. J

DAITONPANT GOPALVARAO DEVAKATE

VITHABRAO MARUTHIRAO JANAGAVAL

April 3, 1975

[V. R. KRISHNA !YER AND N. L. UNTWALIA, JJ.]

Transfer of Property Act (4 of 1882), Sections 106, !JO ond 111-Scope of.

The appellant was tenant under the respondent's predecessor for a period of one year tenancy commencing from April 9, 1945. The _respondent pur- _ chased the property in August, 1968 and the appellant became his tenant .

On November 19, 1968 the respondent gave notice to the appellant terminating C his tenancy and asking him to deliver possession by December 8, 1968 .. There after he filed an application for eviction of the appellant under the Mysore Rent Control Act, 1961. The trial court dismissed the application but the first appellate court allowed the appeal and the High Court confirmed the order in revision.

In appeal to this Court it was contended, inter alia, that there was no valid notice terminating the tenancy.

.Allowing the appeal to this Court,

HELD : ( 1) There are no grounds justifying the interference with the findings of fact recorded by the first appellate court and the High Court that the respondent required the premises reasonably and bona fide for his personal occupation, and that no, hardship, would be caused to the tenant by passing E , the decree. -

(2) The lease was not for a manufacturing purpose and the holding over by the appellant under s. 116 of the Transfer of Property Act created a month to-month tenancy terminable by 15 Q'ays notice ending, with the tenancy month given under s. 106 of the Transfer of Property Act. [70B].

(3) Under s. 110 of the Transfer of Property Act, in computing the period of one year the date of commencement of the tenancy, that is, April 9, 1945, had to be excluded. Therefore, the one year's tenancy ended on April 9, 1946. By holding over the tenancy _from month-to-month started from April 10, 1946 ending on the 9th aay of the following month. Therefore,

the view taken by the first appellate court and by the High Court that the one year's tenancy ended on the 8th April, 1946 and hence the monthly tenancy started from the 9th day of the month ending on the 8th day of the following month isclearly erroneous in law.

That being so there was no valid and" G legal termination of the contractual tenancy. [70 E, F & H].

Benoy Krishna Das and others v. Salsiccioni and others 59, Indian Appeals, 414, applied.

( 4) The appellant was a contractual tenant who would have become a statutory tenant within the meaning of s. 2 (r) of the Mysore Act if he ould have con.tinued in poss.ession after the, termination of the tenancy in his favour.

Without term1nation of the contractual tenancy by a valid notice H or other mode set out in s. 111 of the Transfer of Property Act it was not open to the landlord to treat the' appellant as a statutory tenant nd seek his eviction without service of a valid notice to quit. [71 DJ.

Ganga Dutt Murarka v. Kartik C.andra Das and others [1961] 3 S.C, R. 813 and Pooran Chand v. Mori/al and others [1963] 2 Suppl. S.C.R. 906, referred to;

CIVIL APPELLATE JURISDICTION : Civil Appeal No. l!SO(N) of 1974.

Appeal by special leave from the judgment and order dated the 29th March, 197 4 of the Karnataka High Court in C. Revn. Petn.

No. 1054 of 1973.

V. S. Desai and R. B. Datar for the appellant.

Y. S. Chilale, P. C. Kapur and V. N. Ganpule, for the respondent.

The Judgment of the Court was celivered by

UNTWALIA, J.-The defendant-appellant in this appeal by special leave was a tenant of the suit premises situated in the town of Hubli when the plaintiffs-respondent purchased the property from the original owners by two sale deeds executed in August, 1968.

The appellant thereafter became a tenant under the respondent.

The latter gave a notice purporting to terminate the former's tenancy and thereafter filed an application under section 21(1) (a) and (h) of the Mysore Rent Control Act, 1961-hereinafter referred to as the Act, for his eviction from the suit premises consisting of two shops. The appellant resisted the application for eviction on several grounds. The Trial Court dismissed it but on appeal by the landlord the District Judge allowed the application for eviction.

The tenant filed an-application in revision under section 50 of the Act in the Karnataka High Court.

The High Court dismissed the revision application.

Hence this appeal.

The issue as to the appellant's liability to be evicted on the gronnd mentioned in clause (a) of sub-section (1) of section 21 of the Act was not pursued and eventually given up.

The learned Additional Munsif who tried the application in the first instance held against the respondent on the question of the premises being reasonably and bonafide reqnired by the landlord within the meaning of clause (h).

He also held that having regard to all the circumstances of the case greater hardship would be caused by passing a decree for eviction than by refusing to pass it.

In that view of the matter also as provided in sub-section ( 4) of section 21, the Trial Court refused to pass a decree.

It further held that the lease was for a mam1factur- G ing purpose or at least the dominant purpose was a manufacturing one, it was a yearly lease and could not be terminated by less than 6 months notice or in any view of the matter the .notice given even treating the tenancy to be a monthly one was illegal and invalid.

H The learned District Judge in appeal has reversed all the findings of the Trial Court.

He has held that the landlord required the premises reasonably and bonafide for occupation by himself and that no hardship would be caused to the tenant by passing a decree for eviction.

He also held that the lease was not for a manufacturing purpose nor a yearly one. The notice terminating the monthly tenancy was good and valid.

The High Court in revision has affirmed the view of the Appellate Court on all the controversial issues.

, ..

DATTON PAN1' v. VITHABRAO ( Untwalia, J.) 69

Mr. V. S. Desai, learned counsel for the appellant urged three A points in support of 1his appeal :

(1) That the findings of the lower Appellate Court and the High Court in regard to the reasonable anc! bonafide requirec ment of the suit premises for occupation by the landlord are vitiated in Jaw.

B ( 2) The finding on the question of comparative hardship of the landlord and the tenant has been recorded by committing errors of law.

(3) That the notice terminating the tenancy was invalid becanse the lease was a yearly. one being for a manufacturing purpose am:! even if the tenancy be a monthly one, the notice C was not in accordance with law.

Mr. Y. V. Chitaley controverted the submissions made on behalf of the appellant and added in the alternative that the appellant was a statutory tenant and hence no notice was required to be given before seeking a decree for eviction against him.

The appellant had taken the suit premises on rent for a period of one year from the responc!ent's predecessors-in interest by a writt1; n

document Ext. P-12 dt. 15-6-1945. , The tenancy commenced from 9-4-1945, The respondent purchased the property in August, 1968

and gave a notice on 19-11-1968 which was served on the appellant on 21-11-1968 terminating his tenancy and asking him to deliver E 'Possession by the 8th December, 1968. We have been taken through the portions of the judgments of all the three courts below and the relevant pieces of doc\llllentary anc! oral evidence adduced by the parties.

On the question of the respondent requiring the suit premises reasonably and bonafide for his personal occupation as also on the point of comparative hardship two views were possible on the materials in the record of this case.

A view in favour of the F tenant was taken by the Trial Court but against him by the Appellate Court. The findings of fact recorded by the Appellate Court .were not found to be snch by the High Court as to jnstify the exercise of its revisional power under section 50 of the Act. It is tme that the power conferred on the High Court unc!er section 50 is not as narrow as the revisional power of the High Court under section 115 of the Code of Civil Procedure. But at the same time it is not G "wide enough to make the High Court a second court of first appeal We do not think that there are such pressing grounds in this case which would justify our, upsetting the views of the High Court con- , . firming those of the lower Appellate Court. It is not necessary to . -discuss the first two points urged on behalf of the petitioner in any

detail anc! we reject them on the short ground mentioned above.

Coming to the question of notice we would like to state at the outset that on the basis of the evidence in the case the Appellate . Court took the view that the lease was not for a manufacturing pur- : pose.

The lease was for one year which expired on 9-4-1946.

The

~nant held over under section 116 of the Transfer of Property Act.

Ext. P-12 did not mention the purpose of the lease. The learnr.d

District Judge was of the opinion that the 'appellant started !llll!rinfactnring Soda in a small portion of the L'emised, premises after the lease for one year was taken. In any view of the matter the ._dominant purpose of the lease was not a manufacturing one but v/iis the sale of aerated water.

The High Court has affirmed this fintilhg ia revision.

