Input:
N: Criminal Appeal Nos.
345 346 of 1991.
From the Judgement and Order dated 14.6.1990 of the Madras High Court in Referred Trial Nos. 4/89 and 5/89 and Crl.
Appeal Nos.
593/89 and 594 of 1989.
715 Raju Ramachandran, Jaga Rao, Alok Agarwal, Ms. Malini Bhat and section Ravindra Bhatt for the appellants.
V.R. Karthikeyan and V. Krishnamurthy for the respondent.
The Judgment of the Court was delivered by K. RAMASAWAMY, J.
Special leave to appeals granted.
Heard the learned counsel, Sri Raju Ramachandran amicus curiae for the appellants and Sri V. Krishnamurthy, the learned Standing Counsel for the State.
The appellants Sevaka Perumal and Isakkimuthu for short 'A 1 ' and 'A 2 ' in Appeal arising out of S.L.P. (Crl.) No. 1842/90 are accused in Sessions Case No. 283 of 1986 on the file of the Addl.
Sessions Judge, Tirunelveli Sessions Division and appellants in Criminal Appeal No. 594 of 1989 and R.T. No. 4 of 1989 by judgment, dated June 14, 1990 of the High Court of Madras.
Criminal Appeal arise out of S.L.P. (Crl.) No. 1841/90; Sessions Case No. 284 of 1986 of the same Sessions Division and Criminal Appeal No. 593 and R.T. No. 5 of 1989 dated June 14, 1990 of the Madras High Court respectively, A 1 is the appellant.
In each case the Sessions Court convicted them under sections 120B, 364, 392 read with section 397; section 302 read with section 34 I.P.C. and sentenced to death.
In Crl.
Appeal No. 594 of 1989 and R.T. No. 4 of 1989, the High Court confirmed the conviction and sentence of death of both the appellants.
In Crl.
Appeal No. 593 of 1989 and R.T. No. 5 of 1989, the High Court confirmed the conviction and sentenced of death of the A 1 and acquitted A 2 of all the charges.
The case of the prosecution in brief is that the appellants and PW 1, the approver belonged to kidarakulam village and became friends.
A 1 used to bring money form the timber shop of his brother in law (PW 4) in Sessions Case No. 284/86 in whose shop A 1 had worked.
They used to go to various places.
A 1 used to purchase ganja from chenglapatai and other places and A 1 and A 2 used to sell them.
Yet they did not have enough money to spend lavishly.
They attempted to commit theft in the localities but became impracticable.
Therefore, they conspired to entice boys from affluent families to bring cash and jewellery from their houses; take them to far away places; take their money or jewellery and to murder them for gain.
Pursuant thereto in 1978 they murdered one Athippan; in 1981 one Chelladurai; in March, 1982 one Hariramachandran and in 1983 one Christodas.
In Sessions Case No. 283/86, the deceased boy is Athiappan.
In 716 Sessions Case No. 284/86, the deceased boy is Hariramachandran.
Sessions Case No. 282/86 on the file of the Sessions Court.
Madurai Division relates to deceased Chelladurai.
Therein also we are informed that the appellants were convicted but on appeal they were acquitted.
In sessions Case relating to the death of Christodas, it also ended in conviction and sentence of death was imposed on the appellants and is pending confirmation in the High Court.
It is sufficient to set out the material fact leaving out the minor details in Sessions Case No. 284/86 to meet the points raised by the counsel for the appellants.
A 1 enticed the deceased, Hariramachandran, his nephew (elder sister PW 2 ' son) to bring jewellery from the house of PW 2 and PW 4.
The appellants and PW 1 took him to Madurai.
On the way the deceased went to the house of PW 3 and handed over one chain to be delivered to his mother and took M.O. 1 chain with him.
A 1 had taken a room in the lodge at Madurai run by PW 16.
On coming to know that they were staying in Madurai, PW 2, PW 4, her husband and PW 3 went to the lodge and the deceased was found threat.
He informed them that the chain was with A 1 and he would come in the evening at 8.00 p.m. After waiting for some time and when it was getting dark, the ladies went away asking PW 4 to get the chain and the deceased after A 1 's arrival.
While PW 4 was waiting the deceased went down stairs and after A 1 's arrival told him of his mother 's coming etc.
and from there they went away to Madras, and having come to know that they left the place PW 4 left to his village.
On the next day they returned to Madurai.
From there they went to Usilampatti and A 1 then purchased a knife at the Bus Stand without the knowledge of the deceased and proceeded to Peraiyar road.
They sat near a jungle stream.
While A 1 and the deceased Harirmachandran were sitting near a stone on the southern side of the road, A 2 and PW 1 were standing at a distance, A 1 stabbed Harirmachandran in his stomach with a knife and the deceased collapsed on the stone.
A 1 threw away the knife in the river.
He threw the deceased in the nearby well and washed his hands and legs in the stream.
They returned to Usilampatti Bus Stand.
From there they came to Madurai.
A 1 sold M.O. 1 chain to PW 24 and gave one hundred rupees each to PW 1 and A 2.
This evidence of PW 1 received sufficient corroboration from the evidence of prosecution witnesses.
Sri Raju Ramachandran contended that the dead body was admittedly found in a highly decomposed condition.
There is no proper identification of the dead body to be of the deceased.
The 717 mother PW 2 identified only with reference to the photograph taken of the dead body.
There is evidence that the deceased wrote a letter of leaving to unknown destination.
Unless there is proof that the dead body belongs to Hariramachandran, it is not safe to convict to A 1 to a capital punishment of death sentence.
We find no force in the contention.
In a trial for murder it is not an absolute necessity or an essential ingredient to establish corpus delicti.
The fact of death of the deceased must be established like any other fact.
Corpus delicti in some cases may not be possible to be traced or recovered.
Take for instance that a murder was committed and the dead body was thrown into flowing tidal river or steam or burnt out.
It is unlikely that the dead body may be recovered.
If recovery of the dead body, therefore, is an absolute necessity to convict an accused, in many a case the accused would manage to see that the dead body is destroyed etc.
and would afford a complete immunity to the guilty from being punished and would escape even when the offence of murder is proved.
What, therefore, is required to base a conviction for an offence of murder is that there should be reliable and acceptable evidence that the offence of murder, like any other factum, of death was committed and it must be proved by direct or circumstantial evidence, although the dead body may not be traced.
In this case the evidence of PWs. 7 to 10 would establish that they have seen the dead body of the deceased Hariramachandran in the well and brought it out and the photograph was taken at the time of inquest.
It was identified to be that of the deceased by no other than his mother, PW 2.
Thus we have no hesitation to hold that there is no doubt as regards the identity of the dead body and that the medical evidence establishers that the deceased died due to stabbing with sharp edged weapon like knife.
It is next contended that PW 1 being an approver, his evidence must be reliable and must receive corroboration on all material particulars from independent evidence.
PW 1 is neither a reliable witness nor did his evidence receive such corroboration.
Therefore, his evidence cannot form the basis to convict the appellants.
It is his contention that in Hariramachandran 's death case the evidence of PW 1 was not accepted as regards the complicity of A 2 and he was acquitted.
Therefore, PW 1 is not a reliable witness.
This contention too is devoid of any force.
PW 1 had given wealth of details of commission of the crimes.
Under section 133 of the Evidence Act 1 of 1872, an accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.
Section 114 illustration (b) postulates that an accomplice is unworthy of credit, unless he is corroborated in mate 718 rial particulars.
In King vs Baskervilli, Lord Reading, CJ, laid the test that the corroboration need not be direct evidence that the accused committed the crime.
It is merely circumstantial evidence of his connection with the crime.
The nature of the corroboration will depend and vary according to the particular circumstances of each case.
What is required is some additional evidence rendering it probable that the story of the accomplice is true and that it is reasonably safe to act upon.
In Mahadeo vs The King AIR 1936 P. C. 242 the judicial committee held that the evidence of an accesory must be corroborated in some material particulars not only bearing upon the facts of the crime but upon the accused 's implication in it.
This Court in Rameshwar vs The State of Rajasthan, ; held that it is not necessary that there should be independent confirmation of every material circumstance in the sense that the independent evidence of the case, apart from the testimony of the complainant or its accomplice should in itself be sufficient to sustain conviction.
All that is necessary is that there should be independent evidence which will make it reasonably safe to believe that the witness 's story that the accused was the one that committed the offence could be acceptable.
The corroboration need not be direct evidence that the accused committed the crime.
It is sufficient if it is merely circumstantial evidence of his connection with the crime.
In section Swaminathan vs State of Madras, AIR 1957 SC 340 this Court held that corroboration of approver 's evidence need not be of a kind which prove the offence against the accused.
