Civil Appeal No 5653 1983
From the Judgment and Order dated 3181979 of the Allahabad High Court in Misc
Writ Petition No 4994 of 1975 EC Agarwal for the Appellant
Manoj Swarup and Ashok K Srivastava for the Respondent
The Judgment of the Court was delivered by SC AGRAWAL J
This appeal by special leave is direct ed against the judgment of the High Court of Judicature at Allahabad dated August 31 1979 in Civil Misc
Writ Petition No 4994 of 1975 filed by the appellant
The said writ petition related to proceedings for determination of surplus land under the UP Imposition of Ceiling on Land Holdings Act
1960 hereinafter referred to as the Act 
The Act has been enacted by the UP State legislature to provide for the imposition of ceiling on land holdings in Uttar pradesh and certain other matters connected therewith
In Section 4 of the Act provision is made for calculation of ceiling area
Section 5 provides for imposition of ceiling on existing holdings
Sections 6 to 8 provide for exemption of certain lands from the imposition of ceiling
Section 9 provides for issue of a general notice by the Prescribed Authority calling upon every tenure holder holding land in excess of the ceiling area to submit to him a statement in respect of all his holdings
Section 10 days down that in every case where a tenure holder fails to submit a statement or submits an incorrect statement the Prescribed Authority shall
after making such enquiry as he may consider neces sary cause to be prepared a statement indicating the plot or plots proposed to be declared as surplus land and thereupon cause to be served on every such tenure holder a notice together with a copy of the statement thus prepared calling upon him to show cause
within a period specified in the notice
why the statement be not taken as correct
Section 11 provides for determination of surplus land by the Pre scribed Authority in cases where no objection is filed within the period specified in the notice
issued under Section 10
Section 12 provides for determination of surplus land by the Prescribed Authority in cases where an objection has been filed
Section 13 makes provision for appeal against the order passed by the Prescribed Authority under Section 11 or Section 12 121 In 1972 it was decided to lower the ceiling limit and to make further provisions with regard to transfers in antici pation of the imposition of ceiling
The UP State legisla ture enacted the UP Imposition of Ceiling on Land Holdings Amendment Act 1972
UP Act 18 of 1973 hereinafter referred to as the 1973 Act  which came into force on June 8 1973
By the 1973 Act Sections 3 to 8 were substituted and other amendments were made in the Act
Certain further amendments were made in the Act by the UP Act 2 of 1975
Among the amendments introduced by the Amendment Act of 1975 was insertion of Explanation I and Explanation II after sub section 1 of Section 5 as substituted by the 1973 Act
UP Act 2 of 1975 was brought into force with effect from June 8 1973
A notice under Section 102 of the Act was issued to the appellant and he filed objections wherein it was submit ted that Chhiddu Singh
the father of the appellant had executed a registered gift deed dated October 13 1971 in respect of Plot No 111 measuring 63 Bighas 12 Biswas and 17 Dhur in favour of his wife Smt
Roshan Kumari Smt
Premwati wife of the appellant and Virendera Bahadur Singh and Tej Vir Singh sons of the appellant
It was also stated that Chhiddu Singh died on April 28 1973
The submission of the appellant was that the said land which was gifted by his father Chhiddu Singh was not inherited by the appellant and it could not be treated as part of the holding of the appel lant for the purpose of imposition of ceiling
The Pre scribed Authority overruled the said objection of the appel lant and ignoring the gift made by Chhiddu Singh included the said land as part of the holding of the appellant and declared the surplus land of the appellant to the extent of 49 Bighas and 17 Biswas
The appellant filed an appeal which was partly allowed by the First Additional Civil Judge
Aligarh by his judgment dated January 31
1975 whereby the area of surplus land was reduced to 42 Bighas 13 Biswas and 6 Dhur
The appellant filed a writ petition in the High Court which was dismissed by the High Court by judgment dated August 31 1979
Feeling aggrieved by the said judg ment of the High Court the appellant has filed this appeal after obtaining special leave to appeal
The expression holding  is defined in clause 9 of Section 3 as under 9 holding  means the land or lands held by a person as a bhumidhar sirdar asami of Gaon Sabha or an asami mentioned in Section 11 of the Uttar Pradesh Zamindari Abolition and Land Reforms Act 1950 or as a tenant 122 under the UP
Tenancy Act 1939 other than a sub tenant or as a Government lessee or as a sub lessee of a Government lessee where the period of sub lease is co extensive with the period of the lease The expression tenure holder  is defined in clause 17 of Section 3 as under 17 tenure holder  means a person who is the holder of a holding but does not include a a woman whose husband is a tenure holder b a minor child whose father or mother is a tenure holder
 The relevant provisions of Section 5 are 5 Imposition of ceiling 1 On and from the commencement of the Uttar Pradesh Imposition of Ceiling of Land Holdings Amendment Act 1972 no tenure holder shall be entitled to hold in the aggregate throughout Uttar Pradesh any land in excess of the ceiling area applicable to him
Explanation I In determining the ceiling area applicable to a tenure holder all land held by him in his own right whether in his own name or ostensible in the name of any other person shall be taken into account
