judgement:
ivil Appeal No. 4586 of 1989.
From the Judgment and Order dated 14.3.1983 of the Delhi High Court in R.F.A. (O.S.) No. 3 of 1983.
Pallav Shishodiya and D. Bhandari for the Appellant.
V.C. Mahajan, Arun Madan and C.V.S. Rao for the Respondents.
The Judgment of the Court was delivered by RAY, J.
Special leave granted.
Arguments heard.
This is an appeal against the judgment and order passed in R.F.A. (OS) 3 of 1983 on March 14, 1983 by the High Court of Delhi dismissing the Civil Writ Petition in limini against the judgment and decree rendered by Chawla, J. in Suit No. 50 of 1972 on February 12, 1982.
The matrix of this case is stated hereunder.
The appellant M/s Marwar Tent Factory is a firm having its registered office at Jodhpur (Rajasthan) and dealing in the manufacture and sale of tents and tarpaulins.
The firm is a regular supplier of these goods to the defence services of India.
On March 13, 1986 tenders were invited for the supply of tents by the Directorate General of Supplies and Disposals, the respondent No. 2.
Accordingly, the appellant submitted a tender which was accepted by the officer of the Directorate General of Supplies and Disposals on behalf of the President of India.
The said contract was of two kinds of tents 'Flies Inner ' and 'Flies Outer '.
The agreed rate for the 'Flies Outer ' was Rs.225 per tent and the quantity was 19,100.
In accordance with the said terms of the contract the goods were to be inspected at the premises of the firm at Jodhpur and after the same being passed by the Inspector, the goods had to be despatched to the Commandant, C.O.D. Kanpur.
It was further agreed between the 130 parties that 95% of the price was payable on proof of des patch and production of the inspection note.
The balance 5% was to be paid after receipt of the goods in good condition by the C.O.D., Kanpur.
On October 14, 1968, one consignment of 1500 tents was despatched to the C.O.D., Kanpur by the appellant under Railway receipt No. 502671 dated 14.10.1968 and 95% of the price was paid by demand drafts dated 17.10.1968 and 19.5.1969.
The Commandant, C.O.D., Kanpur reported that 224 tents out of a sale consignment had not been received at Kanpur and consequently a sum of Rs.51,912 (being the full price of those 224 tents inclusive of sales tax) was deduct ed from the amounts due to the appellant under another contract.
The appellant made repeated requests and sent repeated reminders for payment of the said sum of Rs.51,912 from the respondent but without any effect.
As such, the appellant filed a suit being Suit No. 50 of 1972 in the High Court at Delhi for recovery of the said principal sum as well as interest on the principal.
The appellant further claimed interest on two other consignments as the price of the said consignments was paid after a great delay.
The two consign ments were of 700 and 1400 tents despatched on August 10, 1968 and August 27, 1968 respectively.
Though 95% of the price was paid, the balance 5% amounting to Rs.24,357 was not paid till December 1, 1971 despite repeated requests and reminders.
The said payment of Rs.24,357 was wrongfully delayed by about three years and a sum of Rs.8,525 was, therefore, claimed as interest @ 12% per annum from 1.1.1969 to 1.12.1971 on the said amount.
The total claim of the appellant was of Rs.74,972 i.e. Rs.51,912 principal sum and Rs. 14.535 as interest on this and Rs.8,525 as interest on the sum of Rs.24,357 wrongfully withheld for three years.
A joint statement was filed by the respondent Nos. 1, 2 & 5 as their interest were identical.
The defence was that 224 tents were received short under railway receipt No. 502671 and the sum of Rs.51,9 12 was rightly deducted from the payment due to the appellant under other contracts.
The respondent Nos. 3 and 4 also filed a joint written statement stating inter alia that only 11 tents were deliv ered short under railway receipt No. 502671 for which the admitted liability was to the tune of Rs.2,475.
This sum had been paid to the C.O.D., Kanpur by debit adjustment.
131 T.P.S. Chawla, J by his judgment and order dated Febru ary 12, 1982 though dismissed the claim of the appellant substantially but in so far as the amount of Rs.2,475 re garding the shortage of 11 terms admitted by respondent Nos. 3 and 4 was concerned, decreed the said sum in favour of the appellant with interest @ 12% per annum from 1.4.1972 till the date of judgment and further interest @ 6% from the date of judgment till the realisation of the amount.
Against the said judgment and decree the appellant preferred an appeal being R.F.A. (OS) No. 3 of 1983 before the Division Bench of the said High Court.
The said appeal was, however, dismissed by the High Court of Delhi by order dated March 14, 1983.
The instant appeal on special leave has been preferred by the appellant against the aforesaid judgment and decree.
The crucial question that requires consideration in this appeal is whether 1500 tents which were loaded in the rail way wagons on October 14, 1968 at Jodhpur for delivery to the respondent No. 5, the Commandant, C.O.D., Kanpur under railway receipt No. 502671 were actually delivered to the respondent No. 5.
It has been held by the Trial Court i.e. learned single Judge, High Court, Delhi that the tents were carried in 3 wagons upto Agra.
The railway line from Jodhpur to Agra was a meter gauge.
Thereafter, from Agra to Kanpur which is a broad gauge line the tents were put into four broad gauge wagons at Agra for onward transmission to Kan pur, as evident from the transmission, register.
It has been found that the railways could not establish the delivery of 224 tents under railway receipt No. 502671 to the Comman dant, C.O.D., Kanpur from the unloading register.
The short age certificate issued by the railways corroborates the entries in the unloading register.
The particulars of the consignment are set out in the heading of this document.
The railway receipt is No. 502671 and the names of the sendor and consignee are also mentioned.
The Traffic Officer, Commandant, C.O.D., Kanpur filed a claim with the railways on February 10, 1969 for 224 packages received short and this claim was made under railway receipt No. 502671.
The plea of the railways was that the shortage was of 11 tents and not of 224 tents.
It has been found by the Trial Court that this plea is falsified by the unloading register, the shortage certificate and the reconciliation statement as also the report made by their Traffic Inspector on December 9, 1970.
Accordingly, it was held that under railway receipt No. 502671 the appellant delivered the full quantity of 1500 tents to the railways but the latter failed to deliver 224 tents out of this consignment to the Commandant, C.O.D., Kanpur and as such the railways are estopped from contending that it was under some other railway 132 receipt.
The Trial Court, however, held that no decree could be passed against the railways because the plaint did not contain any claim for loss or non delivery against the railways.
Secondly, the suit against the railways was barred by time and thirdly since no notice under Section 78 B of the Indian Railways Act was served on the railways by or on behalf of the appellant.
The appellant, however, submitted that the title of the goods passed on to the respondent No. 5, Commandant, C.O.D., Kanpur, the moment the tents were lodged on rail head, Jodhpur as the term of delivery under the contract was F.O.R., Jodhpur.
For any short delivery of the goods made by the railways at Kanpur, the appellant was not responsible and the respondent No. 5, under the terms of the contract is not entitled to deduct the price of the short delivery of tents i.e. 224 tents.
It was for the Commandant, C.O.D., Kanpur to claim damages from the rail ways and the Commandant had actually made a claim as stated hereinbefore to the railways in respect of the short deliv ery.
