STATE OF UTTAR PRADESH

SAMMAN DASS January 11, 1972

[J. M. SHELAT AND H. R. KHANNA, JJ.J

Criminal Trial-Murder-Trial Court convictin11 and ••nt•"""'8 to death-Acquittal by High Court-Ground of Interference with OSI,.._

ment of,, evidence by Hi11h Court in appeal und.,. Art. 136-lnttrl•rence justi, fied ii High Court reverses the iudgment of the trial court on lf'OUnd8 which are manifestly fallacious and untenable-Constitution of India, ht. 136.

The fact that the High Court, in a reference under S; 374 of the Code of Criminal Procedure, bas to appraise the evidence for itself and h .... to arrive at its own independent conclusion would not prevent this Court from interfering with the order of the. High Court if the High Court reverses the judgment of the trial court on ground.t which are manifestly fallacious and untenable.

This Court in an appeal under Art. 136 of the Constitution does not normally reappraise the evidence and interfere with the aaseosment of that evidence by the High Court. Where, however, this Court find.t that

grave injustice bas been done by the High Court in interfering with the decision of the trial court on grounds which are plainly untenable. and the view taken bv the High Court is cle; trly unreasonable on the evidence on record this Court would not stay its band, There are, bow"'"'• certain

cardinal rules which have always to be kept in view in appeals against acqu)ttal. Firstly, there is a presumption or innocence in favour of the accused which has to be kept in mini! especially when the accused bu been acquitted by the Court below: Secondly, if two views of the .matter are possible a view faourable to the accused should be taken; thirdly, in case of acquittal by the trial judge the appellate court •hould take into account the fact that the trial judge bad the advan'age of looking at the demeanour of witnesses: and fourthly,. the accused is entitled to the benefit of doubt. The doubt should, however, be reasonable and should be such as a rational thinking man will reasMably, honestly .and c:On.cientiously entertain and not the doubt of a timid mind which .fighta shy thougb unwittingly it mav be or is afraid of the logical consequences, if that benefit was not given. To put it difl'erently, it is "not the dou~ of a vacillating mind that. has not the moral courage to decide but obeiten itself in a vain and Idle scepticism'", [69H-70Bl ·

Himachal Pradesh Admin!.rrration v. Shrl Om Prakash, Cr. Appeal No. 61 of 1969 decided on December 1, 1911, referred to.

CRIMINAL APPELLATE JURISDICTION : Criminal A~ 1'119. 17 of 1971.

Appeal bv special leave from the Judgment and Order dated the June I, 1970 of the Allahabad High Court in Criminal AJ)peal No. 1931of1969 and Referred No. 182 of 1969.

H D. P; Uniyal and 0. P. Rana, for the Appellant.

U.P. STATB v. SAMMAN DASS (Khanna, I.) 59

A. S. R. Chari, S. K. Mehta, K. L. Mehta and K. R. Nagaraja, for the Respondent.

The Judgment of the Court was delivered by

Khanna, J, Samman Dass alias Samman Lal, aged 19 years, was convicted by Sessions Judge, Faizabad under section 8 302 l.P .C. for causing the death of his wife Putlibai by throttling her and was sentenced to death.

On appeal as well as in the reference made to it for the confirmation of the death sentence, the Allahabad High Court set aside the conviction of the accused and acquitted him.

The State of Uttar Pradesh has filed this appeal by special leave against the above judgment of the High C Court.

The accused was married to Putlibai, who was neatabout of the same age as the accused, on May 14, 1968. Putlibai was the daughter of Gurmukh Das (PW 8) of Azamgarh, while the accused is the son of Shobhamal of Faizabad. The accused lived with his parents in quarter No. 1831 in Ram Nagar Colony of Faiza- D bad.

More than 300 familities of .Sindhis live in this locality.

The non-Sindhis occupy only a couple of houses.

There are a number of blocks of buildings in the colony. Each of those blocks

consi&ts of ten quarters. Apart from the accused and his parents, his uncle Parumal and the wife of Parumal, who is sister of the mother of the accused, also lives in his quarter.

The accused had been engaged to Putlibai about a year before the marriage.

According to the prosecution case, about 5 or 6 months after the engagement the accused went to the house of Gurmukh Das in Azamgarh to see Putlibai. After having a look at Putlibai the accused came to Faizabad and stated that he would F not marry Putlibai as she was not of fair complexion. When Gurmukh Das (PW) 8 learnt that the accused had refused to marry his daughter, he convened a panchayat.

The father of the accused then became agreeable to marry the accused with Putlibai. The marriage accordingly took place on May 14, 1968.

After the marriage Putlibai came to Faizabad and lived with the accused in his parents' quarter for about two and a half months.

G Gurmukh Das, father of Putlibai, it is stated, then came and took her to his house.

Putlibai after that came to the house of her husband on October 15, 1968.

The Cleath anniversary of Sain Kanwar Ram, a Sindhi saint, was celebrated by the Sindhis in Ram Nagar Colony of Fai?.abad H on the night between 17th and 18th October, 1968. The singing of the devotional songs continued up to 10 a.m. on October 1 8 in an open maidan in the Ram N agar Colony. The said maidan is at about a distance of 90 paces from the quarter of the accused.

Most of the Sindhis of Ram Nagar Colony attended the celebra- A tions. The Prasad was distributed at about 10 a.m. on the close of the celebrations.

The case of the prosecution is that Bhagwan Das (PW' 1), who is brother of maternal grandfather of Putlibai, after talcing Prasad took a riksha and started going to his grocery shop in B Mohalla Chowk, Faizabad. When Bhagwan Das passed in front of the quarter of the accused, he heard shrieks.

Bhagwan Das then shouted as to what the shrieks were about. Bhagwan Das also went to the front door of the quarter of the accused and knocked there. On hearing the shouts of Bhagwan Das, Choith Ram (PW 2), Ayal Das alias Ailmal (PW 6), Shobhraj (PW 7) c and one Kirpal Das also joined Bhagwan Das.

Bhagwan Das, Choi th Ram, Ayal Das and Shobhraj all live in that locality.

Choith Ram and Shobhraj were passing through the lane at that time after 1aking Prasad. Ayal Das, who too had taken Pi'asad, was taking water at a place about 40150 paces away from the quarter of the accused when Ayal Das heard shouts. The front door of the quarter of the accused was found bolted from inside D and there was no response to the knocking at the door. Bhagwan Das and others who had joined him then went to the back door of the quarter of the accused and knocked at the back door. The back door which opens in a very narrow lane was also found bolted from inside. There was no response even to the knocking at the back door. Bhagwan Das and his companions then thoqght E of going again to the front door of the quarter. When Bhagwan Das and his companions reached near a well at a distance of 10 paces from the back door of the house of the accused, they heard the noise of someone jumping. They then looked back and saw the accused who jumped over the back wall of his quarter. The accused wanted to run away but Bhagwan Das and his four com- F panions caught hold of the accused and did not allow him to escape in spite of his entreaties. The accused appeared worried at that time and there was redness in his eyes.

At the asking of Bhagwan Das, it is alleged, Choith Ram PW went inside the quarter of the accused by scaling over the wall which is about 7 feet high. Choith Ram then opened the G back door. Bhagwan Das along with the companions went inside the quarter of the accused and found Putlibai lying dead on a cot in one of the rooms of the quarter. The door of this room was slightly open. No one else was present in the quarter at that time.

Just then there was a knock at the front door of the quarter.

It was opened by Choith Ram. The mother of the accused who H had also gone to take Prasad then came inside the quarter.

On seeing the dead body of the deceased, the mother of the accused started crying. Shobhamal, the father of the accused, whose shop

is situated in Sabzi Mandi, came after about one and a half hour.

On the arrival of Shobhamal, Bhagwan Das told him everything.

Shobhamal then wanted to lift the dead body of Putlibai for con signing it in the river. but he was told by Choith Ram and others that they would not allow the dead body to be removed till the arrival of the parents of Putlibai. Bhagwan Das, in the mean while, directed one Oovardhan Das, brother of Choith Ram, to go in a taxi to Azamgarh and bring the parents of PutlibaL

At about 3 p.m. it is stated, Shobhamal, father of the accused, stated that there was no idea in keeping the dead body for a long time and that if Bhagwan Das and others had any suspicion, a doctor could be sent for. Bhagwan Das and his companions then told Shobhamal to call the doctor. Shobhamal thereupon deputed one Bhagumal to call a doctor. Bhagumal then went and con !acted Dr. Hansraj Singhal (PW 4) at the latter's residence at about 4 p.m.

Dr. Singhal, it is alleged, then went to his clinic and from D there took his diagonistic bag and thereafter came to the CJ.Uarter of the accused. The doctor found the dead body of Putlibai lying on a cot. The colour of her face was blue. The face was swollen and the eyes were slightly open. Pupils were dilated and non reacting to light. The mouth was slightly open and there were finger marks on the left and right side of her neck. There were E also marks of some abrasions on both the elbows besides a con , tusion on the right palm.

As Dr. Singhal was concerned only with the question as to whether the death of the deceased was normal or was. the result of some foul play, he did not make a more detailed examination of the dead body. Dr. Singhal came to the conclusion that the death of Putlibai was not natural but was due to throttling. The doctor told this thing to Bhagumal.

F The doctor added that the police should be informed and that otherwise he would himself inform the police on reaching his ell

nic. After saying this the doctor left the quarter. After the doctor gone for a distance of about two furlongs he thought of enquiring the name of the deceased, her husband and the particulars of the address. He consequently returned to the quarter of the accused G and after getting the necessary information, went to his clinic.

Before reaching the clinic, the doctor also telephoned to the police station about the death of Putlibai from a shop near his clinic.

In the meanwhile, immediately after Dr. Singhal had left the quarter of the accused, Bhagwan Das PW got a report written by Dayal Das (PW 10). The report was then signed by Bhagwan Das and was taken to police station kotwali at a distance of about two miles from the place of occurrence. The report was handed over at the police station at 5 p.m. Mohd. Amin (PW 9),

head clerk in the police station, then prepared a fonnal F.l.R. on the basis of the report of Bhagwan Das. A copy of the first informatioo report was sent to Sub Inspector Ram Gulam Chaudhari who was present in station :Fatehganj.

The Sub Inspector then went to the quarter of the accused and reached there at about 6 p.m.

The Sub Inspector took the accused, who had been secured at the spot, in his custody.

