NESARGI, J. ( 1 ) IN this appeal, the appellants who are accused Nos. 1 and 2 in SC No. 110 of 1980 on the file of the Addl. Sessions judge, Bijapur, have challenged the legality and correctness of the conviction and sentence passed on them. They have been convicted for, each one of them, having committed an offence punishable under S. 302 of IPC read with S. 34 of IPC and sentenced to undergo imprisonment for life. ( 2 ) THE deceased is one Bapu, the eldest brother of the two appellants accused. PW 2 Appasaheb is another elder brother of the accused. PW 3 Channarawwa and pw 10 Melappa are the parents of the accused, PW 2 and the deceased. PW 4 susalawwa is the wife of the deceased. These persons and PWs 5 to 9 and 11 are the residents of Bableshwar, in Bijapur district. There is a police station in bableshwar. PW,s 12 to 15 were attached to that police station. PW 16 Hanamant and PW 17 Fakirappa were the Circle Inspectors of Police of Bijapur Rural Police station within whose jurisdiction the bableshwar Police Station lies. The Prosecution case is that about two years prior to the date of incident which is 30-7 1980 (5 PM) there was partition in the properties belonging to the family of pws 10, 3 and their sons six in number. The accused persons were given to wasting and squandering money. About 15 days prior to the incident, the deceased commenced working in the land of accused no. 1 as directed by PW 10. Accused No. 1 protested. ( 3 ) AT about 8 AM on 30-7-1980, the deceased took coolies to the land of accused No. 1 and commenced plucking the cotton raised by accused-No. 1. PW 3 saw accused Nos. 1 and 2 go towards the said land She asked her husband PW 10 to go to the land and "prevent any untoward happening. PW 10 accompanied by one Siddararnappa (not examined) went to that land and found that the accused and the deceased were quarrelling. PW 10 reprimanded his sons. The accused then went into a neighbouring land. PW 7 basappa who has his land adjacent to that land was present in his land. PW 10 accompanied by one Siddararnappa (not examined) went to that land and found that the accused and the deceased were quarrelling. PW 10 reprimanded his sons. The accused then went into a neighbouring land. PW 7 basappa who has his land adjacent to that land was present in his land. PW 10 requested PW 7 to keep an eye on these persons lest they may quarrel over again and something undesirable might come out of it. Nothing happened further on. After taking food the deceased went towards the garden land of the accused. He was accompanied by one Gurappa (not examined ). When they were near Marawwa temple gurappa went away. PW 8 and others were sitting chitchatting on the pial of Marawwa temple. Both the accused came there being armed with axes. Accused No. 2 assaulted the deceased on his back by means of the axe he carried. The deceased ran crying to pw 8. PW 8 tried to separate the accused and the deceased. He separated the accused and the deceased and while doing so he asked the deceased to run away. PW 8 and one Ammanna (not examined) held the hands of both the accused per. sons, One Yellappa (not examined) also came there. At that time, Accused No. 1 slapped on the face of PW 8 and then both the accused ran away towards Harijan keri. The deceased went to his house, but returned little while thereafter being armed with a babul stick. On coming to the place in front of Marawwa temple he began to shout at the accused and abused at the accused. It appears that the accused beard the shouts and abuses hurled at them by the deceased and came back from the Harijan Keri. Accused No. 1 dealt an axe blow on the left hand of the deceased while accused No. 2 held the deceased. Accused No. 1 thereafter dealt axe blows indiscriminately on the person of the deceased while accused No. 2 was standing and witnessing the assault. PWs 2 and 3 appeared there. Thereupon the accused ran away leaving MO 1 the axe at the spot. PW 2 went to the police station in bableshwar at 5-30 PM. PW 13 Yellappa, head Constable, was the Station House officer. PW 2 gave information which was reduced to writing as per Ex. P 5. PWs 2 and 3 appeared there. Thereupon the accused ran away leaving MO 1 the axe at the spot. PW 2 went to the police station in bableshwar at 5-30 PM. PW 13 Yellappa, head Constable, was the Station House officer. PW 2 gave information which was reduced to writing as per Ex. P 5. PW 13 registered crime No. 71 of 1980 and issued first information report Ex. P 16. He went to the spot, held inquest proceedings over the dead body of the deceased and after the inquest he recorded the statements of PWs 3, 4, 8 and CW 11 Yellappa. PW 15 Vishwanath, Sub-Inspector of police, reached the spot at night and took over investigation from PW 13. He tried to trace the accused persons, but they were absconding. By about 8 AM on 31-7-1980 the then Circle Inspector of Police namely pw 17 Fakirappa reached there and took up investigation