Explanation II If on or before January 24 1971 any land was held by a person who continues to be in its actual cultivatory possession and the name of any other person is entered in the annual register after the said date either in addition to or to the exclusion of the former and whether on the basis of a deed of transfer or licence or on the basis of a decree it shall be presumed unless the contrary is proved to the satisfaction of the prescribed authority that the first mentioned person continues to held the land and that it is so held by him ostensibly in the name of the second mentioned person
 6 In determining the ceiling area applicable to a tenure 123 holder any transfer of land made after the twenty fourth day of January 1971 which but for the transfer would have been declared surplus land under this Act shall be ignored and not taken into account Provided that nothing in this sub section shall apply a a transfer in favour of any person including Govern ment referred to in sub section 2 b a transfer proved to the satisfaction of the prescribed authority to be in good faith and for adequate consideration and under an irrevocable instrument not being a benami transaction or for the immediate or deferred benefit of the tenure holder or other members of his family
Explanation The burden of proving that a case falls within clause b of the proviso shall rest with the partx  claiming its benefit
 Shri Agarwal has urged that the amendments that were introduced in the Act by UP Act 18 of 1973 are not retro spective in nature and that the said amendments are opera tive with effect from June 1973 and that surplus land has to be determined with reference to June 8 1973 the date of coming into force of the 1973 Act
The submission of Shri Agarwal is that on June 8
1973 the land covered by Plot No 111 measuring 63 Bighas 12 Biswas and 17 Dhur could not be included in the holding of the appellant and the appellant was not the tenure holder in respect of the said land
Shri Agarwal has contended that in view of the gift deed dated October 13 1971 executed by Chhiddu Singh the father of the appellant the land covered by the gift deed had vested in the donees and the appellant did not inherit the said land on the death of Chhiddu Singh on 28th April 1973
Laying stress on the definition of expression holding  contained in clause 9 of Section 3 and the expression tenure holder  contained in clause 117 of Section 3 Shri Agarwal has submitted that on June 8 1973 the land that was gifted by Chhiddu Singh was not held by the appellant and it was not part of appellant s holding and the appellant was not the tenure holder in respect of the same
find no merit in this contention
The Act postulates that the ceiling area of a tenure holder has to be deter mined in accordance with the provisions contained in Section 5
Alongwith such determina 124 tion of ceiling area there has to Be determination of the surplus land held in excess of the ceiling area which is to be acquired by the Stale
For the purpose of determination of the ceiling area provision has been made in sub section 6 of Section 5 that any transfer of land which but for the transfer would have been declared surplus land under the Act
if made after January 24 1971 shall be ignored and not taken into account
Transfers falling within the ambit of clauses a and b of the proviso to sub section 6 are
however excluded and such transfers even though made after January 24 1971 have to be taken into account
The gift made under the gift deed dated October 13 1971 executed by Chhiddu Singh was a transfer of land
It was made after January 24 1971
It was in respect of land which but for the transfer would have been declared surplus land under the Act
The said transfer did not fall within the ambit of clauses a and b of the proviso to sub section 6 of Section 5
In view of sub section 6 of Section 5 the said gift was therefore liable to be ignored for the purpose of determining the ceiling area applicable to the appellant
Shri Agarwal has urged that sub section 6 of Section 5 cannot be applied to the present case inasmuch as it postu lates a transfer by the tenure holder whose ceiling area is to be determined under the Act and that in the present case the gift was not made by the appellant but by his father and
therefore
the said gift cannot be ignored on the basis of the provisions of Sub section 6 of Section 5
We are unable to agree
Sub section 6 of Section 5 does not speak of a transfer by the tenure holder
It speaks of any trans fer of land made after January 24 1971 which but for the transfer would have been declared surplus land under the Act
It is not the requirement of sub section 6 of Section 5 that the transfer should be by the tenure holder whose ceiling area is to be determined
We cannot read this re quirement in it
While construing sub section 6 of Section 5 it has to be borne in mind that this provision has been made with the object of preventing evasion of the ceiling law by owners of large holdings making transfers in antici pation of the imposition of the lower limit on the ceiling area Such a provision must be so interpreted as to curb the mischief find advance the remedy
A construction which will cut down the scope of this provision cannot be adopted
In our opinion therefore sub section 6 of Section 5 is applicable to a transfer made by the predecssor ininterest of the tenure holder whose ceiling area is to be determined in cases where such predecessor died before June 8 1973 and the tenure holder whose ceiling area is to be determined inherited the lands of 125 such predecessor prior to June 8 1973
