judgement:
Appeal Nos.
2640 41 of 1991.
From the Judgment and Order dated 3.6.1991 of the Himachal Pradesh High Court in Election Petition Nos. 1 & 2 of 1990.
A.K. Ganguli, B.T. Kaul, Sarvesh Bisaria and S.K. Bisaria for the Appellant.
B. Dutta and R. Sasiprabhu for the Respondents.
253 The Judgment of the Court was delivered by S.C. AGRAWAL, J.
These appeals have been filed under section 116 A of the Representation of the People Act, 1951.
They relate to election to the Himachal Pradesh Legislative Assembly from 60 Chachiot Assembly constituency held during February, 1990.
The appellant was declared elected to the Legislative Assembly from the said constituency.
His election was challenged by the respondents in these appeals by filing election petitions in the High Court of Himachal Pradesh.
By its judgment dated June 3, 1991, the High Court has allowed the election petitions and has set aside the election of the appellant on the ground that the nomination of one of the candidates, Shri Karam Singh was improperly rejected by the returning officer.
The last date for filing the nomination papers was February 2, 1990 and the scrutiny of the nomination papers was fixed for February 5, 1990.
Fifteen persons, including the appellant and Shri Karam Singh had filed nomination papers.
At the time of scrutiny, an objection was raised on behalf of one of the candidates against the nomination of Shri Karam Singh on the ground that he was holding the office of Chairman, Himachal Pradesh Khadi and Village Industries Board, which is an office of profit within the meaning of Article 191(1)(a) of the Constitution and was, therefore, disqualified for being chosen as a member of the Legislative Assembly.
By order dated February 7, 1990, the Returning Officer upheld the said objection and rejected the nomination of Shri Karam Singh.
The High Court has, however, found that the said rejection of nomination of Shri Karam Singh was improper because on the date of scrutiny Shri Karam Singh was not holding an office of profit and has, for that reason, set aside the election of the appellant.
Before we proceed to deal with the appeals on merits, it may be mentioned that during the pendency of these appeals before this court, the Himachal Pradesh Legislative Assembly has been dissolved.
This raises the question whether the matters in issue in these appeals have ceased to be living issues and have become wholly academic.
The effect of dissolution of the legislature on a pending election appeal has been considered by this court in Loknath Padhan vs Birendra Kumar Sahu; , In that case, the election of the returned candidate was challenged before the High Court on the ground that there was a subsisting contract entered into 254 by the respondent in the course of his trade and business with the State Government for the execution of works undertaken by the Government and he was, therefore, disqualified under section 9A of the Representation of the People Act, 1951.
The election petition was, however, dismissed by the High Court and while the appeal against the said decision was pending in this Court, the Legislative Assembly was dissolved.
A preliminary objection was raised on behalf of the respondent to the appeal that in view of the dissolution of the assembly it was academic to decide whether or not the respondent was disqualified under section 9A. Upholding the said preliminary objection, this court has held that the court should not undertake to decide an issue unless it is a living issue between the parties and if an issue is purely academic, in that its decision one way or the other would have no impact on the position of the parties, it would be waste of public time and indeed not proper exercise of authority for the court to engage itself in deciding it.
In that case, this court drew a distinction between a case where the challenge to the election is on a ground confined to the validity of that election only and having no consequences operating in future and a case involving challenge to the election on a ground which would entail electoral disqualification for the future, such as, charge of corrupt practice.
It was held that if the election is challenged on the ground of commission of a corrupt practice the dissolution of the legislature would not have any effect on the pendency of an election petition or an appeal arising therefrom and the said petition will have to be considered on its merits whereas a challenge to the election on any other ground which does not entail future disqualification would raise academic issue only and in view of the dissolution of the legislature the election petition or the appeal arising therefrom would not survive because it would be futile and meaningless for the court to decide an academic question the answer to which would not affect the position of one party or the other.
Although in the instant case the election is not challenged on the ground of commission of any corrupt practice and a finding would not result in electoral disqualification in future but the present case differs from the case of Loknath Padhan vs Birendra Kumar Sahu (supra) in the sense that in Loknath 's case the election petition was dismissed whereas in the present case the election petitions against the election of the appellant have been allowed and the election has been set aside.
It has been submitted by Shri A.K. Ganguli, the learned Senior counsel appearing on behalf of the appellant, that in view of the fact that the decision of the High 255 Court setting aside his election, the appellant may be required to refund the various allowances that he has received while he was functioning as a member of the Legislative Assembly after his election till the decision of the High Court.
It would thus appear that invalidation of the election of the appellant may give rise to the liability to refund the allowances received by the appellant as a member of the Legislative Assembly.
It cannot, therefore, be said that the question a rising for consideration in this appeal are purely academic in nature.
In these circumstances, it becomes necessary to go into the merits of these appeals.
The relevant facts relating to the rejection of the nomination of Shri Karam Singh are as under.
The Himachal Pradesh Khadi and Village Industries Board (hereinafter referred to as 'the Board ').
has been established by the Government of Himachal Pradesh under Section 3 of H.P. Khadi and Village Industries Board Act, 1966 (hereinafter referred to as 'the Act ').
Section 4 provides for the constitution of the Board and in sub section
(1), it is laid down that the Board shall consist of not less than three and not more than nine members appointed by the Government of Himachal Pradesh after consultation with the Khadi and Village Industries Commission from amongst non officials who in the opinion of Government of Himachal Pradesh have shown active interest in the protection and development of khadi and village industries and officials.
In sub section
(2) of Section 4 it is provided that the Government of Himachal Pradesh shall after consultation with the Khadi and Village Industries Commission, nominate one of the members of the Board to be the Chairman thereof, Section 7 makes provision for resignation of office by members.
Section 11 provides that the term of office and terms and conditions of service of the Chairman, Vice Chairman, Secretary and other members shall be such as may be prescribed.
In exercise of the powers conferred by Section 35 of the Act, the Government of Himachal Pradesh has made the Himachal Pradesh Khadi and Village Industries Board Rules, 1966 (hereinafter referred to as 'the Rules ').
Rule 3 of the Rules prescribes that a member of the Board shall hold office for such period not exceeding three years as may be prescribed in the notification of his appointment which shall be notified in the Official Gazette and shall be eligible for re appointment.
Rule 7 provides for salary or honorarium and allowance payable to members.
Sub rule (1) of Rule 7 provides that the Chairman, the Vice Chairman, the Secretary and other 256 members of the Board shall be paid such salary or honorarium and allowances from the funds of the Board as the Government may from time to time fix.
In sub rule (2) of Rule 7, it is laid down that the Chairman, the Vice Chairman, the secretary and other members of the Board shall also be entitled to draw travelling and daily allowances for journeys performed for attending the meetings of the Board or for the purpose of discharging such duties as may be assigned to them by the Board in accordance with the rules and orders issued by the Government from time to time at the highest rate admissible to Government servants of Grade 1.
By notification dated September 2, 1982, issued in exercise of the powers conferred by Rule 7 of the Rules, the Governor of the Himachal Pradesh, ordered that the Chairman of the Board shall be entitled to pay and other allowances from the Funds of the Board at the following rates: (1) Pay/remuneration/honorarium of Rs. 1500 p.m. (consolidated).
(2) Free electricity and water charges upto Rs. 1500 per year.
(3) Use of a car or in lieu thereof a conveyance allowance of Rs. 300 per month.
(4) Telephone facilities in office and at residence.
(5) TA and medical expenses admissible to the officers of Highest First Grade category.
By notification dated December 27, 1986, the Governor of Himachal Pradesh constituted the Board with immediate effect.
Under the said order, the Board consisted of nine members including Shri Karam Singh Thakur.
By the said order the Governor of Himachal Pradesh also nominated Shri Karam Singh Thakur as Chairman of the said Board.
By notification dated December 20, 1989, the term of the Board was extended upto December 26, 1990.
On October 18, 1989, Shri Karam Singh Thakur wrote a letter to the Financial Commissioner cum Secterary (Industries) to the Government of Himachal Pradesh wherein it was stated that consequent upon amendment to Second Proviso to section (1) of section 6B of the Himachal Pradesh Legislative Assembly (Allowances and Pension of members) Act, 1971, his pension had been revised to Rs. 2400 per month with effect from February 4, 1989 and that on the basis of the said orders, 257 he was authorised by the Senior DAG(A&E), Himachal Pradesh, Shimla, by letter dated 6th July, 1989, to draw from Shimla Treasury the balance pension of Rs. 900 p.m. after adjusting the remuneration of Rs. 1500 which he had been drawing as remuneration from the Board and the pension of Rs. 900 p.m. plus relief due thereon from the Punjab National Bank through Treasury Officer, Shimla.
By aforesaid letter, Shri Karam Singh intimated that he now intended not to draw the monthly remuneration of Rs. 1500 p.m. from the Board and that instead he would be drawing the gross pension of Rs. 2400 p.m. from the Treasury/Bank and he requested that no objection of the State Government to the said proposal may be conveyed to him at an early date.
The said proposal made by Karam Singh was accepted by the Government of Himachal Pradesh and by notification dated January 8, 1990 issued under Rule 7(1) of the Rules, the Governor of Himachal Pradesh ordered that the remuneration of Rs. 1500 p.m. (consolidated) which was payable to the Chairman of the Board shall cease as per the request of the Chairman made vide his letter dated October 18, 1989.
