judgement:
N: Criminal Appeal No. 429 of 1980 From the Judgment and order dated the 21st December, 1979 of the High Court of Bombay in Criminal Appeal No. 467 of 1975.
M.N. Sharma for the Appellants.
(Amicus Curiae) J. section Akartey and M.N. Shroff for the Respondent.
The Judgment of the Court was delivered by VENKATARAMIAH J.
This Criminal Appeal under section 2 of the (Act No. 28 of 1970) is filed by two appellants Ramji Surjya Padvi and Bhikji Surjya Padvi accused Nos. 2 and 4 in Sessions Case No. 102 of 1974 on the file of the Additional Sessions Judge, Dhulia against the judgment of the High Court of Bombay in Criminal Appeal No. 467 of 1975 by which it reversed the judgment of acquittal passed by the Sessions Court on a charge under section 302/34 of the Indian Penal Code and imposed the sentence of rigorous imprisonment for life on each of them after holding them guilty of the charge under section 302/34 of the Indian Penal Code.
The facts of the case are these: Damji (accused No. 1), Ramji (accused No. 2) and Bhikji (accused No. 4) are the sons of Surjya Tulya Padvi (accused No. 3).
Accused Nos.
I to 4 are residents of a village called Veri in taluka Akkalkuwa.
The said village was by the side of a river called Mothi Nadi.
In the month of March, 1974, one Prabhat Singh (the deceased) a resident of Mojapada which is a hamlet of Bhagdari village within the limits of Dhadgaon police station had grown watermelons on a portion of the bed of the Mothi Nadi river near the village, Veri.
The distance between the place where watermelons had been grown by the deceased and his village was about two miles.
It is the case of the prosecution that during the last week of March, 1974, the deceased Prabhat Singh and his wife, Surjabhai (P.W. 2) were staying in a hut which they had constructed near the place where they had grown watermelons in order to keep watch over the watermelon crop.
They used to cook their food in the hut.
On March 26, 1974 at about 9.00 P.M. when Prabhat Singh was Lying on a cot inside the hut, Surjabai was sitting outside near an agiti in which she had kept fire and was warming 271 herself.
It is the case of the prosecution that at that time, the four accused persons referred to above came there and when they were questioned by Surjabai, they told that they had come to smoke tobacco.
At that time accused No. 2, Ramji was armed with an axe.
The accused did not, however, stay there for the purpose of smoking but suddenly entered the hut where accused Nos. 1, 3 and 4, Damji, Surjya and Bhikji caught hold of Prabhat Singh and Ramji (accused No. 2) gave a number of blows with an axe on the head, face and neck of Prabhat Singh.
Thereafter they ran away.
Surjabai out of fear went near a big stone in a nearby hillock and concealed herself behind it.
She continued it sit there for some time and on returning to the scene of occurrence she found that her husband had died.
Thereafter she went to her village in the early hours of March 27, 1974 and narrated the incident to her daughter in law Bharatibai (P.W. 3) in the presence of two of her servants Bapu and Arshya who have not been examined in the case.
It is stated that she sent another servant of her 's Bamanya (P.W. 8) to go to a village called Nala gavi where her son, Ratan Singh (P.W. 1) had gone on the previous day to fetch him.
She thereafter sent for Gumba (P.W. 5) who was formerly the Police Patil of her village and narrated before him the incident in which her husband had been killed.
It is stated that she mentioned the names of the four accused as the assailants to P.W. 3 Bharatibai as well as to Gumba (P.W. 5).
It is further stated that Surjabai, Gumba, Bharatibai and the two servants, Bapu and Arshya and some others went to the place where the dead body of Prabhat Singh was lying.
They also sent for Detka (P.W. 9) who was the Police Patil at that time.
Ratan Singh, according to the prosecution, reached the place at about 5.00 P.M. On being informed by Bamanya (P.W. 8) about the incident, Surjabai narrated the whole story again before Ratan Singh (P.W. 1).
Thereafter P.W. 1 went to the village Molgi where there was a police out post alongwith Detka (P.W. 9) and orally mentioned to the Head Constable by name Keval Bedse (P.W. 13) about the incident.
P.W. 13 prepared the out post 'khabar ' (Exh. 36) in the prescribed form and sent P.W. 1 Ratan Singh alongwith the out post khabar to the Police Station at Dhadgaon.
P.W. 13 thereafter left for the scene of occurrence to keep watch over the dead body.
Ratan Singh is stated to have hired a jeep and gone to Dhadgaon and reached that place at about 2.15 A.M. On March 28, 1974.
There he met the police Sub Inspector at the Police Station and made a statement (Exh. 10) before him which was recorded by him In that statement he narrated what he had heard from his mother at about 5.00 P.M. on 272 March 27, 1974.
In that statement, the names of the four accused are found as the assailants.
Thereafter the police Sub Inspector came to the spot on the morning of March 28, 1974 and carried on further investigation.
He arrested the accused Nos.
I to 3 on the evening of March 28, 1974 accused No. 4 on the next day and after completing the investigation, he filed the charge sheet against them for an offence punishable under section 302/34 of the Indian Penal Code.
The learned Sessions Judge who tried the case disbelieved the case of the prosecution that Surjabai was an eye witness of the occurrence and acquitted the accused.
Against the said judgment of acquittal, the State Government preferred an appeal before the High Court.
It would appear that during the pendency of the appeal, accuced No. 1, Damji and accused No. 3, Surjya had died.
This fact perhaps was not brought to the notice of the High Court.
Before the High Court, the accused were represented by an amicus curiae.
The High Court set aside the judgment of acquittal and convicted all the accused including accused No. 1 and accused No. 3, who had died earlier, under section 302/34 of the Indian Penal Code and imposed on each of them the sentence of imprisonment for life.
Against the judgment of the High Court, accused No. 2 and accused No. 4 preferred this appeal before this Court.
When the appeal came up for admission, by an order made by this Court on August 18, 1980, the appeal of Bhikji (accused No. 4) was dismissed.
The notice of appeal was issued only in so far as Ramji (accused No. 2) was concerned.
Shri M. N. Sharma who has appeared in this case as amicus curiae has raised among others.
two points before us (1) that the case of the prosecution was a concocted one and (2) that in any event since it was not possible to say that two opinions were not possible about the guilt of the accused, it was not open to the High Court to reverse the judgment of acquittal of the Sessions Court.
We shall first deal with the manner in which first information was given to the police in this case.
It is true that in the statement (Exh. 10) of Ratan Singh (P.W. 1) which is stated to have been recorded at 2.15 A.M.
On March 28, 1974 at the Dhadgaon Police Station we find the names of all the four accused and a brief description of the incident which is alleged to have been narrated by Surjabai (P.W. 2) at about 5.00 P.M.
On March 27, 1974 before Ratan Singh (P.W. 1).
What value should be attached to the contents 273 of this document depends on the evidence in the case.
According to the prosecution, the incident took place at about 9 P.M.
On March 26, 1974.
Surjabai (P.W. 2) is stated to be the sole witness of the crime.
She is stated to have disclosed all the particulars relating to the incident on the morning of March 27, 1974 to Bharatibai (P.W. 3) and some others as stated above.
Surjabai has stated in the course of her deposition that she had told the Police Patil that she wanted a complaint to be lodged, thereafter the Police Patil wrote something and that writing was taken by Ratan Singh (P.W. 1) to Molgi where the police out post was situated.
She has also stated that she had instructed the Police Patil and others that nobody should go to lodge a complaint till the arrival of her son, Ratan Singh (P.W. 1).
The writing referred to above which according to the events disclosed in the prosecution case is the first document containing the gist of the version of Surjabai regarding the incident.
That document is not forthcoming in the case.
Bharatibai.
(P.W. 3) has a different version to give about the lodging of the complaint.
She has stated in her cross examination: "My mother in law Surjabai had told Gumba, Police Patil that he could lodge complaint of murder.
This was stated to him at about breakfast time in the morning.
Immediately thereafter Police Patil Gumba had gone to lodge a complaint.
Van Singh Sarpanch and Tap Singh had gone alongwith Police Patil to lodge complaint.
They returned at about 12 Noon after filing complaint at Molgi".
This complaint cannot be the same which is referred to earlier because the earlier complaint according to P.W. 2 Surjabai was the one which was taken by Ratan Singh (P.W. 1) to Molgi.
The complaint referred to by P.W. 3 Bharatibai is a complaint which was prepared at about noon by Police Patil Gumba (P.W. 5) and lodged by him at Molgi at about 12.00 noon long before the arrival of Ratan Singh at the scene of occurrence.
This complaint is also not forthcoming.
Gumba (P.W, 5) who is a former Police Patil denies that Surjabai (P.W. 2) had told him to go and lodge a complaint.
He has stated that he had received information about the murder in the morning, he did not go to lodge a complaint as Detka (P.W. 9) was the Police Patil and that when Surjabai narrated before Police Patil Detka the particulars of the incident, he asked Police Patil Detka (P. W. 9).
that he should go to lodge a complaint.
This happened according to him at about 2 P.M.
On March 27, 1974.
P.W. 9 Detka says that he went to the place of occurrence at about 1.30 P.M.
On March 27, 1974 where the dead body was Lying and he stayed there awaiting the arrival of 274 Ratan Singh (P.W. 1) who reached that place by 5.00 P.M. and thereafter he and Ratan Singh went to Molgi police out post where the head constable prepared the occurrence report.
He says that he reached Molgi at about sun set time but the khabar report.
(Exh. 36) prepared by the head constable at Molgi shows that the khabar ' was given to him at 21 hours i.e. 9.00 P.M.
On March 27, 1974.
Ratan Singh (P.W. 1) who is stated to have given that khabar says that he reached Molgi at about 8.00 or 8.30 P.M. and gave the information contained in the khabar report.
The first information stated to have been recorded by the police under section 154 of the Criminal Procedure Code is stated to be the one taken down at the Police Station at Dhadgaon (Exh. 10) at 2.15 A.M.
On March 28, 1974.
A close examination of the above evidence shows that according to Surjabai (P.W. 2) there was a document prepared by Gumba (P.w. 5) in the morning of March 27, 1974.
containing the information given by her which was later on taken by Ratan Singh (P.W. 1).
Then according to Bharatibai (P.W. 3) there was a document which was prepared by Gumba at about 12.00 Noon which he took to Molgi and lodged it with the Molgi police out post.
