When the appeal was pending before this Court, by way of an application filed in July, 2015, Respondent Nos. 1 and 2 offered an amount of Rs.80 Lakhs, whereas the intervenor had offered an amount of Rs.1.68 crores. Having regard to the background of the litigation, having regard to the dire necessity for the Deity to dispose of the property, having regard to the fact that Respondent Nos. 1 and 2 have been in occupation of the property since 1956 and that they have constructed their houses in the property, we are of the view that it is in the interest of all concerned to put a quietus to the litigations between the State and Respondent Nos. 1 and 2 of the sale of the property under Section 19 of the Orissa Hindu Religious Endowment Act.After considering the suggestions made from all quarters and having regard to the offers made before this Court, having regard to the circle rate and market rate and having regard to more than five decades of the admitted occupancy by Respondent Nos. 1 and 2, we fix the rate at Rs. 2.75 crores for the entire property now occupied by Respondent Nos. 1 and 2.This amount shall be deposited by Respondent Nos.1 and 2 within a period of three months from today. On such deposit, whatever rights available to Respondent Nos.1 and 2 in respect of property under Section 19 of the Act shall be transferred to them.

                                                              NON-REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 6122 OF 2008


      STATE OF ORISSA & ANR.                      Appellant(s)

                                VERSUS

      ABANI BALLAV DEY & ORS.                     Respondent(s)


                               J U D G M E N T

KURIAN, J.
1.    The application for intervention is dismissed.

2.    Appellant No. 1 - State of Orissa is aggrieved by the  impugned  order
dated 14.05.2008 passed by the High Court of Orissa in RSA No.  10  of  2002
and Misc. Case No. 65 of 2008.

3.    For the purpose of disposal of  this  appeal,  we  shall  extract  the
short impugned order as under :-

"The  appellants and respondent no. 2 have filed a petition under  Order  23
Rule 3 of the CPC for compromise stating therein that to cut short the  long
term litigation and for the benefit and improvement of the respondent no.  2
Religious Trust they want to compound the matter.   Previously  the  parties
had filed Misc. Case No.  189  of  2006  for  recording  compromise  in  the
appeal.  But the Tahasildar, Cuttack raised objection on the plea  that  the
property under litigation has high market value and the amount  contemplated
in compromise is very low.  Objection was also raised  by  the  Commissioner
of Endowments that in absence of the permission of the Commissioner  u/s  19
of the OHRE Act, the compromise cannot be effected as  the  compromise  will
create stitiban tenancy  in  favour  of  the  appellants.   The  prayer  for
compromise was  accordingly,  disallowed  for  want  of  permission  of  the
Commissioner of endowments u/s 19 of the OHRE Act.  The parties,  therefore,
filed the  present  petition  for  compromise  indicating  inter  alia  that
permission of the Commissioner of  endowments  has  been  obtained  for  the
compromise and the amount to be paid by the appellants has  been  raised  to
Rupees thirty lakhs.  Counter affidavit has been filed by  the  Commissioner
of Endowments wherein it is stated that Deputy  Commissioner  of  endowments
by successive letters dated 5.2.2008 and 31.3.2008 intimated the  respondent
No.2 that no permission can  be  accorded  for  compromise  in  the  greater
interest of the institution.  It is also indicated in the counter  affidavit
that present petition for compromise is not maintainable after the order  of
rejection in Misc. Case No. 189 of 2006.  Reply to  this  affidavit  of  the
Commissioner of Endowments has been filed by the respondent  no.  2  to  the
effect that the letters of  the  Deputy  Commissioner  of  Endowments  under
Annexures A & B are to be ignored as the Commissioner of Endowments in  Memo
No. 10864 dated 5.9.2007 granted permission to respondent no.  2  to  effect
compromise in the second appeal.

            In this regard, the appellants and respondent no. 2 rely on  the
order dated 28.4.1989 of the Commissioner of Endowments,  Orissa  passed  in
OA No. 171 of 1988-II under Section  19  of  the  Act,  Order  No.  7  dated
11.12.2006 of the Commissioner of Endowments in misc. Case No.  17  of  2005
and Memo No. 10864 dated 5.9.2007 of  the  office  of  the  Commissioner  of
Endowments,  Orissa.   On  the  other  hand,   learned   counsel   for   the
Commissioner of Endowments rely on Memo No. 1589  dated  5.2.2008  and  4369
dated  31.3.2008  issued  by  the  Deputy  Commissioner  of  Endowments   to
respondent no. 2.  In the order in A. No. 171of 1988 on the  prayer  of  the
respondent no. 2, the Commissioner of  Endowments  accorded  permission  for
sale of the lands of the religious institution fixing minimum  rate  at  Rs.
20,000/- per gunth for lands adjoining road and at the rate of Rs.  15,000/-
per gunth for other lands.  In order dated 11.12.2006 of Misc. Case  No.  17
of 2005 it is reflected that permission was sought for the  compromise,  but
because it was submitted that the matter does not come  within  the  purview
of section 19 of the OHRE Act, the misc. case was  dropped  and  the  matter
was left to be dealt with in management side.  In memo No. 10864  respondent
no.2 was permitted to enter into compromise in the second appeal, if  he  so
wants.  But thereafter, in Memo nos. 1589  dated  5.2.2008  and  4369  dated
13.3.2008 respondent no. 2 was  intimated  by  the  Deputy  Commissioner  of
Endowments that he cannot be permitted to enter into  a  compromise  in  the
greater  interest  of  the  institution.   All  these  documents  show  that
initially the Commissioner of Endowments  had  permitted  for  sale  of  the
lands  of  the  institution  for  rupees  seven  lakhs  approximately,   but
litigation crept in and no such sale could be  effected.   Now,  by  way  of
compromise respondent no. 2 is willing to create stitiban tenancy in  favour
of the appellants in respect of the same lands of religious  institution  in
exchange for a sum of Rs. 30,00,000/- to be paid by the  appellants  to  the
religious institution.  The  Commissioner  of  Endowments  has  also  passed
order and intimated the order to respondent no.2 that he can  enter  into  a
compromise.  The previous orders passed under section 19 of the Act and  the
present order permitting respondent no.2 to enter into compromise passed  by
the Commissioner of Endowments in substance amounts to accord of  permission
under section 19 of the OHRE Act.  Dr. Rath, learned counsel  appearing  for
Commissioner of Endowments, however, states that because the  money  aid  by
the appellants will  go  for  the  benefit  of  religious  institution,  the
parties may do well to raise the amount considering the fact that  the  suit
lands are now urban valuable lands.  After  this  submission  of  Dr.  Rath,
there was a discussion in open court and learned counsel for the  appellants
on  instruction  submitted  that  instead  of  rupees  thirty   lakhs,   the
appellants would pay rupees forty five lakhs and that  may  be  incorporated
in the terms of compromise.  A memo was also filed in this regard.


      Since the parties are willing to enter into  compromise  and  end  the
litigation and the Commissioner of Endowments has permitted  the  respondent
no. 1 to enter into such compromise and since  the  amount  offered  by  the
appellants is more than six and half times of the amount  initially  set  by
the Commissioner of Endowments, the prayer for  compromise  is  allowed  and
the appeal is disposed of on  compromise  according  to  the  terms  of  the
compromise.   The  compromise  petition  along  with  memo   enhancing   the
compromise amount from rupees thirty lakhs to rupees forty five  lakhs  will
form part of the decree.
      The appeal and misc. case are thus disposed of."

4.    It is the main contention of the State that the property of the  Deity
could not have been disposed of by way of a compromise  as  referred  to  in
the impugned order.  After having heard Mr. P. S. Patwalia,  learned  senior
counsel appearing for the  State  and  also  the  learned  counsel  for  the
respondents, on 14.01.2016, this Court passed the following order :-
"Having heard the learned Senior Counsel appearing for  the  appellants  and
also learned Senior Counsel for the respondents, we are of the view that  it
would be in the interest of all the parties, that the matter  is  considered
afresh by the Commissioner of Endowments in exercise of power under  Section
19 of the Orissa Hindu Religious Endowments Act, 1951.
      We Permit the Respondent No.3  herein  to  make  a  fresh  application
before the Commissioner within two weeks from today  and  the  Commissioner,
after hearing the appellant Nos. 1 and 2 as well  as  respondents,  consider
the application on merits and pass appropriate order within a period of  one
month thereafter.
      We make it clear that the orders already passed  by  the  Commissioner
of Endowments in the matter, shall not stand in the way of the  Commissioner
considering the matter afresh and passing appropriate orders.
      However, we make it clear that this order is passed without  prejudice
to the contentions raised by parties before this Court.
      Post after six weeks."

5.    The learned counsel appearing for the State today has  made  available
the order of the  Commissioner  of  Endowments,  Orissa,  Bhubaneswar  dated
24.02.2016.  According to the Endowment Commissioner also,  Respondent  Nos.
1 and 2 have long been in possession of the property.   The  Deity  and  the
Math are in a neglected position and for  want  of  funds,  no  improvements
could be made.  The Deity is badly in need of money  and  having  regard  to
the background of litigation,  the  property  needs  to  be,  in  any  case,
disposed of.  We shall extract the relevant consideration of  the  Endowment
Commissioner :-
"7..........The case land is located in urban area in one patch.   The  case
land is situated by the side of main road  which  runs  from  Biju  Pattnaik
Chhak to Deula Sahi of Cuttack Town.  Plot No.  321  has  been  recorded  as
Jalasaya kisam, but major part of that plot is filled with sand  and  earth.
Permission for sale of the case land was accorded in O.A.No.  171/1988  vide
order  dated  28.02.1989,  but  the  same  could  not  be  sold  within  the
stipulated period  of  one  year  due  to  several  litigations.   The  case
deity/institution is not getting any  income  from  the  case  land  due  to
number of litigations.  In case of sale of the case  land,  the  deity  will
get a considerable amount by way of interest from long  term  fixed  deposit
of the sale proceeds.  The report of the concerned Inspector  of  Endowments
as well as the Bench mark valuation of  the  case  land  obtained  from  the
District Sub-Registrar, Cuttack indicate that the cost of plot  no.  317  of
kisam Gharabari is Rs. 4  crores  forty  lakhs  (Rupees  four  crores  forty
lakhs) per acre.  The cost of plot No. 318 of kisam Bagayat is Rs. 2  crores
75 lakhs (Rupees two crores seventy five lakhs) per acre.  The cost of  plot
No. 320 of kisam Gharabari is Rs. 2  crores  75  lakhs  (Rupees  two  crores
seventy five lakhs) per acre.  The cost of plot No. 321  of  kisam  Jalasaya
is Rs. 2 crores 75 lakhs (Rupees two crores seventy five lakhs) per acre.