The learned single Judge, however, found that the abbreviation F.O.R. meant Free on Rail meaning simply that the cost of the carriage of the goods upto the railway wagon is included in the price and must be borne by the seller and the cost of carriage thereafter is to be borne by the buyer.
It has also been held that the risk in the goods would not pass at Jodhpur as expressly stipulated in the general conditions of contract contained in Form DGS & D 68.
These were made applicable by clause 7 in the Schedule of accept ance of tender.
Special emphasis was laid to the condition No. 4 entitled "responsibility of contractor for executing the contract".
The learned Judge has with reference to sub clause (10) of this condition held that the goods shall remain in every respect at the risk of the contractor until their actual delivery to the consignee at the stipulated place and as such the risk of the appellant remains until the goods were actually delivered to the Commandant, C.O.D. Kanpur.
The argument as regards condition No. 14 of the general conditions of contract as well as its sub clause (2) entitled "passing of property" was negatived on the ground that the risk was governed by condition 4(1) of the general conditions of contact.
The claim before the railways being time barred and also no notice under Section 78 B of the Indian Railways Act having been served on the Railways within the stipulated period, the appellant could not claim for damages for breach of contract and for the price of the tents not delivered.
However, in respect of the price of 11 tents the shortage of which was admitted by the railways and for which a sum of Rs.2,475 was paid to the respondent No. 5 by the appellant, it was decreed with interest @ 12% per annum from 1.4.1972 till the date of passing of the decree and also further allowed interest on the said sum @ 6% per annum thereafter till the date of 133 payment.
The respondents, however, did not question the finding of the Trial Court regarding the short delivery of 224 tents at the railway station at Kanpur.
Admittedly, there has been a short delivery of 224 tents out of the consignment of 1,500 tents loaded at Jodhpur railway station in the railway wagon under the said receipt No. 50267 1.
In order to decide and fix the responsibility for pass ing of the decree in respect of the sum of Rs.51,912 being the full price of 224 tents inclusive of sales tax deducted from the amount due to the appellant under another contract by the respondent No. 5, it is pertinent to consider the question when the property in goods passed from the seller to the buyer at Jodhpur when the goods were loaded in rail way wagons for delivery to the consignee at Kanpur.
The learned counsel for the appellant drew our attention to the condition No. 11 of the Schedule of acceptance of tender dated February 29, 1968.
It has been mentioned therein that the terms of delivery was F.O.R., Jodhpur i.e. free on rail at Jodhpur railway station.
It has also been mentioned that before the goods are loaded on railway wagons for delivery to the respondent No. 5 at Kanpur, the Inspector, I.G.S. North India will inspect the same at firm 's premises at Jodhpur and after approval the said goods will be despatched to its destination by placing them in the railway wagons at Jodhpur railway station and the railway receipt has to be sent to the consignee under registered cover immediately after despatch of the stores with full details.
It is also stipulated that 95% of the price of the goods will be paid by the respondent No. 5 on receipt of the railway receipt and the inspection note and the balance 5% will be paid after the same reached at the destination in goods condi tion.
Referring to this term for delivery under clause 11 of the Schedule of acceptance of tender, it has been urged by the learned counsel for the appellant that the delivery was complete at Jodhpur when the/goods were loaded in the goods train for delivery to the respondent No. 5 at Kanpur and property in the goods passed to the buyer as soon as the goods were despatched by railway at Jodhpur.
Thereafter, the risk in respect of the goods despatched remained with the consignee.
The appellant, the consignor is entitled to get the entire price of the 224 tents which were short delivered by the respondent Nos. 3 and 4 to respondent No. 5 at Kanpur in view of the clear finding by the Trial Court that though the entire consignment of 1500 tents was actually loaded in the railway wagons for despatch to the consignee, the re spondent No. 5.
The respondent No. 5 duly filed a claim to the railways, the respondent Nos. 3 and 4 for the short delivery to the tune of 224 tents immediately after taking delivery of the goods.
In order to decide the question as to whether the rights in the goods passed from 134 the seller to the buyer i.e. from the appellant to the respondent No. 5 as soon as the goods were loaded in railway wagons at Jodhpur and the railway receipt was sent to the consignee, it is pertinent to refer to the meaning of the words F.O.R. Jodhpur.
In Haulsbury 's Law of England, 4th Edition (Volume 41) at page 800, para 940 it has been men tioned that: "Under a free on rail contract (F.O.R.) the seller undertakes to deliver the goods into railway wagons or at the station (depending on the practice of the railway) at his own ex pense, and (commonly) to make such contract with the railway on behalf of the buyer as is reasonable in the circumstances.
Prima facie the time of delivery F.O.R. fixes the point at which property and risk pass to the buyer and the price becomes payable." In Benjamin 's Sale of Goods (2nd Edition), at page 1799 it is stated as under: "Stipulations as to time of 'delivery ' provi sions as to the time of delivery in an f.o.r.
contract are taken to refer to the time of shipment and not to the time of arrival of the goods; and this may be so even though the provision in question contemplates the arrival of the goods by a certain time.
Thus in Fre bold and Sturznickel (Trading as Panda O.H.D.V vs Circle Products Ltd. German sellers sold toys to English buyers f.o.b.
Continental Port on the terms that the goods were to be deliv ered in time to catch the Christmas trade.
The goods were shipped from Rotterdam and reached London on November 13; but because or ' an oversight for which the sellers were not responsible the buyers were not notified of the arrival of the goods until the following January 17.
It was held that the sellers were not in breach as they had delivered the goods in accordance with the requirements of the contract by shipping them in such a way as would normally have resulted in their arrival in time for the Christmas trade.
" The question as to the meaning of F.O.R. contract fell for consideration in the case of Girija Proshad Pal vs The National Coal Co. Ltd., AIR 1949 (Calcutta) 472.
P.B. Muk harji, J. as His Lordship then was observed in para 11 as follows: 135 "The words f.o.r. are well known words in commercial contracts.
In my judgment they mean when used to qualify the place of delivery, that the seller 's liability is to place the goods free on the rail as the place of deliv ery.
Once that is done the risk belongs to the buyer.
" Reference may also be made in this connection to the decision of this Court rendered in The Commissioner of Sales Tax, Eastern Division, Nagpur vs Husenali Adamji and Co., [1959] 2 Supp.
SCR 702.
In that case under the terms of the contract the respondent Company whose place of business was situate in Chanda in the erstwhile Central Provinces had to load diverse quantities of 'sawar ' logs on railway wagons and to despatch the same from Chanda and other railway stations in the Central Provinces to Ambernath, a town in the erstwhile Province of Bombay.
Clause 2 of the contract reserved the right of the consignee to examine the goods on arrival at Ambernath and to reject the same if they were found, in the opinion of the factory manager, not to conform with the specifications.
Clause 6 also provided that the goods shall be measured under the supervision of the facto ry 's representative, the decision of the factory manager at Ambernath would be binding on the contractor and by clause 7 the prices of the goods shall be 'F.O.R. Ambernath '.
