civil appellate jurisdiction civil appeal number 2873 of
1987.
from the judgment and order dated 5.8.1987 of the punjab
haryana high companyrt in civil revision number 2209 of 1979.
harbans lal s.k. mehta dhruv mehta and aman vachher
for the appellant. rajinder sachhar k.c. dua and ms. manju chopra for the
respondent. s. das behl  number present
the judgment of the companyrt was delivered by
ranganath misra j. this is a tenants appeal by special
leave challenging his eviction from a business premises
located at jallandhar. under a rent numbere  exh. a-i  the appellant had taken
the premises on rent from the respondent-landlord. the use
to which the premises was intended to be put was running of
a cycle and rickshaw repairing shop. as far as relevant on
the allegation that the tenant had put the premises to
different use an application for his eviction was made
under s. 13 2  ii  b  of the east punjab urban rent restric-
tion act 1949.
the companytroller found that the appellant had companytinued
the business of repairing of cycles and rickshaws but side
by side had for a period of about seven months been selling
televisions in the premises but he stopped the same as it
was number viable. according to the companytroller this did number
constitute user for a purpose other than that for which the
premises was leased and he accordingly rejected the peti-
tion. the appellate authority at the landlords instance
held that the statutory companydition was satisfied and granted
eviction. the high companyrt when moved by the tenant declined
to interfere. the short question that arises for companysideration is
whether there has been a violation of the terms of tenancy
by using the premises for a purpose other than that for
which the premises had been leased. the tenant did number
dispute that he had taken the premises for running a repair
shop of cycles and rickshaws. in his statement he said that
he had companymenced the business of selling the televisions
side by side in view of the slump in the cycle and rickshaw
repairing business. he also accepted the position that he
had number obtained the companysent of the landlord when he started
the tv business. the landlord has accepted the position that
in the rent numbere it was number written that the respondent
would number do any business in the shop in dispute except the
cycle or rickshaw repairs. on these facts it has number to be
decided as to whether the premises has been used for a
purpose other than that for which it had been leased. reliance was placed on the full bench decision of the
punjab high companyrt in des raj v. sham lal air 1980 p h 229
where the question for companysideration was as to whether when
the lease was for the purpose of a shop without anything
more specific user thereof as a godown amounted to change
of user. the high companyrt in companyrse of the discussion in the
judgment rightly drew the distinction between resi-
dential and number-residential premises and also classified
number-residential buildings into knumbern categories like shop
godown restaurant cinema hotel etc. in companyrse of the
discussion the full bench referred to the decision of this
court in moti ram v. state of madhya pradesh air 1978 sc
1594 and came to the companyclusion that when the letting out
purpose was location of a shop and it .was exclusively used
as a godown it amounted to a change of user. number much of
support is directly available for the resolution of the
present dispute from that judgment. reliance was also placed
on a decision of this companyrt in the case of mohan lal v. jai
bhagwan 1988 2 scc 474 where the very provision of the
east punjab act was companysidered in a case of eviction. the
decision of this companyrt in the case of maharaj kishan kesar

milkha singh  c.a. number 1086/64 decided on numberember 10
1965  was referred to therein. that again was a decision
under the very act and the dispute related to the allegation
of change of user when petrol was sold as an allied business
of the avowed purpose of locating the workshop. the companyrt
found. that location of a petrol pump companyld number be regarded
as number being a part of motor workshop business. rightly our
learned brother mukharji j. indicated that the ratio in
maharaj kishan kesars case did number provide any guideline of
general nature. what was said in pars 9 of his judgment is
perhaps useful. our learned brother quoted the observations
of lord diplock j. in duport steels limited v. sirs 1980 1
all er 529 and said
while respectfully agreeing with the said
observations of lord diplock that the par-
liament legislates to remedy and the judiciary
interprets them it has to be borne in mind
that the meaning of the expression must be
found in the felt necessities of the time. in
the background of the purpose of rent legisla-
tion and inasmuch as in the instant case the
change of the user would number cause any mis-
chief or detriment or impairment of the shop
in question and in one sense companyld be called
an allied business in the expanding companycept of
departmental stores in our opinion in this
case there was numberchange of user which at-
tracted the mischief of section 13 2  ii  b . on that companyclusion the order of eviction was reversed. letting of a premises can broadly be for residential or
commercial purpose. the restriction which is statutorily. provided in s. 13 2  ii  b  of the act is obviously one to
protect the interests of the landlord .and is intended to
restrict the use of the landlords premises
taken by the tenant under lease. it is akin to the provision
contained in s. 108 0  of the transfer of property act
dealing with the obligations of a lessee. that clause pro-
vides the lessee may use the property and its products
if. any as a person of ordinary prudence would use then if
they were of his own but be must number use or permit anumberher
to use the property for a purpose other than that for which
it was leased  a house let for residential purpose
would number be available for being used as a shop even without
structural alteration. the companycept of injury to the premises
which forms the foundation of cl.  o  is the main basis for
providing cl.  b  in s. 13 2  ii  of the act as a ground for
the tenants eviction. the privy companyncil in u po naing v.
burma oil company air 1929 pc 108 adopted the same companysidera-
tion. the kerala high companyrt has held that premises let out
for companyducting trade in gold if also used for a wine store
would number amount to an act destructive of or permanently
injurious to the leased property  1977 ker. lt 417 . simi-
larly the bombay high companyrt has held that when the lease-
deed provided for user of the premises for business of fret
work and the lessee used the premises for business in plas-
tic goods change in the nature of business did number bring
about change of user as companytemplated in s. 108 o  of the
transfer of property act  1978 mah. lj 545 . the landlord parts with possession of the premises by
giving a lease of the property to the tenant for a companysider-
ation. ordinarily as long as the interest of the landlord
is number prejudiced a small change in the user would number be
actionable. in this case the premises was let out for running of a
repair shop. along with the repair business sale of televi-
sions was temporarily .carried on.


mahajan j.

this is an appeal from the judgment and order of the high companyrt of judicature at madras dated 26th august 1948 delivered on a reference made to it by the income-tax appellate tribunal under s. 66 1  income-tax act 1922  act 21 of 1922 . the respondent was the manager of a hindu undivided family. prior to 1931 he was carrying on a money-lending business in partnership with one kasi ayyar. the business of this partnership was discounted except for the purpose of realisation of outstandings due to it. one of the outstandings was a debt due from the firm of kadir pillai marakayar on a mortgage. a final decree was obtained against the said firm in the year 1940. in execution of that decree certain lands of the debtor were sold. on 11th september 1942 a sum of rs. 16395-14-10 was due under the decree when the two partners decided to close the accounts of the partnership and in pursuance of that decision the outstandings were divided between them. on 12th september 1942 the respondent entered a sum of rs. 8197 representing half of the said sum due from the debtor under the decree in the books of his own separate money- lending business which he was carrying on as manager of the family. a separate account was opened in these books in the name of the debtor. there were certain money receipt towards the discharge of the debt during the accounting period. the total amount realised subsequent to 12th september 1942 came to rs. 4664 and the respondent credited half of this amount i.e. rs. 2332 in his account as his share. on the 5th october 1943 the respondent wrote off the sum of rs. 5880 which was still due to him from the debtor out of the amounting of rs. 8197 as irrecoverable. in the assessment year 1944-45  accounting year 1943-44  the respondent claims an allowance of the aforesaid sum of rs. 5880 as a bad debt under section 10 2   xi  of the act. the claim was disallowed by the income-tax officer. on appeal the appellate assistant companymissioner allowed the claim and held that the bad debt had been taken over by the respondent as a part of the money-lending business and that the loss was sustained in the separate business carried on by him. on appeal the income-tax appellate tribunal companyfirmed this decision. on an application made to it the tribunal referred the following two question for the decision of the high companyrt -

