-439

BACHAN SINGH

PRITHVI SINGH & ORS.

February 5, 1975 [A. ALAGffiISWAMI AND R. s. SARKARIA JJ.]

Represntatlon of tlie Pf!op/e 1ct !951-S.123(2) and (7)-Publicativn of po.iters with pictures of Prime Minister and Chiefs of Staff-Whether amounts ta undue influence.

The appellant in his petition challenging the electioa of the. responJcnt leged (1) <hat the respondent had ?een guilty of committing a corrupt prachce oder s.123\7) of the Representat10n of the People Act, 1951 in that he had obtmned the ~1~1tance of a member of the. armed forces in his election and ( 2) that he had d1stnbuted posters with the pictures of th~ Prime Minister and other

important ministers together with the three chiefs and four Generals of the Armed. Forces berii:g the capti_on 'Pillars of Victory' and thereby exercised undue influence within the meaning of s.123(2) of the Act. The High Court dismissed the petition.

Dismissing the appeal to this Court.

HELD : ( 1) Since the deletion of the words 'or a polling agent or a counting agent' from Explanation (2) of s.123(7) by the Amending Act 47 of 19Ci6, a member of the armed forces, merely by acting as a polling agent, is not deemed to assist in the furtherance of the prospects of a candidate's election within the contemplation of s.123(7) of the Act.

Secondly, the Lanc_e Naik had cate- · gorically asserted that he did the canvassing on his own and not in the company or the respondent. [ 441 G]

. I

(2) (a) The publication of the poster was an act of imP, ropriety but not one of corrupt practice falling within the mischief of s.123.

Members of the armed forces spoken of in this clause mean persons in flesh and blood and not their inanimate photographs. (443 BJ

(b) In one sense even election propaganda carried on vigorously, blaringly and systematically through charisma! leaders or through various media in favour of a candidate by recounting the glories and achievements of that candidate or his political party in administrative or political field, dos meddle with aml mould the indepen_dent volition of electors, having poor reason and little educa tion in the exercise of their franchise. That such a wide construction would. not be in consonance with the interidment of th.e legislature is discrenible from the proviso to this clause.

The proviso illustrates that ordinarily interference with the free exercise of electoral right involves violence or threat of injury of any kind to any candidate or an elector or inducement or attempt to mduce a candidate or elector to believe that he will become an object of divine displeasure or spiritual censure. The orefix 'undue' indicates that there must be some abuse

or inlluence. 'Undue influence' is used in contra-distinction to 'proper inllu• ence'.

Construed in the light of the proviso cl. 2 of s.123 does not bar or penalise legitimate canvassing or appeals to Teason .qnd judgment of the voters or other lawful means of persuading voters to vote or not to vote for a candidate.

Such proper and peaceful persuasion is the motive force of our democratic prOC%ss (442 E-G]

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 186 of 1973 ' From the Judgment & Orrler dated the 27th November, 1972 of the Punjab & Haryana High Court in Election Petition No. 15 of 1972.

Kapil-Sibal, N. D. Bhargava and S. K. Gambhir, for tl.e appellants. s. N. Marwah, Lalita Kohli, K. C. Dua and Naunit Lal, for the Respondent No. 1

The Judgment of the Court was delivered by

[1975) 3 S.C.R.

SARIWUA, J.

Prithvi Singh Azad (hereinafter referred to as the returned candidate), Bachan Singh, Naurang Singh and Lachchman Singh contested the ck:ction to Pu~1jab Vidhan Sabha from the Kh•anna

(Reserved) A%cmbly constituency.

Azad wa.s the nominee of the Congress Puty and Bachan Singh of the Akali Dal.

 The poll was held on March 11, 1972. On March 12, 1972°, Azad was declared elected. He secured 25,984 votes, whereas :Bachan Singh appellant No. l polled 24,865 votes.

The other two forfeited their securities.

O..i April 26, 1972, Bachan Singh; the unsuccessful candidate and one elector, Harcharan Singh, jointly filed an election petition under the Representation of the People Act, 1951 challenging the eJ.ection of the returned candidate on, scrveral grounds.

In the event of Azad's clectim being set aside, Bachan Singh claimed a further declaration under s.101 of the Act of his own election.

The petition was dismissed by the High Court.

Hence this appeal by the petitioners.

Before us, only two grounds have been pressed into argument by 'Mr. Kapil Sibal, learned Counsel for the appellants.

Firstly, it is eont•ended that the returned candid•.:ite had obtained I e a.>sistm1cc of one Lance Naik Gurdcv Singh, a member of the rmed Forces of tht: Union, in his election and was thus guiity of . ''mmitting the corrupt practice defined in s.123 (7).

In this connection, the petitioner tried to establish two facts .: (a) that Lance Naik Gurdev Singh was appointed as his polling agent by the returned candidate and the former acted as such at the polling ;, tation, Rabon Majra; (b) that the Lance Naik oactually canvassed for votes in the company of the returned candidate.

In regard to the first fact, the petitioners relied upon the statement of L/N Gurdev Singh, who was examined as C.W.I., and the certified copy Ex.P.W.

30/4, of the Polling Agents' Form.

Regarding the seoo,1d fact, they CX'amincd P.W.6 Subedar Bachan Singh, P.W.7 Dant Singh P.W.8

Bhagat Singh P.W.9 Rulda Singh, P.W.10 Sadhu Singh, P.W.11 Bachan Singh P.W. 12 Arjan Singh, P.W. 13 }iaracharan Singh.

They also >ought support from the statement of C.W. 1. ·

On both tl1ese poi:1ts, the learned Judge of the High Court found against the petitioners. In his opinion,· the person who had 'been appointed as his polling agent by the returned candidate was anothei

Gurdev Singh (RW2) and not L/N Gurdev Singh (C.W. 1).

He further held that the oral evidence adduced by the petitia,1ers to-<mbstantiate the allegation of canvassing by the Lance Naik in associllltion with the returned candidate, was of a partisan character, and in the absence of coriroboration from any independent source, could not be accepted.

BACHAN SINGH v. PR!THVI SINGH (Sarkaria, J.) 441

Mr. Sibal contends that the High Court grievously erred in holding: that it was R.W.2 and not C.W.1 who had been appointed as his polling agent by the Respondent.

According to the Coll'ilsel, there are clinching circumstances in this case which show that it was Lance Naik Gurdev Singh who had been appointed and iicted as the polling agent of the Respondent; that the certified copy, Ex.P.W. 30/1 obtained by the petitiaaer was a true copy of the original Form. R.W.2, it is submitted, is an imposter and the Polling Agents' Form P.W. 30/4, was \l false and fabricated document.

Once it is held, proceeds the argument, that LfN Gurdev Singh (C.W.1) had acted as the Polling Agent of the Respondent, that would lend assurance toand probabi- Jise the account given by P.Ws. 9 to 14.

The contci,1tion cannot be accepted.

Firstly, we do not think that the finding of the High Court that R.W.2-and not C.W.1-was the Polling Agent of the Respondent, can be rnid to be palpably wrong necessitating a reappraisal of the evidence by this Court.

Scrondly, even on the assumpti<Yn that L/N Gurdev Singh C.W.1, was the person who had been appointed as the po!Iing agent, the evidence on the record was not sufficiently clinchinl!

to bring home the charge to the Respondent.

L/N Gurdev Si'.1gh (C.W.1) himseli had knocked the bottom out of the petitioner's case.

The Lance Naik while admitting that he had canvassed for votes for the returned candidate, categorically asserted that he did such canvassing on his own and not in the company of ' the rcsoondent.

The Lance Naik was examined as a court witness.

The appellants had a right to cross-examine hin1.

But they did not a>ail of this right.

They did not put any question to the witness to challenge his account. L/N Gurdcv Singh's statement therefore, that he had never canvassed with or at the instance of the returned candidate, would be deemed to have been accepted by them. C.W. 1 was the keystone of the arch which the petitioners tried to build to sustain this charge.

Failure of C.W.1, therefore, to support the partisan P .Ws. on all the material facts constituting the charge, must Iead to the collapse of whole arch.

Moreover, since the deletion of the words "or a polling agent or a counting agent" from Explanation(Z) of s. 123(7) by the Amending Act 47 of 1966, a member of the Armed Forces merely by acting as a polling agent. is not deemed to assist in the furtherance of the pros-· pccts. of a candid>ate's clectioa. within the contemplation of s.123 (7) ,

We would therefore reject the first contention and affirm the finding of the court below on this Jssue. ·

The next charge which has been agitated before us relates to the poster, &h.PW15/1 which. was published bv the Pradesh COU2fess Committee. It bore the photographs of the Prime Minister Smt. H l11dira Gandhi, Shri Jagjiwan Ram, Defence Minister and Shri Swaran Singh, Foreign Minister in the first row. Beneath the first row were

the photograp:1s. of three Chiefs a!ud four Generals of ilie Armed Forces. It bore the caption '.'Pillars of Victory": It is aUeged that

. below these photographs was printed the Congress symbol of Cow A and Calf.

On a complaint being made, the Election Commission of India moved in the matter and directions were issueq to the Punjab Pradesh Congress Committee to withdraw the poster, which, in consequence, was withdrawn.

b his written statement, the returned candidate pleaded that he was unaware of any such poster. In cross-examination, however, be B (as R.W.6) admitted that the letter Ex.R.W.6/1 bad been issued by S. P. Mittal to all the Presidents of the Di.strict Congress Committm in Punjab directing them to withdraw this poster.

R.W.6 admitted that this poster bore the photographs of Service Chiefs alon~~ with those of the Prime Minister and two other Ministers-nil of whom were described as Pillars of Victory. He, however, disclaim1::d th'at he had anything to do with the distribution of this poster.

Mr. Sibal contc,1ds that the publication of this poster not only amounted to the exercise of "undue influence" within the contemplation of s.123 ( 2) but also constituted an attempt to obtain or procurn assistance from the members of the Armed Forces of the Union for fur- .thcrance of the prospects of the retumed candidate's election within the purview of :; J 23 (7).

The contc'.1tion is ingenious but unsusruinablc.

Doubtless the definition of 'undue influence' in sub-s. (2) of s. 123 is couched in very wide terms, and on first flush seems to cover every conceivable act which directly or indirectly interferes or attempts to interfere with the fn:e exercise of electoral right. In one sens1~ even election propaga:ada carried on vigorously, blaringly and system21tically

through charisma! leaders of through various media in favour of '.! candidate by recounting the glories and achievements of that candidate or bis political party in adminisrrative or political field., does meddle with and mould the independent volition of electors, !raving poe:r reason and little education, i.i the exercise of their franchise.