The question arose was as to when and where the property in the logs passed from the respondent to the consignee and whether the respondent was liable to pay sales tax under the provi sions of the Central Provinces and Berar Sales Tax Act, 1947.
The Sales Tax Department levied the tax on the re spondent on the ground inter alia that the property in the logs passed from the respondent to the factory consignee under section 23 of the Indian when the logs were loaded in the wagons at railway stations within the Central Provinces and the railway receipts taken in the name of the factory were forwarded to the latter.
It was held: "that on a proper construction of the contract as a whole the intention of the parties was that the respondent would send the logs by rail from the different stations in the Cen tral Provinces to Ambernath where the factory manager would inspect, measure and accept the same if in his opinion they were of the de scription and quality agreed upon.
Consequent ly, as the respondent sent the logs and left it to the factory to appropriate to the con tract such of them as they accepted as of contract, quality and description, the proper ty in the logs did not pass to the buyer by 136 the mere delivery to the railway for carriage but passed only at Ambernath when the logs were appropriated by the factory with the assent of the seller within the meaning of section 23 of the Indian Safe of Goods Act, 1930.
" It is also convenient to refer*to the provision of Section 23(2) of the Indian .
This sub section provides that: "(2) Where, in pursuance of the contract, the seller delivers the goods to the buyer or to a carrier or other bailee (whether named by the buyer or not) for the purpose of transmission to the buyer, and does not reserve the right of disposal, he is deemed to have uncondition ally appropriated the goods to the contract." In the instant case, in view of the terms and conditions of the contract embodied in clause 11 of the Schedule of acceptance of tender regarding the place of delivery 'F.O.R. Jodhpur ', the property in the goods passed immediately on from the seller after delivering the goods and loading the same in the railway wagons at Jodhpur for transmission to the buyer, the consignee, without reserving any right of disposal.
The seller is deemed to have unconditionally appropriated the goods to the contract only under section 26 of the said Act, the goods remained at seller 's risk until the property therein is transferred to the buyer.
As stated earlier that the property in goods has been transferred to the buyer by the seller by delivery of the goods and loading the same at Jodhpur in railway wagons.
In this connection reference may be made to Section 39(1) of said Act.
Consid ering the aforesaid provisions of The as well as the terms and conditions of delivery i.e. 'F.O.R. Jodhpur ' the irresistible conclusion that follows is that the property in the goods together with the risk passed from the seller to the buyer i.e. from consignor to the consignee as soon as the goods were loaded in the railway wagons at Jodhpur as per the terms of delivery i.e.F.O.R. Jodhpur.
Therefore, the finding of the Trial Court that the risk throughout ramained with the appellant until the goods were actually delivered to the Commandant, C.O.D., Kanpur is wholly wrong and illegal.
The further finding of the Trial Court that the risk was governed with the condition No. 4(1) of the Schedule of Acceptance of Tender and the property in the goods i.e. the tents did not pass until the same were actually delivered to the Commandant, C.O.D. Kanpur and the Commandant, C.O.D. Kanpur was not liable for loss of the tents during the period of transit by the railways is also illegal and bad.
As stated hereinbefore on considera 137 tion of the place of delivery as well as the terms of deliv ery embodied in clause 11 of the Schedule of Acceptance of Tender, the property in the goods along with the risk in the goods passed from the appellant to the respondent No. 5 when the goods were delivered and despatched by railway wagons at Jodhpur i.e. F.O.R., Jodhpur.
The consignee, Commandant, C.O.D., Kanpur is therefore, liable for the price of 224 tents which was deducted by him from the other bills of the appellant.
The findings of the Trial Court which were con firmed by the Division Bench of the High Court are, there fore, liable to be set aside and the claim of the plaintiff appellant should be decreed.
As regards the claim of interest on the unpaid price of 224 tents amounting to Rs.51,912 for the period from 1.1.1969 to 1.12.1972 @ 12% per annum, the Courts below disallowed the claim on the findings that no claim for the price of the goods had been made against the railways, nor any notice under Section 78 B of the Indian Railways Act had been served on respondent Nos. 3 and 4, and the suit was barred by limitation against the Railways.
We have already held hereinbefore that the appellant is entitled to get not only the price of the goods but also the interest thereon for not making the payment of the price of the goods within a reasonable time.
The interest @ 12% per annum was claimed by the plaintiff appellant on Rs.51,912 being the price of 224 tents for the period from 1.1.1969 to 1.12.1972.
It is appropriate to refer in this connection to the relevant provisions of Section 61(2) of the (Act 3 of 1930) which reads as follows: "61(2): In the absence of a contract to the contrary, the Court may award interest as such rate as it thinks fit on the amount of the price (a) to the seller in a suit by him for the amount of the price from the date of the tender of the goods or from the date on which the price was payable, (b) to the buyer in a suit by him for the refund of the price in a case of a breach of the contract on the part of the seller from the date on which the payment was made.
" In the instant case, undoubtedly, it has been found by the Courts below that the short delivery of 224 tents oc curred during the transmit of the said goods by the rail ways.
It is also an admitted fact that the respondent No. 5, the Commandant, C.O.D. Kanpur deducted the price of the said 224 tents from the other bills of the contractor i.e. the 138 appellant and did not pay the same The appellant has claimed interest in respect of the price of the said goods being not paid to the appellant within a reasonable time from the date of delivery of the goods i.e. for the period from 1.1.1969 to 1.12.1971.
The respondent No. 5 did not dispute the claim of the appellant in this regard.
His only plea was that in the notices under Section 80 of the Code of Civil Procedure served on the respondents the claim of interest was not made and as such the claim of interest could not be allowed.
In the case of B.B. Bose vs National Coal Trading Company, AIR 1966 (Patna) 346, the plaintiff filed a suit for recovery of price of goods sold to the defendant.
Before filing the suit the plaintiff served a demand notice on the defendant.
In the demand notice exhibit 2, no claim for interest was put by the plaintiff.
It was urged on behalf of the defendant that there was no stipulation for payment of interest in case the price remained unpaid in the contract and as such the plain tiff could not claim any interest on the unpaid amount.
This was negatived by the High Court, Patna and it was held: " . .
That is, no doubt, true, but the demand clearly was for the outstanding balance price of coal which the plaintiff had supplied to the defendant.
The supplies had been effected upto the 26th June, 1954, and in the normal course, the price ought to have been paid by the defendant within a reasonable time of the deliveries, but the payment had been delayed for nearly three years and plain tiff was obliged to institute the present suit for recovery of the price.
In such circum stances, it was within the discretion of the court to award interest to the plaintiff at a reasonable rate on the amount of the price under section 61(2) of the .
The price was undoubtedly payable when the notice of demand (exhibit 2) was served by the plaintiff upon the defendant and there can be no doubt that the rate of 6 per cent per annum which the Court awarded was a reasonable rate." Similar question cropped up for decision in the case of M/s M.K.M. Moosa Bhai Amin, Kota vs Rajasthan Textile Mills, Bhawanimandi, Raj LW 77.
In this case the plaintiff filed the suit for price of the goods delivered as well as for interest on the unpaid price.
