judgement:
No. 3130 of 1981.
(Under Article 32 of the Constitution of India).
Soli J. Sorabjee, Harish N. Salve, K.K. Patel, Ujwal Rana, Rajiv Dutta and K.K. Mohan for the Petitioners.
369 K. Parasaran, Attorney General, B. Datta, Additional Solicitor General, Kuldip Singh, Additional Solicitor Gener al, Ms. A. Subhashini, C.V. Subba Rao, Mrs. Sushma Suri, A. Subba Rao, A.K. Srivastava and P.P. Singh for the Respond ents.
The Judgment of the Court was delivered by PATHAK, CJ.
By this writ petition under article 32 of the Constitution the petitioners seek relief against the imposi tion of customs duty at 150 per cent on their import of edible oils into India.
The petitioners entered into a contract with foreign sellers for the supply of edible oils.
The consignment of edible oils was sent by the ocean going vessel M.V. Kotta Ratu.
The vessel approached Bombay and made its "prior entry" on 4 July, 1981.
It actually arrived and registered in the Port of Bombay on 11 July, 1981.
The petitioners say that the Port authorities at Bombay were unable to allot a berth to the vessel, and as she was under heavy pressure from the parties whose goods she was carrying she left Bombay for Karachi for unloading other cargo intended for that port.
It is alleged that the vessel set out on its return journey from Karachi and arrived in the Port of Bombay on 23 July, 1981 and waited for a berth.
On 4 August, 1981 she was allowed to berth in Princess Docks 'C ' Shed and the Customs Authorities made the "final entry" on that date.
The petitioners point out that when the vessel made its original journey to Bombay and was waiting in the waters of the Port the petitioners presented the Bill of Entry to the Customs authorities on 9 July, 1981, that the Bill of Entry was accepted by the Import Department and an order was passed by the Customs Officer on the Bill of Entry on 18 July, 1981 directing the examination of the consignment.
It is stated that the Customs authorities have imposed customs duty on the import of the edible oils effected by the petitioners at the rate of 150 per cent on the footing that the import was made on 31 July, 1981, the date of "Inward Entry".
The case of the petitioners is that the rate of duty leviable on the import should be that ruling on 11 July, 198 1, when the vessel actually arrived and registered in the Port of Bombay, and that but for the fact that a berth was not available the vessel would have discharged its cargo at Bombay, and would not have left that Port and proceeded to Karachi to return to Bombay towards the end of July, 1981.
Alternatively, the case of the petitioners is that if it be found that the rate of customs duty attracted by the import effected by the petitioners is 150 per cent the levy is unconstitutional 370 and void as a violation of article 14 of the Constitution inasmuch as customs duty at 5 per cent only was levied on the State Trading Corporation on similar Imports of edible oils made by it as an importer.
The petitioners have also challenged the validity of section 15 of the Customs Act, 1961 under which the rate of duty and tariff valuation is deter mined.
To resolve the issue between the parties it is necessary to ascertain the effective date with reference to which customs duty becomes payable on imports into India.
Section 15(1) of the provides: "(1) The rate of duty and tariff valuation, if any, applicable to any imported goods, shall be the rate and valuation in force , (a) in the case of goods entered for home consumption under section 46, on the date on which a bill of entry in respect of such goods is presented under that section; (b) in the case of goods cleared from a warehouse under section 68, on the date on which the goods are actually removed from the warehouse; (c) in the case of any other goods, on the date of payment of duty: Provided that if a bill of entry has been presented before the date of entry in wards of the vessel by which the goods are imported, the bill of entry shall be deemed to have been presented on the date of such entry inwards.
" The rate of duty and tariff valuation applicable to the imported goods is governed by cl.
(a) of section 15(1).
In the case of goods entered for home consumption under section 46, it is the date on which the Bill of Entry in respect of such goods is presented under that section.
section 46 provides that the importer of any goods shall make entry thereof by pre senting to the proper officer a Bill of Entry for home consumption in the prescribed form, and it is further pro vided that a Bill of Entry may be presented at any time after delivery of the Import Manifest or an Import report.
The Bill of Entry may be presented even before the delivery of such Manifest if the vessel by which the goods have been 371 shipped for importation into India is expected to arrive within a week from the date of such presentation.
Section 47 empowers the proper officer, on being satisfied that the goods entered for home consumption are not prohibited goods and that the importers had paid the import duty assessed thereon as well as charges in respect of the same, to make an order permitting clearance of the goods for home consump tion.
According to the petitioners, the cargo of edible oil could not be unloaded in Bombay during the original entry of the ship into the Port for want of an available berth, and it is for no fault of the petitioners that the vessel had to proceed to Karachi for unloading other cargo.
Section 15, the petitioners contend, is arbitrary and vague and there fore unconstitutional because it provides no definite stand ard or norm for determining the rate of duty and tariff valuation and does not take into account situation which are uncertain and beyond the control of an importer.
The peti tioners contend that the rate of customs duty chargeable on the import of goods in India is the rate in force on the date when the vessel carrying the goods enters the territo rial waters of India.
The petitioners point out that section 12(1) declares that customs .duty will be levied at the rates in force on goods imported into India, and the expres sion 'India ', they urge, is defined by section 2(27) as including the 'territorial waters of India '.
In other words, the petitioners contend that when the vessel entered the terri torial waters on 11 July, 1981 the rate of customs duty at 12.5 per cent ruling on that date was the rate which was attracted to the import.
In any event, the petitioners contend, the rate should not have been more than 42.5 per cent because that was the rate of customs duty ruling on 23 July, 1981 when the vessel entered the port of Bombay.
To preserve the validity of section 15 the petitioners urge, we must read the expression "the date of entry inwards" in the proviso to section 15(1) as the date on which the vessel enters the territorial waters of India.
Learned counsel for the petitioners says that if this interpretation cannot reasona bly be given to the provisions of section 15(1) then it becomes necessary to question the constitutional validity of section 15 on the ground that the terms of that section are vague and arbitrary, and therefore no recourse can be had to section 15(1).
Considerable reliance has been placed by the peti tioner on Shawney vs M/s. Sylvania and Laxman Ltd., 77 Bom.
L.R. 380 in support of the submission that the taxable event occurs when the vessel enters the territorial waters of India and it is that date which should determine the rate at which import duty can be levied.
It is desirable, 372 we think, to appreciate what was said in that case.
The Bombay High Court held there that the date on which the vessel enters the territorial waters is the relevant date for determining whether the import of goods carried by it falls within the scope of the .
If the import of the goods is exempt from the operation of the Act on that date, the learned Judges said, the provisions of section 15 of the Act will not come into play, and therefore the import will be free from duty.
A distinction was made between a case where the import of goods stands exempted on the date when the vessel enters the territorial waters of India and a case where the import falls within the operation of the Act on that date but the duty is rated at nil or at a certain figure.