That such a wide construction would not be in consonance with the intendment of the legislature is discernible from the proviso to this .clause.

The proviso jllustrates that ordinarily interference wit:h the free exercise of electoral right involves either violence or threat or r.:ijury of any kind to any candidate or un elector or inducement or attempt to induce a candidate or elector to believe that he will become an object of divine displeasure or spiritual censure. The prefix 'undue'

indicates that there must be some abuse of influence. undu.: influence' is used in contra-distinction to 'proper influences'. Construed in the light of the proviso, clause (2') of s. 123 does not bar or penalise legitimate canvassing or appeals to reason and judgment of th:.: voters or o$er lawful means of persuading voters to vote or not to vote for

a candidate. Ieed such proper and peaceful persuasion is the motivt: force of our democratic process. ,

~ We are unable to 1apprecia~ how the. publicatio'.1 of this poster mtcrfered or was cakulatcd to 10terlere with the free exercise of the .electoral right of any person. There was nothing in it which amounted

BACHAN SINGH v. PRllllVI SINGH (Sarkaria, J.)

to a threat of injury or undue inducement of the kind inhibited by s.123(2).

Nor could the publication of this poster fall within the ambit of s.123(7). The 'members' of the Armed Forces spoken of in this Clause mean persons in flesh and blood and not their inanimate photographs.

In short, the publication of the poster was an act of impropriety hut not one of corrupt practice falling within the mischief of s.123.

No other point has been argued before us.

The appeal fails and is dismissed with costs.

P.B.R.

Appeal dismiscd.

439

BACHAN SINGH

PRITHVI SINGH & ORS

February 5, 1975

R. s. SARKARIA JJ.

People Act, 1951

Naik

cl. 2

Kapil-Sibal

N. D. Bhargava

S. K. Gambhir

s. N. Marwah

Lalita Kohli

K. C. Dua

Naunit Lal

SARIWUA

Prithvi Singh Azad

Bachan Singh

Naurang Singh

Lachchman Singh

Bachan Singh

April 26, 1972

Harcharan Singh

Representation of the People Act, 1951

Azad

Kapil Sibal

Lance Naik Gurdcv Singh

Lance Naik Gurdev Singh

Rabon Majra

Subedar Bachan Singh

Dant Singh

Bhagat Singh

Rulda Singh

Sadhu Singh

Arjan Singh

}iaracharan Singh

Gurdev Singh

Sibal

LfN Gurdev Singh

Gurdev

Gurdcv Singh

s. 123(7)

H l11dira Gandhi

Jagjiwan Ram

Swaran Singh

Election Commission of India

Punjab Pradesh Congress Committee

S. P. Mittal

Punjab

s. 123

s. 123

Sarkaria


UNION OF INDIA

GURBA.KSH SINGH & ANOTIIER

February 5, 1975

[K. K. MATHEW, P. N. BHAGWATI,

AND N. L. UNTWALIA, JJ]

Displaced Pcrsoris (.Compe11sa1ion a11d Rlwbilitai/on) A.ct, 1954 and Ge11ernl Clause& Act (IO of 1891) S. 16, and Const/1111/on of India 1950, Art. 310(1)- l'ost of Asstt. Commissioner tmder 195-4 Act-Whether services of lnwmlm1: cordd b~ tmn/11atd by State Goi•ernmmt.

Under s. 3( l) of lhe Di11placed Persons (Compensation and Rehabilitation) Act, 195,, tho post of Assistant. Settlement Commissioner i~ a post und,1:r th~

Union of India to which the appointment is to be made by the Central G1ivern nwnt.

In exercise of this power the Central Government appointed the first rc1; ponJcnt ro the po3t by order dated 3rd September, 1955. Since the post was emailed

by tho President of India only for a period of 6 months the santion for lh1~ po•I came to llll end on 29th February 1956. The first respondent, however, continued to function on the basis of sanction to il~ continuance given by th~ Siak Government. Thereafter, by an order dated 17th April, 1956, the State Government purported to terminate the services of the first respondent with immediate effect. After some correspondence, on February 18, 1959, the Central Government issued a memorandum that on the expiry of the period of one month given in the earlier memorandum of January 18, 1959 his services stood krmcnated with effect from February 18, 1959. The respondent filed a suit against the Central and the State Governmeal' contending that both their orders terminating bis serviceR were illegal and invalid and for recovery of arrears o[ salary and allowances. The trial con:t dismissed the suit. Iu appeal to the High Court, he contended that his se.n•ice was validly terminated only by the memorandum dated !8th January 1959, is:<ued by the Central Government, am! th .. 1 he was therefore entitled to arrears of salary and allowances upto 18th Fcbn1 ary, 1959. This contention was accepted by the High Court.

Dismissing the appeal to this Court.

HELD : The Central Government alone could terminate the appointment both as the appointing authority us :1lso under Art. 310( I) of the Constitution.

[451 HJ

(a) Tho Stat'~ Government had no power to make the appointment t1.l Ilic F ria&t unles.q such power wa~ conferred upon it by virtue of a direction given by the Central Government under s. 34, but there W!!S no such direction in the present case. The Central Government ool:i empowered the State Government to nominat" the persoti to be npoointed 'to th~ post bat the appoinlme1:t of th~ rierson so nomi.nated could only be made and, in fact, was made by th~ C(ntn1l Government by its order dated 3rd fieptcmber, 195S. [450 D•Fl

(b) Tho State Government's order date<! !st December, 1955 purporting to appoint tho first t'C!IPOndcnt was roely a forn1al nppolntmeut letter pursuunit to (; tho suggestion of the Central Government.

It had no legal consequence r.incc hy that ti.roe the first rpondent was already appointed to the post. (450 Gl

(c) Moreover. the post was sanctioned by the President of India and cm1tecl

h) the Central Government and the whole of the expenditure in connection with it was to be borne out of funds allocated by the Central Government.

Th~ State Government's order pnrporting to acoord sanction to the creation of ; he post was only for the purpose of reg'Jfarising its mm accounlq procednre in di, bursing the amount allocated by the C.cntral Government. [450 H-451 BJ H

(d) When the questiocr regarding the issne of pay slip in favour of the li.fst respondent for the pc•riod subsequent to 29th February, 195fi, arose, th~ ;\ccountant General of !~ State pointed out that the sanction to the continuance

?f the post aiven by the State Government was. meaningless and ineffective and ii could not be acted upon until receipt ot sanction to its continuancy from the Central Government. [451 C-D)

Therefore, the Central Government, which was the appointing authority could terminate the service of the first respondent under s. 16 General Clause~ Act, 1897. [451 G] - ' '

(e) There is no provision under which the State Government could hve the power to determine the appointment as Assistant Settlement Commlss10ner made by the Central Government under s. 3. The person appointed would hold the post durina the pleasure of the President and only the Central Government would lie entitled to terminate it. [451 GHJ

The High Court was, therefore, ril!ht in taking the view that the order of tho State Government dated April 17, 1956, was ineffectual and invalid and that the service of the first respondent was validly terminated only on Feoruary 18, 1959, by the Central Government. [452 A-BJ

S. R. Tiwari v. Dr. Board, .-4:ra [1964] 3 S.C.R. 55, referred to.

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 11 of 1968.

From the judgment and order dated the January 16, 1967 of the Punjab & Haryana Hih Court in Civil Regular Firsi Appeal No. 324 of 1961.

R. N. Sachthry, for the appellant.

Harbans Singh, !or respondent No. 1.

The JudiltJ.ent of the Court was delivered by

BHAGWATI, J.

TLe questio~ that arises for determination in this appeal is as to which authority was entitled to terminate the service of the first respondent-tho Central Government or the Government of Punjab.

The firs• respondent was, prior to his appointment as an Assistant Settlement Commissioner, holdin1 the post of Deputy Registrar, Land Record in a temporary capacity under the State ot Punjab. The first respondent had no lien on any permanent post and was a _temporary servant of tho Punjab Government. On the coming into force of the Displaced Persons (Compensation and Rehabilitation) Act, 1954

(hereiniaft.er refeired to as the Act) it became necessary to appoint officers and staff in tho Stato of Punjab for the purpose of carrying out various functions and duties under the Act. One of such fl!nctions

and duties was grant of proprietory rights to quasi permanent allottees of agricultural land ar4d houses in the rural areas in the State of

Punjab. The President of India, therefore, sanctioned the creation of certain posts-which included two .posts of Assistant Dirctor to be designated as Assistant Settlement C'.onunissioner under the Actfor a period of six months from the date of promulgation of the Rules framed under the Act "for the work connected with the conversion of quasi-permanent allotee,, into permanent ones" and the Central Government, by its Jetter dated 18th April, 1955 conveyed this sanction to the State Go•ernment. This letter contained a direction that tho O'fer-all oxpenditurc in connection with these posts

14-423SCI\75

sanctioned by the President of India should not exceed Rs. 6.50 lacs and it would be shared between the Central Government and the State Government in the ratio of 50-50. It was also suggested in this letter that the names of officers appointed as Assistant Directors and Naib Tehsildars should be intimated in due course for issue of necessary notifications under the provisionf of the Act. The State Government, by its letter dated 3rd July, 1955, pointed out to the Central Goverament that having regard to the large magnitude of the work involved, it would be necessary to have two whole-time officers exclusively devoted to this work and suggested that two posts should, therefore, be permitted to be created, one of a Deputy Secretary "who would have administrative control over all the mana,1iing officers and settlement officers and the staff appointed in connc.o::tion with the conferment of permanent rights" and the other of an A1~is

tant Settlement Commissioner. It appears that the Central Gov1:r .... ment in the mean1ime reconsidered its earlier decision that the expenditure on the posts in connection with the grant of proprietory rights to quasi-permanent allottees should be borne 50-50 between the Central Government and the S•ate Government and by 'ts letter dated 20th July, 1955 intimated to the State Government that the C'.-enfral Government would bear the entire expenditure on the staff appointed to these pots on condition that "the staff in question will be engaged for a period of six months only". The Central Gove:rnment thereafter, by its fotter dated 23rd July, 1955 conveyed the sanction of the President of India to the creation of one post of Additional Settlement Commissioner and one post of Assistant Settlement C{llllimissioner "for a period of six months for the work connected \vith

the conversion of quasi-permanent allotments into permanent ones on the scale of pay noted against each plus usual allowances admissible to the State Government employees of their status". We are corn-· cerned in this appeal with the J'OSt of Assistan't Set'lement Commissioner sanctioned by the President of . India as mentioned in this letter dated 23rd July, 1955.