It is sufficient if it connects the accused with the crime when the accused had been charged for the offences of conspiracy and of cheating, a specific instance of cheating proved beyond doubt against one of the accused would furnish the best corroboration of the offence of the conspiracy.
In Sarwan Singh vs The State of Punjab, ; relied by Shri Raju Ramachandran, this Court held that the approver must be a reliable witness and the evidence must receive sufficient corroboration.
In that case the corroboration of minor particulars was accepted to be sufficient to hold the approver to be reliable witness.
In B.D. Patil vs State of Maharashtra, this Court held that the conviction of an accused on the testimony of an accomplice cannot be said to be illegal, yet the courts will, as a matter of practice do not accept the evidence of such a witness without corroboration in material particulars.
There should be corroboration of the approver in material particulars and must be qua each accused.
In Md. Hussain Umar Kochra etc.
vs K.S. Dalipsinghji & Anr., [1970] 1 S.C.R. 130 it was held that the combined effect of sections 133 and 114(b) is that though a conviction based upon accomplice evidence is legal the court will not accept such evidence unless it is 719 Corroborated in material particulars.
The corroboration must be from an independent source.
If several accomplices simultaneously and without previous concert giving consistent account of the crime implicating accused, the court may accept the several statements as corroborating each other.
In Ram Narain vs State of Rajasthan, ; this Court held that section 114(b) strikes a note of warning, cautioning the court that an accomplice does not generally deserve to be believed unless corroborated in material particulars.
In other words, the rule is that the necessity of corroboration is as matter of prudence except when it is safe to dispense with such corroboration must be clearly present to the mind of the Judge.
In Abdul Sattar vs Union Territory, Chandigarh, [1985] (Suppl.) S.C.C. 599 this Court further held that it is not safe to convict an accused on the charges like murder upon the evidence of uncorroborated testimony of the approver.
Thus the settled law is that an approver is a competent witness against the accused person.
But the court, to satisfy its conscience, insists as caution and prudence to seek, as a rule, corroboration to the evidence of the approver, a particips criminis from independent evidence occular or circumstantial, of general particulars regarding the story spoken off by the approver of the commission of the crime and the part played by the accused therein to find whether it is true and worthy of acceptance.
The reliability of the evidence of an approver should be considered from totality of the facts and circumstances.
In the trial of Athiappan murder there is no dispute that such a corroborative evidence connecting both the appellants is available which was minutely considered by the trial court and the High Court and was accepted.
We find no infirmity in that regard.
In the trial of the death of Hariramachandran, A. 2 was acquitted on the ground that his extra judicial confession made to P.W. 23, the only corroborative evidence,was disbelieved by the High Court.
Both the courts below gave categorical finding that P.W. 1 is a reliable witness.
the evidence of the approver received corroboration from independent evidence on general prosecution case, namely, P.W. 16 spoke that the deceased was brought by the accused and stayed in the lodge.
P.Ws 2 to 4 spoke of A 1 working in their shop, previous theft by A 1 and M.O. 1 being missing, their attempt to take back the deceased and M.O, 1, the deed body was found in the well and was taken out as spoke to by P. Ws.
7to 10.
The medical evidence establishes the stabbing with the knife and death was due to it.
P.W. 24 corroborates A. 1 of selling M.O. 1 chain and taking the money.
The canopy of the material evidence from independent sources sufficiently corroborates the approver ' evidence.
720 PW 1 is a reliable witness.
No infirmity has been pointed out to disbelieve his evidence.
It is next contended that the courts below were not justified in imposing the extreme penalty of death sentence under section 302, I.P.C. and strongly relied upon the judgment of Bachan Singh 's case.
It is contended that the acquittal of A. 2 giving the benefit of doubt in Hariramachandran 's death trial introduces an element of doubt which should be extended to convert the death sentence of A. 1 to life imprisonment.
We find no susbstance in the contention.
The doctrine of benefit of doubt only would operate in proof of the commission of the offence.
If there is any reasonable doubt, not the doubt of vacillating mind of a Judge, the accused is entitled to the benefit and acquitted.
The benefit of doubt again does not enter in the area of consideration of imposing sentence.
The law regulates social interest, arbitrates conflicting claims and demands.
Security of persons and property of the people is an essential function of the State.
It could be achieved through instrumentality of criminal law.
Undoubtedly, there is a cross cultural conflict where living law must find answer to the new challenges and the courts are required to mould the sentencing system to meet the challenges.
The contagion of lawlessenss would undermine social order and lay it in ruins.
Protection of society and stamping out criminal proclivity must be the object of law which must be achieved by imposing appropriate sentence.
Therefore, law as a corner stone of the edifice of order should meet the challenges confronting the society.
Friedman in his "Law in Changing Society" stated that, "State of criminal law continues to be as it should be a decisive reflection of social consciousness of society".
Therefore, in operating the sentencing system, law should adopt the corrective machinery or the deterrence based on factual matrix.
By deft modulation of sentencing process be stern where it should be, and tempered with mercy where it warrants to be.
The facts and given circumstances in each case, the nature of the crime, the manner in which it was planned and committed, the motive for commission of the crime, the conduct of the accused and all other attending circumstances are relevant facts which would enter into the area of consideration.
For instance a murder committed due to deep seated personal rivalry may not call for penalty of death.
But an organised crime or mass murders of innocent people would call for imposition of death sentence as deterrence.
In Mahesh vs State of M.P., this Court while refusing to reduce that death sentence observed thus: 721 `It will be a mockery of justice to permit the accused to escape the extreme penalty of law when faced with such evidence and such cruel acts.
To give the lesser punishment for the accused would be to render the justicing system of the country suspect.
The common man will lose faith in courts.
In such cases, he understands and appreciates the language of deterrence more than the reformative jargon '.
Therefore, undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine to public confidence in the efficacy of law and society could not long endure under serious threats.
If the courts did not protect the injured, the injured would then resort to private vengeance.
It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc.
It is clear from the evidence that the accused indulged in illegal business of purchase and sale of ganja.
They conspired to entice innocent boys from affluent families took them to far flung places where the dead body could not be identified.
The letters were written to the parents purporting to be by the deceased to delude the parents that the missing boy would one day come home alive and that they would not give any report to the police and the crime would go undetected.
Four murders in a span of five years were committed for gain in cold blooded , pre meditated and planned way.
It is undoubted that if the trial relating to Athiappan murder had taken place and concluded earlier to the trial and conviction of other three murders, the subsequent murders are not relevant facts to be considered.
But in this case the trial of the murder relating to Athiappan and Hariramachandran practically took place simultaneously by which date the appellants were convicted for the murder of Chelladurai and Christodas.
Therefore ,the reference of conviction and sentence by the Sessions Court to those two cases also are relevant facts.
The deceased Hariramachandran is no other than the nephew (elder sister 's son) of A 1.
This would establish his depravity and hardened criminality.
No regard for precious lives of innocent young boys was shown.
They adopted the crime of murder for gain as a means to living.
Undoubtedly under section 235(2) of Code of Criminal Procedure, the accused is entitled to an opportunity to adduce evidence and if need be the case is to be adjourned to another date.
It is illegal to convict, an accused and to impose sentence on the same day.
It is true 722 as contended for the State that under section 309, third proviso brought by Amendment Act, 1978 that no adjournment should be granted for the purpose only of enabling the accused person to show cause against sentence to be imposed upon him.
Under section 235(2) when the accused has been given right to be heard on the question of sentence it is a valuable right.
To make that right meaningful the procedure adopted should be suitably moulded and the accused given an opportunity to adduce evidence on the nature of the sentence.
The hearing may be on the same day if the parties are ready or be adjourned to a next date but once the court after giving opportunity propose to impose appropriate sentence again there is no need to adjourn the case any further thereon.
No doubt the Sessions Judge needed to adjourn the case under section 235(2) to next date but in the High Court the counsel was directed to show any additional grounds on the question of sentence .
The High Court observed that the counsel was unable to give any additional ground.
It is Further contended that the appellants are young men.
They are the bread winners of their family each consisting of a young wife.
minor child and aged parents and that, therefore, the death sentence may be converted into life.
We find no force.
These compassionate grounds would always be present in most cases and are not relevant for interference.
Thus we find no infirmity in the sentence awarded by the Sessions Court and confirmed by the High Court warranting interference.
The appeals are accordingly dismissed.
G.N. Appeal dismissed.

Output:
According to the Prosecution, appellants 1 and 2 have been friends and were in the habit of selling ganja and spending money lavishly.
They attempted to commit theft in their locality, but were no successful.
Therefore, they hatched a conspiracy to entice boys from affluent families to bring cash and jewellery and murder them after taking away the cash and jewellary.
Likewise, they killed 4 boys, in a span of about 5 years.
