MANAGEMENT OF HINDUSTAN STEEL LTD. v.

THE WORKMEN & ORS.

January 12, 1973

[A. ALAGIRISWAMI, I. D. DUA AND C. A. VAIDIALINGAM, JJ.] Industrial Disputes Act 1947 Ss. 25 F(b) and 25 FFF-Notice of retrenchment-In case of closure of an undertaking s. 25FFF appue. and not s. 25F(b)-Undertaking, what is-Closure of part of business may amount to closure of undertaking within meaning of .9. :!SFFf"->.

Plea c.s to defect in noUce must be specific and precise.

The Hindusto:n Steel Ltd. undertook in 1960 a project called the Ranchi Housing Project. The project was completed in

1966. After the compktion of the residuary work the services of certain employees including N were terminated. 'The relevant notice said that N could receive his retrenchment compensation from the cashier within two days from the date of termination of his employment subject to the production by him of. no demand certificates from the concerned branches mentioned in the notice. N pleaded before the Industrlal Tribunal inter alia that the notic, e did not comply with the terms of s. 25F(b) of the Industrial Disputes Act 1947, because the compeinsation was not paid immediately at the time of effecting the retrenchment. The infirmity in the notice being apparent on its face, in the opinion of the Tribunal, N was held entitled to be reinstated end also to his wages and other dues. The Tribunal further held that this plea though not expressly taken by N 'in his written statement was covered by the general grounds taken therein. Appeal against the award of the.

Tribun9} was filed by the Management of Hindustan Steel Ltd., by special leave granted by this Court. It was contended Oill behalf ot the appellant that the Section applicable to the case was not 25F(b) but 25FFF(2)· and the Tribunal erred in basing the award on the fofn1er section.

HELD : (i) In the case of Harl Prasad Shiv Shankar Shukla, it was held by this Court that s. 25F was not intended by the leg!slature to be applicable to bona fide closure Of business. In 1957 s. 25FFF was inserted in order to give b, enefit of s. 25F to the retrenched workmen where an undertaking is closed down for "any reason whatso~ ever". According to sub-8.(2) of s. 25FFF it is quite clear that in case of closure of the categories of undertrutings as mentioned therei, n, no workman employed In those undertakings can claim compensation under cl. (b) of s. 25F. [310C-E)

Harl Prasad Shiv Shankar Shukla v. A. D. Divekar, (1957) S.C.R. 121, referred to.

(ii) The word undertaking as used in s. 25FFF seems to have been used in its ordinary sense connoting thereby any w<>rk, enterprise, pro- Ject or business undertaking. It is not intended to cover the tllltire industry or business of the employer. Even closure or stoppage of a part of the business or activities of the employer would seem jn law to be covered by this sub-section. The question has t<> be decided on the facts of each case. In the present case the Ranchi Housing Project was clearly a distinct venture undertaken by the 9ppellant and it had a distinct beginning and an end. The Tribunal rightly held that QD the completion of the project the undertaking was cld down.

[310G-311BJ

Workmen of the Indian Leaf Tobacco Development Co.

Ltd. v.

Management, [1969] 2 S.C.R. 282 and Parry & Co. Ltd. v. P. C. Lal, [1969] 2 S.C.R. 976. referred to.

(iii) Under s. 25FFF(l) which creates statutory fiction. •.11 that N \\'as entitled to was notice and compensation in accordance with the provisions of s. 25F as if he had been retrenched.

The retrenchment notice given to him quite clearly complied with the requirement. [311EFl

(iv} The Tribunal was in error in holding the general ground irl the written statement to cover the specific plea of infirmity of . the notice because of its being conditional.

The plea 'Should have been specific and precise so as to ""1able the appellant to meet it. [311F-Gl

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 175 of

1971. c

Appeal by special leave from the Award dated July 20, 1970 oi the Industrial Tribunal, Bihar. Patna in-Reference No. 52 of 1969 published in the Bihar Gazette dated 28-10-1970.

M. C. Setalvad, Santosh Chatterjee and G. S. Chatterjee, for the appellant. o Madan Mohan and Ram Das Chadha, for respondents Nos. 1 and 2.

The Judgment of the Court was delivered by

DuA, J.-The Management of Hindustan Steel Ltd., Ranchi challenges in this appeal by special leave the award made by the Industrial Tribunal, Bihar, Patna dated July 29, 1970 on a reference of the following industrial dispute between the management and their workmen represented by Hindustan Steel Ltd.

Employees' Union, Ranchi :

"Whether the retrenchment oi Shri Venkatesan, Ex- Overseer, Housing Colony Construction Sche)lle of Hindustan Steel Ltd., Ranchi is proper and justified ?

If not, what relief is he entitled to ?"

According to the Written statement filed by the Management Shri R. Venkatesan Naidu, the workman concerned (hereinafter

to be referred as Shri Naidu) was recruited to the work-charged G establishment of the Ranchi Housing Project undertaken in 1960 on a consolidated salary of Rs. 250/- p.m. He was recruited in March, 1960 and it was made clear to him tha!I the post was purely temporary subject to tennination with or without notice.

Shri Naidu joined duty on March 15, 1960 after accepting those condi?ons. He later applied for the post of Overseer in the same . H establishment oi the Ranchi Housing Project in response to an advertisement and an offer for his appointment as an Overseer ' was made to him on June 15, 1960, clearly stating that his

MANAGEMENT HINDUSTAN STEEL v. WORKMEri (Dua, J.) 305

appointment would continue upto Maroh 31, 1961 though it would be extended in case his services were to be required beyond tltat date.

This appointment was also stated to be purely temporary terminable at any time without assigning any reason and without giving any notice.

Shri Naidu assumed charge of the post of Overseer on June 20, 1960. The construction and the connecled residuary work rela'ting to the Ranchi Housing Project were over by the end of the year 1966 and it was decided to wind up this project and retrench 13 workmen employed in four categories with effect from December 31, 1966 after giving notices and paying compensation to the workmen concerned.

The services of three executives and two Overseers ( Shri Naidu

and Shri Verghese) were retained for some time in order to finalise accounts and to carry on some residuary work in connection with the said project. The management tried to secure employment to those five persons in the sister units of the Hindustan Steel Ltd., or sister public under takings like Bokaro Steel Ltd., but without success.

Shri Naidu, it is state<l.. did not possess any basic qualifications laid down by Bokaro !Steel Ltd. 1he tenure of the posts held by these five persons was extended upto June 30, 1968. The departmental committee consisting of senior officers considered their cases for absorption in suitable posts in the Central Engineering and Design Bureau.

As Shri Naidu had read upto Class IX only and did not pos.sess any technical qualification he could not be taken in any concern. It was in these circumstances that according to the management Shri Naidu's services were retrenched with effect from the afternoon of June 22; 1963. The financial concurrence for the continuance of the Ranchi Housing Project (Residuary work) also expired on the same date with the result that it was not possil:lle any longer to retain Shri Naidu's services and his retrenchment was necessary. It was denied that big bosses of Hindustan Steel Ltd., did not like Shri Naidu because he had refused to oblige them whenever they made dishonest requests.

Shri Naidu's retrenchment was accordingly stated to be quite proper, justified and legal and the action taken qnite fair and bona fide.

There was thus no question of any unfair labour practice or victimisation of Shri Naidu.

