judgement:
Criminal Appeal No. 221 of 1986 etc.
From the Judgment and Order dated 28.6.1985 of the Bombay High Court in Crl.
Appeal No. 215 of 1982.
S.B. Bhasme, Mrs. H. Wahi, A.S. Bhasme and A.M. Khanwil kar for the Appellants.
V.D. Misra, J. Wad and Mrs. Aruna Matbur for the Re spondents.
The Judgment of.the Court was delivered by AHMADI, J.
This appeal by special leave is brought by the State of Maharashtra against the judgment of acquittal recorded by the Nagpur Bench of the High Court of Bombay (Maharashtra) reversing the conviction of the respondent Chandraprakash Kewalchand Jain, a Sub Inspector of Police, under Section 376, I.P.C. for having committed rape on Shamimbanu, a girl aged about 19 or 20 years on 22nd August, 1981.
The learned Additional Sessions Judge, Nagpur, came to the conclusion that the prosecution had brought home the charge under Section 376, I.P.C. and sentenced the respond ent to suffer rigorous imprisonment for 5 years and to pay a fine of Rs.1,000, in default to suffer rigorous imprisonment for 6 months.
He was, however, acquitted of the charge under Section 342, I.P.C. The respondent challenged his conviction in appeal to the High Court.
The High Court set aside the order of conviction and sentence imposed by the trial court and acquitted the respondent.
The State feeling aggrieved sought special leave to appeal.
On the same being granted this appeal is before us.
Briefly the facts are that the parents of Shamimbanu were residing as tenants in a part of the building belonging to the father of Mohmad Shafi while the remaining portion was occupied by the owner 's family.
PW 1 Mohmad Shafi aged about 25 years fell in love with PW 2 Shamimbanu aged about 19 years.
The prosecution case is that although the parents of both knew about their love affair, for some reason or the other, they were not married.
Both of them left Nagpur and went to Bombay where they contracted a marriage 118 through a Kazi and returned to Nagpur by train on 20th August, 198 1.
They got down at Anjani Railway Station (a suburb of Nagpur) and went to a nearby Gurudeo Lodge and occupied Room No. 204.
That night i.e. on the night of 20th/12st August, 1981, PW 8 Police Sub Inspector Qureishi checked the hotel and learnt that the couple was living in the said room in the assumed names of Mohmad Shabbir and Sultana.
On being questioned PW 1 Mohmad Shafi gave out the true facts and showed the Nikahnama.
exhibit 10.
On being satis fied about the correctness of the version, Police Sub In spector qureishi got their correct names substituted in the register of the Lodge as is evident from the entry exhibit 31, proved by PW 5 Manohar Dhote, the Manager of the Lodge.
Police Sub Inspector Qureishi did not deem it necessary to take any steps against the couple.
On the next night between 21st and 22nd August, 1981 the respondent accused went to the hotel room No. 204 occupied by the couple at the odd time of about 2.30 a.m. and knocked on the door.
He was accompanied by PW 7 Constable Chandrab han.
When Mohmad Shafi opened the door the respondent ques tioned him on seeing Shamimbanu with him.
Mohmad Shafi told him that she was his wife and gave their correct names.
Notwithstanding their replies the respondent insisted that they accompany him to the police station.
PW 5 requested the respondent to sign his visit book since he had inspected a few rooms of his Lodge including Room No. 204 but the re spondent told him that he would do it later.
So saying he left the Lodge with the couple.
On reaching the police station the respondent separated the couple.
He took Shamimbanu to the first floor of the police station while her husband Mohmad Shafi was taken to another room by PW 7.
Shamimbanu alleges that after she was taken to the first floor, the respondent flirted with her, slapped her when she refused to respond to his flirtation and demanded that she spend the night with him.
The respond ent also demanded that she should give her age as 15 years so that Mohmad Shafi could be booked.
On her refusing and protesting against his behaviour he threatened her with dire consequences.
In the other room Mohmad Shafi was subjected to beating by PW 7.
After sometime both the boy and the girl were brought down to the main hall of the police station.
By then it was around 5.00 or 5.30 a.m.
Thereafter he sent Mohmad Shafi with a constable to fetch the girl 's father.
The girl 's parents arrived at the police station shortly.
The respondent asked the girl 's parents if they were prepared to take 119 back the girl who claimed to have married Mohmad Shafi.
The girl 's parents showed annoyance and left the police station refusing to take her with them.
Mohmad Shafi 's parents also adopted the same attitude.
The respondent then recorded an offence under Section 110 read with 117 of the Bombay Police Act against Mohmad Shafi on the allegation that he was found misbehaving on a public street uttering filthy abuses in front of Gujarat Lodge near Gurudeo Lodge.
After putting Mohmad Shaft in the lock up he sent the girl Shamimbanu to Anand Mahal Hotel with PW 7.
Initially PW 4, the Hotel Manager refused to give a room to an unescorted girl but PW 7 told him that he had brought her on the directive of the respondent.
Thereupon PW 4 allotted Room No. 36 to her.
He made an entry in the hotel register to the effect 'Shamimbanu wife of Mohmad Shaft . . as per instructions of Police Sub Inspector Shri Jain . ' vide exhibit 25.
Afterleaving the girl in Room No. 36, PW 7 left the hotel.
It is the prosecution case that after the girl was allotted the room, as per the usual practice, the hotel boy changed the bed sheets, pillow covers and quilt cover.
The rent was charged from the girl.
Having thus separated the couple and finding the girl thoroughly helpless, the respondent visited the girl 's room and knocked on the door.
The unsuspecting Shamimbanu opened the door.
The respondent entered the room and shut the door behind him.
Thereafter he asked the girl to undress but on the girl refusing he forcibly removed her 'kurta ' and threw it away.
He gagged the girl 's mouth and threatened her with dire consequences if she did not submit.
He then threw the girl on the cot, forcibly removed her 'salwar ' and denuded her.
He then had sexual intercourse with her, notwithstand ing her protestations.
After satisfying his lust, the re spondent left threatening that he would bury both of them alive if she complained to anyone.
He told her that he would now arrange to send back her husband.
Not fully satisfied the respondent returned to the hotel room after about half an hour and knocked on the door.
Shamimbanu opened the door thinking that her husband had returned.
When she saw the respondent she tried to shut the door but the respondent forced his way into the room and shut the door from within.
He once again had sexual inter course with her against her will.
He repeated his threat before leaving.
On the other hand Mohmad Shaft was sent to Court on his arrest 120 under Sections 110/117 of the Bombay Police Act.
He was released on bail.
He returned to the police station by about 5.00 p.m. and enquired about the whereabouts of his wife.
PW 7 told him she was in Room No. 36 of Anand Mahal Hotel.
He immediately went to his wife.
On seeing him she was in tears.
She narrated to him what she had gone through at the hands of the respondent.
Enraged Mohmad Shaft went back to the police station and informed PW 14 Inspector Pathak about the commission of assault and rape on his wife by the re spondent.
PW 14 recorded the same in the station diary at 6.35 p.m. and informed his superiors about the same presuma bly because a police officer was involved.
Thereupon Deputy Commissioner of Police Parassis and Assistant Commissioner of Police Gupta arrived at the police station.
The Assistant Commissioner of Police asked Inspector Pathak to accompany Mohmad Shafi and fetch Shamimbanu.
On their return with Shamimbanu Mohmad Shaft was asked to give a written account of the incident which he did.
On the basis thereof an of fence under section 376, I.P.C. was registered and the investigation was entrusted to Inspector Korpe of Crime Branch.
In the course of investigation a spot panchnama of Room No. 36 was drawn up and certain articles such as bed sheet, quilt cover, mattress, etc.
which had semen like stains were attached.
The hotel register containing the relevant entry (exhibit 25) was also seized and statements of witnesses were recorded.
Both the respondent and Shamimbanu were sent for medical examination and their blood samples were taken along with that of Mohmad Shafi to determine their blood groups.
Similarly the garments of the respondent and Shamimbanu were attached and sent for chemical examination along with the articles seized from the hotel room.
On the conclusion of the investigation the respondent was charge sheeted and put up for trial before the Additional Sessions Judge, Nagpur.
The respondent pleaded not guilty to the charge and denied the accusation made against him.
