CUSTODY OF A CHILD - TO WHOM ? = Psychologist term it as 'The Parental Alienation Syndrome'[4]. It has at least two psychological destructive effects: (i) First, it puts the child squarely in the middle of a contest of loyalty, a contest which cannot possibly be won. The child is asked to choose who is the preferred parent. No matter whatever is the choice, the child is very likely to end up feeling painfully guilty and confused. This is because in the overwhelming majority of cases, what the child wants and needs is to continue a relationship with each parent, as independent as possible from their own conflicts. (ii) Second, the child is required to make a shift in assessing reality. One parent is presented as being totally to blame for all problems, and as someone who is devoid of any positive characteristics. Both of these assertions represent one parent's distortions of reality. The aforesaid discussion leads us to feel that continuous company of the mother with Saesha, for some time, is absolutely essential. It may also be underlying that the notion that a child's primary need is for the care and love of its mother, where she has been its primary care giving parent, is supported by a vast body of psychological literature. Empirical studies show that mother infant “bonding” begins at the child's birth and that infants as young as two months old frequently show signs of distress when the mother is replaced by a substitute caregiver. An infant typically responds preferentially to the sound of its mother's voice by four weeks, actively demands her presence and protests her absence by eight months, and within the first year has formed a profound and enduring attachment to her. Psychological theory hypothesizes that the mother is the center of an infant's small world, his psychological homebase, and that she “must continue to be so for some years to come.” Developmental psychologists believe that the quality and strength of this original bond largely determines the child's later capacity to fulfill her individual potential and to form attachments to other individuals and to the human community. No doubt, this presumption in favour of maternal custody as sound child welfare policy, is rebuttable and in a given case, it can be shown that father is better suited to have the custody of the child. Such an assessment, however, can be only after level playing field is granted to both the parents. That has not happened in the instant case so far. It is also to be emphasised that her mother is a teacher in a prestigious Kendriya Vidyala school. Saesha is herself a school going child at primary level. If Saesha is admitted in the same school where her mother is teaching, not only Saesha would be under full care and protection of the mother, she would also be in a position to get better education and better guidance of a mother who herself is a teacher.- No doubt, this presumption in favour of maternal custody as sound child welfare policy, is rebuttable and in a given case, it can be shown that father is better suited to have the custody of the child. Such an assessment, however, can be only after level playing field is granted to both the parents. We, thus, find that the factors in favour of respondent are weightier than those in favour of the appellant which have been noted above. It is a fit case where respondent deserves a chance to have the custody of child Saesha for the time being, i.e., at least for one year, and not merely visitation rights.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 3962 OF 2016


|VIVEK SINGH                                |.....APPELLANT(S)            |
|VERSUS                                     |                             |
|ROMANI SINGH                               |.....RESPONDENT(S)           |

                               J U D G M E N T


A.K. SIKRI, J.

      The appellant and the respondent tied matrimonial  chord  on  November
25, 2007 as per Hindu rights and  ceremonies.   The  appellant  is  an  army
officer posted in Meerut  and  the  respondent  is  a  teacher  in  Kendriya
Vidyala-3, INA Colony, New  Delhi.   This,  so-called  sacrosanct  alliance,
alluded the  couple,  inasmuch  as  soon  after  the  marriage,  matrimonial
discord surfaced, which has loosened the said knot. Both  the  parties  blam
each other for this sordid  state  of  affairs.   Over  a  period  of  time,
relationship between the parties has been ruined, which is unfortunate.   It
is more so, as they have not been able to move on in their respective  lives
as well.  But, what is more unfortunate is that  the  acrimony  between  the
two of them, because of which they are  living  separately  for  quite  some
time, life of their only daughter Saesha Singh,  who  was  born  from  their
wedlock on October 29, 2008, is becoming more and  more  miserable.  In  the
instant appeal, we are concerned with most delicate and  difficult  problem,
namely, who should be given the custody of Saesha Singh.

It was on August 04, 2010, when the fight  between  the  appellant  and  the
respondent  took  an  ugly  turn  forcing  the  respondent  to   leave   the
matrimonial house and the custody battle  started  from  that  date  itself,
when Saesha was not even two years of age.  While  leaving  the  matrimonial
house, though the respondent wanted to take the child along,  the  appellant
did not allow her to do so.  After making certain peaceful efforts  in  this
behalf, the respondent filed petition being GS No. 43 of 2010 under  Section
25 read with Sections 10 and  12  of  the  Guardians  and  Wards  Act,  1980
(hereinafter referred to as the 'Act') on August 26, 2010  for  the  custody
and appointment of the Guardian of the minor daughter, Saesha  Singh  before
the Principal Judge of the Family Court at Delhi at Dwarka, New Delhi.   She
stated in this petition that she had been  in  continuous  possession,  care
and protection of the child since her birth and the respondent had  no  love
and affection for the child. In his absence, when he is away for  duty,  his
Orderly looks after the girl child.  She also  alleged  that  the  appellant
leaves for his office at 8.30 a.m. and returns  back  late  in  the  evening
and, therefore, he is not in a position to look after  the  basic  needs  of
the child.  On the other hand, the respondent  had  been  devoting  all  her
time to the child after coming from the school and during her duties in  the
school, the child is  being  looked  after  by  her  parents  who  had  been
frequently visiting the matrimonial house.  She pleaded that for the  mental
well-being and proper upbringing of the child, her custody should  be  given
to the respondent, being her natural mother and she  be  also  appointed  as
her guardian.  The appellant herein contested the said  petition  by  filing
the written statement wherein he took the stand that the respondent was  not
in a position to look after the child as there is nobody to look  after  her
when the respondent goes for work.   He  also  mentioned  that  respondent's
parents are residing at NOIDA whereas she is working and  living  in  Delhi.
On the contrary,  it  is  the  appellant  who  had  provided  all  necessary
expenses for the maintenance of the child,  and  even  the  respondent.   He
even accused the respondent for invariably getting drunk on their visits  to
Army Officers Mess in the parties.  The trial court framed the  issue  which
touches upon the dispute that is  whether  the  petitioner  (the  respondent
herein) is entitled to custody of the child.  Evidence was led by  both  the
parties  who  examined  themselves  as  PW-1  and  RW-1  respectively.   The
Principal Judge, Family Court was of the opinion that the appellant  is  fit
person to retain the custody of the  child  and,  therefore,  dismissed  the
petition filed by the respondent  herein.   The  respondent  challenged  the
order of the Family Court by filing the appeal, i.e. FOA No. 39 of  2012  in
the High Court which has been allowed by the High  Court.   The  High  Court
has found it appropriate to  handover  the  custody  of  the  child  to  the
respondent/mother.  In the opinion of the High Court, the respondent,  being
mother of a girl child who was even less than five  years'  of  age  at  the
relevant time, was better suited to take care of the child and  this  course
of action is in the best interest of the child.   The  High  Court,  in  the
process, found fault with the approach adopted by the  Family  Judge,  which
had mainly relied upon the incident of August 07, 2010 to deny  the  custody
of the child to the respondent on the ground that she had herself  abandoned
the child on the said date. According to the High  Court,  the  incident  as
narrated by the  appellant  was  not  believable  and  the  version  of  the
respondent, on  the  contrary,  inspired  confidence.   The  respondent  had
stated that though she wanted to take the child with her, the appellant  had
snatched her from the respondent.  According  to  the  High  Court,  if  the
intention of the respondent was to abandon the  child  she  would  not  have
taken her clothes with her.  The High Court also observed  that  the  Family
Judge had failed to consider that  from  the   birth  of  the  child,  i.e.,
October 29, 2008 till the separation of the parties on August 04, 2010  (for
a period of 21 months) the child remained through out  with  the  respondent
who had been attending her school as well as taking care of the child  after
the school  hours  and  there  was  nothing  on  record  to  show  that  the
respondent had neglected the child for a single day during that  period  and
it was not even the case of the appellant.

We may also  mention,  at  this  stage,  that  since  the  petition  of  the
respondent herein had been dismissed by the trial  court,  because  of  this
reason, custody of  the  child  remained  with  the  appellant,  during  the
pendency of the appeal in the High  Court,  though  by  interim  arrangement
visitation rights were given to the  respondent.   Since  the  appeal  stood
allowed by the High Court as per which  custody  of  the  child  was  to  be
handed over to the respondent, the High Court  in  turn  granted  visitation
rights to the appellant, father of the child, in the following manner:
“33.  Since the child is a school going child and respondent  is  living  at
Meerut, in these circumstances, respondent will be at liberty  to  take  the
child from the appellant on every 4th Friday of the month at 5.30  p.m.  and
the child shall spend two days with the respondent.  The child shall  remain
with the father on Friday followed by Saturday and Sunday.  The child  shall
be returned safely to the mother on Sunday at 6.00 P.M.

34.  Each year during Summer vacation custody of Baby Saesha Singh would  be
entrusted by the appellant to the respondent for a period of 15 days  to  be
inter-se agreed upon between the parties and in case of  any  non-agreement,
the dates ts be decided by the4 learned Family Court.

35.  Each year during Winter vacations Baby Saesha Singh would be  entrusted
by the appellant to the respondent for a period of 4  days  to  be  inter-se
agreed upon between the parties and in  case  of  any  non  -agreement,  the
dates to be decided by the learned Family Court.

36.  On the birthday of  child,  custody  of  Baby  Saesha  Singh  would  be
entrusted to the respondent for a period of 4  hours  in  the  evening,  the
exact hours to be mutually agreed upon by the parties.”

In special leave petition (now converted into  instant  appeal)  notice  was
issued on July 01, 2013.   As  the  appellant  had  not  complied  with  the
direction of the High Court, it had resulted in filing contempt petition  by
the respondent against the appellant.  While issuing the notice, this  Court
 stayed those contempt proceedings as well.   Consequence  thereof  is  that
the custody of child has remained with the appellant.  Visitation rights  of
the respondent, however,  as  per  interim  arrangement  vide  orders  dated
February 21, 2012 by the High Court during the pendency of the  appeal  were
restored.  Thereafter, this Court has  passed  certain  orders  for  handing
over the custody of the child during festivals or vacations.

The instant appeal came up for arguments on  November  22,  2016  when  this
Court directed that the child be brought to the court on November  23,  2016
so that the Court is able to interact with her. On November 23, 2016,  after
some interaction, it was felt that since Saesha has remained in the  company
of her father for all these years, influence of the appellant on  the  child
is predominant.  She had even  expressed  her  desire  to  remain  with  the
appellant. In order to have proper psychological and  sociological  analysis
of the desires of the child, this Court deemed it appropriate  to  take  the
services of Ms. Iti Kanungo, who is Principal  Counsellor  attached  to  the
Family Court, Patiala House, New Delhi.  She was also requested to  come  to
the Court on that day.  As Ms. Iti Kanungo was also present, she  interacted
with the child for quite some time and, thereafter, informed the Court  that
some more interaction was needed.  For this purpose, a meeting  on  November
26, 2016 was fixed when the child was to  be  produced  before  her  at  the
Family Court, Patiala House, New Delhi.  After interaction with  the  child,
Ms. Kanungo has submitted her report dated December 12,  2016  stating  that
the child is more interested in living with her father as she does not  want
to change her present living environment.  The report  also  indicates  that
bitter relationship between her parents discomforts her  and  she  wants  to
sleep, play and study as per her own desire like any  normal  kid.   At  the
same time, the report also observes that the child is in  a  very  sensitive
phase of mental and physical growth.

