JUDGMENT <NAME>, C.J.

1. In this case the plaintiff, as assignee, claims Rs. 2,000, which is alleged to have been due by way of commission to <NAME> who has died since the suit was instituted.

2. The defendant being the owner of certain oil mills was anxious to sell them. They were mortgaged to a Bank for Rs. 35,000, and at the end of May or the beginning of June 1911, the mills were advertised for sale in <ORG>. On the 13th June 1911, the defendant gave <NAME> a letter in the following terms and signed by the defendant, I agree to allow you to sell my above oil mill at Rs. 40,000 only. You will get brokerage 5 per cent, on the same when the mill will be sold through you. This condition to be in force till a fortnight (15 days) from date." Then there were certain words which, it was agreed between the parties, were added at the time that letter was written, in Guzrati, and the correct translation was in these terms, On the sale-proceeds being received in hand, brokerage will be paid."

3. The first question is as to the meaning of the letter. To my mind, the meaning is pretty plain. In order to earn his brokerage <NAME> was to introduce a purchaser who Would be willing to give Rs. 40,000, He had the opportunity of introducing such a purchaser and thus qualifying for his brokerage, for 15 days only. I do not think that the. letter means that the sale had to be completed within 15 days, but it was essential for <NAME>, if he was to earn his commission, that he was to introduce within 15 days a person who would be ready and willing to purchase for Rs. 40,000. In other words, if he did so introduce a purchaser, the mere fact that the purchase was not completed until September would not deprive the broker of his commission.

4. Now, there is no question as to the law which governs such a matter as this. In my judgment, it is correctly stated by Mr. Justice <NAME> at the bottom of page 75 of the paper-book. There he says, quoting from Lord <NAME>'s Laws of England, "In order to entitle the agent to receive hisremuneration, he must have carried out that which he bargained to do, or at any rate must have substantially done so, and all conditions imposed by the contract must have been fulfilled."

5. The main question, therefore, in this case is whether <NAME> substantially carried out what he had bargained to do. This is a question of fact mainly dependent upon the evidence of the witnesses. The case was evidently tried with great care, and the learned Judge reserved his judgment. After due consideration he has accepted the evidence of <NAME>, the purchaser, and rejected that of the defendant : and, in a case such as this, where the matter depends to a large extent upon the verbal evidence of the witnesses, in my judgment, this Court ought not to interfere with the decision of the learned Judge save on very clear grounds; in other words, unless it is clear that a miscarriage of justice has taken place. The Judge who tried the case has had the advantage, which we have not had, of seeing and hearing the witnesses, an advantage which, in my experience, it is almost impossible to overestimate. In this case I am not prepared to say that the learned Judge has decided wrongly; on the contrary, I think there is sufficient evidence to justify the decision at which he arrived. On the material points he has accepted the evidence of <NAME> and rejected that of the defendant; and, in passing, I may say that the comments made upon the evidence of the defendant by the learned Counsel for the plaintiff were not without justification. <NAME>'s evidence was to the effect that it was <NAME> who introduced him to the defendant, and his evidence on one point is very significant; he says he did not want to pay more than Rs. 35,000, but he was persuaded by <NAME> to offer Rs. 40,000, which was the price eventually agreed upon. Some of the passages in his evidence are at pages 36 and 37 of the paper-book, as for instance, where he says in cross-examination.

Q. "Do you say it was Judah who introduced you to Lallji Mahomed?"

A. "Yes, that is true."

Q. "You wanted to pay Rs. 35,000 not 40,000."

A. "Yes, that is true, I first offered Rs. 35,000 and <NAME> used to come and see me often and he got me into this scrape." Then he is asked what is the scrape.

"A. What could I do, I did not. I am telling you the truth, it was <NAME> who introduced me to the defendant; it was <NAME> through whom everything was settled in respect of this matter, and it was <NAME> who got me into this trouble." "The trouble is this: I was made to agree to pay Rs. 40,000 for the mill, it was not worth Rs. 13,000" * * * I did not want to buy it, but <NAME> persuaded me to take it. He introduced me to the defendant, pressed me to take it, and at last got me into this trouble.

6. That being so, the plaintiff's case is proved on one of the material points, namely, that it was through the instrumentality of <NAME> that the purchase price, Rs. 40,000, was obtained. But it is said that there is nothing to show that <NAME> introduced the purchaser and performed his part of the contract within the specified time, 15 days. In my judgment if <NAME>'s evidence is accepted, as it was by the learned Judge, that it was through <NAME> that he was persuaded to offer Rs. 40,000, there is evidence that this must have been done within the time limit, because we find that on the 26th June, 13 days from the date of the broker's letter, <NAME> wrote to the defendant in the following terms: 'As per our conversation with your Mr. <NAME> we intend to purchase the above mills together with the land connected with it at a cost price of Rs. 35,000 on the following condition." Then he set out the condition. The letter closed as "The alternative arrangement for payment is as follows : Rs. 10,000 in cash at the time of sale. Rs. 30,000 to be paid after one year," containing an offer, though it was an alternative offer, of Rs. 40,000 which, he said, he would never have made but for the instrumentality of <NAME>. He must have seen the defendant that day, and such letter contains an offer of Rs. 40,000. It is true that the payment of part was to be deferred for one' year, but that offer was the one which with a slight variation of the terms was eventually accepted in August. Consequently, <NAME>'s evidence having been accepted by the learned Judge, the performance of contract by <NAME> was within the time.

7. I am aware that the letters in the case provide matter of comment on <NAME>'s evidence, as, for instance, the letter of the 25th of June refers to his having seen the advertisement in <ORG>. This is a legitimate comment, but it is not conclusive that <NAME> did not introduce the purchaser. The matter had been advertised and it was quite possible that it was <NAME> who brought the advertisement to the attention of the purchaser in the first instance. Again, the receipt for Rs. 200 where the payment is stated to be "brokerage" is a legitimate subject of comment, but I think the learned Judge's remarks on that transaction are not unreasonable, and, in any event, as between vendor and purchaser, the use of the word brokerage" is quite unsuitable, whatever the nature of the transaction was. The main reason, however, which weighs with me is that the learned Judge has had to deal with conflicting verbal evidence on a question of fact; and after seeing and hearing the witnesses he has come to the conclusion that the truth lies on the side of <NAME> and not on the side of the defendant: and, in such a case, in my judgment, this Court should not interfere, unless it is clear that he has come to a wrong conclusion. This I am not prepared to say.

8. A further point has been raised, namely, that the plaintiff in any event cannot recover more than the commission on the amount actually received by the defendant in cash. In my judgment, this is not correct. The brokerage was to be paid when the sale-proceeds" were received. The purchase was completed on the 27th of September 1911, when the purchaser paid Rs. 10,000 in cash and gave hundis for Rs. 30,000. I agree with the learned Judge that the words in <NAME> added to the letter of the 13th June 1911 do not mean that the commission was only to be payable if and when the whole Rs. 40,000 were received in cash; and, if the defendant chose to agree with the purchaser that the 'sale-proceeds" should be partly cash and partly hundis, I do not think that can affect the plaintiff's right to commission.

9. In my judgment this appeal should fee, dismissed.

<NAME>, <NAME>

10. The plaintiffs as the assignees of one <ORG> sue to recover commission alleged to be due to him under a written agreement dated 13th June 1911 for having effected through his agency the sale of certain oil mills. It must be shown that the conditions of the contract have been complied with. The onus of proving this is on the plaintiffs. This is of importance in the present case, for in regard to the particular question on which I mainly rest my judgment, viz.., whether it has been shown that <ORG> obtained the purchaser within 15 days of and in terms of the agreement, it has been argued by Mr. <NAME> for the respondent that this was not at issue in the lower Court. There is no finding on this particular point. It was, however, not necessary to put this specifically in issue, since the onus of proving all facts necessary to establish the claim was on the plaintiffs and the defendant put in issue the allegation that the purchase was effected by <ORG> in terms of the agreement, according to the conditions of which alone he was entitled to a commission.

11. Several questions arise upon the construction of the agreement. It has been argued for the respondent that it is sufficient if a purchaser was secured within 15 days even if the actual purchase was completed later. This the appellant denies, contending that commission was payable only in the event of the transaction being completed (which it was not) within 15 days : and nextly that brokerage was only payable on the sale-proceeds being received in cash (which was not the case) within this period.

12. The appellant's contention is not without force on both these grounds, but it is not necessary to go into this matter for whatever be the true construction of the document on these points, it is clear and is indeed conceded that whenever or in what way the sale was concluded the purchaser at such sale must have been secured by the broker within 15 days of the agreement. Now the agreement was dated the 13th June 1911 and admittedly the first proved date at which vendor and purchaser were in communication was the 25th June, when 12 days under the agreement had already run by. It must be shown then that within the remaining 3 days <NAME> found the purchaser. Has this been shown? In cross-examination the purchaser was asked whether his letter of the 25th June was written before or after his introduction to the defendant and whether <NAME> asked him to write to the defendant or not. He was again asked about this matter in re-examination and he replied that he did not remember the date nor even the month when <NAME> spoke to him about this letter and that he could not say whether it was before or after this letter that <NAME> spoke to him. Had it been the fact that it was due to <NAME>'s intervention that the first letter was written, it does not seem to me possible that the witness could have forgotten it. His answer must have been in that case that he must have seen <NAME> first, for before seeing him he had known nothing of the defendant or of his property. He will not commit himself to this and, I think, for the reason that he had not then seen <NAME> but had learnt about the property through an advertisement in the <ORG>. This is indicated by the words in the letter of the 25th, "I see in the Exchange <ORG> that you are going to sell." The purchaser also in his evidence says, "I saw the Exchange <ORG> and then I wrote that letter," not that he had seen <NAME> meanwhile or at all. Though the omission of <NAME>'s name from the letter may not be conclusive, it is certainly evidence against the plaintiffs for a reference to the broker, through whom it is suggested that the purchaser came to know of the property, might have been expected. There is no specific evidence that <NAME> secured the purchaser between the 26th and 28th or the conclusion of the period allowed to him. There is some general evidence that he introduced the purchaser, which in any case is scarcely accurate if the first communication of the 25th to which I have referred was without his intervention. The evidence, however, is not such as I can accept. Doubtless, in a case of this kind great weight must be attached to the judgement of the learned Judge who heard the case; but, in the present instance, we have no finding on the specific point and the uncorroborated evidence of the purchaser on which the learned Judge has relied is, upon the most favourable view, consistent with the fact of work done after the limited period and is, in my opinion, in conflict with and unsupported by the documentary evidence in the case and the inferences to be derived there from. As stated the first letter of the 25th indicates that it was the advertisement which first put the parties in communication. There is no mention of <NAME> as broker in any of the letters until we get to the letter of 15th November 1911, which is of doubtful admissibility against the appellant. But on the merits the letter comes too late to be of value and is open to the suspicion that evidence was then being made for the claim by <NAME>, which followed it in January.

