The Forensic Science Laboratory, Mumbai, has forwarded a report to this Court and going by the report, “Eknath Govind Hatkar and Anita Eknath Hatkar are concluded to be the biological parents of the child Amol Anna Hatkar”.

                                                              NON-REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 5588 OF 2017
              [@ SPECIAL LEAVE PETITION (C) NO. 34505 OF 2016 ]

      ANITA W/O EKNATH HATKAR                       Appellant (s)

                                VERSUS

      ADDITIONAL COMMISSIONER NASHIK AND ORS.       Respondent(s)


                               J U D G M E N T

KURIAN, J.
1.    Leave granted.
2.    The appellant had approached this Court, aggrieved by the  proceedings
initiated against her for disqualification on the  ground  of  having  three
children, the third child having born after the cut-off date.
3.    On 05.12.2016, the Court passed the following order on  the  basis  of
submission made by the learned counsel for the appellant :-

      “Learned counsel for the petitioner submits, on instruction, that  the
child by name Amol Anna Hatkar is not born from the appellant.   He  further
submits that the appellant is prepared for a DNA test.
      In  view  of  the  above  submissions,  issue  notice,  returnable  on
3.2.2017.
      We direct the petitioner and the child by name  Amol  Anna  Hatkar  to
have a DNA test conduct within a  period  of  eight  weeks  from  today  and
produce the reports before the Court.
      Till the next date of hearing, there shall be  stay  of  operation  of
the disqualification.”

4.    The Forensic Science Laboratory, Mumbai, has  forwarded  a  report  to
this Court and going by the report, “Eknath Govind Hatkar and  Anita  Eknath
Hatkar  are concluded to be the biological parents of the  child  Amol  Anna
Hatkar”.

5.    In the above circumstances, we do not find any merit in  this  appeal,
which is, accordingly, dismissed.
      No costs.
                                                   .......................J.
                                                           [ KURIAN JOSEPH ]


                                                   .......................J.
                                                            [ R. BANUMATHI ]

      New Delhi;
      April 25, 2017.

a deliberate false statement regarding his education for securing the employment in the Bank.

                                                              NON-REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 5698 OF 2017
              [@ SPECIAL LEAVE PETITION (C) No.18228 OF 2016 ]

      BAIJNATH PRASAD                               Appellant(s)

                                VERSUS

      THE CENTRAL BANK OF INDIA AND ORS             Respondent(s)


                               J U D G M E N T

KURIAN, J.

1.    Leave granted.
2.    Disciplinary proceedings were initiated against the appellant  on  the
ground  that  he  knowingly  made  a  false  statement  pertaining  to   his
employment  in  the  Bank.   Though  he  was  matriculate,  he  claimed  the
appointment as a sub-staff, producing a certificate  of  having  passed  8th
standard.  Thereafter, he appeared for matriculation again with a  different
date of birth, as  alleged,  and  after  having  passed  the  matriculation,
secured promotion to the post of Clerk.

3.    While continuing as Clerk, the  respondent-Bank  received  information
that the appellant had made  a  deliberate  false  statement  regarding  his
education for securing the employment in  the  Bank.   Thus,  on  initiating
disciplinary action, he was  discharged  from  service  with  superannuation
benefits.  The departmental remedies were unsuccessful to the appellant.

4.     In the High Court, the learned Single  Judge  took  a  view  that  he
should be reinstated by denying one increment with cumulative effect,  based
on a circular.  On appeal, the Division Bench found that  the  circular  was
not applicable in the case of the appellant and hence, the order  passed  by
the learned Single Judge was set aside and the order of discharge passed  by
the Bank was restored.

5.    Thus aggrieved, the appellant is before this Court in appeal,  by  way
of special leave.

6.    On 10.04.2017, the Court passed the following order :-
      “Learned counsel appearing for respondent No. 1/Bank  is  directed  to
get instruction as to whether the misconduct alleged against the  petitioner
would come under gross misconduct and whether  the  gravest  punishments  of
discharge was the only punishment permissible  for  the  alleged  misconduct
and why a lesser punishment was not equitable in the circumstances.”

7.     Sh. Ashish Wad,  learned  counsel,  inviting  our  reference  to  the
bipartite settlement, submitted that as a matter of fact, the appellant  was
visited  with  only  a  lesser  punishment  since  dismissal,  removal   and
compulsory retirement were the other higher modes  of  punishment,  but  the
Bank has taken a lenient view by imposing the punishment of  discharge.   On
the contrary, Mr. Subhro Sanyal, learned counsel for the appellant,  submits
that the other punishments of reduction of  scale  of  pay  to  two  stages,
stoppage of an increment without cumulative effect,  withdrawal  of  special
pay, warning or entry of  adverse  remarks  or  fine  were  also  prescribed
punishments for proved gross misconduct.

8.    Having extensively heard the learned counsel  appearing  on  both  the
sides and having regard also to the fact  that  the  appellant  is  only  46
years of age and that he belongs to a backward class, we  are  of  the  view
that this is an eminently fit case for invocation  of  Article  142  of  the
Constitution of India for doing complete justice.

9.    The appeal is, hence, disposed of as follows :-
i)    The punishment imposed on the appellant  shall  stand  substituted  as
reduction to the lower rank of sub-staff from the date of his  promotion  to
the post of Clerk.
ii)   The appellant shall be treated and continued as sub-staff  only,  till
his superannuation.
iii) He shall be reinstated in service within two weeks.
iv)   He shall not be  entitled  to  any  backwages.   However,  the  period
between the discharge and reinstatement shall be treated as service for  all
other purposes in the category of sub-staff.  However,  there  shall  be  no
recovery of any salary drawn by the appellant as a Clerk.

10.   Needless also to make it  clear  that  being  an  order  passed  under
Article 142 of the Constitution of India, this case shall not be treated  as
a precedent.
      No costs.
                                                   .......................J.
                                                           [ KURIAN JOSEPH ]


                                                   .......................J.
                                                            [ R. BANUMATHI ]

      New Delhi;
      April 25, 2017.

