PETITIONER: MUNSHI RAM AND OTHERS Vs. RESPONDENT: DELHI ADMINISTRATION DATE OF JUDGMENT: 27/11/1967 BENCH: <NAME>, <NAME>: <NAME>, K.S. <NAME>, S.M. <NAME>, J.M. CITATION: 1968 AIR 702 1968 SCR (2) 408 CITATOR INFO : RF 1970 SC1079 (17) F 1974 SC1570 (19) F 1975 SC1478 (18) E 1975 SC1674 (5,10,11,13,15,16) RF 1977 SC2226 (5) R 1979 SC 391 (9) R 1988 SC 863 (15,16,17,19) ACT: Indian Penal Code , 1860, ss. 97, 447, 324, 149 and 148- Complainant purchasing in public auction land acquired by Central Government under the Displaced Persons Act , 1954- after issue of sale certificate Government purporting to give him delivery through a warrant issued by a Managing Officer-effect of-Another person proved to be tenant and in possession --complainant's party on attempting to take possession repelled by force--whether right of private defence existed or acceded. Displaced Persons Act , 1954 s. 19(3) -Scope of. HEADNOTE: Certain land which was evacuee property acquired by <ORG> under the Displaced Persons Act , 1954 and under the management of the Managing Officer, was purchased by A at a public auction on January 2, 1961. Pro-visional delivery of the property was given to the vendee on October 10, 1961. A sale certificate was issued to him on February 8, 1962, and the actual delivery was given on June 22, 1962, on a warrant issued by the Managing Officer. On July 1, 1962, when A, accompanied by a party, went to the land with a tractor to level the land, the appellants attacked the complainant's party and caused injuries to some of them. Upon their subsequent prosecution, the plea taken on their behalf was one of private defence. Their case was that their relation J was the tenant in the land for over 30 years and his tenancy was never terminated; there was no delivery on June 22, 1962, and the alleged delivery was without the authority of law and of no effect; J therefore continued to be in possession of the property on July 1, 1962. The appellants had therefore used minimum force to prevent the cormplainant's party from taking forcible possession of the land. The Courts below accepted the prosecution version and convicted the appellants under ss. 447 and 324 read with 149 and 148 IPC . On appeal to this Court, HELD : Allowing the appeal : On the basis of the proved facts it could not be said that the appellants had exceeded their right of private defence. [465 A] It was not disputed that J was in possession of the field on June 22, 1962 and the record established that he continued to be the tenant of the land even after the sale in favour of A. After the issue of the sale certificate to A, the Government had no interest in the land and the managing officer was not therefore competent to evict J. He bad no interest in the land on June 22, 1962 and could not have issued any warrant for the delivery of the field on that date. The alleged delivery therefore had no legal force; in the eye of the law it was non-est. [461 B] There was no force in the contention that the delivery in question was effected under s. 19(3) of the Displaced Persons Act, 1954. The provisions of that Section apply only to properties which are under the control of the managing officers or managing corporations and not to properties which have ceased to be evacuee properties. Furthermore, it was not 456 shown that any action under sub-sections (1) and (2) of s. 19 , which was a condition precedent for taking action under sub-section (3), had been taken against J. [460 H] Normally before a tenant can be evicted from his holding his tenancy must be terminated and the eviction should be done through a Court of competent jurisdiction. A who had become the owner of the land long before June 22, 1962 could not have evicted J from the land in the manner alleged. (459 E] <NAME> v. <NAME> and others,  2 S.C.R. 203. It could not be said that as A had, rightly or wrongly, taken on of the property on June 22, 1962, J should have agitated the matter in a court of law and the appellants had no right to take the law in their own hands. The fact that some formalities were gone through in pursuance of an unauthorised delivery order was no ground for holding that possession of the field had passed to A. It is true that no one including the true owner has a right to dispossess the trespasser by force if the trespasser is in settled possession of the land and in such a case unless he is evicted in due course of law, he is entitled to defend his possession even against the rightful owner. But stray or even intermittent acts of trespass do not give such a right against the true owner. The possession which a trespasser is entitled to defend against the rightful owner must be a settled possession extending over a sufficiently long period and acquiesced in by the true owner. A casual act of possession would not have the effect of interrupting the possession of the rightful owner. The rightful owner may re-enter and reinstate himself provided he does not use more force than necessary. Such entry will be viewed only as a resistance to an intrusion upon possession which has never been lost. The persons in possession by a stray act of trespass, a possession which has not matured into settled possession, constitute an unlawful assembly, giving right to the true owner, though not in actual possession at the time, to remove the obstruction even by using necessary force.. [462 B-E] From the proved facts, it was evident that A and his party, of whom one was armed, had gone to the field with a view to intimidate J and to assert their possession. They were therefore guilty of criminal trespass and also constituted an unlawful assembly. The appellants were therefore entitled to prevent hem, by using necessary force, from taking possession. [462 HI In re <NAME> and Anr. AIR 1927 Mad. 97, <CITATION> ,  3 S.C.R. 489; <CITATION> , 50 Cr. LJ. 868; Sangappa and Ors. v. <ORG>, ILR  Hyderabad 406; in re <NAME>, AIR, 1943 Mad. 590, relied upon. JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 124 of 1965.

Appeal by special leave from the judgment and order dated April 26, 1965 of <ORG>, Circuit Bench at Delhi in Criminal Revision No. 266-D of 1964. <NAME>, <NAME> and <NAME> for <NAME>, for the appellants.

<NAME>, for the respondent.

The Judgment of the Court was delivered by <NAME>, J. Two questions that arise for decision in this appeal by special leave are : (1) whether the appellants have established satisfactorily the right of private defence pleaded by them and (2) if they had that right, have they exceeded the same ?

The prosecution case is as follows : Field No. 1129/477 measuring five bighas and thirteen biswas situated in Kilokri was an evacuee property and as such was under the management of the managing officer. That property was acquired by <ORG> under the Displaced Persons Act , 1954. (For the sake of convenience we shall refer to that property hereinafter as evacuee property.) The same was sold by public auction on January 2, 1961 and purchased by PW 17 <NAME> for a sum of Rs. 7,600. Provisional delivery of that property was given to the vendee on October 10, 1961. The sale certificate was issued on February 8, 1962. The actual delivery was given on June 22, 1962 as per the warrant issued by PW 5. <NAME>, the managing officer. The said delivery was effected by PW It) <NAME>. On July 1, 1962 when PW 17 and his father PW 19, <NAME> went to the field with PW 16, <NAME>, PW 15 <NAME> and one <NAME> with a trac- tor to level the land, the appellants came armed with spears and lathis attacked the complainants' party and caused injuries to PWs 17 and 19 and the tractor driver, <NAME>.

Though the appellants in their statement under s. 342 . denied having been present at the scene of occurrence or having caused injuries to any one, the plea taken on their behalf at all stages was one of private defence. Their case is that their relation <NAME> (DW 3) was the tenant in the land for over thirty years. His tenancy was never terminated. He had raised crops in the field in question. There was no delivery on June 22, 1962. If there was any delivery as alleged by the prosecution, the same was without the authority of law and as such was of no effect. Hence, <NAME> continued to be in possession of the property even on July 1, 1962. On the day prior to the occurrence, PWs 17 and 19 tried to intimidate <NAME> to come to terms with them and to peacefully deliver possession of the property to them. But he put off the question of compromise by pleading that he was going out of station and the question of compromise could be considered after his return. With a view to forcibly assert their right to the property, the complainant-party came to the field in a body on July 1, 1962 with a tractor. At that time <ORG> was armed with an unlicensed pistol. It is at this stage that the appellants who are near relations of <NAME> went to the field and asked the complainant party to clear out of the field. When they refused to do so, they pushed them and thereafter used minimum force to throw them out of the field. On the basis of the above facts, it was urged on behalf of the appellants that they were not guilty of any offence.

The courts below have accepted the prosecution version both as regards possession as well as to the manner in which the incident took place. The appellants have been convicted under ss. 447 , 324 read with 149 and 148 I.P.C . We have now to see whether on the basis of the undisputed facts as well as the facts found by <ORG>, the defence can be said to have made out the plea of defence of property advanced on their behalf.

It is true that appellants in their statement under s. 342 . had not taken the plea of private defence, but necessary basis for that plea had been laid in the cross- examination of the prosecution witnesses as well as by adducing defence evidence. It is well-settled that even if an accused does not plead selfdefence, it is open to the court to consider such a plea if the same arises from the material on record-see In re Jogali Bhaigo Naiks and another(1). The burden of establishing that plea is on the accused and that burden can be discharged by showing prepon- derance of probabilities in favour of that plea on the basis of the material on record.

