dedol-hf/india-case-legal-rag huggingface dataset:
The  Sessions Judge has expressed the view that in order  to
meet  the defence case the prosecution introduced the  story
of Deva Sukh having been assaulted with a lathi in the first
instance so as to make the appellants' party the aggressors,
it being the prosecution case that Behari Singh and his  men
had used lathis in order to defend themselves.  In order  to
resolve the conflict in the cases of the parties and to  get
at the true picture, the
199
Sessions  Judge went very minutely into the question  as  to
whether  there  was  trustworthy evidence  about  Deva  Sukh
having  received  any injury at all in the  occurrence.   It
seems  to  us that there is a formidable  array  of  circum-
stances to support the conclusion ultimately reached by  the
Sessions  Judge.  It appears that in the  first  information
report there is no reference to Deva Sukh or to the injuries
said  to have been received by him. The Sessions  Judge  has
pointed  out that there was a considerable interval of  time
between the occurrence and the lodging of the first informa-
tion  report, and therefore it is surprising that  the  most
important  incident of the occurrence and the name  of   the
most important witness was omitted in the report. Again,  no
reference  was made to Deva Sukh or to his injuries  in  the
dying declaration of Behari Singh which was recorded by  one
Dr.  Shankar  Deo, and also in that of  Lakhan  Singh.   The
Sessions Judge has further pointed out that the  prosecution
witnesses,  Chokha,  Prempal, Cheta and Gangola  Singh,  who
were examined by the investigating officer on the 18th June,
did  not  also refer to Deva Sukh.  The  investigating  sub-
inspector was informed of the injuries on Deva Sukh and  his
presence at the time of the occurrence for the first time on
the  19th  June, 1945, and Deva Sukh's explanation  for  not
appearing before him at the earliest opportunity was that he
was  frightened and had concealed himself in his  house  for
about two days and had directed his relations not to  inform
the  police  of his presence.  He also stated  that  on  his
arrival in his house after the occurrence he did not  inform
his  relations of what had happened.  Some of these  matters
might  have  been overlooked if there  had  been  convincing
evidence about his having actually received injuries, but we
are satisfied that such evidence as is before us is extreme-
ly  unsatisfactory  and suspicious and  we  entertain  grave
doubts as to whether Deva Sukh received any injuries at all.
    Dr. Shanker Deo, who examined Deva Sukh,  is a   retired
Sub-Assistant  Surgeon  practising  in Kauiraganj, which  is
not far from village Shahgarh.
200
He admits that he had known Ratan Singh since his childhood,
and when he was a child he used to be taught at the house of
Ratan  Singh by a teacher employed by Ratan  Singh's  uncle.
He has stated that Deva Sukh had two bruises across the back
of  the  middle  of the left forearm, and one  of  them  was
grievous since the left ulna was fractured. He further  says
that at the time of examination he did charge fees from Deva
Sukh, that he was brought to him three days after the  other
injured persons, that when the latter group of persons  came
to him none of them told him that there was one more injured
person to be examined, and that Deva Sukh was brought to him
by  Ratan Singh's servant.  There  are  unsatisfactory  fea-
tures  in  the  evidence of this doctor  relating  to  other
matters which need not be referred to, but what is  somewhat
remarkable is that though there is a District Board Hospital
at Jalali about four miles from Kauirganj, Deva Sukh did not
obtain  an injury certificate from the doctor in  charge  of
that hospital. Deva Sukh says that he did go to that  hospi-
tal  to have his injuries attended to, but there is no  evi-
dence to corroborate this.  These facts as well as a  number
of  other facts relied upon by the Sessions Judge do  go  to
support his theory, and once it is held that the prosecution
has to rely on fabricated evidence, it throws doubts on  the
entire case.
