Input:
Appeal No. 419 of 1957.
Appeal by certificate from the judgment and decree dated January 16, 1953, of the Madras High Court in A. section No. 164 of 1949.
M. section K. Sastri, for the appellants.
Ravindra Narain, for the respondents.
April 14.
The Judgment of the Court was delivered by SUBBA RAO, J.
This appeal by certificate, is directed against the judgment of the High Court of Judicature at Madras dated January 16, 1953, modifying the decree of the Court of the Subordinate Judge, Dindigul, in 0.
section No. 7 of 1948, a suit filed by the respondents for compensation under the provisions of the (XIII of 1855).
The appellant, Gobald Motor Service Ltd. (hereinafter called the Company), was engaged in the business of transporting passengers by bus between Dharapuram and Palni, among other places, in the State of Madras.
On September 20, 1947, one of the buses of the Company, bearing registration number MDC 2414, left Dharapuram for Palni at about 3 p.m.
At a place called Thumbalapatti between Dharapuram and Palni, one Rajaratnam, along with his brother by name Krishnan, boarded the bus.
The bus met with an accident at about 3 miles from Palni, as a result of which some of the passengers, including Rajaratnam, sustained injuries.
Rajaratnam died of 932 the injuries received in the accident on September 23, 1947.
The first plaintiff, his father; the second plaintiff, his widow; and plaintiffs 3 to 7, his sons, instituted 0.
section No. 7 of 1948 against the Company in the Court of the Subordinate Judge, Dindigul, for compensation under section 1 of the (hereinafter called the Act) for loss of pecuniary benefit sustained by them personally, and under section 2 thereof for the loss sustained by the estate on account of the death of Rajaratnam.
They alleged in the plaint that the driver, who was in charge of the bus, was incompetent and inexperienced, that he was guilty of rash and negligent conduct in the driving of the bus, and that the accident was the result of his incompetence and negligence.
The Company in its written statement denied the said allegations and leaded that the accident was the result of the central plea of the left rear spring suddenly giving way, that Rajaratnam was also guilty of contributory negligence and that in any event the damages claimed were excessive.
The learned Subordinate Judge came to the conclusion that there was no proof that the bus was driven at a reckless speed at the scene of the accident, but the fact that the accident occurred on the off side of the road was itself evidence of his negligence and it had not been rebutted by the defendants.
He further held that the driver was not proved to be incompetent.
On those findings, he held that the defendants were liable for the negligence of their servant, and be awarded damages as follows: (1)Plaintiff 1 .
Rs. 3,600 under section 1 of the Act.
(2) Plaintiffs 2 to 7.
Rs. 25,200 under section 1 of the Act.
(3) Plaintiffs 2 to 7.
Rs. 6,000 under section 2 of the Act.
Against the said decree, the defendants preferred an appeal to the High Court and it came to be disposed of by a division bench of that court.
The High Court on a review of the entire evidence held that the speed at which the bus was driven was excessive, having regard to the nature of the ground on which the accident happened, that there was negligence on the part of the 933 driver, and that the appellants were liable therefore.
But the High Court discounted the plea that the appellants, apart from their being constructively liable for the negligence of the driver, were also negligent in employing Joseph, who was not a competent driver.
Both the courts, therefore, concurrently held that the accident occurred on account of the negligence of the driver.
On the question of damages, the High Court confirmed the amount of compensation awarded to the plaintiffs 2 to 7 both under sections 1 and 2 of the Act, but in regard to the first plaintiff, it reduced the compensation awarded to him from Rs. 3,600 to Rs. 1,000; with this modification, the appeal was dismissed with costs.
Learned counsel for the appellants raised before us the following points: (1) The finding of the High Court that the bus was driven at an excessive speed at the place where the accident occurred, based on probabilities, was erroneous.
(2) The concurrent finding of the two courts that respondents 2 to 7 would be entitled to damages in a sum of Rs. 25,200 for the loss of pecuniary advantage to them was not based upon any acceptable evidence but only on surmises.
(3) The High Court went wrong in awarding damages separately for loss of expectation of life under section 2 of the Act, as damages under that head had already been taken into consideration in giving compensation to respondents 2 to 7 for the pecuniary loss sustained by them by the death of Rajaratnam.
The first question for consideration is whether the accident was due to any negligence on the part of the driver Joseph.
A clear picture of the topography and the physical condition of the locality where the accident took place would, to a large extent, help us in deciding the said question.
The accident took place at Puliampatti where the road passed over a culvert and then took a sharp bend with a downward gradient.
To the east of the road was a drain and that was marked off by 5 stones 2 feet high.
At a distance of 20 or 25 feet from the stones, there were trees.
The bus after crossing the culvert crashed against the 5th stone with so much force that the latter 934 was uprooted and broken.
It next attacked a tamarind tree which was stated to be at a distance of 20 or 25 feet from the stone, and its bark was peeled off and it travelled some more distance before it finally came to rest.
The evidence disclosed that some of the passengers were knocked and thrown down within the bus itself and sustained injuries, while Rajaratnam was thrown out of the bus into the ditch at a place 161 feet south of the tamarind tree.
It must be self evident from the said picture of the accident that the bus must have been driven at a high speed.
P.Ws. 3 and 4, two of the passengers in the bus, P.W. 6, a brother of Rajaratnam, who also travelled in the bus, and P.W. 5, who ran a coffee and tea stall at the place of the accident, swore in the witness box that the bus was being driven at a high speed when the accident happened.
Their evidence reinforces the compelling impression of high speed caused by the objective features thrown out by the topography of the place of the accident.
On the other hand, on the side of the defendants (appellants herein) D. W. 2, who claimed to have travelled in the bus, deposed that the bus was travel ling at the usual speed, but his cross examination discloses that he was an improvised witness.
D.W. 3, who was sitting by the side of the driver, deposed to the same effect, but he was an employee of the Company and was obviously interested to support their case.
The evidence adduced on the side of the defence is certainly not convincing.
An attempt was made to calculate the speed of the bus on the basis of the time given by P. W. 6 as to when Rajaratnam boarded the bus and the time when the bus dashed against the tree, and the mileage covered between the two points within the said time.
On the basis of such a calculation it was contended that the speed would have been less than 15 miles per hour; but it is not possible to deduce the speed from such a calculation, as the witnesses were speaking of the time only approximately and not with reference to any watch.
That apart, it cannot be said that the bus maintained an even pace throughout.
The High Court, on the basis of the evidence and on broad probabilities, held that 935 the speed at which the bus was driven was excessive, having regard to the nature of the ground on which the accident happened; and having gone through the evidence, we are quite satisfied that the said finding was justified on the material placed before them.
It must, therefore, be held that there was negligence on the part of the driver.
Apart from the positive evidence, in the present case the accident took place not on the main road, but on the off side uprooting the stone at the drain and attacking a tamarind tree 25 feet away from the said stone with such a velocity that its bark was peeled off and the bus could stop only after travelling some more distance from the said tree.