The distinction was discussed by a Full Bench of the Bombay High Court in Apar Private Ltd. and Others vs Union of India and others, where Madhava Reddy, C.J., speaking for the Court, observed: "If the goods were wholly exempt from basic customs duty leviable under the , when they entered the territorial waters of India, no basic duty of customs would be leviable thereon even if such exemption were withdrawn under Section 25(1) of the before the goods are releasedfor home c o n s u m p t i o n . . . . . .
. . . . . . . . .Only if the goods were chargeable to some basic customs duty under the , when they entered the territorial waters of India, than the rates in force at the time when the bill of entry is presented or at the time when the goods are sought to be cleared for home con sumption, as the case may be, would be ap plicable and the basic duty would be quanti fied and demanded at those rates." And in Jain Shudh Vanaspati Limited vs S.R. Patankar, Asstt.
Collector of Customs, Bombay and Others, the Bombay High Court proceeded on the basis that where the imported goods were totally exempt from payment of customs duty on the date when the vessel entered the terri torial waters of India, the taxable event was not postponed to the date when the goods were cleared for human consump tion.
In the present case.
there is no dispute that on the date when the vessel first entered the territorial waters of India by July, 198 1 the rate of customs duty was 12.5% on the import of the goods in question and thereafter when the vessel returned from Karachi and entered the 373 territorial waters of India the rate of duty was 42.5%.
We express no opinion on the soundness of the view taken by the Bombay High Court in the cases mentioned above; it is sufficient to point out that on the facts they afford no assistance to the petitioners.
The rate of duty and tariff valuation has to be deter mined in accordance with section 15(1) of the .
Under section 15(1)(a), the rate and valuation is the rate and valua tion in force on the date on which the Bill of Entry is presented under section 46.
According to the proviso, however, if the Bill of Entry has been presented before the entry in wards of the vessel by which the goods are imported, the Bill of Entry shall be deemed to have been presented on the date of such entry inwards.
In the present case the Bill of Entry was presented on 9 July, 1981.
What is "the date of entry inwards" of the vessel? We may refer to the detailed procedure in this matter set forth in the counteraffidavit of Shri R.S. Siddhu, then under Secretary to the Government of India.
Before the arrival of the vessel the Master of the vessel or his Agent informs the Port authorities and the Customs authorities of the probable date of arrival of the vessel.
This information is technically known as presenta tion of the Import General Manifest.
In this Manifest the Master intimates the details with regard to the cargo car ried by the vessel.
In the instant case the Manifest was conveyed by the Steamer Agent on 6 July, 1981 by his letter No. IM/394/81/1116.
Admittedly this intimation or presenta tion of the Manifest on 6 July, 1981 was prior to the arriv al of the vessel.
The presentation of the Manifest can be effected either before the arrival of the vessel or after its arrival in the usual course.
In the forwarding letter dated 6 July, 1981 mentioned above, the Shipping Agent informed the authorities that the ship would be arriving at Bombay 12 July, 1981.
According to the normal procedure, if the intimation or presentation of the Manifest is made on the arrival of the vessel it is accompanied by an applica tion for Entry Inward within 24 hours of arrival.
In the instant case since the vessel was to arrive later there was no application accompanying the letter dated 6 July, 1981.
The vessel arrived on 11 July, 1981.
On receipt of the Manifest a "prior entry" is made in the Register, which is called the Register of Inward/Outward Entry of vessels.
Upon the recording of the "prior entry" a rotation number is given and conveyed to the Shipping Agent or the Master of the vessel.
In the instant case the "prior entry" or rota tion number allotted was 743/PE.
The Customs authorities display daily, on receipt of the Import General 374 Manifests, the details of the vessels on a notice board for the information of importers.
On noticing the arrival or expected arrival of the vessel from the Import General Manifest the importer or his clearing agent files his Bill of Entry.
In this case the Bill of Entry was filed on 9 July, 1981.
An entry with regard to presentation of the Bill of Entry is made in the Import General Manifest against the entry with regard to the consignment belonging to the im porter.
The procedure thereafter is as follows.
A vessel on arrival in the territorial waters has to await the allotment of a berth by the Port Trust.
The Port Trust authorities, on receipt of information about the arrival of a ship, allot a berth, if it is available, for the discharge of the cargo.
In the instant case, since no berth was available, the vessel left for Karachi to dis charge the cargo meant for that Port.
The vessel arrived at Bombay on 23 July, 1981.
Before its arrival, the Steamer Agent had presented a supplementary Manifest on 18 July, 1981 under cover of his letter No. IM/394/81/ 1223.
The "prior entry" made earlier in the Register of Inward Entry remained the same and the rotation number also continued to remain the same.
Against the rotation No. 743 in column No. 3 of the Register of Inward Entry the date of the arrival of the vessel was indicated as 23 July, 1981, and in column No. 2 the date of Inward Entry was mentioned as 31 July, 1981.
On 30 July, 1981 the Master of the vessel had made a decla ration certifying that the vessel could discharge its cargo on 31 July, 1981, and it is on this basis that the Customs authorities granted the Entry Inward to the vessel for the purposes of discharging its cargo.
It is urged on behalf of the petitioners that the import of the goods must be deemed to have taken place on '11 July, 1981, when the ship originally arrived in Bombay Port and registered itself.
The rate of customs duty prevailing on that date was 12.5 per cent, and that, learned counsel contends, should be the rate applicable to the edible oil consignment under section 15 of the Act.
The circumstance that the vessel was unable to secure a berth in the Port of Bombay compelled it to proceed to Karachi to discharge the cargo pertaining to that Port, and but for the non avail ability of the berth she would not have undertaken that voyage but would have continued in Bombay and discharged the edible oil consignment there.
The customs duty which could have been levied then would have been 12.5 per cent.
It is pointed out that the vessel was unable to do so for no fault of the petitioners and a reasonable construction must be given to section 15 taking 375 into account the particular circumstances of the case, so that the vessel must be deemed to have made the "Entry Inwards" on 11 July, 1981.
We do not find it possible to accept this submission.
The provisions of section 15 are clear in themselves.
The date on which a Bill of Entry is presented under section 46 is, in the case of goods entered for home con sumption, the date relevant for determining the rate of duty and tariff valuation.
Where the Bill of Entry is presented before the date of Entry Inwards of the vessel, the Bill of Entry is deemed to have been presented on the date of such Entry Inwards.
In M/s. Omega Insulated Cable Co., (India) Limited vs The Collector of Customs, Madras, Writ Appeal No. 537 of 1969 decided by the Hon 'ble Kailasam and Paul, JJ.
on 9 July, 1975 the Madras High Court addressed itself to the question whether the words in section 15(1)(a) of the Act, viz. "date of entry inwards of the vessel by which the goods are imported" mean "the actual entry of the vessel inwards or the date of entry in the register kept by the department permitting the entry inwards of the vessel." The learned Judges examined the corresponding provisions of the earlier statute and after comparing the provisions of section 15 with those of section 16 of the , and the amendments made from time to time, held that the date of entry inward for the purpose of section 15(1)(a) and the proviso thereto is the date when the entry is made in the Customs register.
