# SUPREME COURT REPORTS [1962] SUPP. THE IN'COIIIE TAX OI<'l<'ICER. MADRAS v. S. K. HABIBULLAH, MADRAS

- **Citation:** [1962] Supp. 2 S.C.R. 716
- **Court:** Supreme Court of India
- **Decided:** 1962
- **Case number:** Civil Appeals Nos. 557 and 558 of 1960
- **Bench:** S. K. DAs, M. HmAYATULT, AH a.nd J.C. SuAH
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/supreme-court-reports-1962-supp-the-in-coiiie-tax-oi-l-icer-madras-v-s-k-2339
- **Pages:** 11

## Headnote

Income Tax-Aaaeument of firm complered prior to April 1,
1952 -P<ruw lo rtctify partner'.• asaeaamenl-lnrlividual and
firm distinct enliliM -Mi.talce diacovererl in firm"' wiaeuni.nt.-
Parfners if can be ma4' liable -Inoorne Ta.i: Art, 1922 ( 11 of
1922), a. 35, els. I, 5.
M was a partner in two firms registered under the Indian
Income Tax Act.
He submitted returru for assessment of
lnc·>me Tax for the years 1916-47 and 47-·18 with regard to
both the firms
showing losses. The assessment of one of the
firm for the year 1946-47 antl 47·48 was completed on 31. 10.50
and of the other for the year
1947 48 on :lO 6.51
whcrtby
the los>e1
calcul•ted were less tha·1 claimed by M before the
Income Titx Officrr. On receipt of intimation of the orden
passed in the
a~set~rnents of the t No finru the Jnl.01nc Tax
Officor issued on May +, 1953, notice to M to show cause
why the assessment for
the
year 1946-47 and 47 .. 13 should
not be rectified under s. 35 of the Act. M replied that he had
no oh_jectinn if the
ao:sessmcnt was cornplr:t~d according to
law. On 27.3 .. i4 the
Income-tax Offtcer revised the a1scssmt-nt in rtsper.t of the t\\'O yearo; after taking into account the
share:: of the lo~ses as
comput<'d
in the assessmrnt of the two
firms. r.r rlieil on
17.4. j4 and his son H
applied to the
Con1n1issi':'.n('r of Income Tax for rt'vi1iutt of the orders. 'fhe
Co1nn1hsinner held that s. 3'.i was properly invoked fer rectification of the
as..o;essment.
"fhe }Jigh Co-Jrt of Madras on a
petition 1noved hy 11 ordered that a writ of certiorari to is!ne
quash in!{ the ordtr. 'fhr Conunissio 1cr of Inco1ne·l tX came
up in appc•I.
f/r/d, thats. 35 (1)
of the
Income T•< Acl empower<
the lnc•>n1e Tax Authorities to rectify mi!t:t1'e:; apparent fro1n
the record of crrtain ordcn pa~s~d hy the1n.
But if the la\\'
docs not
authnri!\C the
lnco1ne Tax Officer to rtctify the
assessn1~11t, assent could not validate what \\'as uuauthori..ed
lff/,[, f11rther. that
for the
purpose of assessment an
individua1 and a
firn1
art'
distinct eutitits; and even if an
indh·i<lual is a partner of a firm, a ndstakt> disco\'crcd because
of something- containrd in the assessment of tht:
fi.r111 i~ no.t !1
mistake apparrnt fron1 the
record of assess1ncnt ol the 1nd1v1·
dual partner.
2 s.c.R.
SUPREME COURT REPORTS
717
Held, also, that the Legislature has given to cl. (5) of
s. 35 which was incon:iorated with effect from April I, 1952,
a partial retrospective operation .. The provision.enacted by
cl. (5) is not procedural in charac~er, it affects ve<ted rights of
the assessre. Therefore in the absence of compelling reasons
the court would not be justified in giving a greater retrospectivity to the provision than is warranted by the plain words
used by· the Legislature. Clause (5) of s. 35 docs not purport
to amend cl.