We do not feel inclined to upset the findings of 'tile twocourts below in this regard. If the purpose of the lease was not a. manufacturing one, then the holding over under section 116 cof the

Transfer of Property Act created a month-to-month tenancy teniinable by 15 c!ays notice ending with the tenancy month given under sectio11.

106 of the said Act.

The appellant, however, must succeed on the last submission made on his behalf that even so, the notice was invalid.

As already stated the notice purported to terminate the tenancy by the 8th December~

1968 treating the month of tenancy as commencing froirl the 9th: day of a month and ending on the 8th day of the month''following_

The requisite period of 15 c!ays was given but the defei:l in the notice was that it did not expire with the end of the month of the tenancy.

The end of the month of the tenancy was the 9th day and not the 8th day as wrongly held by the High Court affirming the view of the lower Appellate Court. ··

Under Ext. P-12 the appellant agreed to pay Rs. 600/- as rent for one year from 9-4-1945.

The tenancy obviously, theJefore, commenced from that c!ate.

That being so, under section 110 of the Transfer of Property Act in computing the period of one year the date of commencing i.e. the 9th day of April, 1945 had to be excluded.

The one year's tenancy ended on the 9th April, 1946. It is clearly mentioned to be so in Ext. P-12 in these words :

"I shall make use and enjoyment of the saic!. shops as a. tenant for one year and deliver your shops to you without objections on 9-4-1946".

By holding over the tenancy from month-to-month, .. started from the 10th April, 1946 ending on the 9th day of the following month.

This view finds support from the Rent Receipts Ext. D-1 and D-I(a).

The evic!ence on behalf of the respondent that there was a mistake inthose receipts is not correct as the said receipts are in conformity with Ext. P-12.

On the other hand Ext. P-13 and Pr 14, the other two Rent Receipts, being not in accord with Ext. p:12 could not be relied on. In Ext. P. 16 the Controller by his order dated 29-9-1963 while fixing the fair rent of the suit premises at Rs. 1050/- per year had fixed it with effect from 10-4-1963.

That also ·shows that the tenancy month commenced from 10th cay of a month and ended on the 9th day of the following month.

The view taken by the learned District Judge as alfo by the High Court that the one year's tenancy ended on the 8th April, 1946 whenthe tenant agreed to deliver possession on the 9th April and hence the monthly tenancy started from the 9th day of the, month ending on the 8th c!ay of the following month is clearly erroneous in law.

' !

............. -

DATTON PANT v. VITHABRAO ( Untwalia, J,) 71

That being so there was no valicl and legal termination of the contrac- A ma1 tenancy.

In Benoy Krishna Das and others v. Salsiccioni and others(1) on the facts of that case Lord Tomlin delivering the judgment of the Judicial Committee of the Privy Council held the notice to be valid.

A lease for residential purposes• of certain property in Calcutta was B expressed to be from June 1, 1921, for the ensuing four years. The tenant held over. The monthly tenancy was sought to be terminated by the lessee stating therein that possession would be given up on March 1.

The landlord's contention that the notice ended on Feb- • ruary 29, 1928 was not accepted.

The four years lease was held to have ended on midnight of June 1, 1925. The monthly tenancy ' began on the 2nd of the month ending on the 1st ancl so the notice C was held to be valid.

We do not think that the alternative argument put forward by Mr. Chitaley that no notice was necessary in this case is correct. The appellant was a contractual tenant who would have become a statutory tenant within the meaning of clause (r) of section 2 of the D Act if he would have continuecl in possession after the termination of the tenancy in his favour. Otherwise not. Without termination of the contractual tenancy by a valid notice or other mode set out jn Sec. 111 T. P. Act it was not open to the landlord to treat the apellant as a statutory tenant and seek his eviction without service of a notice to quit.

In support of his contention Mr. Chitaley placed reliance on two decisions of this Court namely Ganga Dull Murarka v. Kartik Chandra Das and others(') and in Pooran Chand v. Motilal & others('). Neither of these supports his contention.

In the case of Ganga Dutt Murarka a passage from the clecision of the Federal Court in the case of Kai Khushroo Bezonee Capadia v. Bai Jerbai Hirjibhoy War- F den and another(') was quoted with approval.

A portion of it may be usefully quoted here also.

It runs thus : .

.I- "In such circumstance, acceptance of rent by the landlord from a statutory tenant whose lease has already expired could not be regarded as eviclence of a new agreement of tenancy, and G it would not be open to soch a tenant to urge, by way of defence, in a suit for ejectment brought against hinI, under the provision of Rent Restriction Act that by acceptance of rent a fresh tenancy was created which had to be determined by a fresh notice to quit. '

The tenancy of the appellant in the above case was found to have bee!1 determined by efflux of time and subsequent occupation H was not m pursuance of any contract, express or implied but by virtue of the protection given by successive statutes. In the case of

(I) 59, Jndian Appeals, 414.

(2) [1961] (3) S.C.R. 813.

(3) [1963] (2) Suppl. S.C.R. 906.

(4) !1949] Federal Court Reports, 262.

!OSC/75-6

A Pooran Chand, Subba Rao, J. as he then was, said at 912, when a similar argument was advanced before him :

"It is not necessary in this appeal to express our opinion on the validity of this contention, for we are satisfied that the term of the tenancy had expired by efflux of time; and, therefore, no question of statutory notice woulcl arise."

No notice is necessary if a lease of immovable property determined under clause (a) of section 111 of the Transfer of Property Act by efflux of the time limited thereby.

C In the result we ~!low this appeal and set aside the decree of eviction passed against the appellant and in favour of the respondent by the lower Appellate Court as affirmed by the High Court. . In the circumstances we shall make no order as to costs.

Appeal allowed.

V.P.S.

J

DAITONPANT GOPALVARAO DEVAKATE

VITHABRAO MARUTHIRAO JANAGAVAL

N. L. UNTWALIA, JJ.

Transfer of Property Act

Sections 106

s. 116

Transfer of Property Act

s. 106

Transfer of Property Act

s. 110

Transfer of Property Act

s. 2

s. 111

Transfer of Property Act

section 21(1)

Mysore Rent Control Act, 1961

section 50

section 21

section 21

section 50

section 50

section 115

the Code of Civil Procedure

section 116

Transfer of Property Act

section 116

Transfer of Property Act

section 110

Transfer of Property Act

section 2

Sec. 111

Rent Restriction Act

section 111

Transfer of Property Act


DHANRAJ

SMT. SURAJ BAI

April 3, 1975.

[V. R. KRISHNA IYER AND N. L. UNTWAL!A, JJ.J

Jlindu ,4._doptions and Maintenance Act. 1956-Ss. 6(ii), 9 and 11-IJ step-mother could give step-son in adoption in the absence of natural parents- If a nlaior could be given in adoption.

Section 6(ii) of the Hindu Ao.option and Maintenance Act, 1956 states C that no adoption shall be valid unless the person giving in adoption had the <:apacity to do so.

Section 9(1) says that no -person except the father or mother or the guardian of a child shall have the capacity to give a child in adoption.

Section 11 (vi) says that the child to be adopted must be actually given ancl taken in adoption by the parents or guardian concerned.

The appellant, who was 21 years old, was adopted by the respondent and her husband.

His natural parents having been dead, he was given in D adoption by his step-mother.

Subsequently, however, the respondent and her husband filed a suit questioning the validity of the adoption and for declara~ tion that the adoption was illegal and invalid. The appellant claimed that under the Hindu Adoptions and Maintenance Act, 1956 the step-mother was -competent to give him in adoption. '

The trial court held that the adoption was invalid on the grounds that the appellant had been given in adoption by his step-mother, who was not E competent to "do so.

The High Court upheld the view of the trial court.

Dismissing the appeal to this Court.

HELD : (1) Te. 'physical at of giving and receiving was absolutely necessary to. the vahd1ty of adoption under the Hindu Law as it existed before the co!D-1ng into fo\ce of the Act.

Identical is the position under the Hindu F dopttons and Maintenance Act, 1956. Nor is it different as to the incapacity of the step-mother to give her step-son in adoption. [76 E].

fapa1nma V.· V. Appa .Rau and Ors., LL.R. 16, Mad. 384 and Haribhau ttJnd Anr. v. A1abrao Ra1n1i lngale and Ors., A.I.R. 1947 Nagpur 143 referred o .