We have considered the matter carefully and given due heed to the submissions of learned counsel for the petition ers rounded, inter alia, on the provisions of the Sea Cus toms Act and the amendment made in section 16 of the and we are of opinion that the view taken by the Madras High Court in M/s. Omega Insulated Cable Co. Ltd., (supra) repre sents the correct view.
The amendment made in section 16 of the Act appears to have been made by way of clarification and, in our opinion, does not detract from the conclusion that "the date of entry inwards of the vessel" is the date re corded as such in the Customs register.
In the present case, "the date of inwards entry" is mentioned as 31 July, 1981.1n the absence of anything else, we may take it that the entry was recorded on the date itself.
Accordingly, the rate of import duty and the tariff valuation shall be that in force on 31 July, 1981.
The contention of the petitioners that the rate of import duty and tariff valuation will be that ruling on 11 July, 1981 cannot be sustained and is rejected.
As to the question whether section 15 of the is ultra vires on the ground that arbitrary discretion has been conferred on the 376 customs authorities in the matter of determining the date of inward entry, it seems to us that having regard to the procedure detailed above there is no scope for the submis sion that the provision is invalid.
An entire series of consecutive acts makes up the procedure, and it is reasona ble to presume that each step in the series is completed on time.
In that view of the matter, the challenge to the validity of section 15 must fail.
It is true that an amendment has been made in section 16 in the case of the export of goods, and the rate of duty and tariff valuation applicable to export goods are now specifically referable to "the date on which the proper officer makes an order permitting clearance and loading of the goods for exportation", and it is appar ent that no such amendment has been made in the provisions of section 15.
The omission, it seems to us, is of no consequence when the procedure outlined above is being followed regular ly and consistently.
There is nothing before us to show that in following the procedure the Customs authorities act arbitrarily.
Accordingly, we are of opinion that the claim made by the petitioners must be rejected.
Finally, there remains the contention of the petitioners that the differential treatment meted out to the petitioners by the imposition of a rate of 150 per cent constitutes a violation of Article 14 of the Constitution on the ground that the rate applied to corresponding imports by the State Trading Corporation is 5 per cent only.
This point has already been considered by us, and the contention has been rejected, in our judgment in M. Jhangir Bhatusha etc.
vs Union of India & Ors. etc.
; , pronounced today.
The Writ Petition is dismissed with costs.
R.N.J. Petition dismissed.

summary:
By way of writ petition under Article 32 of the Consti tution the petitioners sought relief against the imposition of customs duty at 150 per cent on their import of edible oils into India.
Pursuant to the contract entered into by the petitioners with foreign sellers for the supply of edible oils the consignment of edible oils was sent by the ocean going vessel M.V. Kotta Ratu.
The vessel approached Bombay and made its "prior entry" on 4 July, 1981.
It actu ally arrived and registered on 11 July, 1981.
As the port authorities at Bombay were unable to allot a berth to the vessel, the vessel left for Karachi for unloading other cargo intended for that port.
The vessel returned on 23 July 1981 and waited for berth.
On August 4, 1981 she was allowed to berth in Princess Docks 'C ' shed and the Customs authori ties made the "final entry" on that date.
Customs authorities are stated to have imposed duty on the import of edible oil at the rate of 150 per cent on the footing that the import was made on 31 July, 1981, the date of "Inward Entry".
The case of the petitioners was that the rate of duty leviable on the imports should be that ruling on 11 July, 1981, when the vessel actually arrived and registered in the Port Bombay and that but for the fact that berth was not available the vessel would have discharged its cargo at Bombay and would have been liable to pay customs duty at the rate of 12.5% which was the ruling rate on that date i.e., 11 July, 1981.
The petitioners contended that the rate should not have been more than 42.5% because that was the rate of customs duty ruling on 23 July, 1981 when the vessel entered the port of Bombay.
The Court rejecting the claim of petitioners, 368 HELD: The rate of duty and tariff valuation has to be determined in accordance with section 15(1) of the Customs Act.
Under section 15(1)(a), the rate and valuation is the rate and valuation in force on the date on which the Bill of Entry is presented u/s 46.
According to the proviso, however, if the Bill of Entry has been presented before the entry inwards of the vessel by which the goods are imported, the Bill of Entry shall be deemed to have been presented on the date of such entry inwards.
[373B C] The date on which a Bill Entry is presented under section 46 is, in the case of goods entered for home consumption, the date relevant for determining the rate of duty and tariff valuation.
Where the Bill of Entry is presented before the date of Entry Inwards of the Vessel, the Bill of Entry is deemed to have been presented on the date of such Entry Inwards.
[375B] The amendment made in section 16 of the Act appears to have been made by way of clarification and does not detract from the conclusion that "the date of entry inwards of the ves sel" is the date recorded as such in the Customs register.
[375F] In the present case, "the date of inwards entry" is mentioned as 31st July, 1981.
In the absence of anything else, it may be taken that the entry was recorded on that date itself.
Accordingly, the rate of import duty and the tariff valuation shall be that in force on 31st July 1981.
The contention of the petitioners that the rate of import duty and tariff valuation will be that ruling on July 11, 1981 cannot be sustained and is rejected.
[375G] (1)Shawney vs M/s. Sylvania & Laxman Ltd., 77 Bom.
L.R. 380; (2) Apar Private Ltd. & Ors.
vs Union of India & Ors., 185 ; (3) Jain Shudh Vanaspati Ltd. vs S.R. Patankar, Asstt.
Collector of Customs, Bombay & Ors., ; (4) M/s.
Omega Insulated Cable Co., (India) Ltd. vs The Collector of Customs, Madras, approved.
Writ Appeal No. 537 of 1969 decided by the Hon 'ble Kailasam and Paul, JJ.
on 9 July, 1975, referred to.


judgement:
Criminal Appeal No. 75 of 1979.
From the Judgment and Order dated 6.2.
1976 of the Bombay High Court in Criminal Appeal No. 636 of 1973.
Raghunath Singh (Amicus Curiae) for the Appellant.
A.S. Bhasme and A.M. Khanwilkar for the Respondents.
The Judgment of the Court was delivered by KULDIP SINGH, J.
The appellant, Shivaji Patil was ac quitted by the Additional Sessions Judge, Kolhapur of the charge under Section 302, Indian Penal Code for committing murder of one Tulashiram Sutar, but on appeal the High Court by its judgment dated February 6, 1976 set aside the order of acquittal and convicted him under section 302 of the Indian Penal Code and sentenced him to imprisonment for life.
The house of deceased Tulashiram in Village Rashivade adjoins the temple of Shri Ambabai and in front of the temple, there is open place.
The deceased along with his wife Parvatibai, two children and parents was living in the house.