The case on behalf of the workmen was represented biY the General Secrefarv of the Union. It was pleaded on behalf of the workmen that prior to joining industan Steel Ltd., Shri Naidu had been serving as a construction foreman in the Damodar Valley Corporation Ud., during the period 1950 to 1957 and that on Februarv 18, 1960 he applied to the Hindustan Steel Ltd.. tor. a technical post mentioning his ciualifications for. the

post apphed for. He was interviewed and after testing his merits for the job of Works Supervisor he was offered the same on

March 10, 1960. Later he was offered the job of an Overseer and he joined that post on May 20, 1960. He worked efficiently to A the satisfaction of all concerned but was served with a charge. sheet on June 10, 1964 on the ground that there was some short age of steel rods. After an enquiry he was found guilty and on the recommendation.s of the enquiry committee he was dismissed with effect from January 13, 1965. Shri Naidu approached the Presiding Officer, Labour Court, Ranchi under s. 25 Of the B Bihar Shops and Establishments Act, 1963 complaining 11gainst his dismissal and the Presiding Officer on April 13, 1966 held tho order of dismissal as unjustified and illegal and ordered his reinstatement.

He reaumed his duties on receipt ol the office order on 7 /10 May, 1966. But somo big bosses of the m11DagC'- ment were not happy on account of his reinstatement with the c result that he was again charge-sheeted on May 12, 1966 on the ground that he had falsely stated that he had passed the Senior cambridge Examination.

Shri Naidu filed a civil suit 1or a declaration that the proceedlnp laltfated by tho employer were

malll fide. But during the pcndcncy of that suit he was served with a retrenchment order dated JlllDe 29, 1968 purporting to 1*' D under s. 25F of the Industrial Disputes Act, 194 7 (hereinafter called the Act) which, according to Shri Naidu was malll fide and -unjustified.

According to the Tribunal there was no controversy about the following facts : Shri Naidu had filed an application Ex. 1 on February 18, E 1960 with the Construction Engineer of the Hindustan Steel Dtd., for a technical post and he had mentioned therein that he had studied upto Senior Cambridge standard but had served for a period of 23 years in other concerns. On March 10, . 1960 he was offered the post of Works Supervisor on a consolidated salary of Rs. 250/ • p.m. in the work-charged blishm.ent of the Ranchi F Housing Project but it was made clear to him that the post was purely temporary 3illd subject to . tenillnation with or without' notice.

In respo!lse to this offer Shri Naidu submitted. joining report on March 15, .1960. On April 18, 1960 Shri Naidu applied for the post of an Overseer and mentionod in the column meant for the particulars of the examination passed "Cambridge Senior". By office order dated 14/15 JIJlle, 1960 he was offered G

the tcm.P.<>rary post Of Overseer on the terms and conditions men tioncd in that order. According_ to term S his appointment waS upto March 31, 1961 but it could be extcn<led beyond that date in case the company so desired. It was also mentioned that his appointment would 1*' purely temporary terminllblc. at any tiJne without any reason and without giving any notice. He was 8$ked to report for duty as soon as possible but not later than. June 30,

MANAGEMENT HINDUSTAN STEEL v. WORKMEN (Dua, 1.) 307

1960. He joined as Overseer within the scheduled time.

The work o.f construction undertaken by '!he R8111chi Housing Project came to a clo8e by the end of the year 1966 with the result that 13 workmen were retrenched though Naidu was allowed to continue as an Overseer for finishing some residual work.

Thereafter; according ito the management the residual w9rk was completed and the Ranchi Housing Project wound up in 1968.

Shri Naidu having been rendered surplus notice Ex. 7 for his retrenchment was given because it was not possible to offer him any alternative employment in any other unit. His services were retrenched with effect from June 29, 1968. c According to the award the Ranchi Housing Project and the Maintenance Division of the Hindustan Steel Ltd., were separate departments the Housing Project being' a temporary project whereas the mainten811lce division was to be maintained throughout.

Both these departments were, however, controlled by the Central Engineering & Division Bureau. The award further held

that the management had decided to wind up the establishment of Ranchi Housing Project with effect from March 31, 1~68 and that serious attempts were made to absorb Shri Naidu but without success. The Ranchi Housing Project having been wound up the Management was fully justified in retrenching Shri Naidu.

The management was also held to have made genuine and bona fide efforts to absorb Shri. Naidu in other units but it did not succeed in its attempt. The plea of mala fides on the part of the. management in retrenching Shri Naidu was also repelled by the Tribunal. It was also observed that he had failed to substantiate that there was any unfair labour practice or victimisation.

The further point raised on behalf of Shri Naidu that the principle of "first come last go" or "last come first go" was not adhered to was also not accepted bti' the Tribunal. Shri Naidu's appointment being temporary terminable by the Company at any time without assigning any reason and without giving any notice was . held to be an agreement contrary to the said principle 81lld the provisions of s. 258 of the Act were held inapplicable. The submission on behalf of the management that it was for them to G decide from time to time the strength of labour required for that purpose was accepted and it was observed that the panduct of the management in closing one department and dividing its work

amont the other employees could not be reasonably characterised as IDlprc; iper or as amounting to an unfair labour practice.

The last point urged on behalf Of Shri Naidu was that the notice of retrenchment was not 1n accordance with the provisions of s. 25F f e At bec::use th~ retrencbmnt compensation Wl!S to e paid llllllled1ately at the time of effecting the retrenchment and

rt could not be deferred.

According to the notice Shri Naidu

was merely informed that he could receive the retrenchment compensation from the cashier within two dys from the date of terminati'ln of his employment and that 'this would also be subject to tJ, e production by him of no demand certificates from the concerned branches which were mentioned in the notice, .Ex. 7.

This plea prevailed with the Tribunal. After referring to certain decisions of this Court the Tribunal held that the notice was defective on the face of it because it did not comply with

cl. (b) of s. 25F of the Act. The offer in the notice to pay the retrenchment compensation on the production of no demand certificate from the concerned branches according to the Tribunal clearly shows that the management did not intend to pay retrenchment compensation at the time of retrenchment. The objection on 1*lhalf of the management that this defect in the notice was not pleaded in the written statement filed on behalf of the work-. man was rejected with the observation that in para 13 of the written statement it was averred that the grounds given in the retrenchment notice were all false and cooked up and in para 15 of the written statement it was pleaded that the retrenchment of the employee was mala fide, unjustified and against law. The infirmity in the notice being apparent on its face, in the opinion of the Tribunal, Shri Naidu was entitled to be reinstated and also to his wages and other dues. On tJtis reasoning the impugned award was made in favour of Shri Naidu.

Before us Shri Setalvad, the learned counsel for the appellant, the Management of Hindustan Steel Ltd., submitted tbat this case is really governed bys. 25FFF of the Act ands. 25F(b) is inapplicable. It was pointed out that cl. (b) of s. 25F which has been held by the award to have been violated biy the appellant in the present case is not attracted to 'the facts. The counsel questioned the legality of the view taken by the Tribunal and submitted that s. 25FFF ( 2) is the real provision which applies to the facts ol the present case.

The short question thus requiring determination is whether s. 25F(b) ors. 25FFF(2) of the Act is attracted to the facts of this case. In order to appreciate the true scheme and scope of these sections it would be helpful to reproduce them :

"25F. Conditions precedent to retrenchment of workmen:

No workman in any industry who has been in continuous service for not less than one year under an employer shall be retrenched by that employer until- ( a) the workman has been given one month's notke

in writing indicating the reasons for retrenchment

MANAGEMENT HINDUSTAN STEEL v. WORKMEN (Dua, J.) 309

(b)

and the penod of notice has expired, or the workman has been paid in lieu of such notice, wages for the period of the notice :

Provided that no such notice shall necessary if the retrenchment is under an agreement specifies a date for the termination of service; the workman has been paid, at the time of .retrenchment compensation which shall be equivalent to fifteen days' average pay for every completed year of continuous service or any part thereof in excess of six months; and C ( c) notice in the prescribed manner is served on the

appropriate Government or such authority as may be specified by the appropriate Government by notification in the Official Gazette."

