MASALTI versus STATE OF U. P

Val/ace and Co.(') was not intended to, and did not lay ~ Jown that in every case, cancellation of an agency resulted Gillandm A.rb1 in loss of source of revenue or that amounts paid to corn-thnot :nd :nd Co. pensate for loss of agency must be regarded as capital loss. ciT.

~ Gillandm A.rb1 thnot :nd :nd Co. ciT.

Shllh /.

On careful consideration of all the circumstances we agree with the High Court that cancellation of the comracr of agency did not affect the profit-making structure of the appellant, nor did it iinvolve loss of an enduring trading asset; it Iljerely deprived the appellant of trading avenue, leaving him free to devote his energies after the cancellation to carry on the rest of the business, and to replace the contract lost by similar cpntract. The compensation paid, therefore, d.id not represent 'the price paid for loss of capital asset. We therefore dismiss the appeals with costs.

Appeal dismissed.

MASALTI

STATE OF U. P.

(P. B. GAJENDRAGADKAR, C.J., K. N. WANCHOO. K. c. DAS GUPTA AND RAGHUBAR DAYAL, JJ)

Criminal Appeal-Appeal by special leave-Scope-Murders committed by village faction constituting unlawful assembly-Sentence of death, if and when can be pas.Jed-Apprecilztion of evidence-T11t -Validity Prosecution-It must examine all witnesses cited.

Forty persons belonging to village faction and · constituting an unlawful assembly were put up on trial before the Ad'ditional Sessions lodge under s. 302 read with s. 149 of the Indiao Penal Code and other sections thereof for murdering 5 persons of the other faotion with gun1. The trial lodge found 35 of them ~illy and sentenced 10 of them. who carried fire arms, to death and the rest to imprisonment for life. Three appeals were preferred by the convicted persons to the High Court anll !he sentences of death came up for confirmation under s. 374 of the

(I) L.R. 59 I.A. 206,

lPM May,4

Code of Criminal Procedure. The High Court acquitted 7 of the appellants and, concurring with the findings of the :rial court, dismissed tbe appeals of the rest. It confirmed the sentences of death passed on tbe 10 accused persons. The appeals to this Court were preferred by thoso 10 and 6 others by special leave.

HEco:-(i) In criminal appeals under Art. 136 of the Constitution involving sentences of death it would be improper to refuse to consider relevant pleas of fact or law on the ground that they had not been taken before the High Court. When any such point had actueUy been urged and not considered by the High Court, the party urging it was entitled as matter of right to obtain cfecision from this Court. Evea otllerwise no hard and fast rule can be laid down prohibiting such pleas being raisetl in such appeals.

(ii) It would be unsound to lay down as general rule that ever}' witness clted by the prosecution must be examined by it even though ltis evidence was not very material or he was known to have been v1on over or terrorised.

(iii) Evidence of \\'itness could not be discarded only on the ground that Qe was partisan or intereste1 witness, particularly in cases of murd~r c:ommitteC by village faction, such mechanical rejection would invariably lea'd to failure of justice.

(iv) It was not improper for criminal court having large num-ber of C1ffenders and victims to deal with to adopt the test that the conviction of any particular accused could be sustained only if parti-cular number of witnesses gave consistent account against him. Such test, even though mechanical, was not unreasonable:.

(v) Punishment prescribed by s. 149 of the Indian Penal Code was in sense vicarious and that section does not necessarily require that the offence must have been actually committed by every member of the unlawful. assfmOly. The observations of this Court in Baladin v. State of U .P. had to be read in the context of that case and coufd not be treated as laying down an unqualified proposition of law.

Baladin v. State of Uttar Pradesh, A.I.R. 1958 S.C. 181. explained.

(vi) It was not eorrect to say that if person was found guilty of murder under s. 302/149 of the lntlian Penal Codct and it was not show• ·that he himself bad committed the muI'der, no sentence of death coulti be inflicted on him.

Dalip Singh v. State of I'1111iab, [1954] S.C.R. 145, distinguished.

(vii) There was no error in the exercise of their discretion by the courts belo\V in the present ca"se in making distinction between the ten persons who carried fire arms and were sentenced to death and the others, 'ovho did not carry fire and were sentenced to imprisonment for life, under common char$• unHer ss. 302/149.

(viii) Regard being had to the 'circumstances of the present case, the ends of justice would be properly served if ,the sentences of death passed on the three accused persons aged 18. 23 and 24, who had joined the unlawful assembly under pressure of their elders were modifie'd to life sentences.

i\!a1alti

~r•I• of U.P.

CRIMINAL APPELLATE JURISDICTiON: Criminal Ap-peals Nos. 30-34 of 1964.

Appeals by special leave from the judgment and order dated October 22, 1963 of the Allakbad High Court in Criminal Appeals Nos. 77 and 78 of 1963.