When the conviction can only be under section 326 read with section 149 of the IPC. instead of Sec.302 IPC = The accused were part of a large group of 25 persons and no specific role has been ascribed to them. The other accused who were similarly situated to them have been acquitted and no appeals were preferred by the State against their acquittals. Moreover, the main assailants were also acquitted. We have also carefully perused the injury certificate and the post- mortem report. Almost all the injuries were found on the hands and legs of the deceased. Though the accused were carrying deadly weapons, there is no allegation that they had caused injuries to the vital parts of the deceased or Om Prakash. There is no doubt that Bhebharam was attacked by the accused and he died due to the injuries caused by the accused. We do not see any reason to interfere with the findings of the courts below that the accused had attacked the deceased, who died due to the injuries sustained by him. For the reasons mentioned above, we are of the view that the appellants are not liable for conviction under Section 302/149 IPC. In facts and circumstances of this case, we are convinced that the conviction under Section 302/149 has to be modified to Section 326/149 IPC.

                                                              Non-Reportable
                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
                       CRIMINAL APPEAL NO.349 OF 2012


JAGDISH PRASAD @ J.P.& ORS.            ....APPELLANT(S)
                                   VERSUS
STATE OF RAJASTHAN                           ....RESPONDENT(S)
WITH
CRIMINAL APPEAL NO.350/2012
CRIMINAL APPEAL NOS.2278-2279/2014

                                  O R D E R
      These appeals have been  preferred  by  the  appellants   against  the
common impugned judgment and order dated 10.3.2011 passed by the High  Court
of Rajasthan in D.B. Criminal Appeal Nos.129/2000 and 84/2002, by which  the
conviction of the appellants for  offences  under  section  147,  148,  450,
302/149, 326/149, 325/149, 324/149, 323, 427 and 364  of  the  Indian  Penal
Code (for short, the 'IPC') by the  Trial  Court  was  upheld  by  the  High
Court.  The sentence of life imprisonment imposed by  the  Trial  Court  was
also confirmed.
      Banwari Lal (PW5) lodged a complaint in the  Police  Station  Kotwali,
Seekar at 10.30 a.m. on 12.09.1998.  He  alleged  that  he  along  with  his
brothers Bhebharam (deceased) and Om Prakash (PW6)  were  sitting  in  their
shop. PW2 Sanwar Mal, PW9 Mohan Singh and Tara Chand also  joined  them.  At
10 a.m., Om Prakash stepped out of the shop and  went  to  Jankinath  market
gate to order for some tea.   At  that  time,  he  was  assaulted  by  10-15
persons near the Jankinath market.
      PW5 Banwari Lal, PW2 Sanwar Lal, PW21 Mohan Lal and  Mangi  Lal  PW22,
rushed out of the shop and saw 10-15 persons beating Om Prakash with  lathi,
sword, farsi and sariyas. Thereafter, the assailants entered  the  shop  and
launched an attack on Bhebharam (deceased) and  Om  Prakash.  The  shop  was
ransacked and the deceased Bhebharam was dragged out of the  cabin.  It  was
also alleged that Shyama attempted to hit Om Prakash with a farsi blow  with
an intention to kill him. Om Prakash avoided the attack and in  the  process
his left hand's middle finger  was  chopped  off.   Both  Bhebharam  and  Om
Prakash were abducted in a Jeep and taken away.   Bhebharam  (deceased)  and
Om Prakash were found in injured condition near Gaushala in Dataramgarh  and
were taken to Seekar Hospital.  Bhebharam  was  referred  to  SMS  Hospital,
Jaipur, as his condition was serious.   Bhebharam  died  at  12.30  p.m.  on
13.9.1998.
      FIR No.438/98 for offences under sections 147,  148,  323,  427,  395,
364, 307, 450 and 149 of IPC was registered  on  12.09.1998  and  after  the
death of Bhebharam, offence under section 302 of IPC was added.
      A charge-sheet  was  initially  submitted  against  12  persons  while
keeping the investigation pending. We  are  informed  that  there  were  six
trials that were separately conducted for the offences mentioned above.  The
appellants before us were shown as accused in two trials and the accused  in
other four trials were  acquitted  by  the  Trial  Court.  No  appeals  were
preferred by the State against the said acquittals.  The High  Court  upheld
the conviction of the appellants who are before us for all  the  aforestated
offences except for the offence  under  section  307/149  of  the  IPC.  The
sentence of life imprisonment that was  recorded  by  the  trial  court  was
confirmed by the High court.
      Mr. Basava Prabhu S. Patil, learned Senior Counsel appearing  for  the
appellants,  submits  that  the  FIR  is  ante-dated  and   ante-time,   the
prosecution version about the occurrence of the crime  at  Jankinath  Market
is doubtful and that there is clear inconsistency between the injury  report
and the post-mortem report. He also submits that the eye-witnesses  are  not
reliable and the statement of the deceased  (Bhebharam)  under  section  161
Cr.P.C. recorded on 12.9.1998  could  not  have  been  treated  as  a  dying
declaration under  section  32  of  the  Indian  Evidence  Act.  He  further
contended that, in any event, the conviction under  section  302  read  with
section 149 of  IPC  is  not  justified.  According  to  him,  even  if  the
prosecution version is to be accepted, the  conviction  can  only  be  under
section 326 read with section 149 of the IPC.
      A perusal of the evidence on record and the judgments  of  the  courts
below would reveal that the assailants Kesar  Jat  and  Shyama  Jat  against
whom specific overt acts were alleged,  have  been  acquitted.  It  is  also
clear from the record that five persons were travelling in a jeep  in  which
Bhebharam (deceased) and Om Prakash were abducted and taken to  Dataramgarh.
Four out of said five  persons  were  acquitted.  Admittedly,  there  is  no
appeal preferred by the respondent-State against the acquittal of Kesar  Jat
and Shyama Jat as also the acquittal of others who were  travelling  in  the
jeep.
      The accused were part of a large group of 25 persons and  no  specific
role has been ascribed to  them.   The  other  accused  who  were  similarly
situated to them have been acquitted and no appeals were  preferred  by  the
State against their acquittals.  Moreover, the  main  assailants  were  also
acquitted.
      We have also carefully perused the injury certificate  and  the  post-
mortem report. Almost all the injuries were found on the hands and  legs  of
the deceased. Though the accused were carrying deadly weapons, there  is  no
allegation that they had caused injuries to the vital parts of the  deceased
or Om Prakash.
      There is no doubt that Bhebharam was attacked by the  accused  and  he
died due to the injuries caused by the accused. We do not see any reason  to
interfere with the findings  of  the  courts  below  that  the  accused  had
attacked the deceased, who died due to the injuries sustained by  him.   For
the reasons mentioned above, we are of the view that the appellants are  not
liable for conviction under Section 302/149 IPC. In facts and  circumstances
of this case, we are convinced that the  conviction  under  Section  302/149
has to be modified to Section 326/149 IPC.
      We are informed that all the accused have already  undergone  rigorous
imprisonment for periods between 8 years and 7 months  to  12  years  and  8
months, except the appellants in Criminal Appeal Nos.2278-2279 of 2014,  who
have undergone rigorous imprisonment for 6 years and 5 years  and  2  months
respectively.
      Taking into account the long period of incarceration undergone by  the
appellants, we partly allow these appeals, convert  the  conviction  of  the
appellants from Section 302/149 to section 326/149 of  the  IPC  and  reduce
their sentence to the period already undergone by them. The  appellants  are
in jail. Their bail  bonds  stand  cancelled.  They  may  be  released  from
custody forthwith, if not required in any other case.
                                                       ....................J
                                                               [S. A. BOBDE]