The claim regarding interest was disallowed by the District Judge on the ground that there was no stipulation for pay ment of interest in case the price of the goods supplied remained unpaid.
It was contended on behalf of the plaintiff that even 139 in the absence of the contract, the plaintiff was entitled to reasonable interest under Section 61(2) of the .
The supply had been effected upto September 18, 1962 and in normal case the price of the goods ought to have been paid by the defendant within a reasonable time of the deliveries but the payment had been delayed for nearly a year which compelled the plaintiff to bring the suit for recovery of the price.
It has been held that in such circum stances, the lower courts should have exercised discretion in favour of the plaintiff and awarded interest on the amount of the price of the goods under Section 61(2) of the .
The High Court of Rajasthan allowed interest @ 6% per annum which was considered to be a reason able rate of interest.
On a conspectus of all the decisions referred to before as well as the provisions of Section 61(2) of the , we are constrained to hold that the plaintiff is entitled to get a decree of interest on the unpaid price from 1.1.1969 to 1.12.1971 @ 6% per annum which is consid ered to be a reasonable rate of interest, as claimed by the plaintiff appellant.
In the premises aforesaid the appeal is allowed and the judgments and the decree of the Courts below in so far as they rejected the claims regarding the price of 224 tents and interest thereon are set aside.
The plaintiff appel lant 's claim for the price of the said goods as well as interest thereon @ 6% per annum for the period from 1.1.1969 to 1.12.1971 is hereby decreed.
The appeal is thus allowed with costs quantified at Rs.4,000.
The claim for interest @ 6% per annum for the period from 1.1.1972 till date of payment of amount unpaid is allowed.
Y. Lal Appeal allowed.

summary/full:
The appellant is a firm dealing in the manufacture and sale of Tents and Tarpaulins at Jodhpur in Rajasthan.
It carried on a regular business of supplying these goods to defence services.
The Director General of Supplies and Dis posal invited tenders for the supply of tents and the appel lant firm submitted its tender, which was accepted.
The said contract was of two kinds of tents viz, "Flies Inner" and "Flies Outer", the agreed rate of the latter was Rs.225 per tent and the quantity was 15,000.
As per the terms of the contract, the goods were to be inspected at the premises of the appellant firm and after inspection the same were to be despatched to Commandant, C.O.D., Kanpur.
As regards the mode of payment of the price of the goods, 95% of the price was to be paid on proof of despatch of goods and production of inspection note, and 5% latter.
On October 14, 1968 one consignment of 1500 tents was despatched to C.O.D. Kanpur from Jodhpur by the appellant under Railway Receipt No. 502671 and 95% of the price was paid to the appellant.
The commandant, C.O.D. Kanpur, the consignee reported that 224 tents out of the said sale consignment had not been received at Kanpur and for that reason a sum of Rs.51,912 being the price of 224 tents was deducted from the amounts due to the appellant, under anoth er contract.
The Traffic Officer, Commandant C.O.D. had filed a claim with the railways for short delivery of 224 tents.
Despite repeated requests by the appellant for the payment of the said amount, the same was not paid to it.
As such the appellant filed a suit in Delhi High Court for the recovery of the principal amount as also for the interest thereon.
In the suit, the appellant also claimed interest on two other consignments, as its balance price i.e. 5% amount ing to Rs.24,357 was paid after a delay of 3 years and thus a sum of Rs.8,525 was claimed as interest @ 12% per annum from 1.1.69 to 1.12.71.
Thus the total claim was of Rs.74.972.
128 The defence of Respondents 1, 2 & 5 was that 224 tents were received short and as such a sum of Rs.51,912 its price was rightly deducted from the appellant 's bill.
Respondents 3 & 4 (Railways ' Officials) filed a State ment that only 11 tents were delivered short for which the admitted liability was Rs.2,475, the same having been paid to C.O.D. Kanpur by debit adjustment.
The Trial Judge by his Order dated February 12, 1982 dismissed the claim of the appellant substantially but so for as the amount of Rs.2,475 regarding the shortage of 11 tents was concerned, the same was decreed with interest.
Against the Judgment and Order of the Trial Judge, the appellant preferred an appeal before the Division Bench of the High Court and the same having been dismissed, the appellant has come up in appeal to this Court after obtain ing Special Leave.
Allowing the appeal, this Court, HELD: In view of the terms and conditions of the con tract embodied in clause 11 of the schedule of acceptance of tender regarding the place of delivery "F.O.R. Jodhpur", the property in the goods passed immediately on to the seller after delivering the goods and loading the same in the railway wagons at Jodhpur for transmission to the buyer, the consignee, without reserving any right of disposal.
[136D] On consideration of the place of delivery as well as the terms of delivery embodied in clause 11 of the schedule of Acceptance of Tender, the property in the goods alongwith the risk in the goods passed from the appellant to the Respondent No. 5 when the goods were delivered and dis patched by railway wagons at Jodhpur i.e. F.O.R. Jodhpur.
The consignee, Commandant, C.O.D. Kanpur is, therefore, liable for the price of 224 tents which was deducted by him from the other bills of the appellant.
[137A B] The plaintiff is entitled to get a decree of interest on the price from 1.1.69 to 1.12.1971 @ 6% per annum which is considered to be a reasonable rate of interest as claimed by the plaintiff appellant.
[139C] Girija Proshad Pal vs The National Coal Co. Ltd., AIR 1949 Cal.
472; The Commissioner of Sales Tax, Eastern Divi sion, Nagpur vs 129 Husenali Adamji & Co., [1959] 2 Supp.
SCR 702; B.B. Bose vs National Coal Trading Company, AIR 1966 (Patna) 346 and M/s. M.K.M. Moosa Bhai Amin, Kota vs Rajasthan Textile Mills, Bhawanimandi, Raj.
L.W. 77, referred to.


judgement:
ivil Appeal No. 3658 of 1989.
From the Judgment and Order dated 30.3.1989 of the Patna High Court in C.W.J. No. 34 of 1989.
Pramod Swarup for the Appellants.
M.C. Bhandare (NP), A.K. Goel and Ms. Gyan Sudha Misra for the Respondents.
S.P. Kalra and Shailendra Bhardwaj for All India Insti tute of Medical Sciences.
G.L. Sanghi and A. Sharan for the Intervenor.
The Judgment of the Court was delivered by MISRA, J.
Special leave granted.
Challenge in this appeal is to the order dated 30th of March, 1989 made by the Ranchi Bench of the Patna High Court in a Writ Petition under Article 226 of the Constitution.
The High Court was moved by a set of medical graduates who are respondents before us challenging the prospectus for admission into the post graduate medical admission published by the Controller of Examination cum Additional Director, Health Services Department of Bihar for the year 1989 on the allegation that the prescription that a candidate for the purpose of getting admitted to the Post Graduate Course must complete his or her house 170 job of 12 months on or before 31st May, 1989, was contrary to the directions of this Court in the case of Dr. Dinesh Kumar & Ors.
vs Motilal Nehru Medical College, Allahabad & Ors., ; The High Court found that the time frame set by this Court in the reported order was not ad hered to in the prospectus and, therefore, allowed the writ petition by mandamus directing the State and its officers not to permit any candidate to take the Post Graduate Medi cal Test if he had not the requisite qualification of com pleting 12 months ' house job on 1st May, 1989.
