SHEW KISSEN BHATTAR v.

THE COMMISSIONER OF INCOME TAX, CALCUTTA

MQJ!ch 5, 19.73

[K. S. HEGDE, P. JAGANll!OHAN f<.EDDY AND H. R. KHANNA, JJ.]

Jndic.n Jnco1ne Tax Act, 1922, s. 9( 1) (iv)-Scope of-Consent de~ cree in respect of property involved Stipulating pay111ent of co1npounJ interest by assessee-Assessee claiming deduction of compound interest- I.Interpretation of expressions "amount of any interest on a.uch 1nortgage or charge" and "interest payable on such. capital' in s. 9(1) (iv)-Held assesse~ entitled to deduct only si111ple interest payable.

The assessee, a trustee of . the house property, claimed deduction of compound interest in terms of a consent decree passed in April 19, 1928, in a title suit in respect of the property. .Under the terms of that decree, the property was held to belong to the first defendant who. however, was to make a payment of Rs. 8,61,000/- to the plaintiff therein. 'f!iere was stipulafion for the payment of compound interest on the unpaid amount @ 6} with yearly rest..

It was further provided therein that Rs. 4,25,000/. was to be paid on !he execution of the tenns of the settlement and therefore monthly instalment of Rs. 35,000/ for seventeen months and the balariee in the 18th month. The terms of the compromise were not adhered to inasmuch as there were defaults , in payment of interest.

After making the payment on February 19, 1945, there slill remained out.landing Rs. 2,70,535/-. The interest on this amount @ 61 fo< a year worked out to Rs. 18,000/-.

The assessee, however, calculated t® total interest payable Qt Rs. 38,221/- for the as..,.sme(nl' year 1956-57, relying on the clause in the agreement providing for payment of compound interest. The Income Tax Officer gave a deduction of Rs. 18,000/~ only, on the basis of simple 'interest at the rate of Rs. 6!% per annum.

The asSj!ssee's appeal agaiJ-, st this order was dismissed by the Appellate Assistant Commissioner and later on by the Tribunal. On reference of the question and other similar questions 'in respect of the assessment years 1956-57 to 1958-59, the High Coun held that only simple interest was allowable to the oassessee.

On appeals by certificate to this Court. dismissin2 the appeals; HEL:O : (I) What the law permits is the deductio.n of the "amount of any interest on such mortgage or charge." Under the terms of the contract, when the interest payable is not paid, the same became a part of the. _principal . and thereafter, interest has to be paid not only on the ongmal principal but also on that pan of the Interest which had becam~ a. part of the princi]lal. The interest which became part of the prmc1pal cannot be conS1dered as the capital charge. What the assi:ssee i• entitled to deduct is . t)le intresl payable by him on the capital charge -and . not the additional interest which because of his failure to pay the interest o.n the due date had been considerd as a part of the loan.

Th_e re~! capital char'e is that which w-as otiginally due. Tiu: other prt1on is merely an n.rerest on which the as!ICSSee has: agreed to. pay tnter"'t. . Hence the mti:rest paid on interest is not an mterest paid on the capital charge.

[570 B-D]

(2) 'Aro interest' paid on capital bottowedor charged does not include compound interest. The compound interest is payable not on the capital charge but on that part of the interst on which he has agreed to pay interest. That is not the capital tak;!n not of bys. 9(1)(iv).

If the contention that "any interest" included compound interest is accepted as correct, then the door will be open for evasin of tax. Such an -interpretation is impermissible.

CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 1500 to 1502 of 1970.

Appeals by certificates from the judgment and order dated January 28, 1969 and June 13, 1969 of the Calcutta High Court in Income-tax Ref. Nos. 202 of 1963 and 76 of 1968, respectively.

M. C. Chagla and D. N. Mukherjee, for the appellant.

J. Ramamurthi, R. N. Sachthey and B. D. Sharma, for the respondent.

The Judgment of the Court was delivered by

HEGDE, J.-These are appeals by certificate.

A common question of law is involved in these appeals. These appeals relate to a common assessee biut arise from three different assessments in respect of three different assessment years (1956-57 to 1958-59), the accounting years being the respective calendar years.

The question of law arising for decision is whether the assessee was entitled to claim deduction of compound interest under section 9(l)(iv) of the Indian Income-tax Act, 1922. The High Court answered that question in the negative and ii) favour of the Department. Aggrieved by that decision the assessee has come up in appeal to this Court.

To decide the question set out above, it will be sufficient if we refer to the facts relating to one of the assessment years i.e. 1956-57. The material facts are as follows :- The assessee is a trustee of a hduse property at Chaudmari Road, Howrah.

In respect of that house 1there was a title mit filed by one Durga Prasad Chamria against Smt. Anardeyi and others claiming title over that property and for other reliefs. A consent decree was passed in that suit on April 19, 1928. Under the tenns of that decree t\le aforementioned house property was held to belong to Smt. Anardeyi Sethani but she was to make a payment Of Rs, 8,61,000/- to the plaintiff therein. There was stipulation for the payment of compound interest on the unpaid amount @ 6!% with yearly rests. It was further provided therein that Rs. 4,25,000/ - was to .be paid on the execution of the terms of settlement and thereafter monthly instalments of lb. 35,000/ • for seventeen months and the balance in, the 18th month. The terms of the comprom\e were not adhered lo inasmuch as there

s. K. BHATTAR V. C.I.T. (Hegde, 1.) 569

A were de.faults in payment of interest. After making the payment on February 19, 1945, there still remained outstanding Rs. 2,70,535/-.

The interest on this amount @ 6!% for a year worked out to Rs. 18,000/-. The assessee, however, calculated the total interest payable at Rs. 38,221/- for the assessment year 1956-57, relying on the clause in the arrangement providing for JI payment of compound interest.

The Income-!µ Officer gave a deduction of Rs. 18,000/- anly, on the basis of simple interest at the rate of 6t% per annum. The assessee's appeal against this order was dismissed by the Appellate Assistant Co.mmissioner and later on bly the Tribunal.

