judgement:
Civil Appeal No.951 of 1977.
From the Judgment and Order dated 29.7.1976 of the Madras High Court in S.A. No.89 of 1972.
A.T.M. Sampath and P.N.Ramalingam for the Appellant.
S.Balakrishnan and S.Prasad for the Respondent.
The Judgment of the Court was delivered by THOMMEN, J.
The appellant is the defendant in a suit insti 392 tuted by the respondent to set aside a transfer of property made by the guardian of a minor and for recovery of possession of the property.
The suit was decreed, and the decree was confirmed by the first appellate court as well as by the High Court.
The plaintiff respondent purchased the suit property from an ex minor within three years after the minor attained majority.
During his minority, the property was sold by his father as his natural guardian to a person from whom the present appellant purchased the property.
All the courts found that the guardian had not obtained the permission of the Court for the sale of the property, as required by section 8 of the Hindu Minority & Guardianship Act, 1956 ("the Guardianship Act") and that the sale of the property was not for legal necessity.
Dismissing the second appeal, the High Court held that the suit was rightly instituted by the respondent as a transferee from the ex minor within three years after the minor attained majority and that the contention of the defendant that the suit by a transferee from the ex minor was hit by section 6(e) of the was unsustainable.
The only question which arises in the present appeal, as it did before the High Court, is (to quote the words of the High Court) "Whether a transferee from a minor after he attained majority, can file a suit to set aside the alienation made by the minor 's guardian or the said right is one to be exercised only by the minor?".
The relevant facts are that the suit property belonged to one Veerammal.
She had a daughter by name Kaliammal.
Veerammal died shortly after she purchased the property in 1948.
She left behind her husband Kandayya and their duaghter Kaliammal.
Subsequently, Kandayya married a second time when his daughter Kaliammal was a minor.
She thereupon left her father 's house and resided with her maternal grand father who protected and maintained her.
During her minority, Kandayya sold the property on 29.10.1959 to Jainulavudeen.
On 25.4.1966, Jainulavudeen in turn sold the property to the defendant appellant.
Subsequently, on 26.5.1966 the plaintiff obtained a deed of sale of the suit property in his favour from Kaliammal who had by then attained majority.
The Plaintiff thereafter instituted the present suit (O.S. No. 491 of 1968) against the appellant to set aside the transfer of property made by Kandayya and for recovery of its possession.
393 The question is whether the respondent in his capacity as a transferee from the ex minor was competent to bring a suit to set aside the sale effected by the minor 's guardian.
It is no longer disputed that the suit was brought within three years after the minor attained majority.
Nor is it any longer contended that the father of the minor, as her natural guardian, had obtained the permission of the Court or that the sale effected by him was one for legal necessity.
These two vital points have been concurrently found against the appellant.
The only contention which Mr. Sampath, appearing for the appellant, is in a position to urge is as regards the question whether the suit is hit by section 6(e) of the T.P. Act.
Counsel says that all that the ex minor was in a position to transfer, was her mere right to sue to set aside the sale and recover possession of the property transferred by her father as her natural guardian.
The property itself had been transferred by the father prior to its sale by the ex minor.
The minor had, therefore, no property to sell, except a right to set aside the sale.
Accordingly, whatever transfer that was effected by the minor in favour of the plaintiff was nothing more than a mere right to sue and such transfer was invalid by reason of section 6(e) of the T.P. Act.
Mr. Balakrishnan, appearing for the respondent plaintiff, contends that the ex minor was fully competent to bring a suit to set aside the sale within a period of three years after attaining majority and any person claiming under her is equally competent to institute action for the same purpose.
He refers to the provisions of section 8(3) of the Guardianship Act.
He contends that a suit to set aside a sale is not for the enforcement of any personal right, but a right in property, and is, therefore, not hit by section 6(e) of the T.P. Act.
In any view, counsel says, section 8(3) of the Guardianship Act sepcifically allows such a suit to be brought by a person claiming under a minor and, therefore, such a statutory right specially granted by an enactment dealing with the protection of the minor cannot be defeated by the general provisions of an earlier enactment.
The two provisions, counsel says, can be read harmoniously so as to avoid an artificial conflict.
What the Guardianship Act intends to protect is the right of a person claiming under a minor to sue for setting aside the sale of property sold otherwise than as permitted by section 8 of the Act.
On the other hand, the T.P. Act only prohibits suits in the the nature of champerty and maintenance based on bare or naked right of litigation.
The general provision contained in section 6(e) of the T.P. Act does not derogate from the special protection of the minor 's interest and the interest of a person claiming under him, as afforded by the Guardianship Act, which is addressed to a specific problem, In any view, counsel says a sale by the guardian 394 otherwise than as permitted by section 8 is void and is, therefore, incapable of passing a title.
For all these reasons, Mr. Balakrishna submits that the suit was competent and was rightly decreed on the facts found and the appeal by the defendant has no merits.
As concurrently found by the courts below, the sale effected by the guardian during the minority of his daughter was not in compliance with the provisions of section 18(i) of the Guardianship Act.
The property was transferred by him without obtaining the previous permission of the Court and the transfer was not for the benefit of the minor.
Such a sale by the minor 's father who is his natural guardian is, unlike in the case of transfer by a de facto guardian (Section 11), not a void sale, but only a voidable sale.
Such a sale until set aside is sufficiently effective to pass title, but being a voidable sale, what the buyer has obtained is a defeasible title which is liable to be set aside at the instance of the person entitled to impeach it.
Section 8(3) of the Guardianship Act says: "Any disposal of immovable property by a natural guardian, in contravention of sub section (1) or sub section (2), is voidable at the instance of the minor or any person claiming under him." (emphasis supplied) The effect of this sub section is that any disposal of immovable property by a natural guardian otherwise than for the benefit of the minor or without obtaining the previous permission of the Court is voidable.
A person entitled to avoid such a sale is either the minor or any person claiming under him.
This means that either the minor, or his legal representative in the event of his death, or his successor in interest claiming under him by reason of transfer inter vivos, must bring action within the period prescribed for such a suit, i.e., three years from the date on which the minor died or attained majority, as the case may be.
In the present case, the suit was brought, as found by the courts below, within three years after the minor attained majority.
Mr. Sampath, however, contends that a person claiming under a minor, referred to in section 8(3), can only be a legal representative of a deceased minor and not a person succeeding to the interests of the minor by reason of transfer inter vivos.
He refers to the decisions in Jhaverbhai Hathibhai Patel vs Kabhai Bechar Patel & Ors, ; Mon Mohan Bhattacharjee & Ors.
vs Bidhu Bhusan Dutta & Ors., ; Palani Goundan & Anr.
vs Vanjiakkal & 395 Anr., ; Premprakash Surajmal vs Maharashtra Revenue Tribunal, Nagpur & Ors., AIR 1969 Bom.361 and Ghanshyam Dass vs Dr. Shiva Shankar Lal & Ors., [1980] All.
Law Journal 130 and other cases in which certain High Courts have taken the view that the right of the minor is a personal right and it cannot be transferred otherwise than by inheritence.
The "person claiming under him" mentioned under section 8(3) of the Guardianship Act, counsel says, can only be a representative and not a purchaser or transferee inter vivos.
He refers to Article 60 of the and submits that the provision refers only to a legal representative and not any other successor.
In Jhaverbhai Hathibhai Patel vs Kabhai Bechar Patel & Ors.
, , it was held: "what was assigned by the minor to the plaintiff in that suit was not the property in question but his right to sue for it, and if he could establish his allegation, to have the sale avoided, this I think was no more than a right of suit, and if I am correct such a transfer is forbidden by section 6, Cl.
(e), T.P. Act.
" Similar reasoning was adopted in the other decisions cited by Mr. Sampath on the point.
The rationale of these decisions is that the right to impeach a sale effected by the guradian is a personal right vested in the minor and it is not transferable inter vivos.
The expression "person claiming under him", according to this line of reasoning, must, therefore, be understood as a legal representative and not an assignee.
On the other hand, a Division Bench of the Madras High Court in P. Kamaraju vs C. Gunnayya & Ors., AIR 1924 Madras 322 held that the right of the minor was not a bare right to sue and it was an assignable right.
The High Court held: ".
