judgement:
N: Criminal Appeal No. 690 of 1982 etc.
From the Judgment and order dated 20.5.1982 of the Patna High Court in Criminal Appeal No. 329 of 1980.
R.K. Garg, R.K. Jain, Rajendra Singh, S.N. Jha, R.P. Singh, Rakesh Khanna, Md. Israeli and Ranjit Kumar for the Appellants.
Pramod Swaroop and Mrs. G.S. Misra for the Respondents.
B.B. Singh (Not Present) for the Respondents.
A.K. Panda for the Complainant in all the appeals.
The Judgment of the Court was delivered by DUTT, J.
These appeals are directed against the judgment of the Patna High Court affirming the order of the First Additional Sessions Judge, Arrah, convicting all the appellants under sections 302/34 IPC and section 27 of the Arms Act and sentencing each of them to rigorous imprisonment for life and rigorous imprisonment for three years respectively and further convicting the appellant Hare Krishna Singh under section 379 IPC and sentencing him to rigorous imprisonment for three years; all the sentences are to run concurrently.
The accused included two persons having the same name Paras Singh, one of Village Dhobaha, brother in law of Hare Krishna Singh, one of the appellants in Criminal Appeal No. 690 of 1982, and the other of Village Birampur and nephew of Jagdish Singh, the appellant in Criminal Appeal No. 616 of 1982.
We shall hereinafter refer to 6 the said two persons as 'Paras Singh of Dhobaha ' and 'Paras Singh of Birampur ' respectively.
The prosecution case as appearing from the Fardbeyan or the FIR lodged by one Sarabjit Tiwary (P.W. 3), a social worker, on 12.12.1987 in the Arrah Sadar Police Station, was that on that day at about 7.00 A.M. he was going to his brother in law Raghubir Mishra and just he reached near the main gate of the Sadar Hospital, he saw seven persons, namely, "(1) Hare Krishna Singh, resident of Dhanpura; (2) Sheo Narain Sharma, resident of Berkhembe Gali; (3) Ram Kumar Upadhyaya, resident of village Dumaria; (4) Jagdish Singh 's nephew of Birampur in military service; (5) brother in law of Hare Krishna Singh of Dhobaha in military service" and two more persons whom he could not identify.
All the said persons were armed with rifle, gun and pistol, and were standing near northern side of the eastern gate of the hospital.
At that time, two Rickshaws were coming from the eastern side.
In the front Rickshaw, Jitendra Choudhary and another person named Lallan Rai, Resident of village Maniya, were sitting and in the rear Rickshaw there were two girls.
As the Rickshaw of Jitendra Choudhary came near the persons mentioned above, all of a sudden, Hare Krishna Singh fired at Jitendra Choudhary from his gun, whereupon the latter fell down from the Rickshaw with the rifle which he was carrying with him.
The other persons also fired upon Jitendra Choudhary along with Hare Krishna Singh, as a result of which he died.
After that Hare Krishna Singh picked up the rifle of Jitendra Choudhary and touching his body said, "He is dead, let us take to our heels".
It may be mentioned here that the two girls referred to in the Fardbeyan or FIR are Premlata Choudhary (P.W. 1) and Sobha Choudhary (P.W. 2), sisters of the deceased Jitendra Choudhary.
After investigation by P.W. 9, the chargesheet was submitted against all the appellants and they were put up for trial.
The prosecution examined as many as 9 witnesses, of whom P.Ws. 1, 2, 3 and 8 were eye witnesses.
The defence of Hare Krishna Singh was that he was going to Patna along with the appellant Ram Kumar Upadhyaya and one Madan Singh in a Rickshaw and when the Rickshaw reached near the shop of Sita Ram, he received a bullet from behind and fell down.
He looked back and saw that one Dipu Prasad and Ram Lal were firing.
He also saw the deceased Jitendra Choudhary, Chhatu Choudhary and Lallan Rai (P.W. 8) firing from the eastern gate of the Hospital.
He examined five witnesses, D.Ws. 1 to 5, to prove the nature of injury sustained by him.
7 The defence of Paras Singh of Dhobaha was that he had not visited the village Dhanpura for the last fifteen years.
The defence of other appellants is also a denial of their complicity in the crime.
The learned Additional Sessions Judge, after an elaborate discussion and analysis of the evidence adduced on behalf of the parties, accepted the prosecution case and convicted and sentenced the appellants as mentioned above.
Regarding the injury sustained by Hare Krishna Singh, the learned Additional Sessions Judge was of the view that such injury had been deliberately introduced by him and held that he was not injured in the occurrence.
On appeal by the appellants, the High Court affirmed their convictions and sentences.
Hence these appeals be special leave.
It is contended by Mr. Garg, learned Counsel appearing on behalf of Hare Krishna Singh, one of the appellants in Criminal Appeal No. 690 of 1982, that the prosecution having failed to explain the injury sustained by the appellant in the same occurrence, such injury being a serious one, the prosecution witnesses should be disbelieved.
Counsel submits that in such circumstances, it should be held that the plea of the appellant of self defence has been probabilised, and that the prosecution must have withheld the true facts as to the genesis and origin of the occurrence.
Further, it is submitted that in any event, it has cast a great doubt on the prosecution case and the benefit of that doubt should go to the appellant.
The question, however, is whether it is an invariable rule that whenever an accused sustains an injury in the same occurrence, the prosecution is obliged to explain the injury and on the failure of the prosecution to do so, the prosecution case should be disbelieved.
Before answering the question we may refer to a few decisions of this Court cited at the Bar.
Mr. Garg has placed much reliance upon the decision of this Court in Lakshmi Singh vs State of Bihar, In that case, the accused sustained injuries in the same occurrence.
Fazal Ali, J., who delivered the judgment of the Court, observed that no independent witness had been examined by the prosecution to support the participation of the appellant in the assault.
Further, it was observed that the evidence of P.Ws. 1 to 4 clearly showed that they gave graphic description of the assault with regard to the order, the manner and the parts of the body with absolute consistency which gave an impression that they had given a parrot like version acting under a conspiracy to depose to one set of facts and one set of facts only.
In view of the nature of evidence of P.Ws. 1 to 4, this 8 Court accepted the contention made on behalf of the accused, particularly taking the entire picture of the narrative given by the witnesses, that P.Ws. 1 to 4 had combined together to implicate the accused falsely because of the long standing litigation between them and the said witnesses.
Thereafter, the Court considered the injuries that were inflicted on the person of the accused Dasrath Singh and laid down that where the prosecution fails to explain the injuries on the accused, two results follow: (1) that the evidence of the prosecution witness is untrue; and (2) that the injuries probabilise the plea taken by the appellants.
The principle of law laid down in the earlier decision of this Court in Mohar Rai vs State o f Bihar; , was followed.
In Mohar Rai 's case it has been laid down that in a murder case, the non explanation of the injuries sustained by the accused at about the time of the occurrence or in the case of altercation is a very important circumstance from which the court can draw the following inferences: (1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version; (2) that the witnesses who have denied the presence of the injuries on the person of the accused are Lying on a most material point and therefore their evidence is unreliable; (3) that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case.
The principles that have been laid down in Lakshmi Singh 's case have to be read in the context of the facts of that case.
It has been already pointed out that the prosecution witnesses have been disbelieved by this Court before it considered the question of failure of the prosecution to explain the injuries sustained by one of the accused.
If the prosecution witnesses had been believed in that case, the non explanation of the injuries sustained by the accused would not have affected the prosecution case.
Indeed, it has been laid down in Lakshmi Singh 's case that the non explanation of the injuries by the prosecution will not affect the prosecution case where injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries.
In Mohar Rai 's case (supra), the first appellant Mohar Rai was convicted under section 324 IPC for shooting and injuring P.W 1 at the instigation of the second appellant Bharat Rai, who was himself convicted of an offence under section 324 read with section 109 IPC.
9 The prosecution proceeded on the basis that the revolver (exhibit III), which was recovered from Mohar Rai, was the weapon that was used by him in the commission of the offence.
The ballistic expert, who was examined as D.W. 1, was positive that the seized empties as well as the misfired cartridge could not have been fired from exhibit III.
The evidence of D.W. 1 was accepted both by the trial court as well as by the High Court.