The dead body of the deceased was found by the Sub Inspector lyi.i1g on a cot.

After preparing the necessary docwnents, the Sub Inspector sent the dead body to the mortuary.

Post mortem examination on the dead body of Putlfbai was perfonned by Dr. Vijay Pal (PW 3) at 11.45 a.m. on October 19,

1968. In the opinion of Dr. Vijay Pal the death of Putlibai deceased was due to asphyxia caused by throttlmg.

After necessary investigations, a challan was put in against the accused.

In his statement under section 342 Code of Criminal Procedure before the committing magistrate the accused denied the prosecution allegations and stated that on t11e day of occurrence, he had gone to his father's shop at 9 a.m. He was caHed from that shop at 9-30 a.m. after being told that the condition cf his wife was serious. The accused ithen wanted to call a doctor but the doctor was not available. According to the accused he was falsely involved in this case at the instance of Bhagwan Das and Peruml who did not want that he should marry Putlibai.

In his statement under sectioo 342 of the Code of Criniinal .Procedure in the court of Sessions, the accused admitted that he

had been married to Putlibai deceased on May 14, 1968 and that they had been living together in the quarter of the accused along with the parents of the accused as well as his uncle and aunt. The accused further admitted that he had been engaged to Putlibai before his marriage but denied that he h.ad refused to marry her.

The allegation about the gathering of a panchayat too was denied !ti the accused.

The accused admitted that Putlibai came to the quarter of the accused on October 15, 1968 .. The fact that there was a celebration by the Sindhis living in t11e locality of the death anniversary of Sain Kanwar Ram on the night between 17th and 18th October 1968 was also admitted by the accused, but according to him, the Prasad was distributed at 6 or 7 a.m. The prosecution allegations about the hearing of shircks from his quarter as well as abouf his jumping over the back wall was denied by the accused.

The accused likewise denied the allegation that he was secured by Bhagwan Das and others. The accused added that Bhagwan Das, Choith Ram and father of Cloith Ram, were inimical to him b!ecause they did not want Putlibai to marry the accused.

t '

. B

According to the accused, on the day Of occurrence he had gone to his lather's shop at about 9 a.m. Thereafter he came to the place of occurrce at about 11 or 11.30 a.m. on being told that the condition of his wife was serious.

In defence five witnesses were examined on behalf of the accused .

The purport of the defence evidence was that on the day of occurrence at 10.30 or 11 a.m. the aunt of the accused called Tikam Das (DW 2), who is the cousin of the mother of the accused 8illd lives in the neighbourhood, and told him to go to the shop of the father of the accused and inform him about the serious condition of Putlibai deceased.

Tikam Das then went to the shop of the father of the accused and met the accused and his father there and conveyed the message to them.

Evid.ence was also Jed to show that the accused called two doctors and sent a telegram abput the death of the deceased to his sister's husband.

The learned Sessions Judge on consideration of the evidence found that the following facts had proved by the prosecution :

"I. The accused was the only person in the quarter and, therefore, with, the deceased immediately before, at the time c4' and immediately after her murder. '

2. Instead of getting out of the quarter in the usual way, he scaled the rear wall and jumped into the back lane immediately after the murder of the deceased.

3. WhQll he was caught as soon as he jumped, he was non-plussed, his eyes were red-shot and he begged to be let off which exhibited his guilty conscience."

Reference was further made to the fact that the accused had failed to explain as to why he had jumped from the back wall of his quarter and had tried to run away.

It was also pointed out that tho accused had made false denials and put forth false plea of alibi.

The above circumstances, m the opinion of the Sessions Judge, were consistent only with the guilt of the accused. The defence evidence produced by the accused was found to be not worthy of credence and was rejected. In the result the accused was convicted for the murder of Putlibai and was sentenced to death.

When the matter came up before the High Court, the learned Judges l>.eld that the prorecution had successfully established thlllt

the accused had a motive for the murder of Putlibai. lo the opinion of the learned Judges, the circumstances in which the death of Putlibai had occurred must have created a str<llllg suspicion against the accused.

He was consequently involved in this case.

SUPREME COURT RBPO.RTS

[1972] 3 S.C . .R.

The learned Judges seem to have taken the view that the first information report was not lodged at the time when it purports to have been made.

It was also observed that the only witiness who appeared to be independent was PW Shobharaj.

His statement was found to be not true because the witness had given the distance of his quarter from that of the accused as 50 'paces, while, according to another witmess, the distance was 150 paces. In the result, the conviction of the accused was set aside and he was acquitted.

We have heard Mr. Unyal on behalf of the appellant and Mr.

Chari on behalf of the accused-respondent, and are of the opiinion

that the High Court set aside the conviction of the accused on grounds which are wholiy untenable. There can be no ma!llller of doubt that Putlibai deceased was throttled to death.

The evidence Of Dr. Vijay Pal (PW 7), who performed post mortem ex&mination on the dead body of Putlibai deceased shows that he found the following ante mortem njuries on the dead qody of the deceased Putlibai :

"Finger marks were present in front of the neck.

These marks looked like brownish and dry.

On the left side of the neck, in front, upper aind outer part, thumb mark was present which measured 1" x t" and the upper pan of which was t" below the mandible.

On the right side of the neck, in front upper and outer part of 4 finger marks were present iin oblique directions downwards and outwards one below the other measuring 1" x t",; t•xt", t• x t• and !' x !'; the upper most mark was t"

below the mandible."

Besides the above injuries, there was a contusion on the right thinner eminence and two abrasions on the elbows.

Extravascular blood was present in the sub-cute.neons tissues of the neckunder the finger marks in the adjacent muscles of the neck. There was fracture of the corner of the hyoid bone. The larynx, the trachea, the lungs, the liver, the gall bladder, the spleen and the kidneys were congested. Dr. Vifay Pal accordingly came to the conclusion that the death was due to asphyxia caused by throttling. The doctor added that the time of the death of the deceased could be about 10.30 a.m. on October 18, 1968.

According to the prosecution case, the death of Putlibai deceased was caused by the accused, while the accused has denied this allegation.

The Sessions Judge accepted the prosecution evidence in this respect, but the same was found by the High Court to be not such as could warrant a conviction of the accused.

In order to prove the case against the accused, the prosecution examined Bhagwan Das (PW 1), Choith Ram (PW 2),

A Ayal Das (PW 6) and Shobhraj (PW 7). According to Bbag- :wan Das PW, he heard shrieks when he passed in front of the quarter of the accused at about 10.30 a.m. on the day of occurrence. The witness then shouted as to what the matter was about and was immediately joined by the other three witnesses and Kirpal Das. The witness then knocked at the front door as B well as at the back door of the quarter of the accused but got no response. Just then, the witness and his companions saw the accused jumping over the rear wall of his quarter in the back lane. The accused was then secured and was not allowed to escape in spite of his entreaties. Choith Ram PW then entered

c the quarter by sealing over the back wall and opened the door.

When Bhaan Das and his companions went inside, they found Putlibai lying dead on the cot.

Bhagwan Das also deposed about the report lodged by him with the police after Dr. Singhal had declared that Putlibai had been throttled to death.

The above evidence of Bhagwan Das is corroborated by the

D evidence of Choith Ram (PW 2), Ayal Das (PW 6) and Sbobh

raj (PW 7). The evidence of the above mentioned four wit nesses was found by the learned Sessions Judge to be convincing and reliable. After having been taken through that evidence, we sec no cogent ground to take a view different from that of the Sessions Judge. It is no doubt true \bat Bhagwan Das PW is the brother of Bangamal, maternal grandfather of Putlibai, E deceased and that sister of Cboith Ram PW is married to Banga ma!. It is also true that Ayal Dass PW is a cousin of Gurumukh Das, father of Putlibai.

The relationship of the above mentioned three witnCSSC6 to Putlibai deceased would, in our opinion, be not a sufficient ground for discrediting their testimony. It is well known that the close relatives of a murdered person are most F reluctant to spare the real assailant and falsely involve another person in place of the assailant.

Had Putlibai been killed by some other person, the natural conduct of the above mentioned three witnesses, who were related to Putlibai on her parents' side, would have been to offer sympathy to Samman Dau accused and help him In the apprehension of the real culprit, rather than to faliely involve him In the murder of his wife. There Is no cogent G evidence on the record to show that any of the above mentlOned tJlree witne&1e1 bad any animus against the accused. The accus ed, no doubt, took the plea that the above mentioned wltneues were against his marriage with Putlibal, but that suggestion has been denied by these witnesses.

H Apart from the evidence of the aforesaid three witnesses, we have the evidence of Shobhraj PW. Shobhraj is a wholly dis interested witness, and we see no cogent ground whatsoever u to why his evidence he not accepted. The fact that accordlna to

Shobhraj his quarter was at a distance of about 50 paces from the A quarter of the accused, while according to Bhagwan Das PW the quarter of Shobhraj is at a distance of 150 paces from that of the accused, would not go to show that Shobhraj is not, as held by the High Court, a truthful witness.

The difference in the estimate of the distance of the quarter of the accused from that of Shobhraj is not of great significance because nothing hinges on B that distance. According to Shobhraj, he arrived at the scene of occurrence not from his quarter but from the place where the celebrations of Sain Kanwar Ram were being held.

The afore said place is at a distance of less than 100 paces from the quarter of the accused.

The view of the High Court thaf the first information report C was not lodged at the police station at the time, viz;., 5 p.m., at

which it purports to have been l<><Jged is based upon mere con iecture.

According to Bhagwan Das PW, immediately after Dr Singhal had declared at about 4.30 p.m. that Putlibai had been throttled to death, he (Bhagwan Das) got written report from Dayal Das (PW I 0) and signed it. The report was then sent to D the police station. The evidence of Bhagwan Das in this respect is corroborated by Dayal Das PW.

We have then the evidence of Mohd. Amin (PW 9). Mohd. Amin was head clerk in police station Kotwali in those days.

According to Mohd. Amin. the report was handed over to him .at the police station at 5 p.m. on October 18, 1968. The witness then prepared the formal first I! information report.

An entry was also made in the general diary of police station . at that time.

The witness further sent special report regarding this case at 5.20 p.m. on that very day. Nothing was brought out in cross-examination to shake the evidence of Mohd.

Amin.