.By selling the property to the plaintiff on the footing that the sale by the mother was not binding on him he has chosen to avoid it, and the result of it is that from his point of view he has got a complete title.
The title no doubt will only be effective if the Court ultimately finds that the sale by the mother is not binding on him.
But contingent on that event he has got a complete title and this title is not a bare right to sue and is, therfore, assignable. . " 396 In Palaniappa Goundan vs Nallappa Goundan & Ors., AIR 1951 Madras 817, Viswanatha Sastri, J. observed: "Where an ex minor transfers property unauthorisedly sold by his guardian during his minority he transfers not a mere right to use but his interest in the property, though a suit may be necessary to avoid the transfer by the guardian & recover possession of the property from his alienee.
Conversely, the liability of the transferee from the guardian is not a liability to pay damages for the unauthorised act of the guardian, but is a liability to restore the property to the rightful owner or his transferee".
Similar view was expressed in Karnam Nagabhushana Rao vs Karnam Gowramma & Ors., [1968] 2 Andhra Weekly Reporter 57.
These decisions on which reliance was placed by the Madras High Court in the impugned judgment are to the effect that the right of the minor is not a bare or naked right to sue but a right in property which is assignable.
In Halsbury 's Laws of England, 4th edn.
, Vol. 6, paragraphs 86 87 at pages 49 50, this is what is stated "A bare right of litigation, such as a mere right to damages for a wrongful act, is not assignable, on the principle that the law will not recognise any transaction savouring of maintenance or champerty.
By way of exception to the rule stated in the previous paragraph there is nothing unlawful in the purchase of property which the purchaser can only enjoy by defeating existing adverse claims, or in the assignment (for example by mortgage) of property, being the fruits of litigation.
In every case it is a question whether the purchaser 's real object was to acquire an interest in the property, or merely to acquire a right to bring an action, either alone or jointly with the vendor . ".
In the instant case, on the facts found, the transfer of the property made by the guardian was a voidable transaction and it was, therefore, open to the minor to challenge it and seek recovery of possession.
Such a right of the minor is a right or interest in property 397 which he himself or "any person claiming under him" may enforce by instituting a suit [Section 8(3) of the Guardianship Act].
"Any person claiming under him" must necessarily include a purchaser.
Section 8(3) confers a right of suit in the special circumstances postulated in that provision.
The object of the Act being the protection of the minor, the legislature has thought it fit to confer a right of suit in certain circumstances not only on the minor, but also on a person to whom the minor has transferred his rights.
The right transferred is an interest in property which is capable of enforcement at the instance of the transferee as it was at the instance of the ex minor prior to the transfer.
Such a provision, indeed specially for the protection of the interests of the minor, must be read in harmony and consistently with the general provisions contained in section 6 of the T.P. Act.
[See The J.K. Cotton Spinning & Weaving Mills Co. Ltd. vs The State of Uttar Pradesh & Ors., ; , 194 and Ashoka Marketing Ltd. & Anr.
vs Punjab National Bank & Ors., [1990] 3 JT SC 417, 439].
The transfer made by the father during his son 's minority was voidable at the instance of his son who was the real owner, and any person purchasing such property from the natural guardian obtained only a defeasible title.
The minor retained a right in the property to defeat existing adverse claims, and such right is an assignable right.
We are in complete agreement with what has been stated on the point in Palaniappa Goundan vs Nallappa Goundan & Ors., AIR 1951 Madras 817 and in P. Kamaraju vs C. Gunnayya & Ors., AIR 1924 Madras 322.
We do not agree with the contrary view expressed on the point in Jhaverbhai Hathibhai Patel vs Kabhai Bechar Patel & Ors., ; Mon Mohan Battacharjee & Ors.
vs Bidhu Bhushan Dutta & Ors., and Palani Goundan & Anr.
vs Vanjiakkal & Anr., A construction which is unduly restrictive of the statutory provisions intended for the protection of the interest of the minor must be avoided.
This is all the more so in view of section 5(b) of the Guardianship Act which says.
Save as otherwise expressly provided in this Act (a) . . . . . . . . (b) any other law in force immediately before the com 398 mencement of this Act shall cease to have effect in so far as it is inconsistent with any of the provisions contained in this Act.
" For the reasons stated by us, we see no merit in the challenge against the judgment under appeal.
The appeal is accordingly dismissed.
We do no, however, make any order as to costs.
V.P.R. Appeal dismissed.

summary:
The appellant purchased the suit property of the minor from a person, to whom the same was sold by the father, the natural guardian, whereas the respondent purchased the suit property from the minor within three years on his attaining majority.
The respondent plaintiff instituted a suit against the appellant defendant, to set aside the transfer of property made by the natural guardian and for recovery of possession of property.
The suit was decreed and the decree was confirmed by the appellate Court as well as by the High Court.
Dismissing the second appeal, the High Court held that the suit instituted bythe respondent as a transferee from the ex minor within three years after the minor attained majority was not hit by section 6(e) of the , against which the present appeal preferred by the appellant defendant.
The appellant contended that the suit was hit by section 6(e) of the , as all that the ex minor was in a position to transfer was the mere right to sue to set aside the sale and recover possession of the property transferred by the natural guardian; and 390 that a person claiming under a minor, referred to in section 8(3) of the Hindu Minority and Guardianship Act, 1956 can only be a legal representative of a deceased minor and not a person succeeding to the interest of the minor by reason of transfer inter vivos.
The contentions of the respondent were that the ex minor was competent to bring a suit to set aside the sale within a period of three years of his attaining majority and any person claiming under the minor was equally competent to institute action for the same purpose; that the suit to set aside a sale was not for the enforcement of any personal right, but a right in property and the suit was not hit by Section 6(e) of the T.P.Act; and that the provisions contained in Section 6 of the T.P. Act and Section 8 of the Guardianship Act were to be read together.
On the question, whether the respondent in his capacity as a transferee from the ex minor was competent to bring a suit to set aside the sale effected by the minor 's guardian, who had sold the property without obtaining the permission of the Court as required under Section 8 of the Hindu Minority and Guardianship Act 1956 and without any legal necessity.
Dismissing the appeal of the appellant defendant this Court, HELD: 1.
In the instant case, on the facts found, the transfer of the property made by the guardian was a voidable transaction and it was, therefore, open to the minor to challenge it and seek recovery of possession.
Such a right of the minor is a right or interest in property which he himself or "any person claiming under him" may enforce by instituting a suit (Section 8(3) of the Guardianship Act).
"Any person claiming under him" must necessarily include a purchaser.
[396G 397A] 2.
Section 8(3) confers a right of suit in the special circumstances postulated therein.
The object of the Act being the protection of the minor, the legislature has though it fit to confer a right of suit in certain circumstances not only on the minor, but also on a person to whom the minor has transferred his rights.[397A B] 3.
The right transferred is an interest in property which is capable of enforcement at the instance of the transferee as it was at the instance of the ex minor prior to the transfer.
Such a provision intended specially for the protection of the interests of the minor, must be read in harmony and consistently with the general provisions con 391 tained in section 6 of the T.P. Act.
[397B C].
A construction which is unduly restrictive of the statory provisions intended for the protections of the interests of the minor must be avoided.
[397F G] 5.
The transfer made by the father during his son 's minority was voidable at the instance of his son who was the real owner, and any person purchasing such property from the natural guardian obtained only a defeasible title.
The minor retained a right in the property to defeat existing adverse claims, and such right is an assignable right.
[397D E] The J.K.Cotton Spinning & Weaving Mills Co.Ltd.
vs The State of Uttar Pradesh & Ors., [1961] 3 S.C.R.185, 194 and Ashoka Marketing Ltd. & Anr.
vs Punjab National Bank & Ors., , 439, followed.
Palaniappa Goundan vs Nallappa Goundan & Ors., AIR 1951 Madras 817 and P.Kamaraju vs C.Gunnayya & Ors., AIR 1924 Madras 322, approved.
Jhaverbhai Hathibhai Patel vs Kabhai Bechar Patel & Ors., AIR 1933 Bom.42; Mon Mohan Battacharjee & Ors.
vs Bidhu Bhusan Dutta & Ors., and Palani Goundan & Anr.
vs Vanjiakkal & Anr., [1956] I.L.R. Mad.1062, over ruled.
