JUDGMENT <NAME>, J.

1. Both these appeals by special leave arise out of a judgment rendered by <ORG> in Reference No. 1 of 1973 and, Criminal Appeal No. 36 of 1973. Both the appeals arise from the same judgment and were therefore heard together and are being disposed of by this common judgment.

2. The occurrence which gave rise to the present appeals took place on 7th August 1972 a little after 10.30 p.m. <NAME> according to prosecution who was fatally injured in this occurrence had a few days prior to 7th August 1972 earned a prize in the amount of Rs. 5100/- in a private lottery. Along with some other amount which he had with him, it is alleged, he usually kept Rupees 8000/- in his pocket. On the date of the occurrence deceased <NAME> accompanied by one <NAME> alias <NAME> visited <ORG> in the second show. Accused No. 2 <NAME> was also in the theatre at that time. At about this time accused No. 1 <NAME> (appellant in Criminal Appeal No. 369/75 and respondent No. 1 in Criminal Appeal No. 59/75) and <NAME> (respondent No. 3 in Cri. Appeal No. 59/ 75) were seen conversing among themselves in the verandah of the theatre. The second show was over around 10.30 p. m. <NAME> who was also enjoying the picture came out of the theatre and proceeded towards his house and on the way he crossed accused No. 3 <NAME> whose clothes appeared to have been stained with blood. Proceeding ahead, <NAME> hoard a shout and rushed in that direction. He found <NAME> injured lying on the ground and he inquired from <NAME> as to what had happened whereupon <NAME> told him that: '<NAME> Hawker doing business near <ORG> injured him with a knife and at that time <NAME> son of Nathu of Girth Sakna and <NAME>, brother of <NAME> were with him and they beat him and information should be given to his relatives'. <NAME> went to the house of <NAME> and informed his wife Smt. <NAME>, P.W. 5 and she along with <NAME> and <NAME> came to the scene of occurrence but in the meantime <NAME> succumbed to his injuries. <NAME> gave information of the offence at Kangra Police Station around mid-night time and investigation was commenced. A search of the clothes of the deceased then put on by him led to the recovery of Rs. 71/- and a bunch of keys. The point worthy of notice is that the large cash which <NAME> was alleged to be carrying was not found on his person and a suspicion arose that the motive for murder was robbery. A search of the house of accused No. 1 <NAME> was taken and except a paltry amount no cash was recovered. Accused No. 1 <NAME> was arrested on 8th August 1972 from the house of <NAME>, P.W. 16 and at the time of his arrest on a search of his person, Banyan Ext. B. 18, and <NAME>, Ex. P-19 alleged to have been stained with blood, were recovered. Information given by accused No. 1 while in custody led to the recovery of blood-stained knife, Ext. P-1 from a bush of Nealkanthi and it was attached. Accused No. 2 <NAME> could not be traced till 20th August 1972 when he surrendered in <ORG>, Pathan-kot. He was arrested and the information given by him while in" custody led to the recovery of a ring and a watch pledged with one <NAME>, P.W. 21 on 31st August 1972. Accused No. 3 <NAME> was arrested by Head Constable <NAME>, P.W. 23 on 9th August 1972 and on a search of his person currency notes worth Rs. 28.15, one iron ring and a railway ticket were recovered. After completing the investigation, the accused were charge-sheeted and ultimately came to be committed to <ORG> Where a charge was framed against accused No. 1 <NAME> for committing murder of <NAME> punishable under Section 302 of the Indian Penal Code, and against accused No. 2 <NAME> and accused No. 3 <NAME> for committing an offence under Section 302 read with Section 34 of the Indian Penal Code.

3. The defence of accused No. 1 <NAME> was that he caused injury to <NAME> in exercise of the right of private defence of body in that when he was peeling apple for his wife who was then pregnant, deceased <NAME> accompanied by <NAME> 17 and one <NAME> alias Pashi came over there and started beating him. At that time <NAME> according to the defence of accused No. 1 <NAME> felled him and sat on his chest and was pressing and he felt suffocated and wielded his knife not to kill <NAME> but to save himself. The defence of accused No. 2 <NAME> and accused No. 3 <NAME> was one of total denial.

4. The learned Sessions Judge rejected the evidence of motive and he accepted the dying declaration as giving a truthful version of the occurrence and held it proved. He also accepted the circumstantial evidence in the form of recovery of blood-stained knife, Ext. P. 1 at the instance of accused No. 1 <NAME> and bloodstained clothes on the person of wazir <NAME> at the time of his arrest. Evidence in the form of recovery of watch and ring belonging to deceased <NAME> on the information given by accused No. 2 <NAME> was accepted. He also accepted the evidence about the injuries found on the person of accused No. 1 <NAME> and accused No. 3 <NAME> and along with the recovery of button Ext. P. 10, and concluded that there was good deal of struggle at the spot where <NAME> was found lying injured. On this evidence the learned Sessions Judge convicted accused No. 1 for an offence under Section 302 and awarded him capital punishment. He also convicted accused Nos. 2 and 3 for an offence under Section 302 read with Section 34 , I.P.C . and sentenced each of them to suffer imprisonment for life. The sentence awarded to accused No. 1 was submitted to <ORG> for confirmation. All the three accused appealed against their conviction and sentence.

5. <ORG> held that the charge against accused Nos. 2 and 3 is not brought home to them and in the case of accused No. 1 <NAME>, it was held that on the evidence he could be convicted for an offence under Section 304 . Part II of the Indian Penal Code and accordingly set aside his conviction for an offence under Section 302 , I.P.C . and the capital punishment, and awarded him rigorous imprisonment for 10 years. The State of Himachal Pradesh has questioned the correctness of the judgment of <ORG> in respect of the three accused in Criminal Appeal No. 59 of 1975. Accused No. 1 questioned the correctness of his conviction and sentence in Criminal Appeal No. 369 of 1975.

6. The autopsy on the dead body of <NAME> was performed by Dr. <NAME>, P.W. 1 on 8th August 1972 at 2.30 p. m. She found four injuries on the dead body. They were as under:

1. Incised wound horizontal in direction 2" x 1/2" x 2" situated about 3" below and 2" below medial to the right nipple covered with blood. On washing the tissues it still was stained with blood. The wound was running downwards in direction.

