judgement:
iminal Appeal No. 17 of 1971.
Appeal by special leave from the Judgment and Order dated the June 1, 1970 of the Allahabad High Court in Criminal Appeal No. 1931 of 1969 and Referred No. 182 of 1969.
D. P. Uniyal and O. P. Rana, for the Appellant.
59 A. section R. Chari, section K. Mehta, K. L. Mehta and K. R. Nagaraja, for the Respondent.
The Judgment of the Court was delivered by Khanna, J.
Samman Dass alias Samman Lal, aged 19 years, was convicted by Sessions Judge, Faizabad under section 302 I.P.C. for causing the death of his wife Putlibai by throttling her and was sentenced to death.
On appeal as well as in the reference made to it for the confirmation of the death sentence, the Allahabad High Court set aside the conviction of the accused and acquitted him.
The State of Uttar Pradesh has filed this appeal by special leave against the above judgment of the High Court.
The accused was married to Putlibai, who was near about of the same, age as the accused, on May 14, 1968.
Putlibai was the daughter of Gurmukh Das (PW 8) of Azamgarh, while the accused is the son of Shobhamal of Faizabad.
The accused lived with his parents in quarter No. 1831 in Ram Nagar Colony of Faizabad.
More than 300 familities of Sindhis live in this locality.
The non Sindhis occupy only a couple of houses.
There are a number of blocks of buildings in the colony.
Each of those blocks consists of ten quarters.
Apart from the accused and his parents, his uncle Parumal and the wife of Parumal, who is sister of the mother of the accused, also lives in his quarter.
The accused had been engaged to Putlibai about a year before the marriage.
According to the prosecution case, about 5 or 6 months after the engagement the accused went to the house of Gurmukh Das in Azamgarh to see Putlibai.
After having a look at Putlibai the accused came to Faizabad and stated that he would not marry Putlibai as she was not of fair complexion.
When Gurmukh Das (PW) 8 learnt that the accused had refused to marry his daughter, he convened a panchayat.
The father of the accused then became agreeable to marry the accused with Putlibai.
The marriage accordingly took place on May 14, 1969.
After the marriage Putlibai came to Faizabad and lived with the accused in his parents ' quarter for about two and a half months.
Gurmukh Das, father of Putlibai, it is stated, then came and took her to his house.
Putlibai after that came to the house of her husband on October 15, 1968.
The death anniversary of Sain Kanwar Ram, a Sindhi saint, was celebrated by the Sindhis in Ram Nagar Colony of Faizabad on the night between 17th and 18th October, 1968.
The singing of the devotional songs continued up to 10 a.m. on October 18 in an open maidan in the Ram Nagar Colony.
The said maidan is at about a distance of 90 paces from the quarter of the accused.
60 Most of the Sindhis of Ram Nagar Colony attended the celebrations.
The Prasad was distributed at about 10 a.m. on the close of the celebrations.
The case of the prosecution is that Bhagwan Das (PW 1) who is brother of maternal grandfather of Putlibai, after taking Prasad took a riksha and started going to his grocery shop in Mohalla Chowk, Faizabad.
When Bhagwan Das passed in from of the quarter of the accused, he heard shrieks.
Bhagwan Das then shouted as to what the shrieks were about.
Bhagwan Das also went to the front door of the quarter of the accused and knocked there.
On hearing the shouts of Bhagwan Das, Choith Ram (PW 2), Ayal Das alias Ailmal (PW 6), Shobhraj (PW 7) and one Kirpal Das also joined Bhagwan.
Bhagwan Das.
Choith Ram, Ayal Das and Shobhraj all live in that locality.
Choith Ram and Shobhraj were passing through the lane at that time after taking Prasad.
Ayal Das, who 'too had taken Prasad, was taking water at a place about 40/50 paces away from the quarter of the accused when Ayal Das heard shouts.
The front door of the quarter of the accused was found bolted from inside and there was no response to the knocking at the door.
Bhagwan Das and others who had joined him then went to the back door of the quarter of the accused and knocked at the back door.
The back door which opens in a very narrow lane was also found bolted from inside.
There was no response even to the knocking at the back door.
Bhagwan Das and his companions then thought of going again to the front door of the quarter.
When Bhagwan Das and his companions reached near a well at a distance of 10 paces from the back door of the house of the accused, they heard the noise of someone jumping.
They then looked back and saw the accused who jumped over the back wall of his quarter.
The accused wanted to run away but Bhagwan Das and his four companions caught hold of the accused and did not allow him to escape in spite of his entreaties.
The accused appeared worried at that time and there was redness in his eyes.
At the asking of Bhagwan Das, it is alleged, Choith Ram PW went inside the quarter of the accused by scaling over the wall which is about 7 feet high.
Choith Ram then opened the back door.
Bhagwan Das along with the companions went inside the quarter of the accused and found Putlibai lying dead on a cot in one of the rooms of the quarter.
The door of this room was slightly open.
No one else was present in the quarter at that time.
Just then there was a knock at the front door of the quarter.
It was opened by Choith Ram.
The mother of the accused who had also gone to take Prasad then came inside the quarter.
On seeing the dead body of the deceased, the mother of the accused started crying.
Shobhamal, the father of the accused, whose shop 61 is situated in Sabzi Mandi, came after about one and a half hour.
On the arrival of Shobhanial, Bhagwan Das told him everything.
Shobhamal then wanted to lift the dead body of Putlibai for consigning it in the river but he was told by Choith Ram and others that they would not allow the dead body to be removed till the arrival of the parents of Putlibai.
Bhagwan Das, in the meanwhile, directed one Govardhan Das, brother of Choith Ram, to go in a taxi to Azamgarh and bring the parents of Putlibai.
At about 3 p.m. it is stated, Shobhamal, father of the accused, stated that there was no idea in keeping the dead body for a long time and that if Bhagwan Das and others had any suspicion, a doctor could be sent for.
Bhagwan Das and his companions then told Shobhanial to call the doctor.
Shobhamal thereupon deputed one Bhagumal to call a doctor.
Bhagumal then went and contacted Dr. Hansraj Singhal (PW 4) at the latter 's residence It about 4 p.m. Dr. Singhal, it is alleged, then went to his clinic and from there took his diagonistic bag and thereafter came to the quarter of the accused.
The doctor found the dead body of Putlibai lying on a cot.
The colour of her face was blue.
The face was swollen and the eyes were slightly open.
Pupils were dilated and nonreacting to light.
The mouth was slightly open and there were finger marks on the left and right side of her neck.
There were also marks of some abrasions on both the elbows besides a contusion on the right palm.
As Dr. Singhal was concerned only with the question as to whether the death of the deceased was normal or was the result of some foul play, he did not make a more detailed examination of the dead body.
Dr. Singhal came to the conclusion that the death of Putlibai was not natural but was due to throttling.
The doctor told this thing to Bhagumal.
The doctor added that the police should be informed and that otherwise he would himself inform the police on reaching his clinic.
After saying this the doctor left the quarter.
After the doctor gone for a distance of about two furlongs he thought of inquiring the name of the deceased, her husband and the particulars of the address.
He consequently returned to the quarter of the accused and after getting the necessary information, went to his clinic.
Before reaching the clinic, the doctor also telephoned to the police station about the death of Putlibai from a shop near his clinic.
In the meanwhile, immediately after Dr. Singbal had left the quarter of the accused, Bhagwan Das PW got a report written by Dayal Das (PW 10).
The report was then signed by Bhagwan Das and was taken to police station kotwali at a distance of about two miles from the place of occurrence.
The report was handed over at the police station at 5 p.m. Mohd. Amin (PW 9), 62 head clerk in the police station, then prepared a formal F.I.R. on the basis of the report of Bhagwan Das.
A copy of the first information report was sent to Sub Inspector Ram Gulam Chaudhari who was present in station Fatehganj.
The Sub Inspector then went to the quarter of the accused and reached there at about 6 p.m.
The Sub Inspector took the accused, who had been secured at the spot, in his custody.
The dead body of the deceased was found by the Sub Inspector lying on a cot.
After preparing the necessary documents, the Sub Inspector sent the dead body to the mortuary.
Post mortem examination on the dead body of Putlibai was performed by Dr. Vijay Pal (PW 3) at 11.45 a.m. on October 19, 1968.
In the opinion of Dr. Vijay Pal the death of Putlibai deceased was due to asphyxia caused by throttling.
After necessary investigations, a challan was put in against the accused.
In his statement under section 342 Code of Criminal Proce dure before the committing magistrate the accused denied the prosecution allegations and stated that on the day of occurrence, he had gone to his father 's shop at 9 a.m.
He was called from that shop at 9 30 a.m. after being told that the condition of his wife was serious.
The accused then wanted to call a doctor but the doctor was not available.
According to the accused he was falsely involved in this case at the instance of Bliagwan Das and Perumal who did not want that he should mart)( Putlibai.
In his statement under section 342 of the Code of Criminal Procedure in the court of Sessions, the accused admitted that he had been married to Putlibai deceased on May 14, 1968 and that they had been living together in the quarter of the accused along with the parents of the accused as welt as his uncle and aunt.
The accused further admitted that he had been engaged to Putlibai before his marriage but denied that he had refused to marry her.
