JUDGMENT <NAME>, Acting C.J.

1. This is a Reference under Section 51 of the Indian Income Tax Act, 1918. The section is in the following terms:

1. If, in the course of any assessment under this Act or any proceeding in connection therewith other than a proceeding under Chapter VII, a question has arisen with reference to the interpretation of any of the provisions of this Act or of any rule there under, <ORG> may, either on its own motion or on reference from any Revenue Officer subordinate to it, draw up a statement of the case, and refer it, with its own opinion thereon, to <ORG>, and shall so refer any such question on the application of the assessee unless it is satisfied that the application is frivolous or that a reference is unnecessary.

2. If <ORG> is not satisfied that the statements contained in the case are sufficient to enable it to determine the questions raised thereby, the <ORG> may refer the case back to <ORG> by which it was stated, to make such additions thereto, or alterations therein as the <ORG> may direst in that behalf.

3. <ORG> upon the hearing of any sash case shall decide the questions raised thereby, and shall deliver its judgment thereon containing the grounds on which such decision is founded, and shall send to <ORG> by which the case was stated, a copy of such judgment under the seal of the <ORG> and the signature of the Registrar; and <ORG> shall dispose of the case accordingly, or if the case arose on reference from any Revenue Officer subordinate to it, shall forward a copy of such judgment to such Officer who shall dispose of the case conformably to such judgment.

4. Where a reference is made to <ORG> on the application of an assessee, costs shall be in the discretion of the <ORG>.

2. The assessment which has led up to the present proceeding was made by the Collector of Tipperah, in whose jurisdiction the assessee resides, within the meaning of the definition of the term "Collector" contained in Sub-section (5) of Section 2 of the Indian income Tax Act . The Maharaja of Tipperah, who was the assessee, fork exception to the assessment as contrary to law, but the Collector refused to entertain the petition of objections on the ground that it could be heard by way of appeal from his order only by the Commissioner of <ORG>. The matter was then taken before the Commissioner, who heard the objections, allowed them in part, and modified the order of the Collector on the 19th December 1919. The assesses was not satisfied with his partial success and applied to <ORG>, as <ORG>, to revise the order of the Commissioner. On the 3rd May 1920 <ORG> made this reference under Section 51 , with a view to obtain a ruling of <ORG> on the several questions specified. When the matter was notified to be set down for disposal here, the Advocate-General appeared and mentioned to the <ORG>, that, as it was understood that the assessee had arranged to be represented at the hearing by <NAME>, he thought it fair to state in advance that objection would be taken that <NAME>s were not entitled to be heard on this Reference. When the case was actually taken up for disposal, Mr. <NAME> intimated to the <ORG> that he had been instructed to appear on behalf of the assessee and, consequently, the objection which the Advocate-General had intended to take could not, in the circumstances, arise. It transpired, however, that Mr. <NAME> was instructed by Mr. <NAME>, who was a Solicitor of this <ORG> but had not bean enrolled as a <NAME>. As an Attorney can appear in this <ORG> only on the Original Side and in appeals from the Original Side, the question arose whether this was a matter in which Counsel could be instructed by an Attorney or only by a <NAME>, Consequently, the point which the Advocate-General had previously brought to the notice of the <ORG> did require consideration, though in a somewhat different form. We accordingly heard the Advocate General and Mr. <NAME> and held that, as this reference by <ORG> arose out of a proceeding for assessment of income tax within the jurisdiction of the Collector of Tipperah and the Commissioner of <ORG>, <NAME>s were entitled to be heard and Counsel could be properly instructed only by a <NAME>. When this was intimated to Mr. <NAME> he stated, that Mr. <NAME> and Mr. Birendra Chandra <NAME>, two of the <NAME>s of this <ORG>, were ready to enter appearance on behalf of the assesses. After Mr. <NAME> had thus been properly instructed, the matter was heard on the merits. We shall now state the grounds for our ruling on the question of procedure and then give our decision on the points raised in the Reference.

3. For the solution of the question of procedure, it is necessary to investigate the nature of the proceeding under Section 51 of the Indian Income Tax Act. It is plain that the nature of the proceeding cannot be affected by coincidental circumstances, such as the plane from or the channel through which the Reference has been made; it is immaterial whether, at the time of the Reference, <ORG> was at Calcutta, Darjeeling or Dacca, or, whether <ORG> caused the order of Reference to be transmitted to the Government Solicitor who placed the matter in the hands of the Registrar on the Original Side or to the Legal Remembrance who entrusted the matter to the charge of the Government Pleader on the Appellate Side. The nature of the proceeding is a matter of substance and not of form.

