judgement:
N: Criminal Appeal No. 2 of 1951.
This Was an appeal under article 134 (1) (c) of the Constitution from the Judgment and Order of the High Court of Rajasthan (Nawal Kishore C.J., and Mehta J.) dated 16th October, 1950, in Criminal Appeal No. 63 of Samvat 2005, revising an order of acquittal of the Sessions Judge, Jai pur, in Criminal Appeal Case No. 200 of Sam vat 2004, and convicting the accused of an offence under sec.
376 of the Indian Penal Code.
The material facts are stated in the judgment.
K.N. Aggarwala, for the accused.
G.S. Mathur, for the State of Rajasthan.
December 20.
BOSE J. delivered judgment as fol lows.
FAZL ALI J. agreed.
BOSE J.
The appellant Rameshwar was charged with com mitting rape on a young girl Mst.
Purni, eight years of age.
He was committed to Sessions and was convicted by the As sistant Sessions Judge, Sawai Jaipur, and sentenced to one year 's rigorous imprisonment and a fine of Rs. 250.
An appeal was made to the Sessions Judge at Jaipur, that being the appropriate appellate tribunal in that area.
The learned Sessions Judge held that the evidence was sufficient for moral conviction but fell short of legal proof because, in his opinion, the law requires corroboration of the story of the prosecution in such cases as a matter of precaution and the corroborative evidence, in so far as it sought to connect the appellant with the crime, was legally insuffi cient though morally enough.
He was satisfied however that the girl had been raped by somebody.
Accordingly, he acquit ted the accused giving him the benefit of the doubt.
The State of Sawal Jaipur and Gangapur appealed against the acquittal to the High Court at Jaipur.
380 The learned High Court Judges held that the law requires corroboration in such cases but held that the girl 's state ment made to her mother was legally admissible as corrobora tion and considering that sufficient they set aside the acquittal and restored the conviction and sentence.
The High Court later granted leave to appeal under article 134 (1)(c) of the Constitution as the case involved questions of law of general importance.
The first point taken before us related to the admissi bility of the evidence of the girl herself.
Her age was stated to be seven or eight years at the time of the exami nation by the learned Assistant Sessions Judge who recorded her testimony.
He certified that she did not understand the sanctity of an oath and accordingly did not administer one to her.
He did not certify that the child understood the duty of speaking the truth.
The proviso to section 5 of the , prescribes that "Provided that where the witness is a child under twelve years of age, and the Court or person having authority to examine such witness is of opinion that, though he understands the duty of speaking the truth, he does not understand the nature of an oath or affirmation, the forego ing provisions of this section and the provisions of section 6 shall not apply to such witness, but in any such case the absence of an oath or affirmation shall not render inadmis sible any evidence given by such witness nor affect the obligation of the witness to state the truth.
" The question is whether the opinion referred to must be formally recorded or whether it can be inferred from the circumstances in which the deposition was taken.
The proviso quoted above must be read along with section 118 of the Evidence Act and section 13 of the Oaths Act.
In my opinion, an omission to administer an oath, even to an adult, goes only to the credibility of the witness and not his competency.
The question of competency is dealt with in section 118.
Every 381 witness is competent unless the Court considers he is pre vented from understanding the questions put to him, or from giving rational answers by reason of tender years, extreme old age, disease whether of body or mind, or any other cause of the same kind.
It will be observed that there is always competency in fact unless the court considers otherwise.
No other ground of incompetency is given, therefore, unless the Oaths Act adds additional grounds of incompetency it is evident that section 118 must prevail.
Now the Oaths Act does not deal with competency.
Its main object is to render persons who give false evidence liable to prosecution.
It is true a subsidiary object is to bring home to the witness the solemnity of the occasion and to impress upon him the duty of speaking the truth, but in view of section 118 these matters only touch credibility and not admissibility.
In my opinion, section 13 of the Oaths Act places this beyond doubt.
It states "No omission to take any oath or make any affirmation. . and no irregularity whatever, in the form in which any one of them is administered, shall invali date any proceeding or render inadmissible any evidence whatever. . " Section 5 is the main provision regarding the adminis tration of oaths.
The proviso only sets out the cases in which the oath is not to be administered.
If, therefore, an omission to take the oath does not affect the admissibility of the evidence, it follows that irregularity of the kind we are considering which arises out of the proviso cannot affect the admissibility either.
Section 118 remains and unless the judge considers otherwise the witness is compe tent.
I do not think it will be useful to consider English authorities on the point because we are governed here by the terms of the various sections I have referred to.
But a decision of the Judicial Committee of the Privyi Council is in point.
Their Lordships stated in Mohamed Sugal Esa vs The King(1) : (1) A.I.R. 1946 P.C. 3 at 5 382 "Section 13, Oaths Act, is quite unqualified in its terms and there is nothing to suggest that it is to apply only where the omission to administer the oath occurs per incuriam.
If that had been the intention of the Legislature, it would have been simple to insert words in the section to that effect. .
It may be observed that this question can no longer arise in India because in 1939 the Legislature passed the Oaths (Amendment) Act (Act XXXIX of 1939) which settles the law in accordance with the Bengal and Oudh decisions referred to above.
" The decisions to which their Lordships refer are and Ram Samujh vs Emperor(2).
The decisions there were that the section being unqualified in terms did apply to a case where the Court accepted the evidence of a child to whom the oath was not administered on the ground that the witness did not understand its nature.
The principle of the decisions ap plies here because, as their Lordships observe, the section is unqualified in its terms.
I would add however that it is desirable that judges and magistrates should always record their opinion that the child understands the duty of speaking the truth and state why they think that, otherwise the credibility of the wit ness may be seriously affected, so much so, that in some cases it may be necessary to reject the evidence altogether.
But whether the magistrate or judge really was of that opinion can, I think, be gathered from the circumstances when there is no formal certificate.
In the present case, it is plain that the learned Judge had the proviso in mind because he certified that the witness does not understand the nature of an oath and so did not administer one but despite that went on to take her evidence.
It is also an important fact that the accused, who was represented by counsel, did not object.
Had he raised the point the Judge would doubtless have made good the omission.
I am of opinion that Mst.
Purni was a competent witness and that her evi dence is admissible.
