judgement:
Civil Appeal No. 2183 of 1972.
Appeal by Special Leave from the Judgment and Order dated 28 7 1970 of the Calcutta High Court in Income Tax Reference No. 45 of 1969.
F. section Nariman and M. M. Kshatriya for the Appellant.
section T. Desai, K. C. Dua, Miss A. Subhashini for the Respondent.
431 section Chaudhary. D. N. Gupta and T. A. Ramachandran for the Respondent Intervener.
The Judgment of the Court was delivered by PATHAK, J.
This appeal by special leave is directed against the judgment of the Calcutta High Court on a question concerning the computation of income from house property under the Income tax Act, 1961.
The assessee, a private limited company, is the owner of the property described as 3, Gun Foundry Road.
Originally it housed a jute baling press.
The property was requisitioned by the West Bengal Government in 1951.
It was released to the assessee on December 26, 1960, after being used for housing refugees.
Evidently, the building had not received the care it deserved, for when the assessee resumed possession he found it in a sorry state.
The assessee filed an income tax return for the assessment year 1962 63 (for which the previous year was the calendar year 1961), and the return recited that the annual value of the building was Rs. 1,23,672.
However, on the ground that the building had remained vacant throughout the previous year, the assessee claimed a remission in the computation of the income of the entire annual value.
The assessee also claimed a deduction on account of insurance premium and municipal taxes relating to the property.
The Income tax Officer took the view that the property was not in a habitable condition and did not admit of letting and therefore no question arose of applying the provisions of the Income Tax Act relating to the computation of income from property.
Accordingly, he held that the annual value as well as the vacancy claim had to be ignored.
The assessee appealed to the Appellate Assistant Commissioner, who held that although the property had remained vacant, it possessed an annual value and should be considered for assessment.
On that view, he allowed the deductions claimed by the assessee.
In second appeal, the Income Tax Appellate Tribunal favoured the view taken by the Income Tax Officer and accordingly held that the claim to deductions made by the assessee must fail.
The Tribunal, in other words, affirmed that the property fell outside the scope of section 22 of the Act and, consequently, denied the deductions.
The Revenue appeared satisfied with the order of the Appellate Tribunal.
But, at the instance of the assessee, a reference was made to the High Court at Calcutta on the following question: "Whether on the facts and in the circumstances of the case and on the interpretation of sections 22 and 23 of the 432 Income tax Act, 1961 the Tribunal was right in holding that in computing the income from property the bonafide annual value of the property at 3, Gun Foundry Road, Calcutta has not to be taken and in disallowing the vacancy remission and other deductions in respect of the aforesaid property ?" The High Court was of opinion that the Appellate Tribunal had misconceived the law in holding that because the property was in a state of disrepair it did not possess an annual value.
As regards the assessee 's claim to the specified deductions, it held that while the insurance premium paid by it could be allowed, there was no merit in the claim on account of vacancy remission and payment of municipal taxes.
Accordingly, the High Court recorded: "On the first part of the question we hold that the Tribunal was wrong in holding that there was no annual value of this property No. 3, Gun Foundary Road and that it was outside the scope of section 22 of the Income tax Act, 1961.
We hold and we are of the opinion that this property has an annual value in the facts and circumstances of the case and it should be taken into account in the light of the principles and observations we have made above.
We therefore set aside that part of the order of the Tribunal and answer the question accordingly.
The answer to this first part of the question is in the negative.
The answer to the second part of the question follows from the answer to the first part of the question and is that the only deduction in the facts and circumstances of the present reference which the assessee can get is the deduction for insurance premium paid.
We hold further on this part of the question that the other deductions, namely, (a) vacancy remission and (b) municipal taxes are not permissible and the assessee is not entitled to claim them in the present reference.
We answer the second part of the question accordingly.
The Tribunal, therefore, will dispose of the case conformably to this judgment and the interpretation of the principles enunciated herein under section 260 of the Income tax Act, 1961.
" At the outset a serious controversy arose before us on the point whether the High Court was right in including a direction in its judgment that the Appellate Tribunal should take into account its finding 433 that the property possessed an annual value.
The assessee says that when the Appellate Tribunal had held that the property did not fall within the scope of section 22, it was for the Revenue, in case it desired to charge the assessee on income from this property, to apply for a reference to the High Court.
It is urged that the Revenue having omitted to do so, it was not open to the High Court to make an order enabling the Revenue to tax any income from that property.
On behalf of the Revenue, the submission is that inasmuch as the assessee had taken the case in reference to the High Court for an adjudication on the deductions claimed by it the point whether the property possessed an annual value and its income was chargeable was directly raised by the assessee itself, and therefore, the High Court was right in rendering a decision on this point.
"Income from house property" is one of the heads into which different categories of income included in the total income have been classified.
For the purpose of computing "income from house property", a code of provisions is incorporated in sections 22 to 26 of the Act.
section 22 declares that the annual value of property consisting of buildings or lands appurtenant thereto in the ownership of the assessee, excepting such portions of the property occupied for any business or profession carried on by him of which the profits are chargeable to income tax, shall be chargeable to income tax as "income from house property".
The annual value is determined after making a deduction on account of municipal taxes.
The income from house property is then subject to the deductions set forth in Sec.
The deductions are made for the purpose of computing the net figure of the income from property.
In order to decide whether the High Court was right in including a direction to the Appellate Tribunal to take into account the annual value of the property, it is necessary to appreciate the true scope of the reference taken to the High Court.
The Income Tax Officer had found that the property, having regard to its condition, was not capable of being let to tenants and therefore the gross value and the deductions claimed had to be ignored.
The assessee was aggrieved by that finding.
It must be remembered that in its return the assessee had indicated that the property possessed an annual value of Rs. 1,23,672 unless the property had an annual value, it believed, it could not be entitled to the deductions claimed by it.
In appeal before the Appellate Assistant Commissioner, its case was that the property could not be ignored for the purposes of the Income tax Act.
The contention was accepted by Appellate Assistant Commissioner, who held that the annual value of the property could not be 434 ignored and further that the vacancy remission and other deductions claimed by the assessee were admissible.
When the Revenue proceeded in appeal to the Appellate Tribunal it urged that the assessee was not entitled to the deduction claimed in respect of the property.
The Appellate Tribunal considered the evidence relating to the condition of the building, and was of opinion that the building was not in a habitable condition and it could not be said that the property could be reasonably let out at any particular annual value.
In its opinion, the property fell outside the scope of Section 22 and, therefore, the Income Tax Officer was right in ignoring the property altogether and in not computing any profit or loss in respect of it.
The Appellate Tribunal set aside the order of the Appellate Assistant Commissioner and restored the order of the Income Tax Officer.
It was in the context of this train of proceedings that the assessee now took the case in reference to the High Court.
The question referred to the High Court was rooted in the fundamental submission of the assessee that the property possessed an annual value for the purpose of Section 22 and it was, therefore, entitled to the vacancy remission and other deductions claimed by it.
The frame of the question indicates that it has two parts, whether the Appellate Tribunal was right in holding that in computing the income from property the premises 3, Gun Foundry, possessed an annual value and whether the Appellate Tribunal was right in disallowing the vacancy remission and other deductions in respect of that property.
Plainly, unless the property fell within the scope of Section 22 there was no occasion for considering the assessee 's claim to the deductions.
The High Court also, when considering the reference, examined the question in its bifurcated character.
But although, bifurcated, the thrust of the question was directed to the consideration of the deductions claimed by the assessee.
Whether the property possessed an annual value was necessary to determine solely for the purpose of considering the claim to deductions.
Unless the assessee was interested in those deductions it would not have asked for a finding, that the property possessed an annual value.
The High Court was, therefore, right in examining both parts of the question and in determining whether the property had an annual value and the deductions claimed were permissible.
The assessee can have no quarrel with the High Court considering the first part of the question, because that was the very case of the assessee throughout from the earliest stage of the proceeding.
From what has gone before it is apparent that the determination whether the property has an annual value arises only if it is found that on the terms of the statute the assessee is otherwise entitled to the deductions claimed by him.
If those deductions are not permissible under 435 the relevant section, no question arises of examining whether the property has an annual value.
Viewed in that light, the determination of the question whether the property has an annual value falls into its proper place.
It cannot be contended that even though the claim to deductions must otherwise fail, the question whether the property has an annual value must still be considered.
Such a contention is not open to the Revenue.
If the Revenue intended that the High Court should determine whether the property had an annual value as a question independent of its finding on the admissibility of the deductions, the Revenue should have applied to the Appellate Tribunal for a reference to the High Court accordingly.
It did not ask for a reference and, therefore it is not entitled to raise that contention now.
It seems to us that there is only one way of looking at the case, and that is whether on the assumption that the property has an annual value and falls within the scope of Section 22, the assessee is entitled to the deductions under Sections 23 and 24.
If he is entitled to any of those deductions, then in order to establish the foundation in which the deductions can be rooted it will be necessary to determine whether the property possesses an annual value.