"25FFF. Compensation to workmen in case of closing down of undertakings :

( 1) Where an undertaking is closed down for any reason whatsoever, every workman who has been in continuous service for not less than one year in that undertaking immediately before such closure shall, subject to the provisions of sub-section (2), be entitled to notice and compensalion in accordance with the provisions of section 25F, as if the workman had been retrenched :

Provided that where the undertaking is closed down on account of unavoidable circumstances beyond the control of the employer, the compensation to be paid to the workman under clause (b) of section 25F shall not

exceed his average pay for three months.

Explanation .-An undertaking which is closed down by reason merely of financial difficulties (including financial losses) or accumulation oi undisposed of stocks or the expiry of the period of the lease or the licence granted to it where the period of the lease of the licence expires on or after the first day of April, 1967 shall not be deemed to have been closed down on account of unavoidable circumstances beyond the control of the employer within the meaning of the proviso to this subsection.

(2) Where any undertaking set up for the construction of buildings, bridges, roads, ca.nals, dams or other construction work is closed down on account of the completion of the work within two years from the date on

which the undertaking had been set up, no workman employed therein shall be entitled to any compensation under clause (b) of section 25F, but if the construotion work is not so completed within two years, he shall be entitled to notice and compensation under that section for every completed year of continuous service or any part thereof in excess of six months." ·

Both of these seotions occur in Ch. V-A of the Act dealing with "Lay-off and Retrenchment" inserted in 1953. In enacting s. 25F the Legislature standardised the payment of compensation to workmen retrenched in the normal or ordinary sense in an

exiting or continuous industry bjy adopting a simple yard-stick of the length of service of the retrenched workmen doing away with the perplexing variety of factors for determining the appropriate relief in each case.

In Hari Prasad Shiv Shankar Shukla

v. A. D. Divekar(') it was held that this section was not intended by the Legislature to be applicable to bona fide closure of business. This decision led to amendment of the Act "by the Parliament In 1957 s. 25FFF was inseted in order to give benefit of s. 25F to the retrenched workmen where an undertaking js closed down "for any reason whatsoever".

We need not refer to the amendment of s. 25FF because that section does not directly concem us. According to sul>-s.(2) oi s. 25FFF it is quite clear that in case of closure of the categories of undertakings as mentioned therein, no workman employed in those undertakings can claim compensation under cl. (b) of s. 25F. The language of s. 25FFF(2) is plain and unambiguous.

Indeed1 the learned counsel for the respondent also did not dispute that if it were to be held in this case that the undertaking had been closed down then

cl. (b) of s. 25F would not be attracted and Shri Naidu would not be entitled to claim relief under that clause. According to Shri Madan Mohan, however, the present was not a case of closure oi the undertaking.

His submission was that only the work of the Housing Project at Ranchi had been completed. It was argued that unless the entire undertaking of the appellant was closed down s. 25FFF(2) could not apply. This submission is, in our opinion, not acceptable.

The word undertaking as used in s. 25FFF seems to us to have been used in its ordinary sense connoting thereby any work, enterprise, project or business undertaking. It is not intended to cover the entire industry or business of the employer as was suggested on behalf of the respondent. Even closure or stQppage of a part of the business or activiti1:3 of the employer would seem in law to be covered l;>y this sub-section. The question has indeed to be decided on the facts of each case. In the present case the Ranchi

(I) !1957) S.C.R. 121.

MANAGEMENT lllNOUSTAN STEEL v. WORKMEN (Dua, J.)311

Housing Project was clearly a distinct venture undertaken by the appella111t and it had a distinct beginning and an end. Separate office was apparently set up for this venture and on the completion ol the project or enterprise that undertaking was closed down. The Tribunal has actually so found. Its conclusion has not been shown to be wrong and we have no hesitation in agreeing with its view.

There is no cogent ground for ri:-opening the Tribll!lal's conclusion under brt. 136 of the Constitution. lit is also noteworthy that Shri Naidu had been recruited to the work-charged establishment of the Ranchi Housing Project. In Workmen of thelndian Leafs Tobacco Development Co. Ltd. v. Management(") closure of eight out of 21 depots of the company though not amounting to closure of its entire business was considered to amount to a closilre

within the contemplation of s. 25FFF. In Parry & Co. Ltd. v.

P. C. La/(2 ) it was observed that it was within the managerial discretion ol an employer to organise and arrange his business iii the manner he considered best and that if a bona fide scheme for such re-organisation results in surplusage of employees, no employer is expected to carry on the burden of such economic deadweight and retrenchment has to be accepted as inevitable, however unfortunate. The reasoning and ratio of these decisions support the appellant's argument.

Now, under s. 25FFF( 1), which creates a statutory fiction, all that Shri Naidu was entitled to, was notice and compensation in accordance with the provisions of s. 25F as if he had been retrenched.

Retrenchment notice, Ex. 7, dated June 22, 1968, quite clearly complies with this requirement. On behalf of the respondent, as already noticed, it is not disputed that there has been no failure to give notice as required.bys. 25F, in case cl. (b) is held inapplicable.

It is also clear that the respondent had not specifically raised any plea ol defect in the notice given to Shri Naidu. The Tribunal, however, allowed the objection of the notice Ex. 7 being conditional to be argued on the view that the notice was infirm on the face of it and that the olJliection was covered by the general plea in the written statement filed on behalf of Shri Naidu, to the effect that the grounds given in the retrenchment notice were all false and cooked up. On this view the notice was held to be conditional and, therefore, invalid and Shri Naidu was held entitled to be reinstated.

In our view, Shri Setalvad was fully justified in submitting that the management had been taken by surprise and 1that the Tribunal was in error in holding the general ground in the written statement to cover the specific plea of infirmity of the notice because of its

being conditional. The plea of. the statutory defect in the notice should, in our opinion, have been reasonably specific and precise so as to enable the appellant to meet it. The general plea could not serve the object of putting the appellant on guard abkmt the precise case to be met at the trial and tell the management the precise nature of the plea with respect to the defect in the notice. to enable them to meet it. Jn our view, if cl. (b) of s. 25F is excluded from consideration and the plea relirtinit to infirmity of lhe notice is ruled out, as we hold on these two points in agreement with Shri Seta)vad, then, the impugned order is clearly insupportable. We are, therefore, constrained' to allow !he appeal, set aside the impugned award and. hold thll't the retrenchmen~ of Shri Naidu was proper and justified. In the circumstances of the case there would be no order as to costs.

G.C.

Appeal allowed.

MANAGEMENT OF HINDUSTAN STEEL LTD

THE WORKMEN & ORS

January 12, 1973

A. ALAGIRISWAMI

I. D. DUA

Industrial Disputes Act 1947

Ss. 25

s. 25F

s. 25F(b)

Hindusto:n Steel Ltd.

Industrlal Tribunal

s. 25F(b)

Industrial Disputes Act 1947

Hindustan Steel Ltd.

Harl Prasad Shiv Shankar Shukla

s. 25F

s. 25F

s. 25F

s. 25F

s. 25F

s. 25F

Ranchi Housing Project

[1969] 2 S.C.R. 282

[1969] 2 S.C.R. 976

s. 25F

s. 25F

M. C. Setalvad

Santosh Chatterjee

G. S. Chatterjee

Madan Mohan

Ram Das Chadha

DuA

Management of Hindustan Steel Ltd.

