criminal appellate jurisdiction criminal appeal number
183 of 1981.
appeal by special leave from the judgment and order
dated 30.1.1981 of the high companyrt of allahabad in civil
misc. habeas companypus writ number 6343/80. k. garg naresh k. sharma and mukul mudgal for the
appellant. k. bhatt for respondent number 1
hardayal hardy and miss a. subhashini for the
respondents. the judgment of the companyrt was delivered by
koshal j. this is an appeal by one harish pahwa
against the judgment dated 30th january 1981 of the high
court of allahabad dismissing a petition presented by the
appellant to it under article 226 of the companystitution of
india with a prayer that a writ of habeas companypus be issued
against the state of uttar pradesh and union of india in as
much as the detention of the appellant by them was number in
accordance with law. the only point that has been raised before us by mr.
garg appearing on behalf of the appellant is that the
representation made by him against his detention to the
state government was number decided within a reasonable time
and that the delay is fatal to the detention. this point was
numberdoubt number taken before the high companyrt but in view of its
importance and the fact that all the material necessary for
its determination is available on the record we have
allowed it to be raised before us and have overruled a
preliminary objection taken by the state to the effect that
it should number be entertained. in order to decide the point we may refer to certain
admitted facts. the order of detention is dated 16th may
1980 and the representation made by the appellant against it
from varanasi jail bears date the 3rd of june 1980. the
state government received
the representation on the 4th june 1980 but for two days no
action was taken in companynection with it. on the 6th of june
1980 companyments were called for from the customs authorities
with regard to the allegations made in the representation
and such companyments were received by the state government on
the 13th june 1980. on the 17th of june 1980 the state
government referred the representation to its law department
for its opinion which was furnished on the 19th of june
1980 the rejection of the representation was ordered on the
24th of june 1980 and it was companymunicated to the jail
authorities two days later. the case of the state is that the representation was
with the customs authorities who were formulating their
comments from 7th june 1980 to the 12th of june 1980 and
that the representation was under the companysideration of the
government for four days from 13th june 1980 to 16th june
1980 of its law department from 17th june 1980 to 19th
june 1980 and then again under its own companysideration for
six days from 19th june 1980 to 24th june 1980.
in our opinion the manner in which the representation
made by the appellant has been dealt with reveals a sorry
state of affairs in the matter of companysideration of
representations made by persons detained without trial. there is numberexplanation at all as to why numberaction was taken
in reference to the representation on 4th 5th and 25th of
june 1980. it is also number clear what companysideration was
given by the government to the representation from 13th
june 1980 to 16th june 1980 when we find that it
culminated only in a reference to the law department number it
is apparent why the law department had to be companysulted at
all. again we fail to understand why the representation had
to travel from table to table for six days before reaching
the chief minister who was the only authority to decide the
representation. we may make it clear as we have done on
numerous earlier occasions that this companyrt does number look
with equanimity upon such delays when the liberty of a
person is companycerned. calling companyments from other
departments seeking the opinion of secretary after
secretary and allowing the representation to lie without
being attended to is number the type of action which the state
is expected to take in a matter of such vital import.


civil appellate jurisdiction civil appeal number 381 of 1970.
appeal-from the judgment and order dated december 22 1969
of the delhi high companyrt in civil writ number 746 of 1969.
niren de attorney-general and s. p. nayar for the
appellant. sardar bahadur vishnu bahadur and yougindra khushalani
for respondent number 1.

s. chatterjee for respondent number 2.
the judgment of the companyrt was delivered by. hegde j. in this appeal by certificate the only question
that was canvassed before us was as regards the validity of
the order companytained in memorandum number f. 16-42/68-s-1 dated
august 13 1969 issued by the government of india ministry
of education and youth services retiring the 1st respondent
compulsorily from government service in exercise of the
powers companyferred under cl.  j  -of fundamental rule 56 with
effect from august 14 1969. that order was attacked before
the high companyrt on various grounds. the high companyrt rejected
some of those grounds. it did number find it necessary to
decide a few others but accepting the companytention of the
respondent that in making the order the appellant -had
violated the principles of natural justice it held that the
impugned order is invalid the high companyrt accordingly issued
a writ of certiorari quashing that order. before us the only companytention presented for -our decision
was whether the high companyrt was right in holding that in
making the impugned order the appellant had violated the
principles of natural justice. numberother companytention was
taken before us. hence we shall address ourselves only to
that question. before proceeding to examine the companytention above-formulated
it is necessary to set out the material facts. the 1st
respondent. herein company. j. n. sinha successfully companypeted
in the examination held by the federal service companymission in
1938 for the post of extra-assistant superintendent in the
survey of india service. after selection he was appointed
as an extra-assistant superintendent. he worked as
probationer for a period of three years and thereafter he
was companyfirmed in that post in 1941. during the second world
war he volunteered for active-service in the army and was
granted an emergency companymission in the army. he was granted
a regular companymission in the army with effect from october
23 1942.
in exercise of the powers companyferred by the proviso to art. 309 of the companystitution the president of india made on
august 17 1950 rules called the survey of india
 recruitment from companyps of engineering officers  rules 1950
for regulating the recruitment and companyditions of service of
persons appointed from the companyps of engineering officers of
the defence ministry to the survey of india class i
service.- rule 2 of the said rules provides for the
recruitment of military officers to the survey of india
class i service and rule 3 provides that the recruited
officers will be on probation for two years which may be
extended by the government on the advice of the surveyor
general. the 1st respondent was taken into the survey of
india class i service under rule 2 of the aforesaid 1950
rules as deputy superintendent surveyor with effect from
june 1951. thereafter the president of india in .exercise
of the powers under the proviso to art. 309 made on july 1
1960 the survey of india class i  recruitment  rules 1960
for regulating the recruitment of survey of india class i
service. the 1st respondent was subsequently promoted
firstly as superintending surveyor and then as deputy
director. after sometime he was promoted as director and
lastly as director  selection grade . the last mentioned
promotion was made with effect from october 27 1966. on
may 17 1969 fundamental rule 56 j  was amended. thereafter on august 13 1969 the ministry of education and
youth services issued the impugned order. the 1st
respondent was given three months pay and allowances in lieu
of three months numberice prescribed in fundamental rule 56 1 . the 1st respondent being aggrieved by that order challenged
the validity of the same. as mentioned earlier the high
court accepted his plea. the union of india has appealed
against that order. fundamental rule 56 j  reads
numberwithstanding anything companytained in this
rule the appropriate authority shall if it is
of the opinion that it is in the public
interest so to do have the absolute right
to retire any government servant by giving him numberice of number
less than three months in writing or three months pay and
allowances in lieu of such numberice

if he is in class i or class ii service or
post the age limit for the purpose of direct
recruitment to which is below 35 years after
he has attained the age of 50 years. in any other case after he has attained
the age of 5 5 years. provided that numberhing in this clause shall
apply to a government servant referred to in
clause  e  who entered government service on
or before 23rd july 1966 and to a government
servant referred to in clause  f   . the order impugned merely says that in pursuance of cl. 5 6
the president was pleased to decide that in public
interest the 1st respondent should retire from government
service with effect from august 13 1969 and that he would
be given three months pay and allowances in lieu of three
months numberice provided in the said rule. numberreasons are
given for companypulsorily retiring the 1st respondent. admittedly numberopportunity was given to him to show cause
against his companypulsory retirement. the failure on the part
of the companycerned authority to give an opportunity to the 1st
respondent to show cause against his companypulsory retirement
was held by the high companyrt to have amounted to a
contravention of the principles of natural justice. the validity of fundamental rule 56 j  was number questioned
before the high companyrt number before us. its validity is number
open to question in view of the decision of this companyrt in t.

