UNFAIR TRADE PRACTICE - QUACK DOCTOR = According to the appellant, she came across an advertisement published in a newspaper ‘Jan Satta’ dated 8.8.1993 offering treatment of the patients having fits with Ayurvedi medicine by Dr. R.K. Gupta­ respondent No.1. The advertisement impressed the appellant as the respondent No.1 claimed total cure of fits. The appellant wrote a detailed letter to respondent No.1 about her son’s fits during high fever. In response, respondent No.1 sent a letter dated 23rd November, 1993 assuring that he had specialised treatment for the problem of Prashant by Ayurvedic medicines. despite medicines being given regularly the condition of Prashant started deteriorating day by day and the fits which were occasional and occurred only during the high fever, started occurring even without fever. = he is a quack and guilty of medical negligence, criminal negligence and breach of duty as he was playing with the lives of innocent people without understanding the disease. He was prescribing Allopathic medicines, for which he was not competent to prescribe. It was, inter alia, prayed that direction be issued to respondents to pay a sum of Rs.20 lakhs as compensation; to refund the charges paid by the appellant to the respondents and to reimburse the expenses incurred by the appellant on travelling to Rishikesh and a sum of Rs.10 lakhs for undergoing termination of pregnancy. = The National Commission has already held that respondent No.1 was guilty of unfair trade practice and adopted unfair method and deceptive practice by making false statement orally as well as in writing. In view of the aforesaid finding, we hold that both Prashant and the appellant suffered physical and mental injury due to the misleading advertisement, unfair trade practice and negligence of the respondents. The appellant and Prashant thus are entitled for an enhanced compensation for the injury suffered by them. Further, we find no reason given by the National Commission for deducting 50% of the compensation amount and to deposit the same with the Consumer Legal Aid Account of the Commission. 16. We, accordingly, set aside that part of the order passed by the National Commission and enhance the amount of compensation at Rs.15 lakhs for payment in favour of the appellant with a direction to the respondents to pay the amount to the appellant within three months. The appeal is allowed but there shall be no separate order as to costs.

Page 1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 8660 OF 2009
BHANWAR KANWAR ….
APPELLANT
VERSUS
R.K. GUPTA & ANR.  ….RESPONDENTS
J UD G M E N T
SUDHANSU JYOTI MUKHOPADHAYA, J.
This   appeal   has   been   preferred   by   the
complainant­appellant against the order and judgment
dated   29th  January,   2009   passed   by   the   National
Consumer   Disputes   Redressal   Commission,   New   Delhi
(hereinafter   referred   to   as   the   ‘National
Commission’)   in   Original   Petition   No.   234   of   1997
whereby   the   National   Commission   quantified   the
compensation   payable   by   the   respondents   as   Rs.
5,00,000/­   and   directed   respondent   No.1   to   pay   a
consolidated   sum   of   Rs.2,50,000/­   to   the   appellant
and to deposit the remaining amount of Rs.2,50,000/­
in   the   account   of   the   Consumer   Legal   Aid   of   the
National Commission. 
1Page 2
2. The appellant is aggrieved by the said order and
judgment   with   respect   to   the   total   amount   of
compensation granted.   She has also challenged that
part of the order  whereby  Rs.2,50,000/­ out of the
total   compensation   amount   has   been   ordered   to   be
deposited in the account of Consumer Legal Aid of the
National Commission.
3. The   facts   that   lead   the   complainant   to   move
before the National Commission are as follows:
Prashant, son of the appellant born in May 1989
suffered from febrile convulsions during fever at the
age of six months. 
He was taken to nearby Doctor who
after   examining   him   informed   that   the   children   can
get such kind of fits during fever.  
He was treated
by   giving   paracetamol   tablet.  
 Even   after   that
Prashant had high fever he suffered convulsions for
which   he   was   treated   by   one   Dr.   Ashok   Panagariya,
Consultant   Neurologist   and   Associate   Professor   of
Neurology SMS Medical College Hospital, Jaipur and at
All India Medical Sciences, New Delhi.
4. According to the appellant, she came across an
advertisement   published   in   a   newspaper   ‘Jan   Satta’
dated   8.8.1993   offering   treatment   of   the   patients
2Page 3
having fits with Ayurvedi medicine by Dr. R.K. Gupta­
respondent   No.1.   The   advertisement   impressed   the
appellant as the respondent No.1 claimed total cure
of   fits.   The   appellant   wrote   a   detailed   letter   to
respondent   No.1   about   her   son’s   fits   during   high
fever.     In response, respondent No.1 sent a letter
dated   23rd  November,   1993   assuring   that   he   had
specialised treatment for the problem of Prashant by
Ayurvedic   medicines.  
He   advised   the   appellant   to
bring her son Prashant in his Clinic. Accordingly, on
21st  February,   1994   the   appellant   and   her   husband
along   with   Prashant   visited   respondent   No.2­Neeraj
Clinic   Pvt.   Ltd.,   run   by   respondent   No.1   at
Rishikesh.  Prashant was registered vide Registration
No.7955 dated 21.2.1994.   The appellant was made to
pay   Rs.2,150/­   towards   consultancy   charges   and   the
cost of medicines for one year vide Cash Memo No.61
dated 21.2.1994 by respondent No.1. She was told by
respondent   No.1   that   medicines   given   were   the
combination   of   hundreds   of   herbs.     Respondent   No.1
also handed over a printed circular to the appellant
who started thereafter giving medicines to Prashant
regularly in the hope that he will be cured. It was
3Page 4
alleged that despite medicines being given regularly
the condition of Prashant started deteriorating day
by   day   and   the   fits   which   were   occasional   and
occurred   only   during   the   high   fever,   started
occurring even without fever.  
5. On being informed of the condition of Prashant
respondent   No.1   intimated   that   the   medicine   being
Ayurvedic   had   slow   effect.     He   instructed   the
appellant   to   regularly   administer   the   medicines.
Respondent No.1 sent medicine through VPP. On seeing
condition of Prashant getting deteriorated again, the
appellant   sent   a   fax   dated   18th  June,   1995   to
respondent No.1 and in response thereto, respondent
No.1 sent fax advising to continue the medicines as
before.     Thereafter another communication was sent
to   respondent   No.1,   in   response   whereof   respondent
No.1 sent a letter on 30.9.1995 reassuring that the
line   of   treatment   was   correct   and   he   advised   the
appellant to bring Prashant for check up and also the
left   over   medicines.     The   appellant   along   with
Prashant   again   visited   the   Clinic   at   Rishikesh   to
consult   respondent   No.1   in   October,   1995.   After
examining Prashant respondent No.1 gave medicines for
4Page 5
which he charged Rs.1500/­.  The appellant was given
black  and thick white  tables to be administered to
Prashant.  In the fax dated 20.6.1995 respondent No.1
advised the appellant to continue with the treatment
for   3   years.     Meanwhile,   the   fits   became   more
frequent and for longer durations.
On 14th November,
1995,   the   appellant   contacted   respondent   No.1   over
telephone and during discussion, respondent No.1 told
the appellant not to worry and assured her to send
more powerful medicines.  Thereafter, respondent No.2
sent   white   coloured   tables   with   a   letter   dated
14.11.1995. During the period from February 1994 to
October 1996 the appellant did not contact Dr. Ashok
Pangariya.  However, since the condition of Prashant
worsened   the   appellant   again   consulted   Dr.   Ashok
Pangariya   on   28th  October,   1996   who   told   her   that
there was no hope of the child becoming normal and he
will not grow as a normal child. To ensure the family
tree growing, the complainant wanted to have another
child, but due to her physical and mental condition
and total preoccupation with Prashant she was advised
to   undergo   medical   termination   of   pregnancy.     On
making   enquiry   as   to   the   nature   of   medicines
5Page 6
prescribed   by   respondent   no.1   to   Prashant   it   was
revealed   that   the   small   white   tablets   were   Selgin
which is not meant for children.  It is alleged that
respondent No.1 was passing off Allopathic medicines
as Ayurvedic medicines. It is further alleged that he
is a quack and guilty of medical negligence, criminal
negligence and breach of duty as he was playing with
the   lives   of   innocent   people   without   understanding
the disease. He was prescribing Allopathic medicines,
for which he was not competent to prescribe.  
It   was,   inter   alia,   prayed   that   direction   be
issued to respondents to pay a sum of Rs.20 lakhs as
compensation;   to   refund   the   charges   paid   by   the
appellant   to   the   respondents   and   to   reimburse   the
expenses incurred by the appellant on travelling to
Rishikesh   and   a   sum   of   Rs.10   lakhs   for   undergoing
termination of pregnancy. 
6. On  notice,  the  respondents  appeared  before  the
National   Commission   and   denied   the   allegation.