Both of them were charged with offences under section 120B read with section 34 IPC, section 364 and 392 read with section 397 IPC in all the four cases filed against them, and were convicted by the Sessions Court.
However, in one case, on appeal, they were acquitted by the High Court.
In another case, the death sentence imposed by the Sessions Court is pending confirmation by the High Court.
In the other two cases, both the appellants were sentenced to 712 death by the Sessions Court and on appeal the High Court confirmed the sentence in one case and in the other, the High Court confirmed the death sentence passed against appellant No. 1 and acquitted appellants No. 2 of all the charges.
The appellants preferred the present appeals challenging the said order of the High Court confirming the sentences against them by contending that there was no proper identification of the dead body and that the approver was not a reliable witness and since his evidence did not receive corroboration, it cannot form the basis for convicting the appellants.
It was also contended that the extreme penalty of death sentence imposed was not justified.
Dismissing the appeals, this Court, HELD: 1.1 In a trial for murder it is not an absolute necessity or an essential ingredient to establish corpus delicti.
The fact of death of the deceased must be established like any other fact.
Corpus delicti in some cases may not be possible to be traced or recovered.
If a murder was committed and the dead body was thrown into flowing tidal river or stream or burnt out, it is unlikely that the dead body may be recovered.
If recovery of the dead body, therefore, is an absolute necessity to convict an accused, in many a case the accused would manage to see that the dead body is destroyed etc.
and that would afford a complete immunity to the guilty from being punished and the accused would escape even when the offence of murder is proved.
What, therefore, is required to base a conviction for an offence of murder is that there should be reliable and acceptable evidence that the offence of murder, like any other factum, of death was committed and it must be proved by direct or circumstantial evidence, although the dead body may not be traced.
[717A D] 1.2 In the instant case, the evidence of PWs.
7 to 10 would establish that they have seen the dead body of the deceased in the well and brought it out and the photograph was taken at the time of inquest.
It was identified to be that of the deceased by no other than the mother of the deceased.
Thus there is no doubt as regards the identity of the dead body.
Also the medical evidence establishes that the deceased died due to stabbing with sharp edged weapon like knife.
[717E] 2.
Law is settled that an approver is a competent witness against the accused person.
But the court, to satisfy its conscience, insists as caution and prudence to seek, as a rule, corroboration to the evidence 713 of the approver, a particips criminis from independent evidence occular or circumstantial, of general particulars regarding the story spoken of by the approver of the commission of the crime and the part played by the accused therein to find whether it is true and worthy of acceptance.
The reliability of the evidence of an approver should be considered from totality of the facts and circumstances.
In one of the two trials there is no dispute that such a corroborative evidence connecting both the appellant is available which was minutely considered by the trial court and the High Court and was accepted.
There is infirmity in that regard.
In the other trial appellant No. 2 was acquitted on the ground that his extra judicial confession made to PW 23, the only corroborative evidence, was disbelieved by the High Court.
Both the Courts below gave categorical finding that PW 1 is a reliable witness.
The evidence of the approver received corroboration from independent evidence.
The canopy of the material evidence from independent sources sufficiently corroborates the approver 's evidence.
He is a reliable witness.
No infirmity has been pointed out to disbelieve his evidence.
[719D H; 720A] Rameshwar vs The State of Rajasthan, ; ; section Swaminathan vs State of Madras, AIR 1957 SC 340; Sarwan Singh vs The State of Punjab, , ; ; B.D. Patil vs State of Maharashtra, ; Md. Hussan Umar Kochra etc.
vs K.S. Dalipsinghji & Anr., [1970] 1 SCR 130; Ram Narain vs State of Rajasthan, ; and Abdul Sattar vs Union Territory, Chandigarh, [1985] (Suppl.) SCC 599, relied on.
King vs Baskervilli, and Mahadeo vs The King, AIR 1936 P.C. 242, referred to.
In the instant case, it is clear from the evidence that the accused indulged in illegal business of purchase and sale of ganja.
They conspired to entice innocent boys from affluent families, took them to far flung places where the dead body could not be identified.
The letters were written to the parents purporting to be by the deceased to delude the parents that the missing boy would one day come home alive and that they would not give any report to the police and the crime would go undetected.
Four murders in a span of five years were committed for gain in cold blooded, premeditated and planned way.
In this case the trial of the murder relating to the two deceased practically took place simultaneously by which date the appellants were convicted for the murder of two other boys.
Therefore, the reference of conviction and sentence by the Sessions Court to those two cases also are relevant facts.
One of the deceased is no other than the nephew of appellants No. 1.
This 714 would establish his depravity and hardened criminality.
No regard for precious lives of innocent young boys was shown.
They adopted the crime of murder for gain as a means to living.
As such there is no infirmity in the sentence awarded by the Sessions Court and confirmed by the High Court.
[721D G] 4.
The doctrine of benefit of doubt only would operate in proof of the commission of the offence.
If there is any reasonable doubt, not the doubt of vacillating mind of a Judge, the accused is entitled to that benefit and be acquitted.
The benefit of doubt again does not enter in the area of consideration of imposing sentence.
[720C] 5.1.
Undue sympathy to impose inadequate sentence would do harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under serious threats.
If the courts did not protect the injured the injured would then resort to private vengeance.
It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed etc.
[721C] 5.2.
The compassionate grounds such as the accused being young bread winners of the family etc.
would always be present in most casts and are not relevant for interference with the sentence.
[722D] 6.
Under section 235(2) when the accused has been given right to be heard on the question of sentence it is a valuable right.
To make that right meaningful the procedure adopted would be suitably moulded and the accused given an opportunity to adduce evidence on the nature of the sentence.
The hearing may be on the same day if the parties are ready or to a next date but once the court after giving opportunity, proposes to impose appropriate sentence again there is no need to adjourn the case under section 235(2) to next date.
In the present matters the counsel was directed by the High Court to show any additional grounds on the question of sentence, but the counsel was unable to give any additional ground.
[722B C]


Input:
Appeal No. 255 of 1961.
Appeal from the judgment and order dated March 21, 1960, of the Mysore High Court in Writ Petition No. 147 of 1958.
B. J. Kolah, J. B. DadachanJi, O. C. Mathur and Ravinder Narain, for the appellants.
779 C. K. Daphtary, Solicitor General of India, B. R. L. Iyengar and P. D. Menon, for respondents.
August.
KAPUR, J This is an appeal against the judgment and order of the High Court of Mysore in Writ Petition No. 147 of 1958 dismissing the appellant 's petition under articles 226 and 227 of the Constitution for quashing the order of assessment for the period of assessment 1955 56 i.e, from April 1, 1955, to March 31, 1956.
In this appeal because of the Validating Act (VII of 1956) the appellants did not challenge their liability for the period April 1, 1955, to September 6, 1955.
The facts necessary for the decision of this appeal are these : Appellant No. 1 The Cement Marketing Co. Ltd are the Sales Managers of the second appellant The Associated Cement Co. Ltd. appointed under an agreement dated April 21, 1954.
The High Court has described the first appellant to be the Distributors of the second apppellant.
The second appellant is a manufacturer of cement and at the material time it had over a dozen factories in different parts of India, none of which was in the State of Mysore.
The head office of first appellant is at Bombay and it had then a branch office at Bangalore in the State of Mysore.
The first appellant was registered as a dealer under the Mysore Sales Tax Act 1948, hereinafter called the "Mysore Act".
At all material times cement was and still is a controlled article.
Whether the sale was to a Government Department i.e. to the Director General of Supplies & Disposal, Government of India, New Delhi, or to a person authorised by the said Officer or to the ' public it was effected on authorisations given to the buyers by appropriate Government authorities and 780 produced by them in the office of the first appellant.
Both in regard to purchases by the public and the Government the Modus operandi was more or less identical.
It was this Every one wishing to buy cement had to get an authorisation in a standard form which authorised the first appellant to sell cement in quantities mentioned, therein and the cement had to be supplied from the factory therein mentioned.
That document was in the following form which actually ralates to a sale to a Government contractor.
"Government of India Ministrary of Commerce & Industry.
Office of the Regional Honorary Cement Adviser 4/12 Race Course Road, Coimbatore.
Central Quota.
Dated 8 10 1955.
Authorisation No. RA/CT/28/CMI/1 7 2 CQ.
(CENTELEC) Period IV/55 The Cement Marketing, Name of Suppliers Co. of India P. Box No.613, Sugar Company Bulding Bangalore 2.
You are authorised to sell cement in quantity mentioned below under this authorisation.
The sale will be a direct deal between yourself and 781 the purchaser.
The Government undertakes no responsibility of any nature whatsoever: Name and Name of the Quan Name of Rly.
Re address of the person factory or cement is to in whose companybe booked.
favour required to authorisation supply is issued.
cement.
