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PETITIONER: STATE OF U.P.

       Vs.

RESPONDENT: PARAS NATH SINGH & ORS.

DATE OF JUDGMENT15/01/1973

BENCH: DUA, I.D. BENCH: DUA, I.D. ALAGIRISWAMI, A. VAIDYIALINGAM, C.A.

CITATION:  1973 AIR 1073            1973 SCR  (1) 313  CITATOR INFO :  E&D        1989 SC1335  (60)

ACT: Criminal law-Practice and procedure-Eye witnesses  relatives of  deceased-No  intrinsic infirmity  in  their  evidence-If corroboration  necessary for sustaining  conviction-Sentence of   life   imprisonment  instead   of   death-Circumstances justifying.

HEADNOTE: The  six respondents (accused) were convicted by  the  trial Court  for  offences under 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  15 years old.  The son and daughter of the  deceased were  examined  as eye witnesses to  the  occurrence.   Four persons, who were cited as eye-witnesses by the prosecution, were   given  up,  because,  the  counsel  for   prosecution represented  that he had reason to believe that  they  would not  speak  the truth.  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  governing the  appreciation  of the evidence of a  child  witness  and accepted their evidence as true.  The High 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 consideration of the additional evidence recorded by it. Feeling wholly unimpressed by that evidence, the High  Court endorsed  the view of the prosecution that  these  witnesses were  given up as they were not prepared to speak the  truth and even issued notice under s. 479A, Cr.  P. C. to one  of. them  to  show  cause why he should not  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.  But,  the  High  Court acquitted the accused on the view that the son and daughter, being closely related to the deceased and being in a  sense, chance  witnesses, their evidence without corroboration  did not prove the, guilt of the accused beyond reasonable doubt. HELD  :  (1) The judgment of the High  Court  reversing  the

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judgment  of  the  trial court and  acquitting  the  accused caused grave miscarriage of justice. [325B-C] Once  the  two  eye witnesses were held  to  be  trustworthy witnesses  there  was no cogent reason for not  acting  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 obstructed  the  course of justice, 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 is no material on record to support such an observation.  and the observation runs counter to  the  High Court’s own line of 314 reasoning   earlier.    There   is   thus   absolutely    no justification  for the view that their testimony leaves  any scope  for reasonable doubt about the guilt of the  accused. It   could   not  be  considered  that  because   of   their relationship  to  the deceased, they would  spare  the  real assailants  and  falsely 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-326C] In the present case, there is an instrinsic 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 to,  identify  the  assailants coupled  with the recovery of blood-stained earth  from  the place  of  occurrence leave no reasonable  doubt  about  the guilt of the accused. [326C-D] (2)  No  leniency  should have been shown  to  the  ’budding lawyer’,  because,  he, as a result of  his  education  and profession should have ,exercised a restraining influence 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 conviction 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 sentencing all the accused  to imprisonment for life. [326G-H; 327A-C]

JUDGMENT: ORIGINAL APPELLATE JURISDICTION : Criminal Appeal No. 49  of 1971. Appeal by special leave from the judgment and order May  18, 1970  of the Allahabad High Court at Allahabad  in  Criminal Appeal No. 1947 of 1969. O. P. Rana for the appellant. Nuruddin Ahmad and U. P. Singh for the respondents. 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

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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 imprisonment.  Leniency was shown to them by the 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), 315 was  considered  to  have  apparently  been  misled  by  his relations.   Excepting Surendra Pratap Singh and Hari  Saran Singh, the remaining accused were also sentenced to rigorous imprisonment  for  one year each under S. 147,  I.P.C.  They were further convicted under s. 148, I.P.C. and sentenced to rigorous  imprisonment  for two years each.   Accused  Paras Nath   Singh   was  in  addition,  sentenced   to   rigorous imprisonment for six months under s. 397, I.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 the container.  The deceased and the accused  are all  Thakurs by caste residing in village Isanpur.   Accused Surendra Pratap Singh and Ramendra Pratap Singh are brothers residing  in a house adjoining that of the  deceased,  being thus  his next door neighbours.  Shiva Pratap Singh and  Lal Pratap Singh are cousins and the other accused per-sons  are said to be their associates.  There was long standing enmity between  the  deceased on the one hand 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 the 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 rise 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 the, occurrence  in question on July 9, 1968, Suresh Singh deceased had gone  to Pratapgarh on cycle for some work carrying with him his  gun 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-Kandbai  kachha  road,  all  the accused   persons  emerged  from  the  nearby  Nala.    They surrounded  their  victim  Suresh Singh,  shouting  that  he should be killed because he posed to be a great leader.  The accused  who  were  armed with lathis,  spears  and  farsha, assaulted the deceased with their respective weapons.  Sint. Sheela Devi, P.W. 1, daughter of the deceased and  Sachendra Pratap Singh, (P.W. 2) son of the deceased also happened  to 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 mala where they saw the accused assaulting their  father with  lathis,  spears and farsha.   Several  other  persons, including Shiva Pratap 5-L796Sup. C.I./73 316 Singh,  Mahabir  Singh, Ranmast Singh  and  Jagdish  Bahadur