Thereafter, at the instance of the assessee the following question of law was referred to the High c Court, in respect of the assessment year 1956-57 :-

"Whether, on the facts and in the circumstances of the case, and on a true construction of the words 'interest payable on such capital' in section 9 ( 1) (iv) of the Indian Income-tax Act, 1922, the amount of interest allowable was Rs. 18,000/- or Rs. 38,221/- ?" " The questions referred to for the remaining assessment yous are more or less similar. The High Court answered those questions, as mentioned earlier, in favour ol the Department.

Herein we are called upon to consider the true scope of section 9( 1) (iv) of the Indian Income-tax Act, 1922. The relevant por- :E lion of thl!t section reads thus :-

" ( 1 ). The tax shall be payable by an assessee under the head 'Income from Property' in respect of the bonafide annual value of property consisting of any buildings or lands appurtenant thereto of which he is 1he owner, other than such portions of such property as he may occupy for the purpoteS of any business, profession or vocatioo carried on by him the profits of which are assessable to tax, subject to the following allowances, namely:-

(i) ............... .

(ii) ............... .

(111) ..•..•••.•••••••

(iv) where the property is subject to a mortgage or other capital charge, the amount of any interest

on such mortgage or charge; where the properly is suect to an annual charge not being a capital charge, the amount of such charge; where the property is subject to a ground rtmt the amount of such gro_und rent; and, where the property has been acquired, constructed, repaired, renewed or

reconstructed with 1:1orrowed capital, 'the amount of any interest payable on such capital :

The question is whether the assessee is entitled to deduct the compound interest payable by him in accordance with the terms of the contract referred 'to earlier or whether he is only entitled to deduct simple interest at th~ rate of 6t% per annum. It must be borne in mind that what the law permits is the deduction oi the 'amount of any interest on such mortgage or charge'. The interest payable by the assessee on the capital charge was at the rate of

6t % per annum.

But if he fails to pay that in accordance with the terms of the coll'tract, be was liable to pay compou, nd interest.

In other words, if he fails to pay interest in accordance with the contract, he was liable to pay interest on interest. Or to put it differently, when the interest payable is not paid, the same became a part of the principal and thereater, interest has to be paid not only on the original principal but also on that part of the interest which had become a part of the principal. It cannot be said that the interest which became a part of the principal can be considered as the capital charge. What the assessee is entitled to deduct is the interest payable by him on the capital charge and not the additional interest which because cf bis failure to pay the interest on the due date had been considered as a part of the loan. In fact, the real capital charge is that which was originally due. The other portion is merely an interest on which the assessee has agreed to pay interest Hence we are unable to accept the connection of the assessee that the interest is an interest paid on the capital charge.

Mr. Chagla. the learned counsel for the assessee, contended that the law permits his client to deduct any interest paid bly him on the capital borrowed or charged and 'any interest' included compound interest also.

This, to our minds, appears to be a fallacious argument. The compound interet is payable not on the capital charge but on that part of the interest on which he has agreed to pay interest. That is not• the capital taken note of by section 9(l)(iv). If we accept Mr. Chagla's contention as correct, then the door will be open for evasion of tax.

All that the debtor need do is not to pay interest regularly but utilise that . amount for other purpose and make the Revenue pay compound interest payable by him and thus derive advantage out of his own omission. Such an interpretation is impermissible.

We are clearly of !he opinion that the interpretation placed by the High Court is the correct interpretation . In the result, these appeals fail and they are dismissed with costs; one hearing fee.

S.B.W. 1ppeals di>"missed.

J)l

SHEW KISSEN BHATTAR

K. S. HEGDE

H. R. KHANNA, JJ.

Tax Act, 1922

s. 9( 1)

s. 9(1)

April 19, 1928

February 19, 1945

Calcutta High Court

M. C. Chagla

D. N. Mukherjee

J. Ramamurthi

R. N. Sachthey

B. D. Sharma

HEGDE

section 9(l)(iv)

Indian Income-tax Act, 1922

Howrah

Durga Prasad Chamria

Anardeyi

Anardeyi Sethani

section 9

Indian Income-tax Act, 1922

section 9( 1)

Indian Income-tax Act, 1922

Chagla

section 9(l)(iv)


J.)

BAJWA & ORS.

STATE OF U.P.

March 6, f973

(A. ALAGIRISWAMI. J. D. DUA AND C. A: VAIDIALINGAM, JJ.J

Practice-Cnininc.-1 Law-Appe<1I agalnt aequi.rtal-App11eciat1}Jn of evidence by High Court-Approacli of Supre111e Court in JJurtherc.ppeal-Faclion cascs-Precau1io11s Qgailist i111plication of innocent persons.

Jn dealing with appeals against acquittals the High Court has to bear in mind the presumption of innocence in favour of the a.ccused person and cannot Jose sight the fact that the said presumptiq-, is stfengthened by the order of acquittal passed in his favour by the trial court, and so. lhe fact that the accused person is entitled to the benefit of a reasonable doubt must alWilys be present in the mind of the High Court whe; r1 it deals with the merits of the case.

But, how., ever circumspect and cautiol, ls the approach of the High Court may be in dealing with such appeals, it undoubtedly "is entitled to reach its own conclusions upon the evidence adduced by the prosecution in respect of the guilt or innocence of the accused. The observations in the various decish11ns prescribing a cautious approach, on the part o.f the High Court, in dealing with appeals against aequittals, do not cut down, limit or qualify its statutory power under s. 423(a) Cr.P.C., which is co-cxtens'ive with that under cl. (b). It is not necessary that the High Court must hold that the trial Court"s finding was perverse before reversing it.

[581 A-D, F-H]

This Court, on appeal from a judgment of convictio, n after setting aside an order of acquittal, would examine the ev'idence only for seeing that the High Court has' approached the question properly nd applied the principle~ correctly.

Once it is found that the High Cou'rt has upplied correct principles in dealing with appeals against acquittals then this Court would not ordinarily go further into the evidence and weigh it for itself to substitute its owrr opin'ion for that of the High Court merely as to its sufficiency to suppOrt the conclusions arrived at by the High Court.

It wilt do so only if there is some serious, infirmity leading to grave injustice.