4. The scheme of the Indian Income Tax Act , 1918, for the determination of controverter questions of liability to assessment is fairly simple. The assessment is made, in the first instance, under Sub-section (1) of Section 18 , by the Collector, who, under Clause (5) of Section 2 , it in relation to an assesses carrying on business, the Collector of the place where the principal place of business of such assesses is situate, and in relation to any other assessee, the Collector of the place where such assessee resides. When the assessment has been so made, the assessee may, under Sub-section (1) of Section 21 , apply by petition to the Commissioner for relief against the order of the Collector. Under Section 22 , the Commissioner may pass such order as he thinks fit, by way of confirmation, reduction, enhancement or cancellation of the assessment. Section 23 next authorises <ORG> to call for the record of any assessment proceeding which has been taken by any Officer subordinate to it and to make such enquiry and to pass such orders thereon as it thinks fit. Section 51 empowers <ORG> to make a reference to <ORG> either on it own motion (that is, when it has seizin of the proceeding under Section 23 ) or on reference from any Revenue Officer subordinate to it (that is, while the proceeding is still before the Collector or the Commissioner). Section 51 further provides that <ORG> shall make such reference on the application of the assessee, unless it is satisfied that the application is frivolous or that a reference is unnecessary. Section 52 finally lays down that no suit Shall be brought in <ORG> to set aside or modify any assessment made under the Act. It is clear from the provisions analysed that the jurisdiction of <ORG> is taken away, as the assessee would have been entitled, but for Section 52 , to institute a suit in <ORG> to contest the validity of the assessment made by the Collector. In lieu of such remedy, the assessee is permitted to take up the matter successively to the Commissioner and <ORG>. <ORG> is thus constituted the <ORG> which finally re-places <ORG>, subject to the reservation that there may be a reference to <ORG> on questions of interpretation of the provisions of the Act or of the rules made there under. When such a reference has been made, the opinion pronounced by <ORG> cannot be ignored, because it is made obligatory on <ORG> concerned to decide the case conformably to the judgment of <ORG>. What then is the nature of the jurisdiction which <ORG> exercises on such reference? Under the Letters Patent, the civil jurisdiction of <ORG> is classified as original (ordinary and extraordinary), and appellate (from the Original Side or from the <ORG> in the Provinces.) The Letters Patent makes no mention of revision (as distinguished from superintendence) of the proceedings of subordinate <ORG> or of references from them. This does not justify the inference that the <ORG> has no power to revise proceedings or to hear references. It was pointed out by Sir <NAME>, C.J., in <NAME> v. <NAME> 21 W.R. 263 : 13 B.L.R. 103, that the power of revision is in essence an aspect of appellate jurisdiction. The substance of the matter is, as explained in Secretary of <ORG> for <CITATION> . 9 Ind. Cas. 183 : 18 C.L.J. 90 : 15 C.W.N. 848, that the error of the inferior <ORG> ia rectified by a superior <ORG>; this characteristically common to both the proceedings technically sailed appeal and revision. On the other hand, a reference is made by a subordinate to a superior <ORG> with a view to obtain its opinion upon a controverter question of law and thereby avoid possible error. An Appellate <ORG> thus exists for the correction of an error of a subordinate <ORG> by way of appeal or revision, as also for the evidence of error by a subordinate <ORG> by pronouncing an opinion upon the question of law referred in advance. The essence of the matter thus is that when a <ORG> hears a reference, it really performs the functions of a <ORG> of Appeal quite as much as it undoubtedly does when it hears an application for revision. The index of the relation of superior and inferior <ORG> is furnished by the fast that the judgment pronounced on the reference by <ORG> is binding upon the referring authority. There is thus no escape from the conclusion that <ORG> exercises, not an original but an appellate jurisdiction when it entertains a reference under Section 51 of the Indian Income Tax Act, 1918. In this connection, we must not overlook Section 106(2) of the Government of India Act, 1915, which provides that <ORG> has not and may not exercise any original jurisdiction in any matter concerning the revenue or concerning any Act ordered or done in the collection thereof, according to the usage and practice of the country, or the law for the time being in force; this substantially reproduces the provision in Section 8 of 21 Geo. III, C. 70, which debarred the Supreme <ORG> from exercising jurisdiction in any matter concerning the revenue. Now, <ORG>, under the Indian Income Tax Act , 1918, exercises jurisdiction over the entire <ORG>, as well in the Town of Calcutta, as beyond the limits of the <ORG> town. A distinction may thus legitimately be drawn between a reference made in connection with an assessment on a person who resides in the town of Calcutta (that is, within the limits of the ordinary original civil jurisdiction of this <ORG>) and a reference made in connection with an assessment on a person who resides beyond the limits of the ordinary original civil jurisdiction of his <ORG>. In the former class of cases, the procedure should be assimilated with that applicable to appeals front the Original Side; in the latter class of cases, the procedure should be that applicable to appeals from the <ORG> in the Provinces under Clause 16 of the Letters Patent. This distinction, as is well-known, has a historical origin and cannot be ignored. It was faintly contended, however, by Mr, <NAME>, as a last resort, that the jurisdiction which <ORG> exercises under Section 51 of the Indian Income Tax Act is neither original nor appellate, but a new kind of jurisdiction not contemplated by the Letters Patent. It is sufficient to say that this argument, though not lacking the merit of novelty, could not be of any practical assistance to Mr. <NAME>s for, while an Attorney can appear only on the Original Side, a <NAME> is excluded only from the Original Side. Consequently, if the jurisdiction were neither original nor appellate, an Attorney would not be, but a <NAME> would be, competent to appear. In the present case, the assessment under Section 18 was made by the Collector of Tipperah and the order under Section 22 (which ultimately came under examination by <ORG>) was made by the Commissioner of <ORG>. Consequently, the procedure which governs appeals from the <ORG> in the Provinces, within the meaning of Clause 16 of the Letters Patent, is applicable to the reference made by <ORG> under Section 51 , and on such reference <NAME>s, but not Attorneys, are entitled to appear. This view is not opposed to the procedure followed in the case of <CITATION> for India in Council 64 Ind. Cas. 107 : 32 C.L.J. 421; there no such question was raised, possibly for the reason that as the Company, though owning property situated at Naogaon in Assam, had its registered office at 1, Clive Street, Calcutta, and might, consequently, be deemed, under Section 2(5) , to have its principal place of business within the town of Calcutta ; the assessment was, in fact, made by the Collector of Income Tax, Calcutta. Our conclusion is also not affected by the decision in Barristers and <NAME>, In re 4 Ind. Cas. 297 : 13 C.W.N. 605 : 10 Cr. L.J. 553, that <NAME>s had no right of audience in <ORG> in cases sent up for trial under Act XIV of 1908. No reasons were recorded in that case; but it was plain that the jurisdiction to be exercised by the <ORG> was original criminal jurisdiction. Nor is any assistance to be derived from the decision in <CITATION> 41 Ind. Cas. 313 : 25 C.L.J. 401 : 21 C.W.N. 654 : 18 Cr. L.J. 793, where the <ORG> was equally divided in opinion upon the question, whether <NAME>s were entitled to be heard in a proceeding under Section 195 of the Criminal Procedure Code instituted in a <ORG> Small Cause <ORG> and brought up before <ORG> in the exercise of its revisional jurisdiction or of its power of superintendence. Nor is any light thrown on the point before us by the practice in connection with references under Section 57 of the Indian Stamp Act, 1899; such references, so far as we have been able to discover, have hitherto been made mostly in connection with matters arising within the limits of the ordinary original civil jurisdiction of this <ORG>, and, in such cases claim to a right of audience would not ordinarily be put forward by <NAME>s; but in one instance at least, Reference under Stamp Act , 1899 (6), where the question arose in relation to <ORG> from the <ORG>, Counsel appeared with a <NAME> at the hearing.