After receiving this report, we had heard the counsel  for  the  parties  at
length.  Mr. V. Shekhar, learned senior counsel appearing for the  appellant
took umbrage under the aforesaid report  of  the  Counsellor  and  submitted
that since this was the wish of the child as well, the appellant  should  be
allowed to retain the custody of the child.  He  emphasised  the  fact  that
with effect from October 05, 2010 when the child was only  21  months'  old,
it is the father who has taken care of the child and, therefore, it  was  in
the best interest of the child that this arrangement is not disturbed.   Ms.
Geeta Luthra, senior counsel appearing for  the  respondent,  countered  the
aforesaid submissions of the appellant by contending  that  the  High  Court
had discussed all  the  pros  and  cons  of  the  issue  and  arrived  at  a
conclusion that the respondent/mother was best person to take  care  of  the
child.  She emphasised that having regard to the present age of  the  child,
who was little more than 8 years of age,  her welfare demands  that  she  be
under the care and protection of the mother who is in a better  position  to
look after her.  She also submitted that the High  Court  had,  by  impugned
judgment  rendered  on  April  02,  2013,  entrusted  the  custody  to   the
respondent and only because of the stay of  contempt  proceedings  given  by
this Court, the respondent is deprived of the custody of the child  for  all
these years, and she should not be made to  suffer  the  prejudice  thereof.
She narrated the  comparative  circumstances  of  the  job  profile  of  the
appellant and the respondent in an endeavour  to  strengthen  her  aforesaid
submission with emphasis on the fact that normally a girl child wants to  be
with her mother.  Here, the respondent being a  teacher  herself,  is  in  a
much better position to take care of her education needs as well.

We  have  given  our  utmost  serious  consideration   to   the   respective
submissions which a case of this nature deserves to be given.  In  cases  of
this  nature,  where  a  child  feels  tormented  because  of  the  strained
relations between her parents and ideally  needs  the  company  of  both  of
them, it becomes, at times, a difficult choice  for the court to  decide  as
to whom the custody should be given.  No doubt, paramount  consideration  is
the welfare of the child.  However, at times  the  prevailing  circumstances
are  so  puzzling  that  it  becomes  difficult  to  weigh  the  conflicting
parameters and decide on which side the balance tilts.

The Hindu Minority and Guardianship Act, 1956 lays down  the  principles  on
which custody disputes are to be decided.  Section 7 of  this  Act  empowers
the Court to make order as  to  guardianship.   Section  17  enumerates  the
matters which need to be considered by the Court in appointing guardian  and
among others, enshrines the principle of welfare of the minor  child.   This
is also stated very eloquently in  Section 13 which reads as under:
“13.  Welfare of minor to be paramount consideration.

(1)  In the appointment or declaration of any person as guardian of a  Hindu
minor by  a  court,  the  welfare  of  the  minor  shall  be  the  paramount
consideration.

(2)  No person shall be entitled  to  the  guardianship  by  virtue  of  the
provisions of this Act or of any law relating to  guardianship  in  marriage
among Hindus, if the court is of opinion that his or her  guardianship  will
not be for the welfare of the minor.”


This Court in the case of Gaurav  Nagpal  v.  Sumedha  Nagpal[1]  stated  in
detail, the law relating to custody in England and America and  pointed  out
that even in those jurisdictions, welfare of the minor child  is  the  first
and paramount consideration and in order to  determine  child  custody,  the
jurisdiction exercised by the Court  rests  on  its  own  inherent  equality
powers where  the  Court  acts  as  'Parens  Patriae'.   The  Court  further
observed  that  various  statutes  give  legislative  recognition   to   the
aforesaid  established  principles.   The  Court  explained  the  expression
'welfare', occurring in Section 13 of the said Act in the following manner:

“51. The word “welfare” used in Section 13 of the Act has  to  be  construed
literally and must be taken in its  widest  sense.  The  moral  and  ethical
welfare of the child must also weigh with the court as well as its  physical
well-being. Though the provisions of the special statutes which  govern  the
rights of the parents or guardians may be taken  into  consideration,  there
is nothing which can stand in the way of the  court  exercising  its  parens
patriae jurisdiction arising in such cases.

52. The trump card in the appellant's argument is that the child  is  living
since long with the  father.  The  argument  is  attractive.  But  the  same
overlooks a very significant factor. By  flouting  various  orders,  leading
even to initiation of contempt proceedings, the  appellant  has  managed  to
keep custody of the child. He cannot be a beneficiary  of  his  own  wrongs.
The High Court has referred to these  aspects  in  detail  in  the  impugned
judgments.”


We understand  that  the  aforesaid  principle  is  aimed  at  serving  twin
objectives.  In the first instance, it is to ensure  that  the  child  grows
and develops in the best environment.  The best interest of  the  child  has
been placed  at  the  vanguard  of  family/custody  disputes  according  the
optimal  growth  and  development  of   the   child   primacy   over   other
considerations. The child is often left to grapple with the breakdown of  an
adult institution. While the parents aim to ensure that the child  is  least
affected by the outcome, the inevitability of the uncertainty  that  follows
regarding the child’s growth lingers on till the new routine sinks  in.  The
effect of separation of spouses, on children,  psychologically,  emotionally
and even to some extent physically, spans from negligible to serious,  which
could be insignificant to noticeably critical. It could  also  have  effects
that are more immediate and transitory to  long  lasting  thereby  having  a
significantly negative repercussion in the advancement of the  child.  While
these effects don’t apply to every child of a separated or divorced  couple,
nor has any child experienced all these effects, the  deleterious  risks  of
maladjustment remains the objective of the parents to evade and the  court’s
intent to circumvent. This right of the child is also  based  on  individual
dignity.

Second justification behind the 'welfare' principle is the  public  interest
that stand served with the optimal  growth  of  the  children.  It  is  well
recognised that children are the supreme  asset  of  the  nation.   Rightful
place of the child in the  sizeable  fabric  has  been  recognised  in  many
international covenants, which are adopted in this country as well.   Child-
centric human rights jurisprudence that has been evolved over  a  period  of
time is founded on the principle that public good demands proper  growth  of
the child, who are the future of the nation.   It  has  been  emphasised  by
this Court also, time and again, following  observations  in  Bandhua  Mukti
Morcha v. Union of India & Ors.[2]:
“4. The child of today cannot develop to be  a  responsible  and  productive
member of tomorrow's society unless an environment  which  is  conducive  to
his social and physical health is assured to him.  Every  nation,  developed
or developing, links its future with the  status  of  the  child.  Childhood
holds the potential and also sets the limit to  the  future  development  of
the society. Children are the greatest gift to  humanity.  Mankind  has  the
best hold of itself. The parents themselves live for them. They  embody  the
joy of life in them and in the innocence relieving the fatigue and  drudgery
in their struggle of daily life. Parents regain peace and happiness  in  the
company of the children. The children signify eternal optimism in the  human
being and always  provide  the  potential  for  human  development.  If  the
children are better equipped with a broader human output, the  society  will
feel happy with them. Neglecting the children means loss to the  society  as
a  whole.  If  children  are  deprived  of  their  childhood   —   socially,
economically, physically and mentally — the  nation  gets  deprived  of  the
potential human resources for  social  progress,  economic  empowerment  and
peace and order, the social  stability  and  good  citizenry.  The  Founding
Fathers of the Constitution, therefore, have emphasised  the  importance  of
the role of the child and the need of its best development.”

Same  sentiments  were  earlier  expressed  in  Rosy  Jacob  v.   Jacob   A.
Chakramakkal[3] in the following words:
“15. ...The children are not mere chattels : nor are they  mere  play-things
for their parents. Absolute right of parents  over  the  destinies  and  the
lives of their children  has,  in  the  modern  changed  social  conditions,
yielded to the considerations of their welfare as human beings so that  they
may grow up in a  normal  balanced  manner  to  be  useful  members  of  the
society...”

It hardly needs to be emphasised that a proper education encompassing  skill
development, recreation and cultural activities has  a  positive  impact  on
the child. The  children  are  the  most  important  human  resources  whose
development has a direct impact on the development of the  nation,  for  the
child of today  with  suitable  health,  sound  education  and  constructive
environment is the productive key member of the society. The present of  the
child links to the future of the nation, and  while  the  children  are  the
treasures of their parents, they are the assets who will be responsible  for
governing the nation. The tools of education, environment, skill and  health
shape the child thereby moulding the nation with the child equipped to  play
his part in the different spheres aiding  the  public  and  contributing  to
economic progression. The growth and  advancement  of  the  child  with  the
personal interest is accompanied by a  significant  public  interest,  which
arises because of the crucial role they play in nation building.

In the instant case, the factors which weigh in favour of the appellant  are
that child Saesha is living with him from tender age of 21 months.   She  is
happy in his company.  In fact, her desire is to continue to live  with  the
appellant. Normally, these considerations would have prevailed  upon  us  to
hold that custody of Saesha remain with the  appellant.   However,  that  is
only one side of the picture.  We cannot,  at  the  same  time,  ignore  the
other side. A glimpse, nay, a proper glance at the  other  side  is  equally
significant. From the events that took  place  and  noted  above,  following
overwhelming factors in favour of respondent emerge.
(a)   For first 21 months when the parties were living together, it  is  the
respondent who had nursed the child.  The appellant  cannot  even  claim  to
have an edge over the respondent during this  period,  when  the  child  was
still an  infant,  who  would  have  naturally  remained  in  the  care  and
protection of the respondent - mother, more than  the  appellant  –  father.
Finding to this effect has been arrived at by the High Court as well.   This
position even otherwise cannot be disputed.
(b)   The respondent was forcibly deprived by the  custody  of  Saesha  from
August 04, 2010 when she was forced to leave the matrimonial house.  As  per
the respondent, on that date the appellant in a drunken state gave  beatings
to her and threw her out of  the  house.   The  respondent  had  called  the
police.  The police personnel called the military  police  and  a  complaint
was lodged.  The respondent had also called her parents who had come to  her
house from NOIDA.  Her parents took hold of the child and the appellant  and
when they were about to leave, the appellant pulled out the child  from  the
hands of her mother and went inside the house and locked  himself.   He  was
drunk at that time.  The police  suggested  not  to  do  anything  otherwise
appellant would harm the child.  It was assured  that  the  child  would  be
returned to her in the  morning.   In  any  case,  the  respondent  and  the
appellant were instructed to come to the police along with the  child,  next
morning.  The appellant did not bring  the  child  and  threatened  that  he
would not give the child to her.  Since then,  she  had  been  running  from
pillar to post to get the child back but respondent had been refusing.
      The respondent, therefore, cannot be blamed at all, if the custody  of
the child remained with the appellant, after the separation of the parties.
(c)   Within the few days, i.e. on August 26,  2010,  the  respondent  filed
the petition seeking custody  of  the  child  and  for  appointment  of  her
guardian.  She did not lose any time making her intentions clear that  as  a
natural mother she wanted to have the custody of the child.  It was her mis-
fortune that the trial court vide  its  judgment  dated  December  07,  2011
dismissed her petition.  Though, she  filed  the  appeal  against  the  said
judgment immediately,  but during the pendency of the  appeal,  the  custody
remained with the appellant because of the dismissal of the petition by  the
Family Court.  The High Court has, by  impugned  judgment  dated  April  02,
2013 granted the custody to the respondent. However, the respondent has  not
been able to reap the benefit thereof because of the interim  orders  passed
in the instant appeal.  It is in these circumstances that child Saesha  from
the tender age of 21 months has remained with the appellant  and  today  she
is 8 years and 3 months.  Obviously, because of this reason,  as  of  today,
she is very much attached to the father  and  she  thinks  that  she  should
remain in the present environment.  A child, who has not  seen,  experienced
or lived the comfort of the company of the mother is, naturally,  not  in  a
position to comprehend that the grass on the other side may turn out  to  be
greener.  Only when she is exposed to that environment of  living  with  her
mother, that she would be in a position to properly evaluate as  to  whether
her welfare lies more in the company of her mother or in the company of  her
father.  As of today, the assessment and  perception  are  one  sided.   Few
years ago, when the High Court passed  the  impugned  judgment,  the  ground
realities were different.