1 2 3 4 5 M/s. G. section Mudhukkarai300 Bangalore Duggal & Co Shababadtons Ltd Engineers & Contractors, Jalhalli P.O. Bangalore.
No. J/1 17/115 date 29 9 55 from the above indentors For manufacture of the tiles for the Bharat Electronics Ltd. Supply recommended by the Commander Works Engineers(B.E.I.P.), Jalahalli.
Full details of the purpose for which and the place at which cement will actually be consumed; Priority, Defence work.
C.C. Ramanath, Reg, Hon.
Cement Advisor (Coimbatore) Copy to 1.
The indentor.
The Dy.
Development Officer, Govt.
of India, Ministry of Commerce & Industry, Development Wing,(Chemicals 1, Mineral Industries) Shahjehan Road, Now Delhi.
The Controller of Civil Supplies in My sore Bangalore for information".
782 This authorisation was subject to the following conditions: It was to be utilised within 15 days; the cement released could be used only for the purpose for which it was given; the authorisation was not transferable; the issuing authority could, if necessary, revoke the authorisation at any time and even the orders booked under the authorisation could be cancelled.
The purchaser or the indentor had then to place an order with the first appellant as Sales Managers of the second appellant stating the requirement, where the goods were to be sent and how they were to be sent.
The seller entered into a contract with the first appellant.
This contract is in a standard form and gives conditions of sale.
Thereupon the first appellant instructed its Bombay office to despatch the cement in accordance with the instructions of the buyer and the authorisation.
In this letter they had to mention the number of the authorisation and the person who had issued it and also to whom the goods were to be sent and how and certain other details which are not necessary for the purposes of this appeal were also to be given.
Each instruction indicates that it was issued for and on behalf of appellant No. 2 by appellant No. 1 as its Sales Managers.
A copy of the letter of instruction was sent to the factory from where the goods were to be despatched and the particulars of the authorisation had to be mentioned therein.
Thereafter the first appellant sent an advice to 783 the purchaser enclosing therewith the Railway Receipt for the goods and this advice also mentioned the goods were being sent.
Both the contract of sale and the advice above mentioned stated that the goods were being despatched at the buyer 's risk from the time the delivery was made by the factory to the carriers and the railway receipt was obtained for the goods.
In the present case all the goods were sent, as indeed they had to be sent, against the authorisations from the various factories belonging to the second appellant which at the relevant time were all situate outside the State of Mysore and were received in the State of Mysore by the various purchasers.
The position of the first appellant is as was accepted by the Sales tax Officer in his order dated March 31, 1958, that of Sales Managers of the second appellant but in regard to the nature of the transactions the Sales tax Officer found: " Though the property in the goods pass to the dealers and consumers outside the State immediately the goods are handed over to the carriers outside the state and railway receipt is taken out since the goods have actually been delivered In Mysore State as a direct result of such sale for purposes of consumption in the State, sale is deemed to have taken place in Mysore State".
and again he said: "Thus the sales of cement manufactured by A.C.C. Factories situated outside Mysore .State effected by the dealers M/s. Cement Marketing Company of India Ltd. Bangalore, to dealers and customers in Mysore State amounts to intrastate sales and therefore liable to Mysore Sales Tax Act 48".
784 In its judgment the High Court took into consideration the fact that the first appellant had a branch office at Bangalore within the State of Mysore and that the public placed their orders with the first appellant for supplies of cement against permits granted to them; that the first appellant, who after accepting the offer for the supplies of cement, collected the price from the intending purchasers and then directed one of the factories of the second appellant to supply cement to the purchasers and actual delivery to the purchaser was within the State) of Mysore and therefore the contention that cement was loaded outside the State of Mysore and despatched to the purchaser did not not convert sales into inter State sales but were intra state sales.
It appears that the true nature of the transaction was not correctly considered by the High Court, The modus operandi above mentioned shows that before an intending purchaser could obtain cement he had to get what is called an authorisation from a Government authority which nominated the factory from which the intending purchaser had to get his supplies of cement.
That authorisation with an order had to be given to the first appellant; and after a contract in the standard form was entered into the first appellant sent the order to the factory named in the authorisation and that factory then supplied the requisite goods to the purchaser.
The factory from where the cement was to be supplied was not in the hands or at the option of the first appellant, but was entirely a matter for the Government authority to decide, so that the cement which was supplied from a particular factory was supplied not at the choice of the first appellant but pursuant to the authorisation.
It was contended that the sales which took place in the present case in which the movement of 785 goods was from one State to another as a result of a covenant or incident of the contract of sale fell within article 286(2) of the Constitution and therefore the imposition 'of Sales tax on such sales was unconstitutional.
The Article applicable at the relevant time i.e., before its amendment was as follows: 286 (1) "No law of a State shall impose or authorise the imposition of a tax on the sale or purchase of goods where such sale or purchase takes place.
(a) outside the State; or (b) in the course of the import of the goods into or export of the goods out of, the territory of India.
Explanation . . . . .
(2) Except in so far as Parliament may by law otherwise provide, no law of a State shall impose, or authorise the imposition of, a tax on the sale or purchase of any goods where such sale or purchase takes place in the course of inter State or commerce: Provided. . . . . . " The Article had since been repealed and another substituted in its place by the Constitution (Sixth Amendment) Act but the sales in question were prior to the amendment.
In the present case the contract itself involved the movement of goods from the factory to the purchaser i. e. across the broder from one State to another because the factories were outside the State of Mysore and therefore transactions were 786 clearly transactions of sale of goods in the course of inter State trade or commerce.
Taking the nature of the transaction and preliminaries which are necessary for the sale or purchase of cement it cannot be said that the sale itself did not occasion the movement of goods from one State to another.
The essential features of the contracts proved in the present case are analogous to those in M/s. Mohan Lai Hargovind vs The State of Madhya Pradesh.(1) In that case the assessees were a firm carrying on business of making and selling birds in Madhya Pradesh.
In the course of their business they imported finished tobacco from dealers in Bombay State, rolled it into biris and exported the biris to various other States.
Both the exporters of tobacco from Bombay State who supplied the assessees and the assessees were registered dealers under the C. P. & Berar Sales Tax Act., 1947.
It was held that the asessees imported the finished tobacco into Madhya Pradesh from persons who were carrying on in the State of Bombay business of processing tobacco and selling the goods and there was, as a result of these transactions movement of goods from the State of Bombay to the State of Madhya Pradesh and therefore the transactions involved movement of goods across the State border and they were not liable to be taxed by virtue of article 286 (2) of the Constitution.
In The State of Pravancore Cochin & Others vs The Bombay Co Ltd. (1) which was a case under article 286 (1) (b) i. e. sale and purchase in the course of export trade, Patanjali Sastri, C. J., observed: "A sale by export thus involves a series of integrated activities commencing from the agreement of sale with a foreign buyer and ending with the delivery of the goods to a common carrier for transport out of the (1) (2) (1952) section C. R. III2.
787 country by land or sea.
Such a sale cannot be dissociated from the export without which it cannot be effectuated, and the sale and resultant export from parts of a single transactions.
At p. 1120 the learned Chief Justice again observed: "We accordingly hold that whatever else may or may not fall within article 286 (1) sales and purchases which themselves occasion the export or the import of the goods, as the case may be, out of or into the territory of India come within the exemption and that is enough to dispose of these appeals".
Thus a sale to fall within article 286 (1) (b) has to be a sale which occasions the export.
Again in the, State of Travancore Cochin & Other8 vs Shammugha Vilas Cashew Nut Factory & Other8 (1) the words "in the course of" were interpreted to mean a sale taking place not only during the activities directed to the end of exportation of the goods out of the contury but also as a part of or connected with such activities.
At p. 63 the learned Chief Justice explained the words "integrated activities" as follows: "The phrase "integrated activities" was used in the previous decision to denote that "such a sale" (i. e. a sale which occasions the export) "cannot be dissociated from the export without which it cannot be affectuated, and the sale and the resultant export form parts of a single transaction '.
It is in that sense that the two activities the sale and the export were said to be integrated".
In Endu puri Narasiham & Son vs The State of Orissa, it was held in the case of sales covered (1) ; (2) ; 788 by article 286 (1) (b) that only Bale or purchase 'of goods which occasions the export or import of the goods out of or into the territory of India were exempt from the imposition of tax on the sale or purchase of goods and in regard to prohibition against imposition of tax on inter State sales the test, it was said, was that in order that a sale or purchase might be inter State it is essential that there must be transport of goods from one State to another under the contract of sale or purchase.
The following observatins from the Bengal Immunity Co. Ltd. vs The State of Bihar (1) were quoted with approval in support of the position: "A sale could be said to be in the course of inter State trade only if two conditions concur: (1) A sale of goods, and (2) a transport of those goods from one State to another under the contract of sale.