The allegation about the gathering of a panchayat too was denied by the accused.
The accused admitted that Putlibai came to the quarter of the accused on October 15, 1968.
The fact that there was a celebration by the Sindhis living in the locality of the death anniversary of Sain Kanwar Rain on the night between 17th and 18th October 1968 was also admitted by the accused, but according to him, the Prasad was distributed at 6 or 7 a.m.
The prosecution allegations about the hearing.
of shircks from his quarter as well as about his jumping over the back wall was denied by the accused.
The accused likewise denied the allegation that he was secured by Bhagwan Das and others.
The accused added that Bhagwan Das, Choith Ram and father of Cloitli Ram, were inimical to him because they did not want Putlibai to marry the accused.
63 According to the accused, on the day of occurrence he had gone to his father 's shop at about 9 a.m.
Thereafter he came to the place of occurrence at about 11 or 11.30 a.m. on being told that the condition of his wife was serious.
In defence five witnesses were examined on behalf of the accused.
The purport of the defence evidence was that on the day of occurrence at 10.30 or 11 a.m. the aunt of the accused called Tikam Das (DW 2), who is the cousin of the mother of the accused and lives in the neighbourhood, and told him to go to the shop of the father of the accused and inform him about the serious condition of Putlibai deceased.
Tikam Das then went to the shop of the father of the accused and met the accused and his father there and conveyed the message to them.
Evidence was also led to show that the accused called two doctors and sent a telegram about the death of the deceased to his sister 's husband.
The learned Sessions Judge on consideration of the evidence found that the following facts had been proved by the prosecution "1.
The accused was the only person in the quarter and, therefore, with, the deceased immediately before, at the time of and immediately after her murder.
Instead of getting out of the quarter in the usual way, he scaled the rear wall and jumped into the back lane immediately after the murder of the deceased.
3.When he was caught as soon as lie jumped, he was nonplused, his eyes were red shot and he begged to be, let off which exhibited his guilty consciences" Reference was further made to the fact that the accused had failed to explain as to why he had jumped from the back wall of his quarter and had tried to run away.
It was also pointed out that the accused had made false denials and put forth false plea of alibi.
The above circumstances, in the opinion of the Sessions Judge, were consistent only with the guilt of the accused.
The defence evidence produced by the accused was found to be not worthy of credence and was rejected.
In the result the accused was convicted for the murder of Putlibai and was sentenced to death.
When the matter came up before the High Court, the learned Judges held that the prosecution had successfully established that the accused had a motive for the murder of Putlibai.
In the opinion of the learned Judges, the circumstances in which the death of Putlibai had occurred must have created a strong suspicion against the accused.
He was consequently involved in this case.
64 The learned Judges seem to have taken the view that the first information report was not lodged at the time when it purports to have been made.
It was also observed that the only witness who appeared to be independent was PW Shobharaj.
His statement was found to be not true because the witness had given the distance ,of his quarter from that of the accused as 50 paces, while, according to another witness, the distance was 150 paces.
In the result.
the conviction of the accused was set aside and he was acquitted.
We have heard Mr. Unyal on behalf of the appellant and Mr. Chari on.
behalf of the accused respondent, and are of the opinion that the High Court set aside the conviction of the accused on grounds which are wholly untenable.
There can be no manner of doubt that Putlibai deceased was throttled to death.
The evidence of Dr. Vijay Pal (PW 7), who performed post mortem examination on the dead body of Putlibai deceased shows that he found the following ante mortem injuries on the dead body of the deceased Putlibai : "Finger marks were present in front of the neck.
These marks looked like brownish and dry.
On the left side of the neck, in front, upper and outer part, thumb mark was present which measured 1" x 1/2 " and the upper part of which was 1/2 " below the mandible.
On the right side of the neck, in front upper and outer part of 4 finger marks were present in oblique directions downwards and outwards one below the other measuring 1" x 1/2", 3/4"x 1/2"", 1/2 x 1/2" and 1/4" x 1/4"; the upper most mark was 1/2 " below the mandible.
" Besides the above injuries, there was a contusion on the right thinner eminence and two abrasions on the elbows.
Extravascular blood was present in the subcutaneous tissues of the neck under the finger marks in the adjacent muscles of the neck.
There was fracture of the corner of the hyoid bone.
The larynx, the trachea, the lungs, the liver, the gall bladder, the spleen and the kidneys were congested.
Dr. Vijay Pal accordingly came to the conclusion that the death was due to asphyxia caused by throttling.
The doctor added that the time of the death of the deceased could be about 10.30 a.m. on October 18, 1968.
According to the prosecution case, the death of Putlibai deceased was caused by the accused, while the accused has denied this allegation.
The Sessions Judge accepted the prosecution evidence in this respect, but the same was found by the High Court to be not such as could warrant a conviction of the accused.
In order to prove the case against the accused, the prosecution examined Bhagwan Das (PW 1), Choith Ram (PW 2), 65 Ayal Das (PW 6) and Shobhraj (PW 7).
According to Bhagwan Das PW, he heard shrieks when he passed in front of the quarter of the accused at about 10.30 a.m. on the day of occurrence.
The witness then shouted as to what the matter was about and was immediately joined by the other three witnesses and Kirpal Das.
The witness then knocked at the front door as well as at the back door of the quarter of the accused but got no response.
Just then, the witness and his companions saw the accused jumping over the rear wall of his quarter in the back lane.
The accused was then secured and was not allowed to escape in spite of his entreaties.
Choith Ram PW then entered the quarter by scaling over the back wall and opened the door.
When Bhagwan Das and his companions went inside, they found Putlibai lying dead on the cot.
Bhagwan Das also deposed about the report lodged by him with the police after Dr. Singhal had declared that Putlibai had been throttled to death.
The above evidence of Bhagwan Das is corroborated by the evidence of Choith Ram (PW 2), Ayal Das (PW 6) and Shobhraj (PW 7).
The evidence of the above mentioned four witnesses was found by the learned Sessions Judge to be convincing and reliable.
After having been taken through that evidence, we see no cogent ground to take a view different from that of the Sessions Judge.
It is no doubt true that Bhagwan Das PW is the brother of Bangamal, maternal grandfather of Putlibai, deceased and that sister of Choith Ram PW is married to Bangamal.
It is also true that Ayal Dass PW is a cousin of Gurumukh Das, father of Putlibai.
The relationship of the above mentioned three witnesses to Putlibai deceased would, in our opinion, be not a sufficient ground for discrediting their testimony.
It is well known that the close relatives of a murdered person are most reluctant to spare the real assailant ' and falsely involve another person in place of the assailant.
Had Putlibai been killed by some other person, the natural conduct of the above mentioned three witnesses, who were related to Putlibai on her parents ' side, would have been to offer sympathy to Samman Dass accused and help him in the apprehension of the real culprit, rather than to falsely involve him in the murder of his wife.
There is no cogent evidence on the record to show that any of the above mentioned three witnesses had any animus against the accused.
The accused, no doubt, took the plea that the above mentioned witnesses were against his marriage with Putlibai, but that suggestion has been denied by these witnesses.
Apart from the evidence of the aforesaid three witnesses, we have the evidence of Shobhraj PW.
Shobhraj is a wholly dis interested witness, and we see no cogent ground whatsoever as to why his evidence be not accepted.
The fact that according to 66 Shobbraj his quarter was at a distance of about 50 paces from the quarter of the accused, while according to Bhagwan Das PW the quarter of Shobhraj is at a distance of 150 paces from that of the accused, would not go to show that Shobhraj is not, as held by the High Court, a truthful witness.
The difference in the estimate of the distance of the quarter of the accused from that of Shobhraj is not of great significance because nothing hinges on that distance.
According to Shobhraj, he arrived at the scene of occurrence not from his quarter but from the place where the celebrations of Sain Kanwar Ram were being held.
The afore said place is at a distance of less than 100 paces from the quarter of the accused.
The view of the High Court that the first information report was not lodged at the police station at the time, viz., 5 p.m., at which it purports to have been lodged is based upon mere conjecture.
According to Bhagwan Das PW, immediately after Dr. Singhal had declared at about 4.30 p.m. that Putlibai had been throttled to death, he (Bhagwan Das) got written report from Dayal Das (PW 10) and signed it.
The report was then sent to the police station.
The evidence of Bhagwan Das in this respect is corroborated by Dayal Das PW.
We have then the evidence of Mohd. Amin (PW 9).
Mohd. Amin was head clerk in police station Kotwali in those days.
According to Mohd. Amin, the report was handed over to him at the police station at 5 p.m. on October 18, 1968.
The witness then prepared the formal first information report.
An entry was also made in the general diary of police station at that time.
The witness further sent special report regarding this case at 5.20 p.m. on that very day.
Nothing was brought out in cross examination to shake the evidence of Mohd. Amin.
Apart from the fact that no reason has been shown as to why the evidence of Bhagwan Das and Mohd. Amin be not accepted regarding the time at which the first information report was lodged at the police station, we find that there was not even a remote suggestion in the cross examination of Mohd. Amin that the formal first information report was not prepared at the police station at the time, viz, p.m., at which it purports to have been prepa red.