. 1 (2) Under_ s. 9(1) of. the fl.ct. even the guardian of a child has the capa c1 Y to give him or her in au.option.

But the step-mother as such has not G

~~r:t}~he~n~~~ea~~f~~e:~ {7~ Fj. (1) must necessarily mean th~

and (!t

1 h: f:; r ~~h!r s. t~t t:0erm 'mother' means the natural mother tance etc., is distinct ad. differnt fr~~ for tt:-1a.ny h1rposes such as inherian adoptive mother takes the place of rng1tbe e~, w1{ e_, generally speaking, The necessity of the explanation (i) t 9 r o a intents and purposes. mother from the expression mother 80 h:t arde Jo exclude the adoptive H competent to give the adopted son in adoptiont a op vbe dmother may not be ' o some o y else. [76 HJ.

(4) Under the Jaw as engrafted in 10 f capable of being taken in adoption if h s. b he Act, a person is not ~5 Ydearlsl and that is the reason that thee ~rJ chJd_ .. chmplbeeted the ae of an . The use of the word " ers ,, . .!. as en used 1n ss. ment of s. 10 is not for the pu!'pos on fib~· ~(u1) and at the. commencee o nng1ng about any ciifference in

SUPREME COURT RF.PORTS

[1975J SUPP. S.C.R.

' law in regard to the giving of the child.

If the custom permits a person of the age of 15 years or more to be taken in adoption then even such person would be the child of the father or the mother. 'Child' would not necessarily mean in that context a minor child.

If the child is a minor, in the absence of the father or the mother a guardian appointed by the will of the child's father a mother and a guarOian appointed or declare-d by a court, would be competent to give the child in adoption.

But in case of a major in the absence of the father or the mother, no body will be competent to give him in adop- . tion because no such provision has been made in the Act to meet such a contingency.

The scheme of the Act \Vas not to make a child of J 5 vears of age or above fit to be taken in adoption.

Exception \:vas inade in favour of a custom to the contrary. [77 C~F]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 476(N) of 1973.

From the Judgment and decree dated the 23rd August. 1973 of the Rajasthan High Court in D. B. Civil Regular First Appeal No. 70 of 1966. -

S. M. Jain for the appdlant.

L. M. Singhvi, Urmila Sarur, A. Gupta and .T. K. Jain for the D respondent.

The Judgment of the Court was delivered by

UNTWALIA, J.-In this appeal filed by certificate of the Rajasthan High Court we arc concerned with the question of the legality and validity of the adoption of the appellant by the husbane of the respondent.

Amichand, respondent's husband, adopted the appellant with the consent of the respondent on the 18th November, 1959 and executed a registered c!eed evidencing the fact of adoption.

The appellant at that time was 21 years of age.

Both his natural father and mother were dead. He had a step.mother Bhuri Bai with whom the appellant was residing at the time of the impugned adoption. The appellant was given in adoption by his step-mother.

Subsequently the respondent's husband ane the respondent filed a suit in the year 1963 against the appellant impeaching his adoption on various grounds and for a declaration that the adoption was illegal and invalid. The appellant contested the suit and. inter a/ia, pleaded a custom applicable to the parties according to which a person being of the age of 15 years or more could be taken in adoption.

The custom was pleaded in view of the provision of the law contained in clause (iv) of section 10 of the Hindu Adoptions and Maintenance Act, 1~56--; hereinafter referree to as the Act.

The appellant also stated m his written statement that under the Act the step.mother was competent to give him in adoption.

Several issues were framed inchrding an issue regarding the cus tom as pleaded.

Issue No. 1 A by. agreement of te paties without the adducing of any evidence was tned as a prehmmary ISsue by the Trial Court. The said issue runs as follows :

"Whether the ac!option of Dhanraj is invalid on the ground that he has been .given in adoption by his step-mother Mst.

Bhuri Bai."

DHANRAJ v. SURAJB~I (Untwalia, J.) 75

The Trial Court decided the issue in favour of the plaintiffs and A against the defendant.

The latter filed a first appeal in the High Court.

D11ring the pendency of the appeal, plaintiff no. 1 died. The -0nly respondent left was his wic!ow.

The High Court •has held that the step-mother was not competent to give the appellant in adoption and maintained the dismissal of the. snit on that preliminary issue.

Hence this appeal.

The only point, therefore, which falls for determination in this appeal is whether the step-mother was competent to give the appel-

!Jant in adoption. If not, whether the adoption is void 'I

In Mayne on Hindu Law and Usage, eleventh edition is founcl a passage at page 226 to say- C

"No other relation but the father or mother can give away a boy.

For instance, a step-mother cannot give away her stepson, a brother cannot give away his brother.

Nor can the paternal grandfather, or any other person. Nor is a woman competent to give in adoption her illegitimate son born of adulterous D intercourse.

It is well settled that the parents cannot delegate their_ authority to another person, for instance, a son, so as to enable him, after their death, to give away his brother in adoption, for the act when done m11St have parental sanction. And, therefore, even an adult orphan cannot be adopted, because he can neither give himself away, nor be given by anyone with authority to do so." E

In Papamma v. V Appa Rau and others(') Muttusami Ayyar and Best, JJ. have held that under the Hindu Law the step-mother could not give her step-son in ac!option.

An identical view has been expressed in the case of Haribhau and another v. Ajabrao Ramji lngale and others(').

...

The question for consideration is whether the law that a step- F

mother could not give a step-son in adoption is changed after com- - ing into force of the Act.

Section 4(1) of the Act provides :

"Save as otherwise exprei; sly provided in this Act,-

( a) any text, rule or interpretation of Hindu law or any custom or usage as part of that law in force immediately before the commencement of this Act shall cease to have effect with respect to any matter for which provision is made in this Act".

Section 5 ( 1) says :

. "No adoption shll be made after the commencement of this Act by or to a Hindu except in accordance with the provi-

(J) I.L.R. 16, Mad. 384.

(2) A.I.R 1947, Nagpur, 143.

SUPREME COURT REPORTS

[1975} SUPP, S.C.R.

sions contained in this Chapter, and any adoption made in contravention of the saio provisions shall be void."

No adoption shall be valid as mentioned in section 6 unless-

"(ii) the person giving in adoption has the capacity to do so ;"

Other conditions for a valid adoption under the Act are stated in section 11 which provides :

"In every adoption, the following conoitions must be complied with : -

(vi) the child to be adopted must be actually given and taken in adoption by the parents or guardian concerned or under their authority with intent to transfer the child from the family of its birth or in the case of an abandoneo child or a child whose parentage is not known, from the place or family where it has been brought up to the family of its adoption : "

The physical act of giving and receiving was absolutely necessary to the validity of an adoption under the Hindu Law as it existed before coming into force of the Act : vide para 489 at page 554 of Mulla's Hindu Law, Fourteenth Edition.

Identical is the position unoer the Act.

Nor is it different as to the incapacity of the stepmother to give her step-son in adoption.

Section 9 of the Act enumerates the persons capable of giving in adoption.

Sub-section ( l) says :

"No person except the father or mother or the guardian of a child shall have the capacity to give the child in adoption."

The departure in the Jaw is that under the Act even the guardian of a child has the capacity to give him or her in adoption.

But the step-mother as such bas not.

The father or mother mentioned in sub-section ( 1) must necessarily mean the natural father ano the natural mother. Explanation (i) appended to section 9 was pressed into service to say that the step-mother is included in the term "mother" because the said explanation says "the expressions "father" and "mother" do not include an adoptive father and an adoptive mother." Learneo counsel for the appellant submitted that step-mother has not been excluded from the expression "mother" and only an adoptive mother bas been so excluded.

By necessary implications, therefore, it was submitted that it ought to be held that the word "mother" in sub-section (i) includes a step-mother.

We have no difficulty in rejecting this argument.

Reading section 9 as a whole ano specially in the context of sub-sections (2), (3) and (4) it is clear that the term "mother" means the natural mother and not the step-mother.

A step-mother for many purposes such as inheritance etc. is. distinct and differen1 from mother; while, generally speaking, an adoptive mother takes the place of mother to all intents and purposes.