According to P.W. 9 Police Patil Detka, the information was given at the police out post at about sun set time i.e. at about 6.30 P.M.
The khabar report itself shows that it was received at 9.00 P.M.
On March 27, 1974 and the first information is stated to have been recorded at 2.15 A.M.
On March 28, 1974.
In this case the prosecution have attempted in the course of the evidence to explain away the delay in giving the information to the police out post which was nearly 24 hours from the time at which the occurrence is stated to have taken place by stating that Surjabai (P W. 2) did not want such information to be lodged with the police until the arrival of Ratan Singh which, according to the prosecution, took place at 5 P.M.
On March 27, 1974.
The attempt of the prosecution to explain away the delay has failed in the instant case since we have several different versions about the lodging of the information with the police out post and the earlier versions of the crime said to have been given by Surjabai which were in writing appear to have been suppressed in this case.
This extraordinary.
delay in giving the first information to the police in the present case which has not been properly explained cannot but be viewed with suspician, 275 The motive for the crime is stated to be that the plot on which the deceased had grown watermelons was being used by accused No. 2 Ramji some years before the incident to grow onions and that there was a quarrel about 8 or 10 days prior to the incident between accused No. 2 and Ratan Singh (P.W. 1).
The land in question being a part of the river bed did not belong to accused No. 2 and he was not cultivating there for about 2 or 3 years before the incident.
The land was probably getting submerged during rainy season.
Accused No. 2 could not, therefore, be considered as being in possession of that plot when the deceased commenced cultivation.
There is also no evidence showing that accused No. 2 had raised any objection when watermelon seeds were actually planted.
In the circumstances, the motive suggested does not appear to be strong enough for the four accused joining together to commit the murder of the deceased.
While there could be no doubt about the homicidal character of the death of the deceased, the learned Sessions Judge who heard the evidence of Surjabai (P.W. 2) held that the details of the incident given by her were imaginary or improbable and, therefore, unbelievable.
Some of the inherent contradictions in her evidence are these: In her evidence she has stated that she was sitting outside the hut near a place where she had kept fire (agiti) at about 9.00 P.M. and she saw from there all that took place inside the hut when her husband was assaulted by the accused.
She has even given the role played by each of them.
She has stated that while accused Nos. 1, 3 and 4 held the deceased, accused No. 2 assaulted him repeatedly with the axe he had brought.
The sketch of the scene of occurrence (Exh.
P. 4) shows that the fire place was to the South of the hut but the hut had an opening towards the East only.
She could not, therefore, have seen the actual assualt from the place where she is stated to be sitting.
It is also noteworthy that the only source of light at the time of the incident was the fire said to have been ignited by Surjabai (P.W. 2).
It is difficult to believe that she could in that light identify the accused, the arms they were carrying and the clothes they were wearing about which she has tried to give detailed description in her evidence.
Her answer that she had put more fuel in order to have more light so that she could identify the accused properly appears to be bit artificial.
She, however, has admitted that it had become dark even when they were taking food earlier.
It is also strange that she did not try to resist the attack on her husband.
It is further seen that in Exh. 10, the first information, 276 it is stated that she had told Ratan Singh (P.W. 1) that at the time of the incident she was chit chatting with her husband but in her deposition she has stated that the deceased had fallen asleep at the time of the incident.
The doctor (P.W. 6) has stated that the cause of the death was due to severe bleeding due to the cutting of the Light carotid artery, It is also in evidence that the blood of .
the deceased had been splashed all round, but it is stated by Surjabai (P.W. 2) that no even a single stain of blood was found on her clothes.
Ordinarily on such an occasion a wife whose husband is murdered would come into close contact with the body of her husband and her clothes would become blood stained.
In the instant case there was no means of avoiding such stains also as there was darkness all round where the incident is stated to have taken place.
The absence of blood stains on the clothes of Surjabai (P.W. 2) suggests that she could not have been present at the scene at the time of occurrence.
The statement found in Exh.
P. 10 and also in her deposition that she was hiding on a hillock during that night out of fear is contradicted by the evidence of Bharatibai (P.W. 3) that Surjabai (P.W. 2) had told her that she was in the hut throughout till she returned home.
We may also not here that according to Ratan Singh (P.W. 1) the son of the deceased they had engaged about seven 'annual ' servants to work on their fields and one of them was Bamanya (P.W. 8) who had gone to fetch him from Nalagavi village where he had gone to see his son who was studying in Ashram School.
None of the servants had been asked to stay at the hut alongwith the deceased but only Surjabai (P.W. 2) is stated to be present at the scene of occurrence.
The distance between the village of Surjabai (P.W. 2) and the scene of occurrence was about 1 1/2 miles according to the evidence of Ratan Singh (P.W. 1).
If that was so, it is not known why Surjabai did not run to the village immediately after the incident took place, instead of running towards the hillock and returning to the village next morning.
There is no doubt that even where there is only a sole eye witness of a crime, a conviction may be recorded against the accused concerned provided the Court which hears such witness regards him as honest and truthful.
But prudence requires that some corroboration should be sought from the other prosecution evidence in support of the testimony of a solitary witness particularly where such witness also happens to be closely related to the deceased and the accused are those against whom some motive or illwill is suggested.
Now in the instant case a careful analysis of the evidence relating to the 277 inordinate delay involved in the giving of the first information to the police and the other inherent inconsistencies in the evidence of the sole eye witness i. e. Surjabai (P. W.2) shows that her evidence cannot be considered as sufficient to find the accused guity.
The first information (Exh. P. 10) itself appears to be one prepared after some deliberation.
The role attributed to Gumba (P.W.5) the former Police Patil in the prosecution evidence compels the Court to look for corroboration from the other prosecution evidence before accepting the evidence of Surjabai (P.W. 2).
The accused Nos. 1 to 3 were arrested on March 28, 1974.
The axe and clothes recovered on March 28, 1974 itself on the basis of the statement of accused No. 2 and of accused No. 3 had no blood stains according to the report of the Assisstant Chemical Analyser to Government (Exh. 39).
The house of accused No. 1 was not searched on that day even though there was no impediment for doing so.
His house was searched on the next day when a dhoti said to contain some blood stain was found with him.
The delay in the recovery of this dhoti was considered by the learned Sessions Judge as affecting the evidentiary value of the said recovery.
Similarly the blood stains said to be on a banian seized from the person of accused No. 4 when he was arrested on March 29, 1974 was considered by the Sessions Judge as not possessing any corroborative value again on account of the interval between the time of occurrence and the time of recovery.
The learned Sessions Judge felt that the evidence of Surjabai could not be accepted without any further corroboration.
The learned Sessions Judge also felt that the evidence of the other prosecution witnesses such as Gumba (P.W. 5), Police Patil Detka (P.W.9) and Ratan Singh (P.W.1) could not be safely relied on as furnishing corroboration to the statement of Surjabai (P.W.2) in view of the several circumstances narrated in his judgment.
The evidence of motive also was found to be discrepant by the learned Sessions Judge.
According y he acquitted all the accused.
The High Court which was hearing an appeal against a judgment of acquittal has not bestowed due care on the principles governing its jurisdiction.
While there is no doubt that the jurisdiction of an appellate court is coextensive with that of the trial court in the case of an appeal against a judgment of acquittal it cannot totally brush aside the appreciation of the evidence by the trial court, The reasons for reversing a judgment of acquittal should be cogent and if two views are reasonably possible, the appellate court should be 278 slow in interfering with the judgment of the trial court, even if it is possible for it to take a different view after a process of laborious reasoning.
We do not find a proper discussion in the judgment of the High Court about the various versions in the prosecution evidence about the giving of the first information to the police, which we have pointed out above, in their true perspective.
The High Court has over simplified this issue and has observed: "In this case, bearing in mind the place where the incident occurred, we find no unreasonable delay in reporting the incident to the police out post at Molgi and subsequently in giving the complaint at the Dhadgaon Police Station".
It may be noted that the distance between Molgi and the village of the deceased was hardly three miles but the 'khabar ' reached the Molgi police out post, according to the prosecution, nearly 24 hours after the incident.
The reason given by the prosecution for this inordinate delay is hardly convincing.
This important aspect of the case has been overlooked by the High Court.
There is one other circumstance to which reference may be made here.
The doctor (P.W.6) who had conducted the post mortem examinat;on of the body of the deceased gave evidence stating that the death of the deceased could not have taken place soon after the dinner as he did not find any food particles in the stomach or the small intestines of the deceased.
He opined that by the time of the death of the deceased at least four hours must have passed after his taking food.
There being nothing highly incongruous about this statement, the learned Sessions Judge had observed in his judgment that the evidence of Surjabai (P.W. 2) that she had served food for the deceased at about 8.30 P.M. could not be accepted as probable as the fatal assault had taken place at about 9.00 P.M.
But the High Court has severely criticised the evidence of this doctor observing that: "our impression is that he hardiy knows what he is talking about and what is extraordinary is that the less he knows the more assertive he is.
No reliance what so ever can be placed on such evidence and no conclusion can be drawn either adverse or in favour of the prosecution from the opinion evidence of such a poorly qualified medical witness".
This comment by the High Court on the evidence of the doctor appears to be more severe than what it should have been particularly when his opinion that 'it was possible that the death in this particular case was instantaneous ' is not seriously challenged.
In the circumstances of this case, the scope for exaggeration on the part of the prosecution witnesses involving innocent persons cannot also be ruled out.
As we have pointed out earlier, the High Court has missed some 279 important discrepancies in the prosecution case.
Bearing in mind the well settled principles governing a case of this nature we feel that it would be unsafe to act upon the evidence of Surjabai (P.W.2) and convict the accused.
In the circumstances, the High Court was in error in upsetting the verdict of acquittal recorded by the trial court.
We, therefore, hold that the appeal of Ramji Surjya Padvi accused No. 2 (appellant No. 1) should be allowed.
Having reached the above conclusion, we feel that ends of justice require that we should suo motu recall the order dismissing the appeal of Bhikji Surjya Padvi accused No. 4 (appellant No. 2) in this appeal and acquit him also.
We accordingly review the order dated August 18, 1980 of this Court dismissing his appeal and restore his appeal to the file.
It may be mentioned here that the learned counsel for the State fairly conceded that if the appeal of accused No. 2 is to be allowed, accused No. 4 should also be released.