Cousin brothers of the deceased and their mother were living in the adjoining house.
Vyanku Sutar belonging to the brother hood of deceased was also living in the same village.
The deceased had illic it relation with Vyanku 's wife Akkatai.
Parvatibai claimed to have caught them in the sex act in sugarcane fields.
The accused Shivaji and Vyanku were friends.
On January 30,1972 at about 7 or 7.30 P.M. Tulashiram returned to the house after performing his role described as "Sasankathi" in the festival of "Mahi Poornima".
In the house Parvatibai, her mother in law Tanubai, her husband 's sister Malutai, 402 and her husband 's cousin brother 's wife Shalubai, were present.
The male members, namely, deceased 's father Pandu rang Sutar, his brother Soundappa and servant named Shama had gone to another village called Kote.
Tulashiram asked his mother Tanubai to prepare tea and thereafter he went out and sat on the foot steps of the temple at a distance of about 15 to 20 feet from the house.
What followed can best be reproduced in words of Parvat ibai as P.W. 3 at the trial: "After the tea was ready, I started going out of the house to call for my husband, when I went to the front door of my house, I saw the accused Shivaji hitting my husband with a stick on his head and running away.
I saw him running in the direction of the by lane.
I saw my husband failing down from the steps and lying on the ground near the "Deepmal".
I saw him rubbing his feet on the ground in agony and blood was coming from the injury on his head.
I could see this in the light of the tube light.
I went near my husband and started calling him.
He could not speak.
Hence, I raise a hue and cry and my mother in law and sister in law Malubai and Shalibai and Vishnu Patil came there.
I did not see anybody else nearby then as I was busy attending to my husband.
My husband had become unconscious due to the head injuries and froth had come out of his mouth.
Myself, Vishnu Patil and sister in law bodily lifted my husband and took him to the house . .
Somebody went and brought a local doctor named Jayant Patil.
The doctor came there, examined and treated my husband and advised him to be removed to his dispen sary.
My husband was accordingly taken there, but I did not go, as my small children were crying and I was prevented from going there.
My children had frightened.
In the morning next day, I came to know that my husband was removed to C.P.R. Hospital at Kolhapur.
Hence in the morning, myself my mother in law and others went to Kolhapur by Yelavade Kolhapur Bus reaching there at about 8.30 A.M.
When we reached the C.P.R. Hospital my brother in law came there crying saying that my husband had overnight succumbed to his injuries.
Hence myself and my mother in law started crying and shouting.
Hence some villagers brought a taxi, we were 403 asked to sit in the taxi and we were taken to Rashivade even without showing the dead body to us.
We reached Rashivade at about 11 A.M.
After reaching home, we were crying in agony and our house became full with females and I did not notice who others had come there." Vishnu Patil deposed that he was returning from his sugarcane crushing site and while passing by the temple he found deceased Tulashiram lying injured in front of the steps of the temple and his wife was crying nearby.
At a distance of about 5 or 6 feet from there, he saw Nana Patil and asked him what was the matter.
Nana Patil replied that he did not know anything.
Vishnu Patil asked Nana Patil to call the doctor.
Jaywant Patil a private practitioner reached the house of the deceased and on his advice the deceased was removed to the dispensary.
When for two hours, Tulashiram did not regain consciousness, Dr.
Patil at about 11/12 P.M. took him to the hospital at Kolhapur in his own car.
Patil at the trial stated that Tanubai said to him and also gave in writing (exhibit 26) to the effect that she had no complaint against anybody.
The prosecution produced P.W. 3 Parvatibai, P.W. 9 Krishan Wadkar, P.W. 10 Shankar Patil, P.W. 11 Krishna Sadashiv Patil and P.W. 12 Nanu Patil, all eye witnesses.
Except P.W. 3 Parvatibai all other eye witnesses were de clared hostile.
The prosecution case, thus, hinges on the sole testimony of Parvatibai.
Parvatibai has deposed that she saw on the evening of January 30, 1972, Shivaji Patil hitting her husband with a stick.
Admittedly her mother in law, her two sisters in law and Shivaji Patil came present on the spot immediately thereafter.
Parvatibai did not disclose the name of the assailant to them or to anybody else.
Rather Dr. Patil who came to the house little later was told by Tanubai that the family did not suspect anybody.
Vishnu Patil stated at the trial that nobody informed him about the accused or any other person who gave injuries to the deceased.
The Police Patil in his report dated 31.1.1972 stated that at 10.30 A.M. on that day he went to the house of deceased.
The father of the deceased, an uncle and a distant relation were present in the house.
The Police Patil asked them about the incident.
They replied that they had no knowledge about the incident as they were not present in the house at the time of occurrence.
The Police Patil further says that while he was present in the house a taxi came from Kolhapur and the 404 mother and wife of Tulashiram deceased got down from the taxi.
The Police Patil questioned the ladies as to how Tulashiram was injured.
The ladies were not prepared to talk and no information regarding the alleged occurrence was given to him.
He made further enquiries from other people but nobody gave him any information regarding the assail ants.
On the basis of the Police Patil 's report a case was registered at police station Rachanagari wherein it was mentioned that the cause of death of Tulashiram was not known.
Head constable B.S. Patharvat sent a complaint on 1st of February, 1972 wherein he stated that he came to know about the incident on the morning of 31st of January, 1972 and he went to the house of Tulashiram at about 10/11 A.M. and asked the in mates about the occurrence but nobody gave him any information.
He again went to the house of Tulashiram deceased on 1st of February, 1972 and recorded the statement of Parvatibai.
She stated that when she came to the front door she saw Shivaji Patil running with a stick from near about her husband.
She said that the relations between her husband and Vyanku were not good and Shivaji Patil and Nana Patil were friends of Vyanku Sutar.
She further stated that Vyanku Sutar, Shivaji Patil and Nana Patil made company and assaulted her husband.
On the basis of the statement of Parvatibai the head constable sent the complaint for regis tering the case against Vyanku Sutar, Shivaji Patil and Nana Patil under sections 302/34, IPC, though ultimately charge was filed by police only against Shivaji Patil.
The question for consideration is as to why was Parvati bai mum from 30.1.1972 to 1.2.
1972? The High Court felt satisfied by saying that she was in a dazed mood.
We do not agree with the High Court.
Parvatibai 's conduct was highly unnatural.
A wife, who has seen an assailant giving fatal blows with a stick to her husband, would name the assailant to all present and to the police at an earliest opportunity.
There is nothing in the evidence to justify this highly unnatural and improbable conduct of Parvatibai.
Even on 1.2.
1972 the statement of Parvatibai recorded by police head constable is entirely different than what she stated at the trial.
The prosecution has, thus, not been able to prove its case against the appellant beyond reasonable doubt.
We, therefore, give benefit of doubt to the appellant and accept the appeal.
The judgment of the High Court is set aside and the appellant is acquitted of the charge under section 302, IPC.
The appellant is on bail and as such his bail bond is cancelled.