2. Incised wound on the back about 1 1/4" x 1/2" x 2" in dimension situated about 4" above the left anterior superior iliac spine and 3" lateral to the vertebral column. Wound was running obliquely and was covered with dark coloured blood.

3. Incised wound about 2" x 1 1/4" x 1/2" situated lateral to the second Cervical vertebra on the left side of nape of neck.

4. Incised wound about 1" x 1/2" x 1/2" situated about l" below the occipital eminence on the left side. It was running horizontally. The bone Underlying was intact. No mark of ligature anywhere on the neck. Scalp, skull, vertebrare, membranes, brain, spinal cord were healthy.

In her opinion injury No. 1 was sufficient in the ordinary course of nature to cause death. She said that after the receipt of injuries deceased could live for about 15 to 20 minutes or may as well survive for about 2-3 hours, and during this period he could understand and speak. There was some comment on this part of her evidence because in Col. 20 of notes of postmortem examination, Ext. P-A, she has stated that the death was sudden. It was suggested that the word 'sudden' would mean instantaneous and if the death was instantaneous, <NAME>, P.W. 3 could not have reached in time when deceased <NAME> would be alive and would be able to make dying declaration to <NAME>. We are not impressed by this criticism. Both the <ORG> have rightly rejected. this criticism. As Dr. <NAME> made it very clear that there will be a time-lag of about 15-20 minutes from the receipt of injuries and it may even extend to 2-3 hours before the death occurred and it should be remembered that even though the deceased had received four separate incised wounds, only injury No. 1 was sufficient in the ordinary course of nature to cause death as opined fey Dr. <NAME>. Therefore, the suggestion that the death would be instantaneous and there was no chance for the deceased to make dying declaration has been rightly negatived.

7. It must at once be noticed that in this case there is no witness to the occurrence in the sense that no one has spoken to his having seen the accused causing injuries to deceased <NAME>. The direct testimony is furnished by the dying declaration of the deceased and that evidence is of vital Importance to connect the accused with the offence. <NAME> spoke of the dying declaration and the learned Sessions Judge has reproduced the dying declaration in the judgment. It also finds place in the F.I.R. Ext. PG given by <NAME> at Kangra Police Station. The incident occurred a little while after 10.30 p.m. on 7-8-1972 and <NAME> lodged first information at, Kangra Police Station at 12.15 midnight. He was closely cross-examined. Some minor discrepancies were sought to be pointed out in the dying declaration which was reproduced in the oral evidence and the record of which is to be found in the first information report Ext. PG. Evidence of <NAME>, P.W. 5 widow of the deceased would show that she, was awakened by <NAME> and she was given information about the unfortunate occurrence. This clearly establishes that <NAME> was first to reach the scene of occurrence and through him <NAME> widow of deceased, received information about the occurrence. Some minor discrepancies were pointed out to us in the evidence of <NAME> and we must frankly say that we are not impressed by any of them. Both the learned Sessions Judge and <ORG> observed the correct principle for appreciating the evidence furnished by a dying declaration and both have recorded an affirmative conclusion that the dying declaration as deposed to by <NAME> was inherently true, voluntary and reliable. We, therefore, do not consider it necessary to repeat the same criticism. We are in agreement with the reasons recorded by both the <ORG> for acceptance of the evidence furnished by the dying declation.

8. Mr. <NAME>, learned Counsel for the State of Himachal Pradesh contended that once dying declaration is accepted as a truthful version of the occurrence it would unmistakably show that all the three accused were involved in the occurrence and that the learned Sessions Judge was right in convicting accused No. 1 for an offence under Section 302 and accused Nos. 2 and 3 under Section 302 read with Section 34 of the Indian Penal Code, and <ORG> was clearly in error in setting aside the conviction of accused Nos. 2 and 3. In the earlier portion of this judgment we have reproduced the dying declaration. Scanning it, it becomes clear that it speaks of accused No. 1 <NAME> causing injuries to <NAME> and it speaks of the presence of accused No. 2 <NAME> and No. 3 <NAME>. There was some Controversy about one word "Shamel" is used in the dying declaration and it was urged on the one hand that it means participation in the assault and on the other hand it was stated that it may at best suggest presence. But it was said that the next following sentence would clearly show that deceased <NAME> stated that all the three beat him. That interpretation of the last sentence has been negatived by <ORG> saying that it is a very general phraselogy not indicating participation in the assault. In fact, the first part of the dying declaration clearly attributes attack on deceased to accused No. 1 only. As we are left on the question of participation of accused Nos. 2 and 3 only on the dying declaration of the deceased as the other evidence offered for corroboration of the same does not appeal to us and when the language of the dying declaration is open to two interpretations and as <ORG> has accepted that latter interpretation favourable to accused Nos. 2 and 3, on the material as it is, it would not be proper to take another view of the matter. Therefore, it could not be said that dying declaration also involves accused Nos. 2 and 3. If there was some other evidence directly suggesting involvement of accused Nos. 2 and 3 in the attack on the deceased it would have provided corroboration to the interpretation as was canvassed on behalf of the State but in the absence of such evidence it is not possible to accept the suggested interpretation of the dying declaration and base the conviction of accused Nos. 2 and 3 solely on the same.

9. It was next contended that certain recoveries will clearly provide corroboration to the dying declaration. In respect of accused No. 1 it was urged that when he was arrested on 8th August 1972 from the house of one <NAME>, P.W. 16, which fact itself was considered a circumstance of mcriminating nature against accused No. 1, his clothes were found to be stained with blood and the report of the Serologist and Chemical Examiner, Ext. PGG shows that the clothes of accused No. 1 were stained with human blood. Thereafter he gave information leading to the discovery of knife Ext. P 1. This knife is also shown to have been stained with human blood. This evidence of recovery of blood-stained clothes of the accused and a bloodstained knife on the information given by him was not commented upon before us. Therefore, that evidence has been rightly accepted and it would certainly furnish corroboration to the dying declaration as against accused No. 1.