                                                       ....................J
                                                          [L. NAGESWARA RAO]
NEW DELHI;
APRIL 26, 2017.

Order II Rule 2 CPC - Partition suit - Not applicable - Rule 2 Order 2 CPC does not apply if the cause of action in the subsequent suit is different from that of the former suit as held by this Court .- In the instant case it cannot be said that the second suit for partition was in respect of the same cause of action as that on which the previous suit was based. In respect of the cause of action of the previous suit plaintiff was not entitled to more than one relief. Hence, it could not be said that the plaintiff has omitted to sue for relief for which second suit has been filed. Suit for partition with respect to joint property is based on continuing cause of action, as such the suit for partition could not be said to be barred by Order II Rule 2 CPC

                                                                  Reportable



                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION



                        CIVIL APPEAL NO. 3110 OF 2012




BaPusaheb chimasaheb naik-
nimbalkar (dead through lrs.) & anr.    …Appellants

                                   VERSUS

mAhEsh vijaysinha rajebhosale
& ORS.
…Respondents



                               J U D G M E N T




ARUN MISHRA, J.



1.    The appeal has been  preferred  by  the  defendant  aggrieved  by  the
judgment and decree passed by the  trial  court  affirmed  by  the  District
Court and the High Court. The plaintiffs/respondents who are  the  sons  and
daughters of Anandibai, filed a suit for partition of the land comprised  in
Survey No. 43/2, area 319 acres,  36  guntas  situated  at  village  Jawali,
Taluk Phaltan, District Satara. The plaintiffs averred  that  the  land  was
ancestral property initially inherited by Jagdevrao who expired in 1928.  He
had three wives, namely, Bhagirathibai, Gajarabai and Kamalabai.  They  died
in the years 1927,  1950  and  1992  respectively.  Jagdevrao  had  one  son
Shankara Rao alias Bajirao who breathed his last on 6.2.1958.  His  daughter
Shakuntalabai died on 1.10.1962.  Shakuntalabai  died  issueless.  Anandibai
alias Sulochana, sister of Shankara Rao,  succeeded  to  the  property.  She
also died on 20.1.1977. Her property was inherited by the  plaintiffs  being
her sons and daughters. The suit was filed against Chimasaheb who  was  also
son of Jagdevrao. Chimasaheb died on 18.8.1982. Bapu Saheb,  appellant  No.1
and Vijayantadevi, appellant No.2 are his successors.

2.    Plaintiffs averred that the property originally belonged to  Parbatrao
and Jagdevrao. After death of Parbatrao, his son  Bapu  Saheb  succeeded  to
his property.  After  death  of  Jagdevrao,  names  of  his  two  sons  i.e.
Chimasaheb and  Shankara  Rao  were  mutated.  Shankara  Rao  had  only  one
daughter namely Shakuntalabai who died  on  1.10.1962.  She  was  unmarried.
Anandabai @ Sulochana succeeded to her property, being sister of her  father
i.e. daughter of Jagdevrao. Anandibai had filed a civil  suit  in  the  year
1963 for declaration of her share in certain other property.  The  suit  was
decreed and she was declared owner of ½ share. It was held  that   Anandibai
@ Sulochana was the heir of Shakuntalabai. The judgment  had  been  affirmed
by the High Court. The name of Anandibai was required to  be  mutated  after
death of Shakuntalabai. In the year 1976 the plaintiffs came  to  know  that
the name of Anandibai had not  been  mutated  over  the  land  in  question.
Anandibai @ Sulochana filed an appeal in which ex  parte  order  was  passed
against her. However as the defendants were trying to sell the land as  such
suit was filed for partition and separate possession.

3.    Defendants in their written statement contended that in  the  previous
civil suits filed by Anandibai, the property had not been included  as  such
the suit was barred by Order II Rule 2, CPC. It was also contended that  the
name of Shankara Rao was mutated during his life-time and  upon  his  death,
it was recorded in the name of Shakutalabai. The share of Shankara  Rao  was
partitioned and was allotted to the share of Chimasaheb.  Chimasaheb  denied
the plaintiff’s right in the year 1962 and had been  enjoying  the  property
as absolute owner for more than 12 years.  Therefore,  suit  was  barred  by
limitation.

4.    The  trial  court  decreed  the  suit  and  held  the  plaintiffs  and
defendants to be co-owners and in joint possession of the suit land  on  the
date of the suit. The defendants  were  not  in  exclusive  possession.  The
right, title and interest  of  Anandibai  @  Sulochana  was  not  denied  by
Chimasaheb before 16.7.1976. There was no ouster of the plaintiff. The  suit
for partition could not be said to be  barred  by  limitation.  Nor  it  was
barred by provisions of Order II Rule 2, CPC. The appellate court  had  also
affirmed the findings. The second appeal preferred had also  been  dismissed
vide impugned judgment and order, hence the appeal.

5.    It was contended by Mr. J.P. Cama, learned  senior  counsel  appearing
on behalf of the appellants that the suit was clearly barred  by  limitation
as per the provisions contained in Article  65(b)  of  the  Limitation  Act,
1963. It was also urged that the possession was adverse to the  interest  of
the plaintiffs, as they were claiming through Shakuntalabai,  Hindu  female,
who died in the year 1962, suit filed beyond 12 years in the year 1979,  was
clearly barred  by  limitation.  Apart  from  that,  the  property  was  not
included in the earlier suit preferred by  Anandibai  as  such  the  instant
suit filed by the plaintiffs was clearly barred by the provisions  contained
in Order II Rule 2, CPC.