M. S. K. Sastri, for the appellant (in Cr. A. No. 30 of

I. M. Lall and Ganpat Rai, for the appellants (in Cr.

A. No. 31 of 1964).

V. S. Snwhney, for the appeliants (in Cr. A. Nos. 32-34/64).

0. P. Rana. Atiqur Rehman and C. P. Lal, for the res-pondents.

May, 4. l 964. TI1e Judgment of the Court was delivered oy

GAJI:HDRAGADKAR, C. J. -Forty persons were charged with having committed several offences the principal one of which wa3 under section 302 read with s. 149 of the Indian Penal Code. The case ag1inst these persons was tried bv the first Additional Sessiom Judge at Jhansi. The other charges framed against them were under s. 307/149, 201/149 & 511, 395, 396, 149 & 449, I. P. C. The learned trial Judge held that r.one of the charges had been proved a1rninst five of the accused persons. He .1lso found that the charge~ under sections 395 & 396 were not proved against any of them. In regard to the remaining charges, he found that 35 out of 40 accused persons were guilty. For the major offence charged under s. 302/149, he sentenced 10 accused persons to death and 25 others to imprisonment for life. He also directed that the said accused persons should undergo different terms of imprison-ment for the remaining offences; but for the purpose of the present appeals, it is unnecessary to refer to them.

were Gai<ndra}ladkar

1964 MIUllbl

'f. St•I• of U .P. Gaitndragll<ika C. I.

After the learned trial Judge pronounced his judgment on the 31st December. 1962, the 35 accused persons who had been convicted by him preferred three appeals between them before the Allahabad High Court, whereas the senten-ces of death imposed dn I 0 accused persons by the learned trial Judge were submitted to the said High Court for con-firmation. The High Court has held that 7 out of the 35 appellants before it were not proved to have committed any of the offences, and so, they were ordered to be acquitted. In regard to the remaining 28 appellants, the High Court bas confirmed the orders of conviction and sentence imposed on them by the trial Court. In the result, the reference made to the High Court for confirmation of the sentences of death imposed on the 10 accused persons by the trial Court was allowed. It is against this decision of the High Court that the present five appeals have been brought to this Court by special leave, and the number of accused persons who have brought these appeals before us is 16. Befo:e dealing with the points raised in tlrese appeals, it is necessary to set out very briefly the relevant facts on which the prosecution case against the appellants and their co-accused substantially rests. The incident which has given rise to the present criminal proceedings took place on the 29th November, 1961 in village Bilati Khet in the district of Jhansi at about 8 a.m. It is clear that this village is cursed with keen rivalry and enmity between two factions. One group was led by Gayadin who and four other members of his family were murdered on the said date. All these murders were committed, according to the prosecution, by the members of the rival faction amongst whom are included the present appellants before us. Criminal proceedings have continued between the parties for several years almost without interruption. The rival group was led by Laxmi Prasad alias Laxmi Narain who is one of the appellants in this Court. In the last election of the village Panchayat Laxmi Prasad succeeded as Pradhan of the village and defeated the candidate set up by Gayadin. On the 28th November, 1961, boundary dispute led to an incident between the members of the two groups. This dispute related to two fields one of which belonged to Gayadin and

1964 M""'ltl v. State of U .P. Gajendragadkar C. I.

the other to Laxmi Prasad. Attempts were made to settle this dispute by arbitration, but they failed. It appears that Laxmi Prasad and the members of his group did not agree to submit to any arbitration and they left the meeting called for the purpose threatening that they would see that the matter in dispute between them was settled the next day. It is on this grim note that the incident of the 28th November ended.

On 'the 29th November in the e3rly morning, Bahoran, one of the sons of Gayadin, had gone out to ease himself. He was then carrying pharsa. In the field he met Laxmi Prasad who attacked him with Jathi. Bahoran retaliated this attack with his own pharsa and in the scuffle the nose of Laxmi Prasad was injured and it began to bleed; in fact, part of the nose was actually cut. Infuriated by this injury, Laxmi Prasad went to his house and collected the· whole crowd belonging to his faction. Bahoran eased himself and returned to his house. Soon thereafter he washed his hands and went to the north where his father, brothers and "!her relations were warming themselves by fire. At that ~· 1ge, Ram Prasad and Dayaram rushed to the scene anrl infmmed them that Laxmi Prasad and his companions were all armed with guns, spears, swords, gandasas and lathis and were proceeding to the house of Gayadin determined to kill all the members of Gayadin's family. On receiving this alarming infonnation, Gayadin and his friends and relatives thought of proceeding towards the ·house of Gayadin. About that time, L~xmi Prasad and bis companions reached near the house of Gayadin whereon Laxmi Prasad fired gun. Bhagwati was carrying large quantity of cartridges in the folds of his dhoti .and was instigating Laxmi Prasad to fire at everyone sitting near the fire to the north of the house and to extenninate the family of Gayadin. On hearing this, everyone of the group sitting near the fire rushed into the house and closed the doors. 'J)ie assailants then broke open the doors of the house and entered the seh.an of Gayadin. Inside the house the assail-ants pursued Gayadin on the upper storey and killed him there. Brindaban, Radha Saran and Dayaram were hiding in different rooms of the house; the doors of these rooms

