<NAME>, J.

1. These cases raise the question of the scope of entry 47 in Schedule I to the Madras General Sales Tax Act, 1959, more specifically whether the entry includes furnace oil. Besides, certain subsidiary questions also arise, which in most part are covered by authority. The assessee is <ORG>, which has been assessed to sales tax for the assessment year 19'64-65. In the first of these cases, there are four items of turnover, a sum of Rs. 2,08,52,235.42 representing the turnover of sales of furnace oil, Rs. 22,234.59 being the turnover of canteen sales, Rs. 1,97,917.20 representing sales of publicity materals, and the last a sum of Rs. 29,660.00 being the aggregate sales of scrap. In respect of the turnover of sales of publicity materials, a penalty of Rs. 1,000 was levied on the ground that there was a failure to return that amount. The assessing officer considered that furnace oil fell within the ambit of item 47 and brought them to tax at 6 per cent. On the view that the other items of turnover constituted sales in the course of business, they too were charged to tax. The assessee has failed throughout, the <ORG> taking the view that furnace oil as mineral oil was well within the ambit of the entry and that the other items of turnover represented sales effected by the assessee as a dealer in the course of its business. In the other two tax cases also the question as to the scope of entry 47 arises in relation to furnace oil, and an additional point in T.C. No. 110 of 1967, is as to the taxability of the sales of scrap.

2. Entry 47 as it originally stood was "lubricating oils and greases". The entry as amended by Madras Act VII of 1964, which came into effect from April 1, 1964, reads:

Lubricating oils, all kinds of mineral oils (not otherwise provided for in this Act), quenching oils and greases.

3. It is not disputed for the revenue that furnace oil is not a lubricant. Under the head of "Lubrication" in <NAME> Scientific Encyclopaedia, this is what is stated at page 888:-

Lubricants are employed in engineering practice for two reasons :

(1) to diminish friction between the moving surfaces of machine parts; and (2) to decrease friction between a cutting tool and the material to be cut, and at the same time serve to dissipate the heat developed in the machining operation. When the heat-dissipating function is of primary importance, the lubricant is usually referred to as a coolant.

Lubricants may be classified either by state as liquid, semi-solid, or solid, or by origin as mineral, vegetable, or animal...

Mineral oils are refined from crude oil by separating and purifying the various heavy components of the crude...the methods of treatment vary widely.

4. In that sense, fuel oil is obviously not a lubricant. In fact, it is a combustible article used in industry for fuel purposes which may be varying in character. But the revenue's point of view is that although fuel oil is not a lubricant, it being mineral oil, it squarely falls within the ambit of the words "all kinds of mineral oils" in entry 47.

5. For the assessee it is urged that those words in the context of the words preceding and following should be given a limited meaning and be understood as "all kinds of mineral oils which are lubricants". This construction is sought to be supported in two ways, one by reference to the objects and reasons of the amendment by Act VII of 1964, and the other by the aid of the ejusdem generis rule.

6. In the statement of objects and reasons, it was said:

Under item 47 in the First Schedule to the said Act, 'lubricating oils and greases' are liable to a single point tax at the point of first sale in this State. A doubt has been raised whether soluble quenching oil which is a mineral oil and which is used as a lubricating oil would fall under the said item 47. It has, therefore, become necessary to amend the said item 47, so as to include within its scope all kinds of mineral oils (not otherwise provided for in the said Act) and quenching oils.

7. In construing an enactment, particularly an amending provision, it is permissible to have regard, and sometimes it may be necessary to do so, to the history of the amendment and the reasons which led to its enactment. It would then be pertinent to see what was the evil or mischief that existed before and had to be cured, and how the cure or remedy has been provided. This principle of construction has now been well recognised for long from <NAME>'s case, (1584) 3 Co. Rep. 7a (F) and has been referred to with approval in <CITATION>  32 I.T.R. 615. From that point of view and for that limited purpose, the <ORG> may be justified in its effort to construe the amending Act in referring to the statement of objects and reasons. <CITATION>  32 I.T.R. 615, itself this was stated in these terms :

What was intended to be done by the <ORG> in enacting this amendment may be gleaned to a certain extent from the statement of objects and reasons appended to the Bill which eventually became the amending Act.

8. The statement of objects and reasons for Madras Act VII of 1964 appears to be that because a doubt had been raised whether soluble quenching oil which is a mineral oil was a lubricant, it became necessary to amend item 47. It was for that reason the entry was amended as it appears now. Quenching oil is a coolant and is also used as a lubricant. A reference to certain publications, which we need not refer to, confirms this. That quenching oil is a mineral oil is not in controversy before us. Entry 47 begins with the words "lubricating oils" and ends by the words "quenching oils and greases". In between the two groups are found inserted the words "all kinds of mineral oils (not otherwise provided for in this Act)". Having regard to the objects and reasons we referred to, which were not designed to introduce into item 47 something which was not a lubricant oil, and the association of words preceding and following the words "all kinds of mineral oils", we are inclined to think that by those words what the <ORG> intended is all kinds of mineral oils which are lubricants. We agree with the <ORG> that dissociated from the associated words, from the context and de hors the statement of objects and reasons, the words "all kinds of mineral oils" are capable of a wide meaning and would well include mineral oils which are not lubricants. But, since these words appear in the context and association of words and the amending Act was intended merely to clear the doubt, it appears clear that the words "all kinds of mineral oils" in the entry bear only a limited meaning, namely, mineral oils which are lubricants. The <ORG> has construed the words "(not otherwise provided for in this Act)" as reflecting a larger meaning or fuller scope of the words "all kinds of mineral oils". We are unable to accept this view. The words "(not otherwise provided for in this Act)" can only refer, in the context, to mineral oils which are lubricants and which are provided for elsewhere in the Schedule than in item 47. If the <ORG> intended that mineral oils other than lubricants are to be brought within the single point scheme of taxation, we fail to see how and why it failed to make an independent entry, but chose to interpose the words "all kinds of mineral oils" between the words in the entry which cover only lubricants.

9. We are of opinion, therefore, that entry 47, as amended in 1964, does not include furnace oil which is a non-lubricant.

10. On that view it will be unnecessary to invoke the aid of the ejusdem generis rule. Since, however, argument has been addressed to us, we will briefly deal with that aspect too. The rule is that where specific words are followed by general expressions, the latter notwithstanding their wider tenor in ordinary parlance de hors the context, will take their complexion and content from the preceding words. It has been said-see for instance Craies on Statute Law, Sixth Edition, at page 181-that:

To invoke the application of the ejusdem generis rule there must be a distinct genus or category. The specific words must apply not to different objects of a widely differing character but to something which can be called a class or kind of objects. Where this is lacking, the rule cannot apply, but the mention of a single species does not constitute a genus.