In (1) F.N. (2) (1907) 10 O.C. 337 383 the Privy Council case which I have just cited, their Lord ships said "It is not to be supposed that any judge would accept as a witness a person who he considered was incapable not only of understanding the nature of an oath but also the necessi ty of speaking the truth when examined as a witness.
" That is the very point here.
One can presume that the learned Judge had that in mind from the fact that he exam ined the child after referring to a fact which arises out of the proviso.
As regards her credibility, the learned trial Judge, who recorded her evidence and saw her in the box, has believed her, so has the High Court; and it is important to note that the learned Sessions Judge who acquitted the accused has not disbelieved her.
On the contrary he says he is morally convinced.
All he says is that in the absence of corrobora tion it will be unsafe to convict because the Privy Council and other cases advise corroboration as a matter of pru dence.
We were taken carefully through the evidence, as elabo rately as in a court of first appeal.
I am of opinion that the learned High Court Judges were fully justified in ac cepting the evidence of Purni and in believing her mother Mst.
Ghisi.
I consider it unnecessary to recapitulate their reasons.
After the careful analysis given by three Courts it is sufficient to say that I agree with the learned High Court Judges.
We are left therefore with the questions of law.
The first question is whether the law requires corrobo ration in these cases.
Now the Evidence Act now here says so.
On the other hand, when dealing with the testimony of an accomplice, though it says in section 114 (b) that the Court may presume that an accomplice is unworthy of credit unless he is corroborated in material particulars, it makes it clear in section 133 that "An accomplice shall be a competent witness against an accused person; and a conviction is not 50 384 illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.
" Now a woman who has been raped is not an accomplice.
If she was ravished she is the victim of an outrage.
If she consented there is no offence unless she is a married woman, in which case questions of adultery may arise.
But adultery presupposes consent and so is not on the same footing as rape.
In the case of a girl who is below the age of consent, her consent will not matter so far as the offence of rape is concerned, but if she consented her testimony will natural ly be as suspect as that of an accomplice.
So also in the case of unnatural offences.
But in all these cases a large volume of case law has grown up which treats the evidence of the complainant somewhat along the same lines as accomplice evidence though often for widely differing reasons and the position now reached is that the rule about corroboration has hardened into one of law.
But it is important to under stand exactly what the rule is and what the expression "hardened into a rule of law" means.
In my judgment, this branch of the law is the same as in England and I am of opinion that the lucid exposition of it given by Lord Reading, the Lord Chief Justice of England, in The King vs Baskerville(1) cannot be bettered.
In that case, Baskerville had been convicted of having committed acts of gross indecency with the two boys.
(There the boys were accomplices because they were freely consent ing parties and there was no use of force).
The learned Chief Justice says at page 663 : "There is no doubt that the uncorroborated evidence of an accomplice is admissible in law.
But it has long been a rule of practice at common law for the judge to warn the jury of the danger of convicting a prisoner on the uncorroborated testimony of an accomplice or accomplices, and, in the discretion of the judge, to advise them not to convict upon such evidence; but the judge should point out to the jury that it is (1) 385 within their legal province to convict upon such unconfirmed evidence.
This rule of practice has become virtually equivalent to a rule of law, and since the Court of Criminal Appeal came into operation this Court has held that, in the absence of such a warning by the judge, the conviction must be quashed.
If after the proper caution by the judge the jury nevertheless convict the prisoner, this Court will not quash the conviction merely upon the ground that the accom plice 's testimony was uncorroborated.
" That, in my opinion, is exactly the law in India so far as accomplices are concerned and it is certainly not any higher in the case of sexual offences.
The only clarifica tion necessary for purposes of this country is where this class of offence is sometimes tried by a judge without the aid of a jury.
In these cases it is necessary that the judge should give some indication in his judgment that he has had this rule of caution in mind and should proceed to give reasons for considering it unnecessary to require corroboration on the facts of the particular case before him and show why he considers it safe to convict without corrob oration in that particular case.
I am of opinion that the learned High Court Judges were wrong in thinking that they could not, as a matter of law, convict without corrobora tion.
There is a class of cases which considers that though corroboration should ordinarily be required in the case of a grown up woman it is unnecessary in the case of a child of tender years.
Bishram.
vs Emperor(1) is typical of that point of view.
On the other hand, the Privy Council has said in Mohamed Sugal Esa vs The King(2) that as a matter of prudence a conviction should not ordinarily be based on the uncorroborated evidence of a child witness.
In my opinion, the true rule is that in every case of this type the rule about the advisability of corroboration should be present to the mind of the judge.
In a jury case he must tell the (1) A.I.R. 1944 Nag. 363.
(2) A.I.R. 1946 P.C. 3 at 5.
386 jury of it and in a non jury case he must show that it is present to his mind by indicating that in his judgment.
But he should also point out that corroboration can be dispensed with if, in the particular circumstances of the case before him, either the jury, or, when there is no jury, he himself, is satisfied that it is safe to do so.
The rule, which according to the cases has hardened into one of law, is not that corroboration is essential before there can be a con viction but that the necessity of corroboration, as a matter of prudence, except where the circumstances make it safe to dispense with it, must be present to the mind of the judge, and in jury cases, must find place in the charge, before a conviction without corroboration can be sustained.
The tender years of the child, coupled with other circumstances appearing in the case, such, for example, as its demeanour, unlikelihood of tutoring and so forth, may render corrobora tion unnecessary but that is a question of fact in every case.
The only rule of law is that this rule of prudence must be present to the mind of the judge or the jury as the case may be and be understood and appreciated by him or them.
There is no rule of practice that there must, in every case, be corroboration before a conviction can be allowed to stand.
I turn next to the nature and extent of the corrobora tion required when it is not considered safe to dispense with it.
Here, again, the rules are lucidly expounded by Lord Reading in Baskerville 's case(1) at pages 664 to 669.
It would be impossible.
indeed it would be dangerous, to formulate the kind of evidence which should, or would, be regarded as corroboration.
Its nature and extent must necessarily vary with circumstances of each case and also according to the particular circumstances of the offence charged.
But to this extent the rules are clear.
First, it is not necessary that there should be inde pendent confirmation of every material circumstance in the sense that the independent evidence in the case, apart from the testimony of the complainant or the (1) , 387 accomplice, should in itself be sufficient to sustain con viction.