8.    Thus, I found that  the  case  land  belongs  to  the  deity  Sri  Sri
Raghunath Jew, bije Matha Sahi, Tulasipur of Cuttack Town under Bidanasi  P.
S. marfat Mahant Bijoy Narayan Ramanuja Das which has been reflected in  the
R.O.R.  vide  Ext.  1  produced  by  the   petitioners.    Admittedly,   the
deity/institution is public in nature.   So,  necessary  permission/sanction
order U/S. 19 of the O.H.R.E. Act, 1951 is required to sell  the  case  land
of the  deity  for  any  legal  necessity.   The  report  of  the  concerned
Inspector of Endowments and the R.O.R. of the case land and  the  management
file available in the Endowment Office indicate that  Mahant  Bijoy  Narayan
Ramanuja Das is the Hereditary Trustee of the deity/institution and as  such
he has filed the case U/s 19 of the O.H.R.E. Act, 1951 before the  Court  of
the Commissioner of Endowments, Odisha, Bhubaneswar in  order  to  sell  the
landed properties of the deity/institution for  legal  necessity,  which  is
beneficial for the deity/institution.

9.    As regards the legal necessity, I found that the  petitioner  Math  is
an old institution.  During my tour I have  seen  the  deity/institution  as
well as the case land located at Tulasipur of Cuttack Town.  The Temple  and
the surrounding  pucca  houses  of  the  institution  are  now  standing  in
dilapidated condition which require major  repair/renovation  and  for  that
purpose huge amount of money is  required.   The  deity/institution  has  no
funds  to  meet  the  above  expenses.   The  only  way  is  open   to   the
deity/institution to sell some  landed  properties.   The  deity/institution
has some cultivable lands which are now under  the  possession  of  the  the
institution.  But the case land is now under  the  possession  of  the  O.Ps
since long and the institution is not getting anything from the  case  land.
It will be very expensive on the part of the institution to evict  the  O.Ps
from the case land through litigations. Therefore, in my opinion it will  be
beneficial for the deity/institution to sell the case land in order to  meet
the above legal necessity of the deity/institution.  The O.Ps No.  1  and  2
are now staying over in the  case  land  with  their  family  members  after
constructing their house over it. The O.Ps are  now  ready  and  willing  to
purchase the case land at the reasonable rate fixed by this Court.   If  the
case  lands  are  sold  away  and  the  sale  proceeds  deposited   in   any
Nationalised   Bank   under   Long   Term   Fixed   deposit   scheme,    the
deity/institution will definitely get substantial income  annually  in  safe
of interest.  Hence, I feel that it is necessary to sell away the case  land
for   the   above   legal   necessity   which   is   beneficial   for    the
deity/institution.

6.    It  is  seen  from  the  order  at  Paragraph  5  that  prior  to  the
consideration of the matter, the Endowment Commissioner had given  a  public
notice and that, "In spite of publication of notice, no objection  has  been
received from any corner."

7.    The Endowment Commissioner having taken note  of  the  fact  that  the
circle rate available could be less than the  actual  market  price,  passed
the order for auctioning the property with upset price at Rs. 5  crores  per
acre for the first item, Rs. 4 crores per acre for the second item  and  Rs.
3 crores per acre for the third item.

8.    It is seen from the order passed by the  Endowment  Commissioner  that
even if the property is put to auction, it is likely to ensue a  long  drawn
litigation in the matter of eviction of the present occupants.

9.    Mr. Guru Krishna Kumar, learned senior  counsel,  on  instruction  and
after referring to the records, submits that Respondent Nos. 1  and  2  have
been in occupation of the property since 1956.

10.   The offer originally made by Respondent Nos. 1 and 2 before  the  High
Court was for Rs. 30 Lakhs, which was enhanced to Rs. 45 Lakhs  and  it  was
on Rs.45 Lakhs, the compromise was entered into and the appeal was  disposed
of by the High Court by the impugned Judgment in 2008.

11.   When  the  appeal  was  pending  before  this  Court,  by  way  of  an
application filed in July, 2015, Respondent Nos. 1 and 2 offered  an  amount
of Rs.80 Lakhs, whereas the intervenor had  offered  an  amount  of  Rs.1.68
crores.


12.   Having regard to the background of the litigation,  having  regard  to
the dire necessity for the Deity to dispose of the property,  having  regard
to the fact that Respondent Nos. 1 and 2 have  been  in  occupation  of  the
property since 1956 and that they  have  constructed  their  houses  in  the
property, we are of the view that it is in the interest of all concerned  to
put a quietus to the litigations between the State  and  Respondent  Nos.  1
and 2 of the sale of the property under  Section  19  of  the  Orissa  Hindu
Religious Endowment Act.

13.   After considering the suggestions made from all  quarters  and  having
regard to the offers made before this Court, having  regard  to  the  circle
rate and market rate and having regard to more  than  five  decades  of  the
admitted occupancy by Respondent Nos. 1 and 2, we fix the rate at  Rs.  2.75
crores for the entire property now occupied by Respondent Nos. 1 and 2.

14.   This amount shall be deposited by Respondent  Nos.1  and  2  within  a
period of three  months  from  today.   On  such  deposit,  whatever  rights
available to Respondent Nos.1 and 2 in respect of property under Section  19
of the Act shall be transferred to them.

15.   In view of the above observations and directions,  this  civil  appeal
is disposed of with no order as to costs.

16.   We make it  clear  that  this  Judgment  is  passed  in  the  peculiar
background of the case we have extracted above and the  same  shall  not  be
treated as a precedent.

                                                   .......................J.
                                                           [ KURIAN JOSEPH ]


                                                   .......................J.
                                                   [ ROHINTON FALI NARIMAN ]

      New Delhi;
      March 02, 2016.

grand-son has no birth right in the properties of grand-father and he cannot claim partition during lifetime of his father.= Section 6 of the Act, as it stood at the relevant time, provided for devolution of interest in the coparcenary property. Section 8 lays down the general rules of succession that the property of a male dying intestate devolves according to the provisions of the Chapter as specified in Clause (1) of the Schedule. In the Schedule appended to the Act, natural sons and daughters are placed as Class I heirs but a grandson, so long as father is alive, has not been included. Section 19 of the Act provides that in the event of succession by two or more heirs, they will take the property per capita and not per stirpes, as also tenants-in-common and not as joint tenants.-(i) When a male Hindu dies after the commencement of the Hindu Succession Act, 1956, having at the time of his death an interest in Mitakshara coparcenary property, his interest in the property will devolve by survivorship upon the surviving members of the coparcenary (vide Section 6). (ii) To proposition (i), an exception is contained in Section 30 Explanation of the Act, making it clear that notwithstanding anything contained in the Act, the interest of a male Hindu in Mitakshara coparcenary property is property that can be disposed of by him by will or other testamentary disposition. (iii) A second exception engrafted on proposition (i) is contained in the proviso to Section 6, which states that if such a male Hindu had died leaving behind a female relative specified in Class I of the Schedule or a male relative specified in that Class who claims through such female relative surviving him, then the interest of the deceased in the coparcenary property would devolve by testamentary or intestate succession, and not by survivorship. (iv) In order to determine the share of the Hindu male coparcener who is governed by Section 6 proviso, a partition is effected by operation of law immediately before his death. In this partition, all the coparceners and the male Hindu’s widow get a share in the joint family property. (v) On the application of Section 8 of the Act, either by reason of the death of a male Hindu leaving self-acquired property or by the application of Section 6 proviso, such property would devolve only by intestacy and not survivorship. (vi) On a conjoint reading of Sections 4, 8 and 19 of the Act, after joint family property has been distributed in accordance with section 8 on principles of intestacy, the joint family property ceases to be joint family property in the hands of the various persons who have succeeded to it as they hold the property as tenants in common and not as joint tenants. Applying the law to the facts of this case, it is clear that on the death of Jagannath Singh in 1973, the joint family property which was ancestral property in the hands of Jagannath Singh and the other coparceners, devolved by succession under Section 8 of the Act. This being the case, the ancestral property ceased to be joint family property on the date of death of Jagannath Singh, and the other coparceners and his widow held the property as tenants in common and not as joint tenants. This being the case, on the date of the birth of the appellant in 1977 the said ancestral property, not being joint family property, the suit for partition of such property would not be maintainable.

                                 REPORTABLE



                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 2360_of 2016
                [ARISING OUT OF SLP (CIVIL) NO.6036 OF 2014]


UTTAM                             …APPELLANT

      VERSUS
SAUBHAG SINGH & ORS.              …RESPONDENTS

                        J U D G M E N T



R.F. Nariman, J.



1.    Leave granted.



2.    The  present  appeal  is  by  the  plaintiff  who  filed  a  suit  for
partition, being Suit No.5A of 1999 before the Second Civil Judge, Class  II
Devas, Madhya Pradesh, dated 28.12.1998, in which the first four  defendants
happened to  be  his  father  (defendant  No.3),   and  his  father’s  three
brothers i.e. defendant Nos. 1,2 and 4. He claimed  a  1/8th  share  in  the
suit property on the footing that the suit property was ancestral  property,
and that, being a coparcener, he had a right by birth in the  said  property
in accordance with the Mitakshara Law.  A joint written statement was  filed
by all four brothers, including the plaintiff’s father,  claiming  that  the
suit property was not ancestral property, and that an earlier partition  had
taken place by which the plaintiff’s father had become separate.  The  trial
court, by its order dated 20.12.2000 decreed the  plaintiff’s  suit  holding
that it  was  admitted  by  DW.1  Mangilal  that  the  property  was  indeed
ancestral property,  and  that,  on  the  evidence,  there  was  no  earlier
partition of the said property,  as  pleaded  by  the  defendants  in  their
written statements.