His defence was that he arrested Mohmad Shaft on the charge under Sections 110/117, Bombay Police Act, and took him to Gurudeo Lodge and from there he took him and Shamimbanu to the police station.
Since the parents of both the boy and the girl disowned them he had no alternative but to place Mohmad Shaft in the lock up and allow Shamimbanu to leave the police station as a free citizen since she was not accused of any crime.
It was his say that after Shamimbanu left the police station she went to Anand Mahal Hotel and stayed in Room No. 36 awaiting Mohmad Shafi.
According to him as Mohmad Shaft was annoyed because of his detention in the 121 lock up, he had, with the assistance of Shamimbanu, falsely involved him on the charge of rape.
The trial court found that the respondent had visited Room No. 204 at an odd hour and had taken the couple to the police station where he had misbehaved with the girl.
It also found that he had booked the boy on a false charge and had lodged the girl in Room No. 36 after their parents disowned them.
It lastly held that the evidence of the prosecutrix clearly established that the respondent had raped her twice in that room.
The trial court convicted the respondent under Section 376, I.P.C. The respondent preferred an appeal to the High Court.
A learned Single Judge of the High Court allowed the appeal and acquitted the respondent.
The High Court took the view that the oral information exhibit 50 furnished by Mohmad Shafi to Inspector Pathak at 6.35 p.m. constituted the First Information Report and the subsequent written information exhibit 7 given at 8.30 p.m., was inadmissible in evidence as hit by Section 162 of the Code.
The High Court then took the view that except in the 'rarest of the rare cases ' where the testimony of the prosecutrix is found to be so trustworthy, truthful and reliable that no corroboration is necessary, the Court should ordinarily look for corroboration.
Accord ing to it as exhibit 50 did not unfold two successive acts of rape, this was not a case where it would be safe to base a conviction on the sole testimony of the prosecutrix, more so because both the girl and the boy had reason to entertain a grudge against the respondent who had booked the latter.
Lastly the High Court pointed out that the version of the prosecutrix is full of contradictions and is not corroborat ed by medical evidence, in that, the medical evidence re garding the examination of the prosecutrix is negative and does not show marks of violence.
These contradictions and inconsistencies have been dealt with in paragraphs 24 to 31 of the judgment.
The High Court also noticed certain infirm ities in the evidence of PW 1 Mohmad Shafi in paragraphs 32 to 34 of its judgment.
The High Court, therefore, concluded that the prosecution had miserably failed to prove the guilt of the accused and accordingly acquitted him.
It is against this order of the High Court that the State has preferred this appeal by special leave.
The learned counsel for the appellant State submitted that the entire approach of the High Court in the matter of appreciation of evidence of the prosecution witnesses, particularly PW 2, betrays total ignorance of the psychology of an Indian woman belonging to the 122 traditional orthodox society.
He submitted that the prosecu tix of this case came from an orthodox muslim family, was semi literate having studied upto the VII Standard and whose parents considered it a shame to take her back to their fold because she had eloped and married a boy of her own choice.
He submitted that the statement of law in the High Court judgment that implicit reliance cannot be placed on a prose cutrix except in the rarest of rare cases runs counter to the law laid down by this Court in Bharwada Bhoginbhai Hirjibhai vs State of Gujarat, ; He also submitted that the evidence of the prosecutrix has been rejected on unsustainable grounds which do not touch the substratum of the prosecution case and which can be at tributed to nervousness and passage of time.
According to him this approach of the High Court has resulted in gross miscarriage of justice which this Court must correct in exercise of its jurisdiction under Article 136 of the Con stitution.
The learned counsel for the respondent, however, supported the High Court judgment.
It is necessary at tile outset to state what the ap proach of the Court should be while evaluating the prosecu tion evidence, particularly the evidence of the prosecutrix, in sex offences.
Is it essential that the evidence of the prosecutrix should be corroborated in material particulars before the Court basis a conviction on her testimony? Does the rule of prudence demand that in all cases save the rarest of rare the Court should look for corroboration before acting on the evidence of the prosecutrix? Let us see if the Evidence Act provides the clue.
Under the said stat ute 'Evidence ' means and includes all statements which the Court permits or requires to be made before it by witnesses, in relation to the matters of fact under inquiry.
Under Section 59 all facts, except the contents of documents, may be proved by oral evidence.
Section 118 then tells us who may give oral evidence.
According to that section all per sons are competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind.
Even in the case of an accomplice Section 133 provides that he shall be a competent witness against an accused person; and a convic tion is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.
However, illus tration (b) to Section.
114, which lays down a rule of practice, says that the Court 'may ' presume that an accom plice is unworthy of credit, unless he is corroborated in material particulars.
Thus under Section 133, which lays down a rule of law, an accomplice is a competent witness and a conviction based solely on his uncorroborated evidence 123 is not illegal although in view of Section 114, illustration (b), courts do not as a matter of practice do so and look for corroboration in material particulars.
This is the conjoint effect of Sections 133 and 114, illustration (b).
A prosecutrix of a sex offence cannot be put on par with an accomplice.
She is in fact a victim of the crime.
The Evidence Act nowhere says that her evidence cannot be ac cepted unless it is corroborated in material particulars.
She is undoubtedly a competent witness under Section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence.
The same degree of care and caution must attach in the evaluation of her evi dence as in the case of an injured complainant or witness and no more.
What is necessary is that the Court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her.
If the Court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporat ed in the Evidence Act similar to illustration (b) to Sec tion 114 which requires it to look for corroboration.
If for some reason the Court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for evidence which may lend assurance to her testimony short of corrobo ration required in the case of an accomplice.
The nature of evidence required to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circum stances of each case.
But if a prosecutrix is an adult and of full understanding the Court is entitled to base a con viction on her evidence unless the same is shown to be infirm and not trustworthy.
If the totality of the circum stances appearing on the record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the Court should ordinarily have no hesitation in accepting her evidence.
We have, therefore, no doubt in our minds that ordinarily the evidence of a prosecutrix who does not lack understanding must be accept ed.
The degree of proof required must not be higher than is expected of an injured witness.
For the above reasons we think that exception has rightly been taken to the approach of the High Court as is reflected in the following passage: "It is only in the rarest of rare cases if the Court finds that the testimony of the prosecutrix is so trustworthy, truthful and reliable that other corroboration may not be necessary.
" 124 With respect, the law is not correctly stated.
If we may say so, it is just the reverse.
Ordinarily the evidence of a prosecutrix must carry the same weight as is attached to an injured person who is a victim of violence, unless there are special circumstances which call for greater caution, in which case it would be safe to act on her testimony if there is independent evidence lending assurance to her accusation.
We think it proper, having regard to the increase in the number of sex violation cases in the recent past, particu larly cases of molestation and rape in custody, to remove the notion, if it persists, that the testimony of a woman who is a victim of sexual violence must ordinarily be cor roborated in material particulars except in the rarest of rare cases.
To insist on corroboration except in the rarest of rare cases is to equate a woman who is a victim of the lust of another with an accomplice to a crime and thereby insult womanhood.
It would be adding insult to injury to tell a woman that her story of woe will not be believed unless it is corroborated in material particulars as in the case of an accomplice to a crime.
Ours is a conservative society where it concerns sexual behaviour.
Ours is not a permissive society as in some of the Western and European countries.
Our standard of decency and morality in public life is not the same as in those countries.
It is, however, unfortunate that respect for womanhood in our country is on the decline and cases of molestation and rape are steadily growing.
An Indian woman is now required to suffer indigni ties in different forms, from lewd remarks to eve teasing, from molestation to rape.
Decency and morality in public life can be promoted and protected only if we deal strictly with those who violate the societal norms.
The standard of proof to be expected by the Court in such cases must take into account the fact that such crimes are generally commit ted on the sly and very rarely direct evidence of a person other than the prosecutrix is available.
Courts must also realise that ordinarily a woman, more so a young girl, will not stake her reputation by levelling a false charge con cerning her chastity.
But when such a crime is committed by a person in au thority, e.g. a police officer, should the Court 's approach be the same as in any other case involving a private citi zen? By our criminal laws wide powers are conferred on police officers investigating cognizable offences.