13. It is remarkable also that there is no letter or other document by the broker which establishes his claim. Had he earned his commission in terms of the agreement, I think he would have been careful to put it on record. The Solicitor Mr. <NAME>, who acted in the sale as attorney for the vendor, states that he never heard that <NAME> was the broker in the transaction. The purchaser also in his evidence says he never mentioned the matter to any one. Finally, there is evidence that the purchaser <ORG> took a commission of 1/2 per cent, on the entire sale-proceeds of Its. 40,000 on the ground that there had been no broker in the sale. He further granted a receipt for the same, on which express reference is made to "amount of brokerage." The purchaser knows some English and though asked to give an explanation of this circumstance was unable to do so. Mr. Justice <NAME> has held that this was a rebate, an explanation which the witness himself has not ventured to give. But, assuming that it was, the point is that it was allowed because no broker had been employed. If so, then this directly contradicts the purchaser witness when he says that <NAME> was to his knowledge the broker. Nor is it likely that the defendant would have agreed to make a further payment for '"brokerage" if he was already indebted for considerable brokerage to <NAME>. For these reasons, I would allow this appeal. It is possible that what may have happened is that the defendant advertised his property and then <NAME> coming in this way to know of it got the agreement of agency from the defendant. After that, and independently of <NAME>, the purchaser learnt from the <ORG> that the property was for sale and entered into communication with the vendor. <NAME>, who may have heard of this, may, sometime between June and August (for it is to be observed that the sale was not concluded till the latter date), have pressed the purchaser to buy in the hopes of putting forward a claim for commission. But this would not be sufficient. It is, however, not necessary for me to hold anything more than that the plaintiffs have not established that <NAME> earned his commission within the terms of the agreement and I would, therefore, decree this appeal with costs and dismiss this suit with costs, As regards the question whether we should interfere in appeal with questions of fact, I will only say this, that if after argument the Court has a conviction that the judgment under appeal is erroneous it should not be affirmed, and this is not the less so because the judgment raised a question of fact. The mode in which the conviction is brought about in matters of law and fact is a question into which I do not enter, it being sufficient in the present case to say that, in my opinion, the appellant has shown us circumstances under which the judgment under appeal should be reversed.

<NAME>, J.

14. This is an appeal, by the defendant in an action by an agent against his principal for recovery of commission. The defendant employed the plaintiff to sell his oil mill; the agreement was made on the 13th June 1911 and was embodied in a letter in the following terms: I agree to allow you to sell my above oil mill at Rs. 40,000 only; you will get brokerage 5 per cent, on the same, when the mill will be sold through you; this condition in force till fortnight (15 days) from this date." There was a postscript to the effect that on the sale-proceeds being received in hand brokerage will be paid." On the 25th June 1911 one Bhatuknath Boodhnath wrote to the defendant: ' I see in <ORG> that you (are) going to sell your oil mill at Narikeldanga. I went thrice to your office, but unfortunately could not find you there. I shall, however, call at your oil mill tomorrow, with an expert engineer's opinion, and will give you offer for the same. I may buy for myself or sell to my friends." On the next day, the intending purchaser again wrote to the defendant. The letter referred to a conversation which the writer had with the defendant and contained two alternative offers. The first alternative was the purchase of the mill for Its. 35,000 cash, Rs. 1,000 to be deposited there out as earnest money, and the balance to be paid after one month, if on trial working meanwhile, the mill turned out to be satisfactory. The second alternative was the purchase of the mill on payment of Rs. 10,000 in cash at the time of sale, and Rs. 30,000 to be paid after one year. It may be observed parenthetically that neither of these offers accorded with what the seller expected, namely, Rs. 40,000 in cash. What followed, does not transpire from the correspondence, but we find that on the 8th August 1911 the purchaser wrote to the defendant and confirmed an arrangement made on the day previous for the sale of the mill for Rs. 40,000; Rs. 10,000 to be paid in cash on registration of the conveyance, Rs. 20,000 by a hundi payable one year after that date, and the balance of Rs. 10,000 by another hundi payable 18 months after the date of the registration of the conveyance. On the 15th November 1911, nearly two months after the sale had been completed on the 27th September, the purchaser is said to have written a letter to the plaintiff and authorised him to negotiate for the appointment of managing agents of the mill, which is described as purchased through you." On the 26th January 1912, the Solicitors of the plaintiff wrote to the defendant and demanded immediate payment of Rs. 2,000 as brokerage due or the sale of the mill, which was alleged to have been effected through their client. The Solicitor of the defendant promptly replied on the next day. He pointed out that the letter of authority of the 13th June 1911 was limited to 15 days from the date thereof. He asserted that the plaintiff had failed to secure a purchaser within the prescribed time and that the mill had been sold without any concern with him; and he added that the seller had already paid brokerage on the transaction. This referred to a payment of Rs. 200 by the defendant to the purchaser, who had granted a receipt therefor as paid on account of brokerage. The plaintiff thereupon instituted this suit on the 13th June 1912. The defendant asserted that the sale had taken place without the intervention of the plaintiff as broker and repudiated the claim as entirely unfounded. Mr. Justice <NAME> has held on the evidence that the sale was effected through the instrumentality of the plaintiff and has decreed the suit. On the present appeal, the defendant has contended that this finding is not supported by the evidence on the record, and that even if the finding is maintained it is not sufficient to justify the decree.

15. It is an elementary principle that where an agent has been appointed for a fixed term, the expiration of the term puts an end to the agency, whether the purpose of the agency has been accomplished or not; consequently, where an agency for sale has expired by express limitation, a subsequent execution thereof is invalid, unless the term has been extended. It is thus plain that the plaintiff could be entitled to the commission, only if he found a purchaser on or before the 28th June 1911. I do not hold that the plaintiff was bound to complete the transaction within this period; in my view of the contract, the plaintiff would be entitled to the commission, if, within the time prescribed he produced a person able, ready and willing to enter into the transaction with the defendant on the terms prescribed by the latter, and the plaintiff must within that period notify his principal that he had secured such a person. It is also indisputable, I think, that the burden lies upon the plaintiff to establish that he has earned the commission he claims. If these principles are borne in mind, there is no escape from the conclusion that the plaintiff cannot be awarded a decree, merely on the finding that the sale was effected through his instrumentality. If the case were before a Jury, the Court would have to instruct them that to find a verdict for plaintiff, they must find that plaintiff procured a purchaser able and willing to buy on the terms stated in the writing, that he notified defendant of the fact and that this was done within the 15 days prescribed. The vital question, consequently, is, did the plaintiff bring the purchaser to the defendant on or before the 28th June 1911. There is no trace in the correspondence already summarised that he had done so. The first letter of the purchaser to the defendant mentions that he had learnt from <ORG> about the proposed sale of the mill. This, no doubt, is not conclusive proof that he had not met the broker on or before the 25th June; but there is no specific evidence upon which I can act that the two had met before that date. The letter of the 26th June also, taken by itself, does not assist the plaintiff. No doubt, it recites a conversation between the defendant and the purchaser, but it does not show that the plaintiff was present at that interview. I do not overlook that the purchaser asserts that he was introduced to the defendant by the broker, and his version has been accepted as true by Mr. Justice <NAME>; but this does not carry matters far enough. The purchaser could not pledge his oath that his first letter was written after the broker had informed him of the proposed sale of the mill. I am not unmindful that the purchaser asserts that he first offered Rs. 35,000 and that the broker <NAME> used to come and see him often and got him into the scrape, that is, induced him to pay Rs. 40,000. This statement, even if accepted and taken along with the letter of the 26th June, does not conclusively prove that <NAME> introduced the purchaser to the defendant on or before the 26th. There can be no dispute that if such introduction did not take place on or before the 26th June, the evidence does not show that it was brought about either on the 27th or 28th June; indeed, the evidence is entirely silent with regard to these two dates.