From the record, it appears that Surajpal Singh was  the
person who had been taking an active interest in the  eject-
ment suit, and he was admittedly spending money. Ratan Singh
says  that he had also paid money to Surajpal Singh  towards
the  expenditure,  but this is not probable because  he  and
Surajpal had been on bad terms.  It is admitted that  Suraj-
pal  is the person to whom the Amin gave possession  of  the
land,  but in spite of this fact, Ratan Singh's men  started
operations  on the land ignoring Bhagwati Kuer, which  Ratan
Singh  had no right to do, even assuming that the  land  was
joint  property.  If Behari Singh and the other men sent  by
Ratan Singh were trying to take exclusive possession of  the
land and had started
201
operations  thereon, Surajpal Singh had every right to  pro-
test,  and if his men were beaten first, of which there  are
strong  indications in the case, he was entitled ' to  repel
the  attack  in exercise of the right  of  private  defence.
That  Ratan  Singh  had  made  ample  preparations   through
Behari  Singh  is  quite  clear. Admittedly,  there  were  a
number of persons armed with lathis present at the scene  on
his  behalf  including outsiders like Nawab Mewati,  who  is
said to have been a well-known fighter, Zorawar and others.
As regards the remaining two witnesses, to whom the High
Court has made reference, viz., Rori Singh and Pransukh,  it
seems to us that the High Court has overlooked the  comments
made  by  the Sessions Judge upon their  evidence,  some  of
which  are of considerable force.  What has impressed us  is
that  they were not  independent  witnesses  and  were   not
mentioned  in the first information report as  witnesses  to
the occurrence, and they were examined by the  sub-inspector
as  late as the 20th and 21st June, 1945. After reading  the
two  judgments,  we  see no reason why the  opinion  of  the
Sessions Judge regarding these witnesses should not  receive
the weight which should normally be attached to that of  the
trial court.
    It  is well-established that in an appeal under  section
417 of the Criminal Procedure Code, the High Court has  full
power to review the evidence upon which the order of acquit-
tal  was  founded, but it is equally well-settled  that  the
presumption  of  innocence of the accused is  further  rein-
forced by his acquittal by the trial court, and the findings
of  the  trial court which had the advantage of  seeing  the
witnesses  and hearing their evidence can be  reversed  only
for very substantial and compelling reasons.
    On the whole, we are inclined to hold that the  Sessions
Judge had taken a reasonable view of the facts of the  case,
and in our opinion there were no good reasons for  reversing
that view.  The assessors with whose aid the trial was held,
were  unanimously of the opinion that the accused  were  not
guilty, and
202
though  25  persons were placed on trial on  identical  evi-
dence, the State Government preferred an appeal only against
5 of them on the sole ground that the acquittal was  against
the weight of evidence on the record.
    In  the result, we allow the appeal, set aside the  con-
viction  and sentences of the appellants and acquit them  of
all the charges.
Appeal allowed.
Agent for the appellant: P.K. Chatterjee.
Agent for the respondent: I. N. Shroff for P.K.
Bose.
PETITIONER:
BHAGAT SINGH
        Vs.
RESPONDENT:
THE STATEGURDEV SINGH-- Caveator.
DATE OF JUDGMENT:
19/12/1951
BENCH:
FAZAL ALI, SAIYID
BENCH:
FAZAL ALI, SAIYID
MAHAJAN, MEHR CHAND
AIYAR, N. CHANDRASEKHARA
CITATION:
 1952 AIR   45            1952 SCR  371
 CITATOR INFO :
 R          1963 SC1620  (15)
ACT:
    Criminal  Procedure Code (V of 1898), s.  234  (1)--Mis-
joinder  of  charges--Firing single shot at two  persons  to
kill them--Whether one offence or two offences.
HEADNOTE:
    The  appellant  was tried in respect  of  the  following
charges:  (i) causing the death of A and thereby  committing
an offence punishable under s. 302, Penal Code, (ii)  firing
a shot at B and
372
C  with  the intention of causing their  death  and  thereby
committing  an offence punishable under s. 307, Penal  Code,
and  (iii) firing a shot at D with the intention of  killing
him  and thereby committing an offence punishable  under  s.