11. <NAME>, L.J., in <CITATION>  2 K.B. 385; observed:

Unless you can find a category, there is no room for the application of the ejusdem generis doctrine.

12. This principle finds recognition in <CITATION> . A.I.R. 1964 S.C. 1882 where <ORG> stated:

It follows, therefore, that interpretation ejusdem generis or noscitur a sociis need not always be made when words showing particular classes are followed by general words. Before the general words can be so interpreted there must be a genus constituted or a category disclosed with reference to which the general words can and are intended to be restricted.

13. The argument before us is that the opening words in entry 47, to wit, lubricating oils, constitute a genus and the following words "quenching oils and greases" are but species of the genus. If two species are mentioned followed by general words, the rule of ejusdem generis may limit the sense of the general words to the species constituting a genus. But where a genus itself is mentioned followed by mention of certain species and in between is introduced general words, we think the position is a fortiori, for, sandwiched as they are, the general words will, in our opinion, take their sense and scope from the associated words preceding and following them. No direct authority has been quoted to us; but we think that the principle of the rule of ejusdem generis, having regard to the essence of it, will apply to the situation limiting the meaning of the general words to that of the genus and the species mentioned. On this basis too, we arrive at the same conclusion that entry 47 in Schedule I to the Act does not include furnace oil.

14. We pass on to a consideration of the chargeability of the sales of publicity materials. The <ORG> finds that the assessee places bulk orders to secure the materials at a reduced cost for their distributors and hand over such publicity materials to them either at cost price or at less than cost price. For the assessee, the view of the <ORG> is attacked from two standpoints. The first is that on that finding there was no purchase or sale at all in the true sense by the assessee; and secondly, even if there was, it was not as a dealer. We think it will suffice to deal with the second. The object of the assessee which is a limited company, is not shown to be to engage itself in the trade or commerce of publicity materials. It may be that distribution of the publicity materials to the distributors is connected with the business of the assessee. But that will not be sufficient to make it a trade or an activity in a commercial sense. It would be inappropriate, in our opinion, in the circumstances to regard the assessee as a dealer in publicity materials while the distribution of the publicity materials at cost price or less than the cost price was intended solely for the purpose of advertisement. While the distribution may be connected, as we said, with the pursuit of the assessee's business, it is not by itself its business carried on as a dealer. On that view we think that the turnover relating to sales of publicity materials is not chargeable to tax.

15. That the sales of scrap by the assessee is not liable to tax, is covered by the principle of our judgment in T.C. Nos. 170 and 213 of 1964 <CITATION> by D.C.T.O., Tirunel-veli p. 195 supra and so too canteen sales by our judgment in T.C. No. 152 of 1964 ( <CITATION> .  20 S.T.C. 287). So far as the penalty is concerned, this clearly is unsupportable, because the turnover relating to publicity materials was disclosed by the assessee's accounts and it cannot be suggested that the return submitted was incomplete or inaccurate and that a best judgment in that sense was called for. Section 12(3) of the Act will clearly have no application. We hold, therefore, that the penalty of Rs. 1,000 is illegal.

16. The tax cases are allowed with costs one set. Counsel's fee Rs. 250.


JUDGMENT

1. It is argued that the application for execution is barred by reason of the application of 1889 having been returned for amendment with reference to Clause (f) of Section 235 of the Code, and the amendment not having been made within the time allowed for the purpose. The defect in the previous application consisted in omitting to state the earlier of two previous applications and its result. It is admitted that this omission was in no way calculated to prejudice the judgment-debtor or to mislead the <ORG>; such being the case, though the application was formally defective with reference to the provisions of Section 235, it substantially complied with them.

2. We are, therefore, unable to hold that it was not an application made in accordance with law within the meaning of Article 179 of schedule II of the Limitation Act. This view is in accordance with the decision in <CITATION> ., 6 Mad., 250.

3. Our attention has been drawn to the decision of a Full bench of <ORG> in <CITATION> ., 17 Cal., 631 but in that case the defect was not merely formal. The property sought to be attached was not fully described nor was a list of such property produced.

4. We dismiss this appeal with costs.


PETITIONER: ADDANKI NARAYANAPPA & <NAME>. Vs. RESPONDENT: <NAME> AND 13 ORS. DATE OF JUDGMENT: 21/01/1966 BENCH: <NAME>, J.R. BENCH: <NAME>, J.R. SARKAR, A.K. WANCHOO, K.N. CITATION: 1966 AIR 1300 1966 SCR (3) 400 CITATOR INFO : F 1967 SC 401 (9) RF 1968 SC 676 (6) D 1974 SC1066 (4,5) R 1977 SC 489 (16) C 1980 SC 176 (17) R 1986 SC 368 (11) RF 1986 SC1821 (29) RF 1991 SC1806 (8) R 1992 SC 65 (10) RF 1992 SC 197 (10) ACT: Registration Act , s. 17(1) (c)-Partnership assets consisting of immovable property-Relinquishment by one partner of his share-Deed of relinquishment if should be registered. HEADNOTE: The members of two Joint Hindu families (Appellants and Respondents) entered into partnership for carrying on business. The members of one family filed a suit in 1949 for dissolution of the partnership and the taking of accounts. The members of the second family raised the defence that the partnership was dissolved even in 1936 and that accounts were then settled between the two families. In support of that plea they relied upon an unregistered document, which showed that the partnership had come to an end. It was contended by the appellants-plaintiffs, that since the partnership assets included immovable property and the document recorded the relinquishment by the members 6f the plaintifffamily of their interest in those assets, the document was compulsorily registerable under s. 17(1)(c) of the Registration Act, 1908; and that as it was not registered, it was inadmissible in evidence to prove the dissolution as well as the settlement of accounts. HELD : The document only records the fact that the partnership had come to an end. It cannot be said to convey any immovable property by a partner to another, expressly or by necessary implication, nor is there any express reference to any immovable property, except a recital of a fact which had taken place earlier. Therefore, the unregistered deed of release by one family of its share in the partnership was admissible in evidence, even though the partnership owned immovable property. [410 D. E] The interest of a partner in partnership assets comprising of movable as well as immovable property should be treated only as movable property. His right during the insistence of the partnership is to get his share of the profits from time to time, as may be agreed upon among the partners, and his right after the dissolution of the partnership, or with his retirement from, the partnership, is only to receive e the money value of his share in the net partnership assets as on the date of dissolution or retirement, after a deduction of Liabilities and prior charges. [406 E; 407 F-G) Case law reviewed. JUDGMENT:

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 299 of 1961. Appeal by special leave from the judgment and decree dated December 8, 1958 of <ORG> in Second Appeal No. 845 of 1953.

<NAME> and <NAME>, for the appellants. <NAME>, <NAME>, <NAME>, <NAME> for <NAME>, for respondents Nos. 4, 7 and 8.

