JUDGMENT <NAME>, J.

1. This appeal raises a jurisdictional question of some significance. Since answer to the jurisdictional question is to take shape in thelight of facts asserted in the plaint ofr the claim petition, it would, therefore, be appropriate first to notice the relevant facts.

2. The claimant <NAME> happened to be driving Car No. CH 8851. While crossing Gate No. 121 on Panchkula-Zirakpur road, which was open at that time, railway train suddenly approached the said manned railway crossing, engine whereof said to be without lights, struck against his car as a result whereof the claimant recived injuries and his car was damaged; that there wa sno red light to stop the traffic on the road and the accident resulted due to the carelessness and negligence of the driver, the guard in question and the gateman. Since the respondent, which inter alia, included <ORG>, General Manager, <ORG>, New Delhi, <NAME> Station Master, Chandigarh besides the driver, guard of the train and the gateman questioned the jurisdiction of the tribunal to try the matter so the tribunal formulated a preliminary issue to the effect as to whether the application lies before <ORG>. The <ORG> answered the question against the claimants and in favour of the respondents and dismissed the claim petition.

3.The appeal in the first instance came up for hearing before <NAME>. J. who referred the appeal to the larger <ORG>. The appea was then put up before a Division <ORG> which in turn referred the same to a larger <ORG> and that is how this appeal is before us.

4. In all civil matters, it is <ORG> which has the jurisdiction to go into the claims of the kind unless its jurisdiction is either expressly or by necessary implication stands barred. claims for compensation arising out of accidents by use of motor vehicles, till the amendment of the Motor Vehicles Act (hereinafter referred to as the Act), which added Ss. 110 to 110F to the said Act, were tried by <ORG>. The <ORG> being aware of the increasing number of the accidents involving motor vehicles and the resultant misery to the persons involved in the accident or their dependents and the immediate need for financial succour provided a special forum (speedy and inexpensive) in the form of <ORG> for adjudicating upon the claims for compensation in respect of accidents involving the death of, or bodily injury to persons arising out of the use of motor vehicles, or damages to any property of a third party so arising or both and it also sought to bar the expensive and tardy jurisdiction of <ORG> by enacting S. 110F of the Act, which reads as under:--

"110F Bar of Jurisdiction of Civil Courts. Where <ORG> has been constituted for any area, no Civil Court shall relating to any claim for compensation which may be adjudicated upon bgy <ORG> for that area, and no injunction in respect of any action taken or to be taken by or before <ORG> in respect of the claim for compensation shall be granted by <ORG> ".

5. The determination of the parameter of the jurisdiction of the Tribounal envisaged under S. 110 of the Act would depend upon the construction of the experession 'compensation in respect of accidents... arising out of the use of motor vehicles occurring in S. 110 of the Act. The aforesaid expression indicates that there should be an accident which should be as a result of the use o9f motor vehicles. Besides the aforesaid spelled out limiting words the aforesaid expression envisagtes no other limitations, that is, once it is held that there has been an accident as a result of the use of motor vehicle in which either a person has died or has received imjuries or there has been damage to any property of a third party, the <ORG> would have the jurisdiction to the person or authority against whom the claim is made, may be any.

6. Some High Courts however have sought to spell out limitation upon the jurisdiction of the <ORG> from the provisions of S. 110B or by giving a restrictive interpretation to the word use occurring in S. 110 .

7. A Division Bench of Gauhati High Court in Swarnalata v. <ORG>, AIR 1974 Guhati 31 took the view that from thescheme of newly added group of provisions starting from s. 110 to S. 110F , it would be clear that the <ORG> had got no jurisdiction to enforce authority except the owner, the driver and the insurer of the motor vehicle involved in the accident as would be evident from the provisions of S. 110B .

8. In <ORG> v. <ORG>, AIR 1975 Andh Pra 222, one of the contentions raised before the Division Bench was that <ORG> had no jurisdiction to adjudicate upon the claim for compensation arising out of the accident between the truck and the train view of the provisions of S. 100F , Motor Vehicles Act , and it was claimed that <ORG> alone had the jurisdiction to adjudicate upon the given claim. The above contention was repelled with the following observations:--

"It is true that the jurisdiction of <ORG> under S. 110 is stated to be to adjudicate up[on claims in respect of accidents involving the death of or bodily injury to, persons arising out of the use of motor vehicles............ But if we have regard to the scheme of the Act and the context in which S. 110 appears, it is cloear that the claim referred to in the section can have reference only to claims only against the owner or the driver of the motor vehicle concenred in the accident. It could not have been the intention of the framers of the Act to include claim against other persons as well. The Motor Vehicles Act is an Act to consolidate and amend the law relating to motor vehicles. This section occurs in the chapter dealing with insurance of motor vehicles against third party risks. The object behind this section is to provide for speedy and effective machinery for persons injured in accidents arising out of the use of motor vehicles against the owners and the drivers and insurers of motor vehicles. To accept the contention of the learned counsel for the respondent that it would include claims against all persons would lead, in our view, to consequences which were never contemplated by the framers of the Motor Vehicles Act . For instance, a person proceedings in a motor vehicle may be injured by an accident resulting from the fall of tree of the collapse of building. It cannot be said that the occupants can lay a claim in the <ORG> constituted under the Motor Vehicles Act against the owners of the building or of the tree, if it was due to the negligence of such owner that such accident occurred. Similarly "in this case we do not think the provisions of the Motor Vehicles Act were intended to enable the parties injured or the owner of the lorry to make a claim against the railway, simply because the accident arose out of the use of motor vehicle. In our view, the claims referred to in S. 110 are appliable only to cases of claims against the owner or the driver of the motor vehicle or the insurer as the case may be and not as against strangers. The proper forum for adjudicating the claim against the strangers is <ORG>. The jurisdiction of the Civil mCo is not, in our view, barred by S. 110F of the Act".

9. A single Judge of <ORG> in <CITATION> , 1982 ACJ 99: (AIR 1982 Him Pra 11), while considering the contention of the claimant that he be awarded compensation against <ORG> as it had failed to maintain the road because it was the sagging of the road that had led to the accident held that the respondent-State of Himachal Pradesh although being, the owner of the road and responsible for its maintenance might be liable in fort for such a claim but on a consideration of the scheme of the Act and the context in which S. 110 appears, the jurisdiction of <ORG> appointed under S. 110 of the Act, is restricted to entertaining claims and giving awards only against the insurers, owners and drivers of the vehicles involved in the accidents and not against any other persons and a close scrutiny of the provisions of Ss. 110 to 110B appears to lend ample support to that view.

10. The learned single Judge of <ORG> in <CITATION> , 1982 ACJ 374: (AIR 1982 Del 282) too had to deal with a like contention. In the case before him, scooter had fallen in a pit on the road as result whereof the claimant was injured. He sought compensation before <ORG> whose duty it was to maintain the roads. The learned Judge held that in view of the provisions of S. 110B , the remedy of the owner, if any against the respondents lay before <ORG> and not before the <ORG>. The learned Judge approvingly quoted the view taken by <ORG> in Swaranalata's case (AIR 1974 Gauhati 31)(supra) and <ORG> <ORG> case (AIR 1975 Andh Pra 222)(supra).

11. <ORG> in <CITATION> , AIR 1982 All 310 however, took a different view of the matter. The question that arose for consideration of <ORG> in <NAME> case (supra0 was as to whether <ORG> had the jurisdiction to entertain a claim against the railway. The facts of the case were that various claimants were travelling by a Tempo-Taxi, which collided with the Allahabad-Saharanpur passenger at Sarai Gopal Railway crossing. As a result, the claimants sustained bodily injuries. The claimants filed claim petitions before the <ORG> against both the owner of the tempo-taxi as well as the applicant namely <ORG> represented by the General Manager, <ORG>. In the claim petiton it was alleged that the accident had occurred due to the negligence of the employees of the railway staff at the aforesaid railway crossing. The employees had wrongly kept the level crossing wide open for the highway traffic to apss at a time when the aforesaid train happened to be passing through that point.

