judgement:
Appeal No. 254 of 1962.
572 Appeal by special leave from the Award dated May 1, 1961, of the Industrial Tribunal (111), U.P. at Allahabad in Reference No. 69 of 1959.
G.S. Pathak, J. B. Dadachanji, O. C. Mathur and Ravinder Narain, for the appellants.
B. P. Maheshwari, for the respondents.
1962, August 3 The Judgment of the court was delivered by MUDHOLKAR, J.
The only point for consideration in this appeal by special leave from an award of the Industrial Tribunal at Allahabad is whether the "crushing season" of 1958 59 must be deemed to have ended on March 12, 1959 when the actual crushing of sugar cane stopped or on March 16, 1959 when all ancillary operations in the factory came to an end and the entire machinery was at a standstill.
According to the appellants the "crushing season" came to an end on the latter date while according to the respondents who are the employees of the factory it came to an end on the former date.
The importance of determining the date on which the season terminated arises out of the admitted position that only those seasonal workers who are borne on the muster roll of the factory on the day next to the date on which the crushing season ended would be entitled to three days ' clos ure holidays.
It is the case of the respondents that the appellants employ about 1,600 seasonal workers and about 650 permanent workers.
It is common ground that the crushing process terminated on March 12, 1959, and on that day about 1,000 of the 1,600 seasonal workers left for their homes by the evening after receiving all their dues.
The remaining seasonal workers continued to work in the factory till March 16, 1959, and, therefore, under 573 a term of an award of the Industrial Tribunal in reference No. 33 of 53 and dated April 15, 1953, they are entitled to three days ' closure holidays.
The case of the appellants, however, is that the crushing season must be regarded as having ended on March 16, 1959 which was the last day on which the factory was worked and that only those seasonal workers who were borne on the muster roll of the factory on March 17, 1959 would be entitled to three days ' closure holidays.
The 600 seasonal workers who worked till the evening of March 16, 1959, would therefore, according to them not be entitled to closure holidays.
During arguments Mr. Pathak also suggested that the fact that between March 12 and March 16,1959, 600 seasonal workers continued to work in the factory has not been established in this case.
Taking up the last point it is sufficient to point out that the evidence of W. W. 1, B. section Chauhan, who is a member of the executive of the U. P. Trade Union Congress, Kanpur, shows that the seasonal workers other than those who left on the evening of March 12, 1959, were borne on the muster roll of the appellants on March 13, 1959.
His evidence on the point has not been challenged in the cross examination.
Nor have the appellants examined any witness for the purpose of showing how many seasonal workers were borne on the muster roll on March 13, 1959.
The only witness examined by them, Shri K. K. Sinha, who is working as Manufacturing Chemist, has no knowledge about the matter because, as admitted by him in his cross examination, he was not working in the mills in the 1958 59 crushing season.
Since the total number of seasonal workers was 1,600 and nearly a thousand had left on March 12, 1959 the number of those, who continued to work till March 16, 1959 must be six hundred.
We must, therefore.
proceed on the basis that the names of about 600 574 seasonal workers continued to be borne on the muster roll of the appellants on March 13, 1959.
What has to be considered then is what was the date on which the crushing season of 1958 59 ended.
It seems to us clear that the crushing season must be deemed ' to have ended on the date on which the crushing operations in the factory came to an end and not on the date on which the manu facturing processes in the factory came to an end.
We must give to the expression crushing season" its ordinary meaning, unless it is shown that in.
the industry it has acquired some other meaning There was no evidence before the Tribunal to the effect that crushing season" meant the period during which the factory was actually working and not merely the period during which the crushing operations were being carried on.
Clause (3), of the Award of 1953 runs as follows:"All permanent workers and such seasonal employees as are on the factory 's roll on the day following the close of the crushing season will be entitled to the clos ure holidays.
" There is nothing in the Award to indicate that according to the Tribunal "crushing season" meant anything else than the period during which Crushing operations were carried on.
Since, as already pointed out the operations came to an end on March 12,1959 the crushing season must be held to have ended on that day.
Those seasonal workers who were borne on the muster roll on March 13, 1959 would be entitled to, three days, closure holidays.
Agreeing with the Tribunal we therefore, uphold the Award and dismiss the appeal with costs.
Appeal dismissed.

summary:
The appellants employed about 1,600 seasonal workers and about 650 permanent workers.
The cane crushing process terminated on March 1,2, 1959, and on that day about 1,000 of the 1,600 seasonal workers left for their homes by the evening after receiving their dues.
The remaining seasonal workers continued to work in the factory till March 16, 1959.
Under the term of a previous award, they were entitled to three days ' closure holidays.
According to the Appellant the crushing season must be regarded as having ended on ' March 16, 1959, which was the last day on which the factory was worked and that only those seasonal workers who were borne on the muster roll of the factory on March 17, 1959, would be entitled to three days ' closure holidays.
The point for consideration was whether the "Crushing season" of 1958 59 must be deemed to have ended on March 12, 1959, when the actual crushing of sugar cane stopped, or on March 16, 1959.
when all ancillary operations in the factory came to an end and the entire machinery was at a stand still.
Held, that the expression "Crushing Season" must be given its ordinary meaning unless it is shown that in the industry in question it has acquired some other meaning.
There was no evidence, before the tribunal to the effect that "crushing season" meant the period during which the factory was actually working and not merely the period during which the crushing operations were being carried on.
Since the operations came to an end on March 12, 1959, the crushing must be held to have ended on that day, and, therefore, the seasonal workers borne on the muster roll on March 13, 1959, were entitled to three days ' closure holidays.


judgement:
minal Appeal No. 119 of 1961.
Appeal from the judgment and order dated December 21, 1961, of the Calcutta High Court in Cr. A. No. 423 of 1958.
P. K. Chakravarty, for the appellant.
section C. Mazumdar, for respondent No. 1.
D. N. Mukherjee, P. K. Mukherjee for P. K. Bose, for the respondent No. 2. 1962.
August 3.
The Judgment of the Court was delivered by SINHA, C.J.
This appeal on a certificate of fitness granted by the High Court under Act 134(1), (c).
566 of the Constitution, is directed against the order of a Division Bench of the Calcutta High Court dated December 21, 1960, setting aside the order of acquittal passed by the trial Magistrate, dated July 2, 1958.
We heard this appeal on the eve of the long vacation and pronounced our order to the effect that the appeal was allowed and the order of acquittal was to stand, and that reasons would be given later.
It appears that the appellant, who it; a practising lawyer, had been employed by the respondent to work for him to investigate the title to some property which the latter was about to purchase, sometime in October 1952.
The prosecution case was that the respondent had entrusted the.
sum of Rs. 5000/ to the appellant for depositing in Court in connection with an application in respect of the proposed transaction, under the Bengal Money Lenders ' Act, and that the appellant having been so entrusted with the money, in breach of trust, misappropriated the amount, thus causing loss to his client.
The appellant was, therefore, charged under section 409 of the Indian Penal Code, with having committed criminal breach of trust in respect of the sum of Rs. 5000/ , which had been entrusted to him as a lawyer on behalf of the respondent.
The appellant defense was that the case, against him was false and that he had been falsely implicated for reasons which need not be stated.
In order to substantiate the charge against him, the complainant (now respondents examined himself and a number of witnesses.
He also adduced in evidence a certain document, marketed exhibit 1, purporting to be a letter in the handwriting of the appellant, to show that Rs. 4200/ being a portion of the amount of Rs. 5000/ required for the deposit, had been asked for by the appellant.
It also con tained writings in the hand of the complainant &owing that there was correspondence in the matter 567 of the deposit.
That was a very important piece of evidence, which if genuine could go a long way to prove the case against the appellant.
But the appellant challenged the document as a forgery in material parts, and cross examined the complainant who had produced the document.
In spite of the fact that the complainant was very pointedly cross examined with a view to showing that the document placed before the Court was a forgery in material parts, the complainant did not take any steps to get an expert on handwriting examined.
The trial Court, on an examination of the evidence, oral and documentary, came to the conclusion that the case against the accused had not been proved and acquitted him.
The complainant preferred an appeal to the High Court against the order of acquittal, which was heard by a Division Bench, The High Court took the view that, in the circumstances of the case, there should be retrial by another magistrate, who should give an opportunity to the complainant to adduce the evidence of a handwriting expert in order to establish the genuineness of the questioned document.
Apparently, the High court, sitting in appeal on the judgment of the acquittal, passed by the learned Magistrate, was not satisfied as to the genuineness of the questioned document.