The said facts give rise to a presumption that the accident was caused by the negligence of the driver.
Asquith, L. J., in Barkway vs South Wales Transport Co. (1) neatly summarizes the principles applicable as to onus of proof in the following short propositions: "(i) If the defendants ' omnibus leaves the road and falls down an embankment, and this without more is proved, then the res ipsa loquitur, there is a presumption that the event is caused by negligence on the part of the defendants, and the plaintiff succeeds unless the defendants can rebut this pre sumption.
(ii) It is no rebuttal for the defendants to show, again without more, that the immediate cause of the omnibus leaving the road is a tyre burst, since a tyre burst per se is a neutral event consistent, and equally consistent, with negligence or due diligence on the part of the defendants.
When a balance has been tilted one way, you cannot redress it by adding an equal weight to each scale.
The depressed scale will remain down.
This is the effect of the decision in Laurie vs Raglan Building Company Ltd., (2), where not a tyre burst but a skid was involved.
(iii) To displace the presumption, the defendants must go further and prove (or it must emerge from the evidence as a whole) either (a) that the burst itself was due to a specific cause which does not connote negligence on their part but points to its (1) , 471.
(2) 936 absence as more probable, or (b) if they can point to no such specific cause, that they used all reasonable care in and about the management of their tyres.
" The same principles have been restated in Halsbury 's Laws of England, 2nd Edn., Vol. 23, at p. 671, para 956, thus: "An exception to the general rule that the burden of proof of the alleged negligence is in the first instance on the plaintiff occurs wherever the facts already established are such that the proper and natural inference immediately arising from them is that the injury complained of was caused by the defendant 's negligence, or where the event charged as negligence tells its own story ' of negligence on the part of the defendant, the story so told being clear and unambiguous.
To these cases the maxim res ipsa loquitur applies.
Where the doctrine applies, a presumption of fault is raised against the defendant, which, if he is to succeed in his defence, must be overcome by contrary evidence, the burden on the defendant being to show how the act complained of could reasonably happen without negligence on his part.
Where, therefore, there is a duty on the defendant to exercise care, and the circumstances in which the injury complained of happened are such that with the exercise of the requisite care no risk would in the ordinary course of events ensue, the burden is in the first instance on the defendant to disprove his liability.
In such a case, if the injurious agency itself and the surrounding circumstances are all entirely within the defendant 's control, the inference is that the defendant is liable, and this inference is strengthened if the injurious agency is inanimate.
" The said principles directly apply to the present case.
Here, the events happened tell their own story and there is a presumption that the accident was caused by negligence on the part of the appellants.
But it is ,said that this presumption was rebutted by proof that the accident was due to the rear central bolt of the bus 937 suddenly giving way.
The High Court, after considering the relevant evidence, held that it was not possible to hold that the accident was caused by the break in the bolt.
We have gone through the evidence and we do not see any flaw in that conclusion.
The scope of the liability of a master for the negligence of his servant has been succinctly stated by Baron Parke in Joel vs Morison (1) thus: 'The master is only liable where the servant is acting in the course of his employment.
If he was going out of his way, against his master 's implied commands, when driving on his master 's business, he will make his master liable; but if he was going on a frolic of his own, without being at all on his master 's business, the master will not be liable.
" Again, in Storey vs Ashton (2) Cockburn, L.C.J., says: "The true rule is that the master is only responsible so long as the servant can be said to be doing the act, in the doing of which he is guilty of negligence, in the course of his employment as servant.
" In the same case, Lush, J., said: "The question in all such cases as the present is whether the servant was doing that which the master employed him to do." In the present case, admittedly, on account of the negligence of the driver in the course of his employment the said accident happened, and, therefore, the appellants are liable therefore.
The next question is whether the courts below were right in awarding compensation of Rs. 25,200 for the pecuniary loss unstained by the respondents 2 to 7 by reason of the death of Rajaratnam, under section 1 of the Act.
Section 1 of the Act reads: "Whenever the death of a person shall be caused by wrongful act, neglect or default, and the act, neglect or default is such as would (if death had not ensued) have entitled the party injured to maintain an action and recover damages in respect thereof, the party who would have been liable if death had (1) (1834) 6 Car.
& P. 501 ; 172 E.R. 1338.
(2) 118 938 not ensued shall be liable to an action or suit for damages, notwithstanding the death of the person injured, and although the death shall have been caused under such circumstances as amount in law to felony or other crime.
Every such action or suit shall be for the benefit of the wife, husband, parent and child, if any of the person whose death shall have been so caused, and shall be brought by and in the name of the executor, administrator or representative of the person deceased; and in every such action the Court may give such damages as it may think proportioned to the loss resulting from such death to the parties respectively, for whom and for whose benefit such action shall be brought; and the amount so recovered, after deducing all costs and expenses, including the costs not recovered from the Defendant, shall be divided amongst the before mentioned parties, or any of them, in such shares as the Court by its judgment or decree shall direct." This section is in substance a reproduction of the English Fatal Accidents Acts, 9 and 10 Vict.
93, known as the Lord Campbell 's Acts.
The scope of the corresponding provisions of the English Fatal Accidents Acts has been discussed by the House of Lords in Davies vs Powell Duffryn Associated Collieries Ltd.(1).
There, Lord Russell of Killowen stated the general rule at p. 606 thus: "The general rule which has always prevailed in regard to the assessment of damages under the, Fatal Accidents Acts is well settled, namely, that any benefit accruing to a dependent by reason of the relevant death must be taken into account.
Under those Acts the balance of loss and gain to a dependent by the death must be ascertained, the position of each dependent being considered separately." Lord Wright elaborated the theme further thus at p. 611: "The damages are to be based on the reasonable expectation of pecuniary benefit or benefit reducible (1) 939 to money value.
In assessing the damages all circumstances which may be legitimately Pleaded in diminution of the damages must be considered.
The actual pecuniary loss of each individual entitled to sue can only be ascertained by balancing, on the one band, the loss to him of the future pecuniary benefit, and, on the other, any pecuniary advantage which from whatever source comes to him by reason of the death.
" The same principle was restated with force and clarity by Viscount Simon in Nance vs British Columbia Electric Railway Company Ltd. (1).
There, the learned Lord was considering the analogous provisions of the British Columbia legislation, and he put the principle thus at p. 614: "The claim for damages in the present case falls under two separate heads.
First, if the deceased had not been killed, but had eked ou t the full span of life to which in the absence of the accident he could reasonably have looked forward, what sums during that period would he probably have applied out of his income to the maintenance of his wife and family?" Viscount Simon then proceeded to lay down the mode of estimating the damages under the first head.