1964 Mcualti ... Stall of U.P. Gajendragadkar e.1.

were broken open and all the three of them were shot dead. Bahoran and Shiroman Singh, both sons of Gayadin, escap-ed through the tiled roof into the cattleshed of Harbans which is situated towards the south-east of Gayadin's house. Shiroman concealed himself in the godown whiie Bahoran concealed himself in the room in the upper storey where chaff had been .stored. After killing Gayadin, Brindaban, Radha Saran and Dayaram, the assailants mercilessly drag-ged the bodies of the victims out of the house of Gayadin and began their search for Bahoran and other male inmates of the house. When the dead bodies were thus being drag-ged, Gori Dulaiya wife of Gayadin rushed after the assail-ants and implored them not to take the dead bodies away. One of the assailants, however, struck her with stick and she was forced to retrace her steps. · The dead bodies were then dragged towards the east of the house. On reaching 'the cattleshed of Harbans, the assailants broke open th~ outer door of the house and entered into· it. They then injured Harbans and managed to discover Shiroman Singo who was promptly killed. The five dead bodies were then taken into the field of Bhagwati. In the field. two big riles of cowdung cakes were prepared. On one of the piles the bodies of Gayadin, Brindaban, Radha Saran and Dayaram were placed and on the other Shiroman Singh's body was put. Kerosene oil was sprinkled on the bodies and fire was sei: to them. That, in brief, is the story of the gruesome murders which have given rise to the present proceedings.When the assailants had left the house of Gayadin drag-ging the dead bodies with them. Bahoran came out of his hiding place and rushed to the Police Station Krichh and lodged· the First Information Report at about 11 o'clock. In this report, he gave all the material details in regard to the commission of the offence and named the 35 persons as the assailants. In fact, the first committal order passed on the 31st March, 1962 in the present proceedings referred to 35 assailants. Later. five more persons were added to the list of assailants by the committal order made on the 14th May, 1962. On.receiving the first information report, the police party rushed to the scene of occurrence on cycles and they put 'off the burning fire and took out the half burnt

8 S.C.R.

bodies of the five murdered persons. These bodies were identified and were sent for post mortem examination. The injured persons Harbans, Ram Prasad, Mansa Ram and Smt. Gori Dulaiya were sent for medical examination. Post-mortem examination was then held on the dead bodies and statements of witnesses were recorded in the course of investigation. That 1ed to the several charges framed against 40 persons and ultimately their trial in the Court of the First Additional Sessions Judge at Jhansi.

The case for the prosecution is sought to be established by the testimony of 12 eye-witnesses. All the accused per-sons denied that they had anything to do with the offences charged. Their main contention was that false case h:l<l been made against them and it was attempted to be support-ed by evidence of witnesses who were hostile to them and who had no regard for truth. The trial Judge, in substance. rejected the defence plea and .accepted the prosecution evi-dence. except in the case of five accused persons. In appeal, several contentions were raised on behalf of the appellants, but they were rejected and h1 the result, the findings of the trial Court against the appellants were confirmed. The High Court, however. reversed the conclusion of the trial Court in respect of 7 accused persons with whose cases we are not concerned in the present appeals. The 12 per-sons who gave direct evidence against the appellants and their co-accused persons are: Bahoran P.W. 1; Basanti Lal P.W.2: Rameshwar Dayal P.W.3; Prabhu Dayal P.W.5; P.ancham P.W.6: Swarup Singh P.W.14; Kasturi P.W.15: Tha)mr Das P.W.16: Shyamlal P.W.17; Harbans P.W.18; Dropadi P.W.19: and Kishori Lal P.W.20. The High Court has critically examined the evidence given by these witnesses and has held that the evidence of Bahoran and Prabhu Day.al may be left out of account as it appeared to the High Court that the said evidence suffered from material infirmities. The evidence given by the remaining 10 wit-nesses has, however, been accepted by the High Court as sub~tantially true and correct.

In dealing with this oral evidence, the High Court took into account the fact that most of these witnesses beloneed to the faction of Gayadin and must, therdore, be regarded

Jltualti v.