Otherwise it could have pronounced its judgment one way or the other, on the merits of the controversy, whether or not the prosecution had succeeded in bringing the charge home to the accused.
If it were not a case between a lawyer as an accused and his client as the complainant, perhaps the High Court may not have taken the unusual course of giving a fresh 'opportunity to the complainant to have second round of litigation, to the great prejudice of the accused.
In this connection, the following observations of the High Court may be extracted in order to show the reasons.for the unusual course it took in this case: 568 "Thus there can be no doubt that this was a document of considerable importance.
According to the prosecution it clearly showed the respondent 's connection with the sum of Rs. 4200/ which was a part of the sum of Rs. 5000/ , the subject matter of the charge.
According to the respondent, the figures 4200 and the Bengali word 'sankranta ' were for geries just as at the bottom of the document the word yes ' and the signature of the res pondent with date were also forgeries.
This case was clearly put by the respondent to Bimla, Krishna Ben and it was suggested to him that the impugned portions of the document were clear forgeries made by the appellant in order to falsely implicate the respondent.
It must be said that inspite of this challenge, the appellant took no steps what.
ever to produce expert evidence to aid the court in coming to a conclusion as to the authorship of the impugned portion of the document.
It is true that expert evidence cannot always be a final settler; still in a call of this kind, it is eminently desirable that the court should be assisted by a qualified expert since almost the whole case depends upon proof of the fact whether the impugned portions of that document were in the hand of the respondent. .
Comment was also made by the Magistrate on the appellant 's failure to call expert evidence.
In one sense that comment was justified; but in a case of this kind between lawyer and client we think the matter cannot be left, where it is.
In view of the fiduciary relation.
ship between the parties it is as much necessary in the interest of, the prosecution as in.
the interest of the accused that the whole matter should be cleared ' up, and no steps 569 should be spared which might ensure complete justice between the parties.
If it were an ordinary case between one litigant and another, we might have hesitated at this dis tance of time to send the case back even though the prosecution did not avail of the opportunity of proving its own case.
" In all civilised countries, criminal jurisprudence has firmly established the rule that an accused person should not be placed on trial for the same offence more than once, except in very exceptional circumstances.
In this case, the complainant had the fullest opportunity of adducing all the evidence that he was advised would be necessary to prove the charge against the accused person.
It was not that he proved for the examination of an expert and that opportunity had been denied to him.
The prosecution took its chance of having a decision in its favour on the evidence adduced by it before the trial Court.
That Court was not satisfied that evidence was adequately reliable to bring the charge home to the accused.
The accused was thus acquitted.
On appeal, it was open to the High Court to take a different view of the evidence, if the facts and circumstances placed before it could lead to the conclusion that the appreciation of the evidence by the trial Court was so thoroughly erroneous as to be wholly unacceptable to the Appellate Court.
If the High Court could come to the conclusion, it could have reversed the judgment and converted the order of acquittal into an order of conviction.
But it should not have put the accused to the botheration and expense of a second trial simply because the prosecution did not adduce all the evidence that should, and could, have been brought before the Court of first instance.
It is not a case where it in open to the Court of Appeal, against an order of acquittal, to order a retrial for the reasons that 570 the trial Court has not given the prosecution full opportunity to adduce all available evidence in support of the prosecution case.
It has no where been suggested that the trial Magistrate had unreasonably refused any opportunity to the prosecution to adduce all the evidence that it was ready and willing to produce.
That being so, the High Court, in our judgment, entirely misdirected itself in setting aside the order of acquittal and making an order for a fresh trial by another Magistrate, simply on the ground that the case was between a lawyer and his client.
Simply because the accused happened to be a lawyer would not be a ground for subjecting him to harassment a second time, there being no reason for holding that his prosecutor had not a fair chance of bringing the charge home to him.
In our opinion, the High Court gave way to considerations which were not relevant to a criminal trial.
The High Court was not sitting on a disciplinary proceeding for professional misconduct.
It had to apply the same rules of criminal jurisprudence as.
apply to all criminal trials, and, in our opinion, the only.
reason given by the High Court for ordering retrial is against all well established rules of criminal jurisprudence.
The fact that the appellant is a practising lawyer does not entitle him to any preferential treatment when he is hauled up on a criminal charge, even as he is not subject to any additional disability because the cam was between a lawyer and his client.
There was no relationship of lawyer and client so far as the criminal case was concerned.
Hence, in our opinion, the order of retrial passed by the High Court is entirely erroneous and must be set aside.
Appeal allowed.

dataset_name: IN-Abs

summary:
The appellant, a practising lawyer engaged by.
the respondent to investigate title in respect of a property when the latter wanted to purchase, was prosecuted by him on a charge under a. 409 & the Indian Penal Code for misappro printing a sum of Rs. 50001 entrusted to him for that purpose.
The prosecution mainly depended on a letter written by the appellant which would show that a sum of Rs. 4200/ out of the said amount of Rs. 5000/ had been asked for by the appellant.
This letter was challenged as a forgery by the 565 appellant.
The respondent did not call a hand writing expert nor was he denied an opportunity to do so.
The trial Magistrate held that the prosecution case had not been proved and acquitted the appellant.
The High Court on appeal by the respondent set aside the order of acquittal on the ground that the appellant was a practicing lawyer in fiduciary relationship with his client and directed that the appellant be retried, by smother Magistrate with opportunity to the respondent to examine a hand writing expert in order to establish the genuineness of the said letter.
It held that since the case was one not between ordinary litigants but between a lawyer and his client, involving a fiduciary relationship, no steps should be spared to ensure complete justice between the parties and the case must be sent back even though the prosecution did not avail of the opportunity of proving its own case.
Held, that the order of the High Court were entirely erroneous and must, be set aside.
There was no ground for directing a retrial and the appellant could not be put to a second trial for the same offence simply because of the failure of the complainant to adduce all the evidence that should and could, have been adduced.
The fact that the appellant was a lawyer could make no difference and the same rules of criminal, jurisprudence that applied to all must apply to him.
Further, the High Court was not exercising disciplinary jurisdiction and no relationship of lawyer and client was involved in the criminal case.


judgement:
minal Appeal No. 218 of 1959.
Appeal by special leave from the Judgment and order dated September 8, 1959, of the Punjab High Court in Criminal Appeal No.354 of 1959. ' Frank Anthony, K. C. Agarwala and P. C. Agarwala for the appellant.
B.K. Khanna and P. D. Menon, for the respondent.
August 21.
The Judgment of the Court was delivered by 680 SHAH, J.
After arguments were concluded in this appeal we ordered that the appellant Narain Singh be acquitted of the offence under section 304 Part II of the Indian Penal Code of which he wag convicted and the sentence passed on him be set aside.
We proceed to set out our reasons in support of the order.
Narain Singh and his three nephews Mehar Singh, Mewa Singh and Pakhar Singh were tried before the Court of Session, Ludhiana for offences punishable under section 302 read with section 34.
of the Indian Penal Code, on the charge that on October 31, 1958, they had in furtherance of their common intention caused the death of one Bachan Singh by making a murderous assault on him.
The prosecution case was that in the evening of October 31, 1958, when Narain Singh and his three nephews were irrigating their field, Bachan Singh diverted the flow of water into his own filed.
Narain Singh and his nephews were thereupon enraged, and there was a quarrel between them and Bachan Singh.
Narain Singh and his nephews made an attack upon Bachan Singh with a kaholi, caused him serious injuries.
According to the prosecution, Mehar Singh at the time of the assault was armed with a spear, Pakhar Singh with a Kaholi, Mewa Singh with a salang and Narain Singh with a stick.
A Complaint was lodged about the assault with the Notice, and Bachan Singh was removed to the Civil Hospital, Ludhiana.
The Sub Inspector of Police investigating the case recorded the statement of Bachan Singh, and a First Class Magistrate of Ludhiana recorded his declaration on the evening of November 2, 1958.
Bachan Singh died on November 3, 1958.
Narain Singh and his nephwes were then prosecuted before the Court of Session Ludhiana for the offence of murder.
At the trial, Narain 681 Singh pleaded that he bad acted in exercise of the right of self defence and had caused injuries 'to Bachan Singh because the latter had thrown him down and had attempted to strangulate him.
His statement in the Court of Session, on which he was convicted, was as follows : "The correct facts are that when I objected to the deceased cutting the nakka he caught hold of me and threw me on the ground.
I was alone at the time.
The other three co accused were not with me.
After I had fallen on the ground the deceased attempted to strangulate me.
I was then wearing small kirpan.