12. It was asserted on behalf of <ORG> that the claim against the railway was only triable before <ORG>. <NAME>, J. who delivered the opinion for the Bench held that <ORG> had the jurisdiction to adjudicate upon the claims for compensation agtainst the railway in the case in hand and that the provisions of S. 110B of the Act did not limit the jurisdiction of the <ORG> to the awarding of compensation against persons other than those mentioned in the said section. The following observations of <NAME>, J. ion this regard can be noticed with advantage:--

"11. Then there is S. 110B on which the applicant mainly relies. It reads thus:--

"110B. Award of <ORG>--On receipt of an application for compensation made under S. 110A , <ORG> shall, after giving the parties an opportunity of being heard, hold an enquiry into the claim and may make any award determining the amount of compensation which ppears to it to be just and specifying the person or persons to whom compensation shall be paid; and in making the award <ORG> shall specify the amount which shall be paid by the insturer or owner or driver of the vehfile involved in the accident or by all or any of them as the case may be".

12. We are clearly of the opinion, upon an provisions and the scheme of the enactment as projected by these provisions, that <ORG> constituted under the Act is empowered to adjudicate upon all claims for eompensation in respect of accident involving the death or the bodily injury to persons, where the accident arises out of the use of a motor vehicle and, that in awarding compensation in respect of such an accident <ORG> <ORG> is empowered to award compensation not only against the insurer and the owner and the driver of the motor vehicle but also against those on account of whose negligence the accident may have been caused. The words "in respect of accidents............... arising out of the use of the motor vehicle............" occurring in S. 110(1) are words of the widest possible amplitude. We see no reason either on the plain language of S. 110 or in any other allied provisions ofr the scheme of the Act as manifested by the relevant provisions, which may have inhibited or barred the jurisdiction of <ORG> to entertain an application for compensation in respect of third parties, in the present case, the <ORG>.

13. As mentioned above, the Motor Vehciles Act is a comprehensive Code. <ORG> have been constituted, in our opinion, to entertain all claims in respect of accidents arising out of the use of motor vehicle. It cannot be disputed that where the death or bodily injoury is caused to the claimant in an accident arising out of the use of motor vehicle and as a result of the negligence of the owner or the driver of the motor vehicle as well as of a third party, the claim so far as the owner or insurer or the driver of the motor vehicle are concerned would lie before <ORG> under the Act in terms of S. 110 . The civil Court will indisputably have nojurisdiction to entertain the claim against the insurer or owner or driver in view of the express bar imposed by S. 110F .

14. If, therefore, were to accept the submission of the applicant it must follow as a necessary corollary that in regard to the same accident as against the third party, the claim would lie elsewhere, namely, the civil <ORG>. In theat event it would not be difficult to see that two conflicting decisions are likely to come into existence. The <ORG> may hold the driver of the motor vehicle wholly at fault and responsible for the accident and on that ground award compensation against the owner of the motor vehicle or the driver or the insurer. The Civil. <ORG> may, on the other hand seized of the case againt the third party in respect of same accident, may come to an exactly opposite conclusion and hold some one else responsible for the accident and bodily injuries to the claimant.

15. Such a result cannot have been intended by the legislature. On the plain language of S. 110 , therefore, we have no hesitation in coming to the concludion that the claims in question were maintainable against the <ORG>. In our opinion a complete adjudication of all the claims for compensation in respect of an accident arising out of the use of the motor vehicle was intended to be provided for under the Act and consequently unless all the parties involved in the accident are arrayed as opposite parties before the same forum and are heard on the question of negligence, the matter cannot be property and effectively disposed of. For, otherwise, if the claimant is compelled to institute his claim before the <ORG> only against the owner and drived of the vehicle and insurer and is left to sue the remaining persons responsible for the accident the adjudication cannot be said to be complete and final.

Under the Circumstances, the only reasonable interpretation which has appealed to us it that suggested by the learned counsel for the claimants, namely, that the claims were maintanable against the <ORG> also.

16. We may now turn to S,. 100B to see whether there is anything therein whichmight be construed as restricting them ambit of S. 110 . The first part of S. 110B has been expressed in general terms. It provides that <ORG> shall after giving the parties an opportunityof being heard hold an enquiry into the claim and may make an award determining the amount of compensation which appears to it to be just and specify the person or persons to whom compensation shall be paid. In the first part, which is the substantive part, there is no indication that <ORG> cannot award any compensation against persons other than the insurer or the owner or thedrive fot he motor vehicle. Stress was, however, made on the second part of S. 110B which provides that in maing the award <ORG> shall specify the amount which shall be paid by the insurer or the owner or the driver of the vehicle in question. It was submitted that this limits the power of <ORG> only to these three classes of persons.

17. We are unable toaccept the above contention,. "The second part of s. 110 comes into operation and is attracted only because it is necessary to approtion the liability between the insurer or the owner is accordance with the relevant provisions of the Act specifying the limits of liability of the insurer. It does not in our opinion, in any way curtail or restrict the power of <ORG> to award compensation against a third party who may be found to have contributed to the accident involving the death or bodily injuries to persons arising out of the use of the motor vehcile. In our opinion, the second part of S. 110B enjoins the <ORG> to approtion the liability between the insurer and the owner of the vehicle, where the <ORG> holds the owner or the driver responsible for the injury caused to the claimant".

With respect, I entirely concur in the view that <NAME>, J. has taken and the reasoning adopted by him and further find myself unable to concur in the view taken by the Gauhati, Andhra Pradesh, Himachal and Delhi <ORG> min thecases referred to above.

13. Section 110A indicates the person or persons who could invoke the jurisdiction of the <ORG> S. 110B , however, is not enacted by the <ORG> in my opinion to indicate the persons against whom the compensation could be claimed. The said provision merely envisaged that in the event of a finding that an owner or driver of the vehicle was liable to pay compensation then it could specify the amount which the insurer, if any, and the owner and the driver was to pay. In a given case the insurer of the vehicile may not be liable to pay the entire compensation amount which had been found to be payable as a result of the negligence of the driver of the vehicle and so a <ORG> has to additionally specify as to what amount the driver has to pay. Also in a given case, an award can be made only against the driver and the insurance company See 1967 Accomadation C J. 312 (Punj). In such a case the limit of the liability of the driver and the insurer too may have to be fiexed by the <ORG>, if the Statute had fixed the outside limit of theliability of the insurer.

14. I see no reason as to why <ORG> cannot award compensation against the owner of the tree if the accident resulted from th falling of the tree or against the owner of the building if the accident resulted from the falling of the building on the car and from the owner of the road if the accident resulted as a result of non-maintenance of the road in proper condition, if the allegation in the petition is that the accident occurred as a result of the negligence of the owner of the tree or the owner of the building or the owner of the road or the persaon whose liability it was to maintain the road in proper condition.

15. In the case in hand, it cannot be denied that the accident arose out of the use of the motor vehicle i.e., the accident arose as a result of the use of the motor vehicle.

16. In the case in hand, the <ORG> had the jurisdiction to identify the fault of the parties in question. In case it finds that the staff of the <ORG> was at fault and the acccident had occurred as a result of their negligence, then the <ORG> is entitled to award compensation to the claimants gainst the respondents. if, on the other hand, it holds that the accident had occurred as a result of the negligence of the driver of the motor amount that is payable in terms of S. 110B of the Act.