Ranchi

Venkatesan

R. Venkatesan Naidu

March 15, 1960

June 20, 1960

December 31, 1966

Verghese

Bokaro Steel Ltd.

Bokaro !Steel Ltd.

June 30, 1968

Central Engineering and Design Bureau

June 22; 1963

industan Steel Ltd.

Damodar Valley Corporation Ud

Februarv 18, 1960

Hindustan Steel Ltd

March 10, 1960

May 20, 1960

June 10, 1964

January 13, 1965

Presiding Officer, Labour Court, Ranchi

s. 25

April 13, 1966

7 /10 May, 1966

May 12, 1966

s. 25F

Industrial Disputes Act

March 10, . 1960

Ranchi F Housing Project

March 15, .1960

April 18, 1960

14/15 JIJlle, 1960

March 31, 1961

June 29, 1968

March 31, 1~68 and

s. 258

s. 25F

s. 25F

Setalvad

s. 25F

s. 25F

s. 25F(b)

section 25F

section 25F

section 25F

s. 25F

s. 25F

s. 25F

s. 25F

s. 25F

s. 25F

s. 25F

s. 25F

Madan Mohan

s. 25F

s. 25F

s. 25F

s. 25F

s. 25F

June 22, 1968

s. 25F

Seta)vad


STATE OF U.P. v.

PARAS NATH SINGH & ORS.

January 15, 1973

[A. ALAGIRISWAMI, I. D. DUA AND C~ A. VAIDIALINGAM, JJ.J Crirninal k; Jw-Practice and procedure-Eye witnesses f.elativeS' of deceased-No intrinsic infirmity in their evidence----.Jf corroboration. necessary for sustaining conviction-Sentence of life imprisonment instead of death-Circumstances justifying.

The six respondents (accused) were convicted by the trial Olurt for offences Ulllder s. 302/149, I.P.C. Four of them were sentenced to death and two to Imprisonment for life on the grounds that one was a 'budding lawyer' and the other was IS years old. The son and daughter of .the dec, eased were examined as eye witnesses to .the .occurrence. Four penons, who were cited as eye-witnesses by the prosecu-

Uon, were giv~ up, because, the counsel for prosecution represented that he had reason to believe that they would not speak the tmth.

They were neither examined by the trial court under s. 540, Cr.P. C., nor as defence witnesses. The trial court scrutinised carefully and properly evaluated the evidence of the son and daughter, and as the son was 12 or 13 years old, applied the correct principles gover.ning the appreciation of the evidence of a child witness and accepted th.eir evidence as true.

The Hipt Court on appeal, examined the 4 witnesses given up by the prosecution, as court witnesses.

It devoted a major part of its judgment to the consid, eration of the additional evideroce recorded by it. Feeling whotly unimpres; ed by that evidence, the High Court endors.ed the view of the plrosecution that these witnesses were given up as they were not prepared to speak the truth and even issued notice und, er s. 479A, Cr. P. C. to one of them to show cause why he should 1not be prosecuted for perjury. The High Court disagreed with the main arguments urged on behalf of the accused for discrediting the testimony of the son and daughter. Bui, th.e High Court acquitted the accused on the view that the SOI> and daughter, being closely related to the deceased and being in a sense, chance witnesses, their evideince without corroboration did not prove the guilt of the accused beyond reasonable doubt.

Allowing the appeal to this Court,

HELD: (!) The judgment of the High Court reversing the judgment of the trial court and acquitting the accused caused grave miscarriage of justice.

[32SB-C]

Once the two eye witinesses were h.eld to be trustworthy witnesses there was no cogent reason for not acting upon their evidencle. The fact that the other persons who were present at the spot and had

w?tnesse~ the urrence have, without 11ny good reason and, perhaps with oblique motive, chose.n t t? state the truth in court and thereby obs!ructcd the course of 1ushce, is a sound reason for accepting the testimony of the son and daughter. To decline to act upon their testimony merely because of the absence of other witnesses to corroborate them in court, is to defeat the cause of justice in this case.

It was wholly unreasonable for the High Court to dub them as chance wit- :nesses, as there i! no material on record to support such an observation. and the observation runs counter to the High Court's own line of

reasoning earlier. There is thus absolutely no justification for the view that theit testimony leaves any scope for reasonable doubt ebout the guilt of the accused. It could not be considered that because of their relationship to thi: deceased, they would spare the real assailants """1 ffilaely implicate the accused, and in the circumstances of the case, there is no scope for such a hypothesis.

There is no general rule that the .evidence of the relations of the deceased must be corroborated for securing the conviction of the offender.

Each case is to be considered on its own facts. [325F-326Cj

bl the present case, there is an instr'insic ring of truth in the evidence of the two eye witnesses.

The straight forward nature of their deposition and the fact that they were undoubtedly in. a position t<> identify the assailants coupled with the recovery of blood-stained earth from the place of occurrence ]eave no reasonable doubt about the guilt of the accused. [326C-D]

(2) No leniency should have been show.n to the 'budding lawyer', because, he, as a result of his education and profession should have exercised a restraining inftuenc~ on his associates rather than allowed himself to be misled by them into being a party to a gruesome murder.

However, in view of the facts that: (a) the murder was committed as far back as 1968; (b) on convictiO\ll by the trial court in September 1969, the accused were under the shadow of death; (c) the accused were acquitted by the High Court in May 1970; and ( d) it is not .possible to assign with certainty the fatal blows to any particular accused person, the ends of justice would be served by sen tencing all the accused to impris()Jll11ent for life. [3260-H; 327 A-CJ

ORIGINAL APPELLATE JURISDICTION : Criminal Appeal No. 49 of 1971.

Appeal by special leave from die judgment a, nd order May 18, 1970 of the Allahabad High Court at Allahabad in Criminal Appeal No. 1947 of 1969.

0. P. Rana for die appellant.

Nuruddin Ahmad and U. P. Singh for the respondent,.

The Judgment of the Court was delivered by

DuA, J.-The State of U. P., the appellant in this appeal by special leave, assails the judgment of the Allahabad High Court dated May 18, 1970 acquitting on appeal the six respondents in this Court who were convicted by the Court of the first Temporary Civil & Sessions Judge, Pratapgarh on September 1, 1969 of various offences under the Indian Penal Code. The accused Paras Nath Singh, Ramendra Pratap Singh, Hari Saran Singh and Lal Pratap Singh were sentenced to death under s. 302 read with s. 149, I.P.C. The accused Surendra Pratap Singh and Shiva Pratap Singh were also convicted under the said sections but sentenced to life imprisorunent. Leniency was shown to them bv l!he trial court because Surendra Pratap Singh was stated to be a budding lawyer and Shiv Pratap Singh, being of tender age (15 or 16 years old).

..:.. .

-" .

> ,..

was considered to have apparently been misled by his relations.

Excepting Surendra Pratap Singh and Hari Saran Singh, the remaining accµsed were also sentenced to rigorous imprisonmen~ for one year each under s. 14 7, l.P .C. They were furthe_r convtcted under s. 148, l.P.C. and sentenced to rigorous imprisomnent for two years each. Accused !'aras Nath Singh was in addition, sentenced to rigorous imprisomnent for six months under s. 397, l.P.C.