I unsheathed it and used it in self defence causing a couple of injuries to the deceased on the alarm raised by me, Mehar Singh (my co accused) who was coming from the khal nearby, came to the spot and rescued me.
He was armless and did not cause any injury to the deceased.
I did not carry any stick but was wearing a small kirpan as usual.
" Pakhar Singh and Mews Singh denied their presence at the scene of offence.
Mehar Singh claimed that he was present at the scene, and he had tried to intervene and separate Bachan Singh and Narain Singh.
Narain Singh and Mehar Singh relied upon the circumstance that they also bad injuries on their person which were noticed when they were medically examined.
Narain Singh had six contused injuries and Mehr Singh had one incised injury and four abraded contusions.
Before the Court of Session, Jagir Singh a witness for the prosecution made important variations in his story as originally related by him in his complaint at the police station.
Kaka, who, it was claimed by the prosecution, was an eye witness, did not support the case for the prosecution.
Hakku, another witness, was 682 not examined by the prosecutor, but was merely " 'tendered for cross examination".
One Johri whose name was not mentioned in the complaint was also examined by the prosecutor.
Two statements of Bachan Singh which were in view of his ' death admissible as dying declarations one recorded by the Investigating Officer and the other by the First Class Magistrate, Ludhiana were also tendered in evidence.
The Sessions Judge held that the evidence of Jagir Singh was unreliable and That Johri could not have witnessed the assault.
The two dying declarations were.
in the view of the Judge, unreliable, for Bachan Singh had before he made the statements ample opportunity to know how the investigation was proceeding, had consulted Jagir Singh and had opportunity of discussing with him the case to be set up.
Again, the story set up in the dying declarations furnished no explanation of the injuries received by Narain Singh and Mehar Singh.
The medical evidence was also not helpful to the case for the prosecution.
Bachan Singh had four incised injuries on his person, three on the cheat, and the fourth on the ,,ring finger left side".
None of these injuries could be caused with a salang or a kaholi: the incised injuries could be caused by a spear and also by kirpan.
Therefore in the view of the Sessions Judge the oral and other evidence was insufficient to sustain the charge of .murder against the three nephews of Narain Singh.
Relying, however, upon the statement made by Narain Singh he held that the injuries on the person of Bachan Singh were caused by the former.
He observed that the marks of injuries on the person of Narain Singh "bore out his suggestion that Bachan Singh had obtained strong hold upon him with a view to strangulate him". ' But there was not an iota of evidence on the record to ' prove that Bachan Singh had attempted to strangulate him".
In the view of the Sessions Judge 683 there being no marks of injury, however slight, around the throat of Narain Singh and that he had not made a complaint to the medical officer who had examined him shortly after the assault "it was apparent that Narain Singh could have no apprehension of death or grievous hurt.
x x x x x The only apprehension which Narain Singh had was simple hurt and this certainly gave him no right to take the life of Bachan Singh.
" The Sessions Judge, therefore, hold that Narain Singh was justified in resisting Bachan Singh in exercise of the right of defence of person, but was not justified in using " 'the kirpan in such a. manner and with such force as to cause the death of Bachan Singh by piercing one of his lungs".
The Sessions Judge accordingly acquitted Mewa Singh, , Mehar Singh and Pakhar Singh of the offence charged and convicted Narain Singh of the offence punishable under a. 304 Part Tr of the Indian Penal (ode and sentenced him to suffer rigorous imprisonment for five years.
Against the order of conviction and sentence Narain Singh preferred an appeal to the High Court of Punjab.
The High Court agreed with the view of the Sessions Court that the evidence was insufficient to establish the case for the prosecution, the High Court also held that the Sessions Court was justified in relying upon the statement made by Narain Singh under section 342 of the Code of Criminal Procedure and in holding that Narain Singh "had exceeded the right of self defence by causing the death of Bachan Singh by stabbing him with a kirpan.
had committed an off nee punishable under s 304 part 11 Indian Penal Code.
The High Court, however, reduced the sentence imposed upon Narain Singh to rigorous imprisonment for 3 years and subject to that modification dismissed the 684 appeal against the order of conviction and sentence.
With special leave Narain Singh had appealed to this Court.
The case for the prosecution was that Narain Singh, when he participated in the assault on Bachan Singh, was armed with a stick.
but the evidence of the witnesses about the assault on Bachan Singh has not been accepted by the Court of Session and the High Court.
In the view of the Courts injuries on the person of Bachan Singh were caused by Narain Singh by striking him with a kirpan, and the three nephews of Narain Singh had not participated in the assault.
In finding Narain Singh guilty of the offence under s.304 Part II for causing injuries to the victim Bachan Singh with a, kirpan the Court of Session and the High Court have accepted a case which was not the case of the prosecution, but have relied only upon the statement Narain Singh made in his defence.
Under s.342 of the Code of Criminal Procedure by the first subsection, insofar as it is meterial, the Court may at any stage of the enquiry or trial and after the witnesses for the prosecution have been examined and before the accused is called upon for his defence shall put questions to the accused person for the purpose of enabling him to explain any circumstance appearing in the evidence against him.
Examination under s.342 is primarily to be directed to those matters on which evidence has been led for the prosecution to ascertain from the accused his version or explanation if any, of the incident which forms the subject matter of the charge and his defence.
By sub section
(3), the answers given by the accused may "be taken into consideration" at the enquiry or the trial.
If the accused person in his examination under 9.342 confesses to the commission of the offence charged against him the court may, relying, upon that confession, proceed to convict him, but if he does not confess and in 685 explaining circumstance appearing in the evidence against him sets up his own version and seeks to explain his conduct pleading that he has committed no offence, the statement of the accused can only be taken into consideration in its entirety.
It is not open to the Court to dissect the statement and to pick out a part of the statement which may be incriminative, and then to examine whether the explanation furnished by the accused for his conduct is supported by the evidence on the record.
If the accused admits to have done an act which would but for the explanation furnished by him be an offence, the admission cannot be used against him divorced from the explanation.
The courts below were of the view that the prosecution evidence as it stood, was insufficient to bring home the charge against Narain Singh and his nephews.
The case for the prosecution that Narain Singh was armed with a stick and joined in the assault upon Bachan Singh was sought to be established by affirmative evidence.
The case failed because the evidence in support of the case was unreliable.
Narain Singh admitted that he had caused injuries to Bachan Singh with a Kirpan carried by him, but he explained that lie caused the injuries when he was thrown down and Bhchan Singh was attempting to strangulate him.
There can be no doubt that if a person reasonably apprehends that his assailant is attempting to strangulate him, exercise of the right of defence of person extends even to causing death of the assailant.
Narain Singh pleaded that he had fallen down and Bachan Singh attempted to strangulate him and therefore he caused injuries to Bachan Singh in exercise of the right of self defence.
This plea had to be considered as a composite plea.
, it was not open the court to investigate whether Narain Singh could have reasonably apprehended such injury to 686 himself as justified him in causing the death of Bach in Singh.
Where a person accused of committing an offence sets up at his trial a plea that he is protected by one of the exceptions, general or special, in the Indian Penal Code, or any other law defining the offence the burden of proving the exception undoubtedly lies upon him.
But this burden is only undertaken by the accused if the prosecution case establishes that in the absence of such a plea he would be guilty of the offence charged.
The prosecution case, however, did not by reliable evidence establish affirmatively that Narain Singh had done any act which rendered him liable for the offence of murder.
His responsibility, if any, arose only out of the plea raised by him: if the plea .amounted to a confession of guilt the court could convict him relying upon that plea, but if it amounted to admission of facts and raised a plea of justi fiction, the court could not proceed to deal with the case as if the admission of facts which were not part of the prosecution case was true, and the evidence did not warrant the plea of justification.
The courts below were, therefore, in our judgment, in error in convicting Narain Singh of the offence under s.304 Part II of the Indian Penal Code.
Appeal allowed.

summary:
The appellant and three others 'were charged with the murder of B. The prosecution case was that there was a dispute between B and the accused over diverting the flow of water in the fields, that the appellant armed with a stick and the others with spear, kaholi and salang assaulted B and B died of the injuries infliced.
In his statement under section 342 Code of Criminal Procedure the appelant stated that B had thrown him on the ground and had 679 attempted to strangulate him whereupon the took out his kirpan and struck B in self defence.
The Sessions Judge disbelieved the prosecution evidence and acquitted the three other accused persons ; but he convicted the appellant under s.304 Part 11 Indian Penal Code relying on a part of his statement in which he admitted having strick blows but rejecting the part that B attempted to strangulate him.