The Judgment of the Court was delivered by <NAME>, J. In this appeal by special leave from a judg- ment of <ORG> of Andhra Pradesh the question which arises for consideration is whether the interest of a partner in partnership assets comprising of movable as well as immovable property should be treated as movable or immovable property for the purposes of s. 17(1) of the Registration 'Act, 1908. The question arises in this way. Members of two joint Hindu families, to whom we would refer for convenience as 'the <NAME> family and the <NAME> family, entered into partnership for the purpose of carrying on business of hulling rice, decorticating groundnuts etc. Each family had half share in that business. The capital of the partnership consisted, among other things, of some lands belonging to the families. During the course of the business of the partnership some more lands were acquired by the partnership. The plaintiffs who are two members of the <NAME> family instituted a suit in the court of Subordinate Judge, <NAME> on March 4, 1949 for the following reliefs "(a) for a declaration that the suit properties belong to the plaintiffs and defendants IO to 14 and defendants 1 to 9 equally for a division of the same into four equal shares, one share to be delivered to the plaintiffs or for a division of the same into two equal shares to be delivered to the plaintiffs and the defendants 10 to 14 jointly;

(b) or in the alternative dissolving the partnership between the plaintiffs and defendants 10 to 14 on the one hand and defendants 1 to 9 on the other hand directing accounts to be taken;

(c) directing the defendants 1 to 9 to render accounts of the income of the suit properties;

(d) directing the defendants 1 to 9 to pay the costs of the suit to the plaintiffs;

(e) and pass such further relief as may be deemed fit in the circumstances of the case. It may be mentioned that in their suit the plaintiffs made all the members of the <NAME> family as defendants and also joined those members of the <NAME> family who had not joined as plaintiffs. We are concerned here only with the defence of the members of the <NAME> family. According to them the partnership was dissolved in the year 1936 and accounts were settled between the two families. In support of this plea they have relied upon a karar executed in favour of <NAME> Gurappa Setty, who was presumably the karta of the <NAME> family, by five members of the <NAME> family, who presumably represented all the members of the <NAME> family. Therefore, according to the <NAME> defendants; the plaintiffs had no cause of action. Alternatively they contended that the suit was barred by time' In the view which we take it would not be necessary to consider the second defence raised by the <NAME> family.

The relevant portion of the karar reads thus : "As disputes have arisen in our family regarding partition, it is not possible to carry on the business or to make investment in future. Moreover, you yourself have undertaken to discharge some of the debts payable by us in the coastal parts in connection with our private business. Therefore, from this day onwards we have closed the joint business. So, from this day onwards, we have given up (our) share in the machine etc., and in the business, and we have made over the same to you alone completely by way of adjustment. You yourself shall carry on the business without ourselves having anything to do with the profit and loss. Here for, you have given up to us the property forming our <NAME>'s share which you have purchased and delivered possession of the same to us even previously. In case you want to execute and deliver a proper document in respect of the share which we have given up to you, we shall at your own expense, execute and deliver a document registered."

This document on its face shows that the partnership business had come to an end and that the <NAME> family had given up their share in the "machine etc., in the business" and had made it over to the <NAME> family. It also recites the fact that the <NAME> family had already received certain property which was purchased by the partnership presumably as that family's share in the partnership assets. The argument advanced by Mr. <NAME> is that since the partnership assets. included immovable property and the document records relinquishment by the members of the <NAME> family of their interest in those assets, this document was compulsorily registerable under s. 17(1)(c) of the Registration Act and that as it was not registered it is inadmissible in evidence to prove the dissolution of the partnership as well as the settlement of accounts.

Direct cases upon this point of the courts in India are few but before we examine them it would be desirable to advert to the provisions of the Partnership Act itself bearing oh the interest of partners in partnership property. Section 14 provides that subject to contract between the partners the property of the firm includes all property originally brought into the stock of the firm or acquired.

by the firm for the purposes and in the course of the business of the firm. Section 15 provides that such property shall ordinarily be held and used by the partners exclusively for the purposes of the business of the firm. Though that is so a firm has no legal ,existence under the Act and the partnership property will, therefore, be deemed to he held by the partners for the business of the part- nership. Section 29 deals with the rights of a transferee of a partner's interest and sub-s. (1) provides that such a transferee will not have the same rights as the transferor partner but he would be entitled to receive the share of profits of his transferor and that he will be bound to accept the account of profits agreed to by the partners. Sub-section (2) provides that upon dissolution of the firm or upon a transferor-partner ceasing to be a partner the transferee would be entitled as against the remaining partners to receive the share of the assets of the firm to which his transferor was entitled and will also be entitled to an account as from the date of dissolution. Section 30 deals with the case of a minor admitted to the benefits of partnerships. Such minor is given a right to his share of the property of the firm and also a right to a share in the profits of the firm as may be agreed upon. But his share will be liable for the acts of the firm though he would not be personally liable for them. Sub-section (4) however, debars a minor from suing the partners for accounts or for his share of the property or profits of the firm save when severing his connection with the firm. It also provides that when he is severing his connection with the firm the court shall make a valuation of his share in the property of the firm. Sections 31 to 38 deal with incoming and outgoing partners. Some of the consequences of retirement of a partner are dealt with in sub-ss. (2) and (3) of s. 32 while some others are dealt with in ss. 36 and 37 . Under s. 37 the outgoing partner or the estate of a deceased partner, in the absence of a contract to the contrary, would be, entitled to at the option of himself or his representatives to such share of profits made since he ceased to be a partner as may be attributable to the property of the firm or to interest at the rate of six per cent. per annum on the amount of his share in the property of the firm. The subject of dissolution of a firm and the consequences are dealt with in chapter VI, ss. 39 to 55 . of these the one which is relevant for this discussion is s. 48 which runs thus :

"In settling the accounts of a firm after dissolution the following rules shall, subject to agreement by the partners, be observed :

(a) Losses, including deficiencies of capital, shall be paid first out of profits, next out of capital and, lastly, if necessary, by the partners individually in the proportions in which they were entitled to share profits.

<NAME>

(b) The assets of the firm, including any sums contributed by the partners to make up deficiencies of capital, shall be applied in the following manner and order :-

(i) in paying the debts of the firm to third parties:

(ii) in paying to each partner rateably what is due to him from the firm for advances as distinguished from capital;

(iii) in paying to each partner rateable what is due to him on account of capital; and

(iv) the residue, if any, shall be divided among the partners in the proportions in which they were entitled to share profits."