The first question that arises for decision in this case is as to who was in possession of the field in dispute on the date of the occurrence, i.e., on July 1, 1962. For deciding that question it is necessary to find out as to who was in possession of the same prior to June 22, 1962, the date on which that field was said to have been delivered to <ORG>. On this question, the prosecution is silent. <NAME> <NAME>, in his evidence deposed that he had been in possession of that field as a tenant for over thirty years. His case was that he was formerly the tenant in respect of that field under some Muslim landlords and after their migration to Pakistan, under the officer managing the evacuee property. This evidence of his was not challenged in cross- examination. That evidence is supported by the prosecution exh. <ORG>. The courts below have also proceeded on the basis that <NAME> was in possession of the field till June 22, 1962. Therefore, we have to see whether there was any lawful delivery of that field on June 22, 1962. At this stage it is necessary to recapitulate that the field in question had been sold by the managing officer on January 2, 1961. Its provisional delivery was given on October 12, 1961. The sale certificate was issued on 8-2-62 (exh. PF). Therefore, the government had no interest in that field on or after the aforementioned sale. It is not the case of the prosecution that <NAME>'s tenancy had been terminated by any of the authorities constituted under (1) AIR 1927 Mad. 97.

the Displaced Persons (Compensation and Rehabilitation) Act 1954 (to be hereinafter referred to as the Act). It may further be noted that the exh. PM-The terms and conditions under which the auction of the field was held--does not show that the government had undertaken to deliver physical possession of that field to the purchaser. From the facts stated above it is obvious that <NAME> continued to be the tenant in the land even after the sale in favour of PW 17. The prosecution case is that delivery of that field was given to PW 17 by PW 10 the kanungo on June 22, 1962 as per the delivery warrant issued by PW 5, the managing officer. Even according to the prosecution version, at the time of that delivery <NAME> was not present. There is also no evidence to show that <NAME> was aware of the alleged delivery. It is true that as a token of the delivery, some ploughing was done at the time of the alleged delivery. At this stage it is also necessary to mention that at the time of the alleged delivery, crops grown by <NAME> were there in a portion of the field. It was said that the kanungo who delivered the field, valued the crops in question at Rs. 60 and the same was deposited by PW 17 with PW 5 as per the orders of the latter for being paid over to <NAME>. We were not told under what authority those steps were taken. This takes us to the question whether the purported delivery is valid in law. Normally before a tenant can be evicted from his holding, his tenancy must be terminated and the eviction should be done through a court of competent jurisdiction. No landlord has any right to throw out- his tenant from his holding. The law on the subject was explained by this Court in <NAME> v. <NAME> and others(1). Therefore, it is clear that <NAME> had become the owner of the land long before June 22, 1962 could not have evicted <NAME> from the land in the manner alleged.

The next question is whether PW 5, the managing officer was competent to evict <NAME>. We fail to see how he could have done it. He had no interest in the land in question on June 22, 1962. The right, title and interest of the government in the land had long been alienated. The managing officer had already given to the vendee such possession as he could have, namely, the landlord's possession. Thereafter it went out of the compensation pool and the managing officer had no power to deal with it unless otherwise expressly provided. Our attention has not been invited to any provision in the Act authorising the managing officer to deal with a property which had ceased to be an. evacuee property. Therefore we fail to see how PW 5 could have issued any warrant for the delivery of the field in question on June 22, 1962. (1) [1968] 2 S.C.R. 203.

Before the courts below it was pleaded on behalf of the prosecution-which plea commended itself to those courts-that the .delivery in question was effected under S. 19 of the Act. Section 19 ,to the extent it is material for our present purpose, reads thus I Notwithstanding anything contained in any contract or any other law for the time being in force but subject to any rules that may be made under this Act, the managing officer or managing corporation may cancel any allotment or terminate any lease or amend the terms of any lease or allotment under which any evacuee property acquired under this Act is held or occupied by a person, whether such allotment or lease was granted before or after the commencement of this Act.

(2) Where any person-(a) has ceased to be entitled to the possession of any evacuee property by reason of any action taken under sub-section (1), or (b) is otherwise in unauthorised possession of any evacuee property or any other immovable property forming part of the compensation pool; he shall, after he has been given a ,reasonable opportunity of showing cause against his eviction from such property, surrender pos- session of the property on demand being made in this behalf by the managing officer or managing corporation or by any other person duly authorised by such officer or corporation.

(3) If any person fails to surrender possession of any property on demand made under sub-section (2) the managing officer or managing corporation may, notwithstanding anything to the contrary contained in. any other law for the time being in force, eject such person and take possession of such property and may, for such purpose, use or cause to he used such force as may be necessary."

The above provisions apply only to properties which are under .the control of the managing officers or managing corporations. They do not apply to properties which have ceased to be evacuee properties. Further, it is not the prosecution case that any action under sub-ss. 1 and 2 of S. 19 had ever been taken against Jamuna. If that was so, no action under sub-s. 3 of S. 19 could have been taken. As a condition precedent for taking action under sub-s. .of S. 19 it was necessary to take the steps prescribed by sub-s.

of s. 19 . It must be noted that the power conferred under sub-s. 3 is a special power conferred for a special purpose. Such a power has to be exercised strictly in accordance with

-the conditions prescribed. If it is not so exercised, the exercise of the power would be vitiated. Having not taken any action under sub-s. 2 of s. 19 , the managing officer was incompetent to issue any warrant for delivery under sub-s. 3 of s. 19 under which he is said to have acted. It was for the vendee to take the necessary steps under law for taking possession from <NAME>. Therefore, it is obvious that the alleged delivery has no legal force. In the eye of the law it is non-est. Hence <NAME> continued to be in possession of the field in question even after the so-called delivery on Juno 22, 1962. This aspect of the case was completely lost sight of by the courts below.

It is seen from the evidence of <ORG> Jamuna, which evidence was not even challenged in cross-examination, that PWs 17 and 19 were aware of the fact that the purported delivery on June 22, 1962 was merely a paper delivery. In his chief- examination, <ORG> Jamuna, deposed thus:

" A day prior to the occurrence, <NAME> and his son <NAME> had met me and had asked me to get the compromise effected. I told him that since I was proceeding out station in connection with some marriage, any talk of compromise could take place after my return from there. Both <NAME> and his son <NAME> had threatened me that in case I would not deliver possession of the land in question willingly, they would get possession of the same by force under the pressure of the police. AR the accused are near relations of mine."

To repeat, this evidence was not challenged in cross- examination. From that evidence it is clear that at about the time of occurrence PWs 17 and 19 were conscious of the fact that Jamuna still continued to be in possession of the field.

PWs 17 and 19 were aware of the fact that Jamuna was un- willing to deliver possession of the field. This is borne out by the fact that at the time of the alleged delivery on June 22, 1962, police assistance was applied for and obtained.

From the foregoing it is clear that <NAME> was in effective possession of the field on the date of the occurrence. But it was urged on behalf of the prosecution that rightly or wrongly <NAME> taken possession of the property on June 22, 1962, and therefore, if <NAME> had any grievances, he should have agitated LISup(CI)/68-15 the same in a court of law, and that his relations had no right to take law into their own hands. This contention is based on a misconception of the law. If by the alleged delivery <NAME> not be held to have been put in possession of the field, he could not be said to have been in possession of the same. The fact that some formalities were gone through in pursuance of an unauthorised order issued by PW 5 is no ground for holding that possession of the field had passed into the hands of PW 17 Steps taken by PW 17 and others who accompanied him on June 22, 1962 were unauthorised acts. It is true that no one including the true owner has a right to dispossess the trespasser by force if the trespasser is in settled possession of the land and in such a case unless he is evicted in due course of law, he is entitled to defend his possession even against the rightful owner. But stray ,or even intermittent acts of trespass do not give such a right against the true owner. The possession which a trespasser is entitled to defend against the rightful owner must be a settled possession extending over a sufficiently long period and acquiesced in by the true owner. A casual act of possession would not have the effect of interrupting the possession of the rightful owner. The rightful owner may re-enter and reinstate himself provided he does not use more force than necessary. Such entry will be viewed only as a resistance to an intrusion upon possession which has never been lost. The persons in possession by a stray act of trespass, a possession which has not matured into settled possession, constitute an unlawful assembly, giving right to the true owner, though not in actual possession at the time, to remove the obstruction even by using necessary force. It is not the case of the prosecution that between June 22 and July 1, 1962 the complainant or his men -had been to the field in question. We have earlier seen that PWs 17 and 19 had unsuccessfully tried to intimidate <NAME> on June 30, 1962 to deliver peaceful possession of the field. It is only thereafter on July 1, 1962, they along with their friends went to the field with a tractor, and at that time <NAME> was armed with a pistol for which he had no licence. It was at that stage, the appellants who are close relations of <NAME> came to the field, some armed with sticks and others with spears. They first asked the complainant's party to clear out of the field, but when they refused, they pushed them and thereafter attacked them as a result of which <NAME> <NAME> and the tractor driver <NAME> were injured (see evidence of <NAME>, <NAME>). The injuries caused by them were held to be simple injuries. From the proved facts, it is evident that PWs 17 and 19 had gone to the field with their friends, <NAME> being armed with a deadly -weapon, with a view to intimidate <NAME> and to assert their -possession. Therefore they were clearly guilty of criminal trespass. They also constituted an unlawful assembly.

