M. L. Jain ( 1 ) TWO persons Murari Lal and Inder Singh were challaned under Sections 365 and 392 Indian Penal Code Inder Singh absconded during trial. The appellant Murari Lal was convicted by the learned Additional Sessions Judgeon 16-4-1981 under Section 392 read with Section 397 I. P. G. By a separateorder of the same date, he was sentenced to rigorous imprisonment for sevenyears. He was acquitted of the charge under Section 365 because there wasno evidence to show that Murari Lal had an intention to kidnap Rakeshkumar in order to secretly and wrongfully confine him. ( 2 ) BRIEFLY, the case of the prosecution is that Jagdish Prasad Mittalcomplainant (PW 4) of Mittal Metal Corporation along with Rakesh Kumarsinghal (PW 9) went from his shop in Sadar Bazar to M/s Bhanwar Lal andbros. Pataudi House, Darya Ganj, Delhi, in an Ambassador car DHG 852driven by accused Inder Singh. Jagdish Prasad collected Rs. 50,000. 00 fromthe said firm and put them in two brown paper bundles. He handed overthe bundles to Rakesh Kumar and asked the driver to carry him to his house. This occurred at about 12. 45 pm. on 20-8-1979. After sometime Jagdishprasad checked at his house but found that Inder Singh and Rakesh Kumarhad not reached. At about 3. 20 p. m. he approached the Darya Ganj Policestation. His statement was recorded there in daily diary at No. 81-B (copyex. Public Witness 19/a) which was forwarded to Jama Masjid Police Station aspataudi House fell into their area. It was delivered there at 4. 20 p. m. videex. Public Witness 17/a (DD No. 17 P. S. Jama Masjid ). It was then marked for further action to Raja Ram S. I. (PW 17 ). Meanwhile, Jagdish Prasad receiveda message from Shanti Lal proprietor of M/s Bhanwar Lal and Bros. residentof Anand Lok, New Delhi, that his car DHG 852 was lying parked outsidehis house. The car was locked and its keys were placed on the front seat. There was no sign of struggle inside the car. The car was seized, vide Memoex. PW3/a. Raja Ram (PW 17) recorded the statement of Jagdish Prasadex. Public Witness 4/a at 7. 30 p. m. and sent it to the Police Station where FIR Ex. PW10/a was recorded. Rakesh Kumar (PW 9) lodged a report with the Policestation Chanakya Puri at 8. 40 p. m. Ex. The car was seized, vide Memoex. PW3/a. Raja Ram (PW 17) recorded the statement of Jagdish Prasadex. Public Witness 4/a at 7. 30 p. m. and sent it to the Police Station where FIR Ex. PW10/a was recorded. Rakesh Kumar (PW 9) lodged a report with the Policestation Chanakya Puri at 8. 40 p. m. Ex. PW9/a which bears the date20/21-8-1979 at top of it, vide DD No. 18-A. In this report name of the driveris Kishan (not Inder Singh ). On 23-8-1979, his statement was also recordedunder Section 164 Cr. P. G. which has been put to Rakesh but not exhibited. The further case of the prosecution is that the driver took the car on to Ranijhansi Road and stopped it at some place telling Rakesh that he was going tobring tyre tubes. He returned 3-4 minutes thereafter and started the car. As soon as he did so, the accused Murari Lal came and said that the repairedtyre was at his shop and occupied the front seat near the driver. The driverthen drove the car to some lonely road. Murari Lal then jumped over tothe back seat, whipped a knife, placed it at his waist and took the bundles ofcurrency notes from him. Thereafter Rakesh Kumar and Murari Lal bothcame on the front seat. The driver then gave him two currency notes of Rs. 5. 00 each (Ex. P9 and Ex. P10) and dropped him at a road junction at Satyamarg. Murari Lal and the driver drove away with the car and the bundles. Rakesh Kumar went to Sadar Bazar, but he could not find the place of thecomplainant. He then came to Darya Ganj, but failed to locate the placewhere the bundles were given to him. He then made his way to Connaughtplace, took up a bus and reached Greater Kailash to the place of Rajeshkumar Garg where his brother Mahinder (PW 2) was married. He narratedthe incident to the mother-in-law of his brother. She telephoned and calledher husband R. K. Garg. He came and took him to Pahari Dhiraj anddarya Ganj, but failed to verify anything. He then made the aforesaidreport at police station Ghanakya Puri, Ex, 9/a. In this report the policeofficer recorded that the whole story was suspect and needed verification. Hedespatched Rakesh from the Police Station. But Raja Ram (PW 17) got athim. He came and took him to Pahari Dhiraj anddarya Ganj, but failed to verify anything. He then made the aforesaidreport at police station Ghanakya Puri, Ex, 9/a. In this report the policeofficer recorded that the whole story was suspect and needed verification. Hedespatched Rakesh from the Police Station. But Raja Ram (PW 17) got athim. Rakesh produced before the Investigating Officer Raja Ram the twocurrency notes (Ex. P 9 and Ex. P 10) given to him by Inder Singh, vidememo Ex. Public Witness 4/d of 2-8-1979. ( 3 ) ON 26-8-1979, Investigation Officer Raja Ram (PW 17) got asecret information that Murari Lal was involved in the crime and was tocome to the Paharganj bridge on that day. So, the Police along with Rakeshand Jagdish and other persons posted themselves at the Railway over-bridge,paharganj and were successful in apprehending the accused Murari Lal atthe pointing out made by Rakesh. Eight currency notes of Rs. 10. 