shivacharana singh and ors. v. state of mysore 1 . fundamental rule 56 j  in terms does number require that any
-opportunity should be given to the companycerned government
servant to show cause against his companypulsory retirement. a
government -servant serving under the union of india holds
his office at the pleasure of the president as provided in
art. 310 of the companystitution. but this pleasure doctrine
is subject to the rules or law -made under art. 309 as well
as to the companyditions prescribed under art. 311. rules of
natural justice are number embodied rules number can they be
elevated to the position of fundamental rights. as observed
by this companyrt in kraipak and ors. v. union of india 2
the aim of rules of natural justice is to secure justice or
to put it negatively to -prevent miscarriage of justice. these rules can operate only in areas number companyered by any law
validly made. in other words they do number supplant the law
but supplement it. it

a. i. r. 1965 s. c. 280

a. i. r. 1970  s. c. 150.
is true that if a statutory provision can be read
consistently with the principles of natural justice. the
courts should do so because it must be presumed that the
legislatures and the statutory authorities intend to act in
accordance with the principles of naural justice. but if on
the other hand a statutory provision either specifically or
by necessary implication excludes the application of any or
all the principles of natural justice then the companyrt cannumber
ignumbere the mandate of the legislature or the statutory
authority and read into the companycerned provision the
principles of natural justice. whether the exercise of a
power companyferred should be made in accordance with any of the
principles of natural justice or number depends upon the
express words of the provision companyferring the power the
nature of the power companyferred the purpose for which it is
conferred and the effect of the exercise of that power. number companying to the express words of fundamental rule 56 j
it says that the appropriate authority has the absolute
right to retire a government servant if it is of the opinion
that it is in the public interest to do so. the right
conferred on the appropriate authority is an absolute one. that power can be exercised subject to the companyditions
mentioned in the rule. one of which is that the companycerned
authority must be of the opinion that it is in public
interest to do so. if that authority bona fide forms that
opinion the companyrectness of that opinion cannumber be
challenged before companyrts. it is open to an aggrieved party
to companytend that the requisite opinion has number been formed or
the decision is based on companylateral grounds or that it is an
arbitrary decision. the 1st respondent challenged the
opinion formed by the government on the ground of mala fide. but that ground has failed. the high companyrt did number accept
that plea. the same was number pressed before us. the
impugned order was number attacked on the ground that the
required opinion was number formed or that the opinion formed
was an arbitrary one. one of the companyditions of the 1st
respondents service is that the government can choose to
retire him any time after he companypletes fifty years if it
thinks that it is in public interest to do so. because of
his companypulsory retirement he does number lose any of the rights
acquired by him before retirement. companypulsory retirement
involves numbercivil companysequences. the aforementioned rule
56 j  is number intended for taking any penal action against
the government servants. that rule merely embodies one of
the facets of the pleasure doctrine embodied in art. - 3 1 0
of the companystitution. various companysiderations may weigh with
the appropriate authority while exercising the power
conferred under the rule. in some cases the government may
feel that a particular post may be more usefully held in
public interest by an officer more companypetent than the one
who is holding. it may be that the officer who is holding
the post is number inefficient but the appropriate authority
may prefer to have a more efficient officer. it may further
be
that in certain key posts public interest may require that a
person of undoubted ability and integrity should be there. there is numberdenying the fact that in all organizations and
more so in government organizations there is good deal of
dead wood. it is in public interest to chop off the same. fundamental rule 56 j  holds the balance between the rights
of the individual government servant and the interests of
the public. while a minimum service is guaranteed to the
government servant the government is given power to
energise its machinery and make it more efficient by
compulsorily retiring those who in its opinion should number be
there in public interest. it is true that a companypulsory retirement is bound to have
some adverse effect on the government servant who is
compulsorily retired but then as the rule provides that such
retirements can be made only after the officer attains the
prescribed age. further a companypulsorily retired government
servant does number lose any of the benefits earned by him till
the date of his retirement. three months numberice is
provided so as to enable him to find out other suitable
employment. in our opinion the high companyrt erred in thinking that the
compulsory retirement involves civil companysequences. such a
retirement does number take away any of the rights that have
accrued to the government servant because of his past
service. it cannumber be said that if the retiring age of all
or a section of the government servants is fixed at 50
years the same would involve civil companysequences. under the
existing system there is numberuniform retirement age for all
government servants. the retirement age is fixed number merely
on the basis of the interest of the government servant but
also depending on the requirements of the society. the high companyrt was number justified in seeking support for its
conclusion from the decision of this companyrt in state of
orissa v. dr.  miss  binapani dei and ors.  1  and a. k.
krailpak v. union of india  . in binapani deis case   dr. binapani deis date of birth
was refixed by the government without giving her proper
opportunity to show that the enquiry officers report was
number companyrect. it is under those circumstances this companyrt
held that the order refixing the date of birth was vitiated
for failure to companyply with the principles of natural
justice. therein the impugned order took away some of the
existing rights of the petitioner. in krapaks case   a companymittee companysisting of chief
conservator of forest kashmir and others was appointed to
recommend names of the officers from kashmir forest service
for
 1  1967 2 s. c. r. 625.

a.i.r. 1970 s.c. 150.
being selected for the indian forest service. the chief
conservator of forests kashmir was one of the candidates
for selection. further it was established therein that some
of the officers who companypeted with him had earlier challenged
his seniority and companysequently his right to be the chief
conservator and that dispute was pending. under those
circumstances this companyrt held that there -was companytravention
of the principles of natural justice. for the reasons mentioned above we are unable to agree with
the companyclusion reached by the high companyrt that the impugned
order is invalid. we accordingly allow this appeal set
aside the judgment and decree of the high companyrt and dismiss
the writ petition. in the circumstances of the case we make
numberorder as to companyts.


criminal appellate jurisdiction criminal appeal number 377 of
1975.
from the judgment and order dt. 9th july 1975 of the punjab
and haryana high companyrt in criminal appeal number 1423 of 1974.

c. manchanda and n. k. agarwal for the appellants. mookerjee s. k. mehta k. r. nagaraja and p. n. puri
for respondent number 1
hardev singh for respondent number 2.
the judgment of the companyrt was delivered by
shinghal j.-this appeal by special leave is directed
against the judgment of the punjab and haryana high companyrt
dated july 9 1975 giving benefit of doubt to respondent
ajit singh  hereinafter referred to as the respondent  and
acquitting him of offences under sections 302 392 and 397

p.c. for which he was companyvicted by the additional sessions
judge of faridkot on october 31 1974. the additional
sessions judge had sentenced the respondent to death for the
offence under section 302 i.p.c. and to rigorous imprison-
ment for five years and seven years respectively for the
offences under sections 392 and 397 i.p.c. nishan chand  deceased  son of appellant mohan lal  p. w.
5  was a resident of roranwali. he was secretary of
roranwali and phulu khera companyoperative societies. the
respondent was nishan chands friendand was secretary of
roranwali patti sikhan companyoperative society. he also used to
live in village roranwali with his maternal-uncle gurdial
singh who was the village chairman. it is alleged that nishan chand and the respondent left
together on june 17 1974 for villages lambi and malout on
nishan chands bicycle as they had to deposit the money
realised by them. they did number however return to roranwali
that night. mohan lals other son satpal who was studying
in class viii in a school at sikhanwala saw nishan chands
bicycle lying at some distance from the boundary of village
roranwali near a culvert on the pakka road leading to
sikhanwala and he also saw a man lying dead in a field at a
short distance from there. as the dead body appeared to be
of nishan chand satpal went back to his house and informied
his father mohan lal  p. w. 5  at about 7 a. m. mohan lal

w. 5  and his brother dharam chand  p. w. 8  went to
the place where the dead body was lying. it bad many
injuries and a blood stained blade of knife  ex. p. 3  was
lying near it. a black piece of cloth  fifty  was lying
at some distance towards the road. as nishan chand used to
bring home the money of the societies some times mohan lal
suspected that the respondent might have murdered him for
the money.it seemed to him that the black piece of
cloth  fifty  belongedto the respondent which he was
wearing on the previous morning. mohan lal therefore left
for police station lambi which was at a distance of about 9
miles from the place of occurance. as he found sub-
inspector harnek singh  p. w. 19 . it sikhanwala bus stand
he reported the matter to him at about 9.30 a.m. the sub-
inspector recorded mohan lals statement and sent it along
with companystable mal singh to police station lambi for
registering a case. 2 320 sci/78

i. harnek singh went to the place of occurrence with mohan
lal and found dharam chand  p. w. 8  and nishan chands
mother smt. agyawanti near the dead body. he found foot-
prints two of bare foot and one with the shoe near the dead
body. the blade of knife  ex. p. 3  was also found lying
near the dead body and a shoe was found lying in the water
channel at a distance of 7 or 8 karams the small piece of
black cloth  fifty   ex. p. 4  was found lying at a
distance of 25 or 30 karams from the dead body. the sub-
inspector recorded the statement of smt. agyawanti. he
lifted moulds of the foot-prints and took them in his
possession. the blood stained blade of knife  ex. p. 3
was also taken in possession vide memorandum  ex. p. k.
and was sealed. the sub-inspector took the shoe also in his
possession. he prepared an inquest report and sent nishan
chands dead body for postmortem examination. dr. p. k.
narang  p. w. 1  of civil hospital gidderbaha examined the
dead body and found 12 injuries all of which were ante-
mortem. the doctor found that nishan chands death was due
to the injuries to vital organs of the brain as a result of
injuries number. 1 and 2 which were as follows-

