Taqi Mirza Vs. Rex - Court Judgment

Excerpt:
- cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. the school tribunal constituted under section 8 of the maharashtra act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. teacher employed in the school run by cantonment board being covered under rule 2 (f) of the cantonment fund servants rules, 1937 can file appeal under rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [deolali cantonment board v usha devidas dongre, 1993 mah. lj 74; 1993 lab ic 1858 overruled]. -- maharashtra employees of private schools (conditions of service) regulations act, 1978 [act no. 3/1978]. sections 9 & 2(21): jurisdiction of school tribunal whether a school run by cantonment board is not a recognised school within the meaning of section 2(21)? - held, the act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the act shall apply to all private schools in the state whether receiving any grant-in-aid from the state government or not. private school is defined in section 2(2) of the act as a recognised school established or administered by a management other than the government or a local authority. recognised means recognised by director, the divisional board or state board. thus as far as the first part of the definition of being recognised is concerned, it includes, as stated above, four directors, the divisional boards and four state boards. the second part of this definition which comes after the comma refers to any officer authorised by director or by any of such boards. the question to be examined is whether school run by the cantonment board could be said to be one run by any such boards. a private school has to be recognised by the state or the divisional board or by any officer authorised in that behalf. when this phrase namely: recognised by any officer authorised by the director or by any such boards, is included in the latter part of section 2(21), such boards will be of the level of the state board or the divisional board. the boards referred to in the definition of the word recognised means the boards which deal with education at levels other than that of the level at which primary schools are operating. thus for being recognised, the school has to be recognised by the board and therefore, it has to be operating at a higher level i.e., secondary level. section 2(21) of the act defines the term recognised. the last clause therein is by any of such boards. the term such is defined in oxford dictionary as of the kind or degree indicated or implied by the context. therefore, the term such board will have to mean a divisional board of or the level of divisional board or the state board. the divisional board holds the examination and issues certificates after 10th and 12th standard examinations. the state board advises the state government on policy matters, ensures uniform pattern of secondary and higher secondary education, lays down principles for determining syllabi, prescribes text books, etc. the cantonment board does not discharge any of such duties nor is there any other board or body under the cantonments act discharging any such duties. the duties of the cantonment board are laid down in section 62 and amongst others, clause (xiv) lays down the duties of establishing and maintaining or assisting primary schools only. the cantonment board is not required to enter into the area of secondary education. therefore, school run by the cantonment board is a primary school and it is not a school recognised by any such board comparable to the divisional board or the state board. that being the position, it is not possible to accept it to be a recognised school for being a private school under the act. for the reasons state above, the school tribunal constituted under section 8 of the act cannot entertain appeals filed under section 9 by the employees working in schools which are established and administered by the cantonment board. [deolali cantonment board v usha devidas dongre, 1993 mah.lj 74; 1993 lab ic 1858 overruled]. - so far as the appellant is concerned he clearly said that he had known 'him from his childhood. all these factors have tended to influenoe my mind against the veracity of the evidence given by chhotelal, and i do not think it safe to rely upon it in this communal case. but in india the rule is well settled that a court can legally base the conviction of an accused on the statement of a single witness, even though he may not be corroborafced by any other evidence. this position was clearly indicated by their lordships of the privy council in mohamed sugal essa mamasan ber alalah v. 12. for all these reasons, i am not satisfied that the conviction of the appellant by the court below was correct and i, therefore, allow the appeal, set aside the conviction and sentence passed on the appellant and acquit him.mushtaq ahmad, j.1. one taqi mirza, aged 18 years according to the first information report, appeals against iliad conviction under section 807, penal code and sentence of three years' rigorous imprisonment by the learned sessions judge of allahabad.2. the occurrence had taken place at 6-45 p. 1$. on 8th november 1946, in mohalla nai basti, allahabad city. a report of the incident was lodged by one chhotelal ahir, a milk yendor, at the kotwali police station at 7 p. m. the bame evening, in which the appellant and another 'young muslim were mentioned as his assailants.3. the allegations in the said report were that, when chhotelal, after supplying milk, was returning from muthiganj to his house and had reached a place known as the 'tuta pull' (damaged culvert) in mohalla nai basti, two muslims, both aged 18 years, burrounded him, that one of them, namely the appellant, attacked him with a knife, that the appellant, whom he knew, lived in the muslim league office of the mohalla and that there was no one except an hair who had seen the incident, that man being one jagannath.4. i may mention at once that jagannath abir though examined in the court of the committing magistrate, was only tendered by the prosecution for cross-examination in the court of session. he did not say that he had identified the assailant of chhotelal. so far as the appellant is concerned he clearly said that he had known ''him from his childhood. it is obvious that, if he had seen the appellant attacking chhotelal, he must have named the appellant as such.5. the appellant's conviction was based entirely on the evidence of the informant chhotelal. the prosecution had no doubt examined, besides jagannath two other persons, bachchu