While coming to the conclusion  that  the  respondent  as  mother  was  more
appropriate  to  have  the  custody  of  the  child  and  under  the   given
circumstances the respondent herein was fully competent to take care of  the
child, the High Court proceeded with the following discussion:
“31.  The role of the mother in the development  of  a  child's  personality
can never be doubted.  A child gets the best protection through the  mother.
 It is a most natural thing for any child to  grow  up  in  the  company  of
one's mother. The company of the mother is the  most  natural  thing  for  a
child.  Neither the father nor any other person can give the  same  kind  of
lover, affection, care and sympathies to a child as that of a  mother.   The
company of a mother is more valuable to a growing  up  female  child  unless
there are  compelling  and  justifiable  reasons,  a  child  should  not  be
deprived of the company of the mother.  The company of the mother is  always
in the welfare of the minor child.

32.  It may be noticed that the stand of the appellant is that since  August
04, 2010 she had been pursuing for the custody of her child.  She  had  also
visited the police  station  and  approached  the  CAW  Cell.   It  is  also
admitted position that  within  22  days,  i.e.,  on  August  26,  2010  the
petition for the grant of custody of  child  was  filed  by  her.   Had  she
abandoned the child of her own  she  would  not  have  pursued  continuously
thereafter for getting the custody of the child. Even she had requested  the
learned Principal Judge, Family Court  for  interim  custody  of  the  child
which was given to her in the form of visitation rights thrice  in  a  month
and she and her family had been meeting the child during that period.  After
filing the appeal, the appellant has been taking the interim custody of  the
child as is stated above.  In thes3e circumstances, it cannot be  said  that
the appellant has not care for the child. Further, respondent  is  any  army
Officer. During the course of his service  he  will  be  also  getting  non-
family stations and it  will  be  difficult  for  him  to  keep  the  child.
Further, even though as per him his parents are looking after the child  but
when the natural mother is there and has  knocked  the  door  of  the  court
without any delay and has all love  and  affection  for  the  child  and  is
willing to do her duty with all love and affection and since  the  birth  of
the child she has been keeping  the  child.   In  these  circumstances,  she
should not be deprived of her right especially considering  the  tender  age
and child being a girl child.  The grandparents cannot be a  substitute  for
natural mother. There is no substitute for  mother's  love  in  this  world.
The grandparents are old.  Old age has its  own  problems.  Considering  the
totality of facts and circumstances, the welfare of the child lies with  the
mother, i.e, appellant who is educated, working and earning  a  good  salary
and after school hours has ample time to spend  with  the  child.  In  these
circumstances, impugned order is set aside and the request of the  appellant
for the grant of custody of the said child to her being  natural  mother  is
allowed and the appellant is also appointed as guardian of her  child  being
a natural guardian/mother.”


The aforesaid observations, contained in para 31 of the order  of  the  High
Court extracted above, apply with greater force  today,  when  Saesha  is  8
years' old child.  She is at a crucial phase when there is a major shift  in
thinking ability which may help her to understand cause  and  effect  better
and think about the future. She would  need  regular  and  frequent  contact
with each parent as well as shielding from parental hostility.   Involvement
of both parents in her life and regular  school  attendance  are  absolutely
essential at this age for her personality development.  She  would  soon  be
able to establish her individual interests and preferences,  shaped  by  her
own individual personality as well as experience. Towards this end, it  also
becomes necessary for parents  to  exhibit  model  good  behaviour  and  set
healthy and positive examples as much and as often as possible.  It  is  the
age when her emotional development may be evolving at a  deeper  level  than
ever before. In order to ensure that she achieves stability and maturity  in
her thinking and is able to deal with  complex  emotions,  it  is  necessary
that she is in the company of her mother  as  well,  for  some  time.   This
Court cannot turn a blind eye to  the  fact  that  there  have  been  strong
feelings of bitterness, betrayal, anger and distress between  the  appellant
and the respondent, where each party feels that they are 'right' in many  of
their views on issues which led to separation.  The  intensity  of  negative
feeling of the appellant towards the respondent would  have  obvious  effect
on the psyche of Saesha, who has remained in the company of her  father,  to
the exclusion of her mother.  The possibility of appellant's effort  to  get
the child to give up her own  positive  perceptions  of  the  other  parent,
i.e., the mother and change her to agree with  the  appellant's  view  point
cannot be ruled out thereby diminishing the affection of Saesha towards  her
mother.  Obviously, the appellant, during all this period,  would  not  have
said anything about  the  positive  traits  of  the  respondent.   Even  the
matrimonial discord between the two parties would have  been  understood  by
Saesha, as perceived  by  the  appellant.   Psychologist  term  it  as  'The
Parental  Alienation  Syndrome'[4].   It  has  at  least  two  psychological
destructive effects:
(i)  First, it puts the child  squarely  in  the  middle  of  a  contest  of
loyalty, a contest which cannot possibly be  won.  The  child  is  asked  to
choose who is the preferred parent. No matter whatever is  the  choice,  the
child is very likely to end up feeling painfully guilty and  confused.  This
is because in the overwhelming majority of cases, what the child  wants  and
needs is to continue a relationship with  each  parent,  as  independent  as
possible from their own conflicts.
(ii)  Second, the child is required to make a shift  in  assessing  reality.
One parent is presented as being totally to blame for all problems,  and  as
someone who is  devoid  of  any  positive  characteristics.  Both  of  these
assertions represent one parent's distortions of reality.
The aforesaid discussion leads us to feel that  continuous  company  of  the
mother with Saesha, for some time, is absolutely essential.  It may also  be
underlying that the notion that a child's primary need is for the  care  and
love of its mother, where she has been its primary care  giving  parent,  is
supported by a vast body of  psychological  literature.   Empirical  studies
show that mother infant “bonding” begins  at  the  child's  birth  and  that
infants as young as two months old frequently show signs  of  distress  when
the mother is replaced by  a  substitute  caregiver.   An  infant  typically
responds preferentially to the sound of its mother's voice  by  four  weeks,
actively demands her presence and protests her absence by eight months,  and
within the first year has formed a profound and enduring attachment to  her.
 Psychological theory hypothesizes that the  mother  is  the  center  of  an
infant's small  world,  his  psychological  homebase,  and  that  she  “must
continue to be so for some  years  to  come.”   Developmental  psychologists
believe that  the  quality  and  strength  of  this  original  bond  largely
determines the child's later capacity to fulfill  her  individual  potential
and to form attachments to other individuals and to the human community.

No doubt, this presumption in favour of  maternal  custody  as  sound  child
welfare policy, is rebuttable and in a given case,  it  can  be  shown  that
father is better  suited  to  have  the  custody  of  the  child.   Such  an
assessment, however, can be only after level playing  field  is  granted  to
both the parents.  That has not happened in the instant case so far.
It is also to be emphasised that her mother is a teacher  in  a  prestigious
Kendriya Vidyala school. Saesha is herself a school going child  at  primary
level.  If Saesha is admitted  in  the  same  school  where  her  mother  is
teaching, not only Saesha would be under full care  and  protection  of  the
mother, she would also be in a position to get better education  and  better
guidance of a mother who herself is a teacher.

We, thus, find that the factors in favour of respondent are  weightier  than
those in favour of the appellant which have been noted above.  It is  a  fit
case where respondent deserves a chance to have the custody of child  Saesha
for the time being, i.e., at least for one year, and not  merely  visitation
rights.

New academic session would start in April, 2017.  At this time, the  process
of fresh admissions in schools  is  underway.  We  are  confident  that  the
respondent shall be able to have Saesha admitted in her school where she  is
teaching inasmuch as wards of the teachers are  accorded  such  preferences.
Therefore, the respondent is allowed to process the  case  of  admission  of
Saesha in Kendriya Vidyala, INA Colony,  New  Delhi  and  for  this  purpose
appellant shall fully  cooperate.   In  case  she  is  able  to  secure  the
admission, custody of Saesha shall be handed over to the respondent  by  the
appellant one week before the next academic session  starts.  Custody  shall
remain with the respondent for full  academic  year.  The  matter  shall  be
listed in the month of March, 2018 for further directions  when  this  Court
would assess as to how the arrangement devised above has  worked  out.   We,
however, give liberty to both the parties to move application for  variation
of  the  aforesaid  arrangement,  in  case  consequences  of  the  aforesaid
arrangements  turn  out  to  be  such  which   necessitate   alteration   or
modification in the aforesaid arrangement.

It is ordered accordingly.

                             .............................................J.
                                                            (J. CHELAMESWAR)

                             .............................................J.
                                                                (A.K. SIKRI)

NEW DELHI;
FEBRUARY 13, 2017.
-----------------------
[1]   (2009) 1 SCC 42
[2]   (1997) 10 SCC 549
[3]   (1973) 1 SCC 840

[4]    The  Parental  Alienation  Syndrome  was  originally   described   by
Dr. Richard   Gardner   in   "Recent   Developments   in    Child    Custody
Litigation", The Academy Forum Vol.  29  No.  2:  The  American  Academy  of
Psychoanalysis, 1985).

whether the notification dated 31st March, 1949 continued to exist even after the Act was repealed upon the reenactment of the Act of 1972 may be considered.= We are in respectful agreement with the above observations. Applying the said observations to the present case, it must be held that the notification under the 1947 Act continued in spite of its repeal and the enactment of the 1972 Act. It cannot be said that in the hiatus between the repeal of the 1947 Act and the issuance of a notification applying the 1972 Act to the Doiwala area, the Legislature intended that the tenants had no protection from eviction and there was an unrestricted right to evict them.- This Court construed Section 24 of the General Clauses Act 1904, in a similar way in Neel alias Niranjan Majumdar vs. The State of West Bengal[6]. It was held that though the offence of the possession of a sword would allege to have been committed in 1970, i.e. after the repeal of the Arms Act, 1878, the notification dated 19th of March, 1923 issued under the repealed Arms Act of 1878 would continue in force and would be deemed to have been enacted under the new Act by virtue of Section 24 of the General Clauses Act, 1904.- we hold that the old Act, i.e. the Act No.III of 1947 applied to the Doiwala area by virtue of notification dated 31st of March, 1949, when the suit for the eviction of the appellant was filed. The suit is untenable for the want of permission under the provisions of the U.P. Act No. XIII of 1972 and is liable to be dismissed.