5. On the other hand, <NAME> have always appeared in references from subordinate <ORG> for disciplinary action against Pleaders and <NAME> under the Legal Practitioners Act , 1879, as also in proceedings instituted in this <ORG> for disciplinary action against <NAME>.

6. We have next to consider the questions referred by <ORG> to this Court for decision:

(1) Is selami or premium agricultural income within the meaning of Section 2(1) of the Indian Income Tax Act, 1918, when charged.

(a) for the settlement of waste lands or abandoned holdings?

(b)for recognition of a transfer of a holding from one tenant to another?

(2) Are illegal abwabs, such as uttarayan agricultural income within the meaning of that section?

7. Section 4 provides that agricultural income shall not be chargeable to income tax. Section 2(1)(a) lays down that agricultural income" means any rent or revenue derived from land which is used for agricultural purposes and is either assessed to land revenue or subject to a local rate assessed and collected by officers of Government as such, The assessee contends that the incomes mentioned in the two questions are exempt from assessment as they constitute agricultural income within the meaning of the definition just given. We are of opinion that this contention is well founded in respect of selami paid for the settlement of waste lands or abandoned holdings, but cannot be supported in respect of selami paid for recognition of a transfer of a holding from one tenant to another. When a new tenancy is created in respect of unoccupied waste lands or lands which had been abandoned by previous tenants, the premium represents essentially the capitalised value of a portion of the rent. We are not unmindful that in the case of <NAME> v. <NAME> 13 W.R. 307 : 5 B.L.R. App.1 it was ruled that money payable by a lessee in consideration of a leaee granted, whether called nuzzur or selami, cannot be looked upon as rent, but is simply a debt due upon a contract and is recoverable by a suit in a final <ORG> on the money-bond executed in that behalf by the tenant in favour of his landlord. It is not necessary to hold that such Salami is rent within the meaning of the definition given in the Bengal Tenancy Act or the Transfer of Property Act . The expression used in the Indian Income Tax Act is "rent or revenue," and this is obviously wider than rent, as defined in the Bengal Tenancy Act or the Transfer of Property Act . The term "revenue" is defined in <ORG> as follows: "The return, yield, or profit of any lands, property, or other important source of income; that which comes in to one as a return from property or possessions, specially of an extensive kind; income from any source, specially of an extensive kind; income from any source, but specially when large and not directly earned." There can be little doubt that when a lease is granted, the amount fixed for periodical payment is not independent of the amount paid in a lump sum as premium. The capitalized value of the sum periodically payable, taken along with the premium, constitute in the aggregate the consideration for the grant; so that the larger the one element, the smaller the other. From this point of view, we must hold that the premium paid for the settlement of waste lands or abandoned holdings may reasonably be regarded as "rent or revenue" derived from land, within the meaning of that expression as used in the definition of "agricultural income" in Section 2(1)(a) .