It further quashed the prospectus to the extent that the cut off date of eligibility was fixed as 31.5.1989.
The State of Bihar and its Officers who were respondents in the High Court are in appeal and their main contention is that the All India Entrance Examination for Post Graduate Medical Courses held by the All India Institute of Medical Sciences was not conducted in time as fixed by this Court and intimation of the results was sent late.
It was further argued before us that several States have also not been complying with the time frame indicated by this Court in the reported order and as such the scheme formulated by the Court is not being implemented properly.
In view of such specific allegations, particularly against the examining body which has been entrusted with the work by this Court, notice was issued to the All India Institute of Medical Sciences and the Institute had entered appearance through counsel and has filed its affidavit.
In the reported order it was stated by us: "What remains now to be dealt with is the finalisation of the programme relating to the selection examination.
As already decided the selection examination shall be conducted by the All India Institute of Medical Sciences, New Delhi.
The announcement for holding of the selection examination shall be made on October 1 of every year and a full four weeks ' time would be made available to candidates for making their applications.
After the applica tions are received not later than six weeks from October 1, the same would be scrutinised and duly processed and admit caros would be issued.
Examination shall be held on the second Sunday of January.
The results of examination shall be announced within four weeks from holding of the examination.
Admis sion shall commence two weeks after the decla ration of results.
The last date for taking admission shall be six weeks from the date of the announcement of 171 results but the Head of every institution shall be entitled to condone delay upto seven days for reasons shown and grounds recorded in special cases.
The courses of study shall commence in every institution providing such study throughout the country from May 2.
Notification announcing examination, publica tion of result and allotment of place of admission (keeping preference in view and our directions regarding preference of lady candi dates in places of proximity to residence) shall be published in two successive issues of one national paper in English having large circulation in every State and at least in two local papers in the language of the State as quickly as possible.
" Obviously the relevant directions have not been followed by the examining body for the current year.
Similarly the State of Bihar did not follow the directions of this Court while drawing up its prospectus.
If the courses of study are to commence from May 2, the last qualifying date could not have been fixed as May 31, 1989.
It has been reiterated before us that several States have not been following the directions.
Instead of issuing notice to the States and Union Territories for examining the correctness of the allegations of delay and non compliance of the directions, we have thought it appropriate to indicate that everyone including the States, the Union Territories and other au thorities running Medical Colleges with Post Graduate Courses are bound by our order and must strictly follow the time schedule indicated in paragraph 6 of the order.
We have not proceeded against the defaulting authorities for viola tion of this Court 's order, hoping that there would be no recurrence of it but we would like to administer a warning to everyone that if it is brought to our notice at any time in future that there has been violation, a serious view of such default shall be taken.
We hope and trust that everyone concerned shall comply with the time frame strictly and there would be no lapse in this regard in future.
Counsel for the All India Institute of Medical Sciences has expressed regrets for what has happened and has assured us that there would be no default in future.
Counsel for the respondents has brought to our notice the position that in the previous year the State of Bihar had taken the stand that the extension was not possible in view of this Court 's directions and the State 's stand this year was to the contrary.
Counsel for the State of Bihar has regretted this position.
We find that those who had quali fied beyond the cut off date in the previous year have taken 172 examination in terms of the prospectus of this year along with the new group.
The mistake of the State in fixing a date beyond the cut off date fixed by this Court has obvi ously misled a group of candidates.
In these circumstances, we are of the view that it is in the interest of all that the mistake committed by the State of Bihar should be con doned and on the basis of the result of the selection exami nation with 31st of May, 1989, as the cut off date, admis sions for this year should be permitted.
We agree with the High Court that the view it has taken on the basis of this Court 's directions was the most appropriate one but in the special circumstances referred to above we have made a departure confined to the present year only.
The appeal is disposed of with these directions.
N.P.V. Petition disposed of.

dataset_name: IN-Abs

summary/full:
In a Writ Petition filed before the High Court, the respondents, a group of medical graduates, challenged the prospectus for admission to the post graduate medical, courses, for the year 1989, which prescribed 31st May, 1989 as cut off date of eligibility, as contrary to the direc tions of this Court in Dr. Dinesh Kumar & Ors.
vs Motilal Nehru Medical College, Allahabad & Ors., ; Finding that the timeframe set by this Court was not adhered to, the High Court quashed the prospectus to the extent that the cut off date of eligibility was fixed as 31.5.1989.
In the appeal before this Court, the appellants contend ed that as the All India Entrance Examination held by the All India Institute of Medical Sciences was not conducted in time, as fixed by this Court and intimation of the results was sent late, the scheme formulated by the Court was not being implemented properly.
The examining body, in its affidavit, expressed, regrets and assured that there would not be any default in future.
Disposing of the Writ Petition, this Court, HELD: The relevant directions of this Court have not been followed by the examining body for the current year.
Similarly, the State did not follow the directions while drawing up its prospectus.
If the courses of study were to commence from May 2, the last qualifying date could not have been fixed as May 31, 1989.
Everyone including the States, the Union Territories and other authorities running Medical Colleges with Post Graduate Courses are bound by this Court 's order and must strictly follow the time schedule laid down therein in this regard.
A serious view would be taken if any violation of this Court 's 169 order is brought to notice in future.
Everyone concerned should comply with the time frame strictly and there should be no lapse in this regard in future.
[171C; E F] The mistake of the State in fixing a date beyond the cut off date fixed by this Court has misled a group of candidates.
It is in the interest of all that this mistake should be condoned and admissions for this year should be permitted on the basis of the result of the selection exami nation with 31st of May, 1989, as cut off date.
This depar ture is confined to the present year only.
[172A B] Dr. Dinesh Kumar & Ors.
vs Motilal Nehru Medical Col lege, Allahabad & Ors.


judgement:
iminal Appeal No. 76 of 1958.
Appeal by special leave from the judgment and order dated March 4, 1958, of the Patna High Court in Criminal Appeal No. 50 of 1958 and Death Reference No. 3 of 1958 arising out of the judgment and order dated January 18, 1958, of the Court of the 1st Additional Judicial Commissioner of Chotanagpur at Ranchi in Sessions Trial No. XC of 1957.
B. R. L. Iyengar, for the appellant.
1338 R. H. Dhebar for the respondent.
September 19.
The Judgment of the Court was delivered by section K. DAS J.
This is an appeal by special leave.
The appellant is Ratan Gond, aged about 28 years.
Tried on a charge under section 302, Indian Penal Code, he was convicted and sentenced to death by the learned Additional Judicial Commissioner of Ranchi in the State of Bihar.
The learned Additional Judicial Commissioner submitted the record to the High Court of Patna for confirmation of the sentence, as he was required to do under the provisions of section 374 of the Code of Criminal Procedure.
Ratan Gond also preferred an appeal to the High Court.
The appeal and the reference under section 374, Criminal Procedure Code, were heard together by a Division Bench of the said High Court and it accepted the reference and dismissed the appeal thereby confirming the sentence of death passed upon the appellant.