He had that the only apprehension which the appellant could have was of simple hurt which did not give him the right to cause the death of B. On appeal the High Court confirmed the conviction.
Held, that the conviction of the appellant under s.304 Part 11 Indian Penal Code could not it and.
In convicting the appellant the courts below had accepted A case which was not the case of the prosecution but had relied only upon a part of the statement of the appellant made in his defence.
It was not open to the courts to dissect the statement and to pick out the incriminating part and to reject the excul patory part on the ground that it was not supported by evidence.
If in his statement the accused confesses to the commission of the offence charged he may be convicted upon that confession, but if he does not confess and sets up his own version and seeks to explain his conduct pleading that he has committed no offence, the statement can only be taken into consideration in its entirety.
Taking the statement of the appellant in its entirety, he had an apprehension that B was attempting to strangulate him and this gave him the right of defence of person extending even to causing the death of the assailant.


judgement:
iminal Appeal No. 87 of 1962.
Appeal by special leave from the judgment and order dated February 21, 1962, of the Punjab High Court in Cr. A. No. 1231 of 1961 and Murder Reference No. 98 of 1961. ' 587 Purushottam Trikamdas, C. L. Sareen and R. L. Kohli, for the appellants.
N.S. Bindra and P. D. Menon, for the respondent.
August 10.
The two appellants Gurcharan Singh and Surjit Singh along with three others, Baland Singh, Daljit Singh and Ajit singh, were tried before the 2nd Addl.
Sessions Judge Ferozepore for offences under Section 148 and section 302/149 I.P.C.
The prosecution case against these five persons was that on or about the 18th May, 1961, they formed an unlawful assembly at the village Jhote with the common object of killing Arjan Singh, Sukhjit Singh Gurdial Singh and Piara Singh alias Balo, and that in prosecution of the said common object, they committed the offence of rioting when they were armed with deadly weapons.
That is the essence of the charge under section 148.
It was further alleged that on the same day and at the same time and place the said members of the unlawful assembly carried out its unlawful object and in so doing, the appellant Gurcharan Singh murdered Gurdial Singh and Sukhjit Singh, while the appellant Surjit Singh murdered Arjan singh and Piara Singh.
That is how all the five accused persons were charged under section 302/149 of the Indian Penal Code.
The trial Judge held that the charges against Daljit Singh had not been proved beyond a reasonable doubt and so, according to him, the prosecution case under section 148 had not been proved and that charge under section 149 bad not been sustained.
In regard to the four other accused persons, he held that they were guilty under section 302/34 I.P.C. Having thus convicted them of the said offence, the learned Judge sentenced Gurcharan Singh, Baland Singh 588 and Surjit Singh to death and directed that Ajit Sigh should suffer imprisonment for life.
The sentence of death imposed by the learned trial Judge was submitted to the Punjab High Court for confirmation, while all the four convicted persons preferred an appeal challenging their convictions and sentences imposed on them.
The High Court considered both the matters together and has come to the conclusion that the charge under section 302/34 had not been proved against Baland Singh and Ajit Singh.
That is why the said two accused persons have been acquitted, whereas the conviction of the appellants Gurcharan Singh and Surjit Singh as well as the sentence of death imposed on them have been confirmed.
It is against this order that the two appellants have come to this Court by special leave.
The incident which has given rise to the present criminal proceedings against the appellants took place on May 18, 1961, and as a result, four persons have been murdered they are Arjan Singh, Sukhjit Singh.
Gurdial Singh and Piara Singh.
The prosecution case is that on May 18, 1961, at about 6.30 A.M., the appellant Gurcharan Singh was pro ceeding to the house of his friend, Ajit Singh.
GurCharan Singh, Surjit Singh and Daljit Singh are the sons of Baland Singh.
Whilst Gurcharan Singh was thus proceeding to the house of Ajit Singh, he had to pass by the house of Saudagar Singh.
Saudagar Singh objected to Gurcharan Singh paying by his house and that led to an altercation.
In this altercation, Saudagar Singh and his two sow Kulwant Singh and Darshan Singh inflicted some injuries on Gurcharan Singh as well as on Ajit Singh who came on the scene.
Gurcharan Singh and Ajit Singh thereupon ran away.
This is the first incident which took place on that day.
About half an hour after this incident, another incident took place.
It appears that the five 589 accused persons got together and wanted to avenge the beating given by Saudagar Singh and his sons to Gurcharan Singh and Ajit Singh.
Gurcharan Singh and Daljit Singh armed themselves with gandasas, Surjit Singh carried a gun for which his Gaj brother Daljit Singh had a licence, Ajit Singh carried a 'dang ', while Baland Singh, the appellants ' father, headed the party, but was not armed.
This partly came across Arjan Singh near the house of Jarnail Singh.
It appears that Arjan Singh was afraid of these men and so, he used to carry with him a licensed gun.
As soon as Arjan Singh was sighted, Baland Singh told his sons and Ajit Singh to assault him, and the party began to assault Arjan Singh.
A gandasa blow was given on his forearm as a result of which Arjan Singh lost his grip on the gun and it fell down.
Immediately thereafter, Gurcharan Singh picked it up.
Arjan Singh then implored his assailants not to beat him and offered to go to the Gurdwara to take an oath that the allegation against him was untrue.
It is suggested that Baland Singh was satisfied with this offer and so persuaded his sons and their friend not to harass him any more.
This is the second incident which took place as a result of the first incident.
It is the epilogue of the second incident which followed soon after that led to the murder of the four victims.
It appears in evidence that while Arjan Singh was imploring his assailants not to attack him and soon after the attack stopped, Gurdev Singh, the son of Arjan Singh, happened to come, out of the Gurdwara and saw his father facing a dangerous crowd.
So, he ran to his house and asked his brothers to come and help him to rescue their father.
While Arjan Singh was returning to his house, on the way. he met his sons Gurdev Singh, Gurdial Singh and Gurcharan Singh who had armed themselves, and were.
proceeding towards 590 the spot where he had been encircled by his opponents.
At that time, Rekha Ram also come on the spot and he was being followed by his brother Piara.
Sukhjit Singh and Jagjit Singh also came on the scene.
Arjan Singh told them all to go back and assured them that his offer to take the oath in the Gurdwara had pacified his opponents and he was no longer in any difficult situation.
As a result of this statement of Arjan Singh, the persons who were going to the spot to help him desisted from going any further.
At that time, all the five accused persons spotted Arjan Singh 's sons coming to the spot and that infuriated Baland Singh.
He then rene wed his exhortation to his companions and asked them to finish their enemies Soon thereafter, Gurcharan Singh fired a shot from the gun which hit Gurdial Singh on his forehead and in consequence, he fell down dead on the spot.
Surjit Singh fired two shots in quick succession which hit Arjan Singh and killed him.
Gurcharan Singh fired another shot which hit Sukhjit Singh who fell down with serious injuries.
Surjit Singh again fired another shot which hit Piara and.
he fell down dead on the spot.
All the five accused persons then indulged in lalkaras and abused their enemies.
This occurrence was witnessed by Gurdev Singh (P.W. 2), Sukhdev Singh (P.W. 3, Gurcharan Singh (P.W. 4), Rakha Ram (p.w.5) and Jagjit Singh (P.W. 6).
sukhjit Singh who lay seriously injured was taken to the hospital at Ferozepure for medical treatment, but not withstanding the treatment, he succumbed to his injuries.
I at, in brief, is the prosecution case against the appellants.
The prosecution attempted to prove its case by examining the eye witnesses, Gurdev Singh, Sukhdev Singh, Gurcharan Singh and Rekha Ram, Jagjit Singh was tendered for cross examination.
The defence admitted that Guroharan Singh and Ajit Singh were present on the scene and,that 591 Gurcharan Singh fired twice from a gun, but that was in self defence.
The remaining three accused persons denied their presence on the scene of the offence and alleged that they had been falsely implicated.
It does appear that there was bitter enmity between the two parties for several years past.
Criminal proceedings had taken place between them and there is no doubt ' about the existence of hostility between them.
Sometime before this occurrence, Kulwant Singh (P.W. 7) was arrested in an excise case for running a still, and in that case, the appellant Gurcharan Singh was a prosecution witness.
Besides, the appellant Gurcharan Singh had opposed Arjan Singh for the office of Sarpaneh but had failed.
The defence, therefore, was that it is out of enmity and hostility that the three accused persons who were not present had been falsely involved in this case and that in respect of Gurcharan Singh and Ajit Singh who were present, the truth was that they had been attacked by the persons belonging to the party of Arjan Singh, and Gurcharan, Singh had fired in exercise of his right of private defeence.