(I) of the same section. It conftrs additional
power of rectification upon the Income Tax Authorities; and
that power cannot be exercised in respect of a<Sessmont of firm
which have been completed before the date on which the
power was invested.

## Text

716
SUPREME COURT REPORTS [1962] SUPP.
THE IN'CO!IIE TAX OI<'l<'ICER. MADRAS
v.
S. K. HABIBULLAH, MADRAS
(S. K. DAs, M. HmAYATULT,AH a.nd J.C. SuAH, JJ.)
Income Tax-Aaaeument of firm complered prior to April 1,
1952 -P<ruw lo rtctify partner'.• asaeaamenl-lnrlividual and
firm distinct enliliM -Mi.talce diacovererl in firm"' wiaeuni.nt.-
Parfners if can be ma4' liable -Inoorne Ta.i: Art, 1922 ( 11 of
1922), a. 35, els. I, 5.
M was a partner in two firms registered under the Indian
Income Tax Act.
He submitted returru for assessment of
lnc·>me Tax for the years 1916-47 and 47-·18 with regard to
both the firms
showing losses. The assessment of one of the
firm for the year 1946-47 antl 47·48 was completed on 31. 10.50
and of the other for the year
1947 48 on :lO 6.51
whcrtby
the los>e1
calcul•ted were less tha·1 claimed by M before the
Income Titx Officrr. On receipt of intimation of the orden
passed in the
a~set~rnents of the t No finru the Jnl.01nc Tax
Officor issued on May +, 1953, notice to M to show cause
why the assessment for
the
year 1946-47 and 47 .. 13 should
not be rectified under s. 35 of the Act. M replied that he had
no oh_jectinn if the
ao:sessmcnt was cornplr:t~d according to
law. On 27.3 .. i4 the
Income-tax Offtcer revised the a1scssmt-nt in rtsper.t of the t\\'O yearo; after taking into account the
share:: of the lo~ses as
comput<'d
in the assessmrnt of the two
firms. r.r rlieil on
17.4. j4 and his son H
applied to the
Con1n1issi':'.n('r of Income Tax for rt'vi1iutt of the orders. 'fhe
Co1nn1hsinner held that s. 3'.i was properly invoked fer rectification of the
as..o;essment.
"fhe }Jigh Co-Jrt of Madras on a
petition 1noved hy 11 ordered that a writ of certiorari to is!ne
quash in!{ the ordtr. 'fhr Conunissio 1cr of Inco1ne·l tX came
up in appc•I.
f/r/d, thats. 35 (1)
of the
Income T•< Acl empower<
the lnc•>n1e Tax Authorities to rectify mi!t:t1'e:; apparent fro1n
the record of crrtain ordcn pa~s~d hy the1n.
But if the la\\'
docs not
authnri!\C the
lnco1ne Tax Officer to rtctify the
assessn1~11t, assent could not validate what \\'as uuauthori..ed
lff/,[, f11rther. that
for the
purpose of assessment an
individua1 and a
firn1
art'
distinct eutitits; and even if an
indh·i<lual is a partner of a firm, a ndstakt> disco\'crcd because
of something- containrd in the assessment of tht:
fi.r111 i~ no.t !1
mistake apparrnt fron1 the
record of assess1ncnt ol the 1nd1v1·
dual partner.
2 s.c.R.
SUPREME COURT REPORTS
717
Held, also, that the Legislature has given to cl. (5) of
s. 35 which was incon:iorated with effect from April I, 1952,
a partial retrospective operation .. The provision.enacted by
cl. (5) is not procedural in charac~er, it affects ve<ted rights of
the assessre. Therefore in the absence of compelling reasons
the court would not be justified in giving a greater retrospectivity to the provision than is warranted by the plain words
used by· the Legislature. Clause (5) of s. 35 docs not purport
to amend cl.
(I) of the same section. It conftrs additional
power of rectification upon the Income Tax Authorities; and
that power cannot be exercised in respect of a<Sessmont of firm
which have been completed before the date on which the
power was invested.