                                                                  REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL No. 1778 OF 2010


HARKESH CHAND                                                 ... APPELLANT

                             VERSUS
KRISHAN GOPAL MEHTA & ORS.                              ... RESPONDENTS


                                  JUDGMENT

S. A. BOBDE, J.

      This is a tenant’s appeal.  In the impugned judgment, the  High  Court
directed the tenant to be evicted.  The Trial Court dismissed the  suit  for
eviction filed  by  the  respondent-landlord.   The  First  Appellate  Court
dismissed the landlord’s appeal.  In  the  Second  Appeal,  the  High  Court
reversed the concurrent findings of both the courts below.


2.    The tenancy is in respect to a small shop situated in a rural area  in
the village of Daishwala, Doiwala Town, located in the Dehradun district  of
Uttarakhand. On the 19th of September, 1972, the landlord  issued  a  notice
terminating the tenancy of the shop under Section 106  of  the  Transfer  of
Property Act, 1882, and demanded the possession
of the shop.


3.    The landlord filed the  present  suit  for  eviction  on  the  1st  of
October  1972.  The  Court  of  Civil  Judge  (Junior  Division),   Dehradun
dismissed Small Cause Case No.85 of 1972 with costs.  The Trial  Court  held
that even though The  United  Provinces  (Temporary)  Control  of  Rent  and
Eviction Act, 1947 (U.P. Act No. III of 1947 ) hereinafter  referred  to  as
“the Act of 1947” had been repealed by the aforementioned date and  replaced
by a new rent act[1] hereinafter referred to as “the Act of 1972” which  was
brought into force on the 15th of July, 1972, the old  act  applied  to  the
suit property.


4.     The  Additional  District  Judge,  Dehradun,  dimissed  the  revision
petition No. 43 of 1976  filed  by  the  landlord.  It  was  held  that  the
notification by which the provisions of the old act were applicable  to  the
Doiwala area in the year 1949 continued and remained in force  on  the  date
when the notice of termination of the tenancy was issued.  Accordingly,  the
tenancy was protected by the Act of 1947.


5.    The landlord approached the High Court of Judicature at  Allahabad  by
way of Writ Petition No. 25951 of 2000. This writ petition  was  transferred
to the High Court of Uttarakhand at Nanital and
re-numbered as Writ Petition No. 4882 of 2001.


6.    The High Court of Uttarakhand upheld  the  landlord’s  plea  that  the
notice which terminated the tenancy of the shop under the provisions of  the
Transfer of Property Act, 1882 was valid.  The High Court held that the  old
Act under which the Doiwala area was covered  by  a  notification  had  been
repealed and replaced by the new Act.  The old Act of  1947  did  not  cover
the rural areas that are not specially notified.  The  special  notification
with respect to Doiwala area  came  into  existence  only  on  the  23rd  of
January, 1973 and therefore, between the 15th of July, 1972  (when  the  old
act along with its notification stood repealed), and the  23rd  of  January,
1973 (when the notification was issued), there  was  no  protection  to  the
tenants in Doiwala area under any law.  Thus,  the  notice  terminating  the
tenancy was valid.  Accordingly, the High Court allowed  the  writ  petition
and set aside the orders of the Trial Court and the Revision Court by  which
the landlord’s suit was dismissed.


7.    Aggrieved by the order of the High Court that  decreed  the  suit  for
eviction filed by the respondent-landlord,  the  appellant  approached  this
Court.  This Court granted special leave to appeal, and hence this appeal.


8.    The questions that fall for consideration before us are -


(i)   Whether or not, the tenancy in question is protected by Act No.III  of
1947.
(ii)  Whether or not, the  notification  dated  31st  of  March  1949  which
applied the provisions of the Act of 1947 to Doiwala town was  in  force  on
the 19th of September, 1972, i.e. when the landlord terminated  the  tenancy
and sought possession of the suit premises.
(iii) Whether or not, Section 24 of  the  U.P.  General  Clauses  Act,  1904
continued the notification dated 31st of March 1949  that  protects  Doiwala
town by applying the provisions of the Act of 1947.


9.    A similar notification was issued under the re-enacted Act of 1972  on
the 21st of March, 1973.  The Act of 1947 was a  temporary  statute  enacted
to control the letting and renting of property as well  as  to  prevent  the
eviction of tenants from such accommodation.  The provisions of the  Section
3 (c) of the Act  of  1972  inter  alia  restricted  evictions  without  the
permission of the District Magistrate which could be  granted  only  on  the
grounds specified in the Act.


10.   The Act of 1947 was extended from time to time and was in  force  when
the Act of 1972 was enacted.


      Sub-section (2) of Section  1  of  Act  No.III  of  1947  provided  as
follows:-

“Section 1…

(2)   It extends to the whole of the United Provinces and applies  to  every
Municipal Area and Cantonment Area and to every Notified Area contiguous  to
such municipal area or cantonment area and to accommodation situated  within
one mile of the boundaries of any such municipal area, cantonment  area  and
notified area, and to such other area  as  the  Provincial  Government  may,
from time to time, notify in the official Gazette in this behalf. “
                                             (emphasis supplied)


      Sub-section (3) brought the Act into force on the 1st day of  October,
1946.  It provided as follows:-
“(3)  It shall apply to-

(a)   every  city  as  defined  in  the  Uttar  Pradesh    Nagar  Mahapalika
Adhiniyam, 1959;

(b)   every municipality as defined in the United  Provinces  Municipalities
Act, 1916;

(c)    every  notified  area  constituted  under  the     United   Provinces
Municipalities Act, 1916;    and

(d)   every town area constituted under the   United  Provinces  Town  Areas
Act, 1914.”

      Sub-section 4, which provided for its expiry on the
30th September, 1948, read as follows:-
“(4)  It shall cease to have effect on the expiry  of  September  30,  1948,
except as respects things done or omitted to be done before  the  expiration
thereof, and Section 6 of the United Provinces General  Clauses  Act,  1904,
shall apply upon the expiry of the Act as if it had then  been  repealed  by
an United Provinces Act.“


      Section 43 of the Act of 1972 repealed the Act of 1947.
Sub-section (2) of Section 1 of the Act of 1972 extended the Act of 1972  to
the whole of Uttar Pradesh.


11.   A notification under Section 1 (1) of the Act of 1972  declaring  that
the Act shall apply to Doiwala town area was issued on the  21st  of  March,
1973.  Even though, the subsequent Act is essentially a
re-enactment of  the  earlier  Act  of  1947,  the  landlord  acted  on  the
presupposition that with the repeal and re-enactment of the Act of  1947  on
the 15th of July, 1972, the notification dated 31st March, 1949 also  ceased
to exist, thus assuming that there was no law restricting  the  eviction  of
tenants  in  the  Doiwala  area  during   the   period   between   the   two
notifications; ergo, terminating the  tenancy  on  the  19th  of  September,
1972.


(a)   As stated earlier, the primary question before us is as to whether  or
not there existed a protection of tenants in  the  Doiwala  area  under  Act
No.III of 1947 by virtue of the notification dated 31st March, 1949


      The answer to this depends on whether Section 24 of the
U.P. General Clauses Act, 1904 continued the notification dated
31st March, 1949.


12.   Shri Nikhil Goel, Advocate for the appellant, contended that by
virtue of Section 24 of the  U.P.  General  Clauses  Act,  the  notification
dated 31st March, 1949 that applied Act No.III of 1947 to the  Doiwala  area
continued even after the expiry of the Act.  Thus,  the  protection  to  the
tenants in the Doiwala area also continued and was in force on  the  1st  of
October, 1972, when the suit was  filed.   The  protection  of  the  tenants
under the 1947 Act continued throughout and in any case up to the  issue  of
the notification dated 23rd of January, 1973, under  the  Act  No.  XIII  of
1972. It made no difference that  the  new  Act  of  1972  was  specifically
applicable to Doiwala town area by the aforesaid notification.  As  long  as
there was nothing inconsistent in the notification dated  31st  March,  1949
with the  re-enacted  provisions  of  the  Act  of  1972,  the  notification
continued in force by virtue of Section 24 of the U.P. General Clauses  Act,
1904.


13.   Thus, it was submitted that at all  times,  and  particularly  on  the
date when the notice was issued on the 19th  of  September,  1972,  and  the
date when the suit for eviction was filed on the 1st of October,  1972,  the
appellant’s  tenancy  in  the  Doiwala  town  area  was  protected  by   the
notification issued under Act No. III of 1947.  The  notice  issued  by  the
respondent-landlord  terminating  the  tenancy  under  Section  106  of  the
Transfer of Property Act was not valid and hence,  the  suit  filed  on  the
basis of such a notice was not tenable.


Applicability of U.P. Act No. III of 1947 to Doiwala Area

14.   It is clear from sub-section (1) and sub-section (2)  of  the  Act  of
1947 that it extended to the whole of the  erstwhile  United  Provinces  and
applied to every municipal area, cantonment area and notified  area  as  per
the  provincial   government   notification   in   the   official   gazette.
Undisputedly, the Governor declared that the provisions of Section 2,  3(a),
4, 5, 6, 8, 11, 12 and 16 of the Act shall apply to Doiwala town located  in
Dehradun by a notification dated 31st March, 1949 because this  notification
has never been expressly repealed.

Whether the notification dated 31st  March,  1949  continued  by  virtue  of
Section 24 of the U.P. General Clauses Act, 1904


15.    The  question  whether  the  notification  dated  31st  March,   1949
continued to exist even after the Act was repealed upon the  reenactment  of
the Act of 1972 may be considered.


      Section 24 of the U.P. General Clauses Act, 1904:-

“24.  Continuation of  appointments,  notifications,  orders,  etc.,  issued
under enactments repealed and re-enacted. – Where any enactment is  repealed
and re-enacted by an [Uttar Pradesh]  Act,  with  or  without  modification,
then, unless it  is  otherwise  expressly  provided,  any  appointment,  [or
statutory instrument or form], made or issued under the repealed  enactment,
shall, so far as it is not  inconsistent  with  the  provisions  re-enacted,
continue in force, and be deemed to have  been  made  or  issued  under  the
provisions  so  re-enacted,  unless  and  until  it  is  superseded  by  any
appointment, [or statutory instrument or form]  made  or  issued  under  the
provisions so
re-enacted.”
                                  (emphasis supplied)


16.   A plain reading of the above provision  suggests  that  any  statutory
instrument (which a notification is) issued  under  the  repealed  enactment
continues in force as if it were issued under the re-enacted  provisions  to
the extent that it is  not  inconsistent  with  the  re-enacted  provisions.
Such continuance exists till the statutory instrument  is  superseded  by  a
statutory instrument issued under the re-enacted provisions.