Apart from the fact that no reason has been shown as. to why the evidence of Bhagwan Das and Mohd .. Amin be not accepted regarding the time lit which the first information r report was lodged at the l)CRice station, we find that there was rtot even a remote suestion in the cross examination of Mohd.

Amin that the formal firSt information report was not prepared at the police station at the time, viz, p.m., at which it purports to have been prepared. In the absence of any material pointing to the inference that the formal first information report was not G prepared at 5 p.m., the High Court, in our view acted erroneously in holding, on the basis of a pure surmise, that the first inform&. tion report had not been lodged at the police 918.tion at 5 p.tn.

We are al.so not impressed by the argument that the police acted on the telephonic intimation received ftom Dr. Singhal.

According to Dr. Singhal, he sent the telephonic intimation after H 5 p.m., while the report of Bhagwan Das had been lodged at 1be police station at 5 p.m. Dr. Singhal's evidence shows that after

examining the dead body of Putlibai at about 4.30 p 0m., he proceCded in a riksha to _his clinic. After he had gone for a distance of two furlon~. he thought of getting details about ihe name of the deceased, her husband's name and address.

He accordingly returned to the quarter of the accused and got the necessary particulars.

After that, he again proceeded towards his clinic, but his riksha was held UJI at the railway level crossing because the gate at the crossing remained closed for 10 minutes.

In the circumS'tances, we find no reason to reject the prosecution evidence that the police acted upon the report lodged by Bhagwan Das PW.

Coming to the question as to whether there was a delay in lodging the report, we find that the evidence on record shows that after Putlibai had been found dead, the father. of the accused showed inclination to consign her dead body to the river. Bhagwan Das then insisted that the dead body of PuUibai should not be disposed of till the arrival of her parents. The father of the accused thereupon agreed to send for a doctor. Dr. Singhal was

accordingly called and he &tated, after examining the dead body, that the deceased had been throttled to death.

Immediately thereafter, Bhagwan Das got the report written from Dayal Das and lodged it at the police station. In our opinion, there was no inordinate delay in lodging the report. It is obvious that Bhagwan Das did not lodge the report rtill such tlme as he was certain that the deaih of Putlibai deceased was not natural but was due to violence.

The present was not a case wherein the deceased had been killed by some sharp-edged weapon or a fire arm, or wherein the deceased had been killed sharp-edged weapon or a fire arm, or wherein the body of the deceased had been found lying in a pool of blood. In such a case, there can be no doubt about the death being not natural. In cases, however, of death caused by poisoning or throttling, a layman cannot be very sure of the cause of death, and we find nothing improbable in the conduct of

Bhagwan Das PW in not lodging the report 'till he learnt from Dr. Singhal that death of the deceased was due to throttling.

Bhagwan Das, Choith Ram, Ayal Das and Shobhraj PWs reside in the locality wherein the occurrenee took place. The fact that no one from the quarters adjoining that of the accused has been examined by the prosecution would not, in our opinion, introduce an infirmity in the prosecution case.

The evidence Bhagwan Das shows that the adjoininJ!. quarters were closed at the time of the occurrence, as most of the people in the locality had 11:one to attend •the celebrations of Sain Kanwar Ram.

Argument was advanced by Mr. Chari that it would not be a natural act of the accused to have made the murderous assault on his wife at about 10.30 a.m. when 'lhe people were moving in the Jane in front of his quarter. In this respect we

find that the accused chose the moment when no one else was A

present in the house.

The fact that no one was present there to witness the actual murder of the deceased might well have been considered by the accused to be an opportune time. Different individuals act differently in a given situation, and we find nothing improbable in the act of the accused in committing the murder -0£ his wife at abQut 10.30 a.m. on the day of occurrence.

It has also been submitted by Mr. Chari that there was no sufficient motive for the accused to murder his wife.

In this respect we find that the evidence of Choith Ram (PW 2) sh<lws that the accused has told him that he did not like Putlibai.

We have then the evidence of Bhagwan Das PW as well as that of Gurmukh Das PW, father of Putlibai, that when it was learnt that the ac- C cused was reluctant to marry Putlibai, Gurmukh Das convened

a panchyat. The accused was thereafter married to Putlibai.

The evidence on record • thus, reveals that the accused was forced to rnary Putlibai in spite of his dislike, because of the convening of the panchayat. It cannot, in the circumstances,

be said that the accused bad no motive to cause the death of bis D wife. The learned iudges of ithe High Court too took the view that the accused had a motive to cause the death of the deceased., In any case, motive is not very material when the other evidence clearly points to the guilt of the accused.

Reference bas also been made by Mr. Chari to the fact that I cbere is no evidence about the existence of any injury on the person of the accused. It is urged that the deceased, while being throttled, must have offered resistance, and thus, there would have been an i!liury on the person of the accused because of that resistance. We are not impressed by this argument because resis tance by the deceased resultinJ! in iniuries to the assailant is not a necessary feature of every act of throttling.

Differe11t victim~ r can act differently and it would depend upon a variety of circumstances as to whether they were or not in a position to offer resistance.

The absence of Injuries on the person of the accused would not RO to show that he was not the person who had throttled

the deceased to death.

So far as the defence evidence is concerned, the same was disbelieved by the Sessions Judge. The defence evidence was also not relied upon by the High Court-ostensibly because no effort was made to relv upen that evidence.

Likewise, no effort has been made in this Court to rely upon the defence evidence.

There is no evewitness of the actual occurrence, but on the H material on record, we tlnd that the following circumstances have been proved aalnst the accuaed.

A ( 1 ) The accused was alone with the deceased in his quarter at about 10.30 a.m. on the day of occurrence.

(2) Shrieks were heard at that time from inside the quarter of the accused.

(3) Both the froDt and the back doors of the quarter of the B accused were found to be bolted from inside. Those doors were not opened in spite of shouting and knocking.

( 4) The accused soon thereafter jumped over the rear wall into the back lane.

He wanted to run away but was secured by BhaR, Wan Das and otlw witnesses. This accused appeared to be C upset at that time and, in sipte of his entreaties, he was not allowed

to~ awav.

(S) Immediately thereafter, Bhagw11111 Das and other witnesses went inside the quarter and found Putlibai, wife of the accused, lvina dead on a cot.

( 6) According to medical evidence, the deceased had been D throttled to death at about 10.30 a.m. on that day.

(7) The! accused had an animus against Putlibai because he was forced to marry her in spite of the fact that he did not like her.

All the above circumstances, in our opinion, cleadv point to the conclusion that the accused was the murderer of Putlibai.

E The above cju:umstances are inconsistent wid! his innocence.

Mr. Chari has referred to the case of-Ote State of Madr!IS v.

A. Yaidyanatha Iyer (1) wherein this Court held that the words used In article 136 of the Constitution shciw that, in criminal

matter&, no distinction can be made as a matter of construction F between a judgment of conviction and one of acquittal. This Court, It! was further observed, would not readily interfere with the flndinlll of fact ven by the High Court, but if the HiRh Court llCts pervenely or otherwise improperly, Interference will lie called for.

In our oPlnlon, the accused-respondent can derive not much aulstance from the above authority because the HlRh Court In the present cue reversed the flndlna of conviction on arounds G which were wholly untenable. The view taken by the Hlah Court

Is clearly unreasonable and Is not warranted by the material on

record. The fact that the Him Court, In a reference under sec tion 374 of the Code of Criminal Procedure, has to appraise the evidence for itself and has to arrive at its own Independent con clusion would not prevent this Court from interfering with the H order of the High Court if the High Court reverses the judgment of the trial court on grounds which are manifestly fallacious and untenable.

(1) tiflil $.C.R. 516.

This Court in an appeal under article 136 of the Constitution A does not normally re-appraise the evidence and interfere with the assessment of that evidence by the High Court.

Where, how ever, this Court finds that ve injustice has been done .by the High Court in interfering with the decision of the trial court on grounds which are plainly untenable and the view taken by the High Court in interfering with the decision of the trial court on B this Court would not stay its hand. There are, however, certain cardinal rules which have always to be kept in view in appeals against acquittal. Firstly, there is a presumption of innocence in favour of the accused which has to be kept in mind, especially when. the accused has been acquitted by the court below; secondly, if two views of the matter are p05sible, a view favourable to the accused should be .taken; thirdly, in case of acquittal by C the trial judge, rthe appellate court should take into account the fact. that the trial judge had the advantage of looking at the domeanour of witnesses; and fourthly, the accused is entitled.tO the benefit of doubt.

The .doubt should, however, be reasonable and as observed recently by this Court, the doubt should be sueh which rational thinking men will reasonably, honestly and con- D scientiouslv .11ntertain and not the doubt of a timid mind which fights shy-though unwittingly it may be-or is afraid Qf the logical consequences, if that benefit was nC11 given.

To put it differently, it is "not the doubt of a vacillating mind that bas not 'the moral courage to decide but shelts itself in a vain ar.d idle scepticism" (see Himachal Pradesh Administration v. Shri Om E Parkash, Cr. Appeal 67 of 1969 decided on December 7, 1971).

We, therefore, accept the appeal, set aside the judgment of the High Court and convict the accused-respondent under section

302 I.P.C.

As regards the sentence, we find that the occurrence took place more than three veal"$ ago.

The accused was aged about 'fl 19 years at the time of the trial. ·. Lookin~ to all '.he circumstances, we are of the opinion that we meed not award the extreme penalty in this case. We accordingly sentence the accused to undergo imprisofunent for life.

K.B.N.

Appeal allowed.

STATE OF UTTAR PRADESH

SAMMAN DASS

January 11, 1972

M. SHELAT

H. R. KHANNA, JJ

Art. 136

Constitution of India

Code of Criminal Procedure

Art. 136

H D. P; Uniyal

0. P. Rana

A. S. R. Chari

S. K. Mehta

K. L. Mehta

K. R. Nagaraja

Khanna

Samman Dass alias Samman Lal

section 8

Putlibai

Allahabad High Court

State of Uttar Pradesh

High C Court

May 14, 1968

Gurmukh Das

Azamgarh

Shobhamal

Faizabad

Parumal

Gurmukh Das

G Gurmukh Das

October 15, 1968

Sain Kanwar Ram

18th October, 1968

October 1 8

Ram N agar Colony

Bhagwan Das

Prasad

Bhagwan Das

Choith Ram

Ayal Das alias Ailmal

Shobhraj

Kirpal Das

Choi th Ram

Ayal Das

Shobhraj

Choith Ram

Pi'asad

Oovardhan Das

PutlibaL

Bhagumal

Hansraj Singhal

Singhal

Dayal Das

police station kotwali

Mohd. Amin

Ram Gulam Chaudhari

Fatehganj

Putlfbai

Vijay Pal

October 19,

1968

section 342

Code of Criminal Procedure

Peruml

17th and 18th October 1968

Cloith Ram

Tikam Das

Tikam Das

Shobharaj

Unyal

Chari

Vifay Pal

October 18, 1968

Ayal Das

Bbag- :wan Das

Kirpal Das

Bhaan Das

Sbobh

raj

\bat Bhagwan Das

Bangamal

Cboith Ram

Banga ma

Ayal Dass

Gurumukh Das

Samman Dau

Putlibal

Kotwali

Mohd. Amin

Mohd.