CIVIL APPELLATE JURISDICTION: Civil Appeals
Nos. 557 and 558 of 1960.
Appeals from the judgment and order dated
April 10, 1957, of the Madras High Court in W.P.
No. 952 of 1955.
K. N. RajagopalSastri and D. Gupt,a, for the
appellants.
R. Thiagarajan, for the respondent.
1962. January 24. The Judgment of the Court
was delivered by
SHAH, J.-One S. K. Mohideen-hereinafter
referred to as the assessee-was a partner in two
firms-Messrs. Dinshaw and Co. and Messrs. Palaniappa Chettiar and Co. The firms were registered
under the Indian Income T3x Act. The assessee
submitted returns of his income and incorporated
therein the estimated share of his losses in the two
firms at Rs .. .20,000/- and Rs. 10,000/-, for the assessment year 1946-47 and at Rs. nil and Rs. 12,436/-
for the assessmel)t year 1947-48. The Income-tax
Officer, V. Circle, Madras completed the assessment
for the two years on February 20, 1950 after adopting the estimates furnished by the assessee, but he
made a note that the lo11S0s accepted were subject
to revision on ascertainment of correct particulars.
The assessment of Messrs. Dinshaw & Co. for the
years 1946-47 and 1947-48 was completed on
Tire /ru:ome·lax
Offi<tr, M adNs
v.
S. K, Halibvllo,
MadraJ
Sluih J.
TM llllonv·tu
Ofjiw, M.drcs
v.
B. IC. Hui!M/I_,,,
M1.Jr1s
11/Wi J.
718 SUPREME OOURT REPORTS [1962] SUl>P.
October 31, 1950 by tbe Income-tax Officer II Circle,
Madra.s and the proportionate share of the aSBessee
for the loBBcs was computed for the two years at
Rs. 15,839/- a.nd Rs. 1,046/- respectively. Asseesmcnt of Messrs. Pa.lania.ppa. Chettiar & Co. for
1947-48 was completed by the Income-t.&x Officer,
Special Circle on June 30, 1951 a.nd the share of
the a.BBessce in the 1068 suffered by that firm wa.s
computed at Rs. 2,009/-. On receipt of intimation..
of the orders p8!11ffld in the a.sseBBment of the two
firms, the Income-tax Officer, V Circle, Madras
issued on May 4, .1953 notices to show ca.use why
the assessments of the a.sse8800, for the years 19464 7 a.nd 194 7 -48 ehould not be rectified under s. 35
of the Income-tax Act. On March 24, 1954, the
a.sseSBee wrote to the Income-tax Officer stating :
"This is to inform you that I have no objection in
completing the assessments of the previous years in
accordance with law". On March 27, 1954, the
Income-tax Officflr rovis~d tho aB8088ment of the
al!&e88Ce in rcspett of the two yea.re after ta.king
into account the aha.re of the losses as computed in
the 8.8808Sments of the two firms.
The a.saessee died on April 17, 1954 a.nd hia
son S. K. Ha.bibullah-hcreinafter referred to as the
respondent-applied to the Commissioner of Income-tax, Madrae praying for revision of the ordol'IJ.
The CommiBBioner held that s. 35 was properly
invoked for rectification of the assessments a.nd
rejected the applications. But the High Court of
Judicature at Madras in petitions under Art. 226 of
the Constitution filed by the respondent ordered
that writs of cerliorari do iBBue quaehing the ordere
of the Income-tax Officer, V Circle. The Commissioner of Incomfl·t.&X, Madre.a appeals to tbie Coart
with oertifioate of fitnllBB granted by the High
Court.
The plea 01 the CommiBBioner that the 8886·
BSee having assented to the rectification, it was not
..
r
•
2 S.C.R.
SUPREME OOURT REPORTS
719
open to the respondent to challenge the authority
of the Income-tax Officer, has no force.