According   to   respondent   No.1   he   obtained
Ayurvedacharaya   degree   on   31st  December,   1984   and
established respondent No.2­Clinic in the year 1991.
It   was   accepted   that   the   appellant   approached   the
6Page 7
respondent No.1 for treatment of her son’s seizures.
After   examination   of   the   appellant’s   son   he
prescribed   medicines,   namely,   ‘Phenobarbitone’   or
‘Phenobarbital’ and ‘Wafera’ which are Allopathic as
well as ayurvedic medicines and which are considered
to be an appropriate drug for epilepsy patients. The
Medicine   Code­A1­‘Wafera’   is   an   Ayurvedic   medicine
and   is   a   brain   tonic.   He   denied   that   medicine
‘Selgin’   was   prescribed.     It   was   alleged   that   the
appellant   failed   to   administer   the   medicines   as
prescribed by him. On the other hand, she consulted
various other Doctors simultaneously for treatment of
her son including Dr. Ashok Panagariya and Doctors at
AIIMS.  It was asserted  that the treatment  given to
Prashant, son of the appellant was proper treatment
for epilepsy and Prashant could have developed mental
retardation due to the intake of other medicines. The
Ayurvedic   medicines   take   their   own   time   before
showing signs of recovery and, therefore, there was
slow improvement.
7. So   far   as   entitlement   of   respondent   No.1   to
prescribe   allopathic   medicine   is   concerned,   the
respondents   relied   on  a  letter   dated   24th  February,
7Page 8
2003   issued   by   one   Shri   Jagjit   Singh,   Secretary,
Medical Education Department, Government of U.P. to
suggest   that   the   Aurvedic/Unani   Practitioners
practicing   Ayurvedic   System   are   also   authorised   to
use   allopathic   medicines   under   U.P.   Indian   Medical
Council Act, 1939.
8. The National Commission by its order dated 16th
January, 2003 directed that the medicines be sent to
an   appropriate   laboratory.   By   an   order   dated   5th
March,   2004,   the   medicines   were   sent   to   Shri   Ram
Institute for Industrial Research, New Delhi.  As per
the reports of the said Institute the medicines were
Allopathic medicines, except one which could not be
identified.
9. After hearing the parties and on perusal of the
report submitted by Shri Ram Institute for Industrial
Research Laboratory, the National Commission by the
impugned   judgment   held   that   respondent   No.1   having
made   the   false   representation   was   guilty   of   unfair
trade practice but held that in the light of letter
dated   24th  February,   2003   respondent   No.1   was
entitled   to   prescribe   Allopathic   medicines.   With   a
view   to   curb   such   a   false   representation   and   to
8Page 9
restore faith of the people in Ayurvedic System the
National Commission passed a direction under Section
14(1) (f) of the Consumer Protection Act, 1986 to pay
compensation of Rs.5 lakhs but it ordered to pay only
a   sum   of   Rs.2.50   lakhs   to   the   appellant   and   to
deposit the rest of the amount of Rs.2.50 lakhs in
favour of Consumer Legal Aid Account of the National
Commission.
10. The respondents have not challenged the finding
of   the   National   Commission   to   the   effect   that
respondent No.1 has made false representation and was
guilty of unfair trade practice.
11. In the present case, the learned counsel for the
appellant has challenged the quantum of compensation
ordered   to   be   paid   in   favour   of   appellant   and   the
part   of   compensation   ordered   to   be   deposited   with
Legal   Aid.     She   has   also   raised   doubt   on   the
authority of respondent No.1 to prescribe Allopathic
medicines.   It   was   contended   that   the   letter   dated
24th  February, 2003 is of no help to respondent No.1
and cannot be given retrospective effect.
12. Considering   these   challenges   by   the   appellant
and   on   accepting   the   finding   of   the   National
9Page 10
Commission that respondent no.1 is guilty of unfair
trade   practice   the   questions   that   arise   for   our
consideration are:
(i) Whether   respondent   No.1   was   entitled   to
practice   and   prescribe   modern   Allopathic
medicines; and
(ii) What is the amount of compensation to which
the appellant is entitled ?
13. The   incident   and   treatment   as   alleged   by   the
appellant   relate   to   the   period   1994   to   1997.
Therefore, letter dated 24th  February, 2003 is of no
avail   to   the   respondents   as   the   same   was   not   in
existence   during   the   period   of   treatment.   The   said
letter dated 24th February, 2003 reads as follows:
“No.726/71­2­2003­15
From
Jagjit Singh
Secretary, U.P. Government
Medical Education Department
To
All Medical Officers
Uttar Pradesh
Medical Education Department­2
Lucknow: Dated 24 February 2003
Sub: To stop activities of harassment and 
suppression of Integrated Medical 
Practitioners in the State.
10Page 11
Sir,
I   have   been   directed   to   state   that   it   is
known   that   the   job   of   Registering
Ayurvedic/Unani Practitioners is done by U.P.
Indian   Medical   Council.   In   the   State
Ayurvedic/Unani   Practitioners   practicing
Ayurvedic   System   are   authorized   to   use
allopathic  medicines   under  UP  Indian   Medical
Council Act, 1939 Section 39(1) and 41(2) and
they   hold   the   same   rights   as   that   of
allopathic   practitioners.   Hon’ble   High   Court
has   directed   to   take   action   against   quacks
who   are   registered   nowhere.     Accordingly   it
has   been   decided   that   if   during   any   such
harassment   any   of   the   Registered
Ayurvedic/Unani   Practitioner   produces   the
Registration   Certificate   then   no   action
should be taken against him.
Therefore the above orders are to be complied
strictly.
Yours faithfully,
 Sd/­
Jagjit Singh
      Secretary”
From   the   aforesaid   letter   it   is   clear   that   in
connection with some case the High Court of Allahabad
issued   direction   to   take   action   against   the   quacks
who   are   practicing   in   Allopathic   Medicine   but   not
registered with Medical Council. 
14. Learned   counsel   for   the   respondents   has   not
brought to our notice any Act known as U.P. Indian
Medical Council Act, 1939 but we find that there is
an Act known as U.P. Indian Medicine Act, 1939. In
11Page 12
any case respondent No.1 has nowhere pleaded that he
was registered with the Medical Council or enrolled
in the State Medical Register.  
He has not cited even
the registration number and no specific plea has been
taken  that he has already  been registered  with the
U.P.   State   Medical   Council.     
Even   the   registration
number has not been mentioned.   
Merely on the basis
of a vague plea; the National  Commission held that
respondent   No.1   was   entitled   to   practice   and
prescribe modern Allopathic medicine. 
15. The   National   Commission   has   already   held   that
respondent No.1 was guilty of unfair trade practice
and adopted unfair method and deceptive practice by
making false statement orally as well as in writing.
In view of the aforesaid finding, we hold that both
Prashant   and   the   appellant   suffered   physical   and
mental   injury   due   to   the   misleading   advertisement,
unfair   trade   practice   and   negligence   of   the
respondents.    
The   appellant   and   Prashant   thus   are
entitled for an enhanced compensation for the injury
suffered by them. 
Further, we find no reason given by
the   National   Commission   for   deducting   50%   of   the
12Page 13
compensation amount and to deposit the same with the
Consumer Legal Aid Account of the Commission.
16. We,   accordingly,   set   aside   that   part   of   the
order passed by the National Commission and 
enhance
the amount of compensation at Rs.15 lakhs for payment
in favour of the appellant with a direction to the
respondents to pay the amount to the appellant within
three months.  The appeal is allowed but there shall
be no separate order as to costs.
………..……………………………………………..J.
(G.S. SINGHVI)
……………………………………………………….J.
(SUDHANSU JYOTI MUKHOPADHAYA)
NEW DELHI,
APRIL 5, 2013.