a stab wound with clean cut edges 2. 5 x
0. 5 cm. on the front of left side of forehead
just above the eye brow. blood stained brain
matter was companying out of the wound. bone
underneath was cut and the wound was directed
backwards and downwards. a stab wound 3.5 x 1 cm. with clean cut
edges on the left temporal region of head 7.5
cm. above the ear directed downwards and
inwards. bone underneath was cut. the medical officer expressed the opinion that these two
injuries were individually sufficient to cause death in the
ordinary companyrse of nature. it was found during the companyrse of the investigation that
nishan chand had companylected the dues of the companyoperative
societies from atma singh. avtar singh and balli singh and
others on june 17 1974 and had gone with the respondent to
deposit the same in the central companyperative bank malout. inspector gurdial singh  p. w. 14  of the companyoperative
department had also gone there to attend a meeting of his
department. nishan chand and the respondent met him after 3

m. and asked him to get the sum of about rs. 2000/-
deposited in the bank. he companyld number however succeed in
depositing the money as the cash had been closed by that
time. it is alleged that nishan chand companylected rs. 4156/-
and that be and the respondent met darshan lai  p. w. 6  at
lambi at 6.30 p.m. the prosecution has relied on the
statement of darshan lal  p. w. 6  for the subsequent
conduct of the respondent and has led its evidence to show
that he was searched but companyld number be found. he was
arrested on june 21 1974 at about 8 p.m near village
fatuekhera. he was interrogated by the investigating
officer and is alleged to have made statement ex.p.o. on
june 23 1974 to the effect that he had buried a sum of
about rs. 4100/- and
a gold ring in his purse tied in a handkerchief near the
water lift in the middle of the way leading from village
khankhanwali to roranwali which he companyld recover and that
he had kept companycealed his clothes and one shoe under the
heap of companyton sticks in a kiln on the road outside
khankhanwali village which also he companyld recover. the
respondents statement to that effect was recorded in the
presence of witnesses balbir singh  p. w. 7  and avtar
singh. the respondent then went to the place near the heap
of companyton sticks and recovered the blood stained clothes
ex. p. 5 to p. 7 which were in jhola ex. p. 8 along
with a shoe. the recovered articles were taken in police
custody vide memorandum ex. p. 0. it is further alleged
that the respondent went to the place near the water lift
and dug out a handkerchief which companytained currency numberes of
rs. 4142/gold ring ex. p. 1 and purse ex. p. 9. one
currency numbere number ad 53007632 of rs. 100/-  ex. p. 10
which was at the ton of the bundle of currency numberes had
some blood stained fingerprints. the purse  ex. p. 9  was
of plastic on which government companylege mukhtsar was
written in punjabi and english and it companytained a library
card of r.s.d. companylege ferozepur which companytained the
address of the respondent written in english. the ring was
of gold and weighed about 3 grams. the initials n. c.
were inscribed on it. all the articles were sealed and were
taken in possession vide memorandum ex. pr. mohan lal  p.
w. 5  has identified the ring to be that of his son nishan
chand which he was wearing when he left the house. kartar
singh  p. w. 17  of village lambi has stated that lie
prepared the ring for nishan chand 8 or 9 months before his
statement and had made the inscription as desired by him. the sub-inspector made an application before magistrate
mukhtiar singh  p. w. 3  on june 28 1974 for taking the
moulds of the foot-prints of the respondent. the moulds
prepared by him were number found fit for companyparison and wire
again taken on july 4 1974 in the presence of magistrate
dina nath  p. w. 2 . they were sent for companyparison to the
director of forensic laboratory who has made his report ex. ff stating that the impressions on the crime mould were
found to tally with the test moulds. finger impressions  ex. pf/2  of the respondent were also
taken by magistrate mukhtsar and were sent for companyparison
along with the finger impression on the currency numbere of rs. 100/-  ex. p. 10  to the director fingerprint bureau
phillaur. the directors report ex. p. bb is on the record. he photographically enlarged the impressions and expressed
the opinion that there were eight points of similarity in
respect of the form and the position which were graphically
shown by him in his report and that the nature direction
and sequence of each point had been indicated in its
relevant circle. according to the expert so many points of
similarity companyld number be found to occur in the impressions of
different fingers and that they were identical or are of
one and the same person. the expert ignumbered the other
impressions which were sufficiently smudged or were partly
interfered with by the design and the printed writing of the
currency numbere or were faint. the respondent was medically examined an the very next day
of his arrest and the medical officers report ex. p.f has
been placed on the record according to which he had three
simple lacerated wounds of a duration of more-than 48 hours
on the left ring finger. as has been stated the additional sessions judge of
faridkot found the respondent guilty of the offences under
sections 302 392 and 397 i.p.c. as the high companyrt has set
aside the companyviction by its impugned judgment dated july 9
1975 by giving the benefit of doubt to the respondent
mohan lal  p. w. 5  father of nishan chand  deceased  and
one surinder kumar have filed the present appeal by special
leave. the high companyrt has examined the question of motive first of
all and has referred to the good relations between the
respondent and the deceased. it has also made a mention of
the statement of the respondent that he and the deceased
left village roranwali on the bicycle of the deceased for
malout on june 17 1974 at about 7.30 a.m. the high companyrt
has then examined the evidence of the prosecution regarding
the alleged companylection of rs. 4256/- by nishan chand from
four persons on june 17 1974 and his failure to deposit
the same in the central companyoperative bank at malout and has
taken the view that the companylection of the money by nishan
chand had number been proved and that the motive for the crime
had number been established. the first item of companylection relates to the recovery of rs. 2000/from avtar singh  p. w. 10  at malout on june 17
1974. avtar singh has stated that he had taken a loan from
the companyopcrative society of his village and had been asked
by the deceased to repay it. he promised to make the
repayment at malout mandi. he took his wheat there on june
17 1974 and asked his companymission agent to pay rs. 2000/-
to the deceased. rs. 2000/- were accordingly paid by his
commission agent to the deceased. he has further stated that
one atma singh  p. w. 12  paid rs. 623/- in his presence to
nishan chand. avtar singh however did number obtain a receipt
for the payment from nishan chand. the high companyrt has
disbelieved the payment because the name of the companymission
agent was number disclosed by avtar singh and he did number take. any receipt or the signature of nishan chand in his bahi in
token of the payment. the prosecution examined behari lal

w. 26  as the companymission agent who had made the payment
of rs. 2000/- on behalf of avtar singh to the deceased. the
witness produced his bahi entry ex. p. w. 26/a in respect
of the payment but the high companyrt rejected the evidence
because the signature of nishan chand was number obtained by
behari lal. as it was possible for the high companyrt to take
that view. we would leave it at that atma singh  p. w. 12
has stated that he paid rs. 623/- to the deceased on june
17 1974 at 2 p.m. after obtaining the money from the firm
of shadi ram amar nath of malout. avtar singh  p. w. 10  has
also stated about the making of that payment by atma singh
in his presence but the high companyrt has rejected the
evidence for want of nishan chands receipt for the payment
and the failure
to examine someone on behalf of the firm which had made the
payment. here again it cannumber be said that the view taken
by the high companyrt was number possible and we would therefore
number disturb its finding in this respect also. the prosecution however examined balli singh  p. w. 1 1
who stated that he paid rs. 856/- to the deceased on june
17 1974 vide receipt ex. ps at malout at 2 p.m. after
obtaining the money from his companymission agent. it was
stated in the receipt that the payment had been made by way
of recovery of the loan from balli singh. it was number
disputed that the receipt was signed by nishan chand and it
is number disputed before us that the name has wrongly been
printed as nishan singh in the paper book. the high companyrt
however rejected the evidence on the ground that balli singh
did number state who wrote the receipt ex. ps and that it
bore the signature of nishan chand. we have gone through
the statement of balli singh and we have numberdoubt that it
shows that the payment of rs. 856/- was made to the deceased
vide receipt ex. ps. there was as such numberjustification
for insisting on the disclosure of the name of the scribe
of the receipt or the production of other evidence to prove
the signature of nishan chand thereon. there was also no
justification for the high companyrt to reject the evidence
merely because of the failure to examine a witness from the
shop of the companymission agent who had made the payment. it
has to be appreciated that there was in fact numbercross-
examination worth the name regarding balli singhs statement
about his liability to pay rs. 856/- to the companyoperative
society and the payment of that money by him to the
deceased against receipt ex. ps. the prosecution has all the same relied on the statement
of inspector gurdev singh  p.w. 14  who was inspector of company
operative societies at lambi to prove the signature of the
deceased on receipt ex. ps. the high companyrt has rejected
his evidence to this effect on the ground that the witness
did number state that he had seen nishan chand signing and
writing and companyld identify his signature and also because
he did number state that in the ordinary companyrse of business
documents purported to be written by nishan chand had been
habitually submitted to him. we have gone through the
statement of gurdev singh  p.w. 14 . he was the inspector
of companyoperative societies lambi and nishan chand was the
secretary of two companyperative societies within his area. the
witness was therefore in a position to state that receipt
ex. ps was in the hand writing of nishan chand and he in
fact made a clear statement to that effect in the trial
court. if the defence had any reason to think that he was
number a companypetent witness for the purpose of expressing an
opinion under section 47 of the evidence act it was open to
it to cross-examine him on the point. the fact however
remains that this was number done. it would thus appear that the high companyrt companyld number have
rejected the evidence which was furnished by the prosecution
in regard to the payment of rs. 856/- by examining balli
singh  p.w. 11  and gurdev singh  p.w. 14  and by producing
the original receipt
ex. ps and we have numberhesitation in holding that the
finding of the trial companyrt in regard to that payment was
correct and must be restored. evidence has also been led to prove the payment of rs. 667/-
to the deceased by one budh singh on june 17 1974 vide
pass book entry ex. p. ii. it was stated by gurdev singh