8. But these considerations do not apply to the selami or premium paid for recognition of a transfer of a holding from one tenant to another. When the transfer is recognized, the original tenancy continues and there is no new demise. The sum paid as selami or premium in such circumstances is obviously not rent in any sense of the term; nor can it be deemed the return, yield, or profit of any land. The money is paid by the transferee to the landlord to purchase peace, so that he may not contest the validity of the transfer. We cannot hold that money so levied by the landlord can be comprised within the scope of the definition of agricultural income.

9. Finally, the contention that illegal abuabs, such as uttarayan, constitute agricultural income, is manifestly untenable. The item uttarayan is a voluntary payment, made by tenants, at one piece per rupee of their rent, for expenses of the Bastu Puja on the Uttarayan Sanskranti day (the list day of the Bengali month Pous) and for distribution of sweets and oranges to all servants of the estate, <ORG> officers and local residents. The item consequently is an illegal exaction and cannot, on the widest interpretation which may be placed on the phrase "rent or revenue," be possibly included therein; nor can it be said to be derived, that is, drawn, or obtained from the land. We do net feel pressed by the contention that, if the income from Uttarayan be treated as assessable, there would be an indirect recognition of it by <ORG>; For, all that was have to consider is, whether it is exempted from assessment, because, if not exempted, it must be taxed as included in the all comprehensive expression in Section 3(1) , namely, "income from whatever source it is derived." Reference may in this connection be made to the decision in <NAME> v <NAME> (1886) 56 L.J.Q.B. 251 : 18 Q.B.D. 276 : 56 L.T. 208 : 35 W.R. 276. In that case, it was ruled that persons receiving profits from betting systematically carried on by them throughout the year as book makers on case courses, were chargeable with income tax on such profits, even though bets were considered null and void and not recoverable in law. <NAME>, J., said that even an illegal vocation would be taxable on its income, as "if a man were to make a systematic business of receiving stolen goods, and to do nothing else and were thereby to make a profit of, say £2000 a year, <ORG> would be quite right in assessing him if it were in fact his vocation." We hold, accordingly, that income derived from illegal abwabi, such as uttarayan, is not exempt from assessment.

10. The result is that Q. (1)(a) is answered in the affirmative, Q. (1)(b) and Q. 2 in the negative.

11. There will be no order for costs under Section 51(1) , as the Reference has been decided in part in favour of the assessee.

12. Let a copy of this judgment be forwarded to <ORG> under Section 51(3) .

Fletcher, J.

13. I agree.

Walmsley, J.

14. I agree.


<NAME>, J.

1. Six persons stood their trial before the Sessions Judge, Sangli, the appellant on the charge of murder of one <NAME>bai and the rest under Section 201 read with Section 34, Penal Code , for causing the evidence of the said murder to disappear by burning her dead body in survey No. 178 of village arandi. Of these persons, the appellant, hereinafter referred to as accused 1 and accused 2 and 4 are the sons of accused 5, and accused 6 is his wife. The victim was the widow of one <NAME>, the nephew of accused 5, who after the death of her husband was living with accused 5. The relations between the deceased and the accused were, it was said, normal on the whole, but during the past year before the alleged murder, accused 5 was insisting upon the deceased either transferring a piece of land standing in her name in favour of the accused, or adopting one of his sons. The motive for the crime alleged by the prosecution was the refusal of the accused to follow either of the two courses and the consequent fear of the accused that <NAME> would at any time convey it to one of her other relations