13

The respondents, who were engaged as Welders, Fitters, Turners, Mechanics, Grinders, Helpers, etc., initiated an action against the appellant-company under Section 28 of the Maharashtra Recognition of Trade Union and Prevention of Unfair Labour Practices Act, 1971 (for short “the 1971 Act”) before the Industrial Court, Aurangabad, seeking a declaration that there has been unfair labour practices under items 5, 6 and 9 of Schedule IV of the 1971 Act on the foundation that though they were engaged in the year 1990, yet in every year, they were offered employment for seven months each year and after the expiry of the said period, their services used to be terminated and the said practice continued till they filed the complaints in 1997, 1998 and 1999. = Section 30 of the 1971 Act deals with the powers of industrial and labour courts. Section 30(1)(b) reads as follows: - “(1) Where a Court decides that any person named in the complaint has engaged in, or is engaging in, any unfair labour practice, it may in its order – (b) direct all such persons to cease and desist from such unfair labour practice, and take such affirmative action (including payment of reasonable compensation to the employee or employees affected by the unfair labour practice, or reinstatement of the employee or employees with or without back wages, or the payment of reasonable compensation), as may in the opinion of the Court be necessary to effectuate the policy of the Act;” The appellant is directed to pay lump sum amount calculated at 65 days’ salary, inclusive of all allowances for the number of year each complainant has actually worked irrespective of the days a complainant may have put in in a year. The calculation would be made on the basis of work during a calendar year and that the calendar year in which a complainant may not have worked at all would be kept out of consideration while calculating the amount. In calculating the salary that would be taken into account would be Rs.8,000/- p.m. subject to condition that if on the date of termination, the salary of any particular complainant was more, than the calculation would be made on the actual last drawn salary. The calculation in the above manner would be made for the period up to the date of terminations in 1997. For the period after termination till date of this judgment, the basis of calculation would be lump sum two years of service on the basis aforesaid, viz. 65 days for each year i.e. 130 days. Although we have modified the order, yet keeping in view the fact that the respondent-workmen had already withdrawn the amount in pursuance of the order dated 06- 02-2012 when leave was granted, no steps shall be taken by the appellant-company to recover the differential sum from the respondents. 22. With the aforesaid modifications in the order passed by the Industrial Court that has been affirmed by the learned single Judge and concurred with by the Division Bench of the High Court, the appeals and Interlocutory Application Nos. 10-11 of 2013 for intervention and vacation of the order of stay are disposed of. In the peculiar facts and circumstances of the case, there shall be no order as to costs.

Page 1
Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL Nos. 2159-2160 of 2012
Bajaj Auto Limited ... Appellant
Versus
Rajendra Kumar Jagannath Kathar & Ors. ...Respondents
With
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J U D G M E N T
Dipak Misra, J.
Leave granted in all the Special Leave Petitions and
they are taken up along with Civil Appeal Nos. 2159 and
4Page 5
2160 of 2012.
Regard being had to the commonality of
the issue involved, all the appeals were heard together
and are disposed of by a common judgment.
2. The facts which are essential to be stated for
adjudication of the present batch of appeals are that
the appellant-company is engaged in manufacturing
of two-wheelers and three-wheelers and it has
factories at Akurdi (Pune District) and Waluj
(Aurangabad District).
The respondents, who were
engaged as Welders, Fitters, Turners, Mechanics,
Grinders, Helpers, etc., initiated an action against the
appellant-company under Section 28 of the
Maharashtra Recognition of Trade Union and
Prevention of Unfair Labour Practices Act, 1971 (for
short “the 1971 Act”) before the Industrial Court,
Aurangabad, seeking a declaration that there has
been unfair labour practices under items 5, 6 and 9
of Schedule IV of the 1971 Act on the foundation that
though they were engaged in the year 1990, yet in
every year, they were offered employment for seven
months each year and after the expiry of the said
5Page 6
period, their services used to be terminated and the
said practice continued till they filed the complaints
in 1997, 1998 and 1999.
Seventeen of them also
filed a separate complaint in the year 2003 for
providing work to them as they were kept outside the
factory premises without work. It was alleged that
because of this unfair labour practice, none of them
could complete 240 days in employment in any
corresponding year to make them eligible to earn the
status and privilege of permanent employees. It was
contended before the Industrial Court that in the year
1996, the employer, in order to improve work culture,
used multi-skill and multi-operational system and
thereby the employees termed as multi-skill
operators were required to undertake various jobs,
but the employer, by taking recourse to unfair labour
practice, saw to it that their services were terminated
immediately after the expiry of seven months.
In this
backdrop, they were deprived of the status under
clause 4-C of the Model Standing Orders as appended
to Schedule I-A of the Industrial Employment
6Page 7
(Standing Orders) Act, 1945 (for short “the 1945
Act”).
3. The aforesaid stand and stance of the workmen was
opposed by the employer contending, inter alia, that
the establishment was governed by the Certified
Standing Orders dated 10.3.1986 and the said
Certified Standing orders did not have a provision like
clause 4-C of the Model Standing Orders.
It was
asserted that the company has employed 4250
permanent employees which is sufficient to meet the
requirement of normal production but whenever
there was a temporary rise during some period in a
year, with the consent of the union, it used to engage
employees for the duration which was restricted to
few months. The allegation of unfair labour practice
under items 5, 6 and 9 of Schedule IV of the 1971 Act
was seriously controverted. It was categorically put
forth that there was no intention whatsoever to
deprive the workmen of their status but the
appellant-company, in order to meet its target, had
to engage the employees as and when required and,
7Page 8
hence, the bald allegation of unfair labour practice
was not only totally unwarranted but also uncalled
for.
4. To substantiate their respective stands, the employer
and the employees adduced evidence and also relied
on the evidence produced in complaint ULP No. 192
of 1997. Be it noted, apart from the evidence
recorded in complaint ULP No. 192 of 1997, one Mr.
Dilip Suryavanshi was examined on behalf of the
employer. The Industrial Court took note of the stand
of the complainants with regard to the assertion that
the employer deliberately adopted rotational system
throughout the year as a consequence of which the
temporary employees were rotated and not allowed
to complete the requisite number of days to have
permanency of employment and referred to the
evidence in complaint ULP No. 192 of 1997 and came
to hold that the standard of evidence produced in the
proceeding decided earlier and produced in the
proceeding before him were more or less similar and
8Page 9
from the said evidence, it was clear that the
employees had been continued for years but were
not granted the status or privilege of permanency at
the relevant time. He referred to the earlier
judgment of this Court in Bajaj Auto Ltd. v.
Bhojane Gopinath D. and others1
 and adverted to
the doctrine of res judicata and principle of res
integra and, eventually, came to hold that the
appellant-company had indulged itself in unfair
labour practice under item No. 6 of Schedule IV of the
1971 Act.
Following the decision in Bhojane
Gopinath (supra), he directed the appellant company to pay
lump sum amount calculated at 85
days salary inclusive of all allowances for the number
of years each complainant had actually worked
irrespective of the days a complainant may have put
in a year and the calculation would be made on the
basis of work during a calendar year and that the
calendar year in which a complainant may not have
worked at all would be kept out of consideration
while calculating the amount. It was stated that in
1
 (2004) 9 SCC 488
9Page 10
calculating the salary it shall be at the rate of
Rs.8000/- p.m. subject to the condition that if on the
date of termination, the salary of any particular
complainant was more, then the calculation would be
made on the basis of actual last drawn salary and the
calculation in the above manner would be made for
the period upto the date of termination in 1997 and
for the period after termination till date of the
judgment, the basis of calculation would be lump
sum three years of service on the aforesaid basis,
viz., 85 days for each year, i.e., 255 days. As far as
17 complainants in complaint ULP No. 79 of 2003
were concerned, the Industrial Court directed that
the compensation amount would be adjusted in the
salary paid to them.
5. Being aggrieved by the aforesaid order of the
Industrial Court, the management preferred a batch
of writ petitions. Before the writ court, it was
contended that the Industrial Court has totally erred
by coming to hold that the employer had indulged in
unfair labour practice; that the workmen in their
10Page 11
individual capacity could not have been allowed to
prosecute the complaint after the recognized union
came into existence in the year 1999; that the rise in
production was not synonymous with the availability
of work; that the increased production was achieved
with the help of permanent employees of the
company and whenever situation arose for meeting
the target, the employees were engaged for few
months on the basis of a settlement entered between
the employer and the Union; that once the Industrial
Court had expressed the opinion that the factum of
rotational system had not been established by
cogent evidence, a finding could not have been
returned pertaining to unfair labour practice under
item 6 of Schedule IV of the 1971 Act; that the
reliance on the decision in Bhojane Gopinath D.
(supra) was neither correct nor advisable as the said
decision was restricted to its factual matrix; that
there was no material on record to show that the
employer had any intention to deprive the employees
the benefits of permanency; that no independent
11Page 12
evidence was adduced on behalf of the workmen but
a conclusion had been arrived at by the Industrial
Court on the base and foundation of the evidence
recorded in complaint ULP No. 192 of 1997 which was
absolutely impermissible; and that the Industrial
Court failed to appreciate the evidence of Mr.
Suryavanshi in proper perspective and had gone
absolutely transient on the concept of res judicata
and res integra which were untenable.
6. On behalf of the respondent-employees, reliance was
placed on the previous pronouncement of this Court,
the evidence brought on record and the defensibility
of the analysis made by the Industrial Court.