Amin

Mohd .. Amin

PuUibai

Dayal Das

BhaR

Wan Das

Bhagw11111 Das

article 136

Code of Criminal Procedure

article 136

December 7, 1971

section

302

I.P.C


• ·• 606

AIR INDIA CORPORATION, BOMBAY

V. A. REBELLOW & ANR.

Februarv 24. 1972

(C. A. VAIDIALINGAM, I. D. DUA

0AND G. K. MITTER, JJ.J

Industrial Disputes Act (14 Of 1947), ~'- '33(1 )(b), 33(2)(b) and 33A-Tenninntion of servic~~ 0/ en1p/oye-NOt for 111is-:onduct-Approval of Tribunal not obtained~Legalil•y.

The respondent htid be.en employed by the appellant as an Assistant Station Superintendent. An order was passed terminating his services with

immrdiate effect with P'1Yment of one month's salary in lieu of notice.

He filed a complaint under s. 33A of the Industrial Disputes Act, 1947 before the Labour Court before which. 1.1n industrial dispute was pending. <J, lleging that the tcrn1ination of hf.s service was illegal for tl'r! reason inter a/ia tlY.tt the approval of the Labour Court for such termination was not obtained.

Th~ uppellunt contended thut the respondent was not a •.vorkman and thal hr.! was not conC:e'rned in the industrial dispute pending in the Labour Court.

Pursuant to the directions of the Latour Court, the appellant filed v. written statement in which it was pleaded that without prejudice to the contention that this .case should be decided on the aforesaid

preliminary points raised by the appellant the order of termination of the respondents' services was valid because his services were terminated under Regulation 48 of the Air India Employees' Service Regulations framed with previous app'roV':ll of the Central Govenunent, and under that regu .. lation the services of a permanent employee may be terminated without assigning any reason. It was added that without prejudice to the plea that the appellant W'"JS not bound to discle any reason for terminating the services of the respondent, the latrer•s services weTe terminated because of the appellant's total Jo-s of confiden~.e in the respondent on account of gtave suspicioJns regarding his private cpnduct and behaviour with the Air Hostess';?s of the appelJ-:in.t-Corporation.

The Labour Court held on the preliminary question that the respondent was a workman concerned in the industrial_ dispute pending before it and that his dicharge was in breach of s. 33 of the Act.

On the question whether t11c action taken by .tltc_?· appellant. W'3S hit by s. 33 of the Act,

HELD: (1) Section 33(1)(b) bans the dischargi:: or punishment. whether by dismissal or otherwise. of a workman for misconduct connected with a pending dispute \Vithout the express permiso::ion in writing G of the authority dealing with the pending proceeding.

Section 33(2) (b) places a similar ban in reg:ird to matters not connected with the pendin~ dispute; but the employe:r is free, to discharge or dismiss a workman by paying wages for one month provided he applies to the authority dealing with the pending proceeding for approval of the action taken.

Whether lhe ction is taken under' 33(l)(b) ors. 33(2)(b), the ban is imposed bnly in regard to c.ction tokerr for misconduct whether corinected or un-·

connected with the dispute. Unlike under s. 33(3) which gives a blanket R protection to 'protected workmen•, an employer is free to take. action against other workmen if it is not based orl any misconduct on their part. f617B-D, C-Gl

l2) ln the present case, on the fac, e of it, the language of the order

Jos not show th3t the respondent's services were terminated because of any misconduct.

Prima facie, therefore, the impugned order was not an order discharging Or punishing the respondent for any misconduct. r618A-·

BJ ( 3) Action under Reg. 48 can be validly tak•!n by an employer at his Sweet-will without assigning any reason, and he is not bound to disclose why he does not want to continue in service a particular employee. r620D-E1

( 4) It is however open to the restbondent to urge that reliance on.

Reg. 48 V.'as not bona fide and 'that it was a colourabl~ exercise of the right confe:rred by the Regu!ation, because, the form of .the order is not decisive and attending circumstances are open to consideration though th~ motive ftJr the order, if not n1alafi(le, is not open to question. f619H;

6208-C]

fVorknien o/ .St1dder Office, Cinnamara v. Afanagcment, [19711 II L.L.J. 610, Chartered Bank, Bonibav v. Chartered Bank Emploxees' Union. [1960] l[ L.L.J.- 222 and Tcta Oil Mills Co.

Ltd. v.

Wori:rner, [1964] ][ L.L.J. 1!3, referred to.

(5) But the reason of the employer for the terminating the services o'f his employee need not be his misconduct but may, inter-alia, be want of full satisfaction with the employee's' overall suitability in the job assigned to the employee. Such want of satisfaction does not imply misconduct of the employee. r620E-Fl

(6) 'fhe loss of confidence in the pres.ent case canno.t be considered to be mc; lafide.

Assuming that the re'3.SOn stated in the appellant's written statement could be taken into account, the bona fides of .the appellant in making the impugned order could not be challe.nged. The respondent had to deal with Air hostesses in the performanc~ of his duties and if the

appllant was not fuUy s'3.tisfied beyond -"SUSP.icion about his general conduct and behaviour while dealing with them it could not be said that the loss cf confidence was not bona fide.

Once bona fide loss of cofidencc is affirmed the impugned order must be considred to be immune from challenge.

The opinion formed by the employer about the suitability of his crnpl_oyee for the job assigned to him, even though erroneous, if hona {idi:' is final '3.nd not subject to review by industrial adjudication.

Such an opinion may legitimately induce the employer to tetminate the .employee's ervices, but, s_uch termination can, on no rational glrounds .. be considered to 'be for misconduct, and lnust therefore be held to bepermissible and immune from challenge. [620F-H; 62\A-BJ

Manage111en~ of U. B. Dlltt & Co. v. Workmen of U. B. Dutt & Co. [1962] Supp. 2 S.C.R. 822, distinguished. ·

[The question whether the reason stated in the appell-:lnt's written stat-:ment. filed without Prejudice and pursuant to the direction of the Labour Court could be takc11 into account, left open.1 [621E-FJ

C1v1L APPELLATE JURISDICTION: Civil Appeal No. 1339 of 1967.

Appeal by special leave from the Award dated April 28, 1967 of the Central Govemmnt Labour Court, Bombay in Application No. LCB-39 ol 1965. .

S. D. Vimdalal, S. K. Wadia, D. N. Mishra 8iild 0. C. Mathur, A '.for the appellant.

K. P. V. Menon, S. R. Iyer and M. S. Narasimhan, for respondent No. 1.

The Judgment of the Court was delivered by

Dua, J. This is an appeal by special leave and the appellant, the Air-India Corporation, Bombay assails Part I of the Award with corrigendum, date<! April 28, 1967, given by the Central Government Labour Court, Bombay, on the complaint dated October 16, 1965 made by Shri V. A. Rebellow, respondent no. 1 in this Court (hereinafter referred to as the complainant) under s. 33-A of the Industrial Disputes Act, 1947 (hereinafter called the Act). The complaint was originally filed by the complainant before the National Industrial Tribunal, Delhi, (Mr. Justice G. D . . Khosla, retired Chief Justice of the Punjab High Court) in the .Industrial Dispute Reference No. l of 1964 but was later trans-

[erred to the Central Government Labour Court and numbered as .application no. LCB 39 of 1965.

The impugned award merely dealt with the preliminary points raised by the appellant that the complainant was not a workman cc, ncemed in the aforesaid industrial dispute and that there was .no breach of s. 33 of the Act with the result that the complaint under s. 33-A of the Act was incompetenll.

The Labour Court held the complainant to be a workman concerned in the atoresaid -indJJstrial dispute pending before the National Industrial Tribunal -0n the date of his dismissal and that the dismissal was not a discharge simpliciter but in breach of the provisions of s. 33.

On this finding his complaint was held to be maintainable. The two questions canvassed in the present appeal are ( 1) whether the complainant was a workman and was as such concerned in the aforesaid dispute (Industrial Dispute Reference No. 1 of 1964) and (2) whether the termination of his service was a dismissal as alleged by him or was a mere termination of service not amounting to dismissal: Broad facts necessary for understanding the controversy may now be stated : The order which was challenged as amounting to the complainant's dismissal reads :

CONFIDENTIAL Dated June 19, 1965 (Thru: The Co111mercial Manager, Cargo) Dear sir, It has been deci!ofed to terminate your services, which We hereby do with immediate effect. You will be paid one month's salary in lieu of n<>tice, ·

2. Please arrange IQ return, as early as possible, all items of Corporation's property in your possession to enable us to settle your accounts.

3. Your accounts will be settled after checking your commitments. ·

Yours faithfully,

AIR INDIA

Sd/- S. K. KOOKA Commercial Director"

On July, 1 §, 1965 the complainant acknowledged the above letter terminating his services with inunediate effect and requested for reinstatement because according to him there was nothing to warrant such summary termination of his services. This is what he wrote:

" .... In this connection I have to state that I have served the Corporation for a period of over nine years and to the date of terminating my services, there is nothing on record which warrants that my services.should be terminated summarily. Hence it is requested that I be reinstated and thereafter if the Management is of the opinion that I have done something against the interest and the fair name of the Corporation, I be charged accordingly, given an opportunity to explain my conduct and after everything else if I am found guilty, acion taken gainst me as the management deems fit.

With the experience I have with the management's policy towards its employees, I am confident that I will never be deprived of the opportunity I have asked for and more so in the light of the faithful service I have rendered. . ..... "

The following reply was sent to the complainant on September I 1965;

2. I have to inform you that your services were terminated on payment of 30 days' salary in lieu of notice, in accordance with Rule 48 of the Air-India Employees Service Regulations."