This Court rejected the prosecution case that Mohar Rai had fired three shots from exhibit III.
This Court held that once it was proved that the empties recovered from the scene could not have been fired from exhibit III, the prosecution case that those empties were fired from exhibit III by Mohar Rai stood falsified.
Thereafter, the injuries sustained by the two appellants, Mohar Rai and Bharath Rai, were considered by the Court and it held that the prosecution had failed to explain the injuries sustained by the appellants and observed that the failure of the prosecution to offer any explanation in that regard showed that the evidence of prosecution witnesses relating to the incident was not true or, at any rate, not wholly true.
Thus, in this case also the question of non explanation of the injuries on the accused was considered by the Court after it had rejected, on a consideration of evidence, the prosecution case that Mohar Rai had fired from the revolver (exhibit III).
In other words, if the prosecution case had been believed that the appellant Mohar Rai had fired from exhibit III injuring P.W. 1, the non explanation of the injuries sustained by the accused would not have affected the prosecution case.
On the other hand, in Bhaba Nanda Sharma vs State of Assam ; it has been categorically laid down by this Court that the prosecution is not obliged to explain the injuries on the person of the accused in all cases and in all circumstances.
It depends upon the facts and circumstances of each case whether the prosecution case becomes reasonably doubtful for its failure to explain the injuries on the accused.
In Ramlagan Singh vs State of Bihar, this Court again examined the question and it has been laid down that the prosecution is not called upon in all cases to explain the injuries received by the accused persons.
It is for the defence to put questions to the prosecution witnesses regarding the injuries of the accused persons.
When that is not done, there is no occasion for the prosecution witnesses to explain the injuries on the person of the accused.
In the instant case also, the injury sustained by the appellant Hare Krishna Singh, has not been put to the prosecution witnesses and so they had no occasion to explain the same.
In such circumstances, as laid down in Ramlagan Singh 's case, the non mention of the injuries on the person of the appellant in the prosecution evidence would not 10 affect the prosecution case, which has been accepted by the courts below.
In Onkarnath Singh vs State of U. P., this Court has reiterated its view as expressed in Bankey Lal vs State of U.P., and Bhagwan Tana Patil vs State of Maharashtra, that the entire prosecution case cannot be thrown overboard simply because the prosecution witnesses do not explain the injuries on the person of the accused.
Thereafter, it was observed as follows: "Such non explanation, however, is a factor which is to be taken into account in judging the veracity of the prosecution witnesses, and the court will scrutinise their evidence with care.
Each case presents its own features.
In some case, the failure of the prosecution to account for the in juries of the accused may undermine its evidence to the core and falsify the substratum of its story, while in others it may have little or no adverse effect on the prosecution case.
It may also, in a given case, strengthen the plea of private defence set up by the accused.
But it cannot be laid down as an invariable proposition of law of universal application that as soon as it is found that the accused had received injuries in the same transaction in which the complainant party was assaulted, the plea of private defence would stand prima facie established and the burden would shift on to the prosecution to prove that those injuries were caused to the accused in self defence by the complainant party.
For instance where two parties come armed with a determination to measure their strength and to settle a dispute by force of arms and in the ensuing fight both sides receive injuries, no question of private defence arises.
Much reliance has been placed by Mr. Garg on the following observation of Fazal Ali, J. in Jagdish vs State of Rajasthan, ; "It is true that where serious injuries are found on the person of the accused, as a principle of appreciation of evidence, it becomes obligatory on the prosecution to explain the injuries, so as to satisfy the Court as to the circumstances under which the occurrence originated.
But before this obligation is placed on the prosecution two conditions must be satisfied; 11 1.
that the injuries on the person of the accused must be very serious and severe and not superficial; 2. that it must be shown that these injuries must have been caused at the time of the occurrence in question.
" In Jagdish 's case, the High Court believed the prosecution witnesses and accepted the prosecution case that the injuries found on the deceased were very severe which resulted in his death and this Court agreed with the view taken by the High Court in convicting the appellant under section 302 IPC.
In regard to this point we may cite two other decisions relating to the plea of the accused of private defence.
In Munshi Ram vs Delhi Administration, it has been held by this Court that although the accused have not taken the plea of private defence in their statements under section 342 Cr. P.C., necessary basis for that plea had been laid in the cross examination of the prosecution witnesses as well as by adducing defence evidence.
It has been observed that even if an accused does not plead self defence, it is open to the court to consider such plea if the same arises from the material on record.
The burden of establishing that plea is on the accused and that burden can be discharged by showing preponderance of probabilities in favour of that plea on the basis of the material on record.
Munshi Ram 's case arises out of a dispute over the possession of land.
The case of the appellants that their relation was a tenant of the disputed land for over thirty years and that his tenancy was never terminated, was accepted by this Court.
In other words, the appellants were found to be in lawful possession of the land in question and that P.Ws. 17 and 19 had gone to the land with their friends, P.W. 19 being armed with a deadly weapon, with a view to intimidating the relation of the appellants, whose tenancy was not terminated.
They were held to be guilty of criminal trespass and of constituting an unlawful assembly.
In the context of the above facts, this Court made the observation that it is open to the court to consider the plea of private defence even though the same does not find place in the statement under section 342 Cr.
The next case that has been relied upon by Mr. Garg is that of State of Gujarat vs Bai Fatima, in that case, on behalf of the appellants the decision in Munshi Ram 's case (supra) was relied 12 upon in regard to the question of the plea of private defence.
In rejecting the contention of the accused, this Court pointed out that not only the plea of private defence was not taken by the accused in their statements under section 342 Cr.
P.C., but no basis for that plea was laid in the cross examination of the prosecution witnesses or by adducing any defence evidence.
As regards the injuries sustained by one of the accused, this Court observed as follows: "In material particulars the evidence of the three eye witnesses as also the evidence of dying declaration of the deceased before P.W. Gulamnabi is so convincing and natural that no doubt creeps into it for the failure of the prosecution to explain the injuries on the person of respondent No. 1.
The prosecution case is not shaken at all on that account.
We have referred to the above decisions in extenso in order to consider whether it is an invariable proposition of law that the prosecution is obliged to explain the injuries sustained by the accused in the same occurrence and whether failure of the prosecution to so explain the injuries on the person of the accused would mean that the prosecution has suppressed the truth and also the genesis or origin of the occurrence.
Upon a conspectus of the decisions mentioned above, we are of the view that the question as to the obligation of the prosecution to explain the injuries sustained by the accused in the same occurrence may not arise in each and every case.
In other words, it is not an invariable rule that the prosecution has to explain the injuries sustained by the accused in the same occurrence.
The burden of proving the guilt of the accused is undoubtedly on the prosecution.
The accused is not bound to say anything in defence.
The prosecution has to prove the guilt of the accused beyond all reasonable doubts.
If the witnesses examined on behalf of the prosecution are believed by the court in proof of the guilt of the accused beyond any reasonable doubt, the question of the obligation of the prosecution to explain the injuries sustained by the accused will not arise.
When the prosecution comes with a definite case that the offence has been committed by the accused and proves its case beyond any reasonable doubt, it becomes hardly necessary for the prosecution to again explain how and in what circumstances injuries have been inflicted on the person of the accused.
The accused may take the plea of the right of private defence which means that he had inflicted injury on the deceased or the injured 13 person in exercise of his right of private defence.
In other words, his plea may be that the deceased or the injured person was the aggressor and inflicted injury on the accused and in order to defend himself from being the victim of such aggression, he had inflicted injury on the aggressor in the exercise of his right of private defence.
As has been held in Munshi Ram 's case (supra) the burden of establishing the plea of private defence is on the accused and the burden can be discharged by showing preponderance of probabilities in favour of that plea on the basis of the material on record.
It, therefore, follows that simply because the accused has received injuries in the same occurrence, it cannot be taken for granted that the deceased or the injured person was the aggressor and consequently, he had to defend himself by inflicting injury on the deceased or the injured person.
All the decisions of this Court which have been referred to and discussed above, show that when the court has believed the prosecution witnesses as convincing and trustworthy, the court overruled the contention of the accused that as the prosecution had failed to explain the injuries sustained by the accused in the same occurrence, the prosecution case should be disbelieved and the accused should be acquitted.