16. Mr. <NAME>, in the course of his able argument for the respondent, properly emphasised the fact that Mr. Justice <NAME>, who had the opportunity to see the witnesses, which we have not, has believed the purchaser in preference to the defendant; and he has argued that in a case of this description, where there is a conflict of oral testimony, <ORG> should not reverse the finding of <ORG>. This contention raises a question of considerable importance as to the duty and functions of <ORG> in this country. As was stated by <NAME>, <NAME> in <NAME> v. Empress 11 C.L.R. 25 and by <NAME>, <NAME>, in <CITATION> 23 C. 347, the sound rule to apply in trying an appeal in a civil case is that the <ORG> must be convinced, before reversing a finding of fact by a lower <ORG>, that the finding is wrong; in other words, the burden lies upon the appellant to satisfy the <ORG> that the finding he assails is not supported by the evidence on the record: Wise v. <NAME> 20 E.B. 68 : 11 M.T.A. 177 at p. 181 : 7 W.R. 13 (P.C.) : 1 <NAME>. P.C.<NAME> 667 : 2 Sar. P.C.<NAME> 249 : Tahboonissa Bibee v. <NAME> 15 W.R. 228 : <NAME> v. <NAME> 25 W.R. 30 : <NAME> v. <NAME> 25 W.R. 26 : <NAME> v. <NAME> 25 W.R. 50; <NAME> v. <NAME> 25 W.R. 363. : Musammat Hoymobutty Dossee v. <NAME> 14 W.R. 58 : Munsoob Bibee v. Ali Miah 17 W.R. 358. When such evidence consists entirely or even principally of the oral testimony of witnesses, the appellant is at a special disadvantage. Reference may in this connection be made to the observation of Lord <NAME> in <CITATION> 3 Ind. Cas. 799 : 36 I.A. 185 : 32 M. 400 : 11 Bom. L.R. 1206 (P.C) : 10 C.L.<NAME> 276 : 6 M.L.T. 304: "No doubt it is always difficult for Judges who have not seen and heard the witnesses to refuse to adopt the conclusions of fact of those who have; but that difficulty is greatly aggravated where the Judge who heard them has formed the opinion, not only that their inferences are unsound on the balance of probability against their story, but that they are not witnesses of truth." The reasons for this rule of practice are too obvious to require elucidation. But it is worthy of note that Lord <NAME> refers with approval to the judgment delivered by <NAME>, M.R., in <ORG> in the case of <NAME> v. <NAME> (1898)1 Ch. 704 : 67 L.<NAME>Ch. 402 : 78 L.T. 540, which sets out the limitations of the rule: Even where, * * * the appeal turns on a question of fact, <ORG> has to bear in mind that its duty is to rehear the case, and the <ORG> must reconsider the materials before the Judge with such other materials as it may have decided to admit. The <ORG> must then make up its own mind, not disregarding the judgment appealed from, but carefully weighing and considering it; and not shrinking from overruling it if on full consideration the <ORG> comes to the conclusion that the judgment is wrong. When, as often happens, much turns on the relative credibility of witnesses who have been examined and cross-examined before the Judge, the <ORG> is sensible of the great advantage he has had in seeing and hearing them. It is often very difficult to estimate correctly the' relative credibility of witnesses from written depositions; and, when the question arises which witness is to be believed rather than another, and that question turns on manner and demeanour, <ORG> always is, and must be, guided by the impression made on the Judge who saw the witnesses. But there may obviously be other circumstances, quite apart from manner and demeanour, which may show whether a statement is credible or not: and these circumstances may warrant the <ORG> in differing from the Judge, even on a question of fact turning on the credibility of witnesses whom the <ORG> has not seen. " In the case in which these observations were made, <ORG> (<NAME>, M.R., Rigby, L.<NAME>, and <NAME>, L.<NAME>), allowed the appeal, although the appeal turned on a question of fact. It is obviously impossible to frame a formula, to define the impression which must be produced on the minds of the Judges of <ORG>, so that they may not shrink, in the words of <NAME>, M.R., from overruling the judgment of the Trial <ORG> : and the cases in the books employ various expressions which are really of little assistance, such as that the judgment is 'clearly wrong' [Khoorshedjee Manikjee v. <NAME> 1 M.I.A. 431 at p. 442 : 5 W.R. 57 (P.C) : 1 <NAME>. P.C.<NAME> 73 : 1 Sar. P. C.<NAME> 138 : 18 E.R. 173], that the decision is irresistibly erroneous' [<NAME> v. <NAME> (1876) 2 H.L.Sc. 53 followed in Pandurang Vasudeo v. <NAME> 5 Bom. L.R. 956 and <CITATION> 9 Bom. L.R. 393,], that '<ORG> ought never to reverse the judgment of an inferior <ORG> unless quite confident that the judgment giver, in the <ORG> below is wrong' [<NAME> (<NAME>) v. <NAME> (1853) 3 Cl. & F. 479 at p. 512 : 9 Bligh. (N.S.) 532 : 6 E.R. 1517 followed in Yemunabai v. <NAME> 5 Bom. L.R. 584], that the <ORG> will not reverse the decision except in cases of extreme and overwhelming pressure [The Julia, Bland v. <NAME> (1860) 14 Bom. P.C. 210 : Lush. 224 : 15 E.R. 284 : 134 R.R. 43, The Alice and the Princess Alice (1868) 2 P.C. 245 : 19 L.T. 678 : 17 W.R. 209 : 38 L.<NAME> Adm. 5], that '<ORG> will hesitate long before it disturbs the findings of a Trial Judge based on verbal testimony' [Khoo Sit Hoh v. <NAME> (1912) App. Cas. 323 : 81 L.<NAME>P.C. 176 : 106 L.T. 470], or that the finding 'is so clearly against the weight of the testimony as to amount to a manifest defeat of justice' : [<ORG> v. <NAME> as <NAME> (1899) 2 I.R. 1 at p. 18 : 32 I.L.T.R. 33 : 4 Ir.L. Rep. 630]. We may also bear in mind the observation of Lord Chelmsford in Tayammaul v. Sashachalla Naikar 10 M.I.A. 429 at p. 436 : 2 Sar. P.C.<NAME> 139 : 19 E.R. 1034, "the advantage the Judge of <ORG> possesses in forming a correct opinion of the credit due to the witnesses, does not relieve <ORG> from the duty of examining the whole evidence and forming for itself an opinion upon the whole case." To the same effect are the observations of <NAME>, <NAME> A., in Glannibanta, The (1876) 1 P.D. 283 at p. 287 : 34 L.T. 934 : 24 W.R. 1033 : 3 Asp. M.C. 339. Indeed, if the conclusion of the Trial <ORG> in a case of conflict of oral testimony were held practically unassailable, that <ORG> would in essence be constituted the final <ORG> on questions of fact. But the parties to the cause are entitled, as well on questions of fact as on questions of law, to demand the decision of <ORG>, though, as James L.<NAME>, said in Bigsby v. <NAME> (1876) 4 Ch. D. 24 at p. 29 : 35 L.T. 679 : 25 W.R. 89 : 46 L.<NAME>Ch. 280, if we are to accept as final the decision of the <ORG> of first instance in every case where there is a conflict of evidence, our labours would be very much lightered." The matter is obviously simpler where the conclusion is merely an inference of fact [Lord <NAME> in Smith v. <NAME> (1884) 9 App. Cas. 187 at p. 194 : 53 L.<NAME>Ch. 873 : 50 L.T. 697 : 32 W.R. 687 : 58 <NAME>P. 644.] or where the evidence whereon the decision of the Trial Judge is based, has been taken on commission [Lord <NAME> in <NAME> v. <NAME> 6 Ind. Cas. 981 : 14 C.W.N. 842 : 12 Bom. L.R. 419 : 7 M.L.T. 414 (P.C.) : 32 A. 241]. But, even in other cases, it is undoubtedly the duty of <ORG> to weigh conflicting evidence and to draw its own inferences and conclusions, though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect. Cases are by no means rare where an Indian Appellate <ORG> has reversed the decision of <ORG> based on conflicting oral testimony and the conclusion of the Appellate <ORG> has been ultimately affirmed by <ORG> : <CITATION> 25 I.A. 109 : 25 C. 824 : 2 C.W.N. 321 : <CITATION> 33 C. 537 : 3 C.L.<NAME> 349 : 10 C.W.N. 522 : 8 Bom. L.R. 375 : 1 M.L.T. 131 : 16 M.L.<NAME> 161 : Musammat Bulli Kunwar v. Mnsammat Bhagirathi 9 C.W.N. 649 : 15 M.L.<NAME> 265 : <CITATION> 22 C. 519 : 22 I.A. 12 : Secretary of State for <CITATION> 4 Ind. Cas. 448 : 36 C. 967 : 10 C.L.<NAME> 281 (P.C) : 11 Bom. L.R. 1197 : 14 C.W.N. 134. : Jeolal Mahton v. <NAME> 15 Ind. Cas. 184 : 16 C.W.N. 466 (decided by <ORG> on the 23rd January 1912). I am not unmindful that there are other instances where <ORG> has reversed the decision of the local Appellate <ORG> and restored the decree of the Trial Judge, but that has been done because their Lordships were satisfied, upon a scrutiny of the entire evidence, that the view of the latter was more consistent therewith than that of the former, <NAME> v. Rajani Kant Mukerji 21 C. 1 : <CITATION> 23 C. 1 : 22 I.A. 171 : <CITATION> 27 C. 521 : 27 I.A. 10 : 4 C.W.N. 501 : Khoo Sit Hoh v. Lim Thean Tone (1912) App. Cas. 323 : 81 L.<NAME>P.C. 176 : 106 L.T. 470 : <CITATION> . 130 : 29 A. 29 : 17 M.L.<NAME> 32 : 5 C.L.<NAME> 4 : 9 Bom. L.R. 80 : 1 M.L.T. 429 (P.C). We may also bear in mind the fact that, although as an ordinary rule <ORG> does not interfere with concurrent judgments of the <ORG>s below on questions of fact, instances are by no means rare where their Lordships have examined the whole evidence, formed for themselves an opinion on the entire case and reversed the unanimous decision of the two <ORG>s in India on a question of fact: <NAME> v. <NAME> 4 M.I.A. 1 : 7 W.R. 57 (P.C.) : 1 <NAME>. P.C.<NAME> 197 : 1 Sar. P.C.<NAME> 313 : 18 E.R. 600 : Huradhun Mookurjia v. Muthoranath Mookurjia 4 M.I.A. 414 : 7 W.R. 71 (P.C.) : 1 <NAME>. P.C.<NAME> 213 : 1 Sar. P.C.<NAME> 375 : 18 E.R. 758; Mndhoo Soodun Sundial v. <NAME> 4 M.I.A. 431 : 7 W.R. 73 (P.C) : 1 <NAME>. P.C.<NAME> 216 : 1 Sar.P.C.<NAME> 378 : 18 E.R. 764 : Tayammaul v. Sashachalla Naikar 10 M.I.A. 429 at p. 436 : 2 Sar. P.C.<NAME> 139 : 19 E.R. 1034 : Charles Seton Guthrie v. <NAME> 14 M.I.A. 53 : 15 W.R. (P.C.) 50 : 7 B.L.R. 630 : 2 <NAME>. P.C.<NAME> 429 : 2 Sar. P.C.<NAME> 660 : 20 E.R. 706 : Baboo Lekraj Roy v. <NAME> 14 M.I.A. 393 : 17 W.R. 117 : 10 B.L.R. 35 : 2 <NAME>. P.C.<NAME> 536 : 3 Sar. P.C.<NAME> 43 : 20 E.R. 833 : Hay v. Gorden (1872) I.A. Sup. 106 : 10 B.L.R. 301 : 18 W.R. 480 : Venkatesivara lyan v. Shekhari Vanna 8 I.A. 143 : 3 M. 384 : Muhammad Mumtaz Ahmad v. <NAME> Jan 16 I.A. 205 : 11 A. 460 : 5 Sar. P.C.<NAME> 433. : <CITATION> 11 Ind. Cas. 399 : 15 C.W.N. 648 (P.C) : 13 C.L.<NAME> 588 : 8 A.L.<NAME> 587 : 13 Bom. L.R. 440 : 21 M.L.<NAME> 652 : 10 M.L.T. 335 : (1911) I.M.W.N. 418 It is not necessary for the present purpose to consider whether any general principle is deducible from the expressions used by their Lordships as to the circumstances under which they will depart from the rule ordinarily observed by them, such as 'that the very clearest proof is shown that the decision is erroneous, that 'the <ORG> is clearly satisfied that there has been miscarriage in the appreciation of evidence,' that it is manifestly clear from the probabilities that the <ORG> below was wrong,' that 'the case is very extraordinary,' that a strong case must be made out before the <ORG> would recommend reversal,' that 'it must very clearly appear that the conclusion is very plainly erroneous,' that 'there has been some miscarriage in respect of a presumption to which too much weight was given,' that very definite and explicit grounds must be assigned for interference,' that there is so strong a preponderance of testimony that the <ORG> can confidently pronounce the decision to be wrong,' and other expressions of like import. But it is obvious that if reversal of concurrent findings of fact is permissible, the <ORG> of first Appeal should not be deemed fettered to a larger extent.