Preprakash Surajmal vs Maharashtra Revenue Tribunal.
Nagpur &Ors., A.I.R. 1969 Bom.361; and Ghanshyam Dass vs Dr.
Shiva Shankar Lal & Ors., [1980] All Law Journal 130, referred to.


judgement:
ivil Appeal No. 1824 of 1991.
From the Judgment and Order dated 14.5.1990 of the Orissa High Court in O.J.C. No. 4426 of 1989.
401 Shanti Bhushan and Prashant Bhushan for the Appellant.
Gobind Das, S.B. Upadhyay, Harish Salve, Ms. Kirti Misra and S.R. Grover for the Respondents.
The Judgment of the Court was delivered by SAWANT, J.
Leave granted.
The only question which falls for consideration in the present case is what is the meaning of "Implementation Machinery" within the meaning of the Code of Discipline (hereinafter referred to as the "Code") ratified by all Central Employers ' and Workers ' Organisations at the 16th session of the Indian Labour Conference held in May 1958 and which came into force from June 1, 1958.
The question assumes importance in the present case because the High Court by the impugned decision has held that since the appellant Union had addressed its application for recognition not to the Implementation Machinery but to the Implementation Officer, the same was not properly made and the Implementation Officer had no authority to initiate the process of recognition.
The admitted facts are that the appellant Rourkela Sramik Sangh had addressed a letter on October 9, 1989 to the Implementation and Evaluation Officer cum Labour Comissionner Orissa, Cuttack intimating him that as per the Code it had called upon the Rourkela Steel Plant to recognise it as the sole bargaining agent in the Plant, but that the Plant had not replied to the same.
The appellant in the said letter had further requested the Labour Commissioner to pass orders for immediate verification of the membership of all the trade unions operating in the said Plant and to recommend for recognition, the Union having majority of the membership.
On receipt of this request, the Labour Commissioner as the Implementation and Evaluation Officer authorised the Deputy Labour Commissioner on December 5, 1989 to carry out the process of verification of the membership of the registered trade unions.
In pursuance of the same, the Deputy Labour Commissioner passed an order on December 14, 1989 calling upon the different trade unions to produce the necessary records within 10 days of the receipt of the notice.
These orders passed by the Labour Commissioner and Deputy Labour Commissioner were challenged by the Ist respondent Rourkela Mazdoor Sabha which is a rival union in the Plant by way of a Writ Petition being OJC No. 4426 of 1989 in the High Court of Orissa.
At the same time, the appellant 402 Union filed a Writ Petition being OJC No. 361 of 1990 seeking a direction to the Labour Commissioner, and the Deputy Labour Commissioner to complete the verification of the membership of the Unions and to fix a time limit to complete the process and recognition and for ancillary reliefs.
Both the writ petitions were heard together by a Division Bench of the High Court and by its impuged common judgment, the Court was pleased to allow the Ist respondent 's petition and dismiss the appellant 's petition.
The decision of the Court was based only on the finding that the Implementation and Evaluation Officer was not the "Implementation Machinery" under the Code and the Implementation Officer had no authority to process the application for recognition.
The relevant provisions of the Code are as follows: Section II of the Code deals with "Implementation Machinery" and is headed as such.
It begins as follows: "2.
To implement the Code of Discipline, labour enactments, awards and agreements, a separate machinery has been set up at the Centre and in all States.
This machinery comprises: (a) implementation units in Labour Departments, and (b) tripartite implementation committees at the Central, State and local levels.
" Thereafter it proceeds to deal with Implementation Units and states as follows: "(i) Implementation Units: 3.
A Central Implementation and Evaluation Division has been set up in the Ministry of Labour and Employment under the charge of a Joint Secretary.
In the State also, Implementation Units have been set up under the charge of either a whole time officer of the Labour Department or of the State Labour Commissioners.
According to the recommendations of the Labour Ministers ' Conference held in January, 1960 the Implementation Officer in each State should, as far as possible, he whole time and of sufficient seniority.
The following functions have been assigned to 403 Implementation Units: (1) to ensure Implementation of the Code of Discipline, Code of Conduct, labour enactments, awards, agreements, etc., with a view to reducing at the source the main cause of industrial strife; (2) to supplement the work of the Industrial Relations Machinery in taking preventive action where disputes are brewing and in settling long pending disputes which could not be settled otherwise; (3) to maintain liaison with Central, State or local units, as the case may be, to ensure effective working of the implementation machinery; (4) to arrange meetings of Implementation Committees and to function as their Secretariat; (5) to bring about out of court settlement of cases pending in High Courts and the Supreme Court; (6) to ensure that cases are screened by the Screening Committees set up by the Central Employers ' and Workers ' Organisations before appeals are filed in higher courts; (7) to evaluate; (a) major strikes, lock outs and disputes in order to fix responsibility for them, and (b) the working of important Labour legislations, awards, policies, decisions, etc.
in order to see how far they have produced the results which they were intended to produce and suggest measures to improve them.
(8) to collect and maintain necessary statistics regarding implementation of the Code of Discipline, labour enactments awards etc.
X X X X X X X X X X X It then deals with Implementation Committees and states as follows: 404 "(iii) Implementation Committees: 6.
The Implementation Committees at the Centre and in the States represent both Central Employers ' and Workers ' Organisations.
The Central Implementation and Evaluation Committee consists of an equal number of employers ' and workers ' representatives four each from the Central employers ' Organisations.
They are nominated by the organisations to which they belong and not by Government .
State/Administration Implementation Committees are also required to be constituted in consultation with the Central Employers ' and Workers ' Organisations wherever they have affiliates in the States/Territories concerned.
These Committees are presided over as far as possible by respective Labour Ministers.
At the local level, the Committees comprise an equal number of representatives of employers and workers in the area and are presided over by an officer of the Labour Department of by a prominent person in the region.
The functions assigned to Implementation Committees by the Standing Labour Committee in October, 1957 and other Committees are as follows: (1) to examine the extent of implementation of agreements, awards and settlements and to advise the parties which are anxious to implement an award but are unable to do so, as to how the difficulties in implementation could be overcome.
(2) to fix responsibility for violations of the Code in cases brought to its notice by the Implementation Unit or in those enquired into by it or a sub committee appointed by it.
In doing so, the Committee may hear the parties concerned if considered necessary.
(3) To consider cases for out of court settlement with the consent of the parties, screening of cases of industrial disputes before appeals are filed, etc.
that may be brought to its notice by the Implementation Unit or such other cases that the Committee may desire, to bring about harmonious labour management relations.
405 (4) to review periodically the working of the Code in their respective spheres.
(5) to maintain a two way exchange of experience between the Committees at the lowest level and the Central Committee.
At points of importance arising at any level should be given wide circulation.
" The Code further assigns the Implementation Units among others the duty to provide the secretariat for the Implementation Committees and to ensure that their decisions are implemented promptly.
We have also seen from the enumeration of the functions of the Implementation Units above, that the Units have to arrange meetings of the Implementation Committees and to function as their secretariat.
Section IV of the Code provides for "Grievance Procedure".
It states, among other things, that it is the responsibility of the Central and State/Administration Implementation Units to ensure that a grievance procedure is set up by every management in consultation with their workers.
Section V of the Code deals with Recognition of Unions and states as follows: "11.
Except in those States where the procedure to conferrecognition on unions is governed by a statute the conditions and procedure for recognitions of unions are governed by the provisions of the Code of Discipline.
It is the responsibility of Implementation Units to ensure that recognition is granted to unions by managements wherever they satisfy the prescribed criteria.
The procedure to be followed for this purpose is at Appendix IV.
For the sake of uniformity the State Implementation Units are requested to adopt it." Appendix IV which is referred to above is headed as follows: "PROCEDURE FOR VERIFICATION OF MEMBERSHIP OF UNIONS FOR THE PURPOSE OF RECOGNITION UNDER THE CODE OF DISCIPLINE" It is not necessary to set out the entire procedure stated in the said Appendix.
A reference to only first who clauses and clause (10) of the 406 said procedure would suffice for our purpose.
They state follows: "(1) On receipt of a representation from a union for recognition under the Code of Discipline the Central/State Implementation Machinery will first ascertain: (a) the names of unions functioning in the establishment together with their number and date of registration by reference to the Registrar of Trade Unions concerned; (b) whether any of the unions functioning in the establishment was responsible for an established breach of the Code during the past one year.