The necessity of the explanation, therefore, arose to exclude the adoptive

DHANRAJ v. SURAJBAI (Untwalia, J.) 77

mother from the expression mother so that an adoptive mother may A not be competent to give the adoptecl son in adoption to somebody else.

Learned counsel for the appellant then submitted that in case of an adult orphan, as the appellant was at the time of adoption, no consent was necessary of any person except the adoptee himself. No body could be available to give him in adoption. The use of the B word "child" in claU'Sc (vi) of section 11 and in section 9(1) reacl in contra-distinction of the use of word "person" in clause (iii) of section 6' would make it clear, counsel submitted, that the condition of giving in adoption is applicable only to a minor child and not to an adult.

We see no substance in this argument.

Unc!er the law as engrafted in section 10 of the Act, a person is not capable C of being taken in adoption if he or she has completed the age of 15 years and that is the reason that the word "child" has been used in sections 9 and 11.

The use of the word "person" in section 6 (iii) and at the commencement of section 10 is not for the purpose of bringing about any difference in law in regarcl to the giving of the child. If the custom permits a person of the age of 15 years or more to be taken in adoption then even such person would be D the child of the father or the mother. 'Child' would not necessarily mean in that context a minor child. If the child is a minor, in absence of the father or. the mother, a guardian appointed by the will of the child's father or mother ancl a guardian appointed or declared by a court, would be competent to give the child in adoption.

But in case of a major in absence of the father or the mother, no E body will be competent to give him in adoption because no such provision has been made in the Act to meet such a contingency.

The scheme of the Act was not to make a child of 15 years of age or above fit to. be taken in adoption.

Exception was made in favour of a custom to the contrary.

Learned counsel for the appellant then attemptec! to argue on the basis of the decisions of the Bombay High Court in the cases of F Motilal Mansukhram v. Maneklal Dayabha(') and Prahlad Sheonarayan Chokhani v. Damodhar Rankaran Vaishnao and others,(') that even under the old Hindu Law the adoption of an orphan was not valid except by custom; but if the custom permitted it, anc! iri the case of Porwal Jains it did permit, then an orphan who was not minor could go in adoption by his own consent without the consent of and the giving by anybody else.

We think that it would be G a ticklish and debatable question to decic!e whether the second part of clause (a) of section 4 would have such a custom from the overrding effects of sections 6, 9, and 11. But it will be a futile exercise here to embark upon the decision of this point as in our judgment it does not arise at all in this case.

In paragraph 4 of the written statement the only custom pleaded was that a person more than 15 years old coulc! be taken in adop!in.

Nothing was pleaded to H say that there was a cnstom of givmg an orphan in adoption or that a prson above h~ age of 15 years could go in adoption without the physical act of g1vmg by anybody, on his own and with his consent anly: On the other hand the pleading in sub-paras (1) and

(1) A.LR. 1921, Bombay, 147.

(2) A.l.R. 1958, Bombay, 79.

78 SUPltBMB COURT REPORTS [1975] SUPP. s.c.R.

(3) of paragraph 4 of the written statement was that under the Act the step-mother was competent to give the defendant in ac!option and that she did give him in adoption. It was not open to the appellant, therefore, to take this n"-.W point of law for the first time in this Court without the foundation of facts to found it upon. ' B For the reasons stated above, we dismiss this appeal No costs.

P.B, R.

Appeal dismissed.

' - •

DHANRAJ

SURAJ BAI

V. R. KRISHNA IYER

Ss. 6(ii), 9 and 11

Section 6(ii)

Maintenance Act, 1956

Section 9(1)

Section 11

s. 9(1)

s. 10

section 10

Hindu Adoptions and Maintenance Act

Section 4(1)

Section 5

section 6

section 11

Section 9

section 9

section 9

section 11

section 9(1)

section 6

section 10

sections 9 and 11

section 6

section 10

section 4

sections 6, 9


.·":,.< _-

HARSOOKDAS BALKISSENDAS

THE FIRST LAND ACQUISITION COLLECTOR & ORS.

April 8, 1975 lA. N. RAY, C. J. AND V. R. KRISHNA IYER J.)

Land Acquisition Act, s. 49(2)-Scope of.

Section 49(2) of the Land Acquisition Act provides that if in the case of :any claim under s. 23(1),. thirdly, by a person interested, on account of the severing of the land to be acquired from his other land the appropriate Government is of the opinion that the claim is unreasonable and excessive, it may, at any time before the Collector. has made his award, order the acquisition of the whole of the land of \Vhich the land first sought to be acquired forms a part.

A part cf a large area of land belonging to the appellant was sought to be acquired by the State. The appellant put forward a claim on account of damage caused by severance, under s. 23(1) thirdly.

The claim was held to be unreasonable and excessive, by the Government. Sanction for the acquisition of the entire land of the appellant having been approved, a further portion of the land v;.as acquired. The appellant contended: (1) that s. 49(2) applies only to land with buildings, that the landi acquired was a vacant ]and with no house or buildings; (2) that he made the claim for compensation under third and founb. clauses of s .. 23 of the Act and therefore s. 49(2) had no application; and (3) that the acquisition of a portion of the land was not for public purpose as there v; as no further declaration of public purpose and the acquisition Was therefore invalid.

Dismissing the appeal,

HELD :(!) (a) Land is defined ins. 3(a) of the Act to include benefits to ari'le out of land, things attached to the earth or permanently fastened to anything attached to the earth. Therefore, land contemplated in s. 49(2)_ of the Act may be land or land or land including building or part of a building. [81B-CJ

(b) The contention that if there is vacant land, s. 49(2) of the Act ha.<i no application is not only a misreading of the decision of the Court in State of Bihar

v. Kundan Singh [1964J 3 S. C. R. 382 but also the relevant Section. [81 Dj.

In the instant case the contention of the appellant that it was vacant land was also contrary to facts. The material on record shows that there were certain structures on the land, ,[80 H].

(2) If a claim under the third clause of s. 23(J) of the Act is made the requirement of s. 49(2) of: the Act is satisfied. Addition of a claim under the fourth clause of s. 23(1) of the Act makes no difference. [82 BJ.

(3) (a) Subscctions (2) and (3) of s. 49 of the Act indicate that the acquisitios. !or public purpose need not be stated. Section 49'(3) of tbe Act specifically provides that no fresh declaration under ss. 6 to 10 of the Act shall be ne~- sary.

Section 49(2) of the Act implies public purpose inasmuch as the compensation for_ acquisition is payable out of the public land.

Sections 4 and 5 of the Act are excluded because of proposal by owner! in case of further acquisition under s. 49(1) ofi the Act and proposal by Government for further acquisition in a case under s. 49(2) of the Act. All that is necessary is that in one H case the owner of the land and in the other the Government must act under

s. 49(1) and 49(2) of the Act, respectively before the award is made. 'fhe public purpose is to prevent people from making exaggerated clain1s.

Section

~9(2) of the Act is subsidiary to public purpose. ~The acquisition is jn aid of that purpose. [83 A-CJ.

(b) Section 49 (2) of the Act does not require that the opinion shall be formed after hearing the person concerned. [83 DJ.

"" -.

A CIVIL APPELLATE JURISDICTION : Civil Appeal No. 558 of 197(}

From the Judgment and Order dated 26th May, 1965 of the Cakutta High Court in Appeal from Original Order No. 260 of 1973.

L. M. Singhvi, 0. C. Mathur, D. N. Mishra and J. B. Dadachanji for the appellant.

Niren De, Attorney General of India, D. N. Mukherjee, G. S.

Chatterjee, and Sukumar Basu for respondents Nos. 1 and 4.

Niren De, Attorney General of India, S. K. Dholakia and R. C.

Bhatia for respondent No. 3.

The Judgment of the Court was delivered by

RAY, C. J.-This appeal by certificate raises the question as to whether section 49(2) of the Land Acquisition Act hereinafter referred to as the Act has any application to the acquisition of the land in question.

The premises in question are 2 Gariahat Road now known as 2 Raja Subodh Mullick Road, Calcutta. The total area is approximately 23 bighas. The appellant al!eges that there arc no houses or buildings.

The Land Acquisition Collector found certain structures occupied by certain persons and other structures and a compound wall and the major portion of the land to be vacant. There is a: big tank covering over 3 bighas of the land.