Regulation 48 of the Air-India Employees' Ser'Vice Regulations which was described as Rule 48 in the letter of September 8, 1965 reads as under :

CHAPTER VIII Cessation of service

• • •

48. Termination: The service of an employee may be terminated without assigning any reason, as under :

(a) of a permanent employee by giving him 30 days' notice in writing or pay in lieu of notice;

(b) of an empl_oyee on probation by giving him 7 days' notice in writing or any in lieu of notice;

(c) of a temporary employee by giving him 24 hours' notice in writing or pay in lieu of notice.

Explanation: For the purposes of this Regulation, the word "pay" shall include all emoluments which would be admissible if he were on privilege leave."

In the complaint under s. 33-A of the Act it was alleged by the complainant that the order dated June 19, 1965 smacked of vindictiveness or unfair labou_r practice and that his alleged termination was a cloak for punishing him.

No facts were, however, stated in support of this averment. According to the averments in this complaint, Regulation 48 postulates the existence of some relISOn for the termination of service and since the Corporation had not disclosed any reason for the termination of the complainant's service it was requested'that the Corporation be directed to disclose the reason, if any, for the termination of his service.

The real grievance of the complainant, it appears, was founded on the construction of Regulation 48 as is clear from the following avermcnts in para 7 of the complaint :

"The complainant submits that on a reasonable construction of the said Rule, the Opposite Party is bound to disclose the reason if any for the said termination in the present proceedings. The complainant submits that any other construction would be unreasonable and make the said rule itself unreasonable, illegal, void as also in contravention of Articles 14, 16, 19 and 311 of the Consti~ tution of India and is therefore void and inoperative."

In regard to the question of the complainant bei11g a workman .concerned in a pending indust; riaf dispute it was a, verred that the

complainant had been employed by the Opposite Party as an Assistant Station Superintendent (Crew Scheduling) in the grade of Rs. 300-25-500-50-650 and was confirmed in that post with effect from 1st December, 1963, In po.ra 8 of the complaint it was pleaded !hat :

"the proceedings in reference no, NIT No, 1 of 1964 were and are pending before this Hou'ble Tribunal and the Complainant is a workman concerned in the said dispute. The Complainant says that U!H.kr the circumstances aforaid the Opposite Parry ought to have made an application for approval before this Hon'ble Tribunal under Section 33 (2) of the Industrial Disputes Act, 1947 but the Opposite party has made no such application nor has the Opposite Party intima•t>.d that it proposed to make such an application for approval while terminating the services of the Complainant.

The Complainant says; that the Opposite Party has not obtained the approval of this Hon'ble Tribunal in writing of the action taken by it ggalnst the Complainant."

On these averments reinstatement was cbimed by the complainant with full b1tck wages and allowances from the date of the alleged termination of his ser\(ic, es,

E It appears that pursuant to directions from t})e Labour Court the appellant filed a further written statement dated June 30, 1966 and it was submiHed :

"Without prejudice to the contention of the Opposite Party that this case should be decided on the preliminary points above. as raised by the Opposite Party, as the Complainant has repeatedly made a grievance that a written statement on merits has not even been filed and as this Honourable Tribunal also indicated at the preliminary hearing that a written statement on merits should in any event be kept ready and that no further time would be given to, the Opposite Party for preparing and filing

the same, the Op1Josite Party herewith begs to submit this further written Statement."

With these preliminary submissions it was stated as follows in paragraph 7 :

"With reference to paragraphs 6 and 7 of the Complaint, Regulation 48 of the Air-India Employees' Service Regulations provides inter alia, that the services of a pennanent employee may be terminated, without assigning any rlll!son, by giving him thirty days' notice in writing or pay in lieu of notice. The construction

sought to be put upon the said Regulation by the Com plainant is not correct, The opposite Party denies that .

Regulation 48 is unreasonable, illegal or void or in contraven, tion of Articl, es 14, 16, 19 and 311 of the Consti~ tution of India. The said Regulations have been framed with the previous approval of the Central Government under section 45 (2)(b) of the Air Corporation Act,

1953. The Opposite Party submits tha~ it was and is not bound to gi"'._e or disclose any reason for tenninating the service of tlie Complainant. Any contrary view would, it is submitted, render the said Regulation No. 48 completely nugaUQry.

However, without prejudioo to this, the OppoSite Party says that the Complainant's service was terminated because of Ike total loss of con fidence on account of grave suspicions regarding his private conduct and behaviour with Air Hostesses of the Corporation. The reports and statements from the Air Hostesses concerned cannot be disclosed as they involve the reputation and future of young and unmarried girls.

Having regard to this, the Opposite Party could not continue the Complainant in its service and it was constrained to terminate his service in accordance with Regulation 48." The complainant's averment that he was a workman concerned in the proceedings in the industirial dispute was denied by the appellant in the first written statement dated March 15, 1966 in j>ara 1 which reads :

"(a) Tli.e Complainant was at no relevant time a 'worlanan' within the meaning of that term as defined in Section 2 ( s) of the said Act. At the time of the tttmination of his service, the Complainant was an Assistant Station Superintendent and was employed in an administrative/ Supervisory . capacity, drawing a total salary amounting to Rs. 690 per month.

Moreover, it may also be pointed out that in its Staff Notice No. 130 dated 31st March,.1956, the'Opposite Party has given a classification of its nnel, whereili . the category of Assistant Station Superintendents has been classified as an "Officer" category (vide Entry no. 1/28). A copy of. the said Staff Notice is hereto annexed and marked Ex.

No. 1. Further, the said category of Assistant Superintendents has not been included among the categories of workmen in the dispute in Ref. No. NIT/1. of 1964 pending bel'ore the National Industrial TribiJnal composed of Shri G. D. Khosla. Besides, the C1aB11 of 9ffi" ccrs designated as Assistant Station Superindents •has always been,. and. is, represented by the Air-India OjliCen

AIR I.NDJA v. v. A. REBELLOW (.Qua, /.) 613

Association which is not an association reprsenting any 'workmen' and which.is not a party to the dispute in the abovementioned reference.

Further, the said class of Officers has not at any time presented itself before the National Industrial Tribunal nor has it been represented at the hearing of the said dispute by any of the Uniort& representing parties nos. 2 to 7 to the said dispute.

(b) Even assung, without admitting, that the Complainant is held to be a workman (which is denied)

subsections 1 and 2 of section 33, and consequently section 33A,. have, and can have, no application having regard to the circumstances of tlhe present case. The sub~ .iect matter of the Complaint is not a matter connected

with the dispute in the Reference before the Natipnal Industrial Tribunal nor is the, Complainant concerned in the said dispute. Further, sut>isection (1) (b) and subsection 2(b) of Section 33 have application only in the case of dismissal or discharge for misconduct in the cir cumstances set out therein, and not to a case of termiila tion of service simpliciter. In the prent case, the

Opposite Party has bona fide terminated 'the service of the Complainant under. the provisions of Regulation 48-' of Air India Employees' Service Regulations which are applicable to the Complainant. There has, therefore, been no breach of the provisions of sub-section (l)(b) or sub-section 2(b) of section 33 and unless there is such a breach there can be no invocation of Section 33A. Oti

the contrary, the Opposite Party repeats that the said sub-sections are inapplicable."

The complainant and the appellant both filed lists of the com

plainant' s duties in proof . of their respective contentions, Ex. E-1 . being the appellant's list and 9x. W-13, the complairuµit's.

The Labour Court eld in the impugned award that the complainant as Assistant Station Superintendent was a Junior Officer and as such, as determined in the Khosla Tribunal Award, was' a workman concerned in the industrial dispute before that Tribunal and that his discharge was not discharge simpliciter-but .in breach of s. 3 3 of the At. On this view the complaint was directed to be considered on themerits. · ' :

Jn this _Couit Shri Yunadlal argued that keepin~ in view the

compla~nt's duties it is not possible to hold that he is a workman.

Accdrding to the submission the. complainant was an officer whose duties 'Yete primarily supervisory and, therefore, lie could

not be described as a workman. lbe complainant, it was furths

argued, was t least not a workman_ oonrned. in th~ industrial

J 1-Lt03 tS11p. Cl./72 . -

dispute pel)ding before the Khosla Tribunal.

In any event, the action taken by the appellant, not being for misconduct on th; part of the appellant but under Regulation 48 was not hit bys. 3.J of the Act.

We should like first to deal with t:he applicability of ss. 33 and 33A of the Act on the assumption that the complainant was a workman and also as such interested in a pending industrial dispute. These sections read :

"33. Conditions of servh'e etc., to remain unchanged under certain circ\lmstances during pendency of proceedings : ( 1) During the pendency of any conciliation proceeding before a concHation officer or a Board or of any proceeding before an arbitrator or a Labour Court or Tribunal or National Tribunal in respect of an industrial dispute, no employer shall,-

( a) in regard to any matter connected with the dispute, alter, to the prejudice of the workmen concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceeding; or

(b) for any misconduct connected with the dispute, discharge or punish, whether by dismissal or otherwise, any workmen concerned in such dispute, save with the express permission in writing of the authority before which the proceeding is pending.

(2) During the pendency of any such proceng in respect of an industrial dispute, the employer may, in accordance with the standing orders applicable to a work- . man concerned in such dispute, or, where there are no such standing orders, in accordance with the terms of the contract, whether express or implied, between him and the workman,-

( a) alter, in regard to any matter not connected with the dispute, the conditions of service applicable to that workman immediately before the commencement of such proceeding; or

(b) for any misconduct not connected with the dispute, discharge or punish, whether by dismissal or otherwise, that workman :

Provided that no such workman shall be discharged or dismissed, unless he has been paid wages for onQ

month and an application has been made by the employer to the authority before which the proceerung is pending for approval of the action taken by the employer.

( 3) Notwithstanding anything contained in subsection ( 2) no employer shall, during the pendency of any such proceeding in respect of an industrial dispute, take any action against any protected workman concerned in such dispute-

( a) by altering, to the prejudice of such protected workman, the conrutions of service applicable to him immediately before the commencement of such proceedings; or

(b) by discharging or punishing, whether by dismissal or otherwise, such protected workman,

save with the express permission in writing of the authority before which the proceeding is pending.