3.    The first Appellate Court, by its judgment dated 12.1.2005,  confirmed
the finding that the property was ancestral and that  no  earlier  partition
between the brothers had in fact taken place.  However,  it  held  that  the
plaintiff’s grandfather, one Jagannath Singh having died in 1973, his  widow
Mainabai being alive at the time of his death, the  said  Jagannath  Singh’s
share would have to be distributed in  accordance  with  Section  8  of  the
Hindu Succession  Act,  1956  as  if  the  said  Jagannath  Singh  had  died
intestate, and that being the case, once  Section  8  steps  in,  the  joint
family property has to be divided in accordance with rules of intestacy  and
not survivorship. This being so, no joint family  property  remained  to  be
divided when the suit for partition was filed by  the  plaintiff,  and  that
since the plaintiff had no right while his  father  was  alive,  the  father
alone being a Class I heir (and  consequently  the  plaintiff  not  being  a
Class I heir), the  plaintiff  had  no  right  to  sue  for  partition,  and
therefore the suit was dismissed  and  consequently  the  first  appeal  was
allowed.



4.    Following the same line of reasoning and  several  judgments  of  this
Court, the High Court in second Appeal dismissed the said appeal, holding:-

“15. Thus in view of  the  provisions  contained  in  Sections  4,6,  8  and
Schedule of the Act as well as the law settled by the  aforesaid  judgments,
it is clear that after coming into force of the Act grand-son has  no  birth
right in the properties  of  grand-father  and  he  cannot  claim  partition
during lifetime of his father.

16. In the present case, it is undisputed that Jagannath  had  died  in  the
year 1973, leaving behind respondents No. 1 to 4 i.e. his four sons  covered
by Class I heirs of the schedule  therefore,  the  properties  had  devolved
upon them when succession had opened on the death of Jagannath. It has  also
been found proved that no partition had taken place between respondents  No.
1 to 4. The appellant who is the grand son of Jagannath is not
entitled to claim partition during the lifetime of his  father  Mohan  Singh
in the properties left behind by Jagannath since the appellant has no  birth
right in the suit properties.

17. In view of the aforesaid, the substantial questions of law are  answered
against the  appellant  by  holding  that  the  first  appellate  court  has
committed no error in  dismissing  the  suit  for  partition  filed  by  the
appellant referring to Section 8 of the Act  and  holding  that  during  the
lifetime of Mohan Singh,  the  appellant  has  no  right  to  get  the  suit
property partitioned.”


5.    It is this judgment that has been challenged before us in appeal.



6.    Shri Sushil Kumar Jain, learned senior advocate  appearing  on  behalf
of  the  appellant,  took  us  through  various  provisions  of  the   Hindu
Succession Act, and through several judgments of this Court,  and  contended
that Section 6, prior to its amendment in 2005, would govern  the  facts  of
this case.  He conceded that as Jagannath Singh’s widow was  alive  in  1973
at the time of his death, the case would  be  governed  by  the  proviso  to
Section  6,  and  that  therefore  the  interest  of  the  deceased  in  the
Mitakshara coparcenary property would devolve by intestate succession  under
Section 8 of the said Act.  However, he argued that it is only the  interest
of  the  deceased  in  such  coparcenary  property  that  would  devolve  by
intestate succession, leaving the joint family  property  otherwise  intact.
This being the case, the plaintiff had every  right  to  sue  for  partition
while his father was still  alive,  inasmuch  as,  being  a  coparcener  and
having a right of partition in the joint family  property,  which  continued
to subsist as such after the  death  of  Jagannath  Singh,  the  plaintiff’s
right to sue had not been taken away.  He went on to argue  that  Section  8
of the Act would not bar such a suit as it would apply only at the  time  of
the death of Jagannath Singh i.e. the grandfather of the plaintiff  in  1973
and not thereafter to non suit the plaintiff, who as a living coparcener  of
joint family property, was entitled to a partition before  any  other  death
in the joint family occurred.  He also argued that the Hindu Succession  Act
only abrogated the Hindu Law to the extent indicated, and  that  Sections  6
and 8 have to be read harmoniously, as a  result  of  which  the  status  of
joint family property which is recognized under Section 6 cannot be said  to
be taken away upon the  application  of  Section  8  on  the  death  of  the
plaintiff’s grandfather in 1973.



7.    Shri  Niraj  Sharma,  learned  counsel  appearing  on  behalf  of  the
respondents, countered these  submissions,  and  also  referred  to  various
provisions of the Hindu Succession Act and various judgments of  this  Court
to buttress his submission that once Section 8 gets  applied  by  reason  of
the application of the proviso to  Section  6,  the  joint  family  property
ceases to be joint family property thereafter, and can only be succeeded  to
by application of either Section 30 or Section 8,  Section  30  applying  in
case a will had been made and Section 8 applying in case  a  member  of  the
joint family dies intestate.  He, therefore, supported the judgment  of  the
High Court and strongly relied upon  two  judgments  in  particular,  namely
Commissioner of Wealth Tax, Kanpur and Others v.  Chander  Sen  and  Others,
(1986) 3 SCC 567, and Bhanwar Singh v. Puran, (2008) 3 SCC 87,  to  buttress
his submission that once Section 8 is applied to the facts of a given  case,
the property thereafter ceases to be joint family property, and  this  being
the case, no right to partition a property which is no longer  joint  family
property continues to subsist in any member of the coparcenary.



8.    Having heard learned counsel for the parties, it is necessary  to  set
out the relevant provisions of the Hindu Succession Act, 1956.  The Act,  as
its long title states, is an Act to amend and codify  the  law  relating  to
intestate succession among Hindus.  Section 4 overrides  the  Hindu  Law  in
force immediately before the commencement of this Act insofar as  it  refers
to any matter for which provision is made by the Act.  Section  4  reads  as
follows:

“4. Overriding effect of Act.—Save as otherwise expressly provided  in  this
Act,—

(a) any text, rule or interpretation of Hindu Law or any custom or usage  as
part of that law in force immediately before the commencement of  this  Act,
shall cease to have effect with respect to any matter  for  which  provision
is made in this Act;

(b) any other law in force immediately before the commencement of  this  Act
shall cease to apply to Hindus in so far as it is inconsistent with  any  of
the provisions contained in this Act.”


Section 6 prior to its amendment in 2005 reads as follows:

 “6. Devolution of interest in coparcenary property.—When a male Hindu  dies
after the commencement of this Act, having at  the  time  of  his  death  an
interest in a Mitakshara coparcenary property, his interest in the  property
shall devolve by survivorship upon the surviving members of the  coparcenary
and not in accordance with this Act :
Provided that, if the deceased had left  him  surviving  a  female  relative
specified in Class I of the Schedule or a male relative  specified  in  that
class who claims through such female relative, the interest of the  deceased
in the Mitakshara coparcenary property  shall  devolve  by  testamentary  or
intestate succession, as the  case  may  be,  under  this  Act  and  not  by
survivorship.

Explanation 1.—For the purposes of this section, the  interest  of  a  Hindu
Mitakshara coparcener shall be deemed to be the share in the  property  that
would have been allotted to him if a partition of  the  property  had  taken
place immediately before his death, irrespective of whether he was  entitled
to claim partition or not.

Explanation 2.—Nothing contained in the proviso to  this  section  shall  be
construed  as  enabling  a  person  who  had  separated  himself  from   the
coparcenary before the death of the deceased or any of his  heirs  to  claim
on intestacy a share in the interest referred to therein.”


It is common ground between the parties that  since  the  present  suit  was
filed only  in  1998  and  the  decree  in  the  said  suit  was  passed  on
20.12.2000, that the amendment to Section 6, made in 2005, would not  govern
the rights of the parties in the present case. This  becomes  clear  from  a
reading of the proviso (i) to Section  6  of  the  amended  provision  which
states as follows:-

“Provided that nothing contained in this sub-section shall affect or
invalidate any disposition or alienation including any partition or
testamentary disposition of property which had taken place before the 20th
day of December, 2004.”


The explanation to this Section also states thus:

“Explanation.—For  the  purposes  of  this  section  “partition”  means  any
partition made by execution of a deed of  partition  duly  registered  under
the Registration Act, 1908 (16 of 1908) or partition effected  by  a  decree
of a court.”



From a reading of the aforesaid provision it becomes clear that a  partition
having been effected by a court decree of 20.12.2000, which is prior to  9th
September, 2005, (which is the date of commencement of  the  Amending  Act),
would not be affected.



9.    The next important Section from our point of view is Section 8,  which
reads as follows:-

“8. General rules of succession in the case  of  males.—The  property  of  a
male Hindu dying intestate shall devolve  according  to  the  provisions  of
this Chapter —
(a) firstly, upon the heirs, being the relatives specified  in  Class  I  of
the Schedule;
(b) secondly, if there is no heir of Class I, then  upon  the  heirs,  being
the relatives specified in Class II of the Schedule;
(c) thirdly, if there is no heir of any of the two classes,  then  upon  the
agnates of the deceased; and
(d) lastly, if there is no agnate, then upon the cognates of the deceased.”


                                THE SCHEDULE

                                   Class I

Son; daughter; widow; mother; son of a pre-deceased son; daughter of a  pre-
deceased son; son of a pre-deceased daughter;  daughter  of  a  pre-deceased
daughter; widow of a pre-deceased son; son of a pre-deceased son of  a  pre-
deceased son; daughter of a pre-deceased son of a  pre-deceased  son;  widow
of a pre-deceased son of a pre-deceased son, son of a pre-deceased  daughter
of a pre-deceased daughter; daughter of a pre-deceased daughter  of  a  pre-
deceased  daughter;  daughter  of  a  pre-deceased  son  of  a  pre-deceased
daughter; daughter of a pre-deceased daughter of a pre-deceased son.”