In the result we allow this appeal, set aside the conviction of accused Nos. 2 and 4 (appellants Nos. 1 and 2) Ramjl Surijya Padvi and Bhikji Surjya Padvi under section 302/34 of the Indian Penal Code and the sentences of imprisonment for life imposed on them by the High Court and restore the judgment of acquittal passed by the trial court.
Accused No. 2 and accused No. 4, the appellants herein shall be released forthwith H.S.K. Appeal allowed.

summary:
The appellants were charged under section 302134 I.P.C. for murdering the husband of P.W. 2 when he was Lying on a cot inside a hut and the P.W. 2 was sitting outside.
The trial court disbelieved the case of prosecution that P.W. 2 was an eye witness of the occurrence.
The trial court held that the details of the incident given by P.W. 2 were imaginary or improbable and, therefore, unbelievable; there was several contradictions in her evidence which could not be accepted without any further corroboration and the evidence of certain other prosecution witnesses could not be safely relied an as furnishing corroboration to the statement of P.W. 2 in view of the several instances narrated in its judgment.
The evidence of the doctor who conducted postmortem examination of the body of the deceased was that the death of the deceased could not have taken place soon after the dinner as he did not find any food particles in the stomach and small intestines of the deceased The trial court observed that the evidence of P.W. 2 that she had served food for the deceased at about 8.30 P.M. could not be accepted as probable as the fatal assault had taken place at about 9 P.M.
There was a delay of nearly 24 hours in giving the information to the police out post.
The evidence for motive also was found to be discrepant .
Accordingly the trial court acquitted the appellants.
On appeal the High Court reversed the judgment of acquittal, convicted the appellants and sentenced them to undergo rigorous imprisonment for life.
The High Court severely criticised the evidence of the doctor observing that, "our impression is that he hardly knows what he Is talking about and what is extraordinary is that the less he knows the more assertive he is, No reliance what so ever can be placed on such evidence and no conclusion can be drawn either adverse or in favour of the prosecution from the opinion evidence of such a poorly qualified medical witness".
Allowing the appeal, 269 ^ HELD: There is no doubt that even where there is only a sole eye witness of a crime, a conviction may be recorded against the accused concerned A provided the Court which hears such witness regards him as honest and truthful.
But prudence requires that some corroboration should be sought from the other prosecution evidence in support of the testimony of a solitary witness particularly where such witness also happens to be closely related to the deceased and the accused are those against whom some motive or ill will is suggested.
[276 G H] In the instant case a careful analysis of the evidence relating to the inordinate delay involved in the giving of the first information to the police and the other inherent inconsistencies in the evidence of the sole eye witness shows that her evidence cannot be considered as sufficient to find the accused guilty.
The first information (Exh. P. 10) itself appears to be one prepared after some deliberation.
The motive suggested by the prosecution does not appear to be strong enough for the accused joining together to commit the murder of the deceased [276 H, 277 A, 275 C] While there is no doubt that the jurisdiction of an appellate court is coextensive with that of the trial court, in the case of an appeal against a judgment of acquittal it cannot totally brush aside the appreciation of the evidence by the trial court.
The reasons for reversing a judgment of acquittal D should be cogent and if two views are reasonably possible, the appellate court should be slow in interfering with the judgment of the trial court, even if it is possible for it to take a different view after a process of laborious reasoning.
[277 G H, 278 A] In the instant case the High Court has not bestowed due care or, the principles governing its jurisdiction.
There is no proper discussion ill the judgment of the High Court about the various versions in the prosecution evidence about the giving of the first information to the police in their true perspective.
The High Court has over simplified this issue and has observed.
"In this case, bearing in mind the place where the incident occurred, we find no unreasonable delay in reporting the incident to the police out post at Molgi and subsequently in giving the complaint at the Dhadgaon Police Station".
It may be noted that the distance between Molgi and the village of the deceased was hardly three miles but the 'khabar ' reached the Molgi police out post, according to the prosecution nearly 24 hours after the incident.
The reason given by the prosecution for this inordinate delay, that P.W. 2 did not want the information to be lodged with the police until the arrival of her son P.W. I, is hardly convincing since there are several different versions about the lodging of the information with the police out post and the earlier versions of the crime said to have been given by P.W. 2 which were in writing appear to have been suppressed.
This important aspect of the case has been overlooked by the High Court.
It would be unsafe to act upon the evidence of P.W. 2 and convict the appellants.
[277 G, 278 A C, 274 F G, 279 A] The comment by the High Court on the evidence of the doctor appears to be more severe than what it should have been particularly when his opinion that 'it was possible that the death in this particular case was instantaneous, is not seriously challenged.
[278 G Hl 270


judgement:
Civil Appeal No. 174 of 1981.
Appeal by Special leave from the Judgment and order dated the 4th September, 1980 of the Bombay High Court in Writ Petition No. 2155 of 1979.
U.R. Lalit, C.B. Singh and P.H. Parekh for the Appellants.
Jitendra Sharma for the Respondent.
The Judgment of the Court was delivered by DESAI, J.
Land bearing Survey No. 1052 admeasuring 16 acres situated within the revenue limits of Village Sonai Taluka Nawasa Distt.
Ahmendnagar, belonged to Tarachand Chopra Janardhan, the father of the respondent was admittedly the tenant of this land on April 1, of the Bombay Tenancy and Agricultural Lands Act, 1948 as amended from time to time provided that on the 1st day of April, 1957 styled as the tillers ' day every tenant shall subject to other provisions of the section and the provisions of the next succeeding sections be deemed to have purchased from his landlord, free from all encumbrances subsisting thereon on the same date the land held by him as a tenant if other conditions of the section are satisfied.
Thus by operation of law, Janardhan, who was the tenant of the land on the tillers ' day became the deemed purchaser thereof.
Landlord Tarachand died on August 12, 1959.
Before his death, landlord Tarachand had executed a will and bequeathed the suit land to Ashoklal Gugale who was petitioner No. 5 before the High Court Acting upon the will of Tarachand, Ashoklal got his 241 name mutated in the revenue record in respect of suit land in his favour as owner.
On the date of mutation, Ashoklal was a minor.
A Sec.
32 G imposes a statutory duty on the Agricultural l ands Tribunal ( 'Tribunal ' for short) to commence enquiry for determining the price of the land which is the subject matter of compulsory purchase.
The Tribunal is required to issue notice to (a) all tenants who u/s 32 are deemed to have purchased the lands (b) all landlords of such lands and (c) all other persons interested therein to appear before it on the date specified in the notice.
Pursuant to such notice when the parties appeared before the Tribunal it was claimed on behalf of landlord that Ashoklal, the recorded owner was a minor and therefore the sale was postponed u/s 32 F. The Tribunal failed to exercise jurisdiction in not noticing the obvious fact that the relevant date on which compulsory sale takes place is April 1, 1957 and on that date Tarachand Chopra the landlord was the recorded owner and he was under no disability as envisaged by sec.
32 F and therefore the sale had become effective and could not be postponed u/s 32 F.
However, the Tribunal failed to exercise its jurisdiction by mis stating an obvious irrelevant fact that as recorded owner was a minor, compulsory sale was postponed as envisaged by sec.
32 F. It appears that the Tribunal again commenced proceedings in the year 1967 u/s 32 G and concluded the proceedings by its order dated July 13, 1967 repeating the jurisdictional errors and thereby failed to exercise jurisdiction vested in it.
In the meantime, minor landlord through his next friend commenced proceedings in Case No. 36 of 1967 in the court of Tenancy Avail Karkoon having jurisdiction in the area for recovery of possession from tenant Janardhan who had become a deemed purchaser, u/s 14 read with sec.
29 of the Tenancy Act Sec.
14 enables the landlord to recover possession if tenant commits default in payment of rent for certain number of years.
The Tenancy Avail Karkoon entertained the petition which it had no jurisdiction because there was no subsisting relationship of landlord and tenant between Ashoklal and Janardhan as Janardhan had already become deemed purchaser on April 1, 1957.
However, the Tenancy Aval Karkoon taking note of the earlier decisions of the Tribunal holding that the date of compulsory sale was postponed directed possession to be handed over to the landlord holding that the tenant had committed default in payment of rent.
Mr. Lalit, learned counsel for the appellant at this stage pointed out that in the proceeding u/s 14 read with sec.
29 of the Tenancy Act, the tenant Janardan had made a Statement on October 5, 1967 242 that he had no objection to handing over possession of the land to A the land to the landlord as he was old and could not cultivate the land personally.
On the same day, surprisingly the Tenancy Aval Karkoon also recorded the statement of present respondent that in the lifetime of his father Janardhan he had no title to the land involved in the dispute.
It appears that the Tenancy Aval Karkoon made the order dated oct. 6, 1967 evicting Janardhan from the land on the footing that he was a tenant liable to pay rent and had committed defaults.
This wholly null and void order enabled the minor landlord to sell the land by a registered deed on Nov. 13, 1967 to the petitioner No. 1 and one Haribhav and the latter in turn transferred his interest in favour of other petitioners, Misled by the two orders of the Tribunal holding that the sale was postponed Janardhan served a notice on oct. 6, 1971 as envisaged by sec.
32 F that as the landlord has attained majority he is entitled to purchase the land and that the price of land be determined.
Presumably, pursuant to this notice, the Tribunal commenced proceedings under sections 32 G and 32 F of the Tenancy Act for determining the purchase price.
It was contended on behalf of the petitioners transferees from Ashoklal before the Tribunal that as Janardhan has already handed over possession to Ashoklal he had no subsisting interest in the land and therefore he had no right to purchase the land u/s 32 F and that the proceedings be dropped.
This contention found favour with the Tribunal which overlooked the legal position that Janardhan had become the deemed purchaser on April 1, 1957.
Janardhan died on November 29, 1976 leaving respondent his son as the sole heir.
After the death of Janardhan an enquiry was commenced to ascertain whether Janardhan the deceased tenant had already become the deemed purchaser on April 1, 1957 and that all the subsequent proceedings were Abington void.
There were some proceedings in between u/s 84 which are hardly relevant The Tribunal went into the matter in depth, examined all proviso orders and finally reached an affirmative conclusion that on April 1, 1957 Tarachand was the recorded landlord and being under no disability and Janardhan being tenant of the land, by operation of law, Janardhan become the deemed purchaser and all subsequent proceedings were null, void and non est.
The Tribunal accordingly determined the purchase price.