from PW 15. By 3-9-1980 the investigation changed hands from one circle Inspector of Police to the other as and when the Circle Inspectors of Police were sent for training or transferred, Ultimately, on 3-9-1980, PW 15 Sub Inspec- tor apprehended the accused at Dundagaon in Maharashtra State. He produced them before the Circle Inspector of Police, PW 16 who arrested them on 4 9-1980. ( 4 ) IT is also the prosecution case that during investigation one Neelakanta, CW 16, gave information to the Circle Inspector of Police that an axe was lying in ' samani in his land and therefore that axe which is MO 2 was seized and sealed. It may be stated here itself that both the axes have been found to be stained with human blood. ( 5 ) IT does not admit of any dispute that bapu, the elder brother of the accused persons was done to death by about 5 PM on 30-7-4980. The evidence of Dr. Nagappa PW 1 who conducted the post mortem examination over the dead body of the deceased is conclusive on this aspect. The defence also has not disputed this fact at any stage in this case. The evidence of pw 15 that the dead body was lying on tignibidari Road near Marawwa temple in Bableshwar and the evidence of the panchas to the inquest proceeding held by PW 13 and the fact that blood stained earth etc. The defence also has not disputed this fact at any stage in this case. The evidence of pw 15 that the dead body was lying on tignibidari Road near Marawwa temple in Bableshwar and the evidence of the panchas to the inquest proceeding held by PW 13 and the fact that blood stained earth etc. were seized from the spot and MO 1 was found lying near the dead body at that place establish that Bapu, the deceased, was done to death on that day at that place. ( 6 ) THE prosecution has placed reliance on the eye witness account furnished by PW 2 appasaheb, the cider brother of the accused, PW 3 Chanarawwa, the mother of the deceased, PW 4 Susalawwa, the wife of the deceased, PW 8 Mallappa who has his kirana shop near the spot, PW 9 Arjun who had gone to that place for making purchase at the time of the offence, PW 10 melappa, the father of the accused and the deceased. It has also placed reliance on the evidence of PW 11 Chandran in regard to the extra-judicial confession made by the accused. ( 7 ) NONE of these witnesses have supported the prosecution case, They did not stick to wha't the prosecution has claimed as having stated by them under S. 162 of Crl. PC during the investigation. The Prosecutor took permission of the court fo-putting leading questions and cross-exar mining these persons as provided by S, 154 of the Evidence Act. He has elicited certain contradictions and omissions in the course of the cross-examination of PWs 2, 3, 4, 8, 9 and 10. He has not at all cross-examined PW 11. The cross-examination made by the public Prosecutor by virtue of S. 154 of the Indian Evidence Act consists of only one question. He has simply asked each one of the hostile witnesses as to whether that witness had stated as per the whole of the statement made before the police and the whole statement has been marked by the Addl. Sessions Judge. It is needless to observe that this is not the way how S. 154 of the Indian Evidence Act lays down. Sessions Judge. It is needless to observe that this is not the way how S. 154 of the Indian Evidence Act lays down. ( 8 ) IT is clear that a particular portion of the statement must be read over and explained to the witness and the witness be asked whether he has stated accordingly in his previous statement legally recorded by the authority empowered to do so, in this case the concerned Police Officer investigating in to the offence. Marking of the whole of the statement is not contemplated under s. 145 of the Indian Evidence Act. That lacuna has been over-looked by the Addl. Sessions Judge, despite the state of evidence being as narrated in the preceding paragraph, the sessions Judge has proceeded to convict the appellants on the basis of a theme of his own. That theme is enunciated by him in paragraph 17 of his judgment as follows :". . . . But what remains for the Court to see Ss, the offence committed under penal Code is an offence committed against the State and the State should safeguard the interest of its citizens by the offence perpetrated against them and this object in view the offence under penal Code is dealt by the State directly by appointing the Public Prosecutors at the cost of state exchequer which is nothing but the money paid by the citizens in various forms to administer the law and to provide safeguard to them. It is not a civil litigation wherein the parties affected individually will tend to give a go bye to their cases with an understanding of their act and any loss or defeat occasioned is only to an individual. When a man of influence monetarily and other way will commit any heinous offence of doing away with the life of an individual and by his influence and money he will be