6.    It was urged by Mr. S.B. Deshmukh,  learned  senior  counsel  for  the
respondents that Article 65(b) is not attracted  as  Shakuntalabai  was  the
full owner of the property and concurrent  findings  had  been  recorded  by
three courts  that  the  defendants  were  not  in  adverse  possession  and
plaintiffs were in joint possession on the date of filing of  the  suit.  As
the cause of action for earlier suit for declaration of title filed  in  the
year 1963 was different, the plaintiffs had succeeded to the  property  left
by Anandibai in the year 1977. In the earlier civil suit for declaration  of
title,  it  was  held  that  Anandibai  had  succeeded  to  the   share   of
Shakuntalabai. Subsequent suit for partition could not be said to be  barred
by the provisions contained in Order II Rule 2, CPC. The  earlier  suit  for
declaration of title filed by Anandibai was  with  respect  to  a  different
property.

7.    First we advert to the question of limitation as urged  on  behalf  of
the appellants on the strength of the provisions  contained  in  Article  65
Explanation (b) which is extracted under:

      “Article 65:

|65. For possession of        |Twelve years|When the       |
|immovable property or any    |            |possession of  |
|interest therein based on    |            |the defendant  |
|title.                       |            |becomes adverse|
|Explanation - For the        |            |to the         |
|purposes of this article-    |            |plaintiff.     |
|(a) Where the suit is by a   |            |               |
|remainder man, a reversioner |            |               |
|(other than a landlord) or a |            |               |
|devisee, the possession of   |            |               |
|the defendant shall be deemed|            |               |
|to become adverse only when  |            |               |
|the estate of the            |            |               |
|remainder-man, reversioner or|            |               |
|devisee, as the case may be, |            |               |
|falls into possession;       |            |               |
|(b) Where the suit is by a   |            |               |
|Hindu or Muslim entitled to  |            |               |
|the possession of immovable  |            |               |
|property on the death of a   |            |               |
|Hindu or Muslim female, the  |            |               |
|possession of the defendant  |            |               |
|shall be deemed to become    |            |               |
|adverse only when the female |            |               |
|dies;                        |            |               |
|(c) Where the suit is by a   |            |               |
|purchaser at a sale in       |            |               |
|execution of a decree when   |            |               |
|the judgment-debtor was out  |            |               |
|of possession at the date of |            |               |
|the sale, the purchaser shall|            |               |
|be deemed to be a            |            |               |
|representative of the        |            |               |
|judgement- debtor who was out|            |               |
|of possession.”              |            |               |


8.    It was submitted on behalf of the  appellants  that  Anandibai  became
entitled to possession of the property on the death of Shakuntalabai in  the
year 1962. The name of  Chimasaheb,  original  defendant,  was  mutated  and
possession of  Chimasaheb  became  adverse  w.e.f.  the  date  of  death  of
Shakuntalabai in the year 1962. Thus the suit preferred  by  the  plaintiffs
in the year 1979 beyond a period of  12  years,  was  hopelessly  barred  by
limitation. We are unable to accept the submission  as  Explanation  (b)  to
Article 65 of the Act is applicable only in the case where property  is  not
claimed through the female but independently of  woman  who  has  died.  The
word “entitled” contained in Explanation (b) to Article 65 clearly  means  a
person is entitled independently of the right of  the  Hindu  or  Mohammedan
female.  In  case  she  is  absolute  owner  Article  65(b)  will  have   no
application. In other words, it is necessary to trace the right  to  someone
else and not to the Hindu or Mohammedan female, as the case may be.  In  the
instant case, Shakuntalabai, daughter of Shankara Rao became absolute  owner
of the property on 6.2.1958  and  on  her  death  on  1.10.1962,  the  right
accrued to Anandibai on the basis of  inheritance  made  from  Shakuntalabai
who was the owner of the ½ share in question. When the property  is  claimed
from a woman, Hindu or Mohammedan, who was the full owner, it could  not  be
said that Anandibai or  the  plaintiffs  became  entitled  to  the  property
independently of the rights of female  i.e.  Shakuntalabai.  Thus  the  suit
filed by such heir of female for separate possession/partition would not  be
governed by Explanation (b) to Article 65. In such a case  limitation  would
not commence as per Explanation (b) to Article 65 on death of female  Hindu.
However, the starting point of limitation for computation of 12 years  would
be the date of start of adverse possession otherwise.

9.    In Hashmat Begam & Anr. v. Mazhar Husain & Ors.  (1888)  ILR  10  All.
343, a Division Bench  has  opined  that  the  word  “entitled”  has  to  be
understood  in  Explanation  (b)  to  Article  65   as   meaning   “entitled
independently of the right of the Hindu or Muhammadan female”. Similar  view
has been taken in Ghisa Singh & Anr. v.  Gajraj  Singh  AIR  1916  Oudh  50,
Mohammad Yaqub v. Bijai Lal AIR 1918 Oudh 32, and Zarif un-nisa  &  Ors.  v.
Chaudhri Shafiq-uz-zaman & Ors. AIR  1923  Oudh  185.   Explanation  (b)  to
Article 65 is not applicable to a heir of Hindu or Mohammedan female who  is
full owner of the property as it could not be said that  the  person  became
entitled to the property independently  of  the  right  of  the  female  but
derives right through her. Hence, the suit by such a heir could not be  said
to be governed by Explanation (b) to Article 65 as held in Hashmat  Begam  &
Anr. (supra), Ghisa Singh (supra), Mohammad Yaqub (supra), Zarif  un-nisa  &
Ors. (supra); and Malkarjun Mahadev Belure v. Amrita Tukaram Dambare &  Ors.
AIR 1918 Bom. 142 on consideration of  provisions  of  Article  141  of  the
Limitation Act.

