SHY AM SUNDER AND OTHES R v.

THE STATE OF RAJASTHAN

March 12,. J974

[K. K. MATHEW AND A. ALAGIRISWAMI, JJ.]

549.

Fatal Accidents Act, 18SS, See. 1-A-Accitknt 1esulting from truck catching firt- Occupant dying of injuries sustained in jumping out of truck on caution by drive - Maxim res ipsa /oquitur-App/icability of Constitution of India, Art. 300-Tortious IUWility of state- Held, fami'ne relief work not a sovereign funclf!'n.

The deceased, who was at the material tinle in the en1ployment of the State of Rajasthan in the Public Department, was required to proceed from his office at Bhdwara to Banswara, in connection with famine relief work undertaken by the department. For that purpose, he boarded a truck owned by the department from Bhilwara on, May 19, 1952 with six others.. Throughout the journey the radiator of the truck was gettiog heated frequently and the driver was pouring water into it after overy .6 or 7 miles of journey. The truck took nine houn to travel the distance or seventy miles.

After having travelled four miles from Pratapgarh, the engine of the truck caught fire.

As soon as the fire was seen, the driver cautioned the occu pants to jump out of the truck. Consequently, they did so. The deceased struck against a stone Iyina by the side of the road and died instantaneously.

The widow of the deceased brought a suit for damages against the State of Rajasthan under the provisions of the Act. The plaintiff alleged, inter a1ia, that it was on account of the negliaence of the driver of the truck that a truck which was not road-worthy was piit on the road and that it caught fire which led to the death of her husband and that the State was liable for the negligence of its employee in the course of his employment. The plaint also alleaed that the deceased had left behind

him his widow name]yt the etaintiff, two minor sons, one minor daughter and his parents. The plaiotilfclatmed damaaes to the tune of Rs. 20,<XXJ/. and prayed for a decree for that amount. The state resisted the claim denying negligence of the driver and plea.din& sovereign immunity.

The trial Court relied on the maxim res ipsa /oquitur, found that in putting the truck on the road the driver was negligent as the truck was not road-worthy and sine the driver was negligent, it held that the State was vicariously Hable for his a.ct.

Th4; court assessed the damages at Rs. 14,7flJ/· and granted a decree for the amount to the plaintiff. Against this decree the state appealed to he High Court. On the evidence on record, the High Court held that the principle of res ipsa /oquitur had no

3pplication to the factsof the case.

Accordingly, the High Court allowed the appea1. On appeal by special leave to thi~ Court.

HELD : (I) Generally speaking an ordinary roadworthy vehicle would not cateh fire. The driver was nea].igent in putting the vehicle on the road. From the evidence it is clear that the radiator was getting heated frequently and that the driver was poui-ing water in the radiator after every 6 or 7 miles of journey. The vehicle-- took 9 hours to cover the distance of 70 miles between Chittorgarh and Pratapgarh.

The fact that normally a m:otor vehicle would not catch fire if its mechanism is in order would indicatC that there was some defect in it. The Distt. Judge. found on the basis of evidence of witnesses that th~ driver knew about this defec.._ tive cOndition of the truck when he started from Bhtlwara. [5540-FJ

It is clear that the driver was in management of the vehicle and the accident is sw:h that it does not happen in the ordinary course of th!ngs. There is no evidCnceas to how the truck cauaht fire .. There was no explanatton by the defendant about':!: it It was a matter within the exclusive knowlcdce of the defendant. It was not.. ible rOr _the plainti" to _give any evide a~ to the cause of the accident. these circumstances, the maxun rts ipsa loqurt11r 1s attracted. [S~4F-G]

The 1naxiin docs not embody any rulC of substantive law nor a rule of evide- n:c. It is perhaps not a rule of any kind but simply a caption to an agrun1cnt on the evider.ce. The maxim is only a convenient label to apply to a set of circumstances, in which the plaintiff proves a case so as to call for a rebuttal from the defendant without having to allege any specific act or omission on the part of the defendant. Jts principal function i's to prevent injustice which would result if. a plaintiff were invari::tbly co1npellcd to prove the precise cause of the accident and the dcfend:i.ut r~Sponsible for it, even v.hen the facts bearing on the matter arc at the outset unl:novn to him and often within the knowledge of the defendant. The 1naxim is based on commonsense and its purpose is to do justice when the facts bear ing on causation and on care exercised by the <lefenclant are at the outset unknown lo the plaintiff and ure or ought to be within the knowledge of the defendant. !k52F-553 CJ The plointiff r:ierely proves a result, not any particular act or omission prodi..· cing the result. Jf thC result, in clrcumstances which he proves it makes it more prob able than not that it was caused by the negligence of the defendant, the doctrine of re~ ipsa (Jq11itur is said to apply, and the plaintiff will be entitled to succeed un less the defendant by evidence rebuts that probability.

R's dispa loquitur is an im inensely important vehicle for importing strict liability into negligence cases. '[583 C-D, 584 Fj

ScorJ. v. London & St. Catherine Docks [18651 3 H. & C. 596, 601, {t9i3) S. C. ·(I-IL) 43, Barkwav v. South ~Vales Transport [1950J 1 AllE.R. 392, Jones v, Gr, at IVester11, [1930] 7 TLR 39, referred to.

(fl) As the law stands today, it is not possible to say that famine relief work is D a sovereign function of the State as it has been traditionally understood. Jt is a work which can be and is being undertaken by private individuals. There is nothing peculiar about it so that it might be predicated that the State alone can legitimately undertake the work. [555 E-FJ Kasturi/a/ v. Sta.le of Uttar P1adesh [1965] 1 S.<;:.R. 375, referred to.

QL1aere : (a) Whether the immunity of the State for injuries on its i.; itizens committed in the exercise of what are called sovereign functions has any m91aJ justi- E fication today; (b) whether there is any rational dividing line between the so-called sovereign and proprietary commercial functions for determining the 1iubility of the state. [555 B-C, E]

Se:n1:llc: The m:iiern sovereign immunitv doctrine which is based on the )!round that there con be no leal right as aainc; t the authority that mak.es the law on which the right depends, for exempting the sovereign from suit is neither logical nor ; practical. [555 D-E].

CJvIL

APPELLATE

JURISDICTION: Civil Appw.l No. 1827 of 1967.

App, al by spocial leave from I.he judgment and order dated the-, '29th April 1966 of the Raja<thc High Court at Jodhpur in D. B.' Civil Regular First Appeal ~"· 48 of 1957.

U. N. Trivedi and Ga.ipat Rai, for the Appellants.

Sobhagmal Jain, for the respondent.

The Judgment of the Court was delivered by

MATHEW, J.

This is an appoal by special leave, against the iudgment and decree of the High Court of Rajasthan, setting aside decree for recovery of damages under the Patel Accidents Act, 1855 <(hereinafter referred to as the Act).

.. '"'

SHYA!v1 SUNDER v. RAJASTHAN (l'vt:.d1c, t,. J) 551

Navneetlal was a resident of Udaipur.

He was in the emplovment of the State of Rajasthan and was, at the material time, worki,; g in the office of the Executive Engineer, Public Works Department, Bhilwara as a Store Keep or. In connection with the famine relief works undertaken by the department he \Vas required to piocced to B(l.nswara. For that purpose he boarded trnck No. RJE-131 owned by the deportment from Bhihve.re on May 19, 1952 and reached Chittorgarh in the evening.

Reids hiJneif, there \'i'ere FD.tch Singh FundjJal and Hccra Sing:1, the dnver, cleaner and a stranger jn the truck. On May 20, 1952, they resumed the journey from Chittorgarh at about 11 A.

M. and reached Pratapgarh in the same evening.

The truck started fro1n Pratapgarh to Bans\V<ra at about IO A.M. on May 21, ]952. After having travelled for 4 miles fro:n Pratapgarh, the engine of the truck caught lire.

As soon as the fire was seen the <lriver cautiont<l the occupants to ju1np out of the truck.

Consequently, Navneetlal and the other persons jumped out Of the truck. \VJ1ile doing so, Navnectla1 strurk against a stone lying by the ide of the r0a:l and died instantaneollsly.

Parwati Devi, widow of NnvneetlaI r.rought a suit [].gain.st the State of Rajasthan for damages under the provisions of the Act.