In c; ise the High Court's judgment suggests that the correct principles were not kept in view then it would be open to. this Court to examine the entire evidence

for t, hc purpose of assuring that justice does not fail [581 D-FJ In the p'resent case, in the judgment of the High Court there is trtO reference to the decisions of the Privy Council or of this Court laying down the principles which the appellate court is expected to keep 'in view when dea1ing with appeals against acquittal, but the judgment clearly shows that it \Vent into all the aspects on which fie prosecution evidence could be criticised and concluded that the evidence was fully trustworthy Olld that the medical evidence, though it might be shaky, did not throw onv doubt on the trustworthiness of the pfosecution witnesses as to the time, place, and circumstances in which . the deceased was killed.

The appreciation of the evidence by the :mh Court is unexceptionable and there is no questio.n of any poss1b1hty of a reasonable ooubt on the co'nclusions 11bout the time ahd place of occurrence and the n1anner in which the deceased met his death.

[584 A-HJ

But in cases like the presnt-, where there are party factions, there is a tendency to include the Innocent with the guilty and it is extremely difficult for the Court to guord against such a danger. The only real safeguard against the risk of condemning the itonocent with the guilty lies in insisting on acceptable evidence which in some measure implicates such acused and satisfies the conscience of the court. [585 0-HJ

 In the instant case, the eye witi>esses have named all the appellants and the approver has even named those acquitted by the High Court.

But it would be safe only to convict those who are stated to bav1> taken an active part and about whose identity there can be no reasonable doubt.

:[,586 A-CJ Bhubaneshwar Manda! v. The State of Bihar, A.I.R. 1973 S.C. 399, Sheo Swarup v. King Emperor, I.L.R. 56 All.

645 (P.C.); Sanwatl Singh v. State of Rajasthan\ [1961] 3 S.C.R. 120, State of U. P. v. Saman Dass, A.LR. 1972 S.C. 677, Khedu Mahton v.

State of Bihar, A.I.R. 1971 S.C. 66, Kanu Ambu Vish v.

Stais of Maharashtra, A.LR. 1971 S.C. 2256, Harbans Singh. v.

State of Punjab, [1962] Supp 1 S. C.R. 104, Shivji Guru Mohite v. State of Maharashtra, A.I.R. 1973. S.C. 55, M. G. Agarwal v. State of Maharashtra, V1963] 2 S.C.R. 405, Nur Mohammad v.

Emperor,

A.J.R. 1945 P .C. 151, Gopinath Gangaram v. State of Maharashtra, Crl.

A. 99 of 1969 decided on October 15, 1969, Kashmira Singh v.

State of M. P. 1952 S.C.R. 526 and Bhaban Sahu v. The King, 76 I.R. 147, referred to.

CRIMINAL APPELLATE JURIDICTION : Criminal Appeal No. 189 of 1969.

Appeal by special leave from the judgment and order dated October 31, 1968 of the Allahabad High Court in Government Criminal Appeal No. 771 of 1965.

R. K. Garg and S. C. Agarwa/a, for the appellant.

D. P. Uniyal a.nd 0. P. Rana, for the respondent.

The Judgment of the Court WM delivered by DuA, J.-The ten appellants have appealed to this Court by special leave under Art. 136 of the Constitution from the judgment and order of the High Court of Judicature at Allahabad dated October 31, 1968 allowing the appeal ol the State of U. P.

from the judgment and order of the Temporary Sessions Judge, Hamirpur dated January 15, 1965 acquitting all the 15 accused per!rons, including the appellimts, of the charges under ss. 148 302/149 and 201, l.P.C. During the pendency of the State appeal in the High Court against the order Of acquittal, Chandrapal Singh, acused no. 1 (in the trial court), died on September 30, 1967 with the result that appeal against him abated on his death. The appellants were, however, held liable to be convicted under ss. 302/149, 201/149 and 148, I.P.C.

Against he remaining accused persons the order of acquittal was affirmed.

Under ss. 302/149, l.P.C. each of the appellants WM sentenced to imprisonment for life and under ss. 301/149, I.P.C. sentence of two years' rigorous imprisonment was imposed on each one of them. Tl; iey were also sentenced to one year"s rigorous imprisonment each under s. 148. l.P.C. All the sentences were directed to be concurrent.

According to the prosecution Pannalal and Gulzarilal, appellants nos. 7 and 8 are brothers: so are Achebe Lal, Ramdhar and Bansi, appellants 4 to 6.

Gurwa, appellant no. 3 is the first cousin of Bansi : Ramdayal, appellant no. 10 is also Bansi's cousin. Ba.iwa, appellant no. 1 too is related to Bansi: he is the son of Ramsahai who turned an approver and was examined as a prosecution witness.

It is alleged that all the appellants, along with the either persons arrayed as accused in the trial court, belong to one party and there was some litigation under s. 107, Cr.P.C. between most of the accused persons on the one side and the deceased Ramratan and men of his party on the other. During the course of proceedings under s. 107, Cr. P .C. it appears that under pressure of Ramdayal, Achche Lal and Ramdhar on unwilling Ramratan, a compromise was signed in those proceedings but as there was no genuine change of heart amongst the rival parties the Station Officer of '!he Police Station did not agree to drop the proceedings. There was also another proceeding under s. 107, Cr. P.C. in which Gulzarilal, Pannalal, Gurwa and Ramgopal had been blound down. It is also alleged that on the murder of one Munni Banin, Chandrapal Singh, Gulzarilal, Pannalal, Banshi, Ramgopal and Gurwa were prosecuted and Ramratan, deceased, conducted the case for the prosecution. There was thus no love lost between the two factions. On August 16, 1963 at about 5.30 p.m. Shivratan (P.W. 1) JagroopSingh (P.W. 2) MaheshwarDin (P.W. 3), Sugar Singh and deceased Ramratan were proceeding to the house al one Sheoraj Singh for atending a recital of ALHA. On their way while proceeding from the direction of Korionwali Gali, they entered Banshiwali Lane. There they noticed accused Bansi and Gu!zarilal standing in front of the door of Bansi's Gurwahi Bakhari.

As soon as Shivratan (P.W. 1) and his companions turned into the Banshiwali Khor for going to Sheoraj Singh's house, Gulzarilal asked '!hem to stop. Bansi is also said to have shouted "kill them".

Thereupon Chandrapal Singh fired his gun hitting Ramratan, deceased, as a result of which the latter died at the spot. The ten appellants were said to be present in the company of Chandrapal Singh at the time of the occurrence.

Gulzarilal, Pannalal, Bansi and Achebe Lal were stated to be armed with pharsa, Ramdhar.