10. It was next contended that accused No. 2 <NAME> was not traced till he surrendered to the Judicial Magistrate First Class, Pathankoton 19th August 1972, and he was brought to Kangra on . 20th August 1972 and was interrogated. On 30th August <NAME> was taken to Dhugiari and on the next day one <NAME> produced one golden ring Ext. P-6 and one wrist watch Ext. P-5 before the investigating officer <NAME> who attached them under Memo. marked Ext. P. V. in the presence of. <NAME>. This watch and ring were identified by <NAME> as belonging to the deceased. Learned Sessions Judge relied upon this recovery to connect accused No. 2 with the offence. Now, it must lie recalled that the incident occurred on the night of 7th August 1972. Accused' No. 2 <NAME> was in police custody from 20th August 1972. It was for the first time that he was taken to Dhugiari at the house of <NAME> on 30th August 1972. There is a long delay between the date of occurrence and the arrest of <NAME> and recovery. Again it is not clear from the Memo of recovery that these articles were recovered on the information given by accused No. 2 <NAME>. Of course <NAME> 'P.W. 21 is examined and he said that the aforementioned two articles were pledged by <NAME> with him for a loan of Rs. 200/-. However, even if this evidence of recovery is believed it would not establish participation of accused No. 2 <NAME> in the assault because he may have got these articles even from <NAME> who is alleged to be the assailant of the deceased. <NAME> is not charged for retaining stolen property. Therefore, it is not possible to place any reliance on this recovery as directly suggesting participation in the attack on the deceased and <ORG> has not rightly relied upon it. Therefore, there is no material evidence in this case which would corroborate dying declaration so far as assuced No. 2 is concerned.

11. The situation with regard to accused No. 3 is not materially different. <NAME>, P.W. 3 has stated that a little while before he heard the shout of <NAME>, accused No. 3 <NAME> crossed him on the way and that at that time he found clothes of accused No. 3 bloodstained. Accused No. 3 was arrested on 9th August 1972 while he was boarding a bus. <NAME> could not have clearly noticed at night time the fact that the clothes then put on by accused No. 3 were blood-stained. The clothes are not forthcoming. There is no other evidence in the form of recovery of any incriminating article from accused No, 3 or recovery on the information given by him and therefore, there is no corroboration to the dying declaration so far as accused No. 3 is concerned.

12. Mr. <NAME> then invited our attention to the fact that both accused Nos. 1 and 3 had some injuries on their person at the time of their arrest. Both accused No. 1 <NAME> and accused No. 3 <NAME> were examined by Dr. <NAME> 2 on the. application submitted to him by the police officer on 9th August 1972. He found the following injuries on the person of accused No. 1:

1. One abrasion 3/4" x 1/4" transverse on the right side of face 1/2" lateral to the lateral angle of right eye and 1/4" below the lateral end of the right eye-brow covered brownish crust.

2 One abrasion l" x 1/2" vertical, on the left half of back of chest, 2" below the lower angle of left scapula (i. e. lower end of left scapula) covered with brownish crust.

3. One abrasion 2" x 11/4" vertical, on the lower Part of right half of back of chest, 5" below the lower angle (i.e. lower end) of right scapula, covered with brownish crust.

4. One abrasion 3/4" x 1/2" transverse, on the right half of back at the level of iliac crest and 1" to the right of the mid-line of back-covered with brownish crust.

5. One abrasion 2 1/2" x 3/8" vertical on the front of the left leg, 3" below the left knee joint covered with brownish crust.

6. One abrasion 1/2" x 1/2" on the front of left leg, i.e. 71/2" below the left knee-joint covered with brownish crust.

Similarly, he found the following injuries on the person of accused No. 3:

1. One abrasion 2" X 1" transverse, oh the left side of left buttock, 2" behind the anterior superior iliac spine and 1 1/2" below the iliac crest of left iliac bone-covered with brownish crust.

2. Abrasion on the inner mucous membrane of the upper lip against the right and left, upper medial incisor teeth almost healed up.

3. One abrasion 1/4" x 1/4" on the back of right chest 2" above the inferior angle of right, scapula and 4" to the right of the mid-line of back covered with brownish crust.

13. In the opinion of Dr. <NAME> the injuries must have been received by the aforementioned two persons before 24 hours and within 72 hours of their examination. In this connection, we must also take note of the version of accused Nos. 1 and 3. Accused No. 1 has stated in his statement recorded by the learned <ORG> under Section 342 of the Criminal Procedure Code that while he was peeling apple for his wife who was pregnant sitting in his verandah at night, <NAME> accompanied by <NAME> and <NAME> came over there and one of the three had a stick. He said that he was attacked and beaten and he abused them loudly and then ran out of his verandah. He said that he was pursued and was felled in the back law and <NAME> sat on his chest and pressed it. He said that he felt great suffocation and he used his hands to escape and there was knife in one of his hands. He said that he had no intention to kill him but he was anxious to save himself. The suggestion seems to be that when 'fee was felled on the ground and <NAME> sat on his chest he suffered abrasions on his back. It may be pointed out that, from amongst six abrasions on the person of <NAME>, No. 1 is on the face, Nos. 2, 3 and 4 are on the back and Nos. 5, 6 and 7 are on the left leg. <NAME> stated that he got the injuries when <NAME> alias Pashi came to his shop and beat him accusing him. of beating the servant of <NAME>. <NAME> is not examined as a prosecution witness. If prosecution comes out with the story that <NAME> alone was attacked and beaten by the three accused and that they suddenly pounced upon him and that <NAME> was unarmed, there was absolutely no ghost of a chance even in the ensuing scuffle that accused No. 3 would be injured in the way accused No. 3 has offered explanation about his injuries. This explanation gets some support from the evidence of <NAME> 17 who has stated that <NAME> alias Pashi complained to him that <NAME> beat his servant. Therefore, it is not possible to accept the submission that the presence of injuries on accused No. 3 would provide corroboration to the dying declaration so as to hold that he participated in the assault,

14. It would thus appear that <ORG> was perfectly justified in acquitting accused Nos. 2 and 3 and there is no reason to take another view of the matter and the appeal preferred by the <ORG> against the acquittal of accused Nos. 2 and 3 must fail.