The infrastructure of our criminal investigation system recog nises and indeed protects the right of a woman to decent and dignified treatment at the hands of the investigating agen cy.
This is evident from the proviso to sub section (2) of Section 47 of the Code which obliges the police officer desiring to effect entry to give an opportunity to the 125 woman in occupation to withdraw from the building.
So also subsection (2) of Section 53 requires that whenever a female accused is to be medically examined such examination must be under the supervision of a female medical practitioner.
The proviso to Section 160 stipulates that whenever the presence of a woman is required as a witness the investigating offi cer will record her statement at her own residence.
These are just a few provisions which reflect the concern of the legislature to prevent harassment and exploitation of women and preserve their dignity.
Notwithstanding this concern, if a police officer misuses his authority and power while dealing with a young helpless girl aged about 19 or 20 years, her conduct and behaviour must be judged in the backdrop of the situation in which she was placed.
The purpose and setting, the person and his position, the misuse or abuse of Office and the despair of the victim which led to her surrender are all relevant factors which must be present in the mind of the Court while evaluating the con duct evidence of the prosecutrix.
A person in authority, such as a police officer, carries with him the awe of office which is bound to condition the behaviour of his victim.
The Court must not be oblivious of the emotional turmoil and the psychological injury that a prosecutrix suffers on being molested or raped.
She suffers a tremendous sense of shame and the fear of being shunned by society and her near rela tives, including her husband.
Instead of treating her with compassion and understanding as one who is an injured victim of a crime, she is, more often than not, treated as a sinner and shunned.
It must, therefore, be realised that a woman who is subjected to sex violence would always be slow and hesitant about disclosing her plight.
The Court must, there fore, evaluate her evidence in the above background.
It is time to recall the observations of this Court made not so far back in Bharwada Bhognibhai Hirjibhai, (supra): "In the Indian setting, refusal to act on the testimony of a victim of sexual assaults in the absence of corroboration as a rule, is adding insult to injury.
Why should the evidence of the girl or the woman who complains of rape or sexual molestation be viewed with the aid of spectacles fitted with lenses tinged with doubt, disbelief or suspicion? To do so is to justify the charge of male chauvinism in a male domi nated society.
We must analyse the argument in support of the need for corroboration and subject it to relentless and remoreseless cross examination.
And we must do so with a logical, and not an opinionated, eye in the light of 126 probabilities with our feet firmly planted on the soil of India and with our eyes focussed on the Indian horizon.
We must not be swept off the feet by the approach made in the Western World which has its own social milieu, is own social mores, its own permissive values, and its own code of life.
Corroboration may be considered essential to establish a sexual offence in the backdrop of the social ecology of the Western World.
It is wholly unnecessary to import the said concept on a turn key basis and to transplate it on the Indian soil regardless of the altogether different atmos phere, attitudes, mores, responses of the Indian Society, and its profile.
The identities of the two worlds are dif ferent.
The solution of problems cannot therefore be identi cal.
" Proceeding further this Court said: "Without the fear of making too wide a statement, or of overstating the case, it can be said that rarely will a girl or a woman in India make false allegations of sexual assault . .
The statement is generally true in the context of the urban as also rural society.
It is also by and large true in the context of the sophisticated, not so sophisticated, and unsophisticated society.
Only very rarely can one conceivably come across an exception or two and that too possibly from amongst the urban elites.
Because: (1) A girl or a woman in the tradition bound non permissive Socie ty of India would be extremely reluctant even to admit that any incident which is likely to reflect on her chastity had ever occurred.
(2) She would be conscious of the danger of being ostracised by the Society or being looked down by the Society including by her own family members, relatives, friends and neighbours.
(3) She would have to brave the whole world.
(4) She would face the risk of losing the love and respect of her own husband and near relatives, and of her matrimonial home and happiness being shattered.
(5) If she is unmarried, she would apprehend that it would be difficult to secure an alliance with a suitable match from a respectable of an acceptable family.
(6) It would almost inevitably and almost invariably result in mental torture and suffering to herself.
(7) The fear of being taunted by others will always haunt her.
(8) She would feel extremely embrassed in relating the incident to others being over powered by a feeling of shame on account of the upbringing 127 in a tradition bound society where by and large sex is taboo.
(9) The natural inclination would be to avoid giving publicity to the incident lest the family name and family honour is brought into controversy.
(10) The parents of an unmarried girl as also the husband and members of the hus band 's family of a married woman would also more often than not, want to avoid publicity on account of the fear of social stigma on the family name and family honour.
(11) The fear of the victim herself being considered to be promiscu ous or in some way responsible for the incident regardless of her innocence.
(12) The reluctance to face interrogation by the investigating agency, to face the court, to face the cross examination by Counsel for the culprit, and the risk of being disbelieved, acts as a deterrent.
" We are in complete agreement with these observations.
We now proceed to examine if the High Court was justi fied in upturning the order of conviction passed by the Trial Court.
The High Court refused to confirm the convic tion of the respondent as it found the evidence of the prosecutrix full of contradictions and not consistent with medical evidence as well as the findings recorded by the Chemical Analyst.
We may first indicate the contradictions which prompted the High Court to look for corroboration.
They are: (i) the version that the respondent had misbehaved with her in the police station and had molested her could not be believed because she did not complain about the same to the other police officers who were present in the police station main hall on the ground floor or to her relatives who were called to the police station; (ii) the conduct of the respondent in calling her par ents and in giving them an opportunity to take her with them does not smack of an evil mind; (iii) the evidence of the prosecutrix that the respondent was instrumental in lodging her in Anand Mahal Hotel room is not supported by any evidence; (iv) the conduct of the prosecutrix in not informing and seeking assistance from the hotel management after the first incident and even after the second incident of rape in the hotel 128 room is unnatural and surprising; (v) the find of semen stains on the 'salwar ' and 'kurta ' of the prosecutrix runs counter to her evidence that on both the occasions she was completely denuded before she was ravished; (vi) the absence of marks of physical violence also runs counter to her version that when she tried to raise an alarm she was slapped by the respondent; (vii) the evidence of PW 3 Dr. Vijaya and the medical report exhibit 17 do not lend corroboration to the evidence of the prosecutrix that the respondent had sexual intercourse with her notwithstanding the resistence offered by her; (viii) the report of the Assistant Chemical Analyst exhibit 71 shows that neither semen nor spermatozoa were detected from the vaginal smear and slides that were forwarded for analysis; and (ix) the evidence of PW 12 Dr. More and his report exhibit 41 shows that no physical injuries were found on the person of the respondent to indicate that he had forcible sexual intercourse shortly before his examination.
Before we proceed to deal with these discrepancies we think it is necessary to clear the ground on the question whether the prosecutrix had a sufficiently strong motive to falsely involve the respondent and that too a police offi cer.
It is possible that she may have felt annoyed at being dragged out of the hotel room at dead of night after they had satisfied Police Sub Inspector Qureishi that they were legally wedded only a few hours back.
PW 1 may also have felt offended at being wrongly hooked under Sections 110/117, Bombay Police Act.
The question is whether on account of this annoyance both PW 1 Mohmad Shaft and PW 2 Shamimbanu would be prepared to stake the reputation of the latter? As pointed out earlier ordinarily an Indian woman would be most reluctant to level false accusation of rape involving her own reputation unless she has a very strong bias or reason to do so.
In the present case although the couple had reason to be annoyed with the conduct of the respondent, the reason was not strong enough for Mohmad Shafi to involve his wife and soil her reputation nor for Shamimbanu to do so.
An Indian woman attaches maximum impor 129 tance to her chastity and would not easily be a party to any move which would jeopardise her reputation and lower her in the esteem of others.
There are, therefore, no such strong circumstances which would make the court view her evidence with suspicion.
The next question is whether the High Court was justi fied in refusing to place reliance on her evidence in view of the discrepancies and inconsistencies indicated above.
It is not in dispute that the respondent had taken both PW 1 and PW 2 to the police station at dead of night.
At the police station both of them were separated.
She was all alone with the respondent till about 5.00 a.m.
This was her first encounter with the police.
She must have been nervous and considerably shaken.
She must have felt helpless as she was all alone.
She must be terribly worried not only about her own fate but also that of her husband.
It is during the time she was alone with the respondent that the latter is alleged to have misbehaved with her.