The law relating to defence of property is, set out in s. 97 , which says that every person has a right, subject to the restrictions contained in s. 99 , to defend-First-his own body, and the body of any other person, against any offence affecting the human body; Secondly.-the property, whether movable or immovable, of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief. or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass. Section 99 of the Code lays down that there is no right of private defence in cases in which there is time to have recourse to the protection of the public authorities. It further lays down that the right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence.

It was urged on behalf of the prosecution that even assuming that <NAME> was in possession of the field in view of the delivery that had taken place on June 22, 1962, he and his relations had enough time to have recourse to the protection of the public authorities and therefore the appellants could not claim the right of private defence. The case of <NAME> and the appellants was that they were unaware of the alleged delivery on June 22, 1062. Admittedly neither <NAME> nor any of the appellants were present at the time of that delivery. Nor is there any evidence on record to show that they were aware of :the same. Further, as seen earlier, the conversation that PWs 17 and 19 had with <NAME> on the day prior to the occurrence, proceeded on the basis that <NAME> was still in possession of the field. Under these circum- stances when the complainant party invaded the field on July 1 1962, <NAME>'s relations must have been naturally taken by surprise. Law does not require a person whose property is forcibly tried to be occupied by trespassers to run away and seek the protection of the authorities. The right of private defence serves a social purpose and that right should be liberally construed. Such a right not only will be a restraining influence on bad characters but it will encourage the right spirit in a free citizen. There is nothing more degrading to the human spirit than to run away in the face of peril.

<CITATION> (1), this Court while dealing with the right of defence of property and person observed (at p. 500) "In appreciating the validity of the appellants' argument, it would be necessary to recall the basic assump-

(1) [1963] 3 S.C.R. 489.

tions underlying the law of self-defence. In a wellordered civilised society it is generally assumed that the <ORG> would take care of the persons and properties of individual citizens and that normally it is the function of the <ORG> to afford protection to such persons and their properties. This, however, does not mean that a person suddenly called upon to face an assault must run away and thus protect himself. He is entitled to resist the attack and defend himself. The same is the position if he has to meet an attack on his property. In other words, where an individual citizen or his property is faced with a danger and immediate aid from the <ORG> machinery is not readily available, the individual citizen is entitled to protect himself and his property. That being so, it is a necessary corollary to the doctrine of private defence that the violence which the citizen defending himself or his property is entitled to use must not be unduly disproportionate to the injury which is to be averted or which is reasonably apprehended and should not exceed its legitimate purpose. The exercise of the right of private defence must never be vindictive or malicious."

<CITATION> (1), a division bench of <ORG> observed that where a trespasser enters upon the land of another, the person in whom the rightful possession is vested, while the trespasser is in the process of acquiring possession, may turn the trespasser out of the land by force and if in doing so, he inflicts such injuries on the trespasser as are warranted by the situation, he commits no offence. His action would be covered by the principle of private defence embodied in ss. 96 to 105 . Similar was the view taken by a division bench of <ORG> in <CITATION> (2). Therein it was held that if some body enters on the land of a person who does not acquiesce in the trespass he would still retain possession of the land and as the possessor of the land, is entitled to that possession. If he brings friends with him and with force of arms resists those who are trespassing on the land, who are also armed, he and his friends would not be guilty of forming themselves into an unlawful assembly, for those who defend their possession are not members of an unlawful assembly. If the person acquiesces in his dispossession and subequently, under claim of title comes again to dispossess his opponents, then he and his friends would be members of an unlawful assembly. That is also the view taken by <ORG> in re. <NAME>) We are in agreement with the ratio of those decisions.

(1) 50 Cr. L.J. 868. (2) I.L.R. [1955] Hyderabad 406. (3) A.I.R. 1943 Mad. 590.

On the basis of the proved facts it cannot be said that the appellants had exceeded their right of private defence. In the result, this appeal is allowed, the conviction of the appellants is set aside and they are acquitted. <NAME>

Appeal allowed.


PETITIONER: C.N. RUDRAMURTHY Vs. RESPONDENT: K. BARKATHULLA KHAN & OTHERS DATE OF JUDGMENT: 08/10/1998 BENCH: CJI, G.B. PATTANAIK, <NAME>. ACT: HEADNOTE: JUDGMENT:

J U D G M E N T <NAME>, J.

The appellant filed a suit against <NAME>, the original tenant in occupation of a premises bearing No. 199 and 200 situated at Brigade Road in Bangalore city for recovery of possession thereof on the ground that he had defaulted in payment of rent and had sublet the same contrary to law. The original tenant set up the defence that he had not sublet the suit premises or any portion thereof, but had only entered into an agreement to run business on his behalf and he was not liable to be evicted. The original tenant died on 8.1.1983 and his legal representatives were brought on record. They filed a written statement on 1.8.1984 contending that their father had parted with possession of the suit premises to respondent No.1 and no decree could be passed against them. Respondent No.1 was impleaded as a defendant on an application made by him. He contended that he had become a partner with <NAME> with the consent of the appellants and partnership stood dissolved as on 10.12.1982 and thus he was a tenant under the appellant directly. His tenancy had not been terminated and, therefore, there was no cause for suit. By a decree made on 31.3.1993, <ORG> directed the eviction of the first respondent. Respondent No.1 preferred an appeal against the said decree in <ORG>. This appeal is against that order made by <ORG>. This appeal is against that order made by <ORG> of Karnataka in that appeal filed by respondent No.1 In <ORG> three principal points were formulated for consideration :-

(1) Whether the first respondent is a tenant? If not, what is his status?

(2) Whether the suit is maintainable for ejection of the first respondent?

(3) Whether the first respondent is entitled for mesne profits under Order XX Rule 10 of the C.P.C.? The first two points raised for consideration turned on the question whether the first respondent is a tenant or not? If he is a tenant, it was stated that the matter has necessarily to go before <ORG> for eviction under Section 21 of the Karnataka Rent Control Act (hereinafter referred to as "the Act"). However, he is liable for eviction by virtue of a decree in the suit. The <ORG> below to pay rents or difficulty in answering the third point raised for consideration. What is really in issue before us are the first two points.

<ORG> held that there is no acceptable evidence to declare the first respondent as a tenant and thereby affirmed the conclusion reached by the trial court. After examining the scope of Section 23 of the Karnatak Rent Act which forbids creation of sub-lease or assignment or transfer either whole or any part of the demised premises, the learned Judge was of the view that the original tenant allowed others to carry on the business in his name as he was unable to carry on the business by himself due to old age initially by inducting the first respondent as a partner of the firm and then in his own capacity as a owner of the business concern which was not an unknown mode of transfer of tenancy and, therefore, the first defendant was not a trespasser. He, however, noticed that the first respondent was not inducted with the consent of the landlord and therefore his possession becomes unlawful and he is liable to be evicted under the provisions of Section 21(1)(f) of the Karnataka Rent Control Act and no other conclusion was possible in this regard. In view of that finding he held that <ORG> has no jurisdiction to pass an order of eviction as there is a specific provision ousting the jurisdiction of <ORG> to entertain any suit for eviction of a tenanted premises. On that basis, he allowed the appeal and set aside the decree dame by the trial court and directed the parties to work out their remedies in <ORG>.

In this background a contention was raised on behalf of the appellant that Section 31 of the Karnataka Rent Control Act enabled the filing of the suit as the rent in respect of the same was above Rs.500/- per month. <ORG> held that Section 31 of the Karnataka Rent Control Act had been declared invalid in <NAME> vs. State of Karnataka ILR 1986 Kar 2480. The view expressed by this Court in Civil Appeal No.13754 of 1996 entitled <CITATION> was also brought to the notice of <ORG> which reads as follows :- "In view of the decision of this Court in <NAME> and others versus Union of India 1995 (1) S.C.C. 104, this appeal would merit acceptance and accordingly we accept the same, set aside the impugned orders of <ORG> and restore that of <ORG> with regard to possession of the property in dispute as well as entitlement of the appellant to contractual rent up till the date of vacating for which item is being allotted hereby to the respondents."

While considering the question whether the decision of this Court in <NAME> case had impliedly overruled the decision of <ORG> in <NAME> case, <ORG> held that the decision laid down in <CITATION> reported in , should be followed and the decision in <NAME> case had no application.