Stal• of U.P

Gajeisdragadkar

M01altl

1'. Stile of £1.P. Gajendra1adkar C. I.

as partisan. It also considered another feature which characterised the evidence of all the witnesses and that was that they gave their account of the incident substantiallv in similar terms and did not assign particular parts in resliect of overt acts to any of the assailants except Laxmi Prasad accused No. 1. The approach adopted by the High Court shows that it decided to confirm the conviction of the accus· ed persons against whom four or more witnesses eave consistent account, and it is by· the application of this test that 7 accused, persons have been acquitted. As to the sentence, the High Court realised that IO persons had been ordered to be hanged and that it could not be said about all of them, except Laxmi Prasad, that they had actually fired gun and caused the death of any of the five victims. Even so, the High Court held that since they all formed members of the unlawful assembly the common object of which was to exterminate the male members of the family of Gayadin, they were all equally guilty of murder under s.302/149, I.P.C. and it would not, therefore, be unreasonable to impose the penalty of death on such of the as>ailants as were shown to have carried guns in their hands <m that occasion. Tb.at is how the High Court upheld the orders of conviction passed against 28 persons who had brought their cases before it in appeal and confirmed the sentences of death imposed on 10 of them. In these appeals, Mr. Sawhney who has addrc;~ed the principal argum~t before us on behalf of the appellants, has urged that the High Court has failed in discharging its duty properly when it dealt with the appeals brought before it by the appellants and decided to confirm the senrMces of death imposed on 10 of the accused persons. In support of this argument, Mr. Sawhney has relied upon the deci,ion of this Court in the case of Jumman & Ors. v: The State of Puniab. ( 1) In that case. this Court has emphasised the fact that the mandatory requirement prescribed by s.374 of the Code of Criminal Procedure shows that in dealing v:ith reference for confirmation of death sentence imposed by the Sessions Judge, the High Court has to consider the entire case for itself before deciding whether the sentence of death (I) A.I.R. 1957 S.C. 469.

lihould be confirmed or not. Section 374 provides thl1t 1he sentence of death shall not be executed unless it is ontirmed by the High Court. In other words, the sentence of death imposed by the Court of Sessions is not effecuve until ~md unless it is confirmed by the High Court. It is only wl:en the High Court confirms the sentence of death that it is capable of execution. That is why this Court empha~i~ed the solemnity of the proceedings brought before the High Court under s.374, and it pointed out that under s.375, the High Court is given the power to admit additional evidence if it thinks necessary to do so. Pro-ceedings brought before the High Court for confirmation of a· death sentence give right to the condemned prisoner to be heard on the merits and to require the High Court to consider the matter fo• itself without being influenced by the conclusions recorded by the Court of Sessions. The conclusions of the High Court on the merits in such proceedings must be independent, and so, the High Court inevilably has to go into the whole of the evidence, consider all the pros and cons of the cDse nd satisfy itself that the offence charged under s. 302, I.P.C. is established beyond reasonable doubt and the sentence of. death submitted to it for its confirmation is fully justified. Mr. Sawhney contends that this essential requirement of s.374 has not been complied with by the High Court when it dealt with the appeals brought before it in the present pro-ceedings. He also adds that since 10 persons have been ordered to be hanged, that itself is reason why this Court should examine the evidence for itself and not hold that the appellants are concluded by concurrent findings of fact recorded by the Court below.

1964 Masalti v. State of U.J'. ·;ajendragadkm' c. J.

We are not impressed by this argument. It is perfectly true that in murder trial when an accused person stands charged with the commission of an offence punishable under s.302, he stands the risk oE being subjected to the highest penalty prescribed by the Indian Penal Code; and naturally judicial approach in dealing with such cases has to be cautious, circumspect and careful. In dealing with such appeals 0r reference proceedings where the question of con-firming death sentence is involved, the High Court has also

1964 MllMlltl y, Stat• of U.P. -

to deal with the matter carefully and to examine all relevant and material circumstances before upholding the conviction and confirming the sentence of de.1th. All arguments urged by the appellants and all material infirmities pressed before the High Court on their behalf must be scrupulously examined and considered be-fore final decision is reached. The fact that I 0 persons had been ordered to be hanged by the trial Judge necessarily imposed more serious and onerous res~ ponsibility on the High Court in dealing with the present appeals. We have carefully considered the judgment delivered by the High Court in these appeals and we are satisfied that the criticism made by Mr. Sawhney that the High Court did not bestow due care and attention on the points involved in the case, cannot be regarded as wcll-founded. The judgment shows that the arguments which were urged on behalf of the appellants, have been carefully examined, the evidence given by the respective witnesses has been accurately summarised and the infirmities in the said evidence closely scrutinised. The relevance of the argu-ment of the admitted enmity between the two factions. of the village bas been taken into account and the common features of the evidence tendered by the witnesses have not hccn overlooked. After taking into account all the points which were urged before the High Court the High Court adopted what it thought to be safe test before acting on direct evidence. It has held that unless at least four witnesses are shown to have given consistent account .1gainst any of the appellants, the case against them cannot be said to have been proved beyond reasonable doubt. Having regard to the manner in which the High Court has dealt with the appeals brought before it, we .1fe not prepared to hold that the general criticism made by Mr. Sawhney against the judgment of the High Court can be accepted.