N.P.V. Appeal allowed.

dataset_name: IN-Abs

summary:
The appellant was charged under Section 302 I.P.C. for committing the murder of the deceased.
At the trial, prose cution produced P.W.3, wife of the deceased, and P.Ws.10, 11 and 12, all eye witnesses.
Except for P.W.3, all other eye witnesses were declared hostile.
Thus, the prosecution depended on the sole testimony of P.W.3. P.W.3 deposed that she saw the appellant hitting her husband with a stick.
But admittedly, she did not disclose the name of the appellant to anybody including the Police.
The doctor, who came to the house of the deceased little later, examined and treated the deceased and removed him to the hospital deposed that he was told by the mother of the deceased that the family did not suspect anybody.
Another witness who was passing by the scene of occurrence also testified that nobody informed him about the appellant or any other person, who injured the deceased.
The Additional Sessions Judge acquitted the appellant.
But, on appeal, the High Court, set aside the acquittal order, and convicted and sentenced the appellant to impris onment for life.
Hence, the appeal by the accused.
Allowing the appeal, this Court, HELD: The conduct of the deceased 's wife was highly unnatural.
A wife, who has seen an assailant giving fatal blows with a stick to her husband, would name the assailant to all present and to the police at an earliest opportunity.
There is nothing in the evidence to justify this highly unnatural and improbable conduct of the deceased 's wife.
Even her statement recorded by police head constable, is entirely different than what she stated at the trial.
The prosecution has, thus, not 401 been able to prove its case against the appellant beyond reasonable doubt.
[404F G] Therefore, the appellant is given benefit of doubt, the judgment of the High Court is set aside, and the appellant is acquitted of the charge under section 302, IPC.
[404H]


judgement:
vil Appeal No. 601213 of 1983.
From the Judgment and Order dated 31.1.1983 of the Punjab & Haryana High Court in C.R.S.A. No. 1871 of 1975 and R.S.A. No. 16 11 of 1980.
Shiv Dayal Srivastava, S.K. Bagga and Mrs. Bagga for the Appellant.
Kapil Sibal, section Markandeya, Mrs. C. Markandeya, O.P. Ahluwalia, G. Seshagiri Rao and Km.
U. Saraswat for the Respondents.
The Judgment of the Court was delivered by OZA, J.
This appeal arises out of a judgment of the Punjab & Haryana High Court delivered in Civil Regular Second Appeal No. 187 1 of 1975 dated 31.12.1983.
This second appeal before the High Court of Punjab & Haryana was taken against the judgment of Additional Dis trict Judge, Patiala 386 who affirming the judgment of the trial Court i.e., sub Judge 1st class, Rajpura, maintained the dismissal of the suit filed by the plaintiffpresent appellant.
The suit was filed for a declaration that the appellant plaintiff is the owner in possession of agricultural lands measuring 100 Bighas 10 Biswas comprising Khasra Nos.
54 1 2 3 8/3 9 11 19/2, 55 3 4 5 67 15, 55/16, 20 situated in village Urdan, Tehsil Rajpura with the consequential relief of permanent injunction restraining the defendant from interfering with the possession of the plaintiff and dispossession thereof in any manner.
The appellant Pujari Bai, it is alleged, migrated from Pakistan in 1947 after the partition of the country and she left behind in Pakistan a large areas of agricultural land.
In 1949 Government in order to settle such refugees adopted certain measures and gave land to the displaced persons for the purpose of cultivation.
The displaced persons claims were examined by the claims organisation set up by the East Punjab Government at some places and the lands were given individually to those who had left behind agricultural lands in the West Punjab which become Pakistan after 1947.
As Smt.
Pujari Bai, was one of such claimants, she was allotted certain lands in village Urdan.
On 29.12.1962 allotment made was quasi permanent in character, but on 29.4.1963 the lands were transferred to her permanently.
The transfer was right, title and interest in ownership by a Sanad issued in the name of the President (the Central Government) under Rule 69 of the Displaced Persons (Compensation & Rehabilitation) Rules, 1954.
This was the basis of her claim.
It appears that the defendant respondent had also migrated from Pakistan like the appellant and on 29.12.1959 some lands were also allotted to him but no entry could be made in the revenue record and it was not certain whether possession was taken by the respondent.
On 29.6.1960 during the consolidation proceedings, no tuk was however, made for the respondent.
He filed objections and to these objections Pujari Bai was not a party.
The objections were rejected.
It appears that against this order he appealed to the Appellate Authority The Settlement Officer (Appeals) and this appeal also was dismissed.
He took up the matter in second appeal to the Assistant Director Consolidation of Holdings who remanded the matter to the Special Settlement Officer with certain observations.
He observed "that there have been over allotment and authorities will see that first allottee is given land first".
He also observed that it all happened 387 because of the mistake of the Consolidation authorities.
This order was passed on 2.12.1963.
In spite of this remand order made by the Assistant Director Consolidation, nothing happened for about three years.
In 1966 the respondent filed a writ petition before the High Court of Punjab & Haryana.
Even to this writ peti tion the present appellant Pujari Bai was not a party.
In this writ petition a direction was sought to implement the aforesaid order of the Assistant Director Consolidation.
The High Court by the order dated 25.11.1966 directed that the observations contained in the order passed by the Assistant Director should be complied with.
After the direction of the High Court the Consolidation Officer became active.
He started enforcing the observations contained in the remand order of the Assistant Director and in so doing, he found that the land allotted to various persons in the village was more than the land available for allotment.
In order to resolve this difficulty he evolved a via media.
He deprived some of the allottees of the part of land allotted to them, and the appellant was one such casu alty.
He allotted all such lands to the respondent and it is this which was the starting point of the trouble.
It is, however, significant to note that before this order was passed by the Consolidation Officer so far as the appellant is concerned she had already obtained a permanent Sanad in respect of her lands from the Government of India.
Against the order of the Consolidation Officer, the appellant preferred an appeal before the Assistant Director, Punjab & Haryana, Chandigarh.
The appeal was dismissed with an observation that he was bound by the remand order and the right acquired by the appellant by the Sanad should have been brought to the notice when matter was disposed of earlier by the Assistant Director, Patiala.
Against this order of the Assistant Director, the appellant preferred a writ petition which was rejected by the High Court in limine with one word 'dismissed ' by order dated 14.4.1969.
After the rejection of the writ petition, the appellant had no other alternative and therefore instituted the suit out of which this appeal arises.
Her case in the suit was that it was impermissible for the Consolidation Officer to adjust the lands or take away any part of it which became her absolute property by virtue of the Sanad granted on 29.4.1963.
However, she became unsuccessful in all Courts.
On 5.9.1975, the trial Court dismissed the suit.
The Addi tional District 388 Judge confirmed that judgment.
The High Court of Punjab & Haryana dismissed the Second Appeal by the judgment dated 31.1.1983 which is now under appeal before us.
