• Bench: Gajendragadkar, P.B (CJ)
• Petitioner: Masalti
• Respondent: State of UP

Issue:

Whether the conclusions recorded by the High Court were valid?

Facts:

• Forty persons were charged with having committed several offenses, the principle one was under Section 302 read with Section 149 of the Indian Penal Code. The case against these persons was tried by the first Additional Sessions Judge at Jhansi.

• The other charges framed against them were under section 307/149, 201/149 &SI 1, 395, 396, 149, 449 of IPC. The learned trial Judge held none of the charges under section 395 and 396 were not proved against any one of them.

• In regards with other charges he found that 35 of the 40 accused were guilty. For the major offence charged under Section 302/149, he sentenced 10 accused persons to death and 25 others to imprisonment for life.

• He directed the said accused persons to undergo different terms of imprisonment for the remaining offenses.

• The 35 accused persons who had been convicted preferred three appeals between them before the Allahabad High Court, whereas the sentences of death imposed on 10 of them were submitted to the High Court for confirmation.

• The High Court held that 7 out of 35 appellants were not proved to have committed any of the offenses, and so, they were acquitted. In regard with 28 other appellants, the High Court confirmed the orders of conviction and sentence imposed on them by the Trial Court. The confirmation of the death sentences imposed on 10 accused persons by trail court was allowed as well.

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• Against the decision of the High Court, five appeals were filed in the Supreme Court by special leave, and the number of accused persons who brought these appeals was 16.

Appellant's Arguments:

• High Court has failed in discharging its duty properly when it dealt with the appeals brought by the appellants and decided to confirm the death sentences imposed by the Trial Court on 10 accused persons.

• The counsel for the appellant relied upon the decisions of the Supreme Court for the case of Jammuna & Ors. Vs The State of Punjab.

• Essential requirements of Section 374 have not been complied with by the High Court when it deal with appeals of the present proceedings.

• Since 10 persons have been ordered to be hanged, that itself is a reason why the High Court should have examined the evidence for itself and not hold that the appellants are concluded by the concurrent findings of fact recorded by the Court below.

• High Court has not considered one important point in favour of the defence, and that it is in to the failure of the prosecution to tender three material witnesses whose names had been shown in the witness-list in the calender sent by the committing Magistrate of the trial Judge.

• Where witnessed giving evidence in a murder trial like the present are shown to belong to the faction of victims, their evidence should not be accepted, because they are prone to involve falsely the members of the rival faction out of enmity and partisan feeling.

• The evidence given by the witnesses conforms top the same uniform pattern and since no specific part is assigned to all the assailants, that evidence should not have been accepted.

• The test applied by the High Court in convicting the appellants is mechanical. Under the Indian Evidence Act, trustworthy evidence given by half a dozen witnesses which is not trustworthy would not be enough to sustain the conviction.

• High Court failed to give effect to the principles enunciated by the Supreme Court in the case of Baladin vs State of UP.

Judgment:

The Court refused to accept the argument urged by the counsel of the Appellants, Mr.Sawhney, that the test adopted by the High Court in dealing with the question of sentence is mechanical and unreasonable. The Court modified the punishment of two accused, who were the son of accused No.2, and another one who was also sentenced to death, to life imprisonment; as court was satisfied that these young men must have joined the unlawful assembly under pressure and influence of the elders of their respective families; because only then the ends of justice would meet, the Court mentioned. The orders of conviction and sentence passed against all the other appellants were confirmed. In the result, the appeal was dismissed.

Relevant Paragraphs:

We have carefully considered the judgment delivered by the High Court in these appeals and we are satisfied that the criticism made by Mr. Sawhney that the High Court did not bestow due care and attention on the points involved in the case, cannot be regarded as well- founded, The judgment shows that the arguments which were urged on behalf of the appellants, have been carefully examined, the evidence given by the respective witnesses has been accurately summari >z ed and the infirmities in the said evidence closely scrutini >z ed. The relevance of the argument of the admitted enmity between the two factions of the village has been taken into account and the common features of the evidence tendered by the witnesses have not been overlooked. After taking into account all the points which were urged before the High Court the High Court adopted what it thought to be a safe test before acting on direct evidence. It has held that unless at least four witnesses are shown to have given a consistent account against any of the appellants. the case against them cannot be said to have been proved beyond reasonable doubt. Having regard to the manner in which the High Court has dealt with the appeals brought before it, we are not prepared to hold that the general criticism made by Mr. Sawhney against the judgment of the High Court can be accepted.