In this connection, Mr. Sawhney strongly relied on the fact that the High Court has not considered one important point in favour of the defence, and that is in relation to the failure of the prosecution to tender three material :witnesses whose names had been shown in the witness-list in the calendar sent by the committing Magistrate to the trial Judge. These witnesses are: Ram Prasad, Mansa Ram and

Rani Dulhan. It appears that this contention was raised by the defence before the Trial Court and had been rejected by it. The Government counsel appearing for the prosecu-tion had made an application to the trial Court expressing his inability to examine the three witnesses for the reason that Ram Pras.ad and Mansa Ram had been won over by the defence and Rani Dulhan, the widow of one of the victims, was suffering fro~:i such mental shock that she was unable to depose coherently. After this application was made and granted, the learned trial Judge did not insist upon the prosecution examining the three said witnesses. Then followed three other applications by the defence (Nos. 247B, 248B and 249B) in which it was urged that the said three witnesses should be examined under s.540, Cr. P.C. The learned trial Judge rejected these applications, and so, the case concluded without the said three witness~s giving evidence before the trial Court. In rejecting the applica-tions made by the defence, the learned Judge h.1s carefully examined the validity of the defence contention that the evidence given by the said witnesses before the Committing Magistrate showed that they were material' witnesses and the plea raised by them that the absence of their evidence would cause prejudice to the defence, and has held that the evidence which the said three witnesses may give was not essential for just decision of the case and that it was unreasonable to suggest that the prosecution had an oblique motive in supressing their evidence. This part of the judg-ment clearly shows that all relevant aspects of the matter were examined by .the trial Judge before he refused to exercise his powers under s.540, Cr. P.C. It is obvious th1t this contention was not urged before the High Coun. and so, we find no discussion of the point in the judgment of the High Court.

We are not prepared to accept Mr. Sawhney's argument that eve.n if this point was not raised by the appellants before the High Court, they are entitled to ask us to consi-der that point having regard to the fact that IO persons have been ordered to be hanged. It may be conceded that if point of fact which plainly arises on the record, or point of iaw which is relevant and material and can be argued with-

196# lll .. al1i .,, Still• of U.P. Gai•ndragadkar C. I.

Masalti v. State of U .P. GatendragadkRr c. J.

out any further evidence being taken, was urged before the trial Court and after it was rejected by it was not repeated before the High Court, it may, in proper case, be permis-sible to the appellants to ask this Court to consider that point in an appeal under Art. 136 of the Constitution; afteral! in criminal proceedings of this character where sentences of death are imposed on the appellants, it may not be appro-priate to refuse to consider relevant and material pleas of fact and law only on the ground that they were not urged before the High Court. If it is shown that the pleas were actually urged . before the High Court and had not been considerer! by it, then, of course, the party is entitled as . matter of right to obtain decision on those pleas from this Court. But even otherwise no hard and fast rule can be laid down prohibiting such pleas being raised in appeals under Art. 136.In the present case, however, we are satisfied that there is no substance in the contention which Mr. Sawhney seeks to raise before us. It is not unknown that where serious offences like the present are committed and large number of accused persons are tried, attempis are made either to terrorise or win over prosecution witnesses, and if the prose-cutor honestly and bonafide believes that some of his wit-nesses have been won over, it would be unreasonable to insist that he must tender such witnesses before the Court. It is undoubtedly the duty of the prosecution to lay before the Court all material evidence available to it which is necessary for unfolding its case; but it would be unsound to lay down as general rule that every witness must be exa-mined even though his evidence may not be very material or even if it is known that he has been won over or terroris-ed. In such case, it is always open to the defence to examine such witnesses as their witnesses and the Court can also call such witnesses in the box in the interest of justice under s.540, Cr. P .C. As we have already seen, the defence did not examine these witnesses and the Court, after due deliberation refused to exercise its power under s .540, Cr. P.C. That ' is one aspect of the matter w!Pch . ' we have to take into account.