Learned counsel for the appellant contended that after the Sanad was granted to the appellant on 29.4.1963 she became the absolute owner of the land.
The land was given to her in lieu of settlement of her claim of compensation and the Sanad specifically provided that all rights and interest in the property were transferred to the appellant under the authority of the President.
It was, therefore, not open to any consolidation authority to cancel this Sanad.
It was also contended that the Consolidation authorities and the civil courts did not examine the legal consequences of the Sanad and the scope of Section 10, and without taking that into consideration the allotment made was illegal and could not be sustained.
The other limb of the argument of learned counsel re lates to the question of res judicata on which ground also the appellant was nonsuited.
It may be recalled the appel lant being aggrieved by the order of the Consolidation Officer which was confirmed by the Assistant Director Con solidation approached the High Court in a writ petition.
That writ petition was rejected in limine and therefore the courts below held that the question of res judicata operates and there was no scope for the civil court to go into the question once again.
It was argued that the High Court committed an error since apparently the writ petition filed by the appellant was dismissed in limine and it could not operate as res judicata since it was not a decision on merits deciding anyone of the issues arising in the litiga tion.
Learned counsel for the respondent, on the other hand contended that the allotment made in favour of the respond ent was very much before the allotment made in favour of the appellant.
The allotment to the respondent was on 29.12.1959 and whereas the allotment to the appellant was on 29.12.1962.
But unfortunately as there was no entry made in the revenue record about the allotment tO the respondent.
No land was earmarked in the consolidation proceedings which ultimately had to be brought to the notice of Assistant Director.
The later remanded the matter with a direction to the consolidation officer "to see that the first allottee is accommodated first and the later allottees who have been accommodated before the respondent shall not be given their allotment.
" Learned counsel contended that when this order of the Assistant Director was not complied with, the re spondent had no option but to approach the High Court for a direction for 389 enforcement of the said order.
But learned counsel had to concede that even before the order of the Assistant Director by which he remanded the matter, the allotment in favour of the appellant had been converted into a permanent transfer by a Sanad granted by the President.
The main argument of the learned counsel for the re spondent was that in view of the fact that the respondent was allotted earlier in 1959 whereas the allotment in favour of the appellant being in December 1962 and if there was no adequate land available for allotment to the appellant, the authorities should find an alternative land somewhere else but the respondent could not be deprived of the land which was allotted to him He, however, frankly conceded that there is nothing on record to indicate that the same land which was allotted to the respondent was allotted to the appellant.
He, however, said that it was a case of over allotment and the authorities were justified in taking the land proportionately from all allottees and adjusting all the allottees with the available lands.
From all the facts and documents, one thing appears to be clear that although certain allotment was made in favour of the respondent in 2959, he was not put in possession of the allotted lands.
It is also clear that the survey Nos. of lands allotted in 1959 to the respondent are not the same survey Nos.
allotted to the appellant in December, 1962.
It is further clear that the appellant was given possession of those properties allotted to her and even permanent Sanad was granted to her.
The main question that arises for consideration there fore, is whether the lands given to the appellants by perma nent Sanad could be deprived of in the consolidation pro ceedings without giving them adequate alternate lands.
Section 10 of the Displaced Persons (Compensation & Rehabil itation) Act of 1954 provides: "10.
Where any immovable property has been leased or allotted to a displaced person by the Custodian under the conditions prescribed: (a) by the notification of the Government of Punjab in the Department of Rehabilitation No. 4891 S or 4892 S, dated the 8th July, 1949; or (b) by the notification of the Government of Patiala and 390 East Punjab States Union in the Department of Rehabilitation No. 8R or 9R, dated the 23rd July, 1949, and published in the Official Gazette of that State, dated the 7th August, 1949.
and such property is acquired under the provi sions of this Act and forms part of the com pensation pool, the displaced person shall, so long as the property remains vested in the Central Government continue in possession of such property on the same conditions on which he held the property immediately before the date of the acquisition, and the Central Government may, for the purpose of payment of compensation to such displaced person, trans fer to him such property on such terms and conditions as may be prescribed.
" From this provisions, it will be clear that the parties who were put in possession under initial allotment would continue to remain in possession even after its acquisition by the Central Government.
But it is open to the Central Government for the purposes of payment of compensation to such displaced persons transfer to him such property on such terms and conditions as may be prescribed.
Apparently this refers to a permanent transfer in lieu of compensation.
It is not in dispute that the appellants were the only allot tees in whose favour permanent transfer was made on 29.4.1963 and 15.6.1964 respectively.
A perusal of the terms of Sanad clearly indicate that it conveys absolute title and it could be cancelled only by the authority which granted the Sanad.
Sanad (exhibit p 2) granted to the appellant on 29.4.1963 reads: "The President is hereby pleased to transfer the right, title and interest acquired by the Central Government in the said property to Pujari Bai wife of Bihari Lal (hereinafter referred to as the transferee) subject to the following terms and conditions.
" It was perhaps for this reason, as contended for the appellant that after the Sanad was granted in favour of the appellant, the respondent went on with the proceedings before the consolidation authorities and also before the authorities under the Displaced Persons (Compensation & Rehabilitation) Act, 1964, but did not implead the appellant and only impleaded the other allottees who were not granted Sanad till 391 then.
Quite naturally, the authorities had no opportunity to examine the effects of the Sanad granted to the appellant.
Learned counsel for the respondent next contended that the consolidation proceedings had started when the Sanad was granted to the appellant on 29.4.1963 and Section 30 of the East Punjab Holdings (Consolidation and Prevention of Frag mentation) Act, 1948 prohibits a transfer during the consol idation proceedings.
We do not think that Section 30 has any application to the facts of the case.
Section 30 of the East Punjab Holdings (Consolidation and Prevention of Fragmentation) Act, 1948, provides: "Sec. 30.
Transfer of Property during consoli dation proceedings After a notification under sub section (1) of Section 14 has issued and during the pendency of the consolidation proceedings no land owner or tenant having a fight of occupancy upon whom the scheme will be binding shall have power without the sanc tion of the Consolidation Officer to transfer or otherwise deal with any portion of his original holding or other tenancy so as to affect the rights of any other landowner or tenant having a right of occupancy therein under the scheme of consolidation.
" Transfer of property referred to in this Section is either by a landowner or by a tenant, and it has no refer ence and indeed cannot have a reference to transfer of Sanad under Section 10 of the Displaced Persons (Compensation & Rehabilitation) Act of 1954.
The conferment of fights in lieu of compensation under Section 10 stands on a different footing which could not be contemplated within the language of Section 30 of the aforesaid Act.
This contention advanced by learned counsel for the respondent is, therefore, reject ed.
This takes us to the question of res judicata.
The question is whether the suit of the appellant was barred by res judicata in view of the summary dismissal of her writ petition earlier.
It is not disputed that the writ petition filed by the appellant against the order of the Assistant Consolidation Officer was dismissed in limine.