By his
letter dated March 24, 1954 the assessee merely
informed the Income-tax Officer that he had no
objection to rectification according to law.
But if
the la.w did not authorise the Income-tax Officer to
rectify the assessment, assent could not validate
what was unauthorised.
Section 35( I) empowers the income-tax authorities to rectify mistakes ii,pparent from the record
of certain orders passed by them. The clause (omitting parts not material) provides that the Incometax Officer may at any time within four years from
the date of any assessment order passed by him, on
his own motion rectify any mistake apparent from
the record of the aAsessment.
The power of
rectification may be exercised subject to two conditions : (I) that there is a mistake apparent from the
record of the assessment, and (2) that the order of
rectification is made within four years from the
date of the assessment sought to be rectified. The
mistake which may be rectified need not be in the
order itself : it may be in any part of the record
or proceeding of assessment of the assessee. But
for the purpose of assessment an individual and a
firm are distinct entities and even if an individual
is a partner of the firm, a mistake discovered because
of something contained in the assessment of the
firm is not a mistake apparent from the record of
assessment of the individual partner. In Kanumarlapaudi Lakshminarayana Chetty v. First Additional
Incorne-tax Officer, Nellore{') in dealing with the
question whether the record of the assessment of
the firm may be regarded as the record of the
assessment of the individual partner, Subba Rao,
C.J. speaking for the Court observed, and, in our
Judgment, correctly :
"But it is said that section 35 of the
Act even without the amendment would have
(I) [ 1956] 29 I. T. R. •19.
I96Z
The Income-tax
OJfictr, Modros
v.
S. K. Habibullah,
lJ.tathas
ShahJ,
J'81
T1t1 /ncorrt·ta
Offictr, .. \J ctiras
v.
. S. K. HabibulkJh,
Modra1
ShdJ.
720 SUPREME COURT REPORTS [1002] SUPP.
enabled the Income Tax authorities to reopen
the assessment on the ground that there was
a mistake apparent from tho record. Bat from
t.hc record of final asseBBment, it is impol!llihle
to say that there was a mistake apparent from
the record, for tho a.ssossing authority accepted
a certain figure as representing the share of
the assessees in the firm and made u final
assessment. The mistake is not in the record
but by & sμbsequent &1seRBment of the firm it
was discovered that the earlier assessment was
wrong to the extent of tho assessees' share
in the firm. It is not a mistake apparent from
the record bnt a mistake discovered from
the disposal of another oase".
·
Section 35(1) of the Income-Tax Act could not
therefore be resorted to by the Income-tax authori·
ties for rectifioation of the assessments of the
assessee, for there was no error apparent from the
record of those assessments.
The Income.tax Officer, however, sought to
rely upon s. 35(5) whi~h was incorporated bys. 19
of the Indian Income-tax (Amendment) Act, 1953
(25 of l!l53) with effect from April l, 1952. The
clause which was incorporated i1 in the following
terms:-
"(5) Where in respect of any completed
aBSessment of a partner in a firm it is found
on tho MSessment or reassessment of the firm
or any reduction or enhancement made in
the income of the firm under section 31,
Section 33, Section 33A, Section 33B, Section 66
or Section 66A that the share of the partner
in the profit or loss of the firm has not been
inoludcd in tho assessem<'nt of the partner or,
if inducli>d, is not corre<"t, tho inclusion of the
share in the assessment or the c0rreotion
thcreuf,
a11
the
case
may
lw,
shall
he
de<"med to be a rectification of a.
miat.a.ke apparent from the record within the
/
2 s.o.R.
SUPREME COURT REPORTS
721
meaning of this Section, and the provisions of
sub-section (I) shall apply thereto accordingly,
the period of four years referred to in that
sub-section being computed from the date of
the final order passed in the case of the firm,"
Clause (5) was one of a group of clauses, added by
Act 25 of 1953, dealing with .rectification of assessments. Clause (5) dealt with inclusion of income or
correction of the income of a partner in a firm
consequent upon assessment or reassessment of the
firm of which he was a partner. Clause (6) dealt
with recomputation of total income of an assessee
in consequence of modifications made in the Excess
Profits Tax or the Business Profits Tax payable by
an assessee subsequent to an assessment made
under the Indian Income-tax Act.