In the absence of any material pointing to the inference that the formal first information report was not prepared at 5 p.m., the High Court, in our view acted erroneously in holding, on the basis of a pure surmise, that the first information report had not been lodged at the police station at 5 p.m.
We are also not impressed by the argument that the police acted on the telephonic intimation received from Dr. Singhal According to Dr. Singhal, he sent the telephonic intimation after 5 p.m., while the report of Bhagwan Das had been lodged at the police station at 5 p.m. Dr. Singhal 's evidence shows that after 67 examining the dead body of Putlibai at about 4.30 p.m., he proceeded in a riksha to his clinic.
After he had gone for a distance of two furlongs, he thought of getting details about the name of the deceased, her husband 's name and address.
He accordingly returned to the quarter of the accused and got the necessary particulars.
After that, he again proceeded towards his clinic, but his riksha was held up at the railway level crossing because the gate at the crossing remained closed for 10 minutes.
In the cir cumstances, we find no reason to reject the prosecution evidence that the police acted upon the report lodged by Bhagwan Das PW.
Coming to the question as to whether there was a delay in lodging the report, we find that the evidence on record shows that after Putlibai had been found dead, the father of the accused showed inclination to consign her dead body to the river.
Bhagwan Das then insisted that the dead body of Putlibai should not be disposed of till the arrival of her parents.
The father of the accused thereupon agreed to send for a doctor.
Dr. Singhal was accordingly called and he stated, after examining the dead body, that the deceased had been throttled to death.
Immediately thereafter, Bhagwan Das got the report written from Dayal Das and lodged it at the police station.
In our opinion, there was no inordinate delay in lodging the, report.
It is obvious that Bhagwan Das did not lodge the report till such time as he was certain that the death of Putlibai deceased was not natural but was due to violence.
The present was not a case wherein the deceased had been killed by some sharp edged weapon or a fire arm, or wherein the deceased had been killed by sharp edged weapon or a fire arm, or wherein the body of the deceased had been found lying in a pool of blood.
In such a case, there can be no doubt about the death being not natural.
In cases.
however, of death caused by poisoning or throttling, a layman cannot be very sure of the cause of death, and we find nothing improbable in the conduct of Bbagwan Das PW in not lodging the report till he learnt from Dr. Singhal that death of the deceased was due to throttling.
Bhagwan Das, Choith Ram, Ayal Das and Shobhraj PWs reside in the locality wherein the occurrence took place.
The fact that no one from the quarters adjoining, that of the accused has been examined by the prosecution would not, in our opinion, introduce an infirmity in the prosecution case.
The evidence Bhagwan Das shows that the adjoining quarters were closed at the time of the occurrence, as most of the people in the locality had gone to attend the celebrations of Sain Kanwar Ram.
Argument was advanced by Mr. Chari that it would not be a natural act of the accused to have made the murderous assault on his wife at about 10.30 a.m. when the people were moving in the lane in front of his quarter.
In this respect we 68 find that the accused chose the moment when no one else was present in the house.
The fact that no one was present there to witness the actual murder of the deceased might well have been considered by the accused to be an opportune time.
Different individuals act differently in a given situation, and we find nothing improbable in the act of the accused in committing the murder ,of his wife at about 10.30 a.m. on the day of occurrence.
It has also been submitted by Mr. Chari that there was no sufficient motive for the accused to murder his wife.
In this respect we find that the evidence of Choith Ram (PW 2) shows that the accused has told him that he did not like Putlibai.
We have then the evidence of Bhagwan Das PW as well as that of Gurmukh Das PW, father of Putlibai, that when it was learnt that the accused was reluctant to marry Putlibai, Gurmukh Das convened a panchayat.
The accused was thereafter married to Putlibai.
The evidence on record thus, reveals that the accused was forced to mary Putlibai in spite of his dislike, because of the convening of the panchayat.
It cannot, in the circumstances, be said that the accused had no motive to cause the death of his wife.
The learned judges of The High Court too took the view that the accused had a motive to cause the death of the deceased.
In any case, motive is not very material when the other evidence clearly points to the guilt of the accused.
Reference has also been made by Mr. Chari to the fact that there is no evidence about the existence of any injury on the person of the accused.
It is urged that the deceased, while being throttled, must have offered resistance, and thus.
there would have been an injury on the person of the accused because of that resistance.
We are not impressed by this argument because resistance by the deceased resulting in injuries to the assailant is not a necessary feature of every act of throttling.
Different victims can act differently and it would depend upon a variety of circumstances as to whether they were or not in a position to offer resistance.
The absence of injuries on the person of the accused would not go to show that he was not the person who had throttled the deceased to death.
So far as the defence evidence is concerned, the same was disbelieved by the Sessions Judge.
The defence evidence was also not relied upon by the High Court ostensibly because no effort was made to rely upon that evidence.
Likewise, no effort has been made in this Court to rely upon the defence evidence.
There is no eyewitness of the actual occurrence, but on the material on record, we find that the following circumstances have been proved against the accused.
69 (1) The accused was alone with the deceased in his quarter at about 10.30 a.m. on the day of occurrence.
(2) Shrieks were heard at that time from inside the quarter of the accused.
(3) Both the front and the back doors of the quarter of the accused were found to be bolted from inside.
Those doors were not opened inspite of shouting and knocking.
(4) The accused soon thereafter jumped over the rear wall into the back lane.
He wanted to run away but was secured by Bhagwan Das and other witnesses.
This accused appeared to be upset at that time and, in sipte of his entreaties, he was not allowed to go away.
(5) Immediately thereafter, Bhagwan Das and other witnesses went inside the quarter and found Putlibai, wife of the accused, lying dead on a cot.
(6) According to medical evidence, the deceased had been throttled to death at about 10.30 a.m. on that day.
(7) The accused had an animus against Putlibai because he was forced to marry her in spite of the fact that he did not like her.
All the above circumstances, in our opinion, clearly point to the conclusion that the accused was the murderer of Putlibai.
The above circumstances are inconsistent with his innocence.
Mr. Chari has referred to the case of the State of Madras vs A. Vaidvanatha Iyer (1) wherein this Court held that the words used in article 136 of the Constitution show that, in criminal matters, no distinction can be made as a matter of construction between a judgment of conviction and one of acquittal.
This Court, it was further observed, would not readily interfere with the findings of fact given by the High Court, but if the High Court acts perversely or otherwise improperly, interference will be called for.
In our opinion, the accused respondent can derive not much assistance from the above authority because the High Court in the present case reversed the finding of conviction on grounds which were wholly untenable.
The view taken by the High Court is clearly unreasonable and is not warranted by the material on record.
The fact that the High Court, in a reference under section 374 of the Code of Criminal Procedure, has to appraise the evidence for itself and has to arrive at its own independent conclusion would not prevent this Court from interfering with the order of the High Court if the High Court reverses the judgment of the trial court on grounds which are manifestly fallacious and untenable.
(1) ; 7 0 This Court in an appeal under article 136 of the Constitution does not normally reappraise the evidence and interfere with the assessment of that evidence by the High Court.
Where, however, this Court finds that grave injustice has been done by the High Court in interfering with the decision of the trial court on grounds which are plainly untenable and the view taken by the High Court in interfering with the decision of the trial court on this Court would not stay its hand.
There are, however, certain cardinal rules which have always to be kept in view in appeals against acquittal.
Firstly, there is a presumption of innocence in favour of the accused which has to be kept in mind, especially when the accused has been acquitted by the court below; secondly, if two views of the matter are possible, a view favourable to the accused should be taken; thirdly, in case of acquittal by the trial judge, the appellate court should take into account the fact that the trial judge had the advantage of looking at the demeanor of witnesses; and fourthly, the accused is entitled to the benefit of doubt.
The doubt should, however, be reasonable and as observed recently by this Court, the doubt should be such which rational thinking men will reasonably, honestly and conscientiously entertain and not the doubt of a timid mind which fights shy though unwittingly it may be or is afraid of the logical consequences, if that benefit was not given.
To put it differently, it is "not the doubt of a vacillating mind that has not ,the moral courage to decide but shelters itself in a vain and idle scepticism" (see Himachal Pradesh Administration vs Shri Om Parkash, Cr.
Appeal 67 of 1969 decided on December 7, 1971).
We, therefore, accept the appeal, set aside the judgment of the High Court and convict the accused respondent under section 302 I.P.C. As regards the sentence, we find that the occurrence took place more than three years ago.
The accused was aged about 19 years at the time of the trial.
Looking to all *he circumstances, we are of the opinion that we need not award the extreme penalty in this case.
We accordingly sentence the accused to undergo imprisonment for life.
K.B.N. Appeal allowed.

summary:
The fact that the High Court, in a reference under section 374 of the Code of Criminal Procedure, has to appraise the evidence for itself and has to arrive at its own independent conclusion would not prevent this Court from interfering with the order of the High Court if the High Court reverses the judgment of the trial court on grounds which are manifestly fallacious and untenable.
This Court in an appeal under article 136 of the Constitution does not normally reappraise the evidence and interfere with the assessment of that evidence by the High Court.
Where, however, this Court finds that grave injustice has been done by the High Court in interfering with the decision of the trial court on grounds which are plainly untenable and the view taken by the High Court is clearly unreasonable on the evidence on record this Court would not stay its hand.