As Lord Reading says ``Indeed, if it were required that the accomplice should be confirmed in every detail of the crime, his evidence would not be essential to the case, it would be merely confirmatory of other and independent testimony.
" All that is required is that there must be "some addi tional evidence rendering it probable that the story of the accomplice (or complainant) is true and that it is reasona bly safe to act upon it.
" Secondly, the independent evidence must not only make it safe to believe that the crime was committed but must in some way reasonably connect or tend to connect the accused with it by confirming in some material particular the testi mony of the accomplice or complainant that the accused committed the crime.
This does not mean that the corrobora tion as to identity must extend to all the circumstances necessary to identify the accused with the offence.
Again, all that is necessary is that there should be independent evidence which will make it reasonably safe to believe the witness 's story that the accused was the one, or among those, who committed the offence.
The reason for this part of the rule is that "a man who has been guilty of a crime himself will always be able to relate the facts of the case, and if the confirmation be only on the truth of that history, without identifying the persons, that is really no corroboration at all.
It would not at all tend to show that the party ac cused participated in it.
" Thirdly, the corroboration must come from independent sources and thus ordinarily the testimony of one accomplice would not be sufficient to corroborate that of another.
But of course the circumstances may be such as to make it safe to dispense with the necessity of corroboration and in those special circumstances a conviction so based would not be illegal.
I say this because it was contended that the mother in this case was not an independent source.
388 Fourthly, the corroboration need not be direct evidence that the accused committed the crime.
It is sufficient if it is merely circumstantial evidence of his connection with the crime.
Were it otherwise, "many crimes which are usually committed between accomplices in secret, such as incest, offences with females" (or unnatural offences) "could never be brought to justice." Next, I turn to another aspect of the case.
The learned High Court Judges have used Mst.
Purni 's statement to her mother as corroboration of her statement.
The ques tion arises, can the previous statement of an accomplice, or a complainant, be accepted as corroboration ? That the evidence is legally admissible as evidence of conduct is indisputable because of Illustration (j) to section 8 of the Evidence Act which is in these terms: "The question is whether A was ravished.
The facts that, shortly after the alleged rape, she made a complaint relating to the crime, the circumstances under which, and the terms in which, the complaint was made are relevant.
" But that is not the whole problem.
for we are concerned here not only with its legal admissibility and relevancy as to conduct but as to its admissibility for a particular purpose, namely corroboration.
The answer to that is to be found in section 157 of the Evidence Act which lays down the law for India.
Section 157 states that "In order to corroborate the testimony of a witness, any former statement made by such witness relating to the same fact at or about the time when the fact took place, or before any authority legally competent to investigate the fact, may be proved.
" The section makes no exceptions, therefore, provided the condition prescribed, that is to say, "at or about the time etc. ," are fulfilled there can be no doubt that such a statement is legally admissible in India as corroboration.
The weight to be attached to it is, of course, another matter and it may be that in some 389 cases the evidentiary value of two statements emanating from the same tainted source may not be high, but in view of section 118 its legal admissibility as corroboration cannot be questioned.
To state this is, however, no more than to emphasise that there is no rule of thumb in these cases.
When corroborative evidence is produced it also has to be weighed and in a given case, as with other evidence, even though it is legally admissible for the purpose on hand its weight may be nil.
On the other hand, seeing that corrobo ration is not essential to a conviction, conduct of this kind may be more than enough in itself to justify acceptance of the complainant 's story.
It all depends on the facts of the case.
In the present case, Mst.
Purni told 'her mother about the incident about four hours after it occurred.
The reason for the delay was that her mother was not at home when she went there.
She says that when she went home she lay down and went to sleep and that when her mother returned she asked her why she was sleeping and then she told her mother what had happened.
Her mother tells much the same story.
She says she had gone out to her field in the morning and did not return till about 4 p.m.
When she reach home she found her daughter lying there weeping.
She has been be lieved by the learned trial Judge as also by the High Court and has not been disbelieved by the learned Sessions Judge.
All he says is that she is not an "independent" witness and is therefore not sufficient for corroboration.
The first question is whether this delay fulfills the "at or about" condition.
In my opinion, here also there can be no hard and fast rule.
The main test is whether the statement was made as early as can reasonably be expected in the circumstances of the case and before there was opportu nity for tutoring or concoction.
It was suggested that the child could have complained to some women who were working in the neighbourhood, but that would not be natural in a child.
She would be frightened and her first instinct would be to run home to her mother.
The High Court 390 was satisfied on these points and so am I.
Consequently, the matter does fall within the ambit of section 157 read with section 8, Illustration (j).
The next question is whether the mother can be regard ed as an "independent" witness.
So far as this case is con cerned, I have no doubt on that score.
It may be that all mothers may not be sufficiently independent to fulfill the requirements of the corroboration rule but there is no legal bar to exclude them from its operation merely on the ground of their relationship.
Independent merely means independent of sources which are likely to be tainted.
In the absence of enmity against the accused there is no reason why she should implicate him falsely.
It is true the ac cused suggested that they were on bad terms but that has not been believed by anyone.
The third question is whether there is independent corroboration connecting the accused with the crime.
The only corroboration relied on for that is the previous state ment of the child to her mother.
That might not always be enough but this rule can be waived in a given case just as much as the necessity for any corroboration at all.
In the present case, the learned High Court Judges would have acted on the uncorroborrated testimony of the girl had they not felt pressed by the corroboration rule.
Viewing all the circumstances I am satisfied that the High Court was right.
I am satisfied that in this case, considering the conduct of the girl and her mother from start to finish, no corrobora tion beyond the statement of the child to her mother was necessary.
I am satisfied that the High Court was right in holding that that was enough to make it safe to act on her testimony.
I would dismiss the appeal and direct the appellant to surrender to his bail in accordance with the terms of his bond, serve out his sentence and pay the fine.
FAZL ALI J.
I agree.
Appeal dismissed.

dataset_name: IN-Abs

summary/full:
An omission to administer an oath, even to an adult, goes only to the credibility of the witness and not his competency; so also an omission of the Court or the authori ty examining a child witness formally to record that in its opinion the witness understands the duty of speaking the truth though he does not understand the nature of an oath or affirmation, does not affect the admissibility of the evi dence given by that witness.