That is what the High Court did, and the observations made by it must be construed accordingly.
It may be that the deduction to which the assessee is found entitled runs to a far smaller figure than the annual value property attributable to the property.
In that event the consequence will be a net annual value of some significance.
And this will be the consequence notwithstanding that the reference is at the assessee 's instance and no reference at all has been brought by the Revenue.
The result appears anomalous, but after all it is for the assessee to choose whether or not he wishes to take a reference to the High Court, and if he is found entitled to even one of the deductions claimed by him and effect cannot be given to that claim without the annual value of the property being computed he has only to thank himself.
At the same time, we must point out that the High Court, after holding that the property has an annual value, has erred in stating that it sets aside that part of the order of the Appellate Tribunal.
The High Court, on a reference before it, does not act as a court of appeal.
The jurisdiction is advisory and no more.
The High Court is empowered to decide the question of law referred to it, and to return its answer to the Appellate Tribunal.
The Appellate Tribunal then takes up the appeal and disposes it of conformably with the answer returned by the High Court.
It is not part of the jurisdiction of the High Court to interfere and modify or set aside the appellate order of the Tribunal.
436 As has been said earlier, the High Court considered both parts of the question referred to it, whether the property possessed an annual value and whether the deductions claimed by the assessee were admissible.
It examined first whether the deductions were admissible.
It found that the amount of Rs. 689 paid on account of fire insurance premium in respect of the property was deductible from the annual value under section 24(1) (ii).
Regarding the claim under section 24(1) (ix) on account of vacancy remission, it disallowed the deduction on the ground that the property was not let during the previous year.
The claim to deduction under section 23 of the municipal taxes paid in respect of the property was also rejected in the view that the municipal taxes could be deducted only if the property was in the occupation of a tenant.
The High Court then turned to the fundamental question whether the property possessed an annual value for the purpose of section 22, and held that merely because the building was in a state of disrepair it could not be predicated that it had no annual value.
In the result, on the question referred by the Appellate Tribunal it returned the opinion that the property possessed an annual value and that the assessee was entitled to a deduction in respect of insurance premium only.
In this appeal, the only question is whether the High Court is right in holding that the assessee is not entitled to any deduction on account of municipal taxes and the vacancy remission claimed by it.
The claim to the deduction of municipal taxes is made under the proviso to section 23(1).
The proviso reads: "Provided that where the property is in the occupation of a tenant, the taxes levied by any local authority in respect of the property are under the law authorising such levy, payable wholly by the owner, or partly by the owner and partly by the tenant, a deduction shall be made equal to the part, if any, of the tenant 's liability borne by the owner.
" It is immediately apparent that the proviso to section 23(1) can be availed of only if the property is in the occupation of a tenant.
It would seem so on the language of the proviso.
The assessee does not rest his claim on any other provision of law.
In the circumstances, the High Court is right in denying the claim in respect of municipal taxes.
The next deduction claimed requires the consideration of section 24(1) (ix) of the Act.
437 section 24(1)(ix) reads : "24 (1) Income chargeable under the head 'Income from house property ' shall, subject to the provisions of subsection (2), be computed after making the following deductions, namely: xx xx xx xx xx (ix) Where the property is let and was vacant during a part of the year, that part of the annual value which is proportionate to the period during which the property is wholly unoccupied or, where the property is let out in parts, that portion of the annual value appropriate to any vacant part, which is proportionate to the period during which such part is wholly unoccupied. . " The question is whether the property, 3 Gun Foundry Road, which admittedly has remained vacant since December 26, 1960 can attract section 24(2)(ix).
It is plain that it cannot.
The provisions of the Income tax Act relating to the charge on income apply in relation to a specific assessment year and the provisions of the Act providing for the computation of the chargeable income (which includes taking into account permissible deductions in the computation of the income chargeable under different heads) apply, in the absence of anything to the contrary in relation to the relevant previous year.
The total income of the previous year needs to be computed, and the different provisions relating to the computation of income must be read and applied in the context of the facts and circumstances obtaining during that year, unless the context suggests the contrary.
Consequently, when reading section 24(2) (ix) which speaks of property which is let and which was vacant during a part of the year, we must read it to mean property which was let during the previous year and was vacant during a part of the year.
It cannot refer to property which was not let at all during the previous year.
In the present case, there is no evidence to show that it was ever even given out by the assessee that the property was available for letting.
We were referred to Maharajadhiraja of Darbhanga vs Commissioner of Income tax, Bihar and Orissa,(1) where it was observed by the Patna High Court that section 9 (1) paragraph 7 of the Income Tax Act, 1922 could be invoked in a case where a house not in the occupation of the owner was habitually let to tenants and the vacancies referred to are vacancies between the different tenancies, or a house though not let is dismantled and shut up by the owner.
We have carefully read the judgment 438 delivered by that High Court, and it appears that the observation is a mere obiter.
The actual point for decision was in fact quite different.
It was a case where the assessee, who owned several houses kept them furnished and open for his residence and never let them to any tenant, and he did not occupy some of them during the relevant previous year.
He claimed a vacancy remission in respect of them.
The High Court, in our opinion, rightly rejected the claim.
It may also be pointed out that the statutory provision considered there was materially different from the one before us.
In our judgment, the assessee is not entitled to the deductions claimed by it in respect of municipal taxes and a vacancy remission.
The High Court is right in its view in respect of this part of the case.
The appeal is dismissed.
There is no order as to costs.
S.R. Appeal dismissed.

dataset_name: IN-Abs

summary:
The appellant assessee, in his income tax return for the assessment year 1962 63 (for which the previous year was the calendar year 1961) recited that the annual value of the building derequisitioned by the Govt.
on 26 12 1960 was Rs. 1,23,672/ .
However on the ground that the building had remained vacant throughout the previous year, the assessee claimed a remission in the computation of the income of the entire annual value.
The assessee also claimed a deduction on account of insurance premium and municipal taxes relating to the property.
The Income Tax Officer took the view that the property was not in a habitable condition and did not admit of letting and therefore no question arose of applying the provisions of the Income Tax Act relating to the computation of income from property.
Accordingly, he held that the annual value as well as the vacancy claim had to be ignored.
The assessee appealed to the Appellate Assistant Commissioner who held that although the property had remained vacant, it possessed an annual value and should be considered for assessment.
On that view, he allowed the deductions claimed by the assessee.
In second appeal, the Income Tax Appellate Tribunal favoured the view taken by the Income Tax Officer and accordingly held that the claim to deductions made by the assessee must fail.
The Tribunal, in other words, affirmed that the property fell outside the scope of section 22 of the Act and, consequently, denied the deductions.
The Revenue appeared satisfied with the order of Appellate Tribunal.
But, at the instance of the assessee a reference was made to the High Court.
The High Court was of the opinion that the Appellate Tribunal had misconceived the law in holding that because the property was in a state of disrepair it did not possess an annual value.
As regards the assessee 's claim to the specified deduction, it held that while the insurance premium paid by it could be allowed, there was no merit in the claim on account of vacancy remission and payments of municipal taxes.
Hence the appeal by special leave to this Court.
Dismissing the appeal, the Court, ^ HELD : 1.
Whether the High Court was right in including a direction to the Appellate Tribunal to take into account the annual value of the property 429 will depend on the appreciation of the true scope of the reference taken to the High Court.
The question referred to the High Court was rooted in the fundamental submission of the assessee that the property possessed an annual value for the purpose of Section 22 and it was, therefore, entitled to the vacancy remission and other deductions claimed by it.
The frame of the question indicates that it has two parts, whether the Appellate Tribunal was right in holding that in computing the income from property the premises 3, Gun Foundry, possessed an annual value and whether the Appellate Tribunal was right in disallowing the vacancy remission and other deductions in respect of that property.
[434C E] Unless the property fall within the scope of Section 22 there was no occasion for considering the assessee 's claim to the deductions.
The High Court also, when considering the reference, examined the question in its bifurcated character.
But although bifurcated, the thrust of the question was directed to the consideration of the deductions claimed by the assessee.
Whether the property possessed an annual value was necessary to determine solely for the purpose of considering the claim to deductions.
Unless the assessee was interested in those deductions it would not have asked for a finding that the property possessed an annual value.
The High Court, was, therefore, right in examining both parts of the question and in determining whether the property had an annual value and the deductions claimed were permissible.
[434E G] The High Court had to consider the first part of the question because that was the very case of the assessee throughout from the earliest stage of the proceeding.
The need for the determination whether the property has an annual value arises only if it is found that on the terms of the statute the assessee is otherwise entitled to the deductions claimed by him.
If those deductions are not permissible under the relevant section, no question arises of examining whether the property has an annual value.
Viewed in that light, the determination of the question whether the property has an annual value falls into its proper place.
[434G H, 435A] 2.
It is not open to the Revenue to contend that even though the claim to deduction must otherwise fail, the question whether the property has an annual value must still be considered.