There are, however, certain cardinal rules which have always to be kept in view in appeals against acquittal.
Firstly, there is a presumption of innocence in favour of the accused which has to be kept in mind especially when the accused has been acquitted by the Court below , Secondly, if two views of the matter are possible a view favourable to the accused should be taken; thirdly, in case of acquittal by the trial judge the appellate court should take into account the fact that the trial judge had the advantage of looking at the demeanour of witnesses; and fourthly, the accused is entitled to the benefit of doubt.
The doubt should, however, be reasonable and should be such as a rational thinking man will reasonably, honestly and conscientiously entertain and not the doubt of a timid mind which fights shy though unwittingly it may be or is afraid of the logical consequences, if that benefit was not, given.
To put it differently, it is "not the doubt of a vacillating mind that has not the moral courage to decide but shelters itself in a vain and idle scepticism,,.
[69H 70E] Himachal Pradesh Administration vs Shri Om Prakash, Cr.
Appeal No. 67 of 1969 decided on December 7, 1971, referred to.


judgement:
o. 1040 of 1968.
Appeal by special leave from the Award dated September 16, 1967 of the Third Industrial Tribunal, West Bengal in Case No. VIII 235/66.
Debabrata Mookherjee, Janardan Sharma and Anil Das Chow dhury, for the appellants.
C. K. Daphtary and M. C. Bhandare, B. P. Maheshwari and Leila Sheth, for the respondent.
The Judgment of the Court was delivered by Vaidialingam J.
In this 'appeal, by special leave, the short question that arises for consideration is whether the appellants are precluded by section 32 (vii) (a) of the (hereinafter to be referred as the Act) from claiming bonus under the Act in view of the agreement exhibit A5 dated August 30, 1962.
The respondent Company is a fairly prosperous concern and one of the biggest of its kind in Asia.
It has factories at Batanagar in West Bengal, Faridabad in the present Haryana State, Digha and Mokamehghat in Bihar and Administrative Offices in Calcutta.
It has Central Repair shops in Calcutta and other places and a Purchasing Depot in Kerala.
It has about 900 shops for retail sale scattered throughout the country besides the wholesale agents.
Its branches have a wide market both in this country as well as abroad.
It employs a very large number of workmen in its factory, Administrative Office and Central Repair Shops.
The Company and the appellants, represented by its Unions have been entering into various agreements from time to time, the last of which was on August 30, As per exhibit A.5 the respondent paid bonus for the year 1964 at the rates mentioned therein.
The appellants demanded that they should be paid the profit bonus as per the Act in addition to what has been paid as 452 per exhibit A.5 The Company declined to accede to the demand of the workmen on the ground that the general bonus paid under exhibit A.5 was an amount paid as production bonus or incentive wages.
The Company also pleaded section 32 (vii) (a) as a bar to the workmen making a claim for payment of bonus under the Act.
During the conciliation proceedings the Union and the Company agreed to have the dispute referred for adjudication to the Industrial Tribunal.
Accordingly, the State Government on June 25, 1966, referred to the Third Industrial Tribunal, West Bengal, for adjudication the following dispute : "Whether the employees of the Company represented by Bata Mazdoor Union are entitled to Bonus for the year, 1964 under the in addition to the Bonus paid to them and whether in view of the Agreement dated the 30th August, 1962, between the Union and the Company for payment of Bonus, the is applicable to such employees.
" Before the Tribunal the appellants ' plea was that the amount paid under the agreement exhibit A. 5 is an ad hoc or an ex gratia payment made out of charity and as a supplement to the wages and that it was not a bonus linked with production or productivity.
It was not an annual payment, nor was it paid in lieu of bonus based on profits.
The workmen accepted the position that the general bonus paid under the agreement was neither customary nor a profit bonus; nor a bonus as an implied term of contract.
On all these grounds the workmen pleaded that section 32 (vii) (a) is no bar to their claim for bonus under the Act.
The Company on the other hand, after a reference to the various prior agreements, under which the amounts have been paid as bonus, though under different names, pleaded that the general bonus paid under the agreement exhibit A5 was an amount paid as production bonus or incentive wages.
The Company placed considerable reliance on the minutes of the discussions that took place between the Union and the Company whenever demands were raised and the agreements arrived at between the parties, which were later on incorporated as formal settlements from time to time.
These proceedings were relied on by the Company for the purpose of showing that the demands for payment of bonus were as pro duction bonus and that what was ultimately paid under the various agreements including the one in question, namely, exhibit A.5 were all understood by all parties as production bonus or incentive wages.
As the necessary conditions required under section 32 (vii) (a) were present in this case, according to the Company, the claim for profit bonus under the Act is not sustainable.
453 The Industrial Tribunal, after a fairly elaborate consideration of the various agreements as well the record of the proceedings leading upto those agreements and the other materials on record has held in its award that the general bonus that was being paid by the Company including the payment of bonus under the agreement exhibit A.5 was not a profit sharing bonus.
The Tribunal has found that the general bonus paid under the agreement of 1962 was an annual bonus linked with production or productivity and that it was paid in lieu of bonus based on profits.
The mere cir cumstance that the payment of bonus was made quarterly, according to the Tribunal, does not take it away from the nature of an annual payment.
The Tribunal ultimately held that in view of the agreement exhibit A.5 the workmen are not entitled to claim bonus for the year 1964 under the Act.
On behalf of the appellants Mr. D. Mookerjee, learned coun sel, very strenuously criticised the reference made by the Tribunal to the previous agreements for interpreting the nature of the payment under exhibit A.5.
It was contended that the Tribunal having held that the agreement of 1962 was a self contained agreement, committed a very serious error in law in interpreting the term "General Bonus" occurring in the said agreement by reference to the previous agreements.
According to Mr. Mookerjee, the Tribunal should have considered the nature of the payment by a reference only to the provisions contained in the agreement of 1962.
Read in that manner, it was pointed out, the inevitable conclusion should be that the general bonus paid under the agreement of 1962 was not an annual bonus, nor was it linked with production or productivity and it has not been paid in lieu of bonus based on profits.
The general bonus paid does not satisfy the test of production bonus as laid down by this Court.
The payments admittedly being made quarterly do not have the character of an annual bonus.
There is no material on record to show that the Company paid the amount under the agreement in lieu of bonus based on profits.
the contention taken before the Tribunal by the workmen that the amount paid under the agreement was only an ex gratia payment to supplement the wage bill of the workmen without any relation to production or productivity was also pressed before us by the counsel.
On the other hand, Mr. C. K. Daphtary, learned counsel for the respondent Company, pointed out that in order to appreciate and decide about the character of the general, bonus paid under the agreement of 1962, it was not only necessary but also obligatory on the part of the Tribunal to refer to the previous agreements.
The counsel pointed out that the various demands made from time to time by the workmen as well as the minutes of the discussion that took place between the parties which ultimately resulted in 454 the various agreements extending over a fairly long period, win ,clearly show that what was being paid by the Company was production bonus or as an incentive wage.
As the same payment was being continued under the agreement of 1962, the Tribunal was justified in holding that the general bonus that was being paid by the Company over a long number of years was by way of production bonus or as an incentive wage.
Mr. Daphtary also referred us to the various provisions contained in the several agreements regarding the duration of the agreements and also to their having binding effect till they were terminated by notice given in accor dance with the terms of the agreement.
All this, according to the counsel, will clearly show that the intention of the parties was that ,the agreements under which the payments were made were to be throughout the year and also to be continued from year to year.
The material on record, according to the counsel, will also show that the payments were made quarterly at the express desire and request of the workmen, but as the payments extended throughout the year and will also continue year to year, they are in the nature ,of annual payment of bonus.
Before we consider the various contentions of the learned ,counsel on both sides, it is desirable to refer to the material provisions of the Act.
All parties are agreed that the additional claim for bonus for the year 1964 was under the provisions of the Act.
Section 2(21) defines the expression "Salary or wage".
This definition among other things includes dearness allowance also.
Section 8 lays down the conditions for eligibility for bonus.
Sections 1 0 and 11 deal with the payment of minimum and maximum bonus respectively in the circumstances mentioned therein.
Sec tion 17 enables an employer to adjust the amount paid as pooja or customary bonus or interim bonus against the final bonus payable under the Act.
Section 32 deals with various classes of employees to whom the Act does not apply.
The relevant pro vision with which were are concerned is section 32 (vii) which is as follows : "Section 32.
Nothing in this Act shall apply to (a) who have entered before the 29th May, 1965 into any agreement or settlement with their employers for payment of an annual bonus linked with production or productivity in lieu of bonus based on profits; or (b) who have entered or may enter after that date into any agreement or settlement with their employers for payment of such annual bonus in lieu of the bonus payable under this Act, 455 for the period for which such agreement or settlement is in operation;" We are particularly concerned with sub clause (a) of cl.
(vii) as the appellants claim is resisted on the basis of the agreement dated August 30, 1962.
In order to attract section 32(vii) (a) the Company will have to establish : (1) That there has been an agreement or settlement entered into between the workmen and the Company before May 29, 1965; (2) The said agreement or settlement was one for payment of annual bonus; (3) The said payment of bonus was linked with production or productivity; and (4) The said payment was in lieu of bonus based on profits.