The trial Judge examined the evidence adduced before him, considered the arguments raised by the defence and came to the conclusion that the charge of murder under section 302/34 had been proved against Baland Singh, Gurcharan Singh, Surjit Singh and Ajit Singh.
The High Court, in substance.
has agreed with the conclusions of the trial Court in respect of the prosecution case against the two appellants Gurcharan Singh and Surjit Singh.
It has, however held that the evidence about the exhortation alleged to have been given by Baland Singh was not proved by satisfactory evidence and the main charge against Baland Singh and Ajit Singh had not been proved beyond a reasonable doubt.
It is on this 592 finding that the said two accused persons were acquitted, whereas the appellants ' conviction 'and sentence have been confirmed.
Mr. Purushotam for the appellants contends that the judgment of the High Court suffers from some serious infirmities and so, he argues that in the interest of justice, we ought to examine the evidence ourselves.
It is, therefore, necessary to examine the broad arguments on which the judgment under appeal has been attacked by Mr. Purushotam.
The first point which has been urged before us is that the High court has not properly considered the pies of self defence raised by Gurcharan Singh, and it is pointed out that in rejecting the said theory, the High Court had relied on a prior statement of Gurcharan Singh which had been excluded from evidence by the trial Judge.
It appears that Gurcharan Singh had filed a complaint against the prosecution witnesses and that complaint was admitted at the trial as Exbt.
The said document first describes the injuries inflicted on Gurcharan Singh and then proceeds to give a detailed account of the incident which led to the said injuries.
This document was proved by Sub Inspector Udham Singh by the defence in cross examination.
When this document was tendered, the part of the document which referred to the injuries on Gurcharan Singh was marked and admitted in evidence.
The remaining portion of the document was excluded.
When the High Court considered the theory of self defence urged on behalf of Gurcharan Singh, it took the view that the said theory could not be accepted because it was inconsistent with Gurcharan Singh 's version about the incident contained in Exbt.
Mr. Purushotam objects to this part of the judgment and we think, rightly.
It is unfortunate that the attention of the High Court was not drawn to the fact that the portion of document DE on which it was basing its criticism against the defence theory 593 of self defence had not been admitted in evidence.
That no doubt is a serious infirmity in the reasoning and so, Mr. Purushotam is entitled to say that the conclusion of the High Court on this part of the defence case cannot be accepted without examination of its merits by us.
The other contention which Mr. Purushotam has raised before us is that in dealing with the case of Self defence, the High Court has not referred to the injuries on the person of Gurcharan Singh.
The evidence adduced in the case shows that Gurcharan Singh had 13 injuries on his person, 12 of which were.
contusions and one was a grievous hurt as disclosed by X ray.
It was an injury on the foot and it may be that there was a fracture or a crack.
Whether these injuries decisively helped the defence version or not is a different matter.
The argument is that these injuries should have been considered by the High Court when it was called upon to decide the validity of the defence claim of the exercise of the right of private defence.
There is some force even in this contention.
Since we are satisfied that these two contentions are well founded, we have examined the plea of self defence ourselves and in that connection, we have considered the oral evidence adduced by the prosecution.
It is true that Gurdev Singh and Gurcharan Singh can be said to be interested witnesses and in that sense, their evidence is the evidence of parti san witnesses and has to be carefully examined.
On the other band, Sukhdev Singh and Rekha Ram are not shown to be hostile to the appellants and their evidence cannot, therefore, be characterised as partisan.
It is true that Rekha Ram 's brother Piara has been murdered, but Piara has apparently died as a result of reckless shooting and it is not shown that either Piara was the enemy of the appellants or Rekha Ram is hostile to them.
The attempt made 594 in the cross examination of Sukhdev Singh to show that he was related to the complainants ' party has failed, and so, Sukhdev Singh must be held to be disinterestedwitness.
Purushotam fairly conceded that the account given by all these witnesses about the occurrence is consistent and cogent and the only criticism he had to make against that evidence was that it is partisan evidence.
We have consi dered the whole of this evidence, and we are satisfied that the courts below were right in substantially accepting it against the appellants.
If this evidence is believed, then the sequence of events that took place is clearly disclosed and that shows that the plea of self,defence urged by the appellant Gurcharan Singh cannot be accepted.
Injuries on his person are of a minor character and they may have been inflicted while some of the victims may have beaten him with a stick.
However that may be, having regard to the sequence of events, it is impossible to accede to the argument that Gurcharan Singh fired twice from the fire arm in order to save himself.
In this connection, it is relevant to recall that the party of the appellants was armed with deadly weapons.
Gurcharan Singh had picked up the gun which fell down from the hands of Arjan Singh and Surjit Singh had a gun for which his brother Daljit Singh had a licence.
The others were armed with gandasas and similar deadly weapons.
Therefore, when the incident took place, the two appellants were armed with fire arms and on the evidence which is believed) aggression proceeded from them and not from Arjan Singh or his friends.
That also shows that the theory of self defence cannot be accepted.
Therefore, though the High Court has not considered this point as well as it should have, and though a part of the reasoning 595 adopted by the High Court in dealing with this point suffers from the infirmity to which we have referred.
in the result, its conclusion on this point seems to be right.
Incidentally, it may be pointed out, that this plea of self defence was not seriously pressed before the High Court.
That takes us to the next broad criticism made by Mr. Purushotam against the judgment of the High Court.
It is urged that the High Court did not take into account the fact that Gurcharan Singh who had been charged under section 19 (f) of the Indian Arms Act has been acquitted by the same learned Sessions Judge who convicted him for the offence of murder under section 302/149.
It appears that the prosecution case is that Gurcharan Singh produced the fire arm when he surrender and since he had no licence to keep a fire arm and indeed, the fire arm in question belonged to Arjan Singh, a charge under section 19(f) had been framed against him.
The learned trial Judge believed the evidence of the two witnesses Puran Singh and Sohan Singh as well as the evidence of the Sub Inspector Udham Singh, and held that about 6.30 P.M. on May 18, 1961, Gurcharan Singh produced the fire arm.
The evidence shows that Arjan Singh Sarpanch of Valtoha took Gurcharan Singh and Ajit Singh to Udham Singh and the two of them then surrendered.
The document containing the memo, about this surrender has been duly proved (Ext.P.21).
The trial Judge delivered his judgment in the principal case on November 18, 1961.
It appears that on the same day, he delivered his judgment in the companion case in which Gurcharn Singh was charged under section 19(f) of the Indian Arms Act and held that the said charge had not been proved and so, he acquitted him of that charge.
It may be conceded that in this judgment, the same evidence about the production 596 of the weapon by Gurucharan Singh has been dis believed.
On these facts.
Mr. Purushotam contends that this matter was argued before the High Court and it was urged that the finding of the trial Court in the principal case about the recovery of the weapon from Gurcharan Singh should not be accepted, and this argument has not been considered by the High Court.
It would be noticed that this argument is based on the decision of.
this Court in Pritam Singh vs State of Punjab(1).
There is no doubt that if the order of acquittal under s.19(f) had been pronounced before the judgment in the principal case was delivered, then in the latter case the prosecution will not be entitled to contend that Gurcharan Singh was in illegal possession of the fire arm.
This position cannot be and is not disputed.
The question, however, still remains as to whether the judgment in the fire arm case was pronounced first or the judgment in the murder case was pronounced first.
Mr. Purushotam frankly stated before us that he was not in a position to contend that the judgment on which he reliefs was pronounced in point of fact before the judgment in the murder case.
The manner in which this judgment has been produced before this Court is very irregular.
The judgment does not appear to have been filed in the High Court as it should have been if it was intended to rely upon it But the petition for special leave states that it was utilised for the purpose of raising the point in appeal before the High Court.
This judgment was not filed before this Court along with the; petition for special leave.
It has been tendered at a later stage when the index of papers was settled for inclusion in the paper book in this Court.
In our opinion, this (1) A.I.R. (1956) S.C. 415.
597 method of producing this document is irregular.
But apart from this, unless it is shown that the judgment on which the defence relies was pronounced first, no argument can be raised about the invalidity of the conclusion in the murder case that Gurcharan Singh surrendered the gun.
Prima facie, the judgment in the murder case must have been delivered fir at.
It is numbered as 88 and 93 of 1961, whereas the arms case is numbered as 89 and 94 of 1961.
Therefore, we do not think it is open to the appellants to contend that the acquittal of Gurcharan Singh under a. 19(f) was prior to his conviction under s 302/149 and so, the finding that he surrendered the weapon should not be accepted.