and eishori also in the court of the committing magistrate but they merely tendered them in the court of session for cross-examination and the accused refused to cross-examine them. they have, therefore, to be eliminated from our consideration altogether.6. as regards the value of the uncorroborated testimony of chhotelal, the informant, two questions arise, one of fact and the other of law the question of fact is whether, on the state, mont he made, he was rightly believed by the learned sessions judge that he had really identified the appellant to have inflicted a knife injury on his shoulder. the question of law is whether, assuming that chhotelal's evidence, on the face of it, was not open to any question, it would be in consonance with the rule of practice and prudence to accept his evidence in the absence of any corroboration. i would deal with the first question first.7. it is true that in the first information report, which had been made only fifteen minutes after the incident, chhotelal had mentioned the appellant by name. in his evidence, however, he admitted that, after the incident he had met the police guard and told them that he knew the assailant. nonetheless, he never mentioned his name to them. chhotelal admits that he knew the appellant from the latter'a childhood, that he also knew his father and also that the latter was a respectable man in the locality. he presumab-ly knew the appellant's name also. if this is a fact, it is highly surprising that he should not have mentioned the same to the police guard whom he had met soon after the incident. the eotwali is at a distance of over a mile from the scene of the occurrence. he was taken by the guard from that place to the kotwali. indeed, one may expect that the interval of fifteen minutes that had elapsed prior to the making of the report had been mostly occupied in chhotelal's covering the distance upto the police station along with the police guard. i cannot imagine that, knowing his assailant from his childhood and knowing something about his father and status also, he should not have given the least indication of his assailant's identity to the police all the time he was with them, until he reached the kotwali. this is consistent only with the position that chhotelal had not the slightest idea as to who had attacked' him and that the idea of naming this particular man at the police station, occurred to him immediately before he lodged the report. chhotelal knew that the appellant was connected with the muslim league office and was, in fact, living there, the period then was one of extreme communal tension. it is quite conceivable that not knowing his assailant in fact, he named the appellant under an honest impulse born of a shrewd suspicion against the appellant because of his association with a body for which toe did not entertain any respect whatsoever.8. further, i find that, while ohhotelal stated that he was only at a distance of five or six paces in front of jagannath, the latter deposed that chhotolal was going 50 or 60 paces ahead of him. both the statements could not be true at the same time. apart from this contradiction, affecting the evidence of jagannath, which, as i have already pointed out, wag wholly useless on the point of the identity of chhotelal's assailant, it also damaged the evidence of ohhote. lal himself at least on the point of the relative position of these two men from each other, when they were proceeding on the road that partionlar evening. chhotelal may not have spoken the truth.9. again mr. niaz ullah khan, magistrate, p.w. 1, stated that, when be had gone to the appellant's house and called him, the latter came out at once and that he (the magistrate) did not notice any confusion or disturbance on his face. this statement positively negatived the version given by chhotelal that the appellant had been actually dragged out by the police from his house and not merely called out, when the magistrate went to call him. this also shows that chhotelal was anxious to introduce an element of exaggeration and i necessary, even of falsehood into the case. all these factors have tended to influenoe my mind against the veracity of the evidence given by chhotelal, and i do not think it safe to rely upon it in this communal case.10. on the second question the position is fairly clear. it cannot be denied that, as a pure legal proposition, a court can convict a person even on the uncorroborated testimony of a single witness just as it can convict him on such testimony of an accomplice, in england, no doubt, this rule has not been followed in certain classes of criminal proceedings, for instance, in oases of perjury. but in india the rule is well settled that a court can legally base the conviction of an accused on the statement of a single witness, even though he may not be corroborafced by any other evidence. nonetheless, even in india, courts of justioe have always insisted on the corroboration of the evidence of the only witness examined to prove the charge, whatever be the material affording that corroboration. this has been done not as a matter of law but purely as a matter of practice and prudenoe. although it has been said that 'evidence has to be weighed and not counted' so as to require at least two witnesses to support the charge, in actual practice it has been laid down that corroboration must always be sought to justify the conviction of an accused on the basis of the testimony of a single person. this position was clearly indicated by their lordships of the privy council in mohamed sugal essa mamasan ber alalah v. the king a.i.r. (33) 1946 p.c. 3 : 322 i.o. 304, in which inter ails the following observation was made :it is a sound rule in practice not to act on the uncorroborated evidence of a child whether sworn or unworn, but this is a rule of prudence and not of law.11. the points, which i have mentioned as affecting the credibility of the evidence of chhotelal, would make it eminently desirable in the present case that his statement, not being corroborated by any other material, should not be accepted, liven if that evidence was not open to challenge, i would have been loath to affirm the conviction of the appellant only on its basis in the absence of any corroboration thereof.12. for all these reasons, i am not satisfied that the conviction of the appellant by the court below was correct and i, therefore, allow the appeal, set aside the conviction and sentence passed on the appellant and acquit him. the appellant is on bail. he need not surrender.