(By an `established breach of the Code ' is meant a breach reported to and on enquiry established by the Implementation Machinery of the State or the Centre), (c) whether the existing recognised union, if any, has completed a period of two years of recognition.
(2) After ascertaining the above facts, the Implementation Machinery at the Centre will request the Chief Labour Commissioner to arrange verification of membership of unions entitled to recognition under the Code.
In the States, either the Implementation Officer will carry out this verification or get it done through the State Labour Commissioner, depending on the practice in each State.
X X X X X X X X X X (10) The verification officer will report his findings to the Central/State Implementation machinery which in turn will communicate its decision to the management as well as to the unions.
In his report the verification officer will also indicate the total numbers of workers in the establishment and the percentage of the verified membership to it.
" We may also mention in this context that Annexure I to the Code lays down a criteria for recognition on unions.
It will thus be apparent from the aforesaid provisions of the Code that the "Implementation Machinery" envisaged by the Code consists of two separate Organisations viz., Implementation Units in 407 the respective Labour Departments, and Tripartite Implementation Committees at the Central, State and local levels.
Each of the Organisations has been assigned different functions and they are independent of each other while carrying out the same.
While the Central Implementation and Evaluation Division is set up in the Ministry of Labour and Employment under the charge of a Joint Secretary, the Implementation Units in the States are set up under the charge of a whole time officer of the Labour Department.
It is recommended that the Implementation Officer should be a whole time officer and of sufficient seniority as far as possible.
The Implementation Units have, among other things, been entrusted with the task of ensuring that every management sets up a grievance procedure in consultation with their workers and ensuring that recognition is granted to Unions by management wherever they satisfy the prescribed criteria by following the procedure laid down for the purpose in Apendix IV.
We have already pointed out that the prescribed criteria is laid down in annexure I of the Code.
Further pre conditions for recognition are laid down in clause (1) of Appendix IV.
Thus the constitutions of the Implementation Units and Implementation Committees are different and they function in different areas.
It appears that the High Court has basically been swayed by the fact that in clause (1) of the Appendix IV it is stated that on the receipt of the representation from unions for recognition, the Central/State "Implementation Machinery" will first ascertain the facts stated in sub clauses (a), (b) and (c) thereof and thereafter, if at the Centre the "Implementation Machinery" will require the Chief Labour Commissioner to arrange the verification of membership of unions entitled to recognition and if in the States either the Implementation Officer will carry out the verification or get it done through the State Labour Commissioner depending upon the practice obtaining in each State.
The High Court also seems to have been influenced by the provisions of clause (10) of the said Appendix which requires the Verification Officer to report his findings on membership to the Centre/State "Implementation Machinery".
The High Court has obviously mistaken the whole for the part.
As we have pointed out earlier, although Section II of the Code is headed "Implementation Machinery" the "Implementation Machinery" consists of two separate Organisations, viz., Implementation Units and Tripartite Implementation Committees.
This is obvious from the language of Section II itself.
Their separate constitutions and functions also make this aspect clear.
What is further, to hold that the Implementation Unit in the respective Labour Department together with the respective Tripartite Implemen 408 tation Committee at the Central, State or Local Level would constitute the Implementation Machinery jointly and not each of them separately would run not only counter to the intention of the Code as is manifest from the clear language of Section II and their separate composition and functions, but would also be impracticable in working.
We have reproduced above the composition of the Implementation Committees at the Centre and the State Level.
These Committees consist of, at the central level, an equal number of employers ' and workers ' representation four each from the central Employers ' and Workers ' Organisations as nominated by the Organisations themselves.
At the State level, they are required to be constituted similarly and in consultation with the Central Employers ' and Workers ' Organisations wherever they have affiliates in the State concerned.
The Committees are further presided over as far as possible by respective Labour Ministers and even where it is not possible for Labour Minister to preside over them, they have to associate themselves as much as possible with the deliberation of the Committees.
At the local level, the Committees are similarly constituted of an equal number of representatives of the employers ' and Workers ' in the area and are presided over by an Officer of the Labour Department or by a prominent person in the region.
In a given case there may be more associations than one of employers and employees, and the Committees would thus consist of an unwieldy number.
To except such a Committee to carry out the work mentioned in Appendix IV is unrealistic.
That is why the Code itself has entrusted to the Implementation Units and not to the Implementation Committees the task of ensuring that recognition is granted to unions by management.
At the Centre, the Implementation Unit is kept in charge of a Joint Secretary and at the State level it is in charge of a whole time officer of the State Labour Department.
The record further shows that as early as on May 26, 1959, i.e., after about a year of the ratification of the Code, the Government of India issued a statement naming and designating Officers Incharge of Evaluation and Implementation work in all the States and further stated as follows: ".
.It is requested that all complaints of non implementation of Labour Laws, awards settlements, agreements, Code of Discipline etc., relating to undertakings in the State sphere may kindly be referred, in future, to State Implementation Officers concerned . .
" So far as the State of Orissa is concerned, the Implementation 409 Officer named by the Government of India is the Labour Commissioner of the State.
Since the Implementation Unit/Implementation Officer entrusted with the task of granting recognition to the Unions in the State of Orissa was the Labour Commissioner of the State, the appellant Sangh had rightly approached the Labour Commissioner for the purpose.
The High Court having committed the basic error of confusing the Implementation unit and Tripartite Implementation Committee together with the Implementation Machinery was misled into holding that the Implementation Unit/Implementation Officer was not the proper authority to initiate the procedure for recognition.
The High Court was further wrong in holding that clause (10) of Appendix IV which mentions that the Verification Office will report his findings to the Implementation Machinery conveyed the meaning that the Implementation Unit or the Labour Commissioner was not the "Implementation Machinery" but only a Verification Officer.
Since the State Labour Commissioner was named as the Implementation Officer who is none but the officer in charge of the Implementation Unit, the State Labour Commissioner as the Implementation Officer had an option either to carry out the verification of membership himself or entrust it to some other Officer like the Deputy Labour Commissioner as in the present case.
That was only an entrustment of a ministerial work.
The Deputy Labour Commissioner in the present case is the Verification Officer and under clause (10) of Appendix IV, he has to send his report to the Implementation Officer or Unit, i.e., the State Labour Commissioner, and the State Labour Commissioner will in turn communicate his decision as the State Implementation Machinery to the management as well as the Unions.
For the aforesaid reasons we are of the view that the High Court has erred in allowing Writ Petition No. 4426 of 1989 filed by the Ist respondent and dismissing the appllant 's Writ Petition being No. 361 of 1990.
We, therefore, set aside the decision of the High Court and direct the Deputy Labour Commissioner to complete the process of verification of membership and the Labour Commissioner to complete the proceedings of recognition as expeditiously as possible and preferably within four months from the receipt of this decision.
In the circumstances of the case, the parties will bear their own costs.
R.S.S. Appeal allowed.

dataset_name: IN-Abs

summary:
The appellant, Rourkela Sramik Sangh, is a trade union in the Rourkela Steel Plant.
It addressed a letter to the Implementation and Evaluation Officer cum Labour Commissioner, under the Code of Discipline 1958, whereby it sought recognition as the sole bargaining agent in the Rourkela Steel Plant.
For this purpose, it requrested the Labour Commissioner to pass orders for immediate verification of the membership of all the trade unions operating in the Plant and to recommend for recognition of the union having majority of the membership.
The Labour Commissioner as the Implementation and Evaluation Officer authorised the Deputy Labour Commissioner to carry out the process of verification of the membership of the registered trade unions, who in turn passed orders calling upon the different trade unions to produce the necessary records.
The Ist respondent Rourkela Mazdoor Sabha which is a rival union, challenged by way of a writ petition the orders passed by the Labour Commissioner and the Deputy Labour Commissioner.
At the same time, the appellant union filed a writ petition seeking a direction to the Labour Commissioner, and the Deputy Labour Commissioner, to complete the process of verification and recognition within a stipulated time.
The High Court by its common judgment allowed the Ist respondent 's petition and dismissed the appellant 's petition.
The High Court held that since the appellant Union had addressed its application for recognition not to the Implementation Machinery but to the Implementation Officer, the same was not properly made as the Implementation Officer had no authority to initiate the process of recognition.