If the Revenue intended that the High Court should determine whether the property had an annual value as a question independent of its finding on the admissibility of the deductions, the Revenue should have applied to the Appellate Tribunal for a reference to the High Court accordingly.
It did not ask for a reference and, therefore it is not entitled to raise that contention now.
[435A C] However, the only way of looking at the case, is whether on the assumption that the property has an annual value and falls within the scope of Section 22, the assessee is entitled to the deductions under Sections 23 and 24.
If he is entitled to any of those deductions, then in order to establish the foundation in which the deductions can be rooted it will be necessary to determine whether the property possesses an annual value.
That is what the High Court did, and the observations made by it must be construed accordingly.
It may be that the deduction to which the assessee is found entitled runs to a far smaller figure than the annual value property attributable to the property.
In that event the consequence will be a net annual value of some significance.
And this will be the consequence notwithstanding that 430 the reference is at the assessee 's instance and no reference at all has been brought by the Revenue.
The result appears anomalous, but after all it is for the assessee to choose whether or not he wishes to take a reference to the High Court, and if he is found entitled to even one of the deductions claimed by him and effect cannot be given to that claim without the annual value of the property being computed he has only to thank himself.
[435C F] 3.
The High Court, on a reference before it, does not act as a court of appeal.
The jurisdiction is advisory and no more.
The High Court is empowered to decide the question of law referred to it, and to return its answer to the Appellate Tribunal.
The Appellate Tribunal then takes up the appeal and disposes it of conformably with the answer returned by the High Court.
It is not part of the jurisdiction of the High Court to interfere and modify or set aside the appellate order of the Tribunal.
[435F H] 4.
The proviso to Section 23 (1) of the Income Tax Act, 1961 can be availed of only if the property is in the occupation of a tenant.
It would seem so on the language of the proviso.
The assessee does not rest his claim on any other provision of law.
In the circumstances, the High Court is right in denying the claim in respect of municipal taxes.
[436G H] 5.
The provisions of the Income Tax Act relating to the charge on income apply in relation to a specific assessment year and the provisions of the Act providing for the computation of the chargeable income (which includes taking into account permissible deductions in the computation of the income chargeable under different heads) apply, in the absence of anything to the contrary, in relation to the relevant previous year.
The total income of the previous year needs to the computed, and the different provisions relating to the computation of income must be read and applied in the context of the facts and circumstances obtaining during that year, unless the context suggests the contrary.
Consequently, when reading s.24(2) (ix) of the Income Tax Act, 1961 which speaks of property which is let and which was vacant during a part of the year, the Court must read it to mean property which was let during the previous year and was vacant during a part of the year.
It cannot refer to property which was not let at all during the previous year.
[437D E] In the present case, there is no evidence to show that it was ever given out by the assessee that the property was available for letting.
The assessee is not entitled to the deductions claimed by it in respect of municipal taxes and a vacancy remission.
[437F] Maharajadhiraja of Darbhanga vs Commissioner of Income Tax, Bihar and Orissa, ; distinguished.


judgement:
N: Criminal Appeal No. 349 of 1979.
Appeal by Special Leave from the Judgment and order dated 27/28 9 1977 of Bombay High Court in Criminal Appeal No. 593/76.
S.D. Dashme, V.N. Ganpue, Mrs. V.D. Khanna, C.K. Ratnaparkhi and Miss Geeta Sharma for the Appellants.
M.C. Bhandare and M.N. Shroff for the Respondent.
The Judgment of the Court was delivered by KOSHAL, J.
This appeal by special leave is directed against a judgment dated 27th/28th of September, 1977, of the High Court of Maharashtra upholding the conviction of the six appellants recorded by the learned Sessions Judge for two offences under section 302 read with section 149 and of one under section 148 of the Indian Penal Code, the sentence awarded being imprisonment for life on each of the first two counts and of rigorous imprisonment for one year on the third with a direction that the sentences shall run concurrently.
The first appeal in the High Court was originally heard by Vaidya and Sawant, JJ., who differed with each other on the judgment to be rendered, Vaidya, J., holding that the appeal merited dismissal and Sawant, J., being of the opinion that it deserved acceptance in full.
The case was therefore laid under section 392 of the Code of Criminal Procedure before Apte, J., who concurred with Vaidya, J., so that the appeal stood dismissed by the impugned order.
Certain facts are not in dispute and may be stated at the outset.
The occurrence took place on the 11th of November, 1974, in village Kole to which all the appellants except Khashaba (appellant No. 5) belong, Appellants Nos.
1 to 4 and 6 live jointly in a house which abuts on a road 14 feet wide.
Opposite that house lies the one belong 313 ing to the two unfortunate persons who lost their lives as a result of the occurrence which is said to have taken place in consequence of inimical relations between the accused and the opposite party.
The waste water emanating from the house of appellant No. 1 had been flowing towards the other side of the road and seeping into the western wall of the house of the deceased.
This was one of the factors leading to animosity between the parties, another being that the family of the deceased had earlier sold to a third person some land which they wanted to re purchase but were thwarted in their design by the accused who were instigating the vendee not to re sell the land to the deceased.
The deceased were related to five of the eye witnesses as would appear from the following pedigree table: Anandrao | | ______________________________________________ | | | | Abasahed (eye Shripati witness (PW 19) | | ____________________________________________________ | | | | | | | | | | | | | | | Nivas Balasaheb Bhimrao Uttam Jayakar (deceased) (deceased) (eye witness (eye (eye =Lakshmi =Droupadi PW 12) Witness witness (eye witness (eye witness PW 13) not PW 10) PW 11) produced) The relationship inter se between accused appellants Nos. 1 to 4 and 6 is shown in the table below along with the weapons of offence said to have been wielded by each of them and an absconding accused during the occurrence : Bhimrao (appellant No. 1 axe) | | _________________________________________ | | | | | | Anna Banda alias Maruti Kisan (appellant (appellant No. 3 stick) (appellant No. 2 | No.4 axe stick) | _______________________________ | | | | Dhondiram Shamrao (appellant No. 6 stick) (absconding accused stick) 314 Khashaba accused No. 5 is said to be a friend of the family of the other accused and belongs to another village.
He was said to be armed with a stick at the time of the occurrence.
The prosecution case may be stated thus.
On the fateful day Nivas deceased left his house at about 10 A.M. for Karad where he wanted to have himself medically checked up.
He returned home at about midday and told his wife that he had been driven back by Anna appellant No. 2.
By then Balasaheb deceased also came to his house from the sugar factory where he was working.
It was at this juncture that the two brothers heard abuses being hurled at them by all the accused and after emerging from their house picked up two small sticks and went towards the accused.
A scuffle was imminent between the two contending parties when Bhimrao Kadam PW 20 who hails from another village Lying about a mile away and who was then returning home from his field intervened, separated them, disarmed the two deceased and threw away the sticks which he snatched from them before continuing his journey.
At about 2 P.M. all the accused entered the house of the deceased, armed as aforesaid, dragged them out of it on to the road and started beating them with their respective weapons.
Lakshmi PW 10 and Droupadi PW 11 intervened and received injuries at the hands of the accused.
In the meantime Bhimrao PW 13, Uttam PW 14 and their brother Jayakar who had been working in their field and were informed by a boy about the assault on the deceased, came running to the place of occurrence but they too were beaten up by the accused who then made good their escape.
Jayakar brought a motor vehicle from Islampur and took his four injured brothers as well as the two ladies to the Civil Hospital there.
In the meantime Bhimrao appellant No. 1 reached police station Islampur where he complained to Police Sub Inspector Pandurang that he (appellant No. 1) and his family members had been attacked by the party of the deceased.
On learning that the opposite party had arrived at the local Civil Hospital, the Police Sub Inspector reached the Hospital at about 8 P.M. and recorded the statement (exhibit 55) of Bhimrao PW 12 which forms the basis of the formal first information report registered at the police station.
Under the advice of the Medical officer, Islampur, the injured left the same evening for the Civil Hospital at Sangli on the way to which Nivas and Balasaheb expired.
On return to the police station Pandurang PW 24 arrested Bhimrao appellant No. 1. 315 Lakshmi PW 10 was examined on the date of the occurrence it self by Dr. Bhaskar PW 17 and was found to have in the web connecting the right thumb and the index finger a muscle deep incised wound having the dimensions 1"x1/4".
Droupadi PW 11 was examined by another doctor on the same day but she was not produced at the trial for the reason that she had in the mean time been transferred to Nagpur.
She was examined again on the 18th of November, 1974, by Dr. Shridhar PW 14 who found that on the mid outer aspect of her left thigh was located a blue black discolouration having a probable duration of eight days.
Bhimrao PW 12 was examined by Dr. Kantilal Shah PW 16 on the 11th of November, 1974, at the Civil Hospital, Sangli, and was found to have suffered six injuries consisting of a scalp deep incised wound located on the central parietal area and having the dimensions 3" x 1/4", two confused lacerated wounds located over the same area, two contusions and an abrasion.