The relevant facts necessary for our purpose may now be stated. The six respondents (hereinafter called the accused) were charged with the murder of Suresh Singh on July 9, 1968 and with the theft of his gun and cartridges along with t!!e container. The deceased and the accused are all Thakurs by caste residing in village Isanpur. Accused Surendra Pratap Singh and Ramendra Pratap Singh are brathers residing in a house adjoining that of the deceased, being thus his next door neighl::!Ours. Shiva Pratap Singh and Lal Pratap Singh are cousins and the other accused persons are said to be their associates. There was long standing enmity between the deceased on the one h_and and Ramendra Pratap Singh and. his family members on the other. About six or seven months prior to the present occurrence, Ramendra Pratap is said to have tried to fire at the deceased on Dewali • day and a case under s. 307, I.P.C. arising out of the said incident was pending at the time of '!lie murder Of the deceased. . About five or six days prior to the murder Ramendra Pratap Singh, Surendra . Pratap Singh and one Vijai Bahadur Singh are stated to have beaten the deceased inside his house giving rie to another case under s. 107)117, Cr. P. C. which was also pending at _the time of the murder in question. This enmity is stated to be the motive for the murder of the deceased. Now turning to tht; occurrence in question on July 9, 1968, Suresh Singh deceased had gone to Pratapgarh on cycle for some work carrying with him his gm~ and cartridges. On his way back from Pratapgarh the same evening at about sunset when he reached Rakhaha Bazar and was on the Rakhaha Bazar-Kandhai kachha road, all the . accused persons emerged from the nearby Nala.

They surrounded their victim Snresh Singh, shouting th:rt he should be killed because he posed to be a great leader. The accused who were armed with lathis, spears and farslza, assaulted the deceased with their respective weapons. Smt. Sheela Devi, P. W. 1, daughter of the deceased and Sachendra Pratap Singh, (P.W. 2) son of the deceased also happened Jo be .returning to their village from Rakhaha Bazar where they had gone to purchase parwal (a vegetable) for their mother who .was not well. On hearing the alarm they went towards the nala where they saw the accused assaulting their father with lathis, spears and farsha.

Several other persons, including Shiva. Pratap 5-L796Sup.C. I./73

Singh, Mahabir Singh, Ranmast Singh and Jagdish Bahadur Singh were also attracted by the alarm to the place of occurrence. The deceased fell down on receipt of injuries and the accused ran away carrying with them the gun and container of cartridges along with its contents belonging to the deceased.

The cycle and a jhola belonging to the deceased and lying on the spot was sent home by Sheela Devi (P.W. 1) through one Mahabir. Sheela Devi also sent for her mother ( Smt. Sundari Devi) through the same man.

The mother arrived soon thereafter and Suresh Singh was taken on an ekka io Diwan Mau from where he was taken in a taxi to the District Hospital, Pratapgarh. Suresh Singh appears to have expired on hls way to the hospital near village Pipari. The doctor on examining Suresh Singh informed Sheela Devi that her father had already died and advised her to lodge a report at the Police Station, Kotwali. She wrote out a report of t!!~ occurrence (Ex.

Ka-1) at the hospital and along\ with the dead biody, went to Kotwali police station where she handed over the written report the same night at about 11.30 p.m. on the basis of which Ka-18. the formal F.I.R. was prepared. A case under ss. 302/147 /148/ 149, I.P.C. was thereupon registered and all the relevant papers sent to the police station Kandhai. As a result of the investigation, it was considered necessary also to frame a charge against the accused persons under s. 379 read with s. 149. I.P.C. for the theft of the gun and the cartridges along with their containers belonging to the deceased. The foregoing is the prosecution version.

At the trial the only eye-witnesses deposing to the actual occurrence were Smt. Sheela Devi, (P.W. 1) the daughter and Sachendra Pratap Singh (P.W. 2), the son of the deceased. P.W. 1 was about 19 years old when she gave evidence at the trial in July, 1969 and P.W. 2 about 13 or 14 years old. The other persons mentioned in the F.I.R. by P.W. 1 were not produced as witneses on the ground that they were not prepared to depose in favour of the prosecution at the trial. P.W. 1 and P.W. 2 have unfolded the pr0 secution case deposing to the incident as witnessed by them. According to P.W. 1, she and her younger brother who had gone to Rakhaha Bazar in the afternoon for buying Parwal. while returning to their home, heard the alarm as thev reached the kachcha road. They went towards the side from which the noise came and saw that their father was being beaten biv Lalii. Chotey Lal. Sadhy and Nankoo with lathis, Hari Saran Singh with ballam and Munna who is also called Sheo Prat•p Singh. with farsha.

They took her father down into the Nala shoutig. "1<;11 the sala. he was olaying the oart of Nefaf!iri vef'V much".

After the accused h•~ run awav. p. w. 1 went near her father who. thon!!h badlv iniured, was still in a position to speak. He tnld her and the other oer<ons who had assembled there that the accused t1ersons had been hiding

H •

inside the Nala and that they had forcibly taken him away from the road into the Na/a and beaten him.

She sent her father's eycle and jhola home through Mahabir Singh also requesting him to send her mother to the place of occurrenc;:. Her mother came there and after arranging for an ekka, Suresh Singh was taken to Diwan Mau from where Suresh Singh was taken to the hospital in a taxi. On the way Suresh Singh expired near Pipari. After the doctor had certified death of Suresh Singh, P.W. 1 was advised. by the doctor to make a report in the Sadar Police Station. She wrote out a report in the hospital and along with the dead body of the deceased, she went to the police station and lodged the report in the Kotwali. Paras Nath, accused, according to P.W. 1, had taken away with him the gun and the cartridge belt belonging to the deceased. She had herself to go to the Kotwali to lodge the report because there was no other adult male member left in their house. According to her, Sarvashri Ram Pratap Singh, Krishnapal. Singh, Ran1esh Prasad Singh and Ruddar Pratap Singh, Vakils, live in the neighbourhood of her village.

These persons being under the influence of the lawyers, she could not say if they would be willing to give evidence in support of the prosecution. She was cross-examined at great length by four different lawyers defending the accused persons.

Sachendra Pratap Singh, (P.W. 2), a boy who did not appear to the court to be more than 12 or 13 years of age, was first questioned by the trial court by asking him unexpected but intelligent questions to which he gave rational and sensible answers which impressed the court and the court came to the conclusion that the boy understood the importance of justice and of taking oath and was fully conscious of the desirability of speaking the truth when on oath.

P.W. 2 fully corroborated P.W. 1 on all material points.

He too was cross-examined at great length by all the defence counsel.

It appears that after the examination of P.W. 1 and 2 the prosecuting counsel applied to the trial court stating that Mahabir Singh, Shiva Pratap Singh, Ranmast Singh and Jagdish Bahadur Singh were present in court but as the prosecuting counsel had reason to believe that they would not speak the truth, they were not bieing produced as witnesses by the prosecution. It was suggested !hat they could be examined by the court under s. 540, Cr. P.C. if considered proper or the accused persons could examine them in their defence, if they so liked. On this application the counsel for the accused oersons recorded a note opposing the suggestion and describin~ the allegation against the witnesses as baseless. Section 540, Cr. P.C., according to the defence counsel was inapplicable and he also decFned to examine these witnesses in defence.

The said witnesses were in these circumstances discharged by the trial court on July 9, 1969.

The ffial court i11 a very detailed and exhaustive judgment dealing with every aspect in a very lucjd manner, came to the conclusion that P.W. 1 and P.W. 2 were both truthful witnesses and their sincerity and h,.onesty in speaking the truth could not be doubted.

After stating the principle governing the evidentjary value of ihe testimony of a child witness, the trial court made the followin;: observations about the quality and value of the evidence :i.f P.W. 2:

"He has been cross-examined at a very great length :.nd that too by four sets of defence lawyers repute.