Explanation.-For the purposes of this sub-section, a 'protected workman', in relation to an establishment, means a workman who, being an officer of a registered trllde union connected with the establishment, is recognised as such in accordance with rules made in this behalf.

( 4) In every establishment, the .number of workmen to be recognised as protected workmen for the purposes of sub-section ( 3) shall be one per cent. of the total number of workmen employed therein subject to a minimum number of five protected workmen and a maximum number of one hundred protected workmen and for the aforesaid purpose, the appropriate Government may make rules providing for the distnbution of such protected workmen among various trade unions, if any, connected with the establishment and the manner in which the workmen may be chosen and recognised as protected workmen.

{ 5) Where an employer makes an application to a conciliation officer, Board, an arbitrator, a Labour C:ourt, Tribunal or National Tribunal under the proviso to. sub-section ( 2) for approval of the action taken by !}im, the authority concerned shall, without delay, hear

such application and pass, as expeditiously as possible such order in relationthereto as it deemed fit. . •

33A Special provision for adjudication as to whether conditions of service, etc., changed during pendency or proceedings :

Where an employer contravenes the provisions of section 3 3 during the pendency of proceec; lings before a Labour Court, Tribunal or National Tribunal, any emplciyee aggrieved by such contravention, may make a complaint in writing, in the prescribed manner to such Labour Court, Tribunal or National Tribunal and on receipt of such complaint that Labour Court, Tribunal or National Tribunal shall adjudicate upon the complaint as if it were a dispute referred to or pending before it, in accordance with the provisions of this Act and shall submit its award to the appropriate Government and the provisions of this Act shall apply accordingly."

D The basic object of these two sections broadly . speaking appears to be to protect the workmen concerned in the dispulei! which form the subject matter of pending conciliation proceed~ ings or proceedings by way of reference under s. 10 of the Act, against victimisation by the employer on account of raising or continµing such pending disputes and to ensure that those. pending proceedings are brought to expeditious termination in a peaceful atmosphere, undisturbed by any subseq\lent cause tending to further exacerbate the already strained relations between the It employer and the workm, en.

To achieve this objective a ban, subject to certain conditions, has been imposed by s. 33 on the ordinary right of .the employer to alter the terms of his employees' services to their prejudice or to terminate their services under the general law governing contract of employment and s. 33A provides for relief against contravention of s. 33, by way of adjudication of the. complaints by aved workmen comidering them to be disputes referred or pending in aqcordance with the provi sions of the Act.

This ban, however, is designed to restrict interference with the general rights and liabilities 'bf the parties under the ordinary la'!" within the limits truly necessary for accomplishing the above object. , The employer is accordingly ti left free to deal with the employees when the action concerned is

not punitive or mala fide or does not :!mount to victimisation or . unfair labour practice.

The anxiety of the legislature to ellectively ll'chieve. the object of duly protecting . the. workmen against victimisation or unfair labc;>ur practices consistently with the preservation of the employer's bona fide right to maintain discipline and efficiency in the industry for securing the maximum production in a peaceful harmonious atmosphere is obvious from the overall scheme of these sections.

Turning first to s. 33, sub:s.

( 1 ) of this section deals with the case of a workman concerned in a pending dispute who has been prejudicially ilffected by an action in regard to a matter connected with such pending dispute and sub-s. ( 2) similarly deals with workmen concerned in regard to matters unconnected with such pending disputes.

Sub-section ( 1 ) bans alteration to the prejudice of the workman concerned in the conditions of service applicable to him immediately before the commencement of the proceedings and discharge or punishment whether by disntlssal or otherwise of the workman concerned for misconduct connected with the dispute without the express permission in writing of the authority dealing with the pending proceeding.

Sub-section ( 2) places a similar ban in regard to c matters not connected with the pending dispute but the employer is free to discharge or dismiss the workman by paying wages for one month provided he applies to the authority dealing with the pending proceeding for approval of the action .taken. In the case before u& we are concerned only with the ban imposed against orders of discharge or punishment as contemplated by cl. (b) of 0 the two sub-sections.

There are no allegations of alteration of the complainant's terms of service. It is not necessary for us to decide whether the present case is governed by sub-s. ( 1) or sub-s. ( 2) because the relevant clause in both the sub-sections is couched in similar language and V(e do not find any difference in the essential scope and purpose of these two &uh-sections as far as

the controversy before us is concerned. It is noteworthy that the ban is imposed only in regard to action taken for misconduct whether connected or unconnected with the dispute.

The employer is, therefore, free to take action against his workmen if it is not basea on any misconduct on their part. In this connection reference by way of contrast may be madeto sub-s. (3) of s. 33 which imposes an unqualified ban on the employer in regard to action by discharging or punishing the workman whether by dismissal or otherwise. In this sub-section we do not find any restriction such as is contained in cl. (b) of sub-ss. (1) and (2).

Sub-section ( 3) protecls "protected _workman" and the reason is obvious for_ the blanket protection of such' a workman.

The legislature in his case appears to be anxious for the interest of healthy growth and development of trade union movement to ensure for him complete protection against every kind or order of discharge or punishment because of his special position as an officer of a registered trade union recognised as such in accordance with the rules made in that behalf.

This explains the restricted protection in sub-ss. (1) and (2).

It is in, the background of the. purpose and scope of s. 33(1) and (2 l that we have to consider whether the action taken against the complainant is hit bv eitll.er of these two sub-sections. We have seen the form and the language of the impugiied order. On

its face the language does not show that the complainant's services were terminated because of any misconduct.

Prima facie, therefore, the impugned order is not an order discharging or punishing the complainant for any misconduct.

But then the complainant's learned counsel Shri Menon argued that the face or the fom1 of the order is not conclusive and that the Court is entitled to and indeed should go behind the form and by looking at the real substance of the matter try to find the real cause and then come to its conclusion whether or not the order is a mere camouflage for an order of dismissal for misconduct.

The true legal position has been stated by this Court more than once and is by now beyond controversy.

In one of the most recent decisions in The Wo1kmen of Sudda Office, Cinnamara v.

The Management(!) this.Court approvingly referred'to two of its earlier decisions actually reproducing a passage from one of them.

This is what was said in Sudder Office case :

"It is needless to point out that it has been held by this Court in The Chartered Bank, Bombay v.

The Chartered Bank Employees' Union(') thafif the termination of service is a colourable exercise of the power vested in the management or as a result of victimisation or unfair labour practice, the Industrial Tribunal would have jurisdiction to intervene and set aside such a termination.

In order to find out whether the order of termination is one of the termination simpliciter under the provisions of contract or of standing orders, the Tribunal has ample jurisdiction to go into all the -circumstances which led to the termination simpliciter.

The form of the order of termination, is not conclusive of the true nature of the order, for it is possible that the fo1m may be merely a camouflage for an order of dismissal for misconduct. It is, therefore, open to the Tribunal to go behind the form of the order and look at the substance. If the Tribunal comes to the conclusion that though in form the order amounts to termination simp/iciter but in reality cloaks a dismissal for misconduct, it will be open to it to set aside the order as a colourable exercise of power by the management.

Principles to the same effect have also been reiterated in the later decision of this Court in Tata Oil Mills Co. Ltd. v. Workmen & anr. (') where the Court observed as follows :

"The true legal position about the Industrial Court's justification and authority in dealing with

(I) [1971]-II L.L.J. 620.

(2) [1960]-II L.L. J. 222.

(3) [1964]-II L.L.J. 113.

cases of this kind is no longer in doubt. lt is true that in several cases, contract of employment or provi sions in standing orders authorise an industrial employer to terminate the service of his employe.:s after giving notice for one month or paying salary for one month in lieu of notice, and normally, an employer may, in a proper case, be entitled to exercise the said power.

But where an order of discharge passed by an employer gives rise to an industrial dispute, the form of the order by which the employee's services are terminated would not be decisive; industrial adjudication would be entitled to examine the substance of the matter and decide whether the termination is in face discharge simpliciter or it amounts to dismissal which has put on the cloak of discharge simpliciter.

If the Industrial Court is satisfied that the order of discharge is punitive, that it is ma/a fide, or that it amounts to victimisation or unfair labour practice, it is competent to the Industrial Court to set aside the order and, in a proper case, direct the reinstatement of the employee."

Shri Menon on behalf of the complainant, however, contended that ignoring the form and language of the impugned order and looking at the real substance of the matter it is clear as disclosed by the appellant in the further written statement that the complainant's services were terminated because of a suspicion about his private conduct and behaviour with Air Hostesses whose names were considered not proper to be disclosed.

This, said the counsel, makes out an allegation of misconduct which induced the appellant to terminate the complainant's services and the case, therefore, clearly falls within the mischief of s. 33.

The impugned order, he added, is a colourable exercise of the power under Regulation 48, the real object of the appellant being essential!}' to punish the complainant for misconduct.

No doubt, the position of the industrial workman is different from that of a Government servant because an industrial employer cannot "hire and fire" his workmen on the basis of an unfettered right unde" the -contract of employment, that right now being subject to inC:strial adjudication : and there is also on the other hand no provision of the Constitution like Arts. 310 and 311 requiring consideration in the case of industrial workmen.

We are here only concerned with the question whether the. impugned action of termin_ation of the complainant's services is for misconduct as contemplated bys. 33(11) (b) ors. 33(2)(b). While considering this question it is open to the complainant to urge that reliance on Regulation 48 is not bona fide, it being a colourable exercise of the right conferred by that regulation.

He has in fact raised

this argument and it is this aspect which concerns us in this case.

A Let us now scrutinise the present record for examining the position from this aspect.

Now, the true position, as it appears to be clear from the record of this case, is that the complainant's services were terminated under Regulation 48 by paying his salary for 30 days in B lieu of notice.

The order does not suggest any misconduct on the part of the complainant and indeed it is not possible to hold this order to be based on any conceivable misconduct.

The form of this order is no doubt not deciive and attending circumstances are open for consideration, though motive for the order, if not mala fide, is not open to question.

The further written statement C which the appellant was directed to file and which was filed without prejudice discloses the fact that the appellant had lost confidence in the complainant and this los~ of confidence was due to a grave suspicion regarding the complainant's private conduct and behaviour with Air-Hostesses employed by the appellant.

Regulation 48 which has been set out earlier as its plain language shows does not lay down or conJemplate any defined essential pre-requisite for invoking its operation.