The same doctor examined Uttam PW 13 on the same day when the latter was found to have on his person five injuries consisting of two contused lacerated wounds located in the head and three contusions on other parts of the body.
Appellants Nos.
1 to 3 were examined by Dr. Shridhar PW 14 on the 11th of November, 1974 at the Civil Hospital, Islampur.
Bhimrao appellant No. 1 had on his person three injuries consisting of a contusion on the right forearm having the dimensions 8 cm.
x 5 cm., a weal mark on the right shoulder blade and an abrasion.
Anna appellant No. 2 was found to have suffered eleven injuries consisting of six lacerated wounds, two contusions, two weal marks and one abrasion, only one of them, i.e., a lacerated wound, being located on a vital part (the head).
Maruti appellant No. 3 had an incised and a lacerated wound on the head and another lacerated wound, two weal marks and a contusion on other parts of the body.
The injuries so far described and found on various members of the opposing parties were presumably all simple in nature.
Dr. Digambar Joshi PW 15 carried out the post mortem examination of the two dead bodies on the 12th of November, 1974, Nivas deceased was found to have suffered four external injuries two of which were bone deep contused lacerated wounds located in the head region.
According to the doctor the scalp was all 'boggy ' and the injuries were 'fresh '.
The internal damage to the head, the doctor noted, consisted of an extensive haematoma on the scalp, multiple fractures of the left temporal and parietal bones, fracture of the right frontal blade, fracture of the middle cranial fossa on the right side and extradural haema 316 toma on the right fronto parietal region, the left temporal region and the left fronto parietal region.
In the opinion of the doctor the deceased must have become unconscious immediately after the receipt of the injuries which were inflicted with force and were sufficient in the ordinary course of nature to cause death Balasaheb deceased was found by the same doctor to have suffered four external injuries two of which were located in the head region, one being a contused lacerated wound and the other an incised wound.
The right temporal region, according to the doctor, was 'boggy ' and the injuries were 'fresh '.
The internal damage to the head, the doctor noted, consisted of an extensive haematoma under the scalp, numerous fractures of the right and left frontal bones, right and left parietal bones and the right temporal bone, congestion of the cortical vessels and bleeding in the brain substance.
The right from to parietal region was found by the doctor to be soft and lacerated.
The brain matter, according to him, was coming out.
He was categorical in stating that the death must have been instantaneous and that the injuries were individually sufficient to cause death in the ordinary course of nature.
24 witnesses were examined at 'the trial in support of the prosecution case.
They included five eye witnesses, namely, Lakshmi PW 10, Droupadi PW 11, Bhimrao PW 12, Uttam PW 13 and Aba saheb PW 19, all of whom gave substantially the same version of the occurrence as has been set out above.
Bhimrao Kadam PW 20 deposed that at about noon on the fateful day he was returning home from his fields which lie only at a distance of about 250 feet from the houses of the parties, when he found appellants Nos. 2, 3 and 4 exchanging abuses with the two deceased who were armed with sticks.
According to the witness he disarmed the deceased and threw away the sticks on to the roof of their house.
The witness claimed to have gone away after advising both the parties to settle their disputes amicably.
He then testified to having met Bhimrao PW 12, Uttam PW 13 and their brother Jayakar when he returned to his field the same day.
He further stated that they were running but were not armed.
The rest of his testimony in chief may be summarised thus: "I again heard shouts from the houses of the parties.
I again came back to the road in between their houses and saw that Nivas, Balasaheb, Uttam and Bhimrao had injuries and they were Lying on the road.
All these injured were unconscious and their clothes were stained with blood.
317 Lakshmi and Droupadi were by their side.
The accused were not present at that time.
This was at about 2.30 P.M. Or 3 P.M." When asked in cross examination as to what was the exact place where he met the brothers of Nivas, he replied: "I immediately started to my field and I met them at a distance of about 50 or 100 feet.
I again heard the noise after a very short time after reaching the field.
" The witness was questioned about what he saw on reaching the place of occurrence for the second time and what transpired later.
He stated : "Uttam and Bhimrao were lying on the road near the door of the house of the accused.
Nivas was Lying in the middle of the road opposite to the door of the accused.
There were blood stains on the road at the place.
Jayakar was present at the scene of offence and I told him to inform the police at Islampur.
Afterwards l went to the house of the accused.
I found that there were injuries on accused No. 2 Anna and accused No. 3 Banda.
Accused No. 2 Anna was Lying unconscious.
Banda told me that Nivas and all his brothers came to their house and assaulted them." The last question put to him in cross examination was whether it was true that Bhimrao PW 12, Uttam PW 13 and their brother Jayakar were armed with sticks and axes.
He replied that they had something (in their hands) but that he could not say if they had sticks and axes.
The defence case may be summed up as follows.
Feelings of animosity existed between the two opposing families for two or three years prior to the date of the occurrence as alleged by the prosecution.
On that date there was an exchange of abuses between appellants Nos. 1 to 3 on the one hand and the deceased on the other when the latter were about to assault the former but could not do so on account of the intervention of Bhimrao Kadam PW 20.
Soon afterwards the two deceased and their three brothers assaulted appellants Nos. 1 to 3 with sticks and axes at the latter 's house when some of the assailants were disarmed and beaten back.
Appellants Nos.
4 to 6 were not present at the scene of occurrence and had been involved in the case merely because they were related to the other appellants by ties of blood or friendship.
318 7.
The learned Sessions Judge was of the opinion that the incident in which the two contending parties exchanged abuses and which came to a close when Bhimrao Kadam PW 20 intervened provided the motive for the assault in which the two deceased lost their lives.
While examining the ocular testimony he arrived at the findings detailed below: (a) That part of the prosecution story according to which the two deceased were dragged out of their house by the seven accused was never put forward during the investigation and was concocted to sene as an improvement over the version given earlier.
(b) The eye witnesses had given details of the occurrence which were omitted from their statements made to the police but no significance could be attached to this aspect of the matter.
(c) Lakshmi PW 10, Droupadi PW 11, Bhimrao PW 12 and Uttam PW 13 were certainly present at the occurrence as is made out from the fact that they were found to have injuries on their person immediately thereafter.
Assurance to the presence of Abasaheb PW 19 at the time and place of occurrence is also available in the fact that his house adjoins that of the deceased.
(d) The incident in which abuses were exchanged provided the motive for the party of the accused to assault their opponents rather than the other way round, because the deceased had really had an upper hand in that incident.
lt would also be natural, in this view of the matter, for appellants Nos.1 to 3 to summon help and open a concerted attack.
The participation of all the accused therefore in the occurrence was natural and probable.
(e) The occurrence took place on the road Lying in between the respective houses of the parties.
(f) The circumstances that two persons from the side of the eyewitness lost their lives and that four other eye witnesses belonging to the same family received injuries are sufficient to suggest that it was the party of the appellants who were the aggressors even though appellants Nos. 1 to 3 were also injured during the occurrence; and the fact that all the eye witnesses were unreliable in relation to the dragging part of the prosecution story is immaterial, their testimony being otherwise credible.
In this connection it has to be borne in mind that the party of the accused were able to inflict serious injuries on their opponents and themselves escaped with comparatively a minor beating.
There was thus no right of private defence available to the accused.
319 (g) Bhimrao PW 12 and Uttam PW 13 reached the place of occurrence after the fight between the party of the accused on the one hand and the two deceased on the other was already over and that in respect of the injuries caused to Lakshmi PW 10, Droupadi PW 11, Bhimrao PW 12 and Uttam PW 13 the party of the appellants had a right of private defence.
It was in these premises that the learned Sessions Judge convicted and sentenced the six appellants as aforesaid and acquitted them of the minor charges which had been framed against them in relation to the injuries caused by them to the four eye witnesses just above named.
In the High Court all the three judges who considered the appeal fully reappraised the evidence and while Vaidya and Apte, JJ., arrived at more or less the same conclusions as the learned Sessions Judge, Sawant, J., recorded diametrically opposed findings although he found Bhimrao Kadam PW 20 to be a wholly independent and therefore a reliable witness.
Those findings were : (i) There is no reliable evidence whatsoever to support the prosecution case that the accused were the aggressors.
on the other hand, the following five circumstances point to the contrary : (a) The concoction of that part of the prosecution story according to which the deceased were dragged out of their house by the appellants.
(b) During the incident in which abuses were ex changed, appellants Nos. 2 and 3 were merely sitting on the door steps of their house while the two deceased had gone there armed with sticks in an attempt to assault their adversaries.
(c) "Immediately after" that incident came to a close on the intervention of Bhimrao Kadam PW 20, the deceased were reinforced by their three brothers and the occurrence commenced "immediately thereafter".
(d) Bodies of the persons injured on the side of the deceased were found Lying nearer the house of the accused than that of their opponents.
(e) Appellants Nos. 1 to 3 also received injuries which were sufficiently serious and numerous.
(ii) Merely because two of the opponents of the appellants died and the number of persons injured on 320 their side was greater than on that of the appellants, it will not follow that the latter were the aggressors.