Though the order of appointment of the first respondent to the post of Assistant Settlement Commissioner was not yet passed, the first respondent relinquished charge of his post of Deputy Registrar, Land Record and assumed charge of the post of Assistant Settlement Commissioner on the forenoon of 1st August, 1955 as appears from the certificate dated 1st August, 1955 (E'x. D-1). The Central Government thereafter, in exercise of the powers conferred by sub section ( 1) of section 3 of the Act, issued a notification dated 3rd September, 1955 appointin, g the first respondent to the post of Assist3nt Settlement Commissioner "for the purpose of performing the

functions assigned to an Assistant Settlement Commissio•er by or under the Act". The Ontral Government also issued another notification of the same date in exercise of the powers conferred by sub-section ( 1) of sedtion 3 of the Act directing inter alia that the first respon• dent: who has been a'ppoint~. under that sub-section to the post of

Ass1stan;. Settlement Comm1ss1oner, shall perform the functions assigned to an Assimnt Settlement Commissioner by or under the

Act "only in respect of agricultural land situated in the State of Punjab in rural area as defined in clause (f) of rule 2 of the Displaced Persons (Compensation and Rehabilitation) Rules, 1955, including houses, if any, in any such area allotted along with such lands". A copy of the notification dated 3rd September, 1955 appointing the first respondent to the post of Assistant Settlement Commissiornr was forwarded by the Central Government to the State Government along with its letter dated 3/7th September, 1955. The Central Government also addressed a let'ter dated 21st September 1955 !0 the State Government pointing out that since the 1st Respondent was to work as a whole time Assistant Settlement Commissioner, it was presumed that he had relinquished charge of his previous office and adding that the first respondent having already been notified as an Assistant settlement Commissioner and a copy of the relevant notification having bee~ forwarded to the State Government along with the let'Ler dated 3rd/7th September, 1955, "formal appointment letter" may be issued by the State Government and copies endorsed to this Ministry". ·

It appears that 'the Governor of Punjab also, by an order dated 30th November, 1955, sanctioned the creation of certain posts which included one post of Assistant Settlement Commissioner "for

ix mon'ths. connected with the conferment of permanent ownership rights OI'i quasi-permanent al!ottees of the land in the Rehabilitation Department with effect from forenoon of 1st August, 1955". Thernafter, on 1st December, 11155 the Governor of Punjab issued an order appointing the first respondent as Assistant Settlement Commissioner "against the temporary post created in the Rehabilitation Department for the work connected with the conferment of permanent ownership rights on the quasi-permanent allottees of evacuee lands for ; i period of six months with effect from the 1st of August, 1955".

The State Government, by its letter dated 15th December, 1955 intimated to the Central Government that the first respondent, appointed as Assistant Settlement Commissioner, had been given the scale of pay as sanctioned by the Central Government and confirmed that the first respondent was working as a whole itime Assistant Settle• ment Commissioner.

The first respondent accordingly held the post of Assistant Settle ment Commissioner and carried out the functions and duties attoached to that post.

Since the post of Assistant Settlement Commissioner was created by the President of India only for a period of six months and the first respondent was appointed to that post by the Central ·

Government on September 1955, the sanction for the post obviously came to an end on 20th February, 1956.

The first respondent, however, confamed to function as Assist•ant Settlement Commissioner on the basis of sanction to the continuance of the post given by the Government of Punjab.

The Accountant General, Punjab took the view that the post of Assisstant Settlement Commissioner held by the first respondeat having been created by the Central Government, the sanction to the continuance of the post received from the Punjab

Government was futile and could not be acted upon until receipt or

448 SUPREME CfOURT REPORTS

(1975] 3 S.C.R.

sanction from the Central Govern_roent, and by his letter dated 21st April, 1956, poi'flted out to the State Government that the pay slip in favour of the first respondent for the period from 18th January, 1956 to 29th February, 1956 was being issued, but so far as the) pay for the subsequent period upto 30th April, 1956 was concerned, "the

sanction to the. continuance of the post of Assistant Settlement Commissioner upto 30.4.1956 which has bee~ received in this office from the Assistant Secretary to the Govemmen~ of Punjab, Finance De:part ment will be acted upon on receipt of "Sanction" from the Government of India as the post was created by them" and an attested copy of the same, if received, "may please be sent to enable this office to issue a pay slip to the officer upto 30-4-1956". In the meantime, however, the Government of Punj•ab, by an order dated 17th April, 1956, purported to termi,1ate the service of the first respondent with immediate effect and direded that the first respondent would be paid one month's salary in lieu of notice..

The first respondent thereafter made several representations to the Central Government as well as to the State Government contending inta alia that he Vv'JS an employee 0i. the Central Government and the State Government was not entitled to terminate his service and the order of termination of his service passed by the State Government was, therefore, invalid. There was no res ponse to these representations for a long time.

It was Jnly on 10th January, 1959 that the Central Government issued a memorandum informing the first respondent that "he was not a servant of the Gov~:rtl

ment of India and that, eTen in case he considered himself to be such, this memorandum should be treated as a notice terminating his

service~ "without prejudice to the contention that ho was not the Government of India's servant." The Cent.ml Government also issued another memorandum on 18th February, 1959 intimating to the first respondent that on the el!piry of the period of one month given. in the earlier memorandum dated 10th January, 1959, his service stood terminated with effect from 18th February 1959.

The first respondent thereupon gave notices to the Central Government as well as the State Government under section 80 of the Code of Civil Procedure and filed a suit ai; ainst the Union of India and the State of Punjab in the Court of th.:: Senior Sub-Judge, Jullundur claiming a declaration that the order of the State Government dated 17th Apr!!.

1956 as also the order of the Central Government dated 10th January, 1959 terminating the services of the first respondent were illegal a.nd invalid ao.id the first respondent continued as an Assistant Settlem1nt Commissioner in the service of the Central Government and praying, for recovery of arrears ol' salary and allowances from 21st April, 1956 being the date on which he was relieved of the office of Assistant Settlement Commissioner. Both the Union of India as well as the State of Punjab resisted the suit.

The commmi defence put forward by them was that the first respondent was a servant of the Government of Punjab and b1ing a te:mporary servant, the Government of Punjab was entitled to terminate his service on giving one month's notice of salary in lieu of notice and his service was, therefore, rightly terminated by the order of the Government of Punjab dated 17th April,

1956. The Trial Court accepted this defence of the Union of India

•.G

and the State of Punjah a'ad dismissed suit of the first respondent with costs.

The first respondent preferred an appeal to the High Court of Punjab and Haryana.

The only contention put forward on behalf of the first respondent at the hearing of the appeal was that the first respondent was servant of the Uaion of India and not of the State of Punjab and the order dated 17th April, 1956 passed by the State of Punjab was, therefore, ineffectual to terminate the service of the first respondent and it was only on 18th February, 1959 that his service was validly terminated by the Central Government by its memorandum dated 10th January, 1959 and he was accordingly entitled to arrears of salary and allowances from 21st April, 1956 to 10th February,

1959. This contention found favour with the High Court and taking the view that the first respondent was a servant of the Union of India oand not of the State of Punjab, the High C'Jurt held that his service was validly terminated only from 10th February, 1959 under the memorandum of the Central Govemmet dated 10th January, 1959 anq accordingly passed a decree in favour of the first respondent against the Union of India for Rs. 22,927.34P. representing >arrears of salary and allowances from 4th August, 1956, beh1g the date three years prior to the institution of the suit upro 10th February, 1959. The Union of India being aggrieved by the decree passed against it preferred the present appeal in the Court on certificate obtain~ under Article 13 3 (1) (a) of the Constitution as it stood at the material time.

As in the High Court, so also Q.efore us the only question debated was as to whether it was the Central Government or the State Government or the State Government which was entitled to terminate the service of the first respondent.

The first respondent did not contend that the termination of his service was by way of penalty and though it was disguised as termination simpliciter, it was in reality and substa'J.ce dismissal and hence violative of Article 311 ( 2) of .the Constitution.

He conceded that if the State Government was entitled to terminate his service, the order dated 17th April, 1956, passed by the Government of Punjab, would be valid.

But his contention was that 'the Central Government alone was competent to terminate his service and he was,,, therefore, cO'ntinued 11s an Assistant Settlement Commissioner until 10 February, 1959 when his service was terminated by the Central Government by the memorandum dated 10th January,

1959. The.Union of India, on the other hoand, contended that the first respondent was a serva1at of the State of Punjab and hence the Government of Punjab was entitled to terminate his service as it did by passing the order dated 17th April, 1956.

Now, if we !00k at the provisions of the ACt, it is clear that it is the Central Government which is constituted the ultimate authority responsible for the administration of the provisions of the Act.

There is a heirarchy of officers constituted under the Act for the puqiose of dischargi 1ag various functions and duties and the final revisional autrority in respect of these functions and duties is vested in the Central Government.

Section 3, sub-section ( 1) confers power on the Central Governmnt to appoint "a Chief Settlement Commissioner, a Joint

SUPRBMB COURT REPORTS

[1975) 3 S.C.R.

Chief Settlement Commissioner, and M many Deputy Chief Settlement Commissioners, Settlement Commissioners, Additional Settlement Commissioners; Assistant Settlement Commissioners, Settlement Offi.· cers, Assisant Settlement Officers and managing officers as may be necessary for the purpose of performing the functions assigned to them "by or under the. Act and the Central Govemment is also given the power by general or special order to provide for the distribution or allocation of work to be performed by them under the Act The post of Assistant Settlement Commissioner--that being the po!; t with which we are concerned in this appeal-is, therefore, clearly a post under the Union of India to which appoi'i1tment is to be made by the Central Government.

It was in exercise of this power conferred by section 3, sub-section (1) that Central Government appointed the first respondent to the post of Assistant Settlement Commissim1er by its order dated 3rd September, 1956. The Government of Punjab had no power to make appointment to the post of Assistant Settlement Commissioner by its order dated 3rd September, 1955.