On May 19, 1958, the appellant prayed for and obtained special leave and then filed the present appeal in pursuance of the leave granted to him.
The facts lie within a, narrow compass.
The appellant was a resident of village Urte, Tola Banmunda, police station Kolebera in the district of Ranchi.
One Mst.
Jatri (P. W. 2), who was a widow, also lived in the same village and same Tola.
She had two young daughters, one named Baisakhi and the other named Aghani.
Baisakhi was about nine years old and Aghain about five years old.
The subject of the present appeal is the murder of the girl Baisakhi.
On a Tuesday, May 7, 1957, the two sisters, Baisakhi and Aghani, had gone out to Pluck wild berries in a hilly jungle situated at a short distance from their village, the distance being estimated variously by various witnesses from 300 yards to a little more than a mile.
We may give here some idea of the location of the village and the hilly area near it.
According to the evidence of Rup Ram (P. W. 1), uncle of the two girls, Tola Banmunda consists of about 40 houses.
At a short distance to the north, there is a hilly tract known 1339 as Amtis Chua hill.
Close to the hill, there are jungles on two sides and there is also a spring or well in between the two strips of jungles.
On Tuesday, Mst.
Jatri (P. W. 2) had herself gone to pluck berries known as Keond berries at another place.
When she left the house in the morning, her two daughters were in the house.
Jatri came back at about noon and found Aghani alone in the house.
She enquired from Aghani about the elder sister Baisakhi and Aghani made certain statements to her mother as well as to other persons later that day and the next day.
Aghani, however, died within a few months of the occurrence, before her statements could be recorded in a judicial proceeding.
The courts below have referred to, and the High Court has relied on, the statements of Aghani.
One of the points urged on behalf of the appellant is that the statements of Aghani were not admissible in evidence either under section 32 or section 33 of the Evidence Act (I of 1872).
As we are of the view that this contention is correct, we are omitting all reference to the statements of Aghani in stating the facts of the case.
When Baisakhi did not return to the house even in the evening Mst.
Jatri went in the direction of Amtis Chua hill, but could not find Baisakhi.
Next morning, information was sent to Rup Ram (P. W. 1) about the fact that Baisakhi was missing, Rup Ram having gone to village Targa for making tiles on the preceding Monday.
Rup Ram came back to Banmunda on Wednesday, May 8, 1957.
In the meantime certain other villagers including Dalpat Sai (P. W. 4), mukhia of the village, and Sohar (P. W. 5), chaukidar of the village, had been informed that Baisakhi was missing.
Aghani took Rup Ram and these villagers to the foot of Amtis Chua hill and showed them the spring or well.
This village party found the headless body of Baisakhi at a short distance from the aforesaid spring.
The body was identified by Mst.
Jatri and others as the dead body of Baisakhi by reason of the white saree of yellow border which Baisakhi was wearing, five red " churis " round the right hand, two red " churis " round the 170 1340 left hand, one " bera " round the left hand, one brass ring on the left finger and certain beads of a " mala " which Baisakhi had put on.
When the headless dead body was discovered and identified, Dalpat Sai left some of his companions to guard the dead body and went to the house of the appellant, but did not find him there.
He then sent Rup Ram and the chaukidar to the police station which was at a distance of 43 miles.
He also sent some volunteers of the Gram Panchayat to look for the appellant.
On Thursday, May 9, 1957, at about 10 a.m., Rup Ram and the chaukidar appear ed at the police station of Kolebera and Rup Ram gave an information, which was recorded by the Assistant Sub Inspector of Police.
This information referred to the statements of Aghani and to the other facts which had been discovered by that time.
On the same Thursday, the appellant was found in the house of his sister 's husband in another village called Karmapani.
The appellant was caught hold of by the village volunteers and brought back to village Banmunda on Thursday.
At about 1 or 2 p. m. on that day, he was questioned by Dalpat Sai (P.W.4) mukhia of the Gram Panchayat, Krishna Chandra Singh (P. W. 7), Sarpanch of the Gram Panchayat, and Praduman Singh (P. W. 13), one of the panches of the Panchayat, and it is stated that the appellant made an extra judicial confession to these persons to the effect that he had killed the child Baisakhi for greed of money, as a contractor who was building a, bridge on the Lurki river had offered Rs. 80 for a human head.
The appellant was detained by the aforesaid village authorities till the Assistant Sub Inspector of Police arrived at the village on Friday, May 10, 1957.
The Assistant Sub Inspector arrived at about 3 a.m.
He was taken to the place where the headless dead body of Baisakhi lay.
The Assistant Sub Inspector made an inquest on the dead body and seized the articles found there including 29 beads of the " mala " ' which Baisakhi was wearing and which lay scattered near the place.
The Assistant Sub Inspector of Police arrested the appellant, who was already in custody of the mukhia.
The house of the 1341 Weapon called " balua " was found in the north facing room of the house, between a wall and the roof.
This " balua " had certain blood stains on it, but the stains having disintegrated, the origin of the blood could not be determined.
It is stated that on being questioned where the head of the girl Baisakhi was, the appellant took the Assistant Sub Inspector of Police and some of the villagers to a place at a short distance of 100 yards or so from where the dead body was.
At that place were discovered some strands of bloodstained hair which were seized by the Assistant SubInspector of Police.
The strands of hair looked like the hair on the bead of a female person and the Chemical Examiner later reported that the strands of hair were stained with human blood and "appeared to be scalp hair of human (female) origin morphologically ".
After further investigation by two different Sub Inspectors of Police, the appellant was sent up for trial.
There was an enquiry by a Magistrate of the first class, who, at the conclusion of the enquiry, committed the appellant for trial by the Court of Session.
The defence of the appellant was that he had been falsely implicated.
He denied that he killed Baisakhi near the jungle at Amtis Chua hill.
He further denied that he had made any extra judicial confession to Dalpat Sai, Krishna Chandra Singh and Praduman Singh.
He denied that any blood stained weapon was found in his house by the Assistant Sub Inspector of Police and he also denied that he was absent from his village or was found in the house of his sister 's husband in village Karmapani.
The learned Additional Judicial Commissioner, as also the High Court, rightly stated that the case against the appellant rested on (a) circumstantial evidence and (b) the extra judicial confession stated to have been made by the appellant.
The courts below concurrently held that the extra judicial confession was voluntary and it did not appear to them to have been caused by any inducement, threat or promise having reference to the charge made against 1342 he appellant so as to attract the provisions of section 24 of the Evidence Act.
They further held that the confession, though later denied by the appellant, was sufficiently corroborated by the circumstantial evidence and the confession and the circumstantial evidence read together led to only one reasonable inference ', namely, that the appellant had killed the child Baisakhi in the hope of getting some money.
It is not disputed that in an appeal filed by special leave under article 136 of the Constitution it is not normally open to the appellant to raise questions of fact or to ask for interference by us with concurrent findings of fact, unless the findings are vitiated by errors of law or the conclusions reached by the courts below are so patently opposed to well established principles as to amount to a miscarriage of justice.
Mr. Iyengar for the appellant has urged before us three main points.