15. Turning to the case of accused No. 1 he was convicted by the learned Sessions Judge for an offence under Section 302 . I.P.C . and was awarded capital punishment. <ORG> took the view that accused No. 1 would be guilty of committing an offence under Section 304 , Part II, I.P.C . Mr. <NAME> who appeared for accused No. 1 urged that accused No. 1 should be acquitted because he had caused injuries in exercise of the right of private defence of body.

16. Evidence furnished by the dying declaration corroborated by the recovery of blood-stained clothes from the person of accused No. 1 <NAME> further corroborated by the recovery of a blood-stained knife on the information given by him would affirmatively establish that accused No. 1 attacked deceased and caused him four injuries. Injury No. 1 is described by Dr. <NAME> as one sufficient in the ordinary course of nature to cause death. Accused No. 1 himself has suffered abrasions. The nature of injuries on the deceased would indicate that accused No. 1 was armed with a sharp edged weapon and he did attack deceased <NAME>. Having reached this conclusion, we are left to guess about the genesis of the trouble. The origin or the commencement of the occurrence to some extent is left to surmise. A reasonable prognosis may have to be made as to how the incident occurred.

17, In this connection we must refer to some facts which unquestionably emerge from the evidence. It is satisfactorily established that the deceased had visited the cinema show. Evidence clearly establishes that the incident occurred in front of the house of accused No. 1. The site-plan indicates a trail of blood to a distance of 50 feet. It further evidences marks of scuffle and some buttons lying at the spot. Bush-shirt of the deceased <NAME> was found unbuttoned and the banyan put on by him was found torn. It is not made clear in evidence whether the way to the house of <NAME> from the theatre passed by the house of <NAME>. If that was not his normal route to his house he came there for some purpose.

18. In the absence of any witness to the occurrence and the deceased died giving only . that part of the occurrence which implicates the accused, we are left with the statements of accused No. 1 made by him under Section 342 , Cr.P.C . About the origin of the occurrence. This would raise the question as to what value should be attached to the statement made by the accused under Section 242 , Cr.P.C . 1898. It is obligatory on the court to question the accused on the circumstances appearing against him in evidence so as to enable him to explain the same. Sub-section (3) provides that the answers given by the accused may be taken into consideration in such inquiry or trial, etc. In order to give an opportunity to the accused to explain the circumstances appearing against him in evidence, the <ORG> under Section 342 , Cr.P.C . was required at the close of the trial to question the accused on such circumstances. The <ORG> had to guard against cross-examination of the accused. The accused was to be questioned with regard to the circumstances appearing against him in evidence and not the inference that flows from the circumstances. The answers given by the accused have to be taken1 into consideration.

19. There was at one point of time some controversy whether the statement of the accused can be accepted in part and rejected in part This situation arose where a part of the statement was inculpatory and a part of the statement was exculpatory. <CITATION> it was held that it is not open to the Court to dissect the statement and to pick out a part of the statement which may be incriminative, and then to examine whether the explanation furnished by the accused for his conduct is supported by the evidence on the record. If the accused admits to have done an act which would but for the explanation furnished by him be an offence, the admission cannot be used against him divorced from the explanation. The question again figured before this Court in <CITATION> wherein the Court held that the Court may rely on a portion of the statement of the accused and find him guilty in consideration of the other evidence against him led by the prosecution. In <NAME> case there was no eye-witness to the commission of the crime and the evidence was all circumstantial and the statement of the accused that he was present at the scene of the crime was a vital circumstance which taken in conjunction with other circumstances led the Court to come to the conclusion that he was guilty of the crime imputed to him. The ratio of the aforementioned cases was again examined in <CITATION> . On the facts of the case, after accepting a part of the statement of the accused it was held that he caused injuries in exercise of the right of self-defence but he exceeded the same. It was observed that it is permissible for the Court to rely on a portion of the statement of the accused and find him guilty in consideration of the other evidence against him led by the prosecution.

20. Where the commencement or genesis of the occurrence is not available because there was no witness to the occurrence available, the only direct version of the commencement of the occurrence would be found in the statement of the accused, if he chooses to give out his version of the occurrence. His statement has to be considered in the light of the evidence adduced by the prosecution and weighing his statement with the probabilities of the case either in his favour or against him.

21. In this case the direct testimony, if it can be so styled, is furnished by the dying declaration which speaks of who caused injuries to the deceased and who others were present. How the occurrence commenced or what was the genesis of the trouble is not found in the dying declaration. Accused No. 1 has given his version of the occurrence. According to him he was the victim of an assault and he was felled on the ground and in his attempt to get a release from the grip of <NAME> he caused injuries to him by a knife which was accidentally in his hand. If this version accords with the probabilities of the case it may have to be examined whether he acted in exercise of the right of private defence of body and whether he exceeded the same. Accused No. 1 states that <NAME> was accompanied by <NAME> alias <NAME> and <NAME>. <NAME> was examined as prosecution witness though <NAME> was not exa-mined. <NAME>, P.W. 17 does refer to <NAME> telling him that <NAME>, accused No. 3 had beaten his servant without reason and he also speaks about accused No. 2 <NAME> and accused No. 1 <NAME> rescuing <NAME> from <NAME>. Therefore just before the occurrence in which <NAME> received injuries there was an incident involving <NAME> alias <NAME> and accused Ho. 3 <NAME> and it may be recalled here that <NAME> has so stated in his statement under Section 342 , Cr.P.C .

22. The next aspect which we must bear in mind is that the site plan shows that there were marks of scuffle and buttons torn out of the bush-shirt were found lying there and a torn bush-shirt of <NAME> was recovered. Bush-shirt of deceased <NAME> was found unbuttoned and his banyan was torn. Now, if deceased <NAME>. accompanied by two persons came and if <NAME> was alone and he was felled on the ground, there was no ghost of a chance that <NAME>, accused No. 1 could cause injuries to <NAME>. He Would be disarmed immediately even if he had a knife in his hand with which he according to him, was peeling apple. Therefore, that part of the statement of accused No. 1 is inherently improbable and must be rejected.