17. In the present case, as I have already stated, the finding that the sale was effected through the instrumentality of the plaintiff does not justify a decree in his favour. The purchaser does not make an explicit statement that the plaintiff introduced him to the defendant on or before the 28th June 1911, but even if this much be deemed to be implied in his statements, I cannot accept his testimony. The correspondence does not show any trace of the presence of <NAME> in the negotiations; one would have expected some mention of his name in the first or the second letter. It is also remarkable that no written communication appears to have passed between the plaintiff and the defendant, although the plaintiff had taken the precaution to accept the agency by a written instrument. There is further the unexplained fact that the purchaser received Rs. 200 as brokerage; he cannot explain why the sum was described by this obviously inappropriate term; it is extremely improbable that the defendant would have made a present of this sum to the purchaser, if he had really to pay Rs. 2,000 to plaintiff as broker. There is the further significant fact that the claim for brokerage was not put forward till the 26th January 1912, though, if the plaintiff is to be believed, he had earned it before the 26th June 1911 and the sale had been actually completed on the 27th September 1911. Finally, the case for the plaintiff is certainly not improved by the letter alleged to have been written on the 15th November 1911, which plainly bears the appearance of an attempt to create evidence for future use. After the most careful and anxious consideration of the entire evidence on the record and the circumstances of the case, I have arrived at the conclusion that the plaintiff has failed to establish that he has earned the commission claimed in terms of the contract and that the decree in his favour cannot be supported. In my opinion, the appeal should be allowed and the suit dismissed with costs throughout.

<NAME>, <NAME>

18. The result is that, in view of the opinion expressed by the majority of the <ORG>, this appeal will be allowed, the judgment of the <ORG> of first instance set aside, and the plaintiff's suit dismissed with costs both of the <ORG> of first instance and of this appeal.


PETITIONER: <NAME> HOUSING BOARD Vs. RESPONDENT: A. VISWAM (DEAD) BY LRS. DATE OF JUDGMENT: 09/02/1996 BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. G.B. PATTANAIK (J) CITATION: JT 1996 (2) 549 1996 SCALE (2)418 ACT: HEADNOTE: JUDGMENT:

O R D E R Leave granted.

These appeals by special leave arise from the judgment and decree of <ORG> made on April 7, 1994 in S.A. No.1526 of 1988. The facts are not in dispute.

Notification under Section 4(1) of the Land Acquisition Act, 1894 (Act 1 of 1894) (for short, the "Act") was published on September 17, 1958 acquiring a large extent of 339 acres of land comprising Kodambakkam and Pudoor villages known as "Part Neighborhood Scheme" and renamed as "Ashok Nagar Scheme of Madras City for planned development. Declaration under Section 6 was published on November 26, 1958. The Land Acquisition Officer made his award under Section 11 on February 28, 1966. It is the case of the appellant that the Land Acquisition Officer had taken possession of the land on February 28, 1966 and delivered possession to the appellant on March 21, 1966. It is not in dispute that under the Scheme as many as 3639 residential houses have been constructed and delivered possession of. The disputed land in an extent of one acre and thirty two cents is set apart for public park in the Scheme which stood vested in the Municipality.

It is the case of the respondent that he is the owner of the land having title to and possession of the sane for over 30 years preceding the date of filing of the suit, Viz., April 19, 1984 and the appellant was sought to interdict his possession and enjoyment. Consequentially, he filed the suit for perpetual injunction against the appellant. Admittedly, he was a servant of <NAME>. <ORG> dismissed the suit. On appeal, the City Civil Judge decreed the suit and <ORG> confirmed the same. Thus these appeals by special leave.

It is contended by Mr. <NAME>, learned senior counsel appearing for the respondents, that in a mere suit for injunction though incidentally founded on title, the courts are require to record a finding whether the respondents were in possession of the land as on the date of the suit and if finding of being in possession is recorded then they are entitled to perpetual injunction against everyone except the true owner. In this cases all the three courts concurrently found as a fact that the respondents were in possession of the land as on the date of the suit. The appellant had not proved that possession was taken by the Land Acquisition Officer from the respondents. Thereby the right, title and interest held by the respondents was not divested by operation of Section 16 of the Act. Therefore, the respondents continue to remain to be the lawful owner. Accordingly, they are entitled to injunction against everyone including the appellant-Board. In support of his contention, he placed strong reliance on <CITATION> . [(1975) Supp. SCR 250].

The question is: whether the premise on which the learned counsel has projected the case is based on legally acceptable legal premise? It is true that when <ORG> has, as a pure appreciation of evidence, considered and recorded as a fact a finding on possession, normally this Court would accept such finding and proceed on that premise to decide substantial question of law of public importance, exercising the power under Article 136. As stated earlier, whether <ORG> has proceeded on that premise is the question. With due respect, the learned Judge has proceeded in recording a fact without adverting to operation of relevant provisions of the Act, failed to draw legal inferences from admitted or proved facts and had wrongly drawn the inference that the acquisition stood lapsed which constitute patent error giving rise to substantial question of law. It is an admitted fact that the land was acquired under the Act after due publication of the declaration under Section 6 . As rightly contended by Mr. <NAME>, learned senior counsel appearing for some of the respondents, conclusiveness of the public purpose stands established. Thereafter, procedure prescribed in Chapter III of the Act requires to be followed and as a fact, admittedly, the <ORG> made his award on February 28, 1966 and issued notice under Section 12 . All the parties received compensation except in respect of the land in question. As a matter of law under Section 30 , when claimant/owner receives compensation with without protest, <ORG> should pay the same. In case, no one received compensation, he is enjoined under Section 30 to deposit the compensation in the court to which reference under Section 18 would lie and to make the reference under Section 30 accordingly. It is seen from the evidence that the <ORG> found one <NAME> and <NAME> had interest in the land bearing Survey No.140/4 of an extent of one acre and thirty two cents. Accordingly, in his award he mentioned that since all of them have laid the claim, he referred the dispute under Section 30 and deposited the compensation in the court. As a corollary, possession would be taken and thereafter the land stands vested in the <ORG> under Section 16 free from all encumbrances.

The question is: whether the land in question was taken possession? The issue squarely arises vis a vis the respondents. Unfortunately, the respondents had not impleaded the <ORG> who had taken possession and delivered possession of the land to the appellant. It is not in dispute that under Ex.P-5, the <ORG> delivered possession to the appellant. Therefore, as rightly contended by <NAME>, learned senior counsel for the appellant, that the presumption under Section 114(e) of the Evidence Act would consequently get attracted to the facts in this case. The <ORG> in discharge of his official duty after taking possession of the disputed land along with other lands, had, in turn, delivered the same to the appellant. It is seen that 339 acres of land acquired by a common notification was taken and the award came to be made and possession was taken of all the lands. Question arises: whether it would be possible for the <ORG> to take physical possession of the entire 339 acres of land and deliver the same to <ORG>? The approach to the question must be pragmatic and realistic but not purely legalistic. It is true that in <NAME> case, <ORG> had held at page 263 thus:

"The question is what is the mode of taking possession? The Act is silent on the point. Unless possession is taken Concerned the mode of taking the possession obviously would be for the authority to go upon the land and to do some act which would indicate that the authority has taken possession of the land. It may be in the form of a declaration by beat of drum or otherwise or by hanging a written declaration on the spot that the authority has taken possession of the land"

<NAME>, <NAME> (as he then was) speaking for two members had held that :

"There can be no question of taking 'symbolical' possession in the sense understood by judicial decisions under the Code of Civil Procedure. Not would possession merely on paper by enough. What the Act contemplates as a necessary condition of vesting of the land in the <ORG> is the taking of actual possession of the land. How such possession would have to be taken as the nature of the land admits of. There can be no hard and fast rule laying down what act would be sufficient to constitute taking of possession of land. We should not, therefore, be taken as laying down as absolute and inviolable rule that merely going on the spot and making a declaration by beat of drum or otherwise would be sufficient to constitute taking of possession of land in every case. But here, in our opinion, since the land was laying fallow and there was no crop on it at the material time, the act of the Tehsildar in going on the spot and inspecting the land for the purpose of determining what part was waster and arable and should, therefore, be taken possession of and determining its extent, was sufficient to constitute taking of possession. It appears that the appellant was not present when this was done by the Tehsildar, but the presence of the owner or the occupant of the and is not necessary to effectuate the taking of possession. It is also not strictly necessary as a matter of legal requirement that notice should be given to the owner or the occupant of the land that possession would be taken at a particular time, though it may be desirable where possible, to give such notice before possession is taken by the authorities as that would eliminate the possibility of any fraudulent or collusive transaction of taking mere paper possession, without the occupant or the owner every coming to know of it."