The decision of the High Court was based on the finding that the Implementation and Evaluation Officer was not the "Implementation Machinery" within the meaning of the Code of Discipline.
400 Allowing the appeal and directing the Deputy Labour Commissioner and the Labour Commissioner to complete the proceedings of recognition as expeditiously as possible, this Court, HELD: (1) The "Implementation Machinery" envisaged in section 11 of the Code of Discipline consists of two separate Organisations, viz., Implementation Units in the respective Labour Departments, and Tripartite Implementation Committees at the Central, State and local levels.
Each of the Organisations has been assigned different functions and they are independent of each other while carrying out the same.
Thus, the constitutions of the Implementation units and Implementation Committee, are different and they function in different areas.
[406H 407D] (2) Since the Implementation Unit/Implementation Officer entrusted with the task of granting recognition to the union in the State of Orissa was the Labour Commissioner of the State, the appellant Sangh had rightly approached the Labour Commissioner for the purpose.
[409A] (3) Since the State Labour Commissioner was named as the Implementation Officer who is none but the officer in charge of the Implementation Unit, the State Labour Commissioner as the Implementation Officer has an option either to carry out the verification of membership himself or to entrust it to some other officer like the Deputy Labour Commissioner as in the present case.
That was only an entrustment of a ministerial work.
[409D] (4) The Deputy Labour Commissioner in the present case is the Verification Officer and under clause (10) of Appendix IV, he has to send his report to the Implementation Officer or Unit, i.e., the State Labour Commissioner, and the State Labour Commissioner will in turn communicate his decision as the State Implementation Machinery to the management as well as the Unions.
[409E] (5) The High Court was wrong in holding that the Implementation Unit or the Labour Commissioner was not the "Implementation Machinery" but only a Verification Officer.
[409C]


judgement:
IVIL Appeal No.768 (NT) of 1977 etc.
From the judgment Order dated 9.10.1975 of the Madhya Pradesh High Court in M.C.C. No.144 of 1966.
V.A. Bobde, B.R.Aggarwala and U.A.Rana for the Appellant.
S.V.Deshpande and S.K.Agnihotri for the Respondents.
The Judgment of the Court was delivered by RANGANATH MISHRA, CJ.
These are appeals by special leave 252 and are directed against the separate decisions of the Madhya Pradesh High Court in references under the Madhya Pradesh Sales Tax Act.
Civil Appeal No.768/77 relates to the assessment period 1951 52, Civil Appeal 539/78 relates to 1950 51 and Civil Appeal 1038/78 to 1952 53.
The appellant is a manufacturer of cement in the factory located at Kymore in Madhya Pradesh.
Several cement manufacturing companies as also the appellant had entered into arrangement with the Cement Manufacturing Company of India Limited whereunder the Marketing Company was appointed as the sole and exclusive sales manager for the sale of cement manufactured by the manufacturing companies and the manufacturing companies had agreed not to sell directly or indirectly any of their cement to any person save and except through the Marketing Company.
The manufacturing companies were entitled to be paid a certain sum for every ton of cement supplied by them or at such other rate as might be decided upon by the Directors of the Marketing Company.
The Marketing Company had the authority to sell cement at such price or prices and upon such terms as it might in its sole discretion consider appropriate.
For the three periods referred to above the appellant had supplied cement manufactured by it to the Marketing Company and maintained at the assessment stage for the respective periods that these were covered by the Explanation to Article 286(1)(1) as it then stood and, therefore, the transactions were not exigible to sales tax in Madhya Pradesh.
This stand was negatived by the Assessing Officer, the First Appellate Authority and the Board of Revenue.
The Board in the statement of the case drawn up by it held that cement became a controlled commodity from 8th of August, 1942, and notwithstanding the expiry of the Defence of India Rules with effect from 30th of September, 1946, distribution of cement continued to be controlled even during the period.
The Marketing Company had its establishment at Nagpur then within Madhya Pradesh which received the orders of authorisations and managed the supply from the factory at Kymore.
The Board in its statement further stated: "The entire question in dispute hinges round the fact as to whether the sales in question are inter State in nature or should be regarded as intra State.
It is seen that the Cement Marketing Company is an independent organisation and is carrying on business as an independent entity.
It is also seen that what has actually been taxed are the sales effected by the appellant to the Cement Marketing Company 253 of India and not the sales made to the parties which obtained an authorisation from the Cement Controller.
This seems to be the crux of the matter.
" On this basis reliance was placed on the decision of this Court in the case of Rohtas Industries Limited vs State of Bihar, 12 STC 621 where, after analysing the terms of the contract between the manufacturer (appellant before the Supreme Court) and the Marketing Company, this Court held: "On a review of these terms of the agreement, it is manifest that the manufacturing companies had no control over the terms of the contract of sales by the Marketing Company and that the price at which cement was sold by the Marketing Company could not be controlled by the manufacturing companies; that the manufacturing companies were entitled, for ordinary cement, to be paid at the rate of Rs.24 per ton at works, or at such other rate as might be decided upon by the Directors of the Marketing Company, and in respect of special cement, at such additional rates as the Directors of the Marketing Company might determine; that sale by the Marketing Company was not for and on behalf of the manufacturing companies but for itself and the manufacturing companies had no control over the sales nor had they any concern with the persons to whom cement was sold.
In fine, the goods were supplied to the orders of the Marketing Company, which had the right, under the terms of the agreement, to sell on such terms as it thought fit and that the manufacturing companies had the right to receive only the price fixed by the Marketing Company.
The relationship in such cases can be regarded only as that of a seller and buyer and not of principal and agent.
" This Court in Rohtas Industries case on a detailed analysis of the terms of the contract came to hold that there was a sale between the manufacturer and the Marketing Company.
It is not in dispute that the agreement between the appellant and the Marketing Company in this case has the same terms as this Court considered in Rohtas Industries case.
It follows, therefore, that it must be held that there was a sale between the appellant and the Marketing Company.
The Marketing Company had its establishment at Nagpur within the State of Madhya Pradesh at that time.
There was, therefore, a 254 preceding local sale prior to the sales between the Marketing Company and the allottee of cement by the regulating authority.
This Court in Rohtas Industries further found that the transaction between the manufacturer and the Marketing Company had nothing to do with the Marketing Company 's sales to third parties.
There was no privity between the manufacturer and the ultimate consumer who was said to have been located outside the State of Madhya Pradesh.
The question for consideration is whether the sale that look place between the manufacturer and the Marketing Company can be taken to be covered by the Explanation.
The Explanation which was repealed by the Sixth Amendment of the Constitution in 1956 read thus: "For the purposes of sub clause (a), a sale or purchase shall be deemed to have taken place in the State in which the goods have actually been delivered as a direct result of such sale or purchase for the purpose of consumption in that State notwithstanding the fact that under the general law relating to sale of goods the property in the goods has by reason of such sale or purchase passed in another State." Rohtas Industries case was dealing with a period prior to the Constitution; therefore, without the Explanation.
The question for consideration thus is: does the presence of the Explanation make any difference? What has been found as a fact in the statement of the case is that there was preceding local sales complete in every respect within Madhya Pradesh by which title to the cement had passed from the appellant to the Marketing Company.
The concept of inter State sale as brought in by the Sixth Amendment or in the subsequent statute known as the Central Sales Tax Act was not in existence for the relevant period now under consideration.
The finding recorded by the authorities is that the delivery of the cement was not the direct result of such sale or purchase of the cement outside the State.
In the absence of such privity the Explanation is not attracted to the transactions.
An attempt was made by counsel to rely upon some of the later decisions of this Court where with reference to the provisions contained in the Central Sales Tax Act the law had been laid down.
It is unnecessary to refer to them in view of the finding recorded by the authorities that the cement in this case actually had not been delivered 255 as a direct result of such sale or purchase for the purpose of consumption outside the State.
That is a finding clinching enough and once that is taken as binding on this Court, the only conclusion that can follow is that the Explanation does not apply and the assessments are justified.
The ratio of Mohd. Serajuddin vs State of Orissa, is also against the appellant 's stand.
We accordingly dismiss the appeals and uphold the decisions of the High Court.
There would be no order for costs.