7. The learned Single Judge referred to the decision in
Bajaj Auto Ltd. v. R. P. Sawant and others2 and
the pronouncement in Bhojane Gopinath’s case
and opined that as this Court had considered the
same controversy, the lis required to be appreciated
in the backdrop of the analysis made therein. The
writ Court referred to paragraph 8 of the judgment
2
 (2004) 9 SCC 486
12Page 13
delivered by the Industrial Court wherein a specific
reference had been made to the fact that the parties
had consented to rely upon the evidence produced in
ULP complaint No. 192 of 1997 which came to be
considered by this Court. The learned Single Judge
scrutinised the reasoning ascribed by the Industrial
Court and noticed that there was ample proof that
the evidence in the earlier case had been adopted
and the only additional evidence that had been
brought on record was the evidence of one Mr.
Suryavanshi. The Writ Court observed that the
evidence adduced by Mr. Suryavanshi essentially
pertained to the changed circumstances from July,
2000 onwards and, therefore, the same was
inconsequential for the period prior to July 2000. It
took note of the fact that the year of filing of the ULP
complaints before the Industrial Court and decided
by Judgment dated 21.8.2004 ranged from 1997 to
2003 but the thrust of the grievance was completion
of 7 years of service from 1990 to 1997 and hence,
the deposition of Mr. Suryavanshi really did not make
13Page 14
any difference. In this backdrop, the learned Single
Judge expressed the view that the earlier evidence
being adopted by the parties by consensus deserved
to be read as evidence in fresh cases and, therefore,
the Industrial Court was absolutely justified to look
into that evidence and in resting its finding on the
same. Thereafter, commenting on the finding of the
Industrial Court relating to the absence of rotational
practice, the Writ Court observed as follows:-
 “Absence of rotation recorded by it cannot
save the situation for the petitioner as all
temporaries need to be treated as one
class. In earlier round, the Industrial Court
had directed the petitioner to prepare list
of all temporaries whether continuing in
service or out of it & to provide work to
them as per seniority. This was as per the
mandate of the standing orders. Petitioner
did not produce any such list. In view of
earlier findings & directions, it was not
necessary for workers/complaints to again
disclose names of any juniors who got
work prior to them. The burden was upon
petitioner to prove that as per their
seniority turn of employees/complains
never came prior to the date on which they
actually got the work. Petitioner Company
conveniently destroyed those documents
& did not examine any witness having
competence to depose for period from
1990 to 1997.
14Page 15
Industrial Court therefore rightly accepted
earlier finding of unfair labour practice
under Item 6 of Sch. IV and proceeded to
grant relief of compensation to
complainants before it. There is no
jurisdictional error or perversity on it part.”
Being of the aforesaid view, the order passed by the
Industrial Court was concurred with and resultantly, the
writ petitions were dismissed.
8. In intra-Court appeal, the Division Bench adverted to
the factual score and addressed to the rivalised
submissions of the parties and opined that the
engagement of large number of temporary
employees by the company during the relevant
period was certainly a pertinent circumstance for
deciding the issue of unfair labour practice under
Item 6 of Schedule IV of the 1971 Act. It took note
of the fact that there was circumstance to show that
the company had admitted that the rotational system
was in vogue during the said period. The plea of
fluctuation of demand to meet the target was not
accepted by the Division Bench. Further, analyzing
the evidence of Mr. More, Operational Manager and
15Page 16
Mr. Tripathi, Vice-President of the company and Mr.
Malshe, General Manager, it came to hold thus:-
“The aforesaid evidence and
circumstances are sufficient to infer that
there was sufficient work with the
company, the production was increasing,
there was the demand to the vehicles of
the company in the market and due to
these circumstances, the temporary
employees were appointed during all those
years. On the basis of this evidence final
decision was given by the Court in the
previous proceedings that unfair labour
practice under item No. 6 is proved against
the company. The present complainants,
respondents were working during the same
period and they were also appointed in
similar manner. In view of these
circumstances, no other inference is
possible. The evidence and circumstances
also show that the documentary evidence
of concerned Departments was not
produced by the company by giving
excuse that such record (of manpower
recruitment analysis, etc.) of pre – 1997
was destroyed. It is surprising that when
in the year 1997 itself thousands of the
complaints were filed in the Industrial
Court, the company destroyed this record.
In the pleadings no such defence was
taken by the company. In view of these
circumstances also, adverse inference
needs to be drawn against the company.”
Be it noted, the Bench also opined that the evidence
of Mr. Suryavanshi did not make any difference. Being of
16Page 17
this view, it declined to interfere with the order of the
learned Single Judge and that of the Industrial Court.
9. We have heard Mr. J.P. Cama, learned senior counsel
for the appellants-management, Mr. Atul B. Dakh,
learned counsel for the respondents, and Mr. Uday B.
Dube, learned counsel for the interveners.
10. Learned senior counsel appearing for the appellant
has submitted that when the Industrial Court has
recorded a categorical finding that the rotational
pattern was not adopted by the management
inasmuch as no other workman was employed in
place of the complainant, the concept of unfair labour
practice would not be attracted. It is urged by him
there was no intention of the management to deprive
the workers of their permanency and when such a
finding had been returned by the Industrial Court, the
ultimate conclusion by the said Court and the High
Court that there was unfair labour practice is
unsustainable. It is put forth by him that the
Industrial Court erroneously relied on the evidence
adduced in the earlier case and further flawed in its
17Page 18
analysis by holding that similar evidence could not be
viewed differently when he himself was of the view
that no unfair labour practice was adopted by the
management. It is canvassed by Mr. Cama that in
the absence of any mala fide object to deprive the
workmen the benefit of permanency, it is ex facie
unjustified on the part of the Industrial Court and the
High Court to record a conclusion that the company
was involved in unfair labour practice. It is his
further submission that the High Court, while
exercising the writ jurisdiction, could not have
evaluated the evidence and drawn inferences to
justify the order passed by the Industrial Court which
is replete with inconsistent findings and based on
faulty understanding of the principles of res judicata
and res integra.
11. Mr. Dakh and Mr. Dube, in oppugnation, have
submitted that when the evidence adduced in the
earlier case was treated to be the evidence in the
present batch of cases, it is inapposite on the part of
the management to contend that the same could not
18Page 19
have been looked into. It is urged by them that the
Industrial Court has rightly observed that on similar
evidence, a different conclusion was not possible and
correctly adhered to the decision in Bhojane
Gopinath (supra) and the view expressed by it and
concurrence of the said finding of the Industrial Court
by the High Court cannot be found fault with.
12. First, we shall advert to the issue whether the
evidence adduced in ULP No. 192 of 1997 could have
been taken into consideration. What should have
been done in the ordinary course of things need not
be dwelled upon. Mr. Cama, learned senior counsel,
would contend that every individual workman was
obliged under law to adduce evidence to establish his
claim. The said submission, on a first blush, looks
quite attractive, and rightly so, but on dwelling into
the proceedings before the Industrial Court, the
focused argument on that score dwells into
insignificance. We are compelled to say so inasmuch
as the Industrial Court, in paragraph 8 of its decision,
has recorded that the parties relied on the evidence
19Page 20
produced in the earlier case. Before the learned
Single Judge, a contention was advanced as stated
earlier that none of the workmen entered witness box
before the Industrial Court to lead any evidence and
the said submission was controverted by the
workmen that the parties with open eyes chose to
adopt earlier evidence. The learned Single Judge,
upon perusal of the judgment passed by the
Industrial Court, has recorded its concurrence by
stating that the verdict of the Industrial Court
expressly made reference to the fact that the parties
chose to rely upon the evidence produced in ULP
Complaint No. 192 of 1997 and the said finding is
neither shown to be erroneous nor perverse. It
appears that the same aspect has gone unassailed
before the Division Bench. On a perusal of both the
decisions, we are of the considered opinion that the
evidence in the earlier case was adopted and
accepted by all parties and has to be read as
evidence in this case and, hence, it cannot be
brushed aside. Even if the contention of Mr. Cama,
20Page 21
learned senior counsel, is pressed to its ultimate
conclusion, it might, in certain cases, be an
irregularity but cannot create a dent in the
justifiability of the conclusion more so when the
controversy related to the same period, but the only
difference was that though some of the workmen
approached the Industrial Court earlier, yet they
chose not to proceed with the case and some
approached at a later stage and only proceeded after
the judgment was delivered by this Court in Bhojane
Gopinath (supra). Be that as it may, the said aspect
cannot be magnified to such an extent that nonadducing of evidence by each workman would make
the order illegal on that score. Thus, the submission,
assiduously canvassed by Mr. Cama, does not
deserve acceptance and, accordingly, we repel the
same.