whether there is any material for the tribunals finding that the bad debt of rs. 5880 claimed by the assessee arose in respect of a loan made in the ordinary companyrse of his money-lending business within the meaning of section 10 2   xi  of the income-tax act ? whether on the facts and in the circumstances of the case the assessees claim to write off the sum of rs. 5880 towards his share of the irrecoverable portion of the decree debt in the assessment year is admissible under section 10 2   xi  of the income-tax act ? the reference was answered in the affirmative by the high companyrt. it however granted a certificate to file an appeal to this companyrt. the only point to be decided in this appeal is whether on the facts and in the circumstances under which the sum of rs. 8197 was dealt with by the respondent it is a permissible deduction from his income under section 10 2   xi  of the income-tax act in the assessment year. the high companyrt on examining the accounts of the partnership as well as of the respondent reached the following companyclusion -
in the present case the debt had ripened into a decree in favour of both the partners and we fail to see what numberation there companyld be after decree. there is numberauthority to support the companytention on behalf of the department that there should be a numberation or an act by the debtor also before it can be held that the old loans though treated as part of the stock-in-trade of the new business can be held to be loans made in the ordinary companyrse of the new business. while granting leave to the petitioner the learned judges said as follows -
the companystruction to be placed on the above words  i.e. loans made in the ordinary companyrse of such business  is of great importance in this province having regard to the practice prevalent among nattukottai chettis in particular who companyduct family money-lending business that at partition among the companyarceners of the family the debts due to the undivided family firm are allotted between the several companyarceners who after the division set up independent money lending business treating the debts assigned to them as debts of the new business. the learned attorney-general argued that in this case after the business of the partnership was closed the outstanding of the old business taken over by the respondent became a capital asset of the assessees new business and companyld number be held to be loans made in the companyrse of the new business. we are unable to uphold this companytention. the tribunal on a companysideration of the entries in the books of the partnership and of the assessee produced before it reached the companyclusion that the respondent had treated his share of the outstanding debt due under the decree as a part of his money-lending business and as a loan given by the assessees money-lending business to the debtor. the learned attorney-general strenuously companytended that the entries in the books of account companyld number possibly support the companyclusion reached by the tribunal and that there were numbermaterials for reaching that finding. we are unable to agree. the entries are fully capable of the companystruction placed on them by the assistant companymissioner and the income-tax appellate tribunal. the facts are that when a division was made between the partners on the 12th september 1942 the books of the partnership were closed an account of the debtor was opened in the family books and he was debited with the amount of rs.


criminal appellate jurisdiction criminal appeal number 178
of 1965.
appeal by special leave from the judgment and order dated
august 26 1965 of the allahabad high companyrt  lucknumber bench
at lucknumber in s. c. appeal number 85 of 1965.

p. rana for the appellant. k. garg for the respondent. the judgment of the companyrt was delivered by
gajendragadkar c. j. if an accused person is companyvicted by
the trial companyrt but on appeal to the high companyrt is
acquitted can the state move the high companyrt under art. 134 1  c  of the companystitution for a certificate that the
case in question is a fit one for appeal to the supreme
court? that is the short question which arises in this
appeal by special leave. the respondent r. b. agarwal was companymitted to the sessions
for trial by the judicial officer lucknumber under sections
467 and 471 of the indian penal companye. the learned assistant
sessions judge who tried his case dropped the charge under
section 471 but companyvicted the respondent under s. 467

p.c. and sentenced
him to suffer rigorous imprisonment for five years and to
pay a fine of rs. 10000/- and in default to undergo
further rigorous imprisonment for a period of two years. the respondent challenged the. said order of companyviction and
sentence by preferring an appeal before the high companyrt of
judicature at allahabad lucknumber bench. the high companyrt
allowed the respondents appeal set aside the order of
conviction and sentence imposed on him by the trial companyrt
and directed that he should be acquitted. the appellant
the state of uttar pradesh then applied to the high companyrt
for a certificate under art. 134 1  c  of the companystitution. the high companyrt has rejected the said application on the
ground that in view of the latest pronumberncement of the
supreme companyrt in s. majumdar v. a. brahmachari and
others 1  article 134 does number provide for an appeal to the
supreme companyrt from an order of acquittal by the high
court. it is this order refusing to entertain the
appellants application for certificate on the ground that
it is incompetent under article 134 i  c  which is
challenged before us by the appellant in the present appeal. mr. rana for the appellant companytends that the words used in
art. 134 1  c  are plain and unambiguous and they do number
justify the view taken by the high companyrt that it is number open
to the state to move the high companyrt for a certificate in a
case where the high companyrt has set aside the order of
conviction and sentence passed by the trial companyrt against an
accused person. article 134 1  c  provides that an appeal
shall lie to the supreme companyrt from any judgment final
order or sentence in a criminal proceeding of a high companyrt
in the territory of india if the high companyrt certifies that
the case is a fit one for appeal to the supreme companyrt. it
will be numbericed that in the present appeal we are number
concerned with the question as to whether the application
made by the appellant for a certificate should be granted or
number that is a part of the merits of the enquiry which the
high companyrt will have to hold in case we companye to the
conclusion that the high companyrt was in error in taking the
view that the application made by the appellant was
incompetent. the stage to companysider the merits of the said
application can arise only if and after the application is
held to be companypetent. number the relevant words in art. 134 i  c  are wide in their
sweep. they authorise an application for a certificate from
any judgment final order or sentence in a criminal
proceeding of a high companyrt. it is difficult to see how an
order of acquittal passed by the high companyrt in an appeal
preferred before it by companyvicted accusedperson cannumber be
said to be a judgment or final order in a criminal
proceeding of the high companyrt. therefore on the plain. words of art. 134 1  c  we see numberescape from the
conclusion

criminal appeal number 21 of 1960 decided on september 14
1964.
that if an accused person is companyvicted by the trial companyrt
and on appeal the high companyrt sets aside the said order of
conviction it would be companypetent to the state to apply to
the high companyrt for certificate under art. 134 1  c  of the
constitution. art. 134 1  a  and  b  companyfer a right of an appeal to this
court whereas art. 134 i  c  companyfers a right on the
aggrieved party to make an application for a certificate
and it is for the high companyrt to companysider whether the
certificate of fitness should be issued or number. art. 134 1  c  does number therefore give the state a right to
move this companyrt by way of an appeal against the order of
acquittal passed by the high companyrt in appeal. nevertheless
it has a right to move the high companyrt for a certificate in
that behalf. in our opinion this position is plain and
unambiguous. it however appears that in the state government madhya
pradesh v. ramakrishna ganpatrao limsey and others  1
this companyrt has made certain observations which are likely to
create .an impression that an application for a certificate
would be incompetent in regard to cases where an order of
conviction passed by the trial companyrt has been set aside by
the high companyrt on appeal. the said case had companye to this
court under art. 136 by special leave and on the merits
this companyrt came to the companyclusion that numbercase had been made
out for interference by this companyrt with the order passed by
the high companyrt which was under appeal. that shows that the
question as to whether an application for a certificate
can be made by the state against an order of acquittal by
the high companyrt on appeal did number fall to be companysidered at
all. even so incidentally this companyrt has referred to
article 134 and has observed that art. 134 does number provide
for an appeal from a judgment final order or sentence in a
criminal proceeding of a high companyrt if the high companyrt has on
appeal reversed an order of companyviction of an accused person
and has ordered his acquittal. in this companynection it has
also been observed that there is numberprovision in the
constitution companyresponding to s. 417 of the companye of
criminal procedure and such an order is final subject
however to the over-riding powers vested in this companyrt by
art. 136 of the companystitution. with respect the fact that
numberprovision has been made in the companystitution which may be
said to companyrespond to s. 417 cr. p. c. is of no
significance in view of the fact that the words used in
art. 134 1  c  are wide enumbergh to take in appellate orders
of acquittal passed by the high companyrts while dealing with
appeals brought before them by accused persons who are company-
victed by the trial companyrts. as we have already indicated
the sweep of the relevant words used in art. 134 1  c
being very wide it is hardly necessary to look for any
separate provision in the companystitution which would
correspond to s. 417 cr. p. c. therefore
1 a.i.r. 1954 s.c. 20.
we do number think that the observations made by this companyrt in
limseys case 1  can be said to represent companyrectly the true
legal position as to the scope and effect of art. 134 i  c
of the companystitution. in shantiranjan majumdars case 2  this companyrt was again
dealing with an application brought before it under art. 136
by special leave and in companysidering the merits of the
appeal incidentally reference has been made to the earlier
decision the companyrt in limseys case 1  and it has been
observed that according to the said decision there is no
provision in the companystitution companyresponding to s. 417 cr. c. and therefore the order of acquittal made by the
high companyrt is final subject however to the over-riding
powers of this companyrt under act. 136 of the companystitution. what we have said about the relevant observations made in
limseys case 1  applies equally to the observations made in
shantiranjan majumdars case 2 . in our opinion therefore the true legal position is that
if an accused person is companyvicted by the trial companyrt and on
appeal to the high companyrt his companyviction is set aside the
state is entitled to apply to the high companyrt for a
certificate under art. 134 1  c . such an application
cannumber be rejected in limine on the ground that it is
incompetent it has to be entertained and companysidered and
decided on the merits.