In this case there is no controversy that there has been an agreement exhibit A.5 entered into between the parties on August 30, 1962, which is anterior to May 29, 1965.
There is also no controversy that the amount paid under this agreement is characterised as general bonus.
The question then arises whether the said payment as general bonus was an annual bonus linked with production or productivity and paid in lieu of bonus based on profits.
The nature of production bonus has been discussed by this Court in M/s Titaghur Paper Mills Co. Ltd. vs Its Workmen(1).
It has been stated that payment of production bonus is by way of ' an incentive to higher production and is in the nature of an incentive wage.
The extra payment depends not on extra profit ' but on production.
From this decision it is clear that the principals element in the payment of extra amount is to provide an incentive to production.
In The New Maneck Chowk Spinning and Weaving Co. Ltd. Ahmedabad and others vs The Textile Labour Association, Ahmedabad(2), it has been stated that there are four types of bonus which have been evolved under the Industrial Law as laid down by this Court, namely, (1) Production bonus or Incentive wage, (2) Bonus as an implied term of contract between the parties (3) Customary bonus in connection with some festival, and (4) Profit Bonus which was evolved by the Labour Appellate Tribunal and approved by this Court.
Under the Act there is no controversy, what is payable is the profit bonus.
In the case before us, from the Award it is seen that the Union conceded that the amount paid as general bonus under the agreement was neither customary (1) [1959] Supp. 2 S.C.R. 1012.
(2) ; 456 nor profit bonus; nor bonus as an implied term of contract.
In the nature of things the Union has not raised the plea that the amount paid under the agreement is a profit bonus.
Equally, the Company could not also take up such a plea as their attempt was to show that it is a payment as production bonus or incentive wages.
In Sanghi Jeevaraj Ghewar Chand and others vs Secretary, Madras Chillies, Grains Kirana Merchants Workers ' Union and another (1), it has been held that where the bar of section 32 (vii) (a) of the Act operates, the employees in such cases so long as the agreement or settlement is in operation cannot claim bonus on the basis of Full Bench Formula or under the Act.
Therefore, it becomes essential to find out the nature of the payment made under exhibit A.5.
That is an agreement entered into between the appellant and the respondent Company on August 30, 1962.
The purpose of the agreement is stated to be to promote and improve industrial and economic relationship between the Company and its workmen and to establish and maintain satisfactory working conditions.
In Article IV, among various other .,matters, the Union, has acknowledged that it is the exclusive right and function of the Company to maintain among other matters the efficiency.
In Article V dealing with lock out and strikes, the Company, on the one hand, has agreed not to declare any lock out so long as the workmen do not commit any breach of the agreement.
The Union, on the other hand, has also agreed while retaining its right to go on strike, not to permit its members individually or collectively to curtail or restrict production and certain other matters.
Article VI dealing with general bonus is as follows "Article VI General Bonus: "Article VI General Bonus: The Company declares and makes a payment of General Bonus one month after the end of each quarter at the rate of 20% of the total salary and/or wages paid to each workman and employee during the quarter immediately preceding (such salary or wages are exclusive of Dearness Allowance or any other special allowances or rewards granted to him during such period).
Such Bonus will be payable to those who have completed six months approved service ending on the last day of the quarter; and to those who have completed less than six months approved service on the last day of the quarter, the Bonus will be payable at the rate of 10% of their total salary or wages as aforesaid.
The Bonus will be available only to those who are in the employ of the (1)[1969] 1 S.C.R. 366.
457 Company on the last date of the quarter and who have given regular and approved service during the quarter, to which the payment of Bonus is available." Under Article VIII it is provided that the agreement is to be in force until December 31, 1965 and that it shall continue from year to year thereafter unless either party gives notice in writing of its intention to enter into negotiations for the purpose of amendin the agreement.
The said Article further provides for the period of notice as well as the starting of negotiations and the agreement continuing to be in force till a new settlement or agreement is arrived at.
A mere reading of Article VI relating to general bonus will not by itself throw much light on the character of such payment.
But, it is clear that the payment is to be made at the end of each quarter at the percentage mentioned therein of the total salary or wages which does not include Dearness Allowance.
The said Article also provides for the period of service necessary for qualifying to get the higher or lower percentage of bonus as the case may be.
The emphasis is also laid on the workmen giving regular and approved service during the quarter to which the payment of bonus is available.
Normally, it is the agreement exhibit A.5, which has to be looked into for the purpose of ascertaining the rights and liabilities of the employer and employees.
That is, the agreement will have to be looked into for the purpose of ascertaining the nature and character of the general bonus payable under article VI, provided that clause gives a full and clear indication regarding the character of such payment.
But, a mere reading of Article VI does not give any indication regarding the character of such payment.
The other clauses in the agreement also do not throw much light on this aspect.
But it is not as if that agreement exhibit A.5 has been entered into between the parties for the first time.
The expression "General Bonus" occurs, as we will show presently, in certain previous agreements.
Under those circumstances, in our opinion, in order to properly appreciate the character and nature of the payment that was being made originally and that was continued under Article VI of the agreement of 1962, it is not only relevant but also necessary to consider the various settlements and agreements that took place between the parties on prior occasions.
We are not inclined to agree with the contention of Mr. Mookerjee that the Tribunal has committed a very serious error in law when it tried to interpret the nature of the payment under exhibit A.5 by reference to the previous settlements and discussions that took place between the parties.
The Tribunal was perfectly justified in considering those agreements as they, in our opinion, 458 give a complete and clear picture of the nature of the claims made by the Union, the stand taken by the Company and the nature of the agreement ultimately arrived at between the parties regarding the payment of the amount in question.
Hence we will also refer to the prior agreements as well as the events leading upto those agreements.
The earliest agreement is exhibit A. dated May 16, 1946.
Under Article V the Company agreed to pay Victory bonus of six weeks pay, for the employees mentioned therein.
Under Article VI, the Company agreed to pay bonus on production or special bonus equivalent to 10% of pay.
It is significant to note that the payment under article VI of this agreement is characterised as a production or special bonus at a fixed percentage on the pay of the employees.
On March 6, 1947, the Union addressed a letter exhibit B to the Company requiring "Production Bonus" to be increased in the manner stated therein.
In fact the Union wanted an increased percentage depending upon the salary drawn by the employees.
It is to be noted that the Union also understood the payment made under exhibit A. as a production bonus; and under exhibit B it is the production bonus that they wanted to be increased.
In view of this demand, there were discussions between the parties and ultimately they entered into an agreement exhibit C on July 12, 1947.
This agreement states that 10% production bonus given under exhibit A is not to be increased.
But an extra amount of 5% or 2% was given as an Attendance Bonus.
On November 22, 1948, there was another agreement exhibit A.1 entered into between the parties.
Article VI related to ex gratia payment of bonus, which is as follows: 'Article VI Ex Gratia Payment of bonus The Company declares and makes an ex gratia payment of Bonus one month after the end of each quarter at the rate of 1 0 per cent of the total salary and/or wages paid to each employee during the quarter immediately preceding (such salary or wages are exclusive of dearness allowance or any other special allowances or attendance bonus or rewards granted to him during the said period); such bonus will be payable only to those employees who have completed six months ' approved service ending on the last day of the quarter; and to those employees who have completed less than six months ' approved service on the last day of the quarter the exgratia Bonus will be payable at the rate of 5 % of their total salary or wages as aforesaid.
The ex gratia Bonus, will be available only to those employees who are in the employ of the Company on the date fixed for payment 459 and who have given regular and approved service during the quarter to, Which the ex gratia payments of Bonus is available. ' It will be noted that while in the agreements Exs.
A and C, what was characterised as production bonus, has been changed in exhibit A. 1 as ex gratia payment of bonus.
Article VIII provided for the. agreement being in force till December 31, 1950 and to continue year to year unless either party gives notice in writing of its intention to enter into negotiations for the purpose of amending the agreement.
On May, 15, 1951, the Union made a representation for modi fying the agreement exhibit A. 1.
In respect of this demand on October 3, 1951, agreed minutes of discussion and agreement between the parties were recorded in exhibit D. From exhibit D it is seen that the Union had accepted the position that the approximate living wage has been attaired in this Company and therefore the bonus has to, be, paid as an incentive to greater efficiency, in production as.
well as towards labour 's contribution to the prosperity of the Company.
In view of this the Union, represented that the, bonus that is being paid should not be regarded as ex gratia payment.
Hence the Company was requested to delete the expression "ex gratia" and to substitute, the word "general".
The Union further suggested that as the payment of bonus on the basis of earned salary is a sufficient incentive for attendance, the attendance bonus, which was being paid at a flat rate discontinued and that a general bonus is to be paid at a flat rate of 15% every quarter to all the employees.
This representation was accepted by, the Company and exhibit D. shows that it was agreed between the parties that the attendance bonus was to be discontinued and that the term "ex gratia" was to be substituted by the word "general".
It was also greed that the rate should be increased to 15% and 7 1/2 % respectively.
The suggestion of the Union for payment of the amount every quarter was also agreed to by the parties.
It was also agreed that the arrangements entered into between the parties are to continue till December 31, 1953.