17. For the reasons aforementioned, I hold that if it is alleged that claim for compensation arose in respect of an accident arising out of the use of motor vehicle, then <ORG> would have the jurisdiction to adjudicate upon t eh claim and award compensation against the party whom it finds to be responsible for the accident and further specify the amount of compensation in terms of s. 110B , if the said provision is found to be attracted to the facts of the given case.

18. In the result, I set aside the order and finding given by the <ORG> and remit the case to the <ORG> to proceed with the matter in accordance with law and the observations made in this judgment. No costs.

<NAME>, J.

19. This claim petition under Motor Vehicles Act filed by the appellant for the grant of compensation for personal injuries and the damage caused to his car was dismissed by the <ORG> on a preliminary objection that it has no jurisdiction to entertain and try the same. Aggrived thereby he has come up in this appeal. The matter came up for hearing in the first instance before a learned single judge who referred it to <ORG>. <ORG> further referred it to <ORG> in view of the conflict of view between the <ORG> decisions of various <ORG>.

20. The claimant along with <NAME> on June 23, 1979 was returning from Panchkula to Chandigarh in Car No. CH 8851 driven by him at about 1. 30 a. m. When he was crossing Gate No. 121 on Panchkula-Zirakpur Road a railway train struck against his car. It was alleged that the engine was without lights, the <ORG> crossing gate was lying open and there was no red light to stope traffic on either side of the gate. It was pleaded that the accident was caused entirely due to the carelessness and negligence of the <ORG> authorities including the driver of the train and the gateman.

21. The claim was contested by the respondent who raised a preliminary objection that <ORG> had no jurisdiction to entertain and try the claim against them which was sustained and the petition dismissed.

22. The claims arising out of motor accidents being causes of civil nature used to be instituted and tried by <ORG>. the Legisdlature in view of ever increasing accidents caused by indisciplined and fast moving traffic enacted Motor Vehicles Act (No. 100 of 1956) to ameliorate the suffereings of injured and dependent claimants of the deceased and to provide cheaper and speedier remedy to them. By virtue of the provisions of S. 110 . Motor Vehicles, Act, substituted by the Amendment Act in place of the original section, the State Government were empowered to constitute one or more Motor Accident Claims Tribunals for purposes of adjudicating upon clims for compensation in respect of accidents involving death or bodily injury to persons arising out of the use of motor vehicles or damages to the property of third party or both. It was further provided by s. 110F that where <ORG> has been constituted for any area, no civil Court shall have jurisdiction to entertain any question relating to any claim for compensation which may be adjudicated upon by <ORG> for that area.

23. The precise point raised and canvassed befoer the <ORG> was that uness the alleged accident had occurred out of the use of a motor vehicle which necessarily means its negligent driving, the claim would not lie with the <ORG> and instead would be entertainable by the civil Court alone. so, it was contended that the <ORG> would have no jurisdiction to entertain the claim where the allegationn is that the accident took place because of thenegligence of any other authority in the maintenance of the the road or any other such like cause. The contention prevailed with most of the High Courts till a discordant note was struck by <ORG> in <CITATION> , AIR 1982 All 310.

24. For the first time, this matter came up before a Division Bench of <ORG> in <CITATION> ., AIR 1974 Gauhati 31, though in an indirect way. The accident in that case had taken place between tje nis amd tje Railway trian on a Railway crossing. The claim was filed against the owner of the bus and <ORG> alleging that the accident had taken place because of the negligence of the driver of the bus. One of the pleas raised in the defence was that the accident took place not due to the negligent driving of the bus, but because of the negligence on the part of the Railway authorities in leaving the gate at the level crossing unmanned. An objection ancillary to this plea made was that eh Railway authority was a necessary party and in its absenceo the claim petition could not be tried. After noticing the provisions of s. 110B and S. 110F , the Bench overruled the objection in the following terms:--

"From the scheme of this group of sections it will be clear that the claims tribunals have compensation for death of or injury to persons arising out of use of motor vehicles. The <ORG> has got no jurisdiction to enforce any such claim against any other person or authority except the owner, the driver and the insurer of the motor vehicle involved in the accident, as will be evident from the provisions of S. 110B . The being the legal position, there was no scope for the petitioners to implead <ORG> in these proceedings before the Claims <ORG>. If they have been able to prove that the accident arose out of any negligence of rashness in the use of the motor vehicle, they will succeed, otherwise they will fail. In this view of the case I hold that the claim petitioners are not bad for non-joinder of <ORG>".

Though there is no detailed discussion or reasoning for the view expressed, but apparently the learned Judges relied on the provisions of s. 110B to hold that the <ORG> under the act has no jurisdiction to enforce a claim against any other person or authorty except the owner, the driver and the insurer of the motor vehicle involved in the accident.

25. In <ORG> Commissioner. <CITATION> , AIR 1975 Andh Pra 222, a collison took place between a goods train and a lorry on accoungt of which the owner of the lorry and <ORG> had to deposit certain amounts under the Workmen's Compensation Act for the deaths of some labourers and the injuries to theothers. Later on, the owner and the Insurance company filed a suit for the recovery of those amounts from <ORG> alleging that the accident had taken place because of the negligence of the employees of the <ORG>. At the appellate stage, an objection was raised that the claim having arisen out of the use of a motor vehicle was triable only by the <ORG> and not by <ORG>, and the Division Bench overruled the same observing thus:--

"It is tue that the jurisdiction of <ORG> under S. 110 is stated to be to adjudicate upon claims in respect of accidents involving the death of or bodily injury to persons arising out of the use of motor vehicles. It is therefore submitted that it would include a clim against any person provide that the accident arose out of the use of a motor vehiclause But if we have regard to the scheme of the Act and the context in whichS. 110 appears, it is clear that the claim referred to in the section can have reference only to claims against the owner or the driver of themotor vehicle concerned in the accident. It could not have been the intention of the framers of the Act to include claim against other persons as well. The Motor Vehicles Act is an Act to consolidate and amend the law relating to motor vehicles. This section occurs in the chapter dealing with insurance of motor vehicles against third party risks. The object behind this section is to provide for a speedy and effective machinery for persons injured in accidents arising out of the use of the motor vehicles against the owners and drivers and insurers of motor vehicles. To accept the contention of the learned counsel for the respondent that it would include claims against all persons would lead., in our view, the consequences which were never contemplated by the framers of the Motor Vehicles Act . For instance, a person proceeding in a motor vehicle may be injured by an accident resulting from the fall of a tree or the collapse of a building. It cannot bessaid that the occupants can lay a clim in the <ORG> constituted under the Motor Vehicles Act against the owners of thebuilding or of the tree. if it was due to the negligence of such owner that such accident occurred. Similarly in this case, we do not think the provisions of the Motor Vehicles Act were intended to enable the parties injured or the owner of the lorry to make a claim against the railway, simply because the accident arose out of the use of a motor vehicle. In our view, the claims referred to in S. 110 are applicable only to cases of claims against theowner or the driver of the motor vehicle or the insurer as the case may be and not as against strangers. The proper forum for adjudicating the claim against the strangers is a civil Court. The jurisdiction of <ORG> is not in our view barred by S. 110F of the Act".