10.   Also of some importance are Sections 19 and 30 of the said  Act  which
read as follows:-

“19. Mode of succession of two or more heirs.—If two or more  heirs  succeed
together to the property of an intestate, they shall take the property,—

(a) save as otherwise expressly provided in this Act,  per  capita  and  not
per stirpes; and

(b) as tenants-in-common and not as joint tenants.



30. Testamentary succession.—  Any Hindu may dispose of  by  will  or  other
testamentary  disposition  any  property,  which  is  capable  of  being  so
disposed of by him or by her, in  accordance  with  the  provisions  of  the
Indian Succession Act, 1925 (39 of 1925), or any  other  law  for  the  time
being in force and applicable to Hindus.

Explanation.—The interest of  a  male  Hindu  in  a  Mitakshara  coparcenary
property  or  the  interest  of  a  member  of  a tarwad,  tavazhi,   illom,
kutumba or kavaru in   the   property   of   the tarwad,   tavazhi,   illom,
kutumba or kavaru shall, notwithstanding anything contained in this Act,  or
in any other law for the time being in  force,  be  deemed  to  be  property
capable of being disposed of  by  him  or  by  her  within  the  meaning  of
this section.”


11.   Before analysing the provisions of the Act, it is necessary  to  refer
to some of the judgments of this Court  which  have  dealt,  in  particular,
with Section 6 before its amendment in 2005, and with Section  8.   In  G.K.
Magdum v. H.K. Magdum, (1978) 3 S.C.R. 761, the effect of the old Section  6
was gone into in some detail by this Court. A Hindu widow claimed  partition
and separate possession of a 7/24th share in  joint  family  property  which
consisted of her husband, herself and their two sons.  If a  partition  were
to take place during her husband’s lifetime  between  himself  and  his  two
sons, the widow would have got a 1/4th share in such joint family  property.
 The deceased husband’s 1/4th share would then devolve, upon his  death,  on
six sharers, the plaintiff and her  five  children,  each  having  a  1/24th
share therein.  Adding 1/4th and 1/24th,  the  plaintiff  claimed  a  7/24th
share in the joint family property. This Court held:-

“The Hindu Succession Act came  into  force  on  June  17,  1956.  Khandappa
having died after the commencement of that Act, to wit in  1960,  and  since
he had at the time of  his  death  an  interest  in  Mitakshara  coparcenary
property, the pre-conditions of Section 6 are satisfied and that section  is
squarely attracted. By the application of  the  normal  rule  prescribed  by
that  section,  Khandappa's  interest  in  the  coparcenary  property  would
devolve by survivorship upon the surviving members of  the  coparcenary  and
not in accordance with the provisions of the Act. But, since the  widow  and
daughter are amongst the female  relatives  specified  in  class  I  of  the
Schedule  to  the  Act  and  Khandappa  died  leaving  behind  a  widow  and
daughters, the proviso to Section 6 comes into play and the normal  rule  is
excluded. Khandappa's interest in the coparcenary property  would  therefore
devolve, according to the proviso, by intestate  succession  under  the  Act
and not by survivorship. Testamentary succession is out of question  as  the
deceased  had  not  made  a  testamentary  disposition  though,  under   the
explanation to Section 30 of the Act,  the  interest  of  a  male  Hindu  in
Mitakshara coparcenary property is capable of being disposed of  by  a  will
or other testamentary disposition.

There is thus no dispute that the normal rule  provided  for  by  Section  6
does not apply, that the proviso to that section is attracted and  that  the
decision of the appeal must turn on the meaning to be given  to  Explanation
1 of Section 6. The interpretation  of  that  Explanation  is  the  subject-
matter of acute controversy between the parties.”


12.   This Court, in dealing with the proviso and explanation 1  of  Section
6, held that the fiction created by explanation 1 has to be given  its  full
effect. That being the case, it was held:-

“13. In order to ascertain the share of heirs in the property of a  deceased
coparcener it is necessary in the very nature of things,  and  as  the  very
first step, to ascertain the  share  of  the  deceased  in  the  coparcenary
property. For, by doing that alone can  one  determine  the  extent  of  the
claimant's  share.  Explanation  1  to  Section  6  resorts  to  the  simple
expedient, undoubtedly fictional, that the interest of  a  Hindu  Mitakshara
coparcener “shall be deemed to be” the share  in  the  property  that  would
have been allotted to him if a partition of that property  had  taken  place
immediately before his death. What is therefore required to  be  assumed  is
that a partition had in fact  taken  place  between  the  deceased  and  his
coparceners immediately before his death. That  assumption,  once  made,  is
irrevocable. In other words, the assumption having been made  once  for  the
purpose of ascertaining  the  share  of  the  deceased  in  the  coparcenary
property, one cannot go back on that assumption and ascertain the  share  of
the heirs  without  reference  to  it.  The  assumption  which  the  statute
requires to be made that a partition had in fact taken place  must  permeate
the entire process of ascertainment of the  ultimate  share  of  the  heirs,
through all its stages. To make the assumption at the initial stage for  the
limited purpose of ascertaining the  share  of  the  deceased  and  then  to
ignore it for calculating the quantum of the share of the heirs is truly  to
permit one's imagination to boggle. All the consequences which flow  from  a
real partition have to be logically worked out, which means that  the  share
of the heirs must be ascertained on the basis that they had  separated  from
one another and had received a share in the partition which had taken  place
during the lifetime of the deceased. The allotment of this share  is  not  a
processual step devised merely for the purpose of  working  out  some  other
conclusion. It has to  be  treated  and  accepted  as  a  concrete  reality,
something that cannot be recalled just as a share allotted to  a  coparcener
in  an  actual  partition  cannot  generally  be  recalled.  The  inevitable
corollary of this position is that the heir will get his  or  her  share  in
the interest which the deceased had in the coparcenary property at the  time
of his death, in addition to the share which he or she received or  must  be
deemed to have received in the notional partition.”


13.   In State of Maharashtra v. Narayan Rao Sham  Rao  Deshmukh  and  Ors.,
(1985) 3 S.C.R. 358, this Court distinguished the judgment in Magdum’s  case
in answering a completely different question  that  was  raised  before  it.
The question raised before the Court in  that  case  was  as  to  whether  a
female Hindu, who inherits a share of  the  joint  family  property  on  the
death of her husband, ceases to be a member of the family thereafter.   This
Court held that as there was a partition by operation of law on  application
of  explanation 1 of Section 6, and as such partition was  not  a  voluntary
act by the female Hindu, the female Hindu does not cease to be a  member  of
the joint family upon such partition being effected.



14.   In Shyama Devi (Smt) and Ors.
v.  Manju Shukla (Mrs)  and  Anr.,  (1994)  6  SCC  342,  this  Court  again
considered the effect of the proviso and explanation 1  to  Section  6,  and
followed the judgment of this Court in Magdum’s  case  (supra).  This  Court
went on to state that explanation 1 contains a formula for  determining  the
share of the deceased on the date of  his  death  by  the  law  effecting  a
partition immediately before a male Hindu’s death took place.



15.    On  application  of  the  principles  contained  in   the   aforesaid
decisions, it becomes clear that, on the death of Jagannath Singh  in  1973,
the proviso to Section 6 would apply inasmuch as Jagannath  Singh  had  left
behind his widow, who  was  a  Class  I  female  heir.   Equally,  upon  the
application of explanation 1 to the said Section, a partition must  be  said
to have been effected by operation of  law  immediately  before  his  death.
This being the case, it is clear that the plaintiff would be entitled  to  a
share on this partition taking place in 1973.  We  were  informed,  however,
that the plaintiff was born only in 1977, and that, for  this  reason,  (his
birth being after his grandfather’s death) obviously no such share could  be
allotted to him.  Also, his case in the suit filed by him is not that he  is
entitled to this share but that he is entitled to a 1/8th share on  dividing
the joint family property between 8 co-sharers in 1998.  What has  therefore
to be seen is whether the application of Section 8, in 1973,  on  the  death
of Jagannath Singh would make the joint family property in the hands of  the
father, uncles and the plaintiff no longer joint family property  after  the
devolution of Jagannath Singh’s share, by application of  Section  8,  among
his Class I heirs.  This question would have to be answered  with  reference
to some of the judgments of this Court.



16.   In Commissioner of Wealth Tax, Kanpur and Others v.  Chander  Sen  and
Others, (1986) 3 SCC 567, a partial partition having  taken  place  in  1961
between a father and his son, their  business  was  divided  and  thereafter
carried on by a partnership firm consisting of the two of them.  The  father
died in 1965, leaving behind him his son and two  grandsons,  and  a  credit
balance in the account of the firm.  This Court had to answer as to  whether
credit balance left in the account of the firm could be  said  to  be  joint
family property after the father’s share  had  been  distributed  among  his
Class I heirs in accordance with Section 8 of the Act.



17.   This Court examined the legal position and ultimately approved of  the
view of 4 High Courts, namely, Allahabad, Madras, Madhya Pradesh and  Andhra
Pradesh, while stating that the Gujarat High Court’s view contrary to  these
High Courts, would not be correct in law.  After  setting  out  the  various
views of the five High Courts mentioned, this Court held:

“It is necessary to bear in mind the preamble to the Hindu  Succession  Act,
1956. The preamble states that it was an Act to amend  and  codify  the  law
relating to intestate succession among Hindus.

In view of the preamble to the Act i.e. that to modify where  necessary  and
to codify the  law,  in  our  opinion  it  is  not  possible  when  Schedule
indicates heirs in Class I and only includes son and does not include  son's
son but does include son  of  a  predeceased  son,  to  say  that  when  son
inherits the property in the situation contemplated by Section  8  he  takes
it as karta of his own undivided  family.  The  Gujarat  High  Court's  view
noted above, if accepted, would mean that though the son  of  a  predeceased
son and not the son of a son who is intended to he excluded under Section  8
to inherit, the latter would by applying the old Hindu law get  a  right  by
birth of the said property contrary to the scheme  outlined  in  Section  8.
Furthermore as noted by the Andhra Pradesh High Court that the Act makes  it
clear by Section 4 that one should look to the Act in case of doubt and  not
to the pre-existing Hindu law. It would  be  difficult  to  hold  today  the
property which devolved on a Hindu under Section 8 of the  Hindu  Succession
Act would be HUF in his hand vis-à-vis his own son;  that  would  amount  to
creating two classes among the heirs mentioned in Class I,  the  male  heirs
in whose hands it will be joint Hindu family property and vis-à-vis son  and
female heirs with respect to whom  no  such  concept  could  be  applied  or
contemplated. It may be mentioned that heirs in Class I  of  Schedule  under
Section 8 of the Act included widow, mother,  daughter  of  predeceased  son
etc.