13. The next plank of submission relates to the finding
recorded by the Industrial Court relating to the
absence of sufficient evidence to come to a
conclusion that rotational practice had been adopted
21Page 22
by the company. As is evincible, the Industrial Court
has observed that even from the seniority list
produced in complaint ULP No. 192 of 1997, it could
not be pointed out that a particular workman was
disengaged on earlier date and the workman who
was disengaged five months to eighteen months
prior was engaged in his place for the same work to
have the rotation. We have already noted how the
learned single Judge and the Division Bench have
commented on the said aspect. In the earlier round
of litigation, it relied on the same period while
dealing with the rotational employment and other
findings and recorded its view as under: -
“Learned counsel appearing on behalf of
the appellant Company made a vain
attempt to challenge the finding recorded
by the Industrial Court to the effect that
the workmen succeeded in providing that
the appellant Company had employed
unfair labour practice in its establishment
in relation to the matters enumerated in
Item 6 of Schedule IV of the 1971 Act. We
have been taken through the award of the
Industrial Court in extensor from which it
appears that the court recorded the said
finding after threadbare discussion of
evidence adduced on behalf of the parties
and there being no infirmity therein, the
High Court was quite justified in not
22Page 23
interfering with the same, accordingly, it is
not possible for this Court to disturb the
same in view of the fact that the finding is
a pure finding of fact and no interference
therewith is called for.”
14. After so stating, this Court addressed to the
submission about the view expressed by the High
Court in affirming the finding of the Industrial Court
that the appellant-company had indulged in unfair
labour practice as enumerated in Item No. 9 of the
Schedule IV of the 1971 Act and, eventually, came to
hold that it cannot be said that the company, in any
manner, employed unfair labour practice under Item
9 and, therefore, the High Court was not correct in
affirming the finding of the Industrial Court in that
regard.
15. Thus, it appears that the adoption of unfair labour
practice in the establishment in relation to matters
enumerated in Item No. 6 of Schedule IV was
accepted. In this context, we may usefully refer to
Item No. 6 of Schedule IV of the 1971 Act which
reads as follows: -
23Page 24
“6. To employ employees as “badlis”,
casuals or temporaries and to continue
them as such for years, with the object of
depriving them of the status and privileges
of permanent employees.”
16. The conclusion arrived at by the Industrial Court on
the basis of the inferences drawn from the material
on record which have been given the stamp of
approval by the High Court was accepted by this
Court and it needs no special emphasis that the said
acceptation was on the foundation of the evidence
which was considered by the Industrial Court. The
question that emerges for consideration is whether a
different conclusion should be recorded relating to
the same period on the basis of the same evidence.
As is perceptible, though the Industrial Court in its
decision held that on the basis of the earlier evidence
it could not be established that a particular workman
was disengaged on earlier date and a workman who
was engaged earlier was brought in and, hence,
there was rotation of employees, yet at a later stage,
the said court has categorically held that the
employees had continued for years but were not
granted the status and privilege of permanency at
24Page 25
the relevant point of time. The learned single Judge,
while scrutinizing the said finding, has opined that
the Industrial Court had rightly accepted the earlier
finding of unfair labour practice and proceeded to
grant relief and such a view, as quoted hereinabove,
would show that it was based on the material already
on record and further reflect the conduct of the
company in not producing the list of all temporary
workmen continuing in service or out of it and in
taking the plea that it had destroyed the records.
The Division Bench has expressed the view that in
respect of the complainants working during the
period who were appointed in similar manner, the
inference has been correctly drawn by the Industrial
Court. The High Court, as is evident, felt that the
evidence of Mr. Suryavanshi pertained to the future
period and should not be made use of for the earlier
period.
17. On a scrutiny of the evidence brought on record, we
find that the analysis made by the Industrial Court as
well as by the High Court is absolutely defensible and
25Page 26
cannot be flawed, for the said witness has really
deposed with regard to the changed circumstances.
This being the position, in our considered opinion, the
stray observation by the Industrial Court regarding
the factum of rotational practice was not correct
more so when such a finding was earlier recorded
and travelled to this Court for being tested and was
accepted. We may hasten to clarify that the ultimate
conclusion in this regard by the Industrial Court is
correct but the said observation, we are constrained
to say, was absolutely unwarranted. Hence, the
irresistible and inescapable conclusion is that the
complainants have proved that the company had
engaged itself in unfair labour practice as far as Item
No. 6 of Schedule IV of the 1971 Act is concerned.
We may hasten to add that the submission of Mr.
Cama, learned senior counsel is that there was no
mala fide intention and the said mala fide intention is
sine qua non to arrive at a conclusion that there was
unfair labour practice. He has also laid emphasis on
the words used “with the object” which find place in
26Page 27
Item No. 6 of Schedule IV. We need not labour hard
on the said score as on earlier occasion, such a
finding was returned on the basis of the material on
record and this Court had accepted the said
conclusion to be impeccable. Ergo, the assail on the
said score has to be repelled and we so do.
18. It is evincible from the judgments of the Industrial
Court as well as the High Court that similar benefit
has been extended that has been given in the case of
Bhojane Gopinath (supra). It has been done on the
basis of the conclusion arrived at relating to unfair
labour practice and the consequent benefit given by
this Court. Unfair labour practices have been dealt
with in Chapter VI of the 1971 Act. Section 26
stipulates that unfair labour practices, unless the
context requires otherwise, would mean any of the
practices listed in Schedule II, III and IV of the 1971
Act. Section 27 mandates that no employer or union
and no employee shall engage in any unfair labour
practice. Section 28 provides the procedure for
dealing with the complaints relating to unfair labour
27Page 28
practices and Section 29 stipulates who are the
parties and on whom the order of the court shall be
binding. Unfair labour practice, in its very essence, is
contrary to just and fair dealing by both the employer
and the employee. Peace in industrial atmosphere
requires the parties to behave and conduct in a just
and fair manner. The grievance of the aggrieved
workmen has to be adjudicated under the necessary
enactments on the bedrock of fairness and just
needs. It is to be borne in mind that the primary
obligation and duty of an industrial forum is to see
that peace is sustained between the management
and the employees in an industry. An unfair action
by the employer against an individual worker has its
effect and impact. It could disturb peace and
harmony in an industrial sphere and similarly, when a
workman behaves contrary to the code of conduct
and accepted norms, unhealthy tribulation comes
into existence. That is why the enactments provide a
mechanism for arriving at a settlement to see that
the growth and progress of industry is not scuttled by
28Page 29
taking recourse to such methods which will
eventually affect the national growth. This being the
position behind the philosophy which has to be kept
in mind by the employer and the employee, all
efforts are to be made to avoid any kind of unfair
labour practice. As the finding has been returned
that there has been violation of item No. 6 of
Schedule IV of the 1971 Act, the question that arises
as a fall-out is whether the Industrial Court has
extended the apposite benefit or does it require any
modification. In Bhojane Gopinath (supra), this
Court had held that the High Court should not have
directed reinstatement of the workmen with 50%
back wages, but the situation warranted for grant of
payment of reasonable amount of compensation in
terms of Section 30(1)(b) of the 1971 Act. While so
holding, this Court referred to the submission of the
learned counsel for the parties in Civil Appeal No.
5003 of 2002 wherein the appellant-company and
the workmen had settled the controversy and the
entire compensation had been paid to the workmen
29Page 30
as was paid to the other workmen in terms of the
order dated 11.9.2003 passed in Civil Appeal No.
5002 of 2002 and a prayer was made to dispose of
the appeal in terms of the directions enumerated in
the said order. Be it noted, in the case of R.P.
Sawant (supra), while dealing with Civil Appeal No.
5002 of 2002, this Court recorded as follows: -
“5. The matter has been settled between
the parties. It is agreed that the order of
reinstatement in favour of the workmen be
set aside and instead the appellant
management would pay to each of the
workmen a lump sum amount calculated at
65 days' salary, inclusive of all allowances,
for the number of years each workman has
actually worked irrespective of the days a
workman may have put in in a year. It is
further agreed that the calculation would
be made on the basis of work during a
calendar year and that the calendar year
in which a workman may not have worked
at all would be kept out of consideration
while calculating the amount. While
calculating the salary for each workman
the minimum salary that would be taken
into account would be Rs.8000 per month
subject to the condition that if on the date
of termination the salary of any particular
workman is more, then the calculation
would be on the actual last-drawn salary.
The calculation in the above manner would
be made for the period up to the date of
termination in the year 1997-98. For the
period after termination till date, the basis
of calculation would be lump sum three
30Page 31
years of service on the basis aforesaid,
namely, 65 days for each year i.e. salary
for 195 days. The payment so calculated
and made would be in full and final
payment of all claims of the workmen and
the workmen will have no further claim
from the Company. The appeal is disposed
of in the above terms agreed by learned
counsel for the parties. The impugned
judgment would not be treated as a
precedent either on fact or on law.”
19. In Bhojane Gopinath (supra), after referring to the
said order, this Court took note of the fact that in
Civil Appeal No. 5003 of 2002, out of 1197
respondents, 1006 had compromised the matter in
terms of the order in Civil Appeal No. 5002 of 2002.