The Govern ment of Punjab had no power to make appointment to the post of Assista'.at Settlement Commissioner, unless such power was conferred upon it by virtue of a dim; tion given by the Central Government under section 34, but admittedly there was no such direction in the present case. In fact, the Central Government, by its letter dated 18ili April, 1955 requested the State Government to intimate "the •aames of officers appointed as A.ssistant Settlement Commissioner" for issue of necessary notification under the Act.

The Central Government did empower the State Government tG nominate the peson to be appointed to the post of Assistant Settlement Commissioner but the appointment of the person so nominated could only be made and was in fact made by the Central Government by its order dated 3rd September, 195S.

Once the appointment of the first respondent as Assistant Settlement Commissioner was made by the Central Government by its order dated 3rd September, 1955, there was no question thereafter of the State Government once again appointing him to the same post. The State Government, no doubt, by its order dated lst December, 1955, purpoted to appoint the first respondent as Assistant Settlement Commissioner, but that was merely a formal "appointment letter" persuant to the suggestion contained in the letter of the Central Government dated 21st September, 1955. It was an ineffectual and futile exercise which had no legal consequence since by that time the first respondent was already appointed to the post of Assistant Settlement Commissioner by the Central Government legaUy competent so to appoint and he was already functioning as such Assistant Settlement Commissioner. Moreover. the post of Assistant Settlement Commissioner, to which the first respondent was so appointed, was a post sanctioned by the President of India and created by the Central Government and the whole of the expenditure in connection with that post was to be borne out of the funds allocated by the Central Government, vide the letter of the Central Government dated 23rd July, 1955. It is true that the State Government also, by its order dated 30th November, 1955, purpo; ted to accord sanction to the creation of one post of Assistant Settlement Commissioner, but iliat was obviously for the purpose of regularising its own accounts procedure because ilie amount of Rs. 6.50 lacs for meet-

:·\

ing the expenc!iture in connection with the staff for this work was made available by the Central Government to the State Government and it was the Stiite Government which was to disburse the expe11.diture out of that amoU'at.

The post of Assistant Settlement Commissioner having already been created by the Central Government by the sanction of the President of India as conveyed under the lette~ -<lated 23rd July, 1955, did not need validation from the order of the Government or Punjab dated 30th November, 1955. In fact, when the question arose in regard to issue of pay slip in favour of the first respondent for the period subsequent to 29th February, 1956, when the original sanction of the President of India for the post of Assistant Settlement Commissioner expired, the Account':mt General, Punjab pointed out in his letter dated 21st April, 1956 that the sanction to the continuance of the post given by the Punjab Government was meaningless and ineffective and it could not be acted upon until receipt of sanction to the continuance of the po:; t from the Central Government since "the post was created by them." It would therefore, be seen that the post - of Assistant Settlement Commissioner was created by the Central Government and the expeaditure in connection with it was to be met out of the funds provided by the Central Government and it was the Central Government alone which was competent to make appointment to the post and in fact, the first respO'adent was appointed to the post by the Central Government by its order dated 3rd September, 1956. It this be the correct .position, as it undeniable is, there can be no doubt that the Central Government alone could terminate the service of the first respondent. It is 1,1ow a well settled rule of interpretation that a power to appoint ordinarily implies a power to determine the employment.

That was pointed out by this Court in S. R. Tiwari v. District Board, Agra(!) :

"Power to appoint ordinarily carries with it the power to determine appointment, and a power to terminate may in the absence of restrictions express or implied be exercised, subject to the conditions prescribed in that behalf, by the authority competent to appoint."

This rule is also foU'nd incorporated in section 16 of the General Clauses Act, 1897. It is, therefore, clear that the Central ; Government which is given the power to make appointment to the post of Assistant Settlement Commissioner under section 3, would also have the power to determine the appointment.

The Central Government would also be entitled to terminate the appoi'atrnent, since the post of Assistant Settlement Commissioner is a post under the Union of India and the person appointed to it would hold it during the pleasure of the Presi- dent.

There is no provision under which the Government of Punjab could have the power to determi'i.1e the appointment as Assistant Settlement Commissioner madei by the Central Government under section 3.

The Central Government alone could terminate the appointment, both as the appointing authority as also under Art. 310(1) of the Consti-

(1) [1964] 3 S. C.R. 55.

tution.

The High Court was, therefore, right in taking the view that the order of the Punjab Government dated 17th April, 1956 was ineffectual and invalid and the service of the first respondent as Assistant Settlement Commissioner was validly terminated only on 10th February, 1959 whe'il the Central Government, by its memorandum dated 10th January, 1959, gave notice terminating the service of the first respondent. . There was no dispute before us that if the s1!rvice of the first respondent came to an end on 10th February, 1959, and not earlier on 17th April, 1956, the first respondent would be entitled to a sum of Rs. 22,927.34P. as decreed by the High Court.

The appeal, therefore, fails and is dismissed with costs in favour of the first respondent.

V.P.S.

Appeal dismissed.

UNION OF INDIA

GURBA.KSH SINGH & ANOTIIER

K. K. MATHEW

P. N. BHAGWATI

N. L. UNTWALIA, JJ

S. 16

Art. 310(1)

s. 3( l)

Central Government

February 18, 1959

Art. 310( I)

s. 34

s. 16

s. 3

[1964] 3 S.C.R. 55

R. N. Sachthry

Harbans Singh

BHAGWATI

Government of Punjab

Punjab Government

President of India

18th April, 1955

India

3rd July, 1955

Central Goverament

Central Gov1

20th July, 1955

23rd July, 1955

section 3

3rd September, 1955

Act

3/7th September, 1955

3rd/7th September, 1955

1st August, 1955

1st December, 11155

1st of August, 1955

15th December, 1955

20th February, 1956

Government of India

Government of Punj•ab

17th April, 1956

10th January, 1959

18th February, 1959

section 80

the Code of Civil Procedure

Union of India

State of Punjab

Government of Punjab

17th April,

1956

State of Punjah

High Court of Punjab and Haryana

21st April, 1956

10th February,

1959

Article 13

Article 311

10 February, 1959

10th January,

1959

Section 3

section 3

section 34

18ili April, 1955

3rd September, 195S.

lst December, 1955

21st September, 1955

30th November, 1955

3rd September, 1956

section 16

General Clauses Act, 1897

Central ; Government

section 3

section 3

Art. 310(1)

[1964] 3 S. C.R. 55

10th February, 1959


RA VINDER SINGH

STATE OF HARYANA

Februflfy 7, 1975 [V. R. KRISHNA IYER, P. K. GOSWAMI AND R. S. SAllAIUA, JJ.]

Criminal Trial-Statement of the approver-Appro:ver's evidenu to be tested by the touchstoM of independent credible evidence.

Criminql Tria/-lssue-Estoppel-Parties and facts-in.Jissue to be the same m both f(za/3-A.pprovers statement not materially corroborated by other evidene, against an 11ccused 'In anothe~ trial-Cimviction, if could be based on the testimony. of the same apyrover azamst another accused in a difierent triai.

The case of the 'prosecution is that the appellant who was married to Bimla was employd in the Air Force Department at Sirsa. Durina his stay at Sirsa, when his ~1f.e .was not there, he developed intimacy with a aifl, Balbir' Kaur, who was .ms1stin~ on. marnaee, which however, the appellant posing to be a bachelor was putuns o!T holdma out hopes to her. The appellant and the Jasbir Jnder Singh (approver) who was his friend, want on two months' leave. When

the appellant and the approver went to brine Bimla back from her father's house at Komt1, the appellant asked his wife that she should a11ree to a div01ce, but she would not. .·· The appellant used to say that he would finish his wife cne day.

On July, 29, 1968, Bhanu Prakash, cousin of the appellant went to the house of the appellant. On the same day the approver alsc returned from Lucknow.

On July 30, the accused told the approver in the presence of Bhanu Prakash Singh. that he would kill his wife that day.

He replied that he had brought acid with him and it would help in expediting her death. On July 30, 1969, the appellant, his wife Bimla, his brother Satinder Kumar, the approver dnd Bhanu Prakash Singh left for Sirsa bv train from Sasni Rai!wy Station which is at a distance of four or five miles from KOiari.

After leaving Sasni at 12 Noon, they arrived at Delhi Railway Station at 6.30 P.M. and changed for Bhatinda Railway Station. T: y reached Rewari Railway Station at about 10.30 P.M. At Rewari their bogie was attached to the train bound for Srlsa Bhatinda. When the train left Rewari at l.15 A.M. on Tuly 31, 1968, there WM no other passenger in the compartment except the above five persons.

The train stoppect for some time at the next Railway Station. When it aeain started. the accused threw his wife :Simla on .the ftoor .if the compartment by catching bold of her by the neck. When she fell down in the compartment the approver ca\lght hold of her by the feet and Bhanu , Prakash Singh "threw acid in her mouth". Satinder Kumar did not take any part: The accused removed the pazebs from her feet and gold jumlas from her .ears. The accused threw Bimla from the running train in between the first and the second railway sta.tions beyond Rewari. Some acid drops fell on the hands of the accused and Bhanu Prakash Singh and on their pants and lln the accused's shirt. When the train reached Bhiwani the accused got down for purchasing two tickets f6r Bhaiiu Pral:ub Singh and tinder Kumar, but the Ticket <;:ol lector, Ragbbir Singh (PW 29) detained hiln and he missed the train. Three of the aforesaili company reached Sirsa at 9.00 A.M. on July 31, 19G8.

When asked about the accused, the approver told Baosi Lal (PW 25) and Yudhishter Kumar' (PW 26) that the accused had missed the train at Bhiwani and would be coming by the next train. The accused arrived at Sirsa 11t 1.30 P.M. on July 31 . Bhanu Park:uh Singh left for Aligarh in the evening ot August 1. The accused and the approver resumed their duties at the Air Forllll Station on August 2. 1968.

Bimla who had been thirown from the running train waa ricled up, si:mi conscious, by Udmi (J'W 10) and another person from !l railway tr.ack betwee!1 Tatusana and Kosli Railway Stations, and taken to Railway HospttGI, Rewan, Where Doctor (Miss) K: Dass (PW 3) and Miss V. K. Sharma, Nurse (PW 2)

SUPREME. COURT REPORTS [ 197 5] 3 s.c.R.

attended upon her: Shi: could speak out a little before Mi•s Sharma, g:ave her A name as B11nla, wife of the accused and daughter of Narain Smi:h, and indicated that she was travelling wiih her hmband by train. She wai; later Sl:nt to 1he Civil

Hospital, Rewari, whm: she was received by Dr. Manocha (PW 1). She was not in a position to ma:k.e a statement at the Civil Ho•p:tal and she expired at g,45 P.M. on July 31, 19_68.