The present petitioners after unsuccessfully appealing to the Assistant Collector and the Maharashtra Revenue Tribunal u/s 76 of the Tenancy Act, reached the High Court under Article 2 27, 243 A parallel proceeding was initiated by the respondent u/s 84 of the Tenancy Act for recovery of possession which was illegally taken from him.
The Assistant Collector held that occupation of the suit land by the petitioners was contrary to the provisions of law as Janardhan had already become the deemed purchaser and no title could be acquired by the petitioners from the sale by Ashoklal and therefore the respondent is entitled to recover possession.
The direction was issued to hared over possession to the respondent.
This order was confirmed by the Maharashtra Revenue Tribunal in Revision as per its judgment dated July 16, 1973.
Two petitions were moved by transferee petitioners in the High Court of Bombay against two orders one of the Maharashtra Revenue Tribunal, in a proceeding u/s 32 G and another in a proceeding u/s 84 against the present respondent.
The learned Single Judge of the High Court by a common judgment dismissed bottle the petitions of the petitioners holding that as Janardhan had become the deemed purchaser on the tillers ' day i. e. April 1, 1957 all subsequent proceedings u/s 32 F were ab initio void and without jurisdiction and nullity is the eyes of law.
The High Court also held that the petitioners acquired no title under the purported sale by Ashoklal because Ashoklal had no title to the land have receiving the purchase price from Janardhan or his heir as determined u/s 32 G.
The High Court accordingly dismissed both the petitions with costs.
Hence these two appeals by special leave.
Mr. U.R. Lalit, learned counsel appearing for the appellants strenuously urged that the orders made by the Tribunal u/s 32 F and by the Tenancy Aval Karkoon in a proceeding u/s 14 read with sec.
29 of the Tenancy Act and the statement of Janardhan and the respondent would clearly show that these orders were at best erroneous but not void and cannot be ignored as nullity in subsequent proceedings.
The Tenancy Act was comprehensively amended by Amending Act IS of 1957.
The amendment brought in a revolutionary measure of agrarian reforms making tiller of the soil the owner of the land.
This was done to achieve the object of removing all intermediaries between tillers of the soil and the State.
32 provides that by mere operation of law, every tenant of agricultural land situated in the area to which the Act applies shall become by the operation of law, the owner thereof.
He is declared to be a deemed purchaser without anything more on his part.
A Constitution Bench of this 244 Court in Sri Ram Narain Medhi vs The State of Bombay(1) held that: "the title of the landlord to the land passes immediately to the tenant on the tillers ' day and there is a completed purchase or sale thereof as between the landlord and the tenant.
The title of the land which was vested originally in the landlord passes to the tenant on the tillers ' day and this title is defeasible only in the event of the tenant failing to appear or making a statement that he is not willing to purchase the land or commit default in payment of the price thereto as determined by the Tribunal.
" Therefore, it is unquestionably established that on the tillers ' day, the landlord 's interest in the land gets extinguished and simultaneously by a statutory sale without anything more by the parties, the extinguished title of the landlord is kindled or created in the tenant.
That very moment landlord tenant relationship as understood in common law or Transfer of Property Act comes to an end.
The link and chain is broken.
The absent non cultivating landlord ceases to have that ownership element of the land and the cultivating tenant, the tiller of the soil becomes the owner thereof This is unquestionable.
The landlord from the date of statutory sale is only entitled to receive the purchase price as determined by the Tribunal u/s 32 G.
In other words, the landlord ceases to be landlord and the tenant becomes the owner of the land and comes in direct contact with the State.
Without any act of transfer inter vivos the title of the landlord is extinguished and is created simultaneously in the tenant making the tenant the deemed purchaser.
It is an admitted position that on April 1, 1957 Tarachand was the landlord and Janardhan was the tenant.
Tarachand landlord was under no disability as envisaged by sec. 32 F. Therefore on April 1, 1957 Janardhan became deemed purchaser.
and Mr. Lalit could not controvert this position.
If Janardhan became the deemed purchaser on tillers ' day, the relationship of landlord and tenant between Tarachand and Janardhan came to be extinguished and no right could be claimed either by Tarachand or anyone claiming through him such as Ashoklal or the present purchasers on the footing that they are the 245 Owners of the land on or after April 1, 1957.
This basic fact is A incontrovertible.
It may be mentioned that sec.
32 F has no application to the facts of this case.
Section 32 F postponed the date of compulsory purchase by the tenant where the landlord is a minor or a widow or a person subject to mental or physical disability on the tillers ' day.
32 F bas an overriding effect over section 32 as it opens with a non obstante clause.
The combined effect of sec.
32 F and 32 would show that where the landlord is under no disability as envisaged by sec.
32 F the tenant of such landlord by operation of law would become the deemed purchaser but where the landlord is of a class or category as set out in sec.
32 F such as a minor, a widow or a person subject to any mental or physical disability, the date of compulsory sale would be postponed as therein provided.
Now, if Tarachand, the landlord was under no disability and he was alive on April 1, 1957 and he was the owner, his tenant Janardhan became the deemed purchaser.
This conclusion, in our opinion, is unassailable.
If Janardhan became the owner on April 1, 1957 all subsequent proceedings in which the Tribunal held that the date of purchase was postponed because the recorded owner Ashoklal was a minor were without jurisdiction.
The Tribunal had absolutely no jurisdiction to proceed on the footing that the date of sale was postponed.
It is neither an incorrect order nor an erroneous order as was sought to be made out but Tribunal lacked the jurisdiction to proceed section 32 F because when the proceedings section 32 F were commenced, Janardhan had long since become the deemed purchaser.
Therefore all sub sequent proceedings were an initio void and without jurisdiction and the High Court was right in holding that orders passed therein were nullity.
The attempt to overcome this position by urging that the order was erroneous was rightly repelled by the High Court holding that the orders were null and void, proceeding on an erroneous assumption of jurisdictional fact that the recorded owner was a minor on the tillers day.
When a Tribunal of limited jurisdiction clutches at a jurisdiction by ignoring a statutory provision and its consequences in law on the status of parties or by a decision wholly unwarranted, with regard to the jurisdictional fact, its decision is a nullity and can be set up in collateral proceeding.
The Tribunal clutched at a jurisdiction not vested in it and in such a situation it cannot be 246 disputed that the Tribunal lacked the jurisdiction to entertain any A proceeding purporting to be between landlord and tenant on the erroneous assumption that tenant was still a tenant though he had long since become the deemed purchaser.
The tenant has ceased to be a tenant much prior to the orders passed by the Tribunal on April 24, 1961 and July 13, 1967 holding that the date of compulsory purchase was postponed.
The compulsory purchase by the operation of law had taken place as early as April 1, 1957 and that legal position cannot be wished away.
Mr. Lalit, however, contended that the statement of Janardhan in the proceeding u/s 14 read with sec.
29 of the Tenancy Act stating that he had become old and was unable to cultivate the land and he is willing to hand over possession would estop the respondent from contending to the contrary.
It was further urged that respondent himself was present on the date on which Janardhan gave his statement on October S, 1967 and he concurred with the statement of Janardhan.
We are not unaware of the landed gentry exercising such influence over the tenants that in the absence of legal literacy they may make any statement contrary to their legally protected interest.
A measure of agrarian reform cannot be permitted to be defeated by such devious means of the landlords.
However apart from ignorance of his position assuming that Janardhan relinquished his right as tenant, landlord Ashoklal was nontheless not entitled to recover possession because, when Janardhan, the deemed purchaser agreed to hand over possession subject to the provision of sec.
IS, the land would be at the disposal of Collector under sec.
32 P. Landlord even in such a situation is not entitled to be restored to possession without bringing his case under sec.
15 which appears not to be the case of landlord.
And look at the bona fides of the landlord.
Ashoklal as soon as he managed to obtain wholly void order for possession, managed to transfer the lands to the petitioners within a span of less than 2 weeks.
It would thus appear that even Ashoklal and his next friend must be presumably aware of the void character of the order and therefore posthaste with a view to thwarting any further legal proceeding and confuse Janardhan, Ashoklal through his next friend managed to transfer the land to the petitioners and let the petitioners fight the deemed purchaser.
A measure whereby tenant was to be made the owner of the land cannot be permitted to be defeated by such jugglery of orders by low level revenue officers who hardly knew what they were doing.
Look at the lack of knowledge of law of the Tribunal.
While overlooking the relevant date, and it took into account the subsequent date which was wholly irrelevant and impermissible.
Though 247 landlord Tarachand had died much after 1.4.1957 in proceeding u/s 32 G minor Ashoklal whose name was mutated on death of A Tarachand, the authority declared the sale having been postponed even though statute had already operated and sale taken place.
Can a statutory Tribunal charged with a duty to implement the law betray such total lack of knowledge so as to be counter productive ? Same is the case with the decision of Tenancy Aval Karkoon.
A proceeding u/s 14 read with sec.
29 of the Tenancy Act, started on the footing that the relationship of landlord and tenant subsisted should have been thrown out at the threshold because a decade back the then tenant Janardhan had become the deemed purchaser.
Therefore these orders were wholly null and void and hence non est and cannot thwart subsequent proceedings.
The nullity can be set up in subsequent proceedings.
Janardhan was deprived of his possession by an order which had no legal sanction.
He was deprived of possession on the footing that he was a tenant ignoring and overlooking the statutory event that he had become the owner.
Even when the Legislature passed such a revolutionary measure its knowledge was not transmitted to the persons for whose benefit the measure was enacted and there was no awakening to one 's right.
Undoubtedly, a communication gap and for want of legal literacy Janardhan was taken on a joy ride and was illegally made to part with possession.
Subsequently everyone realised the blunder committed by them and therefore when the proceedings started on the notice given by Janardhan, the Tribunal determined the price.
Appeal of the petitioners to Assistant Collector failed, revision petition to the Maharashtra Revenue Tribunal at the instance of the petitioners failed so also the writ petition u/s 227 of the petitioners failed.
All authorities concurrently held that Janardhan had become the owner and the Tribunal was right in determining the price.
The authority u/s 84 held that petitioners were not entitled to retain possession as their occupation was contrary to the provisions of the Tenancy Act and they had acquired no title to the land by the purported sale by Ashoklal.
The direction for restoring possession to Janardhan was rightly given.
A revision petition and a writ petition to the High Court at the instance of the petitioners failed.
248 We find that the High Court was right in rejecting both the A petitions.
These were all the contentions in this appeal and as we find no merit in it, the appeal fails and is dismissed with costs.