307, Penal Code.  It was contended on his behalf that  there
was a misjoinder of charges as the second charge was  really
a charge in respect of two offences viz., attempt to  murder
B and attempt to murder C and the accused had therefore been
charged  with,  and tried for, more than three  offences  in
contravention  of s. 234 (1) of the Criminal Procedure  Code
:.Held,  that  there was nothing wrong in the trial  as  the
single  act of firing a shot at B and C is one  offence  and
not two offences and the trial was not bad for misjoinder of
charges.  [Their Lordships however observed that they should
not  be understood as laying down the wide proposition  that
in  no  case can a single act constitute more than  one  of-
fence.]
    Promotha  Natha  Roy v. King Emperor  (17  C.W.N.  479),
Johan Subarna v. King Emperor (10 C.W.N. 520), Poonit  Singh
v. Madho Bhot (I.L.R. 13 Cal. 270) and Sudheendra Kumar  Roy
v. Emperor (I.L.R. 60 Cal. 643) approved.
JUDGMENT:
CRIMINAL  APPELLATE  JURISDICTION:  Criminal Appeal  No.
38 of 1950.  Appeal from the judgment and order of the  High
Court  of  Patiala (Teja Singh C.J., and  Gurnam  Singh  J.)
dated 5th October, 1950, in Criminal Appeal No. 28 of  1950,
affirming  the conviction and sentence of the  appellant  by
the Sessions Judge of Sangrur.
Gopal  Singh and Kartar Singh, for the  appellant.
Narinder  Singh, Advocate General for the Patiala  and  East
Punjab States Union (Jindra Lal, with him) for the  respond-
ent.
    Jai  Gopal Sethi (R. L. Kohli, with him) for the  Cavea-
tor.
1951. December 19.  The Judgment of the Court was deliv-
ered by
    FAZL  ALl J.--This is an appeal against the judgment  of
the  High  Court  at Patiala upholding  the  conviction  and
sentence  of  the appellant, who was tried by  the  Sessions
Judge of Sangrut for the offence of murder and sentenced  to
death.
373
    The prosecution story is a somewhat long and complicated
one,  but ignoring unnecessary details, the  material  facts
may be shortly stated as follows :--
On  the 5th October, 1949, there was a  quarrel  between
the appellant and one Darbara Singh, in the course of  which
the  appellant attacked the latter with a phawra (a  cutting
instrument).  About that time, Gurmail Singh,  the  deceased
person, returned to his house, which was close to the  house
of  Darbara Singh, from his cotton field, where he had  been
working,  in order to take tea for his companions  who  were
still  working  in his field. The  appellant  asked  Gutmail
Singh  to  lend him a spear to enable him  to  kill  Darbara
Singh, but since the latter refused to do so, there ensued a
quarrel  between  him and the appellant, in  the  course  of
which  they exchanged abuses and grappled with  each  other,
and  the fight was stopped only by the intervention of  cer-
tain  persons  present at the place.  It  appears  that  the
appellant was greatly affected by this quarrel, and thereaf-
ter  he is said to have armed himself with a rifle  and  at-
tacked  3 persons in the vicinity of Gurmail Singh's  cotton
field.  He  fired  firstly at Kartar Singh,  son  of  Satwan
Singh, while the latter was returning to his house from  the
field  of  Gutmail Singh, but he was not  hurt.  Soon  after
that,  while Gurmail Singh was returning to his field  after
attending to his buffaloes in a garden which was nearby, the
appellant  chased him and fired at him thereby  causing  his
instantaneous  death.  Lastly, he is said to have  fired  at
Kartar  Singh,  son of Bishan Singh and  one  Jangir  Singh,
while  they  were raising an alarm, but  the  bullet  missed
them.  Upon these allegations, the following  three  charges
were framed against him :--
    "(1)  That  you......   fired a shot  at  Gurmail  Singh
deceased  with rifle P.I. with the intention of killing  him
and  caused his death and thereby committed an offence  pun-
ishable under section 302......