Thus, it is not the law or invariable rule that whenever the accused sustains an injury in the same occurrence, the prosecution has to explain the injuries failure of which will mean that the prosecution has suppressed the truth and also the origin and genesis of the occurrence.
The learned Additional Sessions Judge has not believed the case of Hare Krishna Singh that he had sustained a bullet injury in the same occurrence and he has given reasons therefor.
The High Court has, however, come to the finding that Hare Krishna Singh was admitted in the hospital in an injured condition immediately after the occurrence.
We do not propose to reassess evidence on the question as to whether Hare Krishna Singh had sustained any injury or not.
We may assume that he had sustained a bullet injury in the same occurrence.
But, even then, in the facts and circumstances of the case the prosecution, in our opinion, is not obliged to account for the injury and that the failure of the prosecution to give a reasonable explanation of the injury would not go against or throw any doubt on the prosecution case.
The injury that was sustained by Hare Krishna Singh was on the back.
The P.Ws. 1 and 2, the two sisters of the deceased Jitendra Choudhary, denied the suggestion put to them on behalf of Hare Krishna Singh that their brother Jitendra Choudhary had been shoot 14 ing from his rifle.
P.W. 3, who is an independent witness and was present on the scene of occurrence, also denied the suggestion of the defence that there was firing on Hare Krishna Singh.
P.W. 8 Lallan Rai also denied such suggestion of the defence.
Hare Krishna Singh made a statement under section 313 Cr.
It is not his case that in self defence he had fired at the deceased Jitendra Choudhary.
He denied that he had any fire arms with him or that he had fired at Jitendra Choudhary.
He also denied that none of the accused had any weapon with him.
All the eye witnesses have stated that the appellant Hare Krishna Singh had fired on Jitendra Choudhary as a result of which he died.
The prosecution witnesses have been believed by the learned Additional Sessions Judge and the High Court.
In the circumstances, we do not think that the materials on record including the statement of Hare Krishna Singh under section 313 Cr. P.C., probabilise any case of self defence or that the deceased had inflicted on him the injury by firing at him from his rifle.
It may be that two empties were found by the side of the dead body of the deceased, but the High Court has rightly observed that the presence of the empties does not necessarily mean that the deceased had fired.
The High Court points out that three live cartridges were also recovered from the pocket of the deceased at the time of inquest and observes that keeping of empty cartridges by the side of the body of the deceased cannot be ruled out.
We do not find any infirmity in the view expressed by the High Court.
It is not at all amenable to reason that the deceased had started from his house along with his two sisters with a view to fighting with the accused.
In the circumstances, we are of the view that the appellant Hare Krishna Singh has been rightly convicted and sentenced as above.
Now we may deal with the case of Paras Singh of Dhobaha, one of the appellants in Criminal Appeal No. 690 of 1982.
He was found with the accused persons including Hare Krishna Singh.
It is not disputed that he is the brother in law of Hare Krishna Singh, as he has been described in the FIR.
It is the categorical evidence of P.Ws. 1, 2, 3 and 8 that Paras Singh of Dhobaha had fired at the deceased Jitendra Choudhary.
He has been identified by P.W. 1 in the T.I. Parade.
In the circumstances, we do not find any reason to interfere with the order of conviction and sentence passed by the courts below.
So far as Paras Singh of Birampur, the nephew of Jagdish Singh and the sole appellant in Criminal Appeal No. 616 of 1982, is concerned, his case stands on a different footing.
Indeed, Mr. Rajender 15 Singh, the learned Counsel appearing on behalf of the appellant, has challenged the very presence of the appellant, Paras Singh of Birampur, at the time of occurrence.
In the FIR, his name has not been mentioned, it has only been stated "Jagdish Singh 's nephew who is in military job of Birampur".
Jagdish Singh may have more than one nephew.
The I.O. (P.W. 9) in his evidence has stated that before the arrest of Paras Singh of Birampur, he did not know his name and he cannot say how many nephews Jagdish Singh has.
The only distinctive particular for identification, as given in the FIR, is that the nephew is in military service.
The prosecution has not adduced any evidence to show that the appellant is in military service, and that no other nephew of Jagdish Singh is in such service.
Thus, the prosecution has not been able to identify the appellant Paras Singh of Birampur with the description of Jagdish Singh 's nephew as given in the FIR.
The most significant fact is that P.W. 3 failed to identify the appellant in the T.I. Parade.
P.W. 8 did not attend the T.I. Parade.
His case is that he was not called to attend the T.I. Parade.
On the other hand, it is the defence case that P.W. 8 was called but he did not attend the T.I. Parade.
Whatever might have been the reason, the fact remains that no attempt was made by the prosecution to have Paras Singh of Birampur identified by P.W. 8.
In such circumstances, the High Court was not justified and committed an error of law in relying upon the statement of P.Ws. 3 and 8 made before the police mentioning the name of Paras Singh of Birampur.
It is true that P.Ws. 3 and 8 identified Paras Singh of Birampur in court, but such identification is useless, particularly in the face of the fact that P.W. 3 had failed to identify him in the T.I. Parade.
In the circumstances, the prosecution has failed to prove the complicity of Paras Singh of Birampur in the crime.
Indeed, the prosecution has failed to prove that Paras Singh of Birampur was present at the time of occurrence.
His conviction and sentence cannot, therefore, be sustained.
Now we may consider the cases of the remaining two accused, namely, Sheo Narain Sharma, the remaining appellant in Criminal Appeal No. 690 of 1982, and Ram Kumar Upadhaya, the sole appellant in Criminal Appeal No. 615 of 1982.
These two appellants have been convicted as a consequence of their sharing the common intention to murder the deceased Jitendra Choudhary.
Both of them have been named in the FIR.
It is submitted by the learned Counsel appearing on behalf of these two appellants that no specific overt act has been attributed to either of them.
It may be that they were found in the company of Hare Krishna Singh and Paras Singh of Dhobaha but, the 16 learned Counsel submits, that fact will not be sufficient to impute common intention to them.
So far as the appellant Ram Kumar Upadhaya is concerned, there is evidence that he went with Hare Krishna Singh, but there is no evidence that he had also left the place of occurrence with him.
It is the evidence of all the eye witnesses, namely, P.Ws. 1, 2, 3 and 8 that Hare Krishna Singh had fired a shot at the deceased Jitendra Choudhary, hitting him in the face and he rolled and fell down from the Rickshaw in front of the gate.
Thereafter, Paras Singh of Dhobaha also fired at the deceased.
After specifically mentioning the names of Hare Krishna Singh and Paras Singh of Dhobaha as persons who had fired at the deceased, P.W. 3 stated that thereafter two/three firings took place and all the accused went to the shop of Sita Ram in front of the gate on the road from where they also fired upon Jitendra Choudhary.
P.W. 8 in his evidence has also made a general statement that all the accused started firing upon Jitendra Choudhary.
It is not readily understandable why the witnesses did not specifically mention the names of Sheo Narain Sharma and Ram Kumar Upadhaya, if they had also fired at the deceased.
Except mentioning that these two appellants were present, no overt act was attributed to either of them.
The question is whether the crime was committed by Hare Krishna Singh and Paras Singh of Dhobaha in furtherance of the common intention of these two appellants also.
Common intention under section 34 IPC is not by itself an offence.
But, it creates a joint and constructive liability for the crime committed in furtherance of such common intention.
As no overt act whatsoever has been attributed to the appellants, Ram Kumar Upadhaya and Sheo Narain Sharma, it is difficult to hold, in the facts and circumstances of the case, that they had shared the common intention with Hare Krishna Singh and Paras Singh of Dhobaha.
When these two appellants were very much known to the eye witnesses, non mention of their names in the evidence as to their participation in firing upon the deceased, throws a great doubt as to their sharing of the common intention.
The convictions and sentences of these two appellants also cannot, therefore, be sustained.
For the reasons aforesaid, the convictions and sentences of Hare Krishna Singh and Paras Singh of Dhobaha are affirmed.
Criminal Appeal No. 690 of 1982, in so far as it relates to Hare Krishna Singh and Paras Singh of Dhobaha, is dismissed.
17 The conviction and sentence of Sheo Narain Sharma are set aside A and he is acquitted of all the charges.
Criminal Appeal No. 690 of 1982, in so far as it relates to Sheo Narain Sharma, is allowed.