23. The very evidence indicates that a little before the occurrence there was mutual recrimination between <NAME> and <NAME> and for that there is direct evidence of <NAME> P.W. 17. It appears that the trouble started on <NAME> beating <NAME> on the allegation that <NAME> had beaten the servant of <NAME>. Thereafter the present occurrence occurred near the house of accused No. 1. <NAME> must have come there. Accused No. 1 would naturally be present there. There were marks of scuffle. A bush-shirt of accused No. 1 <NAME> was torn. Buttons had come out. There was a trail of blood to a distance of 50 feet. On this evidence <ORG> at number of places has observed that these circumstances would lead to an inference that, the two parties, one led by deceased <NAME> and another led by <NAME> had a quarrel, and in this quarrel accused No. 1 <NAME> inflicted knife injuries on <NAME>. At another stage it is observed that <ORG> was left with only one inference that there was a mutual fight between <NAME> and <NAME> and some persons supporting each party. This inference according to <ORG> was reinforced by the fact that the conduct of accused No. 1 and even accused No. 3 would be the same as is attributed to them in a mutual fight. After examining these circumstances in detail, <ORG> concluded that the only inference that can be drawn is that there was a mutual fight.

24. After having correctly concluded that a mutual fight took place, <ORG> came to the conclusion that the accused had no intention to commit the murder and convicted him for an offence under Section 304 , Part II, I.P.C . It is difficult for us to subscribe to this view.

25. Accused No. 1 has wielded a weapon like a knife indisputably a dangerous weapon. He has caused four injuries one of which is necessarily fatal. He has received six abrasions. The proper legal and reasonable inference to be drawn from all the circumstances is that because of the earlier incident in which <NAME> and <NAME> were involved something like a challenge was taken up and <NAME> definitely accompanied by some others, more presumably <NAME> came over to the house of accused No. 1 and there was a ' mutual free fight between the parties. Accused No. 1 had returned to his house probably a little before the incident took place. Therefore, when <NAME> appeared there was a sudden fight upon a sudden quarrel flowing from the earlier incident and in this both sides attacked each other. All the ingredients to attract Exception 4 to Section 300 , I.P.C . are established. There is no premeditation. <NAME> left the theatre and came over there. There was a fight that ensued in a sudden quarrel. The previous incident between <NAME> and accused No. 3 <NAME> was the cause and in that heat of passion and sudden quarrel parties grappled and attacked each other and it cannot be said in the circumstances that any undue advantage was taken. It may be recalled here that <NAME> was a hefty well built fellow and if accused No. 1 alone was to attack him he could not have escaped with few abrasions. Therefore, all the ingredients to attract Exception 4 of Section 300 , I.P.C . are fully established.

26. As injury No. 1 was fatal in the ordinary course of nature and accused No. 1 had wielded a dangerous weapon and caused an injury on the vital part of the body and the blows were repeated inasmuch as four injuries were caused the offence but for the application of Exception 4 would be one under Section 302 , I.P.C . but as Exception 4 is attracted, it would be reduced to Section 304 , Part I, I.P.C . and the conviction of accused No. 1 would be modified to one under Section 304 , Part I, I.P.C . maintaining the sentence as awarded by <ORG> as in our opinion that is adequate.

27. Accordingly, Criminal Appeal No 59 of 1975 preferred by the State of Himachal Pradesh against original accused Nos. 2 and 3 is dismissed and it, is partly allowed as far as accused No. 1 is concerned in that his conviction is modified to one under Section 304 , Part I, I.P.C . maintaining the sentence of 10 years rigorous imprisonment as awarded by <ORG>. Criminal Appeal No. 369 of 1969 preferred by the original accused No. 1 is dismissed.


PETITIONER: <NAME> & CO., ETC. ETC. Vs. RESPONDENT: THE STATE OF MYSORE & ANR. DATE OF JUDGMENT29/10/1974 BENCH: <NAME>, KUTTYIL KURIEN BENCH: <NAME>, KUTTYIL KURIEN ALAGIRISWAMI, A. CITATION: 1975 AIR 813 1975 SCR (2) 511 1975 SCC (1) 636 CITATOR INFO : R 1976 SC2243 (23) RF 1990 SC 313 (20) RF 1990 SC 772 (31) RF 1991 SC1676 (72) ACT: Constitution of India, 1950- Art. 226- Payment of taxes made under mistake of law-Period of limitation when commence- Jurisdiction of <ORG>. HEADNOTE: The appellants paid certain amounts to the government as excise duty and education cess for the years 1951-52 to 1965-66 in one case and from 1951-52 to 1961-62 in the other. <ORG> struck down the provisions of the re- levant Acts as unconstitutional. In writ petitions before <ORG> claiming refund, the appellants contended that the payments in question were made by then under mistake of law; that the mistake was discovered when <ORG> struck down the provisions as unconstitutional and that the petitions were therefore in time. But <ORG> dismissed them on the ground of inordinate delay. Dismissing the appeals, HELD : Where a suit will lie to recover moneys paid under a mistake of law, filim writ petition for refund of tax within the period of limitation would lie. For filing a writ petition to recover the money paid under a mistake of law the starting point of limitation is from the date of which the judgment declaring as void the particular law under which the tax was paid was rendered. Even in cases where it is filed within three years, the court has a discretion. have in regard to the facts and circumstances of each case not to entertain the application. [513H; 514A- <CITATION>  6 S.C.R. 261 relied on, State of Kerala v. <ORG> (1965) 16 S.T.C. 689, referred to and <NAME> and Others v. <NAME>, Commissioner of Sales Tax, Bombay (1970) 25 S.T.C. 289 held inapplicable. In the instant case having regard to the conduct of the appellants in not claiming the amounts in the earlier Writ petitions without any justification, there is no justification in interfering with discretion exercised by <ORG> in dismissing the writ petitions. The appellants did not pray for refund of the amounts paid by way of cess for the years 1951-52 to 1965-66 and they gave no reasons before <ORG> in these petitions why they did not make the prayer for refund of the amounts paid during the years in question. Avoiding multiplicity of unnecessary legal proceedings should be the aim of all courts. The appellants should not be allowed to split up their claim for refund and file writ petitions in a piece- meal fashion. If the appellants could have, but did not, without any legal justification claim refund of the amounts, paid during the years in question in the earlier writ petitions there is no reason why they should be allowed to claim the amounts by filing writ petitions again. [517B-C] In the second batch of appeals the reason why this Court did not go into the question of the validity of the Act was that relevant materials were not placed before the court by the appellant for successfully challenging its validity and they were therefor to blame themselves.  JUDGMENT:

CIVIL APPELLATE JURISDICTION : Civil Appeals No@. 437, 451, 452-476 and 477-459 of 1974.