V.P.R. Appeals dismissed.

summary:
The appellant, a manufacturer of cement, entered into an agreement with the Cement Manufacturing Company of India Limited, for sale of cement.
Under the agreement, the appellant was to sell its cement only through the marketing company, and certain sums would be paid for the cement supplied by the marketing company, which had the discretion to fix the sale price.
For the 1950 51, 1951 52 and 1952 53 periods when the appellant was assessed to sales tax for the supply of cement, it maintained at the assessment stage that the transactions were not exigible to sales tax as they were covered under the Explanation to Article 286(1)(a).
The first Appellate Authority and the Board of Revenue did not accept the stand of the appellant.
The Board of Revenue held that cement being a controlled commodity, distribution of cement continued to be controlled during the period, notwithstanding the expiry of the Defence of India Rules.
Relying on the decision of this Court in the case of Rohtas Industries Limited vs State of Bihar, 12 STC 621 the Board of Revenue held that the Cement Marketing Company was an independent organisation and was carrying on business as an independent entity and that what had actually been taxed were the sales effected by the appellant to the Cement marketing Company and not the sales made to the parties which obtained authorization from the Cement Controller.
After analyzing the terms of the contract between the manufacturer and the Marketing Company, this Court held in Rohtas Industries case that there was sale between the manufacturer and the Marketing Company.
251 Following its view taken in Rohtas Industries case as the present case had the same terms, which had been considered in the earlier case, and examining the question whether the sale that took place between the manufacturer and the Marketing Company could be taken to be covered by the Explanation to Article 286(1)(a), this Court, dismissing the appeals, HELD: 1.
There was preceding local sales complete in every respect within Madhya Pradesh by which title to the cement had passed from the appellant to the Marketing Company.
The concept of inter State sale as brought in by the Sixth Amendment or in the subsequent statute known as the Central Sales Tax Act was not in existence for the relevant period now under consideration.
The finding recorded by the authorities was that the delivery of the cement was not the direct result of such sale or purchase of the cement outside the State.
In the absence of such privity the Explanation is not attracted to the transactions.[254E G].
In view of the finding recorded by the authorities that the cement in this case actually had not been delivered as a direct result of such sale or purchase for the purpose of consumption outside the State, the only conclusion that can follow is that the Explanation does not apply and the assessments are justified.[254H 255A].
Rohtas Industries Limited vs State of Bihar, 12 STC 621, followed.
Mohmd.
Serajuddin vs State of Orissa, , distinguished.


judgement:
N: Criminal Appeal No. 276 of 1991.
From the Judgment and Order dated 16.7.1990 of the Orissa High Court in Criminal Appeal No. 117 of 1990 And Death Reference No. 1 of 1990.
H.K. Puri (Amicus Curiae) for the Appellant.
A.D. Giri, Solicitor General and A.K. Panda for the Respondent.
The Judgment of the Court was delivered by K. JAYACHANDRA REDDY, J.
Leave granted.
This is a case of death sentence.
The fact that such a sentence is awarded even in the year 1990 would immediately suggest that the offence involved should be of a grave nature.
Yes, the offence is not only grave but heinous and inhuman.
A girl aged five years was a victim of rape and thereafter murder.
The sole appellant before us was tried, convicted and sentenced to death by the Sessions Court and confirmed by the High Court.
It is a 301 case depending entirely on circumstantial evidence and the obvious contention is that the circumstantial evidence is wholly insufficient to bring home the guilt to the accused.
No doubt the offence is a shocking one but the gravity of the offence cannot by itself overweigh as far as legal proof is concerned.
Invariable in such cases a person last seen with the victim, unless otherwise there are circumstances prima facie exonerating him, would be the prime suspect but in the ultimate judicial adjudication suspicion, howsoever strong, cannot be allowed to take the place of proof.
With that caution in mind we shall now proceed to examine the facts and circumstances as put forward and the various arguments advanced.
The deceased Disco alias Sukumari, a girl aged 5 years was the daughter of P. Ws 1 and 6, the father and the mother who were drummers by castes.
They belong to village Badachatra, an interior part of Mayurbhanj District.
They had three children and the deceased was the eldest.
In the year 1988 during Kalipuja time the accused who was the resident of Tulsibani village about one kilometre away, came to the house of P.Ws 1 and 6.
He named their newly born daughter.
He took his meals in their house and went away saying that he would come with the new dresses for the newly born daughter.
Next day i.e. on 9.11.88 he came to their house in the morning with new dresses.
He told the parents that he would take the deceased with him to Bombay Chhak to get new dresses for the other two children.
He took his lunch and went with deceased towards Bombay Chhak.
Sometime after his departure P.W 6 told her husband P.W.1 to proceed to Bombay Chhak as the deceased might be crying.
Accordingly P.W. 1 accompanied by one Sambhu proceeded towards that Chhak.
On the way they met one Babuli and asked him whether he had seen the accused and the deceased to which he replied in the negative.
P.W. 1 came back to the village and sat in the shop of P.W. 2 who informed that he had seen the accused going towards village Tulsibani alongwith the deceased.
P.W. 1 and Sambhu then went to that village but could not find them there.
Therefore they went to Jharpokharia Police Station and gave a report to the Officer in charge P.W.11 stating that the deceased.
P.W. 1 again went to the Tulshibani Village where a person informed him that he has seen the accused going towards his house.
P.W. 1 went there and enquired the accused.
He told P.W. 1 that the deceased had gone back home but P.W. 1, caught hold of him but the accused squirmed away from his grip.
P.W. 1, however, again caught him and took him to his Village and according to P.W. 1 302 on being questioned the accused confessed to have raped and committed murder of the deceased.
The accused is alleged to have pointed the place where he had thrown the dead body, whereafter P.W. 1 and others proceeded in that direction.
P.W. 11 the Police Officer also came in a jeep and took the accused into custody, drew up F.I.R. and sent the same to the Police Station for registration of a case.
The accused is alleged to have led the Police party to the spot where the dead body was lying.
P.W. 11 found the deceased lying with injuries on her vagina and other parts.
He held the inquest in the presence of P.W. 4 and others and sent the dead body for post mortem.
P.W. 7 conducted the post mortem.
He noticed abrasions all over the body.
He also found one bruise on the left side of the forehead and a lacerated wound of 2.5 cm x 1 cm x muscle deep starting from the posterior angle of vagina along the perinium upto the anus.
On internal examination he found the following injuries. "(1) Soft tissues and muscles below the external injuries to the neck were contused with extra vassation of blood into the soft tissues.
(2) Heamatoma under the scalp corresponding to external injury No. 11.
(3) The hymen was torn and the floor of the vagina i.e., vaginal channel was lacerated.
This injury corresponds to external injury No. 15.
" The Doctor opined that all the injuries were antemortem and homicidal in nature and cause of death was due to asphyxia and shock as a result of strangulation and also due to injuries to the vagina.
He also opined that the injuries on the neck suggest that the deceased was strangulated by pressure of hands.
So far injury to the vagina is concerned, he was of the opinion that the same could have been caused by forcible penetration of a male organ.
The accused also was examined on 10.11.88 itself by another Doctor P.W 8 for some abrasions on his genital.
P.W. 8, however, categorically stated that on examining the accused he could not find any recent sign of sexual intercourse.
The prosecution relied on some blood stains which were found on his dhoti but the accused explained away by saying that they were caused by the bleeding of his gums.
The accused when examined under Section 313 pleaded not guilty.
He however, admitted that he went to the house of P.W. 1 but denied the rest of the case.
303 The trial court did not accept the P.W. 1, s evidence regarding the extra judicial confession alleged to have been made by the accused.
It held that nobody else has mentioned about this extrajudicial confession and at any rate it was supposed to have been made in the presence of the police.
We have also examined the evidence of P.W. 1 as well as the evidence of the other witnesses.
The trial court has rightly rejected this part of the prosecution case regarding the alleged extra judicial confession.
As a matter of fact we do not find anywhere mentioned that such a confession was made by the accused to P.W. 1 neither in the F.I.R. nor in the evidence of other witnesses who were also said to have been present when the accused was brought to the village by P.W. 1.
P.W. 6, who is no other than the wife of P.W. 1, did not even mention about it.