According to him, at first the deceased man 's expectation of life has to be estimated having regard to his age, bodily health and the possibility of premature determination of his life by later accidents; secondly, the amount required for the future pro vision of his wife shall be estimated having regard to the amounts he used to spend on her during his lifetime, and other circumstances; thirdly, the estimated annual sum is multiplied by the number of years of the man 's estimated span of life.
, and the said amount must be discounted so as to arrive at the equivalent in the form of a lump sum payable on his death; fourthly, further deductions must be made for the benefit accruing to the widow from the acceleration of her interest in his estate; and, fifthly, further amounts have to be deducted for the possibility of the (1) 940 wife dying earlier if the husband had lived the full span of life; and it should also be taken into account that there is the possibility of the widow remarrying much to the improvement of her financial position.
It would be seen from the said mode of estimation that many imponderable enter into the calculation.
Therefore, the actual extent of the pecuniary loss to the respondents may depend upon data which cannot be ascertained accurately, but must necessarily be an estimate, or even partly a conjecture.
Shortly stated, the general principle is that the pecuniary loss can be ascertained only by balancing on the one hand the loss to the claimants of the future pecuniary benefit and on the other any pecuniary advantage which from whatever source comes to them by reason of the death, that is, the balance of loss and gain to a dependent by the death must be ascer tained.
The burden is certainly on the plaintiffs to establish the extent of their loss.
Both the courts below found, on the evidence the following facts: (1) The family owned a building worth Rs. 2,00,000 at Palni, and 120 acres of nanja land worth about Rs. 1,000 per acre.
(2) It was engaged in the business of manufacturing Indian patent medicines from drugs and had been running a Siddha Vaidyasalai at Palni for a period of 30 years and had also branches in Colombo and Madras.
(3) Rajaratnam studied in the Indian School of Medicine for two years and thereafter set up his own practice as a doctor, having registered himself as a practitioner in 1940.
(4) He took over the management of the family Vaidyasalai at Palni.
(5) Rajaratnam was earning in addition Rs. 200 to Rs. 250 per month in his private practice.
(6) He had a status in life, being Municipal Councillor of Palni and sometimes its Vice Chairman, and was maintaining a fairly good standard of life and owned motor cars.
(7) He was aged 34 years at the time of his death and, therefore had a reasonably long span of life before him, if the accident had not taken place.
On the said findings, the High Court summarized the position thus: 941 age 34 carrying on business as a Doctor, with reasonable prospects of improving in his business.
He was living in comfort and by his early death plaintiff, , 2 to 7 have lost their prospects of education, position in society and even possible provision in their favour.
Under the circumstances, the award of Rs. 25,000 as damages must be accepted as quite reasonable.
" When the courts below have, on relevant material placed before them, ascertained the said amount as damages under the first head, we cannot in second appeal disturb the said finding except for compelling reasons.
Assuming that Rajaratnam had not died, he would have spent, having regard to his means and status in life, a minimum of Rs. 250 on respondents 2 to 7; and his income, as indicated by the evidence, would certainly be more than that amount.
The yearly expenditure he had to incur on the members of the family would have been about Rs. 3,000 and the sum of Rs. 25,200 would represent the said expenditure for just over 8 years.
In the circumstances, the balance of loss and gain to the dependents by, the death of Rajaratnam, in the sense stated by Lord Wright and Viscount Simon, could not be less than Rs. 25,200; indeed, having regard to the circumstances of the case, it is a moderate sum; it is rather a conservative estimate.
We, therefore, accept that figure as representing the damages for respondents 2 to 7 in respect of their claim under the head of pecuniary loss to them by the death of Rajaratnam.
The last, contention raises an interesting point.
Under section 2 of the Act the respondents 2 to 7 were awarded Rs. 5,000 as damages for loss of expectation of life.
It was contended that this amount should go in reduction of Rs. 25,200 awarded under section 1 of the Act on the ground that otherwise it would be duplication of damages in respect of the same wrong.
The second proviso to section 2 of the Act reads: "Provided that in any such action or suit, the executor, administrator or representative of the deceased may insert a claim for and recover any 942 pecuniary loss to the estate of the deceased occasioned by such wrongful act, neglect or default, which sum, when recovered, shall be deemed part of the assets of the estate of the deceased." While section 1 of the Act is in substance a reproduction of the English Fatal Accidents Acts, 9 & 10 Vict.
93, known as the Lord Campbell 's Acts, section 2 thereof corresponds to a provision enacted in England by the Law Reform (Miscellaneous Provision) Act, 1934.
The cause of action under section 1 and that under section 2 are different.
While under section 1 damages are recoverable for the benefit of the persons mentioned therein, under section 2 compensation goes to the benefit of the estate; whereas under section 1 damages are payable in respect of loss sustained by the persons mentioned therein, under section 2 damages can be claimed inter alia for loss of expectation of life.
Though in some cases parties that are entitled to compensation under both the sections may happen to be the same persons, they need not necessarily be so; persons entitled to benefit under section 1 may be different, from those claiming under section 2.
Prima facie as the two claims are to be based upon different causes of action, the claimants, whether the same or different, would be entitled to recover compensation separately under both the heads.
But a difficulty may arise where the party claiming compensation under both the heads is the same and the claims under both the heads synchronize in respect of a particular sub head or in respect of the entire head.
In that situation, the question is whether a party would be entitled to recover damages twice over in respect of the same wrong.
In England this question came under judicial scrutiny in Rose vs Ford (1).
There the question was whether and to what extent deductions would have to be made in giving compensation both under the English Fatal Accidents Acts and the Law Reform (Miscellaneous Provision) Act, 1934.
A young woman called Rose was killed in an accident.
Her father sued for damages under both the Acts.
It was contended that as he got damages for personal loss, he could not be (1) , 835.
943 awarded once again compensation for the loss of expectation of life.
Though in that case it was held that the father was entitled under both the Acts, Lord Atkin made the following observations, which are appropriate to the present case: "I should add that I see no difficulty as to the alleged duplication of damages under the Act of 1934 and the Fatal Accidents Acts.
If those who benefit under the last mentioned Acts also benefit under the will or intestacy of the deceased personally, the damages under those Acts will be affected.
If they do not, there seems no reason why an increase in the deceased 's estate in which they take no share should ,affect the measure of damages to which they are entitled under the Act.
" A similar question arose in Feay vs Barnwell There, Mrs. Feay was killed in an accident and her husband sued for damages under both the Acts.
It was held that, as the husband was the claimant under both the Acts, credit should be given in assessing the damages under the Fatal Accidents Acts, for what was given to him under the Law Reform Act, 1934.
So too, in Ellis vs Raine (2), where the parents of an infant, who had been negligently killed in an accident, claimed damages under both the Acts, Goddard, L. J., reaffirmed the view that where the parties who would benefit from the damages awarded under the Fatal Accidents Acts were the same as those who would benefit from the damages awarded under the Law Reform Act, the damages under the Fatal Accidents Acts must be reduced by the amount given as loss under the Law Reform Act.