Though it is desirable that judges and magistrates should always record their opinion when a child is to be examined that the child understands the duty of speaking the truth, and state why they think so, whether a magistrate or judge was really of that opinion can be gathered from the circumstances when there is no formal certificate to that effect on the record.
Mohamed Sugal Esa vs The King (A.I.R. , R, vs Sewa Bhogta F.N.), Samujh vs Emperor (1907) 10 O.C. 337) referred to.
Though a woman who has been raped is not an accomplice, her evidence has been treated by the Courts on somewhat similar lines, and the rule which requires corroboration of such evidence save in exceptional circumstances has now hardened into law.
The rule laid down in King vs Baskerville (L. R. with regard to the admissibility of the uneorrobo rated evidence of an accomplice is the law in India also so far as accomplices are concerned and it is not any higher in the case of sexual offences.
The only clarification of the rule that is necessary for the purposes of India is where this class of offence is tried by a judge without the aid of a jury.
In such cases it is necessary that the judge should give some indication in his judgment that he has had the rule of caution in his mind and should proceed to give reasons for considering it unnecessary to require corrobora tion on the facts of the particular case before him and show why he considers it safe to convict without corroboration in that particular case.
There is, however, no rule of law or 378 practice that there must in every case be corroboration before a conviction can be allowed to stand.
The view that though corroboration should ordinarily be required in the case of a grown up woman, it is unnecessary in the case of a child of tender years is not correct.
The true position is that in every case of this type the rule about the advisability of corroboration should be present to the mind of the judge; whether corroboration is unnecessary is a question of fact in every case.
Bishram vs Emperor (A.I.R. not approved; Mohamed Sugal Esa vs The King (A.I.R. followed.
The nature and the extent of the corroboration that is required when it is not considered safe to dispense with it, must necessarily vary with the circumstances of each case and also according to the particular circumstances of the offence charged.
It is however clear (i) that it is not necessary that there should be independent confirmation of every material circumstance in the sense that the independ ent evidence in the case, apart from the testimony of the complainant or accomplice, should itself be sufficient to sustain conviction; all that is required is that there must be "some additional evidence rendering it probable that the story of the accomplice (or the complainant) is true and that it is reasonably safe to act upon it," (ii) The inde pendent evidence must not only make it safe to believe that the crime was committed but must in some way reasonably connect the accused with it; (iii) the corroboration must come from independent sources and thus ordinarily the testi mony of one accomplice would not be sufficient to corrobo rate that of another accomplice;(iv) the corroboration need not be direct evidence that the accused committed the crime; it is sufficient if it is merely circumstantial evidence of his connection with the crime.
A previous statement of an accomplice or a complainant is admissible as evidence of conduct; it is also admissible as corroborg live evidence provided it fulfills the condi tions laid down in see.
157 of the Evidence Act.
The main test as to whether a previous statement was made "at or about the time when the fact took place", within the meaning of sec.
157, Evidence Act, is whether the state ment was made as early as can reasonably be expected in the circumstances of the case and before there was an opportuni ty for tutoring or concoction.
Where a person was charged with having committed rape upon a girl eight years of age and the only evidence to corroborate the testimony of the girl connecting the accused with the crime was a statement made by her to her mother some four hours after the incident, that she had been raped by the accused: Held, that in the circumstances of the case the testimony of the mother was admissible as independent corroborative evidence and 379 the girl 's previous statement was sufficient corroboration of the girl 's testimony for convicting the accused.


judgement:
Appeal No. 197 of 1956.
Appeal from the judgment and order dated August 6,1954, of the Bombay High Court in Appeal No. 30 of 1954, arising out of the judgment and order dated January 28, 1954, of the said High Court in Insolvency No. 74 of 1951.
1385 M. C. Setalvad, Attorney General for India, section N. Andley and J. B. Dadachanji, for the appellants.
Purshottam Tricumdas and I. N. Shroff, for the respondent.
February 20.
The following Judgment of the Court was delivered by GAJENDRAGADKAR J.
This appeal by special leave arises from the notice of motion taken out by the respondent official assignee under section 55 of the Presidency towns Insolvency Act against the appellants for a declaration that a deed of gift executed by the insolvent Daulatram Hukamchand on May 22, 1950, in favour of the appellants was void.
It appears that some creditors of Daulatram filed a petition in the High Court of Judicature at Bombay, Insolvency Case No. 74 of 1.951, for an order that the said Daulatram be adjudged insolvent as he had given notice of suspension of payment of the debts on August 2, 1951.
Daulatram was adjudicated in solvent on August 21, 1951, with the result that the estate of the insolvent vested in the respondent under section 17 of the Act.
On September 26, 1951, the respondent took out the present notice of motion.
The impugned deed of gift has been executed by the insolvent in favour of his wife and three sons who are the appellants before us.
In reply to the notice of motion appellants I to 3 filed a joint affidavit setting out the facts and circumstances under which the said deed of gift had been executed by the insolvent in their favour.
In substance, the appellants ' case was that, though the document purported to be a gift, it was really a transaction supported by valuable con sideration and as such it did not fall within the mischief of section 55 of the Act.
At the hearing of this notice of motion before Mr. Justice Coyajee, when the appellants sought to lead evidence in support of this plea, the respondent objected and urged that the evidence which the appellants wanted to lead was inadmissible under section 92 of the Indian Evidence Act.
The learned Judge, however, overruled the respondent 's objection and allowed the appellants to lead 1386 their evidence.
In the end the learned Judge did not accept the appellants ' contention and, by his judgment delivered on January 28, 1954, he granted the declaration claimed by the respondent under section 55 of the Act.
Against this judgment and order the appellants preferred an appeal (No. 30 of 1954) which was heard by Chagla C. J. and Shah J.
The learned Judges took the view that Mr. Justice Coyajee had erred in law in allowing oral evidence to be led by the appellants in support of their plea that the transaction evidenced by the deed of gift was in reality a transfer for consideration.
The learned Judges held that the gift in question had been executed by the donor in favour of the donees out of natural love and affection and that, under section 92, it was not open to the appellants to lead evidence to show that the transaction was supported not by the consideration of natural love and affection but by another kind of valuable consideration .
On this view of the matter the learned Judges did not think it necessary to consider the oral evidence actually led by the appellants and decide whether Mr. Justice Coyajee was right or not in rejecting the said evidence on the merits.