    (2)  That  you......  fired a shot at Kartar  Singh  and
Jangir  Singh with rifle P.I. with the intention of  causing
death and made an attempt to cause their death
374
section 307.....
   (3)  That you.......   fired a gun-shot at  Kartar  Singh
s/o  Satwan Singh......   with the intention of killing  him
and made an attempt to cause his death and thereby committed
an offence punishable under section 307..."
    It  appears that the appellant was an Instructor in  the
Home Guards. and the rifle which he is said to have used had
been given to him by his superior officer with 20 rounds  of
ammunition.
To support their version of the occurrence, the prosecu-
tion  examined 3 eye-witnesses whose evidence has  been  ac-
cepted by both the courts below after careful scrutiny.  The
learned Sessions Judge acquitted the appellant of the second
and  third  charges under section 307 of  the  Indian  Penal
Code, holding that there was no convincing evidence that the
appellant  intended to murder Jangit Singh and the  other  2
persons. He however convicted him of the first charge  under
section  302 of the Indian Penal Code and sentenced  him  to
death, which sentence was later confirmed by the High Court.
    The learned counsel for the appellant had very little to
argue on the merits of the case, but he seriously  contended
that there had been a misjoinder of charges which could  not
be  tried  together  under the law, and  the  illegality  so
committed had vitiated the whole trial of the appellant.  It
appears that in the High Court, the line of argument on this
point  was somewhat different from the line adopted in  this
court.   What was stressed in that court seems to have  been
that  the three incidents in respect of which the  appellant
was  charged not having happened in the course of  the  same
transaction,  they  could not have been  properly  made  the
subject  of one trial, and for this contention reliance  was
placed  mainly on section 235 (1)of the  Criminal  Procedure
Code,  which  provides that "if, in one series  of  acts  so
connected  together  as to form the same  transaction,  more
offences  than one are committed by the same person, he  may
be at one trial for, every such offence." It should be noted
375
that  that  section  is only one of the  exceptions  to  the
general  rule laid down in section 233 of the Code that  for
every distinct offence, there shall be a separate charge and
every such charge shall be tried separately. In this  court,
no  reference was made to section 235, but the argument  was
confined  to  the question as to whether  the  present  case
falls  within  another exception of section  23'3  which  is
contained in section 234 (1) which runs as 'follows :-
    "When  a person is accused of more offences than one  of
the  same kind committed within the space of  twelve  months
from  the  first to the last of such  offences,  whether  in
respect  of the same person or not, he may be charged  with,
and tried at one trial for any number of them not  exceeding
three."
    It was argued before us that even though only 3  charges
have been framed against the appellant, he has in fact  been
tried for 4 offences and not 3.  The 4 offences are said  to
be these :--
     (1) Committing the murder of Gurmail Singh;
     (2)  Attempting to murder Kartar Singh, son  of  Sarwan
Singh;
     (3) Attempting to murder Jangit Singh; and
     (4)  Attempting to murder Kartar Singh, son  of  Bishan
Singh.
The  learned  counsel contended that the fact  that  the
appellant  has  been acquitted of the last  3  offences  and
convicted  only of the first offence was immaterial  to  the
point raised by him, and we have only to see whether all the
offences  mentioned above could be properly tried  together.