Finally the same view has been reaffirmed and restated with clarity in Davis vs Powell Duffryn Associated Collieries Ltd. (3).
There Lord Macmillan described the nature of the two heads thus at p. 610: "The rights of action in the two cases are quite distinct and independent.
Under the Law Reform Act the right of action is for the benefit of the deceased 's estate; under the Fatal Accidents Acts (1) (2) (3) 944 the right of action is for the benefit of the deceased 's dependents.
But, inasmuch as the basis of both causes of action may be the same, namely, negligence of a third party which has caused the deceased 's death, it was natural to provide that the rights of action should be without prejudice the one to the other.
It is quite a different thing to read the provision as meaning that in assessing damages payable to dependents under the Fatal Accidents Acts no account is to be taken of any benefit which the dependents may indirectly obtain from an award under the Law Reform Act through participation in the deceased 's estate. . . it is appro priate that any benefit taken indirectly by a dependent by way of participation in an award under the Law Reform Act should be taken into account in estimating the damages awarded to that dependent under the Fatal Accidents Acts." Lord Wright addressed himself to the same question and answered it at p. 614 thus: "The injury suffered by the individual from the death cannot be computed without reference to the benefit also accruing from the death to the same individual from whatever source.
" The principle in its application to the Indian Act has been clearly and succinctly stated by a division bench of the Lahore High Court in Secretary of State vs Gokal Chand (1).
In that case, Sir Shadi Lal, C. J., observed at p. 453 thus: "The law contemplates two sorts of damages: the one is the pecuniary loss to the estate of the deceased resulting from the accident; the other is the pecuniary loss sustained by th e members of his family through his death.
The action for the latter is brought by the legal representatives, not for the estate, but as trustees for the relatives beneficially entitled; while the damages for the loss caus ed to the estate are claimed on behalf of the estate and when recovered form part of the assets of the estate.
" An illustration may clarify the position.
X is the (1) Lahore 451. 945 income of the estate of the deceased, Y is the yearly expenditure incurred by him on his dependents (we will ignore the other expenditure incurred by him).
X Y, i.e., Z, is the amount he saves every year.
The capitalised value of the income spent on the dependents, subject to relevant deductions, is the pecuniary loss sustained by the members of his family through his death.
The capitalised value of his income, subject to relevant deductions, would be the loss caused to the estate by his death.
If the claimants under both the heads are the same, and if they get compen sation for the entire loss caused to the estate, they cannot claim again under the head of personal loss the capitalised income that might have been spent on them if the deceased were alive.
Conversely, if they got compensation under section 1, representing the amount that the deceased would have spent on them, if alive, to that extent there should be deduction in their claim under section 2 of the Act in respect of compensation for the loss caused to the estate.
To put it differently, if under section 1 they got capitalised value of Y, under section 2 they could get only the capitalised value of Z, for the capitalised value of Y+Z, i.e., X, would be the capitalised value of his entire income.
The law on this branch of the subject may be briefly stated thus: The rights of action under sections 1 and 2 of the Act are quite distinct and independent.
If a person taking benefit under both the sections is the same, he cannot be permitted to recover twice over for the same loss.
In awarding damages under both the heads, there shall not be duplication of the same claim, that is, if any part of the compensation representing the loss to the estate goes into the calculation of the personal loss under section 1 of the Act, that portion shall be excluded in giving compensation under section 2 and vice versa.
In the instant case, under section 1 of the Act both the.
courts gave compensation to plaintiffs 2 to 7 in a sum of Rs. 25,200.
This sum was arrived at by taking into consideration, inter alia, the reasonable provision the deceased, if alive, would have made for them.
119 946 Under section 2 both the courts awarded damages for the loss to the estate in a sum of Rs. 5,000.
That figure represents the damages for the mental agony, suffering and loss of expectation of life.
There was no duplication in awarding, damages under both the heads.
No material has been placed before us to enable us to take a different view in regard to the amount of compensation under section 2 of the Act.
The judgment of the High Court is correct and the appeal fails and is dismissed with costs.
Appeal dismissed.

Output:
A bus run by the appellant met with an accident as a result of which R died.
R 's dependents and heirs e.g. the father, widow and sons, brought a suit for compensation under section 1 of the , for loss of pecuniary benefit sustained by them personally and under section 2 thereof for the loss sustained by the estate on account of the death of R. The, High Court found that the bus was driven at an excessive speed and there was negligence on the part of the driver and that the appellants were liable for the same.
On the question of damages, it confirmed the amount of compensation of RS.
25,000 under section 1 of the Act for the loss of pecuniary advantage and of Rs. 6,000 under section 2 of the Act for loss of expectation of life.
The questions for consideration were (1) whether the accident was due 117 930 to any negligence on the part of the driver; (2) whether the courts below were right in awarding compensation under section 1 of the Act for pecuniary loss sustained by the widow and the sons of the deceased; and (3) whether the sum awarded as damages under section 2 of the Act for loss of expectation of life should go towards the reduction of the compensation awarded for pecuniary loss sustained under section 1 of the Act, as otherwise it would be duplication of damages in respect of the same wrong.
Held, that where on the basis of the evidence and on broad probabilities it is found that the speed at which the bus was driven was excessive having regard to the nature of the ground on which the accident happened, there is a presumption that the accident was caused by the negligence of the driver.
As the driver was acting in the course of his employment, the master would be liable for such accident, unless the presumption is rebutted by the master.
In the present case, on account of the negligence of the driver in the course of his employment the accident happened, and, therefore, the appellant was liable for the same.
Barkway vs South Wales Transport Co. Ltd., [1948] 2 All E.R. 460, Joel vs Morison, (1834) 6 Car.
& P. 501 and Storey vs Ashton, , applied.
That the actual extent of the pecuniary loss to the aggriev ed party may depend upon data which cannot be ascertained accurately, but must necessarily be an estimate, or even partly a conjecture.
Shortly stated, the general principle is that the pecuniary loss can be ascertained only by balancing on the one hand the loss to the claimants of the future pecuniary benefit and on the other any pecuniary advantage which from whatever sources come to them by reason of the death, that is, the balance of loss and gain to a dependant by the death must be ascertained.
Davies vs Powell Duffryn Associated Collieries Ltd., and Nance vs British Columbia Electric Railway Company Ltd., , followed.
Where the courts below have on relevant material placed before them ascertained the amount of damages under the head of pecuniary loss by the dependants of the deceased, such findings cannot be disturbed in second appeal except for compelling reason.
Held, further, that the rights of action under sections 1 and 2 of the are quite distinct and independent.
If a person taking benefit under both the sections was the same, he cannot be permitted to recover twice over for the same loss.
In awarding damages under both the heads, there shall not be duplication of the same claim, that is, if any part of the compensation representing the loss to the estate goes into the calculation of the personal loss under section 1 of the Act, that portion shall be excluded in giving compensation under section 2 and vice versa.