00each (Ex. P1 to Ex. P8) were recovered from him, vide seizure memo Ex. PW4/b. Murari Lal made a disclosure statement Ex. PW4/g that money was kept byhim with his relative Thakurdas at Govindpuri. He took the police party tothe house of Thakurdas and at his asking Thakurdas (PW 3) produced thebag from which currency notes worth Rs. 16,125. 00 were recovered, vidememo Ex. Public Witness 4/c. Meanwhile, Inder Singh appears to have gone to Agraand purchased a car No. USA 2597 from Muzaffar Khan (DW 13 ). He wasarrested on 8-9-1979 and a sum of Rs. 8600. 00 was recovered in cash from him. The car USA 2597 was also seized. He also purchased a wrist watch) acycle and some clothes. ( 4 ) THE police after investigation challaned Inder Singh and Murarilal. Inder Singh then absconded. Murari Lal was convicted as aforesaid. The defence suggested to the prosecution witnesses was that Jagdish Prasadand Rakesh Kumar had gambled and lost the money to him. There was noother way of quick recovery of the money except to concoct a false case ofabduction and robbery. But in his statement under Section 313 Gr. P. G. theaccused Murari Lal did not take up this defence. He simply denied theprosecution case as incorrect and led no evidence in defence. ( 5 ) SEVERAL infirmities and discrepancies in the prosecution story werepointed out by Mrs. But in his statement under Section 313 Gr. P. G. theaccused Murari Lal did not take up this defence. He simply denied theprosecution case as incorrect and led no evidence in defence. ( 5 ) SEVERAL infirmities and discrepancies in the prosecution story werepointed out by Mrs. Usha Kumar, the learned counsel for the appellant (legal aid): (1) Three Police Reports :it was urged by her that the whole situation was quite confusing inasmuch as three reports in the police were lodged one (Ex. Public Witness 19/a) at 3. 20p. m. at Darya Ganj Police Station, another (Ex PWIO/a) at Jama Masjid at7. 30 p. m. on 20-8-1979 and the third (Ex. Public Witness 9/a) at Ghanakya Puri Policestation at 8. 40 pm. either on 20-8-1979 or 21-8-1979. There is no reasonwhy the report Ex. Public Witness 19/a be not treated as FIR. And the subsequent reports are inadmissible under Section 162 Cr. P. G. Yet, they can be used forshowing the conduct of the prosecution witnesses Jagdish and Rakesh undersection 8 of the Indian Evidence Act. The versions contained in thethree reports do not tally. (2) Employment of Rakesh:it wag the case of Rakesh Kumar (PW 9) that Nipil Kumar Goel (PW 1) had brought him to the house of Mamchand, brother of Jagdish atabout 19. 15 a. m. on 20-8-1979 by train from their village in U. P. Jagdishprasad immediately offered him a job but Rakesh Kumar wanted time as hewas not prepared for this sudden offer but Jagdish Prasad did not listen tohis protestation and immediately kept him and carried him in the manneraforesaid, vide Ex. Public Witness 9/a. In his deposition in the court he said that hehad not been employed by Jagdish Prasad before he was taken to Darya Ganj. Jagdish Prasad (PW 4) did not say in the examination-in-chief that Rakeshwas employed by him. It was in crow-examination that he said that Rakeshhad come for employment but the terms of salary had not yet settled. Thusthe very story of service of Rakesh is suspicious. (3) Was Rakesh new to Delhi ? :it was pointed out that the case of the prosecution is that Rakeshkumar was new to Delhi, but the same was not stated in the daily diary (Ex. PW 4/a, because he was not. Thusthe very story of service of Rakesh is suspicious. (3) Was Rakesh new to Delhi ? :it was pointed out that the case of the prosecution is that Rakeshkumar was new to Delhi, but the same was not stated in the daily diary (Ex. PW 4/a, because he was not. He came in the Barat of his brother to Delhiand his subsequent journeys from Satya Marg to Pahari Dhiraj, Darya Ganj,connaught Place and Greater Kailash belie that he was new to Delhi. Itwas pointed out that he was Science Graduate aged about 20 years. Thus,the air of innocence projected by or for him is without basil. (4) Relationship:in Ex. Public Witness 19/a it is mentioned that Rakesh Kumar was the son ofthe maternal uncle of Jagdish Prasad. This relationship was omitted fromthe FIR lodged at Jama Masjid. As per the Chanakya Puri report he wasintroduced by Nipil