The appellant husband being Charged under section 3(); l.!34, I.P.C. nlong Nith some others obtained an acquittal from the Trial Judi; e.

Oa the State's Appeal, the High Court entered his conviction under section 302, I.P.C. and was I} given life sentence.

Under section 2 of the Supreme Court l Enlargement uf Criminal Appdlate Jarisdiction) Act, !970, this appeal nas been preferred.

It was lOntended for the appellant that (i) the approver was not a reliable witness; (ii) the approver's statement was not corroborated in material p<1rtkuiars by other evidence connecting the accused with th' rime; and that, in as much as the High Court has, in the appeal by Bhanu l'irakash Singh, acqui'.ted him, on rhe ground that the approver'g evidence was not corroborated in matenal particuJars, the rule of igsue-estoppel should be applied in uppellaut's favou;·.

C Rejecting the contentions.

HELD : (i} and (ii) An approver is a mmt unworthy fiiend, if at <11! and he, having bargained for his immunity, must prove his worthiness for nedibility in court. This test is fulfilled, firstly, if the story lie relates involves him in the crime and appears

111strins1cally IO be a natural and probable catalogue of eve.its that had taken olace.

The st.ory tf g!ven of minute details according with reality is likely ro D save it from being rejected brevi manu.

Secondly, once that hurdle is crossed, the •tory given by an apJPrOver so tar as the accused on trial ts oncerned, must implicate him in such a manner as to give rise to a conclusion of guilt beyond reasonable doubt. In a ram case taking into consideration all the facton;, circumstances and situations governing a particular case, conviction bSJSed on the . uncorroborated evidence of an approver confidently held to be true and reliable by the .:ourt may be permissible.

Ordinarily, however, an approver's statement has to be corroborated in material particuJarg bridging closely the distance bet- E ween the crime a.nd the criminal. Certain clinching features of involvement disclosed by an approver appertaining directly to an accused, if reliable, by the touchstone of oiher independent credible eviden:e, would give the needed assurance for accep'.ance of his testimony on which a conviction may be based.

[459B-H]

Judged by these principleg, the evidence of the approver, while revealing the story, stands amply corroborated by the facts deposed to by the independent

Witnesses m certain material and clinching aspects and c .. mneeling the a1; cused l with the crime. [4600]

\iii) ln ord•r to invoke the rule of issue-estoppcl not only \he parties in the two trials must be the rnme but also the fact-in-issue proved ur 110t m the earlier trial must be ideatkal with what is sought to be reagitated in the subsequent trial.

[4610-E]

Lalta and Ur~. v. State of Uttar Prade.rh, [l 9691 2 S.C.R. 526 and Tlie King

v. Wilkes, 77 S.L.R. 511 at 518 referred to.

Manipur Administration v. Thokclwm Bira Singh [1964] 7 S.C.R. 123 at p. 133, relied On.

In the present case, the parties are the State and the appellant. In the other case relied upon, the parties were the State and the accused Bhanu Prakash Singh. There is no inconsistency between the finding that the approver's statement there was not materially corroborated by other evidence ai, ainst Bhanu Prakash a11d the contrary rinding i11 the affirmative in the present case against the appellant.

[461E-FJ H

CRIMINAL APPELU•TE JURISDICTION : Crimin.al Appeal No. 156 of 1974.

rom the Judgmen~ and Order d<ttt"J 12th February, 1974 of the

r~ib & Haryana High Court in Criminal Appeal No. 1055 of

R. K. Garg, S. C. Agarwal and V. J. Francis for the appellant.

H. S. Marwah and R. N. Suchthe.y, for the resp0ndent.

The Judgment. of the Colirt was delivered by

. GoswAMI, J. On July. 30, 19?~· Bimla, a hale and hearty young girl. ( 19), mdeed, by her nght, leg1t1mate wife of the accused Ravinder Si1!-gh. (23 l, accompanied on a rail journey her husband, ho. after er.ioyrng two months' furlough at home, r.:::unwJ to his Air forcc Station at Sin, a without her and without the !ea~'t concern.

She was found next morning nearby a wayside distant railway station with acid ?UL:m n her fce and on other parts of the body with multipl~ in- ]tmes, mcapac1tated by the shock and affiliction, to tell her gruesome

stiry tr the few persons who came l>y h.::r.

The only unchallenged thmg was that she was pronounced dead in a hospital on July 31, 1968, at 8.45 PM.

Did the husband cause the murder of his wife, is for a final judicial solution before us.

The accused husband being charged under section 302/34, I.P.C., along with some~ others obtained an acquittal from the Ttial Judge.

Government'~ c.1nscience was roused and the High Court on the State's appeal entered his convidion under section

302 l.P.C., Shrinking, however, from administering the extreme penalt:r under the law. That is how the liter is before u~ in this appeal as a matter of right under section 2 of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act 1970.

The entire story as given below is revealed 1by a friend of the accused, approver Jasbir lnder Singh (21) (PW 5), who "'.as arrsted along with the accused on August 13, 1968. Accused Ravmder Smgh and the approver were employed in the Ai~ Force Departm.ent at. Sirsa and were good friends. Bhanu Parkash Smgh, smce acq1; t<ted, 1s the cousin of the accused. Satinder Kumar (11) is the accused's brother.

Daring his stay at Sirsa, when his wife Bimla was not there, the accused developed intimacy with a girl, Balbir Kaur, who "."as insisting on marriage which, however, the accused posing to be a bachelor was putting off holding out hopes to her. Both the accused ana the approver took two months' leave, the former to constru.ct his house at village Komri. The accused and the approver with SatiJider Kumar reached Komri on June 3, 1968, when Bimla was in her parents' house. On June 12 or 13, the accused and the approver went to bring her back from her father's house, but on account of a son being born to her brother's wife, a few days earlier, the father-in-law sc1id that he would .send her after some days. This led to some exchange Of hot word~.

Howei.1er, after 7 or 8 days, Bimla returned to 'her husband's home with her.fathe.r and. brother. Lekh Raj Singh (PW 1'8). The accused went in early 'July to see Bhanu Parkash Singh, his cousin, who was employed as Health Visit& at Arnod Dispensary and returned after S

SUPREME COURT REPPRTS

(1975] 31 S.C.R.

or 10 days. The approver was in the accused's house during the

periOO. The accued ar, ked his wife that she should aee to a divorce, but she would not. The accused used to say that he would finish his wife one day. On July 29, 1968, Bhanu Parkash Sinh came to the accused's house.

On the same day the approver also returned from Lucknow where he had gone 7 or 8 days back. On July 30, the accused told the approver in the presenec of Bhanu Parka.sh Singh that :he would kill hig wifo that day. Bhanu Parkash Singh replied that he had brought acid with him and it would help in expeditini her &ath.

On July 30, 1968, the accused, his wife Bimla, the approver, Bhanu

Parkash Singh and Satinder Kumar left for Sirsa by train from Sasni Railway Station which is at a distance of four or five miles from Komri.

The father of the accused came to sec them off at the Railway Station.

The acq1sed booked a cycle at Sasni Railway Station and purchased two tickets for his wife and Bhanu Parkash Singh, but did not purchase anv ticket for Satinder Kumar. Both the accused and the approver bad Military Railway Warrants for travel.

After leavin2 Sasni at 12 Noon, they arrived at Delhi Ra.ilway Station at 6.30 P.M. and chan2ed for Bhatinda Railway Station. They reached Rewari Railway Station at about 10.30 P.M. At Rewari their bogie was attached to the train bound for Sirsa-Bhatinda. When the train left R.ewari at 2.15 AM. on July 31, 1968, there was no other passenger in the compartment except the above five persons. The train stopped for some time at the next Railway Station.

When it again started. the acc:used threw his wife Bimla on the floor of the compartment bv catching hold of her bv the neck. When she fell k!own in the compartment the approver caught hold of her by the feet and Bhanu Parkash Singh "threw acid in her mouth". Satinder Kumar did not take anv part. The accused removed the pazebs from her feet and gold jhumkas from her ears. The accused threw Bimla from the mnming train in between the first and the snd railway stations beyond Rewari. Some aci(l drops fell on the Hafids of the accused and Bhanu Parkash Singh and on their pants and on the accused's shirt. When the train reached Bhiwani the accused got down for purchasing two tickets for .Bha111ii. Parkash Singh and Satinder Kumar, but the Ticket

Collector, Raghbir Singh (PW 29) detained him and he missed the train. ThrCFt>f tht.tlforesaid company reached Sirsa at 9.00 A.M. on July :n, 1968. When asked about the accus~. the approver told Bansi Lal (PW 25) and Yudhishter Kumar (PW 26) that the accused had missed the train at Bhiwani and would be coming by the next train. lbe accu11ed arrived at Sirsa 'at 1.30 P.M. on July 31. Bhanu ParkOO!t Sin~ lft for Aliv.arh in the evening of Aultllst 1. The accused and the 1lpprover resumed their duties at the Air Force Statii:>n on August 2, 1968.

On August 3, 1968. the mother ofJhe accused and her nephew, Malklum Singh, came to Sirsa and she told that Bimla hQlf .J>een admittea in the Civil Hospital, Rewari, and suggested thatlbey should register their prescmce in the Air Force Station at Sirsi' ; norder to sa,•e themselves. On August 4, tho accused and the approver went t~ .· t11e

RAVINDER v. HARYANA (Goswami, J.) 457

Medical Assistant at the Air Force Station and the accused showed the burns on his hands and the Medical Assistant (PW 50) made a not• in his register. They decided to leave their house at New Mandi and again started living in the barracks of the Air Force from August 8.

Both of them were arrested from the Air Force barracks on August 13,

196$. This is as disclose~ by the approver (PW 5).

Let us now turn to tho fate of Bimla thrown from the running train. She was picked up, semi conscious, by Udmi (PW 10) and another person from a railway track between Jatusana and Kosli Railway Stations, and taken to Railway Hospital, Rewari, where Doctor (Miss) K. Dass (PW 3) and Miss V. K. Sharma, Nurse

(PW 2) att1:; nded upon her. She could speak out a little before Miss Sharma, .!!ave her name as Bimla. wife of the accused and daughter of Narain Singh, and indicat~ that she was travelling with her husband by train.