In <NAME> case (supra) this Court was concerned with a provision under the Delhi Rent Control Act and Section 3(c) made it clear that the Act was not applicable to any premises whether residential or non-residential whose monthly rent exceeds three thousand rupees which is akin to the provision under Section 31 of the Karnataka Rent Control Act. In <NAME> case <ORG> had proceeded to rely upon <NAME> case; when the matter was brought to this Court though no specific reference was made to <NAME> case, this Court stated that the law laid down in <NAME> case would be applicable, it was not open to <ORG> to state that it would prefer to follow the decision in <NAME> case. Indeed it is a matter of judicial discipline that required that when this Court states as to what the law on the matter is, the same shall be binding on all the Courts within the territory of India. This mandate of Article 141 of the Constitution is not based on any doctrine of precedents, but is an imprimatur to all courts that the law declared by this Court is binding on them. If that is so, it was not open to <ORG> to consider the effect of the decisions in <NAME> case, its scope, what was decided therein and whether there could be any distinction between that decision and the decision rendered in <NAME> case. The clear pronouncement made by this Court in <NAME> case was that <NAME> case was applicable with reference to Section 31 of the Karnataka Rent Control Act and, therefore, in view of that decision, <ORG>'s decision was upset in another matter where <ORG> had followed the <NAME> case. In effect, <NAME> case stood impliedly overruled. Thus, it was not at all open to <ORG> to have tried to explain the decision of this Court and ought to have implicitly followed the decision of this Court. The law declared by this Court is clear that the <NAME>'s case was applicable to the provisions of Karnataka Rent Control Act. So it was not open to the learned Judge to take any other view in the matter. Thus we are of the view that the direction issued by <ORG> to the parties to work out their remedies under the Rent Control Act is not at all correct.

Ho<ORG>ver, learne<ORG> counsel for the respon<ORG>ents submitte<ORG> that there has been no <ORG>ecision of this <ORG> <ORG>irectly stating that the law <ORG>eclare<ORG> by <ORG> in <NAME> case was not correct an<ORG>, therefore, the view taken in <NAME> case may be examine<ORG> by us an<ORG> <ORG> may either uphol<ORG> the view expresse<ORG> therein or take another view though such a course was not open to <ORG>. We <ORG>o not think such an exercise is necessary when this <ORG> applie<ORG> its min<ORG> to the facts of the case, the law <ORG>eclare<ORG> by this <ORG> in <NAME>'s case an<ORG> applie<ORG> the same with reference to the provisions of the Karnataka Rent Control Act. If there has to be any change in the policy, it is certainly open to the <ORG> to interce<ORG>e it an<ORG> make appropriate law in that regar<ORG>. Therefore, this argument a<ORG>vance<ORG> on behalf of the learne<ORG> counsel for the contesting respon<ORG>ent <ORG>oes not appeal to us. yet another argument was presse<ORG> upon us to the effect that when a provision of law in an enactment has been <ORG>eclare<ORG> to be invali<ORG> an<ORG> when <ORG> <ORG>eclares the law with reference to another enactment of similar nature, it woul<ORG> not be open to <ORG> to say that the <ORG>ecision of this <ORG> shoul<ORG> be taken to have been overrule<ORG> or upset the <ORG>ecisions ren<ORG>ere<ORG> by <ORG> <ORG>eclaring the law to be invali<ORG>. This principle has no application in the present case at all because this <ORG> itself consi<ORG>ere<ORG> the effect of <NAME> case with reference to the provisions of the Karnataka Rent Control Act an<ORG> applie<ORG> the same thereto an<ORG> thereafter <ORG>eclare<ORG> what the law shoul<ORG> be. Though this <ORG> <ORG>i<ORG> not specifically referre<ORG> to the <ORG>ecision in <NAME> case, it is nee<ORG>less to say that the same stoo<ORG> overrule<ORG> because the law <ORG>eclare<ORG> by this <ORG> was contrary to what was state<ORG> in <NAME> case. Therefore that argument also is not soun<ORG> an<ORG> nee<ORG>s to be rejecte<ORG>. It is submitte<ORG> that if <ORG> take the view that Section 31 of the Karnataka Rent Act is vali<ORG> in view of <NAME>'s case, then the enactment will keep out of its purview large number of premises inasmuch as the rent payable in respect of commercial premises in Bangalore will certainly be more than Rs. 500/- per month. We have given our careful consi<ORG>eration to this aspect of the matter. Relying upon the <ORG>ecisions in <CITATION> 1998 (2) SCC 1, <CITATION> 1986(3) SCC 385, <CITATION> . 1984(1) SCC 222, <CITATION> . 1990(1) SCC 109, <CITATION> 1988 (1) SCC 366, it was submitte<ORG> that with passage of time an<ORG> change of circumstances the continue<ORG> operation of an Act which was vali<ORG> <ORG>re enacte<ORG> may become invali<ORG> as being arbitrary an<ORG> unreasonable. Though Karnataka Rent Control Act was enacte<ORG> in the year 1961 an<ORG> was to lapse by the en<ORG> of 10 years time, it has been exten<ORG>e<ORG> from time to time in the same form in which it was enacte<ORG> originally or with some mo<ORG>ification wherever it was necessary. We cannot imagine that the <ORG> was not aware or conscious of the fact as to the rents prevalent in the city of Bangalore or in other parts of the State in respect of non-resi<ORG>ential premises. Perhaps, the <ORG> thought it was necessary to give protection of the Act to only very poor tenants who pay rent less than Rs.500/- per month consi<ORG>ering the fact that tenants in other premises are economically of superior class an<ORG> can withstan<ORG> the maneuvers of a lan<ORG>lor<ORG> ho<ORG>ver po<ORG>rful he may be. If that was the policy of the law, <ORG> <ORG>o not think as state<ORG> in <NAME> case, it was open to the <ORG> to have <ORG>eclare<ORG> the same to be invali<ORG>. In the result, <ORG> are of the view that the <ORG>ecree passe<ORG> by the trial court is to be restore<ORG> by setting asi<ORG>e the or<ORG>er ma<ORG>e by <ORG> an<ORG> <ORG> or<ORG>er accor<ORG>ingly. The appeal, therefore, stan<ORG>s allo<ORG><ORG>. Ho<ORG>ver, consi<ORG>ering all aspects of the matter, <ORG> are of the opinion that the first respon<ORG>ent be given some reasonable time to vacate the premises an<ORG> which in this case <ORG><ORG> consi<ORG>er will be a perio<ORG> upto 30th of June, 1999 subject to the filing of usual un<ORG>ertaking within four <ORG>eks from to<ORG>ay. In the event such an un<ORG>ertaking is not file<ORG> before this <ORG>, it woul<ORG> be open to the appellant to seek for imme<ORG>iate eviction in a<ORG><ORG>ition to the con<ORG>ition that he shall vacate the premises an<ORG> <ORG>eliver the same on or before 30th of June, 1999.

CIVIL APPEAL NO. 5040 OF 1998 ARISING OF SPECIAL LEAVE PETITION (CIVIL) NO. 4557 OF 1998.

In view of the decision rendered by us in Civil Appeal arising out of Special Leave Petition (C) No. 6836 of 1996, the view taken by <ORG> has got to be upheld and this appeal deserves to be dismissed. However, the appellant is granted time to vacate the premises on or before 30th of June, 1999 upon his furnishing the usual undertaking in this Court within four weeks from today.


JUDGMENT <NAME>, Acting C.J.

1. This case comes before us on a reference under Section 374 of the Code of Criminal Procedure by the Sessions Judge of Muzaffarpur and also on appeal by the prisoner <NAME> alias <NAME>.

2. The appellant is alleged to have robbed and killed a young man named <NAME> about 8 P.M. on the 9th November, 1926. For the robbery he was charged under Sections 392 and 397 of the Indian Penal Code and tried by a Jury of five. For the offence of murder he was charged under Section 302 of the Indian Penal Code and tried by the Sessions Judge with the help of the above Jurors sitting as Assessors.

3. The unanimous verdict of the Jurors in the trial for the offences under Sections 392 and 397 was that the appellant was guilty. The opinion of the Assessors on the charge of murder was to the same effect.

4. The learned Sessions Judge, agreeing with the Assessors, has sentenced the appellant to death for the offence of murder. Agreeing with the Jurors he has also found the appellant guilty of the offences under Sections 392 and 397 but he has passed no separate sentence.

5. The appellant is thirty years of age. His home was in Mauza Mushari in the District of Muzaffarpur and he belonged by birth to the Mallah caste. About two years before the murder he was outcasted in consequence of an intrigue with a Dusadh woman named <NAME> who lived in Mauza Madhopur in the same District and he became a Dusadh. He lived with her for two or three months in Madhopur and then emigrated to the District of Dinaj pur taking her with him and one infant child. Later his mother joined him with his other child and thereafter for 5 or 6 months in 1926 he worked as a labourer in the service of one <NAME> in Mauza Nashipur is the District of Dinajpur.

6. The deceased <NAME> was twenty-five at the time of his death. He came to Dinajpur when he was quite a child and worked there for about twenty years. He was a Goala by caste and the name given to him by his parents was <NAME>, but he became a Mussulman later on and took the name of <NAME>. He lived at Nashipur and worked first as a grass-cutter and then as an agricultural labourer.

9. On the 8th November <NAME> with his wife, mother and two children started from Dinajpur for Madhopur. <NAME> accompanied them and the evidence is that <NAME> told him that he would get him married as he had no wife. At about 11 A.M. on the 9th the party arrived at Shekra Station which is ten miles from Madhopur. There was some trouble about <NAME>'s ticket. Apparently it could not be found and the result was that he had to leave his bundle behind containing some brass utensils, a chaddar, some clothes and some rice.