17.   It is therefore necessary; to see whether the notification dated
31st March, 1949, issued under the Act of 1947 is inconsistent with the
re-enacted  provisions  of  the  Act  of  1972.   Obviously,  if  the   1949
notification cannot stand  along  with  the  re-enacted  provisions  and  is
inconsistent with them, it cannot be said to have been  continued  in  force
by virtue of Section 24 of the U. P. General Clauses Act, 1904.


18.   The Governor of the  erstwhile  United  Provinces,  through  the  said
notification, simply declared that the provisions of Sections 2, 3  (a),  4,
5, 6 etc. shall apply to Doiwala town in Dehradun district.  The  effect  of
this notification thus, was that the protection to the tenants
offered by Section 3 (a) i.e.  the  restrictions  on  eviction,  applied  to
Doiwala town.


19.   We find nothing inconsistent between the protection  accorded  to  the
tenants  under  the  Act  of  1947  as  applied  to  Doiwala  town  by   the
notification dated 31st March, 1949, and  the  protection  accorded  to  the
tenants in the re-enacted provision of  the  Act  of  1972,  both  of  which
regulated the eviction of tenants in the whole of  Uttar  Pradesh.   Section
21 of the later act provided  the  same  restrictions  on  the  eviction  of
tenants on specified grounds that Section 3 (a) of the 1947 Act did.   Thus,
there is no inconsistency whatsoever found between the two  provisions.   We
also, do not find any express provision to the contrary  in  the  subsequent
enactment.


20.   The provisions of an Act, and a  conditional  legislation  such  as  a
notification, belong to a different order of things. A statutory  instrument
(i.e. the  notification)  itself  does  not  enact  the  protection  to  the
tenants.  The Act of 1947 does that.   The  notification  merely  makes  the
enactment applicable to the Doiwala area.  Apparently the purpose of the re-
enacted provision is, inter alia, to  protect  the  tenants  from  eviction,
except on special grounds.  Nothing in the Act shows that such a  protection
was intended to be removed from any area or for  that  matter,  the  Doiwala
area.  In fact, the contrary is clear from  the  fact  that  a  notification
expressly applying the re-enacted provisions to the Doiwala area was  issued
on the 21st of March, 1973.


      Thus, there can be no inconsistency between the notification  applying
the Act to the Doiwala area,  and  the  re-enacted  provisions  of  the  Act
unless the Act  of  1972  clearly  expresses  an  intention  to  remove  the
protection accorded to the tenants from an area.


21.   Section 24 of the General Clauses Act, 1904 clearly  provides  that  a
statutory instrument issued under a repealed  enactment  shall  continue  in
force and be deemed to  have  been  made  or  issued  under  the  re-enacted
provisions unless
(a)   the re-enacted provision expressly provides otherwise

or

(b)   it is superseded by a statutory instrument made under the
re-enacted provision

      The section further provides that the extent to  which  the  statutory
instrument under the repealed enactment shall continue is “so far as  it  is
not inconsistent with the re-enacted provisions.”


22.    We  find  that  none  of  the  conditions  which  derogate  from  the
continuation of the notification exist in the present  case.   There  is  no
express  provision  to  the  contrary,  there  is  no  supersession  by  any
statutory instrument under the re-enacted provisions and  there  is  nothing
inconsistent in the continuance of the notification  with  any  of  the  re-
enacted provisions.


23.   At this stage, it is apposite to consider the central purpose  of  the
General Clauses Act in relation to a statute.  In  The  Chief  Inspector  of
Mines and Anr vs. Lala Karam Chand Thapar Etc[2].,  this  Court  stated  its
purpose as follows:-
“…it will be profitable to remember that the purpose of the General  Clauses
Act is to place in  one  single  statute  different  provisions  as  regards
interpretations of words and legal principles which would otherwise have  to
be specified separately in many different  acts  and  regulations.  Whatever
the General Clauses Act says, whether as regards the meanings  of  words  or
as regards legal principles, has to be read into every statute to  which  it
applies.”


24.   The decision of this Court  in  The  State  of  Bombay  vs.  Pandurang
Vinayak Chaphalkar and Ors[3], throws a  light  on  the  present  case.  The
Building  Control  Ordinance,  enacted  in  1948  empowered  the  provincial
Government to extend its provisions to any other area as  may  be  specified
by notification.  A notification was issued on the  15th  of  January,  1948
extending the provisions of the Ordinance to Ratnagiri district.


      The aforementioned Ordinance was repealed by an Act which contained  a
provision empowering the State Government to issue a notification to  extend
the Act to any other specified area.   The  Act  provided  that  the  Bombay
General Clauses Act would apply to the repeal as if the  Ordinance  were  an
enactment.


      The respondent started constructing a cinema at Ratnagiri district  on
the 15th of August, 1948, after the  commencement  of  the  Act.  Since  the
district of Ratnagiri was not specified in the  Schedule  to  the  Act,  the
respondent assumed that the Act did not apply to Ratnagiri.   As  a  result,
the construction was carried out without obtaining  the  permission  of  the
Controller.


      The High Court acquitted the respondent, and the  State  preferred  an
appealed to this Court.  This Court held that, by virtue  of  the  repealing
provision and Section 25 of the Bombay General Clauses Act,  1904  which  is
in pari materia with the provisions of the U.P. General Clauses  Act,  1904,
the notification issued under the Ordinance continued  in  force  under  the
Act (XXXI of 1948).  Therefore, the provisions of the Act stood extended  to
the other areas as indicated in the notification.  The  appeal  was  allowed
and the judgment of the High Court was set aside.


25.   We find that the ratio in the  above  case  squarely  applies  to  the
present case. An identical  notification  extending  the  provisions  of  an
earlier enactment to an area was issued through  an  Ordinance.  Though  the
repealing Act was not specifically extended to that area,
it was held that the notification under the earlier enactment
continued in force under the new enactment by virtue of the General  Clauses
Act, 1904.


26.   In The Chief Inspector of Mines case (supra), the question  that  fell
for consideration was whether or not the regulations framed under the  Mines
Act, 1923 (for short, “the 1923 Act”) continued in force  after  its  repeal
by the Mines Act, 1952.  The accused was prosecuted  for  the  violation  of
the regulations framed under the 1923 Act.  The appellants applied  for  the
quashing  of  the  criminal  proceedings  on  the  ground  that  they   were
prosecuted for the breach of the regulations that had  ceased  to  exist  by
the repeal of the Mines Act, 1923.  The regulations were “as if  enacted  in
this Act”, and therefore, repealed along with
the 1923 Act.


      This Court held that though the regulations were a part  of  the  1923
Act for some purposes, but for the purpose of continuity of  existence  they
would not be considered a part of the Act:-
“… even though the Act is repealed, the regulation will continue  to  exist,
in accordance with the provisions of Section 24 of the General  Clauses  Act
1904.”[4]


      Section 24 was given full effect for holding that the  regulations  or
rules framed under a repealed law would continue in force in  spite  of  the
repeal. Expounding on the purpose of Section 24 of the General Clauses  Act,
1904, the Court held:-
“One may pause here to remember that regulations framed under an Act are  of
the  very  greatest  importance.  Such  regulations  are  framed   for   the
successful operation of the Act. Without proper regulations, a statute  will
often be worse than useless. When an Act is repealed, but
re-enacted, it is almost  inevitable  that  there  will  be  some  time  lag
between the re-enacted statute coming  into  force,  and  regulations  being
framed under the re-enacted  statute.  However  efficient  the  rule  making
authority may be, it is impossible to avoid some hiatus between  the  coming
into force of the re-enacted statute and the simultaneous repeal of the  old
Act,  and  the  making  of  regulations.  Often,  the  time  lag  would   be
considerable. Is it conceivable that  any  legislature,  in  providing  that
regulations made under its statute will have effect as  if  enacted  in  the
Act, could have intended by those words to say  that  if  ever  the  Act  is
repealed and re-enacted (as is more than likely to happen sooner or  later),
the regulations will have no existence for the  purpose  of  the  re-enacted
statute, and thus the re-enacted statute, for some time
at least, will be in many respects, a dead letter.”[5]


27.   We are in respectful agreement with the above observations.   Applying
the said observations to  the  present  case,  it  must  be  held  that  the
notification under the 1947 Act continued in spite of  its  repeal  and  the
enactment of the 1972 Act. It cannot be said that in the hiatus between  the
repeal of the 1947 Act and the issuance of a notification applying the  1972
Act to the Doiwala area, the Legislature intended that the  tenants  had  no
protection from eviction and there was an unrestricted right to evict  them.



28.   This Court construed Section 24 of the General Clauses Act 1904, in  a
similar  way  in  Neel  alias  Niranjan  Majumdar  vs.  The  State  of  West
Bengal[6].  It was held that though the  offence  of  the  possession  of  a
sword would allege to have been committed in 1970, i.e. after the repeal  of
the Arms Act, 1878, the notification dated 19th of March, 1923 issued  under
the repealed Arms Act of 1878 would continue in force and  would  be  deemed
to have been enacted under the new Act  by  virtue  of  Section  24  of  the
General Clauses Act, 1904.


29.   This  Court  has  taken  a  concurrent  view  in   State   of   Punjab
vs. Harnek Singh[7].


30.   In the result, we hold that the old Act, i.e. the Act No.III  of  1947
applied to the Doiwala area by virtue of notification dated 31st  of  March,
1949, when the suit for the eviction of the appellant was filed.   The  suit
is untenable for the want of permission under the  provisions  of  the  U.P.
Act No. XIII of 1972 and is liable to be dismissed.  However,  having  heard
the learned counsels for both sides  on  the  point,  and  in  view  of  the
circumstances of this case, as well  as  in  the  interest  of  justice,  we
direct that the appellant-tenant shall hand over possession of the  premises
to the respondent after a period of three  years  from  today.  The  premise
admittedly belongs to the respondent, which he bona  fide  needs  after  the
said period. Till the time the appellant hands over the  possession  to  the
respondent, the appellant shall pay a monthly  rent  of  Rs.4,000/-  to  the
respondent.


      Accordingly, the appeal is disposed off.