The p!aintiff alleged that it w&s on account of the negligence of the driver of the truck that a truck \vhich , va:.; not ror.dwortliy was put on the road and that it caught fire which led to tl:e death of Navneetlal and that the State wos liable for the negligence of its employees in tlie course of his employment. The plaint also alleg'd that the deceased had left behind him his widow, namely, th:! plaintiff, two n1inor sons, one minor daughter and his parents.

The plaintiff claimed damages to the tune of Rs. 20,000!- and prayed for a decree for that amount.

The State contended that the truck was qt1ite in order when it started from Bhilwara and even when it started from Pratapgarh to Banswara and that if it dc\'eloped some mechanical troubles suddenly which resulted in its catc'.1ing fire, the defendant was not liable as th'ro was M neglig, nce oa the part of the driver.

The trial court found that the act of the driver in putting the truck?" the road was negligent as the truck was not rnadworthy and since the dnver was neghgent, the State was v1canously liable for his act. The Court assessed the damages at Rs. 14,760/· and granted a decree for the amount to the plaintiff. ·

It was ag1inst this decree that the State appealed to the High Court.

The High Court came to the condusion that the plaitiff had not proved by evidence that the driver was negligent, that the mere fact that the truck caught fire was not evidence cf negligence on his part and that the maxim res ipsa /1quitur had. no application.

The Court said that the truck travelled safely from Bhilwara to Pratapgarh and that the engine caught fire after having

SUPREME COUJ.T REPORTS [ 1974 l 3 s.C.R.

travelled a distance of 4 miles from Pratapgarh an<i that there was nothing on record to show that the engine of the truck was in any way defectlve or that it was not functioning properly.

The Court was of the view that the mechanism of "n automobile engine is such that with all proper and careful handling it can go wrong while it is on the road for reasons which it might be difficult for a driver , to explain. The Court then discussed the evidence and came to the conclusion that no inference of negligence on the part of the , tlriver was pqssibl~ on the basis that ihe engine of the truck got heated of and on and that water was put in the radiator frequently, or that it took considerably long time to cover the distance between Bhilwara and Chittorgarh and that between Chittorgarh and Pratap garh. The High Court therefore, allowed the appeal.

The main point for consideration in this appeal is, whether the fact that the truck caught fire is evidencde of negligence on the part of the driver in the course of his employment. The maxim res ipso /oquitur is resorted to when an accident is shown to have occurred and the cause of the accident is primarily within the knowledge of the defendant. The mere fact that the cause of the accident is unknown does not prevent the plaintiff from recovering damageo, if the proper inference to in drawn from the circumstances which are known is that it w1s caused by the negligence of the defendant. Tho fact of tte accident may, sometimes, constitute evidence of negligence and then the maxim res ipso loquitur applies.

The maxim is stated in its classic form by Erk, C. J. :

" .... Wh< re the thing is to shown to be under the management of the defendant or his scrvents, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the ab, ence of explanation by the defendants, that the accident arose from want of care."

The maxim does not embody any rule of substantive law nor a rule of evidence. It is perhaps not a rule of any kind but simply the caption to an argument on the evidence.

Lord Shaw remarked that if the phrase had not been in Latin nobody would have called it a principle (2), The maxim is only a convenient label to apply to a set of circumstances in which the plaintiff proves a case so as to call for a rebuttle from the defendant without having to allege and prove any specific act or omission o~ the part of the defendant.

The principal function of the maxim is to prevent injustice which would result if a plaintiff were invariably compelled to prove the precise cause of the accident and the defendent responsible for it, even when the facts bearing on tlie matter are at the outset unknown to him and often within the knowldge of the defendant. But though the parties' relative access to evidence is an influential, factor, it is not controllinll. Thus the fact that

(I) See Scott v. London St. Katherine Docks (1865) 3 H. & C. S96, 601.

(2) Soe Ballard v. North British Railway Co.1923 S. C. (H.L.)43.

SHYA){ SUNDER V. RAJASTHAN (Mal~W, /,) 553

the defendant is as much at a loss to explain the aci; ident or ·- himself died in it, docs not preclude an adverse inference against him if the odds otherwise point to his negligence (see John G.

Fleming, The Law of Torts, 4th ed., p. 264). The mere happening of the accident may be more consistent with the negligence on the part of tht defendant than with other causes. . The maxim is based on common sense and its purpose is to do justice when the facts bearing on the causation and on the care excercised by defendant are at the outset unknown to the plaintiff and are or ought to be withfn the knowledge of the defendant (see Barkwa>' v. S.

Wales Tran.lport(l). ·

the plaintiff merely proves a result, not any particular act or omission producing the result. . If the result in the circumstances . in which he proves it, makesit more probable than not thai it was

cau$ed by the negligence of thio defendant, the doctrine of res ips11 loquitur is said to apply, and the plaintiff will be entitled to succeed unless the defendant by evidence rebuts that probability.

The answer needed by the defendant to meet the plaintiff's case may take alternative fornis. Firstly, it may consist in a positive explanation by the defendant of how the accident did in fact occur, of such a kind as to exonerate the defendant from any charge of negligence. ·

It should be noticed that the defendant doesllot advance bis case inventing fanciful theories, unsupported by evidence, of how the event might have occurred. The whole inquiry is concerned with probabilities, and facts are required, not nlere conjecture unsupported by facts. As Lord Macmillan said in his dissenting judcment in Jones v.

Great Western (2) : ·

"Tb•; dividing line between conjecture and inference is often a very difficult one to draw. A conjecture may be plausible, but it is of no legal value, for its essense is that it is a mcreguess. An inference, in. the legal sense, on the other band, is a deductioL from the.evidence, and if it is a reasonable deduction it inay have the validity of legal proof. The attribution of an occurrence to a cause is, I take it, always a matter of inference. The cogency of a legal inference of causation may vary in degree between practical rtainty and reasonable probability. Where the coincidence of cause and effect is not a matter of actual 01>servation there is. necessarily a hiatus in the dirt ct evidence, but Uris may be legitimately bridged by ; m inference from tLe frets actually observed and proved."

In other words, an inference is adeductioo from established facts and an assumption or a guess is SJmething quite different but not necessarily related to established facts.

(I). [1950] l All J; ngland Reports 392, 39~; 7 _;_M 45 Sup on 5

(2) [1930] 47 T. L. R. 39.

Alternatively, in those instances where the defendant is unable to explain the accident, it is incumbent upon him to advance positive proof that he had taken all reasonable steps to avert foreseeable harm.

Res 1ps' /oquitur is an immensely important vehicle for importing strict liability into negligence cases. In practice, there are many cases where res iP'" /oquitur is properly invoked in which the defendant is unable to show affirmatively either that he took all reasonable precautions to avoid injury or that the particular cause of the injury was not associated with negligence on his part. Industrial and traffic accidents and injuries caused by defective merchandise are so frequently of this type that the theoretical limitations of the maxim are quite overshadowed by its practical significance (I).

Over the years, the general trend in the application of the maxim has undoubtedly become more sympathetic to plaintiffs. Concomitant with the rise in safety standards and' expanding knowledge of the me chanical devices of our age less hesitation is felt in concluding that the miscarriage ofa familiar activity is so unusual that it is most probably the result of some fault on the part of whoever is responsible for its safe performance (see John, G. Fleming, The Law of Torts,4th ed., p. 260).

We are inclined to think the learned District Judge was correct in inferring negligence on the part of the driver.

Generally speaking, an ordinary road-worthy vehicle would not catch fire.

We think that the driver was negligent in putting the vehicle on the road. From the evidence it is clear that the radiator was g<tting heated frequently and that the driver was pouring water in the radiator after every 6 or 7 miles of the journey. The vehicle took 9 hours to cover the distance of 70 miles between Chittorgarh and Pratapgarh. The fact that normally a motor vehicle would not catch fire if its mechanism is in order vould indicate that there \las some defect in it. The District Judge found on the basis of the evidence of the witnesses that the driver knew about this defective condition of the truck when he started from Bhilwara.

It is clear that the driver was in the management of the vehicle and the accident is such that it does not happen in the ordinary course of things.

There is no evidence as to how the truck caught fire.