Unless both these conditions are satisfied, there can be no sale in the course of inter State trade".
Thus the tests which have been laid down to bring a sale within inter State sales are that the transaction must involve movement of goods across the border (Mohanlal Hargovind 's case (2) ); transactions are inter State in which as a direct result of such sales the goods are actually delivered for consumption in another State; M/s Ram Narain It Ssns V. Assistant Commissioner of Sales tax (3) a contract of sale must involve transport of goods from one State to another under the contract of sale; Bengal Immunity Co ' case (1).
in the case of sales in the course of export or import the test laid down was a series of integrated activitiesm commencing from an agreement of sale and ending with the delivery of goods to a common (1) , 784 5 (2) (1965) 2 S.G R. 509.
(3) ; , 504.
789 carrier for export by land or by sea ; The Bombay Co. Ltd, case (1).
"In the course of" was explained to mean a sale taking place not only during the activities directed to the end of the exportation of the goods out of the country but also as part of or connected with such activities and "integrated activities" was explained in similar langauage.
This Court again accepted these tests in Endupuri Narasim ham 's case (2).
In a. 3 of the (Act 74 of 1956), the legislature has accepted the principal governing inter State sales as laid down in mohan Hargovind 's case (3).
The principles for determining when a sale or purchase of goods takes place in the course of inter state sale or commerce outside the state are : "S.3 A sale or purchase of goods shall be deemed to take place in the course of inter State trade or commerce if the sale or pur chase (a) occasions the movement of goods from one State to another ; or (b) is effected by a transfer of documents of title to the goods during their movement from one State to another".
In Tata Iron & Steel Co. Ltd, Bombay vs S.R. Sarkar & Another (4) Shah, J., in explaining what sales are covered by el.
(a) of s.3 above said : "Cl.
(a) of a. 3 covers sales, other than those included in Cl.
(b), in which the movement of goods from one state to another is the result of a convenant or incident of the contract of sale.
and property in the goods passes in either State .
" As stated above under the contracts of sale in the present case there was transport of goods from (1) (3) (1955) 2 S.G.R. 509.
(2) ; (4) ; ,391, 790 outside the State of Mysore into the State of Mysore and the transactions themselves involved movement of goods across the border.
Thus if the goods moved under the contract of sale, it cannot be said that they were intrastate sales.
It was not the volition of the first appellant to supply to the purchaser the goods from any of the factories of the second appellant.
The factories were nominated by the Government by authorisations which formed the basis of the contract between the buyer and the seller.
Applying these tests to the facts of the present case we are of the opinion that the sales were in the nature of inter State sales and were exempt from Sales tax.
In these circumstances the contracts of sale in the present case have been erroneously considered to be intrastate sales.
The decision in Rohtas Industrieg Ltd. vs The State of Bihar (1) to which reference was made by the respondent does not apply to the facts of the present case because the agreement between the first appellant and the second appellant is different from that which existed between Rohtas Industries Ltd. and the Cement Marketing Co of India in the case above cited.
(in an examination of the agreement between those two companies this court held that the rotation.
ship which existed between the two was of seller and buyer and not of principal agent.
In the present case the agreement is quite different.
In the first clause of the agreement between the two appellants and the Patimia Cement Co. dated April 21, 1954, the first appellant was appointed the sole and exclusive Sales Manager of the second appellant and as such the first appellant was entitled to enter into contracts of sale, receive payment of the same and do all seta and things necessary for the effective management in connection with the contracts of sale entered into on behalf of the principals.
The sale price and the terms and conditions of sale were to be (1) (1961) 12 S.T.C. 615.
791 determined by the principals.
The Sales Manager was to keep its administrative and technical staff at such places in India as was determined by the principals.
All the establishment charges and other expenses of the Sales Managers were for and on behalf of the principals and were to be defrayed by the principals in proportion to their annual sales.
At the end of every mouth the Sales Managers were to submit to the principals accounts showing sales con tracts by it on behalf of each one of the principals.
At the end of each financial year ending July 31 the Sales Managers had to make a. proper account of all their operations during the year and after submitting them for confirmation to the principals had to pay the price of annual sales realizations to each of the principals to whom they happened to relate.
Clause to provided that subject to instructions of the principals the Sales Managers were to make all necessary arrangements to secure speedy and economicial transport of cement.
These terms are quite different from those in the case of Rohtas Industries Ltd. and therefore that decision has no application to the facts of the present case.
In the result, the imposition of the Sales tax on the appellant for the year of assessment except for the period April 1, 1955, to September 6, 1955, was illegal and was not leviable for that period.
The appeal is therefore allowed to that extent and the petition of the appellants succeeds but it will not effect the tax paid for the period abovementioned.
In view of the partial success of appellants they will be entitled to half costs of the appeal.
Appeal allowed in part.
(1) (1961) 12 S.T.C. 615.

Output:
The second appellant was a manufacturer of cement and at the material time it had over a dozen factories in different parts of India none of which was in the State of Mysore.
The first appellant was its sales manager and had its head office in Bombay with a branch office at Bangalore in the State of Mysore ' Cement was a controlled article and every one wishing to buy cement.
had to get an authorisation from the appropriate Government authorities in a standard form which authorised the first appellant to sell cement in quantities mentioned therein and the cement had to be supplied from the factory therein mentioned.
The purchaser had to place an order with the first appellant.
stating the requirement, where the goods were to be sent and how they were to be sent.
In the present case, all the goods were sent against the authorisations from the various factories belonging to the second appellant which were all outside the State of Mysore and were received in the State of Mysore by the various 778 purchasers.
The Sales Tax Officer by his order dated March 31, 1958, took the view that though the property in the goods passed to the dealers and consumers outside the State, of Mysore, since the goods had actually been delivered in the State of Mysore as a direct result of such sales for purposes of consumption in the State, the sales must be deemed to have taken place in that State and, therefore, the sales effected by the first appellant as the sales manager of the second appellant, to customers in Mysore State amounted to intrastate sales and liable to tax under provisions of the Mysore Sales Tax Act, 1948.
The High Court held that as the actual delivery to the purchasers was within the State of Mysore, the cement loaded outside the State and despatched to the purchaser did not convert the sales into inter State sales but were intrastate Wes.
Held, that the sales which took place in the present case in which the movement of goods was from one State to another as a result of a convenant or incident of the contract of sale, were in the course of inter State trade or commerce and fell within Art ' 286(2) of the Constitution of India, Consequently, the imposition of sales tax on such sales was unconstitutional.
M/S. Mohan Lai Hargobind vs The State of Madhya Pradesh, ; , followed.
Endapuri Narasimhan & son vs The State of Orissa; , , Bengal Immunity Co. Ltd. vs The State of Bihar, M/s. Ram Narain & Sons vs Assistant Commissioner of Sales Tax, ; and Tata Iron and Steel Co. Ltd. Bombay vs section R Sarkar, [1961] 1 S.C.R. 379, relied on.
Rohtas Industries Ltd. vs The State of Bihar, [1961] 12 S.T.C. 615, distinguished.


Input:
Appeal No. 686 of 1976.
(Appeal by Special leave from the Judgment and Order dated 13 2 1976 of,the Punjab and Haryana High Court in R.S.A. No. 249 of 1976).
P.P. Juneja, for the appellants.
S.K. Mehta, K.R. Nagaraja and P.N. Puri, for respondent No. 1 The Judgment of the Court was delivered by CHANDRACHUD, J.
(1) One Mula executed a registered gift deed in favour of appellant No. 13, Bhagwati Devi, on December 3, 1964.
On April 29, 1965, appellants 1 to '12 claiming to be potential reversioners filed Suit No. 143 of 1965 against the donor and the donee for a declaration that under the Punjab Custom (Power to Contest) Act, 1920, the gift deed was not binding on them.
The suit was decreed by the trial court on May 31, 1966 and that decree was con firmed in appeal on October 16, 1967.
(2) In between, on July 10, 1966 Mula adopted the re spondent.
On March 11, 1970, appellant No. 13 executed in favour of appellants 1 to 12 a lease in respect of the property which was the subject matter of the. gift.
Mula died on August 28, 1971.
(3) On December 13, 1971 respondent filed the present suit against the appellants for possession of certain properties including the property which Mula had gifted to appellant No. 13.
The suit was decreed by the trial court on January 29, 1971 and the decree was confirmed in appeal by the District Court and the High Court.
(4) On June 3, 1976 appellants filed a special leave petition in this Court challenging the High Court judgment.
They raised, inter alia, a new contention (ground No. B) that in decreeing the suit, the courts below had overlooked the relevant provisions of the Punjab Customs (Power to Contest).