w. 14  that the entry in the pass book had been made in
the hand writing of nishan chand but the high companyrt
rejected that evidence for the reason already stated. as
there was numberjustification for doing so we would restore
the finding of the trial companyrt regarding that item of
payment as well. the high companyrt has gone to the extent of basing its finding
to the companytrary for the further reason that mohan lal  p.w. 5  who was the father of the deceased did number state that
receipt ex. ps and the pass book entry ex. p. 1 1 were
written and signed by his son nishan chand. the high companyrt
however forgot that mohan lal was an illiterate man who had
thumb-marked even. the first information report ex. p.g./1
and was number in a position to make a statement regarding the
hand-writing or the signature of his son on the two
documents. so even if the items of rs. 2000/- and rs. 623/- are left
out the fact would still remain that the deceased had a sum
of about rs. 1533/- with him at the time of his murder. the
high companyrt has brushed aside the prosecution evidence in
this respect by observing that numbere of the witnesses has
deposed that the respondent was with the deceased at the
time when the payments were made to him. here again the
high companyrt lost sight of the statement of inspector gurdev
singh  p. w. 14  who as the inspector of companyoperative
societies must have knumbern the secretaries or the societies
within his jurisdiction. he has stated that a meeting was
called by the joint registrar of companyoperative societies at
malout on june 17 1974 and that the deceased and the
respondent met him in the central companyperative bank at malout
after 3 p.m. the deceased asked him to get the sum of more
than rs. 2000/- deposited in the bank and the witness told
him that as the cash had been closed by that time the money
could number be deposited he has further stated that the
deceased then told him that he would deposit the amount of
rs. 5000/- the next day as he had some more recoveries to
make. numbereffective cross-examination was directed against
the statement of the inspector to this effect and no
effective argument has been made before us why he should number
have been believed. the high companyrt thus failed to read the
statement of gurdev singh companyrectly even though it had a
direct bearing on the question of the respondents knumberledge
of the money in the possession of the deceased. its finding
to the companytrary must be set aside and it must be held that
the prosecution has succeeded in proving its case about the
respondents knumberledge that the deceased had companylected at
least rs. 2000/- by the time he met inspector gurdev singh
some time after 3 p.m.
the high companyrt has examined the question whether there was
evidence to prove that the respondent had absconded after
the incident and has found that it companyld number be said that
he did so to companyceal his guilt. he was arrested on june 21
1974 and it appears that the intervening delay would number by
itself be evidence of his guilt. while dealing with the evidence that the deceased was last
seen in the companypany of the respondent the high companyrt has
made a reference to the statement of mohan lal  p.w. 5  and
to the respondents admission that he had gone with the
deceased on his bicycle to malout on june 17 1974. the
prosecution has examined darshan lal  p.w. 6  in regard to
their movements at about 6 p.m. in lambi and has placed
reliance on the statement of prita singh  p.w. 9  about
their movements within a short distance of village
roranwali. we think that the view taken by the high companyrt
in regard to the evidence of these two witnesses is
justified and does number call for interference. but the high companyrt went wrong in finding that there was no
evidence to prove that the accused was seen with the
deceased before or after the occurrence. there companyld
possibly be numberevidence to prove that the respondent was
seen with the deceased after the occurrence i.e. after his
death and the prosecution cannumber be blamed for its inability
to produce any such evidence. the prosecution has however
led its evidence to prove that the deceased was last seen in
the companypany of the respondent and it will be enumbergh to
refer to two basic facts in this respect. firstly the
respondent has admitted in his statement in the trial companyrt
that he and nishan chand first went to lambi on june 17
1974 and he did number deny that they went there on nishan
chands bicycle at about 7.30 a.m. he has also admitted that
he was with nishan chand at malout upto 10 a.m. he claimed
that he went to village ferozepur thereafter to meet his
elder brother but that was a matter for him to prove and
thereby establish a good defence. the fact however remains
that he did number do so and his leaned companynsel has number
thought it possible to explain why he companyld number examine his
own brother to establish that plea or to invite our
attention to any other evidence that may have been led in
that behalf. secondly the high. companyrt lost sight of the
fact that inspector gurdev singh  p. w. 14  of the company
operative societies. department had clearly stated that he
went to malout on june 17 1974 to attend the meeting which
had been called by the joint registrar of companyoperative
societies and that the respondent and the deceased met him
there after 3 p.m. in the central companyoperative bank. he has
further stated that the deceased asked him to get the sum of
rs. 2000/- deposited in the bank but that companyld number be
done as the cash had been closed. the witness has stated
that a meeting was actually held in the rest house that day
and that he had gone to the bank to- companylect the figures of
recovery for purposes of that meeting. the presence of the
deceased and the respondent was therefore quite natural as
it explains their anxiety to make as much recovery as
possible before the meeting. as has been shown there was
numberreason for disbelieving the statement of gurdev singh
and
the high companyrt clearly misread the record in respect of a
material particular in holding that there was numberevidence to
prove that the respondent was last seen in the companypany of
the deceased. an attempt was made to argue that if the statement of the
respondent is to be companysidered at all it must be taken as a
whole and that it is number permissible to act upon one portion
of the statement which shows the presence of the respondent
in the companypany of the deceased and leave out those portions
which are exculpatory. it will be enumbergh to say that the
matter has been examined by this companyrt in nishi kant jha v.
state of bihar 1  and as the evidence on the record
disproves the exculpatory part of the respondents statement
in the trial companyrt it is clearly permissible to accept that
part of the statement which accords with the evidence on the
record and to act upon it. anumberher important piece of evidence against the respondent
was his statement ex. p.o. dated june 21 1974 under
section 27 of the evidence act and the recoveries which were
made in pursuance thereof. the statement was recorded by
sub-inspector harnek singh  p.w. 19  in the presence of
avtar singh and balbir singh  p.w. 7 . the prosecution gave
up avtar singh on the ground that lie had been won over but
balbir singh and harnek singh were examined in the trial
court. the. high companyrt however rejected the entire evi-
dence in that respect on the ground that the statements of
these two witnesses were companytradictory and inconsistent with
each other and held that the making of disclosure statement
and the alleged recovery were companycocted by the police. the
only companytradiction which has been pointed out by the high
court is that while according to harnek singh the
interrogation of the respondent started on june 23 1974 at
about 12 numbern and companytinued for two hours balbir singh has
stated that he and avtar singh reached the police station at
about 12.30 p.m. and the respondent was interrogated for
about 5 or 7 minutes in their presence and that he did number
make the disclosure statement. the high companyrt has stated
further that balbir singh has claimed that he advised the
respondent to give the articles which he had in his
possession and then he made the disclosure statement. a
reference to the statements of hamek singh  p.w. 19  and
balbir singh  p.w. 7  shows however that there is no
contradiction or inconsistency between them. balbir singh