26. <CITATION> , 1982 Accomadation CJ 99: (AIR 1982 Him Pra 11), a truck belonging to <ORG> fell down into a deep khud near Ganasidhar resulting in the death of the driver and the owner of the goods. The claim petition filed before the <ORG> was dismissed on the finding that the accident had happened on account of giving way of false projection of the road which was supported on wooden logs and not due to the negligence of the truck driver. In the appeal before <ORG> an alternate plea was raised that even if the accident be taken to have occurred on account of sagging of the road, the <ORG> would be liable in tort to pay the compensation being owner of the road. The plea was turned down holding that the <ORG> has no jurisdiction to entertain any claim against the <ORG> as owner of the road for the following reasons:--

" Section 110 empowers the State government to appoint <ORG> for the purpose of adjudicating upon claims for compensation in espect of accidents involving the death of or bodily injury to, persons arising out of the use of motor vehicles, or damages to any property of a third party so arising, or both and to define the local limits of their jurisdiction. S. 110A enumerates the persons who are competent to apply for grant of such compensation to such Triunals. This section further provides that an application for compensation of the type mentioned above shall be made in such form and shall contain such particulars as may be prescirbed,. It also provides for the period of limitation within which an application for compensation can be made before the <ORG> and further empowers the <ORG> to condone the delay if sufficient cause is shown. s. 110B which is imporrtant from the point of view for the issue in hand, requires the <ORG> to hear the parties, hold an enquiry into the claim and to make its award determining the amount of compensation which appears to it to be just. After the <ORG> makes is award so determining the amount of compensation, it is further required to specify the person or persons rto whom the compensation shall be paid"

27. <CITATION> , 1982 Acc CJ 374: (AIR 1982 Delhi 282), the claimant alleging that while he was going on his scooter on the ring road at about 10 p. m. the front wheel of the scooter fell in a pit on the road and overturned resulting in grievous injuries to him, filed a claim petition against <ORG>, Delhi, to recover Rs. 25,000/- by way of compensation. It was held that the Tribunal has no jurisdiction to entertain the claim on the grounds that if the opposite party had no connection with the vehicle involved in the accident, he cannot be made liable under the Act; and that hte jurisdiction of <ORG> to award compensation is restricted against driver, owner or the insurer of the vehicle involved in the accident as mentioned in s. 110B of the Act.

28. As noticed above, <ORG> of <ORG> in <NAME> case (AIR 1982 All 310) (supra) for the first tribunal is empowered to award compensation not only against the insurer, the owner and the driver of the motor vehicle, but also against the <ORG> on the following ratio:--

"<ORG> constituted under the Act is empowered to adjudicate upon all claims for compensation in respect of accident involving the death or the bodily injury to persons, were where the accident arises out of the use of a motor vehicle and, in awarding compensation in respect of such an accident <ORG> is empowered to awared compensation not only against the insurer and the owner and the driver of the motor vehicle but also against those on account of whose negligence the accident may have been caused. The words "in respect of accidents....... arising out of the use of the motor vehicle.... occurring in S. 110(1) are words of the widest possible amplitude. There is no reason eithr on the plain language of S. 110 or in any other allied provisions or the schme of the Act as manifested by the relevant provisions, whichmayhave inhibited or barred the jurisdiction of <ORG> to entertain an application for compensation in respect of third parties in the present case, the <ORG>.

The second part of S. 110B which provides that in maing the award <ORG> shall specify the amount which shall be paid. by the insurer or the owner or the driver of the vehicle in question does not in any way curtail por restict the power of <ORG> to award compensation against a third party who may be found to have contributed to the accident. Where the driver or the owner of the motor vehicle is found to have been negligent and the injuries are found to have been caused as a result of that negligence, the liability has necessarily to be apportioned between the insurer and the owner in view of the provisions of the Act. It was to give effect to this statutory requirement that the second part of S. 110B enjoins the <ORG> to apportion the liability between the insurer and the owner of the vehicle, where <ORG> <ORG> holds the owner or the driver responsible for the injury caused to the claiment. s. 110B, thus, does not curtail the width or amplitude of S. 110 which is the source of power of <ORG> under the Act.

Moreover, a complete adjudication of all the claims for compensation in respect of an accident arising out of the use of motor vehicle was intended to be provided for under the Act and consequentloy unless all the parties involved in the accident are arrayed as opposite parties before the same forum and are hear on the question of negligence, the matter cannot be properly and effectivly disposed of. For, otherwise, if the claimant is compelled to institute his cloaim before the <ORG> only against the owner anhjd driver of the vehicle and insurer and is left to sue the remaining person responsible for the accident, the adjudicaion cannot be said tobe complete and final".

29. Relying on the above observations in <NAME> case, (AIR 1982 All 310)(supra), my learned brother <NAME>, <NAME> has opined that a clim for compensation would be trible by the <ORG> so long as the death or the injuries are stated to have been caused while the deceased or the injured was travelling in a motor vehicle no matter whether the accident took place because of the negligence of the driver of the motor vehicle or any foreign anency. With utmost respect I find it difficult to go so far and, in my view, the claim petition would be entertainable by the <ORG> under the Act only if the accident is alleged to have taken place because of the negligent dirving of the motor vehicle, though in the alternative the plea may be that the accident too,k place because of the composite negligence or the negligence of an age4ncy other than in the driver of the motor vehicle./ If primarily the accident is alleged to have taken place because of the negligent driving of the nmotor vehicle, the claim would be maintainable even against the agencies other than the driver, the owner and the insurer of the motor vehicle if compensation is claimed against the them in the alternative or jointly with the former because of composite negligence.

30. In all the above nnoted cases in which the view has been taken that a claim petition against the persons other thant he owner, driver and the instuer is not maintainable before the <ORG> under the Act, reliance has been placed on that part of s. 110B which provides that that in maing the award the Claims <ORG> shall specify the amount which shall be paid by the insurer or owner or driver of the vehicle involved in the accident or by all or any of thme, as the case may be. This provision, in my view, in no way indicates either that the jurisdiction of the Claims <ORG> is confined to give award against the insurer, or owner or driver or curtails the jurisdiction conferred on the <ORG> under the earlier portion of the section which authorises him to determine the amount of compensation to be payable to the claimants or any one of them. The latter portion of this section requires specification of the liablity amongst the insurer or owner or driver because it hbas reloevancy only mongst them. On the question of apportionment, if the liability is found to be composite of the owner, driver or insurer of the vehicle on the one hand and some other party on the other, the question of apportionment between the two set of parties would not arise. Similarly, if the liability to pay compensation is entirely fixed on a party other than the owner, driver or the insureer of the motor vehicle, again the question of apportionment would not airse. It is for this reason that the apportionment clause is confined to the insurer or owner or driver of the vehicle and the other persons are not named in the provision and not because the intention was to limit jourisdiction of the<ORG> to award compensation against the said three persons only.

31. Now, take for example, when accident is proved to have taken place because of the negligence of the driver, th owner may plead that he is not vicariously liable for the negligence because the driver was acting beyond his duties or against his instructions. Similarly, Insurer can take the plea that the driver was an unlicensed driver or that he was using the vehicle for an unauthorised purpose when the accident took place. Also the insurer is entitled to plead that his liability is limited to certain extent according to the insurance policy or the provisions of the statute. In all such cases, the <ORG> would be called upon to specify as to who was liable and to what extent, to pay the amount of compensation assessed. But if there is a conclict between the said three persons on the one hand and some other person on the othe rsuch as <ORG> employee or the agency responsible for maintaining the road etc., the question of specification of the amount payable by each set of the parties would not arise because so far as the joint tort feasers are concerned all of them would be liable jointly and severally so far as the claimants are concerned. The answer to the problems, therefore, entirely depends on the interpretation of S. 110 under which the Claims <ORG>s are set up and conferred with the jurisdiction to deal with the claims for compensation. According to this provision, the Claims <ORG> is set up to adjudicate upon claims for compensation in respect of the accidents involving the death of, or bodily injury to, persons arising out of the use of motor vehciles, or damages to any property of a third party so arising., or both. So, the <ORG> has not been conferred with the jurisdiction to deal with the claims of compensations in respect of all kinds of accidents. Instead, its jurisdiction is confined to claims of compensation in respect of those accidents which arise out of the use of motor vehicles. In other words, the use of motor vehicle must be the cause of the accident howsoever slight it may be and unless the accident the effect caused by the use of the motor vehicle it would not be possible to say that it has arisen out of the use of motor vehicle. The interpretation of similar words came up for consideration before <ORG> of <ORG> in <ORG> v. <NAME> & Leoyd Pty. Letd., 1967 Acc CJ 329. The words used in the insurance policy were "injury caused by or arising out of the use of the vehicle". <NAME>, J. wyhile agreeing with the judgment written by <NAME>. <NAME> observed:--