The appellant alleges that the land is highly developed and is ideal for building site. The Land Acquisition Collector found the major portion of the land undeveloped and below road level and to. become water-logged during rainy season.

The appellant denies these allegations.

Out of the total area the State in 1959 acquired 1 bigha, 13 chattack, 43 sq. feet for the State Transport.

The appellant claimed Rs. 3,50,000 inter alia for severance of the land acquired.

In the month of September, 1962 the Government communicated to the appellant that the Government agred that the claim put forward by the appellant under the clause "thirdly of sub-section ( l) of section 23 of the Act" is unreasonable and excessive.

The sanction of the Governor was therefor accorded to the acquisition of the entire premises 2, Gariahat Road, Calcutta under section 49(2) of the Act. Between the months of February and September, 1960 notices were issued to acquire a further area of 7 bighas, 4 cottahs, 9 chittacks and 10 sq. feet.

The premises were acquired.

H An award was made.

The principal contention of the appellant is that section 49(2) of the Act has no application in the case of acquisition of vacant Janel.

The appellant contends that the land acquired in the present case was vacant.

The State contended to the contrary.

The materials on record support the contention of the State. The appellant submits that

---"" )-- -

section 49(2) of the Act applies only where land with building is A taken. Section 49(2) of the Act is qs follows :-

"If, in the case of any claim under section 23, sub-section (!), thirdly, by a person interested, on account of the severing of the land to be acquired from his other land, the appropriate Government is of opinion that the claim B is unreasonable and excessive, it may, at any time before the Collector has made his award, order the acquisition of the whole of the land of which the land first sought to be acquired forms a part."

Land is defined in section 3 (a) of the Act to include benefits to arise out of land and things attached to the earth or permanently fastened to anything attached to the earth. Therefore, land contemplated in section 49(2) of the Act may be land or land including bullding or part of a building.

Counsel for the appellant relied on the decision o!f this Court in D State of Bihar v. Kundan Singh & Anr. [1964] 3 S.C.R. 382 anrt extracted the observation at page 394 of the Report that section 49(2) of the Act contemplates cases where land is acquired and it is shown to form part of a house.

In short, the contention of the appellant is that if there is vacant land section 49(2) of the Act has no application.

This ts not only misreading the decision but also the relevant section.

In Kundan Singh'; case (supra) the question for considerati~ was whether the desire of the owner for the acquisition of the entire house under section 49 (!) of the Act should be expressed before the award is made.

Jn Kundan Singh's case (supra) the State acquired F a plot of land which consisted of the main house and an outhouse with an open space. The owner of the property was not 'satisfied with the award. The owner contended that other lands and buildings contiguous to the land and building acquired which all belonged to the owner had not been acquired. As a result of partial acquisition the owner alleged loss. The ruling of this Court is that such plea under section 49 of the Act cannot be considered in an enquiry under section 18 of the Act. Section 49(1) of the Act shows that if the owner has any objection to the acquisition of a part of his house it is open to him to withdraw or modify his objection before an award is made under

sec<ion 11 of the' Act. If an objection under section 49(1) of the Act is taken by the owner and the Collector decides to accept the objection then the Collector acquires the whole of the house. If the Collector does not accept the claim the matter is judicially determined under the second proviso to section 49(1) of the Act.

Section 49(2) of the Act states that where on account of the severing of the land to be acquired from his other land, the person interested prefers a claim under the third clause under sectiqn 23 ( 1) of the Act and the Government is of opinion that the claim is unrea-

A sonable or excessive, the Collector may, at any time before the award is made, order the acquisition of the land.

The appellant submits that the appellant made the claim for compensation under the third and fourth clauses of section 23 (1) of the Act, and, therefore, section 49(2) of the Act has no application. In one of the letters of the appellant dated 25 February, 1960 it is stated that the area of 7 bighas, 4 cottahs, 9 chittaks and 10 sq. feet of front land has been acquired for the purpose of over-bridge at Gariahat Road level crossing including the entire frontage of the said premises as a result of which the remaining portion of the land measuring about 16 bighas of land will be land locked causing heavy damages. severance and injurious affectation. In the writ petition the appellant clajmed damages only in respect of severance. Section 23 ( 1) clause three of >he Act speaks of damage sustained by the person interested at the time 'of the Collector's taking possession of the land by reason af severance of such land from the other land of the owner.

Clause four of section 23 (1) of the Act speaks of claim for damage sustained by the person interested at the time of the Collector's taking possession of the land by reason of the acquisition including affecting his ether property, movable or immovable, in any other manner, or his earnings.

Therefore, if a claim under the third clause of section 23(1) of the Act is 'made the requirement of sectiou 49(2) of the Act is satisfied.

Addition of a claim under the fourth clause of section 23 ( 1) of the Act makes no difference.

In the present case, the land _was .not completely vacant. Even if there is vacaut land section 49(2) ot the Act will be attracted by reason of definition of land.

To accede to the contention. on behalf of the appellant that section 49.(2) speaks only of acquisition of land abng with a building and not to the case of acquisition of vacant land is to rob the meaning of land under section 49(2) of the Act aud the content of section 49(2) of the Act. Section 49(2) of the Act applies to cases of acquisition of vacant land along with structures.

The object of section 49(1) of the Act is to give to the owner the option whether he would like part to be acquired. The Government cannot take the other part under section 49 (1) of the Act unless the owner says so.

Section 49(2) of the Act has nothing to do with section 49(1) of the Act.

Section 49(2) of the. Act gives the option to the Government only where the claim under the third clause of section 23 (I) of the Act is excessive.

Reference to the third clause of section 23 (I) of the Act makes it clear that the claim under the third clause of section 23 ( 1) is for severance. The Government in such a case of acquisition of the remaining portion of the land under section 49(2) of the Act saves the public exchequer money which otherwise will be the subject matter of a claim for severance.

Counsel on behalf of the appellant contended that the acquisition of the remaining land was not for a public purpose and was, therefore, invalid. It was said that there should hav~ been a fresh declaration of public purpose after the proposed acquisition of the remaining

portion of the land.

This contention is unacceptable.

Suh-sections

(2) and (3) of section 49 of the Act indicate tbat the acquisition for public purpose need not be stated. Section 49(3) of the Act specifically provides that no fresh declaration under sections 6 to 10 of the Act shall be necessary.

Section 49(2) of the Act implies public purpose inasmuch as the compensation for acquisition is payable out of the public fund. Sections 4 and 5 ot the Act are excluded because of proposal by owner in case of further acquisition under section 49(1) of the Act and proposal by Government for further acquisition in a case under section 49(2) of the Act.

AJI that is necessarv is that in one case the owner of the land and in the other the Government must act under sections 49 ( 1) and 49 ( 2) of the Act respectively before the award is made.

The public purpose is to prevent people from making exaggerated claims. Section 49(2) of tbe Act is subsidiary to public purpose. The acquisition is for public purpose.

The subsequent acquisition is in aid of that purpose.

Counsel on behalf of 'the appellant submitted that he was entitled to be heard before the order was made under section 49(2) of the Act.

This submission is unacceptable. Section 49(2) 6f the Act does not require that the opinion shall be formed after hearing the person concerned.

For these reasons, the appeal fails and is dismissed. In view of the fact that the High Court directed each party to pay and bear its own cost, there will be no order as to costs.

P.B.R.

Appeal dismissed .

HARSOOKDAS BALKISSENDAS

1975 lA. N. RAY

V. R. KRISHNA IYER J.

Land Acquisition Act

s. 49(2)

Section 49(2)

s. 23(1)

s. 23(1)

s. 49(2)

s. 49(2)

s. 49(2)

s. 49(2)

s. 23(J)

s. 49(2)

s. 23(1)

s. 49

Section 49

ss. 6 to 10

Section 49(2)

Sections 4 and 5

s. 49(1)

s. 49(2)

s. 49(1) and 49(2)

Section 49

section 49(2)

section 23

section 49(2)

section 49(2)

section 49(2)

Section 49(2)

section 23

section 3

section 49(2)

[1964] 3 S.C.R. 382

section 49(2)

section 49(2)

section 49

section 49

section 18

Section 49(1)

section 49(1)

section 49(1)

Section 49(2)

section 23

section 49(2)

Section 23

section 23

section 23(1)

section 23

section 49(2)

section 49

section 49(2)

section 49(2)

Section 49(2)

section 49(1)

section 49

Section 49(2)

section 49(1)

Section 49(2)

section 23

section 23

section 23

section 49(2)

section 49

Section 49(3)

sections 6 to 10

Section 49(2)

Sections 4 and 5

section 49(1)

section 49(2)

sections 49

Section 49(2)

section 49(2)

Section 49(2)


PEDDA NARAYANA & ORS.