How could she complain to the other police officers in the police station about the behaviour of their colleague unless she be sure of their response? Having seen the behaviour of one of them, how could she place confidence in others belonging to the same clan? She may rather prefer to ignore such behaviour than speak of it to unknown persons.
Ordinarily an Indian woman is ashamed to speak about such violations of her person, more so to total strangers about whose response she is not sure.
There was no point in speaking to her parents who had disowned her.
She, however, claims to have informed her husband about the same on his return.
The omission on the part of her husband to make a mention about the same cannot discredit her.
Even if we assume that she omitted to mention it, the said omission cannot weaken her evidence as obvious ly she would attach more importance to what happened there after in the hotel room.
The respondent 's behaviour in the police station had paled into insignificance in view of his subsequent misdeeds.
No wonder she would attach greater importance to the subsequent events rather than dwell on advances made earlier.
We, therefore, cannot agree with the High Court 's observation that "the prosecutrix is not only prone to make improvements and exaggerations, but is also a liar disclosing a new story altogether to serve her inter est".
This is a harsh comment which, we think, is totally unwarranted.
The High Court has argued that the conduct of the respondent in sending for her parents and in permitting her to go with them shows that the respondent 's intentions were not evil.
In the first place it must be mentioned that the suggestion to call the parents came from PW 1. 130 Secondly the evil thought may have taken concrete shape after the parents refused to take her with them.
It was then that the respondents realised the helplessness of the girl and chalked out a plan to satisfy his lust.
As a part of that design he falsely booked Mohmad Shaft and made arrange ments to lodge the girl in a hotel of his choice.
The evi dence of PW 4 Suresh Trivedi read with the entry in the hotel register and the contradiction brought on record from his police statement leave no room for doubt that the girl was lodged in his hotel at the instance of the respondent.
PW 6 and PW 7 have also resiled from their earlier versions to help the respondent.
But notwithstanding their denial we see no reason to disbelieve Shamimbanu on the point of PW 7 having lodged her in Room No. 36 of Anand Mahal Hotel as the same is corroborated not only by the remark in the entry Exh. 25 of the hotel register but also by the fact that it was PW 7 who informed Mohmad Shaft that she was in Room No. 36.
We are, therefore, of the view that her evidence in this behalf is supported by not only oral but also documentary evidence.
How then could she seek help or assistance from the hotel staff which was under the thumb of the respondent? The hotel was situate within the jurisdiction of the re spondent 's police station.
It was at the behest of the respondent that she was kept in that room.
She must have realised the futility of complaining to them.
Failure to complain to the hotel staff in the above circumstances cannot be described as unnatural conduct.
It is true that the prosecutrix had deposed that on both the occasions she was completely denuded before the respond ent raped her.
On the first occasion he had removed her 'kurta ' before she was laid on the cot.
Her 'salwar ' was removed while she was lying on the cot.
Therefore, the 'salwar ' may be lying on the cot itself when the act was committed.
It is, therefore, not at all surprising to find semen stains on the 'salwar '.
She was wearing the same clothes when she was ravished the second time.
On the second occasion he first threw her on the cot and then undressed her.
Therefore, both the 'kurta ' and the 'salwar ' may be lying on the cot at the time of sexual intercourse.
Besides she had worn the same clothes without washing herself imme diately after the act on each occasion.
It is, therefore, quite possible that her clothes were stained with semen.
It must also be remembered that this is not a case where the prosecuting agency can be charged of having concocted evi dence since the respondent is a member of their own force.
If at all the investigating agency would try to help the respondent.
There is, therefore, nothing surprising that both these garments bore semen stains.
Besides, there was no time or occasion to manipulate semen stains on her clothes and that too of the respondent 's 131 group.
Her clothes were sent along with the other articles attached from Room No. 36 for chemical analysis under the requisition exhibit 67.
The report of the Assistant Chemical Analyser, exhibit 69 shows that her clothes were stained with human blood and semen.
The semen found on one of her gar ments and on the bed sheet attached from the room was of group A which is the group of the respondent, vide exhibit 70.
Of course the other articles, viz., the mattress and the underwear of the respondent bore no stains.
On the contrary the find of semen tends corroboration, if corroboration is at all needed to the version of the prosecutrix.
The possi bility of the semen stains being of Mohmad Shaft is ruled out as his group was found to be 'B ' and not 'A '.
In the circumstances the absence of semen or spermatozoa in the vaginal smear and slides, vide report exhibit 71, cannot cast doubts on the creditworthiness of the prosecutrix.
The evidence of PW 3 Dr. Vijaya Lele shows that she had taken the vaginal smear and the slides on 23rd August, 1981 at about 1.30 p.m. i.e., almost after 24 hours.
The witness says that spermatozoa can be found if the woman is examined within 12 hours after intercourse, thereafter they may be found between 48 and 72 hours but in dead form.
Shamimbanu may have washed herself by then.
Therefore absence of sper matozoa cannot discredit her evidence.
The absence of marks of physical violence on the prose cutrix is not surprising.
According to her the respondent had slapped her and threatened her with dire consequences when she tried to resist him on both occasions.
Since she was examined almost 24 hours after the event it would be too much to expect slap marks on her person.
It is, however, true that according to PW 12 Dr. More there were no marks of injury on the body of the respondent when he was examined on the 22nd itself at about 8.45 p.m.
While it is true that the version of the prosecutrix is that she had tried to resist him, it must be realised that the respondent being a strong man was able to overpower her and take her by force.
Be sides, he was a man in authority in police uniform.
The prosecutrix was alone and helpless.
In the circumstances as pointed out earlier the resistance would be considerably dampened.
But the evidence of PW 12 Dr. More who examined the respondent on the 22nd at 8.45 p.m. reveals that he had noticed (i) absence of smegma around the glans penis and (ii) the frenum tortuous and edematous.
indicative of the respondent having had sexual intercourse within the preced ing 24 hours.
However, absence of marks of violence and absence of matting of pubic hair led the witness to state that no definite opinion could be given whether or not the respondent had sexual intercourse in the last 24 hours.
In cross examination an attempt was 132 made to show that smegma may be absent in a man with clean habits; that the frenum may be edematous if there is fric tion with rough cloth and tortuousness of the frenum could be due to anything that causes swelling of the skin.
The witness, however, said that he had not seen marks of itching thereby negativing the suggestion.
Be that as it may, the evidence of this witness does show that there was evidence suggesting the possibility of the respondent having had sexual intercourse within the preceding 24 hours although the witness could not hazard a definite opinion.
Therefore, the non committal opinion of this witness cannot be said to run counter to the evidence of the prosecutrix.
It may be that the evidence as to resistence may have been overstated, a tendency which is generally noticed in such cases arising out a fear of being misunderstood by the society.
That is not to say that she was in any way a consenting party.
She was the victim of brute force and the lust of the respond ent.
PW 1 Mohmad Shafi 's evidence is also brushed aside on account of so called contradictions set out in paragraphs 32 to 34 of the High Court Judgment.
The first reason is the non disclosure of details in the first oral statement which was reduced to writing at exhibit 50.
That was skeleton informa tion.
That is why the need to record a detailed version exhibit 7 was felt.
Therefore, merely because the details are not set out in exhibit 50 it cannot be said that the prosecutrix had not narrated the details.
We have treated exhibit 50 as FIR for deciding this case.
The previous involvement of PW 1 in a couple of cases is not at all relevant because the decision of the case mainly rests on his wife 's evidence.
But even exhibit 50 shows that his wife had told him that the respondent had raped her.
We, therefore, do not see how the evidence of PW 1 can be said to be unacceptable.
The fact that the respondent had gone to Gurudeo Lodge at an odd hour and had taken the prosecutrix and her husband to the police station at dead of night is not disputed.
The fact that the respondent refused to sign the police visit book of the Lodge, though requested by the Manager PW 5 Manohar Dhote, on the pretext that he was in a hurry and would sign it later, which he never did, speaks for itself.
Then the respondent booked Md. Shafi under a false charge and put him behind the bars thereby isolating the prosecu trix.
We say that the charge was false not merely because it is so found on evidence but also because of the report exhibit 46 dated 21st September, 1981 seeking withdrawal of prosecu tion for want of material to sustain the charge.