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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 to Diwan Mau from where he was taken in a  taxi  to the District Hospital, Pratapgarh.  Suresh Singh appears  to have expired on his 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  the occurrence (Ex.  Ka-1) at the  hospital  and gong  with  the dead body, 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.  302/147/1481  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  witnesses  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 prosecution 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 they  reached  the  kachcha road.  They went towards the side from which the noise  came and saw that their father was being beaten by Lalji,  Chotey Lal  Sadhy  and Nankoo with lathis, Hari  Saran  Singh  with ballam and Munna who is also called Sheo Pratap Singh,  with farsha.   They took her father down into the Nala  shouting, "kill  the  sala he was playing the Part  of  Netagiri  very much".  After the accused had run away, P.W. 1 went near her father who. though badly injured, was still in a position to speak.  He told her and the other persons ,who had assembled there that the accused persons had been hiding 317 inside  the Nala and that they had forcibly taken  him  away from  the road into the Nala and beaten him.  She  sent  her father’s  cycle  and jhola home through Mahabir  Singh  also requesting   him  to  send  her  mother  to  the  place   of occurrence.   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

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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, Ramesh 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 being produced as  witnesses  by  the prosecution.  It was suggested that ;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 persons recorded a note opposing the suggestion  and describing the allegation against the witnesses as baseless. Section 540, Cr.  P.C., according to the defence counsel was inapplicable and he also declined to examine these witnesses in defence.  The said witnesses were in these  circumstances discharged by the trial court on July 9, 1969. 318 The  trial court in a very detailed and exhaustive  judgment dealing  with every aspect in a very lucid manner,  came  to the  conclusion  that P.W. 1 and P.W. 2 were  both  truthful witnesses  and their sincerity and honesty in  speaking  the truth  could  not be doubted.  After stating  the  principle governing the evidentiary value of the testimony of a  child witness,  the trial court made the.  following  observations about the quality and value of the evidence of P.W. 2               "He  has been cross-examined at a  very  great               length  and that too by four sets  of  defence               lawyers  repute.  It is 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  occur-               rence and had he been examined after  tutoring               he  could  not have remained firm even  for  a               single moment.  Tile 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  any-               where  during the 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

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             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 truthful and honest the  P.Ws.  1               and 2 would have collapsed under the weight of               this trying and tiring cross-examination". The  testimony  of P.W. 2 according to the trial  court  was fully supported and corroborated by his sister, P.W. 1,  who has unfolded the prosecution 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. must have been awe               striking and 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  target.               This psychoanalysis of the               319               situation  too has to be kept in  mind  before               giving 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,               I.P.C.  and under sections 107/117, Cr.   P.C.               Were pending at 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 that 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 to the  murder               of  their father and in that case the fact  of               even the death of the deceased would have been               enveloped in darkness.               Whatever reason may be there to it there is no               denying  the fact that witnesses in  the  case               have   kept  back  and  have  avoided   coming               forward.  In 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.  Inder  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               $core,, Thus in the case of the present nature               no one could like to invite trouble for him by               coming  in the witness box.  There is not  the               least doubt that either because of fear or be-               cause  of other influences witnesses have  not               liked  to  involve themselves in  the  matter.               Thus   considering   the  evidence   and   the               circumstances  of  the case I  feel  that  the               explanation   offered   by   the   prosecution