STATE OF ANDHRA PRADESH

April 8, 1975

[N. L. UNTWALIA AND s. MURTAZA FAzAL Au, JJ.J

Evidence-Appreciation f-Onzission of details in First Infonnation and Inquest Report-Effect of-Code of Criminal Procedure (Act 5 of 1898) s ..

174~Scope of. '

f The rst accused borrowed mney f!om tc deceased anO' as the money was

~C:~ rpard the deceased filed a suit against him. .Angered by being drawn into hh.gation, A. 1 to A. 3 and three others came upon the deceased in a jeep

d~1ven by A. 4, and ~· 1 to A. 3 getting down from the jeep stabbed the deceased ; v1th daggers and "".h1le the deceased waSi falling down carried hin1 tl\vay in the 1eep.

The co1npan; on of the deceased at the time \vhen the occurrence took place gave the first information to the police. Three days after the incident the dead body was recovered, and inquest was held.

Te four accuse~ were charged with offences of murder andkidnapping, but the tnal ourt acquitted them for the nasons : (i) the First Information did noL contain the overt acts attributed to each of the accused: (ii) details of the

vcrt acts were not mntioned in the Inquest Report and therefore it mu~ be inferred that the eye witnesses did not mention the overt acts to the police; (iii) there was no .reliable. evidence identifying the dead body: and (iv) the motive E \Vas not sufficient to impel the accused to murder the deceased.

On appeal the High Court convicted A. 1 to A. 3 for offences under s. 302 read with ss. 34 and 148 and under s. 364 read \Vith s. 34 I.P.C. A .. 4 was convicted under s. 302 read with s. 149 and under s. 364 read ~:ith s. 34, I.P.C.

Dismissing the appeal to this Court of A. 1 to A. 3 und allowing that of

A. 4,

l-IELD : The High Court rightly believed the evidence of the prosecution witnesses and there was no error in its aproach to the case. '[91 A.-BJ.

( 1) The witness who gave the first information nius.t have been extremely perturbed having seen the attack on his companion.

Even so, all the essential details which a first information should contain are there.

The names of the accused and the circumstances of the murderous assault are mentioned.

Shorn of minute detail the broad picture presented by the prosecutioo was mentioned in the first information which was. lodged soon after the occurrence.

Jt is neither customary nor necessary to mention every 1ninute detail in the first information. [88 A-C]

(2) The object of the inquest proceedings under s. 174 Cr. P.C. is merely to ascertain whether a person has died under suspicious circumstances or whether it \Vas a case of unnatural death, and if so, what was the apparent cause of death. The question regarding the details as to how the deceased was assaulted or who assaulted him or under what circumstances is foreign to the proceeding5.

Therefore, neither in practice nor in law was it necessay for .the police to have mentioned details of all the overt acts of the accused in the inquest report.

From such absence of details in the inquest report it as wr.ong. to resme that the witnesses did not mentionthe details to the pOhce dunng 1nvesttgat1on.

[89 C-EJ

(3) The dead body was identifiable nd was .identified by the son of the .deceased, the witness who gave the first information and a co-v11lager. [90 E].

. , ;,

(4) Various persons react to circumstances in different ways and it is difficult to say when a motive would be sufficient for a crime.

Moreover, in vie\v of the independent testimony of eye witnesses, whom the High Court has believed the question of motive beco:ine academic.

'[90G-H].

(5) This is not a case where two vie, vs are possible.

The only possible view is that taken by the High Court ano' the High Court rightly reversed the acquittal under s. 417 Cr. P. C. (91 C-D].

6(a) The medical evidence showes that the deceased must have died before the body \Vas put in the jeep and so the charge of kidnapping fails. [91D-E].

(b) , As regards A. 4 there is no reliable evidence to prove actual complicity in the murder.

He is a young boy of l 8 engaged as a <lrivcr.

His name is not mentioned in the first information to the police as haYing taken any part in the assault. [91 H].

(c) Therefore, he could not be convicted for murder. He could be guilty of the offence under s. 201 I. P. C. but he was acquitted of that charge by the trial court. The High Court had not convicted him under that section and no appeal against his acquittal ha~ been filed in this Court and hence he could not be convicted of that offence either. '[92 C-Dl.

CRIMINAL 92 of 1971.

APPELLATE JuR1sorcTION : 1 Criminal Appeal No.

From the Judgment and Order dated the 31st December, 1970 of the Andhra Pradesh High Court in Criminal Appeal No. 868 of 1969.

p. Basi Reddy and G. Narayanarao, for the appellants.

P. Rama Reddy and P. P. Rao, for the respondent.

The Judgment of the Court was delivered by

FAzAL ALI, J.-Appellants A-1 to A-3 have been convicted under

s. 302 read with s. 34 I.P.C. as also under s. 148 I.P.C. They are also convicted under s. 364 read withs. 34 I.P.C. A-1 to A-3 have been F sentenced to imprisonment for life under s. 302 read with s. 34 and A-4 has been awarded the same sentence under s. 302 read withs. 149 I.P.C. Under s. 364 read .,,; th s. 34 the four appellants have been awarded five years rigorous imprisonment each.

In view of the sentences passed, no separate sentence was, imposed. under ss. 147 and 148 I. P. C.

The accused had been acqmtted by G the Additional Sessions Judge, Anantpur, in the State of Andhra Pradesh.

On appeal against acquittal filed by the State before the High Court of Andhra Pradesh, the appeal was anowed and the appellants A-1 to A-4 were convicted and sentenced as mentioned above. Against these convictions, the present appellants have preferred this appeal to this Court.

As the High Court had awarded the sentence of life imprisonment after reversing the order of acquittal passed by the Ad- H ditional Sessions Judge, the appeal to the Supreme Court lies even on facts and as a matter of right under s. 2 of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) . Act, 1970.

The prosecution case may conveniently be divided into four sep~ rate parts-Part-I constitutes the immediate motive for the murder

~--...,._

86 SUPRE1'fE COURT REPORTS

[1975] SUPP. S.C.R.

A of the deceased; Part JI relates, to the visit of the deceased to Anantpur

"here he was shacj_owed and threatened and forll\S the genesis of the occurrence; Part III consists of the actual murderous assault on the deceased resulting in his death and the last part-Part IV-relates to the recovery of the dead body thre<\ days after the occurrence. This is rather an unfortunate case where the appellants sought to hit upon B a pre-conceived plan to do away with the life of the deceased animated bv rancour and hatred resulting from the act of the deceased in einbroiling the accused in a litigation over a monetary transaction.

In order to understand the case put forward by the prosecution it may be neccs'<iry to give briefly a resume of the four stages of the C prosecution case.

Part-I. The story of the prosecution begins with the purchase of a jeep by A-1 and his brother being jeep No. A.P.A. 2781 from one Kana Rama Subbareddi for a consideration of Rs. 6,000/-.

In order to meet the consideration of the jeep A-1 and his brother had borrowed a sum of Rs. 6,900/- on April 18, 1964 from the deceased

after executing a promissory note in his favour.

As this money was not paid by A-1 to the deceased, the deceased brought a suit in the Court of the Subordinate Judge, Anantpur for realisation oj' the amount.

Some time in the year 1969 A-1 filed an Insolvency Petition before the Subordinate Judge showing his debts to the tune of Rs. 1,96,000/-.

The suit filed by the deceased was posted on February 6, 1969 for evidence to be given by A-1 and this appears to have been the immediate provocation and occasion for planning the murder of the deceased by the appellants.

Part-IT. In view of the fact that the suiC was posted to February 6, 1969 the deceased along with P. W. I-who will hereafter be referred to as Chinna-proceeded to Anantpur on February 5, 1969 and reached there at 8-30 P.M. It is said that while p.w. I Chinna and the deceased were alighting from the bus they saw A-1, A-2 ana A-4 sitting in the jeep near the petrol pump which is situated near the bus-stand.