8 S.C.R

The other aspect of the matter is that the trial Court has found that the evidence which these witnesses would have given was not essential for just decision of the case. What these witm:.:,ses might have said in the Sessions Court was judged by the tcial Court in the light of their previous statements .already recorded, and that is finding which is purely one of fact. If this finding was not challenged by the appellants before the High Court, we do not see how they can claim to argue before us now that the said finding is erroneous. Besides, so far as Rani Dulhan is concerned, it seems to us utterly unreasonable to insist that before per-mitting the prosecutor not to examine her, evidence should hJve been led to show that she was suffering from such mental shock that she was unable to give coherent account of the tragic events that happened on that fateful morning. One has merely to recall the fact that five male members of her family were butchered to death by the assailants to realise that the prosecutor's statement that she was mentally unbalanced must be true. Then, as to Ram Prasad and Mans~ Ram having been won over by the defence, that again is matter on which the trial Court appears to have been satisfied; otherwise it would have readily acceded to the request of the defence to exercise its powers under s. 540, Cr. P.C. We are inclined to think that it is because this part of the defence contention was felt to be inarguable that the Advocate for the appellants did not raise this point before the Court. Therefore, we are not prepared to allow · Mr. Sawhney to take us through the- evidence in the case on the ground that one important contention raised by the defence has not been examined by the High Court.

1964 Mt11altl ~ Stat. of UP. Gajendraga.tkar c. J.

Mr. Sawhney has then argued that where witnesses giv-ing evidence in murder trial like the present are shown to belong to the faction of victims, their evidence should not be accepted, because they are prone to involve falsely mem-bers of the rival faction out of enmity and partisan feeling. There is no doubt ihat when criminal Court has to .appre-ciate evidence given by witnesses who are partisan or inter-ested, it has to be very careful in weighing such evidence. 51 S.C.-10 ·

1964 Masalti "· State of UP. Ga/endragadkar c. 1.

Whether or not there are discrepancies in the evidence; whether or not the evidence strikes the Court as genuine; whether or not the story disclosed by the evidence is prob-able are all matters which must be taken into account. But it w~uld, we think, be unreasonable to contend that evi-dence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. Often enough, where factions prevail in villages and mur-. ders are committed as result of enmity between such fac-tions criminal Courts have to deal with evidence of parti-san type. The mechanical rejection of such evidence on the • . . sole ground that it is partisan would invariably . lead to failure of justice. No hard and fast rule ca? be laid d?"."n as to how much evidence should be appreciated. Judicial approach has to be c;iutious in dealing with ~uch evidence: but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct.

Then it is urged that the evidence given by the witnesses conforms to the same uniform pattern and since no specific part is assigned to all the assail.ants, that evidence should not have been accepte<;!. This criticism again is not well-founded. Where crowd of assailants who are members of an unlawful assembly proceeds to commit an offence of murder in pursuance of the common object of the unlawful assembly, it is often not possible for witnesses to describe accurately the part played by each one of the assailants. Besides, if large crowd of persons armed with weapons assaults the intended victims, it may not be necessary that all of them have to take part in the actual assault. In the present case, for instance, several weapons were carried by different members of the unlawful assembly, but it appears that the guns were used and that was enough to kill 5 per-sons. In such case, it would be unreasonable to contend th;it because the other weapons carried by the members of the unlawful assembly were not used, the story in regard to the said weapons itself should be rejected. AppreciAfion of evidence in such complex case is no doubt difficult task: but criminal courts have to do their bes"t in dealing with such cases and it is their duty to sift the evide:1ce carefully and decide which paxt of it is true and which is not. In the

present case, the High Court has in fact refused to act upon

llJIU Jl-111 s- of "· V.I.

the evidence of Bahoran and Prabhu Day11I, because it appeared to the High Court that the evidence of these two witnesses suffered from serious infirmities. Mr. Sawhney also urged that the test applied by the High Court in convicting the appellants is mechanical. He argues that under the Indian Evidence Act, trustworthy evidence given by single witness would be enough to con· vict an accused person, whereas evidence given by half dozen witnesses which is not trustworthy would not be enough to sustain the conviction. That, no doubt is true; but where criminal court has to deal with evidence pertain· ing to the commission of an offence involving large num• ber of offenders and large number of victims, it is usual to adopt the test that the conviction could be sustained only if it is supported by two or three or more witnesses who give consistent account of the incident. In sense, the test may be described as mechanical; but it is difficult to see how it can be treated as irrational or unreasonable. Therefore, we do not think that any grievance can be made by the appellants against the adoption of this test. If at all the prosecution may be .entitled to say thltt the seven accused persons were acquitted because their cases did not satisfy the mechanical test qf four witnesses, and if the said test had not been applied; they might as well have been convicted. It is, no doubt, the quality of the evidence that matters and not the number of. witnesses who give such evidence. But, sometimes it is useful to adopt test like the one which the High Court has adopted in dealing with the present case.