10.   Learned counsel appearing on behalf of the appellant has  relied  upon
the decision of this Court in Jagat Ram v. Varinder  Prakash  (2006)  4  SCC
482. In the said case Smt.  Kirpi  was  given  life  interest  in  the  suit
property as long as she was alive and after her death the  property  was  to
be inherited by her daughter Smt. Manshan. The  trial  court  dismissed  the
suit as barred by  limitation.  The  first  appeal  was  allowed  which  was
challenged before the High Court in the  second  appeal  and  the  same  was
allowed by the  High  Court.  It  was  held  that  Kirpi  had  no  right  of
maintenance. The case was covered by section 14(2) of the  Hindu  Succession
Act and not by section 14(1). The suit filed in the year 1982 was barred  by
limitation as the widow who had life interest, had died on 5.9.1967 and  the
suit for possession was not filed within 12 years of her death.  This  Court
opined that the suit was barred by limitation, relying upon  Article  65(b),
this Court has laid down thus :

      “3. Sunder had  executed,  during  his  life  time,  a  gift  deed  on
23.6.1920 in favour of his daughter Smt Manshan (mother of  the  plaintiff).
He died on 17.9.1941. On 3.8.1945 Smt. Kirpi, widow of  Sunder,  filed  suit
against Smt Manshan which finally resulted in a  compromise  to  the  effect
that Smt Kirpi will enjoy the suit property as long as  she  was  alive  and
after her death the property will be inherited by her daughter  Manshan.  It
appears that on 23.8.1958, Smt Kirpi executed an  adoption  deed  in  favour
her second daughter's son, namely Varinder Prakash – the defendant and  also
executed gift deed in his favour. Smt  Manshan,  mother  of  the  plaintiff,
filed a suit on 27.5.1959 for cancellation  of  the  gift  deed  and  for  a
declaration that the adoption was illegal.  The  suit  was  decreed  by  the
trial court on 16.1.1960. On 5.9.1967, Smt. Kirpi, widow  of  Sunder,  died.
The decree obtained by Smt Manshan  was  ultimately  challenged  in  Letters
Patent Appeal before the High Court by the defendant,  which  was  dismissed
on 18.11.1981.

                                  x x x x x

      6.    In our view, the High Court was right in holding that  the  suit
was  barred  by,  limitation.  Article 65 of  the   Limitation   Act,   1963
prescribes the period of limitation for possession of immovable property  or
any interest based on title where the suit is by a Hindu or Muslim  entitled
to possession of immovable property on  the  death  of  a  Hindu  or  Muslim
female. Article 65(b) in express terms provides that "the possession of  the
defendant shall be deemed to become adverse only when the female dies".  The
limitation  prescribed  is  12  years  beginning  from  the  date  when  the
possession of the  defendant  becomes  adverse  to  the  plaintiff.  Learned
counsel submitted that in view of Article 65 of  the  Limitation  Act,  1963
the suit had to be filed  within  12  years  from  the  date  on  which  the
possession  of  the  defendant  became  adverse  and,  therefore,   it   was
immaterial as to when the Hindu female died. It is not possible  to  sustain
the contention because the article itself provides that  the  possession  of
the defendant shall be deemed to become adverse only when the  female  dies.
Thus, there is no scope for the argument that limitation does not  run  from
the date on which the Hindu female died and  that  it  would  start  running
from some other date. In our view, the High Court has rightly held that  the
suit should have been filed by the plaintiff within 12 years  of  the  death
of the Hindu female, namely Smt Kirpi, and the same having  not  been  filed
within 12 years was barred by limitation. Much was sought to be made of  the
pending litigation relating to  the  adoption  and  gift  deed  executed  in
favour of the defendant. It was contended before us that  since  the  matter
was still pending and though  the  plaintiff's  suit  had  been  decreed  on
16.1.1960, the plaintiff could not have filed the  instant  suit  till  such
time as the Letters Patent. Appeal was not dismissed by the High Court  i.e.
till 18.11.1981. The submission has no substance because in  the  litigation
which was pending before the  High  Court  the  plaintiff  had  not  claimed
possession of the suit land. The High Court has  rightly  pointed  out  that
even if the plaintiff had sought amendment of the pleadings in  the  pending
matter and claimed decree for possession,  the  legal  position  would  have
been different. He having not done so, he should have  filed  the  suit  for
possession of the suit land within 12 years of  the  death  of  Smt.  Kirpi,
which he failed to do.”



      The  decision  is  totally  distinguishable  as  Kirpi  had  life-time
interest and the plaintiffs became entitled to possession on the  demise  of
said widow on 5.9.1967. The suit was filed on 14.12.1982 and it was held  to
be barred by limitation. In the instant case Shakuntalabai  was  not  having
life-interest but she was the full  owner  of  the  property,  thus  Article
65(b) has no application to the instant case.

11.   Another decision of this Court in Ranbir Singh & Ors. v. Kartar  Singh
& Ors. AIR 2003 SC 1858 may also be referred to, in  which  this  Court  had
observed in the backdrop of the fact that the widow had inherited  the  life
estate in the ancestral property of her husband  and  brother.  The  parties
were governed by custom under which  a  widow  having  life  estate  in  the
ancestral property does not have the right of alienation. Way-back  in  1936
the widow made an oral gift of some of the properties to collaterals of  her
deceased husband. On the demise of widow  in  1968,  her  daughter-plaintiff
filed a suit against the collaterals for possession of  the  shares  in  the
properties. It was held that the suit was not governed by the Punjab Act  of
1920 and suit for possession could be filed within 12 years  from  the  date
of cause of action that had arisen to plaintiff on the death of  her  mother
on 2.9.1968, obviously under Article 65(b) but the same  was  again  a  case
where mother  was  having  a  life  interest.  In  the  instant  matter,  as
Shakuntalabai was not having a life interest, Article 65(b) of the  Act  has
no application.

12.   Article 65(b) applies where the female  was  a  ‘limited  owner’  with
regard to the disputed property.  Hence,  if  the  sale  is  not  for  legal
purposes, it would not be binding on the estate,  the  husband’s  heirs  who
would be entitled to inherit the estate after the widow’s  death,  would  be
entitled on such death to sue for the recovery  of  the  property  from  the
purchaser. As their right would be one derived  from  the  husband  and  not
from the widow, it would be independent of the widow and they would  be  the
persons “entitled to sue for possession of the property on the death of  the
widow” within the meaning of Explanation  (b)  to  Article  65.  Hence,  the
above Explanation will apply to their suit and they would be entitled  to  a
period of 12 years from the widow’s death within which to bring the suit  as
held by Full Bench verdicts in Amar Singh & Ors. v.  Sewa  Ram  &  Ors.  AIR
1960 Punjab 530, Harak Singh v. Kailash Singh and Anr.  AIR 1958  Pat.  581;
and Mt. Lukai W/o Katikram and Ors. vs. Niranjan Dayaram and  Ors. AIR  1958
MP 160.