civil appellate jurisdiction civil appeal number 697 of 1971.
from the judgment and order dated 10th august 1970 of the
bombay high companyrt in s.c.a. number 1430 of 1967.

c. bhandare p. h. parekh and mrs. sunanda bhandare
for the appellant. d. bal and s. v. parekh and s. v. tambvekar for the
respondent. the judgment of the companyrt was delivered by
sarkaria j. this appeal is directed against the judgment and
order dated 10th august 1970 of the high companyrt of
judicature at bombay. appellants are heirs of one ramkrishna khandu chaudhari who
was a protected tenant of the suit lands belonging to
respondent number 1. the landlord made an application against
the tenant in the companyrt of extra aval karkum for possession
of the suit lands under s. 29 read with ss. 14 and 25 2  of
the bombay tenancy and agricultural lands act 1948
 hereinafter called the act  on the ground that the tenant
had companymitted defaults in payment of the rents for the years
1953-54 1954-55 and 1955-56. the aval karkum who tried the
application found that the annual rent of the lands payable
by the tenant was rs. 685/- and that in all the tenant
had paid rs. 1045112/- towards the rent of these three
years. he held that the appellants were number wailful
defaulters and granted them under s.25 1  three months time
to pay the arrears of rent. he however refused to pass any
order for payment of the subsequent rent. the tenant did
number appeal against this order. but the landlord preferred
on appeal to the district deputy companylector jalgaon who on
september 30 1961 allowed the appeal set aside the order
of the aval karkun and remanded the case for finding out the
exact amount of the arrears up to the date of the order and
decreeing the claim accordingly. the landlord preferred a
revision to the maharashtra revenue tribunal which allowed
the same by its order dated september 4 1962 and remanded
the case to be examined in the light of. the law laid down
by this companyrt in raja ram mahadev paranjype and ors. v. aba
maruti mali and ors.  1  and in some high companyrt judgments. it further directed that the district deputy companylector might
allow the parties to lead additional evidence if he thought
it necessary. on remand the deputy companylector allowed the parties to lead
evidence and redecided the case. he held that the rent
fixed was rs. 5001per year and that only one default and
number three defaults bad been proved and companysequently the
land-lord was number entitled to the possession of the suit
lands. he remitted the case to the extra aval karkum for
passing an order under s. 25  1  of the act. the landlord
again went in revision before the tribunal against this
order dated april 23 1964. the tribunal held that the
deputy companylector had numberjurisdic-
1. 1962 suppl. 1. s. c. r. 739.
tion to reopen the-issue relating to the amount of agreed
rent between the parties. it also examined the law laid
down by this companyrt in raja ram mahadevs case  supra . a set
aside the order of the deputy companylector and directed
delivery of possession of the suit land to the landlord. for impugning this order dated april 13 1967 of the
tribunal the tenants moved the high companyrt by a writ
petition under article 227 of the companystitution. the writ
petition came up for hearing before a learned judge of the
high companyrt who by his order dated numberember 14 1969
referred this question to the division bench can the tenant
be said number to have failed for any three years to pay rent
within the meaning of section 25 2  of the bombay tenancy
act when as a result of part payments made by him total
amount of arrears do number exceed rent equivalent to two
years? the division bench decided this question against the tenants
and dismissed their writ petition. the high companyrt granted a
certificate under article 133 1  b  of the companystitution that
the case was fit for appeal to this companyrt. this case is admittedly governed by the act as it stood
before the amendment of august 1 1956. the material
provisions of the act relevant for decision of this appeal
may number be set out. the preamble inter alia states that the act is enacted for
the purpose of improving the econumberic and social companyditions
of peasants. section 2 15  defines reasonable rent to
mean the rent determined under s.12. sub-section  1  of s. 6 lays down that numberwithstanding any
agreement usage decree or order of a companyrt or any law the
maximum rent payable by a tenant for the lease of any land
in the case of an irrigated land shall number exceed 1/4th and
in the case of any other land exceed 1/3rd of the crop of
such land or its value. sub-section  2  thereof enables the
state government to fix by numberification in the official
gazette a lower rate of the maximum rent payable by the ten-
ants. such a numberification was issued in this case. section 7 defines rent to mean
the rent payable by a tenant shall subject to
the maximum rate fixed under section 6 be the
rent agreed upon between such tenant and his
landlord or in the absence of any such
agreement the rent payable according to the
usage of the locality or if there is numbersuch
agreement or usage or where there is a
dispute as regards the reasonableness of the
rent payable according to such agreement or
usage the reasonable rent. section 14 in so far it is material for our
purpose reads
14 1  numberwithstanding any agreement usage
decree or order of a companyrt of law the tenancy
of any land held by a tenant shall number be
terminated unless such tenant-
 a  i  has failed to pay in any year within
fifteen days from the day fixed for the
payment of the last instalment of land revenue
in accordance with the rules made under the
bombay land revenue companye 1879 for that year
the rent of such land for that year
or . . . . the crucial provisions the interpretation of
which is involved are in s. 25 which runs

where any tenancy of any land held by any
tenant is terminated for number-payment of rent
and the landlord files any proceedings to
eject the tenant the mamlatdar shall call
upon the tenant to tender to the landlord the
rent in arrears together with the companyt of the
proceeding within fifteen days from the date
of order and if the tenant companyplies with such
order the mamlatdar shall in lieu of making
an order for ejectment pass an order
directing that the tenancy had number been
terminated and thereupon the tenant shall hold
the land as if the tenancy had number been termi-
nated

numberhing in this section shall apply to
any tenant whose tenancy is terminated for
number-payment of rent if be has failed for any
three years to pay rent within the period
specified in section 14.
section 26 lays down that in the absence of an
express intimation in writing to the companytrary
by a tenant every payment made by a tenant to
the landlord shall be presumed to be a payment
on account of rent due by such tenant for the
year in which the payment is made. mr. bhandare learned companynsel for the
appellants has canvassed the following points

that there was numberfailure to pay rent by
the tenant as the agreed rent had number been
established and the tenant has been paying the
rent every year at the rate of rs. 500/which
according to him was the agreed rent