Firstly, he has submitted that the extra judicial confession said to have been made by the appellant is not admissible in evidence.
Secondly, he has contended that even if admissible, there is no guarantee of its truth.
Thirdly, he has submitted that even with regard to circumstantial evidence, the courts below have relied on inadmissible evidence, with particular reference to the statements of Aghani, to establish one of the circumstances, namely, that the appellant was last seen with Baisakhi before her murder.
His argument is that the other circumstances established against the appellant, namely, the recovery of the blood stained " balua ", of the blood stained hair and the absence of the appellant from the village on Wednesday, do not carry the case against the appellant far enough so as to complete the chain and make them inconsistent with any hypothesis other than the guilt of the appellant.
He has submitted that in considering the circumstantial evidence in this case the courts below have departed from the well established principle that the circumstances affirmatively proved against an accused person must be of such a character as to be consistent only with his guilt and inconsistent with any reasonable hypothesis of his innocence.
1343 Before we examine the aforesaid submissions, it is necessary to state that the finding of the courts below that Baisakhi was murdered some time between May 7 and May 8, 1957, and that the headless dead body which was discovered on May 8, 1957, was correctly identified as the dead body of the girl Baisakhi has not been challenged before us.
The postmortem examination on the dead body was held on May 11, 1957, and the ante mortem injuries which the doctor found were (1) complete severance of the head from the neck,(2)one incised wound on the left shoulder and (3) anincised wound on the left upper arm.
The doctor 's evidence makes it quite clear that the unfortunate girl was brutally done to death.
The identification of the headless dead body also rests on a very sure foundation.
We have already referred to the clothing, ring, beads, etc., from which the identity of the dead body was established.
The murder of the girl Baisakhi having been clearly established, the courts below rightly applied their mind to a consideration of the principal question in the case, namely, if the appellant was responsible for that murder.
This brings us to a consideration of the submissions made on behalf of the appellant.
We may say at the very outset that we agree with learned counsel for the appellant that the statements of Aghani, who unfortunately died within a few months of the occurrence before her statements could be recorded in a judicial proceeding, were not admissible in evidence either under section 32 or section 33 of the Evidence Act.
Section 33 is clearly out of the way because Aghani made no statements in a judicial proceeding or before any person authorised by law to take her evidence.
The only relevant clause of section 32 which may be said to have any bearing is cl.
(1) which relates to statements made by a person as to the cause of his death or as to any of the circumstances of the transaction which resulted in his death.
In the case before us, the statements made by Aghani do not relate to the cause of her death or to any of the circumstances relating to her death ; on the contrary, the statements relate to the death of her sister.
We are, therefore, of the opinion 1344 that the statements do not come within section 32(1) of the Evidence Act and, indeed, Mr. Dhebar appearing on behalf of the State, has conceded that section 32(1) does not apply to the statements of Aghani.
Excluding the statements of Aghani, what then is the evidence against the appellant ? Firstly, we have the extra judicial confession.
Then, we have the following circumstances which the courts below have held to have been clearly established against the appellant, namely, (a) recovery of the blood stained " balua " from a room of the appellant, (b) recovery of the blood stained strands of hair from a place pointed out by the appellant and (c) disappearance of the appellant from the village immediately after the murder and his arrest in village Karmapani in circumstances mentioned by Maheshwar Sai (P. W. 6).
Lastly, there is another adverse circumstance which arises out of the total denial by the appellant of the recovery of the blood stained " balua " and of his arrest in village Karmapani.
As to the extra judicial confession, two questions arise: is it voluntary, and, if so, is it true ? The appellant denied at a later stage that he had made a confession, but it is not necessary to consider in this case the abstract question as to whether, as against its maker, a conviction can be based on a confession which is found to be voluntary and true.
It is enough to state that usually and as a matter of caution, courts require some material corroboration to such a confessional statement, corroboration which connects the accused person with the crime in question, and the real question which falls for decision in the present case is if the circumstances proved against the appellant afford sufficient corroboration to the confessional statement of the appellant, in case we hold that the confessional statement is voluntary and true.
Let us first see if the confession was voluntary.
Section 24 of the Evidence Act states: "A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise having reference to the charge against the accused person, 1345 proceeding from a person in authority and sufficient, in the opinion of the Court, to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him ".
Mr. Iyengar has referred us to the evidence of the three witnesses, Dalpat Sai (P.W. 4), Krishna Chandra Singh (P. W. 7), and Praduman Singh (P. W. 13), Mukhia, Sarpanch and Panch respectively of the Gram Panchayat.
We agree with Mr. Iyengar that having regard to the provisions of the Bihar Panchayat Raj Act (Bihar VIII of 1948) the aforesaid three persons can be said to be persons in authority within the meaning of section 24.
The question, however, is are there any circumstances which tend to show that the making of the confession appears to have been caused by any inducement, threat or promise, having reference to the charge against the appellant and proceeding from any one of the aforesaid three persons and sufficient in the opinion of the court to give the appellant grounds which would appear to him to be reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him.
The courts below have categorically answered this question in the negative.
We have examined the evidence of the three witnesses mentioned above.
That evidence shows that the appellant was brought to the house of Dalpat Sai (P. W. 4) at about 10 a.m. on Thursday (May 9, 1957).
He was questioned for some time; Dalpat Sai (P.W. 4) said that he was questioned for about two hours.
The evidence of Dalpat Sai makes it clear, however, that it was not a process of continuous questioning for two hours.
Ratan was given some food and then, when he was questioned, he kept quiet for some time and then said that he had killed the girl because the contractor who was building the bridge on river Lurki had offered to pay a sum of Rs. 80 for a human head.
Having examined the evidence of the three witnesses who prove the extra judicial confession, we do not come to 1346 a conclusion different from the one arrived at by the courts below.
Mr. Iyengar referred us to the observations made by Cave J. (as he then was) in The Queen vs Thompson(1).
That was a case in which a prisoner was tried for embezzling the money of a company.
It was proved at the trial that, being taxed with the crime by the Chairman of the company, the prisoner said that he had taken the money.
The Chairman stated that at the time of the confession, no threat or promise was made, but he said to the prisoner 's brother, " It will be the right thing for your brother to make a statement " and the court drew the inference that the prisoner, when he made the confession, knew that the Chairman had spoken these words to his brother.
In these circumstances, the learned Judge said: " I prefer to put my judgment on the ground that it is the duty of the prosecution to prove, in case of doubt, that the prisoner 's statement was free and voluntary, and that they did not discharge themselves of this obligation ".
He further added that there were always reasons to suspect those confessions which were supposed to be the offspring of penitence and remorse, and which nevertheless were repudiated by the prisoner at the trial.
It is true that in the case under our consideration the appellant denied to have made the confession which he had made earlier; but we find no such circumstances as were present in Thompson 's case (1), such as the statement of the Chairman of the company to the brother of the prisoner.
It is true that the appellant was brought back from village Karmapani by members of the village volunteer force.
He was taken to the village authorities to whom he made a confession.
The evidence does not even remotely suggest that any threat, promise or inducement was made.
The only circumstance relied on by Mr. Iyengar is that it took about two to three hours from the time when the appellant was brought to the house of the mukhia up to the time when he made his confessional statement.