From a perusal of these provisions it would be abundantly clear that whatever may be the character of the property which is brought in by the partners when the partnership is formed or which may be acquired in the course of the business of the partnership it becomes the property of the firm and what a partner is entitled to is his share of profits, if any, accruing, to the partnership from the realisation of this property, and upon dissolution of the partnership to a share in the money representing the value of the property. No doubt, since a firm has no legal existence, the partnership property will vest in all the partners and in that sense every partner has an interest in the property of the partnership. During the subsistence of the partnership, however, no partner can deal with any portion of the property as his own. Nor can he assign his interest in a specific item of the partnership property to anyone. His right is to obtain such profits, if any, as fall to his share from time to time and upon the dissolution of the firm to a share in the assets of the firm which remain after satisfying the liabilities set out in cl. (a) and sub-cls.. (i), (ii) and (iii) of cl.(b) of s. 48 . It has been stated in Lindley on Partnership, 12th ed. at p. 375 "What is meant by the share of a partner is his proportion of the partnership assets after they have been ill realised and converted into money, and all the partner-ship debts and liabilities have' been paid and discharged. This it is, and this only which on the death of a partner passes to his representatives, or to a legatee of his share .......... and which on his, bankruptcy passes to his trustee."

This statement of law is based upon a number of decisions of the English courts. One of these is <NAME> v. Speyer Bros.(1) H where at p. 68 it has been observed (1) [1919] A.C. 59.

" When a debt due to a firm is got in no partner, has any definite share or interest in that debt; his right is merely to have the money so received applied, together with the other assets, in discharging the liabilities of the firm, and to receive his share of any surplus there may be when the liquidation has been completed."

No doubt this decision was subsequent to the enactment of the English Partnership Act of 1890. Even in several earlier cases, as for instance, <NAME> v. <NAME>(1) the , same view has been expressed. That was a case where two Persons purchased lands on a joint speculation with their joint monies for the purpose of converting them into building plots and reselling them at a profit or loss. It was held by <ORG> that there was a conversion of the property purchased out and out and upon the death of one of the partners his share in the part of the unrealised estate passed to his personal representatives. After examining the earlier cases the learned Vice-Chancellor observed at p. 995 "The result then of the authorities may be thus stated :-Lord <NAME> was of opinion that a special contract was necessary to convert the land into personalty : and Sir <NAME> followed that decision. Lord <NAME> on more than one occasion strongly "pressed his opinion that Lord <NAME>'s decision was wrong. Sir <NAME> clearly decided in three cases that there was conversion out and out : and Sir <NAME>, in the last case before him, clearly decided in the same way. That is the state of the authorities.

Now it appears to me that, irrespective of authority, and looking at the matter with reference to principles well established in this Court, if partners purchase land merely for the purpose of their trade, and pay for it out of the partnership property, that transaction makes the property personalty, and effects a conversion out and out."

He then observed " This principle is clearly laid down by Lord <NAME> in <NAME> v. CollinS(2) and by Sir <NAME> in <NAME> v. Fenwick(3) and the right of each partner to insist on a sale of all the partnership property, which arises from what is implied in the contract of partnership, is just as stringent a special contract would be. If then this rule applies to ordinary stock-in-trade, why should it. (1) 61 E.R. 992. (2) 15 V6s. 218.

(3) 17 Ves. 298.

not apply to all kinds of partnership property ? suppose that partners, for the purpose of carrying on their business, purchase, out of the funds of the partnership, leasehold estate, or take a lease of land, paying the rent out of the partnership funds, can it be doubted that the same rule which applies to ordinary chattels- would apply to such leasehold property ? I do not think it was ever questioned that, on a dissolution, the right of each partner to have the partnership effects sold applies to leasehold property belonging to the partnership as much as to any other stock-in-trade. No one partner can insist on retaining his share unsold. Nor would it make any difference in whom the legal estate was vested, whether in one of the partners or in all; this <ORG> would regulate the matter according to the equities. And Sir <NAME> so decided in <NAME> v. <NAME>.( )"

We have quoted extensively from this decision because of the argument that the decision in <NAME>'s case(2) would have been otherwise but for s. 22 of the English Act. Adverting to this <NAME> has said :

"From the principle that a share of a partner is nothing more than his proportion of the partnership assets after they have been turned into money and applied in liquidation of the partnership, whether its property consists of land or not, must, as between the real and personal representatives of a deceased partner, be deemed to be personal and not real estate, unless indeed such conversion is inconsistent with the agreement between the parties. Although the decisions upon this point were conflicting, the authorities which were in favour of the foregoing conclusion certainly preponderated over the others, and all doubt upon the point has been removed by the Partnership Act , 1890, which contains the following section :

22. Where land or any heritable interest therein has become partnership, property it shall, unless the contrary intention appears, be treated as between the. partners (including the representative of a deceased partner), and also as between the heirs of a deceased partner and his executors or administrators, as personal or movable and not real or heritable estate."

Even in a still earlier case <NAME> v. Hale(3) a person :attempted to obtain an account of the profits of a colliery on the ground that it was partnership property and it was objected that (1) 17 ves. 298.

(3) 5 Ves. 308.

(2) [1919] A.C. 59.

there was no signed writing, such as the Statute of Frauds required. Dealing with it the Lord Chancellor observed :

"That was not the question : it was whether there was a partnership. The subject being an agreement for land, the question then is whether there was a resulting trust for that partnership by operation of law. The question of partnership must be tried as a facte and as if there was an issue upon it. If by facts and circumstances it is established as a fact that these persons were partners in the col- liery, in which land was necessary to carry on the trade, the lease goes as an incident. The partnership being established by evidence upon which a partnership may be found, the premises necessary for the purposes of that partnership are by operation of law hold for the purposes of that partnership."

It is pointed out by <NAME> that this principle is carried to its extreme limit by Vice-Chancellor <NAME> in <NAME> v. <NAME> (1). Even so, it is pointed out that it must be treated as a binding authority in the absence of any decision of <ORG> to the contrary. It seems to us that looldng to the scheme of the Indian Act no other view can reasonably be taken. The whole concept of partnership is to embark upon a joint venture and for that purpose to bring in as capital money or even property including immovable property. Once that is done whatever is b rought in would cease to be the trading asset of the person who brought it in. It would be the trading asset of the partnership in which all the partners would have interest in proportion to their share in the joint venture of the business of partnership. The person who brought it in would, therefore, not be able to claim or exercise any exclusive right over any property which he has brought in, much less over any other partnership property. He would not be able to exercise his right even to the extent of his share in the business of the partnership. As already stated, his right during the subsistence of the partnership is to get his share of profits from time to time as may be agreed upon among the partners and after the dissolution of the partnership or with his retirement from partnership of the value of his share in the': net, partnership assets as on the date of dissolution or retirement after a deduction of liabilities and prior charges. It is true that even during the subsistence of the partnership a partner may assign his share to another. In that case what the assignee would get would be only that which is permitted by s. 29(1) , that is to say, the right to receive the share of profits of the assignor and accept the account of profits agreed to by the partners. There are not many decisions of <ORG> on the point. in the few that there are the preponderating view is (1) 5 Ha. 369 on appeal 2 Ph. 266.