931 in the instant case, under section 1 of the Act the sum of com pensation was arrived at by taking into consideration, inter alia, the reasonable provision the deceased, if alive, would have made for his widow and sons.
Under section 2 the figure for damages awarded for the loss to the estate represents the damages for the mental agony, suffering and loss of expectation of life; thus there was no duplication in awarding damages under both the heads.
Rose vs Ford, , Feay vs Barnwell, , Ellis vs Raine, and Secretary of State V. Gokal Chand, Lah. 451, referred to.


Input:
minal Appeal No. 698/85 with 59/86.
From the Judgment and Order dated 30.4.1985 of the Punjab and Haryana High Court in Crl.
A. No. 345 DB of 1984.
R.L. Kohli and Prem Malhotra for the Appellants in Crl.
A. No. 698/85.
O. P. Sharma R.C. Gunbrele, K.R. Gupta, Mrs. Nanita Sharma, Vivek Sharma and.
Kamaljeet Singh for the Appellant in Crl.
A. No. 59/86.
K.C. Bajaj and Ms. Indu Malhotra (NP) for the Respondent.
J One appeal is on behalf of Hari Singh and the other is on behalf of Satbir and Gulbir.
They were put on trial along with 67 Suresh, Vijender and Virender for having committed the murder of Mange Ram on 7th October, 1982.
Virender being a minor his trial was separated so that the said may be conducted by Children Court.
The remaining five accused were convicted for offences under section 302 read with 149, Section 148 and Section 323 read with 149.
Sentence of imprisonment for life was imposed against all the five accused persons under Section 302 read with 149.
Whereas under Section 148 each one of them was sentenced to undergo rigorous imprisonment for one year, and rigorous imprisonment for three months under Section 323 read with 149.
The Sentences were directed to run concurrently.
The High Court dismissed their appeal.
Special Leave Petition (Criminal) No.2160 of 1985 was filed on behalf of accused Hari Singh, Suresh and Vijender.
On 23rd September, 1985 this Court granted special leave to appeal to appellant Hari Singh, but dismissed the said Special Leave Petition so far Suresh and Vijender were concerned.
Leave was granted to appellants Satbir and Gulbir on a separate Special Leave Petition filed on their behalf.
The case of the prosecution is that in the night intervening 6th and 7th October, 1982 Mange Ram (hereinafter referred to as "the deceased") and Ram Kishan PWI6, who is the first cousin of the deceased, were returning after witnessing the Ram Leela.
At that very time Suresh, Satbir, Vijender, Virinder and Gulbir were also returning after the show.
Near the baithak of Jit Ram, the accused persons teased some girls of the village who had also gone to see the Ram Leela.
The deceased and PW 16 objected to the behaviour of the accused persons towards the girls of their own village.
On this it is said that the accused persons abused them which was followed by exchange of abuses from both the sides.
Budhi PW 13 intervened and pacified them, Next day at about 2.30 PM.
the deceased and PW 16 went to their flour mill to bring back their bullocks and fodder cart.
Suresh and Satbir with Pharsas, Hari Singh with a Ballam, Virinder, Vijender and Gulbir with sticks came there.
Suresh abused the deceased and PW16 saying that they would teach them a lesson for abusing them i.e. accused persons on the previous night.
Having said so accused Suresh gave a Pharsa blow from the blunt side.
on the head of the deceased.
Satbir also gave a Pharsa blow from the blunt side, on the head of the deceased.
PW 1 6 raised an alarm Virinder, Vijender and Gulbir gave stick blows to the 68 deceased.
It is further the case of the prosecution that when PW16 tried to intervene Hari, Singh gave a Ballam blow from the blunt side on his head and Vijender gave a stick blow on the left elbow of PW16.
Thereafter an alarm was raised and accused persons fled away from the place of occurrence.
The victim was taken to B.K. Hospital, Faridabad on a tractor.
From there he was referred to A.I.I.M.S., New Delhi, by Dr. O.P. Sethi PW 1.PW 1 also sent information to the Police Post No. 5, Faridabad, at about 4.15 P.M. the victim reached the A.I.I.M.S. At about 7.25 P.M. where he was examined.
Raghbir Singh, A.S.I., PWI7 who had got the information about the occurrence at the Police Station Chhainsa at 5.35 P.M. the same evening from the Police Station, New 'Township, Faridabad, went to the Institute aforesaid and recorded the statement of PWI6 at 8.30 P.M. which was forwarded to the Police Station, Chhainsa, where a case was registered at 11.30 P.M. the same night PW 1 7 took up the investigation and visited the place of occurrence and collected blood stained earth.
The victim died in the Institute the next morning at 7.00 A.M.
The postmortem examination was held by PW 1 5 on 8th October, 1982 at 4.30 P.M.
He found three stitched wounds, one on the right varietal region, second on the middle of the scalp and the third on the left varietal region.
One out of three wounds, was an operational (surgical) wound.
From internal examination, fracture of right occipital bone and right frontal base was found.
He also found contusions on the right thigh, left eye and left fore arm of the victim.
According to the opinion of PWI 5 the injuries found on the deceased had been caused "by application of blunt force" and were sufficient in ordinary course of nature to cause death.
The Pharsas from which according to the prosecution case the aforesaid injuries had been caused, were shown to PW 1 5, the doctor, and he stated as follows: "I have seen the alleged weapon of offence, Pharsa EX.P. 1 and the ante mortem injuries which are noted on the head cannot be inflicted by this weapon.
On the opposite side of Pharsa, there are two projecting devices for holding the Pharsa with Bamboo, having a distance of 15 cm.
from each other.
Even if Pharsa EX.P. 1 is used from any of its two sides (Between iron blade and the two iron projections referred above) 69 even then head injuries mentioned above are not likely to cause.
At this stage another sealed parcel containing a Pharsa EX.P.2 opened at the instance of defence counsel.
It was found containing a Pharsa exhibit P.2 1 have been this Pharsa also.
The distances between two projections holding iron blade with bamboos is about 11.5 cm.
and as such the injuries in question could not be caused by this weapon also, either used iron blunt side or iron any of the two sides, as stated by me with reference to EX.
P. 1 It is correct that the injury No. 2. is a operational (Surgical) wound which correspond with internal examination of head and corresponding piece of bone was absent having a size of 12 cm.
X 10 cm.
" On the person of PWI6 only few superficial injuries were found.
On 12th October, 1982 the aforesaid Dr. O.P. Sethi PWI of B.K. Hospital, Faridabad, examined accused Suresh under the orders of Shri Raj Kumar, HCS, Judicial Magistrate, Faridabad, and found the following injuries on the persons of Suresh: "1.
A diffused and tender swelling over back of left hand all over the wrist joint and lower half of left fore arm.
There were bluish mark of two bruises (abraised, each 1/2" x 1/2" over back fore arm).