Appeals by Special Leave from the Judgment & Order dated the 30th November, 1972 of <ORG> in W-Ps. Nos. 26662671, 2673-2681/68, 181, 196-199, 194-195, 200-204/67, 180, 182-193/67 and 2653-2665/68 respectively. -L319SupCI/75 R. J. Kolah, In CAs Nos. 450-451,453,468-471, 479-484 of 74 only) <NAME>, <NAME>, <NAME>, <NAME> and <NAME>, for the appellants.

<NAME> (In CA. No. 437/74) <NAME>, Advocate for <ORG> (In CA. No. 477/74) and <NAME>, for the Respondents.

The Judgment of the Court was delivered by

1. Civil Appeals Nos. 437-451 & 477-489 of 1974. MATHEW, J.-The appellants filed writ petitions be-fore <ORG> under Article 226 of the Constitution for a declaration that the Mysore Elementary Education Act, 1941, and the amendments to it by the Mysore Elementary Education (Amendment Act XII of 1955) Providing for levy and collection of Education Cess on items on which Education Cess is being levied as prescribed in the schedules of the respective Acts were beyond the competence of <ORG> and for refund of the Educational Cess paid during 1951-52 to 1965-66 on shop rentals and tree tax in respect of toddy and duty of excise in respect of arrack and special liquor. <ORG> dismissed the writ petitions by a common judgment and these appeals are directed against that judgment.

<ORG> had, in <CITATION> (1), struck down the provisions of the Mysore Elementary Education Act and the amendments to it on May 2, 1968. That decision was affirmed by this Court in <CITATION> (2). Before the decision of this Court, <ORG> had passed the Mysore Education Cess (Validation and Levy) Act, 1969 on September 10, 1969 validating the levy and the collection of cess under the Act. But the Validation Act was held to be invalid by <ORG>. The writ petitions were filed before <ORG> in June and July, 1968, i.e. after the decision of <ORG> in <CITATION> (1) and before this Court rendered its judgment. The contention of the appellants before <ORG> was that the payments of cess in question were made by them under a mistake of law; that they discovered the mistake only on May 2, 1968 when <ORG>, by its judgment, declared that the provisions of the Act and the amendments thereto were unconstitutional, and that, as they filed the writ petitions within three months' of that decision, the writ petitions were within time.

<ORG> found that there was delay in filling the petitions and, it was mainly for that reason that <ORG> dismissed .

<CITATION> (1) Das Gupta, J. who delivered the judgment of the <ORG>, while holding that (3)  6 S. C. R. 261.

<ORG> have power, for the purpose of enforcement of fundamental rights and statutory to give consequental relief by ordering repayment of money realised by the Government without the authority of law, said that the special remedy provided in Article 226 is not intended to supersede completely the modes of obtaining relief by an action in a civil court or to deny defence legitimately open in such actions and that among the several matters which <ORG> rightly take into consideration in the exercise of that discretion is the delay made by the aggrieved party in seeking this special remedy and the excuse there is for 'it. He further said that if a person comes to the court for relief under Article 226 on the allegation that he has been assessed to tax under a void legislation and having paid it under a mistake is entitled to get it back, the court, if it finds that the assessment was void, being made under a void provision of law, and the payment was made by mistake, is still not bound to exercise its discretion directing repayment; and that whether repayment should be ordered in the exercise of this discretion win depend in each case on its own facts and circumstances and that it is not easy nor is it desirable to lay a general rule. He was of the view that if there has been unreasonable delay the court ought not ordinarily to lend its aid to a party by this extraordinary remedy of mandamus. On the question of the period of limitation within which the petition must be filed, he observed that the period of limitation prescribed for recovery of money paid under a mistake of law is three years from the date when the mistake is known and that that period may ordinarily be taken to be a reasonable standard by which delay in seeking remedy under Article 226 can be measured. He further said that the court may consider the delay unreasonable even if it is less than the period of limitation prescribed for a civil action, but, where the delay is more than this period, it will almost always be proper for the court to hold that it is unreasonable. In <ORG> v. <ORG>) a Bench of seven judges of this Court followed the view taken in <CITATION> (supra) on the question of the period of limitation within which the petition has to be filed.

Section 17(1)(c) of the Limitation Act, 1963, provides that in the case of a suit for relief on the ground of mistake, the period of limitation does not begin to run until the plaintiff has discovered the mistake or could, with reasonable diligence, have discovered it. In a case where.payment is made under a mistake of law as contrasted with a mistake of fact, generally the mistake becomes known to the party only when a court makes a declaration as to the invalidity of the law. Though a party could, with reasonable diligence, discover a mistake of fact even before a court makes a pronouncement, it is seldom that a person can, even with reasonable diligence, discover a mistake of law before a judgment adjudging the validity of the law. Therefore, where a suit will lie to recover moneys paid under a mistake of law, a writ petition for refund of tax within the period of (1) (1965) 16 S.T.C. 689.

limitation prescribed i.e. within 3 year of the knowledge of the take, would also lie. For a writ petition to recover the money paid under a mistake of law, this Court has said that the starting point of limitation is from the date on which the judgment declaring as void. the particular law under which the tax was paid was rendered, as that would normaly be the date on which the mistake becomes known to the party. If any writ petition is filed beyond three years' after that date, it will almost always be proper for the court to consider that it is unreasonable to entertain that petition though, even in cases where it is filed within three years, the court has a discretion, having regard to the facts and circumstances of each case. not to entertain the application.