able to purchase the prosecution witnesses to escape the wrath of law and make the law as a mockery and in that predicament what is the duty of the Court which has been established to administer the law to that effect to punish the delinquent and release the innocent for the offences levelled against them. It is true that this court is conscious about the Evidence act and other Acts connected to prove the act of a delinquent but when a deliberate attempt was made to make the law impotent and ineffective with extra legal approaches, then what is the power of the Court? Is the Court should sit as a dumb witness witnessing the gimmicks played by the witnesses to make the law as ineffective or it should enter the field of discretion which is wide of giving to the Judicial Officers to exercise the discretion such as the present one. Keeping this object in view, forgetting the technicalities and taking the realities of life, this Court will focus its attention to the circumstances of the whole case as put by the prosecution". ( 9 ) THEREAFTER, the Addl. Sessions Judge has, in the subsequent paragraphs, narrated the evidence of PW 2 and the complaint ex. P 5 and P 5 (a) the contradiction, PW 3 and her statement before the police as per Ex. P 6, PW 4 whose evidence takes the prosecution case neither here nor there, pw 8 and his statement before the police as per Ex. P 12, PW 9 and his statement before the police as per Ex. P 13, PW 10 and his statement before the police as per ex. P 14 and the evidence of PW 11 and his statement before the police as per Ex. P 15. ( 10 ) IN paragraph 25, which follows the aforementioned, he has put forth his approach as follows :-"25. Since the direct testimony to prove the prosecution case has failed due to the non-cooperation of the witnesses, now this Court has to rely on the circumstances of the whole case leading from the complaint until the arrest of the accused". In the next paragraph he has narrated the circumstances of PW 2 having gone to the police station at 5 30 PM and lodging information as per Ex. P 5 and based his conclusion on the evidence of PW 13, though PW 2 has denied having narrated as per Ex. P 5. In the very paragraph he has narrated another circumstance namely examination of certain witnesses during inquest and immediately after the inquest. In the next paragraph viz. P 5 and based his conclusion on the evidence of PW 13, though PW 2 has denied having narrated as per Ex. P 5. In the very paragraph he has narrated another circumstance namely examination of certain witnesses during inquest and immediately after the inquest. In the next paragraph viz. paragraph 27, he has posed a question as follows :-"now the question arises is whether a conviction will lie only on the basis of the statements recorded by the police under S. 162 of the Crl. PC and the evidence of investigation authorities that these statements have been recorded as stated by the witnesses ?" he has then reproduced S. 162 of Crl. PC and observed that the objects of S. 162 of crl. PC was to see that the accused might not be prejudiced in any way by the improper use of such statements recorded loosely or inaccurately and to see that the accused are protected against over jealous police officers and untruthful witnesses and further to encourage the free disclosure of the information or to protect the person making the statement. In the next paragraph he has adverted to S. 145 of the indian Evidence Act, and S. 154 of the indian Evidence Act. According to him, wide discretion has been "allowed to the courts in giving permission under S. 154 of the Indian Evidence Act even on perusing the police statements and therefore, it follows- to put it in his own words-'the discretion given under S. 154, as the discretion vested in the trial Courts and where this discretion was exercised after perusal of the statements given under S. 161 Crl. PC to the Police if the circumstances warrant, the Courts can place reliance on the statements rather than the oral evidence given by the parties'. After taking this view he has taken into consideration the police statements and the circumstance of a bscon- dance of the accused persons and thereafter recorded conviction. ( 11 ) WHAT the Addl. Sessions Judge has failed to see while he has reproduced S. 162 of Crl. PC is the portion of the section which appears in the proviso and reads as follows : -"162. . . . . , and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by S. 145 of the Indian Evidence Act 1872. . . PC is the portion of the section which appears in the proviso and reads as follows : -"162. . . . . , and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by S. 145 of the Indian Evidence Act 1872. . . " (Underlining (italics) is ours ). ( 12 ) THERE is a catena of decisions laying down the principle in Jaw that the material elicited as contradiction by use of S. 145 of the Indian Evidence Act is not substantive evidence. Even in regard to the