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             regarding  the  absence of other P.Ws  in  the               witness box has got to be accepted.   Exhibits               Ka-14  and Ka-16 also lend assurance  to  this               finding". November  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 at 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 Pratap  Singh  was  alleged to have  fired  from  the  upper portion  of  his house about 8 or 10 shots at  Suresh  Singh from a double barrelled gun 320 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 the hands of Ramendra Pratap Singh, Krishna Pratap 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  the trial court all those persons  who  might have  witnessed this occurrence must have been impressed  by the  fact that the accused meant business and nothing  could deter them from accomplishing their objective.  The  follow- ing  ante-mortem  injuries were found on the person  of  the deceased 1.   Lacerated  wound 2" x I" bone deep on the  fore-head  1 1/2" above the right eye-brow. 2.   Lacerated  wound  1" x 1/4" x scalp, deep  just  behind injury no. 1. 3.   Abrasion  1/2" x I" on the forehead 2" above  the  left eyebrow. 4.   Incised  wound 21" x I"’ bone deep I" behind  the  left ear ’directed downwards and outward-.. 5.   Incised  wound 3" x I" muscle deep on the left side  of the face directed downwards and outwards 6.   Incised wound 1" x 1/4" muscle deep just below the left eye directed downwards and outwards. 7.   Punctured wound I" x I’ x 1 1/2" over the bridge of the nose directed upwards and inwards. 8.   Incised wound II"’ x I" x muscle deep on the lower part of the face below the chin. 9.   Contusion I" x I’ on the top of the right shoulder. 10.  Contusion  3"  x II’-’ 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 /3. 12.  Contusion  3"  x If’ on the back of the  right  forearm middle 1/3. 13.  Contusion 1" x 1" on the back of the right wrist. 14.  Contusion 3"’ x 2" on the back of the right hand. 15.  Lacerated  wound I" x I" 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. 321 17.  Contusion 2" x I" on the front of the right thigh  mid- dle 1 / 3. 18.  Contusion 2 1/2" x 1/4" on the front of the right thigh I" below injury no. 17. 19.  Contusion  3"  x  1/4" on the right  thigh  just  below injury no. 18. 20.  Contusion  3"  x  1/4" on the right  thigh  1/2"  below injury no. 19.

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21.  Contusion  3"  x 1/2" on the front of the  right  thigh just above the knee joint. 22.  Contusion 2" x I" on the top of the left shoulder. 23.  Contusion 2" x 1/4" on the lateral surface of the  left arm upper 1 / 3. 24.  Contusion 3" x I" on the back of the left forearm upper 1 13. 25.  Contusion 3" x 1 1/2" on the right forearm lower 1/3. 26.  Contusion 1 1/2" x I" on the back of the left wrist. 27.  Contusion I" x I" on the back of the left hand. 28.  Contusion 3" x I" on the front of the left thigh middle 1/3. 29.  Contusion  3 1/4" x 1" on the front of the  left  thigh lower 1/3. 30.  Abrasion 1" x I" on the front of the left knee. 1.   Multiple abrasion in an area of 2" x 1 I" on the  front of the left leg upper 1/3., 32.  Abrasion I" x I" on the front of the left leg upper 1/3 x 1" below injury no. 31. 33.  Abrasion  l"’ x I" 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 I" x I" on the right side of the back  middle 1/3. 36.  Punctured wound 1/2" x I" on the left side of the  back middle  1/3  close  to the mid line  of  the  back  directed downwards and outwards. 37.  Punctured wound I" x 1/4" on the left side of the  back lower 1/3 directed downwards and outwards. Relying on the evidence of P.Ws 1, 2 and 4, the trial  court convicted the accused persons, as already noticed. 322 An appeal was preferred to the High Court by the six accused persons  against  their conviction and sentence and  in  the memorandum of appeal the only grounds taken were : (1)  that the  conviction was bad in law; (2) that the conviction  was against  the weight of evidence; and (3) that  the  sentence was  too  severe.  Death sentence on four of them  was  also before that court for confirmation. The High Court after noticing the circumstances in which the four witnesses mentioned earlier had been discharged by  the trial court, considered it necessary to examine them  itself as court witnesses.  They were examined in the High Court in May,  1970.  All of them denied having been present  at  the 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 he place where Suresh Singh had been murdered but according  to  it (to quote its own words) :  "The  question that remains. to be decided is whether the testimony of P.W. 1 Smt.  Sheela Devi and P.W. 2, Sachendra- Pratap Singh  who are the daughter and son of Suresh Singh, can be  believed". After holding the four witnesses examined by the High  Court on  appeal  to be untruthful, the High  Court  proceeded  to scrutinise  the evidence of P.Ws 1 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 observed :