On January 31, 1990, Shri Karam Singh addressed a Letter to the Financial Commissioner cum Secretary (Industries) to the Governor of Himachal Pradesh in the following terms : "I hereby resign from the membership and Chairmanship of the Himachal Pradesh Khadi and Village Industries Board.
The resignation may kindly be accepted with effect from today Le.
31st January, 1990".
On the basis of the letter of January 31, 1990, which was received on the same day, the matter was processed in the office of Financial Commissioner cum Secretary (industries) and it was placed before the Chief Minister for his approval with the recommendation that the resignation of Shri Karam Singh, Chairman, may be accepted.
The Chief Minister gave his approval on February 4, 1990.
On February 12, 1990, a notification was issued in the following terms : "In exercise of the powers vested in him under section 7 of the Himachal Pradesh Khadi and Village Industries Board Act, 1966, the Governor, Himachal Pradesh is pleased to accept the resignation of Shri Karam Singh Thakur, Chairman, H.P. Khadi and Village Industries Board, Shimla with immediate effect".
258 In the meanwhile, Shri Karam Singh filed his nomination papers for election to the Himachal Pradesh Legislative Assembly from the 60 Chachiot Assembly constituency.
The scrutiny of the nomination papers was held on February 5, 1990.
An objection was raised against the nomination of Shri Karam Singh on behalf of one of the candidates, viz., Vir Singh, on the ground that Shri Karam Singh was holding an office of profit and was disqualified for being chosen as a member of the Legislative Assembly.
Shri Karam Singh was not present at the time of scrutiny but his proposer, Shri Mani Ram, Advocate, was present and he was requested to ensure the appearance of Shri Karam Singh before the Returning Officer on February 6, 1990 at 11.00 a.m. for hearing him in connection with the objection.
The Returning Officer also directed Tehsildar (Elections) to enquire from the Secretary of the Board about the remuneration and other allowances being drawn by Shri Karam Singh in his capacity as chairman of the Board.
The report of the Tehsildar was placed before the Returning Officer.
Shri Mani Ram, Advocate, as proposer of Shri Karam Singh also submitted a reply to the Returning Officer on February 6, 1990 wherein it was stated that Karam Singh had resigned from the chairmanship on 29th or 30th of January 1990 and that the acceptance of the resignation was not kwown to Shri Karam Singh.
By order dated February 7, 1990, the Returning Officer rejected the nomination of Shri Karam Singh on the view that were submission of the resignation unless it was accepted, could not be taken as deemed to have been accepted and that Shri Karam Singh was holding an office of profit as his resignation had not been accepted upto February 5, 1990 which was the date for scrutiny, and that he was not eligible to seek election as a candiate for the Himachal Pradesh Legislative Assembly.
Before the High Court, it was submitted on behalf of the petitioners in the election petitions (respondents herein) that Shri Karam Singh had resigned with effect from January 31, 1990 vide his resignation letter of the said date and the said letter takes effect from January 31, 1990 itself.
The High Court accepted the said contention and held that the Act is silent and contains no provision as to how and in what manner the resignation of the Chairman of the Board is to be accepted and therefore the holder thereof could bring his appointment to an end by resigning with effect from a particular date and he would then be deemed to have ceased to be Chairman from the date itself notwithstanding its acceptance on a later date.
The High Court was, therefore, of the view that Shri Karam Singh 259 held no office of profit whatsoever in the Board on the date of scrutiny, i.e., February 5, 1990 since he had tendered his resignation on January 31, 1990.
The High Court, further, found that in view of the letter dated October 18.
1989 sent by Shri Karam Singh conveying his request of giving up the remuneration of Rs. 1500 per month (consolidated) which request was accepted by the State Government as pet notification dated January 8, 1990, pursuant to which Shri Karam Singh ceased to be entitled to draw the abovementioned remuneration with effect from January 8, 1990, Shri Karam Singh was not entitled to remuneration which could be classified as `profit ' for the office of Chairman of the Board held by him and after January 8, 1990, it could not be said that Shri Karam Singh was holding an office of profit and therefore the disqualification for membership of the Legislative Assembly of Himachal Pradesh could not attach to him.
For the reasons aforesaid, the High Court held that the nomination of Shri Karam Singh was wrongly rejected by the Returning Officer.
Shri Ganguli has assailed the findings recorded by the High Court on both the questions whereas Shri B. Datta, the learned senior counsel appearing for the respondents has supported the said findings.
It is not disputed that in view of the amendment introduced in clause (a) of sub section
(2) of Section 36 of the Representation of the People Act, 1951 by Act 40 of 1961, the relevant date for determining whether a candidate was qualified or disqualified for being chosen to fill the seat under the various provisions of Constitution mentioned therein, including Article 191, is the date fixed for scrutiny of nominations.
In the instant case the said date was February 5, 1990.
It is, therefore, necessary to determine whether Shri Karam Singh was holding an office of profit on February 1990.
In view of the findings recorded by the High Court, the following questions arise for consideration.
(1) Did Shri Karam Singh cease to hold the office of Chairman of the Board on January 31.
1990 the date on which he submitted his resignation from the said office or on February 12, 1990 when the notification about acceptance of his resignation with immediate effect was issued by the Government of Himachal Pradesh? (2) Did the office of Chairman of the Board held by Shri Karam 260 .
Singh cease to be an office of profit with effect from January 8, 1990 in view of the notification of the said date whereby the remuneration of Rs. 1500 p.m. (consolidated) payable to the Chairman of the Board had ceased to be payable to Shri Karam Singh? Shri Ganguli has urged that the resignation of Shri Karam Singh from the office of Chairman of the Board could be effective only after it was accepted by the Governor of Himachal Pradesh who had nominated him to the said office and till the acceptance of the said resignation, Shri Karam Singh continued to hold the office of the Chairman of the Board.
The submission of Shri Ganguli is that acceptance of a resignation is necessary before it can be effective and since in the present case the resignation was accepted only by notification dated February 12, 1990, Shri Karam Singh continued as Chairman of the Board till that date and he was holding that office on the date of scrutiny, i.e., February, 5, 1990.
In support of this submission Shri Ganguli has placed reliance on the decisions of this Court in Central Inland Water Transport Corporation Limited and Another vs Brojo Nath Ganguly and Anr., ; and J.K Cotton Spinning and Weaving Mills Company Ltd. vs State of U.P. & Others.
, (19901 3 SCR 523 as well as the decision of the Allahabad High Court in Lala Rain vs Gauri Shanker, 1981 All.
Law 1982.
Having carefully considered the said contention of Shri Ganguli we find it difficult to accede to it.
As pointed out by this court, 'resignation ' means the spontaneous relinquishment of one 's own right and in relation to an office, it connotes the act of giving up or relinquishing the office.
It has been held that in the general juristic sense, in order to constitute a complete and operative resignation there must be the intention to give up or relinquish the office and the concomitant act of its relinquishment.
It has also been observed that the act of relinquishment may take different forms or assume a unilateral or bilateral character, depending on the nature of the office and the conditions governing it.
(See : Union of India vs Shri Gopal Chandra Misra & Ors., ; at p. 21).
If the act of relinquishment is of unilateral character, it comes into effect when such act indicating the intention to relinquish the office is communicated to the competent authority.
The authority to whom the act of relinquishment is communicated is not required to take any action and the relinquishment takes effect from the date of such communication where the resignation is intended to operate in prasenti.
A resignation may also be prospective to be operative 261 from a future date and in that event it would take effect from the date indicated therein and not from the date of communication.
In cases where the act of relinquishment is of a bilateral character, the communication of the intention to relinquish, by itself, would not be sufficient to result in relinquishment of the office and some action is required to be taken on such communication of the intention to relinquish, e.g., acceptance of the said request to relinquish the office, and in such a case the relinquishment does not become effective or operative till such action is taken.
As to whether the act of relinquishment of anoffice is unilateral or ' bilateral in character would depend upon the nature of the office and conditions governing it.
Under the Constitution of India there are various offices which can be relinquished by unilateral act of the holder of the office and acceptance of resignation is not required, e.g., President [Article 56(a)].
Vice President [Article 67(a)], Deputy Chairman of Rajya Sabha [Article 90(b)], Speaker and Deputy Speaker of Lok Sabha [Article 94(b)], Judge of the Supreme Court [Article 124(2)(a)], Judge of a High Court [Article 217 (1)(a)].
As regards member of either House of Parliament or a member of a House of Legislature of a State, originally, the position was that he could resign his office by unilateral act and the acceptance of resignation was not required.
The requirement of acceptance of such resignation was introduced in Articles 101(3)(b) and 190(3)(b) by the Constitution (ThirtyThird Amendment) Act, 1974.
Similarly in company law, a director of a company is entitled to relinquish his office at any time he pleases by proper notice to the company and acceptance of the resignation is not required.
[See: Glossop vs Glossop, , Halsbury 's Law of England, 4th Ed., Vol. 7, p. 316, para 536].
A contract of employment, however, stands on a different footing wherein the act of relinquishment is of bilateral character and resignation of an employee is effective only on acceptance of the same by the employer.
Insofar as Government employees are concerned, there are specific provisions in the Service rules which require acceptance of the resignation before it becomes effective.
In Raj Kumar vs Union of India, , it has been held "But when a public servant has invited by his letter of resignation determination of his employment, his services 262 normally stand terminated from the date on which the letter of resignation is accepted by the appropriate authority, and in the absence of any law or rule governing the conditions of his service to the contrary, it will not be (,pen to the public servant to withdraw his resignation after it is accepted by the appropriate authority.