Xray were advised for left wrist joint including lower half of the fore arm and the hands.
It was advised for posterior, interior and lateral views.
A partially healed injury 1 " x 1/8" placed at the top of head 5" above the pinna of right ear.
X ray advised for skull in superior view.
A partially healed injury 3/4" x 1/8" at the left half of head 2" behind the interior hair line.
X ray was also advised.
A liniar injury having 3/4" x 1/8" at right half of head, 1 1/2" behind interior hair line.
X ray skull was advised.
A vertical injury mark 2" x 1/2 at the left shin 5" 1/2 above left ankle joint.
" The duration of the time in respect of the injuries aforesaid was three to six days.
PWI stated in the Court that accused Suresh had been medically examined at the request of the Police and a copy of the medical report was also handed over to the Police.
It was urged on behalf of the appellants that on the materials on record the Courts below should have come to the conclusion that prosecution has suppressed the real manner, of occurrence and has disclosed a version of the occurrence which cannot be accepted.
It was pointed out that accused Suresh, Vijender and Virinder are the sons of accused Hari Singh who was aged about 60 years, as such, it was highly improbable on the part of Hari Singh to join his sons for commiting the murder of Mange Ram who had protested the behaviour of the sons of Hari Singh, the previous night with the girls of the village.
From the evidence of Rang Lal PW7 it appears that the flour mill of the deceased and the fields of the accused persons are across the same road.
The tube well of accused Hari Singh is situated adjoining the mill where Hari Singh has also got tile residential unit.
It was urged that in view of the admitted position that the residential unit, tube well are by the side of the flour mill of the deceased there was no question of the accused persons going to the flour mill of the deceased to assault the deceased and PWI6.
The accused persons and the deceased both having their flour mill and residential unit side by side, most probably clashed as a result of a sudden fight in which injuries were caused to the victim as well as to PW16 on the side of the prosecution and on Suresh on the accused side.
It may be mentioned that in the First Information Report, only the name of Suresh, one of the six accused was mentioned in connection with the previous night 's incident saying that he along with four or five boys were coming after seeing the Ram Leela and then they started teasing the girls and thereafter an exchange of abuses took place.
In the First Information Report it was also stated by PWI6 that accused Suresh and Satbir gave Pharsa blows on the 71 head of the deceased.
In the First Information Report PWI6, the informant, did not state that the injuries on the head on the head of the victim were caused by the back side of the Pharsa.
On behalf of the appellants, it was pointed out that this change was introduced after it was found during the postmortem examination that injuries had been caused by application of blunt force ' which was inconsistent with the case of assault on the head of the deceased by Pharsa.
But merely on the ground that PWI6, the informant.
did not mention the name of any other accused in connection with the previous _night incident except Suresh or in the First Information Report having said that Suresh and Satbir gave Pharsas blows on the head of the deceased.
Modified the same in court by saying that they gave one Pharsa blow each by the back side of the Pharsa, his evidence cannot be rejected outright.
But at the same time the case of the prosecution that Hari Singh along with Five accused including a child.
went to the flour mill of the deceased, with an intention to cause the death of the victim, because of the previous night abuses and altercations, also does not appear to be the real version of the occurrence.
If the intention of the accused persons was to commit the murder, then they would not have given blows by the back side of the Pharsa on the head of the deceased.
In all probabilities because of the previous night 's incident, at about 2.30 P.M. a sudden fight took place, in which accused Suresh and Satbir are alleged to have given blows from the back side of the Pharsa on the head of the deceased.
PW 15, the doctor, who held the postmortem examination, has stated that those injuries had been caused "by application of blunt force" and has emphatically repudiated that injuries on the head of the deceased could have been caused by two Pharsas Ex, P. 1 and P2 which had been seized and shown to him during the course of his examination.
The injuries from the back side of the Pharsa can be said to have been caused by "blunt force".
It has been rightly submitted that on basis of the evidence adduced including the evidence of PW 16, the informant, it cannot be said be said that accused persons had an intention to cause such injuries on the victim which may result in his death.
When they caused those injuries by the blunt side of the Pharsa it will be presumed that they had knowledge that those injuries can cause the death, but there was no intention on their part to cause death.
As such the Trial Court and the 72 High Court should not have convicted the appellants under Section 302 read with Section 149.
On behalf of the State an objection was taken that in view of the dismissal of the Special Leave Petition filed on behalf of two accused Suresh and vijender against whom similar allegations had been made, it is not open to this Court now to entertain any plea on behalf of the three appellants because it will be deemed that while dismissing the Special Leave Petition filed on behalf of Suresh and Vijender this Court has affirmed the findings recorded by the Trial court and the High Court in respect of manner of occurrence and participation of the accused persons including the three appellants.
It was also pointed out that if any of the appellant is acquitted or the convictions and sentences imposed against them are altered in any manner it will lead to inconsistency in the different orders passed by this Court.
It is true that system of the justice which is being administered by the Courts, one of the basic principles which has to be kept in view, is that Courts of co ordinate jurisdiction, should have consistent opinions in respect of an identical set of facts or on question of law.
If Courts express different opinions on the identical sets of facts or question of law while exercising the same jurisdiction, then instead of achieving harmony in the judicial system, it will lead to judicial anarchy.
But before any such principle is appliedit must be held that the earlier order passed by this Court dismissing the Special Leave Petition of the coaccused amounts to a judgment or an affirmness of the findings of the High court, about the manner of the occurrence, participation of the different accused persons and the nature of offence committed by them.
Article 136 (1) of the Constitution confers overriding and extensive powers of granting special leave to appeal or rejection thereof in the discretion of this Court.
Article 136 does not confer a right to appeal, it confers only a right to apply for special leave toappeal, which taking all facts and circumstances into consideration may be granted or rejected.
Even in a case where special leave application is rejected, the Order of the High Court does not merge in the Order of this Court, as is the case while exercising the appellate power.
Similarly when Special Leave Petition is entertained against any final or interlocutory 73 order this court does not convert itself in a court of appeals.
It was said in the case of Gain chand V. Kunjbeharilal; , Chandrachud, J (as he was then): "With regard to the first submission it may he pointed out that an application for special leave under Article 136 of the Constitution against a judgement or an order cannot be equated with the ordinary remedy of appeal, as of right, under any provisions of law.
It is an extraordinary right conferred under the constitution, within the discretion of this Court, and such an application for special heave does not come within the contemplation of appeal pending before the Court under Section 13 A (a).
" It is a basic principle of the administration of justice that like cases should be decided alike.
It is a very sound rule and practice otherwise on same question of law or same set of facts different persons approaching a Court can get different orders.
But can the appeal of an accused.
who has been granted special leave to appeal, be dismissed on the ground that the Special Leave Petition filed on behalf of a coaccused with more or less similar charges has already been rejected by this court.
althouhgh this Court is satisfied that either such accused whose appeal is being heard is entitled to acquittal or ought to have been convicted for a different offence with a different sentence.