This order dated 14.4.1969 was passed by the Division Bench of Punjab & Haryana High Court.
It was a one word order.
The question or res 392 judicata apparently arises when a controversy or an issue between the parties has been heard and decided.
This Court in Workmen of Cochin Port Trust vs Board of Trustees of the Cochin Port Trust & Another, 1 considered this principle and observed (at 977): "But the technical rule of res judicata al though a wholesome rule based upon public policy, cannot be stretched too far to bar the trial of identical issues in a separate pro ceedings merely on an uncertain assumption that the issues must have been decided.
It is not safe to extend the principle of res judi cata to such an extent so as to found it on mere guess work.
To illustrate our view point, we may take an example.
Suppose a writ peti tion is filed in a High Court for grant of a writ of Certiorari to challenge some order or decision on several grounds.
If the Writ Petition is dismissed after contest by a speaking order obviously it will operate as res judicata in any other proceeding, such as, of suit, Article 32 of Article 136 directed from the same order or decision.
If the Writ Petition is dismissed by a speaking order either at the threshold or after contest, say, only on the ground of laches or the availabil ity of an alternative remedy, then another remedy open in law either by way of suit or any other proceeding obviously will not be barred on the principle of res judicata.
" It thus becomes clear that when a writ petition after contest is disposed of an merits by a speaking order, the question decided ,in that petition would operate as res judicata, but not a dismissal in limine or dismissal on the ground of laches or availability of alternative remedy.
The High Court and the courts below, therefore, were not right in throwing out the suit of the appellant on the ground of res judicata.
It is, therefore, plain that all the three courts have omitted to consider the material question, that is, the impact of the grant of Sanad under Section 10 and its effect on the jurisdiction of the authorities under the Consolida tion Act.
The authorities under Consolidation Act have no jurisdiction or power to modify or cancel the grant of proprietary rights granted in the Sanad under Section 10.
In the connected Civil Appeal No. 6013 of 1983 the Sanad was also granted on 15.6.1964 in accordance with Section 10 and, therefore, the same principle applies to that case also.
393 The appeals are therefore allowed.
The judgment and decree passed by all the three courts below are set aside and the suit filed in each case is decreed with costs.
The appellant shall be entitled to costs in this Court.
Costs quantified at Rs.5,000 in each of the two appeals.
N.V.K. Appeals allowed.

summary:
The appellant who migrated from Pakistan in 1947 was allotted certain lands.
On 29.12.1962 allotment was made quasi permanent in character, but on 29.4.1963, the lands were transferred to her permanently, by a Sanad issued under Rule 68 of the Displaced Persons (Compensation & Rehabilita tion) Rules, 1954.
The respondent like the appellant had also migrated from Pakistan and on 29.12.1959 lands were also allotted to him but no entry could be made in the revenue record.
On 29.6.1960 during consolidation proceedings no tuk was however made for the respondent.
He filed objections which were rejected.
He unsuccessfully appealed to the Appellate Authority The Settlement Officer (Appeals).
In the second appeal, the Assistant Director Consolidation of Holdings remanded the matter to the Special Settlement Officer with the observation that because of the mistake of the Consoli dation authorities there had been over allotment, and the authorities 384 will see that the first allottee is given the land first.
As nothing happened for about three years, the respond ent filed a writ petition in 1966 and the High Court direct ed implementation of the order of the Assistant Director Consolidation.
The appellant was not a party to either of these proceedings.
Pursuant to the order of the High Court the Consolida tion Officer started enforcing the observations of the Assistant Director, found that the land allotted to various persons was more than the land available for allotment, and in order to resolve this difficulty evolved a via media procedure.
lie deprived some of the allottees of the land allotted to them, and the appellant was one such person.
He allotted all such lands to the respondent.
This was the commencement of the instant litigation.
Against the aforesaid order of the Consolidation Officer the appellant preferred an appeal before the Assistant Director which was dismissed and the writ petition against the said order was rejected by the High Court in limine with only one word, namely, 'dismissed '.
The appellant having no other alternative instituted a suit contending that it was impermissible for the Consolida tion Officer to adjust the lands, or take away any part of it which became her absolute property by virtue of the Sanad granted on 29.4.1963.
The trial Court dismissed the suit.
The Additional District Judge confirmed that judgment, and the second appeal to the High Court was also dismissed.
In the appeal to this Court on the question; whether the lands given to the appellants by permanent Sanad could be deprived of in consolidation proceedings without giving them adequate alternate lauds.
Allowing the appeal, HELD: 1.
The authorities under the Consolidation Act have no jurisdiction or power to modify or cancel the grante of proprietary rights granted in the Sanad under section 10.
[392G] 2.
From section 10 of the Displaced Persons (Compensation & Rehabilitation) Act 1954, it is clear that the parties who were put in possession under initial allotment would contin ue to remain in possession even after its acquisition by the Central Government.
But it is open to the Central Government for the purposes of payment of compensation to 385 such displaced person, transfer to him such property on such terms and conditions as may be prescribed.
Apparently this refers to a permanent transfer in lieu of compensation.
[390D E] 3.
Transfer of property referred to in section 30 of the East Punjab Holdings (Consolidation and Prevention of Fragmenta tion) Act, 1948 is either by a landowner or by a tenant, and it has no reference, and indeed cannot have a reference to transfer of Sanad under section 10 of the Displaced Persons (Compensation & Rehabilitation) Act of 1954.
The conferment of rights in lieu of compensation under section 10 stands on a different footing which could not be contemplated within the language of section 30 of the Consolidation Act.
[391F] 4.
When a writ petition after contest is disposed of on merits by a speaking order, the question decided in that petition would operate as res judicata, but not a dismissal in limine or dismissal on the ground of laches, or avail ability of alternative remedy.
[392E F] Workmen of Cochin Port Trust vs Board of Trustees of the Cochin Port Trust & Another, ; , referred to.


judgement:
N: Criminal Appeal No. 30 of 1951.
Appeal from the Judgment and Order of the High Court of Calcutta (HARRIES C.J. and LAHIRI J.) dated 15th June, 1950, in Criminal Appeal No. 71 of 1950 and Revision No. 295 of 1950.
S.N. Mukherjee, for the appellant.
B. Sen, for the respondent.
December 14.
The Judgment of the Court was deliv ered by FAZL ALI J.
This is an appeal against the judgment of the High Court at Calcutta upholding the order of the Ses sions Judge of Midnapore convicting the appellant under section 326 of the Indian Penal Code and sentencing him to 3 years ' rigorous imprisonment.
The prosecution case against the appellant may be short ly stated as follows: The appellant and the injured person, Kurnad Patra, are first cousins, and they live in a village called Andaria, their houses being only 3 or 4 cubits apart from each other.
They had a dispute about a pathway adjoin ing their houses, which led to a tank, and they quarrelled about it on the 11th July, 1949.