Clause (7) dealt
with rectification consequent upon modification of
orders under s. 23A of the Income-tax Act cl.(8),
which was enacted (in the form in which it now
exists) by the Indian Finance Act, 1956, dealt with
the rectifiaation consequent upon proceedings in
reassessment under s. 34 (1) (al. or s. 31 (IA).
The Legislature by a fiction in all these classes of
cases regarded the inclusion, correction, computation
or reoomputation as rectification of a mistake apparent from the record and prescribed special terminii
recokoning for the period of four years within which
the rectification must be made, Under. cl. ( 5) with
which alone we are directly concerned in these
appeals, the inclusion of the share in the assessment
of the partners or the correction thereof is
deemed to be a mistake apparent from the record
within
the
meaning of the
section,
and
sub-s. (1)
applies
thereto
accordingly-the
period of four years being computed from the date
of the final order passed in the case of the firm.
The discrepancy diiiclos~d as a result of assessment. or reassessment of a firm between the share
of a partner included in the individual assessment
nf that par.tner and his share disclosed in tho
1962
The lnconirtax
Officer, }J.adrus
v,
S. K. Hal:iibultah,
Madrcs
1962
Tlw l~omt·tox
Offkt.r, Madras
v.
S. K. H JbibuUah,
Ma./rar
BJuJi J.
722 SUPREME COURT REPORTS rl9621 St.:PP.
aRsessment of the firm was not an nror npparPnt
from the record within the meaning of~. 3511)
and the Legislature t-nacted a fiction making t}1p
inclusion of thP share in the aRs•·ssment or ccrn·c·
tion th<·reof such a mistake. If the inclusicn 0f the
sh11re or the correction of the assefifim~nt were· an
error apparent from the record and falling um'er
cl. (I) ofs. 35, the <'nactment of cl. (5) was plain·
ly
unne()('~sary. 'Vhen the Legislature has deliberat<>ly enacted a fiction of the nature set out in
cl. (5), ~e are unable to agr<'e with the contention
raised hv counsel for the Revenue that the enactment o(thP. fiction was r:r-aburuktnti r,aute!n. R{lcti.
fication 1.f the nature contemplated by cl. (/i) could
not ha v" been effected under cl. (I), and to remove
tho lacuna the legislature declared that what waH
not a mistake i-hould for the purpose of rectifica.
tion of a~se"Rill<'llt bo regarded a8 a mistake apparent from tlw record and provided a terminus for
t.be C<'mputation of tho period of four years.
Th~ ,1Hsessments nf tho two firms Wl're com.
pleted u long time b•~fore April I, l!Jii::!. It is also
commo11 ground that the indh·idual assessments
of the asscssce were not prO\·isional but final
aAAeRsments
under s. :!3 (:{) of the Inm•me-tax
Ac·t.
The question whi"h falls to be considered is
whether r<'lying upon cl. (5) of H. :15 an Incomotax Officer may rectify tho aso;essment of a person
who is a partner of a firm when the assessment of
the firm is C<·mpleted before tht>
1st of April,
I!Jii2.
The Legislature has given to cl. (;)) a
partial
r••trospt·ctivo
operation.
The μrovision
.. nacted by cl. (5) is not procedural in c·haractcr :
it affects vested ri~hts of the Rllsessee. Therefore in
the ahscmec of compelling reasons the court would
not be ju-itilh·d in giving a greater retros1l!'clivity
to the prnvi"ion than is warranted by the pl~m
words us<'cl by the Legislature.