The doctrine of precedent is not applicable to an order passed by this Court rejecting a Special Leave Petition.
Any such order cannot be held to be stare decisis so that it is a binding on us.
If it is held that as the Special Leave Petition filed on behalf of Suresh and Vijender having been rejected, this Court cannot alter the conviction or sentence passed against the three appellants.
including the acquittal of any one of them.
althogh the Court is satisfied on the materials on record, then what was the purpose, while rejecting the Special Leave Petition of the co accused Suresh and Vijender, to grant leave to appeal so far the present three appellants are concerned? At the same time it need not be impressed that rejection of the Special Leave Petition gives a finality to an order of the High Court, inasmuch as the same accused cannot file more then one Special Leave Petition.
74 But in rare and exceptional cases this Court has exercised power under Article 32 of the Constitution so that there should not he miscarriage of justice and to avoid a direct conflict and confrontation between two orders of this Court.
In the case of Harbans Singh vs State of U. P., ; , two accused persons had been sentenced to death by a common judgment.
Special Leave Petition filed on behalf of one of the accused persons was dismissed.
So far the other accused, who had also been sentenced to death.
is concerned his Special Leave Petition was entertained on question of sentence.
Ultimately his death sentence was commuted to imprisonment for life.
The other accused person whose Special Leave petition had been dismissed filed it petition under Article 32.
His death sentence was also commuted by the Supreme Court.
In that connection it was said: "Since Kashmira Singh 's death sentence was commuted by this Court.
it would be unjust to confirm the death sentence imposed upon the petitioner.
That will involve the Court as well as the authorities concerned in the violation of rudimentary norms governing the administration of justice. " In the well known case of A.R. Antulay vs R.S. Nayak.
AIR 1988 SC 153 1.
it was pointed Out that the Supreme Court is not Powerless to correct its error affairs Court is satisfied that if such power is not exercised it will lead to manifest injustice because no man can suffer for the mistake of the Court.
Again in the case of Pyare Singh vs State of Madhya Pradesh [1992] Supp.
3 SCC 45, this Court in exercise of power under Article 136 of the constitution while altering the convictions and reducing the sentences of the four out of six accused persons who had filed Special leave petitions before this Court.
extended the same benefit and relief to other two accused persons who had not even filed any Special Leave petition against their convictions and sentences because this court felt that if the same benefit of alteration of conviction and modification in sentence is not given to other two convicted accused persons.
it will lead to gross injustice.
75 The mere rejection of the Special Leave Petition of co accused persons cannot seal the fate of the appeals of the appellants which have been entertained after leave having been granted by this Court.
The appellants to whom leave has been granted can urge all questions within the frame work of Article 136 of the Constitution for consideration by this Court and a relief to which such appellants may be entitled cannot be denied to them merely on the ground that Special Leave Petition in respect of co accused persons with more or less similar charges, evidence and convictions has already been rejected.
On materials on record, the prosecution has not been able to prove and establish (hit appellants had the common object or shared the common intention to cause the murder of the victim.
From the evidence of the prosecution itself it appears that the flour mill of the deceased and the residential unit of the accused persons being adjacent to each other, suddenly a fight took place in which the appellant Satbir gave a blow by the back side (wooden part) of the Pharsa, which caused one of the two injuries on the head of the deceased.
It cannot be held that appellant Satbir had an intention to cause the death of the victim.
In the circumstances of 'the case.
It can he said that he had only knowledge that such blow may cause an injury resulting in the death of the victim.
Accordingly he should have been convicted under Section 304, Part 11, of the Penal Code.
So far appellant Gulbir is concerned, according to the prosecution case, he was carrying a stick and he is alleged to have given a stick blow to the deceased on a non vital part of ' the body.
In this background, according, to us, he can he held to have committed the offence on under Section 325 of the Penal code.
As already pointed out according to the prosecution case itself, the appellant Hari Singh, who was aged about 60 years at the time of the occurrence is said to have given a stick (lathi) blow to the informant PW 16.
tie is not alleged to have given any blow to the deceased.
Once it is held that different accused persons neither had any common object nor any common intention which they shared together to commit an offence under Section 302 or alike, the appellant Hari Singh has to he held guilty for an offence only under Section 323 of the Penal Code.
In the result the conviction of the appellants under Section 302 read with Section 149 of the Penal Code is set aside.
The conviction under Sections 148 and 323 read with 149 is also set aside.
The appellant Satbir is convicted for an offence under 76 Section 304 Part 11 and is sentenced to undergo rigorous imprisonment for seven years.
The appellant Gulbir is convicted for an offence under Section 325 of the Penal Code and is sentenced to undergo rigorous imprisonment for three years.
So far the appellant Hari Singh is Concerned, he is convicted for an offence under Section 323 of the Penal Code and is sentence to the period of imprisonment already under gone.
Accordingly the appeals are allowed in part to the extent indicated above.
N. V. K. Appeal allowed.

Output:
The three appellants In the two appeals along with 3 others, were tried for having committed murder.
One of the accused being a minor, his trial was separated so that the same could he conducted by the Children Court.
The case of the prosecution was that on the night intervening 6th and 7th October, 1982 the deceased and PW16.
who was the first cousin of the deceased, were returning after witnessing Ram Leela.
At that time the aforesaid 5 accused were also.
returning from the show and it was alleged that they teased some girls of the village who had also gone to see the Ram LeeLa, and that the deceased and PWI6 ' objected to this behaviour of the accused persons.
On this the accused persons abused them which was followed by exchange of abuses from both the sides.
PW13 intervened and pacified them.
Next day at about 2.30p.m.the deceased and Pw16 went to their flour mill to bring back 62 their bullocks and fodder cart.
Tub of the accused with Pharsas, one with a Ballam, and three others with sticks came there.
One of the accused abused the deceased and Pw16 saying that they would teach them a lesson for abusing them the previous night.
Having said so one of the accused gave a pharsa blow from the blunt side on the head of the deceased.
The other gave a pharsa blow on the head of the deceased.
PW16raIsed an alarm and the remaining accused gave blow to PWI6.
PW16 also got a blow of Ballam from the blunt side on his head.
Thereafter an alarm was raised and all the accused persons fled away from the place of occurrence.
The victim was taken to the local Hospital on a tractor and thereafter he was referred to A.I.I.M.S., New Delhi, where PWI examined him and also sent information to the police post at about 4.15 p.m.
The victim reached the A.I.I.M.S. at about 7.25 p.m. where he was examined.
A.S.I., PW17 who had got the information about the occurrence went to the Institute and the statement was recorded.
PW17 took up the investigation.
The victim died in the Institute the next morning at 7.00 a.m.
The postmortem examination was held by PW15 on 8th October, 1982 at 4.30 p.m. on 12th October, 1982 PWI examined one of the accused Suresh under the orders of judicial Magistrate and he made a report regarding the injuries he had received the duration of the time in respect of the injuries which he stated was 3 to 6 days.