Having successfully isolated the prosecutrix he sent her to Anand Mahal Hotel with PW 7 who lodged her in Room No. 36.
The respondent, 133 therefore, had planned the whole thing to satisfy his lust.
The subsequent attempt on the part of the respondent to commit suicide on being prosecuted as evidenced by the FIR exhibit 56 betrays a guilty conscience.
We are, therefore, of the opinion that if the prosecution evidence is appreciated in the correct perspective, which we are afraid the High Court failed to do, there can be no hesitation in concluding that the prosecution has succeeded in proving the respond ent 's guilt.
Unfortunately the High Court stigmatised the prosecutrix on a thoroughly erroneous appreciation of her evidence hereby adding to her woes.
If the two views were reasonably possible we would have refrained from interfering with the High Court 's order of acquittal.
In our opinion the trial court had adopted a correct approach and had properly evaluated the evidence and the High Court was not justified in interfering with the trial court 's order of conviction.
On the question of sentence we can only say that when a person in uniform commits such a serious crime of rape on a young girl in her late teens, there is no room for sympathy or pity.
The punishment must in such cases be exemplary.
We, therefore, do not think we would be justified in reducing the sentence awarded by the trial court which is not harsh.
In the result we allow this appeal, set aside the order of the High Court acquitting the respondent and restore the order of conviction and sentence passed on the respondent by the trial court.
The respondent will surrender forthwith and serve out his sentences in accordance with law.
His bail bond will thereupon stand cancelled.
Criminal Appeal No. 220 of 1986.
In view of the order passed in the State 's appeal, we need not pass separate orders in this appeal.
The appeal will, therefore, stand disposed of in view of the order passed in the above appeal.
R.N.J. Appeal al lowed.

summary/full:
The respondent, a Sub Inspector of police, was convicted under section 376 of I.P.C. for having committed rape on a young newly married girl of 19 or 20 years of age, by the Additional Sessions Judge, Nagpur.
The respondent challenged his conviction in appeal to the High Court.
The High Court set aside the order of conviction and sentence imposed by the trial court and acquitted him.
The State feeling ag grieved came up in appeal by special leave.
While allowing the appeal setting aside the order of the High Court and restoring that of the Trial Court, the Court, HELD: A prosecutrix of a sex offence cannot be put on par with an accomplice.
She is in fact a victim of the crime.
The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars.
She is undoubtedly a competent witness under section 118 and her evidence must receive the same weight as is attached to an injured in cases of physical violence.
The same degree of care and caution must attache in the evalua tion of her evidence as in the case of any injured complain ant or witness and no more.
[123B C] What is more necessary is that the Court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of charge levelled by her.
Having regard to the increase in the number of sex violation cases in the recent past, particu larly cases of molestation and rape in custody, it is proper to remove the notion, if it persists, that the testimony of a woman who is a 116 victim of sexual violence must ordinarily be corroborated in material particulars except in the rarest of rare cases.
[123C D; 124B C] Ours is a conservative society where it concerns sexual behaviour.
Ours is not a permissive society as in some of the Western and European countries.
Our standard of decency and morality in public life is not the same as in those countries.
It is, however, unfortunate that respect for womanhood in our country is on the decline and cases of molestation and rape are steadily growing.
An Indian Woman is now required to suffer indignities in different forms, from lewd remark to eve teasing, from molestation to rape.
Decency and morality in public life can be promoted and protected only if we deal strictly with those who violate the social norms.
The standard of proof to be expected by the Court in such cases must take into account the tact that such crimes are generally committed on the sly and very rarely direct evidence of a person other than the prosecu trix is available.
[124D F] Courts must also realise that ordinarily a woman, more so a young girl, will not stake her reputation by leveling a false charge concerning her chastity.
By our criminal laws vide powers are conferred on police officers investigating cognizable offences.
The infrastructure of our criminal 'investigation system recognises and indeed protects the right of a woman to decent and dignified treatment at the hands of the investigating agency.
[124F H] The purpose and setting, the person and his position, the misuse or abuse of office and the despair of the victim which led to her surrender are all relevant factors which must be present in the mind of the Court while evaluating the conduct evidence of the prosecutrix.
A person in author ity, such as a police officer carries with him the awe of office which is bound to condition the behaviour of his victim [125C D] The Court must not be oblivious of the emotional turmoil and the psychological injury that a prosecutrix suffers on being molested or raped.
She suffers a tremendous sense of shame and the fear of being shunned by society and her near relatives including her husband.
Instead of treating her with compassion and understanding as one who is an injured victim of a crime, she is, more often than not, treated as a sinner and shunned.
It must, therefore be realised that a woman who is subjected to sex violence would always be slow and hesitant about disclosing her plight.
The Court must, therefore, evaluate her evidence in the above background.
117 Bharwada Bhognibhai Hirjibhai vs State of Gujarat, ; upon.


judgement:
ivil Appeal No. 1057 of 1987.
From the Order dated 29.12.1986 of the Customs Excise and Gold (Control) Appellate Tribunal, New Delhi in Appeal No. ED/SB/ 7 A No. 186/82 BI in Order No. 826/86 BI.
D.N. Mehta, R.C. Misra and Dr. Meera Agarwal for the Appellants.
V.C. Mahajan and R.P. Srivastava for the Respondent.
The Judgment of the Court was delivered by RANGANATHAN, J.
Item 26AA(iv) of the Central Excise Tariff reads as follows: "Pipes and tubes (including blanks therefore) all sorts, whether rolled, forged, spun, cast, drawn, annealed, welded or extruded" 62 The appellants are engaged in the manufacture of pipe fittings such as elbows, bends and reducers.
They purchase steel pipes on payment of excise duty prom indigenous pro ducers from the open market and they also get steel tubes by way of import.
The appellants cut the pipes and tubes into different sizes, give them shape and turn them into pipe fittings in their factories by heating in a furnace (at a temperature between 66 degrees C and 900 degrees C) hammer ing and pressing.
The short question in this appeal is whether the pipe fittings so produced by the petitioners also fall under Item 26AA(iv) or whether they should be classified under tariff item 68 which is the residuary entry.
The case of the appellants is that the products manufac tured by them are also nothing but pipes and tubes and that they are being virtually asked to pay duty twice over on the same product.
According to them the processes undertaken by them do not amount to manufacture and no new product has come into existence as a result of the processes employed in their factories.
They say that the pipes and tubes retain their material and original character and use and they can also be had only from dealers dealing in pipes and tubes.
This claim of the appellants has not been accepted by the Central Customs Excise and Gold Appellate Tribunal and hence the present appeal under section 35L(b) of the .
The question before us is whether the Department is right in claiming that the items in question are dutiable under tariff entry No. 68 This, as mentioned already, is the residuary entry and only such goods as cannot be brought under the various specific entries in the tariff should be attempted to be brought under the residuary entry.
In other words, unless the department can establish that the goods in question can by no conceivable process of reasoning be brought under any of the tariff items, resort cannot be had to the residuary item.
We do not think this has been done.
Looking at Tariff item 26AA(iv), it encompasses all sorts of pipes and tubes.
It is also clear that it is of no conse quence whether the pipes and tubes are manufactured by rolling, forging, spinning, casting, drawing, annealing, welding or extruding.
It is true that initially pipes and tubes may be obtained from sheets, billets or bars by var ious processes, but the process of manufacture of pipes and tubes does not end there.
In order to achieve fully the purpose for which the pipes and tubes are manufactured, it is necessary to manufacture smaller pieces of pipes and tubes and also to manufacture them in such a shape that they may be able to conduct liquids and gases, passing them through and across angles, turnings, 63 corners and curves or regulating their flow in the manner required.
Smaller pieces of pipes and tubes differently shaped are manufactured for this purpose.
They are merely intended as accessories or supplements to the larger pipes and tubes.
They are pipes and tubes made out of pipes and tubes.
There is no change in their basic physical properties and there is no change in their end use.
There is no reason why these smaller articles cannot also be described as pipes and tubes.
But, it is said, they are known in the market different ly as pipe fittings, a totally different commercial commodi ty.
The expression "pipe fittings" merely denotes that it is a pipe or tube of a particular length, size or shape.
"Pipe fittings" do not cease to be pipes and tubes; they are only a species thereof.