It is to be regretted that the same learned Judge should have rendered two inconsistent findings in two companion cases in judgments pronounced on the same day.
This is a matter to which his attention ought to be drawn by the High Court.
Though the point sought to be raised on the strength of this judgment cannot technically arise, we thought it necessary to examine the evidence about the production of the weapon ourselves.
We have accordingly gone through the evidence of Puran Singh, Sohan Singh and Udham Singh and we have taken into account the fact that Gurcharan Singh was produced by Arjan Singh who is a Sarpanch of Valtoha.
We feel no hesitation in holding that this evidence clearly establishes the fact that Gurcharan Singh produced the weapon, as disclosed by the production memo.
In this connection, we may recall the fact that Gurcharan Singh in fact admitted that he had used a fire arm and had fired twice in self defence.
He, did not admit that was the gun which was snatched from the hand of Arjan Singh ; but that is another matter.
Therefore, the argument that the acquittal of Gurcharan Singh in arms case affects 598 the finding as to the surrender of the gun by him cannot be sustained.
The last argument on which the judgment on the High Court was attacked by Mr. Purushotam arises from the fact that a ballistic expert has not been examined in this case.
, It is urged that this ground was taken before this High Court and has not been considered by it.
Petition for special leave makes a definite averment to that effect.
As the argument was presented before us by Mr. Purushotam, it assumed that a report had been received from the ballistic expert, but that report had not been proved, because it was apprehended by the prosecution that it would destroy its case.
There is no doubt that the two fire arms along with two empty cartridges were sent to the Scientific Laboratory.
, Chandigarh (Ext. P. Z.) on June 28, 1961.
Of the two guns which were sent for examination, one was used by Gurcharan Singh which he picked up as soon as it fell down from the hand of Arjan Singh and the other was used by Surjit Singh which was taken by him from Daljit Singh.
It appears that Daljit Singh produced that gun and surrendered it on.
May 27, 1961, i.e., nearly a week after the incident took place.
Mr. Purushotam contended that since these weapons had been sent for examination by a ballistic expert and a report had been received, it was the duty of the prosecution to examine the ballistic expert.
We were impressed by this argument, and so, we adjourned the hearing of the case and called upon Mr. Bindra to produce that report before us.
Accordingly, the report has been produced and it shows that according to the expert opinion, out of the two fired cartridges sent for expert examination one had been fired from the right barrel of the gun contained in parcel No. 1 and the other had been fired from the left barrel of the same gun.
in other words, this reports shows 'that two empties found near the scene of the offence had been fired 599 from the same gun.
After this report was received and a copy of it was served on Mr. Purushotam, he fairly conceded that the said report was not inconsistent with the prosecution case, though he argued that it did not corroborate it either.
This report has not been proved and no ballistic expert has been examined in this case.
But having regard to the fact that the report prima facie is not inconsistent with the prosecution case, we do not see bow it would be urged that the failure of the prosecution to examine a ballistic expert is due to the 'fact that it was apprehended that the expert opinion would be against the prosecution case.
That is the.
only argument which it was alleged had been urged before the High Court but had not been considered by it.
We are inclined to think that this argument may not have been pressed before the High Court and in any event, now it is conceded that there is no substance in that argument.
That is why we do not think any useful purpose would be served by examining the ballistic expert at this stage.
Whilst we are on this point, we may briefly indicate the nature of the prosecution case so far as the use of the guns is concerned.
The appellant Gurcharan Singh has fired two shots, one of which killed Sukhjit Singh and the other Gurdial Singh.
The appellant Surjit Singh had fired three shots, two at Arjan Singh and one at Piara.
The evidence seems, to show that Surjit Singh loaded the gun once in the presence of the witnesses and whilst so doing, he put two cartridges in the gun and the spent cartridges in his pocket.
The two empties which had been sent for expert examination were found and picked up on a thoroughfare in front of the house of Jarnail Singh.
Apparently, the prosecution case is that these two cartridges had been fired by the appellant Gurcharan Singh from Arjan Singh gun picked up by him.
In any event, the report shows that the two cartridges had been 600 fired from the same gun.
That is why the failure to prove the report cannot be said to have prejudiced the appellants ' case at all.
Mr. Purushotam, however, argued that a ballistic expert should have been examined in order to ascertain whether the gun surrendered by Daljit Singh had been used at all.
But this argument is obviously untenable for the simple reason that this gun was surrendered more than a week after the incident and it takes imagination to realise that when Daljit Singh surrendered the gun, he must have cleaned it so as to remove any evidence about its user on the date of the incident.
It has, however, been argued that in every case where an accused person is charged with having committed the offence of murder by a lethal weapon, it is the duty of the prosecution to prove by expert evidence that it was likely or at least possible for the injuries to have been caused with the weapon with which, and in the manner in which, they have been alleged to have been caused; and in support of this proposition, reliance has been placed on the decision of this court in Mohinder Sinqh vs The State (1).
In that case, this court has held that where the prosecution case was that the accused shot the deceased with a gun, but it appeared likely that the injuries on the deceased were inflicted by a rifle and there was no evidence of a duly qualified expert to prove that the injuries were caused by a gun, and the nature of the injuries was also such that the photo must have been fired by more than one person and not by one person only, and there was no evidence to show that another person also shot, and the oral evidence was such which was not disinterested, the failure to examine an expert would be a serious infirmity in the prosecution case.
It would be noticed that these observation were made in a case where the prosecution (1) ; 601 evidence suffered from serious infirmities and in determining the effect of 'these observations, it would not be fair or reasonable to forget the facts in respect of which they came to be made.
These observations do not purport to lay down an inflexible rule that in every case where an accused person is charged with murder caused by a lethal weapon, the prosecution case can succeed in proving the charge only if an expert is examind.
It is possible to imagine cases where the direct evidence is of such an unimpeachable character and the nature of the injuries disclosed by post mortem notes is so clearly consistent with the direct evidence that the examination of a ballistic expert may not be regarded as essential.
Where the direct evidence is not satisfactory or disinterested or where the injuries are alleged to have been caused with a gun and they prima facie appear to have been inflicted by a rifle, undoubtedly the apparent inconsistency can be cured or the oral evidence can be corroborated by leading the evidence of a ballistic expert.
In what cases the examination of a ballistic expert is essential for the proof of the prosecution case, must naturally depend upon the circumstances of each case.
Therefore, we do not think that Mr. Purushotam is right in contending as a general proposition that in every case where a fire arm is alleged to have been used by an accused person, in addition to the direct evidence, prosecution must lead the evidence of a ballistic expert, however good the direct evidence may be and though on the record there may be no reason to doubt the said direct evidence.
In the present case, no useful purpose could have been served by examining an expert for the purpose of showing that the gun had been used by Surjit Singh, because, as we have already pointed out, Daljit Singh took care to keep the gun with himself for over a week and.
then surrendered it.
It would be idle in ouch a case to suggest that it was 602 necessary for the prosecution to examine an expert even though it is extremely unlikely that traces of its use had not been removed by Daljit Singh before he surrendered it.
Then, as to Gurcharan Singh, it is admitted that he fired twice and there is nothing on the record to show that the injuries disclosed by the post mortem notes and deposed to by the doctor could not have been caused by a gun which, it was alleged, belonged to Arjun Singh and which was picked up by Gurcharan Singh after it fell down from his hands.
Therefore.
, in the circumstances of this case, we do not think it would be possible to accept the plea that the failure of the prosecution to examine a ballistic expert has introduced a serious infirmity in the prosecution case.
Even so, since we were satisfied that the judgment of the High Court suffered from some infirmities and was not as satisfactory as it should have been, we have read the evidence with Mr. Purushotam and heard his comments on it.
Having carefully considered the said evidence, we see no reason to differ from the conclusion reached by the Courts below that broadly stated, the incident took place as it has been deposed to by the prosecution witnesses and that eliminates the exercise of the right of private defence by the appellants and establishes that they used their fire arms aggressively and thus committed the offence of murder under section 302/34.
Before we part with this case, however, we would like to observe that in dealing with confirmation cases, the High Court should consider the evidence carefully and record its conclusions clearly after dealing with all the points urged before it by the counsel for the defence.
In all criminal appeals, the findings recorded by the High Court bind the 603 parties and this Court is generally reluctant to interfere with them.
This principle is usually followed even in confirmation cases, but it is hardly necessary to emphasise that in dealing with confirmation cases, judicial approach both at the trial and in appeal has to be careful and thorough and so,it is of utmost importance that no room should be left for any legitimate complaint by the defence that important points were argued before the High Court and were not considered by it.