From exhibit D. it is clear that the Union itself has required the payment of bonus to be made " as an incentive to greater efficiency in production "and the workmen wanted the expression "ex gratia" to be substituted by the word"general".
The Union accepted that approximiate living wage is being earned by the employees of this Company.
Further the Union wanted teh amount to be paid at a flat fixed rate every quarter.
It is also to be noted from Ex.D. that the changes agreed to between the parties were to take effect from the first quarter of 1952.
On the basis of the arrangement recorded in exhibit D. the parties entered into a formal agreement exhibit A.2 on November 22, 1951.
This is called Collective Agree L1286SupCI/72 460 ment as finally amended by the settlement of October 3, 1951, evidenced by exhibit D. Article I dealing with the purpose of the agreement states that it was with a view to promote and improve industrial and economic relationship between the Company and its employees and to establish and maintain satisfactory working conditions.
Article VI dealing with the general bonus is as follows : " Article VI General Bonus The Company declares and makes a payment of General Bonus one month after the end of each quarter at the rate of 15 per cent of the total salary and/or wages paid to each employee during the quarter immediately preceding (such salary or wages are exclusive of Dearness Allowance or any other special allowance or rewards granted to him during such period); such bonus will be payable only to those employees who have completed six months ' approved service ending on the last day of the quarter; and to those employees who have completed less than six months ' approved service on the last day of the quarter the Bonus will be payable at the rate of 7 1/2% of their total salary or wages as aforesaid.
The Bonus will be available only to those employees who are in the employ of the Company on the last date of the quarter and who have given regular and approved service during the quarter to Which the payment of Bonus is available.
" It will be noted that this article is in substitution of the original Article VI in the 1948 agreement exhibit A.1.
What was characterised as ex gratia payment of bonus in exhibit A.1 was designated as general bonus in exhibit
It must be noted that it was for the first time that the expression "general bonus" has found a place in the agreement between the parties.
This change was effected due to the representation made by the Union and accepted by both the parties as recorded in the minutes exhibit
The rate has been increased to 15% and 7 1/2% respectively depending upon the service of the employee.
This rate is on the basic wages; and dearness allowance has been excluded for purposes of calculation.
Attendance bonus was abolished and the rate in Article VI shows that it has combined the old production bonus as well as the attendance bonus.
The payment is also to be made every quarter as required by the Union.
Article VIII provided that the agreement shall be in force upto December 31, 1953 and was to continue from year to year thereafter unless either party gives notice in writing of its intention to enter into negotiations for the purpose of amending the agreement.
461 On December 28, 1953 the Union made a representation for effecting certain modification in the agreement exhibit A.2.
This was followed by the proposals contained in exhibit B. 3 on March II, 1954.
Paragraph 3 of exhibit B.3 relates to bonus.
After referring to the existing payment of general bonus at the rate mentioned in exhibit A.2, the Union made a request to the Company to revise the rate of bonus by including dearness allowance also in the wages or salaries for purposes of calculation of bonus, the reason being "the necessity of giving incentive to the employees and the rate at which bonus is paid to employees of 'many other comparable concerns.
" There was also a demand for pooja or festival bonus.
Ultimately, the demand with regard to bonus was that : (a) the general bonus paid quarterly at the end of each quarter of the year should be increased to 20% and 10% depending upon the length of service of the employee and the payment at the said percentage should be on a calculation of both the basic wages and dearness allowance paid to an employee during the quarter; and (2) the workmen should be paid pooja bonus equal to three months wages including dearness allowance besides the general bonus.
There was a supplementary claim made on behalf of the Union on March 15, 1954 under exhibit B.4, that the payment to be made under exhibit B.3, should have retrospective effect from January 1, 1954.
Three points emerge from this demand of the Union : (1) Increase in the rate of general bonus and percentage to be worked out on wages including dearness allowance; (2) A claim for payment of pooja or festival bonus; and (3) The payments of both (1) and (2) to take effect from January 1, 1954.
But the significant point to be noted is that in exhibit B. 3 the reason given by the Union itself for claiming general bonus at an increased rate and for working out the percentage of wages including dearness allowance was "the necessity for giving incentive to the employe .
" These demands of the Union were discussed and agreed minutes of discussion and agreement were recorded in exhibit D. 1 dated February 18, 1955.
It is seen that there were as many as 45 meetings between the representatives of the Union and the Company beginning from April 9, shows that the demands in letters dated December 28, 1953, March 11, 1954 and March 15, 1954 were discussed thread bare between the parties.
The minutes show that the Company was not willing to accede in full to the increased rates claimed by the Union regarding general bonus: nor was it inclined to take into account dearness allowance for the purpose of calculation of bonus.
But the Company was prepared to show some consideration by merging a part of the dearness allowance in the basic wages as that will result in a slightly higher amount being received as general bonus by the workmen.
The claim for pooja or festival bonus was not accepted by the Company.
Both parties ultimately agreed that the gene 462 ral bonus will be paid at 17 1/2% instead of the original 15% as per exhibit A.2.
The minutes further show that all demands made by the Union have be en fully settled by increasing the percentage of general bonus.
The tentative agreement recorded in exhibit D.1 was the subject of a collective agreement between the parties under exhibit A.3 dated February 18, 1955.
Article VI deals with general bonus.
Except for the difference in the rate of 17 1/2 % and 8.7 5 % on the, basic wages excluding dearness allowance, the provision regarding payment of general bonus under this Article was similar to those contained in Article VI of exhibit A.2 of 195 1.
Article Vill provided that the agreement is to be, in force till December 3 1, 1957 and that it was to continue from year to year thereafter unless either party has, given notice in the manner provided therein.
On December 24, 1957 the Union sent a letter exhibit B.5 to the Company requiring the general bonus.
to be paid at 50% and 25% respectively in place of the present rate of 17 1/2 % and 8.75%.
The demand was also to calculate this rate on salaries including the dearness allowance.
A further request was made that half of the bonus as per the demand be paid "in four quarters in a year as at present and the remaining half at the time of pooja every year".
This again led to the parties discussing the demands and the minutes of discussion and conclusions arrived at, by the parties by agreement are recorded in exhibit D.2 dated October 6, 1958.
The minutes disclose that the demands of the Union were carefully considered by the Company.
The Chairman of the Company drew the attention of the, Union to the agreed minutes of settlement exhibit D and pointed out "that bonus was being paid as an incentive to greater efficiency in. 'production. . and suggested that "bonus payment be linked with the generally accepted formula and be no longer paid on percentage basis.
But the Union did riot accept the suggestion of the Chairman and stated that "as a matter of security they would like the continuation of the same to be paid on a fixed percentage basis.
" After further discussion, the Chairman agreed to a token increase in the rate of bonus.
It was agreed between both the parties that the payment of general bonus will be increased from 171% to 18 21% on the wages excluding dearness allowance.
The conclusions so arrived at were incorporated in the agreement exhibit A.4 on October 6, 1948.
This again is styled as a collective agreement.
Article VI relating to general bonus is substantially the same as article VI in exhibit A.5 excepting that the rate was 18 1/2% and 9.25% depending upon the service of the workman.
The percentage was to be calculated only on the total salary excluding dearness allowance and the general bonus was to be paid at the end of every quarter.
Article VIII provides that the claim was to be in force till December 31, 463 1965 and that it was to continue from year to year unless a notice was given by either party in the manner provided therein.
This takes us to the agreement under consideration exhibit A.5 dated August 30, 1962.
This is the seventh agreement in the series.
We have in the earlier part of the judgment referred to Articles VI and VIII.
Article VI deals with general bonus and it was to be paid at 20% and 10% respectively on the basic wages excluding dearness allowance.
It was to be paid at the end of each quarter.
It will be seen that the rates ate slightly higher than those provided in the previous agreement exhibit A.4 of 1958.
We have very exhaustively dealt with the various demands made by the workmen, the minutes recording the discussion that took place between the patties regarding the demands, the conclusions arrived at therein as well as the final agreements entered into on different dates between the parties, as they furnish the background, so to say, for the agreement under consideration exhibit A.5.
It will be seen that originally in 1946 the payment was made as production or special bonus.
Specific demand was made by the Union on March 6, 1947 to increase "production bonus".
The Company did not agree to this request.
On the other hand, exhibit C., the agreement, clearly shows that there would be no increase in production bonus.
But an additional amount was given as attendance bonus.
In 1948 what was originally characterised as production bonus was termed "ex gratia" payment of bonus.
The Union specifically desired in 1951 to substitute "exgratia bonus" by "general bonus" and to abolish attendance bonus.
The demand also was for general bonus to be paid at a flat rate every quarter.
For the first time the expression "general bonus" occurs in the demand made by the Union on May 15, 1951 and in the agreed minutes of October 3, 1951.
The same was incorporated in the final agreement of November 22, 1951.
The Union made a demand on March 11, 1954 for increase in the rate of general bonus so as to provide an incentive to the employees.
This was accepted and embodied final in the agreement dated February 18, 1955.
In exhibit B.5, the Union made a specific demand for further increase of the rate of general bonus and wanted half the amount to be paid quarterly as at present and the balance at the time of pooja.