statement recorded under S. 164 of Crl. PC by authorised Magistrates, it has been held accordingly, in Mamand v. R (1), Brij bhusan v. R (2), Bhuboni v. R (3) and so on. Therefore, the fact that the contradictions are proved through the investigating officers though the witnesses have denied having made such statements, does not translate the contradictions into substantive evidence. Unless there is substantive evidence, it cannot be acted upon legally, particularly to base a conviction merely because the judge feels gratuitious indignance on the 'gimmicks' (the word used by the Addl. Sessions Judge himself) of the prosecution witnesses and accepting such righteous indignation, feels helpless, it cannot be held in Jaw that the prosecution has succeeded in establishing the charge or charges against the accused though there being no substantial legally acceptable evidence against them. Righteous indignation against the prosecution witnesses or moral conviction of the Presiding Officer cannot be of any use for convicting the accused persons and sentencing them. In view of the aforementioned reasons, we hold that the prosecution has failed to establish the charge against the appellants-accused and therefore, allow the appeal, set aside the conviction and sentence passed on the appellants-accused by the addl. Sessions Judge, Bijapur, in Sessions case No. 116 of 1980 and acquit them. Their bail bonds are discharged. --- *** --- .TEXT OF JUDGMENT (February 24, 1982) 1982 (TLS)1012159 1982-Kantlj-1-414 V. B. PUROHIT Vs. GADAG and JAMBDKESHWARA, LQRS. M. P. CHANDRAKANTARAJ, J. ( 1 ) THIS is an application under S. 466 of the Companies Act, 1956, read with S. 518 thereof. The applicant is a share holder of M/s. Nagargali Cement Company Ltd. The said Company was incorporated on 11-4-1963 and it has its registered office at vidyanagar, Hubli. GADAG and JAMBDKESHWARA, LQRS. M. P. CHANDRAKANTARAJ, J. ( 1 ) THIS is an application under S. 466 of the Companies Act, 1956, read with S. 518 thereof. The applicant is a share holder of M/s. Nagargali Cement Company Ltd. The said Company was incorporated on 11-4-1963 and it has its registered office at vidyanagar, Hubli. ( 2 ) THE authorised share capital of the company is Rs. 1 crore divided into 10 lakhs equity shares of Rs. 10 each. The subscribed capital of the Company is Rs. 3,80,280 though only a sum of 76,056 equity shares have been issued. But the call made so far being only in the sum of rs. 5. The subscribed capital which is only half the value of the subscribed capi of Rs. 72,292 was treated as allotment money and is stated to be due from the shareholders other than the Directors of the company. Thus the subscribed capital of the Company is only Rs. 3,07,988. ( 3 ) THE Company in 1966 acquired the lease of limestone quarry in an extent of 255 acres of land from the Government. This was with the object of carrying out the main objects of the Company and establish a Cement factory. The applicant was not able to get the necessary finances in spite of the best efforts of the Directors and therefore at the general body meeting held on 8-3-1980 the Company moved for voluntary winding up the Company. The resolution was passed at that meeting. The resolution was to the following effect. "resolved that the Company be wound up voluntarily". The same meeting resolved to appoint m/s. Gadag and Jambukeswara, Chartered accountants, Hubli, as the Liquidators. The Company had no other assets than the mining lease and the office furniture. The office furniture has since been sold by the liquidator and all the creditors have been paid. It has been asserted by the applicant that the voluntary winding up has reached only this stage and no more. ( 4 ) THE applicant along with some other share holders decided to revive the Company. Pursuant to that decision, an extraordinary general body meeting of the share holders of the Company was held at the liquidator's Office on 14-10-1981 at hubli. ( 4 ) THE applicant along with some other share holders decided to revive the Company. Pursuant to that decision, an extraordinary general body meeting of the share holders of the Company was held at the liquidator's Office on 14-10-1981 at hubli. In the said meeting it was unanimously resolved that the Company be revived for establishing a Cement plant at Nagargali area for the manufacture of cement and that this Court should be approached with a petition under Ss. 518, 466 and other applicable provisions of the companies Act, 1956, for obtaining a permanent stay of the voluntary winding up proceedings. In these circumstances, the prayer is made to pass an order staying all further proceedings in respect of the winding up of the Company-M/s. Nagargali cement Company Ltd. , and further to issue directions for the revival of the Company and grant such other further relief as is just. ( 5 ) HAVING regard to the stage at which the winding up proceedings bad reached, in that, it had not completed