M10Sup./Cl/66-13 in support of the position which we have stated. In <NAME> v. <NAME>) which was decided by <NAME> and <NAME>, the latter took the view that though a partner's share does not include any specific part of any specific item of partnership property, still where the partnership is entitled to immovable property, such share does include an interest in immovable property and, there- fore, every instrument operating to create or transfer a right to such share requires to be registered under the Registration Act . In coming to this conclusion he mainly purported to rely upon an observation contained in the fifth edition of <ORG> on <ORG> at p. 347. This observation is not to be found in the present edition of <ORG>'s <ORG> nor in the 9th or 10th editions which were brought to our notice. The 5th edition, however, is not available. The learned Judge after quoting an earlier statement which is that the "doctrine merely amounts to this that on the death of a partner his share in the partnership property is to be treated as money, not as land" says : "This obviously would not affect matters either during the lifetime of a partner-<ORG>, L.J.", says in so many words that it has no practical operation till his' death (p. 348)- or as against parties strangers to the partnership,' e.g., the firm's debtors." While it is true that the position so far as third persons are concerned would be different it may be pointed out that in <NAME> v. Steven(2) <CITATION> ., has, as quoted by the learned Judge, said : "It has long been the settled law of this Court that real estate bought or acquired by a partnership for partnership purposes (in the absence of some controlling agreement or direction to the contrary), is, as between the partners and as between the real and personal representatives of a partner deceased personal property, and devolves and is distributable and applicable as personal estate and as legal assets." <ORG>, seems to have overlooked, and we say so with great respect, the words "as between the partners" which precede the words "and as between the real and personal representative of the partner deceased" and to have confined his attention solely to the' latter. We have not found in any of the editions of <ORG>'s <ORG> an adverse criticism of the view of the Vice-Chancellor, But, on the contrary, as already stated, the view expressed is in full accord with these observations. <NAME> J., has discussed the English authorities at length and after referring to the documents upon which reliance was placed on behalf of the defendant stated his opinion thus "To lay down that the three letters in question, which deal generally with the assets, movable and immovable, without specifying any particular mortgage or other interest in real property require registration, would, incline to think, in the present state of the authorities, go, (1)I.L.R 17 Bom. 235.

(2) L.R. 10 Eq, 178 too fit. It way be argued that such letters are not 'instruments of-gift of immovable property' but 'rather disposals of a share in a' partnership of which the business, is money lending, and the mortgage securities merely incidental thereto."

The view, of <ORG> was not accepted by <ORG>. in <CITATION> (1)., The learns Judges there discussed all the English decisions as also the decisions in <CITATION> (2) and <CITATION> (-3) and the opinion of <NAME> in <NAME>'s case(4) held that, an unregistered deed of release by a: partner of his share in the, partnership business is admissible in evidence, even where the partnership owns immovable property. The learned Judges pointed out that though a partner may be a co-owner in the partnership property he has no lights to ask for a' share in the property but; only that the partnership business should be wound up including, therein the sale of immovable property and to ask for- his share in the resulting assets. This. decisions was not accepted as laying down the correct law by a Division Bench of the same <ORG> in <CITATION> (5). The learned Judges there relied upon the decision in <NAME> v.Munn(6) in addition to the opinion of <ORG> I and also referred to the decision <NAME> v. Smith(7) in coming' to a conclusion contrary to the one in the earlier case. It may be pointed out that the learned Judges have made no reference to the decision of <ORG> in <NAME> case(3) though: that was: one of the decision relied upon by <ORG>, in the earlier case. In so far as <NAME>'s case(6) is concerned that was a case which turned on the provisions of the Mortmain Acts and is not quite pertinent for the decision on the point which was before them and Which is now before us. In <NAME>. v. Smith(7) <ORG> held that an agreement by one of the partners to retire and to assign his share in the partnership assets including, im- movable property, is an agreement to assign an interest in land, and falls within the statute of Frauds. The view of <ORG> seems to have received the approval of <NAME>, one of the Judges of the court of Appeal,Though no argument was raised before it challenging its correctness. It may, however, be observed that even according to <NAME> the authorities (<NAME> v. <NAME> (8) and <NAME> v. Hamilton(9) establish that one may have an agreement of partnership by parol, notwithstanding that the partnership is to deal with land. He, however, went on to observe: (1) I. L.R. 49 Mad. 738. (2) I.L.R. 1925 Mad. 149. (3) I.L.R. 45 Mad. 378 (P.,C.)  A.C.1 (4) I.L.R. 17 Bom. 235.

(5) I.L.R. 55 Mad. 72.

(6) (1880) 15 Ch. D. 363.

(7) 43 Ch. D. 208.

(8)15 Ves. 308.

(9) 5 Ha. 369 on appeal 2 Ph. 266 "But it does not seem to me to follow that an agreement for the dissolution of such a partnership need not be expressed in writing, or rather than there need not be a memorandum of the agreement for dissolution when one of the terms of the agreement, either expressly or by necessary implication, is that the party sought to be charged must part with and assign to others an interest in land. That seems to me to give rise to entirely different consi- derations. In the one case you prove the partnership by parol; you prove the object, the terms of the partnership, and so on. But in the other case it is one of the essential terms of the agreement that the party to be charged shall convey an interest in land, and that seems therefore to bring it necessarily within the 4th section of the Statute of Frauds".

In the case before, us also in <NAME>'s case(1) the document cannot be said to convey any immovable property by a partner to another expressly or by necessary implication. If we may recall, the document executed by the <NAME> partners in favour of the <NAME> partners records the fact that the partnership business has come to an end and that the latter have given up their share in "the machine etc., and in the business" and that they have "made over same to you alone completely by way of adjustment. There is no express reference to any immovable property herein. No doubt, the document does recite the fact that the <NAME> family has given to the <NAME> family certain property. however, is merely a recital of a fact which had taken place ,earlier. To cases of this type the observations of <NAME>, which we have quoted do not apply. The view taken in <NAME>'s case (1) seemed to commend itself to <NAME>, in <CITATION> but he was reversed in <CITATION> .(2) We may also refer to the decision of a Full Bench in <NAME> v. <NAME>) in which <NAME>, has discussed most of the decisions we have earlier referred to in addition to several others a id reached the conclusion that while a partnership is in existence no partner can point to any ,part of the assets of the partnership as belonging to him alone. After examining the relevant provisions of the Act, the learned judge observed "These sections require that the debts and liabilities should first be met out of the firm property and there.

(1) I.L.R. 55 Mad. 72. (2) A.I.R. 1939 Mad. 884.