The five accused were put up for trial, and the Session Judge convicted and sentenced all these accused for offences under Section 302 read with 149, Sections 148 and 323 read with Section 149 to imprisonment for life.
The High court having dismissed their appeals, the three appellants filed two appeals to this Court.
In the appeals to this court it was contended on behalf of the appellants that on the materials on record the Courts below should have come to the conclusion that the prosecution had suppressed the real manner of occurrence and had disclosed a version of the occurrence which cannot be accepted.
It was pointed out that the accused Suresh, Vijender and Virender were the sons of accused Hari Sing who was age d about 60 years, and that it was highly improbable on the part of , Hari Singh to join his sons for committing the murder of the deceased 63 Mange Ram who had protested about the behaviour of his sons.
It was submitted that in view of the admitted position that the residential unit, and the tube well being by the side of the flour mill of the deceased there was no question of the accused persons going to the flour mill of the deceased to assault the deceased and PWI6.
It was further submitted that in the First Information Report the name of accused Suresh was mentioned in connection with the previous night 's incident and that he and Satbir gave pharsa blows on the head of the deceased, that PW 16 modified his version of the FIR in court by saying that the injuries on the head of the victim were caused by the back side of the pharsa and that this improvement was introduced after it was found during the postmortem examination that injuries had been caused by application of blunt force which was inconsistent with the case of assault on the head of the deceased by pharsa.
The State raised an objection that in view of the dismissal of the Special Leave Petition of the two accused namely Suresh and Vijender against whom similar allegations had been made, it was not open to this Court to entertain any plea on behalf of the present 3 appellants because it will be deemed that while dismissing the special leave petition this Court had affirmed the findings recorded by the Trial court and the High Court in respect of the manner of occurrence and participation of the accused persons including the 3 appellants.
Allowing the appeals in part, and setting aside the convictions of the appellants under Section 302 read with Section 149 of the Penal Code; under Sections 148 and 323 read with Section 149; this court, HELD: 1.
Appellant Satbir convicted under section 304 Part II and sentenced to undergo rigorous imprisonment for seven years.
Appellant Gulbir convicted for an offence under Section 325 Penal code and sentenced to undergo rigorous imprisonment for three years.
Appellant Hari Singh convicted for an offence under Section 323 of the penal code and sentenced to the period of imprisonment already undergone.
(75 H, 76 A B) 2 (a).
In the system of the justice which is being administered by the Courts.
One of the basic principles which has to be kept in view, is that Courts of coordinate jurisdiction, should have consistent 64 opinions in respect of an identical set of facts or on question of law.
If Courts express different opinions on the identical sets of facts or question of law while exercising the same jurisdiction, then instead of achieving harmony in the judicial system, it will lead to judicial anarchy.
(72 D E) (b) Before any such principle is applied It must be held that the earlier order passed by this Court dismissing the Special Leave Petition of the co accused amounts to a judgement or an affirmance of the findings of the High Court, about the manner of the occurrence, participation of the different accused persons and the nature of offence committed by them.
(72 F) 3.
Article 136 (1) of the constitution confers overriding and extensive powers of granting special leave to appeal or rejection thereof in the discretion of this Court.
Article 136 does not confer a right to appeal, it confers only a right to apply for special leave to appeal, which taking all facts and circumstances into consideration may he granted or rejected.
Even in a case where the special leave application is rejected, the order of the High Court does not merge In the Order of this Court, as is the case while exercising the appellate power.
Similarly, when Special Leave Petition is entertained against any final or interlocutory order this Court does not convert itself to a Court of appeal.
(72 D H) Gian Chand vs Kunjbehanlal ; , referred to.
(76 E) 4.
It is a basic principle of the administration of justice that like cases should be decided alike.
It is a very sound rule and practice otherwise on same question of law or same set of facts different persons approaching a Court can get different orders.
(73 D) 5.
The doctrine of precedent is not applicable to an order passed by this Court rejecting a Special Leave Petition.
Any such order cannot be held to be stare decisis so that it is a binding on the Court.
(73 F) 6.
Rejection of the Special Leave Petition gives a finality to an 65 order of the High Court, Inasmuch as the same accused cannot file more than one Special Leave Petition.
But In rare and exceptional cases this Court has exercised power under Article 32 of the Constitution so that there should not he miscarriage of justice and to avoid a direct conflict and confrontation between two orders of this court.
(73 H, 74 A) Harbans Singh vs State of U. P., ; ; Pyare Singh vs State of Madhya Pradesh, [1992] SUPP 3 SCC 45 and (77 F) A.R. Antulay vs RS.
Nayak.
; , referred to.
(78 C) 7.
The mare rejection of the Special Leave Petition of co accused persons cannot seal the fate of the appeals of the appellants which have been entertained after leave having been granted by this Court.
The appellants to whom leave has been granted can urge all questions within the framework of Article 136 of the Constitution for consideration.
by this Court and a relief to which such appellants may be entitled cannot be denied to them merely on the ground that a Special Leave Petition In respect of co accused persons with more or less similar charges, evidence and convictions has already been rejected.
(75 F G) 8.
On the basis of the evidence of PW16, the informant, it cannot he said that the accused persons had an Intention to cause such injuries son the victim which may result In his death.
When they caused the injuries from the blunt side of the Pharsa it will have to be presumed that they had knowledge that those Injuries can cause the death, but there was no intention on their part to cause death.
As such the Trial Court and the High Court should not have convicted the appellants under Section 302 read with Section 149.
(71 G H) 9.
(a) On the materials on record in the Instant case, the prosecution has not been able to prove and establish that the appellants had the common object or shared the common intention to cause the murder of the victim.
From the evidence of the prosecution Itself It appears that the flour mill of the deceased and the residential unit of the accused persons being adjacent to each other, suddenly a right took place in which the appellant Satbir gave a blow by the back side (wooden part) of the Pharsa, which caused one of the two injuries on 66 the head of the deceased.
It cannot be held that appellant Satbir had an intention to cause the death of the victim.
In such circumstances it can be said that he had only knowledge that such blow may cause an injury resulting in the death of the victim.
He should have, therefore, been convicted under Section 304, Part II, of the Penal Code.
(75 C E) (b) So far as appellant Gulbir is concerned, according to the prosecution case, he was carrying a stick and he is alleged to have given a stick blow to the deceased on a non vital part of the body.
In this background, he can be held to have committed the offence only under Section 325 of the Penal Code.
(75 F) (c) In regard to the appellant Hari Singh, he was aged about 60 years at the time of the occurrence and the prosecution case itself, is that he is said to have given a stick (lathi) blow to the informant PW 16.
He is not alleged to have given any blow to the deceased.
He has, therefore,to be held guilty for an offence only under Section 323 of the Penal Code.
(75 G)