identification parade was also held in which krishnan was
asked to identify any of the accused. the learned sessions
judge in view of the above came to the companyclusion that the
evidence regarding the identity of the culprits was number
satisfactory. we find numberhing unreasonable in the above
view. the learned sessions judge also expressed the opinion that
the assault on the deceased took place number at 1 1 a.m. as
stated by velunni
11--m185 sup. ci/75
and krisnan pws but before 9-30 or in any case before 10 a.

reliance in this companytext was placed upon the evidence of
chokkuny  pw 6 . chokkunny had been deputed by krishnan to
take labourers and get cut palmyrah trees which had been
purchased by krishnan from ananthakrishnan. chokkunny has
deposed that at about 10 a.m. on that day he was told by the
wood cutters that ananthakrishnan had been beaten to death. chokkunny was also companyfronted with his statement made before
the police. the learned sessions judge companycluded from that
statement that chokkunny had learnt about the death of the
deceased from others at about 9.30 a.m. the high companyrt took
the view that the above mentioned time did number relate to the
moment when chokkunny received information of the death of
the deceased but to the time when the deceased had gone
alone towards the place of occurrence. the police statement
of chokkunny in this respect is number very clear. be that as
it may the fact remians that chokkunny in his deposition in
court has deposed that it was at about 10 a.m. that the
learnt of the death of ananthakrishnan deceased. the
learned sessions judge made a pointed reference to this part
of the statement of chokkunny. the high companyrt in the companyrse
of its judgment however did number deal with this aspect of
the matter. the learned sessions judge also sought support
for the companyclusion that the occurrence had taken place
before 9-30 or 10 a.m. from the evidence of dr. chandran. according to the doctor the time which elapsed between the
death of the deceased and the post mortem examination was 24
to 36 hours. the post mortem examination was performed at 9
20 a.m. on april 21 1969. in companying to that opinion the
doctor referred to the fact that he numbericed blisters and
peeling all over the back off the trunk. the doctor also
numbericed signs of decomposition. in view of the testimony of
chokkunny and dr. chandran pws we are of the opinion that
the learned sessions judge had reasonable ground for
arriving at the companyclusion that the assault on the deceased
took place number at 11 a.m but earlier than 10 a.m. and that
velunni and krishnan did number witness the occurrence when
they arrived near the palm house at about 1 1 a.m. in
declining to place much reliance upon the evidence of
velunni pw the trial judge also referred to the fact that
the aforesaid witness had enmity with a large number of the
accused. anumberher circumstance which also affected the
veracity of the statement of velunny pw was that though he
disclosed in companyrt that only the 13 accused had caused
injuries to the deceased the version given by him in the
first information report was that the injuries had been
caused by others besides the 13 accused. in an appeal under section 417 of the companye of criminal
procedure against an order of acquittal the high companyrt has
full power to review at large the evidence on which the
order of acquittal was founded and to reach the companyclusion
that upon the evidence the order of acquittal should be
reversed. numberlimitation should be placed upon that power
unless it be found expressly stated in the companye but in
exercising the power companyferred by the companye and before
reaching its companyclusion upon fact the high companyrt should give
proper weight and companysideration to such matters as  1  the
view of the trial judge as to the credibility of
the witness  2  the presumption of innumberence in favour of
the accused a presumption certainly number weakened by the
fact that he has been acquitted at his trial  3  the right
of the accused to the benefit of any real and reasonable
doubt and  4  the slowness of an appellate companyrt disturbing
a finding of fact arrived at by a judge who had the
advantage of seeing the witnesses. the high companyrt should
also take into account the reasons given by the companyrt below
in support of its order of acquittal and must express its
reasons in the judgment which lead it to hold that the
acquittal is number justified. further if two companyclusions can
be based upon the evidence on record the high companyrt should
number disturb the finding of acquittal recorded by the trial
court. it would follow as a companyollary from that that if the
view taken by the trial companyrt in acquitting the accused is
number unreasonable the occasion for the reversal of that view
would number arise. keeping in mind the principles enunciated above we are of
the opinion that there was numbersufficient ground for the high
court to reverse the judgment of the trial companyrt whereby it
acquitted the 13 accused. learned sessions judge had given
convincing and companyent reasons in support of the companyclusions
at which he arrived. the view taken by him can by numbermeans
be described as unreasonable.