                                                          ….………………………………..J.
                                                                [S.A. BOBDE]



                                                          ….………………………………..J.
                                                             [ASHOK BHUSHAN]
New Delhi
February 13, 2017











-----------------------
[1]    The Uttar Pradesh Urban Buildings (Regulation of  Letting,  Rent  and
Eviction) Act, 1972
[2]    (1962) 1 SCR 9
[3]    (1953) 4 SCR 773
[4]    Page 19, (1962) 1 SCR  9
[5]    Page 20, (1962) 1 SCR  9
[6]    (1972) 2 SCC 668
[7]    (2002) 3 SCC 481

whether the conviction of the appellants under Section 302 IPC is sustainable. = the evidence of a person does not become effaced from the record merely because he has turned hostile and his deposition must be examined more cautiously to find out as to what extent he has supported the case of the prosecution.= had weapons in their hands, but the sequence of events that have been narrated by the witnesses only show that the weapons were used during altercation in a sudden fight and there was no pre-meditation. Injuries as reflected in the post-mortem report also suggest that appellants have not taken “undue advantage” or acted in a cruel manner. Therefore, in the fact situation, exception (4) under Section 300 IPC is attracted. The incident took place in a sudden fight as such the appellants are entitled to the benefit under Section 300 exception (4) IPC.= In the result, conviction of the appellants under Section 302 IPC read with Section 34 IPC is modified as conviction under Section 304 Part I IPC and the sentence is reduced to the period already undergone and these appeals are partly allowed accordingly.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                    CRIMINAL APPEAL NOS. 206-207 OF 2017

ARJUN AND ANR. ETC. ETC.                          ..….Appellants

                                   Versus

STATE OF CHHATTISGARH                                       ……Respondent


                               J U D G M E N T

R. Banumathi, J.

These appeals arise out of the judgment and order  dated  30.08.2013  passed
by the High Court of Chhattisgarh in Criminal Appeal  Nos.111  of  2008  and
100 of 2008 whereby the High Court affirmed the conviction and  sentence  of
life imprisonment imposed by the trial Court on the appellants.

2.    Briefly stated case of the prosecution is that on 19.11.2006 at  about
9:45 a.m., deceased Ayodhya Prasad @ Rahasu had gone to his field  alongwith
Bajrang Manjhi (PW-1), Borri Verma (PW-2), Gilli Raout  (PW-7)  and  Makunda
Raout (PW-8) to cut tree with the help of the above  persons  which  was  on
his land in village Ghatmadwa.  At that time,  the  appellants-accused  came
to the field and they stopped the deceased and his  labourers  from  cutting
the tree. Deceased Ayodhya Prasad @ Rahasu told the appellants that  he  was
the owner of the tree, therefore, he was cutting the tree which resulted  in
quarrel between the parties.  The appellants  assaulted  the  deceased  with
katta, gandasa and stone.  The deceased fell down and sustained injuries  on
his head and his brain matter came  out.   He  was  taken  to  Bilaspur  for
treatment but he died on the way to the hospital.

3.    Shivprasad (PW-6), brother of the deceased  lodged  the  complaint  in
Police Outpost  Gidhouri.    Based  on  the  complaint,  FIR  (Ex.P-16)  was
registered in Police Station Bilaigarh.  PW-10,  the  Investigating  Officer
reached the place of occurrence and took up the  investigation.   After  the
inquest, the body was sent for autopsy. The  post-mortem  was  conducted  by
Dr. Harnath Verma (PW-12) who gave the Post Mortem Report   (Ex.P-26).   Dr.
Verma  opined  that  the  death  of  the  deceased  was  due  to   excessive
haemorrhage and injury to the head.

4.    PW-10, the Investigating Officer  arrested  the  appellants  from  the
Gidhouri Bus Stand and recorded their statements under  Section  27  of  the
Evidence Act.  Disclosure statement of the appellants led to  the  discovery
of iron katta (cutting object), gandasa and stone weighing   12.5  kg  which
were seized from Lalaram @ Bhagat, Arjun and Padumlal  respectively.   Sando
baniyan and full-pant of  appellant  Lalaram  @  Bhagat  were  also  seized.
Seized articles  were  sent  to  Forensic  Science  Laboratory,  Raipur  for
chemical examination vide Ex.P-23. After completion  of  the  investigation,
chargesheet was filed against  the  appellants  in  the  Court  of  Judicial
Magistrate, First Class Balodabazar, who, in turn,  committed  the  case  to
the Court of Session, Raipur, from where it  was  received  on  transfer  by
Second  Additional  Sessions  Judge,  Balodabazar,  District   Raipur,   who
conducted the trial.

5.    In order to prove its case, prosecution examined  as  many  as  twelve
witnesses.  Bajrang Manjhi (PW-1), Borri Verma (PW-2), Gilli  Raout   (PW-7)
and Makunda Raout (PW-8) are  the  eye-witnesses,  PW-6  Shivprasad  is  the
complainant and brother of the deceased Rahasu.  Constable  Gandlal  (PW-4),
Constable M.R. Sinha (PW-9) and Constable Bhojram (PW-11) were  involved  in
recording the statement  and  collection  of  evidence,  PW-10  Deen  Bandhu
Uaikey is the Investigating Officer and  PW-12  Dr.  Harnath  Verma  is  the
doctor who conducted the post-mortem.  The  accused  were  questioned  under
Section 313 Cr.P.C about the incriminating evidence and  circumstances,  the
accused denied all of them.  The accused pleaded that the  deceased  Ayodhya
Prasad attempted to take possession of the land  of  the  accused  by  force
and, therefore, they acted in self-defence of their body  and  property.  To
substantiate their defence plea, the  accused  have  examined  DW-1  Shrawan
Kumar and DW-2 Dwarika Prasad.

6.    Having considered the evidence of the witnesses and the  defence  plea
and  the  material  placed  before  it,   the  trial  court  held  that  the
appellants acted with common intention to  commit  the  murder  of  deceased
Ayodhya Prasad and found that the prosecution has proved the  guilt  of  the
accused beyond reasonable doubt and convicted the appellants  under  Section
302 IPC or 302/34 IPC and sentenced each of  them  to  undergo  imprisonment
for life and imposed fine of Rs.20,000/- and in default of payment  of  fine
to undergo rigorous imprisonment for two years.  Aggrieved  by  the  verdict
of conviction, the accused-appellants Arjun and Lalaram  together  filed  an
appeal and accused Padumlal filed a separate appeal before the  High  Court.
The High Court after hearing  the  counsel  for  the  parties  affirmed  the
conviction of the appellants  and  sentence  imposed  by  the  trial  court.
Aggrieved by the conviction and sentence imposed  on  them,  the  appellants
are before us in these appeals by way of special leave.

7.    Learned counsel for the appellants submitted that the name of  accused
Arjun has  never  found  mention  in  the  evidence  of  witnesses  and  the
prosecution has failed to prove his presence at the place of  incident.   It
was further submitted that the eye  witnesses  have  named  only  Padum  and
Lalaram and not Arjun and thus, his conviction  under                Section
302/34 IPC was unsustainable in the eyes of law. It was contended that  PW-6
Shivprasad is the real brother of the deceased and it  would  be  unsafe  to
base conviction on such an interested testimony. It is also the case of  the
appellants  that  mere  recovery  of  gandasa  from  accused  Arjun   cannot
establish his guilt as it is normal that most of the  farmers  have  gandasa
in their possession and mere recovery without establishing its  use  defeats
the case of the prosecution.

8.    Per contra, the learned counsel for  the  State  submitted  that  even
though PW-6 Shivprasad is the brother  of  the  deceased,  his  evidence  is
supported by other evidence and  also  the  recovery  of  weapons  from  the
appellants. It was further submitted that even though prosecution  witnesses
Bajrang Manjhi (PW-1), Borri Verma (PW-2),  Gilli  Raout(PW-7)  and  Makunda
Raout (PW-8) were treated hostile, their evidence establish the presence  of
the accused and their overt act of surrounding  the  deceased  and  to  that
extent,  corroborate  the  version  of  PW-6  Shivprasad.   It  was  further
submitted that considering the nature of weapon used by the  appellants  and
the manner of attack, the trial court as well  as  the  High  Court  rightly
convicted  the  appellants  under      Section  302  IPC  and  the  impugned
judgment warrants no interference.

9.    We have heard learned counsel for the parties at  length  and  perused
the impugned judgment and the materials placed on record.

10.   Shivprasad PW-6 is the real brother of the deceased. PW-6 has  deposed
in his evidence that on 19.11.2006 at about 8:45 a.m., his  brother  Ayodhya
Prasad @ Rahasu had gone to the field for cutting of  trees  alongwith  four
labourers who are eye witnesses i.e. PWs 1, 2, 7 and 8 and at that time  A1-
Lalaram, A2-Padumlal and A3-Arjun came there  with  katta  and  gandasa  and
surrounded the deceased quarrelled with him and prevented him  from  cutting
the tree.  The accused told the deceased that they are  the  owners  of  the
land and questioned him as to  why  he  was  cutting  the  tree.   When  the
deceased replied that he was the owner of the tree and he had the  right  to
cut the tree, there was  wordy  altercation  between  the  accused  and  the
deceased and the accused attacked him with the  weapons  they  had,  namely,
katta, gandasa and a stone.  The deceased sustained injuries  on  his  head,
neck, back and abdomen and fell down on the field. He further  deposed  that
he witnessed the incident from near the shop and the  distance  between  the
shop and the place of occurrence is 15 to 20 feet and due to  fear,  he  did
not go near.

11.   Shivprasad (PW-6) is the brother of  the  deceased,  his  relationship
with the deceased does not affect  the  credibility  of  the  witness.  Only
because PW-6 is related to the deceased that may not by itself be  a  ground
to discard his evidence. Where the prosecution case rests upon the  evidence
of a related witness, it is well-settled that  the  court  shall  scrutinize
the evidence with care as a rule of prudence and not as a rule of  law.  The
fact of the witness being related to the victim  or  deceased  does  not  by
itself discredit the evidence.

12.   In Mano Dutt and Anr. vs. State of Uttar Pradesh (2012) 4 SCC  79,  in
para (33), this Court held as under:-
“33. The court can convict an accused on the statement of  a  sole  witness,
even if he was a relative of the deceased and  thus,  an  interested  party.
The condition precedent to such an order  is  that  the  statement  of  such
witness should satisfy the legal  parameters  stated  by  this  Court  in  a
catena of judgments. Once those parameters are satisfied and  the  statement
of the witness is trustworthy, cogent and  corroborated  by  other  evidence
produced by the prosecution, oral or documentary, then the court  would  not
fall in error of law in relying upon the statement of such  witness.  It  is
only when the courts find that the single eyewitness is a wholly  unreliable
witness  that  his  testimony  is  discarded  in  toto  and  no  amount   of
corroboration can cure its defect. Reference in this regard can be  made  to
the judgment of this Court, in Anil Phukan v. State of Assam  (1993)  3  SCC
282.”


We find no reason to discard the evidence of PW-6 for the sole  reason  that
he is related to the deceased and that he is an interested witness.
13.   To bring home the guilt  of  the  accused,  prosecution  has  examined
Bajrang Manjhi (PW-1), Borri Verma (PW-2), Gilli Raout  (PW-7)  and  Makunda
Raout (PW-8), the labourers who accompanied the  deceased  for  cutting  the
trees.  In his evidence, PW-1 Bajrang Manjhi stated that he alongwith  Borri
Verma (PW-2), Gilli  Raout  (PW-7)  and  Makunda  Raout   (PW-8)  went  with
deceased Ayodhya for cutting the trees at about         7:00-8:00  a.m.  and
the deceased showed them three trees to be cut.  PW-1  further  stated  that
while they were cutting the tree, the  appellants  Padum  and  Lalaram  came
there and questioned them about cutting of tree and asked them to  go  away.
PW-1 further stated that the appellants Lalaram and Padum were  having  iron
knife and they surrounded the deceased.  PW-1 further  stated  that  out  of
fear, he and other labourers namely, Borri Verma (PW-2), Gilli Raout  (PW-7)
and Makunda Raout (PW-8) ran away from  the  scene  and  after  about  20-25
minutes they came to know that Ayodhya Prasad  was  murdered.  To  the  same
extent, is the evidence of  Borri  Verma  (PW-2),  Gilli  Raout  (PW-7)  and
Makunda Raout (PW-8).