Criminal Appeal No. 615 of 1982 is allowed.
The conviction and sentence of Ram Kumar Upadhaya are set aside and he is acquitted of all the charges.
Criminal Appeal No. 616 of 1982 is allowed.
The conviction and sentence of Paras Singh of Birampur are set aside and he is acquitted of all the charges.

summary/full:
% The prosecution case as appearing from the Fardbeyan or the FIR lodged by P.W. 3, a social worker was that on 12.12.1987 at about 7.00 A.M. he was going to his brother in law and just as he reached the main gate of the Sadar Hospital, he saw seven persons: (1) Hare Krishna Singh.
(2) Sheo Narain Sharma, (3) Ram Kumar Upadhyaya, (4) Jagdish Singh 's nephew Paras Singh of Birampur, (5) Hare Krishna Singh 's brother in law, Paras Nath Singh of Dhobaha, the appellants and two more whom he could not identify.
All these persons were armed with rifle, gun and pistol and were standing near the northern side of the eastern gate, of the Hospital.
At that time two Rickshaws were coming from the eastern side.
In the front rickshaw the deceased Jitendra Choudhary, was sitting along with another person and in the rear rickshaw were his two sisters, PW I and PW 2.
As the rickshaw of the deceased came close to these seven persons, Hare Krishna Singh fired at the deceased from his gun, whereupon the latter fell down from the rickshaw with the rifle which he was carrying.
The other persons also fired upon the deceased as a result of which he died.
After that Hare Krishna Singh picked up the rifle of the deceased and took to his heels.
After investigation by PW 9, the charge sheet was submitted against all the appellants and they were put up for trial.
The prosecution examined as many as 9 witnesses of whom PWs.
1, 2, 3 and 8 were eye witnesses.
The defence of the appellant Hare 2 Krishna Singh was that while he was going to Patna along with appellant Ram Kumar Upadhyaya and one Madan Singh in a rickshaw, and that when the rickshaw in which the deceased was travelling came close to him, the deceased fired at him and that he sustained injuries.
He examined five witnesses DWs.
1 to 5, to prove the nature of injury sustained by him.
The defence of Paras Singh of Dhobaha was that he had not visited the village for the last fifteen years, while the defence of the other remaining appellants was a denial of their complicity in the crime.
The Additional Sessions Judge accepted the prosecution case, and convicted and sentenced the appellants to various periods of imprisonment.
On appeal by the appellants the High Court affirmed the convictions and sentences.
In the appeals by certificate to this Court it was contended: (a) on behalf of Hare Krishna Singh, appellant in Crl.
A. No. 690/82 that the prosecution having failed to explain the injury sustained by Hare Krishna Singh in the same occurrence, such injury being a serious one, the prosecution witnesses should be disbelieved, and that in such circumstances it should be held that the plea of the appellant of self defense shall be probabilised and that the prosecution must have withheld the true facts as to the genesis and origin of the occurrence, and that in any event a great doubt had been cast on the prosecution case and the benefit of that doubt should go to the appellant.
(b) on behalf of Paras Singh of Birampur, the nephew of Jagdish Singh, the sole appellant in Cr. A. No. 616/82 that in the FIR his name was not mentioned, that PW 3 failed to identify him in the T.I. Parade, that PW 8 did not attend the T.I. Parade, and that he was not present at the time of occurrence.
(c) on behalf of Sheo Narain Sharma the remaining appellant in Crl.
A. No. 690/82 and Ram Kumar Upadhayaya sole appellant in Crl.
A. No. 615/82, that no specific overt act had been attributed to either of them and the fact that they were found in the company of Hare Krishna Singh and Paras Singh of Dhobaha could not be sufficient to impute common intention to them.
Dismissing Criminal Appeal No. 690 of 1982 in so far as it relates to Hare Krishna Singh and Paras Singh of Dhobaha, and allowing it in 3 respect of Sheo Narain Sharma and acquitting him of all the charges; and allowing Crl.
A. Nos. 615 and 616 of 1982 and setting aside the convictions and sentences of Ram Kumar Upadhayaya and Paras Singh of Birampur and acquitting them of all the charges.
^ HELD: 1.
It is not an invariable rule that the prosecution has to explain the injuries sustained by the accused in the same occurrence.
The burden of proving the guilt of the accused is undoubtedly on the prosecution.
The accused is not bound to say anything in defence.
The prosecution has to prove the guilt of the accused beyond all reasonable doubts.
If the witnesses examined on behalf of the prosecution are believed by the court in proof of the guilt of the accused beyond any reasonable doubt, the question of the obligation of the prosecution to explain the injuries sustained by the accused will not arise.
[12E F]] 2.
When the prosecution comes with a definite case that the offence has been committed by the accused and proved its case beyond any reasonable doubt, it becomes hardly necessary for the prosecution to again explain how and in what circumstances the injuries have been inflicted on the person of the accused.
[12G] 3.
Simply because the accused has received injuries in the same occurrence, it cannot be taken for granted that the deceased or the injured person was the aggressor and consequently, he had to defend himself by inflicting injury on the deceased or the injured person.
[13B C] 4.
It is not the law or invariable rule that whenever the accused sustains an injury in the same occurrence the prosecution has to explain the injuries failure of which will mean that the prosecution has suppressed the truth and also the origin and genesis of the occurrence.
[13D E]] 5.
Common intention under section 34 IPC is not by itself an offence.
But, it creates a joint and constructive liability for the crime committed in furtherance of such common intention.
[16E F] 6.
As no overt act whatsoever has been attributed to the appellants, Ram Kumar Upadhyaya and Sheo Narain Sharma, it is difficult to hold, in the facts and circumstances of the case, that they had shared the common intention with Hare Krishna Singh and Paras Singh of Dhobaha.
When these two appellants were very much known to the eye witnesses PW 3 and 8 non mention of their names in the evidence as to 4 their participation in firing upon the deceased, throws a great doubt as to their sharing of the common intention.
The conviction and sentences of these two appellants cannot therefore be sustained.
They are therefore acquitted of all the charges.
[16F G] 7.
The Additional Sessions Judge has not believed the case of R Hare Krishna Singh that he had sustained a bullet injury in the same occurrence and he has given reasons therefor.
The High Court has, however, come to the finding that Hare Krishna Singh was admitted in the hospital in an injured condition immediately after the occurrence.
In the facts and circumstances of the case the prosecution is not obliged to account for the injury and that the failure of the prosecution to give a reasonable explanation of the injury would not go against or throw any doubt on the prosecution case.
All the eye witnesses have stated that the appellant Hare Krishna Singh had fired on Jitendra Choudhary as a result of which he died.
The prosecution witnesses have been believed by the Additional Sessions Judge and High Court.
In these circumstances it cannot be thought that the materials on record including the statement of Hare Krishna Singh under section 313 Cr.
P.C. probablise any case of self defence or that the deceased had inflicted on him the injury by firing at him from his rifle.
The appellant Hare Krishna Singh has therefore, been rightly convicted and sentenced.
[13E G; 14B C, F] 8.
As regards Paras Singh of Dhobaha he was found with the accused persons including Hare Krishna Singh.
It is not disputed that he is the brother in law of Hare Krishna Singh as has been described in the FIR.
It is the categorical evidence of PWs.
1, 2, 3 and 8 that Paras Singh of Dhobaha had fired at the deceased.
He has been identified by PW1 in the T.I. Parade.
In these circumstances there is no reason to interfere with the order of conviction and sentence passed by the Courts below.
[14F G]] 9.
The prosecution has not been able to identify the appellant Paras Singh of Birampur with the description of Jagdish Singh 's nephew as given in the FIR.
PW. 3 failed to identify the appellant in the T.I. Parade.
PW. 8 did not attend the T.I. Parade.
In such circumstances, the High Court was not justified and committed an error of law in relying upon the statements of PWs 3 and 8 made before the police mentioning the names of Paras Singh of Birampur.
The prosecution has failed to prove the complicity of Paras Singh of Birampur in the crime and that he was present at the time of occurrence.
His conviction and sentence cannot therefore be sustained and are set aside.
He is acquitted of all the charges.