Ramdayal, Gurwa and Ram Gopal had .kulharis while Bajwa and Tej Singh were carrying gandasas.

Chandrapal Singh was armed with a gun with which he shot down the deceased Ramratan.

Sheoratan (P.W. 1) and his par; men

SUPREME OOURT :REPORTS

{1973] 3 S, C.R.

tried to advance towards the dead body o( Ramratan but the appellants and Chandrapal Singh rushed at them threatening to kill them as well.

Sheoratan Singh and his partymen thereupon ran away towards their village raising an alarm. On their arrival in their own Mohalla Sheoratan Singh and his companions collected about 30 or 40 persons and returned to the place where Ramratan had been shot, dead.

There they found that the dead body of Ramratan had been removed.

They divided themselves into two groups.

One party going towards the house of Sheoratan Singh in search of Ramratan's dead body and the other going towards Bansi's house for the same purp<ise.

Outside the village both the parties met again and continued their Search.

Climbing over the "Jogi Nala" they noticed •the appllants along with Chandrapal Singh going away with the dead body towards "Bari Bhawani".

They also noticed that the dead body had been cut into pieces and its dismembered par'!s were carried in three baskets, one of the partymen carrying the head of the deceased in his hand. The party of Shivratan tried to chase the accused and on corning closer they recognised the persons running away with the different parts of the dead body.

Ramgopal was carrying the head of the deceased in his hand whereas Bajwa, Tej Singh and Ramdayal were carrying three baskets.

On seeing the party of Shivratan, the appellants are stated to have thrown away. various parts oi the dead body and escaped.

Sheoratan Singh and his companions recovered the trunk but could not find the head and the thighs of the deceased. Picking up the parts of the dead body which they were able to recover, they returned to their village. A report of the occurrence was written put by Sheoratan Singh (P.W.

1) at his house and lodged by him at the police station about 8 miles away at about 12.30 midnight between August 16 and 17,

1963. He had gone there with the village chowkidar and five or ten other persons including Jagdeo Singh who was armed wtth a gun.

The Station Officer not being present in the police station at that time, the report was handed over to the moharar Girinder Singh, constable (P.W.7). In that repOrt the names of the ten appellants and Chandrapal Singh were specifically mentioned as the perpetrators of the alleged crime. On his return home P.W. 1 learnt that the head and thighs of the deceased had also since been recovered and kept with the other parts of the dead body. The papers .relating to the repol't lodged with the police were sent to the Station Officer in vill!lge Guyari where he happened to be at that time.

The said officer reached village Geondi at about 11.00 a.m. on August 17 and found the truncated body of the deceased under a peepal tree and, after preparing the inquest report, he despatched the recovered parts o( the body for postmortem examination. At the place where Ramratan was alleged to have been shot down, blood stains were found by the investigating officer on the ground.

Blood ·!ltained and un9lained earth was collected f; om that spot.

He then went to "Gurwahi Bakhari" of Ramsahai where the dead body was suspected to have been dismembered.

Blood was discovered inside the "Bakhari". Blood stains were also found on the chaukat and door leaves of the said "Bakhari" some bricks lying there were also found to have blood stains on them. There were blood marks as well on the cattle fodder lying in that Bukhari.

The investigating officer (P.W.8) took the blood-stained pieces. of various articles from 'the said Bakhari and duly sealed them. The 11ecessary recovery memos were prepared. The inve!rtigating officer also found four wads behind the said Bakhari in the vicinity of the place where Ramratan was stated to have been shot dead.

Those wads were sealed and the necessary recovery memos prepared .. Search was made by the investigating officer (P.W.8) for the alleged miscreants but they were not traceable with the results that proceedings under ss. 87 and 88, Cr. P.C. were taken for the wanted accused. Accused nos. 12 to 15 in the trial court were arrested on August 25, 1963, the remaining accused having surrendered in court on various dates.

The postmortem examination was performed on the dead body of Ramratan bi\' Dr. J. S.

Panwar, Medical Officer-in-charge of Mahoba on August 18. 1963 at about 9.30 a.m.

Only seven differellt parts of the dead body were available for autopsy. Maggots were found on the injured parts of the dead body and fragments of skin with peeling off in several areas in big patches were also found.

The following ante-mortem injuries on the trunk of the dead body were observed by Dr. Panwar :

"l. Bruise 6''X5" on !he front side of the chest with thick layer of coagulated blood under it.

2. Two gun shot wounds measuring 3/10"X3/10"

on the chest left side 1 /2" away from the fourth and fifth ribs. The two wounds are l / 5" apart and one was upon the other. Coagulated blood was present under. the skin of those injuries.

3. 8 gun shot wounds on the back left side, each measuring 4/10"X4/10" scattered in an area oI

6t"X 5"."

~II th~ .acced. denied their complicity, Chandrapal Singh pleadmg al1b1, cla1mmg that on the morning of August 16, 1963 at about 5 a.m. he had left for village Kharela, where he remained for three or four hours, and in an auction there purchased a buffalo from the cattle pound. From there he went to Bambhari and a; he happened to be a history sheeter he informed the village chowkidar of his arrival there at about 4 p.m.

The trial court again summoned Dr. Panwar and examined him as C. W. 1 on October 22, 1964. He had already been examined in the c<immitting court on November 4, 1963. He had, however, not been cross-examined then, though full opportunity had been afforded, because, according to the defence counsel, he could effectively do so only after the examination of the other prosecution witnesses.

During the course of his examination in the court of the committing magistrate Dr. Panwar had, after giving' full details of the in.juries on the person of the deceased as noticed by him and after proving the postmortem report, stated :-

"I cannot say it correctly which of the gunshot wounds was a wound of exit which was the wound of entrance. For this reason I have put these facts inside the biracket.

It is my opinion that injury no. 2 is the wound of entry and injury no. 3 is the wound of exit.

It might also be that injury no. 2 is the wound of exit and injury no. 3 is he wound of entrance".

In the trial court his examination-in-chief and cross-examination 1by the State counsel reads :

"As regards injury nos. 2 and 3 both I had stated in the court of commit'ling magistrate that both of them could be the wounds of exit as well as wounds of entry.