We are aware that the result of this view would be to enable a person to recover the amount paid as tax even after several years of the date of payment, if some other party would successfully challenge the validity of the law under which the payment was made and if only a suit or writ petition is filed for refund by the person within three years from the date of declaration of the invalidity of the law. That might both be inexpedient and unjust so far as the <ORG> is concerned.

A tax is intended for immediate expenditure for the common good and it would be unjust to require its repayment after it has been in whole or in part expended, which would often be the case, if the Buis or application could be brought at any time within three years of a court declaring the law under which it was paid to be invalid, be it a hundered years' after the date of payment. Nor is there any provision under which the court deny refund of tax even if the person who paid it has collected it from his customers and has no subsisting liability or intention to refund it to them, or, for any reason, it is impracticable to do so. In the U.S.A., it is generally held that in the absence of a statute to the contrary, taxes voluntarily paid under a mistake of law with full knowledge of facts cannot be recovered back while taxes paid under a mistake of fact may ordinarily be recovered back (see Corpus Juris Secundum, vol. 84, p. 637). Although s. 72 of the Contract Act has been held to cover cases of payment of money under a mistake of law, as the <ORG> stands in a peculiar position in respect of taxes paid to it, there are perhaps practical reasons for the law according a different treatment both in the matter of the heads under which they could be recovered and the period of limitation for the recovery. The task of writing legislation to protect the interest of the nation is committed to <ORG> and the legislatures of the <ORG>s. We are refering to this aspect only to alert the attention to the present state of law.

Now, <ORG> relied on the decision of this Court in <CITATION> (1) for its conclusion that relief for refund cannot be (1) (1970) 25 S.T.C. 289.

granted in the proceeding and that the appellants must resort to the ordinary remedy of suits.

In <NAME> case, the petitioners before this court had realised several amounts from their customers outside Bombay cot account of sales tax. The Sales Tax Officer, by his order dated March 17, 1958, forfeited the same under s.21(4) of the Bombay Sales Tax Act, 1953. On March 28, 1958, the petitioners filed a writ petition in <ORG> seeking a writ of mandamus restraining the Sales Tax Officer from recovering the amount from them on the ground that s. 21(4) was ultra vires the powers of <ORG> and that the order of forfeiture was violative of Articles 19(1) (f) and 265 of the Constitution. On November 28, 1958, the writ petition was dismissed by a learned Single Judge on the ground that the petitioners, having defrauded other persons, were not entitled to any relief. The appeal filed against the said order by the petitioners was dismissed on July 13, 1959. Before the appeal was dismissed, the Collector of Bombay attached the petitioners' properties and the petitioners paid the amount to the Collector of Bombay between August 3, 1959 and August 8, 1960. In <ORG> v. <NAME>) de- cided on September 29, 1967, this <ORG> struck down s. 12A(4) of the Bombay Sales Tax Act, 1946 as violative of Article 19(1)(f). The petitioners thereupon filed a writ petition under Article 32 of the Constitution on February 9, 1968, claiming refund of the amount paid by them under s. 72 of the Indian Contract Act, 1872 on the ground that they paid the amount under a mistake of law and that they dis- covered the mistake only when this <ORG> struck down s. 12 (A) (4) of the Bombay Sales Tax Act, 1946. The petitioners also alleged that they paid the amount to the collector under coercion and they were entitled to recover the same. The contention of the, petitioners was, for the grounds on which this <ORG> struck down s. 12A(4) of the Bombay Sales Tax Act, 1946, s.21(4) of the Bombay Sales Tax Act, 1953, was also liable to be struck down. It was in these circumstances that this <ORG> had to consider the question whether the petitioners were entitled to the relief claimed By a majority of the <ORG> it was decided that there was inordinate clay in filing the petition and there- fore it should be dismissed. <NAME>, <NAME> observed :

"His (the petitioner's) contention is that the ground on which his petition was dismissed was different and the ground on which the statute was struck down was not within his knowledge and therefore he did not know of it and pursue it in this Court. To that I answer that law will presume that he knew the exact ground of unconstitutionality. Everybody is presumed to know the law. It was his duty to have brought the matter before this Court for consideration. In any event, having set the machinery of law in motion, be cannot abandon it to resume it after a number of years, be- cause another person more adventurous than him in his turn got the statute declared unconstitutional, and got a favour able decision..... I. agree with the opinion of my brethren (1) [1968] 1 S.C.R. 735.

<NAME> and <NAME>, jj. that there is no question here of a mistake of law entitling the petitioner to invoke analogy of the Article in the Limitation Act .... ".

<NAME> said that the payment made by the petitioners were made not under any mistake of-law and, therefore, they cannot claim any relief on the ground of mistake. <NAME> was of the view that after the decision of <ORG>, the petitioners did not willingly pay the amount forfeited, but that they made the payment after attachment of their properties and, therefore, the amounts were really paid under coercion and the period of limitation would normally run from the date of the payment.

We are not quite sure that if the maxim that everyone is presumed to know the law is applied, there will be any case of payment under a mistake of law unless that presumption is rebutted in the first instance, for, the moment it is assumed that everyone is presumed to know the law, it is clear that no one can make a mistake as to the law. It is sometimes said that every man is presumed to know the law, but this is only a slovenly way of stating the truth that ignorance of the law is not in general an excuse(1). "There is no presumption in this country that every person knows the law; it would be contrary to common sense and reason if it were SO"(2).

Be that as it may, <ORG> deduced the conclusion from the decision in <NAME> (supra) case that the question whether a declaration by a court that a law is unconstitutional and therefore void would not always furnish the starting point of limitation for a suit for recovery of the amount paid under that law and that the question must be decided on the facts of each case. The Court further said that the parties should seek relief under Article 226 as expeditiously as possible. and even if the ordinary remedy by way of a suit is not barred by limitation, it will be proper exercise of discretion under Article 226 of the Constitution to decline to interfere in cases where the persons approach the court after several years, in the absence of special and sufficient grounds. If one thing is clear from the judgments rendered in <NAME> case (supra) by the Judges who formed the majority, it is this : they did not consider the payments made by the petitioners a.% payments made under a mistake of law. Therefore, we, do not see the relevance of that case for the decision of the case here. But, that however, is not the end of the matter. In the earlier writ petitions which culminated in the decision in <CITATION> (supra) the appellant did pray for refund of the amounts paid by them under the Act and <ORG> considered the prayer for refund in each of the writ petitions and allowed the prayer in some petitions and rejected it in the others on the ground of delay. The Court observed that these writ petitioners whose prayers had been rejected would be at liberty to institute suits (1) See <NAME>, "Jurisprudence and Legal Essays", p. 89.