Before we conclude we may state that  we  have  noted  the  observations  of
Mulla's Commentary on Hindu Law, 15th Edn. dealing with  Section  6  of  the
Hindu Succession Act at pp. 924-26 as well as  Mayne's  on Hindu  Law,  12th
Edn., pp. 918-19.

The express words of Section 8 of the Hindu Succession Act, 1956  cannot  be
ignored and must prevail. The preamble to the Act reiterates  that  the  Act
is, inter alia, to  “amend”  the  law,  with  that  background  the  express
language which excludes son's son but includes  son  of  a  predeceased  son
cannot be ignored.

In the aforesaid light the views expressed by the Allahabad High Court,  the
Madras High Court, the Madhya Pradesh High Court,  and  the  Andhra  Pradesh
High Court, appear to us to be correct. With respect we are unable to  agree
with the views of the Gujarat High Court noted hereinbefore.” [at paras  21-
25]


18.   In Yudhishter v. Ashok Kumar, (1987) 1  SCC  204  at  page  210,  this
Court followed the law laid down in Chander Sen’s case.



19.   In Bhanwar Singh v. Puran,  (2008)  3  SCC  87,  this  Court  followed
Chander Sen’s case and the various judgments following Chander  Sen’s  case.
This Court held:-

“The Act brought about a  sea  change  in  the  matter  of  inheritance  and
succession amongst Hindus. Section 4 of the  Act  contains  a  non  obstante
provision in terms whereof any text, rule or interpretation of Hindu Law  or
any custom or usage as part of that law  in  force  immediately  before  the
commencement of the Act, ceased to have effect with respect  to  any  matter
for which provision is made therein save as otherwise expressly provided.

Section 6 of the Act, as  it  stood  at  the  relevant  time,  provided  for
devolution of interest in the coparcenary property. Section 8 lays down  the
general rules of succession that the property  of  a  male  dying  intestate
devolves according to the provisions of the Chapter as specified  in  Clause
(1) of the Schedule. In the Schedule appended to the Act, natural  sons  and
daughters are placed as Class I heirs but a grandson, so long as  father  is
alive, has not been included. Section 19 of the Act  provides  that  in  the
event of succession by two or more heirs, they will take  the  property  per
capita and not per stirpes, as  also  tenants-in-common  and  not  as  joint
tenants.

Indisputably, Bhima left behind Sant Ram and three daughters.  In  terms  of
Section 8 of the Act, therefore, the properties of Bhima devolved upon  Sant
Ram and his three sisters. Each had 1/4th share in the property. Apart  from
the legal position, factually the same was also reflected in the  record-of-
rights. A partition had taken place amongst the heirs of Bhima.

Although the learned first appellate court proceeded to consider the  effect
of Section 6 of the Act, in our opinion, the same was not applicable in  the
facts and circumstances of the case. In any event, it had rightly been  held
that even in such a case, having regard to Section 8 as also Section  19  of
the Act, the properties ceased to be  joint  family  property  and  all  the
heirs and legal representatives of Bhima would succeed to  his  interest  as
tenants-in-common and not as joint tenants. In a case of  this  nature,  the
joint coparcenary did not continue.” (at paras 12-15)


20.   Some other judgments were cited before us  for  the  proposition  that
joint  family  property  continues  as  such  even  with  a  sole  surviving
coparcener, and if a son is born to such coparcener  thereafter,  the  joint
family property continues as such, there being no hiatus  merely  by  virtue
of the fact there is a sole surviving coparcener. Dharma Shamrao Agalawe  v.
Pandurang Miragu Agalawe (1988) 2 SCC 126, Sheela Devi v. Lal Chand,  (2006)
8 SCC 581, and Rohit Chauhan v. Surinder Singh (2013) 9 SCC 419, were  cited
for this purpose.  None of these judgments  would  take  the  appellant  any
further in view of the fact that in none of them is there any  consideration
of the effect of Sections 4, 8 and 19 of  the  Hindu  Succession  Act.   The
law, therefore, insofar as it applies to joint family property  governed  by
the Mitakshara School, prior to the amendment of 2005,  could  therefore  be
summarized as follows:-

(i)   When a male Hindu dies after the commencement of the Hindu  Succession
Act, 1956, having at the  time  of  his  death  an  interest  in  Mitakshara
coparcenary  property,  his  interest  in  the  property  will  devolve   by
survivorship upon the surviving members of  the  coparcenary  (vide  Section
6).

(ii)   To  proposition  (i),  an  exception  is  contained  in  Section   30
Explanation of the  Act,  making  it  clear  that  notwithstanding  anything
contained  in  the  Act,  the  interest  of  a  male  Hindu  in   Mitakshara
coparcenary property is property that can be disposed of by him by  will  or
other testamentary disposition.

(iii) A second exception engrafted on proposition (i) is  contained  in  the
proviso to Section 6, which states that  if  such  a  male  Hindu  had  died
leaving behind a female relative specified in Class I of the Schedule  or  a
male relative specified in  that  Class   who  claims  through  such  female
relative  surviving  him,  then  the  interest  of  the  deceased   in   the
coparcenary property would devolve by testamentary or intestate  succession,
and not by survivorship.

(iv)  In order to determine the share of the Hindu male  coparcener  who  is
governed by Section 6 proviso, a partition is effected by operation  of  law
immediately before his death.  In this partition, all  the  coparceners  and
the male Hindu’s widow get a share in the joint family property.

(v)   On the application of Section 8 of the Act, either by  reason  of  the
death of a male Hindu leaving self-acquired property or by  the  application
of Section 6 proviso, such property would devolve only by intestacy and  not
survivorship.

(vi) On a conjoint reading of Sections 4, 8 and 19 of the Act,  after  joint
family property has  been  distributed  in  accordance  with  section  8  on
principles of intestacy, the  joint  family  property  ceases  to  be  joint
family property in the hands of the various persons who  have  succeeded  to
it as they hold the property as tenants in common and not as joint tenants.



21.   Applying the law to the facts of this case, it is clear  that  on  the
death of Jagannath Singh in  1973,  the  joint  family  property  which  was
ancestral  property  in  the  hands  of  Jagannath  Singh  and   the   other
coparceners, devolved by succession under Section 8 of the Act.  This  being
the case, the ancestral property ceased to be joint family property  on  the
date of death of Jagannath Singh, and the other coparceners  and  his  widow
held the property as tenants in common  and  not  as  joint  tenants.   This
being the case, on the date of the birth of the appellant in 1977  the  said
ancestral property, not being joint family property, the suit for  partition
of such property would not be  maintainable.   The  appeal  is  consequently
dismissed with no order as to costs.

                                  ……………………………J.
                                  (Kurian Joseph)


                                  ……………………………J.
                                  (R.F. Nariman)
New Delhi;
March 2, 2016.

Non Examination of witnesses in time - delay not explained - No explanation is forthcoming as to why they are not examined for 3 days. It is also not known as to how the police came to know that these witnesses saw the occurrence. The delay in recording the statements casts a serious doubt about their being eye-witnesses to the occurrence. It may suggest that the investigating officer was deliberately marking time with a view to decide about the shape to be given to the case and the eye-witnesses to be introduced. The circumstances in this case lend such significance to this delay. PW 25 Mirza Majid Beg and PW 24 Mohamed Shakir, in view of their unexplained silence and delayed statement to the police, does not appear to us to be wholly reliable witnesses. There is no corroboration of their evidence from any other independent source either. We find it rather unsafe to rely upon their evidence only to uphold the conviction and sentence of the appellants. The High Court has failed to advert to the contentions raised by the appellants and re-appreciate the evidence thereby resulting in miscarriage of justice. In our opinion, the case against the appellants has not been proved beyond reasonable doubt.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO.1460 of 2008

Shahid Khan                               …     Appellant

                                   versus

State of Rajasthan                                   …     Respondent

                                    With

                       CRIMINAL APPEAL NO.1461 of 2008
                                     AND
                       CRIMINAL APPEAL NO.1462 of 2008

                               J U D G M E N T

C. NAGAPPAN, J.

1.     These  three  appeals  are  preferred  against  the  judgment   dated
20.12.2006, passed by the High Court of Judicature for Rajasthan  at  Jaipur
in DB Criminal Appeal No.1001 of 2003.

2.    The appellants in DB Criminal  Appeal  No.1001  of  2003  are  accused
nos.2 to 5 in the Sessions case no.31 of 2003 on the  file  of  the  Special
Judge, SC/ST(POA), Jhalawar and  they  were  tried  with  accused  no.1  for
alleged offences under Sections 147,  148,  302/149  and  397  Indian  Penal
Code.  The Sessions Court found accused no.1 not guilty of all  the  charges
and found accused nos. 2 to 5 not guilty of the charge under  Section   397.
At the same time Sessions Court convicted  accused  nos.  2  to  5  for  the
offence under  Section  148  and  sentenced  them  each  to  undergo  Simple
imprisonment for 2 years with fine of Rs.500 and in default      to  undergo
further simple imprisonment for one month and convicted them  under  Section
302/149 and sentenced them each to undergo life imprisonment  with  fine  of
Rs.2000 and in default to undergo simple imprisonment for six months.

3.    Aggrieved by this  conviction  and  sentence,  accused  nos.  2  to  5
preferred appeal being DB Criminal Appeal No.1001 of 2003, before  the  High
Court  of  Rajasthan  at  Jaipur  Bench.    During   pendency   of   appeal,
appellant/A3 Irfan Ali died and his appeal abated.  The High  Court  by  its
judgment dated 20.12.2006 dismissed the appeal preferred by the  appellants.
 Challenging the  same  accused  nos.2,  4  and  5  have  preferred  present
appeals.