The case has been argued before us at great length by learned counsel for the parties and the two main questions requiring determination are: (A) Has the prosecution proved beyond reasonable doubt that the party of the appellants were the aggressors and that it is not made out on the record that the latter may well have acted in exercise of the right of private defence? (B) If the answer to question (A) is in the affirmative, whether the participation of all the appellants in the occurrence is satisfactorily made out ? 10.
On question (A) we have no hesitation in agreeing with the conclusion arrived at by the learned Sessions Judge and Vaidya and Apte, JJ., and we shall record our reasons briefly.
The occurrence admittedly took place on the road in between the respective houses of the deceased and the appellants which is fully made out from the deposition of Bhimrao Kadam PW 20 who is no doubt a wholly independent and reliable witness.
When he was attracted to the place of occurrence by a noise which reached him in his field after he had gone there subsequent to his witnessing the three brothers of the deceased running towards their house, he found that Bhimrao PW 12, Uttam PW 13 and their other two injured brothers were all Lying unconscious on the road where Lakshmi PW 10, Droupadi PW 11 and Jayakar were also present.
It is to be noted that the heads of Nivas and Balasaheb had been smashed to pulp so that in all probability neither of them could have moved a step before falling down after the receipt of the injuries which were detected on their dead bodies by Dr. Digambar Joshi PW 15.
We have to take it for granted there fore that they were hit where they fell.
The circumstance that their other two injured brothers were also found Lying on the road lends further strength to our conclusion that the occurrence took place on the road itself and not at the house of the appellants.
It may also be safely assumed, apart from the fact that all the witnesses say so, that Bhimrao PW 12, Uttam PW 13 and Jayakar were not with the deceased at the inception of the fight and were, on the other hand, working their fields.
This follows from the testimony of Bhimrao Kadam PW 20 which bears repetition on the point.
He stated that while he was returning from his house to the fields at 2 .30 or 3 P.M. he found the three brothers of the deceased 'running ' which obviously mean 321 running towards their house.
It is the case of Bhimrao PW 12 and Uttam PW 13 that they were informed in their field by a boy named Mehar that their brothers were being attacked by the party of the appellants and that it was on that account that they ran towards their house.
This assertion fully fits in with the narration of events by Bhimrao Kadam PW 20.
Another very decisive circumstance is the nature of the injuries received by the two contending parties.
If the party of the deceased were the aggressors and had made a concerted attack on the appellants who were taken unawares there is no reason why the former should have come out second best in the combat.
The fact that practically all the injuries received by the deceased were located in the head region and were inflicted with great force makes it highly probable that it was they who were taken unawares and had to bear the brunt of the attack which they had perhaps no means to repulse.
The fact that their womenfolk were also injured during the occurrence makes it probable that the ladies had to intervene because the fight was unequal and their respective husbands found in difficult to cope with it.
Another inference which may well be drawn from the consequences of the combat is that Bhimrao PW 12, Uttam PW 13 and their brother Jayakar probably reached the place of occurrence while their brothers were being belaboured and that it was at that stage that the three newcomers entered the arena and took up cudgels on behalf of their hapless family members.
That is the only reasonable way, it appears to us, in which all the injuries suffered by the combatants on the two sides can be explained.
It is true, as pointed out by Sawant, J., as well as the learn ed Sessions Judge, that the eye witnesses have improved their case at the trial over the story which they put forward at the investigating stage and therefore prove their unreliability in material particulars; but then they are corroborated in certain other material aspects of their testimony by unimpeachable evidence in the form of the injuries suffered by the two sides, the place where they were inflicted and the consequences which flowed from them, and, in those aspects we cannot but believe them.
It is not unoften that improvements in an earlier version are made at the trial in order to give a boost to the prosecution case, albeit foolishly.
But that does not mean that falsity of testimony in one material particular would ruin it from beginning to end.
On the other hand the circumstances will be a good reason merely for the court to be put on guard and sift the evidence with extraordinary caution and to accept y those portions of it which appear fully trustworthy either intrinsically or by reason of corroboration from other trustworthy sources.
And that is how we have accepted the eye witness account in part as stated above.
322 12.
We may here frankly state that the reasons given by Sawant, J., in holding that the party of the deceased were the aggressors do not commend themselves to us.
The fact that improvements were made by the eye witnesses on the earlier story and the dragging incident was introduced at the trial stage has already been noticed by us but, without more, it cannot be taken to mean that it was the party of deceased who set the ball rolling.
The incident in which abuses were exchanged between the two contending parties again does not lead to the inference that it was the party of the deceased who were guilty of aggression.
That incident no doubt provided the motive for the occurrence but such motive was attributable to both parties and perhaps more so to that of the appellants who must have felt humiliated by the show of force indulged in by the deceased.
It further appears to us that Sawant, J. misread the testimony of Bhimrao Kadam PW 20 when he remarked that the fight took place "immediately after" the exchange of abuses incident which had come to a close at the intervention of Bhimrao Kadam PW 20.
It is no doubt true that that witness did state in answer to a question in cross examination: "I immediately started towards my field and I met them at a distance of about 50 or 100 feet.
I again heard the noise after a very short time after reaching the field.
" The words "I immediately started towards my field" have no connection whatsoever with the incident in which abuses were exchanged.
In this connection we may refer to that portion of the evidence of the witness in which he categorically stated that that incident had taken place about midday when he was returning home from his field, that he left after the incident and that he met Uttam, Bhimrao and Jayakar "while I was again going back to my field.
" The inference is clear that after the incident in which abuses were exchanged, the witness had gone home to his village which lies at a distance of about a mile from the place of occurrence and that he was again returning to his field when he met the three brothers of the deceased which was, according to the witness, 'at about 2.30 or 3 P.M. '.
This misinterpretation of the evidence of Bhimrao Kadam PW 20 by Sawant, J., appears to us to have influenced the learned Judge in not a little measure in coming to the conclusion which he ultimately arrived at.
But then he was also not right, in our opinion, in inferring aggression on the part of the party of the deceased from the cir cumstance that "the bodies of the injured were found nearer the house of the accused than the house of the deceased".
It is true that Bhimrao Kadam PW 20 did assert: 323 "Uttam and Bhimrao were lying on the road near the house of the accused.
Nivas was lying in the middle of the road opposite to the door of the accused." But from this no inference such as has been drawn by the learned Judge is reasonably possible.
Admittedly the road has a width of only 14 feet and if two opposing parties, consisting in all of six to ten persons, engage themselves in violence against each other, the exact place where the members of each would be injured may not mean anything, especially if one of the parties is taken unawares and is unarmed.
In any case the fact that the road was a narrow one makes the circumstance relied upon by the learned Judge wholly innocuous.
The only other circumstance which he pressed into service in support of his conclusion that the accused appeared to have acted in exercise of the right of private defence was that they too "received injuries which were sufficiently serious and numerous" which does not appear to be an accurate statement of facts.
The injuries referred to by him were no doubt as numerous as those suffered by the other party; but then they cannot be classified as 'sufficiently serious '.
Except for one.
none of them was located on a vital part and all of them without exception were simple in nature, the injuries on the two deceased persons being in contrast practically all deadly.
Thus, the consideration of the ocular evidence coupled with the testimony of Bhimrao Kadam PW 20 and the circumstantial evidence, especially the medical part of it, lead us to an answer in the affirmative to question (A) posed above.
On the question of the participation of the appellants in the occurrence we have again to proceed with extraordinary caution in view of the fact that the eye witnesses are not only highly interested in exaggerating the number of the opposite party during the attack but have also been shown to have scant regard for truth when their selfish interests so demand.
In this view of the matter we consider it safe to hold that appellants Nos. 1 to 3 are proved beyond reasonable doubt to have taken part in the fight.
They are not merely named in that behalf by the eye witnesses but admit their participation in the occurrence which is further assured by reason of the fact that all three of them were found injured immediately thereafter.
The same is not true of the other three who have denied their presence at the time and place of the occurrence and about whose participation in the fight no other assuring factor is forthcoming.
It is true that according to Bhimrao Kadam PW 20, appellant No. 4 was present at the scene when the abu ses were exchanged but that fact is no guarantee of his participation in the occurrence which took place about a couple of hours later.
324 And no incongruity results from the exclusion of appellants Nos. 4 to 6 from the fight because the other three appellants would have as effectively caused all the injuries found on the two deceased and the two ladies all by themselves as if they were caused by them with the assistance of appellants Nos. 4 to 6.
In this view of the matter we are of the opinion that appellants Nos. 4 to 6 are entitled to the benefit of doubt in the matter of their participation in the occurrence.
We therefore accept the appeal in so far as they are concerned, set aside the conviction recorded against and the sentences imposed upon them by the courts below and acquit them of the charge in its entirety.
The appellants were convicted by the learned Sessions Judge of an offence under section 148 of the Indian Penal Code and of two offences of murder under section 302 read with section 149 of the Code.
The first offence, namely, that under section 148 of the Code, falls to the ground with the acquittal of appellants Nos. 4 to 6, and so does that under section 149 thereof.