In the instant case the land which was transferred by Chhiddu Singh under gift deed dated October 13 1971 was land which but for the said transfer would have been declared surplus under the Act
Once the gift made by Chhiddu Singh is ignored the land so gifted should be treated to have continued to vest in Chhiddu Singh at the time of his death on April 28 1973 and on the death of Chhiddu Singh the appellant inherited the same
The said land has to be treated as part of the holding of the appellant on June 8 1973 and he was the tenure holder in respect of the same on that date
The said land was required to be taken into consideration for determining the surplus land held by him
Shri Agarwal has relied upon the decision of this Court in Arjan Singh and Another vs The State of Punjab and Oth ers  This case turns on the interpreta tion of the expression this Act  in Section 7 of the Pepsu Tenancy and Agricultural Lands Amendment and Validation Act 1962 whereby Section 32KK was introduced in the Pepsu Tenancy and Agricultural Lands Act 1955 with effect from October 30 1956
By Section 32KK it was provided that land owned by a Hindu undivided family would be deemed to be land of one land owner and partition of land owned by such a family shall be deemed to be a disposition of land for the purposes of Section 32FF and the question was whether a partition effected by a registered partition deed dated September 6 1956 was covered by the said provision
It would have been so covered if the expression this Act  was construed to mean the principal Act of 1955
This Court however held that in view of the various provisions con tained in the Amendment Act of 1962 the expression this Act  meant the Amendment Act of 1962 and not the principal Act
This decision therefore turns on the interpretation of the particular provision of the Amendment Act of 1962 and it has no bearing on the present case
therefore find no merit in the appeal and it is accordingly dismissed
No order as to costs
SBali Appeal dismissed


Summary:
The appellant was convicted under sections 302 and 201 read with section 34 IPC
The prosecution case was that he and the deceased were last seen together in village J on November 10 1974 by PW 7 owner of a dhaba cum liquor shop and PW 8 and all of them had consumed liquor
The deceased had by then become tipsy
Thereafter the appellant and the deceased had boarded a truck driven by A 2 and A 3 the cleaner
While they were going in the truck there ensued a quarrel between them over some money matters and the appellant attacked the deceased with an iron screw driver and when the latter was half dead all the accused severed his head with an iron saw and burried the trunk under stones
The head was hidden at a different place
Three days later PW 6 chowkidar of a neighboring village noticed the dead body and reported the matter to PW 10 the village pradhan who accompanied him to the spot
PW 6 lodged the FIR the next morning
On receiving information that the deceased and the appellant were seen consuming liquor on November 10 the Sub Inspector PW 27 and PW 10 went to appellant s village and took him for identification to village J where PWs 7 and 8 identified him as one seen in the company of the deceased and having consumed liquor
The appellant was thereafter taken to PW 10 s village and PW 27 proceeded for further investigation
The appellant then made an extra judicial confession to PW 10 of having committed the crime with the help of A 2 and A 3
PW 10 passed on that informa tion to PW 27 the next day following which the accused were arrested
Thereafter A 2 made a statement under section 27 of 106 the Evidence Act leading to the  discovery of the severed head
The weapon of offence was also recovered
The High Court confirmed the conviction and sentence of the appellant but acquitted the other two of the charge under section 302 IPC
Allowing the appeal by special leave the Court HELD 1
The prosecution has failed to bring home the guilt to the appellant beyond all reasonable doubt and to prove that he alone had committed the crime
He is there fore entitled to the benefit of doubt
116D 21 When there is no direct witness to the commission of murder and the case rests entirely on circumstantial evi dence all the circumstances from which the conclusion of the guilt is to be drawn should be fully and cogently estab lished
The proved circumstances should be of a conclusive nature and definite tendency unerringly pointing towards the guilt of the accused
Imaginary possibilities have no role to play
What is to be considered are ordinary human proba bilities
It is not necessary that each circumstance by itself be conclusive but cumulatively must form unbroken chain of events leading to the proof of the guilt of the accused
If any of the said circumstances are consistent with the innocence of the accused or the chain of the conti nuity of the circumstances is broken the accused is enti tled to the benefit of the doubt
112D H 22 In assessing the evidence to find these principles it is necessary to distinguish between facts which may be called primary or basic facts on one hand and inference of facts to be drawn from them on the other
In regard to the proof of basic or primary facts the court has to judge the evidence in the ordinary way and in appreciation of the evidence in proof of those basic facts or primary facts there is no scope for the application of the doctrine of benefit of doubt
The court has to consider the evidence and decide whether the evidence proves a particular fact or not