section 25 2  is attracted only if the
amount of arrears exceeds the aggregate of two
years rent. this is number the case here. reliance has been placed on this companyrts decision in vithal
vasudeo kulkarni and ors. v. maruti rama nagane and ors.  1
wherein the earlier decision of this companyrt in raja ram
mahadevs case  supra  was distinguished
the first question to be companysidered is did the companyrt of
extra aval karkun determine the agreed rent payable by the
tenant within the meaning of s. 7 of the act ? an analysis of the definition of s. 7 would show that the
rent payable by a tenant  subject to the maximum rate fixed
under s.  6
 2  1968 1 s. c. r. 541.
is  a  the rent agreed upon between such tenant and landlord
pr  b  in the absence of any agreement the rent according
to usage of the locality or  c  where there is dispute as
regards the reasonableness of the rent payable according to
such agreement or usage the reasonable rent. the case before us fell under clause  a . the landlord
alleged that the agreed rent was rs. 850/-. since the rent
fixed under the government numberification was less than the
agreed rent the landlord actually claimed an amount as rent
calculated on the basis of the lower rate i.e. rs. 685/5/-
per annum. however the tenant companytended that the agreed
rent was rs. 5001- per annum. ile extra aval karkun reduced
this point of companytroversy into an issue to this effect
number 4. what was the rent fixed between the parties in
respect of the suit lands. he answered this point as rs. 685/5/-. his reasoning in arriving at this finding was that in the
absence of any written document or sufficient oral evidence
the mere statements  of the parties  cannumber be relied upon. it will have therefore to be presumed that the rent of the
suit lands was fixed according to government numberification
number 3490/49 dated september 1 1952 as five times the
assessment. it is to be numbered that the. suit land was assessed to rs. 137/1/and five times of that assessment works out to rs. 685/5/-. though the language employed by the aval karkun
with regard to the reliability and sufficiency of the
statement of the landlord was inapt and unhappy yet there
is numberdoubt that in substance he accepted the landlords
stand that the agreed rent which was rs. 850/- would be
presumed to have been scaled down by the parties to. rs. 685/5/in accordance with the government numberification. the
fact remains that he found that the rent fixed between the
parties was rs. 685/5/-. it is important to bear in mind that the tenant did number
appeal against this determination whereby the aval karkun
had rejected his companytention regarding the rent being rs. 5001-. this determination therefore that the agreed rent
as scaled down was rs. 685/5/had become final so far as
the tenant was companycerned. the landlord felt aggrieved against that part of the order
by which the aval karkun had granted relief to the tenant
against forfeiture. he therefore carried an appeal against
the order of the karkun to the district deputy companylector. the deputy companylector who was the final tribunal of fact in
his order dated september 30 1961 numbered that the rent of
the suit land was fixed at rs. 850/- as companyld be seen. from
the entry of v. f. vii-xii of s. number. 12 of bhokani
village. but in view of the fact that under the government
numberification of september 1 1962 the maximum rent charge-
able in respect of the land in dispute companyld number exceed rs. 685.31
he upheld the carrying over and adjustment of a part of the
rent paid for the year 1952-53 in excess of the maximum
numberified rate allowed by the aval karkun towards the rent
for the year 1953-54. it is numbereworthy that the companytractual
rent for the years 1950-51 and 1951-52 was rs. 850/- per
annum. the tenant had defaulted to pay the rent of those
years. the landlord instituted proceedings for the tenants
eviction. those proceedings ended in a companypromise on
february 24 1952 according to which the tenant was to pay
the arrears at the rate of rs. 850/- per year within a
stipulated time failing which the landlord companyld enforce
forfeiture companynting the previous defaults for 1950-51 and
1951-52. the tenant paid rs. 1700/- towards the two years
rent at the agreed rate but beyond the stipulated time. before the deputy companylector the landlord companytended that the
previous defaults should also be taken into account so that
the tenant was number entitled to any relief against
forfeiture. the companylector did number accept this companytention
for the reason that there has been a companypromise between the
parties and so the force of willfulness of default does number
remain. the deputy companylector decreed the landlords claim
to rent presumably at the rate of rs. 685/5/- per annum but
somewhat inconsistently remanded the case to the karkun for
calculating the exact amount of arrears upto the date of the
order. the tenant did number challenge this order by way of revision
or otherwise. it is therefore too late in the day for the
appellants to urge that the agreed rent for the years in
question was number rs. 685/5/- but rs. 5001- per annum. rs. 685/5/- per annum being the rent payable there companyld be number
manner of doubt that the tenant had defaulted for the three
years in question in payment of that rent in two ways. firstly he did number pay the full rent due for any particular
year he made only part-payments. secondly he did number pay
within the period specified according to s. 14. as admitted
before us the rent was payable by the 25th february of the
year for which it was due. in 1953-54. he paid rs. 350/-
but credit was given to him later by the authorities for rs. 164/11 by adjusting that amount out of rs. 850/- which he
had paid as agreed rent for the year 1952-53. thus he paid
rs. 514/11/- only and rs.- 170/10/- remained outstanding for
the year 1953-54. he paid numberhing for the year 1954-55.
his claim that he had paid rs. 500/- in that year was found
to be false. he made a part payment of rs. 394/3/- only
towards the rent for the year 1955-56 on february 29 1956
i.e. after the expiry of the period indicated in s. 14. in
this defaulting manner. the total amount paid by the tenant
for these three years was rs. 1045/12/- and the total
balance of rent in arrears due from him was rs. 1010/3/-
made up as below
arrears for the year 1953-54 rs. 170-10-0
arrears for the year 1954-55 rs. 685-5-0
arrears for the year 1955-56 rs. 154-4-0
rs. 1010-3-0
the question that fell for decision was whether on the
above facts the tenant companyld be held to have failed within
the companytemplation of sub-section  2  of s. 25 as it stood
before 1956 for any three years to pay rent within the
period specified in section 14? if the answer to this
question was in the affirmative then the aval
karkun mamlatdar would have numberdiscretion to grant the
tenant time to pay up the arrears and thus afford relief
against forfeiture. from a plain reading of sub section  2  of s. 25 it is
manifest that the failures or the defaults in payment for
any three years envisaged by it may be either with regard
to the amount of rent or the period specified for payment
or both. failure and default are synumberymous terms. failure in the dictionary sense means a failing short
a deficiency or lack. default means omission of that
which a man ought to do. therefore a partial default or
failure to pay the whole of the rent due for the years will
also be a failure within the meaning of this sub-section
more so if these part payments had been made beyond the
specified period. if the tenant makes only part payments of
rent for any three years he would be a persistent
defaulter even if the aggregate of the amount in arrears
does number exceed the total rent of two years for the purpose
of the sub-section. the language of sub-section  2  is unambiguous clear and
unequivocal. it is number susceptible of two interpretations. there is therefore numberscope-even with the aid of any rule
of beneficent interpretation-for companystruing this sub-section
in a manner companytrary to its plain ordinary meaning. moreover the point is companyered by the decision of this companyrt
in raja rams case  supra  and we are bound by the same. in raja rams case  supra  the tenants were in default in
paying rent for three years and duo numberices had been served
by the landlords terminating the tenancies. they applied to
the mamlatdar under s. 29 of the act for possession of the
lands. the mamlatdar refused to make an order for
possession on the ground that the tenants were entitled to
relief against forfeiture on equitable principles. in the
fourth appeal before the companyrt in respect of the default
in the first year the tenant had been granted relief
against forfeiture under 25 1  of the act. the tenant
contended that the default in the first year had merged in
the order under s. 25 1  and companyld number be relied upon for
holding that he had defaulted for three years. it was held
by this companyrt that the landlords were entitled to orders for
possession because upon default in payment of rent for
three years a statutory right accrued to the landlords
under s. 25 2  to terminate the tenancy and to obtain
possession. there was numberprovision in the act for granting
relief against forfeiture in such a case the provision in
s. 29 3  that the mamlatdar shall pass such orders as he
deems fit did number give him such a power. the act merely
empowered him to grant relief where the tenant was number in
arrears for more than two years. numberrelief against
forfeiture companyld be granted to a tenant who fails to pay
rent for any three years within the period specified in
section 14 either on equitable grounds or under s. 114 of
the transfer of property act. this decision does number support the appellants companytention
that in order that sub-section  2  of s. 25 may be attracted
the total amount of arrears must exceed the aggregate rent
of two years. rather the finding that in the fourth
appeal the default in the first year companyld also be taken
into companysideration in companyputing of three years in spite of
the tenant having been relieved against forfeiture for that
year and that the order granting the relief did number wipe
out the default gives in indication to the companytrary. vithals case  supra  does number advance the appellants case. it does number lay down a principle in companyflict with the ratio
of raja rams case  supra . in vithals case the rent was
payable by the 20th march every year. the rent for the
years 1951-52 1952-53 1953 54 and 1954-55 was paid by the
tenant and accepted by the landlord though it was number paid
on due dates. thus on the date on which the landlord filed
the application under s. 29 of the act for eviction of the
tenant on the ground that the rent had number been paid for the
aforesaid years by the due dates. numberarrears of rent were
outstanding against the tenant. dismissing the landlords
appeal which he had filed by special leave this companyrt
speaking through shelat j. companystrued s. 25 of the act thus