Kumar to Jagdish Prasad but no relationship was mentioned by him. Later on in his examination in the court Jagdish Prasad (PW 4) stated that he knew Rakesh because he was like a son of his maternaluncle. There being no relationship and no previous acquaintance, it is notpossible to believe that he will be employed immediately and also takenalong on an important mission. (5) Car and driver :though the impression created is that the car belonged to the complainant yet in cross-examination he said that the car was not registered in hisname. It is in the name of Jethanand of Janak Manufacturing Co. He has notsaid how he got it, but Jethanand (PW 8) said that he had given his car foruse to Jagdish in 1979. According to Ex. Public Witness 9/a, the driver was Kishan. However, according to Jagdish Prasad, his name was Inder Singh. He wasa tempo driver and was employed only a month before the occurrence. Hewas not his registered employee but was paid out of business funds. (6) Rs. 50,000-/:in Ex. Public Witness 4/a, Jagdish Prasad has stated that he had come to Daryaganj from Sadar Bazar to take payment. In his deposition, he said that herealised a sum of Rs. 50. 000. 00. No man of Bhanwar Lal and Bros. was produced, but two persons of Choudhri Metal Industries Ltd. a sister concern,both owned by S. M. Ghoudhri came, Chander Mohan (PW 1 1) prepared theledger Ex. Public Witness 5/c. Gash Register Ex. In his deposition, he said that herealised a sum of Rs. 50. 000. 00. No man of Bhanwar Lal and Bros. was produced, but two persons of Choudhri Metal Industries Ltd. a sister concern,both owned by S. M. Ghoudhri came, Chander Mohan (PW 1 1) prepared theledger Ex. Public Witness 5/c. Gash Register Ex. Public Witness 5/b and the voucher Ex. Public Witness 5;awere prepared by R. K. Varma (PW 5) of Bhanwar Lal and Bros. They showthe amount as loan but the ledger Ex. Public Witness 5/g does not. No agreement orpronote was executed and Jagdish Prasad has not said that the money wasborrowed by him, nor was the receipt proved by him. The receipt which issaid to have been signed by Jagdish Prasad does not contain the amount. Abare look of the ledger reveals that from January to August, 1979 two purchases of some goods were made by Jagdish Prasad from Bhanwar Lalbros. He made payments against them. The last is the debit entry or Rs. 50,000. 00 in question. This does not at all indicate that there had been verymany transactions between the parties so as to generate so much of confidenceas a huge amount would be advanced without any instrument capable ofenforceable in a court of law. The learned counsel for the accused, therefore,urged that the manner of giving and taking shows that the whole theory ofcollecting the amount from Darya Ganj is nothing but false and has been subsequently invented. (7) Handing over of money to Rakesh :jagdish Prasad (PW 4) deposed that he handed over the amount torakesh and told Inder that he be safely conveyed to house. He has beengiven Rs. 50,000. 00in the paper bags. He and driver left at 1. 45 p. m. butin the Darya Ganj report, it was stated that they left at 12. 45 p. m. and hechecked from his house at 1. 45 p. m. Rakesh (PW 9) deposed that he didnot know what was contained in the bundles. Jagdish Prasad did not tellhim that the bundles had currency notes. It is not in the natural course ofconduct that such a huge sum could be entrusted to a driver who was engaged only a month before and to a person who was not known earlier andwas not even employed and without telling him what he was carrying. Jagdish Prasad did not tellhim that the bundles had currency notes. It is not in the natural course ofconduct that such a huge sum could be entrusted to a driver who was engaged only a month before and to a person who was not known earlier andwas not even employed and without telling him what he was carrying. Theinitial doubts which the Chanakya Puri Police Officer entertained do stillpersist. (8) Where to carry :in Darya Ganj report it was said that Rakesh Kumar was directed tocarry the cash to office, while in the Jama Masjid report and the depositionsit was stated that Rakesh Kumar was sent to the house. The office and thehouse are not in the same premises and are a distance apart. Why couldthe complainant be not certain even on this small but an important detail,questioned the learned counsel for the appellant. Obviously, the details arebeing changed to suit the situation and conceal something which is true. (9) Recovery of car :the learned counsel for the accused then stated that the prosecutioncommenced with the case that the car was recovered from outside the houseof Shanti Lal but he was witheld and there is no one to corroborate that thecar was found in front of his house locked with keys inside. The memo ofrecovery of Ex. Public