It i, amazing to find that despite their lengthy and cumbersome cross-examination the witness has not been impaired. Had he not been an eye-witness of the occurrence and had he been examined after tutoring he could not have remained firm even for a single moment. The said witness was tried to be beguiled, tempted and also brow-beaten but to my utter surprise he maintained his mental composure throughout and did not yield anywhere during tbe cross-examination. Even on the most minute details the witness did not confuse and gave convincing replies to them.

From the beginning to the end of the incident he has successfully acquitted himself and not a single thing could be pointed out in his statement which could be used as a weapon against him. The manner and the method which the P.Ws. have exhibited in the witness box have left an everlasting impression in my mind about their sincerity and truthfulness.

As a Judge of fact I am definitely of the opinion that unless trnthful and honest the P.Ws. 1 and 2 would have collapsed under the weight of this trying and tiring crossexamination".

The testimony of P.W. 2 according to the triatcourt was fully supported and corroborated by his sister, P.W. 1, who has unfolded the prosectrtion version about the occurrence in question. The trial court also upheld the jurisdiction for not producing the other witnesses in court.

This is what the trial court has said in this connection :- "The nature and number of injuries found on the person of the deceased and that too in a broad day light goes to show that the deceased was beaten mercilessly.

The site of the scene of the occurrence and the injured must have been awe striking and appalling.

To all those who might have seen the occurrence it must have left an indelible impression that the accused meant business and there was nothing which could deter them from accomplishing their tariet. This psychoanalysis of the

1 H

situation too has o be kept in mind before g1vmg a finding about the respective versions of the parties.

Several documents have been filed in the case by the prosecution to show that cases under sections 307, 323 / 452, l.P.C. and under sections 107/117, Cr. P.C.were pending :tt the time of occurrence between the deceased on the one hand and the accused Ramendra and his family on the other. In these circumstances there was nothing surprising if even on-lookers did not dare to come forward. Further I am constrained to observe tjiat had the accused been on bail even the offsprings of the deceased i.e., P.Ws 1 and 2 could not have come in the witness box to depose about facts relating lo the murder ot their father and in 'that case the fact of even the death of !he deceased would have been enveloped in darknes5.

Whatever reason may be there to it there is no denying the fact that witnesses in 1he case have kept back

and have avoided coming forward. l n this connection I may recall the statements of P.Ws 1, 2 and 4. Out of so many public witnesses named in :the charge-sheet only P.Ws 1 and 2 could figure as eye-witnesses of the occurrence. Had they not been the family members of the deceased even they would not have come. P.W. lnder Singh has stated that the witnesses have been pres surised not to come. I am very much impressed by the statements of P .Ws 1, 2 and 4 on this score.

Thus in the case of the present nature no one coulg Like to invite trouble for him by coming in the witness box. There is not the least doubt that either because of fear or because of other influences witnesses have not liked to involve themselves in !he matter. Thus considering the evidence and the circumstances of the case I feel that the explanation offered by the prosecution regarding the absence of other P.Ws in the witness box has got to be

accepted.

Exhibits Ka-14 and Ka-16 also lend asiurance to this finding".

Exhibit Ka-14, it may be pointed out, is the F.I.R. dated Xovember 1, 1967 made by Suresh Singh (deceased) against Ramendra Pratap Singh and others lodged at 10.30 p.m. with respect to the attempted assault on him and firing of shots the same day t about 6 p.m.

Exhibit Ka-16 is an application by Suresh Singh, deceased, dated November 6, 1967 made to the Superintendent of Police, Pratapgarh, in which, after referring to the incident of November 1, 1967 when Ramendra Pralap Singh was alleged to have fired from the upper portion of his house about 8 or 10 shots at Suresh Singh from a double barrel!ed gun

of his grandfather, Raghav Pratap Singh, it was complained that there was a constant danger to Suresh Singh and the members of his family at th~ hangs of Ramendra Pratap Singh, Krishna Pr<(tap Singh and others mentioned therein.

At this stage we consider it proper to reproduce the nature and number of injuries inflicted on the deceased because according to !@ tdal court all those persons vho might have witnessed this occurrence must have been impressed by 1he fact that the accuse(! meant business d nothing could deter them from accomplishing their objeotive. The following ante-mortem injuries were found on the person of the deceased:-

1. Lacerated wound 2" x !" bone deep on the fore-head 1 t" above the right eye-brow.

2. Lacerated wound l" x t" x scalp, deep just behind injury no. 1.

3. Abrasion t" x t" on the forehead 2" above the left eyebrow. +. Incised wound 2!" x !" b(Jne deep 1" behind the left ear directed downwards and outwards.

5. Incised wound 3" x t" muscle deep on the leit side of the face directed downwards and outw:irds.

6. Incised wound 1" x t" muscle deep just below the left

eye directed dowpwards and outwards.

7. Punctured wound !" x !" x lt" over the bridge of the nose directed upwards and inwards.

8. Incised wound 1 t" x t" x muscle deep on the lower part of the face below the chin.

9. Contusion 1" x 1" on the top of the right shoulder. y I 0. Contusion 3" x 1 t" on the medical surface of the right arm upper 1/3.

11. Contusion 3" x 2" on the back of the right arm lower 1.13.

i 2. Contusion 3" x 1" on the back of the right forearm middle 1/3.

J 3. Contusion l" x l" on the back of the right wrist.

l.J. Contusion 3" x 2" on the back of the right hand.

15. Lacerated wound l" x t" skin deep on the web between

the right thumb and index finger.

16. Contusion 3" x 2" on the front of the chest near the root of the neck.

17. Contusion 2" x t" on the front of the right 'thigh middle 1/3.

18. Contusion 2t" x :\-'' on the front of the right thigh -!-"

below injury no. 17.

19. Contusion 3" x t" on the right thigh just below injury B no. 18.

20. Contui; ion 3" x t" on the right .thigh l" below injury no. 19.

21. Contusion 3'' x t" on the front of the right thigh just

ablove the knee joint. c

22. Contusion 2" x I" on the top of the left shoulder.

23. Contusion '2!' x t" on the lateral surface of the left arm upper 1/3.

24. Contusion 3" x 1" on the back Of the lefit foreann upper 1/3.

25. Contusion 3" x H" on the right forearm lower 1/3.

26. Contusion H" x t" on the back of the left wrist.

27. Contusion 1" x t" on the back of the left hand.

28. Contusion 3" x 1" on the front of the left thigh middle 1/3.

29. Contusion 3!" x 1" on the front of the left thigh lower

1/3 . . 30. Abrasion 1" x -!-" on the front of the left knee.

31. Multiple abrasion in an area of 2" x H" on the front

of the le fit leg upper 1I3.

32. Abrasion 1" x t" on the front of the left leg upper l /3 x 1" below injury no. 31.

33. Abrasion l'' x t" on the front of the left leg lower 1/3.

34. Contusion 6" x 1" on the right side of the back upper 1/3.

35. Contusion 1" x t'' on the right side of the back middle 1/3.

36. Punctured wound t" x !" on the left side of the back middle 1/3 close to the mid line of the back directed downwards and outwards. 3 7. Punctured wound t" x t" on the left side of the black H lower 1 /3 directed downwards and outwards.

Relying on the evidence of P.Ws l, 2 and 4, the tiial court convfoted the accused persons, as already noticed.

An appeal was preferred to the High Courl qy the si' nc.?•1scd persons against their conviction and sentenc.e x-.·~- in tne n1\,.iUO randum of appeal the only grounds taken w•n . (1) that the conviction was bad in law; (2) that the c0n 1i<:tion was against the weight of evidence; and (3) that the senten e was too severe.