"The words, 'injury caused by or arising out of the use of the vehicle' postulate a causal relationship between the use of the vehicle and the injury'. Caused by connotes a 'direct' or 'proximate' relationship of cause and effect. 'Arising out of extends this to a result that is less immediate; but it still carries sense of consequence. It excludes cases of bodilyinjury in which the use of the vehicle is a merely causal concomitant not considered to be, in a relevant causal sense, a contributing factor".

32. As stated above, mylearned brother <NAME>, <NAME> has relied on <NAME> case (AIR 1982 All 310) (supra) for laying down the proposition that the claim would be triable by the <ORG> if in the accident a motor vehicle is involved, nomatter whether the accident has been caused by use of the motor vehicle or not. However, a close analysis of the facts and the observations made in the said case would show that the learned Judge there even did not go that fair. The claim was filed in that case both against the owner of the tempo-taxi as well as <ORG> represented by the General Manager, <ORG> which would necessarily mean that the allegation of negligence was both against the driver of themotor vehicle as well as the <ORG> authorities, may be in the alternative or in composite form. The conclusion arrived at by the Bench was also that in the Circumstances the only reasonable interpretation which appealed to them was the one suggested by the learned counsel for the claimants, namely, that the claims were maintainable against the <ORG> also. It is, therefore, apparent that neither there wass any question before the said Bench as to whether the claim would be maintainable against the <ORG> authorities alone nor any opinion was expressed in this regard. The observation of the Bench in that case that they saw no reason either on the plain language of S. 110 or in any other allied provision or the scheme of the Act as manifested by the relevant provisions, which may have inhibited or barred the jurisdiction of the Claims <ORG> to entertain an pplication for compensation in respect third parties, that is the <ORG>, have to be appreciated in the context of the facts there. When so done, it wouldbe evident that the observations related to a case where them claim was of composite, nature and not against a third party alone, that is, the <ORG>. I am, therefore, of the considered view that nothing said even in <NAME> case (supra) can be understood tomean that the claim petition would been entertainable by the <ORG> where the motor vehicle has not contributed to the cause, howsoever slight it may be, of the accident resultinhg in the death or bodily injury.

33 The claim in the present case has been filed against <ORG> laone alleging that he accident took place entirely becaue of their carelessness and negligence and that of the driver of the train and the gateman. There being no allegation that the motor vehicle in any way contributed to the cause of the accident, it cannot be said that the same had arisen out of the use of the motor vehicle. As such the present claim would not be entertainable by the <ORG> and instead would be competent only in <ORG>. This appeal, therefore, must fail and is accordingly dismissed. No costs.

<NAME>, <NAME>

34. I have the privilege to go through the judgments prepared by <NAME> and <NAME>. separately. On giving my thoughtful consideratio. I agree with the view taken by <NAME>, J.

35. In view opf majority judgment, the appeal fails and is accordingly dismissed. No. costs.

36. Appeal dismissed.


CASE NO.: Appeal (crl.) 733 of 2001 PETITIONER: <NAME> Vs. RESPONDENT: STATE OF HARYANA DATE OF JUDGMENT: 22/01/2002 BENCH: <NAME>, <NAME> & <NAME> JUDGMENT:

J U D G E M E N T ARIJIT PASAYAT, J.

<NAME> (hereinafter referred to as accused) was awarded "Sentence of Death" by the learned Sessions Judge, Sonepat which has been confirmed by <ORG>. Accusations against him were that he took away the lives of his mother, brother and sister-in-law. It was also alleged that he caused injury on his father <NAME> (PW-6) and nephew <NAME> (PW-7). He was tried for allegedly committing offences punishable under Sections 302 , 458 and 324 of the Indian Penal Code 1860 (in short ' IPC '), was found guilty and accordingly convicted. Corresponding sentences imposed were sentence of death, 4 years and 6 months respectively. The sentences were directed to run concurrently.

Prosecution version sans unnecessary details is as follows :-

<NAME> (PW-6) had two sons i.e. the accused and <NAME> (hereinafter referred to the deceased by that name) and a younger brother <NAME>. The accused and deceased-<NAME> were residing separately. <NAME> (PW-6) owned 10 acres of land and had given 2 acres to the accused for the purpose of cultivation. But the accused who was a person of bad habits and a drunkard wasted time in useless pursuits and did not pay any attention to cultivation. He tried to alienate the land that was given to him by his father. This led to rethinking by <NAME> (PW-6), who took back the land. This led to serious disputes among the members of the family and there were frequent quarrels. On August 5, 1998, deceased and his wife, <NAME> were sleeping on the roof of the house. <NAME> (PW-6), his wife <NAME>, their grandsons <NAME> (PW-7) and <NAME> were sleeping in the courtyard. After mid-night <NAME> (PW-6) heard a noise from the roof of the house and he switched on the electric light. <NAME>, <NAME> and <NAME> woke up and they rushed up stairs and found the accused armed with a Gandasa inflicting blows on both deceased <NAME> and <NAME>. After causing injuries to these two, the accused turned towards <NAME> (PW-6) and others; but they ran down the stairs screaming in fear. The accused followed them and after pushing <NAME> to the ground inflicted blows on her neck and when PW-6 and PW-7 tried to intervene, he also inflicted blows on both of them. Then he ran away from the spot. PW-6 found that his wife had already succumbed to her injuries. So was the case with his son and daughter-in-law. Next morning, report was lodged at the police station and investigation was undertaken. On completion of investigation, charge-sheet was placed and the accused was charged for offences punishable under Sections 302 / 458 / 324 of the . The accused pleaded innocence. <ORG> relied on the evidence of PW-6 and PW-7 who were injured eye-witnesses and found the accused guilty of the aforestated offences. After hearing on the question of sentence, he awarded death sentence as noted above. The matter was submitted to <ORG> for confirmation of the death sentence in terms of Section 366 of the Code of Criminal Procedure, 1973 (in short the 'Code'). <ORG> held that the judgment suffered from no infirmity to warrant any interference. Accordingly, the reference was accepted and the appeal filed by the accused against the conviction and sentence was dismissed.

In support of the appeal before this Court, learned Counsel submitted that both <ORG> and <ORG> ignored a very significant fact that the evidence on which prosecution rested, its version was that of relatives. There was admitted hostility, rendering the same suspect. The injuries which were of serious nature on the accused were not explained. That added to vulnerability of prosecution version. Finally, it was submitted that this is not a case which belonged to the category of "rarest of rare" to warrant death sentence. The non application of mind according to the learned Counsel is evident from the fact that accused has been treated to be a trespasser in his own house, for holding him guilty of offence punishable under Section 458 of . There is no discussion whatsoever as to how ingredients of that Section are present.