Witness 3/a does not mention that the car was recovered fromin front of the house of Shanti Lal, but instead it says that it was foundparked on the open main road in Anand Lok. It was taken in possessionalong with a bunch of four keys kept in a purse like thing. It is not statedhow the car was opened. Why these contradictions ? It cannot be just bychance that the car should be parked near the house of the man who hadprovided money. The story of recovery of car is as mysterious as its ownership. (10) Place of occurrence and conduct of Rakesh :the charge mentions Filmistan as the place of occurrence but Rakeshstop short of it and only said that the accused joined them on the Ranijhansi Road. The story of recovery of car is as mysterious as its ownership. (10) Place of occurrence and conduct of Rakesh :the charge mentions Filmistan as the place of occurrence but Rakeshstop short of it and only said that the accused joined them on the Ranijhansi Road. The conduct of Rakesh Kumar is assailed as quite unnaturalbecause he did not care to shout when he was being taken in the car at thepoint of knife-noting that it was almost noon time in a busy area of Filmistan and he failed to raise an alarm when dropped at the place where evenrikshaws are available. He had been to Darya Ganj once by himself andlater along with R. K. Garg and instead of lodgingthe report at Darya Ganjpolice Station, the report is managed to be lodged by him next day at Ghanakya Puri Police Station. (11) Identification of Marari Lal :the police knew before hand that Murari Lal was involved in theoccurrence. They arrested him at the pointing of Rakesh. But his evidenceof pointing is inadmissible being hit by Section 162 Gr. P. C. In the absenceof identification in a test parade, the identification in the court made by himis of little value. (12) Disclosure statement and recovery :the disclosure statement of Murari Lal Ex. Public Witness 4/g is inadmissibleunless it led to discovery. Rakesh says that prior to the arrest of the accused,he was taken to Govindpuri by the Police. Why? It seems that the policealready knew where the money was lying and a fact already discovered cannot be discovered again. The statement, therefore, cannot be read againstthe accused. There is a difference also amongst the witnesses. Some saythakurdas was there at his house when the police went there with Murarilal while other say that he was called from neighbourhood. (13) Identification of the crime property :moreover, no identification of the noteg was made. Kirpal Singh (PW 12) did state that he initialled the notes he gave to Jagdish Prasad. Inthe court he identified his initials on five bundles of Rs. 10. 00each and twobundles of Rs. 20. 00 each, Ex. Public Witness 12/6 and Ex. Public Witness 12/7. There is no no evidence that these bundles contained the same notes which were recoveredfrom the house of Thakurdas. Inthe court he identified his initials on five bundles of Rs. 10. 00each and twobundles of Rs. 20. 00 each, Ex. Public Witness 12/6 and Ex. Public Witness 12/7. There is no no evidence that these bundles contained the same notes which were recoveredfrom the house of Thakurdas. (14) Knife:the knife has not been recovered in this case and the evidence ofrakesh Kumar is not satisfactory with regard to the use of knife. There isonly a suggestion of use of knife. No one knows the size of its blade andunless the size is known a knife cannot ordinarily be classified as a deadlyweapon within the meaning of Section 397 I. P. G. (15) Withholding of witnesses :the prosecution has withheld the material witnesses namely Shantilal and R. K. Garg. Inference should be drawn that if produced they wouldnot hav supported the prosecution version. Reliance was placed upon Ramranjau Boy v. Emperor, AIR 1950 Gal. 545. Submissions: ( 6 ) IT was finally urged by Mrs. Kumar that the prosecution evidenceis replete with material infirmities and discrepancies and, therefore, standsthoroughly and totally discredited. The prosecution appears to rely heavilyupon the disclosure statement (Ex. Public Witness 4/g) and the recovery of the currency notes from the house of Thakurdas, but in pursuance of this statementno new fact was discovered which was not already known to the police. Therecovery by itself cannot connect the accused with the crime. She reliedupon Kedar Nath Chakravarty v. State, AIR 1959 Gal. 280, wherein it washeld that the mere circumstances of a trunk which was proved to have beentaken away in the robbery having been recovered as a result of what theaccused has said to the police cannot connect the accused with any offenceunder Section 394- IPG. ( 7 ) SHE further urged that though the defence has led evidence toprove its case, but in view of the circumstances of the case and conduct ofrakesh Kumar and Jagdish