In rejecting the applications made by the defence, the learned Judge has carefully examined the validity of the defence contention that the evidence given by the said witnesses before the Committing Magistrate showed that they were material witnesses and the plea raised by them that the absence of their evidence would cause prejudice to the defence, and has held that the evidence which the said three witnesses may give was not essential for a just decision of the case and that it was unreasonable to suggest that the prosecution had an oblique mo >t ive in >suppressing their evidence. This part of the judgment clearly shows that all relevant aspects of the matter were examined by the trial Judge before he refused to exercise his powers under s.540, Cr. P.C. It is obvious that this contention was not urged before the High Court, and so, we find no discussion of the point in the judgment of the High Court.

We are not prepared to accept Mr. Sawhney's argument that even if this point was not raised by the appellants before the High Court, they are entitled to ask us to consider that point having regard to the fact that 10 persons have been ordered to be hanged. It may be conceded that if a point of fact which plainly arises on the record, or a point of law which is relevant and material and can be argued without any further evidence being taken, was urged before the trial Court and after it was rejected by it was not repeated before the High Court, it may, in a proper case, be permissible to the appellants to ask this Court to consider that point in an appeal under Art. 136 of the Constitution; afterall in criminal proceedings of this character where sentences of death are imposed on the appellants, it may not be appropriate to refuse to consider relevant and material pleas of fact and law only on the ground that they were not urged before the High Court. If it is shown that the pleas were actually urged before the High Court and had not been considered by it, then, of course, the party is entitled as a matter of right to obtain a decision on those pleas from this Court. But even otherwise no hard and fast rule can be laid down prohibiting such pleas being raised in appeals under  Art. 136.

The other aspect of the matter is that the trial Court has found that the evidence which these witnesses would have given was not essential for a just decision of the case. What these witnesses might have said in the Sessions Court was judged by the trial Court in the light of their previous statements already recorded, and that is a finding which is purely one of fact. If this finding was not challenged by the appellants before the High Court, we do not see how they can claim to argue before us now that the said finding is erroneous.

 In a sense, the test may be described as mechanical; but it is difficult to see how it can be treated as irrational or unreasonable. Therefore, we do not think that any grievance can be made by the appellants against the adoption of this test. If at all the prosecution may be entitled to say that the seven accused persons were acquitted because their cases did not satisfy the mechanical test of four witnesses, and if the said test had not been applied, they might as well have been convicted. It is, no doubt, the quality of the evidence that matters and not the number of witnesses who give such evidence. But, sometimes it is useful to adopt a test like the one which the High Court has adopted in dealing with the present case.

In this case, the High Court has carefully examined the evidence and has made a finding that the whole group of persons who constituted the assembly were members of the faction of Laxmi Prasad and they assembled together, armed with several weapons, because they entertained a common object in pursuance of which the five murders were committed on that day. Therefore, there is no substance in the argument that the conclusion of the High Court that the appellants are guilty of the offences charged is not sup- ported by the principles of law enunciated by this Court in the case of Baladin >. Whether or not sentences of death should be imposed on persons who are found to be guilty not because they themselves committed the murder, but because they were members of an unlawful assembly and the offence of murder was committed by one or more of the members of such an assembly in pursuance of the common object of that assembly, is a matter which had to be decided on the facts and circumstances of each case. In the present case, it is clear that the whole group of persons belonged to Laxmi Prasad's faction, joined together armed with deadly weapons and they were inspired by the common object of exterminating the male members in the family of Gayadin, 10 of these persons were armed with fire-arms and the others with several other deadly weapons, and evidence shows that five murders by shooting were committed by the members of this unlawful assesmbly. The conduct of the members of the unlawful assembly both before and after the commission of the offence has been considered by the courts below and it has been held that in order to suppress such fantastic criminal conduct on the part of villagers it is necessary to impose the sentences of death on 10 members of the unlawful assembly who were armed with firearms. It cannot be said that discretion in the matter has been improperly exercised either by the trial Court or by the High Court.