[15C F] 5 Bhaba Nanda Sharma vs State of Assam, ; ; Ramlagan Singh vs State of Bihar, ; Onkarnath Singh vs State of U.P., ; Bankey Lal vs State of U.P., and Bhagwan Tana Patil vs State of Maharashtra, , relied on.
Lakshmi Singh vs State of Bihar, ; Mohar Rai vs State of Bihar; ; ; Jagdish vs State of Rajasthan; , ; Munshi Ram vs Delhi Administration and State of Gujarat vs Bai Fatima, , distinguished.


judgement:
Writ Petition (Crl.) No. 562 of 1986 (Under Article 32 of the Constitution of India.) Ms. Geetha Ramaseshan and Ms. Seita Vaidilingam for the Petitioner.
D.N. Dwivedi, Ashok K. Srivastava and section Suri for the Respondents.
75 The Judgment of the Court was delivered by THAKKAR, J.
Not only the option to 'make up ' or 'break up ' but also the right to 'haul up ' the erring husband before a Criminal Court, is claimed by the aggrieved wife irrespective of the fact that the husband of an erring wife does not have a corresponding right.
Or else the conscience of the 'EQUALITY ' clause will not be appeased is the plea made by the anguished wife.
Accordingly, a constitutional gun has been pointed at the provision which in its effect permits only the husband of the adulteress to prosecute the adulterer but does not permit the wife of the adulterer to do so.
True it is, neither of the spouses can prosecute each other.
But the aggrieved wife complains that to deny her the right to prosecute her offending husband for the offence of adultery punishable under Section 497 of the Indian Penal Code is to violate the Constitution by discriminating against her on the ground of her sex.
The provision which disables the wife from prosecuting the husband for such an offence is embodied in Section 198(1) read with Section 198(2)i of the Code of Criminal Procedure, 1973 which carves out an exception to the general rule that any one can set the criminal law in motion.
The constitutional validity of this provision which disables the wife from prosecuting the husband, has been called into question by a wife by way of the present petition under Article 32 of the Constitution of India.
Be it realised that Section 497 of the Indian Penal Code is so designed that a husband cannot prosecute the wife for defiling the sanctity of the matrimonial tie by committing adultery.
Thus the law 1. "198.
Prosecution for offence against marriage (1) No Court shall take congnizance of an offence punishable under Chapter XX of the Indian Penal Code (45 of 1860) except upon a complaint made by some person aggrieved by the offence: Provided that (a) xxxxx (b) xxxxx (2) For the purposes of sub section (1), no person other than the husband of the woman shall be deemed to be aggrieved by any offence punishable under Section 497 or Section 498 of the said Code; Provided that in the absence of the husband, some person who had care of the woman on his behalf at the time when such offence was committed may, with the leave of the Court, make a complaint on his behalf.
" 76 permits neither the husband of the offending wife to prosecute his wife nor does the law permit the wife to prosecute the offending husband for being disloyal to her.
Thus both the husband and the wife are disabled from striking each other with the weapon of criminal law.
The petitioner wife contends that whether or not the law permits a husband to prosecute his disloyal wife, the wife cannot be lawfully disabled from prosecuting her disloyal husband.
And that in so far as and to the extent Section 198(2) of the Code of Criminal Procedure operates as a fetter on the wife in prosecuting her adulterer husband, the relevant provisions is unconstitutional on the ground of obnoxious discrimination, she asserts.
This very argument came to be debated before a Bench of this Court in Sowmithri Vishnu vs Union of India & Anr., ; in the context of a challenge to the constitutionality of Section 4972 of the Indian Penal Code by an adulterer who had been prosecuted for the offence of adultery under Section 497 of the Indian Penal Code by the husband of the adultress.
Three grounds were pressed into service in support of the challenge rooted in Article 14 of the Constitution of India in Sowmithri Vishnu 's case (supra).
Ground No. 2 was in the following terms: "Section 497 does not confer any right on the wife to prosecute the husband who has committed adultery with another woman.
This ground of challenge has been dealt with by this Court in para 8 of the said judgment wherein Chandrachud, CJ.
spoke thus on behalf of the Court: "In so far as the second of the three grounds is concerned, Section 497 does not envisage the prosecution of the wife by the husband for 'adultery '.
The offence of adultery as defined in that section can only be committed by a man, not by a woman.
Indeed the section provides, expressly that the wife shall not be punishable even as an abettor.
No grievance can then be made that the section does not allow 2.
Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe to be the wife of another man, without the consent or connivance of that man, such sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery and shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both.
In such case the wife shall not be punishable as an abettor.
" 77 the wife to prosecute the husband for adultery.
The contemplation of the law, evidently is that the wife, who is involved in an illicit relationship with another man, is a victim and not the author of the crime.
The offence of adultery as defined in Section 497 is considered by the legislature as an offence against the sanctity of the matrimonial home, and act which is committed by a man, as it generally is.
Therefore, those men who defile that sanctity are brought with the net of the law.
In a sense, we revert to the same plint.
Who can prosecute who for which offence depends firstly, on the definition of the offence and, secondly, upon the restrictions placed by the law of procedure on the right to prosecute.
" Thus this very argument has already been repulsed by this Court, albeit, in the context of the challenge to Section 497 of the Indian Penal Code.
The same bullet has now been fired in order to assail Section 198(2) of the Criminal Procedure Code in so far as it confines the right to prosecute the adulterer to the aggrieved husband of the adulteress.
The argument in support of the challenge is that whether or not the husband has the right to prosecute the disloyal wife, the wife must have the right to prosecute the disloyal husband.
Admittedly under the law, the aggrieved husband whose wife has been disloyal to him has no right under the law to prosecute his wife, in as much as by the very definition of the offence, only a man can commit it, not a woman.
The philosophy underlying the scheme of these provisions appears to be that as between the husband and the wife social good will be promoted by permitting them to 'make up ' or 'break up ' the matrimonial tie rather than to drag each other to the criminal court.
They can either condone the offence in a spirit of 'forgive and forget ' and live together or separate by approaching a matrimonial court and snapping the matrimonial tie by securing divorce.
They are not enabled to send each other to jail.
Perhaps it is as well that the children (if any) are saved from the trauma of one of their parents being jailed at the instance of the other parent.
Whether one does or does not subscribe to the wisdom or philosophy of these provisions is of little consequence.
For, the Court is not the arbiter of the wisdom or the philosophy of the law.
It is the arbiter merely of the constitutionality of the law.
Section 497 of the Indian Penal Code and Section 198(1) read with Section 198(2) of the Criminal Procedure Code go hand in hand and constitute a legislative packet to deal with the offence committed 78 by an outsider to the matrimonial unit who invades the peace and privacy of the matrimonial unit and poisons the relationship between the two partners constituting the matrimonial unit.
The community punishes the 'outsider ' who breaks into the matrimonial home and occasions the violation of sanctity of the matrimonial tie by developing an illicit relationship with one of the spouses subject to the rider that the erring 'man ' alone can be punished and not the erring woman.
It does not arm the two spouses to hit each other with the weapon of criminal law.
That is why neither the husband can prosecute the wife and send her to jail nor can the wife prosecute the husband and send him to jail.
There is no discrimination based on sex.
While the outsider who violates the sanctity of the matrimonial home is punished a rider has been added that if the outsider is a woman she is not punished.
There is thus reverse discrimination in 'favour ' of the woman rather than 'against ' her.
The law does not envisage the punishment of any of the spouses at the instance of each other.
Thus there is no discrimination against the woman in so far as she is not permitted to prosecute her husband.
A husband is not permitted because the wife is not treated an offender in the eye of law.
The wife is not permitted as Section 198( l) read with section 198(2) does not permit her to do so.
In the ultimate analysis the law has meted out even handed justice to both of them in the matter of prosecuting each other or securing the incarceration of each other.
Thus no discrimination has been practised in circumscribing the scope of Section 198(2) and fashioning it so that the right to prosecute the adulterer is restricted to the husband of the adulteress but has not been extended to the wife of the adulterer.
The provision in question is therefore not vulnerable to the charge of hostile discrimination against a woman and cannot be successfully assailed from that platform.
The petition must therefore fail and be dismissed.

dataset_name: IN-Abs

summary/full:
% The constitutional validity of Section 198 Cr.