2. On December 9, 1965 at about 9 a.m., <NAME> started for her field to pluck ground-nut creepers. On her way, she passed through the field of <NAME> and took along with her his daughter <NAME>, aged about 12 years, to help her in her work. While <NAME> and <NAME> were pulling out the groundnut creepers from the ground, accused 1 came there armed with an axe. He asked <NAME> what her plan was for that day and at once struck her on her neck with the axe he had with him. <NAME> collapsed under that blow and <NAME> frightened at what she had seen, ran to her father in the neighbouring field and told him of what she had seen. At that very juncture, <NAME> also heard the screams of Sundarabai, the wife of accused 2, who also had seen the incident from a field nearby, where she was working at that time. On <NAME> going to the place where Sundarabai was, the two of them went to the place where <NAME> was lying dead. <NAME> then went to the field of one <NAME> nearby & told <NAME> that accused 1 had killed <NAME>. After a little while, the two of them saw accused 2 and 4 carrying away the dead body of <NAME> in a blanket to survey No. 178 belonging to the accused. Seeing this, they went to <NAME>, the brother of <NAME>, who also was working in his field After telling <NAME> of what had happened, <NAME> and <NAME> went towards the village to inform the <NAME> and to find out where the village Police <NAME> was <NAME> went towards the accused's field and saw the dead body of <NAME> having been set on fire and all the accused standing nearby, accused I being still with the axe. When <NAME> went near the place, accused I threatened him with evil consequences if he proceeded to where the body was being burnt. In the meantime, some relations of <NAME> came there and seeing them the accused went away. Those relations then dragged out the body of <NAME> from the burning pyre. <NAME> thereafter contacted the Police <NAME>. Both of them went to Tasgaon Police Station about 22 miles away from the village reaching there at about sunset. The delay in reaching the police station was due to the fact that they had to wait for some conveyance to travel that distance, such a conveyance becoming available to them only in the afternoon. At the police station <NAME> gave the first information report. Thereafter the police investigation commenced, during the course of which the police took charge of the charred body of the deceased and sent it for post-mortem. Dr. <NAME> who performed the post-mortem, found, apart from the burn injuries, two external injuries on the body :

(1) a wound 2" x 1/2" upto the vertebral column upon the right of the neck just below the right ear, and (2) a wound 21/2" x 1/2" with the fracture of the vertebral column. An internal examination by him revealed that part of the occipital bone under injury No. 1 had been fractured and the : seventh cervical vertebra had been completely fractured. The brain as also several other parts of the body were either completely or partially burnt. According to the post-mortem notes made by Dr. <NAME>, death was probably caused by the aforesaid two injuries on the neck resulting in the failure of the heart and respiration. On the dead body were found a silver waste band and a silver necklace chain. The police noticed signs of trampling and blood over the groundnut creepers where <NAME> and <NAME> had been working at the time of the assault.

3. At the trial, the prosecution examined <NAME> claiming her to be an eye-witness of the assault by accused 1, her father <NAME> to whom she had narrated the assault almost immediately and <NAME> and <NAME>. <NAME>, the wife of accused 2, was also examined, but was declared a hostile witness since her evidence was contrary to her statement before the police. There were other witnesses also to prove their having dragged out the dead body of <NAME> from the burning pyre. Besides Dr. <NAME>, the prosecution examined Dr. <NAME>, the Civil Surgeon at Sangli.

4. The accused denied any knowledge of the incident. The defence of accused I was that he was at the time working in his field where his wife's sister came and told him that <NAME> had a snake bite. When he came near his house he found several persons there, who had already placed her dead body on a pyre and set fire to it. After some time <NAME>, the relations of the deceased, came there armed with axe and sticks and dragged the burnt body of <NAME> out of the pyre. His case was that <NAME>'s evidence was false and that she was made to give such evidence on account of enmity between <NAME> and the accused. That enmity arose because <NAME> had often resorted to stealing the crops from the accused's lands. The other witnesses also had given false evidence against them owing to similar hostility existing between them for one reason or the other.

5. The Trial Judge accepted the fact that <NAME> had given the first information report but refused to rely on it as <NAME> had not specifically stated therein the fact of his having been told by <NAME> that accused I had struck the deceased with an axe. He declined to accept the prosecution story of motive on the ground that accused 5 had earlier executed <NAME>, which belied the allegation that he had insisted upon <NAME> conveying her land to him or his sons or adopting one of his sons. He also declined to accept the prosecution case that the death of <NAME> was homicidal as Dr. <NAME> was not able to say in the condition in which the dead body was brought to him whether the two external injuries he had seen were ante-mortem or post-mortem. He doubted the claim of <NAME> as an eye-witness on the ground that it was improbable that she had gone with <NAME> to her field to assist her. He also found the version of <NAME> unacceptable that <NAME> had come running to him or that she had told him of the assault on <NAME> by accused 1 with an axe or his having then gone to <NAME> and telling him of what he had been told by <NAME>, or the two of them having gone to <NAME> and then to the Kotwal and the Police Patil and telling them that accused I had killed <NAME> with an axe and accused 2 and 4 had brought the body to their field for burning it. On these findings the Trial Judge acquitted all the accused.