(3) A.I.R. 1947 Lah. 13.

after the assets should be applied in rateable payment to each partner of what is due to him firstly on account of advances as distinguished from capital and, secondly on amount of capital, the residue, if any, being divided rateably among all the partners. It is obvious that the Act contemplates complete liquidation of the assets of the partnership as a preliminary to the settlement of accounts between partners upon dissolution of the firm and it will, therefore, be correct to say that, for the purposes of the Indian Partnership Act , and irrespective of any mutual agreement between the partners, the share of each partner is, in the words of <NAME> : "his proportion of the partnership assets after they have been all realised and converted into money, and all the partnership debts and liabilities have been paid and discharged.

This indeed is the view which has commended itself to us. Mr. <NAME> then referred us to two decisions of English courts in In re Fuller's Contract(1) and Burdett-Coutts v. <ORG>) and on the passage at pp. 394 and 395 in <ORG> under the head "Form of Transfer' in support of his argument. Both the cases relied upon deal with contracts with third parties and not with agreements between partners inter se concerning retirement or dissolution. The passage from <ORG> deals with a case where there is an actual transfer of immovable property and is, therefore, not in point.

Mr. <NAME> brought to our notice some English decisions in addition to those we have adverted to in support, which agree with the view taken in those cases. He has also referred to the decisions in <NAME> v. <NAME>) and <CITATION> (4). We do not think it necessary to discuss them because they do not add to what we have already said in support of our view. For these reasons we uphold the decree of <ORG> and dismiss the appeal with costs.

Appeal dismissed.

(1) [1933] Ch. D. 652.

(2) [1960] 1 W.L.R. 1027.

(3) I.L.R. E [1946] 1 Cal. 191.

(4) A.I.R. 1963 Patna 221.


CASE NO.: Appeal (crl.) 733 of 2001 PETITIONER: <NAME> Vs. RESPONDENT: STATE OF HARYANA DATE OF JUDGMENT: 22/01/2002 BENCH: <NAME>, <NAME> & <NAME> JUDGMENT:

J U D G E M E N T ARIJIT PASAYAT, J.

<NAME> (hereinafter referred to as accused) was awarded "Sentence of Death" by the learned Sessions Judge, Sonepat which has been confirmed by <ORG>. Accusations against him were that he took away the lives of his mother, brother and sister-in-law. It was also alleged that he caused injury on his father <NAME> (PW-6) and nephew <NAME> (PW-7). He was tried for allegedly committing offences punishable under Sections 302 , 458 and 324 of the Indian Penal Code 1860 (in short ' IPC '), was found guilty and accordingly convicted. Corresponding sentences imposed were sentence of death, 4 years and 6 months respectively. The sentences were directed to run concurrently.

Prosecution version sans unnecessary details is as follows :-

<NAME> (PW-6) had two sons i.e. the accused and <NAME> (hereinafter referred to the deceased by that name) and a younger brother <NAME>. The accused and deceased-<NAME> were residing separately. <NAME> (PW-6) owned 10 acres of land and had given 2 acres to the accused for the purpose of cultivation. But the accused who was a person of bad habits and a drunkard wasted time in useless pursuits and did not pay any attention to cultivation. He tried to alienate the land that was given to him by his father. This led to rethinking by <NAME> (PW-6), who took back the land. This led to serious disputes among the members of the family and there were frequent quarrels. On August 5, 1998, deceased and his wife, <NAME> were sleeping on the roof of the house. <NAME> (PW-6), his wife <NAME>, their grandsons <NAME> (PW-7) and <NAME> were sleeping in the courtyard. After mid-night <NAME> (PW-6) heard a noise from the roof of the house and he switched on the electric light. <NAME>, <NAME> and <NAME> woke up and they rushed up stairs and found the accused armed with a Gandasa inflicting blows on both deceased <NAME> and <NAME>. After causing injuries to these two, the accused turned towards <NAME> (PW-6) and others; but they ran down the stairs screaming in fear. The accused followed them and after pushing <NAME> to the ground inflicted blows on her neck and when PW-6 and PW-7 tried to intervene, he also inflicted blows on both of them. Then he ran away from the spot. PW-6 found that his wife had already succumbed to her injuries. So was the case with his son and daughter-in-law. Next morning, report was lodged at the police station and investigation was undertaken. On completion of investigation, charge-sheet was placed and the accused was charged for offences punishable under Sections 302 / 458 / 324 of the . The accused pleaded innocence. <ORG> relied on the evidence of PW-6 and PW-7 who were injured eye-witnesses and found the accused guilty of the aforestated offences. After hearing on the question of sentence, he awarded death sentence as noted above. The matter was submitted to <ORG> for confirmation of the death sentence in terms of Section 366 of the Code of Criminal Procedure, 1973 (in short the 'Code'). <ORG> held that the judgment suffered from no infirmity to warrant any interference. Accordingly, the reference was accepted and the appeal filed by the accused against the conviction and sentence was dismissed.

In support of the appeal before this Court, learned Counsel submitted that both <ORG> and <ORG> ignored a very significant fact that the evidence on which prosecution rested, its version was that of relatives. There was admitted hostility, rendering the same suspect. The injuries which were of serious nature on the accused were not explained. That added to vulnerability of prosecution version. Finally, it was submitted that this is not a case which belonged to the category of "rarest of rare" to warrant death sentence. The non application of mind according to the learned Counsel is evident from the fact that accused has been treated to be a trespasser in his own house, for holding him guilty of offence punishable under Section 458 of . There is no discussion whatsoever as to how ingredients of that Section are present.

In reply, learned counsel for the State of Haryana submitted that there is no probation on conviction being not possible on the evidence of relatives. Additionally, mere non-explanation of injuries, if any, on the accused cannot be a ground for disbelieving prosecution version. The brutal nature of the assaults which resulted in loss of three valuable lives is evident from the nature of injuries noticed on postmortem and on examination of the injured witnesses. In essence, submission was to the effect that no interference is called for in this appeal.

We shall first deal with the contention regarding interestedness of the witnesses for furthering prosecution version. Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, <ORG> has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible.

<CITATION> (AIR 1953 SC 364), it has been laid down as under :

"A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last person to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts".

The above decision has since been followed in <CITATION> (AIR 1974 SC 276), in which <CITATION> (AIR 1957 SC 614) was also relied upon.

We may also observe that the ground that the witness being a close relative and consequently being a partisan witness, should not be relied upon, has no substance. This theory was repelled by this <ORG> as early as in <NAME> case (supra) in which surprise was expressed over the impression which prevailed in the minds of the Members of the <ORG> that relatives were not independent witnesses. Speaking through <NAME>, it was observed:-

"We are unable to agree with the learned Judges of <ORG> that the testimony of the two eye- witnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in - ' <CITATION> ', AIR 1952 SC 54 at p. 59 (A). We find, however, that it unfortunately still persists, if not in the judgments of the <ORG>, at any rate in the arguments of counsel".