When this Court issued notice, appellants were directed to deposit Rs. 1500 for costs of respondent.
Respondent came here in rags and urged that he was too poor to engage a counsel.
We therefore direct that the amount of Rs. 1500 deposited in this Court by appellants be paid to respondent.
We record our appreciation of assistance to the Court by Mr. Jitendra Sharma who appeared amicus curie at the request made by the Court while granting special leave.
He should withdraw the amount and take all steps to pay the same to the respondent.
S.R. Appeal dismissed.

dataset_name: IN-Abs

summary:
Section 32 of the Bombay Tenancy and Agricultural Lands Act, 1948, as amended from time to time provided that on the 1st day of April, 1957 styled as the "tiller 's day" every tenant shall subject to other provisions of the next succeeding sections be deemed to have purchased from his landlord free from all encumbrance subsisting thereon, on the said date the land held by him as a tenant if other conditions of the section are satisfied.
By operation of this law, one Janardhan, the father of the respondent, became the "deemed purchaser" effective from April 1,1957, of the land bearing survey No. 1052 and F measuring 16 acres situated within the revenue limits of village Sonai Taluka Nawasa, District Ahmednagar which belonged to Tarachand Chopra.
Subsequent to this admitted fact, several incidents took place which have led to the present appeal raising the question of the legal effect of the several steps taken by different persons; ignorant of the factum of Janardhan having become the deemed purchaser".
They are (a) Landlord Tarachand died on August 12,1959, after two and a quarter years after Janardhan became the statutory purchaser; (ii) Tarachand executed a will, before his death, bequeathing the suit land to Ashoklal Gugale, a minor; (iii) the revenue authorities, who must be aware of the provisions of the Act, wrongly mutated the name of Ashoklal in the revenue records as the landlord in terms of the will; (iv) in spite of the mandatory duty imposed upon the Agricultural Lands Tribunal, under Section 32G, to issue notice to all tenants who under section 32 are deemed to have purchased the lands, all landlords of such lands and all other persons interested to appear before 238 it for the determination of the price of the land which is the subject matter of compulsory purchase, strangely accepted the plea for the postponement of the inquiry under section 32F of the Act and later again commenced the proceedings in the year 1967 and concluded the proceedings by its order dated July 13 1967 repeating the jurisdictional errors; (v) in the interregnum, Ashoklal through his next friend commenced proceedings in case No. 36 of 1967 in the Court of Tenancy Aval Karkoon for the recovery of the possession; (vi) the Tenancy Aval Karkoon, not only entertained the petition, but also got recorded two statements, on 5.10.1967, from Janardhan, "the deemed purchaser" to the effect that he had no objection to handing over the possession of the land to the landlord as he was old and could not cultivate the land personally and another from the present respondent to the same effect even though in the life time of his father Janardhan, he had no title to the land involved in the dispute, and, thereafter made the order dated October 6, 1967 exacting Janardhan from the land; (vii) this wholly null and void order enabled the minor landlord to sell the land by a registered deed on November 13, 1967 to one Haribhav and another, the former later transferred his interest in favour of some of the petitioners before the High Court; (viii) On October 6, 1971, Janardhan moved the Tribunal under section 32F of the Act to the effect that as the landlord Ashoklal had attained majority he was entitled to purchase the land; (ix) the Tribunal started the proceedings under section 32G and after bringing the present respondent on record due to the demise of Janardhan on November 29, 1976, went into the matter in depth, examined all previous orders and came to the conclusion that Janardhan having become the "deemed purchaser. ' all subsequent.
proceedings were null and void, which was affirmed by tho Assistant Collector, the Maharashtra Revenue Tribunal and the High Court later; (x) a parallel proceeding initiated by the respondent for the recovery of possession was decided in his favour by all Courts including the High Court Dismissing the appeals by the special leave, the Court ^ HELD: 1:1 on the tiller 's day, the landlord 's interest in the land gets extinguished and simultaneously by a statutory sale without anything more by the parties, the extinguished title of the landlord is kindled or created in the tenant.
That very moment landlord tenant relationship as understood ill common law or Transfer of Property Act comes to an end, the link and chain is broken.
The absent non cultivating landlord ceases to have that ownership element on the land and the cultivating tenant, the tiller of the soil becomes the owner thereof.
This is unquestionable, the landlord from the date of statutory sale is only entitled to receive the purchase price as determined by the Tribunal under section 32G.
In other words, landlord ceases to be landlord and the tenant becomes the owner of the land and comes in direct contact with the state.
Without any act of transfer inter vivos the title of the landlord is extinguished and is created simultaneously in the tenant making the tenant the deemed purchaser.
It is an admitted position that on April 1, 1957 Tarachand was the landlord and Janardhan was the tenant Tarachand landlord was under no disability as envisaged by Section 32F. Therefore or April 1, 1957 Janardhan became deemed purchaser.
[244 C G] 239 Sri Ram Ram Narain Medhi vs State of Bombay, [1959] Supp.
I S.C.R. 489 @ 518 followed.
If, in the instant case., Janardhan became the deemed purchaser on tillers ' day, the relationship of landlord and tenant between Tarachand and Janardhan came to be extinguished and no right could be claimed either by Tarachand or anyone claiming through him such as Ashoklal or the present purchasers on the footing that they are the owners of the land on or after April 1, 1957.
[244 G H, 245 A] 2:1.
Section 32F of the Bombay Tenancy and Agricultural Lands Act, 1948, has no application to the facts of the ease.
Section 32F postponed the date of compulsory purchase by the tenant where the landlord is a minor or a widow or a person subject to mental or physical disability on the tillers ' day.
Section 32F has an overriding effect over Section 32 as it opens with a non obstante clause.
The combined effect of Section 32F and 32 would show that there the landlord is under no disability as envisaged by Section 32F the tenant of such landlord by operation of law would become the deemed purchaser but where the landlord is of a class or category as set out in section 32F such as a minor, a widow or a person subject to any mental or physical disability, the date o, compulsory sale would be postponed as therein provided.
Now, if Tarachand the landlord was under no disability and he was alive on April 1, 1957 and he was the owner, his tenant Janardhan became the deemed purchaser.
[245 A D] 2:2.
If Janardhan became the deemed purchaser on April 1, 1957 all subsequent proceedings in which the Tribunal held that the date of purchase was postponed because the recorded owner Ashoklal was a minor were without jurisdiction.
The Tribunal had absolutely no jurisdiction to proceed on the footing that date of sale was postponed.
It is neither an incorrect order nor an erroneous order as was sought to be made out but Tribunal lacked tho jurisdiction to proceed under section 32F because when the proceedings under Section 32F were commenced, Janardhan had long since become the deemed purchaser.
Therefore all subsequent proceedings were ab initio void and without jurisdiction.
[245 D F] 2:3.
When a Tribunal of limited jurisdiction clutches at a jurisdiction by ignoring a statutory provision and its consequences in law on the status of parties or by a decision wholly unwarranted with regard to the jurisdictional fact, its decision is a nullity and can be set up in collateral proceeding.
The Tribunal clutched at a jurisdiction not vested in it and in such a situation it can not be disputed that the Tribunal lacked the jurisdiction to entertain any proceeding purporting to be between landlord and tenant on the erroneous assumption that tenant was still a tenant though he had long since become the deemed purchaser, The tenant has ceased to be a tenant much prior to the orders passed by the Tribunal on April 24, 1961 and July 13, 1967 holding that the date of compulsory purchase was postponed.
The compulsory purchase by the operation of law had taken place as early as April 1, 1957 and that legal position cannot be wished away.
[245 F H, 246 A Bl 240 3:1 When several orders passed by different authorities are wholly null and void and hence non est, such orders cannot thwart subsequent proceedings.
The nullity can be set up in subsequent proceedings.
The plea of estoppel by conduct also cannot be allowed to be raised, since a measure of agrarian reform cannot be permitted to be defeated by such devious means of the landlords trying to take advantage of any statement made contrary to their legally protected interest, in the absence of legal literacy and by such jugglery of orders of low level revenue officers who hardly knew what they were doing.
[246 C H, 247 G] 3:2.
In the instant case, even assuming Janardhan relinquished his right as a tenant, even then Ashoklal cannot recover possession as the land would be at the disposal of the Collector under Section 32P.
Further, the posthaste steps taken by Ashoklal and others in transferring the lands to several others speak of malafides of the landlord.
[246E F]


judgement:
N: Criminal Appeal No. 384 of 1974.
Appeal by Special leave from the Judgment and Order dated the 24th October, 1973 of the Allahabad High Court in Crl.
Appeal No. 710 of 1973.
Dalveer Bhandari, H.M. Singh & Ranbir Singh for the Appellant.
R.K. Garg, V.J. Francis & Nikhil Chandra for the Respondent.
The Judgment of the Court was delivered by VENKATARAMIAH, J.
It was about 5.30 P.M. on October 15, 1971.
Bankey Lal son of Jang Bahadur Singh and his wife Chandra Kali were returning home from their 'Khalihan ' (threshing floor) which was situated towards the north of their village Kishunpur Chirai.
As they came near the village they were met by Pussu alias Ram Kishore and his brother in law Sheo Rakhan.
Pussu was armed with a licensed gun of his father Jia Lal and Sheo Rakhan with a country made pistol.
They both fired at Bankey Lal causing him injuries.
Chhatrapal and Gaya Prasad who were going that very way towards the village saw the occurrence and asked Pussu and Sheo Rakhan to desist from firing and also tried to stop them from continuing to fire.
Pussu fired with the gun towards Chhatrapal who in spite of being fired at tried along with some others who were there to catch hold of Pussu and to snatch the gun from his hands.
As Pussu could not reload the gun he assaulted those who tried to catch him with the butt of the gun.
Gaya Prasad was, however, able to snatch the gun from the hands of Pussu after delivering few blows with his lathi on the head of Pussu.
Pussu suddenly managed to escape from the hold of the witnesses and ran towards Sheo Rakhan who was standing near a mango tree with his country made pistol which he was not in a position to open and reload in spite of his attempts.
In the meantime the witnesses were carrying the injured Bankey Lal towards the village and when they came near a pipal tree, Pussu ran towards them 297 with the country made pistol which he had reloaded by then and fired again at Bankey Lal and killed him instantaneously.
This in brief is the prosecution case.
The defence version appears to be that on the date and at the time of the occurrence Pussu and Sheo Rakhan were going towards the 'Bhagwa Talab ' near their village and on the way they came across Bankey Lal, his servant Nanhoon and Chhatrapal.