That is how the appeal preferred by the appellants was dismissed on August 6, 1964.
On September 23, 1954, the application made by the appellants for a certificate was rejected by the High Court at Bombay; but special leave was granted to the appellants by this Court on November 3, 1954, and that is how the appeal has come before us for final disposal.
The principal point which arises in this appeal is whether the appellants were entitled to lead oral evidence with a view to show the real nature of the impugned transaction.
In deciding this question, it would be necessary to consider the true scope and effect of sections 91 and 92 of the Evidence Act.
Chapter VI of the Evidence Act which begins with section 91 deals with the exclusion of oral by documentary evidence.
Section 91 provides that, " when the terms of a contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, 1387 and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary As, evidence is admissible under the provisions hereinbefore contained.
" The normal rule is that the contents of a document must be proved by primary evidence which is the document itself in original.
Section 91 is based on what is sometimes described as the " best evidence rule ".
The best evidence about the contents of a document is the document itself and it is the production of the document that is required by section 91 in proof of its contents.
In a sense, the rule enunciated by section 91 can be said to be an exclusive rule inasmuch as it excludes the admission of oral evidence for proving the contents of the document except in cases where secondary evidence is allowed to be led under the relevant provisions of the Evidence Act.
Section 92 excludes the evidence of oral agreements and it applies to cases where the terms of contracts, grants or other dispositions of property have been proved by the production of the relevant documents themselves under section 91 ; in other words ' it is after the document has been produced to prove its terms under section 91 that the provisions of section 92 come into operation for the purpose of excluding evidence of any oral agreement or statement, for the purpose of contradicting, varying, adding to or subtracting from its terms.
The application of this rule is limited to cases as between parties to the instrument or their representatives in interest.
There are six provisos to this section with which we are not concerned in the present appeal.
It would be noticed that sections 91 and 92 in effect supplement each other.
Section 91 would be frustrated without the aid of section 92 and section 92 would be inoperative without the aid of section 91.
Since section 92 excludes the admission of oral evidence for the purpose of contradicting, varying, adding to or subtracting from the terms of the document properly proved 176 1388 under section 91, it may be said that it makes the proof of the document conclusive of its contents.
Like section 91, section 92 also can be said to be based oil the best evidence rule.
The two sections, however, differ in some material particulars.
Section 91 applies to all documents, whether they purport to dispose of rights or not, whereas section 92 applies to documents which can be described as dispositive.
Section 91 applies to documents which are both bilateral and unilateral, unlike section 92 the application of which is confined only to bilateral documents.
Section 91 lays down the rule of universal application and is not confined to the executant or executants of the documents.
Section 92, on the other hand, applies only between the parties to the instrument or their representatives in interest.
There is no doubt that section 92 does not apply to strangers who are not bound or affected by the terms of the document.
Persons other than those who are parties to the document are not precluded from giving extrinsic evidence to contradict, vary, add to or subtract from the terms of the document.
It is only where a question arises about the effect of the document as between the parties or their representatives in interest that the rule enunciated by section 92 about the exclusion of oral agreement can be invoked.
This position is made absolutely clear by the provisions of section 99 itself.
Section 99 provides that " persons who are not parties to a document or their representatives in interest may give evidence of any facts tending to show a contemporaneous agreement varying the terms of the document.
" Though it is only variation which is specifically mentioned in section 99, there can be no doubt that the third party 's right to lead evidence which is recognized by section 99 would include, a right to lead evidence not only to vary the terms of the document, but to contradict the said terms or to add to or subtract from them.
If that be the true position, before considering the effect of the provisions of section 92 in regard to the appellants ' right to lead oral evidence, it would be necessary to examine whether section 92 applies at all to the present proceedings between the official assignee who is the respondent and the 1389 donees from the insolvent who are the appellants before us.
Does the official assignee represent the insolvent, and can he be described as the representative ininterest of the insolvent, when he moves the Insolvency Court under section 55 of the Presidency towns Insolvency Act ? It is true that, under section 17 of the Act, on the making of an order of adjudication, the property of the insolvent wherever situate vests in the official assignee and becomes divisible among his creditors; but the property in respect of which a declaration is claimed by the official assignee under section 55 has already gone out of the estate of the insolvent, and it cannot be said to vest in the official assignee as a result of the order of adjudication itself.
Besides, when the official assignee makes the petition under section 55 he does so obviously and solely for the benefit of the creditors.
An insolvent himself has, and can possibly have, no right to challenge the transfer effected by him.
In this respect the official assignee has a higher title than the insolvent and, when, under section 55, he challenges any transfer made by the insolvent, he acts not for the insolvent or on his behalf, but in the interest of the whole body of the insolvent 's creditors.
In theory and on principle, as soon as an order of adjudication is made, all proceedings in regard to the estate of the insolvent come under the control of the Insolvency Court.
It may be said that the official assignee in whom the estate of the insolvent vests is to guard not only the interests of the creditors of the insolvent but also " public morality and the interest which every member of the public has in the observance of commercial morality "(1).
There is no doubt that it is the Insolvency Court alone which has jurisdiction to annul the insolvent 's transactions, whether the case is governed by the Presidency towns Insolvency Act or by the Provincial Insolvency Act; and so the proceedings taken under section 55 cannot be deemed to be proceedings taken for and on behalf of the insolvent at all.
(1) " The Law of Insolvency in India " By Rt.
Sir D. F. Mulla, Kt. 2nd Ed., p. 231.
1390 The provisions of section 55 themselves support the same conclusion.
Under section 55, any transfer of property not being a transfer made before and in consideration of marriage or made in favour of a purchaser or encumbrancer in good faith and for valuable consideration shall, if the transferor is adjudged insolvent within two years of the date of transfer, be void against the official assignee.
This section, like section 53 A of the Provincial Insolvency Act, makes the impugned transfers voidable at the instance of the official assignee or the receiver.
The transfers in question are not declared void as between the parties themselves; they are avoided by the official assignee or the receiver and their avoidance is intended to enure for the benefit of the whole body of the creditors of the insolvent.