Till the resignation is accepted by the appropriate authority in consonance with the rules governing the acceptance, the public servant concerned has locus paenitentiae but not thereafter".
(p.860) Similarly, in Central Inland Water Transport Corporation Ltd. and Anr.
vs Brojo Nath Ganguly and Anr.
(supra) which related to an employee of a Government company jointly and wholly owned by the Central Government and two State Governments, it was observed "A resignation by an employee would, however, normally require to be accepted by the employer in order to be effective.
It can be that in certain circumstances an employer would be justified in refusing to accept the employee 's resignation as, for instance, when an employee wants to leave in the middle of a work which is urgent or .important and for the completion of which his presence and participation a necessary.
An employer can also refuse to accept the resignation when there is a disciplinary inquiry pending against the employee.
In such a case, to permit an employee to resign would be to allow him to go away from the service and escape the consequences of an adverse finding against him in such an inquiry.
There be justified in not accepting the resignation of an employee".
(p.386) The same view was reiterated in J.K. Cotton Spinning and Weaving Mills Company Ltd. vs State of U.P. & Ors.
(Supra) which also relates to a contract of employment.
The question whether the resignation of Shri Karam Singh from the office of Chairman of the Board was required to be accepted before it became effective involves the question whether the act of relinquishment 263 of the office of Chairman is unilateral or bilateral in character.
In order to answer this question it is necessary to consider the relevant provisions of the Act.
The Act does not contain any provision for resignation of the office of Chairman of the Board but in Section 7, the following provision has been made with regard to the resignation of office by members "7.
Resignation of office by members Any member may resign, his office by giving notice in writing to the Government of Himachal Pradesh and, on such resignation being notified in the Official Gazette by the Government of Himachal Pradesh, shall be deemed to have vacated his office".
In the aforesaid provision, there is no requirement that the resignation of a member should be accepted by any authority.
What is required is that a member who wishes to resign his office as member should give notice in writing to the Government of Himachal Pradesh and such resignation takes effect when it is notified in the official gazette by the Government of Himachal Pradesh.
This indicates that the act of relinquishment of the office of a member of the Board is bilateral in character in as much as the resignation takes effect only when such resignation is notified in the Official Gazette by the Government of Himachal Pradesh.
There is no such requirement for relinquishing the office of Chairman of the Board.
Section 4(2), however, provides that the Chairman of the Board has to be nominated from amongst the members of the Board.
This means that the Chairman of the Board holds office so long as he is a member of the Board and if he ceases to be a member of the Board he also ceases to be the chairman of the Board.
But the converse is not true.
A Chairman of the Board may resign his office as Chairman but may continue as member of the Board.
If he resigns only from the office of Chairman of the Board, there is no requirement that such resignation should be accepted by any authority or that any other action is required to be taken for the said resignation to be effective.
It would, therefore, appear that the act of relinquishment of the office of Chairman of the Board is unilateral in character and the resignation from the said office takes effect when it is communicated without any further action being required to be taken on the same.
Since the Chairman of the Board is nominated by the Government of Himachal Pradesh under Section 4(2) of the Act, resignation has 264 also to be communicated to the Government of Himachal Pradesh i.e., the Head of the Department dealing with the Board, and once it is so communicated it takes effect from the date of such communication if the resignation is in presenti or from the date indicated therein if it is prospective in nature to be operative from a future date.
This means that the act of relinquishment of the office of Chairman of the Board differs from the act of relinquishment from the office of a Member of the Board in the sense that while the act of relinquishment of office of a Member is bilateral in character requiring certain action, namely, resignation being notified in the Official Gazette by the Government of Himachal Pradesh before it comes into effect, the act of relinquishment of the office of Chairman of the Board is unilateral in character.
The decisions on which reliance has been placed by Shri Ganguli relating to contracts of employment where the act of relinquishment has been held to be bilateral in character requiring acceptance of the resignation, can, therefore, have no application to the present case where the act of relinquishment of the office of Chairman of the Board is unilateral in character.
Three possible situations involving resignation by a person holding the office of Chairman of the Board can be envisaged : (i) He may resign only from the office of the Chairman of the Board.
In such a case if the resignation is in presenti it would take effect from the date of communication of the resignation to the Head of the Department in the Government of Himachal Pradesh it would take effect from the date as indicated in the said resignation if the resignation is prospective to be operative from a future date.
(ii)He may resign only from the office of the member of the Board.
This resignation would take effect from the date the resignation is notified in the Official Gazette by the Government of Himachal Pradesh and with effect from the said date the Chairman would cease to be a member of the Board.
Since a person cannot continue as Chairman of the Board after he has ceased to be a member of the Board, he would also cease to be the Chairman of the Board from the date of his resignation as member of the Board is notified in the Official Gazette by the Government of Himachal Pradesh.
(iii)He may resign both from the office of Chairman of the Board 265 as well as from the office of member of the Board.
In such a case, his resignation from the office of Chairman of the Board would take effect from the date of communication to the Head of the Department in the Government of Himachal pradesh if it is it? praesenti or from the date indicated therein if it is prospective to be operative from a future date.
He would, however, continue to be a member of the Board till his resignation from the office of member is notified in the Official Gazette by the Government of Himachal Pradesh under Section 7 of the Act.
The instant case falls in the third category because Shri Karam Singh, by his letter dated January 31, 1990, resigned from the office of member as well as the office of Chairman of the Board and wanted the resignation to be accepted with effect from the same day, i.e., January 31, 1990.
By notification dated February 12, 1990, it was notified that the resignation of Shri Karam Singh Thakur, as Chairman of the Board has been accepted by the Governor of Himachal Pradesh with immediate effect.
In our opinion, the said notification dated February 12, 1990, proceeds under a misconception of the correct legal position.
The resignation of Shri Karam Singh as Chairman of the Board was not required to be accepted by the Government of Himachal Pradesh.
It became effective on January 31, 1990 when the letter of resignation was received by the Financial Commissioner cum Secretary (Industries) to the Government of Himachal Pradesh who was the Head of the Department dealing with the Board and to whom it was addressed.
Since there is no requirement in the Act that the resignation of the Chairman of the Bord should be notified in the Official Gazette as in the case of a member of the Board, it cannot be said that the resignation of Shri Karam Singh did not take effect till it was notified in the official gazette vide notification dated February 12, 1990.
The High Court was, therefore, right in taking the view that Shri Karam Singh had ceased to hold the office of the Chairman of the Board having resigned from the said office on January 31, 1990, and the said resignation became effective from that date itself and that on the date of scrutiny, i.e., February 5, 1990, he was not holding an office of profit.
For that reason, it has been rightly held that the nomination of Shri Karam Singh was improperly rejected by the Returning Officer.
Since we are in agreement with the view of the High Court that the nomination of Shri Karam Singh had been improperly rejected for the 266 reason that he was not holding the office of the Chairman of the Board on the date of scrutiny, we do not consider it necessary to go into the question whether the office of Chairman of the Board held by Shri Karam Singh had ceased to be an office of profit after January 8, 1990.
The appeals, therefore, fail and are, accordingly, dismissed: But in the circumstances with no orders to costs.
B.V.B.D. Appeals dismissed.

summary:
For election to the Himachal Pradesh Legislative Assembly from 60 Chachiot Assembly Constituency held during February, 1990, fifteen persons, including the appellant and one Karam Singh, filed nomination papers.
At the time of scrutiny, an objection was raised against the nomination of Karam Singh on the ground that he was holding the office of Chairman, Himachal Pradesh Khadi and village Industries Board, which is an office of porfit within the meaning of Article 191 (1) (a) of the Constitution and was, therefore, disqualified for being chosen as a member of the legislative Assembly.
The Returning Officer upheld the objection and rejected the nomination of Karam Singh.
The appellant was declared elected to the Legislative Assembly from the said Constituency.
His election was challenged by the Respondents by filing election petitions in the High Court of Himachal Pradesh.
The High Court found that the said rejection of nomination of Karam Singh was improper because on the date of scrutiny Karam Singh was not holding an office of profit and for that reason, the election of the appellant was set aside.
The appellant herein filed the present appeals under section 116 A of the Representation of the People Act, challenging the judgment of the High Court of Himachal Pradesh. 251 During the pendency of the appeals the Himachal Pradesh Legislative Assembly was dissolved.
After considering the appeals on merits the Court, which dismissing the appeals, HELD : 1.
Inspite of the dissolution of the Himachal Pradesh Legislative Assembly the question arising for consideration cannot be said to have become academic because the invalidation of the election of the appellant may give rise to the liability to refund the allowances received by the Appellant.
[253G, 255 B] Loknath Padhan vs Birendra Kumar Sahu, ; , distinguished.
[253G] 2.01. 'Resignation ' means the spontaneous relinquishment of one 's own right and in relation to an office, it cannotes the act of giving up or relinquishing the office.
The act of relinquishment may be unilateral or bilateral depending on the return of the office and the conditions governing it.
[260F] 2.02.If the act of relinquishment is of unilateral character, it comes into effect when such act indicating the intention to relinquish the office is communicated to competent authority.
The authority to whom the act of relinquishment is communicated is not required to take any action and the relinquishment takes effect from the date of such communication where the resignation is intended to operate in praesenti.