It is settled law by series of judgments of this Court that one of the accepted modes of taking possession of the acquired land is recording of a memorandum or Panchnama by the <ORG> in the presence of witnesses winged by him/them and that would constitute taking possession of the land as it would be impossible to take physical possession of the acquired land. It is common knowledge that in some cases the owner/interested person may not cooperate in taking possession of the land.

It is seen that in a letter written by the respondent himself, admitting the title of the <ORG> to the land in the said survey number, he sought for allotment of alternative site. In other words, unless possession is taken and he is divested of the title and the same is vested in the appellant, he cannot make request to the appellant for providing him alternative site. It is not his case that at that stage he was still continuing to have title to the land in dispute.' The admission is inconsistent with and incongruous to his interest. He was also aware that award was made and the possession obviously should have been taken thereunder. It is true that normally possession is nine times the title. If that principle is extended to public acquisition by illegal squatting, erstwhile owner has compensation as well as possession of the land by encroachment upon his erstwhile land and claim that he remained in possession. Such construction would defeat the public purpose. As pointed out earlier, the <ORG> is the best person to speak to the factum of taking and giving delivery, to the appellant, of the possession of the land in survey No.140/4 along with other lands but he was not impleaded as party defendant to the suit. It is seen that when the respondent is asserting his legal title to the acquired land, he should have necessarily the <ORG> impleaded as party and claimed his possession as against the <ORG>. That was not done. The <ORG> having had possession from the <ORG>, cannot be expected to prove how the <ORG> had taken possession of the land.

From the facts in this case, it would be clear that possession must have been taken of the land consisting of 339 acres including 1.33 acres in survey No. 140/4. It is seen that when the land was acquired for planned development of the city and a large chunk of buildings has already been built up and the land admeasuring about 1 acre 32 cents has been set apart for park purpose, obviously along with other lands, the disputed land was taken possession and construction was made as per plans. Would it be possible for the appellant, without delivery of possession to <ORG>, to construct such massive constructions and leave out only this part of the land bearing survey No.140/4 which was set a part for public purpose, namely, public amenity of part? The making of the plan would emerge only after the land is taken possession and demarcation thereof is made and constructions are carried out. It is erroneous to believe that possession still remained with the respondents and the <ORG> had not taken possession only of this piece of land. It is not the case of the respondent that he resisted taking possession of the land by <ORG> and thereafter the <ORG> took no action to have him dispossessed. The single Judge has not adverted to these material facts and the circumstantial evidence available from the established facts. He proceeded to consider on the premise that since the acquired land was not used for building purpose and possession was not taken, acquisition stood lapsed. Equally erroneous is the reasoning given by the District Judge. <ORG> is wholly illegal in its conclusion. The District Judge proceeded on the premises that the revenue records do not show the name of the appellant mutated and the land was not registered in the name of the appellant. These circumstances are wholly illegal and unjustified. Section 12  of the Act itself exempts registration of the land acquired under the Act. The District Judge had obviously ignored the statutory provisions. It was unnecessary for <ORG> to have the lands mutated in the revenue records and have its name entered therein. It was not for its purpose. It was for public purpose, i.e., for construction of the houses and allotment thereof to the needy persons. After the construction of the houses, the public park stood vested in the acquisition. Obviously, at this stage the Municipality would have come to take possession exercising its jurisdiction when illegal encroachment was found on the land. At this stage, notice was given to the respondents and the respondents filed the suit for perpetual injunction.

Thus considered, the title of the land in Survey No. 140/4 having been vested in the appellant, to whomsoever it belonged earlier, it stood divested from him/them and no one can lay any claim to the said acquired land once over and claim injunction on that basis. The injunction, therefore, cannot be issued against the true owner, namely, <ORG> in whom the land ultimately stood vested and then stood transferred to <ORG>. A trespasser can not claim injunction against the owner nor can the court to issue the same.

Thus considered, we are of the view that grave error of law was committed by <ORG> in confirming the decree of the appellate Court. Accordingly, the decrees and judgments of the first appellate Court and <ORG> stand set aside and that of the trial Judge stands restored.

The appeals are accordingly allowed. No costs.


JUDGMENT <NAME>, J.

1. The claimants have filed the present appeal for enhancement of compensation awarded by <ORG>, Karnal dated 8.9.1987 vide which a compensation of Rs. 15,000/- was awarded to the claimants under Section 92-A of the Motor Vehicles Act on account of death of <NAME> and her minor daughter <NAME>.

2. Briefly the facts of the case are that on 25.2.1987 at about 7.00 P.M. <NAME> along with her infant girl child <NAME> who were sitting on the carrier of a cycle, which was being driven by her son <NAME> and was going from Chhajpur Khurd to village Chhajpur Kalan. The cycle was being driven by <NAME> on the correct side and when they reached the Chhajpur crossing, <NAME> slowed down his cycle and gave a signal with his right hand indicating that he was to turn towards Chhajpur Kalan which was on the right hand side. At that time, a Haryana Roadways Bus, bearing registration No. HRQ-4452 which was coming from the Panipat side i.e. the same side on which the cycle was going and being driven by <NAME>, respondent No. 4 rashly and negligently, struck against the cycle as a result of which <NAME> and her infant daughter <NAME> died on the spot. <NAME> who was riding the cycle suffered injuries.

3. The claimants who are the husband of <NAME> as well as 5 other minor children, have filed the claim petition wherein they have claimed compensation for the deaths of <NAME> as well as <NAME> to the tune of Rs. 3,50,000/-. It was averred in the petition that <NAME> was earning a sum of Rs. 1500/- per month by doing the work of tailoring and stitching.

4. Reply to the claim petition was filed by the respondents, in which it was admitted that the accident took place. However, <NAME>, the driver of the Haryana Roadways Bus averred that the accident has took place due to negligence of the cyclist and he was not responsible for the accident. Thus the question in the present case is whether. <NAME> and <NAME> had died in an accident with Bus No. HRQ-4452 due to rash and negligent driving of bus driver, <NAME>, and if so then how much amount of compensation, the claimants are entitled to ?

5. The claimants in order to support their case, examined PW-1 <NAME>, PW-2 <NAME> and PW-3 <NAME>. PW-2 <NAME> stated that at about 7.00 P.M. on 25.2.1987, while he was coming from his fields, he had halted at Chhajpur Khurd bus stand to take water and to relax, that in the meanwhile <NAME> cyclist was seen coming from the side of village Nimbri. He has further stated that <NAME> and infant child <NAME> were sitting on the carrier of the cycle and <NAME> Singh was going on the left side of the road. It was further stated by this witness that <NAME> turned to the right hand side after giving a signal by hand and while he had reached the middle of the road, a Haryana Roadways bus, bearing registration No. HRQ-4452 which was coming from village Nimbri and was being driven in rash and negligent manner, struck against the cycle and as a result of which <NAME> and her daughter were died on the spot. <NAME>, who was riding the cycle, also appeared as PW-3 and stated that he had given a signal with his right hand for turning to the right hand side and at that time, the offending vehicle was at a distance of 100 yards. It is further submitted that the bus came straight and struck against the cycle as a result of which, his mother and infant sister died. Both the witnesses were cross-examined at length by the counsel for the <ORG> and the respondents have tried to make much capital with regard to the time of the accident. RW-1 <NAME>, who is the driver of the Haryana Roadways bus also appeared in the witness box and stated that it was the cyclist, who was at fault as the cyclist took a sudden turn towards the right hand side without giving any signal. One RW-2 <NAME> stated that he was sitting in the front seat of the bus and said that the accident had taken place due to negligence riding of the cyclist and not the bus driver and thus the bus driver is not responsible.

6. After going through the evidence on record, it is clear that when <NAME> who was riding the cycle, he had given a signal, at that time the bus was approximately 100 yards away. There was sufficient time for the bus driver to slow down and apply brakes as the distance of 100 yards is good enough to take a evasive action. Moreover, the bus had struck against the cycle from the rear portion, which shows that it is the bus driver who is responsible for the accident.

7. Even assuming that the bus was at high speed at 80/100 k.m. per hour still 100 yards is sufficiently long distance to stop the bus and to take evasive action in case any cyclist or pedestrian is crossing the road even without giving signal. In the present case, the cyclist had given a signal before turning and the headlights of the bus were on and it was 100 yards away. Therefore, in these circumstances, it is held that the accident took place because of the rash and negligent driving of <NAME>, driver of the bus.

8. The next question that arises in the present case is as to what amount of compensation the claimants are entitled to. It has come in the evidence of <NAME> husband of deceased <NAME> that the deceased used to do the work of tailoring and stitching. He has stated that she used to earn a sum of Rs. 50/- to 60/- per day i.e. Rs. 1,500/- per month. However, in the statement of <NAME>, her income is mentioned as Rs. 700/-. Apart from the statement of <NAME>, there is also a statement of <NAME> had stated that his wife had got suits stitched from the deceased and she used to earn approximately Rs. 15/16 per kurta/piece. It can easily be assumed that the deceased earned a sum of Rs. 900/-. If one third is deducted towards the expenses then the total dependency of the claimants was Rs. 600/- per month which comes to Rs. 7200/- per annum. <NAME> was 35 years of age at the time of her death. She had five minor children and therefore, in these circumstances, I am inclined to apply a multiplier of 15. Accordingly, claimants are entitled to compensation of Rs. 1,08,000/- on account of death of <NAME>.

9. As far as the death of the minor child <NAME> is concerned, it would be appropriate to award a lump sum amount of Rs. 75,000/-. The entire amount of compensation shall be apportioned in equal shares between all the claimants. The claimants shall also be entitled to interest at the rate of seven and a half per cent instead of 12 percent, as awarded by the <ORG>. <CITATION> . (2005-2)140 P.L.R. 650 (S.C.). The Hon'ble Supreme Court of India has held that taking note of the prevailing rate of interest in bank deposits, the interest is liable to be fixed at the rate of seven and a half per cent per annum.

10. The entire amount shall be paid by the respondents after deducting the amount already paid. The claimants shall be entitled to the interest from the date of filing of the claim petition, till realisation. The judgment of the M.A.C.T., Karnal is modified to the extent above


JUDGMENT <NAME> Offg. C.J.