There was no explanation by the defendant about it. It was a matter within the exclusive knowledge of the defendant. It was not possible for the plaintiff to give any evidence as to the cause of the accident.

In these circumstances, we think that the maxim res ipsa foquitur is attracted. ·

It was, however, argued on behalf of the respondent that the State was engaged in prforming a function app.ertaining to its character

s soverein as he drier wa.s acting in the course of his employment H in connection with famine reltef work and therefore, even if the driver

(1) See Millner : "Negligence in Modern Law". 92,

Sl!YAM SUNDER v. RAJASTl!AN (Mathew, J.) 555

was negligent, the State would not be liable for damages. Reliance was placed on the ruling of this Court in Kasturilal Ralia Ram Jain v.

State f Uttar Pradesh (I) where this Court said that the liability of the State for a tort committed by its servant in the course of his employment would depend upon the question whether the employment wa~ of the category which could claim the special characteristic of s?verelgn power. We do not pause to consider the question whether the >mmumty of the State for injuries on its citizens committed in the exercise of what are called sovereign functions has any moral justification today. Its historic and jurisprudential support lies in the oftquoted words of Blackstone(2) :

"The king can do no wrong ...... The king, moreover, is not only incapable of doing wrong, but even of thinking wrong; he can never mean to do an improper thing : in him is no folly or weakness".

In modern times, the chief proponent of the sovereign immunity doctrine has been Mr. Justice Holmes who, in 1907, declared for a unanimous Supreme Court(3) :-

"A sovereign is exempt from suit, not because of any for1nal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends."

Today, hardly anyone agrees that the stated ground for exempting the sovereign from suit is either logical or practical. We do not also think it necessary to consider whether there is any rational dividing line between the so-called sovereign and proprietary or commercial functions for determining the liability of the Slate.

We are of the view that, as the law stands !Oday, it is not possible to say that famine relief work is a sovereign function of the State as it has been traditionally understood. It is a work which can be and is being und.ertaken by private individuals. There is nothing peculiar about it so that it might be predicated that the State alone can legitimately undertake the work.

In the view we have taken on the merits of the case, we do not think it necessary to canvass the correctness of the view experessed by the High Court that the appeal by the State before the High Court did not abate even though the legal representa•ives of the plaintiffrepondent there were not impleaded within the period of limitation.

In the result, we set aside the decree of the High Court, restore the decree and judgment passed by the District Judge and allow the appeal with costs.

S.B.W.

(I) 11965] 1 S. C. R. 375.

(2) Blackstone, Commentaries (10th ed., 1887)

(3) Kawananakav. Polyblank, 205 U.S. 349, 353.

Appeal allowed.

SHY AM SUNDER AND OTHES

March 12,. J974

K. K. MATHEW

A. ALAGIRISWAMI, JJ.

Fatal Accidents Act

Constitution of India

Art. 300

of the State of Rajasthan

Bhdwara

Banswara

Bhilwara

May 19, 1952

Pratapgarh

State of Rajasthan

Chittorgarh

Bhtlwara

U. N. Trivedi

Ga.ipat Rai

Sobhagmal Jain

MATHEW

High Court of Rajasthan

Patel Accidents Act, 1855

Navneetlal

Udaipur

Hccra

Parwati Devi

Pratap garh

Erk

Shaw

S96, 601

Macmillan

John, G. Fleming

Holmes

Supreme Court(3)

1965] 1 S. C. R. 375

Blackstone

Kawananakav. Polyblank

S. 349, 353


D. N. SANGHA YI & SONS

AMBALAL TRIBHUWAN DAS

January 9, 1974

(S. N. DWIVEDI AND P. K. GoswAMl, JJ.]

Madfr.ya Pradesh Accommodation Control Act 1961, Sec. 12 (l) (f)-fts scope -The expression, 'His business'-Meaning of.

The respondent is the oWner of the suit pz:emiscs. The appellarits 2 to 4 are carrying on the business in the name of the first appellant, D. N. Sangha vi & Sons.

They are tenants of the apondent and using a part of the premises as their resi dence. The respondent sued the appellant for eviction on the ground that he needed the accommodation for continuing "his busines.s" within the meaning of S.12 (1)

(f) of the Madhya Pradesh Accommodation Control Act 1961, The questions for decision in the case are as follows :-{i) What is the meaning of the phrase "his business" in s.12 (1) (0 and (ii) Whether in the circumstances of the case, the business for which he required the accommodation could be said to be "his busines.s." The first question arose because he wanted the accommodation for continuing the business of a partnership firm of which he was one partner and the other two partners were his brothers.

The Trial Court held against the respondent and dismissed the suit, but the appeal court reversed the judgrgent and deCreed the suit for ejectment of the appellants. On appea~ the High Court upheld the jud11ment of the appeal Court and Jicnce the appeal before this Court.

Allowing the appeal,

HELD : (1) The meaning of the expression "his business'' in s. 12 (1) (f) or the Madhya Pradesh Accommodation Control Act 1961, is to be determined by examining the object othe Act and the setting of the phrase "'his business."

(2) The diroct and immediate object of the Act is to ensure o::cupation of accomodation b~ them who are in need of it. Broadly speaking, a construction which ful fils this purpose should be preferred to the alternate construction which frustrates iL

(3) A review of the provisions of the Act would show that the Act is more strict with respect to the eviction of a tenant from a non--rcsidential accomn.JJation than from a residential accommodation. The landlord cannot sue for eviction of a tenant from a nonresidential accommodation where he needs it for continuing or Startin~ his major married daughter's business or his brother'i business. There-- fore, section 12 (1) (b) is protective of the tenant and should not receive a wide construction as to the class of persons who may ho included in the possessive pronoun 'his' in the phrase 'his business', for it would be against legislative policy.

(4) The words "for the purpose of continuing or starting his business" in Sec,, 12 (i) (0 should be amplified to read as "for the purpose of his own occupation by way of continuing or starting his busi~". This amplification is necessarily implied.

Tlieore, it is necmary for the respondent to prove that the accommoda tion is nctedcd directly and substantially for his occupation for the purpa, e of con tinuing or starting his business. From the evidence, it is not clear whether the res. pondcnt was merely a sleeping partner or an active partner. In absence of any proof that the accommodation is exclusively required directly and substantially for his occupation for the purpose of continuing or starting his business, the suit must fail.

J14jniklal and Co. v. Ylthal Pandurang Kawade and anoth<r, A. I. R. 1952 Nagpur 312 Tansuklulas Ch/uJgan"1/ v. Smt. Shamba/, A. I. R. 1954 Na11pur 160, Commlssio_;, of Income-tax, West Bonga/ v. A. W. Fizgies and Co.,

(1954] S.C.R.

. ~-.

171 Dulichand Lakshminarayan v. The Commissioner of Incometa.x, Nagpur, U956] S.C.R. 154, Karasandas Ramji v. Karsanji Ka/yanji, A.LR. 1953 Saurashtra 113 and Gunda!apa//i Rangamannar Chetty v. Desu Rnngiah, A. I. R. 1954 Madras 182, referred to.

CIVIL APPELLHE JUR!SD!Cf!O~ : Civil App:al No. 1643 of 1967

App, al by sp!chl leave from the judgment and order dated 4th September, 1967 of the Madhya Pradesh High Court (lndore Bench)

at Indore in s, cond App!al No. 288 of 1967.

M .. V. Phad/<e md A. G. Ratnap:irklzi, for the appellants.

/J. V. Patel A. T. M. Sampatlz, M. M. L. Srivastava and £. C.

Agarwa!a, for'the respondent.

lh~ J1J; n,:itor th! Court was delivered by

DIVIVEDI, J. -Th: facts of this case fall within a short compass.

The respondent, Amba Lal Tribhuwan-Oas, is the owner of the suit ac:; ommodation. It is situated in Siyaganj, Indore. The appellants 2 to 4 are cirrying on business in the name of the first appellant, D. N.

Singhavi and Sons. Th!y are the tennants of the accommodation.