14.   All the four eye witnesses have corroborated that  the  accused  Padum
and Lalaram were present. Further, according to PW-8 Makunda Raout,  accused
Padum and Lalaram were present and immediately  on  fleeing  away  from  the
spot, PW-8 Makunda Raout after some distance turned back and saw that  there
were three accused persons standing surrounding the deceased.  The  presence
of two accused in the beginning and later on joining of  the  third  accused
Arjun is what falls from the evidence  of  PW-8.  Evidence  of  PW-8,  thus,
corroborates the evidence of PW-6 as to the presence of three accused.

15.   Though the eye witnesses PWs 1, 2, 7 and 8 were treated as hostile  by
the prosecution, their testimony insofar as  the  place  of  occurrence  and
presence of accused in the place of the incident and  their  questioning  as
to the cutting of the trees and two accused surrounding  the  deceased  with
weapons is not disputed.  The trial court as well as the High Court  rightly
relied upon the evidence of PWs 1, 2, 7 and 8 to the above  said  extent  of
corroborating the evidence of PW-6 Shivprasad. Merely because the  witnesses
have turned hostile in part their evidence cannot be rejected in  toto.  The
evidence of such witnesses cannot be treated as effaced altogether  but  the
same can be accepted to the  extent  that  their  version  is  found  to  be
dependable and the court shall examine more cautiously to  find  out  as  to
what extent he has supported the case of the prosecution.

16.   In Paramjeet Singh alias Pamma vs. State of Uttarakhand (2010) 10  SCC
439, it was held as under:-
“16. The fact that the witness was declared hostile at the instance  of  the
Public Prosecutor and he was allowed to cross-examine the witness  furnishes
no justification  for  rejecting  en  bloc  the  evidence  of  the  witness.
However, the court has to be very careful, as prima  facie,  a  witness  who
makes different statements at different times, has no regard for the  truth.
His evidence has to be read and considered as a whole with a  view  to  find
out whether any weight should be attached to it. The court  should  be  slow
to act on the testimony of such a witness;  normally,  it  should  look  for
corroboration to his testimony. (Vide State of Rajasthan v.  Bhawani  (2003)
7 SCC 291.)

17. This Court while deciding the issue in Radha Mohan  Singh  v.  State  of
U.P. (2006) 2 SCC 450 observed as under: (SCC p. 457, para 7)
“7. … It is well settled 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  witness  cannot  be
treated as effaced or washed off the record altogether but the same  can  be
accepted to the extent his version is found to be dependable  on  a  careful
scrutiny thereof.”

18. In Mahesh v.  State  of  Maharashtra  (2008)  13  SCC  271,  this  Court
considered the value of the deposition of a  hostile  witness  and  held  as
under: (SCC p. 289, para 49)
“49. … If PW 1 the maker of the complaint has chosen not to corroborate  his
earlier statement made in the complaint and recorded  during  investigation,
the conduct of such a witness for no plausible and tenable  reasons  pointed
out on record, will give rise to doubt the testimony  of  the  investigating
officer who had sincerely and honestly conducted  the  entire  investigation
of the case. In these circumstances, we are of the view that PW 1 has  tried
to conceal the material truth from  the  Court  with  the  sole  purpose  of
shielding and protecting  the  appellant  for  reasons  best  known  to  the
witness and therefore, no benefit  could  be  given  to  the  appellant  for
unfavourable conduct of this witness to the prosecution.”

19. In Rajendra v. State of U.P. (2009) 13  SCC  480,  this  Court  observed
that merely because a witness deviates from his statement made in  the  FIR,
his evidence cannot be held to be totally unreliable. This Court  reiterated
a similar view in  Govindappa  v.  State  of  Karnataka  (2010)  6  SCC  533
observing that the deposition of a hostile witness can  be  relied  upon  at
least up to the extent he supported the case of the prosecution.

20. In view of the above, it is evident that the evidence of a  person  does
not become effaced from the record merely because he has turned hostile  and
his deposition must be examined more cautiously  to  find  out  as  to  what
extent he has supported the case of the prosecution.”
The same view is reiterated in Mrinal Das and  Ors.  vs.  State  of  Tripura
(2011) 9 SCC 479 in para (67) and  also  in  Khachar  Dipu  alias  Dilipbhai
Nakubhai vs. State of Gujarat (2013) 4 SCC 322 in para (17).

17.   The contention of the accused is that the eye witnesses PWs  1,  2,  7
and 8 have not mentioned the  name  of  appellant  Arjun.   Appellant  Arjun
could have not been convicted, does not merit acceptance.  In his  evidence,
PW-8 Makunda Raout stated that when  they  started  cutting  trees,  accused
Padum and  Lala  came  there  and  surrounded  Ayodhya  Prasad  and  started
questioning.  After that PW-8 and other eye  witnesses  ran  away  from  the
spot.  PW-8 further stated that after some distance, he turned back and  saw
three persons surrounding the deceased. The  evidence  of  PW-8  establishes
the presence of two accused in the  beginning  and  that  Arjun  joined  two
other accused and  the  presence  of  appellant  Arjun  spoken  by  PW-6  is
corroborated by the evidence of PW-8. That apart, recovery of  gandasa  from
appellant  Arjun  is  an  incriminating  circumstance/evidence  against  the
appellant Arjun and concurrent findings recorded by the  courts  below  that
appellant Arjun was also responsible for the homicidal death of  Ayodhya  is
based on evidence.

18.   PW-12 opined that the cause of death was  haemorrhagic  shock  due  to
head injuries and the death  was  homicidal  in  nature.   Medical  evidence
corroborates the oral testimony of PWs 6 and 10.  Recovery of  weapons  i.e.
katta (cutting object), gandasa and stone from the  accused  Lalaram,  Arjun
and Padum respectively  also  substantiates  the  prosecution  version.  The
prosecution has established that the  appellants  are  responsible  for  the
homicidal death of deceased Ayodhya Prasad.

19.   The point falling for consideration is whether the conviction  of  the
appellants under Section 302 IPC is sustainable.  As discussed earlier,  the
evidence clearly establishes that while Ayodhya Prasad and  other  witnesses
were cutting the trees, there  was  exchange  of  words  which  resulted  in
altercation and during the said altercation,  the  appellants  attacked  the
deceased.  Thus, the incident occurred due to a sudden fight which,  in  our
view, falls under exception (4) of Section 300 IPC.

20.   To invoke  this  exception  (4),  the  requirements  that  are  to  be
fulfilled have been laid down by this Court  in  Surinder  Kumar  vs.  Union
Territory of Chandigarh (1989) 2 SCC 217, it has been explained as under:-
“7. To invoke this exception four requirements must  be  satisfied,  namely,
(i) it was a sudden fight; (ii) there was no premeditation;  (iii)  the  act
was done in a heat of passion; and (iv) the  assailant  had  not  taken  any
undue advantage or acted in a cruel manner. The cause of the quarrel is  not
relevant nor is it relevant who  offered  the  provocation  or  started  the
assault. The number  of  wounds  caused  during  the  occurrence  is  not  a
decisive factor but what is important is that the occurrence must have  been
sudden and unpremeditated and the offender must  have  acted  in  a  fit  of
anger. Of course, the offender must not have taken any  undue  advantage  or
acted in a cruel manner. Where, on a sudden quarrel, a person  in  the  heat
of the moment picks up a weapon which is handy and causes injuries,  one  of
which proves fatal, he would be entitled to the benefit  of  this  exception
provided he has not acted cruelly…………..”

21.   Further in the case of Arumugam vs. State, Rrepresented  by  Inspector
of Police, Tamil Nadu, (2008) 15 SCC 590,  in support of the proposition  of
law that under what circumstances exception (4) to  Section 300 IPC  can  be
invoked if death is caused, it has been explained as under:-
“9.   …….
“18. The help of Exception 4 can be invoked if death is caused  (a)  without
premeditation; (b) in a sudden fight;  (c)  without  the  offender’s  having
taken undue advantage or acted in a cruel or unusual  manner;  and  (d)  the
fight must have been  with  the  person  killed.  To  bring  a  case  within
Exception 4 all the ingredients mentioned in it must be found. It is  to  be
noted that the ‘fight’ occurring in Exception 4 to Section 300  IPC  is  not
defined in the Penal Code, 1860. It takes two  to  make  a  fight.  Heat  of
passion requires that there must be no time for the passions  to  cool  down
and in this case, the parties had worked themselves into a fury  on  account
of the verbal altercation in the beginning. A fight is a combat between  two
and more persons whether with or without weapons.  It  is  not  possible  to
enunciate any general rule as to  what  shall  be  deemed  to  be  a  sudden
quarrel. It is a question of fact and whether a quarrel  is  sudden  or  not
must necessarily depend  upon  the  proved  facts  of  each  case.  For  the
application of Exception 4, it is not sufficient to show that  there  was  a
sudden quarrel and there was no premeditation.  It  must  further  be  shown
that the offender has not  taken  undue  advantage  or  acted  in  cruel  or
unusual manner. The expression ‘undue advantage’ as used  in  the  provision
means ‘unfair advantage’.”


22.   The accused, as per the version of PW-6 and  eye  witness  account  of
other witnesses, had weapons in their hands,  but  the  sequence  of  events
that have been narrated by the witnesses only show  that  the  weapons  were
used during altercation in a sudden fight and there was  no  pre-meditation.
Injuries  as  reflected  in  the  post-mortem  report  also   suggest   that
appellants have not taken “undue advantage” or  acted  in  a  cruel  manner.
Therefore, in the fact situation, exception (4) under  Section  300  IPC  is
attracted.   The  incident  took  place  in  a  sudden  fight  as  such  the
appellants are entitled to the benefit under Section 300 exception (4) IPC.

23.   When and if there is intent and knowledge, then the same  would  be  a
case of Section 304 Part I IPC and if it is only a  case  of  knowledge  and
not the intention to cause murder and bodily injury, then the same would  be
a case of Section 304 Part II IPC.  Injuries/incised  wound  caused  on  the
head  i.e.  right  parietal  region  and  right  temporal  region  and  also
occipital region, the injuries indicate that the  appellants  had  intention
and knowledge to cause the injuries and thus it  would  be  a  case  falling
under Section 304 Part  I  IPC.  The  conviction  of  the  appellants  under
Section 302 read with Section 34 IPC is modified under Section 304   Part  I
IPC.  As per the Jail Custody Certificates on record,  the  appellants  have
served 9 years 3 months and 13 days as on 2nd March, 2016,  which  means  as
on date the appellants have served 9 years 11 months.  Taking  into  account
the facts and circumstances in which the offence  has  been  committed,  for
the modified conviction under Section  304  Part  I  IPC,  the  sentence  is
modified to that of the period already undergone.