4.    The prosecution case as it discerned from the records is  briefly,  as
follows :  PW 19 Anil Kumar Jain is the brother  of  deceased  Ashok  Kumar.
On 22.1.2001 he submitted Exh.  P34  complaint  at  Police  Station  Kotwali
Jhalawar stating that Ashok Kumar was looking  after  the  factory  of  Kota
stones and the contract of royalty of toll tax was obtained by Abdul  Khalid
in which his brother Ashok Kumar was also a partner.  It is  further  stated
that Khalid was arrested for committing  the  murder  of   Kallu  and  Ashok
Kumar  gave  assistance  to  Khalid.   Due  to  this  reason  on   22.1.2001
companions of Kallu came to the factory and murdered  Ashok  Kumar.   It  is
further stated therein that as per the information provided  by  PW  20  Lal
Chand the accused were five in number and  they  caused  injuries  to  Ashok
Kumar with sword and  knife.  PW 25 Mirza  Majid    Beg came  from  Kota  to
Jhalawar to meet Ashok Kumar on the  occurrence day, and he and  his  driver
PW 24 Mohamed Shakir saw the  occurrence  in  which  the  accused  inflicted
injuries with weapons on Ashok Kumar.  Due to fear they  hid  themselves  in
the factory.  PW 19 Anil Kumar Jain took injured Ashok Kumar in  the  Maruti
car to hospital at Jhalawar where he was  declared  dead.   On  the  written
complaint of PW 19 Anil Kumar Jain a case under Sections  147,  148  302/149
and 448 IPC was  registered and investigation commenced.  PW 17  Dr.  Arvind
Kumar Bohra conducted autopsy on the body  of  Ashok  Kumar  and  found  the
following ante-mortem injuries:

1.    Incised wound 2 ½ x ½ x bone deep horizontally mid of forehead.

2.    Abrasion 3 ½ long in front and over the pinna of left ear.

3.    Stab  incised wound 2” X ½”  X cavity deep  omentum  and  fresh  blood
come out from wound vertically Rt para umbilicus region.

4.    Stab incised wound 2” X ½” X cavity deep. Vertically  oblique  omenten
and fresh blood comes out left para umbilicus part of abdomen.

5.    Stab incised wound 2” X ½” X cavity deep omentum  and  fresh  bleeding
present vertically left renal region of abdomen.

6.    Stab incised wound 2” X ½”  X  cavity  deep  oblique  ½”  below  lower
costal margin left Hypocondrium of abdomen.

7.    Incised wound 1” X ¼” x skin deep oblique lat.  Aspect  of  middle  of
left thigh.”



He issued Exh.P21 post-mortem report by expressing opinion  that  the  cause
of death was hemorrhagic shock as a result of cutting of pedicle  of  spleen
omental and mesenteric vessels.

5.     The  investigation  officer  examined  the  witnesses,  arrested  the
accused and recovered  weapons  by  drawing   the  necessary  memos  and  on
completion of the investigation filed the charge-sheet.  The Sessions  Court
on framing of charges conducted the trial in which prosecution  examined  28
witnesses and marked documents and  the  defence  examined  2  witnesses  on
their side.  The trial court acquitted accused No.1 of all the  charges  and
convicted accused Nos. 2 to 5 as stated supra.  On  appeal  the  High  Court
confirmed the conviction and sentence.  Aggrieved by the  same  the  present
appeals have been preferred.

6.    Mr. Sushil Kumar Jain, Senior Advocate appearing  for  the  appellants
contended that PW 25 Mirza Majid Beg and his driver  PW  24  Mohamed  Shakir
who claimed to have witnessed the  occurrence  are  chance  witnesses  whose
presence at the place of occurrence is doubtful and  their  conduct  in  not
informing  the relatives of the deceased and not  lodging  police  complaint
is quite unnatural and their statements were recorded after 3  days  of  the
occurrence for which there is no explanation and the  prosecution  case  was
conceived and constructed after a  good  deal  of  deliberation  and  it  is
doubtful.  It is further contended by him that     PW  25  Mirza  Majid  Beg
implicated the appellants falsely because his son-in-law  Khalid  was  tried
for committing the murder  of  Kallu  and  in  the  said  case  the  present
appellant-Banti gave evidence against him as prosecution witness,  resulting
in conviction.  It is his further submission  that  the  courts  below  have
erroneously believed the uncorroborated  testimonies  of  the  eye-witnesses
and conviction and sentence imposed on the appellants  are  not  sustainable
in law and liable to be set aside.  In support of  his  submission  reliance
was placed on various decisions of this Court.

7.    Per contra the learned counsel appearing for the respondent  contended
that the presence  of  the  eye-witnesses  at  the  time  of  occurrence  is
established and their testimonies have  rightly  been  relied  upon  by  the
courts below for convicting the appellants  and  the  impugned  judgment  is
sustainable.

8.    Ashok Kumar died of homicidal violence is  evident  from  the  medical
evidence adduced  in  the  case.   PW  17     Dr.  Arvind  Kumar  Bohra  who
conducted post mortem found 4 stab incised  wounds  in  the  abdomen  and  2
incised wounds on forehead and  left  thigh.   Exh.P21  is  the  post-mortem
report issued by him in which he has opined that  the  cause  of  death  was
hemorrhagic shock as a result of cutting of pedicle of  spleen  omental  and
mesenteric vessels.  From the above it is clear that  Ashok  Kumar  died  of
injuries sustained in the occurrence.

9.    The prosecution case is that the appellants (Accused Nos.2, 4  and  5)
alongwith other accused inflicted injuries with sword  and  knife  to  Ashok
Kumar.   During the trial PW 20 Lal Chand, PW 24 Mohammad Shakir and  PW  25
Mirza Majid Beg were examined as having witnessed  the  occurrence.   PW  20
Lal Chand did not support the prosecution case and was declared hostile.  PW
25 Mirza Majid Beg in his testimony has stated that on 22.1.2001 he  started
from Kota at 10 O’ clock and reached Jhalawar at about 12 O’  clock  in  his
Maruti Van driven by his driver PW 24 Shakir and halted for 5-10 minutes  in
the Toll Post and then went to the factory of  Ashok Kumar to meet  him  and
on reaching there they heard the sound of crying and they got down from  the
vehicle and ran inside the factory and saw accused no.2  Banti  and  accused
no.4 Shahid Khan with daggers in their hand and accused  no.5  Mansoor  with
Gupti type weapon and all the accused were attacking Ashok  Kumar  with  the
said weapons.  According to him he and his  driver  stood  adjacent  to  the
quarter wall inside the factory and saw the occurrence and  thereafter  they
ran away from the said place to Toll Tax and  boarded  a  tanker  lorry  and
reached the hospital at Jhalawar and they found their Maruti vehicle  parked
in the hospital and they drove from there  directly  to  Kota  in  the  said
vehicle.   It is the testimony of PW 24 Mohamed Shakir that on 22.1.2001  he
drove the Maruti van of PW 25 Mirza Majid Beg  from  Kota  to  Jhalawar  and
when they reached the factory of Ashok Kumar they heard the sound of  crying
and both of them got  down  and  rushed  inside  the  factory  and  saw  the
appellants and other accused attacking Ashok Kumar with knife and  they  ran
to the backside of the factory and hid themselves near the wall and after 5-
10 minutes they came out and went to the Toll Tax check post and  by  taking
a lift in a truck they reached Jhalawar hospital and  on  seeing  their  car
there, both of them drove back to Kota.

10.   Both the above witnesses are residents of Kota which is at a  distance
of about 150 kms. from Jhalawar town.  According to PW 25  Mirza  Majid  Beg
he went to Jhalawar to meet Ashok Kumar and on reaching the factory at  1.00
p.m. they happened to witness the occurrence. It is relevant  to  point  out
that PW 9 Anwar and PW 19 Anil Kumar Jain, who on intimation rushed  to  the
occurrence place, did not state that they saw PW 25 Mirza Majid Beg  and  PW
24 Mohamed Shakir in the occurrence place.  It is  only  PW  19  Anil  Kumar
Jain with the help of PW 9 Anwar and PW 20 Lal Chand  lifted  injured  Ashok
Kumar and put in the Maruti vehicle  and  took  him  to  Jhalawar  hospital,
where he was declared dead.  Thereafter PW 19 Anil Kumar Jain  went  to  the
Police Station and lodged the written complaint. In the said complaint,  the
names of the assailants are not mentioned and also the names of the  persons
who were present during the occurrence are not mentioned. PW 25 Mirza  Majid
Beg and PW 24 Mohamed Shakir have stated in  their  cross  examination  that
they did not help PW 9 Anwar and PW 19 Anil Kumar Jain to shift the  injured
to the hospital and they rushed towards Toll Tax and  reached  the  hospital
in a truck and on seeing their car,  without  entering  the  hospital,  they
drove to Kota and they did not inform any one about the occurrence and  they
did not also go to the Police Station for lodging the complaint.   The  High
Court in the impugned judgment has concluded that  the  presence  of  PW  25
Mirza Majid Beg is established in view of the   fact  that  his  Maruti  van
was used for shifting injured to the hospital.  There was nothing on  record
to show the  Maruti  vehicle  used  for  transporting  Ashok  Kumar  to  the
hospital belonged to PW 25 Mirza Majid Beg.  In fact PW 19 Anil  Kumar  Jain
in his cross examination has stated that he did not  know  the  Registration
number of the Maruti van in which Ashok Kumar was taken to hospital  and  he
also did not know whose vehicle it was.  In other words,  nothing  is  stood
established by the use of  this  Maruti  vehicle  for  transporting  to  the
injured to the hospital and in any event this will not clinch  the  presence
of PW 25 Mirza Majid Beg at the time of occurrence.  PW 25 Mirza  Majid  Beg
and PW 24 Mohamed Shakir slipping away unnoticed by the others  particularly
after the alleged attack is utterly unbelievable.  It appears unreal.   They
are not strange to expect and they did not render any help for shifting  the
injured to the hospital nor had the courtesy to go inside  the  hospital  to
ascertain the condition and also  did  not  inform  the  occurrence  to  the
police. The aspect of fear is without any foundation and  is  not  supported
by any evidence of act or conduct.  This plea does not impress us.  In  this
context, it is relevant to  point  out  that  PW  25  Mirza  Majid  Beg  has
admitted that he is a history-sheeter, and two  cases under NDPS   Act  were
imposed on him and he was also bound down under Section 110 Cr.P.C.