10. We have no evidence as to the subsequent movements of <NAME> till about 9 P.M. when he arrived bleeding from several wounds on the head and body at the bathan (cattle pen) of <NAME> of Salaha which is about one mile from Madhopur. <NAME>, who has a neighbouring bathan and had come out to feed his cattle, saw <NAME> go and sit in <NAME>'s bathan. <NAME>'s cries brought <NAME> to the bathan. The chaukidar <NAME> was next fetched and other people came. Whether <NAME> was able to make any coherent statement is a matter of cantroversy in this case and will be discussed later. The President Panch, <NAME>, was then fetched and drew up a short report which he handed over to <NAME>. <NAME> arrived at the Muzaffarpur Police Station at 7 A.M. on the 10th and laid an information before the Writer Head Constable, <NAME>, who was in charge. The Head Constable arrived at Salaha about 8 A.M. and found that <NAME> was dead. He sent the body to Muzaffarpur for post mortem examination and was engaged the whole day in making investigations.

11. On the bank of a circular piece of water called a "man" 250 paces from the bathan of <NAME>, the Head Constable found large patches of blood and a bundle containing two nets, some cotton thread, a pen-knife, a razor, a medicine battle and a dhoti. Near the bundle was a small stick made of jute wood. It is in evidence that the nets belonged to the appellant <NAME>.

12. On the 11th November, the Sub-Inspector of Muzaffrpur took charge of the case and the appellant was arrested about 1-30 p.M. In consequence of a statement made by him, his wife <NAME> delivered up to the Sub-Inspector Rs. 39 and gold coin of the Muhammadan period in India which she was carrying upon her person. Also in consequence of information given by the appellant the "man" was searched, and in water, about thigh deep a heavy hasua was found.

13. On the 13th the appellant was produced from Jail before a Deputy Magistrate at Muzaffarpur in order that his confession might be recorded. The appellant, however, did not make a confession but he made an exculpatory statement in which he admitted that he had come with <NAME> to Shakra and had then walked with him as far as the village of Titra (four miles from Shakra) where he had parted company with him. According to the appellant <NAME> said that he was going to Muzaffarpur but it does not appear that <NAME> had any home of his own at Muzaffarpur. The appellant says his mother halted on the 9th November in the house of a <NAME> at Titra. Where he and his wife slept on the night of the 9th there is nothing to show, but on the 10th <NAME> says he slept at the house of <NAME> of Madhopur.

14. It appears that the <ORG> found <NAME> in the house of her father at Madhopur on the 11th and, on information given by her, <NAME> was found in a kharour (field of high grass) in Madhopur about half a mile or a mile from that house.

15. I do not think that there is any reason for doubting that the deceased <NAME> came with <NAME> from Dinajpur where they had been working together and that he was last seen in his usual health at Shakra Station about 11 A.M. on the 9th November.

16. The "man" on the bank of which the blood was found is on the way from Shakra Station to Madhopur. It is on the boundary between Mamas Baikutpur and Salaha and is about one mile from the house of <NAME>'s father. It is 6 or 7 miles from Shakra and 2 or 3 miles from Titra where the appellant says he halted for a little time with <NAME>. There are no houses anywhere near. The blood on the ground has by analysis been found to be human.

17. The witnesses <NAME> and <NAME> who next saw <NAME> live in Salaha. Those who came afterwards live either in Salaha or Baikutpur or Madhopur.

18. <NAME> and <NAME>, the two Dinajpur witnesses, identified as <NAME>'s the two nets found in the bundle which wag discovered near the blood patches on the bank of the 'man'. It may be said that one cannot rely on this identification as there do not appear to be any special marks, but, on the other hand, the accused was originally a fisherman by caste and would be expected to know how to make nets and there is nothing to show that the two Dinajpur witnesses are deposing falsely. <NAME> and <NAME> also establish that the gold coin handed over to the <ORG> on the 11th by <NAME> belonged to <NAME>. It is an old Badshahi coin and not likely to be easily mistaken. <NAME> deposes that <NAME> told him that he had bought it from a man called <NAME> for Rs. 26 and that he wanted to sell it; also that he had bought it to have it threaded to wear round his neck. <NAME> also identifies the coin. The man <NAME> from whom the coin is alleged to have been bought has not been found.

19. With regard to the hasua found in the "man" on the 11th both <NAME> and <NAME> identify it as the appellant's. They say that, although it is an ordinary hasua, they recognize it by the handle and by the blade and that <NAME> used to cut bamboos with it in Dinajpur. It is a heavy weapon and capable of causing the injuries from which <NAME> died.

20. These injuries were five severe wounds on the head and two slight wounds on the right shoulder. The Civil Surgeon deposes that death was due to shock and hemorrhage caused by the wounds, especially those which caused the fracture of the skull.

21. Except the statement of the deceased which is alleged to have been recorded by the President Panch, <NAME>, there is nothing to show where the deceased lived. In this statement it is recorded that he stated that his home was at Madhbalia, Thana Masrakh, District Chapra. If that is correct, then Shakra was not the station where <NAME> would, in the ordinary course, have alighted and there is no reason why he should have gone to Muzaffarpur. It will be remembered that the appellant in his statement before the Magistrate on the 13th November said that he last saw <NAME> in Titra when <NAME> said that he was going to Muzaffarpur. I think this statement is only partially correct and that <NAME> was with him up to the time of the assault. There is no evidence to show where the appellant spent the night of the 9th and I think the prosecution might with advantage have called <NAME> even though she is the appellant's wife. The appellant stated in his statement before the Committing Magistrate on the 22nd December, 1926, that he went to <NAME> on the 10th. This man might also with advantage have been called and so also <NAME>, the father of <NAME>. If the prosecution did not consider that these witnesses could be relied upon to speak the truth, they should have asked the <ORG> to examine them and the witnesses could have been cross-examined by both sides.

22. The trial was also defective in another respect. I find that the inquest report which the Writer Head Constable drew up immediately on arrival at the bathan of <NAME> states that the name of the deceased was not known. As the evidence given in Court is that before he died the deceased gave his name, his father's name and his address to the President <NAME>, the Writer Head Constable should have been, asked the reason for the omission in the inquest report. He should also have been asked why, if it was known then that <NAME> was the man who had committed the murder, no attempt was made to arrest him on that day. The Writer Head Constable appears to have been very active in examining witnesses in the neighbouring mauzas, for he deposes that he did not return to Muzaffarpur till midnight. The prosecution should also have given evidence as to when the Dinajpur witnesses were examined for the first time by the <ORG> so as to show that the dying declaration alleged to have been made by <NAME> could not have been fabricated to accord with any information obtained from these witnesses.

23. The above omissions on the part of the prosecution have thrown considerable doubt upon the genuineness of the dying declaration made by the deceased and the learned Judge has not relied upon any of them; but I think there is internal evidence to show that the witnesses who depose to them are not intentionally giving false evidence. In the first place none of them are men of the appellant's caste. It is contended that the appellant had to leave his village be cause he had become a Dusadh and had formed an intrigue with <NAME>; but that did not affect men like <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME>, <NAME> (a Mussulman) and the President Panch, <NAME>.

24. <NAME> and <NAME> who were the first to question the deceased, depose that <NAME>'s name was mentioned then; but <NAME> chaukidar does not support this and in his information at the Police Station he does not mention <NAME> at all but merely states that the deceased had said that he had been attacked by his companion who had snatched away his necklace. The learned Judge has explained to the Jury and the Assessors that probably <NAME> and <NAME> were speaking from inferences drawn from facts subsequently ascertained and were actuated by a mistaken zeal in the cause of public justice.

25. We know that <NAME> was at the <ORG> at 7 o'clock in the morning of the 10th so that he must have left home at the latest about 3 o'clock. He says in his first information that the President gave him the report at 11 P.M.; but he must have got it earlier because the President deposes that the second statement was made about half an hour after the first and in this document the President writes that it was recorded after the chaukidar had left. <NAME> died after the President came home. There is no evidence as to the hour. <NAME> deposes that he was left in charge and that <NAME> died soon after the President left.

26. The medical evidence shows that it was not impossible that the deceased might have lived for three or four hours; but that no definite opinion can be given.

27. I think the evidence shows that the first statement was recorded about 10 o'clock and the second about half past ten and that <NAME> chaukidar had by then already left with the first report. It is clear from the first information that <NAME> must have left for the <ORG> before the man died. The chaukidar was not asked when he arrived at the <ORG>. The first information states that it was recorded as soon as the chaukidar arrived, but it appears from the chaukidar s evidence that he must have arrived during the night or that he halted somewhere on the road. The chaukidar states that he left after the <NAME> went home; but this is, in my opinion, a mistake. I have no doubt that all that the deceased did say to those who came before the chaukidar left for the <ORG> was that he had been attacked by his companion and that a gold haulduli was snatched from his neck. A "haulduli" is a necklace of stones and a gold haulduli is obviously a misnomer for a gold coin worn as a locket; but the chaukidar had to make the best of what the deceased said and it was either his mistake or the deceased's. The chaukidar also states that by his conversation the deceased appeared to be a man from another part, but that he could not state his name and address. I think the chaukidar spoke the truth in his information to the Police and that up to that time <NAME>'s name had not been mentioned. This is further corroborated by the written report sent by the President in which the President says merely that the wounded man could not give any satisfactory reply to his questions.