Death sentence on four of them was also !-efoce that court for confirmation.

The High Court after noticing the circumstances in which the four witnesses mentioned earlier bad been discharged by the trial court, considered it necessary to examine them itself as court Witnesses .. They were examined in the Higit Court in May, 1970.

All of them denied having been present at il.~ place of the occurrence. When cross-examined, they seem to us to have cut a very sorry figure and we consider it impossible to place any reliance on their testimony. Indeed, even the High Court, after a close scrutiny of their evidence, came to the conclusion that the four witnesses did not want to speak the truth and that they had not been withheld by the prosecution for any oblique motive as suggested on behalf of the accused persons.

The High Court accepted the evidence of P.Ws 1 and 2 with respect to the place where Suresh Singh had been Jllurdered but according to it (to quote its own words) : "The question that . remains to be decided is whether the testimony ot P.W. 1 Smt. ·

Sheela Devi and P.W. 2, .Sachendra Pratap Singh, who are the daughter and son of Suresh Singh, can bie believed". After hold• ing the four witnesses examind by pie High Court on appeal to be untruthful, the High Court proceed'd to scrutinise the evidence of P.Ws l and 2. After a thorough and detailed consideration of the criticism levelled against their testimony by the counsel for the accused persons, the High Court obs_erved :

"We have therefore come to the conclusion that

- -there is nothing inherently improbable in the tatements

of P.W. 1 Smt. Shil\i Devi, and P.W. 2, Schendra Pratap-Singh. We cannot, .however, ignore the fact that they are after all the daughter and the son respectively of the deceased Suresh Singh and are in a sense chance .witnesses. It is true that under the law there is nothing which prevents us from acting upon the testimony of these two eye-witneses and. unholding the conviction of the appellants, but rules of prudence and safety have to be taken into consideration. Therefore, having given the_rµatter our anxious thought even though-we hold that we find nothing improbable in _the statements of tbese two eye-witnesses, we think it proper not. to act on the uncorroborated testimony of these witnesses. w: .. therefore, by the way of abundant caution give the appellants the benefit of the doubt",

With these concluding observations the High Co.urt allowed the appeal of the accused persons and set aside their conviction. The High Court, however, also considered it proper to issue notice under s. 497A, Cr. P.C. to Sheo Pratap Singh son of Birju Singh who had been examined by the High Court on May 11, 1970, calling upon him to show cause why he should not be prosecuted for perjury for having falsely stated that he did not live in village Isanpur and that he did not know the accused persons.

On appeal in this Court Mr. Rana appearing on behalf Otf the Sta'te of Uttar Pradesh has submitted that the High Court has gone seriously wrong in acquitting the accused persons merely on the grormd of absence of corroboration of the evidence of P.Ws 1 and 2 when it had itself held that there was nothing improbable in the statements of these witnesses. The High Court has, according 10 the appellant's submission, seriously erred in ignoring its own earlier conclusion that the other witnesses 1ropped b!Y the prosecution who were expected to corroborate P.Ws I and 2, were not prepared to speak 'the truth.

This was a sufficiently cogent reason for not producing them and for placing complete ce!iance on the sole testimony of P.Ws I and 2.

The obserntion of the High Court that P.Ws 1 and 2 were "'in a sense chance witnesses". was wholly unjustified and is indeed contrary to the High Court's own earlier view accepting the testimony of P.Ws I and 2.

On the circumstances of this case, according to the appellant's counsd the evidence of P.\Vs 1 and 2 had been rightly accepted by the trial court and the high Court erroneously required further corn'- boration for acting upon their evidence. The decision of the High

Court, it has been emphasised, erroneous as it is. has resulted in gross failure of justice In reply, Mr. Nuruddin Ahmad has with his usuc1l pasuasiw eloquence criticised the evidence of the two eye-witnesses, P.Ws

1 and 2. While paying to these witnesses a high tribute for their intelligence, and presence 0£ mind and also while endorsing !he impression of the trial court that even on the matter of minute details P.W. 2 did not get conf11sed by his cross-examination but gave convincing replies to the questions. the learned counsel has argued that the high order of intelligence of these two witnesses only serves to explain their cleverness in putting forth a prima facie plausible story which is far from true.

According to the learned counsel these two witnesses have maue up a story about the manner in which their father met with his death with the sole object of falsely implicating !he accused persons who are their enemies. The submission proceeds that neither was the deceased killed at the time stated bry these witnesses nor were they present

at the spot to witness their father's murder.

The deceaed, it is suggested, had also several other enemies and his murder was ill all probability committed by some other person or persons who had their own scores to settle with him. The children of the deJ ceased who are extremely intelligent, h.ave very shrewdly thought of utilising this opportunity for getting their enemies _hanged. In this connection, the absence of any mention about the presence of parwal at the place of occurrence or with P.Ws 1 and/or P.W. 2; in the F.J.R. or in the statements of either of the two eye-witnesses has been very trongly emphasised by the counsel in support of his suggestion that the whole story about the visit of these two children of the deceased to Rakhaha Bazar on the evening of the day of occurrence for buying parwal is false and so.must, therefore, be the story of their presence at the time and the place of the murder. The counsel has also laid stress ori the fact that there was no point in their going so far away from their village to buy parwal when the same could easily have been secured from closer quarters. It has also been suggested that a young girl was normally. not expected to hie sent for purchasing parwal late in the evening.

A passing observation was also made to the fact that parwal were not a medicine which could urgently be required and that the story of the witnesses' visit to Rakhaha Bazar for this purpose should be discarded as concocted and unconvincing. The other criticism very strongly pressed relates to the F.I.R.

This report which is detailed has been drafted in a form which, according to the counsel, suggests that its author has at least some knowledge. of legal phraseology and of some sections of the Indian Penal Code as also of the Criminal Procedure Code. From this it is sought to be inferred that P.W. 1 who claims to be its author, must have secured the assistance of someone conversant with the drafting of such report and she must, therefore, be assumed to have both time and opportunity of concocting a story for false!y implicating the accused persons who were the enemies of the:! family. A suggestion was put to P.W. 2, the son of the deceased, and to Head Constable Tripathi, P.W. 10, that the report had beerl lodged b.Y P. W. 1 after consulting Bhagwati Prasad but this suggestion was denied by q1em.

Still another point has been forcefully urged by the counsel that according to P.Ws 1 !1._nd 2 a large number of people had gone for shopping to the Rakhaha Bazar on that day and, therefore. many people would have noticed the occurrence, ir it had actually taken place as deposed by P .Ws 1 and 2. The fact that no other independent witness is forthcoming is, according to the counsel, proof positive that the occurrence did not take place at the time and the spot and in the manner deposed by these witnesses.

Almost all these arguments were urged in the trial court and repelled for cogent reasons with which we are in full agreement

and it is, therefore, not necessary to repeat them. It is note-worthy that the High Court also did not take a different view on the credibility of P.Ws l and 2.

The absence of other witnesses from the witness box is satisfaotorily explained by the prosecution and after recording the evidence of these witnesses as court witnesses, the High Court also endorsed the opinion of the prosecuting counsel that these other witnesses were not willing to speak the truth.