In the present appeal, we have come to the conclusion that some of the reasons given by the High Court are erroneous and apparently, some of the arguments urged before it have not been duly considered.
That is why we had to go through the evidence for ourselves.
In the result, the appeal fails and the order of confiction and sentences passed against the appellants is confirmed.
Appeal dismissed.

summary:
The two appellants G and S together with three others B, D and A were tried for the muder of four persons by shooting them with guns.
Two spent cartridges were recovered at the spot; G produced a gun on the very day of occurrence and D produced a gun one week after the occurrence.
The cartridges and guns were sent for examination to the ballistic expert but neither he nor his report was produced before the Sessions judge.
The Sessions judge convicted the appellants and B and D but acquitted A.
The same judge tried G under s.19(f) Arms Act for being in possession of the unlicensed gun which G had surrendered but acquitted him of the charge.
On appeal against the conviction for murder the High Court confirmed the conviction and sentence of, death passed against the appellants but acquitted B and D.
The appellants contended (i) that in view of his acquittal in the s.19(f) Arms Act case, the allegation of the recovery of the gun from G in the murder case could not be accepted, (ii) that the failure to produce the ballistic expert and his report had introduced a serious infirmity in the prosecution case, and (iii) that the High Court had failed to deal with these and other points raised before it.
Held, that the conviction of the appellants was not vitiated by any infirmities.
The acquittal of G in section 19(f) Arms Act case did not affect his conviction in the murder case.
If the order of acquittal under s.19(f) had been pronounced before the judgment in the murder case, then in the latter case the prosecution could not contend that G was in illegal possession of the firearm.
Though the two judgment were pronounced on the same day there was nothing to show that the judgment in the s.19(f) Arms Act case was pronounced earlier.
On the other hand there were indications that it was pronounced 586 after the judgment in the murder case.
The evidence clearly established that G bad produced the gun.
Pritam Singh vs State of Punjab, A.I.R. 1956 section C. 415, referred to.
There is no inflexible rule that in every case when a person is charged with murder caused by a firearm, the prosecution can succeed only by examining an expert to prove that the in juries could be caused by the weapon alleged to have been used.
Where the direct evidence is not satisfactory or disinterested or where the injuries are alleged to have been caused with a gun and they prima facie appear to have been inflicted by a rifle, the apparent inconsistency can be cured or the oral evidence can be corroborated by the evidence of a ballistic expert.
In the present case there was no necessity to examine an expert.
Admittedly, G had fired twice and there was nothing to show that the injuries could not have been caused by the pun which was in his hands.
D had kept the gun with him for a week before surrendering it and it was unlike that D had not removed tracks of its use.
The report of the ballistic examiner, which was sent for by the Supreme Court did not help the defence and no inference could be drawn against the prosecution from its failure to produce it at the trial.
Mohinder Singh vs The State, 1, referred to.
In dealing with confirmation cases the High Court should consider the evidence carefully and record its conclusions clearly after dealing with all the points urged before it by the defence.
In all criminal appeals before it the Supreme Court is reluctant to interfere with the findings of fact recorded by the High Court.
In the present case some of the reasons given by the High Court were erroneous and some of the arguments urged before it were not duly considered and the Supreme Court had therefore to go into the evidence.


judgement:
Civil Appeal No. 504 of 1961.
Appeal by special leave from the judgment and order dated October 17, 1959, of the Bombay High Court at Nagpur in Special Civil Application No, 59 of 1959.
M. C. Setalvad, Attorney General for India, F. J. Mohrir, J. B. Dadachanji, O. C. Mathur and Ravinder Narain, for the appellant, B. A. Masodkar Bishambar Lal and Ganpat Rai, for the respondent No. 3. 652 1962.
August 21.
The Judgment of the Court was delivered by DAS GUPTA, J.
This appeal by special leave is.against an order of the High Court of Bombay at Nagpur rejecting an application made by this appellant under articles 226 and 227 of the Constitution for quashing an order made by the State Industrial Court, Nagpur, in the matter of dismissal by the appellant of its employee, Kundlik Tulsiram Bhosle.
Kundik Tulairam Bhosle, who is the third respondent before us, was engaged as a temporary Motor driver in the service of the appellant.
He was appointed on December 22, 1954, and it was expressly mentioned in the letter of appointment that until such time as he was confirmed by an order in writing his services were liable to be terminated at any time without notice or compensation and without assigning any reason.
It was also stated that his case would be considered for confirmation one year after the date of appointment, 'provided a suitable permanent post fell vacant and his work was found satisfactory.
By an order dated December 19, 1955, he was dismissed from service from December 20, 1955.
It appears that before this step was taken by the management, Kundlik had been served with a charge sheet that on November 14, when he was in charge of a Bus as a driver he allowed Conductor Vyankati to carry five passengers without ticket and also allowed an unauthorized driver Sheikh Akbar to drive the Bus.
The charge sheet was served on Kundlik on November 9,and on November 19, he submitted an explantion. 'According to the management an enquiry was thereafter held by the Depot Manager and the charges were found established.
Accordingly he was dismissed.
Kundlik, the employee made an application under s,16 of the C. P. & Berar Industrial Disputes Settlement Act, 1947, before the Labour Commissioner, Madhya Pradesh, Nagpur, alleging that his dismissal had not 653 been preceded by an enquiry, that he had been illegally dismissed and praying for reinstatement The appellant pleaded in its written statement that an enquiry had been properly held and that ,the order of dismissal was legally made.
The Assistant Labour Commissioner, who has the powers of the Labour Commissioner, under s.16, dealt with the application.
He was of opinion that there were "sufficient grounds to doubt whether an enquiry was really made by the Non.;applicant Management and if at all one was held, whether the applicant as an accused person, had the chance to put questions to the witnesses who deposed against him.
" On the basis of the evidence adduced before him the Assistant Labour Commissioner came to the conclusion that the employee could, not be held guilty of the charge of allowing an unauthorised person to drive the vehicle as Sheikh Akbar was a fully licensed driver of the Company but that his guilt on the other charge that he carried five passengers without tickets was fully established.
Accordingly he dismissed the applications.
Against this order the employee moved the State Industrial Court, Nagpur.
That Court felt that it would not be justified in interfering with the findings of the Labour Commissioner that no enquiry had been held by the Management and that the Assistant Labour Commissioner had no juris diction to hold an enquiry.
In this view.
the Court set aside the order of the Labour Commissioner and made an order directing reinstatement of the employee with back wages.
It was against this order that the employer moved the High Court of Bombay on the ground that the Assistant Labour Commissioner and the State Industrial Court had erred in thinking that no enquiry had been held by the management and 654 that the said Industrial Court was also wrong in thinking that the Assistant Labour Commissioner had no jurisdiction to hold an enquiry himself.
The High Court was of opinion that it could not exercise its powers under articles 226.
and 227 of the Constitution to interfere with the finding of the Assistant Labour Commissioner and the Revisional Court that no enquiry had been held.
Proceeding on that basis the High Court also agreed with the Industrial Court that the Assistant Labour Commissioner had no jurisdiction to hold the enquiry him self.
The High Court concluded that there was no error in the decision of the Industrial Court and so refused the application.
Three points have been urged on behalf of the appellant.
The first is that it was not necessary in law to hold an enquiry before dismissing the employee in view of the terms of his employment and so in exercising jurisdiction under s 16 of the C. P. & Berar Industrial Disputes Settlement Act, the Industrial Court was not justified in interfering with the order of dismissal.
Secondly, it was urged that in any case, if it be held that an enquiry by the management was necessary in law it should be proper to hold that the Assistant Labour Commissioner had jurisdiction to hold enquiry himself.
Thirdly, it was urged that the view taken by the Assistant Labour Commissioner that no enquiry had been held was perverse and the High Court ought to have set aside that finding and given relief on the basis that an enquiry had been properly held.
For a proper understanding of the first contention raised it is necessary to remember briefly the scheme of, the jurisdiction conferred by s.16.
Section 16(1) authorises the State Government to make a reference to the ' Labour Commissioner in 655 disputes touching, inter alia, the dismissal of an employee.
Section 16 (2) provides that if the Labour Commissioner finds "after such enquiry as may be prescribed" that the dismissal was "in contravention of any of the provisions of this Act or in contravention of the Standing orders made or sanctioned under the Act," he may give certain reliefs to the employee.
According to the employee the order of dismissal was in contravention of the provisions of s.31 of the Act.