The trial court, however, relying on the other circumstances convicted the accused under Sections 302 and 376 I.P.C. and sentenced him to death subject to confirmation by the High Court and for seven years ' rigorous imprisonment for the offence of rape.
The sentences are directed to run concurrently.
The High Court confirmed the conviction and sentence awarded by the trial court.
As already mentioned this case rests purely on circumstantial evidence.
It is well settled that the circumstantial evidence in order to sustain the conviction must satisfy three conditions; 1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; ii) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; iii) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else, and it should also be incapable of explanation on any other hypothesis than that of the guilt of the accused.
In the leading case Hanumant and Another vs The State of Madhya Pradesh, it is also cautioned thus: "In dealing with circumstantial evidence there is always the danger that conjecture or suspicion may take the place of legal proof.
It is therefore right to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused.
Again, the 304 circumstances should be of a conclusive nature and tendency, and they should be such as to exclude every hypothesis but the one proposed to be proved.
In other words, there must be a chain of evidence so far complete as not leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.
" Mahajan, J., as he then was, has also aptly referred to a passage containing the warning addressed by Baron Alderson to the Jury in Reg vs Hodge, which is stated as under; "The mind was apt to take a pleasure in adapting circumstances to one another and even in straining them a little, if need be, to force them to form parts of one connected whole; and the more ingenious the mind of the individual, the more likely was it, considering such matter, to over reach and mislead itself, to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete.
" In Dharam Das Wadhwani vs State of Uttar Pradesh, it was held that " unlike direct evidence the indirect light circumstances may throw may vary from suspicion to certitude and care must be taken to avoid subjective pitfalls of exaggerating a conjecture into a conviction. " In Jagta vs State of Haryana, ; it was held that "The circumstances that the accused could not give trustworthy explanation about the injuries on his person and about his being present on the scene of ;occurrence are hardly sufficient to warrant conviction.
" It may not be necessary to refer to other decisions of this Court except to bear in mind a caution that in cases depending largely upon circumstantial evidence there is always a danger that the conjecture or suspicion may take the place of legal proof and such suspicion however so strong cannot be allowed to take the place of proof.
The Court has to be watchful and ensure that conjectures and suspicions do not take the place of legal proof.
The Court must satisfy that the various circumstances in the chain of evidence should be established clearly and that the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused.
Bearing these principles in mind we shall now consider the reasoning of the courts below in coming to the conclusion that the accused along has committed the offence.
305 The trial court relied on the following circumstances: "(a) 'Last seen ' theory that the accused and the deceased were last seen together.
(b) Conduct of the accused that the accused attempted to flee away when he could be seen at his village by P.W.1; (c) False explanation the accused when questioned gave false explanation regarding the whereabout of the deceased; (d) Recovery of the dead body of the deceased on the showing of the accused That the accused pointed out the place where the dead body of the deceased was lying inside a paddy field; (e) Presence of injury on the genital as well as stains of blood on the wearing apparel and nailclippings of the accused.
" The evidence of P.Ws 1, 2 and 6 are relied upon in support of the first circumstance namely that the deceased was last seen in the company of the accused.
P.W. 1 the father and P.W. 6 the mother deposed that on the day of occurrence the accused came to their house and took the deceased towards Bombay Chhak to purchase new clothes.
The accused only admitted to the extent namely that he had been to their house and denied the rest of the prosecution case.
However, we shall accept the evidence of P.Ws 1 and 6 to the effect that the accused took the deceased on that day to Bombay Chhak.
But that by itself is not enough to conclude that the deceased was last seen in the company of the accused because even according to them on being enquired, the accused told them that he sent the girl back in a truck.
Even otherwise the distance between the two villages is not much.
P.W. 2 's evidence, however, is relied upon that the deceased was going in the company of accused.
P.W. 2 is also a native of the same village to which P.Ws 1 and 6 belong.
He deposed that on a Wednesday he had been to village pond to take his bath at about 12 noon and while returning she saw the accused going towards east with a minor girl aged about 5 years but P.W. 2 does not say that the deceased was in his company.
He, however, proceeded to depose that he found P.W. 1 searching for some one and thereupon P.W. 2 told him that he has seen the accused with a minor girl going towards the paddy field.
He admitted that did not know whose daughter was in the company of the accused.
In the cross 306 examination he further admitted that he did not talk to the accused.
No. doubt P.W. 2 's evidence, to some extent, corroborates the evidence of P.Ws 1 and 6 but unfortunately even at the stage of inquest this circumstance namely that the deceased was last seen in the company of the accused, was not noted.
We will advert to this aspect at a later stage.
The important and crucial circumstance heavily relied upon by the prosecution is the alleged recovery of the dead body of the deceased on showing of the accused and the accused pointed the place where the body of the deceased was lying.
For this again the prosecution relied on the evidence of lP.Ws 1 and 11.
Having carefully gone through the evidence of P.W. 1 we find that he has improved his version from stage to stage.
As already noted both the courts below were not prepared to place any reliance on his evidence regarding the extra judicial confession about which he made no mention at any earlier stage.
As far as the recovery of the body is concerned, P.W. 1 however deposed that he managed to catch hold of the accused and brought him to the village and that the police came in a jeep and took the accused into custody.
Then all of them went towards paddy field which had been pointed by the accused and on search they found the dead body.
P.W. 11 the Investigating Officer deposed at he went to village and found the accused to have been detained.
He therefor prepared the F.R.I. and sent the same for registration of the crime.
Then he arrested the accused and his evidence and his evidence thereafter to put in his own words reads as under: "The accused pointed out the place where the dead body of the deceased was lying and thereafter led me to the paddy field wherefrom I could recover the dead body of the deceased Disco.
As there were good number of persons present apprehending danger to the accused I sent him to the police station.
During course of investigation, I examined witnesses, seized the dhoti (M.O. iii),Shirt (M.O. iv) and this chadi marked M.O.VII from the accused under the seizure list already marked Ext.
The dead body of the deceased was lying in the paddy field where there were paddy plants which had been damaged and scattered.
I held inquest over the dead body of the deceased Disco in presence of witnesses under the inquest report already marked Ext.
I noticed INJURIES on the vagina and other parts of the body of the deceased.
After inquest I sent the dead body for P.M. examination through constables.
" 307 According to this evidence the accused is alleged to have taken P.W. 11 and others to the open paddy field where the dead body was lying.
It is only thereafter that the inquest report was drawn up.
However, P.W. 11 stated in his evidence that before going to the paddy field the F.I.R. exhibit P. 10 was drawn up by him.
Surprisingly we find a mention about the discovery of the body in the F.I.R. itself.
But the same is not found in the inquest.
There is not even a reference to the accused in the column No. 9 of the inquest report where the information of witness as to the cause of death has to be noticed.
We are aware that the purpose of inquest report is only to ascertain the cause of death but in a case of this nature there should have been atleast a mention in the inquest report as to how the body was discovered.
Apart from that usually a panchanama is prepared for such a discovery made under Section 27 of the Evidence Act but strangely in this case there is no such panchanama nor there is any other evidence of P.Ws 1 and 11.
P.W. 6 does not say anything about this aspect.
As a matter of fact the trial court has noted the discrepancies in the evidence of P.Ws 1 and 11 and it is observed as under: "The Investigating Officer, P.W. 11 has stated something more about the find of the dead body.
He speaks that the accused pointed out the place where the dead body of the deceased was lying and thereafter led him to the paddy field wherefrom the dead body of the deceased could be recovered.
Though this part of this evidence has not been supported by P.W. 1,but from the evidence of both P.Ws 1 and 11 coupled with the evidence of P.W.4 I am persuaded to hold that on the showing of the accused, the dead body of the deceased was recovered from a paddy field.
" We have perused the evidence of P.W. 4.
His evidence does not in any manner incriminate the accused.
P.W. 4 deposed that the dead body of the deceased was found lying in paddy field and that the police held inquest over the dead body in his presence and that the inquest report is P. 1 in which he put his signature as a witness.
Nothing more is stated by him.
He does not even refer to the presence of the accused at the place where the dead body was found or at the time of inquest, which was held also there.
P.W. 4 does not in any manner help the prosecution case so far as this circumstance is concerned.
If ready the body has been discovered at the instance of the accused there should have been discovered at the instance of the accused there should have been a panchanama and a mention about the same in the inquest report.