P.C. has been called into question by a wife by way of the present petition under Article 32 of the Constitution of India.
The petitioner wife contended that whether or not the law permits a husband to prosecute his disloyal wife, the wife cannot be lawfully disabled from prosecuting her disloyal husband.
The petitioner asserted that in so far as and to the extent Section 198(2) of the Code of Criminal Procedure operates as a fetter on the wife in prosecutising her adulterer husband, the relevant provisions is unconstitutional on the ground of abnoxious discrimination, Dismissing the petition, this Court, ^ HELD: 1.
Admittedly under the law, the aggrieved husband, whose wife has been disloyal to him, has no right under the law to prosecute his wife, inasmuch as by the very definition of the offence, only a man can commit adultery, not a woman.
As between the husband and the wife social good will be promoted by permitting them to 'make up ' or 'break up ' the matrimonial tie rather than to drag each other to the criminal court.
They can either condone the offence in a spirit of 'forgive and forget ' and live together or separate by approaching a matrimonial court and snapping the matrimonial tie by securing divorce.
They are not enabled to send each other to jail.
Perhaps the children are saved from the trauma of one of their parents being jailed 74 at the instance of the other parent.
[77E G] 2.
Section 497 does not confer any right on the wife to prosecute the husband who has committed adultery with another woman.
Section 497 of the Indian Penal Code and section 198(1) read with section 198(2) of the Criminal Procedure Code go hand in hand and constitute a legislative packet to deal with the offence committed by an outsider to the matrimonial unit who invades the peace and privacy of the matrimonial unit and poisons the relationship between the two partners constituting the matrimonial unit.
The community punishes the 'outsider ' who breaks into the matrimonial home and occasions the violation of sanctity of the matrimonial tie by developing an illicit relationship with one of the spouses subject to the rider that the erring 'man ' alone can be punished and not the erring woman.
[77H; 78A B] Sowmithri Vishnu vs Union of India & Anr., ; , referred to.
Section 198 Cr.
P.C. is not vulnerable to the charge of hostile discrimination against a woman.
While the outsider who violates the sanctity of the matrimonial home is punished a rider has been added that if the outsider is a woman she is not punished.
There is thus reverse discrimination in 'favour ' of the woman rather than 'against ' her.
The law does not envisage the punishment of any of the spouses at the instance of each other.
Thus there is no discrimination against the woman in so far as she is not permitted to prosecute her husband.
A husband is not permitted because the wife is not treated an offender in the eye of law.
The wife is not permitted as Section 198(1) read with section 198(2) does not permit her to do so.
The law has meted out even handed justice to both of them in the matter of prosecuting each other or securing the incarceration of each other.
[78C E]


judgement:
CIVIL APPEAL No. 2185 of 1987.
From the Judgment and Order dated 4th August 1986 of the High Court of Delhi in R.F.A. No. 16 of 1986.
S.N. Kacker, Awadh Behari and A.K. Sanghi for the Appellants.
U.R. Lalit, R.S. Hegde and K.R. Nagaraja for the Respondents.
The Judgment of the Court was delivered by SEN, J.
This appeal by special leave by the defendants arises in a suit for a declaration and injunction brought by the plaintiffs and in the alternative for partition.
They sought a declaration that they were the owners in possession of the portions of the property delineated by letters B2, B3, B4 and B5 in the plaint map which had been allotted to them in partition, and in the alternative claimed partition and separate possession of their shares.
The real tussel between the parties is to gain control over the plot in question marked B2 in the plaint map, known as Buiyanwala gher.
Admittedly, it was not part of the ancestral property but formed part of the village abadi, of which the parties were in unauthorised occupation.
The only question is whether the plaintiffs were the owners in possession of the portion marked B2 as delineated in the plaint map.
That depends on whether the document Exh.
P 12 dated 3rd August, 1955 was an instrument of partition and therefore inadmissible for want of registration under section 49 of the Indian , or was merely a memorandum of family arrangement arrived at by the parties with a view to equalisation of their shares.
The facts giving rise to this appeal are that the plaintiffs who are four brothers are the sons of Soonda.
They and the defendants are the descendants of the common ancestor Chattar Singh who had two sons Jai Ram and Ram Lal.
Soonda was the son of Ram Lal and died in 1966.
Jai Ram in turn had two sons Puran Singh and Bhagwana.
The latter died issueless in 1916 17.
Puran Singh also died in the year 1972 and the defendants are his widow, three sons and two daughters.
It is not in dispute that the two branches of the family had joint ancestral properties, both agricultural and residential in Village Nasirpur, Delhi 1110 Cantonment.
The agricultural land was partitioned between Puran Singh and Soonda in 1955 and the names of the respective parties were duly mutated in the revenue records.
This was followed by a partition of their residential properties including the house, gher/ghetwar etc.
The factum of partition was embodied in the memorandum of partition Exh.
P 12 dated 3rd August, 1955 and bears the thumb impressions and signatures of both Puran Singh and Soonda.
In terms of this partition, the ancestral residential house called rihaishi and the open space behind the same shown as portions marked A1 and A2 in the plaint map Exh.
PW 25/1, fell to the share of Puran Singh.
Apart from this, Puran Singh was also allotted gher shown as A3 in the plaint map admeasuring 795 square yards.
Thus, the total area falling to the share of Puran Singh came to 2417 square yards.
The plaintiffs ' ancestor Soonda on his part got a smaller house called baithak used by the male members and visitors, warked B1 in the plaint map having an area of 565 square yards.
Apart from the house marked B1, Soonda also got ghers marked B2 to B5, demarcated in yellow in the plaint map and thus the total area got by Soonda also came to 2417 square yards.
In terms of this partition, the plaintiffs claim that the parties have remained in separate exclusive possession of their respective properties.
However, in February 1971 the plaintiffs wanted to raise construction over the gher marked B2 in the plaint map and started constructing a boundary wall.
Defendants No. 1 3, sons of Puran Singh, however demolished the wall as a result of which proceedings under section 145 of the Code of Criminal Procedure, 1898 were drawn against both the parties about this property.
The Sub Divisional Magistrate, Delhi Cantt, New Delhi by her order dated 26th April, 1972 declared that the second party, namely Puran Singh, father of defendants nons.
1 3, was in actual possession of the disputed piece of land marked B2 on the date of the passing of the preliminary order and within two months next before such date and accordingly directed delivery of possession thereof to him until evicted in due course of law.
On revision, the Additional Sessions Judge, Delhi by order dated 4th March, 1974 agreed with the conclusions arrived at by the learned Sub Divisional Magistrate.
On further revision, a learned Single Judge (M.R.A. Ansari, J.) by his order dated 6th Agust, 1975 affirmed the findings reached by the Courts below on condition that while party No. 2 Puran Singh would remain in possession of the property in dispute, he would not make any construction thereon.
The plaintiffs were accordingly constrained to bring the suit for declaration and injunction and in the alternative, for partition.
1111 After an elaborate discussion of the evidence adduced by the parties, the learned Single Judge (D.R. Khanna, J.) by his judgment dated April 18, 1980 came to the conclusion, on facts, that the plaintiffs were the owners in possession of the property marked as B1, a smaller house known as baithak, and the disputed plot B2, and the properties, marked as A1, the ancestral residential house called rihaishi and A2, the open space behind the same, belonged to the defendants.
Taking an overall view of the evidence of the parties in the light of the circumstances, the learned Single Judge came to the conclusion that the gher marked B2 belonged to the plaintiffs and it had fallen to their share in the partition of 1955 and later confirmed in the settlement dated 31st January 1971.
In coming to that conclusion, he observed: "I have little hesitation that the portions marked A 1 and A 2 and B 1 and B 2 were ancestral residential houses of Ghers of the parties and Soonda and Puran had equal share in them.
The residential house shown as A 1 and the open space behind that marked as A 2 were admittedly given to Puran in the partition of 1955.
Similarly B 1 was allotted to Soonda.
I am unable to hold that B 2 was also allotted to Puran.
This would have been wholly unequitable and could not have by any stretch reflected the equal division of these joint properties.
Puran in that case apart from getting the residential house for which he paid Rs.3,000 to Soonda would have also got far area in excess if defendants ' case that Gher B 2 also belongs to them is accepted.