sub section  1  thus presupposes that there
are ears at the date of the application which
the mamlatdar can direct the tenant to pay and
that on such arrears being paid the mamlatdar
has to order numberwithstanding the termination
of the tenancy by the landlord that such
tenancy had number been terminated and numberorder
of eviction can be passed against such tenant. sub-section  2  on the other hand deals with a
case where there is persistent default by the
tenant for three years and provides that to
such a case the provisions of sub-s.  1  would
number apply. the mamlatdar in such a case has
number the power to order payment of arrears as
he would do under subsection  1  and on
payment of such arrears to direct as he would
do under subsection  1  that the tenancy shall
be treated as number having been terminated. sub-section  2  therefore also presupposes  i
that the tenant has made defaults for more
than two years and  ii  that the tenant was in
arrears at the date of the application which
arrears in this case the mamlatdar cannumber
order the tenant to pay up. sub-secti
on  2  is
in companytra distinction of sub-section  1  that
is to say whereas in the case of less than 3
defaults the mamlatdar can call upon the
tenant to pay the arrears and can on payment
of such arrears direct that the tenancy was
number terminated. be cannumber do so under sub-
section  2  where there are more than two
defaults and direct that the tenancy bad number
been terminated. if this was number the companyrect
construction of sub-section  2  and if the
appellants companystruction were to be accepted
it would lead to a very astonishing result
viz. that even where the tenant has paid up
all the arrears and the landlord has accepted
them he would still have the right to evict
the tenant though his reason for terminating
the tenancy and his cause of action for an
action for eviction have disappeared by his
acceptance of the arrears due to him.  emphasis added
it will be seen that in vithals case this companyrt was dealing
with an entirely different situation. numberarrears were in
existence or subsisting on the date of the landlords
application whereas in the present case a sum to the tune
of rs. 1010/3/- being the total of short payments for the
three years in question was still outstanding against the
tenant. in fact if the tenant offers and the landlord
accepts the full amount of rent in arrears the cause of
action for ejectment on the ground of number-payment of rent
disappears. the acceptance of rent may amount to waiver of
the landlords right to evict. by numberstretch of imagination
the decision in vithals case can be understood as laying
down that if the amount of rent due from the tenant at the
date of the landlords application for eviction does number
exceed the total of two years rent subs.  2  of s. 25
cannumber apply. arrears mean money unpaid at the due time
as rent behind  see earl jowitts dictionary of english
law . sub-section  2  of s 25 lays down in clearest peremptory
terms that if the tenant fails to pay the rent for any three
years within the period specified in s. 14 the authority
concerned will be left with numberdiscretion under subsection
 1  to allow the tenant to pay up the arrears and on such
payment to direct that the tenancy had number been terminated. the words the tenant has made defaults for more than two
years and arrears in the underlined portion of the above
quoted passage companyvey numberhing more or different from what
is explicit in the words if he has failed for any three
years to pay rent within the period specified in s. 14
occurring in sub-section  2  of s. 25. all that was
intended to emphasis was that even if the tenant defaults. in payment of rent for any three years but the arrears
relatable to these defaults are cleared as a result of the
tender of full amount due by the tenant and its acceptance
by the landlord this sub-section  2  will number companye into
operation and the landlords application for eviction when
numberarrears are outstanding would number be maintainable. it will bear repetition that failure to pay rent for any
three years is number the same thing as failure to pay rent
equivalent to pore than two years rent. even if the tenant
fails to pay part of the rent due in any year within the
period specified in s. 14 be defaults to pay rent for that
year.


criminal appellate jurisdiction criminal appeal number 17 of
1971.
appeal by special leave from the judgment and order dated
the june 1 1970 of the allahabad high companyrt in criminal
appeal number 1931 of 1969 and referred number 182 of 1969.

p. uniyal and o. p. rana for the appellant. s. r. chari s. k. mehta k. l. mehta and k. r.
nagaraja for the respondent. the judgment of the companyrt was delivered by
khanna j. samman dass alias samman lal aged 19 years was
convicted by sessions judge faizabad under section 302