As far as the remaining workmen were concerned, a
view was expressed that it would be just and
expedient that they are paid a reasonable amount of
compensation under Section 30 of the 1971 Act.
Therefore, the Court proceeded to direct as follows: -
“Each of the remaining workmen shall be
paid a lump sum amount calculated at 85
days’ salary, inclusive of all allowances, for
the number of years each workman had
actually worked irrespective of the days a
workman may have put in in a year. The
calculation would be made on the basis of
work during a calendar year and that the
calendar year in which a workman may not
31Page 32
have worked at all would be kept out of
consideration while calculating the
amount. In calculating the salary for each
workman, the minimum salary that would
be taken into account would be Rs.8000
per month subject to the condition that if
on the date of termination, the salary of
any particular workman was more, then
the calculation would be made on the
actual last-drawn salary. The calculation in
the abovesaid manner would be made for
the period up to the date of termination
i.e. on 9-1-2001. For the period after
termination till date, the basis of
calculation would be lump sum two years
of service on the basis aforesaid, namely,
85 days for each calendar year i.e. salary
for 170 days.”
20. Section 30 of the 1971 Act deals with the powers of
industrial and labour courts. Section 30(1)(b) reads
as follows: -
“(1) Where a Court decides that any
person named in the complaint has
engaged in, or is engaging in, any unfair
labour practice, it may in its order –
(b) direct all such persons to cease and
desist from such unfair labour
practice, and take such affirmative
action (including payment of
reasonable compensation to the
employee or employees affected by
the unfair labour practice, or
reinstatement of the employee or
employees with or without back
wages, or the payment of reasonable
compensation), as may in the opinion
32Page 33
of the Court be necessary to
effectuate the policy of the Act;”
On the basis of the aforesaid provision, reasonable
compensation was granted by evolving a rational formula.
We may hasten to add that what would be reasonable
compensation would depend on the facts and
circumstances of the case and no strait-jacket formula can
be evolved or laid down.
21. In the case at hand, as is noticeable from the
judgment of the Industrial Court, the complainants
were silent spectators when the earlier group of
cases was tried and the matter travelled to this
Court. It is also observed that there were certain
cases which were filed at a later stage. The Division
Bench also considered that the filing of the
complaints range from 1997-2003. Regard being had
to the totality of circumstances, we are inclined to
modify the amount of reasonable compensation
which has been granted by the Industrial Court.
The
modified order would read as under: -
The appellant is directed to pay lump sum amount
calculated at 65 days’ salary, inclusive of all allowances
33Page 34
for the number of year each complainant has actually
worked irrespective of the days a complainant may have
put in in a year. 
The calculation would be made on the
basis of work during a calendar year and that the calendar
year in which a complainant may not have worked at all
would be kept out of consideration while calculating the
amount. 
In calculating the salary that would be taken into
account would be Rs.8,000/- p.m. subject to condition that
if on the date of termination, the salary of any particular
complainant was more, than the calculation would be
made on the actual last drawn salary. 
The calculation in
the above manner would be made for the period up to the
date of terminations in 1997. For the period after
termination till date of this judgment, the basis of
calculation would be lump sum two years of service on
the basis aforesaid, viz. 65 days for each year i.e. 130
days. 
Although we have modified the order, yet keeping in
view the fact that the respondent-workmen had already
withdrawn the amount in pursuance of the order dated 06-
02-2012 when leave was granted, no steps shall be taken
34Page 35
by the appellant-company to recover the differential sum
from the respondents.
22. With the aforesaid modifications in the order passed
by the Industrial Court that has been affirmed by the
learned single Judge and concurred with by the
Division Bench of the High Court, the appeals and
Interlocutory Application Nos. 10-11 of 2013 for
intervention and vacation of the order of stay are
disposed of. In the peculiar facts and circumstances
of the case, there shall be no order as to costs.
……………………………….J.
[K. S. Radhakrishnan]
….………………………….J.
[Dipak Misra]
New Delhi;
April 04, 2013.
35

Whether accused are liable to be convicted under sec. 304 part -I or 302 of I.P.C.= Learned trial Judge has not accepted the allegation of dragging of the deceased solely on the basis that no injuries were caused on the wrist.- It is worthy to note that the dead body was found at a distance of 10 kms., but it is not necessary to establish that the accused had dragged the deceased for about 10 kms.- It is well settled in law that the evidence of the hostile witness can be relied upon by the prosecution as well as by the defence. = It is settled legal proposition that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent that their version is found to be dependable on a careful scrutiny The singular purpose of referring to the testimonies of these two witnesses is that the incident did occur and the accused had dashed the vehicle against the cycle. ;whether the offence is ‘murder’ or ‘culpable homicide not amounting to murder’, on the facts of a case, it will be convenient for it to approach the problem in three stages. The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another. Proof of such causal connection between the act of the accused and the death, leads to the second stage for considering whether that act of the accused amounts to “culpable homicide” as defined in Section 299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of Section 300, Penal Code, is reached. This is the stage at which the court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four clauses of the definition of ‘murder’ contained in Section 300. If the answer to this question is in the negative the offence would be ‘culpable homicide not amounting to murder’, punishable under the first or the second part of Section 304, depending, respectively, on whether the second or the third clause of Section 299 is applicable. If the question is found in the positive, but the case comes within any of the exceptions enumerated in Section 300, the offence would still be ‘culpable homicide not amounting to murder’, punishable under the first part of Section 304, Penal Code.

Page 1
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS.532-533 OF 2013
(Arising out of S.L.P. (Crl.) Nos. 5099-5100 of 2012)
Khachar Dipu @ Dilipbhai Nakubhai .. Appellant
Versus
State of Gujarat ... Respondent
J U D G M E N T
Dipak Misra, J.
Leave granted.
2. In these appeals, the appellant, original accused No.
1, has called in question the legal propriety of the
judgment of conviction and order of sentence passed
by the High Court of Gujarat in Criminal Appeal No.
950 of 2009 whereby the
Division Bench has allowed
the appeal of the State and converted the conviction
under Section 304 Part-I of the Indian Penal Code (for
short ‘IPC’) recorded by the learned trial Judge to that
Page 2
of an offence punishable under Section 302 of IPC
and sentenced him to undergo life imprisonment and
further the defensibility of the decision of dismissal of
Criminal Appeal No. 1075 of 2009 wherein the
appellant had assailed the judgment and conviction
and order of sentence dated 5.3.2009 passed by the
learned Additional Sessions Judge, Bhavnagar in
Sessions case No. 166 of 1998.
3. The factual score which led to the trial of the
appellant along with two others is that three days
prior to the date of occurrence, i.e., 21.5.1998,
accused Nos. 1 and 2, namely, Khachar Dipu alias
Dilipbhai Nakubhai and Vahtubhai Nakubhai, had a
dispute regarding dumping of manure with the
brother of the complainant and there were
altercations which led to an inimical relationship
between the parties.
On the date of occurrence,
when the deceased Shambhubhai, the brother of the
complainant, was going to his field by cycle about
9.00 p.m. on 20.05.1998, the accused No. 1, with the
intention of extinguishing the life spark of the
2Page 3
deceased, dashed the motor vehicle No. GJ-7-U-2385
from behind and when the deceased was thrown off
from his cycle, the accused No. 1 tied him behind the
motor vehicle and dragged him about 10 kilometers
and threw the dead body on the Gadhada Road and
destroyed the evidence. 
The other two accused
persons abetted with the common intention to assist
accused No. 1.
On an FIR being lodged, the criminal
law was set in motion and after investigation, the
accused persons were arrested and, eventually, a
charge sheet for offences under Sections 302/201
read with Section 34 of the IPC was laid before the
learned Magistrate who, in turn, committed the
matter to the Court of Session. The accused persons
denied the charges and claimed to be tried.
4. The prosecution, in order to establish its case,
examined 24 witnesses and exhibited 31 documents.
The defence chose not to adduce any evidence.
5. The learned Sessions Judge, on analysis of the
evidence, came to hold that the accused No. 1 was
guilty of the offence punishable under Section 304
3Page 4
Part-I of IPC and, accordingly, sentenced him to
undergo rigorous imprisonment for a period of five
years and to pay a fine of Rs.500/- and, in default, to
suffer further simple imprisonment of one month. As
far as the other accused persons are concerned, they
stood acquitted of the charges.