Courts b!low have held that it was. being used predominantly as a shJp by them and that a pirt of it was being used by them as their

residence for the sake of more of efficient conduct of the business they were cirrying on in th: shop. The resp:indent purchased the shop some time in 1963. The ap; i!llant wore then carrying on their business in the shop". 1h!Y attarne:I to the respondent. On October JO, 1964 the respJndent give the requisite notice to them to vacate. On November 16, 1954 h• instituted a suit for their ejectment from the accommodation. It wds allez:d by him that he . needed the accommodation for cJntinuing"his business" within the meaning of s. 12 (I) (f) of the M1dhya Pradesh Acc0mmo:lation Control Act, 1961 (hereinafter called th! Act). At the evidence stage he gave evidence that it was needed for putnership business. There arose two crucial questions in the case: (I) What is the m:aning of the phrase "his business" in s. 12(1)(f)?

(2) Whether in the circumstances of the ca•e the business for which he required the acommodation could be said to be "his business". The first qu., tion arose because he wanted the accommodation for continuing the businoss of a p1rtnership firm of which he was one partner.

Th!fe w!re tw0 other p1rtners. They are his brothers. The trial court held ag1inst the respondent on the second issue and dismissed the suit.

No view was expressed on this issue. The respondent filed an appeal from the ju:lgn, nt. The ap; nal court reversed the judgment and decreed th' suit for ejectment of the appellants. The appeal court recorded this . fin:iing of fact " ...... Ambalal (plaintiff) has stated ...... that the

p1rtner3hip shop was previously run by his father. It is now run by the brvthers in p1rtnership. This business is thus of the family alone. Their shJ;> is at Siyagmj itself where the premises in suit are situate.',' On

this fin:iing the app!al court reached the conclusion that the business of th' pirtnership firm, of which he is one partner is "his business"

r A •

I E

D. II, IANG~Y.I " soils v. AMBALAL (Dwivedi, J.) 57

within the meaning of s. 12(l)(f). As the firm's business was hirg carried on in a rented premises, his need was found to be grnume. 1 he appellants then filed an appeal in the Madhya Pradesh High Court from the judgment of the appeal court. 1he High Court has upheld, the judgment of the appeal court. It is noteworthy that the appeal court has simply assumed that the partnership business is "his businus".

No reasoning$ are given in support of the conclusion. 1he High Court agreed with the appeal court that the firm's business of which the respondent was one partner is "his business". 1he reasoning of the High Court in support of this conclusion Is summed up in the following passage in thejudgment: "In the present case what we are concerned with is whether the landlord can be said to have the necessity when the need was for the partnership firm. It cannot be doubted that when a p!rson runs a business in partnership with others he does it for him; elf and therefore his necessity is identified wifh the necessity of the firm.

Whether he wants to do business himself or he does it along w i h c.thrs

t still remains that he needs it for his own purpoic."

It is evident from this passage that the High Court, like the appeal court, has overlooked the words of s. 12(l)(f) in arriving at its conclusion. The High Court considered that it is an elementary proposition of law that a partnership business is the business of each and every partner so that it will be "his business." It seems that the High Court was misled by the apparent meaning of this phrase so that the necessity of examining the scheme of the Act and the setting of clause (f) of s. 12(1) to discover its real meaning was not felt at all. But this is the first thing on which the High court should have fixed attention. After all, it is a matrer of statutory construction. And in such a case all attempts at construction should converge on the statute at hand, lest the reasoning should become abstract and artificial, having no contact with reality. The High Court has ought support from a decision of the erstwhile Nagp\lf High Court. (Rainikla/ and Co. vs. Vitila/ Pandurang Kawade and another)(!). Here again, the High Court did not take care to

IIOJ tpJ1, IM M~J 01(~ UOOMJoq SO)i!l~J!WfSS)PPU~ SO!J)J~)!WfS 01{1 OO!JOU or constderatton ID that case and the law which falls for construction n this appeal.

With. these preliminary comments, we pass on to the real issue : What does "his business" mean ins. 12(I)(f)? 1he meaning is to be determined by ex.amining the object of the Act and the setting of the phrase "his business". The Act deals with the difficult problem of

scacity of accommodation and seeks to distribute accommodation in II. fair way amongst those whd need.

The Act professes to control letting and rent of accommodation and the eviction of tenants therefrom. The Act restricts the power uf the landlord to let and to rack-rent at will. It also restricts his pow<r to eject the tenant at will. Thus the direct and immediate object of the Act is to ensure occupation of accommodation by them who are in need of it. Broadly speaking, a construction which fulfils this purpose should be preferred to the alternative construction which furstrates it. ·

I. Al.R. 19S2 Naapur 312.

SUPREME COURT REPORTS I 19741 3 s.c.ll.

Chapter III controls evictionoftenants. Section 12 is the first pro vision in this Chapter. We are now reading the material portions of s. 12:

"Section 12(1)(e) : that the accommodation let for residential purposes is required bonafide by the landford for occupation as a residence for himself or for any member of his family, if he is the owner thereof. or for any person for whose benefit the accommodation is held and that the landlord or such person has no other reasonably suitable residential accommodation of his own in his occupation in the city or town concerned :

(f) that the accommodation let for non-residential purposes is required bonafide by the landlord for the purpose of continuing or starting his business or that of any of his major sons or un" married daughters if he is the owner thereof or of any person for whose benefit the accommodation is held and that the landlord or such person has no other reasonably suitable non-residential accommodation of his own in his occupation in the city or town concerned;

(4) where a landlord has acquired any accommodation by transfer, no suit for the eviction of tenant shall be maintainable under sub-s. (I) on the ground specified in clause (e) or clause (f) thereof, unless a period of one year has elapsed from the date of the acquisition.

(5) where an order for the eviction of a tenant is made on the ground specified in clause (e) of sub-section (I), the landlord shall not be entitled to obtain possession thereof before the expiration of a period of two months from the date of the order.

(6) where an order for the eviction of a tenant is made on the ground specified in cl. (f) of sub-section (I), the landlord shall not be entitled. to obtain possession thereof-

( a) before the expiration of a period of two months from the date of the order : and

(b) if the accommodation is situated in .... Indore .... unless the landlord pays to the tenant such amount by way of compensation as may be equal to ..... .

(i) double the amount of the annual standard rent of the accommodation in the following case• :

(a) where the accommodation has for a period of ten complete years . immediatly preceding the date on which the landlord files a suit for possession thereof, been used for business purposes or for any other purpose along with such purposes, by the tenant who is being evicted.

' F

D. N. SANG~VI & SONS v. AMBALAL (Dwivedi, 1.) 59

(b) where during the aforesaid period of ten years, the tenant carrying on any business in the accommodation has left it and the tenant immediatly succeeding has acquired the business of his predecessor either through transfer or inheritance.

(ii) the amount of the annual standard rent in other

cases."

Section 17 provides that where, after ejecting the tenant, the landlord does not occupy the accommodation within two months of obtaining possession, or transfers or re-lets it witnin two years therwf, the rent Controlling Authority may, on an application made in this behalf by the evicted tenant, direct the landlord to put him in possession of the accommodation or to pay him such compensation as the Rent Controlling Authority may think fit. This compensation shall be over and above the compensation which has already been paid to the tenant under s. 12(6). In a similar way, section 18 provides that where the landlord has ejected the tenant for the purpose of repairing of rebuilding the accommodation and does not commence the work of repairing or rebuilding within one month of the date specified in the order for ejectment or fails to complete the work in a reasonable time or having completed the work fails to place the tenant in occupation of the accommodation, the court may, on an application made in this behalf by the tenant, direct the landlord to give possession to the teriant or to pay to him such compensation as the court may think fit. Section 39(1) requires the landlord to inform the Collector whenever any accommodation has fallen vacant or is likely to fall vacant The Collector may then direct him to Jet or not to let it in accordance with the ]lrovisions of the Act. Section 39(2) gives preference to certain class of persons in the matter of letting.

It is not neccessary to mention them here. But the first proviso to s. 39(2) is important for this case. It reads : "Provided that if the landlord has in the information given ...... under s. (I) stated that he needs the accommodation for his own occupation,.the Collector. . . . . shall, if satisfied after due inquiry that the accommodation so needed is proper, direct the landlord to occupy the same under the proviso the accommodation may be allotted to the landlord if he makes out a case that he needs the accommodation for "his own occupation".