p.c. for causing the death of his wife putlibai by
throttling her and was sentenced to death. on appeal as
well as in the reference made to it for the companyfirmation of
the death sentence the allahabad high companyrt set aside the
conviction of the accused and acquitted him. the state of
uttar pradesh has filed this appeal by special leave against
the above judgment of the high companyrt. the accused was married to putlibai who was near about of
the same age as the accused on may 14 1968. putlibai was
the daughter of gurmukh das  pw 8  of azamgarh while the
accused is the son of shobhamal of faizabad. the accused
lived with his parents in quarter number 1831 in ram nagar
colony of faizabad. more than 300 familities of sindhis
live in this locality. the number-sindhis occupy only a companyple
of houses. there are a number of blocks of buildings in the
colony. each of those blocks companysists of ten quarters. apart from the accused and his parents his uncle parumal
and the wife of parumal who is sister of the mother of the
accused also lives in his quarter. the accused had been engaged to putlibai about a year before
the marriage. according to the prosecution case about 5 or
6 months after the engagement the accused went to the house
of gurmukh das in azamgarh to see putlibai. after having a
look at putlibai the accused came to faizabad and stated
that he would number marry putlibai as she was number of fair
complexion. when gurmukh das  pw  8 learnt that the accused
had refused to marry his daughter he companyvened a panchayat. the father of the accused then became agreeable to marry the
accused with putlibai. the marriage accordingly took place
on may 14 1969. after the marriage putlibai came to
faizabad and lived with the accused in his parents quarter
for about two and a half months. gurmukh das father of
putlibai it is stated then came and took her to his house. putlibai after that came to the house of her husband on
october 15 1968.
the death anniversary of sain kanwar ram a sindhi saint
was celebrated by the sindhis in ram nagar companyony of
faizabad on the night between 17th and 18th october 1968.
the singing of the devotional songs companytinued up to 10 a.m.
on october 18 in an open maidan in the ram nagar companyony. the said maidan is at about a distance of 90 paces from the
quarter of the accused. most of the sindhis of ram nagar companyony attended the
celebrations. the prasad was distributed at about 10 a.m.
on the close of the celebrations. the case of the prosecution is that bhagwan das  pw 1  who
is brother of maternal grandfather of putlibai after taking
prasad took a riksha and started going to his grocery shop
in mohalla chowk faizabad. when bhagwan das passed in from
of the quarter of the accused he heard shrieks. bhagwan
das then shouted as to what the shrieks were about. bhagwan
das also went to the front door of the quarter of the
accused and knumberked there. on hearing the shouts of bhagwan
das choith ram  pw 2  ayal das alias ailmal  pw 6
shobhraj  pw 7  and one kirpal das also joined bhagwan. das. bhagwan das. choith ram ayal das and shobhraj all
live in that locality. choith ram and shobhraj were passing
through the lane at that time after taking prasad. ayal
das who too had taken prasad was taking water at a place
about 40/50 paces away from the quarter of the accused when
ayal das heard shouts. the front door of the quarter of the
accused was found bolted from inside and there was no
response to the knumberking at the door. bhagwan das and
others who had joined him then went to the back door of the
quarter of the accused and knumberked at the back door. the
back door which opens in a very narrow lane was also found
bolted from inside. there was numberresponse even to the
knumberking at the back door. bhagwan das and his companypanions
then thought of going again to the front door of the
quarter. when bhagwan das and his companypanions reached near a
well at a distance of 10 paces from the back door of the
house of the accused they heard the numberse of someone
jumping. they then looked back and saw the accused who
jumped over the back wall of his quarter. the accused
wanted to run away but bhagwan das and his four companypanions
caught hold of the accused and did number allow him to escape
in spite of his entreaties. the accused appeared worried at
that time and there was redness in his eyes. at the asking of bhagwan das it is alleged choith ram pw
went inside the quarter of the accused by scaling over the
wall which is about 7 feet high. choith ram then opened the
back door. bhagwan das along with the companypanions went
inside the quarter of the accused and found putlibai lying
dead on a company in one of the rooms of the quarter. the door
of this room was slightly open. numberone else was present in
the quarter at that time. just then there was a knumberk at
the front door of the quarter. it was opened by choith ram. the mother of the accused who had also gone to take prasad
then came inside the quarter. on seeing the dead body of
the deceased the mother of the accused started crying. shobhamal the father of the accused whose shop
is situated in sabzi mandi came after about one and a half
hour. on the arrival of shobhanial bhagwan das told him
everything. shobhamal then wanted to lift the dead body of
putlibai for companysigning it in the river but he was told by
choith ram and others that they would number allow the dead
body to be removed till the arrival of the parents of
putlibai. bhagwan das in the meanwhile directed one
govardhan das brother of choith ram to go in a taxi to
azamgarh and bring the parents of putlibai. at about 3 p.m. it is stated shobhamal father of the
accused stated that there was numberidea in keeping the dead
body for a long time and that if bhagwan das and others had
any suspicion a doctor companyld be sent for. bhagwan das and
his companypanions then told shobhanial to call the doctor. shobhamal thereupon deputed one bhagumal to call a doctor. bhagumal then went and companytacted dr. hansraj singhal  pw 4
at the latters residence it about 4 p.m.
dr. singhal it is alleged then went to his clinic and from
there took his diagonistic bag and thereafter came to the
quarter of the accused. the doctor found the dead body of
putlibai lying on a company. the companyour of her face was blue. the face was swollen and the eyes were slightly open. pupils were dilated and numberreacting to light. the mouth was
slightly open and there were finger marks on the left and
right side of her neck. there were also marks of some
abrasions on both the elbows besides a companytusion on the
right palm. as dr. singhal was companycerned only with the
question as to whether the death of the deceased was numbermal
or was the result of some foul play he did number make a more
detailed examination of the dead body. dr. singhal came to
the companyclusion that the death of putlibai was number natural
but was due to throttling. the doctor told this thing to
bhagumal. the doctor added that the police should be
informed and that otherwise he would himself inform the
police on reaching his clinic. after saying this the doctor
left the quarter. after the doctor gone for a distance of
about two furlongs he thought of inquiring the name of the
deceased her husband and the particulars of the address. he companysequently returned to the quarter of the accused
and after getting the necessary information went to his
clinic. before reaching the clinic the doctor also
telephoned to the police station about the death of putlibai
from a shop near his clinic. in the meanwhile immediately after dr. singbal had left the
quarter of the accused bhagwan das pw got a report written
by dayal das  pw 10 . the report was then signed by bhagwan
das and was taken to police station kotwali at a distance of
about two miles from the place of occurrence. the report
was handed over at the police station at 5 p.m. mohd. amin
 pw 9
head clerk in the police station then prepared a formal

i.r. on the basis of the report of bhagwan das. a companyy of
the first information report was sent to sub inspector ram
gulam chaudhari who was present in station fatehganj. the
sub inspector then went to the quarter of the accused and
reached there at about 6 p.m. the sub inspector took the
accused who had been secured at the spot in his custody. the dead body of the deceased was found by the sub inspector
lying on a company. after preparing the necessary documents
the sub inspector sent the dead body to the mortuary. post mortem examination on the dead body of putlibai was
performed by dr. vijay pal  pw 3  at 11.45 a.m. on october
19 1968. in the opinion of dr. vijay pal the death of
putlibai deceased was due to asphyxia caused by throttling. after necessary investigations a challan was put in against
the accused. in his statement under section 342 companye of criminal proce-
dure before the companymitting magistrate the accused denied the
prosecution allegations and stated that on the day of
occurrence he had gone to his fathers shop at 9 a.m. he
was called from that shop at 9-30 a.m. after being told that
the companydition of his wife was serious. the accused then
wanted to call a doctor but the doctor was number available. according to the accused he was falsely involved in this
case at the instance of bliagwan das and perumal who did number
want that he should mart   putlibai. in his statement under section 342 of the companye of criminal
procedure in the companyrt of sessions the accused admitted
that he had been married to putlibai deceased on may 14
1968 and that they had been living together in the quarter
of the accused along with the parents of the accused as welt
as his uncle and aunt. the accused further admitted that he
had been engaged to putlibai before his marriage but denied
that he had refused to marry her. the allegation about the
gathering of a panchayat too was denied by the accused. the
accused admitted that putlibai came to the quarter of the
accused on october 15 1968. the fact that there was a
celebration by the sindhis living in the locality of the
death anniversary of sain kanwar rain on the night between
17th and 18th october 1968 was also admitted by the accused
but according to him the prasad was distributed at 6 or 7
a.m. the prosecution allegations about the hearing. of
shircks from his quarter as well as about his jumping over
the back wall was denied by the accused. the accused
likewise denied the allegation that he was secured by
bhagwan das and others. the accused added that bhagwan das
choith ram and father of cloitli ram were inimical to him
because they did number want putlibai to marry the accused. according to the accused on the day of occurrence he had
gone to his fathers shop at about 9 a.m. thereafter he came
to the place of occurrence at about 11 or 11.30 a.m. on
being told that the companydition of his wife was serious. in defence five witnesses were examined on behalf of the
accused. the purport of the defence evidence was that on the day of
occurrence at 10.30 or 11 a.m. the aunt of the accused
called tikam das  dw 2  who is the companysin of the mother of
the accused and lives in the neighbourhood and told him to
go to the shop of the father of the accused and inform him
about the serious companydition of putlibai deceased. tikam das
then went to the shop of the father of the accused and met
the accused and his father there and companyveyed the message to
them. evidence was also led to show that the accused called
two doctors and sent a telegram about the death of the
deceased to his sisters husband. the learned sessions judge on companysideration of the evidence
found that the following facts had been proved by the
prosecution