6. Being grieved by the aforesaid judgment, the
convicted persons and the State of Gujarat preferred
Criminal Appeal Nos. 950 of 2009 and 1075 of 2009
respectively. The High Court took note of the earlier
quarrel that had taken place between the parties, the
injuries on the dead body, the evidence of the
prosecution witnesses, the material brought on
record relating to the incident, and accepting the fact
that the motor vehicle had dashed against the cycle
ridden by the deceased and further analyzing the
reasoning ascribed by the learned trial Judge, opined
that the learned Sessions Judge had flawed in
recording the conviction under Section 304 Part-I of
IPC and not under Section 302 of IPC. The High Court
opined that it was not a case of accident inasmuch as
4Page 5
the injuries on the whole body had effectively
crushed the entire body and it could not have
happened if the motor vehicle had only dashed
against cycle from behind. The High Court further
opined that had it been a case of negligence in
driving, the accused would not have lifted the body
of the deceased after dashing his vehicle against the
cycle of the deceased. The Division Bench further
proceeded to state that the muscle tissues found
from the bumper of the motor vehicle coupled with
the condition of the body of the deceased and the
fact that it was left on the road with the motor
vehicle at a distance of about 10 to 15 kms away
from where it had dashed gave credence to the
prosecution version that it was not a case of mere
dashing of the motor vehicle with the cycle and the
findings of the learned Sessions Judge pertaining to
absence of pre-meditation to cause death was totally
against normal prudence, and therefore, the findings
recorded by the learned Sessions Judge were
perverse and the intention to cause death was
5Page 6
proved by material evidence, oral as well as
documentary. Considering the totality of facts and
circumstances, the Division Bench concluded that the
learned Sessions Judge was in error in holding that A-
1 was guilty of offence under Section 304 Part-I of IPC
and not under Section 302 of IPC.
7. Be it noted, the High Court chose not to interfere with
the acquittal of the accused A-2 and A-3 as the
allegations were not established and, accordingly,
allowed the appeal preferred by the State in part. As
far as the appeal preferred by the accused-appellant
A-1 is concerned, it was dismissed.
8. We have heard Mr. Harshit S. Tolia, learned counsel
for the appellant, and Ms. Jesal, learned counsel for
the respondent in both the appeals.
9. The issues that arise for consideration in these
appeals are whether the accused-appellant is entitled
to a judgment of complete acquittal or the conviction
and sentence as recorded by the learned trial Judge
is absolutely justified in the obtaining factual matrix
6Page 7
which did not warrant interference by the High Court
while entertaining the appeal by the State by
converting the conviction under Section 304 Part-I of
the IPC to Section 302 of the IPC and sentencing
thereunder. To appreciate the said issues, it is
necessary to refer to the post mortem report which
would show the injuries on the deceased. On a
perusal of the same, it appears that there were
injuries on the vital parts of the body, the face was
crushed and further there were marks of dragging
which were found on the upper part of the body and
on the back, and the private part was crushed. The
High Court, in its judgment, has enumerated the
injuries in seriatim which we reproduce: -
 “1. Destruction of brain and skull.
2. Destruction of face and its bone
(crushing)
3. Crushing of all ribs on Rt. Side and some
ribs on left side.
4. CLW over left leg just below knee, above
ankle joint.
5. Abrasion all over front part of chest,
abdomen, leg and hand, liner mark with
contaminated of road metal.
7Page 8
6. Fracture of all ribs with sternum
7. Fracture on Rt. Femur bone at lower
end.
8. Fracture of numerous at it’s upper part.
9. Abrasion over heel of Rt. Leg up to
bone.
10. Abrasion over the finger of both hand.
11. Abrasion on front of abdomen at lateral
side and back of abdomen. All part.
12. Abrasion all over thoracial part back
side.
13. Abrasion over knee joint and middle side
of Rt. Leg upto muscle deep.
14. The skull was fractured and crushed and
the portion of brain was hanging out. It
was also crushed. The road metal was
also found therefrom. Lungs, heart,
brain, all vital parts were crushed.
10. Dr. Kanjibhai, PW-16, who conducted the autopsy on
the dead body, has opined that the injuries were
possible in vehicular accident or if the vehicle is run
over the body. He has deposed that even after
death, if the body was dragged or the vehicle runs
over the body, the injuries could have been caused.
The cross-examination was focused to elicit from this
witness about the absence of marks on the wrist part
of the deceased to demolish the version of the
8Page 9
prosecution to the extent that the deceased was tied
behind the vehicle and was dragged on the road. In
fact, the said witness has categorically stated that
there were marks of dragging on the body of the
deceased. PW-15, Kishorebhai Chhaganal Naina,
Scientific Officer, has deposed that on the rear part
of the bumper of the vehicle, there were skin pieces
stuck and blood masses were seen. On an
examination of the cycle, he has found that the
motor vehicle had collided with the cycle and
thereafter, the orange colour of the front bumper of
the motor vehicle was seen stuck on the back of the
fan. He had taken into custody 7 articles, namely,
two pieces of blood stained tar cotton thread, clothes
of the deceased, skin pieces from the motor vehicle
No. GJ-7-U-2385, cotton thread rubbed on the rear of
the motor vehicle, the blood stained cotton thread, a
coloured iron piece from the front of the motor
vehicle near the bumper, and rear part of the cycle
on which the orange colour of the motor vehicle was
stuck. He had given suggestion for sending the same
9Page 10
to the Forensic Science laboratory at Junagarh. The
items suggested along with several other items were
sent by the Investigating Officer to the Forensic
Science Laboratory and the said report was exhibited
during the trial as Exhibit-44. It is revealed from the
said report that the skin that was sent for
examination was human skin. As regards the cotton
thread, the report mentioned that blood was found.
The scientific report of FSL confirms that the back
side of the cycle had a colour mark of the front side
of the motor vehicle. Thus, dashing of the cycle by
the motor vehicle in question is established by this
scientific evidence also. We have referred to the
same only to highlight as there is sufficient proof that
after the accident, there was dragging of the
deceased by the vehicle in question. Learned trial
Judge has not accepted the allegation of dragging of
the deceased solely on the basis that no injuries were
caused on the wrist. He has totally ignored the other
evidence collected by the Investigating Officer on the
site, the opinion of the doctor that the injuries were
1Page 11
caused by the accident and dragging of the body and
the F.S.L. report. In our considered opinion, there is
definite material on record to come to the conclusion
that the body was dragged but it cannot be said with
certainty about the distance. It is worthy to note
that the dead body was found at a distance of 10
kms., but it is not necessary to establish that the
accused had dragged the deceased for about 10 kms.
suffice it to say that there is evidence to establish
that the body was dragged for a considerable
distance. Dr. Kanjibhai, PW-16, who conducted the
post-mortem in his evidence, has categorically stated
that on the body there were marks of dragging which
was on the front part of the body and on the back.
The evidence in this regard has totally gone
unchallenged. The finding of the learned trial Judge
is solely based on the fact that there was no mark
which would indicate that the wrists were tied. It is
useful to note here that the accused had not taken
the plea that there was an accident. On the contrary,
1Page 12
he has taken the plea of complete denial of the
occurrence.
11. At this juncture, we may scrutinize the oral evidence
on record. Apart from the testimony of Bhimjibhai,
PW-1, there is other evidence on record which can be
taken aid of.
It is noticeable that some of the
witnesses had turned hostile during trial. 
The High
Court has referred to the depositions of two
witnesses, namely, Shantibhai Lakhmanbhai, PW-20,
and Gobarbhai Bavubhai, PW-21.
 It is well settled in
law that the evidence of the hostile witness can be
relied upon by the prosecution as well as by the
defence.
In Rameshbhai Mohanbhai Koli and
Others v. State of Gujarat1
, the said principle has
been reiterated stating that:-
“16. It is settled legal proposition that the
evidence of a prosecution witness cannot
be rejected in toto merely because the
prosecution chose to treat him as hostile
and cross-examined him. The evidence of
such witnesses cannot be treated as
effaced or washed off the record
altogether but the same can be accepted
to the extent that their version is found to
be dependable on a careful scrutiny
1
 (2011) 11 SCC 111
1Page 13
thereof. (Vide Bhagwan Singh v. State of
Haryana2
, Rabindra Kumar Dey v. State of
Orissa3
, Syad Akbar v. State of Karnataka4
and Khujji v. State of M.P.5
)
17. In State of U.P. v. Ramesh Prasad
Misra6
 this Court held that evidence of a
hostile witness would not be totally
rejected if spoken in favour of the
prosecution or the accused but required to
be subjected to close scrutiny and that
portion of the evidence which is consistent
with the case of the prosecution or defence
can be relied upon. A similar view has
been reiterated by this Court in Balu
Sonba Shinde v. State of Maharashtra7
,
Gagan Kanojia v. State of Punjab8
, Radha
Mohan Singh v. State of U.P.9
, Sarvesh
Narain Shukla v. Daroga Singh10 and Subbu
Singh v. State11.”