[260G] 2.03.In cases where the act of relinquishment is of a bilateral character, the communication of the intention to relinquish, by itself, would not be sufficient to result in relinquishment of the office and some action is required to be taken on such communication of the intention to relinquish, e.g., acceptance of the said request to relinquish the office, and in such a case the relinquishment does not become effective or operative till such action is taken.
[260H,,261A B] 301.
From the provision of Section 7 of the H.P. Khadi and Village Industries Board Act, 1966, (the 'Act ') it would appear that the act of relinquishment of the office of Chairman of the H.P. Khadi and Village Industries Board (the Board) is unilateral in character and the resignation from the said office takes effect when it is communicated without any 252 further action being required to be taken on the same.
Since the Chairman of the Board is nominated by the Government of Himachal Pradesh under Section 4(2) of the Act, resignation has also to be communicated to the Government of Himachal Pradesh i.e. the Head of the Department dealing with the Board, and once it is so communicated it takes effect from the date of such communication if the resignation is in praesenti or from the date indicated therein if it is prospective in nature to be operative from a future date.
[263G H, 264A B] 3.02.The resignation of Karam Singh as Chairman of the Board was not required to be accepted by the Government of Himachal Pradesh.
It became effective on January 31, 1990 when the letter of resignation was received by the Financial Commissioner cum Secretary (Industries) to the Government of Himachal Pradesh who was the Head of the Department dealing with the Board and to whom it was addressed.
[265D] 3.03.Since there is no requirement in the Act that the resignation of the Chairman of the Board should be notified in the Official Gazette as in the case of a member of the Board, it cannot be said that the resignation of Karam Singh did not take effect till it was notified in the Official Gazette vide notification dated February 12, 1990.
[265E] Central Inland Water Transport Corporation Limited and Another vs Brojo Nath Ganguly and Anr., ; J.K Cotton Spinning and Weaving Mills Company Ltd. vs State of U.P. & Others, ; ; Lala Ram vs Gauri Shanker, 1981 All.
Law 1982; Raj Kumar vs Union of India, [1968] SCR 857; Union of India vs Shri Gopal Chandra Misra & Ors., ; at p. 21 and Glossop vs Glossop, , Halsburys Law of England 4th Ed., Vol. 7, p. 316, para 536, relied on.
[260D G, 261G, 262G]


judgement:
minal Appeal No. 123 of 1985.
From the Judgment and Order dated 12.11.84 of the Delhi High Court in State Criminal Appeal No. 71 of 1978.
R.K. Garg and Rajendra Prasad Singh for the Appellant.
233 N.N. Goswamy and Ashok Bhan for the Respondent.
ANAND, J.
This appeal by special leave, is directed against the judgment of the High Court of Delhi dated 12th of November 1984, setting aside an order of the Additional Sessions Judge New Delhi, acquitting the appellant of an offence under Section 302/203 IPC.
The prosecution case is that on the fateful night of 25th/26th July, 1976, the appellant and his wife, Usha Jain, went to sleep in the back verandah of their house situated at P 5, Green Park Extension, New Delhi while his brother M.P. Jain alongwith his wife Sharda and children went to sleep separately in their bed room in the same house.
Police Control Room was informed over the telephone by Sulekh Chand Jain at 4.55 A.M. that an incident had taken place at P 5, Green Park Extension and on receiving the telephone message, S.I. Mauji Ram made a record of it in the daily diary and passed on the information to the duty officer at police station Hauz Khas.
ASI Maha Singh was deputed to proceed to the spot for investigation of the case.
After reaching the spot, the said ASI Maha Singh informed the police station on telephone that a murder had taken place.
The information so provided was recorded by ASI Mangal Sen in the daily diary Whereupon SHO Harmit Singh immediately left for the spot alongwith SI Dalip Singh, SI Moti Singh, Constable Bhawani Dutt and Constable Randhir Singh.
The police party arrived at the spot at about 5.35 a.m. and took charge of the investigation.
The appellant was present near the dead body which had been covered by a Dhoti and on interrogation, the appellant informed the police party that his brother and family had retired for the night in their bed room at about 10.00 p.m. and he alongwith his wife had slept in the back verandah.
Before going to sleep, he had locked the collapsable door of the back verandah.
The wife of the appellant was wearing a gold chain on her neck, eartops in her ears and golden bangles on her wrists besides glass bangles.
At about 1.30 a.m., the appellant felt thirsty and asked his wife to give him water and after some time when he felt chilly, he went inside the room.
He slept in the room while his wife kept sleeping outside.
At about 3.45 a.m., the appellant got up to urinate and when he went outside the room, he found that his wife was lying on the cot with her face upwards but her clothes were in a loose condition and he was almost naked upto the thighs.
On going closer to 234 the cot, he found her tongue protruding and on touching her, he found her dead.
He noticed some scratches on her face and neck and also discovered that the golden chain which was on her neck and golden bangles were missing from her body.
According to the appellant, his wife had been murdered by somebody by strangulation while committing the theft of the golden chain and the bangles.
He started screaming and his brother, the brother 's wife as well as some neighbours came there.
Since, his telephone was found to be out of order, police was informed at his request by Sulekh Chand, another neighbour, from his telephone.
The parents of the deceased, living in Sonepat were also conveyed the tragic news on telephone through their neighbours.
The statement of the appellant which revealed a case of lurking house trespass, with a view to commit offence of theft and murder, was recorded as exhibit P5 and a case under Section 460 IPC was registered.
The statement of the appellant exhibit P5, was despatched by SHO Harmit Singh to the police station with his endorsement for registration of a case under Section 460 IPC.
Formal FIR was registered by ASI Mangal Sen at the police station and the same was received back by the SHO at the house of the appellant at about 6.45 a.m.
The crime team as also the dog squad were summoned.
Both the dogs of the dog squad were first let loose to pick up the smell and according to the ASI Ranbir Singh, in charge of the dog squad, the dogs after picking up the smell from the lock lying in the corner of the back courtyard and from the spot, went to the room where the appellant was sitting and each of the dogs pointed towards him by turn.
That raised a suspicion against the appellant.
According to the SHO, he then asked the appellant to remove his shirt and found that the appellant had injuries in the nature of bruises etc.
on the front part of his body, on the chest, as well as on his back.
Since the appellant had told the police that the bangles of his wife were identical to the bangles of Sharda, the wife of his brother M.P. Jain, who also is the sister of the deceased, the SHO took into possession four bangles from Sharda also for comparing the same in case the stolen property was recovered.
The appellant was thereafter taken for further interrogation to the police station.
Before proceeding to the police station., the SHO had effected recoveries of various articles including some hair, lying near the dead body on the cot.
The appellant had produced the key at the asking of the SHO, which purported to be the key of the lock which had been found lying in the back court yard and the same was taken into possession.
The lock was also taken into possession but it did not appear to have been 235 broken or tampered with.
The recovery of the key was witnessed amongst others by Kuldip Kaul PWl who was present in the crowd outside the home of the appellant.
The inquest proceedings were conducted by SI Moti Singh and the body was thereafter sent for postmortem examination.
At the police station, during interrogation the appellants was placed under arrest and in the presence of SI Dalip Singh PW6, Kuldip Kaul PWl and Harnaik Singh PW2, he made a disclosure statement, exhibit PC, to the effect that he had concealed the golden chain and the bangles in his bathroom and in pursuance of the disclosure statement, the appellant led the police party to the bathroom of his house and after removing the cover from the drain hole, took out the golden chain and the bangles and handed the same over to SHO Harmit Singh in presence of the witnesses.
Recovery memo, EX.PF was prepared and the golden chain and the bangles after being duly weighed were sealed separately and the seal was handed over to Kuldip Kaul PW1.
The appellant was sent for medical examination, after memo of his personal search EX.PE was prepared.
Dr. Dharam Pal PW15 found as many 18 injuries on the person of the appellant consisting of bruises and abrasions on the nose, chest, arm shoulder and on the umbilical region.
The injuries were stated to have been caused by blunt weapon.
The postmortem on the dead body of Usha Jain was conducted on 27.7.1976 at 9.00 a.m. by Dr. Bharat Singh PW 4 and according to the postmortem report EX.PL, all the injuries found on the person of the deceased were ante mortem and the same were possible by throttling the deceased and that the death of Usha Jain was caused by asphyxia resulting from throttling.
The deceased was carrying 7th month pregnancy at the time of her death.
After the disclosure statement was made by the appellant leading to the recovery of the ornaments and after noticing injuries on his person, the case which was originally registered under Section 460 IPC was converted, into one under Section 302/203 IPC.
The SHO during the course of investigation also took sample hair of the appellant and sent the same alongwith the hair recovered from the cot of the deceased to the Central Forensic Science Laboratory.
The nail clippings of the deceased were also sent for analysis to CFSL.
Site plan, EX.PO, was also prepared during the investigation.
After completion of the investigation, challan was filed against the appellant and he was sent up for trial for offences under Section 302/203 IPC in the court of Additional Sessions Judge, New Delhi.
236 There being no eye witness of the occurrence, the prosecution sought to establish the case against the appellant on the basis of circumstantial evidence.