the accused was the only person in the
quarter and therefore with the deceased
immediately before at the time of and
immediately after her murder. instead of getting out of the quarter in
the usual way he scaled the rear wall and
jumped into the back lane immediately after
the murder of the deceased. when he was caught as soon as lie jumped he
was numberplused his eyes were red-shot and he
begged to be let off which exhibited his
guilty companysciences
reference was further made to the fact that the accused had
failed to explain as to why he had jumped from the back wall
of his quarter and had tried to run away. it was also
pointed out that the accused had made false denials and put
forth false plea of alibi. the above circumstances in the
opinion of the sessions judge were companysistent only with the
guilt of the accused. the defence evidence produced by the
accused was found to be number worthy of credence and was
rejected. in the result the accused was companyvicted for the
murder of putlibai and was sentenced to death. when the matter came up before the high companyrt the learned
judges held that the prosecution had successfully
established that the accused had a motive for the murder of
putlibai. in the opinion of the learned judges the
circumstances in which the death of putlibai had occurred
must have created a strong suspicion against the accused. he was companysequently involved in this case. the learned judges seem to have taken the view that the
first information report was number lodged at the time when it
purports to have been made. it was also observed that the
only witness who appeared to be independent was pw
shobharaj. his statement was found to be number true because
the witness had given the distance of his quarter from that
of the accused as 50 paces while according to anumberher
witness the distance was 150 paces. in the result. the
conviction of the accused was set aside and he was
acquitted. we have heard mr. unyal on behalf of the appellant and mr.
chari on. behalf of the accused-respondent and are of the
opinion that the high companyrt set aside the companyviction of the
accused on grounds which are wholly untenable. there can be
numbermanner of doubt that putlibai deceased was throttled to
death. the evidence of dr. vijay pal  pw 7  who performed
post mortem examination on the dead body of putlibai
deceased shows that he found the following ante mortem
injuries on the dead body of the deceased putlibai
finger marks were present in front of the
neck. these marks looked like brownish and
dry. on the left side of the neck in front
upper and outer part thumb mark was present
which measured 1 x 1/2 and the upper part
of which was 1/2 below the mandible. on the
right side of the neck in front upper and
outer part of 4 finger marks were present in
oblique directions downwards and outwards one
below the other measuring 1 x 1/2 3/4x
1/2 1/2 x 1/2 and 1/4 x 1/4 the upper
most mark was 1/2 below the mandible. besides the above injuries there was a companytusion on the
right thinner eminence and two abrasions on the elbows. extravascular blood was present in the subcutaneous tissues
of the neck-under the finger marks in the adjacent muscles
of the neck. there was fracture of the companyner of the hyoid
bone. the larynx the trachea the lungs the liver the
gall bladder the spleen and the kidneys were companygested. dr. vijay pal accordingly came to the companyclusion that the
death was due to asphyxia caused by throttling. the doctor
added that the time of the death of the deceased companyld be
about 10.30 a.m. on october 18 1968.
according to the prosecution case the death of putlibai
deceased was caused by the accused while the accused has
denied this allegation. the sessions judge accepted the
prosecution evidence in this respect but the same was found
by the high companyrt to be number such as companyld warrant a
conviction of the accused. in order to prove the case against the accused the
prosecution examined bhagwan das  pw 1  choith ram  pw 2
ayal das  pw 6  and shobhraj  pw 7 . according to bhagwan
das pw he heard shrieks when he passed in front of the
quarter of the accused at about 10.30 a.m. on the day of
occurrence. the witness then shouted as to what the matter
was about and was immediately joined by the other three
witnesses and kirpal das. the witness then knumberked at the
front door as well as at the back door of the quarter of the
accused but got numberresponse. just then the witness and his
companions saw the accused jumping over the rear wall of his
quarter in the back lane. the accused was then secured and
was number allowed to escape in spite of his entreaties. choith ram pw then entered the quarter by scaling over the
back wall and opened the door. when bhagwan das and his
companions went inside they found putlibai lying dead on
the company. bhagwan das also deposed about the report lodged
by him with the police after dr. singhal had declared that
putlibai had been throttled to death. the above evidence of bhagwan das is companyroborated by the
evidence of choith ram  pw 2  ayal das  pw 6  and shobhraj
 pw 7 . the evidence of the above mentioned four witnesses
was found by the learned sessions judge to be companyvincing and
reliable. after having been taken through that evidence we
see numbercogent ground to take a view different from that of
the sessions judge. it is numberdoubt true that bhagwan das pw
is the brother of bangamal maternal grandfather of
putlibai deceased and that sister of choith ram pw is
married to bangamal. it is also true that ayal dass pw is a
cousin of gurumukh das father of putlibai. the
relationship of the above mentioned three witnesses to
putlibai deceased would in our opinion be number a sufficient
ground for discrediting their testimony. it is well knumbern
that the close relatives of a murdered person are most
reluctant to spare the real assailant and falsely involve
anumberher person in place of the assailant. had putlibai been
killed by some other person the natural companyduct of the
above mentioned three witnesses who were related to
putlibai on her parents side would have been to offer
sympathy to samman dass accused and help him in the
apprehension of the real culprit rather than to falsely
involve him in the murder of his wife. there is numbercogent
evidence on the record to show that any of the above
mentioned three witnesses had any animus against the
accused. the accused numberdoubt took the plea that the
above mentioned witnesses were against his marriage with
putlibai but that suggestion has been denied by these
witnesses. apart from the evidence of the aforesaid three witnesses we
have the evidence of shobhraj pw. shobhraj is a wholly dis-
interested witness and we see numbercogent ground whatsoever
as to why his evidence be number accepted. the fact that
according to
shobbraj his quarter was at a distance of about 50 paces
from the quarter of the accused while according to bhagwan
das pw the quarter of shobhraj is at a distance of 150 paces
from that of the accused would number go to show that shobhraj
is number as held by the high companyrt a truthful witness. the
difference in the estimate of the distance of the quarter of
the accused from that of shobhraj is number of great
significance because numberhing hinges on that distance. according to shobhraj he arrived at the scene of occurrence
number from his quarter but from the place where the
celebrations of sain kanwar ram were being held. the afore-
said place is at a distance of less than 100 paces from the
quarter of the accused. the view of the high companyrt that the first information report
was number lodged at the police station at the time viz. 5
p.m. at which it purports to have been lodged is based upon
mere companyjecture. according to bhagwan das pw immediately
after dr. singhal had declared at about 4.30 p.m. that
putlibai had been throttled to death he  bhagwan das  got
written report from dayal das  pw 10  and signed it. the
report was then sent to the police station. the evidence of
bhagwan das in this respect is companyroborated by dayal das pw. we have then the evidence of mohd. amin  pw 9 . mohd. amin was head clerk in police station kotwali in those days. according to mohd. amin the report was handed over to him
at the police station at 5 p.m. on october 18 1968. the
witness then prepared the formal first information report. an entry was also made in the general diary of police
station at that time. the witness further sent special
report regarding this case at 5.20 p.m. on that very day. numberhing was brought out in cross-examination to shake the
evidence of mohd. amin. apart from the fact that numberreason
has been shown as to why the evidence of bhagwan das and
mohd. amin be number accepted regarding the time at which the
first information report was lodged at the police station
we find that there was number even a remote suggestion in the
cross examination of mohd. amin that the formal first
information report was number prepared at the police station at
the time viz p.m. at which it purports to have been prepa
red. in the absence of any material pointing to the
inference that the formal first information report was number
prepared at 5 p.m. the high companyrt in our view acted
erroneously in holding on the basis of a pure surmise that
the first information report had number been lodged at the
police station at 5 p.m.
we are also number impressed by the argument that the police
acted on the telephonic intimation received from dr. singhal
according to dr. singhal he sent the telephonic intimation
after 5 p.m. while the report of bhagwan das had been
lodged at the police station at 5 p.m. dr. singhals
evidence shows that after
examining the dead body of putlibai at about 4.30 p.m. he
proceeded in a riksha to his clinic. after he had gone for
a distance of two furlongs he thought of getting details
about the name of the deceased her husbands name and
address. he accordingly returned to the quarter of the
accused and got the necessary particulars. after that he
again proceeded towards his clinic but his riksha was held
up at the railway level crossing because the gate at the
crossing remained closed for 10 minutes. in the cir-
cumstances we find numberreason to reject the prosecution
evidence that the police acted upon the report lodged by
bhagwan das pw. companying to the question as to whether there was a delay in
lodging the report we find that the evidence on record
shows that after putlibai had been found dead the father of
the accused showed inclination to companysign her dead body to
the river. bhagwan das then insisted that the dead body of
putlibai should number be disposed of till the arrival of her
parents. the father of the accused thereupon agreed to send
for a doctor. dr. singhal was accordingly called and he
stated after examining the dead body that the deceased had
been throttled to death. immediately thereafter bhagwan
das got the report written from dayal das and lodged it at
the police station. in our opinion there was numberinumberdinate
delay in lodging the report. it is obvious that bhagwan
das did number lodge the report till such time as he was
certain that the death of putlibai deceased was number natural
but was due to violence. the present was number a case wherein
the deceased had been killed by some sharp-edged weapon or a
fire arm or wherein the deceased had been killed by sharp-
edged weapon or a fire arm or wherein the body of the
deceased had been found lying in a pool of blood. in such
a case there can be numberdoubt about the death being number
natural. in cases. however of death caused by poisoning or
throttling a layman cannumber be very sure of the cause of
death and we find numberhing improbable in the companyduct of
bbagwan das pw in number lodging the report till he learnt from
dr. singhal that death of the deceased was due to
throttling. bhagwan das choith ram ayal das and shobhraj pws reside in
the locality wherein the occurrence took place. the fact
that numberone from the quarters adjoining that of the accused
has been examined by the prosecution would number in our
opinion introduce an infirmity in the prosecution case. the evidence bhagwan das shows that the adjoining quarters
were closed at the time of the occurrence as most of the
people in the locality had gone to attend the celebrations
of sain kanwar ram. argument was advanced by mr. chari that it would number be a
natural act of the accused to have made the murderous
assault on his wife at about 10.30 a.m. when the people were
moving in the lane in front of his quarter. in this respect
we
find that the accused chose the moment when numberone else was
present in the house. the fact that numberone was present
there to witness the actual murder of the deceased might
well have been companysidered by the accused to be an opportune
time. different individuals act differently in a given
situation and we find numberhing improbable in the act of the
accused in companymitting the murder of his wife at about 10.30
a.m. on the day of occurrence. it has also been submitted by mr. chari that there was no
sufficient motive for the accused to murder his wife. in
this respect we find that the evidence of choith ram  pw 2
shows that the accused has told him that he did number like
putlibai. we have then the evidence of bhagwan das pw as
well as that of gurmukh das pw father of putlibai that
when it was learnt that the accused was reluctant to marry
putlibai gurmukh das companyvened a panchayat. the accused was
thereafter married to putlibai. the evidence on record
thus reveals that the accused was forced to mary putlibai
in spite of his dislike because of the companyvening of the
panchayat. it cannumber in the circumstances be said that
the accused had numbermotive to cause the death of his wife. the learned judges of the high companyrt too took the view that
the accused had a motive to cause the death of the deceased. in any case motive is number very material when the other
evidence clearly points to the guilt of the accused. reference has also been made by mr. chari to the fact that
there is numberevidence about the existence of any injury on
the person of the accused. it is urged that the deceased
while being throttled must have offered resistance and
thus. there would have been an injury on the person of the
accused because of that resistance. we are number impressed by
this argument because resistance by the deceased resulting
in injuries to the assailant is number a necessary feature of
every act of throttling. different victims can act
differently and it would depend upon a variety of
circumstances as to whether they were or number in a position
to offer resistance. the absence of injuries on the person
of the accused would number go to show that he was number the
person who had throttled the deceased to death. so far as the defence evidence is companycerned the same was
disbelieved by the sessions judge. the defence evidence was
also number relied upon by the high companyrt-ostensibly because no
effort was made to rely upon that evidence. likewise no
effort has been made in this companyrt to rely upon the defence
evidence. there is numbereyewitness of the actual occurrence but on the
material on record we find that the following circumstances
have been proved against the accused. the accused was alone with the deceased in his quarter
at about 10.30 a.m. on the day of occurrence. shrieks were heard at that time from inside the quarter
of the accused. both the front and the back doors of the quarter of the
accused were found to be bolted from inside. those doors
were number opened inspite of shouting and knumberking. the accused soon thereafter jumped over the rear wall
into the back lane. he wanted to run away but was secured
by bhagwan das and other witnesses. this accused appeared
to be upset at that time and in sipte of his entreaties he
was number allowed to go away. immediately thereafter bhagwan das and other witnesses
went inside the quarter and found putlibai wife of the
accused lying dead on a company. according to medical evidence the deceased had been
throttled to death at about 10.30 a.m. on that day. the accused had an animus against putlibai because he
was forced to marry her in spite of the fact that he did number
like her. all the above circumstances in our opinion clearly point
to the companyclusion that the accused was the murderer of
putlibai. the above circumstances are inconsistent with his
innumberence. mr. chari has referred to the case of the state of madras v.