Mr. Sawhney then attempted to argue that the High Court failed to give effect to the principles enunciated by this Court in the case of Baladin v. State of Uttar Pradesh('). In that case, it was observed by Sinha, J., who spoke for the Court, that it is well-settled that mere presence in an assembly does not make person, who is present, member of an unlawful assembly unless it is shown that he had done something or omitted to do something which would make him member of an unlawful assembly, or unless the case falls under s.142, I.P.C. The argument is

(1) A.I.R. 1956 S.C. 181

1964 Mtualtl Y.· Slllte of U.P. Gajendragadkor C. I.

that evidence adduced by the prosecution in the present case does not assign any specific part to most of the accused per-sons in relation to any overt act, and so, the High Court was in error in holding that the appellants were members of an unlawful .aSsembly. The observation of which Mr. Sawhney relies, prima facie, does seem to support his contention; but, with respect, we ought to add that the said observation can-not be read as laying down general proposition of law that unless an overt· act 1s proved against person who is alleged to be member of an unlawful assembly, it cannot be said that he is member of such an unlawful assembly. In appreciating the effect of the relevant observation on which Mr. Sawhney has built his argument, we must bear in mind the facts which were found in that case. It .appears that in the case of Baladin('), the members of the family of the appellants and other residents of the village had assembled together; some of them shared the common object of the unlawful assembly, while others were merely passive wit-nesses. Dealing with such an assembly, this Court observed that the presence of person in an assembly of that kind would not necessarily show that he was member of an un-lawful assembly. What has to be proved against person who is alleged to be member of an unlawful assembly is that he was one of the persons constituting the assembly and he entertained along with the other members of the assembly the common object as defined by s.141, I.P .C. Section 142 provides that whoever, being aware of facts which render any assembly an unlawful assembly, inten-tionally joins that assembly, or continues in it, is said to be member of an unlawful assembly. In other words, an assembly of five or more persons actuated by, and entertain-ing one or more of the common objects specified by the five clauses of s. 141, is an unlawful assembly. The crucial question to determine in such case is whether the assembly consisted of five or more persons and whether the said per-sons entertained one or more of the common objects as specified by s. 14 i: While determining this question, it becomes relevant to consider whether the assembly consisted of some persons who were merely passive '4'itnesses and had

1964 Miualti Y. Stal• of U .P. Gaje"'1ragad/ru c. J.

present case, the High Court has in fact refused to act upon the evidence of Bahoran and Prabhu Dayal, because it appeared to the High Court that the evidence of these two witnesses suffered from serious infinnities. Mr. Sawhney also urged that the test applied by the High Court ,in convicting the appellants is mechanical. He argues that under the Indian Evidence Act, trustworthy evidence given by single witness would be enough to con-vict an accused person, whereas evidence given by half dozen witnesses which is not trustworthy would not be enough to sustain the conviction. That, no doubt is true; but where criminal court has to deal with evidence pertain-ing to the commission of an offence involving· large num-ber of offenders and large number of victims, it is usual to adopt the test that the conviction could be sustained only if it is supported by two or three or more witnesses who give consistent account of the incident. In sense, the test may be described as mechanical; but it is difficult to see how it can be treated as irrational or unreasonable. Therefore, we do not think that any grievance can be made by the appellants against tJ?-e adoption of this test. If at all the prosecution may be entitled to say that the seven accused persons were acquitted because their cases did not satisfy the mechanical test qf four witnesses, and if the said test had not been applied, they might as well have been convicted. It is, no doubt, the quality of the evidence that matters and not the number of witnesses who give such evidence. But, sometimes it is useful to adopt test like the one which the High Court has adopted in dealing with the present case. Mr. Sawhney then attempted to argue that the High Court failed to give effect to the principles enunciated by this Court in the case of Baladin v. State of Uttar Pradesh('). In that case, it was observed by Sinha, J., who spoke for the Court, that it is well-settled that mere presence in an assembly does not make person, who is present, member of an unlawful assembly unless it is shown that he had done something or omitted to do something which would make him member of an unlawful assembly, or unless the case mils under s.142, I.P.C. The argument is

(1) A.I.R. 1956 S.C. 181

1964 1'DMlltl ...

... S111,. of U.P. GaJ1ndragadk• C, 1.

would be no occasion or justification for this Court to con-sider the evidence for itself.