This aspect of the matter can be illus trated by the decision of this Court in Indian Aluminium Cables Ltd. vs Union of India and others, [1985] 3 S.C.C. 284.
In that case the question was whether "Properzi Rods" manufactured and cleared by the assessee fell within Entry 27(a)(ii) of the First Schedule to the , I of 1944.
That entry read as follows: Aluminium (a) wire bars, wire rods and castings, not otherwise speci fied.
It was contended, on behalf of the appellant, inter alia, that, commercially, Properzi Rods are not known as wire rods in the trade and that a person wanting to purchase Properzi Rods asks specifically for Properzi Rods and not for wire rods.
Reliance was also placed on the view taken by this Court that words and expressions describing an article in a tariff schedule should be construed in the sense in which they are understood in the trade by the dealer and the consumer.
The Court held that Properzi Rods were only a species of wire rods.
It pointed out: "To sum up the true position, the process of manufacture of a product and the end use to which it is put, cannot neces sarily be determinative of the classification of that product under a fiscal schedule like the Central Excise Tariff.
What is more important is whether the broad descrip tion of the article fits in with the expression used in the Tariff.
The aluminium wire rods, whether obtained by the extrusion process, the conventional process or by Properzi process,, are still aluminium wire rods.
The process of 64 manufacture is bound to undergo transformation with the advancement in science and technology.
The name of the end product may, by reason of new technological processes, change but, the basic nature and quality of the article may still answer the same description.
On the basis of the material before us, it is not possible to record a positive finding that Properzi Rods and wire rods are treated as distinct items in commercial parlance.
Properzi Rod is a wire rod subjected to the Properzi process and is used for transmission of high voltage electric current.
" The position is somewhat similar in the present case.
As explained above, the goods described in the tariff, namely, pipes and tubes are designed to meet various types of re quirements.
Normally pipes and tubes are produced as long and straight pieces.
But by themselves they cannot fulfil all the needs or the end use for which they are intended.
To get the maximum use out of the pipes and tubes, it is neces sary not only to produce long and straight pipes and tubes but also to turn out pipes and tubes of smaller dimensions and of different shapes and curves such as bends, elbows, 'T ' pieces, 'Y ' pieces, plugs, caps, flanges, joints, un ions, collars and so on.
This is done by a process of forg ing, welding, hammering and so on applied to the longer tubes but basically the items remain the same and the use also remains the same.
The tariff entry calls for no dis tinction between pipes and tubes manufactured out of sheets, rods, bars, plates or billets and those turned out from larger pipes and tubes.
In these circumstances it is diffi cult to say that pipe fittings, though they may have a distinctive name or badge of identification in the market, are not pipes and tubes.
It is true that all pipes and tubes cannot be described as pipe fittings.
But it would not be correct to say that pipe fittings are not pipes and tubes.
They are only a species of pipes and tubes.
The use of the words "all sorts" and the reference to the various processes by which the excisable item could be manufactured set out in the tariff entry are comprehensive enough to sweep within their fold the goods presently under consideration.
A certain amount of reliance has been placed on entries in the Harmonised Code as well as in the Customs Cooperative Council Nomenclature (CCCN).
We do not think that these entries and specifications are very helpful.
The CCCN con tains a number of entries in Section XV, namely, heading Nos.
73.17 to 73.20.
While heading Nos.
73.17 to 73.19 talk of pipes, tubes and conduits, heading No. 73.20 speaks of "tube and pipe fittings (for example, joints, elbows, unions 65 and flanges) of iron and steel".
Section XVI also deals with some types of pipes and tubes.
The position is similar under the Harmonised Code.
In Section XV, there is an equally meticulous sub division.
Heading Nos.
73.02 to 06 deal with various types of pipes and tubes.
Then comes heading No.73.07 which specifically talks of "tube or pipe fittings (for example, couplings, elbows, sleeves) of iron and steel (including stainless steel)" and proceeds to set out various subdivisions of these items one of which is (7307.23 & 7307.93) "butt welding fittings" which is the item of manu facture in the present case.
It is true that "tubes and pipes" and "pipe fittings" fall under different subitems under the above Codes where the two expressions are used in contrast and the sub classification is more detailed.
That dichotomy cannot be imported into the present context where there is only one comprehensive and generic entry.
We can not, therefore, derive any assistance from those entries.
For the above reasons we are of the opinion that the view taken by the Tribunal is not correct and that the assessee 's contention that the goods in question fall under item 26AA(iv) should be accepted.
We, therefore, set aside the order of the Tribunal and direct the modification of the assessments accordingly.
In the circumstances, however, we make no order as to costs.
P.S.S. Appeal allowed.

dataset_name: IN-Abs

summary/full:
Steel pipes and tubes (including blanks therefore) all sorts, whether rolled, forged, spun, cast, drawn, annealed, welded or extruded were dutiable under Item 26AA(iv) of the First Schedule to the .
The Department, however, sought to classify 'pipe fittings ' such as elbows, bends and reducers, manufactured by the appellants, from out of the steel pipes purchased from the open market on payment of excise duty, under Item 68 which was a residuary entry, on the ground that they were known in the market differently as pipe fittings, a totally different commercial commodity.
The appellants ' claim that the process undertaken by them did not amount to manufacture as the products turned out were nothing but pipes and tubes, and that they were being virtually asked to pay duty twice over on the same product, was rejected by the Appellate Tribunal.
Allowing the appeal under section 35L(B) of the Act, the Court, HELD: 1.
Unless the Department could establish that the goods in question could by no conceivable process of reason ing be brought under any of the tariff items, resort could not be had to the residuary item.
This has not been done in the instant case.
[62F] 2.1 The use of the words 'all sorts of ' and the refer ence to the various processes by which the excisable items could be manufactured set out in Entry 26AA(iv) are compre hensive enough to encompass all sorts of pipes and tubes.
[64F] 2.2 The expression "pipe fittings" merely denotes that it is a pipe or tube of a particular length, size or shape.
Pipe fittings do not cease to be pipes and tubes; they are only a species thereof.
In order to achieve 61 fully the purpose for which the pipes and tubes are manufac tured, it is necessary to manufacture smaller pieces of pipes and tubes and also to manufacture them in such a shape that they may be able to conduct liquids and gases, passing them through and across angles, turnings, corners and curves or regulating their flow in the manner required.
This is done by a process of forging, welding, hammering and so on applied to the longer tubes.
There is no change in their basic physical properties and there is no change in their end use.
They are merely intended as accessories or supple ments to the larger pipes and tubes.
It could not, there fore, be said that pipe fittings, though they may have a distinctive name or badge of identification in the market, were not pipes and tubes.
[63B C, 62G 63A, 64E] Indian Aluminium Cables Ltd. vs Union of India & Ors., ; , referred to.
No doubt "tubes and pipes" and "pipe fittings" fall under different sub items under the Harmonised Code as well as under the Customs Cooperative Council Nomenclature where two expressions are used in contrast and the sub classifica tion is more detailed.
That dichotomy could not be imported into the instant case where there was only one comprehensive and generic entry.
[65B C]


judgement:
vil Appeal Nos.
80405 of 1975.
From the Judgment and Order dated 28.12.1973 of the Andhra Pradesh High Court in S.T.A. Nos. 1 and 3 of 1971.
P.R. Seetharaman and T.V.S.N. Chari for the Appellant.
M.C. Bhandare, A.V.V. Nair for the Respondent.
Under the provisions of the said Act, on 7 9 1949 the Gosha hospital at Vizianagaram which was till then manned by the hereditary landlord and zamindar of the impartible Estate of Vizianagaram (hereinafter referred to as the Estate) was handed over to the State.
The late Maharani Appalakondayamba otherwise popularly known as "Rani of Rewa" had executed a Will on 14 12 1911 creating a permanent endowment of a sum of Rs.1,00,000 for the maintenance of the said hospital.
This amount was kept in deposit with the Estate.
Since the Government had taken over the hospital by its Application No. TOP 123/58 to the Estates Abolition Tribunal and Distt.
Judge, Vishakhapatnam, the Government claimed the recovery of the said amount with interest at the rate of 6% per annum and also claimed a priority over the other creditors.