Again in <CITATION> (AIR 1965 SC 202), this Court observed:-

"But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct."

To the same effect is the decision in <CITATION> (AIR 1973 SC 2407).

Presence of PWs 6 and 7 at the site of occurrence is natural. They were inmates of the house, and therefore no suspicion as suggested by the accused, regarding their presence can be entertained. Merely because there was some hostility between accused and PWs 6 and 7, it is unbelievable that they would shield the actual culprits to falsely implicate the accused. Their testimony has not been shaken in spite of incisive cross- examination. On the contrary, its credibility has been enhanced because of their acceptance of the fact regarding assault on the accused. The plea that deceased <NAME> and <NAME> (PW-6) had many enemies because of their questionable credentials, and they may be the real assailants is too shallow to warrant acceptance.

Considering the legal position as analysed above, there is no force in the plea that evidence of PWs 6 and 7 is liable to be discarded merely because they were relatives of the deceased persons.

As rightly submitted by the learned Counsel for the accused - appellant, there is no finding recorded by the <ORG> below as to how ingredients of the offence punishable under Section 458  exist. That being the position, conviction for the said offence is set aside and consequentially, the sentence. In view of the unimpeached evidence of the injured witnesses of PW-6 and PW-7, the conviction for offence punishable under Section 324  does not require any interference.

The other question of vital importance is whether death sentence is the appropriate one. Section 302 , IPC prescribes death or life imprisonment as the penalty for murder. While doing so, the Code instructs the <ORG> as to its application. The changes which the Code has undergone in the last three decades clearly indicate that <ORG> is taking note of contemporary criminological thought and movement. It is not difficult to discern that in the Code , there is a definite swing towards life imprisonment. Death sentence is ordinarily ruled out and can only be imposed for 'special reasons', as provided in Section 354(3) . There is another provision in the Code which also uses the significant expression 'Special reason'. It is Section 361 . Section 360 of the 1973 Code re-enacts, in substance, Section 562 , of the Criminal Procedure Code , 1898 (in short 'old Code'). Section 361 which is a new provision in the Code makes it mandatory for the <ORG> to record 'special reasons' for not applying the provisions of Section 360 . Section 361 thus casts a duty upon the <ORG> to apply the provisions of Section 360 wherever, it is possible to do so and to state 'special reasons' if it does not do so. In the context of Section 360 , the 'special reasons' contemplated by Section 361 must be such as to compel the <ORG> to hold that it is impossible to reform and rehabilitate the offender after examining the matter with due regard to the age, character and antecedents of the offender and the circumstances in which the offence was committed. This is some indication by the <ORG> that reformation and rehabilitation of offenders and not mere deterrence, are now among the foremost objects of the administration of criminal justice in our country. Section 361 and Section 354(3) have both entered the Statute Book at the same time and they are part of the emerging picture of acceptance by the legislature of the new trends in criminology. It would not, therefore, be wrong to assume that the personality of the offender as revealed by his age, character, antecedents and other circumstances and the tractability of the offender to reform must necessarily play the most prominent role in determining the sentence to be awarded. Special reasons must have some relation to these factors. Criminal justice deals with complex human problems and diverse human beings. A Judge has to balance the personality of the offender with the circumstances, situations and the reactions and choose the appropriate sentence to be imposed.

It should be borne in mind that before the amendment of Section 367(5) , old Code, by the Criminal Procedure Code  (Amendment) Act , 1955 (XXVI of 1955) which came into force on January 1, 1956, on a conviction for an offence punishable with death, if the <ORG> sentenced the accused to any punishment other than death, the reason why sentence of death was not passed had to be stated in the judgment. After the amendment of Section 367(5) of old Code by Act XXVI of 1955, it is not correct to hold that the normal penalty of imprisonment for life cannot be awarded in the absence of extenuating circumstances which reduce the gravity of the offence. The matter is left, after the amendment, to the discretion of the <ORG>. The <ORG> must, however, take into account all the circumstances, and state its reasons for whichever of the two sentences it imposes in its discretion. Therefore, the former rule that the normal punishment for murder is death is no longer operative and it is now within the discretion of the <ORG> to pass either of the two sentences prescribed in this section; but whichever of the two sentences he passes, the Judge must give his reasons for imposing a particular sentence. The amendment of Section 367(5) , of the old Code does not affect the law regulating punishment under the IPC . This amendment relates to procedure and now <ORG>s are no longer required to elaborate the reasons for not awarding the death penalty; but they cannot depart from sound judicial considerations preferring the lesser punishment.

Section 354(3) of the Code, marks a significant shift in the legislative policy underlying the old Code as in force immediately before 1st April, 1974, according to which both the alternative sentences of death or imprisonment for life provided for murder were normal sentences. Now, under Section 354(3) of the Code the normal punishment for murder is imprisonment for life and death penalty is an exception. The court is required to state the reasons for the sentence awarded and in the case of death sentence 'special reasons' are required to be stated, that is to say, only special facts and circumstances will warrant the passing of the death sentence. It is in the light of these successive legislative changes in Code that the juridical decisions prior to the amendment made by Act 26 of 1955 and again Act 2 of 1974 have to be understood.

This <ORG> in <CITATION> (AIR 1974 SC 799) has observed: "Let us crystallize the positive indicators against death sentence under Indian Law currently. Where the murderer is too young or too old, the clemency of penal justice helps him. Where the offender suffers from socio-economic, psychic or penal compulsions insufficient to attract a legal exception or to downgrade the crime into a lesser one, judicial commutation is permissible. Other general social pressures, warranting judicial notice, with an extenuating impact may, in special cases, induce the lesser penalty. Extraordinary features in the judicial process, such as that the death sentence has hung over the head of the culprit excruciatingly long, may persuade the <ORG> to be compassionate. Likewise, if others involved in the crime and similarly situated have received the benefit of life imprisonment or if the offence is only constructive, being under Section 302 , read with Section 149 , or again the accused has acted suddenly under another's instigation, without premediation, perhaps the <ORG> may humanely opt for life, even like where a just cause or real suspicion of wifely infidelity pushed the criminal into the crime. On the other hand, the weapons used and the manner of their use, the horrendous features of the crime and hapless, helpless state of the victim, and the like, steel the heart of the law for a sterner sentence. We cannot obviously feed into a judicial computer all such situations since they are astrological imponderables in an imperfect and undulating society. A legal policy on life or death cannot be left for ad hoc mood or individual predilection and so we have sought to objectify to the extent possible, abandoning retributive ruthlessness, amending the deterrent creed and accepting the trend against the extreme and irrevocable penalty of putting out life".