Amendment Act of 1973, by virtue of which the legality of the gift made by Mula in favour of Bhagwati Devi could not be contested.
On June 11, 1976 this Court granted special leave to the appellants limited to the aforesaid Ground (B) of the special leave petition.
(5) We have heard an interesting argument from Mr. Juneja, who appears on behalf of the appellants, as regards the true construction and effect of the Punjab Customs (Power to Contest) Act, 1920, as amended in 1973, but we are of the opinion that the argument lacks basis and cannot, therefore, be accepted.
The contention, sought to be raised for the first time by the learned counsel, is founded on the assumption that by reason of the Amendment Act of 1973, the gift deed executed by Mula cannot be challenged by the respondent.
The assumption on which the argument is founded is fallacious, because the respondent does not seek by his plaint, as indeed he need not have sought, to chal lenge the gift deed executed by Mula in favour of Bhagwati Devi.
That gift was challenged by appellants 1 367 to 12 in Suit No. 143 of 1965, and they succeeded in obtain ing a declaration in that suit that the gift was not binding on the reversioners.
That decree became final, with the result that as on August 28, 1971, when Mula died, the property which he had sought to gift away to Bhagwati Devi, was free from the encumbrance of the purported gift.
By the present suit, the respondent merely asks for possession of the property in respect of which Mula had executed the deed of gift.
The basis on which he has asked for that relief is that upon the death of Mula in 1971, the gift ceased to be operative by reason of the decree passed in Suit No. 143 of 1965.
It seems to us plain that he has not and he need not have contested the validity of the gift deed since that question was decided finally in the aforesaid suit.
(6) Section 7 of the Punjab Custom .(Power to Con test) Act, 1920 provided initially that no person shall contest any alienation of non ancestral immovable property on the ground that such alienation is contrary to custom.
This section was amended by section 3 of the Punjab Custom (Power to Contest) Amendment Act, 12 of 1973, as a result of which no challenge could be made to the alienation of any immovable property, whether ancestral or non ancestral, on the ground that it is contrary to custom.
It is, therefore, true that if it became necessary after the Amending Act of 1973 to contest the gift executed by Mula in favour of Bhagwati Devi, section 7 of the Act of 1920 would operate as a bar to such a contest.
However, as we have stated earlier, it was not necessary for the respondent, in view of the decree passed in suit No. 143 of 1965, to contest the valid ity of the gift.
(7) The decision of this Court in Giani Ram vs Ramji Lal(1) may, with advantage be referred to on this point.
Under the customary law of the Punjab, the wife and daugh ters of a holder of ancestral property could not sue to obtain a declaration that the allegation of ancestral property will not bind the reversioners after the death of the alienor.
But the reversioner who was entitled to chal lenge that alienation could obtain a declaratory decree that the alienation will not bind the reversioners after the alienor 's death.
It was held by this Court that such a declaratory decree had the effect of restoring the property alienated to the estate of the alienor and therefore all persons, including the wife and the daughters of the de ceased, were entitled to the benefit of that restoration.
Since the property alienated had reverted to the estate of the alienor at the point of his death, the widow and daugh ters, who also became heirs along with the sons under the were held entitled to obtain possession of the ancestral property.
Mr. Juneja attempted to get over the effect of this decision by invoking the provisions of section 8 of the Punjab Limitation (Custom) Act, 1 of 1920, which provides that when a person obtains a decree declaring that an alienation of ancestral immovable property is not binding on him, according to.
custom, the decree shall enure for the benefit of all persons entitled to impeach the alienation.
Counsel argues that since the respondent was not entitled to impeach the gift in favour of Bhagwati Devi, having been adopted after the date of the gift, the decree obtained by appellants 1 to 12 cannot ensure for his benefit.
The short answer (1) ; 9 436 SCI/77 368 to this contention is that the decree would ensure for the benefit of all persons who are enitled to a share in the property of the deceased as it existed at the moment of his death.
Since Mula 's property stood freed from the encum brance of the gift at the moment of his death, respondent as the adopted son would be entitled to the possession of the gifted property.
(8) Another facet of the same question can be seen in Chand Singh vs Ind Kaur.(1) A learned Single JUdge of the Punjab and Haryana High Court held therein that though a suit to contest, under the customary law, an alienation of immovable property may not lie after the coming into force of the Amending Act of 1973, a declaratory decree already obtained by a reversioner would continue to be operative as the Amending Act does not render such a decree a nullity.
(9) There is thus no substance in the contention raised by the appellants and their appeal must fail.
Appellants 1 to 12 shall pay the respondent 's 'costs of the appeal.
S.R. Appeal dismissed.

Output:
section 7 of the Punjab Customs (Power to Contest) Act, 1920 provided that no person shall contest any alienation of non ancestral immovable property on the ground that such alienation is contrary to custom.
section 3 of the Amendment Act 12 of 1973 amended section 7 with the .result that no challenge could be made to the alienation of any immovable property, whether ancestral or non ancestral, on the ground that it is contrary to custom.
A gift deed was executed by one Mula, in favour of appellant No. 13 Bhagwati Deyi, on December 3, 1964.
Appel lants 1 to 12 claiming to be potential reversioners obtained a decree on May 31, 1966 in a suit flied against the donor and the donee for a declaration that under the Punjab Cus toms (Power to Contest) Act Z of 1920 the gift deed was not binding on them and that decree was confirmed in appeal on October 16, 1967.
On July 10, 1966, Mula adopted the re spondent.
On March 11, 1970 appellant No. 13 executed in favour of appellants 1 to 12,, a lease in respect of the property which was the subject matter of the gift.
Mula died on August 23, 1971.
On December 13, 1971, respondent filed a suit for possession of certain properties including the property which Mula had gifted to appellant No. 13.
The suit was decreed on January 20, 1971 and that decree was confirmed in appeal by the District Court and the High Court.
In appeal by special leave.
, the appellants contended (i) In decreeing the suit the Courts below had over looked the relevant provisions of the Punjab Customs (Power to Contest) Amendment Act, 1973 by virtue of which the legali ty of the gift made by Mula to appellant No. 13 could not be contested and (ii) since the respondent was not entitled to impeach the gift in favour of Bhagwati Devi, having been adopted after the date of the gift, the decree obtained by appellants 1 to 12 cannot enure for his benefit, under section 8 of the Punjab Limitation (Custom) Act, of 1920.
Dismissing the appeal, the Court HELD: (1 ) That a declaratory decree obtained under the Punjab Customs (Power to Contest) Act by a reversioner to the effect that an alienation would not bind them after the.
alienor 's death, had the effect of restoring the property alienated to the estate of the alienor and therefore, all persons who are heirs to the deceased were entitled to obtain possession of the alienated property.
[367 E F] (ii) The decree obtained by appellants 1 to 12 on May 31, 1966 would enure for the benefit of all persons who are entitled to a share in the property of the.
deceased as it existed at the moment of his death.
Since Mula 's property stood freed from the encumbrance of the, gift at the moment of his death, respondent as the adopted son would be en tiled to the possession of the gifted property.
[367 H, 368 A] Giani Ram vs Ramji Lal ; , relied on to; Chand Singh vs bid Kaur approved.
(iii) It is true that, if it became necessary after the amending Act of 1973 to contest the gift executed by Mula in favour of Bhagwati Devi, section 7 of the Act of 1920 would operate as a bar to such a contest.
But in the instant case, the basis on which the respondent has asked for the relief is that upon the death of Mula in 1971, the gift ceased to be operative by reason of the decree passed in suit No. 143/1965.
He has not and indeed he need not have contested the validity of the gift deed since the question was decided finally in the aforesaid suit.
[367 B D] 366


Input:
Criminal Appeal No. 624 of 1979.
From the Judgment and Order dated 27.3.1979 of the Madhya Pradesh High Court in Criminal Appeal No. 498 of 1977.
Frank Anthony, Sushil Kumar Jain, Ms. Pratibha Jain and R.V. Singh for the Appellants.
U.N. Bachhavat, Uma Nath Singh and J.M. Sood for the Respon dent.
The following Order of the Court was delivered: These two appellants, namely, Mathura Prashad and Binda Prashad have preferred this appeal questioning the correct ness and legality of the judgment rendered in Criminal Appeal No. 498/77 by the High Court of Madhya Pradesh at Jabalpur Bench.
These two appellants (A4 and A5 before the Trial Court) along with three others, namely, Gulab Chand and Gulab Singh and Laxman Rao (who were arrayed as accused Nos. 1 to 3) took their trial on the accusation that on the night intervening 5/6.12.75 at about 12.30 a.m. at Sarkanda, Bilaspur within the limits of Bilaspur Police Station, Civil Lines intentionally caused the death of the deceased, Keshav Singh by Gulab Singh stabbing the deceased with a knife and the rest of the people assaulting him and that in the course of the same transaction, they also committed the offence of dacoity.