The Tribunal by its Order dated 15 12 62 allowed the claim for the amount, but rejected the claim for priority.
The Tribunal also directed the payment of Rs.36,695 to the Government out of the total amount of compensation which was then 137 deposited with it.
The Government filed an appeal against the said Order being STA No. 1/64 in the High Court, but the same was dismissed.
It appears that subsequently, another sum of compensation being Rs.11,78,581.09 was deposited, and hence the Government filed another application, viz. TOP 5/69 for payment of the balance of Rs.63,305 with interest thereon at the rate of 6% per annum from 1 7 49 till the date of payment.
In this application, the appellant did not dispute the Government 's claim for Rs.63,305 but contended that no interest on the sum of Rupees one lakh or on any part thereof was payable since according to him the Tribunal had rejected the claim for interest by its earlier Order of 15 12 62 in TOP 123/58.
The Tribunal accepted the appel lant 's contention and held that the claim for interest was rejected earlier and disallowed the same.
Against the said Order, the Government preferred an appeal to the High Court being STA 1/71. 3.
The late Rani of Rewa by her same Will had also deposited another sum of Rupees one lakh with the Estate with the direction that the interest thereon should be utilised in feeding Telugu Brahmin students studying ad vanced Sanskrit Literature and Shastras at Banaras.
The said fund will hereinafter be referred to as the Banaras Chari ties Fund.
It appears that sufficient number of Telugu Brahmin students were not available and hence the Executor of the Will had applied for utilisation of the said amount for the Gosha hospital, and in that application, the High Court had directed that out of the accumulated surplus interest of Rs.47,897 in the said Banaras Charities Fund, a sum of Rs.30,000 be capitalised and deposited with the Estate and the interest thereon at the rate of 3% per annum be utilised to meet the recurring annual expenditure of the Gosha hospital.
After the abolition of the Estate, the Government filed before the Tribunal a claim application being TOP No. 124/58 for recovery of the said sum of Rs.30,000 with interest at the rate of 6% per annum.
The Government also claimed priority over the other creditors for the said amount as well.
The Tribunal by its same order of 15 12 62 allowed the Government 's claim for the amount, but rejected the claim for priority.
The Tribunal also directed that a sum of Rs.11,008.50 be paid to the Govern ment from out of the amount of compensation which was then deposited.
Against the said order, the Government preferred an appeal to the High Court being STA No. 2/64 which was dismissed.
On the subsequent deposit of further compensa tion, the Government preferred another application being TOP 6/69, for the balance of Rs.18,991.50 and for interest thereon at the rate of 6% per annum from 1 7 49 till the date of payment.
The appellant did not dispute the 138 claim for the payment of the balance amount of Rs.10,991.50, but resisted the claim for interest, firstly on the ground that there was no provision for payment of interest in the Act and secondly on the ground which was urged in the other appeal, viz. that in TOP 124/58 it was rejected by the Tribunal earlier.
The Tribunal accepted the appellant 's contention and disallowed the claim for interest.
Against the said order, the Government preferred an appeal to the High Court being STA No. 3/71.
Thus before the High Court the only question in both the appeals was whether the Tribunal by its earlier order of 15 12 62 in TOP 123 and 124/58 had allowed or rejected the claim for interest? The High Court by its common order dated 28 12 73 held that the Tribunal by its earlier order of 15 12 62 had not only allowed the claim for the principal endowed amounts of Rupees one lakh and Rs.30,000 respective ly, but also interest thereon, and directed the payment of interest thereon from 1 7 49 as claimed.
It is this order which is challenged by the appellant by these two separate appeals.
Civil Appeal No. 804 is against the order of the High Court in STA No. 1/71 arising out of TOP 5/69 (corresponding to earlier TOP 123/58) and Civil Appeal No. 805 is against the order in STA No. 3/71 arising out of TOP 6/69 (corre sponding to earlier TOP 124/58).
Mr. Bhandare, learned counsel appearing for the appellant in both the appeals contended firstly, that the Tribunal while disposing of TOPs Nos. 123 and 124 of 1958 should be deemed to have rejected the claim for interest because in the operative part of the order, the Tribunal did not state that it was granting interest, but only mentioned that it was granting the amounts which were claimed in the applications.
The expression 'amount ' claimed in the appli cation should be construed to mean the principal amount only and not interest.
He also tried to derive support to this submission from the fact that while directing the payment of specific amounts, the Tribunal had considered only the principal amounts in both cases as is evident from the orders of the Tribunal in that behalf.
Hence he submitted that the issue with regard to the interest was barred by resjudicata and the interest could not have been claimed by the Government in its subsequent applications.
His second contention was that assuming without admitting that there was a direction given by the Tribunal to pay the interest, such direction was without jurisdiction because there was no provision in the Act for payment of interest.
Thirdly, he submitted that in any case it would be inequitable to ask the Estate to pay interest 139 when the compensation which was paid to the Estate did not bear any interest.
Fourthly, he contended that in any event, the appellant personally cannot be held liable to pay the interest since the endowed amounts were always a part of the Estate which was abolished, and the compensation which was paid and later on distributed among the sharers of the Estate, covered the said endowed amounts.
The interest, according to him, therefore, has to come out of the shares of all the sharers and the appellant alone cannot be direct ed to pay the same.
Fifthly, his contention was that assum ing without admitting that the appellant as an executor had retained the said amounts and applied them to purposes other than the objects of the endowment, he cannot be penalised for the same under the Act by making him pay the interest on them.
At the most he may be liable for misfeasance as a trustee under the appropriate law.
Lastly, he submitted that in any case since other sharers are not made parties to the present proceedings, no direction can be given in the present proceedings for payment of interest which has to come out of the compensation received by all the sharers.
As regards the first contention, namely, that the Tribunal had not directed the payment of interest in TOPs 123 and 124/58, it may be pointed out that in the applica tions made by the State Government to the Tribunal for the recovery of the two endowed amounts, the Government had in clear terms claimed that they were entitled to the said sums with interest @ 6% per annum from 1 7 49 till the date of payment, and that the Government was entitled to this amount after the compensation was deposited.
The Government had also made a further claim that it was entitled to the pay ment of the said amount in priority over the claims of all other persons.
Pursuant to these averments, the Tribunal had framed Issue No. 2 in TOP 123/58 and Issue No. 3 in TOP 124/58 in identical terms as follows: "Whether the Government is entitled to claim the said amount with interest from the date of abolition . . ?" While recording its findings in both the TOPs, the Tribunal had in paragraph 21 state as follows: "Under these circumstances, I hold under point 3 that the Government is entitled to get payment of the amounts claimed in TOPs Nos. 123 24/58.
" The Tribunal further reiterated the said finding in para graph 29 as follows: 140 "It is not in dispute that the amount of these two lakhs of rupees continued to be with the Samsthanam and the Samstha nam was paying interest on those amounts for the purposes of the endowments . .
From that time onwards all along these two amounts have been treated as debts payable by the Samsthanam.
The amounts claimed under TOP Nos . . 123 24/58 relate to this amount of Rupees two lakhs and interest accrued thereon.
Under these circumstances I hold that the amounts claimed under the said petitions are debts payable from and out of the assets of the Impartible Estate.
" Again later in the same paragraph, it is stated as follows: "Under these circumstances I hold under point 15 that the amounts claimed in TOP Nos . . . . 123 24/ 58 . . . . are debts to be paid from and out the assets of the Impartible Estate of Vizianagaram and therefore they are debts which come under the category of debts contemplated under Section 45(3) of the Abolition Act and those debts are liable to be paid from out of the com pensation amount before any division of it can be made between the sharers and maintenance holders.
" In paragraph 32 the Tribunal has observed as follows: "From the above discussion it is clear that out of the amount of Rs.3,63,007 in dispute concerned in the first instance the State Government is entitled to payment of the amount due to it under TOP No. 122/58 and out of the balance remaining the amounts payable under TOP Nos. 123 24/58 . . should be paid.
" It is, therefore, more than clear that the Tribunal had by its order in question given a finding that the Government was entitled to the entire amount claimed by it, namely, the principal endowed amount and also interest claimed thereon.
The contention that because the Tribunal had not reiterated the word 'interest ' in the next sentence of its direction and had only mentioned "the amount" payable under the TOPs and, therefore, it should be held that the Tribunal had rejected the claim for interest is too facile to be accepted.