In any natural and equitable division of the properties, that allotment of the residential house marked 'A ' and the open space behind the same to Puran, Baithak B 1 and Gher No. 2 could have been naturally been given to Soonda.
That it was actually done so, gets clarified in the document exhibit P1 dated 31.1.1971 which was written in the presence of a number of villagers between Puran and Soonda.
" The learned Judge went on to say that the document Exh.
P 12 was executed by Puran Singh and Soonda in the presence of the villagers who attested the same, and there was some sanctity attached to it.
What is rather significant is that Puran Singh was required to pay Rs.3,000 as owelty money for equalisation of shares.
Aggrieved, the defendants preferred an appeal under cl. 10 of the Letters Patent.
A Division Bench of the High Court (D.K. Kapur, 1112 CJ.
and N.N. Goswamy, J.) by its judgment dated 4th August, 1986 affirmed the reasoning and conclusion arrived at by the learned Single Judge and accordingly dismissed the appeal.
Both the learned Single Judge as well as the Division Bench have construed the document Exh.
P 12 to be a memorandum of family arrangement and not an instrument of partition requiring registration and therefore admissible in evidence under the proviso to section 49 of the Act, and have referred to certain decisions of this Court in support of that conclusion.
In support of the appeal, Shri S.N., Kacker, learned counsel for the appellants has mainly contended that the document Exh.
P 12 is an instrument of partition and therefore required registration under section 17 of the Act.
It is urged that the High Court has on a misconstruction of the terms wrongly construed it to be a memorandum of family arrangement and admissible for the collateral purpose of showing nature of possession under the proviso to section 49 of the Act.
In substance, the submission is that the document does not contain any recital of a prior, completed partition but on its terms embodies a decision which is to be the sole repository of the right and title of the parties i.e. according to which partition by metes and bounds had to be effected.
We regret, we find it rather difficult to accept the contention.
In order to deal with the point involved, it is necessary to reproduce the terms of the document Exh.
P 12 which read: "Today after discussions it has been mutually agreed and decided that house rihaishi (residential) and the area towards its west which is lying open i.e. the area on the back of rihaishi (residential) house has come to the share of Chaudhary Pooran Singh Jaildar.
House Baithak has come to the share of Chaudhary Soonda.
The shortage in area as compared to the house rihaishi and the open area referred to will be made good to Chaudhary Soonda from the filed and gitwar in the eastern side.
Rest of the area of the field and gitwar will be half and half of each of co shares.
The area towards west will be given to Chaudhary Pooran Singh and towards east will be given to Chaudhary Soonda.
Since house rihaishi has come to the share of 1113 Chaudhary Pooran Singh therefore he will pay Rs.3000 to Chaudhary Soonda.
A copy of this agreement has been given to each of the co shares.
D/ 3.8.
1955 Sd/ in Hindi LTI Pooran Singh Zaildar Ch.
Soonda.
" According to the plain terms of the document Exh.
P 12, it is obvious that it was not an instrument of partition but merely a memorandum recording the decision arrived at between the parties as to the manner in which the partition was to be effected.
The opening words of the document Exh.
P 12 are: 'Today after discussion it has been mutually agreed and decided that . . '.
What follows is a list of properties allotted to the respective parties.
From these words, it is quite obvious that the document Exh.
P 12 contains the recital of past events and does not itself embody the expression of will necessary to effect the change in the legal relation contemplated.
So also the Panch Faisala Exh.
P 1 which confirmed the arrangement so arrived at, opens with the words 'Today on 31.1.1971 the following persons assembled to effect a mutual compromise between Chaudhary Puran Singh and Chaudhary Zile Singh and unanimously decided that . . '.
The purport and effect of the decision so arrived at is given thereafter.
One of the terms agreed upon was that the gher marked B2 would remain in the share of Zile Singh, representing the plaintiffs.
It is well settled that while an instrument of partition which operates or is intended to operate as a declared volition constituting or severing ownership and causes a change of legal relation to the property divided amongst the parties to it, requires registration under section 17(1)(b) of the Act, a writing which merely recites that there has in time past been a partition, is not a declaration of will, but a mere statement of fact, and it does not require registration.
The essence of the matter is whether the deed is a part of the partition transaction or contains merely an incidental recital of a previously completed transaction.
The use of the past tense does not necessarily indicate that it is merely a recital of a past transaction.
It is equally well settled that a mere list of properties allotted at a partition is not an instrument of partition and does not require registration.
17(1)(b) lays down that a document for which registration is compulsory should, by its own force, operate or purport to operate to create or declare some 1114 right in immovable property.
Therefore, a mere recital of what has already taken place cannot be held to declare any right and there would be no necessity of registering such a document.
Two propositions must therefore flow: (1) A partition may be effected orally; but if it is subsequently reduced into a form of a document and that document purports by itself to effect a division and embodies all the terms of bargain, it will be necessary to register it.
If it be not registered, section 49 of the Act will prevent its being admitted in evidence.
Secondary evidence of the factum of partition will not be admissible by reason of section 91 of the Evidence Act, 1872.
(2) Partition lists which are mere records of a previously completed partition between the parties, will be admitted in evidence even though they are unregistered, to prove the fact of partition: See Mulla 's , 8th edn., pp. 54 57.
The tests for determining whether a document is an instrument of partition or a mere list of properties, have been laid down in a long catena of decisions of the Privy Council, this Court and the High Courts.
The question was dealt with by Vivian Bose, J. in Narayan Sakharam Patil vs Cooperative Central Bank, Malkapur & Ors., ILR (1938) Nag. 604.
Speaking for himself and Sir Gilbert Stone, CJ.
the learned Judge relied upon the decisions of the Privy Council in Bageshwari Charan Singh vs Jagarnath Kuari LR (1932) 59 IA 130 and Subramanian vs Lutchman LR (1923) 15 IA 77 and expressed as follows: "It can be accepted at once that mere lists of property do not form an instrument of partition and so would not require registration, but what we have to determine here is whether these documents are mere lists or in themselves purport to 'create, declare, assign, limit of extinguish . . any right, title or interest ' in the property which is admittedly over Rs. 100 in value.
The question is whether these lists merely contain the recital of past events or in themselves embody the expression of will necessary to effect the change in the legal relation contemplated." Sir Gilbert Stone, CJ speaking for himself and Vivian Bose, J. in Ganpat Gangaji Patil vs Namdeo Bhagwanji Patil & Ors., ILR reiterated the same principle.
See also: order cases in Mulla 's at pp.
56 57.
Even otherwise, the document Exh.
P 12 can be looked into under the proviso to section 49 which allows documents which would 1115 otherwise be excluded, to be used as evidence of 'any collateral transaction not required to be effected by a registered instrument '.
In Varada Pillai vs Jeevarathnammal, LR (1919) 46 IA 285 the Judicial Committee of the Privy Council allowed an unregistered deed of gift which required registration, to be used not to prove a gift 'because no legal title passed ' but to prove that the donee thereafter held in her own right.
We find no reason why the same rule should not be made applicable to a case like the present.
Partition, unlike the sale or transfer which consists in its essence of a single act, is a continuing state of facts.
It does not require any formality, and therefore if parties actually divide their estate and agree to hold in severalty, there is an end of the matter.
On its true construction, the document Exh.
P 12 as well as the subsequent confirmatory panch faisala Exh P 1 merely contain the recitals of a past event, namely, a decision arrived at between the parties as to the manner in which the parties would enjoy the distinct items of joint family property in severalty.
What follows in Exh.
P 12 is a mere list of properties allotted at a partition and it cannot be construed to be an instrument of partition and therefore did not require registration under section 17(1)(b) of the Act.
That apart, the document could always be looked into for the collateral purpose of proving the nature and character of possession of each item of property allotted to the members.
The matter can be viewed from another angle.
The true and intrinsic character of the memorandum Exh.
P 12 as later confirmed by the panch faisla Exh P 1 was to record the settlement of family arrangement.
The parties set up competing claims to the properties and there was an adjustment of the rights of the parties.
By such an arrangement, it was intended to set at rest competing claims amongst various members of the family to secure peace and amity.
The compromise was on the footing that there was an antecedent title of the parties to the properties and the settlement acknowledged and defined title of each of the parties.