Under the above accusation, they were tried for offences punishable u/s 302 IPC in the alternative u/s 302 IPC read with 149 IPC and also for offence u/s 396 IPC.
The Trial Court found the third accused, namely, Laxman Rao not guilty of any of the charges and consequently, acquitted him but convicted these two appellants and accused Nos. 1 and 2 who are not before us u/s 302 read with 34 IPC and sentenced each of them to undergo imprisonment for life.
However, the Trial Court acquitted the appellants and the other two accused of the offence u/s 396 IPC.
On being aggrieved by the judgment of the Trial Court, the convicted accused namely, these two appellants, Gulab Chand and Gulab Singh filed 429 an appeal before the High Court which for the reasons men tioned in its judgment, dismissed the appeal confirming the conviction recorded by the Trial Court.
Challenging this judgment, these two appellants filed their SLP No. 1902/79 and the other two convicted accused, namely, Gulab Chand and Gulab Singh (A1 and A2) filed a separate petition in SLP (Crl.) No. 1435/79.
This Court by an order dated 29.10.79 granted leave so far as SLP filed by these two appellants, but dismissed the SLP filed by the first and the second accused namely, Gulab Chand and Gulab Singh.
Hence, the present appeal by these two appellants.
The facts of the case which led to the filing of this appeal are well set out in the judgments of the Trial Court and the High Court and hence we think that it is not neces sary for us to proliferate the same except to refer to certain salient features relevant for the disposal of this appeal.
The deceased Keshav Singh was a petition writer.
He was living in his house at Sarkanda in Bilaspur with his wife Smt.
Phatokan Bai (PW 19) and two daughters, namely, Anjani Bai (PW 1) and Shail Kumari (PW 2) and his son, Ram Kumar (PW 3) who was younger to PW 1 and eider to PW 2.
There were some tenants in different parts of that house.
The accused Gulab Chand occupied a portion of that house as a tenant, but vacated the same about two months before this occurrence due to frequent quarrels between the children and ladies of the families belonging to Gulab Chand and that of the deceased.
It is alleged that the wife of Gulab Chand had complained about some alleged misbehaviour of the deceased with her.
According to the prosecution, when the deceased was sleeping in a room with his wife on the iII fated night, he heard someone knocking at the door.
On this, the deceased switched on the light and opened the door.
This appellant and the other accused entered his room.
Gulab Chand and Gulab Singh whipped up their knives and gave stab wounds; one on the chest, another on the back while bending.
These two appellants slapped and fisted the deceased.
It is fur ther stated that the second appellant herein, namely, Binda Singh caught hold of the deceased and banged him against the wall repeatedly.
PW 19 tried to save her husband but she was pushed aside.
During the course of the occurrence, a gold 'PUTRI ' which PW 19 was wearing, was attempted to be snatched away from her.
PW 1 who was sleeping in a room on the first floor, on hearing the cry, got down and saw these appellants and the other accused leaving her father 's room.
It is alleged that the appellant while running away took with them a box con taining some clothes and other articles belonging to PW 1.
According to the prosecution, the appellants had chained the doors in such a way that the other inmates of the house could not reach the spot.
430 After the appellants had fled away, PW 1 opened the doors.
PW 3 who was sleeping in another room reached the spot.
PW 15 was a tenant in an adjoining room and he on hearing the distress cry of PW 19, wanted to come out of his room but he could not do so as the house was chained from outside.
Therefore, PW 15 shouted for opening the latches of the door.
He came to the spot after the door was opened.
One Ramji Dayal who seemed to have played an important role in the prosecution, also reached the spot but he has not been examined by the prosecution as a witness.
All the witnesses saw bleeding injuries on the body of Keshav Singh (the deceased herein) who was unable to speak.
PW 3, at the instance of his deceased father brought a pen and a piece of paper on which the injured Keshav Singh wrote 'Gulab Chand ' and thereafter became unconscious.
The injured Keshav Singh was then taken to the Government hospital at Bilaspur where he succumbed to his injuries.
The medical officer sent a requisition exhibit P 14 to the police station.
PW 19, by then, lodged the first information report Exh.
P 43 at about 3.00 a.m. on 6.12.75 before PW 21.
PW 21 held inquest and pre pared the inquest report Exh.
During the course of the investigation, he has seized exhibit P.50, the paper on which the deceased had written the name 'Gulab Chand ' on being produced by PW 3.
PW 9, the medical officer who conducted autopsy on the dead body of the deceased, found two stab wounds and one incised wound on the person of the deceased.
PW 8, another medical officer examined accused Gulab Singh and found on his person a small incised wound at the base of the index finger on the palmer aspect.
After completing the investigation, the charge sheet was laid against all the accused persons.
As aforementioned, the trial court convicted the four accused inclusive of these two appellants which conviction was confirmed by the High Court.
Hence, this appeal by these two appellants.
Of the witnesses examined, PWs 1, 2 and 19 speak about the participation of the appellants in the perpetration of this heinous crime.
No doubt both the Courts below have concurrently found that these two appellants and the other two accused 1 and 2 were responsible for causing the death of the deceased and consequently convicted and so, the question would be whether this Court while exercising its jurisdiction under Article 136 of the Constitution of India, will be justified in interfering with the concurrent find ings of fact.
This Court in Balam Ram vs State of U.P. 11975] 3 SCC 219 at 227 held, that the powers of the Supreme Court under Article 1.36 of the Constitution are wide but in criminal appeals, this Court does not interfere with the concurrent findings of fact save in exceptional circumstances.
The 431 scope of interference by this Court under Article 136 of the Constitution of India in a case of concurrent findings of fact arose in Arunachalam vs PSR Sadhanathan, ; wherein this Court has held that "Article 136 of the Constitution of India invests the Supreme Court with a plenitude of plenary appellate power over all Courts and Tribunals in India.
The power is plenary in the sense that there are no words under Article 136 itself qualifying that power.
But, the very nature of the power has led the Court to set limits to itself within which to exercise such power.
It is now the well established practice of this Court to permit the invocation of the power under Article 136 only in very exceptional circumstances, as when a question of law of general public importance arises or a decision shocks the conscience of the Court.
But, within the restrictions im posed by itself, this Court has the undoubted power to interfere even with findings of the fact, making no distinc tion between judgments of acquittal and conviction, if the High Court, in arriving at those findings had acted "per versely or otherwise improperly".
(See State of Madras vs
A. Vaidyanatha Iyer ; and Himachal Pradesh Admin istration vs Om Prakash, We think that it is not necessary to swell this judgment by citing all the decisions relating to this principle of law.
When the facts and circumstances of the case are scruti nised, in our considered opinion, they do compel this Court to interfere on the ground that the findings of the Courts below suffer from the vice of perversity.
I1 is the admitted case that the deceased was a petition writer and so in that capacity he was very well conversant as to how to draft a complaint.
He asked for a pen and paper, and wrote the name, 'Gulab Chand ', evidently thereby saying that Gulab Chand was the assailant.
The deceased had not written any other name except the name of Gulab Chand.
Now the explana tion given by the prosecution is that the deceased became unconscious after writing this one name Gulab Chand, thereby saying had he not become unconscious, probably he would have written the names of other assailants also.
But we have to test this evidence in the background of the evidence given by other witnesses namely PWs '1, 2 and 19.
PW 19 who is none other than the wife of the deceased, was sleeping in the same room in which the deceased was sleeping and, there fore, she must be the proper and natural witness and her evidence has to be given credence.
PW 19 admittedly did not inform either PW 1 or PW 2 the names of the assailants but she gave the names only to PW 3, her son.
It transpires from the evidence of PW 19 that after PW 1 went to fetch the rickshaw, PW 3 asked his father as to who had assailed him 'and that it was only thereafter the injured Keshav Singh wrote the name of Gulab Chand on a piece of paper.
The relevant portion of the evidence of PW 19 reads as follows: 432 Then Ram Kumar asked my husband as to who had assaulted and he asked for a pen and paper.
Ram Kumar brought a paper and pen and my husband could write on it the name of Gulab Chand.
In this connection, evidence of PW 2 may also be re ferred to which is as follows: "Then at this stage, my brother asked him as to who had assaulted him.
My father asked by a sign of hand for a pen and paper, whereupon my brother brought the pen and paper and gave that to my father.
My father wrote on it by his hand; he wrote the name of Gulab Singh and thereafter he became unconscious. ' This dearly indicates that before the deceased wrote the name of Gulab Chand on the paper given by his son, PW 3, no one including PW 19 came forward with the names of the assailants but it is only thereafter, PW 19 gave the names of the assailants.
Here also, the prosecution is not con sistent because PW 2 says that her father also gave the name of all the assailants to Ram Kumar (PW 3).