These three persons surrounded both Pussu and Sheo Rakhan and began to assault them.
On hearing their cries Jialal, the father of Pussu ran towards them with his licensed gun and fired in self defence at Chhatrapal and Bankey Lal causing injuries to Chhatrapal and killing Bankey Lal.
On the basis of the allegations of the prosecution, Pussu was charged for an offence punishable under section 302 I.P.C. for having committed the murder of Bankey Lal and for an offence punishable under section 307 I.P.C. for having attempted to commit the murder of Chhatrapal.
He was also charged under section 323 for having caused hurt to Gaya Prasad and under sections 25 and 27 of the Arms Act for having been found in illegal possession of and for having used a licensed gun for unlawful purposes.
He was also charged separately under section 302/34 I.P.C. for having committed murder of Bankey Lal in furtherance of the common intention of himself and of Sheo Rakhan.
Sheo Rakhan was charged under section 304/34 I.P.C. for the murder of Bankey Lal in furtherance of the common intention of himself and of Pussu.
Jia Lal, father of Pussu, was charged under section 30 of the Arms Act for contravening the conditions of the licence issued in respect of his gun by allowing Pussu to take and use it as stated above.
The learned Sessions Judge at Fatehpur in Sessions Trial No. 128/72 found Pussu guilty of the offence punishable under section 302 I.P.C. for having committed the murder of Bankey Lal and imposed the sentence of death on him subject to confirmation by the High Court.
Pussu was also found guilty of offences punishable under sections 307 I.P.C. 323 I.P.C. and under section 27 of the Arms Act for which he was sentenced to undergo rigorous imprisonment for seven years, for one year and for one year respectively which were to run concurrently.
Sheo Rakhan was found guilty of an offence punishable under section 302/34 I.P.C. and was sentenced to undergo imprisonment for life.
Jia Lal, father of Pussu, was however acquitted of the charge against him.
298 On appeal by Pussu and Sheo Rakhan, in Criminal Appeal No. 710/73/Referred No. 34 of 1973 the High Court of Allahabad set aside the convictions and sentences imposed on them and acquitted them of the changes levelled against them.
Against the judgment of the High Court the State Government applied to this Court for special leave to appeal against Pussu and Sheo Rakhan after a petition for a certificate under Article 134 (1) (c) of the Constitution had been dismissed by the High Court.
By its order dated October 28, 1974, this Court granted special leave to appeal against Pussu alone and hence this appeal by special leave against Pussu only.
In the present case many facts are not in dispute.
That Bankey Lal was killed by injuries caused by a fire arm is not in dispute.
The time, the date and place of the alleged occurrence are also not in dispute.
The presence of Chhatrapal, Bankey Lal, Pussu and Sheo Rakhan at the scene of occurrence when the occurrence took place is not also disputed.
That the licensed gun of Jia Lal, father of Pussu was used at the time of occurrence is also not in dispute.
That Chhatrapal suffered injuries on account of shots fired from that gun is also not in dispute.
That there was enmity between the family of Bankey Lal and the family of Pussu owning to some consolidation proceedings is not seriously questioned before us.
The only points in dispute are (1) whether Bankey Lal was killed on account of firing by Pussu as stated by the prosecution or whether he was killed on account of the shots fired by Jia Lal, father of Pussu, (2) whether Chhatrapal suffered injuries on account of shots fired by Pussu with the said gun or whether he suffered these injuries on account of the firing by Jia Lal, (3) whether Gaya Prasad was assaulted by Pussu and (4) whether Pussu had committed any offence under the Arms Act.
The report containing the first information about the occurrence, according to the prosecution, was written by Yashwant Singh (P.W.6), a young person of about 18 years who was a resident of Kishunpur Chirai to the dictation of Jang Bahadur Singh, the father of Bankey Lal.
Yashwant Singh has stated that he was a student studying in the IXth class, that he had written the report to the dictation of Jang Bahadur Singh, that after writing it he had read it out to Jang Bahadur Singh who signed before him and that thereafter he had handed over the report to Jang Bahadur Singh.
He has denied that he had written the report either to the dictation of 299 Lakhanlal and others or some time later to the dictation of the police.
The report contains details which Jang Bahadur Singh (P.W.13) was able to collect from his daughter in law and others who were near by at the time of the incident.
In that report there is no reference to Jia Lal, father of Pussu, at all, (one Jia Lal whose name is mentioned in it is a different person).
The presence of Pussu and Sheo Rakhan at the scene is mentioned.
The role played by each of them is stated to be as in the prosecution case set out above.
The names of persons who were present there including Chhatrapal are also mentioned.
The above report and the licensed gun of Jia Lal, the father of Pussu, which had been seized by the witnesses were received at about 8.30 P.M. on that very day at the Police Station at Khakhreru which was about four miles from Kishunpur Chirai where the occurrence had taken place.
On the basis of the said report the First Information Report was prepared under section 154 Criminal Procedure Code.
The learned Trial Judge has opined that the First Information Report has been promptly prepared and sent in this case.
The only criticism made against it before the trial court on behalf of the accused was that it did not contain some details including the injuries said to be on the person of Pussu and Sheo Rakhan.
The trial court has observed that the report was not one dictated by an eye witness but by Jang Bahdur Singh who collected information from people who were there, that Jang Bahadur Singh who had lost his only son could not be expected to furnish all details at the time when the report was prepared and that the report contained broadly all the particulars of the occurrence.
The trial court also observed that no motive could be assigned to the omission to refer to the injuries on the person of the accused said to have been caused by lathi blows.
The High Court has, however, considered this last aspect namely the omission to refer to Gaya Prasad (P.W.7) giving lathi blows to Pussu and to Chhatrapal catching hold of Pussu and preventing him from reloading the gun was a material omission.
We shall advert to this aspect of the matter again at a later stage.
One significant aspect of the First Information Report however is that even though there was enmity between the family of Jang Bahadur Singh and the family of Jia Lal, the father of Pussu, and although the defence theory is that the said Jia Lal had fired at Chhatrapal and Bankey Lal, there is no reference to the presence of Jia Lal the father of Pussu, at the scene of occurrence.
300 After the receipt of the information regarding the occurrence, the Sub Inspector of Police, Dharam Singh (P.W. 14) and the Station Officer Yamuna Prasad Pandey (P.W. 15) conducted the investigation.
Pussu and Sheo Rakhan could not be arrested till October 23, 1971.
They were absconding till then and they surrendered in the court of the Additional District Magistrate (J) on October 23, 1971.
Pussu has admitted this fact in his examination under section 364 Criminal Procedure Code, 1898 by stating that on learning about the report they surrendered before the court.
After the investigation was over a police report was filed in the court of the magistrate which ultimately led to the committal of Jia Lal, Sheo Rakhan and Pussu to take their trial before the Sessions Court.
Exhibit Ka 35 is the post mortem certificate issued by Dr. S.C. Misra, who had conducted the post mortem examination on the body of Bankey Lal.
He has stated therein that there were a number of gun shot injuries on the person of the deceased, and the death was due to shock and haemorrhage caused by gun shot injuries.
There is no comment made by either side on this report.
It is relevant to mention here that Dr. S.C. Misra has stated in his deposition (exhibit Ka 34) that on October 16, 1971 at about 2.30 p.m. he had also examined the injuries of Ram Kishore son of Jia Lal (Ram Kishore is the other name of Pussu) and had found three lacerated wounds, one abrasion, one contusion and one abraded contusion and had issued a certificate as per Exh.
He also stated that the said injuries could be caused by lathi blows.
Pussu has admitted that he was so examined in his statement under section 364 Criminal Procedure Code, 1898.
P.W.2 Dr. V.P. Singh is the person who examined the injuries on the person of Chhatarpal Singh (P.W.5), on the person of Gaya Prasad (P.W.7) and on the person of Ram Gopal.
He has stated that there were gun shot injuries on the person of Chhatrapal Singh and an abrasion and a lacerated wound which could have been caused by a blunt weapon on the person of Gaya Prasad.
Ram Gopal is stated to have a small contusion and an abrasion on his person.
P.W. 5 Chhatrapal Singh, P.W. 7 Gaya Prasad, P.W. 1 Lakhanlal and P.W. 10 Ramnath are the eye witnesses.
Of them P.W. 5 Chhatrapal Singh and P.W. 7 Gaya Prasad are injured witnesses.
The statement of Lakhanlal was recorded by the police on 301 October 15, 1971 itself when he handed over the report about the occurrence and the statements of Chhatrapal Singh, Gaya Prasad and Ramnath were recorded by the police on October 16, 1971.
Before considering the evidence of these eye witnesses, it is necessary to refer to a curious experiment which was carried out by the High Court in the course of the hearing of the appeal.
The experiment relates to the capacity of Chhatrapal to run when he was fired at by Pussu.
One of the arguments addressed on behalf of the accused before the High Court was that Chhatrapal could not have been fired at from a short distance but he must have been shot from a long distance as the injuries on his person were superficial and hence he could not run and try to catch hold of Pussu by his waist before Pussu could reload his gun.
Chhatrapal was about 60 years of age at the time of the incident.
In support of its conclusion that Chhatrapal could not run towards Pussu in order to catch hold of him this is what the High Court says: "Chhatrapal appeared in the Court and we asked him to move briskly to a certain distance in order to demonstrate his ability.
He did so.
We also got one of the young lawyers present in Court unload and reload a single barrel gun of exactly the same make as the gun, material exhibit 1.
Our assessment on the demonstration about the brisk movement of Chhatrapal and the time taken in reloading the gun by the young lawyer is that even if Chhatrapal aged 60 years after receiving the gun shots injuries had run from 8 to 10 paces, he could neither catch hold of Pussu, a young lad, nor prevent him from reloading his gun." This procedure of conducting an experiment which was carried out two years after the incident in court with the aid of an young lawyer (about whose proficiency in handling a gun we know nothing) who was asked to handle a different gun altogether and which had been used to reject the truth of the evidence of the eye witnesses appears to be highly irregular.
The High Court has not addressed itself to the degree of efficiency, or shall we say, inefficiency of Pussu in handling a gun.
The time taken by any person to reload a gun depends upon several factors including the condition of the gun and the surcharged atmosphere created by the firing bout which may have preceded the time of reloading the gun.
We shall now refer to what Chhatrapal has stated in the course of his deposition.