The circumstances set up by the prosecution against the appel lant during the trial were (i) information to the police at 4.55 AM given by a neighbour and not the appellant; (ii) that information not specifically giving out that a murder had taken place and simply intimating happening of an incident; (iii) The accused having slept alone at night in the verandah with the deceased after having locked the collapsable door of that verandah from inside and that lock having been found in the corner of the back courtyard in the morning without being tampered with; (iv) The deceased and accused were last seen together, (v) The dogs of the Dog Squad having pointed out the accused after picking up scent from that lock; (vi) The ornaments which were stated to be on the person of the deceased while she was sleeping, and which were found missing when she was discovered dead having been recovered from the drain hole of the bath room attached to the bed room of the accused in consequence of and in pursuance of a disclousre statement made by the accused; (vii) injuries found on the person of the accused in the nature of abrasions, contusions and lastly; (viii) the accused having given false information to the police by means of hi s statement Ext.
P5" The learned Sessions Judge carefully analysed each of the circumstance and finally observed "On a resume of the analysis of prosecution evidence, and 237 on a very careful appraisal of all the facts and circumstances set up by the prosecution, I am of my earnestly considered view that the prosecution in this case has entirely failed to prove any of the circumstances set up against the accused, much less to establish the chain of circumstances, so as to bring out a nexus between the crime and the accused.
" The appellant was, therefore, acquitted of the offences under Section 302/203 IPC.
On an appeal by the State, a division bench of the High Court reversed the order of acquittal of the appellant.
The High Court held that the circumstances formed a chain and sequences so complete by themselves that one was left in no manner of doubt that the appellant and the appellant alone had committed the crime.
The appeal was accepted and the order of acquittal was set aside.
The appellant was sentenced to undergo rigorous imprisonment for life under Section 302 IPC and also to undergo rigorous imprisonment for a period of one year under Section 203 IPC.
Both the sentences were directed to run concurrently.
Appearing for the appellant, Mr. R.K. Garg, the learned senior counsel submitted that the approach of the High Court was totally erroneous and that a well considered and well reasoned judgment of the Trial Court was upset by the High Court by drawing inferences which were not available from the record and by ignoring material discrepancies and infirmities in the prosecution evidence which not only did not establish various circumstances but which also showed that the chain of circumstantial evidence was wholly incomplete.
Learned counsel for the appellant submitted that the appellant had been roped in on the basis of misguided suspicion and that the circumstances relied upon by the prosecution were not of any conclusive nature and they did not exclude the hypothesis, other than that of the guilt of the appellant.
It was emphasised that the inves tigating officer had created false clues and suppressed material which went against the prosecuting version and supported the defence version.
He argued that the High Court should have drawn adverse inference against the prosecution for not producing the first informant and withholding the evidence of the father of the deceased.
Mr. N.N. Goswami, learned senior counsel assisted by Mr. Ashok 238 Bhan, advocate, on the other hand submitted that some of the circumstances like the pointing out of the appellant by the dogs of the Dog Squad, after picking up the scent from the place of occurence; the disclosure statement and the recovery of ornaments as a consequence thereof at the instance of appellant and the presence of injuries on the person of appellant, were of such a conclusive and clinching nature that they left no doubt that the appellant had committed the crime.
It was submitted that the appellant had made attempt to mislead the investigating officer by giving a false version with a view to screen himself.
According to the learned counsel the established circumstance could only lead to the hypothesis consistent with the guilt of the appellant and not with his innocence.
We shall now consider various circumstances with a view to determine whether the circumstances alleged against the appellant have been established and the chain of evidence is so complete as to lead to no other hypothesis except the one consistent with the guilt of the accused.
There is no motive established in this case by the prosecution for the appellant to commit murder of his wife and the evidence of Tara Chand father of the deceased as welt as the sister of the deceased and the tenants living in, the same house disclosed that the relations between the husband and wife were cordial.
In a case based on circumstantial evidence, motive assumes pertinent significance as existence of the motive is an enlightening factor in a process of presumptive reasoning in such a case.
The absence of motive, however, puts the court on its guard to scrutinise the circumstances more carefully to ensure that suspicion and conjecture do not take place of legal proof Since, the disclosure statement and the consequent recovery pursuant thereto of the ornaments belonging to the deceased has been considered to be one of the most important piece of circumstantial evidence in the case not only by the High Court but has also before us by the learned counsel appearing for the State, we shall first consider that circumstance.
This circumstance is indeed of such an incriminating nature that if found to have been established by reliable and trustworthy evidence, it would go a long way to furnish proof of the guilt of the appellant and connect him with the crime and on the other hand, if the evidence in support of that circumstance is found to be not reliable, the entire chain of circumstantial evidence will snap so badly as to affect the credibility of the prosecution case as a whole.
239 According to the prosecution after the appellant had been taken to the police station by the investigating officer he was interrogated interrogated after being placed under arrest.
He voluntarily made a disclosure statement EX.PC.
The disclosure statement was recorded by the SHO and has been attested by Kuldip Kaul PW 1, SI Dalip Singh PW 6 and Harnaik Singh PW2.
Pursuant to the disclosure statement, the appellant is alleged to have led the police party to the recovery of the ornaments from a drain hole in his bathroom.
The recovery memo EX.PF was prepared at the spot and was attested by SI Dalip Singh PW 6, Kuldip Kaul PW 1 and Hirnaik Singh PW 2 besides the Investigating Officer.
We shall, therefore, first analyse the evidence of the witnesses of the disclosure statement and the recovery memo.
Inspector Harmit Singh, PW 19, SHO, while deposing about the disclosure statement and the consequent recovery of the ornaments at the pointing out by the appellant, stated that he interrogated the appellant in presence of Dalip Singh, Kuldip Kaul and Harnaik Singh PWs at the police station at about 1.45 p.m. and in their presence the appellant made the disclosure statement exhibit PC and then led the party to his house and pointing out the drain hole in the bath room, the appellant took out from that drain hole, three golden bangles and one golden chain, which were weighed separately and while golden bangles were put in one packet the golden chain was put in another packet and the seal used to seal both the packets was handed over to Kuldip Kaul PWI.
The recovery memo EX.PF was prepared at the spot which was signed by the witnesses then and there at about 2 or 2.30 p.m.
In his cross examination, the Investigating Officer denied the suggestion that the bangles and the chain were recovered from underneath a slab in the service lane in the presence of the appellant and Jagminder Dass Jain and a memo had been prepared which was signed by them.
He also stated that he did not call any goldsmith to weigh the ornaments because he had taken with him the measure and the scale.
He then asserted that "Kuldip Kaul did not come back with me to the police station when I came back in the evening after recoveries of the ornaments etc.
had been effected at the spot.
I recorded statement of Kuldip Kaul at the spot after recoveries.
That was a complete statement of his and I recorded only one statement of his on that day.
Kuldip Kaul left from the spot and we were still there when he left." Regarding Harnaik Singh PW2, the I.O. stated "I had gone out to 240 look for another witness and I found at that time Harnaik Singh reversing his taxi in the compound of the police station and then I summoned him.
He had told me that he had dropped a passenger and was taking out his taxi.
I did not see passenger going inside.
There are 60/70 quarters at the back of the police station and that passengers might have gone to any of those quarters.
The disclosure statement was made by the accused in his presence.
I had read out the papers to Harnaik Singh before getting his signature.
In fact, it was written in his presence and whatever were dictated by the accused was within his healing.
It is incorrect to suggest that disclosure statement was already written and I got signatures of Harnaik Singh without explaining to him the document and assuring him to sign on my trust.
" The witness also asserted that he had seen Harnaik Singh for the first time only at about 2 or 2.30 p.m. outside the police station while reversing the taxi and did not know him from before.
Let us now examine as to what the other witnesses have to say in this regard.
Kuldip Kaul PW1, while admitting that he was present outside the house of the appellant in the morning at about 6.30 a.m. when the police party had reached there and had offered himself to join the investigation, went on to say that after the SHO had lifted the shirt of the appellant and found 15 20 marks of scratches on the chest of the appellant, they all came to the police station along with the appellant.
He added that while they were sitting at the police station, Harnaik Singh PW2 also came there along with SHO Harmit Singh and after some initial hesitation, the appellant disclosed that he had kept one golden chain and three bangles which his wife was wearing, in the drain hole of the bath room of his house and he could show the same to the police and get them recovered.
He deposed that disclosure statement EX.PC was prepared at the police station and was signed by him as well as by the other witnesses present there.
Thereafter, the appellant was arrested and he led the police party to his house where he pointed out the drain hole in the bath room and after removing the cover of the drain hole, the appellant took out from inside the drain hole, a golden chain and three golden bangles and handed over the same to SHO Harmit Singh.
Memo of recovery EX.PF was prepared and was signed by the witnesses.
With a view to assert his independence and that he had no earlier connection with the I.O., he stated "I came to know SHO Harmit Singh since March, 1976, when I organised a function of Youth Congress and had contacted the SHO for arrangements for the said function.
I have, never gone to the police station in any other connection or regarding public 241 grievances.
I have not organised any other function in the area except the one stated above.
Regarding the signing of the recovery memo at the house of the appellant and his leaving for his house from there as was deposed to by the Investigating Officer, Kuldip Kaul PWl stated "I had come back with the police to P.S. after the recovery of the ornaments and there at about 3.30 p.m. my, statement was recorded by the police and I came back home at about 4 p.m. " Harnaik Singh PW2 giving his version regarding the disclosure statement and the consequent recovery stated "About 4 1/2 or 5 months back at about 2/2.30 p.m.
I had taken a passenger in my taxi to the quarters of P.S. Hauz Khas.
When I was coming back after dropping the passenger one police officer, Sardarji, who was standing at the gate of the P.S. called me, and took me inside the P.S.