For the same.
reason, we are also not impres 141 sed by the argument that since the Tribunal had while di recting the payment of specific amounts had only referred to a part of the principal amounts it should be held that the Tribunal had rejected the claim for interest.
Under the scheme of the Act itself, the Tribunal was required to apportion the amounts according to the priorities depending upon the amount of compensation deposited at the time of the giving of the direction in question.
It was, therefore, only to be expected that the Tribunal would first give directions with regard to the payment of the principal amounts and defer the payment of interest to a future date.
That is exactly what the Tribunal had done in the present case and, hence, in the second set of applications made by the Govern ment, the Government had not only claimed the balance of the principal amounts but also interest on the entire of the said amounts from 1 7 49.
The High Court was, therefore, right in holding that the Tribunal by its order of 15 12 62 had allowed the claim for interest.
In the circumstances, the issue with regard to the claim for interest in the subsequent applications, namely, applications TOPs 5/69 and 6/69 was not barred by resjudicata, as contended by Shri Bhandare.
The second contention that the Tribunal could not have directed the payment of interest because there was no jurisdiction to do so is also misconceived, for the simple reason that in the Will in question, both the said amounts were deposited by the testator with the Estate, and the beneficiaries of the endowment, namely, Gosha hospital and the Banaras Charities Fund were to be financed from the interest accruing on the said two amounts respectively.
It was not in dispute that these two amounts were lying depos ited with the Estate and the Estate was paying interest @ 6% per annum on the amount of Rupees one lakh which was meant for Gosha hospital and @ 5% per annum on the amount meant for the Banaras Charities Fund.
Hence, all that the Tribunal had done was to direct the Estate to pay the amounts in question to the Government together with interest at the admitted rate, which interest was in any case payable to wards the endowment objects.
Under the Act the Tribunal had, among other things, to determine the liability of the Es tate.
The endowment amounts together with the interest admittedly accruing thereon together formed the total li ability of the Estate.
The interest, further was a recurring one and the objects of the endowment were to be financed from out of the said interest.
When, therefore, the Tribunal directed the payment of interest together with the principal amount it did nothing more than direct the Estate to honour its liability.
As regards the third contention that it was inequitable for 142 SUPREME COURT REPORTS [1990] 1 S.C.R. the Tribunal to ask the Estate to pay the interest since the compensation paid to the Estate did not bear any interest, we are afraid that the submission is beside the point.
In the first instance, under the scheme of the Act the amount of compensation was to be paid in stages as and when the compensation was deposited.
Secondly, whether the Estate was paid or not paid the interest on compensation due to it, has nothing to do with the Estate 's liability towards the endow ments.
The interest directed to be paid by the Tribunal was not interest over and above the endowed amounts.
It is the principal amount together with the interest accruing thereon which constituted the total endowed amounts at the time of the abolition of the Estates.
The next three contentions can be dealt with togeth er.
There is no doubt that the amounts were deposited with the Estate, and it was the Estate which was paying interest to the beneficiary or beneficiaries under the endowments.
Hence, as observed by the Tribunal, in the first instance, the endowment amounts together with the interest accruing thereon had to be set apart, from out of the compensation payable to the Estate, and it is the balance which had to be distributed among the sharers or the creditors of the shar ers as the case may be.
As we read the Tribunal 's order of 15 12 62 as well as the impugned order of the High Court, we see no direction to the appellant to pay the said amount personally, as indeed on such direction could have been given, since the facts show, that both the amounts were lying with the Estate and not with the appellant in his individual capacity.
What is recorded in the Tribunal 's order is that it is the Estate holder who had not made over the two amounts to the Government on the date of its taking over.
Hence, the direction of the High Court to pay the said amount will have to be read as a direction to the appellant to do so in his capacity as the Estate holder and not in his individual capacity.
If the final amounts are already dis tributed among all the sharers and/or the creditors, the Government has to look for the amount of interest to all the sharers and/or their creditors including of course the appellant.
All the sharers will be liable to contribute towards the payment of the amount of interest in proportion to their share in the compensation.
That is how the impugned order of the High Court and the earlier order of 15 12 62 passed by the Tribunal will have to be read and construed.
In the circumstances, it matters not whether all the sharers were parties to the proceedings.
The proceedings were essen tially against the Estate, and the present appellant in his capacity as an Estate holder represented the Estate and all the sharers.
The order passed in the proceedings is, there fore, binding on all the sharers in the Estate notwithstand ing the fact that all the sharers 143 were not parties to the proceedings.
We, therefore, find no substance in the contention that the present proceedings were bad in law because all the sharers were not made par ties to the same.
In the result, both the appeals fail.
In the circum stances, however, there will be no order as to costs.
G.N. Appeals dis missed.

summary/full:
Under the provisions of the Andhra Pradesh (Andhra Area) Estates (Abolitian and Conversion into Ryotwari) Act, 1948, (the Act), the Government took over a hospital which was run by a Zamindar of an impartible estate.
After the take over, the Government made applications before the Estate Abolition Tribunal claiming recovery of certain amounts which were endowed to the hospital by the erstwhile ruler, from out of the compensation paid on the abolition of the estate.
Claims for interest and priority over other creditors were also made.
In the first of such applications, the Tribunal allowed the amount claimed without specific reference to interest but rejected the claim for priority.
In the subsequent proceedings, the Tribunal rejected the claim for interest as also priority and held that in the earlier proceeding also, it has disallowed the claim for interest.
Aggrieved against the Tribunal 's orders, Government preferred appeals before the High Court.
The High Court took the view that while allowing the claim the Tribunal had not only allowed the claim for principal but also interest thereon, and ordered payment of interest as claimed.
These appeals are against the High Court 's orders and the appellant contended that there was no provision in the Act for payment of interest; that the expression 'amount ' claimed before the Tribunal should be construed to mean the principal amount only; that the subsequent claims for inter est were barred by resjudicata; that it would be 135 inequitable to claim interest on the amounts endowed since no interest was paid on compensation; that while the compen sation was shared by others also, the appellant cannot be singled out to pay the interest.
Dismissing the appeals, this Court, HELD: 1.1 The High Court was right in holding that the Tribunal by its order of 15.12.02 had allowed the claim for interest.
Under the scheme of the Act itself, the Tribunal was required to apportion the amounts according to the priorities depending upon the amount of compensation depos ited at the time of giving of the direction in question.
It was, therefore, only to be expected that the Tribunal would first give directions with regard to the payment of princi pal amounts and defer the payment of interest to a future date.
That is exactly what the Tribunal had done in the present case and, hence, in the second set of applications made by the Government, the Government had not only claimed the balance of the principal amounts but also interest thereon.
Thus, the issue with regard to the claim for inter est in the subsequent applications was not barred by resju dicata.
[141B C, D].
1.2 All that the Tribunal had done was to direct the Estate to pay the amounts in question to the Government together with interest at the admitted rate, which interest was in any case payable towards the endowment objects.
Under the Act, the Tribunal had, among other things, to determine the liability of the Estate.
The endowment amounts together with the interest admittedly accruing thereon formed the total liability of the Estate.
The interest, further was a recurring one and the objects of the endowment were to be financed from out of the said interest.
When the Tribunal directed the payment of interest together with the principal amount, it did nothing more than direct the Estate to honour its liability.
[141F G] 2.
Whether or not interest was paid on compensation due to the Estate, it has nothing to do with the Estate 's li ability towards the endowments.
The interest directed to be paid by the Tribunal was not interest over and above the endowed amounts.
It is the principal amount together with the interest accruing thereon which constituted the total endowed amounts at the time of abolition of the Estates, [142A B] 3.
The direction of the High Court to pay the said amount will have to be read as a direction to the appellant to do so in his capacity as the Estate holder and not in his individual capacity.
If the final amounts 136 are already distributed among all the sharers and/or the creditors, the Government has to look for the amount of interest to all the sharers and/or their creditors including of course the appellant.
All the sharers will be liable to contribute towards the payment of the amount of interest in proportion to their share in the compensation.
That is how the order of the High Court and the earlier order passed by the Tribunal will have to be read and construed.
[142E H; 143A]