1. At the instance of the assessee, this court directed <ORG> to refer the following question for its opinion. -

"Whether on the facts, and in the circumstances of the case, <ORG> is justified in sustaining both the additions of Rs. 14,222/- as deficit yield and Rs. 35,4007- as cash credits and whether they do not amount to double taxation?"

2. The facts relevant to this question may be 'shortly stated:

The return submitted by the assessee, who is a dealer in the manufacture and sale of ground-nut-kernel and cake at Adoni disclosed a gross profit of Rs. 5,118/- on a turnover of Rs. 3,67,000/- the purchases of ground-nut alone amounting to Rs. 2,41,213/- and the purchase of kernels being of the value of Rs. 1,07,4487-. There were no vouchers to support these transactions. The assessee decorticated ground-nuts and obtained kernel. The resultant kernel together with the kernel purchased was crushed by means of expellers yielding ground-nut oil and cake which were sold. No books were maintained to show the daily quantity of kernel pressed and the quantity of oil and cake obtained.

Similarly, there was no record showing the kernel obtained by decorticating the ground-nuts. In these circumstances and having regard to the fact that dealers similarly situated made gross profits of about 12 per cent,, the Income-tax Officer estimated the gross profits of the assessee at 10 per cent which resulted in the addition of Rs. 31,551/-. Besides this, he added Rs. 73,000/- secret profits introduced into the books in the guise of un-ledgered anamath cash credits in the name of as-sessee's relatives and friends, when in the course of examination of accounts he found that there were credits to the tune of Rs. 48,000/- on 21 different occasions in the name of <NAME> whose full identity was not disclosed and another entry of Rs. 9,000/- as a credit in favour of one <NAME> whose existence was not proved by the assessee and a third item of Rs. 16,000/- in the name of one <NAME>, which alleged borrowing also was not satisfactorily explained. On appeal, the Appellate Assistant Commissioner thought that the fair estimate to be adopted was at the rate of 76, 42 and 50 per cent, for yielding kernel, oil and cake respectively which would make only an addition of Rs. 14,222/- to the profits disclosed by the assessee. Thus, in that behalf the estimate made by the Income-tax Officer was varied by substituting Rs. 14,222/- for Rupees 31,551/-. As regards the other head, the Appellate Assistant Commissioner upheld the addition only to the extent of Rs. 37,400/-. In his opinion, the entries which make up that amount were not satisfactorily explained by the asses sees. The assessee carried a further appeal to the <ORG> but unsuccessfully.

3. If it is urged by Mr. <NAME> in support of this Reference that the Income-tax Officer having made an estimate of the profits of the business For the assessment year upon an examination of the account-books which, as modified by the Appellate Assistant Commissioner, resulted in an addition of Rs. 14,222/- it was not open to him to make an addition of another sum in the name of undisclosed profits; in other words, it was open to the Income-tax authorities to accept either the sum of Rs. 14,222/- or Rupees 37,400/- as the estimated profits of the assessee for the year and not to take into account both the amounts together. If is maintained by him that having rejected the books of account in some respects and made an estimate of the profits he could not add up the cash credits to that estimate. This argument is founded on <NAME> v. Commissioner of Income-tax, B. and O. . We do not think that this ruling is of much assistance to the assessee. In that case, the Income-tax Officer made an estimate of the profits of the business for the assessment year, not having accepted as genuine his books of account. Having done it, he found that some cash credits entered in the books of account were the separate profits of the business. He added this to the income disclosed by the assessee.

He further added another amount as the undisclosed profits of that very business. In that position, <ORG> pointed out that the Income-tax Officer could not add both the sums as the addition was made under the head "business" and this could be justified only if there was material to show that the assessee carried on a different and independent business apart from the business to which its books related and on which it was being assessed.

The facts of this case do not bear any resemblance to the instant case. The Income-tax Officer here has not added the two items under the head of profits made out of the same business as shown in the accounts. The Officer thought that the assessee must have made a gross protit of 10 per cent on the turnover as disclosed in his account-books.

With regard to the other head, he was not prepared to accept the explanation regarding the sources from which the credits were derived and was inclined to view them as profits from undisclosed source. According to him this might have had reference to the business which the assessee carried on outside the books of account. In our opinion, it is certainly open to the income-tax Officer to make these two additions which fell under two distinct heads.

The correct legal position seems to be that if the two additions are traceable to two distinct heads, namely, one attributable to the business acti-vities of the assessee and is thus an undisclosed profit from the known source and the other to profits from an undisclosed source i. e., some profit earning activity of the assessee which is altogether unknown, they are legally sustainable. The postion will be different if the cash credits also were treated as part of the undisclosed profits of the same business. It will not be permissible for him to estimate the gross profits from the business and again to add to it the cash credits shown in the. books in some disguise, as a part of the income oil the same business.

4. The case which is more in point is <NAME>, v, Commissioner of Income-tax. West Bengal, which was cited by the counsel for the assessee. This decision does not render him any assistance on the other hand, it furnishes an answer to the point raised by him. What happened there was this. The books of the assessee disclosed only a gross profit of 4 per cent.

The Income-tax Officer considered this percentage of profits as too low and thought that considerable volume of sale had been suppressed. In that view, he estimated the gross profits at 15 per cent and added a sum of Rs. 5,000/- to assessable income as representing concealed profits of the business. Resides this, he added a further sum of Rs. 32563 which was made up of certain cash credits which were entered in the suspense account of the assessee. The explanation as put in by the partners of the. assessee with regard to the source of the deposits was not accepted by the <ORG> and the Officer concerned came to the conclusion that they were profits made by the firm from undisclosed sources.

5. One of the questions posed before the Bench of <ORG> was whether the Income-tax Officer could add the amount of unexplained cash credits as profits from undisclosed sources when he had already estimated the whole of the undisclosed profits of the business carried on by the assessee. The learned Judges answered it in the affirmative, distinguishing cited on behalf of the assessee since the Income-tax Officer had not, after making an estimate of the profits of the business and making an addition to the und;sclosed book profits, added a further sum 'as undisclosed profits of the same business' as in the <NAME> Case.

They then pointed out the distinction between an undisclosed income from known source and income from an undisclosed source. We do not see how this ruling can be pressed into service by the assessee. A contention similar to the one advanced by the assessee here was rejected by the learned Judges. To the same effect is the judgment of <ORG> in <CITATION> , 1948-16 ITR 254: (AIR 1949 Pat 211). Therefore, even on this ground, the Reference has to be rejected.

6. That apart, there is a very substantial reason for rejecting this Reference. The objection as presented before us was not raised either before the Income-tax Officer or the Appellate Assistant Commissioner. Both the Officers determined the question bearing on the genuineness of these entries. The stand taken before the <ORG> was that certain intangible additions were made in prior years and therefore the present one should be deleted.

This contention was disposed of by the <ORG> by observing that the income of each year should be determined from the materials available (or that year, and that the additions made in prior years related to the income of those years and the additions under consideration bore on the income of the year under consideration and that, therefore, there was absolutely no force in the representative's argument.

The statement in paragraph 8 of the statement of the case that "the assessee's argument that both the credits 'as well as 'deficit yield could not be added was not accepted by the <ORG> for the reason that both were separate and distinct" has to be understood in the context of the observations made by the <ORG> in its order dismissing the appeal. It would not be possible to construe this as meanng that the case of the appellant was presented in the form in which it is done before us and it was negatived, having regard to the fact that it is stated in the statement that "the particulars regarding this are found in the orders of the Income-tax Officer and the Appellate Assistant Commissioner, copies of which are annexures A and B and form part of the case." If, however, that is susceptible of the interpretation sought to be put upon it, it is not of much help to the assessee because it means that the matter had received the attention of the <ORG> and they found as a fact that they represent two distinct sources. Be that as it may, there is no scope for construing it in the manner the counsel for the assessee invites us to do, if that were so no question of law arises to be answered by us. A question of law can be said to arise out of an order of the Appellate <ORG> within the meaning of Section 66(1) of the Indian Income-tax Act. In other words, the order of the <ORG> should disclose that point of law was raised before the <ORG>. If such a question is not raised before, the <ORG>, it cannot be said to arise out of its order even if it could be sustained on the facts in the statement of the case by the <ORG>. There is ample authority for this proposition. <CITATION> , 1947-15 ITR 442; (AIR 1948 Mad 181) and <CITATION> .

7. In the above circumstances, the question is answered in the affirmative and against the assessee. The assessee will pay the costs of the <ORG> which we fix at Rs. 100/-.


JUDGMENT <NAME>, J.

1. These are appeals by <ORG>, <NAME> and <NAME> under Article 134(1)(c) of the Constitution of India from the Judgment and Order of the High Court of Judicature at Nagpur dated 22-8-1952 in Criminal Appeal No. 74 of 1951.

2. <NAME>, a goldsmith by profession and1 leader of one of the two rival factions in the town of Gadarwara (Madhya Pradesh) was shot while returning from a meeting at the ganj (grain market) and walking on the main cement road of the town at a spot in front of one <NAME>'s house, where <NAME> lane meets that road, at about 11 or 11-30 P. M. on 6-4-1950. The night was dark and cloudy and the road had no street lights. He was taken in a tonga to the hospital and after enquiry from him, <NAME> (P. W. 20), his muneem lodged the first information report about this incident at the police station Gadarwara at about 11-45 P. M. Half an hour later, <NAME> (P. W. 5), first class magistrate, recorded <NAME>'s dying declaration, Ex. P-17, which runs as follows:

"Q: Who assaulted you?

A : <NAME>, <NAME>, <NAME> and <NAME> shot me by means of a pistol.

Q: Where were you going?

A: Pratap had called and had taken me to Nakalganj, and struck me on bringing me, in front of the chudiwala.

Q: Who were there?

A: I flashed the torch. All the four individual's were standing.

Q: Had you hostility with these individuals? A: Yes, sir. I had hostility with all. Q: Whoever else was with you? A: I was alone."