He has stated: 302 "At the time when I saw Pussu and Sheo Rakhan near the mango tree, I saw weapons in their hands.
At the place where the firing took place for the first time, both the accused person were opening and loading the cartridges.
They had loaded the cartridge near the mango tree.
On the first occasion, at the time of loading of the cartridges, I was at a distance of 1 15 paces towards east behind Bankey.
At the time of first firing, t e sounds of the gun fires made by the two accused person were separate.
They had fired from some distance from each other.
Both the accused persons were almost at equal distance.
They were not one behind the other.
I can not, however, rule out the difference of 1 or 2 paces.
At the first gunfire, Bankey ran towards the village.
He must have run upto a distance of 5 10 paces when the second fire was opened.
Bankey Lal was hit by the Ist as well as the 2nd gunfire.
At the time of firing, the accused persons were on the north eastern side of the passage.
The third gun fire was made by the accused persons at that very place.
Bankey could not go ahead.
At the time of 3rd fire, the accused persons were on the western side of Bankey Lal.
After this third fire, I rebuked the accused persons.
Thereupon Pussu fired at me and then I caught hold of him from behind.
The snatching of the gun took place at a distance of ten paces on the eastern side of the place where Bankey Lal had sat down.
As soon as Pussu fired at me, I caught hold of him by his waist.
After I had caught hold of his waist Pussu could not fire again so long as he did not get himself freed.
To Court: At the time when Pussu fired at me and I caught him by his waist, the empty cartridge fired at me remained inside the gun.
Pussu could not take it out or throw it away nor could he open the gun.
To counsel: And in the meantime the gun was snatched.
" 303 There is nothing elicited in the cross examination of this witness which could discredit his testimony.
There was no ill will between Chhatrapal and the members of Pussu 's family.
He denied a suggestion that there were some proceedings under section 107 Criminal Procedure Code against him.
There was also no evidence in support of that suggestion.
Chhatrapal had been in fact injured by gun shots and the gun used on that occasion had in fact been seized.
Why he should exonerate Jia Lal the father of Pussu from the responsibility of injuring him if Jia Lal was in fact responsible for it but implicate Pussu is in comprehensible.
Gaya Prasad (P.W. 7) who was also an injured eye witness stated in the course of his deposition thus: "When Bankey Lal and his wife reached near Har Sakri well, Pussu accused, who was armed with the gun of his father, and Sheo Rakhan accused who was armed with a country made pistol began to fire gunshots at Bankey Lal.
Bankey Lal and his wife raised alarm and ran towards the village.
Chhatrapal and I, following him were going towards the village by the same passage.
Chhatrapal forbade him but Pussu said that he would not leave Bankey Lal alive.
At this Chhatrapal ran to catch hold of Pussu whereupon Pussu aimed the gun at Chhatrapal.
Chhatrapal turned and the gunshot hit him on his back.
Even after being hit by the gunshot, Chhatrapal caught hold of Pussu by his waist.
Ram Gopal, Lakhan Lal, Jia Lal Gadaria, and Ram Nath came running to the place of occurrence from the south.
Ram Gopal and I went just close to Pussu, Ram Gopal and I advanced to snatch the gun, but Pussu gave one blow of the butt of the gun to each of us on the head.
At this I gave 4 5 blows of lathis to Pussu and then we jointly snatched his gun.
When we snatched his gun he went away towards the mango tree where his sala (brother in law) was present On receiving the injury, Bankey Lal had sat down in the way.
Ram Nath and Jia Lal lifted him on their arm and started for the village.
When they reached near the peepal tree, Pussu came with the pistol of his brother in law Sheo Rakhan struck it with the abdomen of Bankey Lal and fired, Bankey Lal 304 died just on receiving the pistol shot.
Thereafter Pussu and Sheo Rakhan ran away towards Raeepur.
" Jia Lal referred to in the above passage is Jia Lal Gadaria and not Jia Lal the father of Pussu.
Even this witness is not shown to be interested in giving false testimony.
Lakhan Lal (P.W. 1) and Ram Nath (P.W. 10) who were also eye witnesses have given substantially the same version as the evidence of Chhatrapal and Gaya Prasad and their evidence is not also shown to be unworthy of acceptance.
As against the above evidence adduced by the prosecution, we have the evidence of Jagannath (D.W.1).
He has stated that at the time when the occurrence took place he was in his plot near Bhagwa Talab which was close to the scene of occurrence, that he heard the cries of Pussu 'Run up, save me, Bankey Lal and Ghaseetey are killing me '.
What took place thereafter may be narrated in his own words thus: Having gone there, I saw that Bankey Lal deceased and Ghaseetey were assaulting Pussu accused with lathis.
Jia Lal challenged both of them and said "Do not beat him, otherwise I shall shoot you down".
On Jia Lal 's saying so, Chhatrapal and Bankey stopped for a short time; but they again rushed to assault Pussu.
In the meantime Pussu accused took shelter behind the mango tree.
Then Jia fired 2 3 shots at Chhatrapal and Bankey.
On receiving the gun shots injuries Chhatrapal fell down on the ground.
Bankey Lal, too, received some injuries.
In the meantime Bankey Lal 's servant Nanhua caught hold of Jialal accused from behind, as a result of which his arms also got bound.
Nanhua shouted "Run up.
I have caught hold of the sala".
At this Shiva Rakhan accused reached there.
He caught hold of Nanhua and felled him down and Jia Lal accused was released from his hold.
Bankey Lal deceased rushed to snatch the gun of Jia Lal accused, but as soon as his hand fell on the barrel of the gun, it got discharged and the shot hit Bankey Lal on his right flank, as a result of which Bankey Lal fell down dead then and there.
The accused persons ran away with their licensed gun towards their house.
305 This defence witness has not been believed by the trial court.
Nor do we find that any reliance has been placed on his evidence by the High Court.
The statement of this witness was recorded by the police on January 31, 1972 after P.W. 15 Yamuna Prasad Pandey came to know that the name of this witness had been mentioned in the report given by Pussu at the Kotwali Police Station.
He has stated in his cross examination that "When I sighted for the first time, I saw that Jia Lal was firing shots at Ghaseetey alias Chhatrapal and Bankey".
If that is so his version about what all had preceded that stage is manifestly his imagination.
We have carefully gone through his evidence and it does not inspire confidence.
The prosecution evidence cannot be rejected on the basis of the evidence of this defence witness, particularly because the minor injuries stated to be on the person of Pussu are not sufficient to hold that Pussu and Sheo Rakhan were the victims of the aggression on the part of Chhatrapal and Bankey Lal.
This defence version is also contradicted by the conduct of Pussu immediately after the incident.
If he was an innocent person and his father had fired the gun in defence of Pussu and Sheo Rakhan he would also have been an informant of the incident at the Khakhreru Police Station which was only about four miles from his village or he would have been available for interrogation by the police, if they came at the instance of somebody else.
But he ran away from the village and he was found at 8 A.M. on the next day i.e. October 16.
1971 at the Kotwali Police Station, Fatehpur which was about forty five miles from his village.
In order to reach that place he had to pass through at least three places where there were police stations.
As the trial court has observed he must have gone there to have proper legal advice before gaving his version of the incident at a police station where he could find an officer who would oblige him by not arresting him.
Ordinarily in a case of this nature a police officer would have contacted the concerned police station to ascertain facts and to seek instructions.
Pussu, as mentioned earlier, was arrested on October 23, 1971 when he surrendered before court.
The gist of the version in the F.I.R. (Exh.
Ka. 10) given by Pussu at the Kotwali Police Station, Fatehpur is summarised by the trial court in its judgment and the relevant portion of that judgment reads thus: "When both these accused reached near "Bhagwa Talab" they found deceased Bankey Lal.
Ghaseetey alias Chhatrapal and Bankey Lal 's servant Nanhoon coming from north side of the village towards them armed with lathis.
On account of fear both these accused left that 306 passage but the aforesaid three persons rushed up at them and began to assault them with lathis.
On hearing their cries his father accused Jia Lal who was having his licensed gun, Jagannath and Sheo Autar reached there and began to save them from the assault.
The assailants namely Bankey Lal, Chhatrapal and Nanhoon threw down his father Jia Lal on the ground and began to snatch his gun.
In the meantime he ran away from there but when he was running away he heard a gun shot sound.
He did not go to his police station due to fear and, therefore, reached Police Station Kotwali, Fatehpur.
He had also stated about injuries over his head, hand and back caused by lathi blows".
This version, apart from the other infirmities pointed out by the trial court, contradicts the version of Jagannath (D W. 1) that when he first 'sighted ' Jialal the father of Pussu was already firing shots.
The story contained in Exh.
Ka 10 appears to be one spun out after a lot of deliberation.
We have set out above in some detail the prosecution evidence and the defence version only to show how demonstrably the High Court was in error in rejecting the case of the prosecution.
We have already referred to the experiment carried out by High Court at the hearing of the appeal by asking Chhatrapal to run about and an advocate to load a gun in their presence.
Having been impressed by the result of that experiment the High Court first rejected the evidence of Chhatrapal that he had tried to catch hold of Pussu.
The High Court then found that there was a material omission in the information given by Jang Bahadur Singh as "there was no mention about Gaya Prasad having inflicted four or five lathi blows on Pussu and it is only in the trial court that the eye witnesses have asserted that four or five lathi blows were inflicted on Pussu".
Having regard to the several details about the incident given by Jang Bahadur Singh who was in fact not an eye witness, the omission referred to above appears to be a trivial one not affecting credibility of the prosecution version.
The third ground on which the High Court found the prosecution case as not being worthy of acceptance is again a strange one.
The relevant part of the judgment of the High Court reads thus: "The eye witnesses have asserted that after the gun had been snatched away, Pussu freed himself and 307 taking the pistol from appellant Sheo Rakhan fired a fatal shot at Bankey Lal from point blank range.
It is highly improbable that after Pussu had been arrested and disarmed he could be allowed to free himself from the hands of young men like Lakhan Lal, Gaya Prasad and Ram Pal.
The normal conduct of Pussu after he had freed and rearmed himself with pistol would have been to demand the return of his gun from Gaya Prasad on the point of his pistol rather than to pursue his injured victim Bankey Lal and to shoot him dead".
What is improbable about the prosecution version, we fail to see.
If Pussu 's object was to kill Bankey Lal, he would instead of demanding the return of the gun on the point of his pistol, run towards Bankey Lal and shoot at him, which in fact is what he is alleged to have done in this case.