Action under this Regulation can be validly taken by the employer at his sweet will without assigning any reason.

He is not bound to disclose why he does not want to continue in service the employee concerned.

It may be conceded that an employer must always have some reason for terminating the services of his employee.

Such reasons apart fiom misconduct may, inter\ alia, be want of full satisfaction with his overall suitability in the job assigned to the employee concerned.

The fact that the employer is not fully satisfied with the overall result of the performance of his duties by

F his employee does not necessarily imply misconduct on his part.

The only thing that remains to be seen is if in this case the impugned order is mala fide.

The record merely discloses that theappellan~ had suspicion abQtit the compl11inant's suitability for the job in which he was enl.ployed and this led to loss of confidence in him with the result that his services were terminated under Regulation 48: In our view, loss of confidence in such circumstances cannot be considered to be mala fide.

We are G unable to concve of any rational challenge to the bona (ides of the employer in making the impugned order in the above background.

The complainant, it may be remembered had to deal with Air-Hostesses in the performance of his duties and if the appellant was not fuily satisfied beyond suspicion about his general conduct and behav; iour while dealing with them it cannot be H said that loss of confidence was not bona fade.

Once bona fide loss of confidence in affirmed the impugned order must be considered to be immune from challenge.

The opin, ion formed by

the employer about the suitability of his employee for the job assigned to him even thou.$ erroneous, if bona fide, 1s m our opinion final and not subject to review by the industrial adjudication.

Such opinion may legitimately induce the employer to terminate the employee's services; but such termination can on no ratiopal grounds be considered to be for misconduct and must, therefore be held to be permissible and immune from challenge.

The decision in the case of Management of U. B. Dutt & Co.

v. Workmen of.U. B. Dutt & Co.(1) relied upon by the complainant's learned counsel is of no assistance to him. There one S employed by the managemel)t as a cross cutter in the saw mill was asked to show cause why his services should not be terminated on account of grave indiscipline and misconduct and he denied the allegations of fact.

He was thereafter informed about a departmental enquiry to be held against him and was suspended pending enquiry. Purporting to act under r. 18(a) CJf the Standing Orders, the appellant terminated the services of S without holding any departmental enquiry.

On reference of the dispute to the Industrial Tribunal this action was held not to be bona fide but a colourable exercise of the power conferred under r. 13 (a) of the Standing Order and since no attempt was made before it to defend such. action by proving the alleged misconduct, it passed an order for reinstatement of S. Quite clearly the facts there are not parallel to the facts before us.

The facts there are materially different.

We have proceeded on the assumption that the reason stated in the further written statement filed without prejudice pursuant to the direction of the Labour Court could be taken into account.

We, however, must not be understood to express any opinion on its propriety either way.

•In our opinion the Central Gox_ernment Labour Court, Bombay, was, for the reasons foregoing, not right in holding that the complainant was guilty of misconduct .and that his. services were terminated for that reason.

We, therefore, allow this appeal and setting aside the oroer of . the C.entral Government Labout Court Bombay, dismiss the complainant's petition under s. 33-A of th~ Act.

In the peculiar circumstances of the case there would be no order as to costs. ·

V.P.S.

Appeal allowed.

'1) [1962] Supp. 2 S.C.R. 822.

606

AIR INDIA CORPORATION, BOMBAY

V. A. REBELLOW & ANR

I. D. DUA

0AND G. K. MITTER, JJ

Industrial Disputes Act

s. 33A

Industrial Disputes Act, 1947

s. 33

s. 33

Section 33(1)(b)

Section 33(2)

s. 33(3)

fVorknien

S. D. Vimdalal

S. K. Wadia

D. N. Mishra

. C. Mathur

K. P. V. Menon

S. R. Iyer

M. S. Narasimhan

Dua

Central Government Labour Court, Bombay

V. A. Rebellow

s. 33

Industrial Disputes Act, 1947

National Industrial Tribunal, Delhi

G. D . . Khosla

Punjab High Court

s. 33

s. 33

s. 33

S. K. KOOKA

July, 1 §, 1965

s. 33

June 19, 1965

Articles 14, 16, 19 and 311

Section 33

Industrial Disputes Act, 1947

June 30, 1966

Central Government

section 45

Air Corporation Act

March 15, 1966

Section 2

31st March,.1956,

G. D. Khosla

National Industrial Tribunal

sections 1 and 2

section 33

section 33A

Natipnal Industrial Tribunal

section 2(b)

Section 33

section 2(b)

section 33

Section 33A

s. 3

Yunadlal

Khosla Tribunal

ss. 33 and 33A

section 3

s. 10

s. 33

s. 33A

s. 33

s. 33

s. 33

s. 33(1)

Menon

s. 33

Arts. 310 and 311

C.entral Government Labout Court Bombay

s. 33


THUL1A KALI v.

THE STATE OF TAMIL NADU

February 25, 1972

[H. R. KHANNA AND G. K. MITTER, JJ.]

Crimi1t11l Trial-First Information Report-Unexplained delay in the lodging of First f/nformation Report_.lnference.

Constitution of India, 1950--Article 136-lnterfercnce---if evidence afflicted 'tl'ith ex-facie infirmity.

This Court does not normally reappraise cVict!nce in an appeal under article 136 of th~ Constituion; but that fact would not prevent fnterfelrenc~ with -:in order of conviction, if, on consideration of the vital prose .. cution evidence in the case the Court finds it to be afflicted with ex-facie infirmity. The appellant was sentenced to death under s. 302 Indian Penal-Code.

The trial Court and the High Court 'based the conviction of the appellant .primarily \ll>On the testimony of two witnesses one of whom according to the prosecu_J.ion Case ws present when the accused made JllUrderous assault on the deceased and the other arrived soon after. Neither of them nor anyone e1se who was told' about the occurrence by the two witnesses made any report at the police station for mdre than 20 hours after the •occurrence even though the police station was only t\.\'O miJes from the place of occurrence.

Setting a5ide the conviction,

HELD : That tbe delay in lodging the report would raise considerable doubt regarding the varacity of the evidence of two witnesses ad point to an infirmity in -that evidence and would render it unsafe to base the conviction of the a9peltant.

The fitst information rep<irt in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the "ra1 ":evidenee dduced irl,'ll!e trial. The object of insisting upon prompt lodgitl& qf the report td, the police in respect of commission of an offence to _obtain ear'Jy information regarding the circumstances in which the crime W'll c:ommitttd, the name, of tbe actual culprits and the part playd

by them as well a<> the names of eye witnesses present at tlY! scene of occlurttnce. Delay in lodging the first information report __ quite often results in t!mbellishment which is a creature of after thought.

It is therefore essential that th:~ delay in lodging the report should be satisfactorily explained. [626 HT

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 165 of 1971.

Appeal biY special leave from the judgment and order dated November 24, 1970 of the Madras High Court in Criminal Appeal No. 7 61 of 1970 and Referred Trial No. 50 of 1970.

S. Lakshminarasu, for the appellant.

A, V. Rangam, for the respondent.

The Judgment of the Court was delivered by

Khanna, J.

Thulia Kali (26) was convicted by Sessions Judge Salem under section 302 Indian Penal Code for causing the death of Madhandi Pidariammal ( 40) and under section 379 Indian Penal Code for committing theft of the ornaments of Madhandi deceased.

The accused was sentenced to death on the former count.

No separate sentence was awarded for the offence under section 379 Indian Penal Code.

The High Court of Madras affirmed the conviction and sentence of the accused.

The accused has now come up in appeal to this Court by special 'leave.

The pros-cution case was that Madhandi deceased purchased land measuring 1 acre 62 cents from Thooliya Thiruman (PW 5), elder brother of the accused for rupees one thousand.

The land of the accused adjoined the land sold to Madhandi deceased.

The accused wanted Madhandi deceased to sell that land to him but the deceased declined to do so.

Madhandi constructed a D fence around the land purchased by her, as a result of which the passage to the land of the accused was obstructed.

About a week before the present occurrence, the accused removed some jack fruits from the land purchased by the deceased.

Complaint about that was made by the deceased to the Panchayatdars. The Panchayatdars considered the matter, but the accused dec)ined to

abide by the decision of the Panchyatdars.

On March 12, 1970 at about 12 noon, it is stated, Madhandi deceased left her house situated in village Sakkarapatti along with her daughter-in-law Kopia Chinthamani (PW 2), aged 10, for Valaparathi_at a distance of about two miles from the village for grazing cattle.

Shortly thereafter, Valanjiaraju (PW 1), stepson of Madhandi deceased, alo went to Valaparathi and started cutting plants at a distance of about 250 feet from the place where the deceased was grazing the cattle.

At about 2 p.m. the accused came to the place where Madhandi deceased was present and asked her whether she would give him the right of passage or not.

The deceased replied in the negative.

The accused then took out knife Ex. 1 and gave a number of knife blows to the deceased in spite of her entreaties to the accused not to stab her and that she would give him what he wanted.

Kopia PW raised alarm and ran from th~ place of occurrence.

She met Valanjiaraju PW and told him that the accused was giving _knife blows to Madhandi.

Accompanied by Kopia, Valanjiaraju then went towards the accused but he threatened them with knife.

Valanjiaraju and Kopia thereupon went to the village and informed the husband of the deceased as well as a number of other villagers including Aneeba (PW 3) and Selvaraj (PW 4). Valanjiaraju and a large

number of other villagers then went to the place of occurrence A and found the dead body of Madhandi deceased lying there with injuries on her throat, face and other parts of the body.

Both her <:ars were found to have been chopped off.

Her jewels had been removed.

 According further to the prosecution, Valanjiaraju went to B the house of village munsif Muthuswami (PW 8) to inform him about the occurrence.

Muthuswami, however, was away from the house to another village in connection with some collection work.

Muthuswami returned at about 10.30 p.m. and was told by Valanjiaraju about the occurrence.

Muthuswami did not record the statement of Valanjiaraju at that time and told hin1 that he would not go to the spot where the dead body was lying on C that night as wild animals would be roaming there and that he would go there on the following morning.

Muthuswami went to the spot where the dead body of the deceased was lying at about 8.30 a.m. on the following day, that is, March 13, 1970 and had a look at the dead body of the deceased.

Statement P: 1 of Valanjiaraju was recorded by Muthuswami at 9. a.m. at the spot. o The statement was then sent by Muthuswami to police station Valavanthi at a distance of about two miles from the place of occurrence.