As regards wound no. 2 it is more probable to be the wound of entry than exit wound. At the time of post

mortem there was no such data with regard to all these gun wounds except their dimensions from which it could be ascertained as to which were entry wounds and which were exit wounds. These gunshot wounds were inflicted from a distance of more than four feet.

Cross-examined by State counsel :

As regards wound no. 2 I am telling it to be more probablle to be entry wound because rts dimensions are large and there is no other reason except this. By considering this fact, that there are 8 wounds on the back and two wounds on the chest and that they have been caused G from a distance of more than 4 feet, it can also be said that in comparison to the wounds on the chest the wounds on the back have more probability to be entry wounds. No track formed by peilets have been found.

It is possible that eight pellets might have entered from the back and two of them might have gone out of the H chest and six of them might have fallen on account of the body being out into pieces or they might not have been detected at the time of postmortem."

He was cross-examined on behalf of the defence at great length ..

It was elicited from him that it was not his practice to write in the postmortem report that the tracks of pellets are not traceable.

He could not say whether or not the racks were visible in the present case as he could only reinember about the track for about 2 or 4 days after the postmortem, indicating thereby that after such a long time he could not say anything definite from memory. He had tried to find the pellets but none were available.

From this he could deduce that no pellets were present in the body. He did. not find any hole in the trunk of the dead body on the basis of which it could be said that the pellets had fallen out. He added that if it could be held that no pellets had fallen from the dead body and none were present at the time of postmortem then it could be said with certainty that wounds on the chest were the entry wounds and the wounds at the back the exit wounds.

We have stated the broad trend of the doctor's evidence.

The trial court dealt with the medical evidence and came to the conclusion that there was nothing in the postmortem report to suggest that Dr. Panwar was in any way in doubt at the time of the postmortem. The court refused to accept the doctor's explanation that in the postmortem repovt he had written the wounds of exit and wounds of entry within brackets because he was doubtful. This conclusion was based on the ground that this doubt was not expressly stated in the postmorten report. On this reasoning the trial court felt that the medical evidence instead of supporting the prosecution case, establlished that the prosecution version of Ramratan Singh having been shot at from behind was unbelievable.

It may here be mentioned that in the trial court an application had been moved by the prosecution for a demonstration to be held by firing cartridges to show dispersal of the pellets. This was allowed and a demonstration held when a shot was fired from a distance of 42tft. because, according to the prosecutioµ story, Ramra\an

Singh, deceased, had been shot at from that distance.

The first shot in the demonstration created ten holes in an area of 12" ><12";

9 of them being identical in size while one being a very big hole having an area in size as big as that of anyone of the other nine holes.

Another cartridge was fired which created 8 holes in an area of 9"X9". According to the defence the cartri!lges supplied by the prosecution for this demonstration were very likely not authentic.

The court then commented upon the result of this demonstration and also referred to some observations in Modi's Textbook on Medical Jurisprudence and Texicology and came to the conclusion that the dispersal of the pellets suggests that the deceased had been shot at from close range from the front and not from behind from a distance of 42! ft.

The court then proceeded to discuss the prosecution evidence and expressed the view that as the original postmortem report suggested the wounds in.

1he cpeS'l being the entry wounds, the prosecution tried to make t a case of the deceased having been fired at from the front.

Later on, when it transpired that perhaps the wounds at the bac, k were more likely 'to be considered as the entry wounds, the place .of occurrence was also changed from the entrance of Korion Wali Gali to Banshi Wali lane and instead of deposing that Ramratan Singh had been shot at from the front the prosecution witnesses started deposing in court that he was shot at from llehind. This inference was drawn by comparing ,<tatements of P.Ws 2 and 3 :under s. 161, Cr. P.C. (Bxs. Kha 7 and Kha 9) and the deposition .of the witnesses in court.

The trial court also expressed doubts about the evidence of the investigating officer -that he had tound some drops of blood at tbe site when he inspected it the day following the alleged occurrence and indeed considered this statement to be totally incorrect. In the opinion of the trial court it was just a matter of chance that the party of the accused persons had inet Ramratan Singh and there could thus be no question of. their having formed an unlawful assembly and having walled in front of .Baasi's house for killing Ramratan Singh, deceased. The motive of the accused for the murder was not accepted by the trial oourt and it was observed that it was the cout which did not accept the compromise in the proceedings under s. 107, Cr. P.C. the party of the accused and that of the deceased.

Lastly the court felt that the deceased Ramratan Singh having himself been a man of. bad character the possibility of someone else killing him could not ruled out. Chandrapal Singb's plea of alibi was also accepted as according to the trial court the entry about bis visit to village Barwah could not be held to be untrustworthy. Tiie trial court in a brief discussion of the evidence of P.Ws l, 2 and

3, the eye witnesses, considered their statements to be unacceptable, being the statements of interested witnesses.

The testimony of Ramsahai (P.W. 4) the approver was also considered to be unworthy of credence and it was observed that be had not implicated himself in the offence. The story of the blood having been wa~

by the ladies from the house was also Iiot believed by the trial court.

In these circumstances the trial court did not place any reliance on the testimony of., what it described, the "so-called approver". On 'this view all the accused persons were acquitted.

We have dealt with the trial court's view at some length beGause on behalf o.f the appellant the principal argument urged was that tile trial court's judgment was quite reasonable and that the High Court was in serious error in law in reversing it on its own appn:- ciation of the evidence and material on the record.

On apJ?Cal to the High Court by the State, a division Bench H Closely went into the evidence. On scru1:iny of the testimoaf of Dr. PimWar that court came t<J the eonchlsli>n that bis evidlinc.e left the question as to wheillier the wounds on the chest oc the

wounds on the back were the wounds of entry in a state of uncertainty. Jn i'ts opinion the doctor had oscilla<ted in his dei tion so many times that it was impossible to draw any definite conclusion contrary to 1he evidence of the eye witnesses on the basis of his testimony.

The High Court felt on the appreciation of the medical evidence that there were several explanations of the pelle1s being in the body and not traced by the doctor during the postmorlem.