6. The approach of the Trial Judge was that because, according to him, the prosecution had failed to establish an adequate motive, the evidence of <NAME> and her claim of being an eye-witness could not be accepted as true or even probable. His reasoning for such a conclusion was that it was unlikely that she had accompanied <NAME> to her field to assist her in plucking out the ground-nut creepers when her father himself was busy doing similar work in his own field. He refused to accept <NAME>'s evidence on the ground that being the village Ramoshi and bound as such to help the police whenever a crime took place in the village, he was likely to be under the police influence and that it was result of such influence and at the instance of the police that he and <NAME> gave their evidence. Having come to the conclusion that the prosecution had not been able to prove that <NAME>'s death was homicidal, the learned Judge even felt inclined to accept the defence story of snakebite and of the belief amongst village people that in such cases the victim's body should be cremated immediately and that too in the vicinity of the residence of such victim. That was how the learned Judge explained away the two circumstances : (1) the body having been sought to be done away with without informing the deceased's relations living in the village, and (2) cremating it right in front of the accused's residence. On these premises, the Trial Judge held the prosecution case not proved and acquitted all the six accused. The Trial Judge ended his judgment in the following words :

To summarise, therefore, that is a case where there does not seem to be any plausible motive for criminal behavior on the part of any of the accused, and if the evidence of phuba is excluded, as I have done, there is no direct evidence. The expert medical opinion is of no assistance for coming to the conclusion that the death in this case is homicidal. The report of <ORG> shows that the origin of the blood which was detected at the spot shown by accused No. 1 and on his dhoti and on the axe could not be determined. Then, what we are left with are the suspicious circumstances that the dead body appears to have been hurriedly burnt at an unusual place with ornaments on its person and the accused are falsely denying their connection with the cremation. But then in view of the medical opinion and the opinion of <ORG> and the absence of motive, all that could be said is that these circumstances would create a suspicion; but suspicion, is no evidence. That being the position, all the accused are entitled to an acquittal, and I order accordingly.

7. On appeal by the State, <ORG> reversed the order of acquittal and convicted accused 1 under Section 302 and sentenced him to life imprisonment. <ORG> also convicted accused 4, 5 and 6 under Section 201 of the Penal Code, but confirmed the order of acquittal so far as accused 2 and 3 were concerned. In doing so <ORG> accepted <NAME> as the eye-witness and found her evidence corroborated by the evidence of <NAME>, the wife of accused 2, of her having drawn <NAME>'s attention by her screams to the place where <NAME> was attacked and was lying and <NAME>, thereupon, having gone to that place and found <NAME> having been already dead with axe injuries. <ORG> next accepted <NAME>'s version of having been informed of the assault by <NAME> and <NAME>, his having then gone near the accused's house, his having seen all the accused near the burning pyre and accused 1 having threatened him with the axe, which he still had in his hand, if he proceeded any further to the place where the body was being burnt. <ORG> declined to accept the defence theory of the snake-bite or the alleged belief that in such cases the dead body had to be cremated immediately and at the residence of the victim or any of the two external injuries deposed by Dr. <NAME> having been caused as a result of the dead body having subsequently been rolled out of the burning pyre. <ORG> reached these conclusions after elaborately reappraising the entire evidence on record, which on an appeal against acquittal, it is well settled, it could, and recording correctly the principles laid down in the decisions of this Court guiding its approach in appeals against acquittal, and also examined the reasons given by the Trial Judge for non-acceptance of the prosecution evidence.

8. These principles are that under the CrPC <ORG> has full power to review at large the evidence upon which an order of acquittal has been passed by <ORG> and to reach the conclusion that upon that evidence the order of acquittal should be reversed. However, in exercising that power and before reaching its conclusion upon facts, <ORG> should give proper weight and consideration to such matters, as the views of the trial judge as to the credibility of the witnesses, the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial, the right of the accused to the benefit of any doubt and the slowness of the appellate court in disturbing a finding of fact arrived at by the judge who had the advantage of seeing the witnesses. ( <CITATION> 61 I.A. 398). These principles were approved of and repeated in <CITATION> . Counsel for the appellant was not able to point out to us anything in <ORG>'s judgment which would suggest that it had not followed these principles while reappraising the evidence and disagreeing with the findings of fact given by the Trial Judge.

9. A perusal of the judgment of the Trial Judge shows that his reluctance to accept the evidence of <NAME> and her father <NAME> principally stemmed from (1) his disbelief of the evidence on motive and its adequacy, (2) his view as to the improbability of <NAME> having gone to the deceased's field to help the deceased, and (3) the omission by <NAME> in the first information report of the fact that accused I had struck the deceased with an axe.

10. It is true that the deceased had been living with accused 5 and his family. It is also true that until the incident in question there had been no open rupture between the deceased and accused 5 and his family members. That fact, however, does not preclude the possibility of accused 5 having asked the deceased to settle the land held by her upon his sons, or in the alternative to adopt any one of them. Either of these two courses would have ensured the land coming to his family and not being disposed of in favour of any outsider. The evidence of <NAME> in this regard showed that the deceased had refused to comply with such requests by accused 5, which were so persistant that deceased had complained to him about them. That the deceased would so complain to <NAME> would not in any manner be improbable as <NAME> was her brother and residing in this very village. It is difficult also to conceive that <NAME>, in collusion with any of the witnesses in this case, could have invented such a story so as to afford to the prosecution evidence of motive. There is no indication in the evidence of any previous hostility between <NAME> and the accused which could impel <NAME> either to invest such evidence himself or to permit himself to be manoeuvered by any other person into investing such a story for a motive. The refusal by the deceased to comply with the request persistently made and the possibility of the land going out of the reach of the accused could not also be regarded as an inadequate motive. Numerous crimes have been perpetrated for reasons less adequate than the possible loss of land.