Formal first information report P. 15 on the _basis of statement P. 1 was prepared at the police station at 11.45 a.m.

Head Constable Rajamanickam, after recording first informa- E tion report, went to the place of occurrence and reached there at

2.3Q p.m.

Inspector Rajagopal (PW 13), on hearing about the occurrence at the bus stand, also went to the place of occurrence.

Inquest report relating to the dead body of the deceased was then prep_ared.

Dr. Sajid Pasha (PW 7) was thereafter sent for from Sendamangalam.

Dr. Pasha arrived at the place of occurrence at 12.30 p.m. on March 14, 1970 and performed post mortem exa- F ruination on the dead body of Madhandi dceased.

Inspector Rajagopal arrested the accused, according to the prosacution, at 5 a.m. on March 15, 1970 in a reserve forest about one mile from Seppangulam.

The accused then stated that he had kept ornaments and knife in the house of Chakravarthi G

IPW 9) and would get the same recovered.

The Inspector then went with accused to the house of Chakravarthi PW and from iliere recovered knife Ex. 1 and ornaments Bxs. 2 to 8.

The said ornaments belonged to Madhandi deceasd. The knife was taken into possession and put into a sealed parcel.

The c!othes which the accused was wearing were got removed and put mto a H sealed parcel.

The parcels were sent to Chemical Examiner, whose report showed that neither the knife nor the clothes of the accused were stained with blood.

At the trial the plea of the accused was denial simpliciler.

According to the accuse, d, the villagers came to know on the evening of March 12, 1970 that the deceased had been murdered.

The accused along with the villagers went to the spot where, the dead body of the deceased was lying and stayed with them there during the night.

On the following day, the accused was suspected by the villagers.

They gave him beating and tied him to a tree.

Later on that day, that is, March 13, 1970, the accused was taken to the police station and kept there for two days.

The accused denied having committed the murder of the deceased or having got recovered the ornaments and the knife.

No evidence was produced in defence.

The learned Sessions Judge in convicting the accused relied upon the evidence of Kopia (PW <.), who had given eye witness account of the occurrence, as well as the statement of Valanjiaraju (PW i), who had been t)\reatened by the ac9used with knife near the place of occurrence. Reliance was also placed upon the recovery of knife and ornaments in 11uisua:ice of the statement of the accused.

The High Court agreed with the Sessions Judge and affirmed the conviction of the accused.

There can be no doubt that Madhandi deceased was the victim of a .brutal attack.

Dr. Sajid Pasha, who performed. post mortem examination on the dead body of Madhandi, found as many as 29 injuries on the body.

Out of them, 24 were incised wounds and five were multiple abrasions.

There were a number of incised wounds on the face, neck, chest and abdomen.

The pinnas of the right and Jeff ears had been completely severed.

Tnjuries were also found in the eyes and laryngeal region.

Death was the result of different injuries, some of which were individually-Sufficient to cause death.

The case of the prosecution was that it was the accused-appellant who had caused the injuries to Madhandi .deceased. The accused has, however, denied this all~

gation andhas claimed that he has been falsely involved in this case on suspicion.

The trial court and the High Court have based the conviction- G of the accused-appellant, as stated earlier, primarily . upon the testimony of Kopia (PW 2) and Valanjiaraju (PW 1). This Court does not normally reappraise evidence in an appeal under cle 136 of. the Constitution, but that fact would not prevent mterference with an order of coriviction if on consideration of the vital prosecution evidence in the case, this Court finds it to be

affiic!ed with ex facie infirmity.

There are in the present case ff . c~¢1in broad features ?f the prosecution story which create considerable doubt regarding the yeracity of the aforesaid evidence and. in our opinion, it would not be safe to maintain the conviction

.on the basis of that evidence. According to Kopia (PW 2), the accused stabbed the deceased at about 2 p.m.

Kopia raised alarm and immediately informed Valanjiaraju, who was cutting plapts at a distance of about 250 feet from the place of occurrence.

Valanjiaraju and Kopia then came tow.an:!" the place where the accused had assaulted the deceased, but the accused threatened them with knife.

V alanjiaraju and Kopia thereupon went to the village abadi and informed the other villagers.

Valanjiaraju accompanied by other villagers then went to the place of occurrence and found the dead body of Madhandi lying there with a number of injuries.

According to document P, 1 Valanjiaraju made statement C about the occurrence to village munsif Muthuswami (PW 8) at about 9 a.m. on March 13, 1970.

Formal first information report on the basis of the above statement was prepared at the police station at 11.45 a.m.

The delay in lodging the repon, according to the prosecution, was due to the fact that Muthuswami PW was away to another village in connection with some collection work and he returned to his house at 10.30 p.m.

MuthusY,1ami told Valanjiaraju when the latter met him at niglit that he would record the satement only after having a look at the dead body on the following morning.

It is in the evidence of V alanjiaraju that the house of Muthuswami is at a distance of three furlongs from the village of V alan- E jiaraju.

Police station Valavanthi is also at a distance of three furlongs from the house of Muthuswami.

Assuming that Muthuswami PW was not found at his house till 10.30 p.m. on March 12, 1970 by V alanjiaraju, it is not clear as to why no report was lodged by Valanjiaraju at the police station. It is, in our opinion, most difficult to believe that even though the accused had been seen at 2 p.m. committing the murder of Madhandi F deceased and a large. number of villagers had been .told about it soon thereafter, no report about the occurrence could be lodged till the followin!\ day.

The police station was less than two miles from the village of Valanjiaraju and Kopia and their failure to make a report to the police till the following day would tend to show that none of them had_ witnessed the occurrence.

It G seems likely, as has been stated on alf of the acused, that the villagers came to know of the death of Madhandi deceased on the evening of March 12, 1970. , They did not then know about the actual assailant of the deceased, and on the following day, their suspicion feJl. on the accused and accordingly they involved 'hin; i in this case.

First injonitation report in a criminal case is 11 an extremely vital and valuable piece of evidence for the purpose :-of corroborating the oral evidence adduced at the trial .. The im-

'.portance of the above report can hardly be overestimated from the

'tHULIA KALI v. STATE (Khanna, J.) 627

standpoint of the accused.

The object of insisting upon prompt., lodging of the report to the police in respect of colllllllssion of an offence is to obtain early infonnation regarding the circumstances in which the crime,, was committed, the names of the actual cul- prits and the pa_rt played by them as well as names of eye witnesses present at the scene of occurrence.

Delay in lodging the first infonnation report quite often results in embellishment which is a creature of afterthought On account of delay, the report not only gets eft _of the advantage of spontaneity, danger creeps in of the introduction of coloured. version, exaggerated account or

concocted story as a result of deliberation and consultation. It is, therefore, essential that the delay in the lodging of the first infonnation report should . be satisfactorily explained.

In the present case, Kopia, daughter-in-law of Madhandi deceased, according to the prosecution case, was present when the accused made murderous assault on the deceased.

Valanjiaraju, stepson of the deceased, is also alleged to have arrived near the sce11e of occurrence on being told by"Kopia.

Neither of them, nor any other villager, who is stated to have been told about the occurrence by Valanjiaraju and Kopia, made any report at the police station for more than 20 hours after the occurrence, even though

the police station is only two miles from the place of occurrence.

The said circumstance, in our opinion, would raise considerable doubt regarding the veracity of the evidence of those two witnesses and point to an infinnity in_ that evidence as would render it unsafe to base the conviction of the accused-appellant upon it.

As regards the alleged recovery of knife and ornam~_nts at the

instane of tlie accused, we find that the evidence consists of statements of Inspector Rajagopal (PW 13), Kali Goundar (PW 6) and Chakravarthi (PW 9). According to Chakravarthi (PW 9), the accused handed over the ornaments in question to the witness when the accused came to the house of the witness on the evening of March 12, 1970 and passed the night at the house.

The witness also found knife in the bed of the accused after he had left on the following day.

According, however, to Kali Goundar (PW 6) ,-the accused, on interrogation by the Inspector of Police, stated that he had entrusted the ornaments to Thangam, wife of Chakravarthi (PW 9). Apart from the discrepancy on the point as to whom was the person with whom the accused had kept .the ornaments, we find that Thangam, with whom the accused, according to Kali Gouridai PW had kept the ornaments, has not been examined as a witness.

In view of the above state- H ment of Kali Goundar, it was, in our opinion, essential for the prosecution to examine Thangam as a witness and its failure to do so would make the Court draw an inference against the prosecution.

It .is also not clear as to why the accused should leave knife A Ex. 1 in his bed in the house of Chakravarthi (PW 9) when he • had ample opportunity to throw away the knife in some lonely place before arriving at the house of Chakravarthi.

The knife in question was found by Chemical Examiner to be not stained with blood and according to the prosecution case, the accused had washed it before leaving it in the bed in the house of Chakra- B vanhi. If the accused realised the importance of doing away with the blood stains on the knife, it does not seem likely that he would bring that knife to the house of Chakravarthi and leave it in the bed.

Looking to all the circumstances, we are of the view that it is not possible to sustain the conviction of the accused on the evidence adduced.

We accordingly accept the appeal, set aside the conviction of the accused-appellant and acquit him.

K.B.N. 'Appeal allowed.

THUL1A KALI

THE STATE OF TAMIL NADU

February 25, 1972

H. R. KHANNA

G. K. MITTER, JJ.

Constitution of India

Article 136

article 136

s. 302

Madras High Court

S. Lakshminarasu

V. Rangam

Khanna

Thulia Kali

section 302

Indian Penal Code

section 379

Indian Penal Code

section 379

Indian Penal Code

High Court of Madras

Madhandi

Thooliya Thiruman

March 12, 1970

Sakkarapatti

Kopia Chinthamani

Valanjiaraju

Valaparathi

Kopia

Kopia

Valanjiaraju

Aneeba

Selvaraj

munsif Muthuswami

Muthuswami

March 13, 1970

police station Valavanthi

Rajamanickam

Rajagopal

Sajid Pasha

Sendamangalam

Pasha

Rajagopal

March 15, 1970

Seppangulam

Chakravarthi G

Chakravarthi

Sajid Pasha

V alanjiaraju

Muthuswami

V alan- E jiaraju

Kopia

Kali Goundar

Thangam

Kali Gouridai

Kali Goundar

Chakravarthi

Chakra- B vanhi

K.B.N.