In reply, learned counsel for the State of Haryana submitted that there is no probation on conviction being not possible on the evidence of relatives. Additionally, mere non-explanation of injuries, if any, on the accused cannot be a ground for disbelieving prosecution version. The brutal nature of the assaults which resulted in loss of three valuable lives is evident from the nature of injuries noticed on postmortem and on examination of the injured witnesses. In essence, submission was to the effect that no interference is called for in this appeal.

We shall first deal with the contention regarding interestedness of the witnesses for furthering prosecution version. Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, <ORG> has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible.

<CITATION> (AIR 1953 SC 364), it has been laid down as under :

"A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last person to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts".

The above decision has since been followed in <CITATION> (AIR 1974 SC 276), in which <CITATION> (AIR 1957 SC 614) was also relied upon.

We may also observe that the ground that the witness being a close relative and consequently being a partisan witness, should not be relied upon, has no substance. This theory was repelled by this <ORG> as early as in <NAME> case (supra) in which surprise was expressed over the impression which prevailed in the minds of the Members of the <ORG> that relatives were not independent witnesses. Speaking through <NAME>, it was observed:-

"We are unable to agree with the learned Judges of <ORG> that the testimony of the two eye- witnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in - ' <CITATION> ', AIR 1952 SC 54 at p. 59 (A). We find, however, that it unfortunately still persists, if not in the judgments of the <ORG>, at any rate in the arguments of counsel".

Again in <CITATION> (AIR 1965 SC 202), this Court observed:-

"But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct."

To the same effect is the decision in <CITATION> (AIR 1973 SC 2407).

Presence of PWs 6 and 7 at the site of occurrence is natural. They were inmates of the house, and therefore no suspicion as suggested by the accused, regarding their presence can be entertained. Merely because there was some hostility between accused and PWs 6 and 7, it is unbelievable that they would shield the actual culprits to falsely implicate the accused. Their testimony has not been shaken in spite of incisive cross- examination. On the contrary, its credibility has been enhanced because of their acceptance of the fact regarding assault on the accused. The plea that deceased <NAME> and <NAME> (PW-6) had many enemies because of their questionable credentials, and they may be the real assailants is too shallow to warrant acceptance.

Considering the legal position as analysed above, there is no force in the plea that evidence of PWs 6 and 7 is liable to be discarded merely because they were relatives of the deceased persons.

As rightly submitted by the learned Counsel for the accused - appellant, there is no finding recorded by the <ORG> below as to how ingredients of the offence punishable under Section 458  exist. That being the position, conviction for the said offence is set aside and consequentially, the sentence. In view of the unimpeached evidence of the injured witnesses of PW-6 and PW-7, the conviction for offence punishable under Section 324  does not require any interference.

The other question of vital importance is whether death sentence is the appropriate one. Section 302 , IPC prescribes death or life imprisonment as the penalty for murder. While doing so, the Code instructs the <ORG> as to its application. The changes which the Code has undergone in the last three decades clearly indicate that <ORG> is taking note of contemporary criminological thought and movement. It is not difficult to discern that in the Code , there is a definite swing towards life imprisonment. Death sentence is ordinarily ruled out and can only be imposed for 'special reasons', as provided in Section 354(3) . There is another provision in the Code which also uses the significant expression 'Special reason'. It is Section 361 . Section 360 of the 1973 Code re-enacts, in substance, Section 562 , of the Criminal Procedure Code , 1898 (in short 'old Code'). Section 361 which is a new provision in the Code makes it mandatory for the <ORG> to record 'special reasons' for not applying the provisions of Section 360 . Section 361 thus casts a duty upon the <ORG> to apply the provisions of Section 360 wherever, it is possible to do so and to state 'special reasons' if it does not do so. In the context of Section 360 , the 'special reasons' contemplated by Section 361 must be such as to compel the <ORG> to hold that it is impossible to reform and rehabilitate the offender after examining the matter with due regard to the age, character and antecedents of the offender and the circumstances in which the offence was committed. This is some indication by the <ORG> that reformation and rehabilitation of offenders and not mere deterrence, are now among the foremost objects of the administration of criminal justice in our country. Section 361 and Section 354(3) have both entered the Statute Book at the same time and they are part of the emerging picture of acceptance by the legislature of the new trends in criminology. It would not, therefore, be wrong to assume that the personality of the offender as revealed by his age, character, antecedents and other circumstances and the tractability of the offender to reform must necessarily play the most prominent role in determining the sentence to be awarded. Special reasons must have some relation to these factors. Criminal justice deals with complex human problems and diverse human beings. A Judge has to balance the personality of the offender with the circumstances, situations and the reactions and choose the appropriate sentence to be imposed.

It should be borne in mind that before the amendment of Section 367(5) , old Code, by the Criminal Procedure Code  (Amendment) Act , 1955 (XXVI of 1955) which came into force on January 1, 1956, on a conviction for an offence punishable with death, if the <ORG> sentenced the accused to any punishment other than death, the reason why sentence of death was not passed had to be stated in the judgment. After the amendment of Section 367(5) of old Code by Act XXVI of 1955, it is not correct to hold that the normal penalty of imprisonment for life cannot be awarded in the absence of extenuating circumstances which reduce the gravity of the offence. The matter is left, after the amendment, to the discretion of the <ORG>. The <ORG> must, however, take into account all the circumstances, and state its reasons for whichever of the two sentences it imposes in its discretion. Therefore, the former rule that the normal punishment for murder is death is no longer operative and it is now within the discretion of the <ORG> to pass either of the two sentences prescribed in this section; but whichever of the two sentences he passes, the Judge must give his reasons for imposing a particular sentence. The amendment of Section 367(5) , of the old Code does not affect the law regulating punishment under the IPC . This amendment relates to procedure and now <ORG>s are no longer required to elaborate the reasons for not awarding the death penalty; but they cannot depart from sound judicial considerations preferring the lesser punishment.

Section 354(3) of the Code, marks a significant shift in the legislative policy underlying the old Code as in force immediately before 1st April, 1974, according to which both the alternative sentences of death or imprisonment for life provided for murder were normal sentences. Now, under Section 354(3) of the Code the normal punishment for murder is imprisonment for life and death penalty is an exception. The court is required to state the reasons for the sentence awarded and in the case of death sentence 'special reasons' are required to be stated, that is to say, only special facts and circumstances will warrant the passing of the death sentence. It is in the light of these successive legislative changes in Code that the juridical decisions prior to the amendment made by Act 26 of 1955 and again Act 2 of 1974 have to be understood.

This <ORG> in <CITATION> (AIR 1974 SC 799) has observed: "Let us crystallize the positive indicators against death sentence under Indian Law currently. Where the murderer is too young or too old, the clemency of penal justice helps him. Where the offender suffers from socio-economic, psychic or penal compulsions insufficient to attract a legal exception or to downgrade the crime into a lesser one, judicial commutation is permissible. Other general social pressures, warranting judicial notice, with an extenuating impact may, in special cases, induce the lesser penalty. Extraordinary features in the judicial process, such as that the death sentence has hung over the head of the culprit excruciatingly long, may persuade the <ORG> to be compassionate. Likewise, if others involved in the crime and similarly situated have received the benefit of life imprisonment or if the offence is only constructive, being under Section 302 , read with Section 149 , or again the accused has acted suddenly under another's instigation, without premediation, perhaps the <ORG> may humanely opt for life, even like where a just cause or real suspicion of wifely infidelity pushed the criminal into the crime. On the other hand, the weapons used and the manner of their use, the horrendous features of the crime and hapless, helpless state of the victim, and the like, steel the heart of the law for a sterner sentence. We cannot obviously feed into a judicial computer all such situations since they are astrological imponderables in an imperfect and undulating society. A legal policy on life or death cannot be left for ad hoc mood or individual predilection and so we have sought to objectify to the extent possible, abandoning retributive ruthlessness, amending the deterrent creed and accepting the trend against the extreme and irrevocable penalty of putting out life".