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             "We have therefore come to the conclusion that               there is nothing inherently imporbable in  the               statement of P.W.1 Smt.  Shila Devi, and  P.W.               2,   Sachendra  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-               witnesses’ and unholding the conviction of the               appellants,  but rules of prudence and  safety               have   to   be   taken   into   consideration.               Therefore, having given the matter our anxious               thought  even  though  we hold  that  we  find               nothing improbable in the statements of  these               two eye-witnesses, we, think it proper not  to               act  on the uncorroborated testimony of  these               witnesses.  We, there-               323               fore, by the way of abundant caution give  the               appellants the benefit of the doubt". With  these concluding observations the High  Court  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 (I  the State of Uttar Pradesh has submitted that the High Court has gone  seriously  wrong  in acquitting  the  accused  persons merely  on  the ground 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 to the appellant’s submission, seriously erred in ignoring its own earlier conclusion  that the  other  witnesses dropped by the  prosecution  who  were expected  to corroborate P.Ws 1 and 2, were not prepared  to speak the truth.  This was a sufficiently cogent reason  for not producing them and for placing complete reliance on  the sole testimony of P.Ws 1 and 2. The observation 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  1 and  2. On the circumstances of this case, according to  the appellant’s  counsel the evidence of P.Ws 1 and 2  had  been rightly  accepted  by  the trial court and  the  high  Court erroneously  required further corroboration for acting  upon their evidence.  The decision of the High Court, it has been emphasised, erroneous as it is, has resulted in In  reply, Mr. Nuruddin Ahmad has with his usual  persuasive 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 of mind and also  while endorsing the impression of the trial court that even on the matter of minute details P.W. 2 did not get confused 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 made up  a  story

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about  the manner in which their father met with  his  death with  the  sole object of falsely  implicating  the  accused persons who are their enemies.  The submission proceeds that neither was the deceased killed at the time stated by  these witnesses nor were they present 324 at the spot to witness their father’s murder.  The deceased, it  is  suggested, had also several other  enemies  and  his murder  was  in   all probability committed  by  some  other person  or persons who had their own scores to  settle  with him.   The  children  of the de’ ceased  who  are  extremely intelligent,  have 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.I.R. or in the statements of either of the  two eyewitnesses  has  been  very  strongly  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 on 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 be 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  know ledger  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  falsely  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 been  lodged by P.W. 1 after consulting Bhagwati Prasad  but this  suggestion was’ denied by them.  Still  another  point has  been forcefully urged by the counsel that according  to P.Ws 1 and 2 a large number of people had gone for  shopping to the Rahaha Bazar on that day and, therefore, many  people would have noticed the occurrence, if 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 325 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 1  and  2.  The absence   of  other  witnesses  from  the  witness  box   is satisfactorily  explained  by  the  prosecution  and   after

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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 evidence  of  P.Ws 1 and 2 and after  applying  the  correct principles  governing the 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 considered and repelled.  The High  Court on  appeal  devoted  a major part of  its  judgment  to  the 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 because 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 should not be prosecuted for perjury.  It  disagreed with  all the main arguments urged on behalf of the  accused persons  for discrediting the testimony of P.Ws Land 2,  but curiously enough, acquitted the accused persons on the view- which we must confess is not easy to appreciate-that P.Ws  1 and  2 being closely related to the deceased and being in  a sense chance witnesses, their evidence without corroboration did  not  prove the guilt of the accused  beyond  reasonable doubt.  We are not able to endorse this view which seeing to us  to  be  both unreasonable and  not  supportable  on  the material  on  record.   Once P.Ws 1 and 2  are  held  to  be trustworthy,  witnesses then there does not seem to  be  any cogent reason for not acting 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  is  wholly unreasonable  for  the  High Court to dub P.Ws 1  and  2  as chance witnesses : we find no cogent material on the  record to  support  this  observation.   Indeed  this,  observation ignores and to 326 an extent runs counter to the High Court’s own earlier  line of   reasoning.    There  is,  we   think,   absolutely   no justification  for the view that their testimony leaves  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 circumstances of this case there is  hardly  any scope for such a hypothesis.   To  us  there appears an intrinsic ring ,of truth in the statements of the two eye-witnesses which disclose no infirmity.  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 depends on. its own  facts  and circumstances.   In  the present  case  the  straightforward nature  ,of  the deposition of these two witnesses  and  the fact  that they were undoubtedly in a position  to  identify

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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  unreason,able  and erroneous vie which is not warranted by 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 they 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 Court is now free  in  its discretion to award any one of the two sentences  prescribed by  S.  302, I.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  other-because  of 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 being  a party to such gruesome murder.  Those who  live  by the law are expected to abide by the law and not violate  it by  voluntarily 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 aggravating rather than an extenuating  circumstance. It is indeed incon- 327 gruous to contend that success in legal profession by itself miti-gates the culpability of the guilty lawyer.  However., since now this Court has to determine the proper sentence to be  imposed after converting the acquittal into  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 court on September 1, 1969, the accused were sentenced to  death with the result that till their acquittal  by  the High  Court  the  shadow of death  because  of  the  capital sentence  must have haunted them; (iii) they were  acquitted (though wrongly) by the High Court as far back as May, 1970; and  (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 apparently 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 restored.  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. 328

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