Mr. Iyengar has relied on In re Kataru Chinna Papiah (2), where a Superintendent of Police questioned the accused person for four hours at night (1) , 18.
(2) A.I.R. 1940 Mad.
136. 1347 and again for two hours in the morning.
It was pointed out that this was a flagrant violation of the relevant rule in the instructions issued to police officers.
All that we need say is that there was no such questioning in the present case.
Another decision to which Mr. Iyengar has invited our attention is Hashmat Khan vs The Crown (1).
We do not think that that decision is of any assistance to Mr. Iyengar.
It was held therein that a mere possibility of there having been some inducement is not sufficient to attract section 24 of the Evidence Act; but only when it appears to the court that the confession has been made as a result of some inducement held out by a person in authority that it becomes irrelevant.
That was a case in which the accused person, when questioned, was told that it would be better for him if he told the truth; it was held that this amounted to an inducement within the meaning of section 24 of the Indian Evidence Act.
As to the truth of the confession, nothing has been brought to our notice which would show that the confessional statement contained any untrue or inaccurate statement.
It is true that the prosecution has given no evidence to show that the contractor who was building the bridge over river Lurki, or for that matter, any contractor, had offered a sum of Rs. 80 for a human head.
In the very nature of things, it is not expected that any contractor, even if he had made such an offer, will admit having done so, and we do not think that the prosecution can be asked to give evidence in support of any such offer.
We recognise that in ordinary and normal circumstances nobody asks for a human head for building abridge; nor is it usual normally for a person to accept such an offer, even if it is made.
We must not forget, however, that we are dealing in this case with aboriginal people who are ,still steeped in superstition.
It is worthy of note that Maheshwar Sai (P. W. 6) said that when the appellant was taken in custody in village Karmapani, he did not even enquire why he was arrested; on the contrary, he offered Rs. 20 and a he goat to the witness and (1) Lah.
171 1348 implored the latter to save him.
Such a statement was again of an incriminatory nature, and if the evidence of Maheshwar Sai is correct, the statement was absolutely voluntary and was not the result of any questioning at all.
For these reasons, we do not think that the reference to an offer of Rs. 80 for a human head in the confessional statement of the appellant necessarily destroys its veracity.
There can be no doubt that the recovery of the blood stained " balua " (even though the origin of the blood could not be determined owing to disintegration) and of the blood stained strands of female hair at the place pointed out by the appellant, are circumstances clearly proved against the appellant.
These circumstances may not be sufficient by themselves to prove that the appellant was the murderer, but there is no doubt that they lend assurance to the confes sional statement of the appellant, assurance of a kind which connects the appellant with the crime in question.
This is a case in which the confession and the circumstances have to be read together.
There is the additional circumstance that soon after the murder the appellant disappeared from his village and when arrested in another village, his conduct was such as to show that he was suffering from a guilty mind.
On the top of all this, there is the total denial by the appellant that any blood stained " balua " was recovered from his house or that he disappeared from the village after the murder.
It is unfortunate that the learned Additional Judicial Commissioner did not ask the appellant to explain the recovery of the blood stained strands of female hair.
That was an important circumstance against the appellant and when the learned Additional Judicial Commissioner examined the appellant under the provisions of section 342 of the Code of Criminal Procedure he should have asked the appellant to explain this circumstance.
We take this opportunity of inviting the attention of the learned Additional Judicial Commissioner to this very serious omission.
Another omission on the part of the learned Additional Judicial Commissioner is his failure to comply with the provisions of section 287 of the Code of 1349 Criminal Procedure.
The examination of the accused recorded by or before the Committing Magistrate does not appear to have been tendered by the prosecutor in the present case; at least we do not find any such statement in the printed paper book.
We are satisfied, however, that no prejudice has been caused.
The Assistant Sub Inspector of Police who gave evidence of the recovery of blood stained hair from a place pointed out by the appellant was not even cross exa mined on the point.
The defence of the appellant was a total denial and even if the recovery of the blood stained strands of female hair was put to the appellant, he would undoubtedly have denied such recovery as having been made at his pointing out the place.
To sum up: we see no reasons to differ from the conclusion arrived at by the courts below that the confessional statement made by the appellant was voluntary and admissible; there are no reasons for thinking that it was not true.
The circumstances clearly proved against the appellant, even excluding the circumstance which rested on the statements of Aghani, afford sufficient corroboration to the confession of the appellant, though denied at a later stage, and the corroboration is of such a nature as to connect the appellant with the murder of the child Baisakhi.
The only reasonable inference which can be drawn from the confession read with the circumstantial evidence is that the appellant killed the child Baisakhi between May 7 and 8, 1957, in the hope of getting some money.
Whether that hope was realised or not is more than we can tell.
The head was never recovered, but there can be no doubt that the dead body was correctly identified to be the dead body of the child Baisakhi.
As to the sentence, in view of the circumstances in which the child Baisakhi was killed, we do not think ,that we shall be justified in interfering with it in the present case.
For these reasons, we hold that the appeal is without merit and must be dismissed.
Appeal dismissed.

summary/full:
The appellant was charged with the murder of a girl Baisakhi.
On information given by Aghani, younger sister of the deceased, the headless body of the deceased was re covered.
The appellant absconded but was found in another village and was brought back by the village volunteer force.
On interrogation by the Mukhia, Sarpanch and a panch of the Gram Panchayat the appellant made an extrajudicial confession.
A blood stained cutting weapon was recovered from a room of the appellant.
At his instance some strands of hair were recovered from a place at a short distance 1337 from the place where the dead body had been recovered, which were stained with human blood and appeared to be scalp hair of a human female.
The appellant was convicted and sentenced to death and the High Court upheld the conviction and sentence.
The Courts took into consideration the statements made by Aghani to her mother and to other persons that the deceased was last seen in the company of the appellant.
Aghani, however, died before her statement could be recorded in a judicial proceeding.
It was contended by the appellant that the statements of Aghani were inadmissible, that the extra judicial confession was not relevant and that the circumstantial evidence was not sufficient to establish the guilt of the appellant.
Held, that the statements of Aghani were not admissible either under section 32 or section 33 Of the Evidence Act.
Section 33 had no application as her statement was not made in any judicial proceeding or before any person authorised by law to record the same.
The statements did not relate to the cause of her death or to any circumstances relating to her death but related to the death of her sister and did not fall under cl. 1 of section 32 which was the only clause which could have any bearing on the question.
Held, further, that though having regard to the Bihar Panchayat Raj Act, the Mukhia, Sarpanch and panch of the Gram Panchayat to whom the extra judicial confession was made were persons in authority within the meaning Of section 24 Evidence Act, no threat, promise or inducement for making the confession was proved.
The facts that the appellant was brought back to the Village by the village volunteer force and that it took two or three hours before he made the confession do not indicate that the confession was not voluntary.
There was nothing to show that the confession contained any untrue or inaccurate statement.
The circumstantial evidence may not be sufficient by itself to prove the guilt of the appellant, but it afforded sufficient corroboration to the confession and the corroboration was of such a nature as to connect the appellant with the murder.