11. Assuming that the prosecution evidence was not sufficient or cogent enough for a motive to be spelt out of it, the fact that the prosecution was not able to discover such an impelling motive would not reflect upon the credibility of a witness, proved to be a reliable eye-witness. Was <NAME> such an eye-witness ? The answer to that question must depend upon the intrinsic value of her evidence, the absence of any possibility of her having been put up as an eye-witness or tutored by any interested person or persons and the circumstances in which the incident in question had occurred, and not upon whether the prosecution was able or not to prove an adequate motive. What the Trial Judge, however, did was precisely the opposite, that is to say, he looked at her evidence not from the point of view of whether it was intrinsically genuine, but with distrust because the evidence with respect to motive was, according to him, not satisfactory. As regards the evidence relating to motive, one of the facts which weighed with him for discarding that evidence was the fact that accused 5 had earlier executed <NAME> in respect of the deceased's land. We do not know what its terms were, for, it was not produced during the trial. But the very title of the document would seem to suggest that accused 5 by that document acknowledged the title of the deceased to the land for her life time. The document did not acknowledge her absolute title and her right to alienate the land during her life time or to make a bequest of it by a testamentary instrument in favour of any one. The accused must, therefore, know that <ORG> would not have ensured the land to them so or prevented its alienation or transfer by <NAME>. Its execution by accused 5, therefore, could not render <NAME>'s evidence as to motive untrue.

12. As stated earlier, the fact that the prosecution in a given case has been able to discover a sufficient motive or not cannot weigh against the testimony of any eye-witness. Evidence as to motive would, no doubt, go a long way in cases wholly dependent on circumstantial evidence. Such evidence would form one of the links in the chain of circumstantial evidence in such a case. But that would not be so in cases where there are eye-witnesses of credibility, though even in such case if a motive is properly proved such proof would strengthen the prosecution case and fortify the court in its ultimate conclusion. But that does not mean that if a motive is not established the evidence of any eye-witness is rendered untrustworthy.

13. It is true that there was only a solitary eye-witness in the present case and that too a girl of twelve years of age, to whom the Trial Judge did not consider it expedient to give the oath, since according to him, she was not mature enough to understand the significance of the oath. At the same time there was, in the circumstances of the case, scarcely any possibility of there only because she had gone to the field with the deceased at the latter's request to her father <NAME> for assistance. But there was nothing improbable in <NAME> having done so, for, that was expected of her by the deceased was to pluck out from the ground groundnut creepers and collect them into heaps. The Trial Judge, however, thought this to be unlikely for he said that she had gone with her father to his field precisely for this kind of work, and therefore was not likely to leave him alone to do the entire work. There the Trial Judge was in error, for, <NAME>'s evidence showed that the ground-nut creepers had already been taken out from the ground and collected in small heaps at various places and the work for which he had gone to the field that morning was to collect all these heaps at one place so as to enable him to pluck out the ground-nuts from the creepers so collected. Being teenager, <NAME> perhaps would not have been of much assistance to him for that kind of work, and therefore, it was not unlikely that <NAME> would, when requested by the deceased, allow <NAME> to go with her for assisting in taking out the creepers from the ground. Such assistance to neighbours by children of cultivators is not uncommon in villages. There was, therefore, nothing improbable in <NAME> being in the deceased's field when the incident in question occurred.

14. Once it was shown that <NAME> was present in that field, the only question for consideration would be whether her evidence was acceptable or not Her evidence in that connection had to be scrutinised with care and caution as she was not only a teenager but the only witness claimed to be an eye-witness. The Trial Judge conceded that her evidence was not marred by any material discrepancy or contradiction. But the absence of any such infirmity according to him, was not enough, and brought in the omission of <NAME> to specifically mention the fact of accused 1 having struck the deceased with an axe in the first information report as a reason for discarding <NAME>'s evidence. That omission by <NAME>, however, could not land any infirmity no <NAME>'s testimoney, for, it was not as if <NAME> had narrated the incident to <NAME> and <NAME> relying on such narration had lodged the first information report so that an omission by him may be said to raise a possibility that <NAME> might not have told him that she had seen accused 1 striking the deceased The evidence was that she first fled to <NAME> in the neighbouring field and told him of what had happened, whereupon <NAME> first went to <NAME> and both of them then found out <NAME> and told him about the incident. The omission by <NAME>, even if it can be regarded as an omission, cannot thus have any bearing on the question of <NAME>'s credibility as an eye-witness.