<CITATION> (AIR 1980 SC 898), it has been observed that "a real and abiding concern for the dignity of human life postulates resistance to taking life through law's instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed". A balance-sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised. In order to apply these guidelines, inter alia, the following questions may be asked and answered,

(a) Is there something uncommon about the crime which renders sentence of imprisonment for the life inadequate and calls for a death sentence?; and (b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender?

Another decision which illuminatingly deals with the question of death sentence is <CITATION> (1983 (3) SCC

In <NAME> and <NAME> cases (supra), the guidelines which are to be kept in view when considering the question whether the case belongs to the rarest of the rare category were indicated.

In <NAME> case (supra), it was observed:-

"The following questions may be asked and answered as a test to determine the 'rarest of the rare' case in which death sentence can be inflicted :-

(a) Is there something uncommon about the crime which renders sentence of imprisonment for life inadequate and calls for a death sentence?

(b) Are the circumstances of the crime such that there is no alternative but to impose death sentence even after according maximum weightage to the mitigating circumstances which speak in favour of the offender?"

The following guidelines which emerge from <NAME> case (supra) will have to be applied to the facts of each individual case where the question of imposition of death sentence arises:-

(i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability.

(ii) Before opting for the death penalty the circumstances of the 'offender' also require to be taken into consideration along with the circumstances of the 'crime'.

(iii) Life imprisonment is the rule and death sentence is an exception. Death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and provided, and only provided, the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and all the relevant circumstances.

(iv) A balance-sheet of aggravating and mitigating circumstances has to be drawn up and in doing so the mitigating circumstances has to be accorded full weightage and a just balance has to be struck between the aggravating and the mitigating circumstances before the option is exercised.

In rarest of rare cases when the collective conscience of the community is so shocked, that it will expect the holders of the judicial power center to inflict death penalty irrespective of their personal opinion as regards desirability or otherwise of retaining death penalty, death sentence can be awarded. The community may entertain such sentiment in the following circumstances:-

(1) When the murder is committed in an extremely brutal, grotesque, diabolical, revolting, or dastardly manner so as to arouse intense and extreme indignation of the community.

(2) When the murder is committed for a motive which evinces total depravity and meanness; e.g. murder by hired assassin for money or reward; or cold-blooded murder for gains of a person vis-à-vis whom the murderer is in a dominating position or in a position of trust; or murder is committed in the course for betrayal of the motherland.

(3) When murder of a member of a Scheduled Caste or minority community etc., is committed not for personal reasons but in circumstances which arouse social wrath, or in cases of 'bride burning' or 'dowry deaths' or when murder is committed in order to remarry for the sake of extracting dowry once again or to marry another woman on account of infatuation.

(4) When the crime is enormous in proportion.

For instance when multiple murders, say of all or almost all the members of a family or a large number of persons of a particular caste, community, or locality, are committed.

(5) When the victim of murder is an innocent child, or a helpless woman or old or infirm person or a person vis-à-vis whom the murderer is in a dominating position, or a public figure generally loved and respected by the community.

If upon taking an overall global view of all the circumstances in the light of the aforesaid propositions and taking into account the answers to the questions posed by way of the test for the rarest of rare cases, the circumstances of the case are such that death sentence is warranted, the <ORG> would proceed to do so.

A convict hovers between life and death when the question of gravity of the offence and award of adequate sentence comes up for consideration. Mankind has shifted from the state of nature towards a civilized society and it is no longer the physical opinion of the majority that takes away the liberty of a citizen by convicting him and making him suffer a sentence of imprisonment. Award of punishment following conviction at a trial in a system wedded to the rule of law is the outcome of cool deliberation in the Court-room after adequate hearing is afforded to the parties, accusations are brought against the accused, the prosecuted is given an opportunity of meeting the accusations by establishing his innocence. It is the outcome of cool deliberations and the screening of the material by the informed man i.e. the Judge that leads to determination of the lis.

The principle of proportion between crime and punishment is a principle of just desert that serves as the foundation of every criminal sentence that is justifiable. As a principle of criminal justice it is hardly less familiar or less important than the principle that only the guilty ought to be punished. Indeed, the requirement that punishment not be disproportionately great, which is a corollary of just desert, is dictated by the same principle that does not allow punishment of the innocent, for any punishment in excess of what is deserved for the criminal conduct is punishment without guilt.

The criminal law adheres in general to the principle of proportionality in prescribing liability according to the culpability of each kind of criminal conduct. It ordinarily allows some significant discretion to the Judge in arriving at a sentence in each case, presumably to permit sentences that reflect more subtle considerations of culpability that are raised by the special facts of each case. Punishment ought always to fit the crime; yet in practice sentences are determined largely by other considerations. Sometimes it is the correctional needs of the perpetrator that are offered to justify a sentence; sometimes the desirability of keeping him out of circulation, and sometimes even the traffic results of his crime. Inevitably these considerations cause a departure from just desert as the basis of punishment and create cases of apparent injustice that are serious and widespread.

Proportion between crime and punishment is a goal respected in principle, and in spite of errant notions it remains a strong influence in the determination of sentences. The practice of punishing all serious crimes with equal severity is now unknown in civilized societies; but such a radical departure from the principle of proportionality has disappeared from the law only in recent times. Even now a single grave infraction that is thought to call for uniformly drastic measures. Anything less than a penalty of greatest severity for any serious crime is thought then to be a measure of toleration that is unwarranted and unwise. But in fact quite apart from those considerations that make punishment unjustifiable when it is out of proportion to the crime. Uniformly disproportionate punishment has some very undesirable practical consequences.

As the background facts go to show the genesis of dispute between the accused and the other members of his family was land. Accused seems to have taken exception to his father taking away the land from him. As the evidence indicates, he considered his brother, sister- in-law to be responsible for the same. It is also in evidence that 2-3 days before the occurrence, there was a bitter quarrel between the accused and other members of his family. Evidence of PW-7 is to the effect that there used to be constant quarrel between PW-6, deceased <NAME>, deceased <NAME> on one hand and the accused on the other, over ancestral land. It is also in evidence that the deceased <NAME> was not of moral character and PW-6 had forcibly occupied the land of temple for which villagers had set on fire a piece of their house. Though injuries on accused person do not per se affect prosecution version if reliable; when not explained it assumes importance if they are serious in nature. The fact that the injuries were sustained in the present case by the accused is not disputed. In fact, PW-7 has admitted that PW-6 had given a thorough thrashing to the accused in the court-yard after assaults on the three accused persons. As the medical evidence indicates, the injuries sustained by the accused were of very serious nature. It is true three lives have been lost. But at the same time, the mental condition of the accused which led to the assault cannot be lost sight of. The same may not be relevant to judge culpability. But is certainly a factor while considering question of sentence. There is no evidence of any diabolic planning to commit the crime, though cruel was the act. Deprived of his livelihood on account of the land being taken away, the accused was, as the evidence shows, exhibiting his displeasure, his resentment. Frequency of the quarrels indicate lack of any sinister planning to take away lives of the deceased. The factual scenario gives impressions of impulsive act and not planned assaults. In the peculiar background, death sentence would not be proper. A sentence of imprisonment for life will be more appropriate. The sentence is accordingly modified, while confirming the conviction for offence punishable under Section 302 .

Appeal is allowed to the extent indicated above. We record our appreciation for the assistance rendered by Mr. <NAME> who was appointed as amicus curiae.

..<NAME>

(M. B. SHAH) .J.