Chinna and the deceased then went to the house of N. Narayana Rao, P.W. 20 who was their counsel and -stayed thew for the night.

On the next day i.e. February 6, 1969 the suit was adjourned and after the adjournment of the case Chinna and the deceased went to the place where they were staying and on the way some persons with big moustaches appear to have threatened them.

Chinna, however, did not take the threat seriously and proceeded to his destination.

Part-III. On the night of February 6, 1969 the deceased and Chinna went to witness a picture called "Tenali Ramakrishna" in Raghuveera Talkies and it is said that some of the accused had also followed the deceased and went to see the cinema show.

After returning from the picture, while the two persons namely Chinna and the deceased were proceeding south to north and had covered 20 feet from the hotel where they had taken their food, suddenly a jeep came and stopped near the deceased_. According to the prosecution A-1 to A-3

. -

- '

• '

got down from the jeep along with three other strangers and surrounded A the deceased. Chinna was about one bara away from the deceased.

Thereafter A-2 stabbed the deceased with a dagger on l1is stomach and A-1 stabbed him on the leJt side of the chest and when the deceased was about to fall A'3 is said to have stabbed the deceased with a dagger on his left knee.

When Chinna P.W. l wanted to intervene he was threatened 'by the three stranger who were armed B with daggers and was pushed aside by tl1osc strangers.

Before the deceased could fall down on the ground he was put into the jeep and earned away.

Part-IV. On February 9; 1969 P.W. 16 and the Inspector of Tadipatri went to Cherlepalli. for the purpose of investigation where P.W. 16 received information that a dead body was lying near the Railway gate at Taticherla. The :police party , proceeded to that place and found a dead body lying on its back with injuries on the body.

Tl;~ body was, however, in a bloated condition.

Subsequently , proceedings for inquest under s. 174 of the Code of Criminal Procedure were taken and after the usual investigation a charge-sheet was sul:>- mitted against the appellants. We might mention here that th.e F.I.R. in the. case was lodged by P.W. 1 Chinna on February 6, 1969 before the Sul:>-Inspeetor of Police, Anantpur Police Station and is Ext. P-1 in the case.

The learned Additional Sessions Judge after consideration of the evidence produced before him acquiltd the accusd without considering the intrinsic merits o[ the evidence produced before him on purely general grounds anc\ what he called inherent improbabilities arising out of the case.

The High Court in appeal against the acquittal of the accused found that the learned Additional Sessions Judge was not at all justified in acquitting the accused and that the reasons given by him were wholly untenable in law and accordingly the High Court reversed the order of acquittal and convicted A-1 to A-4. The acquittal of A-5 wa,, however, upheld by the High Court and we are not concerned with him in this appeal.

The learned counsel appearing for the appellants tried to support the judgment of the learned Additional Sessions Judge and pointed out a number of circumstances which according to him cast a serious G doubt on the veracity of the prosecution case.

Jn the first place, it was argued that th< learned Additional Sessions Judge rightly held

tht as the F.l.R. did not contain the overt acts attributed to each of the accused, the story of the prosecution must be held to be an

aftr-thought. Dealing with this aspect of the matter the High Court pemted out that the F .I.R. was lodged soon after the occurrence and there was no occasion for the informant to have mentioned all the H material.Particulars in the F. I. R. which had to be narrated and proved at the tnal.

We find ourselves m complete agreement with the reasons g, iven by the High. Court. Jn fact we find from the perusal of Ext. Pl tnat all the essential details that th~ F.I.R. should contain are given there. The .names of the accused are clearly mentioned, the circumstances leadmg to -the murderous assault on the deceased Linganna have

10 SC/i5--7

A \Jcen set out. It has also been mentioned that the accused got down

from the jeep along with three strangers and stabbed the deceased and then carried him away in the jeep.

It is also mentioned that the occurrence had taken place because the deceased had filed a civil suit against A-1 which constituted the motive for the murder. Tims shorn of minutest detail the broad picture presented by the prosecution was undoubtedly revealed in the F.I.R. which was lodged very soon a(tcr the occurrence. In our opinion, it is neither customary nor necessary to mention eveiy minute detail in the F.l.R. Chinna P.W.1 must have been extremely perturbed because the deceased Linganna had been suddenly attacked by a number of assailants and his body wa~ carried away. It is in that state of mental agony that.he was not able c to give further details in the F.I.R. We are, therefore, clearly of the opinion that the reasons given by the learned Additional Sessiom Judge for rejecting the prosecution case are wholly untenable in law.

Another point taken by the learned Additional Sessions Judge was that in the 'inquest report details of the overt acts committed by th~ various accused have not been mentioned in the relevant column. TI1e D le'1rned Judge in fact has assumed without any legal justification that because the details were not mentioned in the requisite column of the inquest report, therefore, the presumption will be that the eye witnesses did not mention the overt acts in their statements before the police.

To begin with it seems to us that.the learned Additional Session Jndgc's

approach is legally erroneous. A statement recorded by the police during E the investigation is not at all admissible and the proper procedure 1s

to confront the witnesses with the contradictions when they are examined and then ask the Investigating Officer regarding those contradictions.

This docs not appear to have done in this case.

Furtmr more, proceedings for inquest under s. 17 4 of the Code of Criminal Procedure have a very limited scope. Section 174 of the Code as it F then stood read as follows :

"174. Police to enquire and report on suicide. etc.

(1) The officer in charge of a police station or some other police officer spcially empowered by the State Government in that behalf, on receiving information that a person-

(a) has committed suicide; or

(b) has been killed by another, or by an animal, or by machinery, or by an accident; or

\ c) has died under circumstances raising a rea&onable suspicion that some other person has committed an offence; shall immediately give intimation thereof to the nearest Magistrate empowered to hold inquests, and, unless otherwise directed by any rule prescribed by the State Government, or by any general or special order of the District or Subdivisional Magistrate, shall proceed to the place where the body of such deceased person is and there, in the presence of two or more respectable inhabitants of the neighbourhood, shall make an investigation and draw up a report

~ I ,

of the apparent cause of death, describing such wounds, A fractures, bruises and otl1er marks of injury as may be found on the body, and stating in what manner, or by what weapon or instrument (if any) such marks appear t<J have been inflicted.

(2) * • * •

( 3) When there is any doubt regarding the cause of death, or when for any other reason the police officer considers it expedient so to do, he shall, subject to such rules as the State Government may prescribe in this behalf, forward the body, with a view to its being examined, to the nearest Civil Surgeon, or other qualified medical man appointed in this behalf by the State Government, if the state of the weather and the distance admit of itS' being so forwarded without risk of such putrefaction on the road as would render such examination useless."

A perusal of this provision would clearly show that the object or D the proceedings under s. 174 is merely to ascertain whether a person has died under suspicious circumstances or an unnatural death and if so .what is !he apparent cause of the death. The question regarding the detalls as to bow the deceased was assaulted or who assaulted him or under what circumstances he was assaulted appears to us to be foreign to the ambit and scope of the proceedings under s. 174. In these circumstances, therefore, neither in practice nor in law was it necessary for the police to have mentioned these details in the inquest report. The High Court has adverted to this point and has rightly pointed out as follows :

"The learned Sessions Judge had also stated that the dekllls regarding the weapons armed by each of the accused and which accused had attacked o~ which part of the body of the deceased are not found in the inquest report and from this he sought to draw the inference that the statements of the witness now found recorded under section 161 Cr. P.C. could not have been the statements then read over to the panchayatdars. Column 9 of the inquest report shows that the injuries on the deceased were caused by knives and daggers. Column ll(a) shows that Al to A3, A4 and AS with 3 strangers came in the jeep driven by A4, got down the jeep, stabbed the deceased with daggers and knives, pushed P.W. 1, lifted the deceased, put him in the jeep, and drove away the jeep and death was the result of the injuries inflicted.