28. The second report written by the President has been attacked by the defence as a pure fabrication. This report shows that the deceased gave his name as <NAME> and his father's name as <NAME>, and his home as Mauza Madhbalia, Thana Masrakh, District Chapra, and that the deceased had been possessed of Rs. 62 and one mohur worth Rs. 26 and that his assailant was one <NAME> whose house was in the District of Muzaffarpur. 1 cannot believe that a man of the President's standing and so many disinterested witnesses could have deliberately assisted in the fabrication of a piece of false evidence such as this. The President's explanation is that the man was given a drink of water after the chaukidar left and then revived sufficiently to give these details. If these details had not been given I do not see why <NAME> was arrested at all on the 11th. It certainly seems to be a fact that on the 10th the President told his chaukidars to keep <NAME> under observation and if he knew nothing then about <NAME>'s connection with the deceased his action cannot be explained. Further, the Writer Head Constable himself deposes that he got the second report at "10 o'clock in the morning on arrival at the village. The value of the gold mohur is put down as Rs. 26 in the second report audit is extremely unlikely that the President put down this figure out of his own head; the same applies to the figure Rs. 62 which was given as the amount which <NAME> brought from Dinajpur. The pries of the gold mohur was not known to any one except the two Dinajpur witnesses and they appear to have been examined by the <ORG> long afterwards. It is also difficult to see how the President got the deceased's father's name and address unless it was given by the deceased himself. There is a village called Majhaulia but no village called Madhbalia and Majhaulia is now no longer in Thana Masrakh. If the President had fabricated the document he would not have made a mistake about the name of the village and the Thana, The circumstances show that the information given in the second dying declaration was obtained from the deceased.

29. There is, of course, the fact that the Writer Head Constable did not put down the name of the deceased in the inquest report and also the fact that the did net arrest <NAME> on that day. In the absence of any explanation, the only conjecture that I can make is that he did not trust the accuracy of the second report and of the witnesses who supported it.

30. In my opinion the learned Judge has erred on the side of over-caution and both the reports drawn up by the President are genuine.

31. But, apart from the statements made by the deceased, the circumstantial evidence is quite sufficient to support the conviction.

32. The deceased came with the appellant as far as Shakra and started from that station in his company. He is not seen again but his hasua is found in the "man" one mile from the house of the appellant's father-in-law. The appellant's bundle is found on the bank of the "man" and the earth close by is stained with human blood. Immediately upon arrest on the 11th the appellant makes a statement in consequence of which the deceased's gold coin is found in the possession of the appellant's wife and is given up to the Police at his request and the accused's hasua is found in the "man." Also the appellant gives no account of where he went after he parted company with the deceased and where he slept on the night of the 9th; and his statement that he left the deceased at <NAME> must be false.

33. The learned <NAME> for the appellant has attacked the evidence regarding the finding of the hasua. He says that <NAME>, the man who got into the water and found the weapon, is at enmity with the appellant and put the weapon there, It is suggested that <NAME> is the headman of the Dusadhs of Madhopur and bears a grudge against the appellant for having misconducted himself with <NAME>. There is no evidence to support this suggestion. The evidence conclusively shows that when he was asked by the Sub-Inspector where the weapon was, the appellant took the Sub-Inspector to the "man" and the weapon was found after some delay. The learned <NAME> objects to the admissibility of that part of the statement which refers to the weapon as the one used for attacking the deceased; but, in my opinion, Section 27 of the Indian Evidence Act is quite clear upon this point. It is contended on the authority of some cases that the prosecution is only entitled to prove that the accused in answer to a certain question gave information which led to the discovery of the weapon; but common sense requires that the discovery should be connected with and be relevant to the investigation. The omission to connect the weapon with the offence would render the provisions of Section 27 of the Indian Evidence Act wholly nugatory. The whole confession of a prisoner in <ORG> custody cannot, of course, go in, but where the confession includes a statement that a weapon was used for committing the offence charged, that part of the confession can certainly go in if it leads to the discovery of the weapon. The most recent case on this point is In re <NAME> 93 Ind. Cas. 42 : 27 Cr. L.J. 394 : A.I.R. 1928 Mad. 638.

34. For the same reason evidence could have been given to show that the appellant stated immediately upon arrest that he had given the deceased's gold mohur and money to his wife. But as the record stands at present all we have got is that the appellant made a certain statement and that in consequence of that statement the gold mohur and Rs. 39 were given up by <NAME>.

35. But even on the record as it stands the discovery of the gold coin in <NAME>'s possession taken with the other evidence in the case conclusively shows that the appellant was the person who caused the death of the deceased.

36. The learned <NAME> has also taken a point that it was not permissible to the Grown to have the statement of the appellant recorded under Section 164 of the Code of Criminal Procedure on the 13th as the statement was not a confession. The answer to this is that the accused was sent up to have his confession recorded and that he gave the <ORG> to understand that he would make a confession. After a night in Jail he changed his mind, and when he appeared before the Magistrate it was open to him to say that he would make no statement; but he did not follow this course; he was warned and notwithstanding that he proceeded to make a statement. This statement is certainly evidence of conduct.

37. A further legal point is taken with regard to the dying declarations.

38. It is contended that so far as the charges for the offences under Sections 392 and 397 are concerned the dying declarations are not admissible under Section 32(1) of the Indian Evidence Act inasmuch as the cause of the deceased's death does not come in question in the trial of those charges. It is contended that on this point the Indian law is the same as the English Law and that a dying declaration as to the cause of the death is only admissible when the causing of the death is the subject of the charge. I cannot agree with this view. The words of Section 32 are very wide and it is not necessary that the charge should be one of homicide. The evidence as to the cause of death was relevant to the charge of robbery and consequently, the cause of death, that is to say, the assault committed by the appellant, came in question in the trial. Before the Indian Evidence Act was enacted it was held in Queen v. <NAME> 6 W.R. Cr. 76 that there was no necessity in India for following the very narrow rule of English Law and that a dying declaration could be used as evidence in a charge of rape. One of the illustrations to Section 32 of the present Indian Evidence Act expressly provides for such evidence where the charge is not culpable homicide but rape.

39. Moreover, in this case the dying declaration was also admissible under Section 8 of the Indian Evidence Act as a part of the res gestce. A statement made by the deceased immediately after the robbery regarding the robbery and also regarding the assault committed in the course of the robbery was admissible though the person who made it cannot be called to depose to it on oath. The truth in Sections 8 and 32 of the Indian Evidence Act may overlap in some cases, but they provide for different and distinct conditions. A statement, for instance, which would not be admissible under Section 8 may be admissible under Section 32 .

40. The result, therefore, is that, in my opinion, the Assessors and the Jury were right in the view which they took of the guilt of the appellant. The appellant is guilty both of robbery and murder. Having regard to the injuries there can be no doubt that it was his intention to cause such injuries as would in the ordinary course cause death. His motive was robbery and he appears to have attacked his victim from behind without giving him a chance of protecting himself. I agree with the learned Sessions Judge that the sentence of death is the only possible sentence and the order of the learned Judge must, therefore, be confirmed.

41. The conviction for the offences under Sections 392 and 397 are also affirmed but it is unnecessary to pass any separate sentence for these offences.

42. The appeal is dismissed.

Wort, J.

43. I agree.


PETITIONER: COMMISSIONER OF INCOME TAX, CALCUTTA Vs. RESPONDENT:

<ORG>.

DATE OF JUDGMENT13/12/1990 BENCH:

<NAME>, <NAME>:

<NAME>, <NAME>, M.M.

CITATION:

1991 AIR 1338 1990 SCR Supl. (3) 525 1992 SCC Supl. (1) 55 JT 1990 (4) 694 1990 SCALE (2)1261 ACT:

Income Tax Act 1961: Section 145- -Valuation of stock--Principle to be followed--Cost or market value--Whichever is lower-Assessing officer--Whether enti- tled to add over head charges.

Method of accounting--Consistent practice--To disclose true picture of profits and gains--Assessing Officer--Enti- tled to and has duty to adopt appropriate computation to determine true income.

HEADNOTE:

The respondent-assessee a limited liability company engaged in the business of manufacture and sale of paints, had a consistent practice to value its goods in process and finished products exclusively at cost of raw materials and totally excluding overhead expenditure. The justification for this practice, the assessee contended was that the goods being paints had limited storage life and if not quickly disposed of were liable to lose their market value. The Income Tax Officer rejected the aforesaid contention of the assessee observing that at no time had the assessee claimed any deduction on account of deterioration or damage to goods and that there was no justification to recognise a practice as claimed by the assessee of valuing its stock otherwise that in accordance with the well recognised prin- ciple of accounting which require the stock to be valued at either cost (raw material plus expenditure) or market value whichever was lower. Recalculating the value of the opening and closing stocks by adding the overhead expenditure, the Income-tax Officer made an addition of Rs.1,04,417 for the assessment year 1963-64, and allowed a deduction of Rs.3338 for the assessment year 1964-65. These orders were confirmed by the Appellate Assistant Commissioner. On appeal, <ORG> held that there was no evidence to show that the goods in stock dete- riorated in value and that there was no justification for excluding the overhead expenditure in valuing the stock; and if it was in the interest of the business to value stock solely with reference to cost of raw materials and without including the overhead expenditure, such valuation was not appro-

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priate to the computation of income chargeable under the Income Tax Act .