She was later sent to the Civil Hospital, Rewari, where she was received bv Dr. Manocha (PW 1). She was not in a position to make a statement at the Civil Hospital and she exPired at 8.45 P.M. on July 31, 1968.

Postmortem examination of Bimla disclosed lacerated wounds on the head and multiple abrasions on different parts of the body. Face was disfigured by acil:I burns caused by sulphuric acid. Thero were: other stains on the body which, according to the Doctor, were of sulphuric acid. Cause of death, in his opinion, was due to shock on account of burning caused by sulphuric acid. Sulphuric acid was also found by the Chemical Examiner on jumper, dopatta, and petticoat E in the wearing of the deceased.

The Additional Sessions Judge disbelieved the approver and also held that his statement was not corroborated in material particulars.

H~' heid that motive was not established nor was the dying declaration proved. The Hi&h Court, however, found that the approver, who was admittedly a friend of the accused, was a reliable witness and his statement did not suffer from any defoct whatsoever. The High Court further held that the approver's statement was corroborated in material particulars by other evidence connectinlil the accused with tho crime.

Since the accused has come in appeal against the judgment of the High Court as a matter of right, wo have heard his learned counsel at length and also examined the evidence with care. We are unable to hold that the !Jigh Court committed any error or injustice in interfering with the acquittal in this case.

The most important material aspect in the case is with regart:l to the accused accompanying the deceased in the train on July 30, 1968.

This is not only disclosed by the statement of the approver but . i~ corroborated by evidence aliunde. The very fact that she was found away from her home at a distant place by a wayside railway track: i~ consistent with her travelling in the train on the fattful day. The defence of the accused that ho leff for Delhi on July 29, 1968 and "my_

-4 58

SUPKEME COURT REPORTS

(1975] 3 S"C.R.

w1k luilowed me w1tt1 large gold and silver ornaments on her p.rson

anu sne was robboo and blled on the way" is most unnatural and 1mprooao1e ano cau sare1y be cnaractenseo as raise. 1ne accusect was dnx1ous w bnn£ J.us wire home from her father's house. He war. returnmg to a dmant place by train after enjoying his leave and them was no eartnty reason to leave the young wi1e b..:rnnd to travel alone in the

uam w1t11 gold and silver ornaments'' with attendant risks. lhen agam there is tne evidence of Miss V. K. Sharma (PW 2) to the dJ:ect nat she "also understood from her (deceased's) talks that she was. procecdmg to Sirsa with her husband". She is an absolutely independent witness and there is no reason to disbelieve her statement.

Shi~ has no ammus against the accused nor can it be accepted that she had been tutored by the police to give evidence in this case against the accused.

The fact that this information was not recorded in the note Ext. PA/2 would not affoct the veracity of the witness since her comprehension of

tie rleceased's talk wa.s not otherwise challenged. Nothing has been pointed out to show that this witness either had not menti()ned about this fact to the Investigatin& Officer earlier or had stated something inconsistent with the same. Then we have the evidence of Raghbir Singh <PW 29). Ticket C-Ollector, Bhiwani. It appears from his evidence that the accused was detained on July 31, 1968. by him at the Station when he returned from the Booking Office after purchasing

3± tickets which according to the aix:used were necessary for rnme passengers travellin, g in the train. From his evidence it also appears that the accused hali return-journey Railway Warrant. Besides, when money was de.manded from the accused for travelling without tickets of those 3! versons from Sasni to Bhiwani, he gave a writing, Ext. PL dated 31-7-68 to him. This witness.is also an independent witness and has no enmity against the. accused. We have no reason to think thathe will falsely implicate the accused after being tutored by the police, as suggested. Further we have the evidence of Yuklhishter Kumar <PW 26) who states about the approver, Satinder Kumar an; l Bharrn Parkash Singh <; orninJ!: to him at Sirsa on Julv 31 at about 10.30 A.M. without the accused.

He also stated that the accused came there at about 1.30 P.M. the same day.

IDs evidence, which is not even cha1Jenged. establishes the story about the three persons arriving at Sirsa wit.bout the accux! who had already missed the train at Bhiwani.

The evidence of Shakti Parshal'.! Ghosh (PW 17), A.S.M., Sasni Railway Station. proves that the accused booked his cycle No. RK- 162872 Make Road King from Sasni to Sirsa on July 30, 1968, as per the forwarding note. Ext. PW 16 /A (original Ext. 17 /A) which fact is J]so proved by PW 16, Surinder Kumar, A.S.M. PW 17 categorically

states tr.at the accused came to him for booking the cycle and filled in the forwarriing note. It is pointed out that PW 17 did not see the

accusPd at the Railway Station at the arrival of the train as he went to the brake-van direct. It was not at all natural for the witness to follow he movement~ of. the accused after he had b'1oked the cvcle.

There is. therefore. 11othinit unusual in his not noticing the accuiseci later on the arriv.al of the train.

.RWINDER v. !iAllYANA (Goswami, J.) 459

We also find from the approver's evidence that the accused went to the Doctor of the Air Force on August 4 to show the bums on his hands. This fact is deposed to by PW 50, Sergeant R. N. Singh, who worked as a Medical _Assistant in the Unit of the First Aid Post at the Air Force Unit Accordin2 to him the accused came to him on August 4. 1968, at about 7 00 AM. an'cl reported that both his hands had acid burns. He also proved the endorsement to that effect in the re_gister (Ext. PT) maintained in the First Aid Post. This fact is not denied by the accused and according to hjm, he had these burns as he. being a storeman. had to deal with batteries an'cl some acid fell om his hands. and that is why he went to PW 50 for treat111ent.

In his statement in the court recorded on April 25, 1969, after admitting the above facts the accused also asserted that "there are no marks of acid burns on my hands now". In cross-examination of Dr. Manocha (PW 1) it was elicited that "the sqlphuric acid burns if superficial and not infected an'd treated immediately in due course may not leave a mark. otherwise it should leave a mark". In view of this medical evidence there is no significance attached to the accused not having marks of the iniuries on his hands after about nine months. The injuries due to a few accidental drops may even be superficial. It is significant that PW 50 was not even cross-ex:amined with regard to the burns being caused by acid from batteries. The accuse(l's explanation that the acid !rom the battery caused these burns on his hands is absolutely an after-thought. ·

An aoprover is a most unworthy friend, if at all, and he, having bargained for his immunity, must prove his worthiness for credibility in court. This test_ is fulfilled, firstly, if the story he relates involves him in the crime and appears intrinsically to be a natural and probable

ctalogue of events that had taken place. The story if given of minute details according with reality is likely to save it from being rejected brevi m'11JU. Seconlly, once that hurdle is crossed, the story given by a:1 approver so far as the accused on trial is concerned, must impli- 1' -cate h'm in such a manner as to give rise to a conclusion of guilt beyond reasonable doubt.

In a rare case taking into consideration all the factors, circumstances and situations governing a particular case, conviction based on the uncorroborated evidence of an approver confulently held to be true and reliable by the court may be permissible.

Ordinarily, however. an approver"s statement has to be corroborated

in material particulars bridginl!: closely the distance between the crime and the criminal. . (', ertain clinchin2 features of involvement disclosed by an approver appertaining directly to an accused, if reliable, by the touchstone ot other independent erodible eVidence, would give the needeld assurance for acceptance of his testimony on which a conviction may be based.

The approver here ws a constant companion of thi= accused. He was arrested along with the accused on August 13. He was in police custody till August '27 when he was sent to the jail theraftcr.

Hi~ wrote throu11h the Jail Superintendent to the Magistrate on August 29

Sm'B.EME COURT REPORTS

[1975] 3 :S.C.R.

expressin2 willi.n&ness to give evidence as "sultani gawa" originally A (King's witness). He was then granted conditional pardolli on September 6 and was examined therefater as a prosecution witness.

Every apprm; er comes to give evidence in some such manner seeking to purchase his immunity and that is why to start with he is an unrdiable person and the rule of caution calling for material corroboration is constilntly kept in mind by the court by time-worn judicial practke.

Ignoring for a moment that PW 5 is an approver, there is nothing in his evidence to show that his statement otherwise is unreliable, unnatural or improbable. There i! nothing to show that he had on any earlier occasion made any contradictory statement on any material point.

It is true that an approvtr is a person of low morals for the reason that he being a co-participator in the crime has let down his compaiiion. As pointed out above it is for this reason that a rule of caution has 1vown whereby the court has to see if his evidence is corroborated in material particulars connectine; the ac_cuscd with the crime. . . '

Juded by the principles mention above, the evidence of the a.ppr.?" ver, as already set out, while rev_ealing; the story stanrls amply corrobor~ ted by the facts deposed to by the above independent witnesses in cer- . tain material and clinchin2 aspects connecting the accused with tho c:rime.

To mention a fel'i', the fact that the accused was accompaniedy the deceased wife is moved by the statement of PW 2, Miss Sharma.

That the accused got down at Bhiwani Railway Station, missed"(he. train and. therefore, had to arrive Sirsa later in the afternoon i~ vrrO.,, borated bv PW 26. That the accused came bv train on July 30, 1968 and not on July 29, 1968, is also established by the evidence of PWs

16 and 17. The accused booked his cycle at Sasni Railway Station on July 30, 1968 (vide PWs 16 and 17) and took delivery of the 'same at Sirsa Railway Station of August 1 (vide PW 20). Then again the ac-. cused reported to PW 50 about his acid burqs on both the , bands on August 4, 1968. These are some material aspects in the case having great relevance to th(• crime committed by the accused and am disclcd bv independent an~ reliable witnesses.

It ,., as not possible for the approver if he had not actually accompanied the accused to make such a detailed statement as he has done, some material paiiS of which find sUPPort from the evidence of the aforesaid witqesses. We arc, therefore, clearly of opinion that the approver's evidence fa not only reliable but the same stankls corroborated in several material parts.

by other reliable cvidc:nce from an independent source. We are also G prepared to believe that the motive for the crime was the illegitimate intimacy with Balbir Kaur.

....

It wa~ then submitted by the apuellant that in a seParate trial Bhanu ·- Parkash Singh Will! acquitted by the High Court. He also produced - the judgment of that case which was pronounced on the same day as in the present case. The learned counsel for the appellant, however H frankly stated that the High Court acquitted the accused.