the required formalities including the dissolution of the company, it was suggested that the share holders themselves could revive the Company and prevent the further proceedings in the winding up proceedings. But then the learned Counsel for the claimant has drawn my attention to the decision of the delhi High Court in case of Dimples Pvt. Ltd. V. Registrar of Companies (Delhi) (1 ). In that case in somewhat similar circumstances the voluntary liquidator of the company involved therein himself filed the application for staying further proceedings having regard to the decision of the share holders to revive the Company before it was actually dissolved. The learned judge while allowing the petition has the following to say. "i find that the position taken up by the petitioner is consistent with a large number of reported cases. In re-Punjab co-operative Bank Ltd. , AIR 1919. Lah. 305, it was held under the old Act that the Court could stay a voluntary winding up. In In the matter of East India cotton Mills Ltd. , (1949) 19 Coy. Cas 61 ; AIR 1949 Cal. 69, S. R. Das, J. , (as he then was) examined the principles on which a stay of the winding up could be ordered and found that it was analogous to the jurisdiction exercised while rescinding a receiving order or annulling adjudication in bankruptcy. Cas 61 ; AIR 1949 Cal. 69, S. R. Das, J. , (as he then was) examined the principles on which a stay of the winding up could be ordered and found that it was analogous to the jurisdiction exercised while rescinding a receiving order or annulling adjudication in bankruptcy. There are some English cases also in which a voluntary winding up was stayed. Examples of these are : In re South Barrule state Quarry Co. (1869) LR 8 Eq. C 688 in re Titian Steamship Co. , (1888) WN 17 and many other cases. It has been held in such cases that mere consent of the parties is not enough but the Court should consider all the circumstances. A leading judgment on the principle on which the Court should act while ordering stay is, In re Talescripter Syndicate ltd. , (1903) 2 Ch. D 174- In that case, the Court detailed various points for and against ordering a stay of the winding up and decided that there was no ground for staying the winding up on the facts as they were. The Court, however, observed that, at a later date, the Official receiver could report whether all the liabilities and creditors and contributories had been settled and the debts had been paid and whether the members were prepared to reduce their share capital by surrendering and cancelling their bonus shares, then the Court would "as at present advised be prepared to stay the proceedings in the winding up". Thus there is no doubt that the Court does possess the power to stay a winding up even when it is a case of voluntary winding up. There must, however, be facts juscifying the stay". Pennington in his Company Law, fourth Edn. , at page 709 has this to say :"once a resolution for voluntary winding up has been passed, the members of the Company cannot rescind it and restore the directors' powers to them so as to enable the Company to carry on its business as before. But an application may be made to the Court to stay the winding up in the same way, and with the same consequences, as if the company were being wound up compulsorily". But an application may be made to the Court to stay the winding up in the same way, and with the same consequences, as if the company were being wound up compulsorily". ( 6 ) AS pointed out by the learned Judge of the Delhi High Court, the only impediment that may be in the way of the court to grant the prayer for permanent stay of the voluntary winding up proceedings can only be the absence of justifiable reasons. In the instant case, it is pointed out in the pleadings that the Company has a lease of limestone quarry with great potential and has estimated the limestone for quarrying is in the region of 27 million tonnes with the estimated reserves of 50 million tonnes. It is also common knowledge that increased production of cement is in national interest. . If the share holders have resolved to revive the Company and make one more effort to start a cement factory opportunity should not be denied to them. ( 7 ) IN these circumstances, accepting the assertions made for the applicant who has been duly authorised at the general body meeting held on 14-10-1981 to present this application, the prayers in this application are granted, the voluntary winding up proceedings at whatever stage they are, are hereby stayed absolutely. Consequently the share holders are free to elect a new Board of Directors and do all that is necessary in order to achieve the object for which the Company has been incorporated. ( 8 ) BEFORE passing this order, the Counsel for the Official Liquidator has been heard. ( 9 ) IN the light of the order passed as above, Company Application No. 1838/1981 does not survive for consideration separately. --- *** --- .