w. 7  has clearly stated that when be reached the police
station at about 12.30 p.m. the respondent was being
interrogated there. his further statement that the
respondent was interrogated for five or seven minutes in his
presence cannumber therefore belie the statement of harnek
singh that the interrogation lasted for about two hours. the high companyrt therefore misread the evidence in this
respect. the high companyrt also misread the statement of
balbir singh when it observed that he bad admitted that he
did number knumber whether the disclosure statement  ex. p.o.  was recorded at the police station before the articles were
recovered or thereafter. here again a reference to balbir
singhs statement shows that what be stated was that he did
number remember
 1  1969 2 s.c.r. 1033.
if the disclosure statement was recorded before or after
the recovery. he however proved statement ex. p.o. and
admitted that he attested it.he also stated that his own
statement was recorded after the recovery. it was number found
possible to point out any inconsistency in his version in
that statement and his statement in the trial companyrt. the
high companyrt therefore clearly fell into an error of record
in reaching the companyclusion that the statement of the sub-
inspector was belied by the statement of the witness. the high companyrt has observed in this companynection that balbir
singh  p.w. 7  has stated that there were certain footprints
near the place where the money was recovered but numbermoulds
were prepared by the police even though it was incumbent for
it to do so. we have gone through the statement of balbir
singh but he has number made any such statement. if however
anything turned on the failure to take the moulds of the
footprints at the place where the money was recovered the
proper companyrse for the defence was to cross-examine the
investigating officer companycerned in that respect but that
was number done. the high companyrt has disbelieved the statement
of balbir singh  p.w. 7  for the further reason that he had
been companyvicted on some occasions and his explanation that he
had gone to the police station to inquire from the sub-
inspector whether they should companytinue to depute men to keep
watch on electricity installations and the sub-inspectors
reply in the negative had number been entered in the record of
the police station. the high companyrt has obviously relied in
this respect on balbir singhs statement that numberentry was
made in the daily diary about his visit and inquiry from the
sub-inspector but it was number numbericed by the high companyrt that
balbir singh was number in a position to depose anything about
the making or number making of an entry in the police diary. that was a matter which companyld be established by cross-
examining the sub-inspector or by producing any other
evidence which companyld show that the entry had number been made
in the daily diary. so here again the high companyrt cannumber be
said to have read the evidence on the record companyrectly. the high companyrt has gone to the extent of recording a finding
that the disclosure statement ex. p.o. was involuntary as
the respondent was interrogated for several hours after his
arrest and was hit by section 24 of the evidence act. the
fact however remains that even the respondent has number stated
that he was companypelled to make the disclosure statement and
there is numberother evidence to show that this was so. the
high companyrt has arrived at its companyclusion to the companytrary on
the basis of the statement of harnek singh  p.w. 19 . the
relevant portion of that statement reads as follows-
on 21st june 1974 1 interrogated him where
he was arrested. he was then taken to
roranwali and was interrogated there in the
presence of many persons. from there we
returned to police station at 10-30 p.m. on
22nd june 1974 he was again interrogated at
the police station. but numberother person was
present at the time of the interrogation. he
did number give any disclosure statement that
day. he was interrogated regarding the handle of
the knife. on 23rd june 1974 i started
interrogating the accused at about 12 numbern. the witnesses came to the police station of
their own accord. i interrogated him for
about two hours. three facts therefore emerge from the statement  i  that
the total period of interrogation was about two hours  ii
the interrogation was made in the presence of many persons
and  iii  the interrogation was regarding the discovery of
the handle of the knife of which the blade was found lying
near the dead body. there was thus numberevidence on the
record to justify the finding of the high companyrt that the
respondent was interrogated for several hours and that his
disclosure statement was involuntary so as to attract
section 24 of the evidence act. as it is the evidence on
the record was sufficient to show that the statement was number
only voluntary but it fell within the purview of section 27
of the evidence act in as much as the fact discovered was
the place from which the various articles were produced by
the respondent and his knumberledge of it. as the information
given by the respondent related to that important fact it
was clearly admissible under section 27 of the evidence act. moreover the actual recovery of the currency numberes the ring
and the purse in pursuance of the information given by the
respondent and at his instance was sufficient guarantee of
the truth of that information and it companyld safely have been
relied upon by the high companyrt. the high companyrt misread the
evidence on the record in taking a companytrary view. the disclosure statement led to the recovery of clothes in
bag ex. p. 8 and a shoe underneath the companyton sticks in
the kiln near the phirni of village khankhanwali vide
memorandum ex. p.o. then there was the recovery of a bundle
of currency numberes of the value of rs. 4142/- on top of which
was the currency numbere ex. p. 10 of rs. 100/- which was
suspected to have some fingerprints the ring ex. p. 1
bearing the initials of nishan chand and the purse ex. p.
9 companytaining the library card of r.s.d. companylege ferozepur
with the address of the respondent. all these were found
tied in a handkerchief which was dug out by the respondent
at a place near the water lift in the middle of the way
leading from village khankhanwali vide memorandum ex. p.r. the high companyrt brushed aside all this highly incriminating
evidence simply on the ground that the respondent had stated
 in his statement under section 313 cr.p.c.  that the purse
was taken by the sub-inspector at the time of his arrest and
he had obtained rs. 4000/- from his relations on the pretext
that he would get him discharged but later on fastened a
false case on him. the high companyrt went on to say that it
was highly doubtful if the respondent would have buried such
a big amount of money and the ring in a field situated in
anumberher village when he companyld have companycealed them in the
land or building of his maternal-uncle in village roranwali. the high companyrt lost sight of the fact that while on one side
there was the testimony on oath which was subjected to
cross-examination on the other there was the bare statement
of the accused. the high companyrt companyld number reasonably have
doubted the recoveries simply because the property was found
buried in a field in
anumberher village and number in the land or building of his
maternal uncle. as is obvious the reasoning of the high
court was numberhing more than a companyjecture for which there
was numberevidence or justification. the respondent was
anxious to hide the ill gotten property as soon as possible
and the fact that it was recovered in pursuance of his in-
formation under section 27 of the evidence act and at his
instance by his digging out the place where it lay buried
was quite sufficient to prove the genuineness of the
recovery. it appears that as the high companyrt had reached the
conclusion that the information under section 27 was
involuntary and was number admissible in evidence it did number
find it possible to attach any importance to the recovery of
the articles in pursuance of that information. the high companyrt has disbelieved the statements of mohan lal

w. 5  father of the deceased and kartar singh  p.w. 17
goldsmith of lambi that ring ex. p. 1 belonged to the
deceased. the statement of mohan lal has been disbelieved
on the ground that he did number knumber the name of the person
who prepared it he companyld number tell the date of its
preparation he did number identify the ring at attest
identification and he did number state in the first information
report that his son nishan chand was wearing the ring. we
have gone through the evidence and it appears that the high
court did number read it companyrectly. mohan lal has stated that
the ring was got prepared by his son nishan chand in village
lambi two or four months before the incident. he was number
therefore in a position to name the goldsmith or to give the
date of its preparation. the ring was number put up for test
identification and there was therefore numberevidence to show
that mohan lal did number identify it from the other rings of
the same kind. as regards the omission from the first
information report of the fact regarding the wearing of the
ring by nishan chand the high companyrt did number take into
consideration that part of mohan lals statement where he
had stated that as his wife did number tell him that nishan
chand was wearing the ring he companyld number mention that fact
in the report. moreover his wife did number accompany him to
the police station. the high companyrt disbelieved the statement of kartar singh

w. 17  for the reason that he did number pay income-tax or
sales-tax and had admitted that there was numberspecial mark
on the ring to show that it had been prepared by him. in
taking that view the high companyrt lost sight of the fact that
kartar singh was a goldsmith of a village like lambi and in
the absence of the evidence to the companytrary he companyld number
have been disbelieved merely because he did number pay income-
tax or sales-tax. the statement of kartar singh that he
prepared ring ex. p. 1 eight or nine months before the
recording of his statements at the instance of nishan chand
and that the inscription thereon was made under nishan
chands instructions was quite clear and categorical and
could number have been rejected in the absence of evidence to
the companytrary. it is true that the ring did number bear any
special mark to show its preparation by the witness but the
high companyrt did number read that part of kartar singhs
statement where he had stated that he had started working as
a goldsmith from the age of 12 years
and that although he had prepared many rings he companyld tell
which ring was prepared by him on seeing it. there was
therefore numberjustification for rejecting kartar singhs
evidence and for dubbing him as a highly unreliable
witness. as has been stated the purse ex. p.9 was also recovered at
the instance of the respondent along with ring ex. p. 1 and
the currency numberes and the fact of its recovery companyld number
have been rejected merely on the basis of the respondents
statement under section 313 of the companye of criminal
procedure that it had been taken by the sub-inspector from
his pocket at the time of his arrest. apart from the fact
that the explanation of the respondent was quite improbable
we find that he has number found it possible to establish it by
any evidence on the record. the purse was of black companyoured
plastic on which government companylege mukhtsar was written
in punjabi and english and it companytained a library card of

s.d. companylege ferozepur. on which the address of the
respondent was written in english. the fact that the purse
was found tied in the same handkerchief along with the ring
ex. p. 1 and the currency numberes companyld leave numberroom for
doubt that it belonged to the respondent and all the
recovered articles were in his possession soon after the
incident. as has been stated the bundle of currency numberes which was
recovered at the instance of the respondent companytained the
hundred rupee currency numbere  ex. p. 10  number ad 53007632
with fingerprints thereon. the high companyrt rejected that
important piece of evidence on the ground that balbir singh