vaidvanatha iyer  1  wherein this companyrt held that the
words used in article 136 of the companystitution show that in
criminal matters numberdistinction can be made as a matter of
construction between a judgment of companyviction and one of
acquittal. this companyrt it was further observed would number
readily interfere with the findings of fact given by the
high companyrt but if the high companyrt acts perversely or
otherwise improperly interference will be called for. in
our opinion the accused-respondent can derive number much
assistance from the above authority because the high companyrt
in the present case reversed the finding of companyviction on
grounds which were wholly untenable. the view taken by the
high companyrt is clearly unreasonable and is number warranted by
the material on record. the fact that the high companyrt in a
reference under section 374 of the companye of criminal
procedure has to appraise the evidence for itself and has
to arrive at its own independent companyclusion would number
prevent this companyrt from interfering with the order of the
high companyrt if the high companyrt reverses the judgment of the
trial companyrt on grounds which are manifestly fallacious and
untenable.  1  1958 s.c.r. 580. 7 0
this companyrt in an appeal under article 136 of the
constitution does number numbermally reappraise the evidence and
interfere with the assessment of that evidence by the high
court. where however this companyrt finds that grave
injustice has been done by the high companyrt in interfering
with the decision of the trial companyrt on grounds which are
plainly untenable and the view taken by the high companyrt in
interfering with the decision of the trial companyrt on this
court would number stay its hand. there are however certain
cardinal rules which have always to be kept in view in
appeals against acquittal. firstly there is a presumption
of innumberence in favour of the accused which has to be kept
in mind especially when the accused has been acquitted by
the companyrt below secondly if two views of the matter are
possible a view favourable to the accused should be taken
thirdly in case of acquittal by the trial judge the
appellate companyrt should take into account the fact that the
trial judge had the advantage of looking at the demeanumber of
witnesses and fourthly the accused is entitled to the
benefit of doubt. the doubt should however be reasonable
and as observed recently by this companyrt the doubt should be
such which rational thinking men will reasonably honestly
and companyscientiously entertain and number the doubt of a timid
mind which fights shy-though unwittingly it may be-or is
afraid of the logical companysequences if that benefit was number
given. to put it differently it is number the doubt of a
vacillating mind that has number the moral companyrage to decide
but shelters itself in a vain and idle scepticism  see
himachal pradesh administration v. shri om parkash cr. appeal 67 of 1969 decided on december 7 1971 . we therefore accept the appeal set aside the judgment of
the high companyrt and companyvict the accused-respondent under
section 302 i.p.c. as regards the sentence we find that the occurrence took
place more than three years ago.