After his wound's had been dressed, <NAME> (P. W. 49), Assistant Medical Officer, took him by passenger train to Jubbulpore for admission into <ORG>. <NAME> was operated upon by <NAME> (P. W. 52), Civil Surgeon, on 7-4-1950 and died on the same day. The autopsy showed that there were two pictured wounds on the left side of the mid-auxiliary line which had been caused by shots from a firearm.

3. The three appellants along with two others, viz.., <NAME> and <NAME> were tried by the additional sessions judge, Narsimhapur (Madhya Pradesh) as persons responsible for this murder. <NAME>, <NAME>, <NAME>, <NAME> and <NAME> were charged under Section 120-B, I. P. C., for having entered into a criminal conspiracy at Gadarwara to murder <NAME>. <NAME> was also charged under Section 302, I.P.C . for having in furtherance of the above conspiracy murdered <NAME> by shooting him with a pistol. <NAME> and <NAME> were further charged under Section 302 read with Section 34 , I. P. C. for having acted in concert with <NAME> in the murder of <NAME>. An alternative charge under Section 302 read with Sections 109 and 114 , I.P.C . for abetment of the murder by <NAME> was also framed against them. <NAME> alias <NAME> was given a pardon and he appeared as the first witness for the prosecution.

4. The learned additional sessions judge reached the conclusion that the charge of criminal conspiracy under Section 120-B was not proved. All the appellants were therefore acquitted of this charge. <NAME> was found guilty for the murder of <NAME> and was convicted under Section 302 , I. P. C. and sentenced to death. <NAME> and <NAME> were convicted under Section 302 read with, Section 34 , I. P. C. and each of them was sentenced to transportation for life. <NAME> and <NAME> were acquitted. Against their convictions and sentences the appellants preferred appeals to <ORG> at Nagpur.

The State of Madhya Pradesh presented a petition for enhancement of sentence passed against <NAME> from transportation for life to death. <ORG> by its judgment under appeal altered the conviction of <NAME> under Section 302 , I. P. C., to one under Section 302 read with Section 34 , I. P. C. and sentenced him to the transportation for life. It confirmed the conviction of <NAME> and <NAME> under Section 302 read with Section 34 , I. P, C. and maintained the sentence of transportation for life passed against them.

The petition of the <ORG> for enhancement of <NAME>'s sentence was dismissed.

5. The prosecution case which was based merely on the evidence of the approver is as follows:

6. In the town of Gadarwara, where the deceased and the accused persons lived there were two factions, one of which was led by <NAME> and the other by <NAME>. Since 1948 there had been quarrels between the members of these factions and in 1949 proceedings under Section 107 , Cr. P. C. were taken against both but after some time they were dropped and a settlement was reached between them. The settlement, however, was shortlived as within a few weeks they quarrelled again and some of them abused and beat each other. Security proceedings were again taken against them in March 1950. Some members of <NAME>'s party were bound over, but <NAME> himself and his brother, <NAME>, and two others were discharged. Proceedings against <NAME>, <NAME> and his brother <NAME> were pending, when <NAME> was shot dead on 6th April 1950.

Appellant <NAME> did not belong to either of the factions and he was not involved in the Section 107 proceedings of 1949 or 1950. But it is alleged that in 1948 <NAME>, his sister's grandson, was beaten by <NAME> or by his friend <NAME>, P. W. 42, and that in a gambling quarrel between <NAME> and <NAME>, the former beat <NAME> with a shoe and the latter threatened to see <NAME> killed. In 1949 <NAME> received three anonymous letters which were handed over to the police . The approver <NAME>, is a milkman of Gadarwara and sells pan and bidi. He was originally in <NAME>'s faction and was bound over under Section 107 in March 1950.

It is said that about a fortnight before the murder he demanded two rupees from <NAME>'s brother, <NAME> (P. W. 11), which were due to him for supply of pan and bidi but <NAME> refused to pay and abused him. Upset at this incident, he decided to leave <NAME>'s party and join the opposite faction of <NAME> and <NAME>. As usual with new recruits, he started taking an active part in the meetings of the other faction. Some of these meetings were held at <NAME>'s hotel and the last two at <NAME>'s house. In these meetings it was decided to kill <NAME>. In pursuance of this conspiracy it was settled that <NAME> should be taken behind the ganj and killed there without delay.

<NAME> agreed to go to the ganj where <NAME> was attending a meeting, to call him. He was followed by the other three, to whom he subsequently reported that <NAME> had told him that he would see him on the following morning. <NAME> then hired <NAME>'s tonga and he and his companions went to a place on the main road where <NAME> was expected to pass on his way home from the meeting. They entered a lane and after a few minutes <NAME> went to pee whether <NAME> was coming. He reported that he was on his way flashing a torch from time to time. Shortly after, <NAME> and <NAME> emerged from the lane, while <NAME> and <NAME> remained in it, and <NAME> fired two shots at <NAME> at close range. <NAME> flashed his torch and collapsed. <NAME> fired another shot at him before he and his companions took to flight. Hearing <NAME>'s cries, some persons living in the neighbouring houses came to the spot and heard <NAME> cursing by same persons who he thought were his assailants.

7. The charge of conspiracy under Section 120-B was sought to be established from the direct evidence of the approver <NAME>, P. W. 1, and <NAME> (P. W. 8) and from other circumstantial evidence. The learned sessions judge held that the alleged express and sustained criminal conspiracy as alleged in the charge was not proved. The approver's testimony was rejected as worthless in view of the variety of versions on material particulars of the incident given by him on different occasions. <NAME> was held to be an outright accomplice like <NAME> with the difference that the latter was a pardoned accomplice while the former was not.

The learned sessions judge further held that there was no independent corroboration worth the name even in the circumstantial evidence as to the alleged criminal conspiracy. <ORG> did not file an appeal against the acquittal of the appellants under Section 120-B and the charge, therefore, under Section 120-B must be taken to have failed. While dealing with the approver's evidence, <ORG> observed that it was difficult to discard the whole of the approver's testimony but it did not proceed further to record any positive finding as to the portion of the evidence of the approver it considered trustworthy. In para. 49 of its judgment <ORG> Stated its conclusion in the following terms.

"Our conclusions are, shortly stated, that the material on record showed that <NAME> was shot by a member of, the group which consisted of the appellants and <NAME> but that it did not definitely show that <NAME> was the firer, although it was probable that he was, because of his experience in the use of a firearm and his expressed desire to have his enemy <NAME> shot. His conviction under Section 302 alone of the I. P. C. cannot in the circumstances be sustained; and the appellants' learned counsel contended that as the other appellants and he were acquitted under Section 120-B , they could not now be convicted under Section 302 read with Section 34 . This argument was based on the hypothesis that the acquittal under Section 120-B connoted the applicability of Section 34 , because the facts which resulted in the acquittal under Section' 120-B were the same as those which would render resort to Section 34 unwarranted. This contention, was, as adumbrated, one which would have been readily met, if an appeal against the appellants' acquittal under Section 120-B had been, as it should have been, filed by the <ORG>. We say so, because the case was undoubtedly one in which there had been a conspiracy of the character contemplated by Sub-section (1) of Section 120-B , I. P. C."

In spite of the acquittal of the appellants under Section 120-B , I. P. C., <ORG> by making use of the provisions of Section 34 proceeded to convict the appellants and thus deprive them of the benefit of the acquittal order. It did not accept the evidence that it was <NAME> who fired the shots which resulted in injuries on the person of <NAME>.

8. We are constrained to say that the approver's evidence and the evidence of <NAME>, P. W. 8, having been rejected, there was no justification for the conclusion of <ORG> that this was undoubtedly a case in which there was a conspiracy of the character contemplated by Sub-section (1) of Section 120-B , particularly when the <ORG> had not appealed against the acquittal order. There was nothing in the dying declarations justifying the above conclusion. The charge of criminal conspiracy must thus be taken to have been finally negatived by the judgment of the learned sessions judge.

9. The prosecution produced three witnesses to prove that it was <NAME> who fired the pistol shots which hit <NAME> and which eventually resulted in his death. The first witness on the point was <NAME>, P. W. 1, whose evidence, as we have already said, has been rejected in the courts below. The other two witnesses on this point were <NAME>, P. W. 2, and <NAME>, P. W. 4. <NAME> is the father of the approver <NAME>. The learned sessions judge held that <NAME> and <NAME> witnessed the shooting and that though <NAME> could not identify either the assailant or his one companion there was no reason to disbelieve <NAME> when he said that he identified <NAME> as the person who actually shot <NAME>.

It was further remarked that <NAME> and <NAME>'s statement that the assailant shot <NAME> from the front was not correct, and that the witnesses mistook the respective position of <NAME> and of the assailant at the moment of the firing. On this evidence the learned sessions judge reached the conclusion that <NAME> was actually the person who shot <NAME> and that <NAME> and <NAME> and <NAME> were his companions. Reliance was also placed on the dying declaration which implicated the appellants. It was in view of this finding that <NAME> was held guilty under Section 302 , while the other appellants were held guilty under Section 302 read with Section 34 , I. P. C.

<ORG> on appeal disbelieved the evidence of <NAME> and <NAME> in its entirety. It was said that the testimony of <NAME> even to the limited extent to which the learned trial judge found it acceptable was not worthy of reliance and that it was introduced with the object of showing that the shots had been fired by <NAME> and that his description of what happened emanated from his imagination. As regards <NAME>, it was said that his testimony was equally unsatisfactory. Although in examination-in-chief the witness affirmed that he saw <NAME> shooting <NAME> from the front with a pistol and that <NAME> was behind him, he admitted in cross-examination that he had not recognised these two appellants on that occasion. The firing was not, as stated by him, frontal. The evidence of both these witnesses having been disbelieved, it was concluded that there was no material on the record from which it could be held proved that it was <NAME> who was responsible for firing the shots which hit <NAME>.

10. The only other piece of evidence against the appellants was the dying declaration of <NAME> recorded by the magistrate ' at 12-15 a. m. on 7-4-1950 at the hospital. <ORG> placed reliance on it and held the appellants guilty under Section 302 read with Section 34 , I.P.C . and sentenced them to transportation for life.