It is however quite clear from the findings arrived at by us, especially those relating to the nature of the injuries suffered by the two deceased and the consequences resulting from them that the two offences of murder were committed by appellants Nos. 1 to 3 in furtherance of their common intention so that each one of them is liable to conviction on two counts under section 302 read with section 34 of the Indian Penal Code.
We hold accordingly and sentence each of those three appellants to imprisonment for life on each count with a direction that the two sentences of life imprisonment shall run concurrently.
Accordingly, the appeal fails in so far as they are concerned except in relation to the modification in the conviction and sentences as directed above.

summary:
Appellants Nos.
1 to 6 were charged and convicted for two offences under section 302 read with section 149 and one under section 148 of the Indian Penal Code for having caused the death of two persons.
Appellants Nos.
1 to 4 and 6 are inter related, while appellant No. 5 is Their friend, and the two deceased are brothers.
Appellants Nos.
1 to 4 and 6 lived Jointly in a house which abutted on a road 14 feet wide.
Opposite, their house lay the one belonging to the two deceased.
The waste water emanating from the house of the appellant No. 1 had been flowing towards the road and seeping into the western wall of the house of the deceased.
This resulted in inimical relation between the two parties.
Animosity also prevailed among the parties on account of the fact that The family of the deceased had earlier sold to a third person some land which they wanted to repurchase but were thwarted in their designs by the appellants who were instigating the vendee not to re sell the land to the deceased.
The prosecution alleged that on the fateful day, in the morning there was a dispute and altercation between the two deceased and the appellants.
The incident was noticed by PW 20 who intervened and separated them disarmed the two deceased and threw away the sticks which he snatched from them.
At about 2 P.M.
On the same day all the appellants entered the house of the deceased armed with axes and sticks dragged out the deceased on the road and started beating them with their respective weapons.
PW 10 and PW 11, the wives of the deceased intervened and they also received injuries at the hands of the appellants.
In the meantime PW 13, PW 14 and their brother Jayakar who came to the place of occurrence were beaten by the appellants who thereafter made good their escape.
The four injured brothers and the two ladies were removed to the Civil Hospital.
The two deceased succumbed to their injuries later.
Meanwhile appellant No. 1 reached the police station and he complained to the sub inspector (P.W. 24) that he and his family members had been attacked by the party of the deceased.
On learning that the opposite party had arrived at the local Civil Hospital, the sub inspector reached the hospital and recorded the statement (exhibit 55) of P.W. 12.
This formed the basis of the first information report registered at the police station.
On returning to the police station the sub inspector arrested appellant No. 1.
310 The case of the appellants was that feelings of enmity existed between the two opposing families for two or three years prior to the date of the occurrence, that on that dale there was exchange of abuses between appellants Nos. 1 to 3 on the one hand and the deceased on the other when the latter were about to assault the former but could not do so on account of the intervention of PW 20s that soon afterwards the two deceased and their three brothers assaulted appellants Nos. 1 to 4 with sticks and axes at the latters house when some of the assailants were disarmed and beaten back, and that appellants Nos.
4 to 6 were not present at the scene of the occurrence and had been involved in the case merely because they were related to the other appellants by ties of blood or friendship.
The Sessions Judge was of the opinion that the incident in which the two contending parties exchanged abuses and which came to a close with the intervention of PW 20 provided the motive for the assault in which the two deceased lost their lives and that the eye witnesses had given details of the occurrence which were omitted from their statements made to the police but that no significance could be attached to this aspect of the matter.
He further held that the occurrence took place on the road Lying in between the respective houses of the parties, that the participation of all the accused in the occurrence was natural and probable, that the party of the accused were able to inflict serious injuries on their opponents and themselves escaped with comparatively a mild beating and that therefore, there was no right of private defence available to the appellants.
On this finding the Sessions Judge convicted and sentenced the six appellants.
The appeal to the High Court was heard by a Division Bench, but on Account of difference of opinion among the Judges, the matter was referred to a third Judge and the appeal was dismissed in accordance with the majority opinion.
All the three Judges re appraised the evidence and while the majority arrived at the same conclusion as the Sessions Judge, the third Judge came to the finding that there was no reliable evidence to support he prosecution case that the accused were the aggressors.
In the appeals to this Court on the questions: (a) Whether the prosecution had proved beyond reasonable doubt that the party of the appellants were the aggressors and whether it was made out from the records that the latter may have acted in exercise of the right of private defence, and (b) whether the participation of all the appellants in the occurrence was satisfactorily made out: ^ HELD: (a) (i) The consideration of the ocular evidence coupled with the testimony of PW 20 and the circumstantial evidence especially the medical part, of it, prove beyond reasonable doubt that the party of the appellants were the aggressors.
[323F] (ii) The occurrence admittedly took place on the road in between the respective houses of the deceased and the appellants which is fully made out from the deposition of PW 20 who is no doubt a wholly independent and reliable witness.
He was attracted to the place of occurrence by a noise which reached him in his field after he had gone there subsequent to his witnessing the three brothers of the deceased running towards their house.
The circumstance that their other two injured brothers were also found lying on the road lends further strength to the conclusion that the occurrence took place on the road 311 itself and not at the house of the appellants.
It may also be safely assumed, apart from the fact that all the prosecution witnesses say so, that PW 's 12, 13 and Jayakar were not with the deceased at the inception of the fight and were, on the other hand, working in their fields.
[320 D G] (iii) If the party of the deceased were the aggressors and had made a concerted attack on the appellants who were taken unawares there is no reason why the former should have come out second best in the combat.
The fact that practically all the injuries received by the deceased were located in the head region and were inflicted with great force makes it highly probable that it was they who were taken unawares and had to bear the brunt of the attack which they had perhaps no means to repulse.
[321 B] (iv) The fact that the women folk of the deceased were also injured during the occurrence makes it probable that the ladies had to intervene because the fight was unequal and their respective husbands found it difficult to cope with it.
[321 G] (v) Another inference which may well be drawn from the consequences of the combat is that PWs 12 and 13 and their brother Jayakar probably reached the place of occurrence while their brothers were being belabored and that it was at this stage that the three new comers entered the arena and took up cudgels on behalf of their hapless family members.
[321 D] (vi) It is not unoften that improvements in an earlier version are made at the trial in order to give a boost to the prosecution case, albeit foolishly.
But that does not mean that falsity of testimony in one material particular would ruin it from beginning to end.
On the other hand the circumstance will be a goo reason merely for the court to be put on guard and sift the evidence with extraordinary caution and to accept those portions of it which appear fully trustworthy either intrinsically or by reason of corroboration from other trustworthy sources.
[321 G] (vii) The road has a width of only 14 feet and if two opposing parties consisting in all of six to ten persons, engage themselves in violence against each other, the exact place where the members of each would be injured may not mean anything especially if one of the parties is taken unawares and is unarmed.
[323 B] In the instant case, none of the injuries suffered by the appellants (except for one) was located on a vital part and all of them without exception were simple in nature, the injuries on the two deceased persons being in contrast practically all deadly.
[323 D] (b)(i) Appellants Nos.
4 to 6 are entitled to the benefit of doubt in the matter of their participation in the occurrence.
[324 B] (b) (ii) Appellants Nos. 1 to 3 are proved beyond reasonable doubt to have taken part in the fight.
They are not merely named in that behalf by the eye witness but admit their participation in the occurrence which is further assured by reason of the fact that all three of them were found injured immediately thereafter.
The same is not true of the other there who have denied their presence at the time and place of the occurrence and about whose participation in the fight no other assuring factors is forthcoming.
[323 G] 312 (iii) According to PW 20, appellant No. 4 was present at the scene when the abuses were exchanged but that fact is no guarantee of his participation in the occurrence which took place about a couple of hours later.
No incongruity results from the exclusion of appellants Nos. 4 to 6 from the fight be cause the other three appellants would have as effectively caused all the injuries found on the two deceased and the two ladies all by themselves as if they were caused by them with the assistance of appellants Nos. 4 to 6.
[323H 324A] (c) The offence under section 148 of the Code falls to the ground with the acquittal of appellant Nos. 4 to 6, and so does that under section 149 thereof.
The two offences of murder were committed by appellants Nos. 1 to 3 in furtherance of their common intention so that each one of them is liable to conviction on two counts under section 302 read with section 34 of the Indian Penal Code.
[324C D]


judgement:
Civil Appeals Nos.
1309 1310 of 1978.
Appeals by Special Leave from the Judgment and Order dated 29 6 1978 of the Patna High Court in C.W.J.C. Nos.
204 205 of 1978.
L. M. Singhvi, and section K. Verma for the Appellants.
Dr. Y. section Chitale, section K. Sharma, R. K. Jain, R. A. P. Singh, R. P. Singh and B. P. Singh for the Respondent Nos.
3 10, 12, and 13 in CA 1309/78.