Though, the minutes of the discussion in respect of this demand shows that the Chairman.
of the Company wanted to alter what was given as incentive to greater efficiency in production to one on profit basis, the Union preferred the payment to be continued as was being done on a fixed percentage basis.
The pattern of bonus paid sometimes called production bonus, later on called ex gratia payment, but from 1951 called as general bonus, was being paid quarterly at a 'Particular percentage base on the salary excluding dearness allowance.
Having this background in mind, it is clear that what was being paid under article
VI 464 of exhibit A.5 was a payment linked with production or productivity.
The principal emphasis is that the amount is being paid as an ,incentive to production and therefore it is paid as production bonus or as a wage incentive.
That it is an incentive payment in order to secure greater efficiency in production is clear from Exs.
D, B.3, and D.2.
We have already referred to the contents of these exhibits in great detail.
Even the workmen in exhibit B.3 required the rate of general bonus to be increased in view of the necessity of giving incentive to the employees.
But a more important point emerges from the minutes of discussion recorded on October 6, 1958 in exhibit D.2.
The Chairman of the Company emphasised that what was being paid as general bonus was as an incentive to greater efficiency in production.
The Chairman specifically wanted this method of payment to be changed and suggested that the bonus payment be linked with the generally accepted formula, namely, of profit bonus and that the payment on a fixed percentage be abolished.
But this suggestion to alter the nature of the payment from a fixed percentage as a production bonus for providing an incentive to greater efficiency in production was not accepted by the Union, which wanted the fixed percentage basis to be continued.
That is, the Union was not prepared to receive bonus on the basis of profits, but wanted to continue the existing arrangement of payment at a fixed percentage as an incentive to efficiency in production.
That is, the Union wanted the character of the payment as production bonus being continued.
Therefore, these circumstances clearly lead to the conclusion that the payment that was being made and continued in the agreement exhibit A.5 was payment of bonus linked with production or productivity.
It is also clear that the said payment was made in lieu of bonus based on profits because the Union itself did not agree to the suggestion of the Chairman as contained in exhibit D.2 to alter the character of payment to one of profit sharing bonus.
Therefore, this also shows that the payment under exhibit A.5 was in lieu of bonus based on profits.
The expressions used in section 32 (vii) (a) are "linked with production or productivity" and that test is satisfied in respect of the payment made under exhibit A.5.
It is not the case of the Union that the character of payment which was designated as an incentive to greater efficiency in production even as early as 1951 (vide exhibit D) has been altered either in the subsequent agreements or in the agreement exhibit A.5.
If so, it follows that the payment of general bonus in exhibit A.5 retains the same character as a payment by way of an incentive to greater efficiency in production.
As the minutes of the discussion that took place between the parties have been recorded then and there, they are items of evidence which are more valuable and useful than the oral evidence adduced by the parties.
For instance, P.W. 1, Secretary of the Union, has deposed that the payment in exhibit A.5 is not linked with 465 production.
On the other hand, the Labour Officer of the Company, as D.W. I has stated that the said payment is linked with production.
This type of evidence does not lead us any where.
That is why, we have placed more emphasis and reliance on the documentary evidence adduced by the parties, more especially when there is no controversy that the record of the meetings do not represent the actual facts.
Then the question is whether the bonus paid is an annual bonus, which is another requirement of section 32 (vii) (a) of the Act.
That bonus has been paid at the end of every quarter at any rate from 1948, is clear from the various settlements and agreements, referred to earlier.
That the Union itself required that bonus should be continued to be paid quarterly, is clear from the letters written by the Union, particularly exhibit B.5 dated December 24, 1957.
We have already referred to the various agreements which no doubt prescribe the normal duration of the period of the agreement, which extends to over a year.
There is also a further provision to the effect that even after the date of expiry mentioned therein, the agreement will continue to be.
in force till a notice is given in the manner provided for in the agreement.
Therefore, it will be seen that it is not as if that bonus is paid for one quarter and does not enure for a succeeding quarter.
On the other hand, the amounts payable are not restricted to one particular quarter and the intention is made clear in the agreement that it has to operate throughout the year and also continue from year to year.
It is not possible to accept the contention of Mr. Mookerjee that it is only when a payment is made at the end of the year, it can be considered to be an annual bonus.
The essential test to be satisfied is that the payment should enure throughout the year and it should also be continued from year to year.
As observed by Lord Maugham in Moss ' Empires, Ltd. vs Inland Revenue Commissioners(") the expression "annual" must be taken to have the quality of being recurrent or being capable of recurrence.
Adopting this test, the payments in the case before us were to continue the whole of the year and also were to be paid from year to year not only during the period of agreement but also for the succeeding year till the required notice was given under the agreement Even then there is a provision in the agreement to the effect that the agreement will continue to have force notwithstanding the notice till a fresh agreement or settlement is entered into.
Therefore it is clear that the payment of general bonus is "annual bonus" as contemplated by section 32 (vii) (a) of the Act.
The Court of Appeal in Smith vs Smith (2 ) had to consider whether a payment to be made weekly during the life time of a person was an "annual payment".
It was held as follows (1) (2) [1923] Probate Division 191.
466 "It is no doubt payable weekly, but that fact does not prevent it from being an annual payment if the weekly payments may extend beyond a year.
" The position, as pointed opt by us earlier, in the case before, us, is also the same.
It follows from the discussion above that the general bonus paid under Article VI of the agreement dated August 30, is a payment of annual bonus linked with production or productivity in lieu of bonus based on profits.
It further follows that as the agreement has been entered into before May 29, 1965, the employees cannot claim any additional bonus under the Act for the period for which the agreement is in operation.
It is the case of all parties that the agreement exhibit A.5 at the relevant time was in operation.
If so, it follows that the view of the Tribunal that section 32(vii) (a) of the Act is a bar to claim any additional bonus under the Act is correct.
In the result, the award of the Industrial Tribunal is confirmed and this appeal dismissed.
There will be no order as to costs.

dataset_name: IN-Abs

summary:
A dispute arose between the respondent company and the appellants workmen as regards payment of profit bonus under the .
The company, and the appellants, represented by its Union had been entering into various agreements from time to time, the last being the agreement on August 30, 1962 (,Ex.
As per exhibit A 5, the respondent paid bonus for the year 1964 at the rates mentioned therein.
The appellants demanded that they should be paid the profit bonus as per the Act in addition to what has been paid under the agreement, exhibit A 5.
The Company pleaded section 32(vii) (a) of the Bonus Act as a bar to further bonus.
On a reference to the Industrial Tribunal, it was held that in view of the general bonus paid under agreement exhibit A 5, it was an annual bonus, though paid quarterly, and it was linked with production or productivity and that it was paid in lieu of bonus based on profits.
Therefore, the workmen are not entitled to claim bonus for the year 1964 under the Act.
On appeal to this Court, it was contended that payments.
under the agreement, exhibit A 5, was made quarterly and they do not have that character of an annual bonus.
There is no material or record to show that the company paid the amount in lieu of bonus based on profits.
The amount paid under the agreement was only an ex gratia payment and not a profit bonus under the Act.
The respondent, however, contended that in order to decide the character of the general bonus paid under the agreement of 1962, previous agreement must be referred to, which would clearly show that what was being paid by the company was production bonus or as an incentive wage and not an ex gratia payment.
Dismissing the appeal, HELD : The general_ bonus paid under article VI or the agreement dated August, 30, , was a payment of annual bonus based on profits.
Although Article VI of exhibit A 5 does not throw much light as to the nature and character of the general bonus payable under it, a reference back to previous settlements and discussions between the parties will show that the pattern of bonus paid to the workers weresometimes called production bonus, later on called ex gratia payment.
, but from 1951 called as general bonus, which was paid quarterly, at the request of the workers, at a particular percentage based on salary excluding dearness allowance, having this background in mind, it is clear that what was being paid under article VI of exhibit A 5 was a payment linked with production or productivity.
The principal emphasis was that the amount, was being paid as an incentive to production and therefore, it was paid as production bonus as a wage incentive.
Further, it was an annual bonus paid from year to year not only during the period of agreement but also for the succeeding year till the required notice was given under the agreement.
Even then, the agreement was to continue to have 451 force notwithstanding the notice till a fresh agreement entered into.
Therefore, it is clear that the payment of general bonus paid quarterly was "annual bonus" as contemplated by section 32(vii)(a) of the Act.
[464 A 465 G] Smith vs Smith, , and Moss ' Empires Ltd. vs Inland Revenue Commissioners, followed.
Under the circumstances ' workers could claim not any additional bonus under the Art for the period for which the agreement was in operation and section 32 (vii) (a) of the Act was a bar to their claim.
[465 C] M/s Titaghur Paper Mills Co. Its Workmen, [1959] Supp. 2, S.C.R. 1012; The New Manek Chowk Spinning and Weaving Co. Ltd. Ahmedabad and others vs The Textile Labour Association, Ahmedabad, [1961] 3 S.C.R. I and Sanghi Jeevaraj Chewar Chand and others vs Secretary, Madras Chillies, Grains Kirana Merchants Workers Union and another; , , referred to,


judgement:
No. 37 of 1972.
(Under Article 32 of the Constitution of India for a writ in the nature of habeas corpus.