24.   In the result, conviction of the  appellants  under  Section  302  IPC
read with Section 34 IPC is modified as conviction under Section 304 Part  I
IPC and the sentence is reduced to the period already  undergone  and  these
appeals are partly allowed accordingly. The appellants  are  ordered  to  be
released forthwith unless required in any other case.

25.   Fee of the learned Amicus is fixed as per Rules.



                                             …….…………...………J.
                                             [DIPAK MISRA]



                                             …………….……………J.
                                             [R. BANUMATHI]
New Delhi;
February 14, 2017

Section 106 of the Indian Evidence Act, 1872 imposes an obligation on the accused to explain as to what happened after they were last seen together =There is one circumstance pertaining to recovery which could not be proved by the prosecution beyond reasonable doubt. The High Court held that recovery of the weapon and the severed cut head of the deceased was not corroborated by PW-7 and PW-14 who were seizure list witnesses. The High Court also held that the recorded version of the statement made by the Appellant which led to recovery was not produced by the prosecution. The High Court found that there was no evidence to show as to which particular article was recovered at whose instance pursuant to the joint statement made by the accused. The High Court proceeded to hold that the circumstances relating to recovery was not proved by the prosecution. The High Court concluded that the Appellant was guilty on the basis of other circumstantial evidence. We are in agreement with the conclusion of the High Court that though the recovery was not proved, the other circumstantial evidence is sufficient to prove the guilt of the accused.

                                                              Non-Reportable


                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL No.130 of 2012

DILIP MALLICK
                                                              .... Appellant
                                   Versus
STATE OF WEST BENGAL
                                                                ….Respondent

                               J U D G M E N T


L. NAGESWARA RAO, J.
      This Appeal is filed against the  judgment  dated  22.03.2010  of  the
High Court of Judicature at Calcutta in Criminal Appeal No.326  of  2005  by
which the conviction of the Appellant under Section 302 Indian  Penal  Code,
1860  (hereinafter  referred  to  as  the  ‘IPC’)  and  sentence   of   life
imprisonment by  the  Additional  Sessions  Judge,  Fast  Track  2nd  Court,
Siliguri in Sessions Trial No.03/04 dated 11.02.2005 was confirmed.
A decapitated body  was  found  lying  in  the  Chandmuni  Tea  Estate  near
Himachal Behar Abasan Project at 13:15 hours on 03.02.2004.   On  the  basis
of  a  written  complaint  made  by  Bhupendra  Nath  Singh   (PW-12),   the
investigation commenced and the Appellant along with Hira Routh and  Khogesh
Bansfore were arrested.

During the course of investigation the statements of  accused  persons  were
recorded on 04.02.2004. The accused led the police to Chandmuni  Tea  Estate
area where the cut head was found wrapped with the wearing  apparel  of  the
deceased Sambhu Mallick son of late Pandi Mallick of  Kuli  Para,  Siliguri.
It was found concealed with soil and dry leaves  in  a  garden  drain.   The
body and the head of the deceased were identified by  his  relatives.    The
decapitated body and the cut head were sent for  post-mortem  to  the  North
Bengal Medical College and Hospital  and  the  seized  articles  along  with
wearing apparel of the deceased were sent to the R.F.S.L., Jalpaiguri.   The
weapon used for the commission of offence was also recovered  on  the  basis
of the  statement  and  disclosure  made  by  the  accused  persons  from  a
concealed place on 08.02.2004.

Charges under Sections 302/201/34 IPC were  framed  against  all  the  three
accused persons who pleaded not guilty and claimed to  be  tried.   After  a
detailed consideration of the entire  evidence  on  record,  the  Additional
Sessions Judge, Fast  Track  2nd  Court,  Siliguri  found  all  the  accused
persons guilty of committing an offence under  Section  302/201/34  IPC  and
sentenced them to suffer imprisonment for  life.   The  Trial  Court  relied
upon the testimonies of PW-3, PW-4 and PW-5 who are the  family  members  of
the deceased – Sambhu Mallick in its detailed discussion of  oral  evidence.
 PW-3, the wife of the deceased deposed that her husband was  a  sweeper  by
profession and at about 02:00 pm on 02.02.2004  the  three  accused  persons
and the father of Dilip Mallick came to their house and asked  the  deceased
to accompany them for cleaning a safety tank.  The Appellant took the  cycle
of deceased Sambhu Mallick and carried him on the cycle.   As  the  deceased
did not return home, PW-3 started searching for him in  the  evening.    She
went to the house of the Appellant  and  was  informed  by  the  Appellant’s
father that her husband and the Appellant  went  to  clean  a  safety  tank.
The deceased did not return home that night.  She met the Appellant  on  the
next day morning and enquired about her husband.   The Appellant  asked  her
to go to Matigara Police Station.  PW-3 deposed that she went to the  Police
Station but did not find him there.  On 04.02.2004 she came to know about  a
beheaded body near Chandmuni Tea Estate area. It was identified to  be  that
of her husband by her  mother-in-law  and  sister-in-law  from  his  wearing
apparel.   PW-4  and  PW-5  are  the  sister  and  mother  of  the  deceased
respectively who corroborated the evidence of PW-3.

The post mortem over the beheaded body and the cut  head  was  conducted  by
Dr.  U.B.  Ray  Chaudhary  (PW-10)  at  North  Bengal  Medical  College  and
Hospital.  The post mortem report Exh. 11 which was issued  by  PW-10  shows
that there were eight stab injuries on the chest, stomach  and  other  vital
parts of the body.  It was stated in the post mortem  report  that  proximal
and distal part of the neck fitted snugly with each other and that the  head
and the rest of the body belonged to the same  individual.   PW-14  was  the
witness to the seizure list marked as Exh.17 in respect of  recovery  of  an
iron made Khukri used in the crime.   It  was  approximately  13  inches  in
length with a wooden butt  and  was  recovered  as  per  the  statement  and
information of the accused on 08.02.2004.

The  Trial  Court  held  that  the  chain  of  circumstances   was   clearly
established by clinching evidence which proved that the accused persons  had
committed the offence.  The Appellant and the other accused Hira  Routh  and
Khogesh Bansfore challenged their  conviction  and  sentence  by  filing  an
Appeal before the High Court of Calcutta.  The  counsel  appearing  for  the
State conceded that the evidence against Hira  Routh  and  Khogesh  Bansfore
was not sufficient for their conviction and that she could not  support  the
judgment of the Trial Court in respect of  their  conviction  and  sentence.
The High  Court  re-appreciated  the  evidence  on  record  and  upheld  the
conviction and  sentence  of  the  Appellant  qua  Section  302  IPC.    The
Appellant was acquitted of the charge under Section 201 IPC.  The other  two
accused, Hira  Routh  and  Khogesh  Bansfore,  were  acquitted  of  all  the
charges. The High Court held that there  were  three  circumstances  against
the Appellant. The three circumstances relied upon by  the  High  Court  are
that the accused and the deceased were last seen together, that the  accused
attempted to mislead PW-3 regarding the  whereabouts  of  the  deceased  and
that the  accused  did  not  offer  any  explanation  about  the  events  of
02.02.2004. The High Court held that though the prosecution failed to  prove
the recoveries made pursuant to the joint disclosure  statement,  the  other
circumstances clearly pointed to the guilt of the accused.

After hearing the counsel for both the parties, we have  examined  the  oral
and documentary evidence on record and  we  are  of  the  opinion  that  the
judgment of the High Court does not warrant any  interference.   This  is  a
case  of  circumstantial  evidence.   The  approach   to   be   adopted   in
appreciation of evidence in cases of circumstantial evidence is by now  well
settled.   The  facts  in  cases  of  circumstantial  evidence   should   be
consistent only with  the  hypothesis  of  guilt  of  the  accused  and  the
circumstances should be of conclusive nature  and  tendency.   It  has  been
held by this Court that the chain of evidence should be complete as  not  to
leave  any  reasonable  ground  for  the  conclusion  consistent  with   the
innocence of the accused and must show that in  all  human  probability  the
act must have been done by the accused.  (See (1984) 4  SCC  116).   On  the
basis of the above well-settled principles, we proceed  to  examine  whether
the accused can be held to be guilty.

PW-3, PW-4 and PW-5  who  are  the  family  members  of  the  deceased  were
consistent in their testimonies that the  deceased  and  accused  were  last
seen together at around 02:00 pm on 02.02.2004. There is  a  burden  on  the
accused to give an explanation about  what  happened  after  they  left  the
house of the deceased.   No  explanation  was  given  about  the  events  of
02.02.2004 after  they  left  from  the  house  of  the  deceased.   In  the
examination under Section 313 Cr. P.C. the accused denied any  knowledge  of
the crime  and  alleged  false  implication.   Section  106  of  the  Indian
Evidence Act, 1872 imposes an obligation on the accused  to  explain  as  to
what happened after they were last seen together. PW-3 gave evidence to  the
effect that the accused was not  found  in  his  house  in  the  evening  on
02.02.2004 when she went to enquire about her missing  husband.    She  also
stated that when she met the accused on the next day  morning,  the  accused
misled her by saying that she  should  go  to  Matigara  Police  Station  in
search of her husband.   It is clear that  the  accused  who  was  with  the
deceased on the earlier day did not give a proper answer to PW-3  and  asked
her to go to the  Matigara  Police  Station  which  indicates  that  he  was
suggesting  to  PW-3  to  complain  to  the  police.    These   are   strong
circumstances against the accused.

There is one circumstance pertaining to recovery which could not  be  proved
by the prosecution beyond  reasonable  doubt.   The  High  Court  held  that
recovery of the weapon and the severed cut head  of  the  deceased  was  not
corroborated by PW-7 and PW-14 who were seizure list  witnesses.   The  High
Court also held that the recorded version  of  the  statement  made  by  the
Appellant which led to recovery was not produced  by  the  prosecution.  The
High Court found that there was no evidence to show as to  which  particular
article was recovered at whose instance  pursuant  to  the  joint  statement
made  by  the  accused.   The  High  Court  proceeded  to  hold   that   the
circumstances relating to recovery was not proved by the  prosecution.   The
High Court concluded that the Appellant was guilty on  the  basis  of  other
circumstantial evidence.   We are in agreement with the  conclusion  of  the
High  Court  that  though  the  recovery   was   not   proved,   the   other
circumstantial evidence is sufficient to prove the guilt of the accused.

We affirm the judgment of the  High  Court  and  dismiss  the  Appeal.   The
Appellant was enlarged on bail by this Court vide order dated 05.02.2016  on
the ground of his prolonged incarceration for 11 years.  He is  directed  to
surrender before the jail authorities immediately to undergo  the  remaining
part of his sentence, failing which the authorities concerned  are  directed
to proceed in accordance with law.

........................................J
        [S. A. BOBDE]


                    ..……................................J
                                                   [L. NAGESWARA RAO]

New Delhi,
February 14, 2017