The pellets after they enter the human body often take a very erratic course on account of their being deflected by coming into contact with ; the bones and indeed according to the High Court the doctor himself had admitted that it was not unlikely •that eight pellets entered the body through the I.Jack and two of them came out of the chest. the remaining six having either fallen out of the body, because of its having been cut up or having not been traced by him (the doctor) at the time of poS'!mortem examination. The High Court also took notice of the fact that the. maggots were found by the doctor, 10 be crawling on fragments of the body and skin was peeling off in several places in !:jig patches, with the result that there was a possibility of the magguts having themselves played a part in bringing about the change in the dimensions of the injuries. It further felt that there was no hard and fa!ll rule that the wounds of emry must necessarily be smaller in size than the wounds of exit. After considerinl!: all the relevant aspects the court felt that the dimensions of •he injuries on the chest as compared to the wounds on •the back were insufficient to justify the inference drawn by the trial court that the shots had been fired from the front thereby discrediting the testimony of the eye-witnesses with any degree of certainty. The gun having not been recovered the court was not able to come to any conclusion whether the cartridge fired was a factory manufactured one or refilled.

On a full survey of the entire medical evidence and the other material on the record the High Court did not find it possible to reject the evidence of the eye-witnesses on account of its being "allegedly inconsistent with the shaky medical evidence". The High Court went into the oral evidence wilh great car~ and after folly considering it held that evidence to be acceptable. It also oblserved that the trial court had unnecessary importance to the question of motive on the pan of someone else for the mu.rder.

The evidence made it clear that there were a numbr of proceedings between the deceased Ramratan Singh and members of his family on •the one side and Chandrapal Singh and members of his party on the other. The mere fact that there was a possibility of sonie Other persons also having a motive in murdering Ramratan Singh was not a cogent reason by itself to doubt the testimony of the eye-witnesses which the High Court found to have been corroborated by other unimpeachable evidence on the record. Chandrapal Singh's plea of alibi which had been

A upheld by the trial court was also carefully gone into by the High Court and rejected as unsupported by cogent evidence.

In any event on the assumption that Chandrapal Singh had actually taken part in an auction held on August 16, 1963 at Kharela as pleaded, his presence there till 3 p.m. was held unacceptable. The State appeal was accordingly allowed in part but Chandrapal B Singh having died in the meanwhile on September 30, 1967 the appeal against him was said to have abated. The appellants were convicted and sentenced, as already noticed, but the finding of acquittal against the other accused persons was not intedered with.

In this Court Shri R. K. Garg, learned counsel for the appellants addressed elaborate arguments in criticising the judgment of the High Court.

The principal challenge was concentrated on the contention that the medical evidence in this case contradicted the version of the occurrence as given by the witnesses professing to have seen it. It was strenuously argued that even if two views were possible on this point the High Court was in serious error in reversing the judgment of acquittal recorded lzy the trial court into one of conviction, ignoring the law as unifoffi!iy enunciated in this Court in a number of decisions, the latest decision in which legal position has again been reiterated being Bhubneshwar Manda! vs. The State of Bihar( 1). Emphasis was laid on paras 3 and 4 of that Judgment where reference has been made to the decisions in Shea Swarup vs. King Emperor('), Sanwat Singh vs. State of Rajasthan(') and State of U.P. vs. Samman Dass(') and relevant passages from those judgments reproduced. Shri Garg submitted that in the case before us also the High Court had failed to realise the limitation within which it had to function and the caution it had to observe in considering the appeal against the appellants' acquittal.

The counsel also crted Khedu Mahton vs.

State of Bihar(") and Kanu Ambu Vish vs. State of Maharashtra{°) in which the guidelines for the High Courts in dealing with appeali against acquittai-. are laid down.

Shri Garg in this connectiolf took us through the judgmell.ts of the trial court and the High Court for the punxise of showing that the trial court's judgment proceeded on a possible view of the evidence on the record and, therefore, the High Co~ acted contrary to the observations made by this Court in the above decisions.

We were also taken through the relevant evidence on the record by the. appellants' learned counsel in his attempt to substantiate his contention.

Shri Garg then referred to certain passages from Modi's Medical Jurisprudence 'and Toxicology for sustaining the trial court's view that the testimony of the prosecution witnesses did not fit in with

(2) l.L.R. S6 All, 64S (P.C.}

(4) A.l.R. 1972 S.C. 677.

(6) A.l.R. 1971 S.C. 22S6;

A the doctor's evidence.

In this connection also we were taken through the evidence of the doctor at some length.

• Now first dealing with the scope of appeal by >the State again~! acquittal, as this was the main basis of attack against the judgment of the High Court, the position in our view is well-settled and there is hardly any scope for controversy, notwithstanding the use of 8 different languages in various decisions of this Court. The passages from the three authoritative judicial pronouncements of this Court quoted in Bhubneshwar Manda I (supra) clearly illustrate the basic line of approach the High Court is expected to adopt while dealing with the State appeals from the judgments of acquittal.

This view has been consistently and uniformly taken ever C since the basic decision of the Privy Council in Shea Swarup

(supra), laying down the broad guidelines of approach to be adopted by the High Courts.

We would, however, like to emphasise that this Court on appeal from judgments of conviction after setting aside orders of acquittal would examine evidence only for seeing that the High Court has approached the question pro- D perly and applied the principles correctly. Once it is found that the High Court has applied correct principles in dealing with an appeal agains1 acquittal then this Court woufd not ordinarily go further into the evidence and weigh it for itself t•D substitute its own opinion for that of the High Court merely as to its sufficiency to support the. conclusions arrived at by the High 0Jurt. It would E do so only if there is some serious infirmity leading to grave injustice [see Harbans Singh vs. State of Punjab(') and Shivji Guru Mohite vs. State of Maharashtra(')]. In case, however, the High Court's judgment suggests that the correct principles were not kept in view then it would be open to this Court to examine the entire evidence for the purpose of assuring that justice does not fail.

We consider it necessary to make it clear that the observa- F tions in various decisions prsc'ribing a cautious approach on the part of High Courts in dealing with appeals against acquittal& do not cut down, limit or qualify its statutory power under s. 423 (a), Cr. P.C. which is co-extensive with that under cl. (b). Those observations merely indicate the approach of the High Court leaving it free to reach its own conclusions upon the evidence. It is G not necessary that the High Court must hold that the trial court's finding was perverse before reversing it. As solll!l of those observations have very frequently been considered (wrongly in our opinion) to lay down in law a rigid limit on the power of the High Court while hearing an appeal against acquittal, we consider it necessary to refer to the decision of this Court in M. G. Agarwal H vs. State of Maharashtra(') where Gajendragadkar J. (as be then was) speaking for a bench of five Judges, after referring to various

(I) [1962] Suppl S.C.R. 104.