In our view, the High Court has gravely erred in acquitting the accused persons and indeed its judgment has resulted in grave failure of justice. The trial court had taken great pains in fully scrutinising and properly evaluating the evidenc~ of P, Ws l and 2 and after applying the correct principles governing !he appreciation of the evidence of a child witness it has accepted the , evidence of these two witnesses as true. All the arguments urged on behalf of the accused were duly consideed and repelled. The High Court on appeal devoted a major part of its judgment to t)!e consideration of the additional evidence recorded by it. Feeling wholly unimpressed by this evidence, it endorsed the view of the prosecuting agency that these witnesses were not produced in court bte cause they were not prepared to speak the truth and indeed felt constrained to issue notice under section 479A, Cr. P. C. to one of them to show cause as to why he sho11ld not be prosecuted for perjury. It disagreed with all the main arguments urged on kehalf of the accused persons for discrediting the testimony of P.Ws l_and

2. but curiously enough, acquitted the accused per:mns on the view-which we must confess is not easy to appreciate-that P.Ws I and 2 being closely related to the' decased and being in a sense chance witnesses, their evidence without corroboratiQII did not proYe the guilt of the accused beyond reasonable doubt. We are not able •to endorse this view which seems to us to be both unreasonable and not supportabjle <)n the materialon record.

Once P. W s I and 2 are held to be trustworthy witnesses then there does not seem to be any cogent reason for not actin~ upon their evidence. The fact that the other persons who were present at the spot and had witnessed the occurrence have, without any good reason and, perhaps with oblique motive, chosen not to state the truth in court and thereby to obstruct the course of justice would, in our opinion, provide a sound reason for accepting the testimony of P.Ws 1 and 2 for sustaining the conviction of the accused persons.

To decline to act upon the testimony of these witnesses merely because of the absence of other witnesses to corroborate them in court, is to defeat the cause of justice in •this case. It iii wholly unreasonable for the High Court to dub P.Ws l .and 2 as chance witnesses : we find no cogent material on the record to support this observation. Indeed this observation ignores and to

326 SUPRDIE COl.'RT REPORTS

[1973] 3 S C.R.

an extent runs counter to the High Court's own earlier line of rea.

soning. There is, we think, absolutely no justification for the view that their testimony leave< any scope for reasonable doubt about the complicity of the accused persons. Because of their relationship with the deceased they cannot be considered to be inclined to spare the real assailants for falsely involving the accused persons and indeed in the circu1m1ances of this case there is hardly any scope for such a hypothesi•. To us there appears an intrinsic ring of truth in the statements !"" •he two eye-witnesses which disclose no infirmity.

There is no ~1 rule that 'the evidence of the relations of the deceased musl. be corroborated for securing th" conviction of the offender.

Each case depends on its own facts and circumstances. In the present c.a_!e the straightforward nature of the deposition o, f these two witnesses and the fact that they were undoubtedly in a position to identify the assailants of their father coupled with the recovery of blood-stained earth from the place of occurrence leave no reasonable doubt about the guilt of the

accused persons. The High Court has clearly taken an unreasonable and erroneous view which is not warranted bv the material on the record and has reversed the judgment of the-trial court on grounds which are manifestly fallacious and untenable. Relying on P.Ws 1 and 2 and the attending circumstances of the case we are constrained to allow the appeal and setting aside the judgment of the High Court, convict the six respondents in this Court for the offences rthey were charged with and convicted by the trial COurt.

The next question which arises relates to that of sentence. This is a matter which requires the exercise of sound judicial discretion.

After the amendment of sec. 367, Cr. P.C. in 1955, it is no longer necessary to assign reasons for awarding the lesser penalty in the case of conviction for the offence of murder. The Comt is now free in its discretion to award any one of the two sentences prescribed by s. 302, J.P.C. The trial court had. of course imposed capital sentence on four accused persons and life imprisonment on two. Of these two, one was shown leniency because he was a budding lawyer and the ather because a.I' being young. We consider it proper to record our inability to appreciate the leniency shown in the case of a budding lawyer who, because of his education and profession was, in our opinion, expected to exercise restraining influence on his associates rather than allow himself to be misled into b'eing a party to such gruesome murder. Those who live by the law are expected to abide by the law and not violate it by volmrtarily participating in violent crimes like murder motivated by personal animosity. His participation in the present crime should, in our opinion, have been considered as an agravating rather than an extenuating circumstance. It is indeed incongruous to contend that success in legal profession by itself mitigates the culpability of the guilty lawyer.

However, since now this Court hts to determine the proper sentence to be imposed after

converting the acquittal int.o conviction, in our opinion, in view of the facts that ( i) the murder was committed as far back as 1968; (ii) on conviction by the trial c_ourt on ptember 1, 1969, the accused were sentenced to death with the result that till !heir ucquittal by the High Coart the shadow of. death because of the capital sentence must have haun!ed them; (Hi) they were acquitted (though wrongly) by the High Court as far back as May, 1970; i'nd (iv) it is not possible to assign with certainty the fatal blows on the vulnerable parts. of the body of the deceased to any particular accused person or persons, it would meet the ends of justice if we sentence them all to imprisonment for life.

We are not unmindful of the facts that the murder was really gruesome and cowardly and the accused being highly influential persons, had also apIJ<lrent!y successfully influenced and dissuaded a number of eyewitnesses from stating the truth in court, but keeping in view all the considerations already mentioned, we feel that the more appropriate sentence in this case would be that.of life imprisonment on all the six respondents. The conviction and sentence for the theft of the gun as imposed by the trial court is also testored. The sentences on Paras Nath Singh are to be concurrent. The appeal is accordingly allowed in the terms just stated. ·

V.P.S.

Appeal allowed.

STATE OF U

PARAS NATH SINGH & ORS

January 15, 1973

A. ALAGIRISWAMI

I. D. DUA

s. 302

I.P.C

Uon

s. 540

s. 479A

Bui

P. Rana

Nuruddin Ahmad

U. P. Singh

DuA

State of U. P.

Allahabad High Court

May 18, 1970

Indian Penal Code

Paras Nath Singh

Ramendra Pratap Singh

Hari Saran Singh

Lal Pratap Singh

s. 302

s. 149

I.P.C

Surendra Pratap Singh

Shiva Pratap Singh

Shiv Pratap Singh

s. 14

s. 148

aras Nath Singh

s. 397

Suresh Singh

July 9, 1968

Isanpur

Ramendra Pratap

s. 307

I.P.C

Surendra . Pratap Singh

Vijai Bahadur Singh

s. 107

Pratapgarh

Snresh Singh

Sheela Devi

Sachendra Pratap Singh

Shiva. Pratap

Singh

Mahabir Singh

Ranmast Singh

Jagdish Bahadur Singh

Mahabir

Sheela Devi

Sundari Devi

District Hospital, Pratapgarh

Pipari

Kotwali

Kotwali police station

ss. 302

I.P.C

Kandhai

s. 379

s. 149

I.P.C

Sadhy

Nankoo

Munna

Sheo Prat•p Singh

Diwan Mau

Sadar Police Station

Paras Nath

Sarvashri Ram Pratap Singh

Krishnapal. Singh

Ran1esh Prasad Singh

Ruddar Pratap Singh

Shiva Pratap Singh

Ranmast Singh

Jagdish Bahadur Singh

s. 540

Section 540

July 9, 1969

sections 307, 323

sections 107

Ramendra

lnder Singh

Ramendra Pratap Singh

November 1, 1967

Ramendra Pralap Singh

Raghav Pratap Singh

Krishna Pr<(tap Singh

Lacerated wound

.Sachendra Pratap Singh

Shil\i Devi

Schendra Pratap-Singh

s. 497A

Sheo Pratap Singh

Birju Singh

May 11, 1970

Rana

Uttar Pradesh

Nuruddin Ahmad

Indian Penal Code

Tripathi

Bhagwati Prasad

section 479A

SUPRDIE COl

sec. 367

s. 302