The relevant part of PW 2 's evidence reads thus: "Then my mother and father both mentioned the names of the assailants.
At that time my brother, Ram Kumar was also there.
After Ramji had enquired, my brother also enquired them.
My father asked for by a sign of hand for pen and a copy.
" The above extracted pieces of evidence of PWs 2 and 19 indicate that PW 3 was not informed of the names of the assailants before his father (the deceased herein) wrote the name of Gulab Chand.
Had PW 3 informed by his mother (PW 19) of the names of the assailants, he might not have asked his father as to who the assailants were.
In other words, till the deceased wrote the name of Gulab Chand on a piece of paper evidently PW 3 did not know as to who assailant or assailants was/were.
It seems that both the Courts below have not approached this significant aspect of this salient feature in the proper perspective.
On the other hand, it has conveniently omitted this significant factor from consideration which gives the death knell to the prosecution case so far as the alleged participation of these two appellants in this brutal crime.
In the inquest report Exh.
P 24, it is stated that all the relatives of the deceased 433 Keshav Singh were examined and the following conclusion was arrived at: ". . the conclusion was reached that the death of deceased Keshav Singh by Gulab Singh, Gulab Chand etc.
was due to knife wounds.
" This 'etc. ' in the present case has no relevance because there is a specific averment that the two assailants namely, Gulab Singh and Gulab Chand stabbed the deceased with knives which case alone fits in with the earlier statements of PWs 2 and 19 as well as the version of the deceased in Exh.
If really the names of these two appellants had been mentioned by the witnesses, those names also would have been specifically mentioned in Exh.
P :24.
At this juncture, the learned senior counsel appearing on behalf of the State referred to a decision of this Court reported in ; Pedda Narayana vs State of Andhra Pradesh wherein this Court has held that the question regarding the details as to how the deceased was assaulted or who assaulted him or under what circumstances, he was assaulted is foreign to the ambit and scope of the proceedings under Section 174.
This decision will not be of any help to the prosecution because only two names are mentioned in the inquest report as as sailants, leaving the names of these two appellants who are now rightly attempting to take advantage of this conspicuous omission in Exh.
P. 24.
Though PW 19 is said to be the author of Exh.
P 43, she before the Trial Court does not claim to be the author of the entire averments.
She states that the police who record ed the report, asked only her name and her husband 's name and nothing further was asked from her and she did state anything more than that.
PW 19 further had deposed that she did not give the names of the accused who assaulted, that she did not know whether her husband was then dead or alive, that at Thana (Police Station) she came to know about the death of her husband, that even then she did not mention the names of the assailants, and that before going to the Thana, she did not give the names of any of the assailants to any person.
It is in evidence that both these appellants were present at the scene of occurrence when the police constable came, but none pointed out to the police that these two appellants also participated in the crime.
Now the explana tion offered by the prosecution is that these two appellants took the constable aside and whispered something and there fore, PW 1 suspecting that the police constable was taking side with the appellants did not come forward with a state ment that these two appellants were also the participants in the crime.
This explanation seems to have been offered only before the Trial Court.
Both the Courts below have conven iently over 434 looked and ignored all the above glaring infirmities appear ing in the case and as such the concurrent findings recorded by both the Courts are not proper but perverse.
After meticulously and scrupulously analysing the evi dence, we are left with an impression that the prosecution has not satisfactorily established the guilt of these two appellants beyond all reasonable doubt.
Hence, we are unable to agree with the findings of the lower Courts that these two appellants also participated in the crime with the other two accused.
In the result, the conviction of these two appellants u/s 302 read with 34 IPC and the sentence of imprisonment for life imposed therefore are set aside and both of them are acquitted.
The appeal is thus allowed.
V.P.R Appeal al lowed.

Output:
According to the prosecution, when the deceased a peti tion writer, was sleeping in a room with his wife (PW.19) on the iII fated night, he heard someone knocking at the door.
The deceased switched on the light and opened the door.
The accused (A.1 and A.2) entered his room.
They whipped up their knives and gave stab wounds; one on the chest, another on the hack while bending.
They also slapped and listed the deceased.
It was further stated that the second appellant (A 5) caught hold of the deceased and banged him against the wall repeatedly.
PW19 tried to save her husband but she was pushed aside.
During the course of the occurrence, a gold 'PUTRI ' which PW 19 was wearing, was attempted to be snatched away from her.
The eldest daughter of the deceased, PW 1, who was sleeping in a room on the first floor, on hearing the cry, got down and saw the appellants and the other accused leav ing her father 's room.
The appellants while running away took with them a box containing some clothes and other articles belonging to PW 1 and chained the doors in such a way that the other inmates of the house could not reach the spot.
The deceased 's son, PW 3, who was sleeping in another room reached the spot.
PW 15, a tenant in an adjoining room on hearing the distress cry of PW 19, wanted to come out of his room but he could not do 426 so as the house was chained from outside.
He came to the spot after the door was opened.
All the witnesses saw bleeding injuries on the body of the deceased who was unable to speak.
PW 3, at the instance of his deceased father brought a pen and a piece of paper on which the injured deceased wrote 'Gulab Chand ' and thereaf ter became unconscious, and he was then taken to the Govern ment hospital where he succumbed to his injuries.
The two appellants (A4 and A5 before the Trial Court) along with three others were tried section 302 IPC or section 302/149 and section 396, for causing the death of the deceased, accused No. 2 stabbing the deceased with a knife and the rest of the accused assaulting him and for committing the offence of dacoity.
The Trial Court found the third accused not guilty of any of the charges and acquitted him but convicted others section 302 read with 34 IPC and sentenced each of them to undergo imprisonment for life, and acquitted them of the offence section 396 IPC.
The High Court confirmed the conviction.
The present two appellants (A4, A5) filed the present appeal against the judgment of the High Court through special leave.
The other two accused (A1 and A2) preferred a separate special leave petition, which was dismissed by this Court.
Allowing the appeal of the two accused (A4, A5), this Court, HELD: 1.
The powers of the Supreme Court under Article 136 of the Constitution are wide but in criminal appeals, this Court does not interfere with the concurrent findings of fact, save in exceptional circumstances.
[430 H] 2.
Within the restrictions imposed by itself, this Court has the undoubted power to interfere even with findings of the fact, making no distinction between judgments of acquit tal and conviction, if the High Court, in arriving at those findings has acted perversely or otherwise improperly.
[431 C] Arunachalam vs PSR Sadhananthan, ; ; State of 427 Madras vs
A. Vaidyanatha Iyer; , ; Himachal Pradesh Administration vs Om Prakash, [1972]1 SCC 249, referred to. 3.01 The deceased was a petition writer and so in that capacity he was very well conversant as to how to draft a complaint.
He asked for a pen and paper, and wrote the name, 'Gulab Chand ', evidently thereby saying that Gulab Chand was the assailant.
The deceased had not written any other name except the name of Gulab Chand.
Now the explanation given by the prosecution is that the deceased became unconscious after writing this one name Gulab Chand, thereby saying had he not become unconscious, probably he would have written the name of other assailants also.
[431 E F] 3.02.
PW 19 the wife of the deceased, was sleeping in the same room in which the deceased was sleeping did not inform either PW 1 or PW 2 the names of the assailants but she gave the names only to PW 3, her son.
It transpires from the evidence of PW 19 that after PW 1 went to fetch the rickshaw, PW 3 asked his father as to who had assailed him and that it was only thereafter the injured deceased wrote the name of Gulab Chand on a piece of paper.
Before the deceased wrote the name of Gulab Chand on a piece of paper given by his son, PW 3, no one including PW 19 came forward with the names of the assailants.
[431 F G] 3.03.
The evidence of PW 2 and 19 indicated that PW 3 was not informed of the names of the assailants before his father (the deceased) wrote the name of Gulab Chand.
Till the deceased wrote the name of Gulab Chand on a piece of paper evidently PW 3 did not know as to who the assailant or assailants was/were.
The Courts below have not approached this signifi cant aspect of this salient feature in the proper perspec tive.
[432 G] 3.05.
In the inquest report there is a specific averment that the two assailants namely, Gulab Singh (A.2) and Gulab Chand (A.1) stabbed the deceased with knives which case alone fits in with the earlier statements of PWs 2 and 19 as well as the version of the deceased in Exh.
P. 50.
If really the names of the two appellants had been mentioned by the witnesses, those names also would have been specifically mentioned in Exh.
P. 24, the inquest report.
[433 B C] 428 3.06.
It is in evidence that both the appellants were present at the scene of occurrence when the police constable came, but none pointed out to the police that these two appellants also participated in the crime.
The prosecution has not satisfactorily established the guilt of the two appellants beyond all reasonable doubt.