That section provides inter alia that if any employer intends to effect a change in respect of any indus trial matter mentioned in Schedule 2 he shall, give 14 days ' notice of such intention in the prescribed form to the representative of the employees.
Among the industrial matters mentioned in Schedule 2 is included 'dismissal of any employee except in accordance with law or ad provided for in the Standing Orders settled under s.30 of this Act.
" Admittedly, the appellant concern had no standing order on the matter of dismissal.
The question is whether the dismissal of the employee without an enquiry was "in accordance with law".
If it is not, the Labour Commissioner would have jurisdiction.
If the dismissal without such an enquiry be in accordance with law the Labour Commissioner would have no jurisdiction to interfere with the order of dismissal made by the management.
The learned Attorney General argues that a dismissal made in accordance with the ordinary law of contract as between Master and Servant must be held to be "in accordance with law" within the meaning of this Schedule, and the fact that any industrial law as evolved by the courts in industrial adjudication under the Industrial Disputes Act should not colour our consideration of the matter.
As at present advised, we are unable to see why the word ,law" in this phrase "in accordance with law" as used in Schedule 2 should be given a 656 restricted connotation so as to leave out industrial law as evolved by the courts.
In dealing with industrial disputes under the Industrial Disputes Act and other similar legislation, Industrial Tribunals, Labour Courts, Appellate Tribunals and finally this Court have by a series of decisions laid down the law that even though under contract law, pure and simple, an employee may by liable to dismissal, without anything more, industrial adjudication would set aside the order of dismissal and direct reinstatement of the workman where dismissal was made without proper and fair enquiry by the management or where even if such enquiry had been held the decision on of the Enquring Officer Was perverse or the action of the management was mala fide or amounted to unfair labour practice or victimisation, subject to this that even where no enquiry had been held or the enquiry had not been properly held the employer would have an opportunity of establishing its case for the dismissal of the workman by adducing evidence before an Industrial Tribunal.
It seems to us reasonable to think that all this body of law was well known to those who were responsible for enacting the C. P. & Berar Industrial Disputes Settlement Act, 1947, and that when they used the word "in accordance with law" in cl.3 of Schedule 2 of the Act they did not intend to exclude the law as settled by the Industrial Courts and this Court as regards where a dismissal would be set aside and reinstatement of the dismissed workman ordered.
If the word "law" in Sch.2 include not only enacted or statutory law but also common law it is difficult to see why it would not include industrial law as it has been evolved by industrial decisions.
We are therefore primafacie indeed to think that the first contention raised by the learned Attorney General that it was not necessary in law to hold an enquiry before dismissing this employee in view of the terms of his employment, cannot be accepted.
At the same time we are inclined to think that there is considerable force in the second contention that even though a proper enquiry was not held by the management the Labour Commissioner had jurisdiction to hold an enquiry himself.
This would prima facie be sufficient ground for holding that the Industrial Court was wrong in interfering with the order made by the Assistant Labour Commissioner and the High Court ought to have issued an appropriate writ to quash the order made by the Industrial Court.
We are aware of the view taken by the Bombay High Court in Prov.
Transp.
Services vs Assist.
Commr.
(1) and Maroti vs Member, State Industrial Court (2) that the ', 'Law" in the phrase "in accordance.
with law" in Schedule 2 does not include Industrial law.
For the reasons mentioned above, we are inclined to think, with respect, that this view is not correct.
We think it unnecessary however to discuss this matter more closely or record our definite and final conclusion on these questions as for the reasons to be presently stated we are of opinion that in any case the third ground raised on behalf of the appellant should succeed.
As has already been stated the employee 's case was that no enquiry had been held by the management.
This was denied by the management and it was alleged that an enquiry had been held.
The management produced before the Assistant Labour Commissioner papers showing the evidence that was claimed to have ' been recorded during such enquiry.
According to this record, three persons were examined during the enquiry the employee Kundalik himself, one Conductor Surewar and the Conductor Vyankati.
At the bottom of (1) IX Bombay Law Reporter.
(2) IX Bombay Law Reporter, 1422.
658 this, paper there is Kundalik 's signature and also Vyankati 's signature.
The employee 's case was that his signature had been obtained on a blank paper and the document was then written up.
In the absence of any evidence, it is impossible however for any reasonable judge of facts to persuade himself that the management would descend to this step of forgery for the purpose of getting rid of an employee in the position of Kundalik.
The Assistant Labour Commissioner himself has not said that he believes the explanation of the employee that his signature had been obtained on a blank paper.
He was however impressed by the fact that signature of Kandalik and Vyankati only were obtained and the Enquiring Officer 's signature doei not appear on the paper While it would certainly have been better if the Enquiring Officer had also, put his signature on the paper containing the statements, that omission cannot possibly be a ground for thinking that he did not hold the enquiry.
The conclusion of the Assistant Labour Commissioner that "there are sufficient ground to doubt whether an enquiry was really made" must therefore be held to be perverse.
It has often been pointed out by eminent judges that when it appears to an appellate court that no person properly instructed in law and acting judicially could have reached the particular decision the Court may proceed on the assumption that mis conception of law has been responsible for the wrong decision.
The decision of the Assistant Labour Commissioner that no enquiry had been, held by the management amounts therefore, in our opinion, to a clear error in law.
The Industrial Court erred in thinking that it was bound by this decision of the Labour Commissioner and this error on its part was, in our opinion, an error so apparent on the face of the record that was proper and reasonable for the High Court to correct that error.
659 On behalf of the respondent it was sought to be argued,that even if an enquiry had been held it has not been shown that the employee bad an opportunity of cross examining.
witnesses or adducing evidence of his own.
It is not open however for the learned Counsel to raise the question in view of the fact that the employee did not ever make any such case himself.
His case, as already statated, was that no enquiry had been held at all.
No alternative case that the enquiry held was improper because he had not been allowed to crossexamine witnesses or to adduce evidence was made by him.
It does not appear that in the present proceedings the employee stated clearly that he wanted to lead evidence and was not allowed to do so or that he wanted to crosts examine witnesses and was denied an opportunity to do so.
It is not open to him therefore to raise this question for the first time before us.
We have accordingly come to the conclusion that the High Court ought to have held that there was a proper enquiry held against this employee and the management dismissed him on finding on that enquiry that the two charges against him had been fully proved, and that there was no reason to think that the management acted mala fide.
The appellant was therefore entitled to an order for setting aside the order of the Industrial Court.
Accordingly, we allow the appeal, set aside the order of the High Court and order that the appellant 's application under articles 226 and 227 of the Constitution be allowed and the order of the State Industrial Court be set aside and the order of the Assistant Labour Commissioner dismission the employee 's application be restored.
There will be no order as to costs.
Appeal allowed.

summary:
The appellant employed as a temporary motor driver On the express condition that until such time as he was confirmed his services were liable to be terminated without notice or compensation and without assigning any reason.
Sometime afterwards, the appellant served a charge sheet upon K and after holding an enquiry dismissed him.
K made an application before the Labour Commissioner under section 16 C. P. for reinstatement alleging that the dismissal was illegal as it was not preceded by an enquiry.
The Labour Commissioner was doubtful whether any enquiry was held by the appellant but on the basis of evidence adduced before him he held the charges proved and accordingly dismissed the application.
On appeal, the Industrial Court held that the Labour Commissioner had no jurisdiction to hold the enquiry and made an order directing reinstatement of K with 651 back wages.
Thereupon, the appellant filed a writ petition before the High Court for quashing the order of the Indus trial Court but the High Court dismissed the application.
The appellant contended (i) that in view of the terms of em ployment the appellant could dismiss K without holding an enquiry, (ii) that the Labour Commissioner had jurisdiction to ' hold the equiry and (iii) that the finding of the Labour Commissioner that no enquiry had been held by the appellant was perverse and the High Court should have intervened, Held, that the finding that no enquiry had been held by the appellant before dismissing K was perverse and the appellant was entitled to a writ quashing the order of the Industrial Court and restoring that of the Labour Commissioner.
The appellant had produced before the Labour Commissioner the evidence recorded at the enquiry which consisted of the statement of K himself signed by him and the statements of two conductors.
The explanation of K that he had been made to sign on a blank paper was unacceptable.
The finding of the Labour Commissioner amounted to a clear error of law, the industrial Court erred in thinking that it was bound by this finding and this error on its part was so apparent on the face of the record that it was proper and reasonable for the High Court to correct the error.
Semble, Inspite of the terms of employment the appellant could not dismiss k without holding an enquiry and that even if the appellant had failed to hold the enquiry it was open to the Labour Commissioner to hold one.