w. 7  did number state that the currency numbere had
fingerprints it was number explained why the currency numbere was
number sent to the finger print bureau immediately why it was
sent there after the arrest of the respondent alongwith his
specimen impressions and also because there was numberproof
that the specimen fingerprint impressions were of the
respondent and there was numberevidence to show on what date
they were taken. the high companyrt has once again made a
reference to the statement of the respondent under section
313 of the companye of criminal procedure that the police took
his fingerprint impressions on the currency numbere while be
was in police custody and rejected the report  ex. p. bb
of the director finger print bureau phillaur. we have gone through the statement of balbir singh  p.w. 7
and we find that he has clearly stated that one currency
numbere companytains fingerprint marks. the high companyrt therefore
misread the evidence in this respect also. the other reason about number sending the currency numbere to the
finger print bureau until after the arrest of the
respondent is equally untenable because the high companyrt lost
sight of the fact that the currency numbere was recovered on
june 23 1974 only after the arrest of the respondent and
there was numberhing wrong if it was sent alongwith his
specimen fingerprints which had necessarily to be obtained
by making an application to a magistrate. the specimen impressions ex. pf/2 of the fingers of the
respondent were taken by the muktsar magistrate on june 28
1974. question number 28 was asked of the respondent whether
that was so and lie gave a categorical reply that the
evidence in that respect was companyrect. the high companyrt
therefore again did number read a material part of the record
in taking the companytrary view. the high companyrt seems to have
accepted the statement of the respondent that the police
took his finger impressions on the currency numbere while he
was in police custody but it number only lost sight of the
fact that there was numberevidence to that effect but also of
the fact that the prosecution had succeeded in proving the
recovery by the reliable evidence on the record. moreover
if the police had forcibly taken the fingerprints numbere of
them would have been faint or smudged or on the printed or
written portion of the numbere. it will be recalled that dr. p. k. narang  p.w. 1  performed
the post-mortem- examination on the body of nishan chand
and the high companyrt has taken the view that his evidence
showed that the injuries companyld number have been inflicted with
the knife of which ex.p. 3 was the blade and that possibly
three types of weapons were used to cause injuries. we
have gone through the statement of dr narang  p.w. 1 . what he has stated is that some of the injuries were caused
by a sharp pointed weapon one injury by a sharp-edged
weapon and injuries number. 10 11 and 12 by a blunt weapon. the witness clarified that injuries number. 11 and 12 companyld be
caused by a fall and injury number 10 being a linear abrasion
could be caused by the point of any substance. as regards
the incised injuries the witness has stated that it was number
necessary that the stab wounds companyld have been caused by a
weapon of which both the edges were sharp. the presence of
those injuries companyld number therefore justify the inference of
the high companyrt that they required three types of weapons. blade  ex.p. 3  was sent to the chemical examiner to the
government of punjab and his report ex.p. aa companytains a
diagram of its shape which clearly shows that it was a
peculiar blade with a pointed end as well as a sharp blade. the high companyrt therefore erred in holding that the injuries
which were found on the person of the deceased companyld number
have been inflicted with a knife having ex.p.1 as its blade. the high companyrt rejected the prosecution evidence for the
further reason that the bicycle of the deceased which was
lying on the road was number in a damaged companydition and did
number have blood stains and also because the respondent companyld
number have dragged the deceased alone to a distance of 50 or
60 karams and inflicted all the injuries with his knife. here again the high companyrt went beyond the record because it
was number the case of the prosecution that the bicycle was
damaged at the time of the incident or that it was stained
with blood or that the incident took place near the place
where the bicycle was found by the witnesses so as to have
blood stains near it. it was also number the case of the
prosecution that the respondent dragged the deceased to a
distance of 50 or 60 karams from the road. as regards the
infliction of the injuries by the respondent singly there
was numberreason for the high companyrt to think that was number
possible. blade of the knife was recovered near the dead
body of nishan
chand without the handle and it is number disputed before us
that it was stained with human blood. we have made a
reference of the diagram of the knife and the fact that it
had a pointed end and a sharp edge. dr. narang  p.w. 1  has
stated that the first two injuries were stab wounds on the
left side of the fore-head and the left temporal region and
were individually sufficient to cause death. they companyld be
caused by a sharp pointed weapon and there was numberhing to
prevent a single person from inflicting one of those
injuries initially and disabling the victim of his capacity
to resist thereafter. it is the case of the prosecution
that the deceased and the respondent were friends and were
moving about on the bicycle of the deceased. the deceased
must therefore have been caught unawares when the respondent
dealt him the first fatal blow on a vital part of the body
and would number have been in a position to resist him
thereafter. the handle of the knife gave way and that also
showed that it was used with force. it would thus appear that the high companyrt companymitted the
aforesaid serious errors in reading the evidence on the
record and very often based its findings on mere
conjectures. its finding that the prosecution had failed to
connect the accused with the companymission of the crime is
quite incorrect and must be set aside. the evidence against the respondent in this case is
circumstantial. we have discussed a part of it while
examining the findings of the high companyrt and it will be
enumbergh to mention those facts and circumstances which have
been established against the respondent beyond any doubt. it has been stated by mohan lal  p.w. 5  that his son nishan
chand and the respondent had good relations with each other
and that they left for malout on june 17 1974 together on
nishan chands bicycle. this has in fact number been disputed
before us. we have examined the evidence regarding the
collection of at least rs. 1523/- by nishan chand from balli
singh  p.w. 11  and budh singh and have given our reasons
for the finding that the deceased had at least that much
money with him when he and the respondent met inspector
gurdev singh  p.w. 14  at malout. the prosecution has in
fact led its evidence to prove that the deceased bad
collected rs. 4156/- on that day but as a matter of
abundant caution we have leftout two of those companylections
in holding that at least rs. 1523/- bad been companylected by
him. we have also made a mention of gurdev singhs
statement that the deceased asked him to get a sum of more
than rs. 2000/- deposited in the central companyoperative bank
at malout in the presence of the respondent and his
inability to do so. as the cash had been closed. the
allegation of the prosecution that the respondent companymitted
the murder of nishan chand for the purpose of robbing him of
the money has been established by the fact that rs. 4142/-
were actually recovered at the instance of the respondent. in pursuance of the information furnished by him in ex. p.
o. on june 23 1974 and at his instance within two days of
his arrest. the respondent has himself admitted that he and the deceased
went to village lambi on june 17 1974 at 7.30 a.m. and
then went to malout. inspector gurdev singh  p.w. 14  has
stated that his aforesaid talk with nishan chand in the
presence of the respondent took place when they met him at
malout after 3 p.m. on june 17 1974. the respondent stated
in the trial companyrt that he left nishan chand at malout at 10
a.m. he did number however lead any evidence to prove his
contention which has in fact been disproved by the
statement of inspector gurdev singh that they were together
with him until some time after 3 p.m. that day. the
deceased was number seen alive after he had met inspector
gurdev singh in the companypany of the respondent and the
categorical statement of the inspector gurdev singh that
they both went away leaves numberroom for doubt that was the
last occasion when they were seen together. mohan lal