(2) A.I.R. 1973 SC. 55

decision:; incluing Shco S1vnr11p (supr~1) and ,'v'ur 1\IJ0ha;,:n<a.!

v. Emperor(' I. laid down the correcc principle as follows :

"Section 423 (I) prescribes the powers of the appellate Court in disposing of appeals preferred before it and clauses (a) and (b) deal with appeals again'! acquittal:, and appeals against convictions respectively.

There is no doub1 'that the power con.ferred by clause (a) which deals with an appeal against an order of acguitral is '" wide as the power conferred by clause (b) which deals with an appeol against an order of conviction, and so, it is obvious that the High Court's powers in dealing with criminal appeals are equally wide whether 'J1e appeal in question is one against acquiital or against conviction.

That is one aspect of the question. The other aspect of the question centres round the appro1ch which the High Court adopts in dealing with appeals against orders of acquittal.

Tn dealing with such appeals, the High Court naturally bears in mind the presumption of innocence in favour of an accused person and cannot lose sight of the fact that the said presumption is strengthened by the order ct acquittal passed in his favour by the trial Court and so, the fact that the accused person is entitled to the benefit of a reasonable doubt will always be present in the mind of the High Court when it deals with the merits of the case. . ......... But the true legal position is that however circumspect and cautious the approach of the High Court may lie in dealing with appeals against acquittals, it is undoubtedly entitled to reach its own conclusions upon the evidence adduced by the prosecll'tion in respect of the guilt or innocence of the accused. This position has been clarified by the

Privy Council in Shea Swarup vs. The King Emperor and Nur Mohammad vs. Emperor".

The learned Judge then referred to some of the decisions oi this Court in which various expressions were used for the purpose of expressing the cautious approach of the High Court and observed that those expressions were not intended .and should not be rea~ to have intended o introduce an additional condition in cl. (a) qf s. 423 (I) of the Code. All that the said observations are intended to emphasise is th11r the approach of the High Court in dealing wrth an appeal against acquittal ought to be cautious because as Lord Russell observed in Shea Swarup (; upra) the presumption of innocence in favour of the accused "is not certainly weakened by the fact that he has been acquitted at his trial".

After stating the pri1>dple the. learned Judge dealt with the case before the Court thus :

(!) A.l.R. 1945 P.C. ISi.

"Therefore, the question which we have to ask our - selves in ithe present appeals i~ whether on the material produced by the prosecution, the High Court was justified in reaching the conclusion that the prosecution case against the appellants had been proved beyond a reasonable doubt and 'that the contrary view taken by the trial court was erroneous. In answering this question, we would no doubt consider the salient and broad features of the evidence in order to appreciate the grievance made by the appellants against the conclusions of the High Court.

But under Art. 136 we would ordinarily be reluctant to interfere with the finding of fact recorded by the High Court particularly where the said findings are based on appreciation of oral evidence."

It is in this blackground that we have to consider the arguments advanced at the bar on the material on the record.

Now the High Court has in tllis case examined the entire evidence at great length.

In its opinion the trial court was wrong in disblieving the prosecution evidence led to establish the recovery of blood stains from the scene of occurrence and from Gurwahi Bakhari of Ramsahai. On appreciating the evidence for rtself the High Court felt that the evidence fully established the recovery of blood stains from the places as deposed by the prosecution evidence with the result that the murder should have appropriately been considered to have taken place at l\he spot alleged.

The High Court, then dealt with the medical evidence and after a thorough scrutiny of that evidence did not feel convinced that the testimony of the eye-witnesses could be discarded on the basis of the testimony of Dr. Panwar. The medical evidence was considered by the High Court to be shaky and it came to the considered conclusion that the evidence oi. the eye-witnesses could not be rejected on this ground. The testimony of the eye-witnesses was also closely scrutinised by the High Court and after considering the relevant aspects canvassed before it this evidence was considered reliable and trustworthy.

The fact that there might have been motive on the part of some others also to murder Ramratan was considered by the High Court llQt to be a sufficient reason to doubit the testimony of the eye-witnesses who were corroborated by "other unimpeachable evidence", as the High .Court put it. The defence evidence was also scrutinised and held unimpressive and unacceptable; it was not so persussive as to induce

tl)e High Court to discard the prosecution evidence which had proved beyond reasonable doubt that, on the date, time and place alleged by it, Ramratan had been murdered by acc1'8ed no. 1 and his associates in prosecution of the common object of the unlawful assembly of which they were members and that subsequent to the murder they cut up the dead body and removed it from the scene

of the murder with the object of screening themselves from legal punishment.

No doubt in the judgment of the High Court we do not find nny reference to the decisions in which the Privy Council and this Court have laid down the principle which the appellate court is expected to keep in view when dealing with an appeal against 1he order of acquittal. But the judgment of the High Court clearly shows that it went into all aspects on which the prosecution evidence could be criticised and concluded that the evidence was fully trustworthy and that the medical evidence, shaky as it is, did not throw any doubt on the trustworthiness of the pPosecution witnesses as to the place, time and circumstances in which Ramratan was killed. This, in our view, should be sufficient to justify interference by the High Court with the judgment of the trial court. This Court had in Gopinath Gangaram vs. State of Maharashtra(!) adopted a similar approach.

However, in the peculiar circumstances of this case, we have also ourselves considered the evidence to which our attention was drawn and in our opinion the trial court seems to have attached undue importance to some of the observations of Dr. Panwar in the witness box, extracted in cross-examination in the trial court long after the postmortem, without correctly and fully appreciating the overall effect of his evidence considered as a whole along with the postmortem report, which had been prepared contemporaneously with the autopsy.

Without examining any ballistic expert and without even knowing what kind of fire arm had actually been used for the murder in question, the trial court had also, 'n our view, erroneously discredited the testimony of the eye-witnesses on the basis of ithe medical evidence. The evidence of the eyewitnesses was not fully and correctly evaluated : it was discredited on the basis of somewhat unsatisfactory testimony of the doctor which on proper judicial appraisal does not contradict the version of the prosecution witnesses as to the manner in which the deceased was shot at.