11.   The   statements of PW 25 Mirza Majid Beg and  PW  24  Mohamed  Shakir
were  recorded  after  3  days  of  the  occurrence.   No   explanation   is
forthcoming as to why they are not examined for  3  days.  It  is  also  not
known as to how the police  came  to  know  that  these  witnesses  saw  the
occurrence.  The delay in recording the statements  casts  a  serious  doubt
about their being eye-witnesses to the occurrence.  It may suggest that  the
investigating officer was deliberately marking time with a  view  to  decide
about the shape to be  given  to  the  case  and  the  eye-witnesses  to  be
introduced.  The circumstances in this case lend such significance  to  this
delay.   PW 25 Mirza Majid Beg and PW 24 Mohamed Shakir, in  view  of  their
unexplained silence and delayed statement to the police, does not appear  to
us to be wholly reliable witnesses.   There is  no  corroboration  of  their
evidence from any other  independent  source  either.   We  find  it  rather
unsafe to rely upon  their  evidence  only  to  uphold  the  conviction  and
sentence of the appellants. The High Court  has  failed  to  advert  to  the
contentions raised by the appellants and re-appreciate the evidence  thereby
resulting in miscarriage of justice.  In our opinion, the case       against
the appellants has not been proved beyond reasonable doubt.

12.   Consequently, the appeals are allowed and the conviction and  sentence
of the appellants is hereby set aside. The appellants are  on  bail.   Their
bail bonds shall stand discharged.

…...…….….……………….J.
                                                      (Jagdish Singh Khehar)



                                           …..…...……………………J.
                                                                (C.Nagappan)


New Delhi;
March 02, 2016

Section 300. The expression “bodily injury” in clause thirdly includes also its plural, so that the clause would cover a case where all the injuries intentionally caused by the accused are cumulatively sufficient to cause the death in the ordinary course of nature, even if none of those injuries individually measures upto such sufficiency. The sufficiency spoken of in this clause, as already noticed, is the high probability of death in the ordinary course of nature, and if such sufficiency exists and death is caused and the injury causing it is intentional, the case would fall under clause thirdly of Section 300. All the conditions which are a prerequisite for the applicability of this clause have been established and the offence committed by the accused, in the instant case was ‘murder’.”= the accused hurled country made bombs, has been established. The incised injuries caused to Hari were intentional and were sufficient to cause death in the ordinary course of nature even if it cannot be said that his death was intended. This is sufficient to bring the case within thirdly of Section 300. 11. For the foregoing reasons, we are of the opinion that the High Court was in error in altering the conviction of the respondents/accused from one under Section 302 to that under Section 304-I Indian Penal Code.

                                                         REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                      CRIMINAL APPEAL NO. 185  of 2016
                        (@ SLP(Crl.) No.967 of 2015)



State of Madhya Pradesh             ...                        Appellant

                                   versus

Goloo Raikwar and Anr.                ...           Respondent(s)




                               J U D G M E N T



C. NAGAPPAN, J.

Leave granted.

This appeal is preferred against the judgment dated 26.9.2012 passed by  the
High Court of Madhya Pradesh Principal seat at Jabalpur in  Criminal  Appeal
No. 1797 of 2004 whereby the High Court partly allowed the appeal  filed  by
the respondents/accused, by setting aside  their  conviction  under  Section
302 IPC and convicted them for the offence under Section 304 Part I IPC  and
thereby  reducing  their  sentence  from  life  imprisonment   to   Rigorous
Imprisonment for 10 years.

Briefly the facts are as follows :  Deceased Hari Choudhary   is  the  uncle
of PW1 Kallu Choudhary.  On 15.8.2000 at about 3.30 p.m. both  of them  were
going to eat betel and on their way they saw respondent  no.1/accused  Golu,
respondent no.2/accused Bhura and three other accused  namely  Puttu  @  Ram
Charan, Gabbar and Bedilal armed with  weapons,  coming  and  accused  Bhura
hurled  country bomb at them.  On  explosion  they  fell  down  and  accused
Bhura dealt a blow of sword  to  PW1  Kallu  and  the  other  accused   also
assaulted him with their weapons.  PW1 saw the  accused  persons  assaulting
Hari Choudhary with their weapons.  He  ran  and  informed  PW3  Ram  Niwas,
brother of  Hari  and  they  carried  injured  Hari  to  Victoria  Hospital,
Jabalpur where he was declared dead.  On telephonic  information  PW10  Sub-
Inspector R.B. Soni reached  the  hospital  and  recorded  Exh.P1  complaint
given by PW1 Kallu and prepared Exh.P2 Murg Report.   He  conducted  inquest
and prepared Exh.P3 Inquest Report and gave requisition for conducting post-
mortem.  He also sent injured PW1 Kallu for medical examination.

Dr. Ashok Kumar Jain conducted the autopsy and  found following injuries  on
the body of Hari:

Incised wound 3” x ½” muscle deep on right cheek

 Incised wound 4” x ½” x bone deep on left cheek extending up to  ear.   The
pinna of the ear was cut.

Incised wound on right knee joint  posteriorly  to  lateral  aspect.   Joint
disarticulated. Patella hanging with the help of  tendon.   Vessels,  nerves
and other soft tissues severed.

 Incised wound 3” x ¾” x bone deep over occipital region  obliquely  placed.
Clotted blood matting the skull hair.

    Swelling of blue colour on the right shoulder on the  back  side  6”  in
length.

Linear abrasion over left side of chest lateral aspect 4” in length,  bluish
in colour.

Injuries No.1,2,3 and 4 were caused by  hard  and  sharp  object.   Injuries
No.5 and 6 might have been  caused  by  hard  and  blunt  object.   All  the
injuries were ante mortem in nature and were sufficient to cause death.   In
the opinion of Dr. Jain, cause  of  death  was  excessive  haemorrhage  from
Injury No.3.  The death of deceased was homicidal.



 PW10 Sub-Inspector Soni, after registering a case  under  Section  302  IPC
and Section  3(2)(v)  of  Scheduled  Caste/Scheduled  Tribe  (Prevention  of
Atrocities) Act against the accused persons and  after  investigation  filed
the  charge-sheet.   After  committal  the  Sessions  Court  framed  charges
against both  the  respondents  herein  and  accused  Puttu  @  Ram  Charan.
Accused Gabbar and Bedilal were absconding.  The trial court  convicted  the
respondents herein for the offence under Section 302 IPC and acquitted  them
for the  offence  under  Section  3(2)(v)  of  the  SC/ST  (P.A.)  Act   and
sentenced each of them to life imprisonment and to pay a fine of   Rs.1000/-
each in default to undergo one month simple imprisonment for the  charge  of
murder. At the same time the trial  court  acquitted  accused  Puttu  @  Ram
Charan of the charges.  Challenging the same, both  the  respondents  herein
preferred appeal and the High Court altered the conviction and  sentence  as
mentioned above.  Aggrieved by the same the State has preferred the  present
appeal.

The learned counsel for the appellant State submitted that  the  view  taken
by the High Court is patently erroneous in law as the offence under  Section
302 IPC was clearly made out.  It is his further submission  that  the  High
Court has committed an error in holding that injury no.3 was  not  on  vital
part of the body and the other  injuries  were  not  fatal  in  nature,  and
therefore, intention to  commit  murder  of  the  deceased  cannot  be  held
established. According to him the accused attacked the deceased by hard  and
sharp weapons at the time of occurrence  resulting  in  his  death  and  the
offence of murder is clearly made  out.   Per  contra  the  learned  counsel
appearing for the respondents supported the view taken  by  the  High  Court
and submitted that the impugned judgment is sustainable in law.

The respondents have not challenged their conviction. The  trial  court,  as
already noticed, had convicted the respondents of  the  offence  of  murder.
The High Court has disagreed with the Trial Court and held the  offence  was
not ‘murder’ but one under  Section 304-I of the  Indian  Penal  Code.   The
High Court reached this  conclusion on the following reasoning:

 “17. On perusal of the evidence of Dr. Ashok Kumar  Jain  (PW-6)  it  seems
that injuries No.1 and 2, which were caused on  right  and  left  cheeks  of
deceased by    sharp edged weapons, were not  grievous.   Similarly,  injury
No.4, which was an incised wound on the occipital region of  the  skull  was
bone deep.  Though there was bleeding from it, but the bone  was  not  found
cut. Injuries No.5  and  6  were  respectively  swelling  and  abrasions  on
shoulder and chest. No. underneath organ was found  damaged.  No  doubt  Dr.
Jain stated that injuries found on the body of deceased were  sufficient  to
cause his death, but he did not mention this fact in the  postmortem  report
(Ex.P/10).  In Ex.P/10 as well as in court he specifically stated  that  the
cause of death of deceased was excessive haemorrhage from  the  injury  No.3
which was on the knee.

18. In view of the above medical evidence, in  our  opinion,  it  cannot  be
held established with certainty that appellants intended  to  commit  murder
of the deceased, but, since they caused number of injuries  by  sharp  edged
weapons to deceased and the injury No.3 proved fatal, it can  be  held  that
appellants assaulted deceased with  an  intention  of  causing  such  bodily
injuries to him as were likely to cause his death making them liable  to  be
punished under Section 304-I of the Indian Penal Code”.