There is one room, besides the police were one Mr. Kaul PWl and Surinder Pal Jain, accused present in court.
Then in the room that Sardarji police officer took up one paper which had been prepared already and asked me to sign, saying that they have to conduct some inquiry in the case.
Then that Sardarji told me to accompany the police party to Green Park.
Then we went there besides the police party and myself PWl and the accused were also there.
On reaching the house in Green Park the accused led the police party to the bath room and I also followed them in to the both room.
Then the Sardarji took out there bangles and one gold chain from the gutter of the bath room.
The Sardarji took those three bangles from the gutter on being told by the accused." He asserted that he did not at all know the Sardarji police officer prior to that date and that.
he had gone to the police station for the first time on that day.
During the cross examination he admitted that "The contents of memos EX.PC and EX.PF were not read out to me but I was told by the police that the weight of things recovered and the recovery was being written in those papers." ASI Maha Singh, PW5, who had arrived at the spot at the earliest and had sent information to his senior officers including SHO Harmit Singh and had kept a guard at the spot.
During the cross examination admitted that "Kuldip Kaul and Harnaik Singh witnesses had come there before 7 a.m." ST Dalip Singh PW6, who had also accompanied the SHO to the house of the appellant at about 6.30 a.m. stated "when we reached Kuldip Kaul and Hamaik Singh witnesses were present.
ASI Maha Singh was already 242 there.
" The witness also deposed about the interrogation of the appellant and the recording of the disclosure statement at the police station in his presence and the subsequent recovery of the ornaments and the preparation of the recovery memo PF in the presence of Kuldip Kaul and Harnaik Singh PWs.
Contrary to what Harnaik Singh PW said, this witness deposed "the accused himself took out three bangles and one golden chain front the main hole and handed them over to the SHO.
" The witness during the cross examination stated "The ornaments were weighed by some goldsmith who was called there by the SHO.
I do not know whether that goldsmith also signed the possession memo or not. ' The above is the entire prosecution evidence relating to the making of the alleged disclsoure statement by the appellant and the consequent recovery under Section 27 of the Evidence Act at his instance.
According to the appellant, however, he had made no disclosure statement nor led the police party to the recovery of the ornaments as alleged.
According to the defence version, the missing ornaments had in fact been recovered by the police party around 11 a.m. during search from the service lane, from underneath a slab, near the boundary wall and at that time the appellant and Jagminder Dass Jain were also present.
This defence version is supported by the evidence of DW2, Tara Chand, father of the deceased.
The presence of this witness is admitted at the spot by the Investigating team, as was natural being the father of the deceased.
His testimony assumes significance as in the normal course of events, he would be the last person to screen the real offender who murdered his daughter.
Tara Chand DW2 stated that the police had interrogated him and he had told the I.O. that the appellant and the deceased had good relations with each other and that he had never received any complaint of any dispute or difference between them from his daughter.
That he had also married of his other daughter with the brother of the appellant, M.P. Jain and that both the sisters alongwith their husbands were living together in the same house.
Deposing about the sequence of events at the house of the appellant, the witness stated "Then at about 10.30 a.m. the police took into possession four golden bangles from Sharda but I cannot say as to from where she had produced them, whether she was wearing them or she had brought them from the house.
I had seen her just producing them.
She had handed over those bangles to the same Sardarji police officer who had talked to me and at that time we were in the drawing room.
The police 243 had been told that the bangles which Usha was wearing and which were missing were of the same type which were with Sharda and there upon they conducted search for the articles in and around the house, with the bangles in hand They went out towards the back side.
Persons who were inside the house and also S.P. Jain accused (had joined the search party).
I came to know that three missing bangles and one chain had been found out from underneath a slab at the back of the house.
I came to know at about 11.30 a.m. that these things had been recovered and after about 1/2 hour of that the police took in jeep M.P. Jain, S.P. Jain and Sharda Jain to the police station.
Police told me that they were taking all the three for interrogation." During the cross examination he asserted, 'After the police had taken Sharda 's four bangles in hand and they went around looking for the stolen bangles I was in the varandah by the side of the dead body and kept on observing the scene and I saw that after sometime the same sub inspector who had the four bangles in hand was coming from outside from the back side and had three bangles and one chain in the other hand.
Some 5/7 persons from the public who were already inside the house had gone outside with the police and they also came back with the police after recovery of the ornaments.
I learnt from them that those ornaments had been found front underneath a slab and sometime after myself went out and saw that spot.
The three bangles and chain were loose and were not found in any cloth." He categorically denied the suggestion that the appellant had led the police party to the bath room on that day and had got recovered form the drain hole of the bath room, the three bangles and the golden chain.
Shri Jagminder Dass Jain appeared as DW12.
He leves in the same locality as the appellant and had gone to the house of the appellant soon after 6 a.m. on learning that some murder had taken place.
Deposing about the recovery of ornaments, he stated that the SHO after taking into possession the bangles from Sharda went outside towards the back lane and the witness accompanied the SHO and the crime team along with some others.
He stated that during the course of the search of the back lane and from underneath a slab, one gold chain and three golden bangles were recovered.
The recovered bangles were compared with the other which had been earlier produced by Sharda and a memo of the recovery was prepared by the police and was signed by the witness as well as the appellant.
The learned Sessions Judge carefully considered the evidence led by the prosecution with regard to the disclosure statement and the recovery 244 of ornaments.
She found the evidence of Harnaik Singh PW2, who according to DW11 Sunder Lal constable of police station Defence Colonly, had been earlier also cited as a witness for the prosecution in a case investigated by Harmit Singh the then Sub inspector of police and the present Investigating Officer was not reliable and that the Investigating Officer had not told the truth when he had deposed that he did not know Harnaik Singh earlier.
That Harnaik Singh had on his own showing signed the disclosure statement after it had already been written and that the appellant bad not made any disclosure statement in the presence of Harnaik Singh PW2, who had been introduced being a convenient witness.
The learned Sessions Judge also found the evidence of PWl Kuldip Kaul as not reliable or trustworthy and disbelieved his testimony by giving cogent reasons after properly appreciating the evidence led by the prosecution.
She found the defence version with regard to the recovery as more probable and opined that the investigating officer had created false clues and fabricated false evidence.
The learned Sessions Judge observed "I, therefore, cannot bring myself at all to accept the prosecution case about any disclosure having been made by the accused or having led to recovery of missing ornaments in pursuance to this disclosure, and I am con strained to say that the I.O. has made unabashed attempt to fabricate false evidence to bring on record incriminating evidence against the accused whom he had tied down for the offence u/s 302 IPC and went to the extent of introducing false witnesses, preparing fabricated recoveries, replacing them by original recoveries." The High Court on the other hand did not deal with the various discrepancies and contradictions appearing in the prosecution evidence relating to the making of the disclosure statement and the recovery of the ornaments.
The High Court placed reliance on the testimony of Kuldip Kaul PWl and Harnaik Singh PW2 to hold that the disclosure statement and the recovery had been made in the manner suggested by the prosecution.
In our opinion, the High Court did not properly appreciate the prosection evidence while reversing the well considered judgment of the learned Sessions Judge.
245 On our independent appraisal of the evidence we find that the prosecution evidence relating to the disclosure statement and the recovery of ornaments is not only discrepent and contradictory but also suffers from glaring infirmities and improbabilities rendering it unsafe to rely upon the same.
There is contradiction between the evidence of Kuldip Kaul PW1` and the I.O. as to the place where Kuldip Kaul signed the recovery memo.
According to the 1.0.
it was signed at the spot while according to Kuldip Kaul PW1, he had returned to the police station and there signed the recovery memo.
Again, while Kuldip Kaul attempted to show that he had met the I.O. just once and did not know him earlier, the I.O. has given a direct lie to it.
After carefully analysing the evidence, we find Kuldip Kaul PWl was a convenient witness and his evidence does not appear to be trustworthy.
Same is our opinion about Harnaik Singh PW2.
Whereas both Harnaik Singh PW2 and the I.O. want the Court to believe that they did not know each other earlier and that I.O. had seen Harnaik Singh for the first time on that day only at the police station, there is abundant material on the record to show only that Harnaik Singh had earlier been cited as witness by the same I.O. while posted as Sub Inspector at another police station, Harnaik Singh PW2 was also present outside the house of the appellant alongwith Kuldip Kaul PWl as early as on 6.30 AM on that day.
Harnaik Singh PW2 also exposed his unreliability when he admitted during the cross examination that the disclosure statement had not been made by the appellant in his presence at the police station but that he had signed a statement which had already been prepared, thus, giving a lie not only to Kuldip Kaul PWI but also to the I.O. who have deposed to the contrary.
As regards the recovery of ornaments also, there is a very serious infirmity which emerges from the testimony of Harnaik Singh PW2.
Contrary to what the I.O. and the other witnesses stated, Harnaik Singh PW2 deposed that the ornaments were taken out by, the Sardarji I. O. from the drain hole and not by the appellant.
This probabilises the defence version that the ornaments had been recovered during the search and were with the I.O. when the ritual of the recovery under Section 27 of the Evidence Act was performed.
The contradictions in the evidence of the I.O. and S.I. Dalip Singh PW6 as to who had weighed the ornaments after their alleged recovery also casts doubt on the correctness of the prosecution story and the bonafides of the investigation.