A review of these provisions would show that the Act is more strict with respect to the eviction of tenant from a non-residential accommodation than from a residential accommodation. Jn the case of a residential accomodation, section 12(1) (e) provid<S for the eviction of a tenant where it is needed for the residence of the landlord or for any member of his family. But he cannot sue for eviction of a tenant from a non-residential accommodation where he needs it for continuing or starting his major married daughter's business. Nor he can evict a tenant from such accommodation for continuing or starting his brother's business.

Thus while

60 SUPREME l;; OURT REPORTS

( 1974] 3 S.C.R.

cl. (e) of s. 12(1) is more hospitable to the landlord, cl.(f) thereof A is more prtective of. the tenant. Sut-.section (4), (5) and (6) of s. 12 also pomt to this contrast. While the tenant evicted from a residential accommodatio':' gets a respite .of 14 months, the tenant evtc!ed from a non-res1dent1al accommodat1on g€ts not only the said respite but also the. prescribed compensation. Jn many cases the burden of compe!lsation may act as a deterrent to eviction. Having regard to the ngour of cl.(f) of s. 12(1) we think that the phrase"his B buss1ness" should not receive a wide, construction as to the class of persons wh~ may be included in the possessive pronoun 'his' in the phrase, for 1t would be against legislative policy.

Section 39 control' the Jetting of an accommodation, resicential as well as non-residential, which has fallen vacant or is likely to fall vacant. The first proviso to sub-section (2) of s. 39 provides that at the request of the landlord such accommodation may be allotted to him if he needs it "for his own occupation." As section 39 deals with a residential as well as a non-residential accommodation. the expression "his own occupation" in the first proviso should be amplified to read as "his own occupation by way of residence or business".

Clauses (e) and (f) of s. 12(1) are complementary to the fast proviso to s. 39(2). While the first proviso enables the landlord to obtain possession of a vacant accommodation for his own occupation by way of residence or business, section 12(1) (e) enables him to obtain a residential by accommodation for his or his family's residence by ejecting a tenant. Similarly, s. 12(1) (f) enables him to obtai.n a nonresidential accommodation for continuing or starting "his business" by ejecting the tenant. Considering the complimentary nature of s. 12(1) (f), we have little doubt in our mind that the words "for the purpose of continuing or starting his business" in the section should be amplified to read as "for the purpose of his own occupation by way of cotinuing or starting his business." It cannot be legitimately complained that we are trying to redraft cl. (f). This amplification is necessarily implied, for we think that the legislature intended to use the phrase "for the purpose of continuing or starting his business." as a synonym for the phrase "for his own occupation" in the first proviso to s. 39(2) as explained earlier. The words "in his occupation" at the end of cl. (f) fortify our construction. Again, the word "own° in the phrase "his own occupation" should not be discarded as redundant. It seems to us that the Legislature has deliberately used it to add emphasis to the possessive force of the pronoon "his". (see the Shorter Oxford Dictionary, 3rd Edn. P. 1409) It connotes the idea that the accommodation is needed directly and substantially for his occupation.

On this construction of cl. (f) of s. 12(1), it is necessary for the respondent to prove that the accommodation is needed direc/ly and substantially for his occupation for the purpose of continuing or

starting his bu, iness.

The respondent has stated in his evidence that he and his two brothers are carrying on a partnership business in a rented shop in

o. N. SANGltAVI & sONS v. AMBALAL (Dwivedi, /.) 61

Siyaganj. He has further said that he needs the suit accommodation for that purpose. The appeal court has believtd this evidence and has: recorded he finding that the respondent bonafide requires the accom.

modation for his partnership business. But this finding does not: fulfil the conditions of cl. (f) of s. 12(1) as construed by us. Unfortu, nately for him. the respondent did not lead any evidence to show that the accommodation was needed directly and substantially for his occu.

B pation by way of business. He filed the registration e<rtificate •how. ing that the partnership was registered with tlie Registrar of Firms, The certificate will only prove as to who are the partnus of the firm,

nothing more The respondent did not file the deed of partnership.

It would have disclosed whether the r<spondent is a mere sletping partner or a partner who is entitled to manage the business eithtr solely or with other partners, or that they are the sole managing part- C ners.

Jn his examination he has said that he was a partner in the firm. He has also said : "There is no proper accommodation for carrying on business in Indore by the m<mbus of his family" Jn Cross-exami

nation he has said : "In the members of my family there are two of my brothers Nand Kishore and Mani Lal. their wives and children and my mother are included For our residence and running the shop: we netd the disput<d 'shop." No doubt he has stated that he needs, the suit accommodation for his residence also. but the lov.Er courts did not examine the need for reridrnce. Before the appeal court counsel for the parties had stated that the suit for eviction of the tenant shoulq be dis;>osed of only on the basis of s. 12(1) (f). The respondent thus abrndoned his case tased on s. 12 (I) (e) which deals with residential accommodation. So we are concerned with his need for business accommodation. The pasage in his statement, earlier reproduced would seem to sugg~t that his notion of 'hi~ business' is inclusive of his brothers' business in which he may have no conccrn at all.

So 1he possibility of his brothers' S<parate business being sel up in tho suit accommodation is not ruled out. However, we do

not ground our.judgment on this stetement. In his evidence he has said : "We, the three brothers and father are the partners in the shop: There is no person from outside. Before the partnership my father.

used to run the shop. (The father died during pendency of the suit)".

He also said : "We deal in bidi, cigarettes, match<S, tobacco and soap., We also want to have the same business in the disputed shop." IQ neither of these two passag<S nor anywhere else in the evidence he has stated that on fhe terms of partntrship he is entitled to manage the partnership business or even that he would also occupy the suit accommodation along with his partners on obtaining posS<ssion from the appellants. He has also not said that the other parmcrs have agreed to shift the businrn.

If the deed of partnership has excluded him expressly or impliedly from th~ management of firm's business and has made him a sleeping partner, it cannot be held that the accommodation is needed directly and substantially for his occupation hy way of business: Nor he has

power to shift !he business. To sum up, for the reasons already given, his suit should fail.

Counsel have referred us to a large number of decisions. Such of them as appear to us to be relevant in this case will alone be noticed by us. We shall make no reference to the others.

In Rajnik/a/ and Co. (supra) the decision turned on the meaning B of the phrase "business of his own" in cl. 13(3)(vi)(c) of the C.P. and Berar Letting of Houses and Rent Control Order, 1947. The Nagpur High Court confined itself to that single phrase and did not refer to the object and setting of the order. Jn our case the conditions of s. 12(1)(f), as construed by us, are apparently different from those of cl. 13(3)(vi)(c) of the order. So it is not helpful in this case.

In Tansukhdas Chhaganla/ vs. Smt. Shambai(I), the Nagpur High C Court has held that where a tenant carrying on business in the demised shop converts the business into a partnership business and allows the latter business to be carried on in the demised premises, it would amount to sub-letting becaust the partnership "was clearly a personality in law distinct from that of the petitioner himself." There also, the High Court was concerned with cl. 13 of the aforesaid Order. This statement ¢' law does not appear to be universally true. However, as D pointed out earlier, in respect of Rajnik/a/ (supra) it is sufficient for us to say that this case also is not helpful in this appeal.

Commissioner of Income-tax, West Bengal vs. A. W. Figgies and Co.(2) and Dulichand Lakshminarayan vs. The Commissioner of lncomcotax

Nagpur(3) are concerned with the legal character of a firm in the Income-tax Act. It is held that a firm is a distinct entity different from E its partners for purposes of assessment. These decisions are based on particular provisions of that Act which are radically different from the provisions of the Act. So these cases are also not helpful in deciding the present appeal.

Karsandas Ramji vs. Karsanji Ka/yanji(4) and Gundalapalli Rangamannar Clzetty vs. Desu Rangialz(5) discuss the very question which fell F for consideration in Tansukhdas Clzhagan/a/ (supra). It was held on the facts of these cases that the tenant could not be held to have sublet the rented premises to the partnership firm because they retained possession over the premises. These cases thus apply the test of occupation by the tanant in finding out whether he has or has not sub-let.

These are all the relevant Indians cases cited before us. Sri Patel has also relied on three English cases: (1) Clift. v. Taylor,(6) Tunstall v.