11. It was conceded by the learned counsel appearing for the <ORG> that the conviction of the appellants rests only on the evidence furnished by the dying - declarations made by the deceased on different occasions and that if these dying declarations are held unreliable, or it is considered unsafe to convict the appellants on their basis alone, then the decision of <ORG> could not be sustained and has to be reversed. Dr. <NAME> for the appellants contended with great force that the dying declarations on which <ORG> had placed reliance were not only unreliable but were in fact untrue, and it was unsafe to base the convictions of the appellants on the testimony furnished by these declarations.

12. It is settled law that it is not safe to convict an accused person merely on the evidence furnished by a dying declaration without further corroboration because such a statement is not made on oath and is not subject to cross-examination and because the maker of it might be mentally and physically in a state of confusion and might well be drawing upon his imagination while he was making the declaration. It is in this light that the different dying declarations made by the deceased and sought to be proved in the case have to be considered. P. W. 3, <NAME>, and P. W. 7, Narayan-das, gave evidence as to what they heard the deceased exclaiming soon after he was shot. <NAME> stated as follows:

"I rose from my bed and peeped outside from the window. I saw a man sitting on the road in front of <NAME> house and then he lay down on the road and uttered something. He uttered Pratap, Purshotham and he uttered one more name which I could not catch and <NAME> 'Ki bittia chud gai mar dala bachao'.........", The exclamation deposed to does not affix blame on any particular individual for the firing and does not amount to a statement that he had seen anyone firing at him. It may well be that having been suddenly shot at that hour of the night, <NAME>'s first reaction was that nobody else but his arch enemies could have shot him and he cursed them and exclaimed that they had been successful in taking their revenge.

13. <NAME>, P. W. 7, stated as follows: "I rose and sat on my bed from where I could see the road below. I saw that <NAME> was standing on the road about 3'--4' towards its middle from the opposite edge of the road with a hand kept on his belly. I had sat on my bed and seen <NAME> standing on the road just after <NAME> had uttered 'Bachao bachao baimano ne mar dala'. After Uttering the abusive words and the words 'Bachao bachao' I saw <NAME> sit down on the road and later lie down."

This statement again is of a neutral character and does not afford any assistance in the case. All that he uttered was that these dishonest people had killed him. The evidence of these two persons therefore is not of much value in this case.

14. Three witnesses, <NAME> (P. W. 11), <NAME> (P. W. 31), and <NAME> (P. W. 32) gave evidence as regards a statement alleged to have been made to them by the deceased when they came to his help and took him in a tonga to the hospital. <NAME>, P. W. 11, is the brother of the deceased. He said as follows:

"On reaching <NAME> I asked him what happened to him, and where he had gone. He replied that he was returning after the meeting from the <NAME> and that he was treacherously shot by <NAME>. I said who else was with <NAME>. He replied that the accused <NAME>, <NAME> and <NAME> were also with <NAME>."

In cross-examination he admitted having made the statement, Ex. D-20-B, before the police. In that statement he had stated that <NAME> had named four persons as having shot at him.

There he did not say that <NAME> had told him that <NAME> had fired the shots at him. The witness thus improved upon his original statement during the trial. <NAME>, P. W. 31, stated as follows :

"<NAME> caught me with his one hand and said he was killed and stated that <NAME>, Pratap, Purshotham and <NAME> had shot him with a bullet."

He made no mention of the torch being in the hand of <NAME> or at the spot. The third witness <NAME>, P, W. 32, deposed as follows:

"<NAME> asked <NAME> who had hit <NAME> and <NAME> said that 'Mama <NAME>' had shot him with a bullet and he named the accused Mama, <NAME>, Purushotham and <NAME> as having been present together at the shooting."

In cross-examination he admitted having made the statement, Ex. D-39, before the police. He conceded that therein he had not stated that <NAME> had specifically accused <NAME> of firing at him. The learned sessions judge was of the opinion that these witnesses had made improvements in their statements and to that extent they were unreliable. <ORG> made no reference to these statements and did not take into consideration the oral dying declaration of the deceased in arriving at its conclusion. In our opinion, unless one is certain about the exact words uttered by a deceased, no reliance can be placed on verbal statements of witnesses and such oral declarations made by a deceased.

15. A third dying declaration is alleged to have been made by the deceased to his muneem <NAME> (P. W. 20). He said as follows:

"I thus came to the hospital. <NAME> was lying in the verandah of the hospital surrounded by a number of persons. He had injuries on his chest, abdomen and on the buttock and was bleeding from the injuries. His clothes were bloodstained with blood from his injuries. He was however in his senses. I asked him what happened. He said that <NAME>, <NAME>, <NAME> and <NAME> had 'jointly shot him with pistol'."

<NAME>, P. W. 30, also gave evidence about this declaration. The learned sessions Judge accepted this evidence. It was corroborated by the first information made by <NAME> to the police the same night. In the first information report there is a post-script after the words "Same is correctly recorded", in these terms:

"Sunder had stated on seeing, by means of a torch that all the four individuals were seen,"

It was contended by Dr. <NAME> that this sentence was a subsequent interpolation in the report and that there was no satisfactory evidence that <NAME> was in possession of a torch at the time that he was fired at. This torch was not found on the spot or produced before the police on the 6th night or the 7th morning. It was only on the 10th that <NAME> gave it to the police by saying that it had been given to him by some person who was not produced as a witness. Dr. <NAME> argued that the incident took place at about 11-30 p. m. on a dark and cloudy night and that the firing was sudden and that in this situation it was not likely that <NAME> identified his assailants, particularly when the shots were not being fired from the front.

The learned counsel argued that the story of the torch had been introduced in the case in order to make out that <NAME> had some means by which he could identify his assailants on a dark night. Though the learned sessions judge had placed reliance on the testimony of <NAME>, <ORG> did not attach any particular value to his evidence in view of the dying declaration, recorded by the magistrate. As already said above, a dying declaration was recorded by the magistrate at the hospital at 12-15 A. M. and it is on this dying declaration that <ORG> placed considerable reliance.

16. After hearing Dr. <NAME> for the appellants and Mr. <NAME> for <ORG>, we have reached the conclusion that in view of the sudden firing that took place at that hour of the night it was not possible for <NAME> to clearly identify the persons who had fired the shots at him, that in all likelihood the names he mentioned at the time were the result of the reaction on his mind on the occasion. He thought he must have been fired upon by his arch enemies, he cursed them and exclaimed that after all they had succeeded in finishing him. The dying declaration relied upon by <ORG> and recorded by the magistrate on 7th April at 12-15 a. m. does not seem to us to contain a truthful version of what actually happened.

What is stated there is what <NAME> imagined had happened. The first question put to him was: "Who assaulted you?". The answer was "<NAME>, <NAME>, <NAME> and <NAME> shot me by means of a pistol". It is difficult to conceive how four persons could shoot him by means of a single pistol and how he could have actually seen the persons who fired at him with a single pistol. The magistrate in his evidence made it clear that it was "a pistol" with which these four persons were stated to have fired at <NAME>. Mr. <NAME> for <ORG> attempted to argue that what <NAME> was really stating was that each of these four persons had a pistol and four shots were fired at him from four different pistols.

This argument cannot be seriously considered in view of the injuries on the person of <NAME>. It is quite contrary to the case as set out by the prosecution in court. <NAME> seems to have made this vague statement because he had not in fact seen who had fired at him. He merely thought that nobody else but these four persons could have fired at him and he therefore made this statement in the vague form in which it is recorded. The answer to the second question put to him cuts at the very root of the prosecution case. The question was: "Where were you going?". The answer was:

"Pratap had called and had taken me to Nakalganj, and struck me on bringing me, in front of the chudiwala."

This answer suggests that <NAME>, appellant, took him to Nakal Ganj and Struck him in front of the chudiwala, i.e., at the place where the occurrence took place. As we have already said, this is wholly contrary to the story of the prosecution and the case that it set out to prove. <ORG> thought that <NAME> made some mistake in answering this question. There is no warrant for such a suggestion. In the case of a dying declaration where the exact words stated by a deceased matter and are of importance, a suggestion of the kind that the deceased might have said something by a mistake cannot be entertained.

The third question was: "Who were there ", and the answer was: "I flashed the torch. All the four individuals were standing." This answer seems to have been given in order to make out that he really was able to see his assailants, This answer does not carry conviction in view of the circumstances of the case. It is in evidence that five or six persons were surrounding <NAME> when he was answering the questions and the answers seem to be the result of declarations and advice of those persons and given under their influence.

17. In our judgment, <ORG> was in error in basing the conviction of the appellants much on the uncorroborated dying declaration of the deceased recorded by the magistrate and which was not only vague but which admittedly did not at all events represent the whole truth.

18. The further contention of Dr. <NAME> that <ORG> was in error in holding that the provisions of Section 34 were attracted to the facts of the case is also well founded. There is no evidence whatsoever of any premeditation or of a prearranged plan by the assailants of <NAME> <NAME>. The conclusions of <ORG> in para. 53 of its judgment seem to be based more on conjectures than on admissible material. No act or conduct on the part of the accused has been proved from which an inference of a prearranged plan to murder <NAME> could be raised.

Even if it is held proved that all the appellants were seen at that spot at the time of firing this fact by itself could not be held enough to prove a common intention of the appellants to murder <NAME>. It can well be that these four persons were standing together and one of them suddenly seeing <NAME> fired at him. This possibility has not been eliminated by any evidence on the record. In such a situation when it would not be known who fired the fatal shot, none of such persons could be convicted of murder under Section 302 , I. P. C. It seems to us that in this case <ORG> failed to appreciate the true effect of the decision of <ORG> in--' <CITATION> ', AIR 1945 PC 118 (A), and its judgment in regard to the applicability of Section 34 , I. P. C. has to be reversed.

19. We are also of the opinion that the evidence as to conspiracy under Section 120-B , I. P. C, having been rejected, the same evidence could not be used for finding a common intention proved under Section 34 , I. P. C.

20. The result is that there is no satisfactory evidence for concluding positively that the three appellants were responsible for the murder of <NAME>, though it may be that they were behind this murder. At best the matter is in doubt, and they are entitled to the benefit of that doubt. We therefore allow all these appeals, set aside the convictions of all the appellants and direct that they be acquitted.