<ORG>, in a reference at the instance of the <ORG> noticed that though there was no evidence of dete- rioration of the goods in stock, came to the conclusion that having regard to the consistent practice of the assessee, the <ORG> was not justified in rejecting the assessee's method of valuation of its stock-in-trade. It accordingly reversed the <ORG>s decision.

In the appeals by the <ORG> to this Court, it was contended on behalf of the assessee that for a number of years the <ORG> did not question the method of accounting regularly employed by the assessee, that it was during the assessment years in question that the objection was raised for the first time on the ground that overhead expenditure was not included in the value of the stock, that the Assess- ing Officer had exceeded his jurisdiction by adding the overhead expenditure to the cost of raw material, especially because of the short durability of paint and that the As- sessing Officer has not appreciated that the method adopted by the assessee is a well recognised method among account- ants of repute.

Allowing the appeals and setting aside, the judgment of <ORG>, this <ORG>, HELD: 1. The Income Tax Act does not contain any specif- ic provision for the valuation of stock, Income, profits and gains must, however, be computed in the manner provided by the Act. It is the duty of the Officer to determine the profits and gains of a commercial adventure according to the correct principle of accounting. In doing so, he might, dependent on the nature of the business and its special character, allow certain adjustments, but his primary pur- pose and duty is to deduce the correct income, profits and gains, and this he cannot do without taking into account the value of the stock-in-trade at the beginning and at the end of the year and by ascertaining the difference between them. [537G- <CITATION> ,  73 I.T.R. SC 735, referred to.

2. The object of stock valuation is the correct determi- nation of the profits and loss resulting from a year's trading. [538B]  <CITATION> ,,  12 Tax Cases 813, 827; Chainrup Sampatram v. Commis- sioner of IncomeTax, West Bengal,  24 I.T.R. 481,485- 486; <CITATION> .,  25 I.T.R. 377, 395; Russell v. <ORG>,  13 App. Cas. 418, 424; 4 TLR. 500 and <CITATION> .,  A.C. 85; (1956) I.T.R. 84, 99, referred to.

3. Section 145 of the Income Tax Act, 1961 confers sufficient power upon the officer-nay it imposes a duty upon him-to make such computation in such manner as he determines for deducing the correct profits and gains. This means that where accounts are prepared without disclosing the real cost of the stock-in-trade, albeit on sound expert advise in the interest of efficient administration of the company, it is the duty of the Income Tax Officer to determine the taxable income by making such computation as he thinks fit. [539E]

4. Even if the assessee had adopted a regular system of accounting, it was the duty of the Assessing Officer under section 145 of the Income Tax Act 1861, to consider whether the correct profits and gains could be deduced from the accounts so maintained. If he was of the opinion that the correct profits could not be deduced from the accounts, he was obliged to have recourse of the proviso to section 145 of the Income Tax Act 1961. [536C, <CITATION> .,  6 ITR 36; <CITATION> .,  53 I.T.R. 122, 128 and 132; <CITATION> .,  33 I.T.R. 182; <CITATION> ,  38 I.T.R. 579, 588 and Commissioners of Inland Revenue v. <ORG>,  29 Tax Cases 387, 392, referred to.

5. Any system of accounting which excludes, for the valuation of the stock-in-trade, all costs other than the cost of raw material for the goods in process and finished products, is likely to result in a distorted picture of the true state of the business for the purpose of computing the chargeable income. Such a system may produce a comparatively lower valuation of the opening stock and the closing stock, thus showing a comparatively low difference between the two. In a period of rising turnover and rising prices, the system adopted by the assessee, as found by the <ORG>, is apt to diminish the assessment of the taxable profit of a year. The profit of one year is 'likely to be shifted to another year which is an incorrect method of computing profits and gains for the purpose of assessment. [539F-G]

6. Each year being a self-contained unit, and the taxes of a particular year being payable with reference to the income of that year, as computed in terms of the Act, the method adopted by the assessee has been found to be such that the income cannot properly be deduced therefrom. It is, therefore, not only the right but the duty of the Assessing Officer to act in exercise of his statutory power, for determining what, in his opinion, is the correct taxable income. [539H-540A]

7. The question to be determined by the Assessing Offi- cer in exercise of his power under section 145 is whether or not income can properly be deduced from the accounts main- tained by the assessee, even if the accounts are correct and complete to the satisfaction of the Officer and the income has been computed in accordance with the method regularly employed by the assessee. What is to be determined by the Officer is a question of fact i.e. whether or not income chargeable under the Act can properly be deduced from the books of account, and he must decide the question with reference to the relevant material and in accordance with the correct principles. [531D-F]

8. It is a well recognised principle of commercial accounting to enter in the profit and loss account the value of the stock-in-trade at the beginning and at the end of the accounting year at cost or market price, whichever is the lower. [533G- <CITATION> ,  12 Tax Cases, 813,823 referred to. (9) Where the market value has fallen before the date of valuation and at that date the market value of the article is less than its actual cost, the assessee is entitled to value the articles at market value and thus anticipate the loss which he will probably incur at the time of the sale of goods. Valuation of the stock-in-trade at cost or market value, whichever is the lower, is a matter entirely within the discretion of the assessee, but whichever method he adopts, it should disclose a true picture of his profits and gains. If, on the other hand, he adopts a system which does not disclose the true state of affairs for the determination of tax, even if it is ideally suited for other purposes of his business, such as the creation of a reserve, declaration of dividends, planning and the like, it is the duty of the Assessing Officer to adopt any such computation as he deems appropriate for proper determi- nation of the true income of the assessee. [534E-F] This is not only a right, but a duty that is placed on the Officer, in terms of the first proviso to section 145 which concerns a correct and complete account, but which in the opinion of the Officer does not disclose a true and proper income. [534G] B.S.C. Footwear v. <NAME> (Inspector of Taxes),  2 W .L.R. 1313, referred to.

(10) It is not only the right, but the duty of the Assessing Officer to consider whether or not the books disclose the true state of accounts and the correct income can be deducted therefrom. It is incorrect to say, as con- tended on behalf of the assessee, that the Officer is bound to accept the system of accounting regularly employed by the assessee the correctness of which had not been questioned in the past. There is no estoppel in these matters, and the Officer is not bound by the method followed in the earlier years. [535G] (11) What is the profit of a trade or business is a question of fact and it must be ascertained, as all facts must be ascertained, with reference to the relevant evi- dence, and not on doctrine or theories. [539C] JUDGMENT:


JUDGMENT <NAME>, J.

1. This is an appeal by special leave from the judgment of <ORG> confirming the death sentence imposed upon each of the three appellants under Section 302 read with Section 34 of the Penal Code for the murder of five persons belonging to one family. Because of the family disputes and rivalry, a serious occurrence took place at about sun set time on the 2nd of December, 1975 resulting in the death of five members of the same family. The appellants are also very close agnation relations of the deceased.

2. <NAME>, <NAME> and <NAME> were brothers. <NAME> was unmarried and used to live with <NAME>. The three brothers had divided their properties at a private partition. Appellant <NAME> and <NAME> are sons of <NAME> who is dead. Appellant <NAME> and his brother <NAME> (since acquitted) are the sons of appellant <NAME>. <NAME>'s wife was <NAME>. They had three sons and a daughter. Their names being <NAME>, <NAME>, <NAME> and <NAME>. A few months before the occurrence, <NAME> raised a sum of Rs. 3,000/ at the instance of his brother <NAME> mortgaging four Kanals of his land. Appellants <NAME> and <NAME> wanted a share in that money as they could not reconcile themselves with the fact that the branch of <NAME> alone should enjoy the property or the money of <NAME>. They being the sons of another brother of <NAME> wanted to lay a claim on the property and money of <NAME>. It appears that it was not known to the prosecution as to how and to what extent the family disputes and rivalry went on gradually aggrava ting and what was the immediate cause of the occurrence. The two brothers amely <NAME> and <NAME> who could throw light on this aspect of the atter are both killed in the occurrence. But that is of consequence in this case.

3. According to the prosecution case on the day and at the time of the occurrence the four accused went to the house of <NAME> armed with deadly eapons. <NAME> had a spear and the other three had Kripans. The three appellants attacked <NAME> with their respective weapons while he was sitting in a room in his house. <NAME> (since acquitted) was standing at the oor as a guard. <NAME> tried to escape but <NAME> stopped him injuring him on the left shoulder with his <NAME> The others also attacked him and he fell down. <NAME>, <NAME> and <NAME> ran out of the house. They were chased by <NAME> was given a <NAME> injury on the head of <NAME> and she fell down. All the accused surrounded <NAME> and <NAME> nd caused injuries to them. They fell down. The accused raised a Lalkara aying that <NAME> and <NAME> should also be done away with. Saying o they went towards a well and the fields of <NAME> where <NAME> and <NAME> were. There they are said to have attacked, with their respective weapons, <NAME> and <NAME>.