P.W. 11 categorically in his evidence has stated that after sending the F.I.R. the accused was questioned and the body was discovered there 308 after at the instance of the accused and the inquest was held over the dead body and P.W. 4 was a panch witness to the inquest and he also affixed his signature in the inquest report.
But as mentioned above P.W. 4 does not say anything about the accused being present anywhere near the place where the dead body was found nor there is a reference to the accused in the inquest report.
The only two remaining witnesses P.Ws 1 and 11 namely the father of the girl and the Investigating Officer respectively have contradicted each other.
That is the type of evidence regarding this crucial circumstance.
It is highly dangerous to accept the same and hold that the dead body was discovered at the instance of the accused.
Having given our careful consideration we are of the firm opinion that the prosecution has not established this circumstance conclusively.
On the other hand there is any amount of doubt and suspicion about the accused having shown the place of occurrence.
We may also point out at this stage that the circumstance that the deceased was last seen in the company of the accused was not mentioned in the inquest report.
Therefore the first circumstance also namely that the deceased was last seen in the company of the accused is not established beyond reasonable doubt.
However, when once it is held that the crucial circumstance namely the discovery of the body at the instance of the accused is not established, then the other circumstances are hardly sufficient to establish the guilt of the accused.
The courts below have also observed that the accused gave a false explanation.
According to the prosecution case the accused is supposed to have stated to P.Ws 1 and 6 that he sent away the deceased in a truck.
The courts below held that this explanation is false mainly on the surmise that a minor girl could not have come back on her own in a truck.
We are not convinced that on this surmise alone we can hold that the accused has given a false explanation.
It is not uncommon in villages for children to go about the field and walk short distances while coming back to the village.
In any event the accused had given an explanation that he sent the girl back to the village in a truck and the same cannot be held to be not plausible and therefore false.
Then the last circumstance relied upon by the courts below is the presence of some abrasions on the genital of the accused and presence of stains blood on the wearing apparels and nail clippings.
The prosecution wanted to show that because of the penetration the accused sustained the abrasions on his penis.
The Doctor, P.W. 8 who examined the accused has stated that he found only two pin head abrasion on the genital of the accused and on examination he opined that he could not find any recent sign of sexual intercourse and he also 309 added that there was no such sign of having intercourse within one hour of his examination.
However to a court question, P.W 8 stated that as a result of forcible sexual intercourse those abrasions can be possible.
We are unable to see as to how this evidence, in any manner, is helpful to the prosecution.
When P.W. 8 stated that he couldn 't find any sign of sexual intercourse atleast within one hour of his examination then it is only a mater of conjectures as to when the accused had any intercourse.
The accused is a man aged 57 years and it is not as if he was not used to sexual intercourse.
In any event the prosecution has not established that the accused had an intercourse on the day of the occurrence.
Then the presence of blood in the nail clippings and on the underpant does not also incriminate and do not connect the accused in any manner with the alleged offences.
The accused also had given an explanation namely that his gums were bleeding and in wiping out the same he got these blood stains.
Even otherwise having given our earnest consideration, we are not able to say that this last circumstance coupled with the circumstance of last seen in the company of the accused amount to legal proof of the guilt particularly when the crucial circumstance namely that the accused showed the dead body is held to be not established.
when such a main link goes, the chain gets snapped and the other circumstances cannot in any manner establish the guilt of the accused beyond all reasonable doubts.
It is at this juncture the Court has to be watchful and avoid the danger of allowing the suspicion to take the place of legal proof for sometimes unconsciously it may happen to be a short step between moral certainty and the legal proof.
At times it can be case of 'may be true '.
But there is a long mental distance between 'may be true ' and 'must be true ' and the same divides conjectures from sure conclusions.
The least that can be said in this case is that atleast there is a reasonable doubt about the guilt of the accused and the benefit of the same should go to him.
We are conscious that a grave and heinous crime has been committed but when there is ;no satisfactory proof of the guilt we have no other option but to give the benefit of doubt to the accused and we are constrained to do so in this case.
Accordingly, the appeal is allowed.
The conviction and sentence of the accused is set aside and he shall be set at liberty forthwith if not required in any other case.
T.N.A. Appeal allowed.

summary:
The appellant was tried for rape and murder of a girl aged five years.
The entire evidence against him was circumstantial: (a) the accused and the deceased were last seen together; (b) false explanation given by the accused regarding the whereabouts of the deceased; (c) alleged recovery of the dead body of the deceased at the instance of the accused and (d) presence of abrasions on the genital of the accused as well as blood stains on his wearing apparels and nail clippings.
Relying on the circumstantial evidence the Trial Court convicted him under Sections 302 and 376 and sentenced him to death for the offence of murder and seven years rigorous imprisonment for the offence of rape.
The High Court confirmed the conviction and the sentence awarded by the Trial Court.
In appeal to this court it was contended on behalf of the appellant that the circumstantial evidence is wholly insufficient to bring home the guilt of the accused.
Allowing the appeal, this Court, HELD: 1.
The circumstantial evidence in order to sustain the conviction must satisfy three conditions; (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (ii) those circumstances should be of a definite tendency nerringly pointing towards the guilt of the accused; (iii) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else, and it should also be incapable of explanation on any other hypothesis than that of the guilt of the accused [303E F].
299 Hanumant and Anr.v.
The State of Madhya Pradesh, ; Reg vs Hodfe, [1838] 2 Lew.227; Dharam Das Wadhwani vs State of Uttar Pradesh, and Jagta vs State of Haryana, ; , referred to.
2.In cases depending largely upon circumstantial evidence there is always a danger that the conjecture or suspicion may take the place of legal proof and such suspicion however so strong cannot be allowed to take the place of proof.
The Court has to be watchful and ensure that conjectures and suspicions do not take the place of legal proof for sometimes unconsciously it may happen to be a short step between moral certainty and the legal proof.
At times it can be case of 'may be true.
But there is a long mental distance between 'may be true ' and 'must be true ' and the same divides conjectures from sure conclusions.
The Court must satisfy itself that the various circumstances in the chain of evidence should be established clearly and that the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused.
[304 G, 309E F] 3.In the instant case the circumstance that the deceased was last seen in the company of the accused is not established beyond reasonable doubt.
This circumstance was not mentioned in the Inquest Report prepared by the Investigating Officer.
Further the statement of the parents of the deceased that the accused took the deceased girl by itself is not enough to conclude that the deceased was last seen in the company of accused because even according to them on being inquired the accused told them that he had sent the girl back in a truck.
[308C, 305F] 3.1 The prosecution has not conclusively proved the crucial circumstance of the recovery of the dead body of the deceased girl at the instance of the accused.
No Panchnama was prepared for such a discovery under Section 27 of the Evidence Act and there is no mention in the Inquest Report as to how the body was discovered.
On the other hand there is any amount of doubt and suspicion about the accused having shown the place of occurrence.
Once it is held that the crucial circumstances namely the discovery of the body at the instance of the accused is not established, than the other circumstance are hardly sufficient to establish the guilt of the accused.
[308B C D, 306B, 307C] 3.2 The explanation given by the accused that he sent the girl back to the village in a truck cannot be held to be not plausible and therefore false because it is not uncommon in villages for children to go about the fields and walk short distance while coming back to the village.
[308E] 300 3.3 The prosecution has also not established that the accused had an intercourse on the day of the occurrence.
When the doctor who examined the accused stated that he could not find any sign of sexual intercourse atleast within one hour of his examination then it is only a matter of conjectures as to when the accused had any intercourse.
The presence of blood in the nail clippings and on the underpant does not also incriminate and do not connect the accused in any manner with the alleged offences.
The accused also had given an explanation namely that his gums were bleeding and in wiping out the same he got these blood stains.
Even otherwise this circumstance coupled with the circumstance of last seen in the company of the accused would ;not amount to legal proof of the guilt particularly when the crucial circumstance namely that the accused showed the dead body is held to be not established.
When such a main link goes, the chain gets snapped and the other circumstances cannot in any manner establish the guilt of the accused beyond all reasonable doubts.
Therefore there is a reasonable doubt about the guilt of the accused and the benefit of the same should go to him.
Accordingly the conviction and sentence of the accused is set aside.
[309B C, F G]