G Steigamann(') and Gian Singh & Co. vs. Devraj Narar and Others. (B) Clift takes the same view as Rajnik/al (supra). The decision turned on the meaning of the expression "required the premises for his own occupation" in s. 5(3)(b)(i) of the Landlord and Tenant Act, 1927.

There the landlord carried on a business in a part of the building in

(I) A.I.R. 1954 Nagpur 160.

(2) [1954! S.C.R. 171.

(3) [1956] S.C. R. 154.

(4) A.l.R. 1953 Saurashtra 113.

(5) A.LR. 1954 Madras 182,

(6) [1948] 2 A.E.R. 113.

(7) [1962] 2A.E.R. 417.

(8) [19651 I A.E.R. 768.

D. N. SANGNAVI & SONS v. AMBALAL (Dwivedi, J.) 63

dispute; in another part of it the tenant carried on her business. On the eve of the expiry of her lease, she applied for a new lease. Her application was opposed by the landlord on the ground, inter alia, that he required the premises for his own occupation. The facts found were that he had converted his own business into a partnership business.

There were six partners including himself. The partnership business had extended considerably so that there was scarcity of accommodation.

It app, ared that the landlord needed the demised premises for the purpose of his partnership business. So the issue was whether he needed the premises "for his own occupation." The finding was: "The firm and he himself, as its senior partner, had great need for less cramped head office premises, and, in particular, for the free and full use of the ground floor on street level as essential to convenience of office work, for clients, and for display of notice etc., and indeed, it was necessary for the prosperity of the greatly enlarged and still growing business with its remifications into many allied or compatible departments or activities." It is evident from this finding that the landlord was a managing plrtner and that he himself along with the firm was to occupy the demised premises after getting possession. This decision, far from helping Sri Patel, helps the appellants in view of the construction placed by us on clause (f) of s. 12(1 ). Tunstall (supra) deals with an entirely different set of facts. There the landlord was carrying on business. She gave notice to the tenant that she wanted the rented shop for her own business. The notice was given under the Landlord and Tenant Act. 1954. In the meantime she transferred her business to an incorporated company. The relevant words of s. 3l(g) of that Act are : "to occupy the holding for the purpose .... of the business to be carried on by the landlord." It was held that the business of an inoorporated company was not the business of the landlord the company being a distinct legal pmon different from the landlord. Gian Singh

(supra) was concerned with the construction of a particular clause in a covenant forbidding the tenant from assigning his tenancy to a third p!rson. It is claimed by the landlord that the tenant ha~ assigned the premises to a partnership firm of which he was a partner. On the facts of the case, it was held that there was no assignment. We fail to appreciate .how these cases help Sri Patel.

In some of the cases cited by Sri Patel, 'own' has been interpreted virtually as otiose. Nevertheless what it means in the Act would depend on its own context, for a word may take a colour from its context.

In view of our decision against the respondent on the basis of the construction of s. 12(1)(f) it is not necessary for us to decide several other points raised by Sri Phadke.

The appeal is allowed with costs (one set only). The decision of the courts below are set aside and the suit of the respondent is dismissed.

s.c.

Appeal allowed.

AMBALAL TRIBHUWAN DAS

January 9, 1974

S. N. DWIVEDI

Pradesh Accommodation Control Act 1961

Sec. 12

D. N. Sangha vi & Sons

s. 12

section 12

A. G. Ratnap

V. Patel

A. T. M. Sampatlz

M. M. L. Srivastava

DIVIVEDI

Amba Lal Tribhuwan-Oas

D. N.

Singhavi

October JO, 1964

November 16, 1954

s. 12

Control Act, 1961

s. 12(1)(f)

Ambalal

AMBALAL

Dwivedi

s. 12(l)(f)

Madhya Pradesh High Court

s. 12(l)(f)

s. 12(1)

SUPREME COURT

Section 12

s. 12

Section 12(1)(e)

Section 17

s. 12(6)

section 18

Section 39(1)

Section 39(2)

s. 39(2)

section 12(1)

s. 12(1)

s. 12

s. 12(1)

Section 39

s. 39

section 39

s. 12(1)

s. 39(2)

section 12(1)

s. 12(1)

s. 12(1)

s. 39(2)

s. 12(1)

Siyaganj

s. 12(1)

Indore

Nand Kishore

Mani Lal

s. 12(1)

s. 12

Rajnik/a/ and Co.

cl. 13(3)(vi)(c)

Nagpur High Court

s. 12(1)(f)

cl. 13(3)(vi)(c)

Nagpur High C Court

cl. 13

Rajnik

Income-tax Act

Tansukhdas Clzhagan

Patel

s. 5(3)(b)(i)

Landlord and Tenant Act, 1927

A.l.R. 1953 Saurashtra 113

s. 12(1 )

s. 3

s. 12(1)(f)

Phadke


BARA TI v.

STATE OF U. P.

March 12, 1974

[H. R. KHANNA AND V. R. KRISHNA IYER, JJ.]

Penal Code-S. J-02

Code of Criminal Procedure-s. 411-Power of appellate Court to review at /ar§e evidence on which order of acqui11al by trial court founded-No limftation on power -Evidence of dose relations-If could. be btlitved-Dying declaration-Meet of.

The appellant and his companions were charged with an offence under s. 302 I.P.C: for causing the death of the deceased by pouring acid on him when he was sleeping on his cot on the night of the occurrence. After recording the :first infor4

mation report the police sub-inspector recorded the statement of the deceased and at the dispensary the doctor recorded the statement of the deceased, in both of which he stated that the appeJlant poured acid over his body and caused iiijurics to him. The deceased succumbed to his injuries. Disbelievina the prosecution evidence the trial court acquitted him.· The High Court on the other hand accepted the evidence of all the prosecution witnesses and convicted and sentenced the _appe. llant to life imprisonment but acquitted the remaining two accused.

In appeal to this Court it was contended that the High Court should not have reversed the judgDient of the trial court and the evidence JClied upon by the High Court was not satisfactory. ·

Dismissing the appeal.

HELD : that the approach of the trial court was clearly onable and the Hi.Rh Court was fully justified in setting aside the acquittal of the appellant. It is well settled that in an appeal under s. 417 of the Code of Criminal Procedure the Court has fUll power to review at large the evidence on which the order of acquittal was founded and to reach the conclusion that upon the evidence the order of acquittal should be reversed. No limitation should be placed upon that power unless it be found expressly stated in the Code, but in exercising the power conferred by the Code before reaching its conclusion upon facts the High Cow:t should give proper weight and consideration to such matters as (1) the views of the trial judge as to the credi bility of the witnj (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any real and reasonable doubt and (4) the-slowness of an appellate court in disturbing the finding of fact arrived at by a judge who had the advantage of seeing the witnesses. (576 DF]

In the instant case there was no doubt that the deceased died as a result of acid bums. There was no cogent reason to disbelieve the evidence of the prosecution witnesses. The trial court was wrong in rejectirtg evidence of these witnesses on the ground that they were related to the deceased. Close relatives of the deceased would normally be most reluctant to spare the real assailant and falsely mention the name of another person as the one responsible for causing injuries to the deceased. The deceased would not spare his real assailant and faJsely mention the name of the appellant as one who poured acid over his body. There was no reason to discard the dying declaration made by the api:>ellant to the police sub-inspector. The trial Court was wrong in rejecting the-11ying declaration to the police (F.l.R.) on the ground that the deceased had stated to the doctor that he had become unconscious after the occurrence.· There was nothing in the statement recorded by the doctor to jndicate that the deceased remained unconscious for a long time and as such was not. in position to lodge the F.l.R. The fact that the language used in the dying de clarat; on made to the doctor was rather chaste would not go to show that the said !ltatement could not have been made by the deceased. As to the language used in the dying declaration there is nothing abnormal or unusual in the same person using colloquial language while talking to one person and using refined language while tilking to another person. [574 EF ; 575D.~ 576A]

CRIMINAL APP2LLAT< JL'RISDICTION: Criminal Appeal No. 226 of 1970.

Appeal by special leave from the judgment and order dated the 14th April, 1970, of the Allahabad High Couit (Lucknow Bench) at Lucknow in Criminal appeal no. 260 of 1968.

B A. N. Mu/la and 0. N. Mohindroo, for the appellant.