The relevant sections of the two Insolvency Acts in effect require the Insolvency Courts to set aside the impugned transactions in exercise of the Insolvency Courts ' exclusive jurisdiction in that behalf The obvious object of these provisions is to bring back to the insolvent 's estate, property which has left the estate by the impugned act of the insolvent himself and make the said property available for distribution amongst his creditors.
It would, therefore, be impossible to hold that, when the official assignee makes a petition under section 55 of the Act, he is acting as a representative ininterest of the insolvent.
In this connection it would be relevant to remember that, in cases governed by the Presidency towns Insolvency Act, the practice in Calcutta and Bombay consistently allows a creditor who has proved his debt to file a petition to set aside the transfer under section 55 of the Act if he shows that the official assignee, on being tendered a reasonable indemnity has unreasonably refused to make an application.
Similarly, under section 54 A of the Provincial Insolvency Act, a creditor himself can make the application if the receiver refuses to take any action.
Now, if an application is made by a creditor for setting aside a voluntary transfer effected by the insolvent, there can be no doubt that the creditor is not the representative 1391 in interest of the insolvent and the creditor would obviously not be affected by the provisions of section 92 of the Indian Evidence Act.
It would really be anomalous if section 92 were to apply to proceedings instituted by the official assignee under section 55 though the said section cannot and would not apply to similar proceedings instituted by a creditor.
Having regard to the object with which section 55 has been enacted, the nature of the proceedings taken under it, and the nature and effect of the final order which is contemplated under it, it is clear that, like the creditor who may apply, the official assignee also cannot be said to be the representative in interest of the insolvent in these proceedings.
If that be the true position, section 92 cannot apply to the present proceedings between the respondent and the appellants; and so there can be no doubt that the respondent would not be precluded from leading evidence of an oral agreement for the purpose of contradicting, varying, adding to or subtracting from the terms of the impugned document.
The question raised by Shri Purushottam which still remains to be considered is whether the appellants who undoubtedly are the representatives in interest of the insolvent can avoid the application of a. 92.
In our opinion, the answer to this question must be in favour of the appellants.
It is urged before us by Shri Purushottam that the scheme of the relevant provisions of Ch.
VI of the Indian Evidence Act is inconsistent with the appellants ' contention that they can lead oral evidence about the alleged agreement which may tend to change the character of the transaction itself.
Shri Purushottam bases his argument mainly on the provisions of section 91 read with section 99 of the Act.
He contends that section 91 requires the production and proof of the document itself for the purpose of proving the contents of the document; and by necessary implication all evidence about any oral agreement which may affect the terms of the document is excluded by section 91 itself.
We are not impressed by this argument.
As we have already observed, sections 91 and 92 really supplement each other.
It is because section 91 by itself would not have excluded 1392 evidence of oral agreements which may tend to vary the terms of the document that section 92 has been enacted; and if section 92 does not apply in the present case, there is no other section in the Evidence Act which can be said to exclude evidence of the agreement set up by the appellants.
What section 91 prohibits is the admission of oral evidence to prove the contents of the document.
In the present case, the terms of the document are proved by the production of the document itself.
Whether or not the said terms could be varied by proof of an oral agreement is a matter which is not covered by section 91 at all.
That is the subject matter of section 92; and so, if section 92 does not apply, there is no reason to exclude evidence about an oral agreement solely on the ground that if believed the said evidence may vary the terms of the transaction.
Shri Purushottam 'also relied upon the provi sions of section 99.
His argument is that it is only persons who are not parties to a document or their representatives in interest who are allowed by section 99 to give evidence of facts tending to show a contemporaneous agreement varying the terms of the document.
lit other words, the effect of section 99 is not only to allow strangers to lead such evidence, but to prohibit parties or their representatives in interest from leading such evidence independently of tile provisions of section 92 of the Evidence Act.
We do not read section 99 as laying down any such prohibition by necessary implication.
As a matter of fact, from the terms of section 92 itself, it is clear that strangers to the document are outside the scope of section 92 ; but section 99 has presumably been enacted to clarify the same position.
It would be unreasonable, we think, to hold that section 99 was intended not only to clarify the position with regard to the strangers to the document, but also to lay down a rule of exclusion of oral evidence by implication in respect of the parties to the document or their representatives in interest.
In our opinion, the true position is that, if the terms of any transfer reduced to writing are in dispute between a stringer to a document and a party to it or his representative in interest, the restriction imposed by section 92 in regard to 1393 the exclusion of evidence of oral agreement is inapplicable; and both the stranger to the document arid the party to the document or his representative in interest are at liberty to lead evidence of oral agreement notwithstanding the fact that such evidence, if believed, may contradict, vary, add to or subtract from its terms.
The rule of exclusion enun ciated by section 92 applies to both parties to the document and is based on the doctrine of mutuality.
It would be inequitable and unfair to enforce that rule against a party to a document or his representative in interest in the case of a dispute between the said.
party or his representative in interest on the one hand and the stranger on the other.
In dealing with this point we may incidentally refer to the relevant statement of the law by Phipson in his treatise on " Evidence": " Where the transaction has been reduced into writing merely by agreement of the parties ", it is observed, " extrinsic evidence to contradict or vary the writing is excluded only in proceedings between such parties or their privies, and not in those between strangers, or a party and a stranger; since strangers cannot be precluded from proving the truth by the ignorance, carelessness, or fraud of the parties (R. vs Cheadle, 3 B. and Ad. 833); nor, in proceedings between a party and a stranger, will the former be estopped, since there would be no mutuality " (1).
The result is that section 92 is wholly inapplicable to the present proceedings and so the appellants are entitled to lead evidence in support of the plea raised by them.
It appears that the attention of the learned Judges who heard the appeal in the High Court at Bombay was not drawn to this aspect of the matter.
That is why they proceeded to deal with the question about the admissibility of oral evidence led by the appellants on the assumption that section 92 applied.
We must accordingly set aside the decree passed by the court of appeal in the High Court at Bombay and send the appeal back to that Court for disposal on the merits in accordance with law.
In the circum (1) Phipson on Evidence 9th Ed., p. 602.
1394 stances of this case, we think that the fair order as to costs of this appeal would be that the costs should abide the final result in the appeal before the High Court at Bombay.
Appeal allowed.
Case remanded.

summary/full:
One D executed, on May 22, 1950, a deed of gift in favour of the appellants, his wife and sons.