The object of holding any inquest as can be seen from Section 174 Cr.P.C. is to find whether a person died a natural death, or a homicidal death or due to suicide. It was therefore not necessary to enter all the details of the overt-acts in the inquest report. From the mere fact that these details were not noted in the inquest report it cannot be concluded that the statements given by the witnesses and read over at

the inquest did not contain those overt-acts and the statements now produced are those of the witnesses. which were taken later."

The High Court has thus rightly explained that the omissions in the inquest report arc not sufficient to put the prosecution out of Court and the learned Additional Sessions Judge was not at all justified in rejecting the prosecution case in view of this alleged i11firmity.

The karned Additional Sessions Judge was alsd of the opinion that there .was no rehable evidence to identify the dead body of the deceased Linganna and on that ground the prosecution case could be rejected.

Tl:is line of reasoning adopted by the Additional Sessions Judge 1s not C borne out by tlie facts.

The High Court pointed out in their judgment that <there was sufficient evidence before the Court to identify the body of the deceased. It is true that the dead body of tlie deceased was bloated but P.W. 16 the Sub:Jnspector deposed in his evidence that the features of the body were quite clear and visible.

The photographs of the body were taken by P.W. 19 and on seeing o the photographs the High Court was satisfied that the body was easily

identifiable. P.W. 1 Chinna who was fully known to the dcceaseil and who had accompanied him to Anantpur and in whose presence the murder took place said that he went to the place where the body was lying and identified the body. The High Court also pointed out that

P.W. 1 said that the belt, M.O. 6 which was usually worn by the de-

E ceased was also found on the dead body, which completely clinches the issue. Although P.W. 1 was cross-examined at very great length ii was not suggested to him that the dead body found was not that of the

t1eceascd. The body of the deceased was also identified by another co-villager and also by the son of the deceased. In these circumstanc.es, therefore, there was abundant evidence to prove the identification of the dead body and the finding of the learned Additional Sessions Judge F is based on a misreading of the evidence on this point.

The. learned Sessions Judge further held that the motive ascribed to ihe appellants for committing the murder of the deceased was not rnfficient to impel them to plan the murder of the deceased.

This finding of the learned Sessions Judge is based purely on speculation.

G Various persons react to circumstances in different ways and it is difficult to wc.igh the reaction of the persons in golden scales with absolute computoriscd accuracy. There is no doubt that the deceased had drawn the accused in a long litigation involving thousands of rupees as a result of which he had to attend the Court at Anantpur on various dates.

The sequence of circumstances under which the deceased was murdered clearly show~ that there could not have been any other motive but the H institution of the suit. The High Court has also pointed out that the prosecution has established good and suflicicnt motive for the murder of the deceased. Futhcr more, in view of the independent testimony of P.Ws 1, 2 and 3 whom the High Court has believed, and we see no reason to differ from the view of the High Court, the question of motive becomes more or less academic. On thi& point also, in our opinion, the learned Additional Sessions Judge has taken an absolutely wrong view.

We have been taken through the entire evidence of P.W. 1, 2 & 3 who A are independent witnesses and against whom no animus has been established by the accused and we. dd not sec any reawn to disbelieve their evidence.

The High Court, therefore, rightly believed their evidence in order to accept 'the prosecution case. We do not find any error of law in the approach made by the High Court.

It was, however, submitted by Mr. Basi Reddy, learned counsel for the appellants tliat this was a case in which another view was also possible on the evidence and, therefore, the High Court ought not to have interfered with the order of acquittal passed by the learned Additional Sessions Judge, as held by this Court in several cases .

After going through the evidence and circumstances of the present case, huwever, we arc clearly of the opinion that the ratio of the cas'es decided by this Court is wholly inapplicable to the instant case and, therefore, the contention advanced by the counsel for the appellants in this Court is overruled. This is not at all a case where a second view was possible.

On the other hand it was a case where the learned Additional Sessions Judge had given untenable reasons andwhere bis approach was no' ouly perverse, but also legally erroneous. In such circumstances, it ca"-

not be disputed that the High Court had ample powers to reverse the order of acquittal under s. 417 of the Code of Criminal Procedure.

As regards the case of A-4, w.e find that it stands on a different footing and there doe9 not appear to be any legal evidence against th[s appellant.

We arc also satisfied that there is no reliable evidence to prove the charge under s. 364 l.P.C. According to the medical evidence the deceased sustained as many as si.x injuries. The position and the nature of the injuries particularly on the various parts of the body clearly show that they must have been inflicted on the deceased out.- side the jeep .and not when the body was carried in the jeep of A-l.

The medical evidence also shows that the deceased "could have died instantly within minutes of the occurrence. On the other hand there is absolutely no evidence to show that any injury was inflicted either wher,

the deceased was put into the jeep or when be was carried away in the jeep. From these circumstances, therefore, it is manifest that all the

six injuries must have been caused during the' course of the occurrence on the spot before the body was put into the jeep and in all probability the deceased must have died at the spot. lf this was so, then the charge under s.364 I.P.C. must necessarily fail, because there was no question of kidnapping the deceased for the deceased had died even before he

w.cs kidnapped.

So far as A-1 to A-4 arc concerned, this question is more or less academic because they have already been convicted by the High Court under s. 302 read with s. 34 and A-4 under s. 302 read with s. 149 T.P.C. As regards A-4 is concerned, we are satisfied that there is no reliable evidence to prove his actual complicity in the murder of the deceased.

The case of the prosecution is thau A-4 who is a young boy of 18 years was employed as a driver of the jeep after the same was purchased by A-1.

It is true tha\ A-4 had taken A-1 to A-3 to the scene of occurrence.

But this was a part of his duty and tlJat by itself would not show a complicity in the offence of murder which was committed later.

Although in the course of the trial the

witnesses hav() stated that this appellant also tried to take the body in the jeep while he was sitting there or that he had come out of the jeep, this evidence cannot be accepted because it is nowhere mentioned in tne F.I.R. that A-4 had taken any part in the assault on the deceased.

There is only a reference to the three strangers and A-1 to A-3 and there is no reference to A-4 excepting that he was driving the jeep.

In these circumstances we are unble to agree thM A-4 had shared the common object of murdering the deceased at any stage.

The only offence that could have been committed by A-4 was under s. 201 I.P.C. because alter the deceased was put into the jeep he knew fully well that he had been assaulted by the appellants and was being taken away for the purpose of disposal of the dead body.

Unfortunately, however, though A-4 was charged under s. 201 he was acquitted by the learned Additional Sessions Judge and even the High Court has not convicted him under that section. No appeal against his acquittal has been filed in this Court. In these circumstances therefore it is not possible for us to convict him for the first time under s. 201 I.P.C. in the present appeal. For these reasons therefore it follows that A-4, namely, Budekula Kullayappa is entitled to acquittal as his complicity in the actual assault on the deceased has not been proved.

Nor has it been proved that he had shared the common object of the crime with others.

The result is that convictions and sentences passed on all the appellants under s. 364 read with s. 34 I.P.C. are set aside.

The orders of . conviction and sentence under s. 302 read with s. 34 in so far as A-1

to A-3 are concerned are upheld.

The appeal of A-4 is allowed and the order of the High Court convicting him under s. 147 and under s. 302 read with s. 149 is set aside and he is acquitted and is directed to be released forthwith. The appeals of A-1 to A-3 are dismissed.

V.P.S.

#~·.\l.; l'l;,

, Appeals partly allowed

PEDDA NARAYANA & ORS

STATE OF ANDHRA PRADESH

N. L. UNTWALIA

Code of Criminal Procedure

s. 302

ss. 34 and 148

s. 364

s. 34

I.P.C

s. 302

s. 149

s. 364

s. 34

I.P.C

s. 174

s. 417

s. 201

s. 302

s. 34

I.P.C

s. 148

I.P.C

s. 364

I.P.C

s. 302

s. 34

s. 302

I.P.C

s. 364

s. 34

ss. 147 and 148

s. 2

s. 174

Code of Criminal Procedure

s. 17

Code of Criminal Procedure

Section 174

s. 174

s. 174

section 161

Section 174

Cr.P.C

s. 417

Code of Criminal Procedure

s. 364

I.P.C

s. 302

s. 34

s. 302

s. 149

s. 201

I.P.C

s. 201

s. 201

I.P.C

s. 364

s. 34

I.P.C

s. 302

s. 34

s. 147

s. 302

s. 149