0. P. Rana, for the respondent.

The Judgment of the Court. was delivered by

KHANNA, J. Barati (26) was tried in the.court of Sessions Judge Sitapur for an offeni; e under section . 302 Indian . Penal Code for causing the death ofLekhai (45). Prabhu (24) and Ram Lal (24) were also tried along with Barati for offence under section 302 read with section 109 Indian Penal Code for having abette<! the commission of the offence of murder. Learned Sessions Judge acquitted all the three accused. On appeal filed by the State the Allahabad High Court convicted Barati under section 302 Indian Penal Code and sentenced him to undergo imprisonment for life. The appeal against Prabhu and Ram Lal was dismissed. Barati then came up in appeal to this Court by special leave. ·

The prosecution case is that the relations between Lekhai deceased and his younger brother Pancham (PW 3) on the one side and Barati accused on the other were strained. All three of them belong to village Nasirapur in district Sitapur. Dispute had been going on between them regarding the construction of a wall. About a couple of months before the present occurrence, Barati effected an opening in the western wall of his house which gave rise to an apprehension that he intended to encroach upon the land belonging to Lekhai and Pancham.

Pancham made complaint dated May 27, 1967 to. the Judicial Panchayat in that connection. The said complaint was still pending when the present occurrence took place. About three days prior to the present occurrence Barati and Prabhu accused after arming themselves with lathis went to the door of Lekhai and threatened to assault him.

Mainku PW intervened and persuaded Barati and Prabhu to go away.

On the evening of July 30, 1967, it is stated, Lekhai deceased after taking his meals was lying on a cot in an open space near his baithak.

Lekhai's son Nagai (PW I) and brother Pancham (PW 3) slept nearby on another cot. A lighted lantern was hanging nearby. At about

IO 30 p.m. the three accused came there. On hearing some sound, Lekhai opened his eyes. Lekhai saw the three accused standing near the cot. Ram Lal accused is the brother-in-law of Barati accused.

At the instigation of Ram Lal ang Prabhu, it is stated, Barati accused, who was holding a bottle, poured acRI over Lekhai. Lekhai cried aloud and shouted that he was being killed. On hearing the cries of Lekhai, his son Nagai and brother Pancham got up from their cot and saw the three accused standing there. Barati accused was holding a bottle in his hand. Nagai and Pancham too raised alarm whereupon /

SUPREME COURT REPORTS [ 1974 J 3 S.C.ll.

Bhallu (PW 2) and Jeorakhan (PW 4), whose houses are nearby, also arrived there with lia:hted torches and lathis in their hands. On seeing them, the three accused' ran into the house of Barati and closed the door from inside. Nagai and others chased the accused and knocked at the door of the house but the accused did not open the door. Nagai, Pancham, Bhallu and Jeorakhan were told by Lekhai that Barati accused had poured acid over him. Badri Pradhan (PW 6) also came there and on his enquiry he too was told by Lekhai that Barati accused had poured acid over him. Nagai, Pancham, Bhallu, Jeorakhan and Badri Pradhan PWs saw acid present all over the body of Lekhai deceased. His clothes too were stained with acid. At the suggestion of Badri, Lekhai was then taken in a bull(\ck cart by Nagai and Pancham PWs to police station Sandhana at a distance of two miles from the place of occurrence. Report Ka I was lodged at the police station at 2 30 a.m. by Lekhai. In that report Lekhai stated that Barati accused had poured acid over his body. The names of Nagai, Pancham, Bha!lu and Jeorakhan were also mentioned in the first information report and it was stated that they had seen the accused present near his cot when l.ekhai had raised alarm. The motive for the assault, as given earlier, was also given.

After recording the first informa\ion report, Sub Inspector Asrarul Haq (PW 18) recorded statement Ka 22 of Lekhai. In that statement Lekhai reiterated what he had stated in the first information report. The Sub Inspector thereafter recorded the statements of Nagai and Bhallu PWs. Lekhai was then sent to Misrikh dispensary at a distance of about 12 miles from the place of occurrence. The party arrived at the dispensary at about 3 p.m. on July 31, 1967. Soon there

after Dr. Bisht (PW 5) recorded statement Ka II at 3 p.m. ofLekhai deceased. Lekhai was at that time in a fit condition to make statement.

In that statement also Lekhai stated that Barati accused had poured acid over his body and as such had caused him injuries. The injuries of Lekhai were examined by Dr. Bisht at 3·15 p.m.

As the condition of Lekhai was serious, Dr. Bisht referred the case of Lekhai to District Hospital Sitapur. Lekhai was then taken to the District Hospital Sitapur. The party arrived in the hospital at about 4 45 p.m. the same day but about an hour thereafter at 5 45

p.m. Lekhai succumbed to the injuries. Post mortem examination on the body of Lekhai was performed by Dr. N. Verma on the following day, i.e. August I, 1967, at 4 p.m.

Barati accused absconded after the occurrence. Procceaings under sections, 87 and 88 of the Code of Criminal Procedure were initiated against him. Barati surrendered in court on August 17, 1967.

He was thereafter put under arrest.

At the trial the plea of Barati accused, with whom we are concerned was denial simpliciter. No evidence wa; produced in defence.

The trial court did not place reliance upon the evidence of Nagai, Pancham, Bhallu and Jeorakhan PWs. The reason which weighed

• c

..._ .

• G

with the trial court was that the witnesses were related to the deceased.

The evidence with regard t~ the dying declarations of the deceased was not accepted by the tnal court. The deceased, in the opinion of the trial court, became unconscious and as such was not in a position to lodge first information report Ka 1 or to make statement Ka

22. The trial court also rejected dying declaration Ka 11 recordeCJ by Dr. Bisht as it found the language of the same to be chaste and the same, in the opinion of the trial court, was not expected of a rustic living in a village. In the reult the accused were acquitted.

On appeal the learned Judges of the High Court accepted the evidence of Nagai, Pancham, Bhallu and Jeorakhan PWs as well as the evidence about the dying declarations made by the deceased.

The High Court also took note of the fact that Barati accused had a motive to assault the deceased and that when witnesses knocked at his door, he instead of professing his innocence, did not open the door. Reference was also made to the fact ihat Barati accused had absconded after the occurrence. In the result the appeal against Barati accused was accepted, and he was convicted and sentenced as above. So far a~ Ram Lal and Prabhu accused were concerned, the High Court gave them the benefit of doubt and as such acquitted them.

In appeal before us Mr. Mulla on behalf of the appellant has urged that the High Court should not have reversed the judgment of acquittal of the trial court in respect of the appellant. According to the learned counsel, the evidence relied upon by the High Court is not satisfactory and as such the conviction of the appellant cannot be based upon it.

In reply Mr. Rana has canvassed for the correctness of the view of the High Court.

.. It cannot be disputed that acid was poured on Lekhaideceased on the night of July 30, 1967 as a result of which he died. Dr. Bisht, who examined Lekhai deceased on July 31; 1967 at 3·15 p.m., found the following injuries on his person :

"Burnt area of black colour on the left side of the face, on both sides of the neck, on thefront part of the whole chest, on . ~··the right arm, right fore-arm, and back part of right palm on the front and back part of both shoulders."

Dr. Bisht also found black marks caused by running down of fluid on the front and outer part of abdomen and on the vertebral column. Burnt areas of black colourwere found by the doctor on the front and inner part of right thigh, inner and upper part of right leg and inner part of the left thigh i.n the middle. The injuries, i!' te opinion of the doctor, were greVJous and were caused by acid m liquid form. The injuries were about 12 to 24 hours old.

Lekhai died at 5 45 p.m. on July 31; 1967. Dr N. Verma who performed the post mortem examination on the body of Lekhai on August I, 1967 at 4 p.m. found the following injuries on the body :

SUPREME COUR1' REPORTS

[ 1974 J 3 S.C.R.

"I. Cor; osive burns area. There were marks of acid, on the ·left side of the face, in front and.bth sides of the neck, in front of the chest and in front, up and back side of the shoulders ; upper side and in front of' the right arm and in front and in several places of the other arm. In fron.t apd oute.r .side , .. ofright thigh and in front inside of left shoulder, in front and .. down put of the right leg and both sides of the back. : ..