12. On a careful scrutiny of the testimonies of the said
two witnesses, it is seen that both of them have
categorically deposed that the motor vehicle involved
in the accident had dashed against the cycle of the
deceased as a result of which he had fallen down. It
is interesting to note that in cross-examination by the
accused, they have not paved the path of variance in
2
 (1976) 1 SCC 389
3
 (1976) 4 SCC 233
4
 (1980) 1 SCC 30
5
 (1991) 3 SCC 627
6
 (1996) 10 SCC 360
7
 ((2002) 7 SCC 543
8
 (2006) 13 SCC 516
9
 (2006) 2 SCC 450
10 (2007) 13 SCC 360
11 (2009) 6 SCC 462
1Page 14
this regard. In our opinion, their evidence support
the prosecution version that the motor vehicle had
dashed against the cycle. We may note with profit
that one of the witnesses has not identified the
accused in court but the other witness, PW-20,
Shantibhai Lakhmanbhai, has identified. That apart,
as far as the identification of the accused is
concerned, there is ample evidence on record to
support the same.
The singular purpose of referring
to the testimonies of these two witnesses is that the
incident did occur and the accused had dashed the
vehicle against the cycle. 
13. From the aforesaid evidence on record, certain
aspects became clear:- namely, (i) on the fateful
night at 9.00 p.m., the deceased was going on a
cycle, (ii) the motor vehicle bearing registration
number No. GJ-7-U-2385 belonging to the accused appellant dashed against the cycle, (iii) number of
injuries were sustained by the deceased, (iv) there
was dragging of the deceased after the accident
1Page 15
occurred, and (v) the accused was involved in the
commission of the crime.
14. The learned trial Judge had convicted the accused
under Section 304 Part I of IPC as there was no
previous deliberation or pre-meditation on the part of
the accused and there was no evidence that the dead
body was dragged upto 10 kms. 
The High Court, as
is noticeable, accepted the prosecution version of
murder, regard being had to the effective crushing of
the body intentionally and dragging of the same to
cause death.
15. One aspect that has to be seen is
whether the High
Court was justified in saying that there was intention.
Such a view has been expressed on the ground that
dashing of the motor vehicle and dragging was with
the intention to inflict such bodily injury that was
sufficient to cause death in the ordinary course of
nature. To put it differently, the High Court has
brought the case under Section 300 “thirdly”.
In this
context, we may refer with profit to the decision in
1Page 16
Virsa Singh v. State of Punjab12 wherein Vivian
Bose, J., speaking for a three-Judge Bench, laid down
what is required for the prosecution to prove to bring
the case under the said clause. It has been stated
therein that first, it must be established, quite
objectively, that a bodily injury is present; Secondly,
the nature of the injury must be proved and these
are purely objective investigations; thirdly, it must be
proved that there was an intention to inflict that
particular bodily injury, that is to say, that it was not
accidental or unintentional, or that some other kind
of injury was intended; and once these three
elements are proved to be present, the enquiry
proceeds further; and fourthly, it must be proved that
the injury of the type just described made up of the
three elements set out above is sufficient to cause
death in the ordinary course of nature. This part of
the enquiry is purely objective and inferential and
has nothing to do with the intention of the offender.
Thereafter, in that case, it has been stated as
follows:-
12 AIR 1958 SC 465
1Page 17
“Once these four elements are established
by the prosecution (and, of course, the
burden is on the prosecution throughout)
the offence is murder under Section 300
“thirdly”. It does not matter that there was
no intention to cause death. It does not
matter that there was no intention even to
cause an injury of a kind that is sufficient
to cause death in the ordinary course of
nature (not that there is any real
distinction between the two). It does not
even matter that there is no knowledge
that an act of that kind will be likely to
cause death. Once the intention to cause
the bodily injury actually found to be
present is proved, the rest of the enquiry is
purely objective and the only question is
whether, as a matter of purely objective
inference, the injury is sufficient in the
ordinary course of nature to cause death.
No one has a licence to run around
inflicting injuries that are sufficient to
cause death in the ordinary course of
nature and claim that they are not guilty of
murder. If they inflict injuries of that kind,
they must face the consequences; and
they can only escape if it can be shown, or
reasonably deduced, that the injury was
accidental or otherwise unintentional.”
16. In State of Andhra Pradesh v. Rayavarapu
Punnayya and Another13
, after referring to the rule
laid down in Virsa Singh’s case (supra) and
Rajwant v. State of kerala14
, the Court proceeded
to enunciate that whenever a court is confronted
with the question whether the offence is ‘murder’ or
13 (1976) 4 SCC 382
14 AIR 1966 SC 1874
1Page 18
‘culpable homicide not amounting to murder’, 
on the
facts of a case, it will be convenient for it to
approach the problem in three stages. The question
to be considered at the first stage would be, whether
the accused has done an act by doing which he has
caused the death of another. Proof of such causal
connection between the act of the accused and the
death, leads to the second stage for considering
whether that act of the accused amounts to
“culpable homicide” as defined in Section 299. If the
answer to this question is prima facie found in the
affirmative, the stage for considering the operation
of Section 300, Penal Code, is reached. This is the
stage at which the court should determine whether
the facts proved by the prosecution bring the case
within the ambit of any of the four clauses of the
definition of ‘murder’ contained in Section 300. If the
answer to this question is in the negative the offence
would be ‘culpable homicide not amounting to
murder’, punishable under the first or the second
part of Section 304, depending, respectively, on
1Page 19
whether the second or the third clause of Section
299 is applicable. If the question is found in the
positive, but the case comes within any of the
exceptions enumerated in Section 300, the offence
would still be ‘culpable homicide not amounting to
murder’, punishable under the first part of Section
304, Penal Code.
17. We may hasten to clarify that in the said case, the
two-Judge Bench observed that the aforestated
principles are only broad guidelines and not cast-iron
imperatives. In most cases, their observance would
facilitate the task of the court. However, adding a
word of caution, it observed that sometimes the facts
are so intertwined and the second and the third
stages so telescoped into each other that it may not
be convenient to give a separate treatment to the
matters involved in the second and third stages.
18. Recently, in Rampal Singh v. State of Uttar
Pradesh15
, after referring to the pronouncements in
Rayavarapu Punnayya (supra), Vineet Kumar
15 (2012) 8 SCC 289
1Page 20
Chauhan v. State of U.P.16, Ajit Singh v. State
of Punjab17
, and Mohinder Pal Jolly v. State of
Punjab18, the Court opined thus: -
“The evidence led by the parties with
reference to all these circumstances
greatly helps the court in coming to a final
conclusion as to under which penal
provision of the Code the accused is liable
to be punished. This can also be decided
from another point of view i.e. by applying
the “principle of exclusion”. This principle
could be applied while taking recourse to a
two-stage process of determination. Firstly,
the Court may record a preliminary finding
if the accused had committed an offence
punishable under the substantive
provisions of Section 302 of the Code, that
is, “culpable homicide amounting to
murder”. Then secondly, it may proceed to
examine if the case fell in any of the
Exceptions detailed in Section 300 of the
Code. This would doubly ensure that the
conclusion arrived at by the court is
correct on facts and sustainable in law. We
are stating such a proposition to indicate
that such a determination would better
serve the ends of criminal justice delivery.”
19. Regard being had to the aforesaid enunciation of law,
it is to be seen whether the opinion expressed by the
High Court is correct and justified. As has been
stated hereinbefore, the High Court has taken note of
16 (2007) 14 SCC 660
17 (2011) 9 SCC 462
18 (1979) 3 SCC 30
2Page 21
the injuries and the conduct of the accused persons
and opined that it is a brutal murder. At this
juncture, it is apt to note that the accused had not
taken the plea that there was an accident because of
bad light or due to the negligence of the deceased.
He has taken the plea of complete denial. Under
these circumstances, the evidence of the son of the
deceased, Himmatbhai Sambhubhai, PW-18, gains
significance. He has deposed that there was a
quarrel between the accused and the deceased
relating to dumping of garbage and his father was
threatened by the accused. The said evidence has
gone unchallenged. Such a quarrel or altercation has
its own triviality but it gets magnified when the
dashing of the vehicle is proven and the nature of
the injuries caused on the deceased is taken note of.
That apart, there is evidence that the body was
dragged. Thus, it can safely be concluded that the
intention to cause bodily injury is actually found to
have been proved and such injuries are sufficient in
the ordinary course of nature to cause death. When
2Page 22
such injuries are inflicted, it will be travesty of justice
to hold that it was an accident without the intention
to cause death. 
20. In view of the aforesaid premised reasons, we do not
find any flaw in the analysis made by the High Court
for reversing the conviction under Section 304 Part I
of IPC recorded by the learned trial Judge to that of
302 of IPC and, accordingly, we concur with the
same. The resultant effect of the same is dismissal
of both the appeals which we direct. 
 ……………………………….J.
[K. S. Radhakrishnan]
……………………………….J.
 [Dipak Misra]
New Delhi;
April 04, 2013
2