13.    In  the  instant  case  possession  never  became  adverse   to   the
plaintiffs. There is concurrent finding recorded that  the  plaintiffs  were
in joint possession of the disputed land on the date of filing of the  suit.
The defendants have taken the plea of ouster and the  suit  has  been  filed
beyond 12 years of death of Shakuntalabai but they have  not  been  able  to
prove their  adverse  possession.  On  the  contrary  the  finding  is  that
Chimasaheb admitted the title of Anandibai.  The finding is that till  1976,
Chimasaheb never denied the title of  Anandibai.  Be  that  as  it  may.  As
adverse possession has not been concurrently found by the three  courts  and
in this case the starting point of limitation  would  not  be  the  date  of
death of Shakuntalabai in the year 1962 as she was full owner, as such  suit
could not be said to be barred by limitation.

14.   Coming to the second question raised on behalf of  the  appellants  as
to the suit being barred by Order II Rule 2 of the CPC, suffice  it  to  say
that the earlier suit based on different cause of action for  a  declaration
for one-half  of  the  share  in  certain  other  properties  was  filed  by
Anandibai in the year 1963. At that time the property in  question  was  not
included in the suit. It had been found by courts below, the  suit  of  1963
was based on different cause of action on the basis of deed of 1957  whereas
in the instant case, cause of action is different. It is  on  the  basis  of
death of absolute owner Shakuntalabai in the  year  1962,  Anandibai  became
owner and plaintiffs had in turn inherited from Anandibai.  Thus  the  cause
of action of the suit in the present case for  partition  is  different  and
dispute as to mutation had been subsequently decided.  Thus,  the  suit  for
partition as filed, could not be said to be barred by Order II Rule  2  CPC.
The defendants were trying to sell the property in the  year  1979  as  such
the plaintiffs in the suit prayed for  partition  and  separate  possession.
Plaintiffs could not have claimed interest in the land in the  life-time  of
Anandibai and the cause of action in the previous suit  for  declaration  of
title filed by Anandibai was materially different.

15.   Rule 2 Order 2 CPC does not apply  if  the  cause  of  action  in  the
subsequent suit is different from that of the former suit as  held  by  this
Court in State of M.P. v. State of Maharashtra (1977) 2 SCC  288.  In  State
of Maharashtra v. National Construction Co.  (1996)  1  SCC  735,  when  the
first suit was filed to enforce bank guarantee whereas second suit to  claim
damages for breach of underlying contract, this Court  laid  down  that  the
subsequent suit was not barred by Order  2  Rule  2  CPC.  In  the  case  of
continuing or recurring wrong there would  be  corresponding  continuing  or
recurring causes of action when the first suit was based on infringement  of
plaintiff’s  trade  mark,  second  suit  was  on  the  continuing   act   or
infringement of its trade mark and continuous passing of  action  subsequent
to filing  of  the  earlier  suit,  in  Bengal  Waterproof  Ltd.  v.  Bombay
Waterproof Mfg. Co. (1997) 1 SCC 99, it was held that the cause  of  actions
in two suits were different as such the bar of Order II Rule 2 CPC  was  not
attracted. The essential requirement for applicability of Order  II  Rule  2
CPC is to establish the identity of causes of action in  the  previous  suit
and the subsequent suit so as to attract the bar as  held  in  Deva  Ram  v.
Ishwar Chand (1995) 6 SCC 733 and Gurbux Singh  v.  Bhooralal  AIR  1964  SC
1810.

16.   In the instant case it  cannot  be  said  that  the  second  suit  for
partition was in respect of the same cause of action as that  on  which  the
previous suit was based. In respect of the cause of action of  the  previous
suit plaintiff was not entitled to more than one  relief.  Hence,  it  could
not be said that the plaintiff has omitted  to  sue  for  relief  for  which
second suit has been  filed.  Suit  for  partition  with  respect  to  joint
property is based on continuing cause  of  action,  as  such  the  suit  for
partition could not be said to be barred by Order II Rule 2 CPC.  Submission
to the contrary is too tenuous to be accepted.

17.   Resultantly, the appeal being devoid  of  merits,  deserves  dismissal
and the same is hereby  dismissed.  Costs  of  Rs.25,000/-  to  be  paid  by
appellants to the Supreme Court  Bar  Association  Welfare  Trust  within  a
period of two months from today.



                                                                ……………………….J.
                                                               (Arun Mishra)




                                              ............................J.
                                                           (S. Abdul Nazeer)
NEW DELHI;
APRIL 25, 2017.

contradictions between the ocular and medical evidence, non-examination of Police officer who conducted seizure and subsequent improvement by one of the eye witness casts a serious doubt on the prosecution’s case.= It is on record that at the instance of the accused—appellant, police have recovered (Ext.P7) from arhar field the lathi allegedly used in the offence. However, nowhere it is recorded that the seized lathi contained any sharp edges with iron coated. Even it was not sent for examination of Dr. R.K. Dixit (PW 13) to ascertain whether the fatal injury could be resulted by it. Moreover, the record says that the blood on the bloodstained cap of deceased (Ext. P9) seized from the place of occurrence did not tally with that of the deceased. Another glaring deficiency is that Sub-Inspector who conducted the seizure proceedings and prepared the Ext. P7 (seizure memo) has not been examined by the prosecution. It is settled proposition in criminal jurisprudence that ordinarily, the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eyewitnesses.[1] In this case the nature of injury, contradiction about the time of arrival of the witnesses, contradictions between the ocular and medical evidence, non-examination of Police officer who conducted seizure and subsequent improvement by one of the eye witness casts a serious doubt on the prosecution’s case. For the foregoing reasons, we cannot hold the accused—appellant guilty of the offence in the present case.

                                                                  REPORTABLE



                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO. 333 OF 2013


Baliraj                                                                Singh
…Appellant

                                   Versus

State                  of                   Madhya                   Pradesh
…Respondent





                                  JUDGMENT





N.V. RAMANA,  J.



This appeal arises out of impugned Judgment and Order  dated  12th  January,
2012 passed by a Division Bench of High Court of  Madhya  Pradesh,  Jabalpur
in Criminal Appeal No. 533 of 1994 upholding  the  conviction  and  sentence
passed by the learned trial Court  against  the  appellant  herein  for  the
offence punishable under Section 302/34, IPC.