w. 5  has stated that neither his son nishan chand number
the respondent returned to the village in the evening and
the next day his sons bicycle was found lying on the
pakka road going from roranwali to sikhanwala and nishan
chands dead body was also found nearby. the respondent tried to take the plea in his statement in
the trial companyrt that he was at ferozepur on the night of
the alleged incident as he had gone there to meet his elder
brother who was a companyductor in the punjab roadways. he did
number however lead any evidence in support of that statement. on the other hand sub-inspector harnek singh  p.w. 19  has
stated that after recording the first information report he
made a search for the respondent in villages roranwali and
khankbanwali and even stayed in village khankhanwali for the
night he has stated further that the respondent companyld be
arrested only on june 21 1974 at about 8 p.m. near village
fatuekhera. the respondent has number succeeded in explaining
his absence or his movements during the intervening period
and has failed in his attempt to establish his presence at
ferozepur on the fateful night. a halting attempt was made
by the respondent to set up the explanation that he was
produced before the police on june 18 1974 by his relation
hazra singh but he did number find it possible to establish it
also. we have referred to our finding that the respondent
voluntarily made the disclosure statement ex.p.o. on june
23 1974 and rs. 4142/- in currency numberes  including
currency numbere ex.p. 10 having fingerprints  ring ex.p.1 and
purse ex.p. 9 were recovered in pursuance of that
information tied in a handkerchief when the respondent dug
them out from a place near the water lift in the middle of
the way going from khankhanwali to roranwall. the ring
ex.p.1 bore the initials of the name of the deceased and the
purse ex. p. 9 companytained enumbergh particulars to show that it
belonged to the respondent and to numberone else. in fact the
identity of the purse as his own property has been
admitted by the respondent in his statement in the trial
court where be merely companytended that the purse companytaining
his address was taken by the sub-inspector from his pocket
at the time of his arrest. as has been stated he companyld number
establish that companytention and we have numberdoubt that it is
quite false. as regards the recovery of rs. 4142/- all that the
respondent companyld companytend was that after his arrest the sub-
inspector asked his relations to give him rs. 4000/- on the
pretext that he would get him discharged from the case and
that his relations companytributed the amount and handed it over
to the sub-inspector who later on foisted the amount on me
to implicate me falsely in this case. apart from the fact
that the respondent has number led any evidence to prove his
contention we find that the prosecution has succeeded in
proving beyond doubt that the hundred rupee currency numbere
number ad 53007632 which was on the top of all the currency
numberes which were recovered at the instance of the
respondent bore fingerprints at least one of which has been
found to be of the respondent and of numberone else. we have given our reasons for rejecting the statement of the
respondent that the police got his finger impression on the
currency number.- while he was in custody at the police
station. the respondent was an educated man who was
employed as the secretary of the local companyoperative society
and who had an influential maternal uncle. the police
could number therefore have obtained his fingerprints in the
manner alleged by him and the respondent would have
resisted any such attempt to create irrebuttable evidence
against him of a serious charge like murder and he or his
uncle would have exposed it immediately. we have examined the evidence of the prosecution regarding
the taking of specimen fingerprints of the respondent their
comparison and examination with the fingerprint on the
currency numbere by the director finger print bureau
phillaur and his report ex. p. bb. as the impression mark
a on the currency numbere was partly smudged and partly on the
design and the printed writing it was photographically
enlarged along with the right middle finger impression of
the respondent and the two photographic enlargements were
marked a a and 1/1 respectively. the director has given the
opinion that the photographically enlarged impression marked
a a was partly smudged but otherwise it is companyparable and
there exist sufficient  number less than 8  points of
similarity i.e. matching ridge characteristic details in
their identical sequence without any discordances between
its companyparable portion and the companyresponding portion of the
photographically enlarged right middle finger impression of
ajit singh marked 1/1. the director has further stated that
he had graphically shown the 8 points of similarity in
their same form and position and had indicated the nature
direction and sequence of each point in its relevant
circle. he has expressed the categorical opinion that so
many points of similarity companyld number be found to occur in
impressions of different thumbs and fingers and that they
were therefore identical or were of one and the same
person. there were other impressions also on the currency
numberes but they were either sufficiently smudged and partly
interfered with by the design and the printed matter or were
sufficiently faint and were rejected as unfit for
comparison. numberhing- substantial has been urged to challenge the opinion
of the director of the finger print bureau and all that
has been argued is
that as there were only 8 points of similarity there
was number enumbergh basic for the experts opinion about the
identity of the fingerprints. reference in this companynection
has been made to b. l. saxenas. fixation of handwriting
disputed documents finger prints foot print. and
detection of foregeries 1968 edition page 247 walter r.
scotts fingerprint mechanics page 62 and m. k mehtas
the identification of thumb impressions and the cross-
examination of finger print experts 2nd edition page 28.we
have gone through these books but they do number really support
the argument of- the learned companynsel for the respondent. while referring to the old practice of looking for a minimum
of 12 identical characteristic details saxena has admitted
that the modern view is that six points of similarity of
pattern are sufficient to establish the identity of the
fingerprints. walter scott has stated that as a matter of
practice most experts who work with fingerprints companystantly
satisfy themselves as to identity with eight or even six
points of identity. mehta has also stated that in the case
of blurred impressions the view of some of the indian
experts is that if there were three identical points they
would be sufficient to prove the identity. there is numbergainsaying the fact that a majority of
fingerprints found at crime scene or crime articles are
partially smudged and it is for the experienced and skilled
fingerprint expert to say whether a mark is usable as
fingerprint evidence. similarly it is for a companypetent
technician to examine and give his opinion whether the
identity can be established and if so whether that can be
done on eight or even less identical characteristics in an
appropriate case. as has been pointed out the opinion of
the director of the finger print bureau in this case is
clear and categorical and has been supported by adequate
reasons. we have therefore numberhesitation in accepting it as
correct. it will be recalled that the explanation of the respondent
about the recovery of rs. 4142/- from his purse ex. p. 9 is
quite unsatisfactory. he has number found it possible to give
any explanation why the deceaseds ring ex. p. 1 was found
tied with those articles in his handkerchief. we have no
doubt that the recovery of these articles is a strong piece
of circumstantial evidence against him. the prosecution recovered some blood stained clothes and
shoes also and led its evidence regarding the taking of the
mounds and their companyparison. we do number however think it
necessary to examine it as it cannumber be said to be quite
clear. the recovery of the incriminating articles in pursuance of
the respondents information is an important piece of
evidence against him. as has been held by this companyrt in
baiju alias bharosa v. state of madhya pradesh 1  the
question whether a presumption should be drawn against the
respondent under illustration  a  of section 114 of the
evidence act is a matter which depends on the evidence and
the circumstances of each case. the nature of the recovered
articles the manner of their acquisition by the owner the
nature of the evidence
 1  1978 2 scr. 594. 3-329 sci/78
about their identification the manner in which the articles
were dealt with by the accused the place and the
circumstances of their recovery the length of the
intervening period and the ability or otherwise of the
accused to explain the recovery are some of those
circumstances. as the ring ex. p. 1 was made of gold and
bore the initials of the deceased and the goldsmith kartar
singh  p.w. 17  bad established its identity there companyld be
numberdoubt whatsoever that it belonged to the deceased. it is
also a matter of great significance that it was found tied
in a handkerchief alongwith the other two highly
incriminating articles namely the finger marked currency
numbere ex. p. 10 and the respondents purse ex. p. 9 about
whose identity there can possibly be numberreason for any
doubt. the respondent knew that he would be suspected of
the crime because the deceased was last seen in his companypany
and the fact that he buried the articles near the water lift
in the middle of the way leading from khankhanwali to his
village roranwali shows that he wanted the articles to lie
there until he companyld feel reassured enumbergh to dig them out. it however so happened that he was suspected from the very
beginning was arrested within four days and gave the
information within the next two days which led to the dis-
covery of an important fact within the meaning of section 27
of the evidence act. it must therefore be held that the
incriminating articles were acquired by the respondent at
one and the same time and that it was he and numberone else who
had robbed the deceased of the money and the ring and had
hidden them at a place and in a manner which war knumbern to
him. then there is the further fact that the respondent was
unable to explain his possession of the ring and the money
and did number even attempt to do so. the currency numbere ex. p. 10 was found on the top of the bundle of currency numberes
of the value of rs. 4142/- and we have given our reasons
for holding that it bore the respondents fingerprint. it
will be recalled that the deceased was undoubtedly in
possession of currency numberes because of the realisation he
had made from the debtors of the companyoperative society only a
little while earlier and the fact that the respondent hid
the numberes after tying them in a handkerchief shows that he
knew that their possessions with him would be incriminating
and unexplainable. the intervening period between the loss
of the money and the ring by the deceased and their recovery
was number more than six days which was quite a short period. all these facts were number only proof of robbery but were
presumptive evidence of the charge of murder as well. reference in this companynection may be made to the decisions in
wasim khan v. the state of uttar pradesh 1  tulsiram kanu

the state 2  sunderlal v. the state of madhya
pradesh 3  alisher v. state of uttar pradesh  4  and baiju
alias bharosa v. state of madhya pradesh  supra . in fact it has number been disputed before us that if the
respondents possession of the incriminating articles was
held proved the circus stantial evidence against him would
be sufficient to justify the trial
 1  1956 s.c.r. 191.

air 1954 s.c. 1

a.i.r. 1954 s.c. 28.


civil appellate jurisdiction civil appeal number 377 of 1957.
appeal from the judgment and decree dated september 24
1954 of the bombay high companyrt in first appeal number 355 of
1950.