That leaves one question still to be considered and that has relation to the sentence of death imposed on 10 persons. Mr. Sawhney argues that in confirming the sentences of death imposed by the trial Court on 10 accused persons in this case, the High Coun has adopted mechanical rule. The High Court has held that the 10 persons who carried ftre-arms should be ordered to be hanged, whereas others who have also been convicted under s. 302/ 149, should be sentenced to imprisonment for life. It is true that except for Laxmi Prasad, the charge under s. 302/149 rests against the other accused persons on the ground that five murders have been committed by some members of the unlawful assembly of which they were members, and the argument is that unless it is shown that particular accused person has himself committed the murder of one or the other of the victims, the sentence of death should not be imposed on him. In other words, the contention is that if person is found guilty of murder under s. 302/ 149 and it is not shown that he himself committed the murder in question, he is not liable to be sentenced to death. In support of this argu-ment, Mr. Sawhney has relied on certain observations made by Bose J. who spoke for the Courr-in Dalip Singh v. State of Punjab('). In that case, what this Court observed was that the power to enhance sentence from transportation to death should very rarely be exercised and only for the stron-gest reasons; and it was added that it is not enough for the appellate court to say or think that if left to itself it would have awarded the greater penalty because the discretion does not belong to the appellate court but to the trial Judge, and the only ground on which the appellate court can interfere is that the discretion has been improperly exercised. These observations have no relevance in the present Mse, because we are not dealing with case where the High Court has enhanced the sentence imposed by the trial Judge at all. In fact, both the trial Court and the High Court are agreed that the sentences of death imposed on 10 persons are justi-fied by the circumstances of the case and by the requirement~ (1) ['9~41 s.c.R. 145

8 S.C.R.

of justice. As mere proposition of law, it should be diffi· cult to accept the argument that the sentence of death can be legitimately imposed only where an accused person is found to have committed the murder himself. Whether or not sentences of death should be imposed on persons who are found to be guilty not because they themselves commit-ted the murder, but because they ·\j'ere members of an un-lawful assembly and the offence of murder was committed by one or more of the members of such an assembly in pursuance of the common object of that assembly, is mat-ter which had to be decided on the facts and circumstance~ of each case. In the present case, it is clear that the whole· group of persons belonged to Laxmi Prasad's faction, joined together armed with deadly weapons and they were inspired by the common object of exterminating the male members in the family of Gayadin, 10 of these persons were armed with fire-arms and the others with several other deadly weapons, and evidence shows that five murders by shooting were com-mitted by the members of this unlawful assesmbly. The conduct of the members of the unlawful assembly both her fore and after the commission of the offence has been consi-dered by the courts below and it has been held that in order to suppress such fantastic criminal conduct on the part of villagers it is necessary to impose the sentences of death on 10 members of the unlawful assembly who were armed with fire-arms. It cannot be said that discretion in the mat-ter has been improperly exercised either by the trial Court or by the High Court. Therefore we see no reason to ac-cept the argument urged by Mr. Sawhney that the test adop-ted by the High Court in dealing with the question of sen-tence is mechanical and unreasonable.

There are, however, three cases in which we think we. ought to interfere. These are the case of accused No. 9 Ram Saran who is aged 18; accused No. 11 Asha Ram who is aged 23 and accused No. 16 Dea prasad who is aged 24, Ram Saran and Asha Ram are the sons of Bhagwati who is accused No. 2. Both of them have been sentenced to death. Simiiarly, Deo prasad has also been sentenced to death. Having regard to" the circumstances under whkh the unlaw-ful assembly came to be formed, we are satisfied that these

Masaltl v. State of U.P. Gajendragadka1 C. J.

1'64 Mualtl Stat• "· of U.P. Ga1endragadkar c. J.

1964 May, 4

young men must have joined the unlawful assembly under pressure and influence of the elders of their respective families. The list of accused persons shows that the unlaw-ful assembly was constituted by members of different families and having regard to the manner in which these factions ordinarily conduct themselves in villages, it ~ould not be unreasonable to hold that these three young men must have been compelled to join the unlawful assembly that morning by their elders, and so, we think that the ends of justice would be met if the sentences of death imposed on them are modified into sentences of life imprisonment. Accord-ingly, we confirm the orders of convictio:i and sentence pas-sed against all the appellants except accused Nos. 9, 11 and 16 in whose cases the sentences are altered to those of im-prisonment for life. In the result, the appeals are dismissed, subj.:ct to the said modification.

Appeals dismissed.

C. V. K. RAO

DENTU BHASKARA RAO

(P. B. GAJENDRAGADKAR, c. J., M. HIDAYATULI.AH, K. c. DAS GUPTA, J. C. SHAH AND RAGHUBAR DAYAL, JJ.)

Representation of the People Act (XLlll of 1951), s. 1(d)-Scope of-"ln tla1 cour1e of trade or businesl'', Mea1ting of-Mining lca.Yt-Right of Government to pre-emption of minerals-If contract for 1upply of good• ~1 leuee.

The respondent obtained mining lca.se from the State Government. Clause 21 of the lease reserved to the Government the right to prior purchase of the minerals raised by the lessee. While the lease was subsisting, the respondent stood for election to the State Legislative Assembly and was elected. The appellant, his closest competitor, chal-lenged the election by an election petition on the ground, inter alia, that the respon'dent was disqualified under section 7(d) of the Representation of People Act (XI.Ill ot 1951), because he had contract with the Government for 1upply of goocla.