As observed by
2 S.C.R.
SUPREME COURT REPORTS
723
the Judicial Committee of the Privy Council in
Income-tax Commissioner v. Khemchand Ramdas(') :
"
x
x
x
when once a
final assessment is arrived at, it cannot, in
their Lordships' opinion, be reopened except in
the circumtances detailed in sections 34 and
35 of the Act
x
x
x and within the
time limited by those section."
The orders of assessment are,
eubject to the
provisions relating to appeals, revisions, reassessment and rectification, finitl : it is not open to the
Income-tax Officer to reClpen the assessment because he thinks fit to do so.
The provisions relating to assessments and rectification or reopening
thereof are exhaustive, and may not be extended
by analogies. The right to rectify an assessment
may therefore be exercised in strict compliance with
conditions prescribed by tbe statute in that behalf.
Before April I, 1952, rectification of assessment of
an individual ori the disclosure of errors consequent
upon assessment of the firm of which be is a partner was not for reasons already stated permissible
under cl. ( 1) of s. 35. This power was conferred
for the first time by cl. (5) as from April 1, 1952,
and by the express words of the clause arose from
the assessment of the firm. If by the law prevailing at the time when the assessment of the firm
was mad.e, no such result as is contemplated by
the new clause (5) arose, to givi> a larger retrospective operation than is dirc·cted, is to ascribe to
the Legislature an intention dift'erent from the
one expressed, and to make a larg<'r inroad upon
the finality of that assessment than is permitted
by the Legislature. Section 35(5) does not purport to amend cl. ( 1) ; that clause is left untouched
by the amending statute.
It~ application, by fiction, is
extended to other clauses of cases
by declaring what in truth are not mistakes, as
mistakes.
Clause (5),
therefore,
confers an
(I) (1938) L. R. 65 I. A. 236, 248.
1962
Tile Income-tax
Offu:ef', Mcdt-u
v.
S. K. Habibullah,
Madru
&ah J.
lf62
Tiu lncolfl#-T ax
0 ffio.r, MaJ•as
v.
8. K. Habilnd/1111,
J1 ttd,as
Shalo J.
724 SUPllEME COURT REPORTS (1962] SUPP.
additional power of rectification upon the Income· tax
authorities and "in the absence of compelling reasonR
we will not bt1 justified in upholding the exercise
of the power to assessments of firms which have
been completed before the date on which the power
was invested.
Some assistanco may be derived from the
phraseolt>gy used by the legislature in cl. (fil whi<>h
was enacted simultaneously with. cl. (5). That
chuso provides, omitting parts which ar<' not
material :
''Where the exoe@S profits t&x or the busi·
ness profits tax payable by an asst>BBce has
bocn modified
x
x
x
x
or where any excess profits tax or busineBB
profit tall" has been assessed aft1>r the comple·
tion of the corresponding 888essmt>nt for
incomo-tax (whether before or after the commenC('ment of th11 Indian Income-tax (Amendment) Aet, 1953), and in consequence thereof
it is neceasary to recompute the total income
of the assesSl'e chargeable to income-tax, such
rccomputation shall be deemed to be a recti·
fication of a mistake apparent from the r1>cord
within the meaning of this sectinn, x
x x".
Manifestly, by the expreBB provisions contained in
cl. (6) tho fiction applies whether the assessment is
completed before or after the commencement of the
Indian Income-tax (Amendment) Act, 1953. Even
though cl. (6) ia al~o made retrospectively operative
as from April l, 1952, the legislature has authorised
the revenue authorities after April I, H!'i2 to pass
an order recomputing the total income of the
assessee whether or not the asseasm,•nt was
completod before the commencement of the Indian
Inco•oe tax
(Amendmcnti Act, 1953. It is true
that by the Explanation to that
olau~e. for the
purpo8ed of this sub-soction, where the assessee is
2 S.C.R. SUPREME COURT REPORTS
725
a firm, the provisions of sub-s. (5) shall also apply
as they apply to the rectification of the assessment
of the partners of the firm, but thereby an intention
to give a larger retrospective operation to cl. ( 5 ), in
so far as it deals with rectification of assessments of
partners consequential upon the completion of the
assessment of the firm in which thay are partners,
is
not indicated. When the Legislature under
cl. (6) of~. 35 expressly authorised rectification in
the circumstances mentioned therein even if the
ass~ssment has been completed before the Indian
Income-tax (Amendment) Act, 1953, and it made
no such provision in cl. ( 5), it woald be reasonable
to infer that the Legislature did not intend to grant
to the revenue authorities a power to rectify assessments falling within cl. (5) where the firm's assessment was completed before April 1, 1952.