(<NAME>

(ARIJIT PASAYAT) January 22, 2002


<NAME>, Member (J)

1.This a revision petition filed before <ORG> which on transfer is being treated as an appeal.

2. The appellant has manufactured at his site at Chibramau Cold Storage, Farrukhabad, diffusers and condensers which are parts of refrigerating and air-conditioning machinery. The appellants did not pay duty for their products. The fact was discovered by the authorities on an inspection of the appellants' Cold Storage on 24-3-1976. The party had manufactured three diffusers each of 2500' length of 1" diametre pipe, three condensers each of 12 pipes of 20" X 2" diameter, and 5 condensers each of 12 pipes of 20" length x 2" diameter. These items had been installed in their cold storage as parts of refrigerating and air-conditioning machinery. A show cause notice was issued demanding duty besides imposition of penalty. The appellants contended that the parts did not attract duty under Tariff Item No. 29A(3). The appellants were only arranging the pipes and diffusers in a zig-zag way and that the parts did not form part of refrigerating and air-conditioning machinery. He also relied on the judgment of <ORG> <CITATION> (1980 E.L.T. 600) in support of his contentions, The Assistant Collector upheld the demand for duty and imposed a penalty of Rs. 250/- for contravention of the provisions of the Act. The appellant preferred an appeal and the Appellate Collector upheld the order of lower authority and rejected the appeal.

3. <NAME>, Advocate for the appellants, argued that the appellants were not manufacturing or offering for sale parts of any refrigerating and air-conditioning machinery and were therefore not liable to pay duty. In support of his arguments, he relied on a judgment of <ORG> in Messrs <NAME>, <NAME> v. <ORG> <NAME> and Ors. (reported as <ORG> in 1980 E.L.T. p. 600).

4. <NAME>, the <ORG>, argued that the parts manufactured were condensers and diffusers which would amount to parts of air-conditioning and refrigerating machinery. He also submitted that the appellants had removed the goods without any intimation to the authorities or filing the necessary classification lists. In other words, he pointed out that the provisions of Rule 9 with Rule 49 of the Central Excise Rules, 1944 would be attracted. Even if the goods were captively utilised by the appellants, they would be dutiable. On the question of applicability of the Tariff Item 29(A)(3), he pointed out that the latest ruling of <ORG> reported in the 1984 E.L.T. p. 333 ( <CITATION> .) supported the view of the department, that cooling coils and condensers would squarely fall within the description of Item 29(AX3) of the Central Excise Tariff. He emphasised that this judgment has considered various citations including the ruling of the Hon'ble <ORG>, and being the latest decision should be applicable to the present facts. He also cited the case decided by <ORG> in the matter of <CITATION> .

5. We have considered all the relevant arguments advanced by the party in order to come to careful consideration of the respective submissions. On the question of excisability of the product, the latest pronouncement of <ORG> in 1984 E.L.T. 333 is against the appellants. The Hon'ble Gujarat High Court after noting and dissenting from the <ORG> judgment and its own earlier decision has held that the parts of refrigerating and air-conditioning appliances and machinery would attract duty under Item 29A(3).

6. In this connection, it is also pointed out by <NAME> that a special leave petition against the decision of Hon'ble Allahabad High Court in <ORG> has been admitted by <ORG>. We also find that after rendering of the decision of the Hon'ble Allahabad High Court, Rule 9 and Rule 49 of the Central Excise Rules have been amended by the Notification of the Government of India in the Ministry of Finance (<ORG>) G.S.R. 74(E), dated 20-2-1982. In view of the change in the circumstances and in view of the reasoning set out in the latest judgment, we are inclined to support and follow the reasoning set out in 1984 E.L.T. 333. The learned counsel for the appellants argued that the appellants' factory is situated within the jurisdiction of the Hon'ble Allahabad High Court and that the decision of <ORG> should not be applied to their factory. He also filed written statements on 22-3-1984 stating that the <ORG> has to follow the ruling of <ORG> in the territory of which the cause of action has arisen in preference to the rulings of other <ORG> on the same point.

7. We have given our anxious thought on these arguments. The rulings cited by the learned counsel for the appellants in his written submission of 1976 AIR Andhra Pradesh-p. 84 ( <CITATION> .) and 1973 1 <ORG> Cases 446 ( <CITATION> ) have no application there in the cause of action wholly or part arose within the jurisdiction of the respective <ORG> exercising jurisdiction. As already observed, the issue involved is one relating to rate of duty and value of the goods for the purpose of assessment. Further, we have already pointed out the circumstances which lead us to apply the ratio of the latest decision. Hence we are unable to accept the contentions of the learned counsel for the appellants.

8. Even considering the matter on the basis of Tariff Entry, the petitioner's contentions cannot be approved. Tariff 29A reads as follows :

"29A. Refrigerating and Air-conditioring appliances and Machinery, all sorts, and parts thereof :

1. Refrigerators and other refrigerating appliances which 20% ad are ordinarily sold or offered for sale as ready assemb- valorem. led units, such as ice makers, bottle coolers, display cabinets and water coolers.

2. Air-conditioners and other air-conditioning appliances, 20% ad which are ordinarily sold or offered for sale as ready valorem. assembled units, including package type air-conditioners and evaporative type of coolers.

3. Parts of refrigerating and air-conditioning appliances 30% ad and machinery, all sorts. valorem.

Item 3 contemplates parts of refrigerating and air-conditioning appliances and macbincy. The appellants had admittedly manufactured the parts intended for refrigeration and air-conditioning appliances and has installed them in their plant. The concept of sale envisaged under Sub-clauses 1 and 2 would not be applicable in respect of Item 3. Even otherwise, Rule 9 has been amended and excisable goods manufactured in any place utilised as such should be deemed to have been removed. Admittedly, no intimation was given to the concerned authorities before the removal of the goods. The appellants cannot be heard to say that they did not manufacture any refrigerating or air-conditioning parts in the commercial sense. The mere fact that there was no sale as condensers, diffusers or compressors will not help the appellants.

9. The learned counsel for the appellants relied on the decision in Order No. B-l 10/ <CITATION> , in which this <ORG> followed the decision in <ORG> of the Hon'ble Allahabad High Court. The decision rendered by the Hon'ble Gujarat High Court in 1984 E.L.T. p. 333 cited (supra) has been reported subsequent to that decision. Even otherwise, this court is inclined to follow the later ruling. Further, on facts it is seen that the product concerned in the decision B-110/84 consisted of a secondhand air-compressor with copper tubes soldered in a zig-zag way and connected to the wooden box with a compressor by a milk vendor of small means. Though the department critically considered it as part of the refrigerating machinery, this <ORG>, on a considerntion of all the facts placed, upheld the case of the assessee. That decision does not apply to the present facts where the appellants have manufactured diffusers and condensers. Mr. <NAME> also urged that the amendment of Rule 9 retrospectively would be invalid. He placed reliance on AIR 1970 S.C. p. 1950. But as rightly pointed out by <NAME>, the amendment of Rule 9 and Rule 49 were approved by <ORG>. The retrospective effect of the amendment was pursuant to the Finance Bill of 1982. The <ORG> being the rule making authority has unrestricted powers to emend the Rule.

10 The removal was without any information to the department and hence the infringement of Rule 9 has been made out. The show cause notice has been issued on 4-7-1976 prior to the amendment of Rule 10. The restricted shorter period of limitation of six months would not apply.

11 Though the appellants have contravened the provisions of the statute, the circumstances under which the contravention took place, especially in view of the unsettled state of affairs with conflicting decisions should be adverted to This situation definitely calls for interference in respect of the personal penalty Hence while confirming the demand for duty. the penalty imposed is set aside. The order of the lower authorities is modified accordingly and the appeal is allowed in part.