Upon the application of his creditors D was adjudged an insolvent on August 21, 1951 and his estate vested in the respondent.
On September 26, 1951, the respondent took out a notice of motion under section 55 of the Presidency towns Insolvency Act for a declaration that the deed of gift was void.
In reply the appellants pleaded that the transaction, though it purported to be a gift, was in reality a transfer for valuable consideration.
The respondent objected that the evidence which the appellants sought to lead in support of their plea was inadmissible under section 92 of the Indian Evidence Act : Held, that section 92 of the Evidence Act was not applicable to the proceedings and the appellants were entitled to lead evidence in support of the plea raised by them.
Section 92 is only applicable to cases as between parties to an instrument or their representatives in interest.
Where, however the dispute is between a stranger to an instrument and a party to it or his representative in interest, section 92 is inapplicable, and both the stranger and the party or his representative are at liberty to lead evidence of oral agreement notwithstanding the fact that such evidence if believed, may contradict, vary, add to or subtract from its terms.
In the present case, though the appellants were the representatives in interest of the insolvent, the respondent, when he made the petition under section 55 of the Presidency towns Insolvency Act, was not acting as a representative in interest of the insolvent, and, therefore, the proceedings were not between the parties to the instrument or their representatives in interest.


judgement:
rit Petition No. 1032 of 1986.
(Under Article 32 of the Constitution of India).
Soli J. Sorabjee, Ms. section Ralhan, S.C. Dhande and Ms. Rekha Pandey for the petitioners.
770 V.S. Desai, A.S. Bhasme and Khanwilkar for the respondents.
The Judgment of the Court was delivered by PATHAK, C.J.
The petitioners manufacture electronic goods, including television sets, television cameras and television monitors.
The factories are located at Delhi, and the goods are sold through sales organisations spread all over India, including the State of Gujarat.
Section 7 of the Gujarat Sales Tax, Act, 1969 provides for the levy of sales tax on the turnover of sales of goods specified in Part A Sch.
II appended to the Act.
Entry 80A(a) of Part A of Sch.
II specifies the rate of tax applicable to the turnover of television sets.
The rate was 15% originally upto 1981, the Entry applied to all television sets, whether manufactured and sold within the State of Gujarat or imported from outside the State.
No distinction was made between the goods on the basis of the place of manufacture.
Sub section
(2) of section 49 of the Act empowers the State Government to exempt, in the public interest, any specified class of sales from payment of the whole or any part of the tax payable under the Act.
In 1981, while the rate for electronic goods entering the State for sale therein was maintained at 15%, the rate in respect of locally manufactured goods was reduced to 6% by Notification No. (GHN 51) GST 1081 (section 49)(109) TH issued under sub section
(2) of section 49 of the Act.
The Notification introduced a new entry in the Schedule dealing specifically with electronic goods manufactured in the State of Gujarat.
Thereafter in 1986 the rate of sales tax in respect of television sets imported from outside the State was reduced from 15% to 10% and for goods manufactured within the State of sales tax was reduced to 1% by Notification No. (GHN 22) GST 1086/(S. 49)(173) TH dated 29 March, 1986.
The petitioner contends that by lowering the rate of tax in respect of goods manufactured within the State, the State Government has created an invidious discrimination which is adversely affecting the free flow of inter state Trade and commerce, resulting in a contravention of Article 301 of the Constitution.
It is pointed out that a purchaser buying a television set manufactured within the State of Gujarat pays about Rs.250 to 300 less for a black and white model and Rs.750 to Rs.1,000 for a colour model.
It is said that the sales of electronic goods manufactured by the petitioner have been prejudicially affected within the State of Gujarat.
article 301 of the Constitution declares that subject to the provi 771 sions of Part XIII "trade, commerce and intercourse throughout the territory of India shall be free".
Clause (1) of article 303 prohibits "the legislature of a State from making any law giving, or authorising the giving of, any preference to one State or another, or making, or authorising the making of, any discrimination between one State and another, by virtue of any entry relating to trade and commerce in any of the Lists in the Seventh Schedule".
The terms of the prohibition are subject to article 304, which provides: "Notwithstanding anything in article 301 or article 303, Legislature of a State may by law: (a) impose on goods imported from other States or the Union territories any tax to which similar goods manufactured or produced in that State are subject, so, however, as not to discriminate between goods so imported and goods so manufactured or produced; and (b) impose such reasonable restrictions on the freedom of trade, commerce or intercourse with or within that State as may be required in the public interest: Provided that no Bill or amendment for the purpose of clause (b) shall be introduced or moved in the Legislature of a State without the previous sanction of the President.
" It is apparent that while a State Legislature may enact a law imposing a tax on goods imported from other States as is levied on similar goods manufactured in that State the imposition must not be such as to discriminate between goods so imported and goods so manufactured.
In the Firm A.T.B. Mehtab Majid & Co. vs State of Madras & Anr., [1963] Suppl.
2 S.C.R. 435 this Court was called upon to consider the validity of Rule 16 of the Madras General Sales Tax Rules under which tanned hides and skin imported from outside the State of Madras were subject to a higher rate of tax then the tax imposed on hides and skins tanned and sold within the State.
Referring to its earlier decisions in Atiabari Tea Co. Ltd. vs The State of Assam and Ors.
,[1961] 1 S.C.R. 809 and The Automobile Transport (Rajasthan) Ltd. vs The State of Rajasthan & Ors., [1963] 1 S.C.R. 491 where the scope and significance of article 301 were explained, it proceeded to observe: "It is therefore now well settled that taxing laws can be restrictions on trade, commerce and intercourse, if they hamper the flow of trade and if they are not what can be termed to be compensatory taxes or regulatory measures.
772 Sales tax, of the kind under consideration here, cannot be said to be a measure regulating any trade or a compensatory tax levied for the use of trading facilities.
Sales tax, which has the effect of discriminating between goods of one State and goods of another, may affect the free flow of trade and it will then offend against article 301 and will be valid only if it comes within the terms of article 304(a).
article 304(a) enables the Legislature of a State to make laws affecting trade, commerce and intercourse.
It enables the imposition of taxes on goods from other States if similar goods in the State are subjected to similar taxes, so as not to discriminate between the goods manufactured or produced in that State and the goods which are imported from other States.