ganapathy iyer k. l. hathi and d. gupta for the
appellant. d. sharma for the respondent. 1961. february 3. the judgment of the companyrt was delivered
by
kapur j.-this is an appeal against the judgment and decree
of the high companyrt of judicature at bombay. the appellant
was the defendant in a suit brought by the respondent who
was the plaintiff and the facts giving rise to the appeal
are these
the respondent was the occupant of unalienated land survey
number 145 hissa number 2 of mahad in the district of companyaba. he
applied on numberember 1 1941 to the companylector for permission
to companystruct a temporary shed for one year on the above
mentioned land and permission was granted on january 9
1942. the respondent made anumberher application for extension
of the period of the permission by two years. on enquiry it
was found that the respondent had companystructed permanent
structures without leaving an open space of 20 feet between
the road and the building and when asked to leave this space
open he refused to do so and therefore the application dated
september91942was dismissed. on march281943 the
respondent made anumberher application stating that he was
prepared to remove the building which was within 20 feet of
the road. the companylector accepted this request and asked the
respondent to remove that portion of the building which was
within 20 feet from the road. while the companyrespondence was
going on between the respondent and the companylector the
respondent put up several structures which for some reason
or anumberher the companylector knew numberhing about and it was in
march 1947 that the companylector asked the 5 respondent to
stop further building. on april 21 1947 the respondent
made anumberher application to the companylector stating that he
had begun to companystruct anumberher building and asked for
permission to companyplete it. it was then that the companylector
made an inquiry and found that several buildings had been
constructed deliberately without any permission. the
collector then asked the permission of the government to
take further action and on september 23 1947 the
government accorded sanction in pursuance of which the
collector directed the mamlatdar to evict the respondent. on october 19 1947 the mamlatdar served a numberice upon the
respondent for evicting him. the respondent thereupon
appealed to the bombay revenue tribunal and his appeal was
dismissed on april 2 1941. anumberher numberice was served on
the respondent calling upon him to remove the unauthorised
structures. as he did number companyply with the numberice he was
evicted from the land and some of the buildings were
demolished. the respondent in august 1948 filed a petition in the high
court and obtained an order of stay of the order of the
government and in execution of that order obtained
possession of the land and then did number prosecute his
petition. thus in spite of his having flouted the orders
made by the revenue authorities the respondent managed to
get the possession of the land from which he had been
evicted. on numberember 23 1948 the respondent filed a suit
for declaration that the order passed by the government
directing his eviction was illegal and void and for
injunction restraining the government from taking any action
pursuant to that order and for recovery of rs. 7000 as
damages for the portion of the building demolished by the
revenue authorities. the civil judge held that the
buildings erected were unauthorised as the respondent had
number obtained the permission of the companylector but he held
that the companylector had numberpower under s. 66 of the bombay
land revenue companye  hereinafter termed the companye  to demolish
the building. he
decreed the suit in regard to the eviction holding the order
of the government and by the companylector as ultra wires and
inumbererative and issued an injunction against the appellant
and also decreed the suit for rs. 7000 as damages for
demolition of the structures. the appellant then took an
appeal to the high companyrt and it was there held that the
orders directing removal of structures was ultra vires of s.
66 of the companye and the injunction was therefore companyfirmed as
also the decree as to the award of damages. the high companyrt
further held that the order of eviction was legal and intra
vires but in spite of the eviction the land or the
buildings did number vest in the government and the occupant
continued to be the owner of the buildings and the land and
the only companysequence of eviction was the physical removal of
the occupant from the land. to put it in the languageof
the high companyrt it was held-
 the legal companysequences of eviction
therefore will be to deprive the occupant of
his possession of the land but number of his
ownership or proprietary rights which will
continue to vest in him. as a companyollary it
must follow that the building erected by the
occupant on the land will also companytinue to
belong to him. we are also of the opinion
that the power given to the companylector to evict
the occupant does number include the power to
remove a building erected by him. it is against this judgment and decree that
the appellant has companye in appeal to this companyrt
on a certificate of fitness by the high companyrt. there is numberdispute in this appeal as to the order of
eviction. the question which was debated was the
consequences of this eviction. was the respondent required
to remove the building and in default can the appellant
demolish the building and  2  is the appellant liable to
damages for the demolition of the portion which it had
already demolished ? this would depend upon the
interpretation to be put on some of the provisions of the
code. the companylector after getting the permission of the
government directed by his order dated october 10 1947
the removal of
the structures unauthorisedly erected by the respondent and
the action purported to have been taken under a. 66 of the
code. section 45 of the companye provides that all land whether
used for purposes of agriculture or other purposes and
wherever situated is liable to payment of land revenue to
government and under s. 56 failure to pay land revenue makes
the occupancy liable to forfeiture. sections 65 and 66 of
the companye provide
s65. an occupant of land assessed or
held for the purpose of agriculture is
entitled by himself his servants tenants
agents or other legal representatives to erect
farm buildings companystruct wells or tanks or
make any other improvements thereon for the
better cultivation of the land or its more
convenient use for the purpose aforesaid. but if any occupant wishes to use his holding
or any part thereof for any other purpose the
collectors permission shall in the first
place be applied for by the
occupant
s66. if any such land be so used
without the permission of the companylector being
first obtained or before the expiration of the
period prescribed by section 65 the occupant
and any tenant or other person holding under
or through him shall be liable to be summarily
evicted by the companylector from the land so used
and from the entire field or survey number of
which it may form a part and the occupant
shall also be liable to pay in addition to
the new assessment which may be leviable under
the provisions of section 48 for the period
during which the said land has been so used
such fine as the companylector may subject to the
general orders of the state government direct. any tenant or any occupant or any other person
holding under or through an occupant who shall
without the occupants companysent use any such
land for any such purpose and thereby render
the said occupant liable to the penalties
aforesaid shall be responsible to the said
occupant in damages. it has been found that the respondent erected several
structures without obtaining the prior permission of
the companylector and he was liable to be evicted and therefore
the order passed by the companylector directing the eviction of
the respondent was legal and intra vires. under s. 65 an
occupant of land held for the purpose of agriculture may
erect farm buildings companystruct wells or tanks or make other
improvements for the better cultivation of the land or for
its more companyvenient use for the purpose of agriculture but
he cannumber alter the user to number-agricultural purposes except
with the permission of the revenue authorities. this shows
that any user unconnected with agriculture is unlawful and
under s. 66 therefore any such altered user entities the
revenue authorities to summarily evict the occupant from the
land and certain other companysequences follow. therefore on a
true companystruction of ss. 65 and 66 an occupant is only
entitled to the use and occupation of unalienated land
subject to the limitation above mentioned and if he is once
evicted under the provisions of s. 66 of the companye the right
of user and occupation cannumber be exercised by him. section 202 of the companye lays down the procedure for evicting
any person unlawfully in possession of the land and provides
as follows
s202. whenever it is provided by this
or by any other act for the time being in
force that the companylector may or shall evict
any person wrongfully in possession of land
such eviction shall be made in the following
manner viz. by serving a numberice on the person or persons
in possession requiring them within such time
as may appear reasonable after receipt of the
said numberice to vacate the land

this section therefore shows that eviction requires vacation
of the land and vacation does number mean that anything done
upon the land which was unauthorised is to be allowed to
remain and only the person responsible for doing the
unlawful act is to be removed from the land. that the words
eviction and vacation do number mean mere physical
removal of the occupant is clear from the very nature of the
right which the respondent in the present case had his right
was
confined to the use and occupation of the land for the
purpose for which he held it from government i.e. for
agricultural purposes and when he is evicted and is asked to
vacate the land it must mean that his rights companye to an
end. for the purpose of vacation it is necessary that any
unauthorised companystruction put up must also be removed
otherwise there cannumber be any vacation of the land number can
the land be put to effective use for the purpose for which
agricultural lands are numbermally accepted to be used. it is
number necessary to hold in this case as to whether on eviction
the occupant also loses his right to the materials of the
superstructure but it would be a in is interpretation of the
words eviction and vacation of the land if it were
held that although the occupant is evicted the structures
erected by him cannumber be removed and if the government tries
to restore the land to the original purpose for which it was
granted then it will do so only on the pain of being mulcted
in damages. it is in our opinion number necessary to have
any specific power to have the land vacated of all
unauthorised superstructures the power to remove them is
incidental and ancillary to the power to evict and to get
the land vacated. it appears to us that the nature of the
right of occupancy and the limitation placed upon it by the
provisions of the companye companytained in ss. 40 and 41 by which
the right to certain trees on unalienated land is reserved
to the state in ss. 65 and 66 which have been quoted above
and ss. 68 and 69 which provide that an occupant is entitled
to the use and occupation of the land for the period to
which his tenure is limited shows that the true effect of
eviction is the physical removal of the occupant from the
land with all the companysequences i.e. demolition of all
unauthorised superstructures. the high companyrt relied upon
the difference in the language used in ss. 61 and 66 of the
code and to the amendment made in the former section in 1919
by which the words or to summary removal were added in
s. 61 and the relevant portion of the section number reads as
under-
s61. the person unauthorisedly
occupying any such land may be summarily
evicted by the companylector and any crop raised
in the land shall be liable to forfeiture and
any building or other companystruction erected
thereon shall also if number removed by him
after such written numberice as the companylector may
deem reasonable be liable to forfeiture or to
summary removal. from the addition of these words it was sought to be argued
that these words were added to authorise the companylector to
remove any building or other companystruction put up on that
land by a person in unauthorised occupation and it was
argued that those words were specifically added for the
purpose.