Two days later, on the lath July, when Kumad Patra was washing his hands at the brink of the village tank, the appellant came from behind and inflicted on him 17 injuries.
with the result that two of his fingers had to be amputated and a piece of bone had to be extracted from his left thumb.
The police being informed, started investigation and submitted a charge sheet against the appellant who was finally committed to the Court of Sessions and tried by the Sessions Judge and a jury.
He was charged under section 307 of the Indian Penal Code, but the jury returned a verdict of guilty against him under section 326 of the Penal Code, and the learned Sessions Judge accepting the verdict convicted him under that section as aforesaid.
When the matter came up in appeal to the High Court, a rule was issued on the appellant calling upon him to show cause why his sentence 204 should not be enhanced, but, at the final hearing, the rule was discharged, his appeal was dismissed, and his conviction and the original sentence were upheld.
The first point urged on behalf of the appellant before us is that, inasmuch as there was no charge under section 326 of the Penal Code and the offence under that section was not a minor offence with reference to an offence under section 307 of the Code, he could not have been convicted under the former section.
This argument however overlooks the provisions of section 237 of the Criminal Procedure Code.
That section, after referring to section 236 which provides that alternative charges may be drawn up against an accused person where it is doubtful which of several of fences the facts which can be proved will constitute, states as follows : "If . . the accused is charged with one offence, and it appears in evidence that he committed a different offence for which he might have been charged under the provisions of that section, he may be convicted of the offence which he is shown to have committed, although he was not charged with it.
" There can be no doubt that on the facts of this case, it was open to the Sessions Judge to charge the appellant alternatively under sections 307 and 326 of the Penal Code.
The case therefore clearly falls under section 237 of the Criminal Procedure Code and the appellant 's conviction under section 326 of the Penal Code was proper even in the absence of a charge.
In Begu vs The King Emperor (1) the Privy Council had to deal with a case where certain persons were charged under section 302 of the Penal Code, but were convicted under section 201 for causing the disappearance of evidence.
Their Lordships upheld the conviction, and while referring to section 237 of the Criminal Procedure Code, they ob served: "A man may be convicted of an offence, although there has been no charge in respect of it, if the evidence is such as to establish a charge that might have (1) (1925) 52 I.A. 191, 205 been made .
Their Lordships entertain no doubt that the procedure was a proper procedure and one warranted by the Code of Criminal Procedure.
" The second point urged on behalf of the appellant is that the High Court having issued a rule for the enhancement of the sentence, he should have been allowed to argue the merits of the case which he was not allowed to do.
The learned counsel for the appellant was not, however, able to show that even if it was open to him to argue on the merits of the case the decision would have been otherwise.
Only three contentions were put forward by him, these being : (1) that several material witnesses were not examined; (2.) that the appellant 's case was not placed before the jury in a fair manner; and (3) that there was no proper examination of the appel lant under section 342 of the Criminal Procedure Code.
We have examined these contentions and find that they are entirely without merit.
In urging his first contention, the learned counsel stated that though it was admitted that several persons have got houses to the east, north and north west of the tank where the occurrence is alleged to have taken place, they have not been examined by the prose cution.
He further argued that one Sarat Chandra Ghose, who was present at the house of the accused when it was searched, has also not been examined.
These arguments however have very little force, since there is no evidence to show that those persons had seen the occurrence, an d they also do not take note of the fact that such evidence as has been adduced by the prosecution, if believed, was suffi cient to support the conviction of the appellant.
The Ses sions Judge in his charge to the jury referred specifically to the very argument urged before us, and he told 'the jurors that if they thought it fit it was open to them to draw an inference against the prosecution.
There can be no doubt that the jurors were 27 206 properly directed on the point and they evidently thought that the evidence before them was sufficient for convicting the appellant.
The second contention urged on behalf of the appellant relates to his defence, which, briefly stated, was that Kumad Patra, the injured man, entered his house during his temporary absence, went to the bedroom of his wife, who was a young lady, and committed indecent assault on her and was assaulted in these circumstances.
This story was not sup ported by any evidence but was merely suggested in cross examination, and the Sessions Judge while referring to it in his charge to the jury, observed: ' 'If I were left alone, I would not have believed the defence version.
But you are not bound to accept my opin ion, nor you should be influenced by it It is for you to decide whether you will accept the defence suggestion in favour of which there is no such positive evidence.
" The Sessions Judge undoubtedly expressed himself some what strongly with regard to the defence suggestion, but he coupled his observations, which we think he was entitled to make, with an adequate warning to the jurors that they were not bound to accept his opinion and should not be influenced by it.
The defence version was rejected by the jury, and there can be no doubt that on the materials on the record it would have been rejected by any court of fact.
The last contention put forward by the learned counsel for the appellant was that he was not examined as required by law under section 342 of the Criminal Procedure Code.
It appears that three questions ware put to the appellant by the Sessions Judge after the conclusion of the prosecution evidence.
In the first question, the Sessions Judge asked the appellant what his defence was as to the evidence ad duced, against him; in the second question, the Judge re ferred to the dispute about the pathway and asked the appel lant whether he had inflicted injuries on Kumad Patra; and in the third question, the appellant was asked.
207 whether he would adduce any evidence.
The facts of the case being free from any complications and the points in issue being simple, we find it difficult to hold that the examina tion of the appellant in this particular case was not ade quate.
To sustain such an argument as has been put forward, it is not sufficient for the accused merely to show that he has not been fully examined as required by section 342 of the Criminal Procedure Code, but he must also show that such examination has materially prejudiced him.
In the present case, it appears that the point urged here was not raised in the grounds of appeal to the High Court, nor does it find a place in the grounds of appeal or in the statement of case filed in this court.
It has nowhere been stated that the accused was in any way prejudiced, and there are no materi als before us to hold that he was or might have been preju diced.
We have read the Sessions Judge 's charge to the jury, which is a very fair and full charge, and nothing has been shown to us to justify the conclusion that the verdict of the jury should not have been accepted.
The appeal accordingly fails and is dismissed.
Appeal dismissed.

summary:
The appellant who inflicted serious injuries on another was charged under section 307 of the Indian Penal Code but the jury returned a verdict of guilty against him under section 326 of the Penal Code, and the Sessions Judge, accepting the verdict, convicted him under section 326.
It was contended that the conviction was illegal inasmuch as the offence under section 326 was not a minor offence with reference to the offence under section 307.
Held, that as it was open to the Sessions Judge, on the facts of the case, to charge the appellant alternatively under sections 307 and 326 of the Code the case was covered by section 237 of the Criminal Procedure Code, and the conviction under section 328 of the Penal Code was proper, even though there was no charge under the section.
Begu vs King Emperor (52 I.A. 191) applied.
In order that a conviction may be set aside for non compliance with the provisions of section 342 of the Criminal Procedure Code, it is not sufficient for the accused merely to show that he was not fully examined as required by the section, but he must also show that such examination has materially prejudiced him.