<CITATION> (AIR 1980 SC 898), it has been observed that "a real and abiding concern for the dignity of human life postulates resistance to taking life through law's instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed". A balance-sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised. In order to apply these guidelines, inter alia, the following questions may be asked and answered,

(a) Is there something uncommon about the crime which renders sentence of imprisonment for the life inadequate and calls for a death sentence?; and (b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender?

Another decision which illuminatingly deals with the question of death sentence is <CITATION> (1983 (3) SCC

In <NAME> and <NAME> cases (supra), the guidelines which are to be kept in view when considering the question whether the case belongs to the rarest of the rare category were indicated.

In <NAME> case (supra), it was observed:-

"The following questions may be asked and answered as a test to determine the 'rarest of the rare' case in which death sentence can be inflicted :-

(a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence?

(b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender?"

The following guidelines which emerge from <NAME> case (supra) will have to be applied to the facts of each individual case where the question of imposition of death sentence arises:-

(i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability.

(ii) Before opting for the death penalty the circumstances of the 'offender' also require to be taken into consideration along with the circumstances of the 'crime'.

(iii) Life imprisonment is the rule and death sentence is an exception. Death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.

(iv) A balance-sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances has to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.

In rarest of rare cases when the collective conscience of the community is so shocked, that it will expect the holders of the judicial power center to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty, death sentence can be awarded. The community may entertain such sentiment in the following circumstances:-

(1) When the murder is committed in an extremely brutal, grotesque, diabolical, revolting, or dastardly manner so as to arouse intense and extreme indignation of the community.

(2) When the murder is committed for a motive which evinces total depravity and meanness; e.g. murder by hired assassin for money or reward; or cold-blooded murder for gains of a person vis-à-vis whom the murderer is in a dominating position or in a position of trust; or murder is committed in the course for betrayal of the motherland.

(3) When murder of a member of a Scheduled Caste or minority community etc., is committed not for personal reasons but in circumstances which arouse social wrath, or in cases of 'bride burning' or 'dowry deaths' or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation.

(4) When the crime is enormous in proportion.

For instance when multiple murders, say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed.

(5) When the victim of murder is an innocent child, or a helpless woman or old or infirm person or a person vis-à-vis whom the murderer is in a dominating position, or a public figure generally loved and respected by the community.

If upon taking an overall global view of all the circumstances in the light of the aforesaid propositions and taking into account the answers to the questions posed by way of the test for the rarest of rare cases, the circumstances of the case are such that death sentence is warranted, the <ORG> would proceed to do so.

A convict hovers between life and death when the question of gravity of the offence and award of adequate sentence comes up for consideration. Mankind has shifted from the state of nature towards a civilized society and it is no longer the physical opinion of the majority that takes away the liberty of a citizen by convicting him and making him suffer a sentence of imprisonment. Award of punishment following conviction at a trial in a system wedded to the rule of law is the outcome of cool deliberation in the Court-room after adequate hearing is afforded to the parties, accusations are brought against the accused, the prosecuted is given an opportunity of meeting the accusations by establishing his innocence. It is the outcome of cool deliberations and the screening of the material by the informed man i.e. the Judge that leads to determination of the lis.

The principle of proportion between crime and punishment is a principle of just desert that serves as the foundation of every criminal sentence that is justifiable. As a principle of criminal justice it is hardly less familiar or less important than the principle that only the guilty ought to be punished. Indeed, the requirement that punishment not be disproportionately great, which is a corollary of just desert, is dictated by the same principle that does not allow punishment of the innocent, for any punishment in excess of what is deserved for the criminal conduct is punishment without guilt.

The criminal law adheres in general to the principle of proportionality in prescribing liability according to the culpability of each kind of criminal conduct. It ordinarily allows some significant discretion to the Judge in arriving at a sentence in each case, presumably to permit sentences that reflect more subtle considerations of culpability that are raised by the special facts of each case. Punishment ought always to fit the crime; yet in practice sentences are determined largely by other considerations. Sometimes it is the correctional needs of the perpetrator that are offered to justify a sentence; sometimes the desirability of keeping him out of circulation, and sometimes even the traffic results of his crime. Inevitably these considerations cause a departure from just desert as the basis of punishment and create cases of apparent injustice that are serious and widespread.

Proportion between crime and punishment is a goal respected in principle, and in spite of errant notions it remains a strong influence in the determination of sentences. The practice of punishing all serious crimes with equal severity is now unknown in civilized societies; but such a radical departure from the principle of proportionality has disappeared from the law only in recent times. Even now a single grave infraction that is thought to call for uniformly drastic measures. Anything less than a penalty of greatest severity for any serious crime is thought then to be a measure of toleration that is unwarranted and unwise. But in fact quite apart from those considerations that make punishment unjustifiable when it is out of proportion to the crime. Uniformly disproportionate punishment has some very undesirable practical consequences.

As the background facts go to show the genesis of dispute between the accused and the other members of his family was land. Accused seems to have taken exception to his father taking away the land from him. As the evidence indicates, he considered his brother, sister- in-law to be responsible for the same. It is also in evidence that 2-3 days before the occurrence, there was a bitter quarrel between the accused and other members of his family. Evidence of PW-7 is to the effect that there used to be constant quarrel between PW-6, deceased <NAME>, deceased <NAME> on one hand and the accused on the other, over ancestral land. It is also in evidence that the deceased <NAME> was not of moral character and PW-6 had forcibly occupied the land of temple for which villagers had set on fire a piece of their house. Though injuries on accused person do not per se affect prosecution version if reliable; when not explained it assumes importance if they are serious in nature. The fact that the injuries were sustained in the present case by the accused is not disputed. In fact, PW-7 has admitted that PW-6 had given a thorough thrashing to the accused in the court-yard after assaults on the three accused persons. As the medical evidence indicates, the injuries sustained by the accused were of very serious nature. It is true three lives have been lost. But at the same time, the mental condition of the accused which led to the assault cannot be lost sight of. The same may not be relevant to judge culpability. But is certainly a factor while considering question of sentence. There is no evidence of any diabolic planning to commit the crime, though cruel was the act. Deprived of his livelihood on account of the land being taken away, the accused was, as the evidence shows, exhibiting his displeasure, his resentment. Frequency of the quarrels indicate lack of any sinister planning to take away lives of the deceased. The factual scenario gives impressions of impulsive act and not planned assaults. In the peculiar background, death sentence would not be proper. A sentence of imprisonment for life will be more appropriate. The sentence is accordingly modified, while confirming the conviction for offence punishable under Section 302 .

Appeal is allowed to the extent indicated above. We record our appreciation for the assistance rendered by Mr. <NAME> who was appointed as amicus curiae.

..<NAME>

(M. B. SHAH) .J.

(<NAME>

(ARIJIT PASAYAT) January 22, 2002