R. K. Jain and R. A. P. Singh for RR 4, 6, 7 & 9 in CA 1310/78.
R. K. Garg, R. A. P. Singh and B. P. Singh for the RR 8 in both the appeals.
D. Goverdhan for the R 1 in both the appeals.
The Judgment of the Court was delivered by GUPTA J.
The controversy in these two appeals by special leave relates to the question of seniority between the direct recruits and the promotees in the rank of Deputy Superintendent of Police in the Bihar Police Service.
The appellants the same persons in both appeals are promotees who question the correctness of the judgment of the Patna High Court by which the High Court allowed the two writ petitions made by two different groups of direct recruits challenging the gradation list of permanent Deputy Superintendents of Police published on February 24, 1978.
Fifty four temporary posts of Deputy Superintendent of Police created between 1948 and 1970 were made permanent "from the dates of their creation" by the Government of Bihar in December, 1977.
Earlier, the Government had decided that continuous officiating service of the promoted Deputy Superintendents of Police in these posts should be the basis of their seniority.
Following this decision, after the temporary posts had been made permanent, the gradation list in question was prepared and published.
Admittedly there is no statutory rule governing seniority inter se of direct recruits and promotees.
In the absence of any such rule 453 prescribing a different criterion, it cannot be disputed after Patwardhan 's case(1) that continuous officiation is a reasonable basis for fixation of seniority.
The High Court, however, allowed the writ petitions filed by the direct recruits on the view that the gradation list was invalid as it infringed rule 3 of the Bihar Police Service (Recruitment) Rules, 1953 framed under the Proviso to Article 309 of the Constitution of India.
Rule 3 is in these terms: "The Governor shall decide in each year to number of vacancies to be filled in that year.
Provided that the number of vacancies to be filled by promotion in the service in any one year shall not, unless the Governor is satisfied that there is not a sufficient number of officers fit for promotion, be less than half the total number of vacancies to be filled in any such year.
" Before we proceed to consider the scope of this rule and its effect on the question of seniority in this case, it would be necessary to refer to a few more provisions of the Bihar Police Service (Recruitment) Rules and some facts forming the background to the controversy.
It is the Governor 's duty under Rule 3 to decide "in each year" the number of vacancies in the Bihar Police Service required to be filled "in that year".
The proviso to the rule states that the promotees be to be appointed in any particular year shall not be less than half of the total number of vacancies to be filled in that year unless sufficient number of officers fit for promotion is not available.
It is important to remember that rule 3 does not prescribe a fixed quota for each of the two categories, direct recruits and promotees, but only insists that at least half the vacancies in any year should be reserved for the promotees.
Rule 2 of these Rules states that recruitment to Bihar Police Service shall be made by direct recruitment and by promotion.
A third source of recruitment was later added in the Rules in 1975 with which we are not concerned in this case.
The Rules as regards direct appointment are included in part II of the Rules.
Rules 22, 23 and 24, occurring in part III of the Rules lay down the method of recruitment by promotion.
Under rule 22 a preliminary selection of officers for promotion is made in each Range by Range Selection Board.
Those selected by the Range Selection Board have to appear before the Inspector General 's Selection Board.
The Inspector General 's Selection Board has to nominate for appointment twice as many candidates as there are vacancies to be filled by 454 promotion and to send all relevant papers relating to the candidates nominated by it to the Bihar Public Service Commission and, at the same time, submit a list of such candidates to the Governor.
The Public Service Commission after examination of the Papers is required to submit its recommendations to the Governor.
Rule 24 says that the final selection of officers to be promoted shall be made by the Governor after considering the recommendations made by the Public Service Commission.
The appellants in both these appeals were appointed as Inspectors of Police in 1953.
After working as Inspectors for about 12 years, they were promoted by notification issued on June 16, 1965 to officiate as Deputy Superintendents of Police.
Before promotion they were subjected to the scrutinies prescribed by rules 22, 23 and 24 of the Bihar Police Service (Recruitment) Rules, 1953.
Rule 648 B of the Bihar and Orissa Police Manual (Volume I) requires a promoted Deputy Superintendent of Police to pass an examination in accounts.
This rule further says that a promotee shall be on probation for one year and at the end of the period, if he has passed the said examination and is found fit, he will be confirmed.
The rule adds that if he has officiated as Deputy Superintendent for one year or more he may be confirmed without further probation on his passing the examination in accounts.
The appellants passed the examination and thus satisfied all the requirements for confirmation.
However the posts in which they were officiating were temporary posts.
It appears from a memorandum issued by the State Government on December 28, 1955 that the Government considered it "desirable that all temporary posts of all categories, gazetted as well as non Gazetted, which are in existence at present and which will be necessary for an indefinite period should be made permanent with effect from 1st April, 1956".
This was followed by another memorandum on September 9, 1967 addressed to "All Departments of Govt." and "All Heads of Departments" on the "Policy regarding making temporary posts under Govt.
in existence from a long period, permanent" which said that the Government had taken a decision that "steps should immediately be taken . to make all those posts permanent which are in existence for more than three years and are likely to continue in future.
" A third memorandum on the subject issued on November 19, 1971 expressed dissatisfaction that "no effective step" had been taken to make the temporary posts permanent and requested all heads of departments to take "necessary steps" "immediately" to implement the Government decision.
Apparently even the third memorandum failed to have any effect.
455 By a notification dated August 22, 1974 the State Government confirmed appellants and other similarly situated officers as Deputy Superintendents of Police with effect from dates which according to these officers were arbitrarily chosen.
On September 1, 1974 the Government published a combined gradation list in which these promotees were placed even below the direct recruits who were appointed in 1974.
The appellants challenged this gradation list in the Patna High Court by a writ petition (C.W.J.C. 2011 of 1976).
While that writ petition was pending, the Government of Bihar constituted a high power committee, known as the Saran Singh Committee, to assess the promotional prospects of different State services, examine the problem of "stagnation", and suggest remedial measures.
The recommendations made by the Committee were accepted by the Government by resolution dated April 11, 1977.
One of the decisions taken by the Government upon the recommendations of the Committee, which were set out in the schedule annexed to the resolution, was as follows: "The seniority of promoted officers vis a vis direct recruits should be determined by taking into account the continuous officiating service instead of on the basis of the length of substantive service in the cadre.
" On behalf of the State Government it was submitted before the High Court at the hearing of the aforesaid writ petition (C.W.J.C. 2011 of 1976) that the Government proposed to re examine the gradation list in the light of the Committee 's recommendations.
On this statement the High Court directed the State Government to re examine the matter and prepare a fresh gradation list.
None of the parties appealed against this order.
Thereafter, on December 30, 1977, the State Government wrote to the Accountant General, Bihar, saying that on the basis of the Government decision that continuous officiating service of the promoted Deputy Superintendents of Police was to be the basis of their seniority, the Government had decided that "the temporary posts created in the Home (Police) Department would be made permanent from the dates of their creation." Accordingly 54 temporary posts brought into existence between 1948 and 1970 were converted into permanent posts by Government order No. 16161 also dated December 30, 1977.
By notification dated January 7, 1978 the State Government appointed on probation the officers who had been officiating in those posts with effect from the dates mentioned against their names in the notification and the notification issued previously promoting these officers on officiating basis was cancelled.
The dates from which these officers were said to have been appointed 456 on probation were the dates of their promotion as officiating Deputy Superintendents of Police.
The names of the appellants figure against serial numbers 23, 24 and 25 in the list given in the notification dated January 7, 1978.
It is difficult to see why this method of converting the officiating appointment into one on probation was thought necessary.
Rule 648 B of the Bihar and Orissa Police Manual (Volume I) to which reference has been made earlier in this judgment provides that if a promotee has officiated as Deputy Superintendent for one year or more, he may be confirmed without further probation on his passing the examination in accounts.
It has been already stated that all the appellants had passed the examination.
However, the revised gradation list which is under challenge was thereafter issued.
This list, it was stated in a letter dated January 31, 1978/February 24, 1978 addressed by a Joint Secretary of the State Government to the Inspector General of Police, Bihar, Patna, had been "prepared on the basis of the date of appointment, officiating or permanent, whichever is earlier, in the Bihar Police in the light of Finance Department Resolution No. 3521 dated 11 4 77 and judgment of the High Court in C.W.J.C. No. 2011/76. " In the context of the present controversy two important facts which have to be kept in mind are: (i) the appellants were promoted to officiate as Deputy Superintendents of Police in the year 1965 (other promotees like the appellants had also been officiating as Deputy Superintendents of Police from different dates between 1948 and 1970) and (ii) by Government order dated December 30, 1977 fifty four temporary posts of Deputy Superintendent of Police created between 1948 and 1970 were made permanent from the dates these posts were created.
The only question here is whether there was anything wrong in fixing the inter se seniority of the promotees and the direct recruits on the basis of continuous officiation by the promotees.
It is well settled that in the absence of any legislation on the subject, or a rule framed under the Proviso to Article 309 of the Constitution, the State Government can regulate its public services in the exercise of its executive power.