Prasad, the defence that they lost money ingambling is not improbable but is rather plausible and there is no moreburden on the defence than to show this much. The accused, therefore,deserves to be acquitted. She attacked the disclosure statement and therecovery of currency notes as of no consequence or effect. She cited Jaffarhusaain Dagtagirv. The accused, therefore,deserves to be acquitted. She attacked the disclosure statement and therecovery of currency notes as of no consequence or effect. She cited Jaffarhusaain Dagtagirv. The State of Maharashtra, AIR 1970 SC 1934 , to urgethat where the accused had made a statement to the police that heknew where the stolen articles were and would lead them to the third personwho had them, the discovery of the articles with the third accusedwould be admissible in evidence under Section 27 only if the police hadno information about the complicity of the third accused with the crime. If an accused charged with a theft of articles states to the police 1 will showyou the articles at the place where I have kept them or i will show you theperson to whom I have given the articles and the articles are actually foundat such place or with such person, there can be no doubt that the informationgiven by, him led to the discovery of a fact, i. e. keeping of the articles bythe accused at the place or person mentioned. The discovery of the factdeposed to in such a case is not the discovery of the articles but the discoveryof the fact that the articles were kept by the accused at a particular place orwith a particular person. In the instant case the police had visited thehouse of Thakurdas prior to the arrest of Murari Lal as stated by Rakeshand that shows that the police already knew of the fact that Thakurdas hadgot the stolen articles, otherwise there was no purpose-none has been shown-in the police vistis prior to the disclosure statement. Therefore, there is nonew discovery of any fact rendering the disclosure statements admissiblewithin the meaning of Section 2 7 of the Evidence Act capable of providingcorroboration to the statement of Rakesh or independent evidence for conviction. Thimma v. The State of Mysore, AIR 1971 S. G. 1871, has warnedthat the courts have to be watchful against the ingenuity of the investigatingofficer in this respect so that the protection afforded by the wholesomeprovisions of Sections 25 and 26 of the Evidence Act are not whittled downby the mere manipulation of the record of the case diary. Thimma v. The State of Mysore, AIR 1971 S. G. 1871, has warnedthat the courts have to be watchful against the ingenuity of the investigatingofficer in this respect so that the protection afforded by the wholesomeprovisions of Sections 25 and 26 of the Evidence Act are not whittled downby the mere manipulation of the record of the case diary. It was furthersubmitted that even if one were to hold that money was recovered at the instance of the appellant, it was not in itself a proof of the guilt of the accusedbut is only a corroborative piece of evidence. In view of the material discrepancies in the evidence of Rakesh Kumar, he is not at all worthy of credit and, therefore, there remains nothing to which the discovery made undersection 27 of theEvidence Act can lend support. The guilt of the accusedhas to be adjudged not by the fact that a vast number of people believe himto be guilty but whether his guilt has beed established by the evidencebrought on record. Indeed, the courts have hardly any other yardstick ormaterial to adjudge the guilt of the person arraigned as accused : Kali Ramv. State of H. P. , AIR 1973 SG 2773. Therefore, a man cannot be convictedon the basis of suspicion or public belief or even the moral conviction of thejudge, but the guilt is solely required to be proved by evidence on record. In this case the discrepancies and infirmities do show that the occurrence has not been placed before the court in the manner it had occurred. There is considerable padding in the case. Every link in the chain of eventsis demonstrably improbable and doubtful. It cannot be said, therefore, thatthe guilt has been brought home to the accused beyond any manner of reasonable doubt. The prosecution evidence does not inspire confidence andit is unsafe to convict a man on the basis of such type of evidence. ( 8 ) IN the alternative, she submitted that in any case, it was not proved that the knife alleged to have been used for the commission of robberywas a deadly weapon. The accused, therefore, cannot be sentenced undersection 397. He can be punished only under Section 392 I. P. G. Theappellant has been in jail for over three years and four months by now anddeserves at least to be released on the sentence already so suffered by him. The accused, therefore, cannot be sentenced undersection 397. He