In our view, it was rightly held in Kandan Lal
v. Income-tax Officer(')
following Kanumarlapudi
Lakshminarayana Ghetty v. First Additional IncomeTax Officer,
Nellore (2)
that· cl.
(5) of s. 35
of the Indian Income-tax Act, which was enacted
by the Income Tax
(Amendment) Act, 1953,
was not declaratory of
pre-existing law, and
as it clearly affected vested rights which had
accrued to the assessee, must be deemed to have
come into force from April 1, 1952. It had no
greater retrospective effect than
was expressly
granted to it. The power to rectify assessment of
a partner consequent upon the assessment of the
firm of which he is a partner by including or
"orrecting his share of profit or lo~s c0n therefore
be exercised only in case of assessment of the firm
made on or after April I, 1952. The Income-tax
Officer has no jurisdiction under cl. (5) of s. 35 of
the Act to rectify tho ·assessment of a partner
of a firm consequent upon the assessment or
(I) ll95'l] 37 I.T.R. 3:li.
(2) li956] 291. T. R. 419.
191!
Tire lru:ome•tax
Officer, Mat!ias
v.
S. K. Habibultah,
Madras
Shah J.
19112
n. r ...... i.x
Ofiur, JIHros
. '·
S. Ir. Huihll.V.,
Jlw.,
SWJ.
19112
726 SUPREME COU!t'f REPOI~T~ [ l ·• 2j SU Pf.
reaseessment of tho firm disclosing an error made
before April I, 19.5~.
The appeals therefore fail and a.re dismissed
with costs. One hearing fee.
Appeals dismissed.
KANBI KARSAN JADAV
v.
STATE OF GUJARAT
(J. L. KAPUR and R.to.GIIUBAR DAYAL, ,JJ.)
Criminal Trial-Et-idenct of anrot'-r-Corroioration on
mat.rial partiou/ara-Other circum•tanct• to be con•UtrtdCMniical !Czaminer'• evidenct, if can bt taken into Conoi<kration
tn duidt idtntily of haira-lndian Penal Code, 1860 (45 of
1860), 302, 201-IAdia EWknct Act, 1872 (1of1872), a. 45.
The appellant and two othcn were convicted for murder
undtr "· 302 and 201 of the Indian Penal Code.
The High
Court acc,pted the testimony of the appro'''r as being a
reliable piece of evidence. It relieJ upon the <liscovery of
the dtad body of the deceased at the instance uf t lte appellant
and of hlord sralned buttons also at his instance and attached
importanc(':.to tile scarf recovered from the pit \\·here the dead
body was alkgcJ to have been first buried and "hid1 had
hair> both of the appellant as well as the deceased.
The apprll.mt contended
that the evidence of the
approver, even 1h.Jugh it had been accepted as true, was not
corrohorated in 1naterial particulan connecting the appellant
with the ofJCncc.
None of the recoveries arc corroborative
of the statement of the approver to the extent of connecting
the appcllanl with the offence committed ; on the other hand
they are somewhat contradictory of the statement.
~fhc
evidence of the CheJnical Examiner was not sufficient to prove
that hairs on the scraf were of the appellant or of the deceased
because the Chemical Examiner was no expert on this matter
and his evidence WM not admissible under s. 45 of the
Evidence ,\ct and, at the most, according to the Chemical
Examiner the hairs resembled those of the appellant.
Held, that where the evidence of the approver is held
not to be very helpful to the prosecution other circumstance>