246 The learned Judges of the High Court noticed the evidence of Harnaik Singh as regards the manner of his signing the disclosure statement and the alleged recovery of ornaments and observed : "Harnaik Singh PW2 even though cited as a witness of the disclosure statement, does not subscribe to it and obviously, as stated by Harmit Singh, he was only brought to the police station after the first interrogation was conducted.
In any event we think that a person like Harnaik Singh PW2 who is not prepared to subscribe to a part of the prosecution case to which he was not a witness could not but be a truthful witness and there is absolutely no reason not to believe his version that these ornaments were recovered at the pointing out of the accused and were drawn from the drain hole by the accused himself.
" We are unable to appreciate this approach of the High Court.
The Court seems to have made a virtue out of a vice.
While deposing about the recovery of the ornaments from the drain hole of the bath room Harnaik Singh PW2 belied the entire prosecution case when he stated that after the appellant had led the police party to the bath room "the Sardarji took out three bangles and one golden chain from the gutter of the bath room".
The High Court did not advert to this aspect of the evidence at all.
Kuldip Kaul PWl who was also disbelieved by the learned Sessions Judge and in our opinion rightly, had also exposed the extent of falsehood indulged into by the investigating officer with regard to the time and place where the witness attested the memo of recovery of the ornaments but the High Court did not deal with the said circumstance also in its proper perspective and on the other hand unjustifiably criticised the Sessions Judge for her adverse comments on the veracity of the prosecution case.
Obviously, the investigating officer had associated Kuldip Kaul PWI not only because he was known to the SHO but also because he was a convenient witness who was prepared to sign the recovery memo at the police station at 3.30 PM, after the police party had returned from the house of the 'appellant.
The glaring discrepancies and contradictions noticed above have rendered the evidence of Kuldip Kaul PW1, Harnaik Singh PW2 and the Investigation Officer Harmit Singh PW19 untrustworthy and unreliable.
On the other hand, we find that the defence version regarding the recovery of ornaments is more probable and is supported by independent witnesses including Tara Chand 247 DW2 father of the deceased whom the I.O. did not produce as a prosecution witness.
Despite searching cross examination nothing was elicited to created any doubt on the veracity of Tara Chand DW2, the father of the deceased, who, as already stated, would be the last person to screen the real murderer of his daughter.
The evidence of Tara Chand DW2 has impressed us and we find that the version given by him, in the facts and circumstances of the case, was more probable.
In view of the serious discrepancies contradictions and the attempt of the Investigating Officer Harmit Singh to create false clues and fabricate evidence, we are of the opinion that the learned Sessions Judge was perfectly justified in rejecting the prosecution evidence relating to the disclosure statement exhibit PC and the consequent recovery of the ornaments.
The prosecution has failed to establish that the appellant did make the disclosure statement as alleged by the prosecution or led to the recovery of the ornaments belonging to the deceased in the manner suggested by the prosecution.
This piece of circumstantial evidence, therefore, has not at all been established, much less conclusively.
In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and those circumstances must be conclusive in nature.
Moreover, the established facts should be consistent only with the hypothesis of the guilt of the accused alone and totally inconsistent with his innocence.
Though with the ruling out of the recovery of the ornaments as circumstances relating to the been established conclusively, the chain of the circumstantial evidence snaps badly, we find that there are some other circumstances also in the prosecution case which militate against its correctness.
Admittedly, the nail clippings of the nails of the deceased had been taken by the police.
There was also recovery of the hair from near the cot where the dead body was lying and the romoval of the hair from the scalp of the appellant by the I.O. for the purpose of their comparison.
The report of the chemical examiner has not connected the hair recovered from the cot with those of the appellant.
There is no material on the record either to show that the nail clipping had any blood, which could have tallied with the blood group of the appellant.
Thus, both the/ nail clippings and the hair have failed to connect the appellant with the crime.
248 The information about the incident was given by Sulekh Chand Jain DW13 an immediate neighbour, of the decased who informed the police at 4.55 AM on the request of the appellant about the occurrence.
Sulekh Chand Jain was not examined by the prosecution and was instead examined by the defence and has appeared as DW13.
He deposed that he had conveyed the information, as given to him by the appellant and other inmates of that house, regarding the murder of the deceased to Moti Ram PW11 at police station Hauz Khas on telephone.
The record of the information conveyed by him at the police station was, however, cryptic and no explanation has been furnished as to why the recorded report was so cryptic.
In answer to a question in the cross examination, the witness naturally expressed his ignorance as to why the report had been recorded in the manner in which it was recorded.
That was natural.
This explanation was required to be furnished by the police witnesses rather than DW13.
Though he was subjected to incisive cross examination, nothing emerged from the evidence of DW13 which may show that he had not conveyed the information of murder having been committed to the police.
Under these circumstances, the argument of Mr. Garg that the report was designedly left vague to enable the investigating agency to fill in the blanks latter cannot be dismissed as wholly unplausible particularly when we have noticed the conduct of the Investigating Officer during the investigation.
The possiblility that the entire case was built up after the dogs of the dog squad pointed towards the appellant cannot be ruled out.
Since, the appellant had slept in the verandah near the cot where the dead body of his wife was found; had locked the collapsable door with the recovered lock before going to sleep and had himself been close to the dead body before the police came, the picking up of the smell by the dogs and pointing towards the accused could not be said to be a circumstance which could exclude the possibility of guilt of any person other than that of the appellant or be compatible only with hypothesis of guilt of the appellant.
The pointing out by the dogs could as well lead to a misguided suspicion that the appellant had committed the crime.
The explanation of the appellant regarding the injuries on his person as having been caused by the police is also quite plausible because according to the father of the deceased, the sister of the deceased, the tenants of the house and other neighbours who had reached the spot, the appellant was wearing only a vest and the pyjama and no shirt and there were no marks of injuries on his body before he was 249 taken to the police.
station.
The prosecution case regarding the presence of injuries on the person of the deceased also, therefore, is quite doubtful.
On an independent appraisal of the evidence on the record, we have therefore unhesitatingly come to the conclusion that the learned Sessions Judge was perfectly justified in acquitting the appellant of all the charges and the reasoning given and the findings recorded by her are sound, cogent and reasonable.
The High Court was not justified to set aside those findings on surmises and conjectures.
The finding of guilt recorded against the appellant by the High Court is not sustainable in law and we, agree with the learned Sessions Judge that the prosecution has not established the case against the appellant beyond a reasonable doubt.
We, accordingly, set aside the judgment of the High Court convicting the appellant for the offence under Section 302/203 IPC.
The appeal is allowed and the appellant acquitted of both the charges.
The appellant is on bail, his bail bonds shall stand discharged.
N.V.K. Appeal allowed.

dataset_name: IN-Abs

summary:
The appellant and his wife went to sleep in the back varandah of their house on the fateful night of 25th/26th July, 1976 while the appellant 's brother alongwith his wife and children went to sleep separately in their bed room in the same house.
The Police Control Room was informed over the telephone by a neighbour Sulekh Chand Jain at 4.55 A.M. that an incident had taken place in the house and on receiving the telephone message, the S.I. made a record of it in the daily diary and passed on the information to the duty officer at the police station, who deputed an A.S.I. to proceed to the spot for investigation.
After reaching the spot, the A.S.I. informed the police station on telephone that a murder had taken place.
The information was recorded and the SHO immediately left for the spot alongwith S.I.
The police party arrived at the spot at about 5.35 a.m. and took charge of the investigation.
The appellant was present near the dead body and on interrogation, the appellant informed the police party that his brother and family had retired for the night in their bed room at about 10.00 P.M. and he alongwith his wife had slept in the back verandah, and that when he got up at 3.45 A.M. he noticed that his wife had been murdered by somebody by strangulation while committing the theft of the gold chain, eartops and golden bangles that she was wearing.
The crime team as well as the dog squad were summoned.
Both the 227 dogs of the dog squad were first let loose and after picking up the smell from the lock lying in the corner of the back courtyard and from the spot, went to the room where the appellant was sitting and each of the dogs pointed towards him by turn.
That raised a suspicion against the appellant.
The SHO then asked the appellant to remove his shirt and found that the appellant had injuries in the nature of bruises etc.
on the front part of his, body, on the chest, as well as on his back, The appellant was thereafter taken for further interrogation to the police station, and in the presence of the Sub Inspector, PWI and PW2 he made a disclosure statement to the effect that he had concealed the golden chain and the bangles in his bathroom and in pursuance of the disclosure statement, the appellant led the police party to the bathroom of his house and after removing the cover from the drain hole, took out the golden chain and the bangles and handed them over to SHO.
The appellant was placed under arrest.
After the disclosure statement was made the case which was originally registered under Section 460 IPC was converted into one under Section 302 read with section 203 IPC.
After completion of the investigation, the challan was filed against the appellant and he was tried for offences under Section 302/203 IPC in the Court of the Additional Sessions Judge.
The prosecution sought to establish the case against the appellant on the basis of circumstantial evidence, there being no eye witness of the occurrence.
The circumstances set up by the prosecution were : (i) information to the police at 4.55 A.M given by a neighbour and not the appellant; (ii) that information that a murder had taken place was not given but intimating the happening of an incident; (iii) The accused having slept at night in the verandah with tile deceased after having locked the collapsable door of the verandah from inside; (iv) The deceased and accused were last seen together; (v) The dogs of the dog squad having pointed out to the accused after picking up scent from the lock; (vi) The ornaments which were on the person of the deceased while she was sleeping, and found missing when she was discovered dead, were recovered from the drain hole of the bath room attached to the bed room of the accused in consequence of and in pur suance to the disclosure statement made by the accused; (vii) injuries found on the person of the accused in the nature of abrasions, contusions, and (viii) the accused having given false information to the police by means of his statement Ext.