(2) <NAME>, J. in <NAME> v. <NAME> ( 1846) 2 C.D. 706, 719.

or other proceeding. We are not sure that, in the context, <ORG> meant, by 'other proceedings', applications in the nature of proceeds under Article 226 , when it is seen that the <ORG> refused to entertain the relief for refund on the ground of delay in the proceedings under Article 226 and that in some cases the <ORG> directed the parties to file representations before Government. Be that as it may, in the earlier writ petitions, the appellants did not pray for refund of the amounts paid by way of cess for the years 1951-52 to 1965-66 and they gave no reasons before <ORG> in these writ petitions why they did not make the prayer for refund of the amounts paid during the years in question. Avoiding multiplicity of unnecessary legal proceedings should be an aim of all courts. Therefore, the, appellants could not be allowed to split up their claim for refund and file writ petitions on this piece-meal fashion. If the appellants could have, but did not, without any legal justification, claim- refund of the amounts paid during the years in question, in the earlier writ petitions, we see no reason why the appellants should be allowed to claim the amounts by filing writ petitions again. In the circumstances of this case, having regard to the conduct of the appellants in not claiming these amounts in the earlier writ petitions without any justification, we do not think we would be justified in interesting with the discretion exercised by <ORG> in dismissing the writ petitions which were filed only for the purpose of obtaining the refund and directing them resort to the remedy of suits. We dismiss the appeals but make no order as to costs.

11 Civil Appeals Nos. 452-476 of 1974

The appellants filed writ petitions before <ORG> challenging the levy of health cess under the Mysore Health Cess Act, 1951 (hereinafter referred to as the '1951 Act') for the reason that the Act is outside the legislative competence of <ORG> as well as on the ground that levy of health cess under the 1951 Act on shop rentals and tree tax items in respect of toddy and arrack is ultra wires sub-section (1) of s. 3 of the 1951 Act and s. 9(1) and (2) read with the schedule to the Elementary Education Act, 1951. They also prayed for quashing the conditions in the annual notification for sale of excise and claimed refund of the health cess on shop rentals and tree tax in respect of toddy and arrack paid by them for the years 1951-52 to 1961-62.

Before <ORG>, a Preliminary objection raised by the learned Advocate General on behalf of the State of Mysore that since the writ petitions were filed more than three years after the payments were made, the court should not entertain them. <ORG> sustained the objection and dismissed the writ petitions. These appeals are directed against that order.

The 1951 Act under which the health cess was collected from the appellant was in force in the State till it was repealed and re-enacted by the Mysore Health Cess Act, 1962 (hereinafter referred to as the '1962 Act') with effect from April 1, 1962. M/s. D. Cawasji & Co. and several other excise contractors challenged the validity of levy and collection of health cess under the 1951 Act as well as under the 1962 Act filing writ petitions before <ORG> They were disposed of by a common judgment [see <CITATION> (1). By the judgment, <ORG> struck down explanation to clause, (1) of Schedule A to the 1962 Act but rejected all other prayers. That decision was challenged before this <ORG> and this <ORG>, by its judgment dated September 26, 1966 (see Shinde Brothers v. Deputy Com- missioner(2) declared that the State of Mysore had no competence to levy and collect health cess under the Mysore Health Cess Act, 1962, on shop rent and directed refund of health cess illegally collected under the Health Cess Act, 1962. And as regards the prayer for declaration that the levy of health cess under the 1951 Act was illegal and for refund of the cess collected under that Act, this <ORG> declined to go into that question; the <ORG> however, said that "the petitioners will, however, be at liberty to file suits, if so advised, to recover the amounts alleged to have been paid by them under the Health Cess Act, 1951". Within two months of the disposal of appeals by this <ORG>, the appellants filed writ petitions before <ORG> challenging the validity of the 1951 Act and praying for refund of health cess collected under the 1951 Act for the period from 1951-52 to 1961-62. The High <ORG> held that there was inordinate delay in filing the writ _petitions and dismissed them on that ground without entering into the merits of the petitions.

The appellants contended that <ORG> went wrong in domissing the writ petitions on the ground that there was inordinate delay in filing them. It may be recalled that the 1951 Act had been repealed in 1962 and that the refund was claimed in respect of the amounts paid before 1962 under the 1951 Act. Merely because this <ORG> has said that the appellants can challenge the validity of Act, it they are so advised, by a suit. it would not follow that they can challenge its validity in writ petition without encountering legitimate pleas available to the respondent. If there was inordinate delay is filing the writ petitions, there was nothing in the judgment of '<ORG> which prevented <ORG> in dismissing them on that ground. The reason why this <ORG> did not go into the question of the validity of the 1951 Act was that relevant materials were not, placed before the <ORG> by the appellants. When this <ORG> said the 'the appellants, if so advised, were at liberty to file suit for the relief claimed, it cannot be taken as a sanction to the appellants by the .<ORG> for approaching <ORG> for relief under Article 226 (1) (1966) 1 Mysore Law Journal 554.

(2) A.I.R. 1967 S.C, 1512.

<NAME>

without regard to the question of delay in filing the petitions. The appellants, as they did not place the relevant materials before this <ORG> for successfully challenging the validity of the 1951 Act, are to blame themselves. The appellants were directed by this <ORG> to Ale suits, if they were so advised.

In these circumstances, we do not think that <ORG> went wrong in dismissing the writ petitions on the ground of inordinate delay. We dismiss the appeals, but make no order as to costs.

P.B.R. Appeals dismissed.