T. section Arora, for the petitioner.
section C. Majumdar and G. section Chatterjee, for the respondent.
The Judgment of the Court was delivered by Khanna, J.
This is a petition through jail under article 32 of the Constitution for the issuance of a writ of habeas corpus by Sasti alias Satish Chowdhary, who has been ordered by the District Magistrate Howrah to be detained under section 3 of the (hereinafter referred to as the Act).
The order recited that it was made with a view to preventing the petitioner from acting in any manner prejudicial to the maintenance of supplies and services essential to the community.
The order of detention was passed by the District Magistrate on September 8, 1971.
The petitioner, it is stated, was found to be absconding soon after the passing of the order.
He was arrested on November 23, 1971 and was served with the order of detention and the grounds of detention together with vernacular translation thereof on the same day.
in the meanwhile on September 8, 1971 the District Magistrate sent report to the State Government about his having made the order of detention along with the grounds of detention and other necessary particulars.
The matter was then considered by the State Government.
It approved the detention order on September 10, 1971.
The same day the State Government sent report to the Central Government along with necessary particulars regarding the necessity a the order.
On December 10, 1971 the State Government received a representation of the petitioner.
The said representation, after being considered, was rejected by the State Government on December 21, 1971.
On December 22, 1971 the.
State Government placed the case of the petitioner before the Advisory Board.
The representation of the petitioner was also sent to the Advisory Board.
The said Board, after considering the material placed before it, including the representation of the petitioner, and after hearing him in person, sent its report to the state on January 28, 1972.
Opinion was expressed by the Advisory Board that there was sufficient cause for the petitioner 's detention.
On February 11, 1972 the State Government confirmed the order of detention of the petitioner.
Communication of the said confirmation was thereafter sent to the petitioner.
469 In opposition to the petition Shri Dipak Kumar Rudra, Dist .
rict Magistrate, who made the impugned order, has filed his affidavit.
Mr. Arora has argued the case amicus curiae on behalf of ' the petitioner, while the State has been reprensented by Mr.
Majumdar, Before dealing with the contention advanced by Mr. Arora, it would be pertinent to reproduce the portion of the grounds of, ' detention which contains the necessary particulars : "You are being detained in pursuance of detention order made in exercise of the powers conferred by subsection (1) read with sub section (2) of section 3 of the (Act No. 26 of 1971), on the grounds that you have beer acting in a manner prejudicial to the maintenance of supplies and services essential to the community as evi denced by the particulars given below : (1) On 9.7.71 at about 23.30 hrs.
you and your associates Sk.
Nazam, Kesta Adhikary, Bablu Das, Kachi Chakravarty and 3/4 others were found to committee in respect of overhead electric wires between two posts near Zanana Latrine of Lawrence & Co. at Chakkashi by the darwans on duty.
You and your associate Sk.
Nazam were seen on the top of the post cutting one end of the electric wire, while your associates were rolling the cut end of the wire from other post.
The darwans raised alarm and surrounded you with the help, of local people.
Your associate Sk.
Nazam with other escaped and you and two other of your associates could be arrested at the spot with stolen copper wire.
This created complete dislocation of electric supplies of the area.
" It is argued by Mr. Arora that as the act attributed to the petitioner in the grounds of detention constituted an offence under the Indian Penal Code, the petitioner could only be tried in a court of law for the offence and no order for his detention On that score could be made.
This contention, in our opinion, is devoid of force.
It is always open to the detaining authority to pass an order for the detention of a person if the grounds of detention are germane to the object for which a detention order can legally be made.
The fact that the particular act of the detenu which provides the reason for the making of the detention order constitutes an offence under the Indian Penal Code would not prevent the detaining authority from passing the order for detention instead of proceeding against him in a court of law.
The detaining authority might well feel that though there was 470 not sufficient evidence admissible under the Indian Evidenre Act for securing a conviction, the activities of; the person ordered to be detained were of such a nature as to justify the order of detention.
There would.
be no legal bar to the making of detention order in such a case.
It would, however, be imperative that the incident which gives rise to the apprehension in the mind of the detaining authority and induces that authority to pass the order for detention should be relevant and germane to, the object for which a detention order can be, made under the Act.
Even in cases where a person has been actually prosecuted in a court of law in respect of an incident and has been discharged by the trying magistrate, a valid order of his detention can be passed against him in connection with that very incident.
It was recently observed by this Court in the case of Mohd. Salim Khan vs Shri C. C. Bose & Anr.
(Writ petition No. 435 of 1971 decided on April 25, 1972) that from the mere fact that a detenu was discharged in a criminal case relating to an incident by A magistrate, it could not be said that the detention order on the basis of that incident was incompetent, nor could it be inferred that it was without basis or mala fide.
Reliance in this connection was placed upon the case of Sahib Singh Duggal vs Union India(1).
The particulars of the incident in the grounds of detention show that the petitioner and his associates committed theft in respect of overhead electric wires between two posts near Zanana Latrine of Lawrence & Co. at Chakkashi.
the above act of the petitioner and his associates created complete dislocation of electric supplies of the area.
The above ground of detention, in our opinion, was germane to the object for which a detention order ,can be made under section 3(1)(a) (iii) of the Act.
According to that provision, the detaining authority may, if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies and services essential to the community, it is necessary so to do make an order directing that such person be detained.
Mr. Arora has referred to the case of Pushkar Mukherjee & Ors.
vs The State of West Bengal(2) wherein this Court dealt with the difference between the concept of public order and law and order and observed that the said difference was similar to the distinction between public and private crimes in the realm of jurisprudence.
It was observed that a line of demarcation must be drawn between serious and aggravated forms of disorder which directly affect the community any injure the public interest and the relatively minor breaches of peace of a purely local significance which primarily injure specific individuals and only in a secondary sense public interest.
(1) [1966] 1 S.C.R. 313.
(2) ; 471 Pushkar Mukherjee 's case(1) was referred to in a later deci sion of this Court in the case of Arjun Ghosh vs State of West Bengal(2) and it was pointed out that the true distinction between the areas of "law and order" and "public order" was one of degree and extent of the reach of the act in question upon society.
Acts similar in nature, but committed in different contexts and cir cumstances might cause different reactions; in one case it might affect the problem of the breach of law and order, and in another the breach of public order.
It was observed that the analogy resorted to in the Pushkar Mukherjee 's case (supra) of crimes against individuals and crimes against the public though useful to a limited extent would not always be apt.
An assault by one individual upon another would affect law and order only and cause its breach.
A similar assault by a member of one community upon a leading individual of another community, though similar in quality, would differ in potentiality in the sense that it might cause reverberations which might affect the even tempo of the life of the community.
The Court pointed out that "the act by itself is, not determinant of its own gravity. , In its quality it may not differ but in its potentiality it may be very different." (see ,also Nagendra Nath, Mondal vs State of West Bengal (3).
The distinction between public order and the maintenance of law and order has, however not much material bearing 'on the present case because, as stated above, the petitioner has been detained not with a view to preventing him from acting in any manner prejudicial to the maintenance of public order but with a view to preventing him from acting in any maner prejudicial to the maintenance of supplies and services essential to the community.
No other infirmity in the detention order and the consequent detention of the petitioner has been brought to our notice.
The, petition consequently fails and is dismissed.
G.C. Petition dismissed.

summary:
The petitioner was detained by an order under section 3 of the .
In a petition under article 32 of the Constitution it was urged on behalf of the petitioner that a prosecution for theft under the Indian Penal Code could have been launched on the facts alleged against him in the grounds of detention and therefore his detention was illegate.
Rejecting the plea, HELD : It is always open to the detaining authority to pass an order for the detention of a person if the grounds of detention are germane to the object for which a detention order can legally be made.
The fact that the particular act of the detenue which provides the reason for the making of the detention order constitutes ,in offence under the Indian Penal Code would not prevent the detaining authority from passing the, order for detention instead of proceeding against him in a court of law.
The detaining authority might well feel that though there was not sufficient evidence admissible under the Indian Evidence Act for securing a conviction, the activities of the person ordered to be detained were of such a nature as to justify the order of detention.
Even in cases where a person has been actually prosecuted in a court of law in respect of an incident and has been discharged by the trying magistrate, a valid order of his detention can be passed against him in connection with that very incident.
[46 H 470 C] Mohd. Salim Khan v, Shri C. C. Bose & Anr.
(Writ petition No. 435 of 1971 decided on April 25, 1972) relied on.
Sahib Singh Duggal vs Union of India, referred to.
The particulars of the incident in the grounds of detention in the present case showed that the petitioner and his associates committed theft in respect of overhead electric wires.
The above act of the petitioner and his associate created complete dislocation of electric supplies of the area.
The above ground of detention was germane to the object for which a detention order can be made under section 3(1)(a)(iii) of the Act.
According to that provision, the detaining authority may, if satisfied with respect to any person that with a view to preventing him from acting in any manner prejudicial to the maintenance of supplies and services essential to the community, it is.
necessary so to do, make an order directing that such person be detained.
[470 E F] Pushkar Mukherjee & Ors, vs The State of West Bengal, ; , Arun Ghosh vs State of West Bengal and Nagendra Nath Mondal vs State of West Bengal, , referred to. 468