15. A perusal of the FIR lodged by <NAME> would seem to show that the omission was not such as would justify the claim of <NAME> being an eye-witness being discarded. Before it can be held as an omission, it has to be borne in mind that according to the FIR, <NAME> had been informed by <NAME> and <NAME> that his sister <NAME> "was killed by her cousin father-in-law and husband's brother" and that they were about to set fire to her dead body near their residence in their field. According to <NAME>'s evidence, when he went to that field on getting that information, he found that the dead body of <NAME> was already set on fire. The pyre was surrounded by all the accused and accused 1 at that time was having an axe with which he threatened <NAME> against corning near the dead body. It was only when the Pawars, according to the evidence, came there armed with axes and other weapons that the accused retired from the place and the body could be dragged out from the burning pyre. In this background, <NAME> must have felt that all the accused were concerned in the killing of his sister and that was why they were anxious to dispose of the dead body so that it may not indicate the manner and the cause of her death. The FIR, however, did assert that "the cousin father-in-law and husband's brother" were responsible for killing, though it is true it did not mention specifically that accused I had struck <NAME> with an axe. <NAME> might not have made specific mention of it probably because he must have thought all the accused responsible for the death of <NAME> from the manner in which they had surrounded the body for disposing it off quickly. If viewed from this point of view, the omission to mention expressly that accused 1 had struck the deceased with an axe cannot be said to have much importance.

16. <NAME>'s evidence, if accepted, would corroborate <NAME>'s claim of being an eye-witness in two respects, (a) her having gone to the field with <NAME> and being with her when the incident occured, and (b) her having fled to <NAME> in a frightened state immediately after the incident and telling him of the assault by accused 1 with an axe. The accused challenged <NAME>'s veracity on the ground that he had been stealing their crops and on being scolded therefore by them being hostile to them. But barring their bare allegation, no proof whatsoever was adduced to show any such hostility between <NAME> and the accused. But the Trial Judge disbelieved <NAME> on the ground that being the village Ramoshi, he would be under the police influence. That could hardly be a justifiable ground for discarding his testimony. <ORG> accepted his evidence and also that of Tatoba and no reason had been made out to warrant any disagreement on our part with that conclusion.

17. Once, therefore, <NAME> was found to be an acceptable witness, his evidence corroborated in a large measure <NAME>'s evidence, for, it was only on her going to him and telling him as to what had happened that the entire chain of subsequent events took place, his going first to <NAME>, then the two of them going to <NAME>, <NAME> going to the accused's field and <NAME> and <NAME> contacting other villagers, the Kotwal and <ORG>, and finally, rescuing the body from the pyre by the other relations of the deceased. As regards <NAME>'s testimony, it has to be observed that <ORG> quoted it almost verbatim in its judgment to demonstrate that it was natural and free from any material blemish in spite of a long, and what <ORG> called, a gruelling cross-examination.

18. Counsel took us through the medical evidence, including the post-mortem notes by Dr. <NAME> to show that his opinion on the two external injuries was not indefinite, but was on the contrary equivocal and shaky on the question whether the injuries were ante-mortem or post-mortem. But that was because the body was at many places charred and several internal organs were burnt or roasted. But the absence of a definite medical opinion on that question could not be very material once Phuba's evidence was found acceptable. There would, therefore, be no difficulty in coming to the conclusion that the deceased had died as a result of her having been struck with a weapon such as an axe. The defence story that she died as a result of a snake-bite and that her body had to be immediately burnt because of a belief or practice to that effect in the village has only to be stated for its rejection. No such evidence, was available. There could be no doubt, as <ORG> has said, that it was set on fire so that the body would not show how the deceased had died. The two circumstances, viz., that it was sought to be disposed off without informing her parents and her brother <NAME> all of them were in the village and without carrying it to the village cremation ground were tell-tale circumstances showing the desperate anxiety on the part of the accused to dispose it off as quickly as possible.

19. The principle upon which this <ORG> in appeals of this type would act is that once it is found that the High <ORG> has applied the correct principles in setting aside an order of acquittal, this <ORG> would not ordinarily interfere with the High <ORG>'s order of conviction in an appeal against acquittal or enter into the evidence to ascertain for itself whether the High <ORG> was right in its view of the evidence. Only such examination of the evidence would ordinarily be necessary as needed to see that the High <ORG> approached the question properly and applied the principles correctly. ( <CITATION> 1962 Supp. 1 S.C.R. 104. Counsel, nonetheless, was at pains to take us through the major part of the evidence. After having gone through that evidence, we find no reason to come to the conclusion that the High <ORG> made any error in applying the principles which should guide it in an appeal against acquittal, nor has any reason been established which would make us disagree with its findings on the appreciation of evidence.

20. That being the position, the appeal must fail and has in the result to be dismissed.