(see B. N. Nagarajan vs State of Mysore and Sant Ram Sharma vs State of Rajasthan(2).
In the case before us there is no statute or any rule framed under the Proviso to Article 309 to determine the seniority as between the direct recruits and the promotees.
The determination of seniority on the basis of continuous officiation has been held valid in section B. Patwardhan 's case 457 (supra).
The gradation list cannot therefore be challenged on the ground that an arbitrary date was taken as its basis or that it offends Article 14 of the Constitution.
It is however contended on behalf of the respondents who were the writ petitioners in the High Court that rule 3 of the Bihar Police Service (Recruitment) Rules, 1953 framed under the Proviso to Article 309 of the Constitution, though it is not a seniority rule, does not permit the course adopted in this case by the Government, namely, converting the temporary posts created between 1948 and 1970 into permanent posts in the year 1977 with effect from the dates on which the temporary posts had been created.
Under rule 3 the Governor has to decide in each year the number of vacancies to be filled in that year and to secure not less than half of the total vacancies for the promotees.
The argument is that for the year 1965 or for that matter for any year prior to 1977 when the notification under challenge was issued, the Governor had duly exercised his power under rule 3 in that very year, and adding to the number of existing permanent posts by an order made in a subsequent year after the Governor had ascertained the number of vacancies required to be filled and had them filled according to the ratio prescribed by rule 3, would disturb that ratio and contravene rule 3.
We are unable to accept this contention as correct.
In the year 1977 exigencies of the situation prompted the Government to convert the temporary posts created between 1948 and 1970 into permanent posts with effect from the dates on which the temporary posts had been created.
The appellants were promoted in 1965 to officiate as Deputy Superintendents of Police in posts which were then temporary.
The Governor while exercising his powers under rule 3 in the year 1965 could not naturally take into account the number of posts made permanent in 1977 with effect from 1965.
Whatever was done subsequently to increase the strength of the cadre in 1965 under compulsion of the situation cannot be said to have affected the validity of the action taken by the Governor in 1965.
In section G. Jaisinghani vs Union of India & Ors.(1) this Court held that when the quota was fixed for the two sources of recruitment, it could not be altered according to exigencies of the situation.
But rule 3 is not really a quota rule, it does not lay down a fixed proportion, all it does is to insist that the number of vacancies to be filled by promotion should not be less than half of the total number of vacancies to be filled in any year.
Adding to the number of vacancies and filling them by promotees does not certainly violate the rule requiring that not less than half of the vacancies must be 458 filled by promotees.
What the Governor had done in a previous year in exercise of his powers under rule 3, if it was valid then, is not invalidated by the subsequent conversion of some posts which were temporary at the time into permanent posts with effect from the earlier year.
If for administrative reasons such a measure was considered necessary, there is nothing in rule 3 to suggest a bar.
Rule 3, as already mentioned, does not prescribe a fixed proportion of promotees and direct recruits for the vacancies to be filled in any year but only ensures not less than half of the vacancies for the promotees; that being so, filling more than half of the vacancies by promotees, cannot be an infringement of that rule.
In the view we have taken, it is unnecessary to consider two other subsidiary questions raised: (1) whether the cadre consisted only of permanent posts or included both permanent and temporary posts: according to the appellants the cadre should include both temporary and permanent officers in the absence of any rule to the contrary.
In this Judgment in reaching the conclusion stated above we have assumed that the cadre consisted of permanent officers only; (ii) Whether rule 3 has ever been followed since the Rules were framed in 1953; according to the appellants rule 3 has really not been observed in any of those years and that no question of contravention of the rule can therefore be raised in this case.
In the result we allow the appeals, set aside the judgment of the High Court and dismiss the writ petitions C.W.J.C. 204 of 1978 and C.W.J.C. 205 of 1978 filed in the High Court.
It appears from an affidavit sworn by Shri Ashok Kumar Sinha, Under Secretary, Home (Police) Department, on behalf of the State of Bihar on August 31, 1979 and filed in this Court on the same day that the gradation list in question contains certain mistakes; these shall be corrected by the concerned authority.
In the circumstances of the case we make no order as to costs.
N.K.A. Appeals allowed.

summary:
The appellants were appointed Inspectors of Police in 1953.
After working as Inspectors for about 12 years, they were promoted by notification dated June 16, 1965 to officiate as Deputy Superintendents of Police.
Before promotion they were subjected to the scrutinies prescribed by rules 22, 23 and 24 of the Bihar Police Service (Recruitment) Rules, 1953.
Rule 648 B of the Bihar and Orissa Police Manual (Volume I) requires a promoted Deputy Superintendent of Police to pass an examination in accounts.
The appellants passed the examination and satisfied all the requirements for confirmation.
However, the posts in which they were officiating were temporary posts.
Thereafter the Government by a notification dated August 22, 1974, confirmed the appellants and other similarly situated officers as Deputy Superintendents of Police with effect from the dates which according to these officers were arbitrarily chosen.
On September 1, 1974 the Government published a combined gradation list in which these promotees were placed even below the direct recruits who were appointed in 1974.
The appellants challenged this gradation list in the High Court by a Writ Petition and during the pendency of the said Writ, the State Government constituted "Saran Singh Committee", to assess the promotional prospects of different State services, examine the problem of "stagnation", and suggest remedial measures.
The recommendations of the committee were accepted by the State Government by Resolution dated April 11, 1977.
In the Writ Petition, the High Court directed the State Government to re examine the matter and prepare a fresh gradation list on the basis of the statement made by the Government in the light of the committees ' recommendations.
None of the parties appealed against this order.
By notification dated January 7, 1978 the State Government appointed on probation the Officers who had been officiating in those posts with effect from the dates mentioned against their names in the notification and the notification issued previously promoting these officers on officiating basis was cancelled.
The dates from which these officers were said to have been appointed on probation were the dates of their promotion as officiating Deputy Superintendents of Police.
The names of the appellants figured against serial numbers 23, 24 and 25 in the list given in the notification dated January 7, 1978.
The revised gradation list which is under challenge was thereafter issued.
451 The appellants questioned the correctness of the Judgment of the High Court which allowed the two Writ Petitions made by two different groups of direct recruits challenging the gradation lists of permanent Deputy Superintendents of Police on February 24,1978.
Accepting the appeal, ^ HELD: 1.
The appellants were promoted to officiate as Deputy Superintendents of Police in the year 1965 (other promotees like the appellants had also been officiating as Deputy Superintendents of Police from different dates between 1948 and 1970), and by the Government order dated December 30,1977 fifty four temporary posts of Deputy Superintendent of Police created between 1948 and 1970 were made permanent from the dates these posts were created.
[456D G] 2.
It is well settled that in the absence of any legislation on the subject, or a rule framed under the Proviso to Article 309 of the Constitution, the State Government can regulate its public services in the exercise of its executive power.
[456 F G] B. N. Nagarajan vs State of Mysore , Sant Ram Sharma vs State of Rajasthan ; , referred to.
There is no statute or any rule framed under the Proviso to Article 309 to determine the seniority as between the direct recruits and the promotees.
The determination of seniority on the basis of continuous officiation has been held valid in section B. Patwardhan 's case ; The gradation list cannot therefore be challenged on the ground that an arbitrary date was taken as its basis or that it offends Article 14 of the Constitution.
[456G H. 457A] 4.
In the year 1977 exigencies of the situation prompted the Government to convert the temporary posts created between 1948 and 1970 into permanent posts with effect from the dates on which the temporary posts had been created.
The appellants were promoted in 1965 to officiate as Deputy Superintendents of Police in posts which were then temporary.
The Governor while exercising his powers under rule 3 in the year 1965 could not naturally take into account the number of posts made permanent in 1977 with effect from 1965.
Whatever was done subsequently to increase the strength of the cadre in 1965 under compulsion of the situation cannot be said to have effected the validity of the action taken by the Governor in 1965.
[457 F] section G. Jaisinghani vs Union of India & Ors. ; ; referred to.
Rule 3 of the Bihar Police Service (Recruitment) Rules, 1953 is not really a quota rule, it does not lay down a fixed proportion, all it does is to insist that the number of vacancies to be filled by proportion, should not be less than half of the total number of vacancies to be filled in any year.
Adding to the number of vacancies and filling them by promotees does not certainly violate the rule requiring, that no less than half of the vacancies must be filled by promotees.
What the Governor had done in a previous year in exercise of his power under rule 3, if it was valid then is not invalidated by the subsequent conversion of some posts which were temporary at the time into permanent posts with effect from the earlier year.
If for administrative reasons 452 such a measure was considered necessary, there is nothing rule 3 to suggest a bar.
Rule 3, as already mentioned, does not prescribe a fixed proportion of promotees and direct recruits for the vacancies to be filled in any year but only ensures not less that half of the vacancies for the promotees, that being so, filling more than half of the vacancies by promotees, cannot be an infringement of that rule.
[457G H, 458A B] 6.
The gradation list contains certain mistakes, and these shall be corrected by the concerned authority.
[458F]