can be punished only under Section 392 I. P. G. Theappellant has been in jail for over three years and four months by now anddeserves at least to be released on the sentence already so suffered by him. ( 9 ) I have considered over the arguments. There is no doubt that theonly important piece of evidence against the appellant is his statementunder Section 27, Evidence Act. Section 27 of the Evidence Act, 1872 runs likethis:section 27. How much of information received from accused may beproved: Provided that, when any fact is deposed to as discovered inconsequence of information received from a person accused of anyoffence, in the custody of a police officer, so much of such information,whether it amounts to a confession or not, as relates distinctly to thefact thereby discovered, may be proved. in respect of this section, in para 10 of Kotayya v. Emperor, AIR 1947 P. G. 67, the Privy Council laid down : (1) Normally, this section is brought into operation when a person inpolice custody produces from some place of concealment someobject such as a dead body, a weapon or ornaments said to beconnected with the crime of which the informant is accused andabout which the accused has given information. (2) It is fallacious to treat the fact discovered within the section asequivalent to the object produced. The fact of discovery embraces (a) the object produced, (b) the place from which the object isproduced, and (e) the knowledge of the accused in respect of both;and (3) The information given should distinctly relate to the aforesaidfact. It appears from the use of the word normally by the Privy Council inkotayya (supra) that it is not necessary that this section can be pressed intoservice only when some object is discovered because it mentions about thedisclosure of any fact and not of any objects. It follows that this section canbe brought into operation even where the accused does not or cannot himselfproduce the object. The words of Section 27 simply show that when evidenceis led that any accused was in the custody of the police and has given information in consequence whereof some fact is discovered, then that portionof the information which relates distinctly to the fact thereby discovered canbe proved. Therefore, what has to be seen is whether the discovery is inconsequence of the information. Therefore, what has to be seen is whether the discovery is inconsequence of the information. There is nothing in Section 27 that onlythat disclosure shall be admissible which is made at the instance (pointing) ofthe accused. It is just possible that the accused may give some informationand the police officer thereafter may discover that object of which he had noprevious knowledge, then though there has been no pointing by the accused,note. For whatever is said by the rent-note in writing, could beattributable only to the tenant who signs the rent-note. The consentof the landlord therefore cannot be in writing when he does notexecute the rent-note. The expression consent in writing used in proviso (b) to Subsection (1) of S. 14 is, however, used with a different purpose as statedabove. The emphasis is that it is the consent of the landlord, whichmust be in writing. It cannot, therefore, be construed loosely with aview to vittle down the emphasis on the authorship of the consentbeing that of the landlord. Such authorship may be proved eitherby the writing being in the hand of the landlord or being signed bythe landlord. It is not necessary for the purpose of this case to decidewhether the authorship of the consent of the landlord in writing canbe proved in some other way. It is sufficient for the purpose of thiscase to observe that a mere written offer by the tenant by way of rent-note, which was accepted orally by the landlord cannot amount to aconsent in writing of the landlord. " ( 10 ) THE aforesaid case was followed by S. S. Ghadha,j" in Raja Rantgogol v. Ashok Kumar, reported as 1976 DLT 34 . ( 11 ) I am in respectful agreement with the aforesaid two decisions ofthis Court and as such I have no option but to affirm the decision of the Rentcontrol Tribunal on this point. As regards the clause (d) of the proviso tosub-section 14, it was not disputed by the learned counsel for the appellantthat the appellant was not in possession of the premises and in fact, it standsadmitted in the written statement itself that the appellant is not residing inthe premises in dispute since the very inception of the tenancy. In view ofthis, the judgment of the Tribunal on this score has also to be affirmed. In view ofthis, the judgment of the Tribunal on this score has also to be affirmed. ( 12 ) FOR the reasons recorded above, I do not find any merit in thisappeal which is dismissed. However, in the circumstances of the case, thepartics are left to bear their own costs.