228 The Sessions Judge after carefully analysing the aforesaid circumstances held that the prosecution has entirely failed to prove any of the circumstances set up against the accused, much less to establish the chain of circumstances, so as to bring out a nexus between the crime and the accused, and acquitted the appellant for the offences under Section 302/203 IPC.
The State appealed to the High Court and a Division Bench reveresed the order of acquittal of the appellant.
The High Court held that the circumstances formed a chain and the sequences were so complete by themselves that one was left in no manner of doubt that the appellant alone had committed the crime.
The appeal was allowed, the order of acquittal was set aside, and the appellant was sentenced to undergo rigorous imprisonment for life under Section 302 IPC, and also to undergo rigorous imprisonment for a period of one year under Section 203 IPC.
In the appeal to this Court it was contended on behalf of the appellant that the approach of the High Court was totally erroneous and that a well considered and well reasoned judgment of the Trial Court was upset by the High Court by drawing inferences which were not available from the record and by ignoring material discrepancies and infirmities in the prosecution evidence, which not only did not establish various circumstances but which also showed that the chain of circumstantial evidence was wholly incomplete.
It was further contended that the appellant had been roped in on the basis of misguided suspicion and that the circumstances relied upon by the prosecution were not exclude the hypothesis, other than that of the guilt of the appellant.
The appeal was contested by the State submitting that some of the circumstances like the pointing out of the appellant by the dogs of the Dog Squad, the disclosure statement and the recovery of ornaments as a consequence thereof.
and the presence of injuries on the person of appellant, were of such a conclusive and clinching nature that they left no doubt that the appellant had committed the crime, and this was fortified when the appellant had made the attempt to mislead the investigating officer by giving a false version with a view to screen himself.
Allowing the appeal, and setting aside the judgment of the High Court convicting the appellant, this Court, HELD : 1.
The High Court did not properly appreciate the prosecu 229 tion evidence while reversing the well considered judgment of the Sessions Judge.
On independent appraisal of the evidence, the prosecution evidence relating to the disclosure statement and the recovery of ornaments is not only discrepent and contradictory but also suffers from glaring infirmities and improbabilities rendering it unsafe to rely upon the same.
[244H, 245B] 2.
The Sessions Judge was perfectly justified in acquitting the appellant of all the charges and the reasoning given and the findings recorded are sound, cogent and reasonable.
The High Court was not justified to set aside those findings on surmises and conjectures.
The finding of guilt recorded against the appellant by the High Court is not sustainable in law and the prosecution has not established the case against the appellant beyond a reasonable doubt.
[249B] 3(a).
In a case based on circumstantial evidence, motive assumes pertinent significance as existence of the motive is an enlightening factor in a process of presumptive reasoning in such a case.
The absence of motive, however, puts the court on its guard to scrutinise the circumstances more carefully to ensure that suspicion and conjecture do not take place of legal proof.
In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and those circumstances must be conclusive in nature.
Moreover, the established facts should be consistent only with the hypothesis of the guilt of the accused alone and totally inconsistent with his innocence.
[238E F] 4.
No motive has been established by the prosecution for the appellant to commit the murder of his wife and the evidence of Tara Chand father of the deceased as well as the sister of the deceased and the tenants living in the same house disclose that the relations between the husband and wife were cordial.
[238E] 5.
The circumstance (of the disclosure statement and the consequent recovery pursuant thereto of the ornaments belonging to the deceased is of such an incriminating nature that if found established by reliable and trustworthy evidence, it would go a long way to furnish proof of the guilt of the appellant and connect him with the crime and if the evidence in 230 support of that circumstance is found to be not reliable, the entire chain of circumstantial evidence will snap so badly as to affect the credibility of the prosecution case as a whole.
[238G H) 6.
According to the prosecution after the appellant had been taken to the police station by the investigating officer he was interrogated after being placed under arrest.
He voluntarily made a disclosure statement exhibit
The disclosure statement was recorded by the SHO and has been attested by Kuldip Kaul PWI, SI Dalip singh PW6 and Harnaik Singh PW2.
Pursuant to the disclosure statement, the appellant is alleged to have led the police party to the recovery of the ornaments from a drain hole in his bathroom.
The recovery memo EX.PF was prepared at the spot and was attested by PW6.
PWl and PW2 besides the Investigating Officer.
[239A B] 7.
According to the appellant, however, he had made no disclosure statement nor led the police party to the recovery of the ornaments as alleged, and according to the defence version, the missing ornaments had in fact been recovered by the police party around 11 A.M. during search from the service lane, from underneath a slab, near the boundary wall and at that time the appellant and Jagminder Dass Jain were also present.
This defence version is supported by the evidence of DW2, Tara Chand, father of the deceased.
[242D E] 8.
The Sessions Judge carefully considered the evidence led by the prosecution with regard to the disclosure statement and the recovery of ornaments.
It was found that the evidence of Harnaik Singh PW2, who according to DW11 Sunder Lal constable of police station Defence Colony, had been earlier also cited as a witness for the prosecution in a case investigated by Harmit Singh the then Sub Inspector of police and the present Investigation Officer was not reliable and that the Investigating Officer had not told the truth when he had deposed that he did not know Harnaik Singh earlier.
The Sessions Judge also found the evidence of PW1 Kuldip Kaul as not reliable or trustworthy and disbelieved his testimony by giving cogent reasons after properly appreciating the evidence led by the prosecution.
The defence version with regard to the recovery found as more probable and it was opined that the investigating officer had created false cluses and fabricated false evidence.
[243H, 244A B D] 9.
The High Court on the other hand did not deal with the various discrepancies and contradictions appearing in the prosecution evidence 231 relating to the making of the disclosure statement and the recovery of the ornaments, but place reliance on the testimony of Kuldip Kaul PWl and Harnaik Singh PW2 to hold that the disclosure statement and the recovery had been made in the manner suggested by the prosecution.
[244G] 10.
There is contradiction between the evidence of Kuldip Kaul PWl and the I.O. as to the place where Kuldip Kaul signed the recovery memo.
According to the I.O. it was signed at the spot while according to Kuldip Kaul PW1, he had returned to the police station and there signed the recovery memo.
After carefully analysing the evidence, it is found that Kuldip Kaul PWl was a convenient witness and his evidence does not appear to be trustworthy.
[245B C] 11.
As regards the recovery of ornaments also, there is a very serious infirmity which emerges from the testimony of Harnaik Singh PW2.
Contrary to what the I.O. and the other witnesses stated, Harnaik Singh PW2 deposed that the ornaments were taken out by the Sardarji I.O. from the drain hole and not by the appellant.
This probabilises the defence version that the ornaments had been recovered during the search and were with the I.O. when the ritual of the recovery under Section 27 of the Evidence Act was performed.
The contradictions in the evidence of the I.O. and S.I. Dalip Singh PW6 as to who had weight the ornaments after their alleged recovery also casts doubt on the correctness of the prosecution story and the bonafides of the investigation.
[245G H] 12.
Having regard to the serious discrepancies, contradictions and the attempt of the Investigating Officer to create false clues and fabricate false evidence, the Sessions Judge was perfectly justified in rejecting the prosecution evidence relating to the disclosure statement exhibit PC and the consequent recovery of the ornaments.
[247C] 13.
The prosecution has failed to establish that the appellant did make the disclosure statement as alleged by the prosecution or led to the recovery of the ornaments belonging to the deceased in the manner suggested by the prosecution.
This piece of circumstantial evidence, therefore, has not at all been established, much less conclusively.
[247D] 14.
Though with the ruling out of the circumstance relating to the recovery of the ornaments as not having been established conclusively, the chain of the circumstantial evidence snaps badly, there are some other 232 circumstances also in the prosecution case which militate against its correctness.
Admittedly, the nail clippings of the nails of the deceased had been taken by the police.
Were was also recovery of the hair from near the cot where the dead body was lying and the removal of the hair from the scalp of the appellant by the I.O. for the purpose of their comparison.
The report of the chemical examiner has not connected the hair recovered from the cot with those of the appellant.
There is no material on the record either to show that the nail clipping had any blood, which could have tallied with the blood group of the appellant.
Thus, both the nail clippings and the hair have failed to connect the appellant with the crime.
[247F H] 15.
The possibility that the entire case was built up on suspicion after the dogs of the dog squad pointed towards the appellant connot be ruled out.
Since, the appellant had slept in the verandah near the cot where the dead body of his wife was found; had locked the collapsable door with the recovered lock before going to sleep and had himself been close to the dead body before the police came, the picking up of the smell by the dogs and pointing towards the accused could not be said to be a circumstance which could exclude the possibility of guilt of any person other than that of the appellant or be compatible only with hypothesis of guilt of the appellant.
The pointing out by the dogs could as well lead to a misguided suspicion that the appellant had committed the crime.
[248E F] 16.
The explanation of the appellant regarding the injuries on his person as having been caused by the police is also quite plausible because according to the father of the deceased, the sister of the deceased, the tenants of the house and other neighbours who had reached the spot, the appellant was wearing only a vest and the pyjama and no shirt and there were no marks of injuries on his body before he was taken to the police station.
The prosecution case regarding the presence of injuries on the person of the deceased also therefore, is quite doubtful.
[248G H]