In  our opinion, the short reply to this contention is  that
the  second charge which relates to the appellant firing  at
Kartar  Singh and Jangir Singh is not a charge with  respect
to  2 offences but is a charge with respect to  one  offence
only.   The evidence adduced by the prosecution  shows  that
the appellant fired only one bullet.  The word "offence" has
been defined in the Criminal Procedure Code as meaning  "any
act  or  omission made punishable by any law  for  the  time
being in force".  There seems to be
49
376
nothing  wrong in law to regard the single act of firing  by
the  appellant  as one offence only. On the other  hand,  we
think that it would be taking an extremely narrow and  arti-
ficial  view to split it into 2 offences. There are  several
reported  cases in which a similar view has been taken,  and
in  our opinion they have not been incorrectly  decided.  In
Queen Empress v. Raghu Rai(1), where a person stole  several
bullocks  from  the same herdsman at the same time,  it  was
held  that only one offence had been committed. In  Promotha
Nath Ray v. King Emperor(2), it was held that  misappropria-
tion in regard to several account books constituted only one
offence.  In Johan Subarna v. King EmPeror(3), it  was  held
that when an attempt to cheat a number of men by speaking to
them  in  a body had been committed, one  joint  charge  was
valid.  In Poonit Singh v. Madho Bhot (4), it was held  that
only  one  offence had been committed by a person  who  gave
false  information in one statement to the police against  2
persons. In Sudheendrakumar Ray v. Emperor(5), a person  who
was chased by 2 constables had fired at them several  times,
but  it seems to have been rightly assumed that  the  firing
did  not constitute more than one offence, though the  point
was  not  specifically raised or decided.  In  our  opinion,
there is no substance in the point raised, though we  should
not  be understood as laying down the wide proposition  that
in  no  case can a single act constitute more than  one  of-
fence.
    The other points urged on behalf of the appellant before
us were somewhat unsubstantial points relating to the merits
of  the case, which it is not usual for this court to  allow
to be raised in appeals by special leave.
    In our opinion, this appeal is without merit, and it  is
accordingly dismissed.
Appeal dismissed.
   Agent for the appellant: R.S. Narula.
   Agent for the respondent: P.A. Mehta.
   Agent for the caveator: Vidya Sagar.
(1)  1881 A.W.N. 154.  (3) 10 C.W.N. 520.  (5)I.L.R, 60  Cal
643,
(2) 17 C.W.N. 479.   (4) I.L.R. 13 Cal. 270.
377
PETITIONER:
KIDAR LALL SEAL AND ANOTHER
        Vs.
RESPONDENT:
HARI LALL SEAL.
DATE OF JUDGMENT:
18/12/1951
BENCH:
BOSE, VIVIAN
BENCH:
BOSE, VIVIAN
FAZAL ALI, SAIYID
CITATION:
 1952 AIR   47            1952 SCR  179
 CITATOR INFO :
 D          1971 SC2177  (7)
 RF         1978 SC1329  (28)
ACT:
 Transfer of Property Act (IV of 1882), ss. 82,  92--Indian
Contract   Act (IX of 1872),  s.  43--Mortgage--Contribution
between   co-mortgagors--Liability  to   contribute--Whether
proportionate  to value of properties mortgaged, or  benefit
derived by each mortgager- General and special  law--Equita-
ble considerations.
HEADNOTE:
    The  right to contribution as between  co-mortgagors  is
governed  by ss. 82 and 92 of the Transfer of  Property  Act
and not by s. 43 of the Indian Contract Act, inasmuch as  s.
43 of the Contract Act deals with contracts generally, while
ss.  82 and 92 of the Transfer of Property Act  specifically
deal  with the right of contribution between  co-mortgagors.
It is an established principle that when there is a  general
law,  and  a special dealing with a particular  matter,  the
special excludes the general. Consequently, in the absence a
contract  to the contrary, co-mortgagors are bound  to  con-
tribute proportionately to the value of the shares or  parts
of  the mortgaged property owned by them and not in  propor-
tion to the extent of the benefits derived by each of them.
As ss. 82 and 92 of the Transfer. of Property Act  prescribe
the  conditions  in which contribution is payable  in  India
when there is a mortgage, it is not proper to introduce into
the matter extrinisic principles based on equitable  consid-
erations.
JUDGMENT:
   CIVIL  APPELLATE  JURISDICTION: Civil Appeal No.  101  of
1950.  Appeal by special leave from the Judgment and  Decree
dated the 20th September, 1949, of the High Court of Judica-
ture  at Calcutta (Hurries C.J.and Chatterice J.) in  Appeal
No. 46 of 1949 arising out of Decree dated the 31st  August,
1948,  of  the Hon'ble S.B. Sinha J. of  the  Calcutta  High
Court  in  Suit  No.  343  of  1943  instituted  under   the
Original Jurisdiction of the High Court).