The facts, limited for the purpose of dealing with this appeal, as  divulged
by the prosecution case are that on  6th  January,  1992,  Hira  Singh  Gond
(Complainant—PW 7) lodged an FIR at Bahri  Police  Station,  Sidhi  District
stating that his brother Mangal Singh had  gone  to  the  fields  to  answer
nature’s call, when Baliraj Singh  (A1  &  Appellant  herein)  and  Baijnath
Singh (A2) attacked him (Mangal Singh)  with  lathis  causing  instantaneous
death of Mangal Singh. Accordingly police registered Crime No. 5/92  against
the accused, body of the  deceased  was  sent  for  postmortem  examination,
lathis allegedly used in the crime  were  seized  at  the  instance  of  the
accused and charges were framed against them under Section  302/34,  IPC  to
which the accused pleaded not guilty and claimed trial.



In order to bring home the guilt of the accused,  prosecution  has  examined
13 witnesses, while no one was examined on the defense side.  On  the  basis
of statements of eyewitnesses, Ramrati (PW 9—wife of the deceased),  Chameli
(PW 8—wife of the  complainant  and  sister-in-law  of  the  deceased),  and
Lakhan Singh (PW 12—family friend of  the  deceased),  and  considering  the
medical evidence, the trial court came to the conclusion that  accused  were
guilty of committing the murder of  Mangal  Singh  (deceased).  Accordingly,
the trial  Court  convicted  the  accused  under  Section  302/34,  IPC  and
sentenced them to undergo imprisonment for life.



Aggrieved by the order of the trial court, both the accused  filed  criminal
appeal before the High  Court.   However,  during  the  pendency  of  appeal
before the High Court, Baijnath Singh (A2) had died, therefore his  sentence
got abated. The High Court also found the statements of eyewitnesses  to  be
cogent and trustworthy, therefore concurred with the judgment of  the  trial
Court and dismissed the appeal of the appellant-accused. Hence  the  present
appeal by way of special leave.



We have heard learned counsel for the parties at length. The case on  behalf
of the appellant as advanced by the learned counsel  is  that  most  of  the
prosecution   witnesses   are   interested   witnesses,   particularly   the
eyewitnesses belong to  one  family  and  they  had  a  longstanding  grudge
against the accused over property dispute between both families,  and  hence
the appellant was falsely implicated  in  retaliation.  The  testimonies  of
Hira Singh (PW 7—brother of the  deceased),  Chameli  (PW8—sister-in-law  of
the deceased), Ramrati (PW9—wife of  the  deceased)  and  Lakhan  Singh  (PW
12—family friend  of  the  deceased)  cannot  be  relied  on  as  they  were
inconsistent and lack credibility. Besides they are contrary to the  medical
evidence. According to the own deposition  of  Lakhan  Singh  (PW  12—family
friend of the deceased), he used to call the deceased  as  ‘maama’.  He  has
stated that he arrived first at the place of incident upon hearing  hue  and
cry of the deceased and saw the accused  running  away  from  the  scene  of
offence. But, as per the testimonies of Chameli (PW  8—sister-i-law  of  the
deceased) and Ramrati (PW 9—wife of the deceased) who reached the  place  of
occurrence afterwards, the accused were  still  beating  the  deceased  with
lathis. Contrary to their statements, Dr. R.K. Dixit (PW 13)  who  conducted
postmortem examination on the body of the deceased  opined  that  the  death
was caused due to fatal injury by a sharp  and  pointed  object  or  weapon.
Nowhere in their testimony, the  eyewitnesses  specified  that  the  accused
carried sharp edged weapons, attributing the fatal  injury  to  the  victim.
It is only before the trial Court,  Ramrati  (PW  9—wife  of  the  deceased)
improvised her version and deposed  that  when  she  reached  the  place  of
occurrence, the accused were beating her  husband  with  lathis  which  were
coated with iron. Her statement cannot be  made  basis  for  convicting  the
accused as she is very much an interested witness, more so when there is  no
specific averment as to who caused the fatal injury on the neck, leading  to
the death of the victim. It was not appropriate on the part of Courts  below
to ignore the fact that the eyewitnesses deposed that they saw  the  accused
giving beatings to  the  victim  with  sticks  while  the  medical  evidence
suggests that the cause of  death  was  by  a  sharp  edged  weapon.  Before
substantiating the  crime  against  accused,  the  courts  below  failed  to
scrutinize the prosecution evidence with utmost care when  the  eyewitnesses
are closely related. Only by  placing  reliance  on  couched  evidence,  the
trial Court recorded conviction of the accused. The High Court also  ignored
just principles of law to ensure that the prosecution should prove its  case
beyond reasonable doubt and in a mechanical  way  fastened  crime  with  the
appellant and committed serious error by upholding conviction.



Adverting to the above arguments, learned counsel for  the  State  submitted
that the ocular testimony of PWs  8  and  9  remained  consistent  and  duly
corroborated by the medical evidence.  There  was  no  suspicion  for  false
implication of the accused as the eyewitnesses had  categorically  explained
the beatings given by the accused leading to  the  death  of  Mangal  Singh.
There was specific statement by PW 9 (wife of the deceased) that the  sticks
with which accused given beatings to the deceased  were  coated  with  iron.
The Courts below were at no fault in appreciating  the  direct  evidence  of
eyewitnesses so as to connect the accused with the commission of  the  crime
and the judgment of conviction under Section 302/34, IPC does not  call  for
any interference by this Court.



In the backdrop of what has been argued  by  the  learned  counsel  for  the
parties and in the light of relevant material available  on  record  we  may
now proceed with  our  observations.  Admittedly  there  was  no  peace  and
harmony between the victim and accused groups  as  they  locked  horns  with
each other over a longstanding dispute dating back  30  years,  relating  to
mutation  proceedings  of  some  landed  property.    The  thrust   of   the
prosecution to prove the charge against the  appellant  was  mainly  on  the
evidence of Chameli (PW 8)—wife of the complainant Hira Singh and sister-in-
law of the deceased, Ramrati (PW 9)—wife of the deceased  and  Lakhan  Singh
(PW12)—family friend of the deceased,  to  make  an  endeavor  that  in  all
probability it was the accused who committed the guilt.



We find from the record that PW12—Lakhan  Singh  was  the  first  person  to
reach the place of occurrence when an alarm was raised  by  the  victim.  In
his statement to the police under Section 161, Cr.P.C. it was  unambiguously
stated in clear terms that when he reached the place of occurrence,  he  saw
the accused running away from the spot. It was not mentioned in the  FIR  or
in his statement to the  police  that  he  witnessed  the  accused-appellant
injuring the victim.  It is  only  in  his  deposition  before  Court,  with
variation to his earlier statement before the police, he  narrated  that  he
was present at the spot at the time of commission of offence  and  witnessed
the accused showering lathi blows on the deceased. He admittedly made  clear
that PWs 8 and 9 reached the place of occurrence afterwards.