The marks on account of puring of acid exisied on the leftside of the face, and also existed on both sides of the chest; abdomen and shoulders, the inner part of the skin and flesh of front of . the chest, neck, sid.e and several places became discoloured by the action of acid.

Injuries. were on account of corrosion burns which were upto III, IV, V degree." On internal inspection the brain ani thin skin cover were found to be

congested. The same was the condition of the lcngs, 1arynx,. trachea and bonei . .The heart was full of blooj. while the sto:nach was empty.

Death, in the opinion of the dootor, was due to shook as a re>ult of the pouring of acid: The injuries were suffi:ient to cause death in the ordinary courseof nature. ,. .

The case of the prosecution is that it wa• Barati accused who poured acid over Lekhai deceased as a result of which Lekhai.died.

Jn support of this allegation, the prosecution has relied, in the first instance; upon the four dying declarations of Lekhai. deceased. The first dying declaration of the deceased was the.one made by him to Nagai, Pancham, Bhallu. and Jeorakhan immediately after the occurrence. It is in the evidence of these witnesses thaf they Were told .immediately after the occurrerice that it was Barati accused who had poured acid over him. There appears to be no cogent reason to disbelieve the above evidence of the witnesses. The trial c()urt, in our opinion, was wholly in error in rejecting the evidence of these witnesses on the ground that they were. related to .the deceased. Close relatives . of the. deceased would normally be m~; t reluctant to spare the real assailant arid falsely mention the naine of another person as the one responsible for causing injuries to .the deceased ... Lekhai deceased also told Badri Pradhan (PW 6) who arrived at the.place of occurrence on hearing alarm that Barati accused had poured acid over him .. No cogent ground.has been shown as to why the above evidence of Badri Pradhan be not. accepted.:. All that was suggested on behalf or the accused was that Badri was inimical to Prabhu accused .. If that was so; no reason has been shown as to why Badri should attribute the major part in the assault on the deceased to Barati accused and not to Prabhu.

It is alsci plain .that Lekhai deceased musi have' seen as. to ·, who was the person who.poured acid over his body. The moment the acid first came in contact with his body, the immediate. reaction of Lekhai as or any.other person, would be to sie as to who was responsibld for all that. Even if the assailant took only a few seconds to pour acid over the body of Lekhai, the latter would not have failed to fix the identity of the assailant i:ltiring that short time. It is significant that Bara ti was no sfrariger to Lekhai. They were neighbours and were well known to each other.· It is, in our opinion, most difficult

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to believe that Lekhai would spare his real ass?.ilant and falsely mention the name of Barati as one who had poured acid over his body.

Apart from the oral dying declarations made by the deceased to Nagai, Paticham, Bhallu, Jeorakhan and Badri Pradhan PWs, we have the evidence ()f Sub Inspector Asrarul J{aq that the deceased lodged report Ka I at the police station at 2 30 a.m. when the deceased was brought there in a cart. The deceased stated in that report that Barati accused had poured acid over him and thus caused him injuries. Sub- Inspector, Asrarul Haq thereafter recorded statement Ka 22 of Lekbai, deceased. In that statement also the deceasd reiterated that it was Barati accused who had poured acid over him and thus caused him injuries. We see no particular reason to diibelieve the evidence adduced by the prosecution regarding the dying declaration of Lekhai deceased contained in report Ka I and statement Ka 22.

The trial court rejected the above evidence because it was of the view that Lekhai deceased, as mentioned by him in dying declaration Ka 11 made .to Dr. Bish!, had become unconscious af!er the occurrence.

There was, however, nothing in that statement to indicate that Lekhai remained unconscious for a long time and as such was not in a position to lodge the first information report at the police station or make statement /(a 22 to Sub Inspector Asrarul Haq. The view taken by the trial court in rejecting the above evidence, in our opinion, was clearly erroneous.

Another dying declaration upon which prosecution has placed reliance was Ka 11 recorded by Dr. Bish! in Misrik\l dispensary.

According to' Dr. Bisht, Lekhai was in possession of his senses when he made statement Ka JI.. Dr. Bisht is a wholly disinterested and respectable witness and there appears no reason as to why his statement regarding the dying declaratic>n Ka JI be not accepted. Dying declaration Ka II is a brief document consisting of about 9 or 10 lines. The statement incorporated in dying declaration Ka 11 is very simple and relates to the pouring of acid by Barati accused on Lekhai deceased. The fact that the language usd in it is rather chaste would not go to show that the said statement cou.Id not have been made by Lekhai deceased.

The statement of Lekhai in Ex. Ka II that Barati accused had poured the liquid from a bottle on him clearly establishes the guilt of Barati accused.

Reference was made on behalf of the accused to the fact that statement Ka 11 was sent by Dr. Bisht to Additional District Magistrate not immediately after recording that statement but on the third day.

According to Dr. Bisht, the delay took place because of rush of work.

No adverse inference, in our opinion, can be drawn from the fact that the dying declaration was sent by Dr. Bisht on the third day after recording the same. The dying declaration bears the thumb impression of Lekh>!i deceased. Lekhai was sent from Misrikh dispensary soon after the dying declaration was recorded and his injuries were examined. There could be no possibility of any sucl, dying declaration being prepared subsequently.

SUPREME COURT REPORTS

[ 1974 I 3 S.C.R.

Mr. Mulla has pointed out that the language used in dying declaration Kall is chaste while that used in report Ka! as well as in statement Ka 22 has some words which are spoken by villagers. This fact, in our opinion, is not of much significance because there is nothing abnormal or unusual in the same person using colloquial language while talking to one person and using refined language while talking to another person.

Apart from the dying declarations of the deceased, we have the evidence of Nagai, Pancham, Bhallu and Jeorakhan PW s that they saw Barati accused with a bottle in his hand near the cot of the deceased when those witnesses got up on hearing alarm. The High O>urt aci:cptcd the evidence of these witnesses and we see no particular reason to take a different view. As mentioned earlier, the reason given by the trial court in rejecting the evidence of these witnesses was wholly erroneous.

It is well settled that the High Court in an appeal under secfoin 417 of the Code of Criminal Procedure has full power to review at large the evidence on which the order of acquittal was founded and to reach the conclusion that upon the evidence the order of acquittal should be re versed. No limitation should be placed upon that power unless it be found expressly stated in the Code, but in exercising the power conferred by the Code and before reachingitsconclusion upon fact the High Court should give proper weight and consideration to such matters as {I) the views of the trial judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, presumption certainly not weakened by the Jact that be bas been acquitted at bis trial; (3) the right of the accused to the benefit of any real a11d reasonable doubt and ( 4) the slowness of an appellate court in disturbing a finding of fact arrived at by a judge who had the advantage of seeing the witnesses. Keeping the above principles in view as well as the fact that the approach of the trial court was clearly unreasonable, the High Court, in our opinion, was fully justified in setting aside the acquittal of Barati accused. There is, in our opinion, no force in the appeal which fails and is dismissed.

P.B.R.

Appeal dismissed.

STATE OF U. P

H. R. KHANNA

V. R. KRISHNA IYER, JJ.

Penal Code

Code of Criminal Procedure

s. 411

s. 302

I.P.C

s. 417

Code of Criminal Procedure

B A. N. Mu

N. Mohindroo

P. Rana

KHANNA

Barati

Penal Code

ofLekhai

Prabhu

Ram Lal

Barati

section 302

section 109

Indian Penal Code

Allahabad High Court

Barati

section 302

Indian Penal Code

Lekhai

Pancham

Nasirapur

Sitapur

Pancham

May 27, 1967

Prabhu

Mainku

July 30, 1967

Nagai

Ram Lal ang Prabhu

Nagai

Bhallu

Jeorakhan

Jeorakhan

Badri Pradhan

Badri

Sandhana

Bha!lu

l.ekhai

Asrarul Haq

Lekhai

July 31, 1967

Bisht

Bisht

District Hospital Sitapur

N. Verma

August I, 1967

Code of Criminal Procedure

August 17, 1967

Mulla

Rana

Lekhaideceased

July 31; 1967

Bhallu

Badri Pradhan

Bara

Paticham

Asrarul J{aq

Lekbai

Bish

Asrarul Haq

Code of Criminal Procedure