M.C.     Setalvad,     Attorney-General     for      India
(B. Sen,with him) for the appellant.
  S.C.   Isaac   (B.   Barterice,   with   him)   for    the
respond-
ent.
     1951. December 18.  The leading judgment was  delivered
by Bose J. Fazl Ali J. agreed,
180
     Bose  J.--This  is a defendant's appeal in a  suit  for
contribution  brought by the son of a mortgagor against  the
co-mortgagors.
    The parties are related as below :--
Balai Lall Seal
                    (died1917)
                        I
                 Megharnala Dassi
                    (died 1945)
    I             I             I          I          I
Bejoy Lall   Biswa Lall  Tarak Lall   Kedar Lall   NakuLall
 (D. 23-5-33)         (D. Nov. 1936)  Deft 1       Deft. 2
                                      (Born        (Born
    I                        I
 Jugal Lall             Hari Lall     22-11-1907)  7-2-1910)
(Plff.)
   The mortgagors were the plaintiff's father Tarak Lall and
Tarak's  two brothers Kedar and Naku. The mortgage was  exe-
cuted on the 12th June, 1936, in favour of one  Mst.  Gyarsi
for  a consideration of Rs. 80,000.  For convenience I  will
call this the suit mortgage though this is not a suit on the
mortgage.
    The  mortgagee  sued  in the year 1938  and  obtained  a
preliminary  decree for sale on the 17th of February,  1939,
for  a  sum of Rs. 89,485-12-9 plus costs.  The  decree  was
made final on the 22nd of December, 1989.
    In execution the mortgagee proceeded against the proper-
ty  of the plaintiff alone (as Tarak's son) and, during  the
pendency of the execution, assigned her rights in the decree
to the Hooghly Flour Mills.  The Mills continued the  execu-
tion and on the 11th of March, 1943, the claim was satisfied
in this way.
    An order of the Court was obtained sanctioning sale of a
part  of the mortgaged property, 20 Round Tank  Lane  (which
belonged exclusively to the plaintiff), to the decree-holder
for a sum of Rs. 1,50,000.  It was directed that the consid-
eration should first be applied in payment of the claim  and
costs  and that the decreeholder should execute a  reconvey-
ance  of the rest of the mortgaged properties in  favour  of
the  mortgagors.  The sanction of the  Court  was  necessary
because  the judgment-debtor Hari Lall  (present  plaintiff)
was a minor.
181
This  was done and 20, Round Tank Lane, was conveyed  by
the  present  plaintiff to the Hooghly Flour  Mills  on  the
18th  of March, 1943. Out of the consideration a sum of  Rs.
97,116-11-0  was paid to the Mills in lull  satisfaction  of
the claim and costs then outstanding.  The Mills executed  a
reconveyance of the rest of the properties to the mortgagors
in release of the mortgage on the same day.
    In  addition to this Rs. 97, 116-11-0, further  sums  of
Rs. 14,400 and Rs. 8,100 had also been paid before the dates
of  these transactions.  These sums were paid by a  Receiver
who  had been appointed by the Court pendente  lite.   These
sums came out of the rents which the Receiver obtained  from
the plaintiff's property, 20 Round Tank Lane.
    The  plaintiff says that in this way he paid a total  of
Rs. 1,19,116-11-0 in satisfaction of the mortgage. His  one-
third share in this comes to Rs. 39,872-3-8. He claims  that
he is entitled to receive the balance of Rs. 79,744-7-4 from
the  two  defendants and that each of them is liable  for  a
half of that sum namely, Rs. 39,872-3-8.
    In  addition  to this the plaintiff had  incurred  costs
amounting to Rs. 1,144-8-6 in resisting Mst. Gyarsi's  claim