On the other hand, PW 8 in  her  statement  deposed  that  she  saw  accused
beating the deceased with lathis due to which  the  deceased  had  sustained
injuries on head, neck and blood was oozing out from  there  and  there  was
sunlight at that time. PW 9 (wife  of  the  deceased)  also  made  the  same
statement however with some intensity  that  the  lathis  were  coated  with
iron. Veracity of the statements of these two witnesses is doubtful  at  the
threshold itself, as they do not  tally  with  the  statement  of  PW12  who
admittedly reached the place of occurrence first.



Considering the totality of the prosecution  case,  we  fail  to  understand
that at the time of such occurrence in  a  small  village,  when  there  was
sunlight and PW8 & PW9 along with villagers rushed upon  hearing  uproar  of
PW12, no attempt was made by any of the eyewitnesses or villagers  to  catch
hold of the accused. This lacuna in the prosecution  case  becomes  stronger
with the fact that in the FIR it was clearly mentioned,  as  PW8  saying  to
the complainant that upon hearing hue and cry from the field, PW9, PW12  and
other people of village rushed to the field. Though there was no  indication
in the FIR on PW8 herself rushing to the scene of  offence,  it  is  however
apparent  that  some  other  people  of  village  rushed  to  the  place  of
occurrence, but there was none among the villagers who rushed with PWs  8  &
9 as independent eyewitness.



 Thus, it is true that other than PW12—family friend of  the  deceased,  the
prosecution has not made any independent witness  from  the  village  people
who rushed to the place of offence along with PWs 8 & 9 on hearing  hue  and
cry from the field. The circumstances warrant application of  due  care  and
caution in appreciating the statements of eyewitnesses because of  the  fact
that the prime eyewitnesses  are  related  inter-se  and  to  the  deceased.
Hence, the prosecution has failed to put a strong case as we  cannot  attach
credence to the statements of PWs 8, 9 & 12. The courts below erred  in  not
applying the principle of strict scrutiny  in  assessing  the  evidences  of
eyewitnesses (PWs 8, 9 & 12).



Further, we find from the postmortem report (Annexure P1)  prepared  by  Dr.
R.K. Dixit (PW 13) upon examining the body of deceased,  that  there  was  a
punctured wound just below the angle of right mandible over the  right  side
of neck 1” x  ½” x 3” and on dissection, he  found  that  major  artery  was
punctured and trachea was cut. There was hematoma underlying the whole  side
of neck and in the opinion of Doctor, the  injury  was  caused  by  a  sharp
piercing object. In his evidence, Doctor (PW 13)  confirmed  that  cause  of
death was due to excessive hemorrhage form  the  punctured  wound  over  the
right side of neck caused by sharp piercing  object  and  due  to  punctured
major blood vessel, over right side of neck.



It is on record that at the instance of the accused—appellant,  police  have
recovered (Ext.P7)  from  arhar  field  the  lathi  allegedly  used  in  the
offence. However, nowhere it is recorded that  the  seized  lathi  contained
any sharp edges with iron coated. Even it was not sent  for  examination  of
Dr. R.K. Dixit (PW 13) to  ascertain  whether  the  fatal  injury  could  be
resulted  by  it.  Moreover,  the  record  says  that  the  blood   on   the
bloodstained cap of deceased (Ext. P9) seized from the place  of  occurrence
did not tally with that of the deceased. Another glaring deficiency is  that
Sub-Inspector who conducted the seizure proceedings and  prepared  the  Ext.
P7 (seizure memo) has not been examined by the prosecution.  It  is  settled
proposition in criminal jurisprudence that ordinarily, the value of  medical
evidence is only corroborative. It proves that the injuries could have  been
caused in the manner alleged and nothing more. The  use  which  the  defence
can make of the medical evidence is to prove that  the  injuries  could  not
possibly have been caused in the manner alleged and  thereby  discredit  the
eyewitnesses.[1] In this case the nature of injury, contradiction about  the
time of arrival of the witnesses,  contradictions  between  the  ocular  and
medical evidence, non-examination of Police officer  who  conducted  seizure
and subsequent improvement by one of the eye witness casts a  serious  doubt
on the prosecution’s case.



For the foregoing reasons, we cannot hold the  accused—appellant  guilty  of
the offence in  the  present  case.  The  conviction  against  appellant  as
recorded by the trial court and upheld by the High Court  is  therefore  set
aside and he is acquitted of  the  charges.  He  shall  be  set  at  liberty
forthwith if not required to  be  detained  in  connection  with  any  other
offence.



The appeal stands allowed accordingly.

                                         ..................................J
                                                              (N. V. Ramana)



                                          .................................J
                                                          (Prafulla C. Pant)

New Delhi
Dated:  April  25, 2017
ITEM NO.1A                 COURT NO.10               SECTION IIA
(For Judgment)

               S U P R E M E  C O U R T  O F  I N D I A
                       RECORD OF PROCEEDINGS

Criminal Appeal No(s).  333/2013

BALIRAJ SINGH                                      Appellant(s)

                                VERSUS

STATE OF MADHYA PRADESH                            Respondent(s)


Date : 25/04/2017 This appeal was called on for pronouncement of judgment
today.

For Appellant(s)
                     Mr. C. S. N. Mohan Rao,Adv.

For Respondent(s)
                     Mr. Mishra Saurabh,Adv.


            Hon'ble Mr. Justice N.V. Ramana pronounced the judgment  of  the
Bench comprising His Lordship and Hon'ble Mr. Justice Prafulla C. Pant.

            We cannot hold the accused-appellant guilty of  the  offence  in
the present case.  The conviction  against  appellant  as  recorded  by  the
trial court and upheld by the High Court is therefore set aside  and  he  is
acquitted of the charges.  He shall be  set  at  liberty  forthwith  if  not
required to be detained in connection with any other offence.

            This appeal stands allowed in terms  of  the  signed  reportable
judgment.



     [SUKHBIR PAUL KAUR]                         [S.S.R.KRISHNA]
        A.R.-CUM-P.S.                  ASSISTANT REGISTRAR

         (Signed reportable judgment is placed on the file)


-----------------------
[1]
      [2]    Solanki Chimanbhai Ukabhai v. State of Gujarat, AIR 1983 SC
484