The principle governing this was laid down by the Judicial Committee in Khunni Lal vs Gobind Krishna Narain & Anr., LR (1911) 38 IA 87.
Ameer Ali, J. delivering the judgment of the Privy Council quoted with approval the following passage from the judgment in Lalla Oudh Behari Lall vs Mewa Koonwar, at p. 84: "The true character of the transaction appears to us to have 1116 been a settlement between the several members of the family of their disputes, each one relinquishing all claim in respect of all property in dispute other than that falling to his share, and recognizing the right of the others as they had previously asserted it to the portion allotted to them respectively.
It was in this light, rather than as conferring a new distinct title on each other, that the parties themselves seem to have regarded the arrangement, and we think that it is the duty of the Courts to uphold and give full effect to such an arragement.
" This view was adopted by the Privy Council in subsequent decisions and the High Courts in India.
To the same effect is the decision of this Court in Sahu Madho Das & Ors.
vs Pandit Mukand Ram & Anr., ; The true principle that emerges can be stated thus: If the arrangement of compromise is one under which a person having an absolute title to the property transfers his title in some of the items thereof to the others, the formalities prescribed by law have to be complied with, since the transferees derive their respective title through the transferor.
If, on the other hand, the parties set up competing titles and the differences are resolved by the compromise, there is no question of one deriving title from the other, and therefore the arrangement does not fall within the mischief of section 17 read with section 49 of the as no interest in property is created or declared by the document for the first time.
As pointed out by this Court in Sahu Madho Das ' case, it is assumed that the title had always resided in him or her so far as the property falling to his or her share is concerned and therefore no conveyance is necessary.
In the present case, admittedly there was a partition by metes and bounds of the agricultural lands effected in the year 1955 and the shares allotted to the two branches were separately mutated in the revenue records.
There was thus a disruption of joint status.
All that remained was the partition of the ancestral residential house called rihaishi, the smaller house called baithak and ghers/ghetwars.
The document Exh.
P 12 does not effect a partition but merely records the nature of the arrangement arrived at as regards the division of the remaining property.
A mere agreement to divide does not require registration.
But if the writing itself effects a division, it must be registered.
See: Rajangam Ayyar vs Rajangam Ayyar, LR (1923) 69 IA 123 and Nani Bai vs Gita Bai, ; It is well settled that the document though unregistered can however be looked into for the limited purpose of establishing a severance in status, though that 1117 severance would ultimately affect the nature of the possession held by the members of the separated family as co tenants.
The document Exh.
P 12 can be used for the limited and collateral purpose of showing that the subsequent division of the properties allotted was in pursuance of the original intention to divide.
In any view, the document Exh.
P 12 was a mere list of properties allotted to the shares of the parties.
In the result, the appeal fails and is dismissed with costs.
P.S.S. Appeal dismissed.

summary/full:
% The parties are decendants of a common ancestor, who had two sons.
These two branches of the family had joint properties, both agricultural and residential.
The agricultural land was partitioned in 1955 and the names of the respective parties were duly mutated in the revenue records.
This was followed by a partition of their residential properties including the house, ghers, ghetwars etc.
The factum of partition was embodied in the memorandum of partition Exh.
B 12 dated August 3, 1955 and bears the thumb impressions and signatures of the heads of the families, and later confirmed in the settlement dated January 31, 1971, Exh.
P 1 written in the presence of a number of villagers.
A dispute arose between the parties in February, 1971 when the respondents were sought to be prevented by the appellants from raising a boundary wall to a plot of land that had fallen to their share.
In proceedings under section , the Sub Divisional Magistrate held that the father of the appellants was in actual possession of the disputed piece of land.
In revision the Sessions Judge agreed with the conclusion arrived at by the Magistrate.
On further revision the High Court affirmed the findings reached by the courts below.
In a suit for declaration brought by respondents a Single Judge of the High Court came to the conclusion that the disputed plot belonged to them and it had fallen to their share in the partition of 1955 and later confirmed in the settlement dated 31st January, 1971.
He construed the document Exh.
p 12 to be a memorandum of family arrangement and not an instrument of partition requiring registration and therefore admissible in evidence under the proviso to section 49 of the Act for a collateral purpose of showing nature of possession.
In a Letters Patent appeal a Division Bench of the High Court affirmed the reasoning and 1107 conclusion arrived at by the Single Judge.
In the appeal by special leave, it was contended for the appellants that the document Exh.
P 12 does not contain any recital of a prior, completed partition but on its terms embodies a decision which is to be the sole repository of the right and title of the parties i.e. according to which partition by metes and bounds had to be effected.
It, therefore, required registration under section 17 of the .
Dismissing the appeal, ^ HELD: 1.
Partition, unlike the sale or transfer which consists in its essence of a single act, is a continuing state of facts.
It does not require any formality, and therefore if parties actually divide their estate and agree to hold in severalty, there is an end of the matter.
[1115B C] 2.
If the arrangement of compromise is one under which a person having an absolute title to the property transfers his title in some of the items thereof to the others, the formalities prescribed by law have to be complied with, since the transferees derive their respective title through the transferor.
If, on the other hand, the parties set up competing titles and the differences are resolved by the compromise, there is no question of one deriving title from the other, and therefore the arrangement does not fall within the mischief of section 17 read with section 49 of the as no interest in property is created or declared by the document for the first time.
it is assumed that the title had always resided in him or her so far as the property falling to his or her share is concerned and therefore no conveyance is necessary.
[1116C E] Sahu Madho Das & Ors.
vs Pandit Mukand Ram & Anr., ; ; Khunni Lal vs Gobind Krishna Narain & Anr., LR (1911) 38 IA 87 and Lalla Oudh Behari Lall vs Mewa Koonwar, at p. 84 refereed to.
In the instant case, admittedly there was a partition by metes and bounds of the agricultural lands effected in the year 1955 and the shares allotted to the two branches were separately mutated in the revenue records.
There was thus a disruption of joint status.
All that remained was the partition of the ancestral residential house called rihaishi, the smaller house called baithak and ghers/ghetwars.
The document Exh.
P 12 does not effect a partition but merely records the nature of the arrangement arrived at as regards the division of the remaining property.
The parties set out competing claims to the properties and there 1108 was an adjustment of the rights of the parties.
The compromise was on the footing that there was an antecedent title of the parties to the properties and the settlement acknowledged and defined title of each of the parties.
The opening words of the document are: 'Today after discussion it has been mutually agreed and decided that . ' what follows is a list of properties allotted to the respective parties.
From these words it is quite obvious that the document contains the recital of the past events and does not itself embody the expression of will necessary to effect the change in the legal relation contemplated.
It cannot, therefore, be construed to be an instrument of partition.
[1116F G; 1114C D] Section 17(1)(b) of the lays down that a document for which registration is compulsory should, by its own force, operate or purport to operate to create or declare some rights in immovable property.
Therefore, a mere recital of what has already taken place could not be held to declare any right and there would be no necessity of registering such a document.
[1113H; 1114A] Rajangam Ayyar vs Rajangam Ayyar, LR (1923) 69 IA 123 and Nani Bai vs Gita Bai, ; referred to.
A document though unregistered can, however, be looked into under the proviso to section 49 of the Act which allows documents which would otherwise be excluded, to be used as evidence of any collateral transaction not required to be effected by a registered instrument, for the limited purpose of establishing a severance in status, though that severance would ultimately affect the nature of the possession held by the members of the separated family as co tenants.
The document Exh.
P 12 can be used for the limited and collateral purpose of showing that the subsequent division of the properties allotted was in pursuance of the original intention to divide.
[1116G H; 1117A] Varada Pillai vs Jeevarathnammal, LR (1919) 46 IA 285 referred to.
In any view, the document Exh.
P 12 is a mere list of properties allotted to the shares of the parties.
It merely contains the recital of past events.
It is, therefore, admissible in evidence.
[1117B] Narayan Sakharam Patil vs Cooperative Central Bank, Malkapur & Ors., ILR ; Bageshwari Charan Singh vs Jagarnath Kuari, LR (1932) 59 IA 130; Subramanian vs Lutchman, LR (1923) 15 IA 77; Ganpat Gangaji Patil vs Namdeo Bhagwanji Patil & Ors., ILR and Mulla 's , 8th Edn.
54 57 referred to.