The evidence of alibi of Chandrapal Singh was also wrongly considered to prove his absence from the place of occurrence ret the time of the crime. Similarly the testimonv of the investigatil)g officer was doubted for reascns which appear to us unsubstantial and insupportable. The High Court on the other hand paid closer artention to the evidence and material on the record, scrutinised it with greater care and held the testimony of the eye-witnesses to be acceptable with respect to the time, place and manner of the murder of the deceased.

This evidence, in our view, was not rendered untrustworthy because of its inconsistency with the medical evidence which was also scrutinised by the High Court with greater care and anxiety. The appraisal of

(I) Crl. A. 99of1969 decided on October LS, t969.

RAJWA v. STATE (Dua, J.) 585

the evidence of the investigating officer by the High Court carries greater conviction, being more rational and oective.

The trial court was also in error in observing that the words in the F.I.R. "Muka Pa Kar Ram Ratan Ko Mar Dala" merely suggest that the "accused had got a chance to kill him and had killed him on account oi that chance'' and that the said statement negatives the prosecution case of the accused having assembled for the purpose of killing Ramratan.

This view is wholly misconceived and is based on a misreading_ of the first information report read as a whole. The words qu9ted have been taken out of their context. Considered along with the preceding sentence in the F.l.R. these words merely suggest that the accused found an opportunity of killing Ramratan on this occasion against whom they had been nursing a grudge since a long time. The context by no means suggests that the accused persons had not assembled for the purpose of killing Ramratan if he happened to come their way,

Shri Garg, while comment\ng on the appreciation oi evidence -by the High Court, criticised its conclusions on various circumslantial facts by submiNinii; that these faC'ls were not established beyond reasonablle doubt. The evidence with regard to the manner in which the party of Ramratan', deceased, and the prosecution witnesses, proceeded from Korionwali Gali was specifically criticised and it was contended that unless. each one of those circumstances. could be held proved beyond reasonable doubt the "accused should be given the benefit. of doubt and the prosecution case should "fail on that ground alone. The submission is not easy to accept. The appreciation of the evidence by the High Court, is our view, is unexceptionable and there is no question of any possibility of reasonable doublt on the conclusions about the time and place of the occurrence and the manner in which the deceased met with his death. In our view, therefore, there is hardly any cogent ground for holding that the conclusions of the High Court in this respect are in any way tainted with any infirmity which would , justify their reversal.

 But this does not conclude lhe appeal. The evidence through which we have been taken by the learned counsel at the bar has been examined by us with care and anxiety because in cases like 'the present where there are party factions, as often observed in authoritative decisions there is a tendency to jnclude the innocent with the guilty and it is extremely difficult for the Court to guard against such a danger. The only real safeguard against the risk of condemning the innocent with the guilty lies in insisting on acceptable evidence which in some measure implicates such

accused and satisfies the conscience of die court. (see Kashmira Singh vs. State of M.P.(') and Bhaban Sahu vs. The King(').

In the case in hand, no doubt, the prosecution witnesses claiming to have seen the occurrence have named all the appellants and the approver has even named those acquitted by the High Court, but in our view it would be safe only to convict those who are staled to have taken active part and about whose identity there can be no reasonable doubt.

Gulzarilal and Bansi exhorted his companions as a iesul't of which Chandrapal Singh shot at Ram ratan. deceased. They could be considered to be g11ilty beyond any reasonable doubt. Ramratan was seen to be carrying the head of the deceased when the prosecution wrtnesses chased the party of the accused. He too can thus t¢ cnsidered to be guilty without ghing rise 10 any doubt about his complichy. So far as the others are concerned we feel that they are entitled to benefit of doubt as it is difficult to come to a positive conclusion about their identity amongst 1hose who actually either assaulted the deceased or dismembered and carried away his dead body.

There is, however, no doubt in our mind that some out of those 'to whom the benefit of doubt is given were clearly amongst the party of the assailants and actively took part in the occurrence though their identity cannot be safeiy fixed without the risk of implicating the possible innocent. In the final result, therefore, the appeal of Gulzarilal, Bansi and Ramgopal is dismissed but that of the others is allowed and they are acquitted.

V.P.S,

(I) [1952] S.C.R. 526.

(2) 761.A. 147.

I '

ORS.

STATE OF U

March 6, f973

A. ALAGIRISWAMI

D. DUA

s. 423(a)

Cr.P.C

[1961] 3 S.C.R. 120

1963] 2 S.C.R. 405

R. K. Garg

S. C. Agarwa

D. P. Uniyal

P. Rana

DuA

Art. 136

High Court of Judicature at Allahabad

ss. 148

Chandrapal Singh

September 30, 1967

ss. 302

I.P.C

ss. 302

ss. 301

I.P.C

s. 148

Pannalal

Gulzarilal

Achebe Lal

Ramdhar

Bansi

Gurwa

Bansi

Ramdayal

Ba.iwa

Ramsahai

s. 107

Cr.P.C

Ramratan

s. 107

Ramdayal

Achche Lal

Ramdhar

s. 107

Gulzarilal

Pannalal

Gurwa

Ramgopal

Munni Banin

Banshi

August 16, 1963

Shivratan

JagroopSingh

MaheshwarDin

Sugar Singh

Sheoraj Singh

Gu!zarilal

Achebe Lal

Ram Gopal

Bajwa

Tej Singh

Sheoratan

Sheoratan Singh

Shivratan

Sheoratan Singh

August 16 and 17,

1963

chowkidar

Jagdeo Singh

Girinder Singh

Guyari

Geondi

Ramsahai

ss. 87 and 88

August 25, 1963

J. S.

Panwar

Mahoba

August 18. 1963

Panwar

Kharela

Bambhari

Panwar

October 22, 1964

November 4, 1963

Panwar

Ramratan Singh

Ramra\an

Singh

Modi

s. 161

.Baasi

s. 107

Chandrapal Singb

Barwah

Ramsahai

PimWar

Chandrapal B Singh

R. K. Garg

Garg

Bhubneshwar Manda

Shea Swarup

s. 423

Gajendragadkar

Section 423

s. 423

Russell

Art. 136

Chandrapal Singh

October LS, t969

Ram ratan