Bhanu .

Parkash Sin~. since the aporover's cviaence Wru! not found to be corroborated i11 caterfat partieutars. That ..cquittat, therefore, cannot

RAVINDER v. HARYANA (Goswami, J.) 461

A at all influence the decision against the present accused when the approver's evidence is amply corroborated in material particulars

aginst him.

The learned counsel for the appellant relied upon the decision o'f this Court in Lalta and Ors. vs. State of Uttar Pradesh (1) to support his submission that on the principle of issue-estoppel conviction of the appellant cannot be sustained because of the cquittl of Bhanu P'arkash Singh, a co-accused, although in a .separate tnal.

The .crux of the principle of issue-estoppel may be stated in the words of Dixon, J. in The King vs. Wilkes, (2 ) as follows :

. "Whilst there is not a great deal of authority upon the subject, it appears to me that there is nothing wrong in the view that there is an issue estoppel, if it appears by record of itselt or as explained by proper evidence, that the same

point was determined in favour of a prisoner in a prvi.ous criminal trial which is brought in issue on a second cnmmal trial of the same prisoner . . . . . . . . There must e prior proceeding determined against the Crown necessanly mv(}\Ving an issue which again arises in a subsequent proceeding by the Crown against the same prisoner".

In order to invoke the rule of issue-estoppel not only the parties in the two trials must be the same but also the fact:in-issue proved or not in the earlier trial must be identical with what is sought to b: reagitated in the subsequent trial.

In the present case the parties are tne State and the accused, E Ravinder Sinih. In the other case relied upon, the. parties were the State and the accused Bhanu Parkash Singh. Besides. as even admit- . ted by counsel, the approver was not held to be unreliable in that case. while deciding the case of Bhanu Parkash Singh. There is no incon

sitency b2tween the finding that the approver's statement there was not materially corroborated by other evidence against Bhanu P.irkash Singh and the contrary finding in the affirmative in the present case against F.

Ravinder Singh. As has been observed by thi_s P, urt in Manipur Administration vs. Thokchom, Bira Singh,( 3) "issue-estoppd does not prevent the trial of an offence as does autre fois acquit but only precludes evidence being led to prove a fact in issue as regards which evidenc\: has eady been led and a specific finding recorded at an .earlier criminal tnal before a court of competent jurisdiction". There is, therefore.

 no substance in the submission of the learned cou.nsel o:i the basis of issue-estoppel in this case. ·

The Trial Court's reasons for disbelieving the approver did no.tfirtd.·•· . favour with the High Court and rightly so. If the incident deib.ed. , by e ap?rover had .taen. place, as stated. there is nothing improbable or 1mposs1ble about 1t, 1f, 1udged by the standard of a .cool person. the crime could not have been perpetrated in the manner disdosed. It is H evident there was some hatching for the crime and that the opporturtity

(2) 77 C.L.R. 511 at 51(

(3) [1964p S.C.R.';123 at'.133

15-423SCI\75

SUPREME COURT REPORTS

(1975] 3 S.C.R.

to perpetrate it was availed of in the manner done, cannot be dismissed as a fib. The Trial Court disbelieved the evidence of Sampat (P\V 8) with regard to the dying_ declaration of Bimla implicating her husband.

The Trial Court also observed that "there is no doubt in my mind that the story of dying declaration is not genuine". Even so the Trial Court relying upon the statement of Sampat (PW 8) with regard to the dying declaration observed that "the stat':ment of tl]e approver, in my opinion, does not seem to be true". Once the evidence of Sampat has been rejected by the court it should not be made a basis for judging the veracity of other evidence by the yardstick of that unreliable evidence.

The Trial Court fell into that error.

Again the reason given by the Tri3.l Court for the rejection of the evidence of the Ticket Collectvr is also tenuous. There is no reason why the Ticket Collector would spin a story of his own if not giwn by the accused, particularly so whc, even according to the. Trial Court, it does not fit in with the number of tickets actually needed for the. journey. This absence of auy attempt at padding of the evidence goes rather to establish the truth of the testimony of the Ticket Collector. The Ticket Collector nniy established the presence of the accused P.t Bhiwani Railway Mation 1:oming by the connecting train for Sirsa-Bhatinda. Because of these patent infirmities in the approach of the case and appreciation oi the eviclcnce, the High Court was right in interfering with the order of acquittal passed by the .Trial Court.

It is true that in an appeal against acquittal the High Court will b~ slow in interfering with the findings of the Trial Court which has the opportunity to watch the witnesses while giving evidence before it.

That may be largely true where the Trial Court records remarks about the demeanour of the witnesses. Where, however, the prima facie appreciation of the recorded evidence is opposed to even a reasonable appraisement of the same bearing in mind the relevant point or points sought to be established by the evidence, there will b~ no option to the High Court in the interest of justice to step in to do justice in the case.

This is exactly what the High Court has clone in the appeal.

We have considered the case from both the stand-points-whether F the High Court was right in interfering with the acquittal and also whether we would be justified to take the same view as the High Court after examination of tlle evidence afresh. In <:dctition to what we have found above if the accused came in tlle train with his wife on the date in question, about which we have not the slightest d0ubt, his subsequent conduct is a true tell-tale of his guilty mind. We are absolutely I satisfied that the accused has been rightly convicted by the High Court.

G Tn the result the appeal fails and is dismissr<i.

V.M.K.

Appeal dismissed.

RA VINDER SINGH

STATE OF HARYANA

V. R. KRISHNA IYER

P. K. GOSWAMI

Bimla

Sirsa

Balbir' Kaur

July, 29, 1968

Bhanu Prakash

Lucknow

Bhanu Prakash Singh

July 30, 1969

Satinder Kumar

Sasni Rai!wy

KOiari

Sasni

Delhi

Rewari

Srlsa Bhatinda

Tuly 31, 1968

Simla

Bhanu

Prakash Singh

Bhiwani

Bhaiiu Pral:ub Singh

tinder Kumar

Ragbbir Singh

July 31, 19G8

Baosi Lal

Yudhishter Kumar

Bhanu Park:uh Singh

Aligarh

August 2. 1968

Bimla

Udmi

K: Dass

V. K. Sharma

Narain Smi

Civil

Hospital, Rewari

Manocha

July 31, 19_68.

section 3()

I.P.C

section 302

I.P.C

section 2

Bhanu l'irakash Singh

[1964] 7 S.C.R. 123

Bhanu Prakash

R. K. Garg

S. C. Agarwal

V. J. Francis

H. S. Marwah

H. S. Marwah and R. N. Suchthe.y, for the resp0ndent.

R. N. Suchthe.y

GoswAMI

Ravinder Si1!-gh

July 31, 1968

section 302

I.P.C

section

302

section 2

Jasbir lnder Singh

August 13, 1968

Ravmder Smgh

Bhanu Parkash Smgh

Balbir Kaur

Komri

SatiJider Kumar

June 3, 1968

June 12 or 13

Lekh Raj Singh

Bhanu Parkash Singh

Arnod Dispensary

July 29, 1968

Bhanu Parkash Sinh

Bhanu Parka.sh Singh

July 30, 1968

Bhanu

Parkash Singh

R.ewari

Parkash Singh

Raghbir Singh

Bansi Lal

August 13,

196$.

Railway Hospital, Rewari

K. Dass

Sharma

Narain Singh

Civil Hospital, Rewari

Sirsa

Yuklhishter Kumar

Bharrn Parkash Singh

Shakti Parshal'

Surinder Kumar

R. N. Singh

This fact is deposed to by PW 50, Sergeant R. N. Singh, who worked as a Medical Assistant in the Unit of the First Aid Post at the Air Force Unit Accordin2 to him the accused came to him on August 4.

August 4. 1968

April 25, 1969

Sharma

August 4, 1968

Bhanu ·- Parkash Singh

Parkash Sin~.

Parkash Sin~. since the aporover's cviaence Wru!

Bhanu P'arkash Singh

E Ravinder Sinih

Bhanu P.irkash Singh

F.

Ravinder Singh

Sampat

Sampat

P.t Bhiwani Railway

Sirsa-Bhatinda

V.M.K.


SANTO SH

THE STATE OF MADHYA PRADESH

Februafly 7, 1975

[M. H. BEG AND A. ALAGIRISWAMI, JJ.J

Indian Pe11al Code Section 302/149-Common objecr-Concurrent (t•1dings of fac.t-Vicario11s liability of members of an 1111!awf11/ asembly.

118 persons were prosecuted for participation in a serious riot. 5 acused were. discharged by the Committing Magistrate. The Additional Sessions Judge acquitted 61 accused and convicted 52 ur.der section 147 and sentenced them to 2 years' rigorous imprisonment. The appellant was held guilty under section 304p) read with 149. and sentenced to 5 years rigorous imprisonment, under sectlon 325 /149 sentenced. to 2 years rigorous impri; omnent and under section 323/149 sentenced to a month's rigorous imprisonment.

The convicted persons and the State filed appeal~ l)efore the High Court.

The High Court convicted 14 persons including the appellant and altered his conviction under section 304/1/149 into 302/149 for the murder of 3 persons and sentenced the appellant to life imprisonment.

The Learned Counsel for the appellant before this Court contended that the appellant did not participate in the riot.

HELD : This Court is unable to disturb the concurTcnt findings of the two courts below about appellant's participation in the riot. The High Court however, was wrong in holding that the common object of the unlawful :mcmbly was necessarily to cause death of three individuals. In a case like the present there were two factions; one of the oppressors :rnd the other of the oppressed, and the i11te1tion of members of the oppressed faction could be initially, to demonstrate quite lawfully.

The circumstances , ho•ved that the appellant's intention may have been confined to joining a procession for purposes of protest. If it is doubtful that the common object uf ti1e unlawful assembly was to cause death, persons other than those who actually cominitted the acts resulting in death could not be held vicariously liable for murder.

[464F-G; 564H-

466D] .

[The judgment of the High Court as far as appellant is concerned was set aside and that of the Sessions Court restored.]

[ 446G]

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 22 of 1971. (Appeal by Special Leave from the Judgment & Order dated the 30th March, 1970 of the Madhya Pradesh High Court in Criminal Appeal No. 536 of 1 %6).

P. P. Juneja for the appllant.

Ram P1mjwa!!i and H. S. Parihar, for the respondent.