4. <NAME>, P.W. 6, a close neighbour of <NAME>, could see only a part of the occurrence and in the company of <NAME> (not examined) he rushed to <ORG> at Chheharta and gave a report Ext. P/E to <NAME>, P.W. 28, the Assistant Sub-Inspector of Police, Incharge of the Out Post. Since <NAME> did not notice as to whether any person was dead or alive and himself had seen the attack on <NAME> only, in the report which he lodged he mentioned only that part of the occurrence which he had seen with his own eyes. On that report a case under Section 307 of the Penal Code was instituted at the Police Station Sadar. The report was lodged at <ORG> at 6.45 P.M. the same day i.e. the 2nd December, 1975 and it was registered in the Police Station 7.20 P.M. P.W. 28 proceeded to the village of occurrence with a Head Constable and two Constables. They learnt there that <NAME> and <NAME> had died and <NAME> was lying unconscious in the house and that <NAME>, <NAME> and <NAME> and <NAME> had been taken to the Hospital at Amritsar. <NAME> died on the way when he was being removed to the Hospital sometime later. <NAME> died in the Hospital on the 11th December, 1975 and <NAME> died there on the 13th December.

5. The learned Additional Sessions Judge, Amritsar, who tried the four accused for the ghastly murder of five persons and for causing injuries to <NAME>, PW 8 and <NAME>, PW 9 acquitted <NAME> as his name was not mentioned in the First Information Report as also for some other reasons. He, however, convicted the three appellants under Section 302 read with Section 34 of the Penal Code imposing death sentence on each of them as also a fine of Rs. 2,000/ separately for each of the five murders. They were also convicted under Section 324 of the Penal Code for causing hurt to <NAME> and <NAME>. <ORG> dismissed their appeal, accepted the death reference and confirmed the death sentence.

6. Mr. <NAME>, learned Counsel for the appellants, made several submissions to persuade us to acquit them or in any event to commute the death sentence imposed upon each of them. We have considered all the submissions made, many of them were of such a nature that we had no hesitation in rejecting them outright. They do not merit any detailed discussion in our judgment as in an appeal on grant of special leave under Article 136 it is not necessary to deal with all of them. We shall, however, proceed to deal with some of them.

7. At the outset it may be mentioned that the prosecution had also led evidence of recoveries of certain articles said to have been made at the instance of the accused But finding infirmities in that evidence <ORG> did not rely upon them. Apart from the fact that accused <NAME> was a lad of about 12 years of age at the time of the occurrence, the evidence against him was not free from doubt. He, was therefore, acquitted The three appellants were convicted for the murder of <NAME>, <NAME> and <NAME> chiefly upon the evidence of <NAME>, PW 8, <NAME>, PW 9 and partly upon the evidence of <NAME>, PW 6. Mr. <NAME> asked us to reject the evidence of <NAME> and <NAME> in its totality because they had implicated <NAME> also. On the facts and in the circumstances of this case we find no substance in this argument The two courts of fact have rightly believed theirevidence. The other criticism was that Sarpanch <NAME> and another Sarpanch named <NAME> to whom one of the prosecution witnesses had gone were not examined They were not eye witnesses and it is not possible for us to take the view that their non examination in any way affected the prosecution case. The third criticism against the evidence of these two witnesses was that they were tutored witnesses and had given the prosecution version parrot like. Both of them were teenaged children of <NAME> and their version was so truthful that it was rightly believed by the courts below.

8. There were two dying declarations of <NAME> one oral and the other written which was recorded by the Assistant Sub Inspector of Police, PW 28 on 12-12-75. The oral dying declaration was made to PW 11 <NAME>. Neither of the dying declarations was relied upon by <ORG> because he had named <NAME> also. We may also add although a dying declaration recorded by a Police Officer during the course of investigation is admissible under Section 32 of the Indian Evidence Act in view of the exception provided in Sub-section (2) of Section 162 of the CrPC, 1973, it is better to leave such dying declaration out of consideration until and unless the prosecution satisfies the court as to why it is not recorded by a Magistrate or by a Doctor. As observed by this Court in <CITATION> the practice of the Investigating Officer himself recorded a dying declaration during the course of investigation ought not to be encouraged. We do not mean to suggest that such dying declarations are always untrustworthy, but, what we want to emphasize is that better and more reliable methods of recording a dying declarations of an injured person should be taken recourse to and the one recorded by the Police Officer may be relied upon if there was no time of facility available to the prosecution for adopting any better method.

9. There is a dying declaration of <NAME>, Ext. PFF recorded by <NAME>, PW 10 He was the Head Constable of the Police Post Chhenarta. At the direction of the Assistant Sub Inspector of Police PW 28 he recorded the statement of <NAME> at the spot. This dying declaration has been relied upon by the High Court. It could not be rejected on the ground that it was recorded by a Police Officer as he was in a critical condition and no other person could be available in the village to record the dying declaration of <NAME>. But we find that there is a difficulty in relying upon this dying declaration. <NAME> and <NAME> were attacked by the appellants after having raised a Lalkara at the house of <NAME> to murder them. No body actually saw them murdering either of them. The place where the said two persons were murdered was about a furlong away from the house of <NAME>. <NAME> in his statement recorded by PW 10 Ext. PFF which is also signed by the Assistant Sub-Inspector stated:-

<NAME>, <NAME>, sons of <NAME> and <NAME>, son of <NAME>, who are from our brotherhood have caused injuries to me and the male and female members of my family and my elder brother <NAME> with Kirpans, and spears on account of dispute over the property of <NAME>. They have murdered <NAME> and <NAME> by inflicting injuries to them.

The dying declaration seems to be otherwise truthful but for the fact that it could not be within the knowledge or vision of <NAME> that <NAME> was murdered by the appellants. His saying so in the dying declaration makes his statement a bit doubtful. It is, therefore, safe to leave out of consideration this dying declarations. It is important to remember that if the dying declarations both oral and written of <NAME> are discarded so also the dying declaration of <NAME>, then no direct evidence remains on the record in regard to the murder of <NAME> and <NAME> by the appellants. In all probability they had committed the murder of these two person also because after having raised the Lalkara they went towards the field where <NAME> and <NAME> were. But in absence of a direct evidence on the point and also for want of conclusive chain of circumstantial evidence, legally it is not possible to hold that the three appellants were responsible for committing the murder of <NAME> and <NAME>.

10. We are not impressed with the argument advanced on behalf of the appellants that the occurrence did not take place at about sun set time or that the First Information Report was ante-timed merely because the Illaqa Magistrate received the said report late by a few hours. It is difficult to accept the suggestion in this case that the appellants were falsely implicated and some unknown two persons had committed the murder of so many family members of <NAME>. The evidence of the two stamped witnesses, <NAME> and <NAME>, is so truthful that absolutely there cannot be any doubt about the commission of the ghastly crime by the appellant in the murder of three of the five persons. Regarding the other two, a definite finding may not be possible to be recorded for lack of legal evidence.

11. For the reasons stated above, we maintain the conviction of all the three appellants under Section 302 read with Section 34 of the Penal Code for the murder of <NAME>, <NAME> and <NAME>. We also maintain their other convictions. <ORG> gave an opportunity to the appellants of hearing argument on the question of sentence. That was a sufficient compliance with the law, Argument on the question of sentence was also advanced in <ORG>. There is no infirmity on that account at all. Special reasons have been given by both the courts for imposing the extreme penalty of death on each of three appellants. While generally agreeing with those reasons we feel persuaded to take a somewhat lenient view in the case of <NAME>. We could not find with certainty for lack of legal evidence that he alongwith the other two appellants was responsible for causing the death of <NAME> and <NAME>. <NAME> and <NAME> are nephews of <NAME> and they had demanded a share in the sum of Rs. 3,000/- received by <NAME> on execution of the mortgage. <NAME> was a young man in his twenties at the time of the occurrence. He is a grand nephew of <NAME>. We, therefore, feel that in his case ends of justice would be met by sentencing him to life imprisonment instead of the imposition of the extreme penalty of death. We further do not feel persuaded to uphold the imposition of fine of Rs. 2,000/- on any of the appellants because after imposing a sentence of death it was not necessary on the facts of this case to impose any sentence of fine on any of them. In the result we uphold the conviction of all the appellants under various counts to the extent and in the manner indicated above. We uphold the sentence of death awarded to appellants <NAME> and <NAME> but set aside the imposition of fine of Rs. 2,000/ on each of them. We commute the sentence of death imposed upon <NAME> and instead sentence him to undergo imprisonment for life. Sentence of fine of Rs. 2,000/- imposed upon him is also knocked down. The appeals are dismissed subject to the modification in the sentence as made above.