This means that if the effect of the sales tax on tanned hides or skins imported from outside is that the latter becomes subject to a higher tax by the application of the proviso to sub rule of r. 16 of the Rules, then the tax is discriminatory and unconstitutional and must be struck down." So also in H. Anraj vs Government of Tamil Nadu and Dipak Dhar & Ors.
vs State of West Bengal & Anr., this Court struck down the levy of tax imposed by the State of Tamil Nadu on lottery tickets issued by other States and sold within the State of Tamil Nadu while exempting from such levy lottery tickets issued by the Government of Tamil Nadu.
In answer to the writ petition, the respondents point out that the rate of tax was reduced in the case of goods manufactured locally in order to provide an incentive for encouraging local manufacturing units.
Reference is made to cl.(b) and (c) of article 39 of the Constitution.
We do not think that any support can be derived from the two clauses of article 39.
(a) of article 304 is clear in meaning.
An exception to the mandate declared in article 301 and the prohibition contained in Cl.
(1) of article 303 can be sustained on the basis of cl.
(a) of article 304 only if the conditions contained in the latter provision are satisfied.
In the result, the discrimination effected by applying different rates of tax between goods imported into the State of Gujarat and goods manufactured within that State must be struck down.
The next question is whether, for the purpose of ensuring the 773 same rate of tax between the petitioners and the local manufacturers, the levy of the higher rate of tax suffered by the petitioners should be quashed and they be held entitled to the levy of the lower rate applied to the local manufacturers or should the higher rate imposed on the petitioners be maintained and the notifications imposing the lower rate on local manufacturers be quashed.
A perusal of the record shows that the grievance of the petitioners has arisen only because the local manufacturers have been favoured by a lower rate of tax.
So long as the higher rate of tax imposed on the petitioners was also suffered by the local manufacturers, no complaint was voiced by the petitioners.
It is the levy of the lower rate on local manufacturers that constitutes the substance of the grievance.
That is borne out by the terms of the relief specifically claimed by the petitioners, that the notifications specifying a lower rate for local manufacturers should be quashed.
Moreover, the rate levied on the petitioners is the rate prescribed under section 7 of the Act.
That is the rate applied generally.
It represents the normal standard of levy.
The lower rate applied to local manufacturers has been applied by invoking sub section
(2) of section 49 of the Act.
It represents a departure from, or exception to, the general norm.
In cases such as this, the Court should, when granting relief, choose the alternative which would give effect to the statutory intention.
And, therefore, in this case what is called for is the quashing of the impugned notifications reserving a lower rate of tax for local manufacturers.
Accordingly, the writ petition is allowed and the Notifications No. (GHN 51) GST 1081 (section 49)(109) TH dated 23 July, 1981 and No. (GHN 22) GST 1086/(S.49)(173) TH dated 29 March, 1986 prescribing a lower rate of tax for local manufacturers in respect of television sets and other electronic goods are quashed.
The petitioners are entitled to their costs.
H.L.C. Petition allowed.

summary/full:
By availing of its powers under sub section
(2) of section 49 of the Gujarat Sales Tax Act, 1969 to exempt, in the public interest, any specified class of sales from payment of the whole or any part of the tax payable under the Act, the Government of Gujarat issued two notifications prescribing a lower rate of tax for goods manufactured within the State as compared to similar goods imported from outside the State.
The petitioners, who are manufacturing electronic goods, including television sets etc., in factories located outside the State, challenged the validity of these notifications as violative of article 301 of the Constitution.
The State Government contended that the rate of tax was reduced in order to provide as incentive for encouraging local manufacturing units and sought to draw support for its action from clauses (b) and (c) of article 39.
Allowing the Petition and quashing the notifications aforesaid, ^ HELD: article 301 declares that subject to the provisions of Part XIII, trade, commerce and intercourse throughout the territory of India shall be free.
Clause (1) of article 303 prohibits the legislature of a State from making any law giving, or authorising the giving of, any preference to one State or another, or making, or authorising the making of, any discrimination between one State and another.
The terms of the prohibition are subject to article 304.
Clause (a) of article 304 provides that the legislature of a State may, by law, impose on goods imported from other States any tax to which similar goods manufactured or produced in that State are subject so, however, as not to discriminate between goods so imported and goods so manufactured or produced.
It is apparent that while a State Legislature may enact a law 769 imposing a tax on goods imported from other States, as is levied on similar goods manufactured in that State, the imposition must not be such as to discriminate between goods so imported and goods so manufactured.
We do not think any support can be derived from the two clauses of article 39 to justify the reduction in the rate of tax in the case of goods manufactured locally.
Clause (a) of article 304 is clear in meaning.
An exception to the mandate declared in article 301 and the prohibition contained in cl.
(1) of article 303 can be sustained on the basis of cl.
(a) of article 304 only if the conditions contained in the latter provision are satisfied.
[770H;771A B,772F G] Firm A.T.B. Mehtab Majid & Co. vs State of Madras & Anr., [1963] Suppl.
2 S.C.R. 435; Atiabari Tea Co. Ltd. vs The State of Assam and Ors.
, ; ; The Automobile Transport (Rajasthan) Ltd. vs The State of Rajasthan & Ors., [1963] 1 S.C.R. 491 and H. Anraj etc.
vs Government of Tamil Nadu etc., , relied on.
(ii) The next question is whether, for the purpose of ensuring the same rate of tax between the petitioners and the local manufacturers, the levy of the higher rate of tax suffered by the petitioners should be quashed and they be held entitled to the levy of the lower rate applied to the local manufacturers, or, should the higher rate imposed on the petitioners be maintained and the notifications imposing the lower rate on local manufacturers be quashed.
The grievance of the petitioners has arisen only because the local manufacturers have been favoured by a lower rate of tax.
The rate levied on the petitioners is the rate prescribed under section 7 of the Act.
That is the rate applied generally.
It represents the normal standard of levy.
The lower rate applied to local manufacturers has been applied by invoking sub section
(2) of section 49 of the Act.
It represents a departure from, or exception to, the general norm.
In cases such as this, the Court should, when granting relief, choose the alternative which would give effect to the statutory intention.
And, therefore, in this case what is called for is the quashing of the impugned notifications reserving a lower rate of tax for local manufacturers.
[772H; 773A E]