8.    We are unable to appreciate  and  accept  this  reasoning.   When  the
deceased  along  with  PW1  Kallu  Choudhary  were  going  to   eat   betals
respondents/accused came from the front side  and  second  respondent  Bhura
pelted country bomb at them and inflicted blow of sword   on  Hari  and  the
other accused assaulted Hari with sword, Gupti  and  Kankur  and  they  also
attacked PW1 Kallu Choudhary with weapons.  Hari was  soiled  in  blood  and
was moaning and on being taken to hospital,  was  declared  dead.   Injuries
no.1 to 4 found on the body of Hari were incised wounds and 3rd and  4th  of
them were inflicted on the right knee  joint  and  head  respectively.   Dr.
Ashok Kumar Jain who conducted the autopsy  has  stated  that  the  injuries
found on the body were sufficient to cause death.  It was pointed  out  that
the cause of death was excessive haemorrhage from injury no.3 which  was  on
the knee.

9.    In State of Andhra Pradesh vs. Rayavarapu Punnayya and Anr.  (1976)  4
SCC 382), this Court had to deal with a similar  situation.  In  that  case,
the accused 5 in number beat the victim with sticks on the legs and arms  of
the deceased and when hospitalized the deceased succumbed to  his  injuries.
The medical officer who conducted the  autopsy  opined  that  the  cause  of
death was shock and haemorrhage resulting from multiple  injuries  and  said
injuries were cumulatively sufficient to cause death in the ordinary  course
of nature.   Question arose whether in  such  a  case  when  no  significant
injury had been inflicted on a vital part of the body, and the weapons  used
were sticks and the accused could not be  said  to  have  the  intention  of
causing death, the offence would be ‘murder’ or  merely  ‘culpable  homicide
not amounting to murder’.  This Court answered the question in these terms:

“39. ……. . All these acts of the accused were  preplanned  and  intentional,
which, considered objectively in the light of  the  medical  evidence,  were
sufficient in the ordinary course of nature to cause death.  The  mere  fact
that the beating was designedly confined by the assailants to the  legs  and
arms, or that none of  the  multiple  injuries  inflicted  was  individually
sufficient in the ordinary  course  of  nature  to  cause  death,  will  not
exclude the application of clause thirdly of Section  300.   The  expression
“bodily injury” in clause thirdly includes also  its  plural,  so  that  the
clause would cover a case where all the  injuries  intentionally  caused  by
the accused are cumulatively sufficient to cause the death in  the  ordinary
course of nature, even if  none  of  those  injuries  individually  measures
upto such sufficiency.   The  sufficiency  spoken  of  in  this  clause,  as
already noticed, is the high probability of death in the ordinary course  of
nature, and if such sufficiency exists and death is caused  and  the  injury
causing it is intentional, the case  would  fall  under  clause  thirdly  of
Section  300.   All  the  conditions  which  are  a  prerequisite  for   the
applicability of  this  clause  have  been  established    and  the  offence
committed by the accused, in the instant case was ‘murder’.”



10.   In the present case, the fact that the  accused  hurled  country  made
bombs, has been established.   The incised  injuries  caused  to  Hari  were
intentional and were sufficient to cause death in  the  ordinary  course  of
nature even if it cannot be said that  his  death  was  intended.   This  is
sufficient to bring the case within thirdly of Section 300.

11.   For the foregoing reasons, we are of the opinion that the  High  Court
was in error in altering the conviction of the respondents/accused from  one
under  Section  302  to  that  under  Section  304-I  Indian   Penal   Code.
Accordingly, we allow this appeal and set aside the  impugned  judgment  and
restore the judgment of the trial court convicting  the  respondents/accused
for the offence of murder, with a sentence of imprisonment  for  life.   The
respondents/accused are directed to surrender  before  the  trial  court  to
serve out the remaining  sentence,  failing  which  the  trial  court  would
forthwith issue warrants of arrest and send them to jail.


                                                      …….………………………….J.
                                                      (Jagdish Singh Khehar)



                                                           ……..…..……………………J.
                                                                (C.Nagappan)


New Delhi;
March 02, 2016

not even note down the six injuries on the complainant which included a grievous injury on the temporal part, a reddish blue mark on the upper side of right eye, another injury having blue mark on the forehead and another wound on the eyebrow on the right eye. There was hardly any mitigating circumstance to take such a lenient view as has been done by the High Court. The law on the principles governing proper sentencing has been elaborated by this Court in large number of cases. It is the duty of the Court awarding sentence to ensure justice to both the parties and therefore undue leniency in awarding sentence needs to be avoided because it does not have the necessary effect of being a deterrent for the accused and does not re-assure the society that the offender has been properly dealt with. It is not a very healthy situation to leave the injured and complainant side thoroughly dissatisfied with a very lenient punishment to the accused. In the present case the order of punishment imposed by the High Court suffers from the vice of being over-lenient even in absence of any mitigating circumstance.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                       CRIMINAL APPEAL NO. 182 OF 2016
                [Arising out of S.L.P.(Crl.)No.8006 of 2012]

State of M.P.                                            …..Appellant

      Versus

Udaibhan                                            …..Respondent

                                   W I T H

                      CRIMINAL APPEAL NO. 183  OF 2016
                [Arising out of S.L.P.(Crl.)No.8011 of 2012]

State of M.P.                                            …..Appellant

      Versus

Hakim Singh & Anr.                                  …..Respondents


                               J U D G M E N T



SHIVA KIRTI SINGH, J.

These appeals by special leave  have  been  preferred  by  State  of  Madhya
Pradesh against  common  judgment  and  order  dated  14.12.2011  passed  in
Criminal Appeal Nos.92/2002 and 106/2002.
By the impugned judgment  and  order  the  High  Court  has  partly  allowed
criminal appeals preferred by the three accused, namely,  Rajaram,  Udaibhan
and Hakim Singh, respondents  in  these  appeals  so  as  to  convert  their
conviction under Section 307 of IPC for Rajaram and under Section  307  read
with Section 34 of the IPC for the  other  two  appellants  into  one  under
Section 326 for Rajaram and 326/34 for the other two.  The  High  Court  did
not interfere with the fine imposed  on  the  respondents  for  the  offence
noted above as well as for the offence under Section  323  IPC  but  reduced
the sentence for imprisonment which was R.I. for 10 years  for  the  offence
punishable under Section 307 as well as Section 307 read with Section 34  of
the IPC to a period already undergone by the respondents which  was  of  one
year and nine months only.
Since the High Court did not disbelieve the substratum  of  the  prosecution
case and has  maintained  the  conviction  of  respondents,  albeit  for  an
offence minor to one under Section 307 or Section 307 read with  Section  34
of IPC, the only material issue worth  consideration  in  these  appeals  is
whether the High Court in the matter of awarding of punishment  has  ignored
the relevant considerations and adopted an  erroneous  approach.   The  High
Court accepted the contention advanced on behalf of  the  accused  that  the
evidence on record did not establish  any  intention  on  the  part  of  the
accused persons to kill the complainant or his brother, the two  injured  in
this case.  The High Court did not doubt nor did the accused  persons  raise
any contention that the injury sustained by the complainant on head was  not
a grievous injury.  Being an incised wound on temporal region of  the  head,
it was clearly caused by a sharp cutting weapon and dangerous to life.   The
doctor held the aforesaid injury no.1 on the head  to  be  grievous  on  the
basis of X-ray which showed fracture of the skull bone.
The High Court in our considered opinion failed to keep under focus  various
relevant factors for a proper decision on  the  quantum  of  sentence  which
should have been imposed even for the altered conviction under  Section  326
or Section 326/34 of the IPC.  The prosecution case which has been  accepted
as true disclosed that the complainant  Kriparam  was  called  to  Panchayat
Bhawan  where  the  accused  persons  were  already  present  with  weapons.
Rajaram was having farsa whereas Hakim  was  armed  with  an  iron  rod  and
Udaibhan with lathi.  As soon as the complainant arrived he  was  threatened
and assaulted by all the  three  with  their  respective  weapons.   Rajaram
caused a farsa injury on the head, Hakim caused an injury with iron  bar  on
the eyebrow near the right eye.  Udaibhan gave more than  one  lathi  blows.
When complainant’s brother Prabhu came for  his  rescue  then  he  was  also
assaulted with lathi blows by Udaibhan.
The High Court did not even note down the six injuries  on  the  complainant
which included a grievous injury on the temporal part, a reddish  blue  mark
on the upper side of right eye, another  injury  having  blue  mark  on  the
forehead and another wound on the eyebrow  on  the  right  eye.   There  was
hardly any mitigating circumstance to take such a lenient view as  has  been
done by the  High  Court.   The  law  on  the  principles  governing  proper
sentencing has been elaborated by this Court in large number of  cases.   It
is the duty of the Court awarding sentence to ensure  justice  to  both  the
parties and therefore undue  leniency  in  awarding  sentence  needs  to  be
avoided because it does not have the necessary effect of being  a  deterrent
for the accused and does not re-assure the society  that  the  offender  has
been properly dealt with.  It is not a very healthy situation to  leave  the
injured and complainant side thoroughly dissatisfied  with  a  very  lenient
punishment to the accused.  In the present  case  the  order  of  punishment
imposed by the High Court suffers from the vice of being  over-lenient  even
in absence of any  mitigating circumstance.
In such a situation, the interest of justice requires interference with  the
punishment imposed by  the  High  Court.   The  ends  of  justice  would  be
satisfied by imposing on  all  the  three  accused  persons  a  sentence  of
rigorous imprisonment for three years in place of period already  undergone,
for the offence under Section 326 as well as  Section  326/34  of  the  IPC.
The other sentence which has been maintained  by  the  High  Court  is  left
intact.   However,  it  is  clarified  that  sentence  of  imprisonment  for
different offences against  the  respondents  shall  run  concurrently.  The
impugned judgment and order are modified accordingly. The Trial Court  shall
take all necessary steps to ensure  that  the  respondents  are  taken  into
custody forthwith to serve out  the  remainder  period  of  imprisonment  in
connection with  Sessions  Case  No.  16/2001,  tried  by  Third  Additional
Sessions Judge, Shivpuri (Madhya Pradesh).  The  appeals  preferred  by  the
State are allowed to the aforesaid extent only.

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


                       ……………………………………..J.
                             [SHIVA KIRTI SINGH]
New Delhi.
March 01, 2016.
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