The High Court 's opinion that the normal conduct of a person in the position of Pussu would have been what the High Court has stated in the course of its judgment is a mere surmise.
At any rate on such an imaginary ground the evidence of the eye witnesses could not be rejected.
Another reason given by the High Court is again a supposition resting on no solid ground and that relates to the condition of the gun (Exh.
Ka 1).
The High Court has observed: "None of the eye witnesses has stated that any blow of lathi plied by Gaya Prasad fell on the butt of the gun.
Gaya Prasad has stated that he inflicted four or five lathi blows on Pussu.
The gun was deposited in the Mal Khana at the Police Station and a piece of the wooden part of the butt of the gun was found broken.
This was noted in the recovery memo (Exh.
Ka 1).
The gun was examined by us and we found a wooden piece of the butt having chipped off and the opening lever of the gun had become inoperative.
This could only happen if lathi blow fell on the butt of the gun.
None of the eye witnesses has deposed that any blow from lathi plied by Gaya Prasad registered a hit on the gun.
There is no explanation as to how the wooden butt of the gun (material Exh. 1) got broken and consequently the gun could not be opened.
" In reaching the above conclusion, the High Court has overlooked the evidence of Gaya Prasad (P.W. 7) in his examination in 308 chief that when they were trying to snatch the gun Pussu gave one blow with the butt of the gun on his head and one blow on the head of Ram Gopal and the further statement in his cross examination that on account of its being snatched with jerks, the wood fixed at the lower part of the gun was left in the hands of Pussu himself and that the gun could have been damaged by being used as mentioned above.
The High Court was wrong in holding that the gun could have been damaged only if a lathi blow had fallen on it.
The explanation given by the prosecution is quite satisfactory indeed.
We are not also impressed by the other ground relied on by the High Court that "in cases of emergency is repeated firing a shooter does not normally start collecting empty cartridges automatically ejected from the gun before reloading the gun" and "the non recovery of the fired cartridge either in the breach of the gun or from the spot is a suspicious circumstance" having regard to the overwhelming evidence in this case in support of the prosecution case.
The rule governing the appreciation of evidence in a criminal case is laid down by this Court in State of Punjab vs Jagir Singh & Ors.(1) in which this Court set aside the judgment of acquittal passed by the High Court which had reversed the conviction and sentence imposed by the trial court thus: "A criminal trial is not like a fairy tale wherein one is free to give flight to one 's imagination and phantasy.
It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the crime with which he is charged.
Crime is an event in real life and is the product of interplay of different human emotions.
In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses.
Every case in the final analysis would have to depend upon its own facts.
Although the benefit of every reasonable doubt should be given to the accused, the courts should not at the same time reject evidence which is ex facie trustworthy on the grounds which are fanciful or in the nature of conjectures".
309 We have pointed out above the manifest errors committed by the High Court in the course of its judgment acquitting the accused Pussu.
On a careful reading of the evidence in this case, we feel that Jia Lal had out of love and affection towards his son from the beginning tried to shield Pussu but has ultimately not been successful.
From the evidence it is obvious that Pussu and Sheo Rakhan were armed with fire arms and they were the aggressors.
The plea of self defence urged on behalf of Pussu cannot be accepted.
A person who is an aggressor and who seeks an attack on himself by his own aggressive attack cannot rely upon the right of self defence if in the course of the transaction he deliberately kills another whom he had attacked earlier.
In the instant case having regard to the nature of the weapon used it has to be held that the act by which the death of Bankey Lal was caused by Pussu was done with the intention of causing death, and we do not find any extenuating circumstances which would mitigate the offence committed by Pussu.
The trial court was, therefore, right in convicting Pussu of an offence punishable under section 302 I.P.C.
The acquittal of Sheo Rakhan does not affect the prosecution case against Pussu.
There is no legal bar for convicting Pussu alone in this case on the facts and in the circumstances of the case.
The principle of issue estoppel is inapplicable here.
This is not a case in which it could be said that two views were reasonably possible.
The only reasonable view to be taken is the one taken by the trial court.
We are aware of the rule of practice that ordinarily this Court should not interfere with judgments of acquittal on a mere re appreciation of evidence.
But if there are glaring infirmities in the judgment of the High Court resulting in a gross miscarriage of justice, it is the duty of this Court to interfere.
In the instant case we find that the approach of the High Court is basically erroneous and its judgment is founded on false assumptions, conjectures and surmises.
On a consideration of the entire mass of evidence adduced in this case we are satisfied that the prosecution has established beyond reasonable doubt that Pussu had committed the murder of Bankey Lal.
In cases of this nature it is advisable to bear in mind the following observations of Krishna Iyer, J. in Shivaji Sahebrao & Anr.
vs State of Maharashtra(1) at pages 492 493: 310 "Even at this stage we may remind ourselves of a necessary social perspective in criminal cases which suffers from insufficient forensic appreciation.
The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are always good regardless of justice to the victim and the community, demand especial emphasis in the contemporary context of escalating crime and escape.
The judicial instrument has a public accountability.
The cherished principles or golden thread of proof beyond reasonable doubt which runs thro ' the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt.
The excessive solicitude reflected in the attitude that a thousand guilty men may go but one innocent martyr should not suffer is a false dilemma.
Only reasonable doubts belong to the accused.
Otherwise any practical system of justice will then break down and lose credibility with the community.
The evil of acquitting a guilty person lightheartedly as a learned author Glanville Williams in 'Proof of Guilt ' has sapiently observed, goes much beyond the simple fact that just one guilty person has gone unpunished If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public demand for harsher legal presumptions against indicted 'persons ' and more severe punishment of those who are found guilty.
Thus too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless.
For all these reasons it is true to say, with Viscount Simon, that "a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent. " In short, our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic.
" In the result, we set aside the judgment of the High Court in so far as Pussu is concerned and restore his conviction for the offence punishable under section 302 I.P.C. as ordered by the trial court.
As regards sentence we feel that ends of justice would be met if we impose the punishment of imprisonment for life on him.
We 311 accordingly sentence Pussu to imprisonment for life.
We also restore the conviction of Pussu for the offences punishable under sections 307 I.P.C., 323 I.P.C. and section 27 of the Arms Act and the sentences imposed on him on that account as ordered by the trial court.
All the sentences shall run concurrently.
The appeal is accordingly allowed.
Pussu is on bail.
He is directed to surrender in accordance with the terms of his bail and undergo the punishment imposed on him.
P.B.R. Appeal allowed.

summary:
The prosecution case against the accused respondent was that when the deceased and his wife were returning home from their field, he and the co accused armed with a gun and a country made pistol fired at the deceased causing him injuries, that some passersby, including the two eye witnesses, overpowered the respondent but that he escaped from their hold and ran towards the co accused who then was standing at some distance, snatched the pistol from his hand and fired at the deceased while he was being carried towards the village.
As a result of this shot the deceased was killed instantaneously and one of the witnesses sustained injuries.
The defence version, on the other hand, was that on the date and time of the occurrence when the two accused were going out of the village the deceased, his servant and the injured witness assaulted them and on hearing their cries, the respondent 's father fired at the deceased in self defence and that this had resulted in the death of the deceased and injury to the witness.
The trial court found him guilty of the offence punishable under section 302 I.P.C. and sentenced him to death and the co accused with imprisonment for life.
Before the High Court the argument for the respondent was that since the injuries on the person of the witness were superficial, he could have been fired at only from a long distance and being an aged man of 60 years, he could not have run and caught hold of the respondent before the respondent could reload his gun.
To test the capacity of the witness to run and to assess the time taken in reloading a gun, the High Court conducted an experiment by asking the witness, who was present in the court, to move briskly to a certain distance.
A young lawyer present in the Court was asked to unload and reload a gun exactly of the same make as the gun used by the respondent.
On the basis of this experiment the High Court came to the conclusion that 295 even if the witness, after receiving gun shot injuries had run some distance towards the respondent; he could neither have caught hold of him nor could he have prevented him from reloading his gun.
Disbelieving the prosecution story, the High Court acquitted both the accused.
The State 's Special Leave Petition against the judgment of the High Court was granted only with respect to the respondent.
On the question whether the High Court was correct in conducting the experiment that it did and in coming to the conclusion that the respondent was not guilty of the offence of murder.
Allowing the appeal, ^ HELD: The procedure of conducting an experiment in Court two years after the incident with the aid of a young lawyer (about whose proficiency in handling a gun there is no authentic evidence) who was asked to handle a different gun altogether and using the conclusion based on that experiment to reject the truth of the evidence of the eye witness, was highly irregular.
The High Court has not addressed itself to the degree of efficiency or inefficiency of the respondent in handling a gun.
The time taken by any person to reload a gun depends upon several factors, including the condition of the gun and the surcharged atmosphere created by the firing bout which may have preceded the time of reloading the gun.
[301 F H] Ordinarily, this Court would not interfere with the judgment of acquittal on mere re appreciation of evidence.
But if there are glaring infirmities in the judgment of the High Court resulting in miscarriage of justice it is the duty of this Court to interfere.
[309 F G] In the instant case the High Court was wrong in conducting the experiment carried out by it at the hearing of the appeal.
Having been impressed by its result it first rejected the evidence of the eye witness on trivial omissions which would not affect the credibility of the prosecution version on imaginary grounds.
From the evidence it is obvious that the two accused were armed with fire arms and were the aggressors.
On a careful reading of the evidence, it is clear that the father of the accused respondent, out of love and affection towards his son, tried to shield him.
[306 F G] The plea of self defence cannot be accepted.
A person who was an aggressor and who sought an attack on himself by his own aggressive attack cannot rely upon the right of self defence if in the course of the transaction he deliberately kills another whom he had attacked earlier.
Having regard to the nature of the weapon used, the act by which death was caused by the respondent was done with the intention of causing death and there were no extenuating circumstances which would mitigate the offence committed by him.
[309 C D] State of Punjab vs Jagir Singh & Ors.
[1974] 1 S.C.R. 328; Shivaji Sahebrao Bobade & Anr.
vs State of Maharashtra ; followed.
296 The trial court was right in convicting the respondent.
The acquittal of the co accused did not effect the prosecution case against him.
There is no legal bar for convicting the respondent alone in this case on the facts and circumstances of the case.
The principle of issue estoppel is inapplicable here.
[309 D E]