The Judgment of the Court was dctivcred by

BEG, J.

This is an appeal by special leave by one out of 118 persons wb') were prosecuted for participation in a serious riot on Augu>t l, 1965; in village Ganiari, Tehsil Bilaspur, in the State of Madhya Pm· c1csh, as a result of which several persons were attacked with sharp edged weapons and three of them died of wounds sustained by them.

Five •accused persons were discharged by the Committing Magistrate.

One hundred and thirteen persons were jointly tried for various offences punishable under Sections 147, 148, 302, 307, 325 and 323 Indian Penal Code.

Charges were also alternatively framed under Section

302/149, 307/~49, 323/149 an~ 325/149 a¥ainst ~11 of them.

An Additional Sess10ns' Judge of Bilaspur acquitted sixty one accused persons and convicted fifty two persons. He found all the conv~ted persons guilty under Section 147 .P.C. and senrenced them to two years rigorous imprisonment.

We need only mention the other convictions of the appellant before us. He was held guilty under Section 304(1 )/149 IPC and se.ntenced to five years rigorous imprisonrt1ent and under Section 325/149 IPC and sentenced to t"'.o.lears rigoi:dus impriSj)nment, and under Section 323/149 IPC and sentenced t1) a month's rigorous imprisonment.

On appeals by the convicted persons as well as by the State Government, the High Court, while convicting only fourten persons, including the appellant, altered his conviction under section 304(1) /149 IPC into three convictions under Section 302/149 for the murder of three persons Badlu, Santu, Chhote Bhurwa, but it m•ade the :; entences of life impriso•ament concurrent for the three offences. It m.t1intained the other convictions and sentences passed by the learned Ses- :; ions' Judge.

learned Counsel for the appellant has tried to advance some arguments to assail the conviction of the appellant for participation in rioting.

But, we are not impressed by any of the criticisms levelled against six witnesses relied upon by the Trial Court as well as the High Court: Baliram, PW 1, Ganesh Rao, PW 2, Gangaram, PW 3, Bade Bhurwa, PW 4, Kabra, PW 5, and Lulwa, PW 7. The unshaken evidence of these witnesses had established that the appellant had participated in the riot, and chased the victims, and even inflicted some minor injuiries on Baliram, PW 1.

But, beyond that, the participation of the appellant in the actual acts of cutting the limbs of the three persons, who eventually died of profuse bleeding, was not deposed to by any prosecution witness.

Although we are un:able to disturb the concurrent finding of the fact by the Trial Court and the High Court of the participation of the appellant in the serious riot which took place on 1-8-1965 in village Ganiari, we are alsn unable to concur with the view of the High Court that o'.1 facts established, the common object of the unlawful assemblv was necessarily to cause the death of the three individuals who, unfortunately, lost their lives as a result of the out-burse of frenzy of •an outraged mob against persons who, according to the. learned Sessions' Judge, had given cuse to the villagers to be seriously displeased with their nefarious activities. ·

 !he learned Sess; ioas' Judge, while convicting the -appellant under Sect::m 304 (l), had obs1rved : . ·

"I . am inclined to take a lenient view of these klilings ' because the persons killed had become a nuisance to the ·'!lage community \Uid their crirrrtnal acts. knew oo houoo~ or rationaliy. A titne omes when even an orde!1y society' H Tl?volts findr.ig no rellef m the regqlar course.

Thougli such 2:; t; rrr;: riot permissible even in such cases and ranno1' be

c,~.:, uragi?d yet due discrmfrmtion was not lost sightof bt

SANTOSH v. M. P. STATE (Beg, J.) 465

A the assailants and severe. penalty is thus not called for in the present case.' We do not consider these reasons of the learned Sessions Judge, who had given them for convicting the appdlant togethel" with other accused persons under Section 304 (I)/ 149 IPC and sentencing them to five years' rigorous imprisoo,1ment, to be at all sound or relevant in B justifying •a conviction under Section 304(1) /149 IPC. The learned Sessions' Judge had relied upon Kapur Singh v. State of Pepsu('), to hold that, as injuries were inflicted upon the limbs of the three men, who die4"of bleeding, but infliction of injuries on vital parts of the body \"\'.~.s d6ilberately avoided, an intention of anybody to murder was not established.

The learned Session's Judge appears to have overlooked the vadous clauses of Section 300 IPC.

An inten- C . tion to kill is not required in every case.

A knowledge that the natural and probable consequences of an act would be death will suffice for a conviction under Section 302 IPC.

The question on whifb we entertain serious doubts, after examin- . ing the natur~ of "the case 'and the relevant evidence on record is whether the killing {)f -.arty" of the three men who died was within the common dbject of the large number of persons who took part in the riot in D , various wys in a fairly wide-spread area. It may well be that those who actuall.y Inflicted the injuries on the three men who died could be . held Jiable for, causing death in a particularly cruel manner.

Th~ question, nevertheless, remains whether each of the large , number of other .: foters in the village, who took part in various ways in what appeared "to be an , ipsqpge of r; esentmlcnt and hostility against a party three of ... which lost-' their lives,'..:.shared the common object to kill thm or to E .'do acts w])ose: natural and probable results would be their 'deaths.

A refornce made to Chikkarange Gowda & Ors. v. State of Mysoree), would show that each member of a mob needLnot bi:, neces- ' -sarily be lieldfliable for the actions of every other meinber of that: mob .

.-It may be. easier; in some respects, to prove a cominon 'eJ' as a ' basis for a iri?us lia?il!ty under Setion _149 I.PC,' than t'O. f'Stblish F :: a common 1htent10n w1thm the meaning of Sect10n 34 IPC .. -' Nevertheless, as was 'Pointed out by this Coµrf in Chikkarange Gowda's case (supra)~ the princ;:iplc h.as. been well r~_cogn.· ised, since the decision

in 1873 'in Queen v. Sabed Ali (3), that ey offence which may be committed by a merriber of an unlawful assembly will not be necessarily asceribed to or vicariously fastened upon every other member

that assembly by using Section 149 IPC. The likelihood of causing G of_ death by the nature of the actions of the members of the assembly must be, sho\S{t! to be within the knowledge of a member who is to be . made vicariously' liable for a death.

Such knowledge may be inferred from the nature of the actions committed by others in ap unlawful assembly Which the memb_er held vicariously liable continues to associate himself with ;; Iespite 'these actions seen by him or knowii to him,

In a case sucHs the one before us, in which there were two fac- H tions in a village, one ofhe oppressors and the other of the 0ppr<:ssed,

(I) AIR 1956 S.C. 654.

(2) AIR 1956 S.C. 73t.

(3) 20 Sut. W .. R. (Cr.) 5 (A).

smarting under the pain of injuries i_nflicted by their oppressors, the inte1ltion of a member of an assembly could be initially quite lawful.

His object may not go beyond joining a procession for purposes of protest.

We are convinced, on the evidence on record, that the participation of the appellant before us went beyond exhibiting a mere intention to protest. It not only embraced knowledge of likelihood of hurt of some kind to members of the party attacked, but it includd an attack by the appellant on Baliram, PW 1.

The nature of that attack was, however. relatively mild.

At most, from the concerted action of so 'many men a member of the unlawful assembly, on th('. facts and circumstances of the case before us, could be reasonably held to be aware that grievous hurt would result.

After examining all the evidnce relating to the participation of the appellant and others in the riot we are left in grave doubt whe- . ther the assembly had a common object of killing any one at all, even if such was really the object of any particular member or members of the unlawful assembly.

It may be that those who cut the limbs of men who lost their lives due to bleeding could reasonably be held liable for murder.

But, it seems to be unlikely that each member, considering the nature of the riot and the different acts of different members of the riotous assembly, had such an object.

This was exactly the view adopted by this Court in Chikkarange Gowda's case (supra).

As we are doubtful whether the appellant could be held guilty of participation in an unlawful assembly which had the common object of kiiling or even maiming the three men who lost their lives, we think that the appellant could not be convicted under Section 302/149 IPC.

We also think that the learned Sessions' Judge was in error in holding that th.~ appellant could be convicted under Section 304(1) /149 IPC.

For a conviction under Section 304( 1) IPC., it has to be shown that the case of the convicted person falls within one of the five Exceptions found in Section 300 IPC.

It is obvious that the case of the appellant does not fall under any of these Exceptions. If it is doubtful whether the com111on object of the unlawful assembly joined by the appellant was to commit any acts which were either intended

to cause death, or, froin which knowledg:c of likelihood of death could be inferred, we think that persons othetthan those who actually committed the cts resulting in death could not be held vicariously liable for murder.

The result is that we allow this appeal to the extent that we set aside the convictions and sentences of the appellant under Section

3C.2/149 IPC.

We maintained his convictions and sentences under Section 147, 323/149 and 325/149 IPC.

Subject to the modification indicated here this appeal is dismiss.ed.

We understand that the appellant has already undergone imprisunment longer than the longest one imposed for the convictions sustained by us.

We therefore, ctirect that he be released forthwith unless wanted in some other connection.

PH.P.

Agpea/ allowed.

SH

THE STATE OF MADHYA PRADESH

M. H. BEG

A. ALAGIRISWAMI, JJ

Section 302

section 147

section 304

section 323

section 304

P. P. Juneja

Ram P1mjwa!!i

H. S. Parihar

BEG

l, 1965

Ganiari

Bilaspur

Madhya

Indian Penal Code

Section

302

Section 147

Section 304(1 )

IPC

Section 325

IPC

Section 323

IPC

section 304(1)

IPC

Section 302

Badlu

Santu

Chhote Bhurwa

Baliram

Ganesh Rao

Gangaram

Bade Bhurwa

Kabra

Lulwa

Section 304

IPC

Section 304(1)

IPC

Section 300

IPC

Section 302

IPC

I.PC

IPC

Chikkarange Gowda

easier; in some respects, to prove a cominon 'eJ' as a ' basis for a iri?us lia?il!ty under Setion 149 I.PC,' than t'O. f'Stblish F :: a common 1htent10n w1thm the meaning of Sect10n 34 IPC .. -' Nevertheless, as was 'Pointed out by this Coµrf in Chikkarange Gowda's case (supra)~ the princ;:iplc h.as.

Section 149

IPC

Section 302

IPC

Section 304(1)

IPC

Section 304( 1)

IPC

Section 300

IPC

Section

3C

IPC

Section 147, 323

IPC