Whether that fact leads to the inference of the guilt of the accused or not is another aspect and in dealing with this aspect of the problem the doctrine of benefit would apply and an inference of guilt can be drawn only if the proved facts are inconsistent with the innocence of the accused and are consistent only with his guilt
113A C 31 In the instant case from the evidence it is clear that there was no prior intimacy of the appellant and the deceased
They happened to meet per chance
PW 7 the liquor shop owner and PW 8 who had 107 liquor with the appellant and the deceased were also abso lute strangers to the deceased and the appellant
Admittedly there was no identification parade conducted by the prosecu tion to identify the appellant by PW 7 or PW 8
The appel lant was stated to have pointed out to PW 7 as the one that sold the liquor and PW 8 consumed it with him and the de ceased
Therefore it is not reasonably possible to accept the testimony of the PW 7 and PW 8 when they professed that they had seen the appellant and the deceased together con suming the liquor
It is highly artificial and appear on its face a make believe story
113F H 321 An unambiguous extra judicial confession possesses high probative value force as it emanates from the person who committed the crime and is admissible in evidence pro vided it is free from suspicion and suggestion of its falsi ty
But in the process of the proof of the alleged confes sion the court has to be satisfied that it is a voluntary one and does not appear to be the result of inducement threat or promise envisaged under section 24 of the Evidence Act or was brought about in suspicious circumstances to circum vent ss 25 and 26 of the Evidence Act
For this purpose the court must scrutinise all the relevant facts such as the person to whom the confession is made the time and place of making it the circumstances in which it was made and final ly the actual words used by the accused
114A D 322 Section 25 of the Evidence Act provides that no confession made to a police officer shall be proved as against a person accused of any offence
Section 26 provides that no confession made by any person while he is under custody of the police officer unless it be made in the immediate presence of a magistrate shall be proved as against such person
114G 323 In the instant case the appellant did not make any confession in the presence of the magistrate
From the narrative of the prosecution story it is clear that PW 10 and the appellant did not belong to the same village and that PW 27 and PW 10 came together and apprehended the appellant from his village and took him to village J for identification
After he was identified by PW 7 and PW 8 it was stated that he was brought back to the village of PW 10 and was kept in his company and PW 27 left for further investigation
It is incredible to believe that the police officer PW 27 after having got an accused identified would have left without taking him into custody
He seems to have created an artificial scenario of his leaving for further investigation and keeping the appellant in the custody of PW 10 to make an extra judicial confession with a view to avoid the rigour of sections 25 and 108 26
Nothing prevented him from taking the appellant to a Judicial Magistrate and having his confession recorded as provided under section 164 of the Crl
PC which possesses great probative value and affords an unerring assurance to the court
It is too incredulous to believe that for mere asking to tell the truth the appellant made voluntary confession to PW 10 and that too sitting in a hotel
The other person in whose presence it was stated to have been made was not examined to provide any corroboration to the testimony of PW 10
It would be legitimate therefore to conclude that the appellant was taken into police custody and the extra judicial confession was obtained there through PW 10 who accommodated the prosecution
115A E 324 It is well settled law that sections 25 and 26 of the Evidence Act shall be construed strictly
Therefore by operation of section 26 the confession made by the appellant to PW 10 while he was in the custody of the police officer shall not be proved against him
115E 33 The statement said to have been made by the appel lant under s 27 of the Evidence Act leading to discovery of the consequential information namely
saw blade is not of a conclusive nature connecting the appellant with the crime
The recoveries were made long after the arrest of the appel lant
The blood stains on all the articles had disintegrat ed
So it was not possible to find whether it was human blood or not
Moreover from the prosecution evidence it is clear that the deceased himself was an accused in an earlier murder case and it is obvious that he had enemies at his back
Absolutely no motive to commit the crime was attribut ed to the appellant
115G H 4
The conviction and sentence of the appellant for the offences under sections 302 and 201 IPC are set aside
The bail bond shall stand cancelled
He shall remain at liberty unless he is required in any other case
116D 5
Indulging in free fabrication of evidence against an innocent and implicating him in the capital offence punisha ble under section 302 IPC as in the instant case is a deplora ble conduct on the part of an investigating officer
The liberty of a citizen is a precious one guaranteed by consti tutional provisions and its deprivation shall be only in accordance with law
Before accusing the appellant of the commission of such a grave crime an honest sincere and dispassionate investigation should have been made to feel sure that he alone was responsible to commit the offence
117B A 109