CASE NO.: Appeal (civil) 14152 of 1996 PETITIONER: STATE OF U.P. RESPONDENT: ALLIED CONSTRUCTIONS DATE OF JUDGMENT: 31/07/2003 BENCH: V.N. KHARE CJ & K.G. BALAKRISHNAN & S.B. SINHA JUDGMENT:

JUDGMENT 2003 Supp(2) SCR 55 The following Order of the Court was delivered :

Under a contract entered into by and between the appellant and the respondent, the respondent undertook construction of bridge-cum-fall at Munda Khera Scape at the estimated cost of Rs. 37.2 lakhs. While the work was in progress, the work area was flooded in the night of August 25 and 26, 1991.

The respondent-contractor herein filed a claim on account of loss sustained by him due to flooding of the work area. Ultimately, the matter was referred to an arbitrator. The arbitrator gave an award for payment of a sum of Rs. 12,55,365 together with interest at the rate of 18 per cent from 1.11.1991 till the date of the award and 6 per cent thereafter. The respondent filed the award for being made rule of the <ORG>. The appellant herein filed a petition, inter alia, on the ground that the arbitrator has misconducted the proceedings, inasmuch as the force majeure contained in Clause 47 disentitled the respondent from making any claim which was on account of unprecedented rain. The said objection was rejected and the award was made rule of the <ORG>. The appellant thereafter filed a first appeal from order before the High <ORG> and the same was dismissed. It is against the said judgment, the appellant is in appeal before us.

Learned counsel appearing for the appellant reiterated his argument raised before <ORG>. In fact, his argument based on force majeure is that because of unprecendented rain the liability of loss cannot be thrust upon the appellant. We do not find any merit in this contention. Clause 47 of the Agreement runs as under:

"Neither party shall be liable to the other for any loss or damage occasioned by or arising out of act of God, such as unprecedented flood, volcanic eruption, earthquake or other convulsion of nature and other acts such as but not restricted to general strikes, invasion, the act of foreign countries; hostilities or warlike operations before or after declaration of war; rebellion, military or usurped power which prevent performance of the contract and which could not have been foreseen or avoided by a prudent person."

A perusal of Clause 47 reproduced above shows that it protected the State from liability and damage occasioned by unprecedented flood which could not have been foreseen or avoided as a prudent person. The appellant herein did not lead any evidence before the arbitrator that the rain as a result of which the loss was sustained by the respondent was unprecedented and in fact it was an act of God. In absence of such an evidence, the arbitrator as well as <ORG> has recorded a finding of fact that the flood which has caused loss to the respondent was not due to the unprecedented rain and, therefore, Clause 47 of the Agreement was not attracted.

Any award made by an arbitrator can be set aside only if one or the other term specified in Sections 30 and 33 of the Arbitration Act, 1940 is attracted. It is not a case where it can be said that the arbitrator has misconducted the proceedings. It was within his jurisdiction to interpret Clause 47 of the Agreement having regard to the fact-situation obtaining therein. It is submitted that an award made by an arbitrator may be wrong either on law or on fact and error of law on the face of it could not nullify an award. The award is a speaking one. The arbitrator has assigned sufficient and cogent reasons in support thereof. Interpretation of a contract, it is trite, is a matter for arbitrator to determine (see <CITATION> , AIR (1989) SC 890). Section 30 of the Arbitration Act, 1940 providing for setting aside an award is restrictive in its operation. Unless one or the other condition contained in Section 30 is satisfied, an award cannot be set aside. The arbitrator is a Judge chosen by the parties and his decision is final. The <ORG> is precluded from reappraising the evidence. Even in a case where the award contains reasons, the interference therewith would still be not available within the jurisdiction of the <ORG> unless, of course, the reasons are totally perverse or the judgment is based on a wrong proposition of law. An error apparent on the face of the records would not imply closer scrutiny of the merits of documents and materials on record. Once it is found that the view of the arbitrator is a plausible one, the <ORG> will refrain itself from interfering [see <CITATION> .,  3 SCC 397 and <CITATION> ,  6 SCC 347].

For that reason, we are of the view that the appeal has no merit and must fail. However, the parties are agreed that from the date of filing of the claim till the date of award the interest chargeable would be at the rate of 1? per cent in place of 18 per cent. For that reason, the award and judgment under challenge stand modified to that extent.

The appeal is disposed of in the aforesaid terms. There shall be no order as to costs.


JUDGMENT <NAME>, J.

1. These criminal appeals by special leave are by <NAME>, <NAME> alias Sri Narain and <NAME> respectively from the. Judgment of <ORG> by which the order of acquittal passed by the learned <ORG> Judge, Kanpur is set aside and they have been convicted under Section 302 r/w Section 34, I.P.C . and sentenced to imprisonment for life. <NAME>, <NAME> and <NAME> alias Shri Narain were accused Nos. 1 to 3 respectively in <ORG>. The charge against them was that they had, in furtherance of their common intention, committed the murder of one <NAME> at about 8.10 P.M on April 23, 1964 in front of the shop of a milk vendor, Chhunno, situate in Lathi Mohal P.S. Collectorganj in the City of Kanpur.

2. The deceased <NAME> was about 22 years old and was the son of one <NAME>. <NAME> had two shops-one in the Generalganj Bazar bearing the name of <NAME> Raj Kishore. The main business of sale and purchase was carried on in that shop. The other shop was in the Panch Kucha lane and bore the name of <NAME> Dalai. This shop was mainly concerned with the maintenance of <NAME> and account books. <NAME>, P.W. 1 was the Munim of <NAME>.

3. About 5 or 6 days prior to the incident the accused <NAME> and <NAME> were gambling in the Ahata of Sawai. <NAME>, the deceased, who happened to pass by the place reprimanded them for these activities. This was not liked by <NAME> and <NAME> who gave a threat to <NAME>. <NAME> reported the matter to his father who, thereupon, instructed his employees that one or the other of them should keep <NAME> company whenever he was going away from the house or the shop.

4. Accordingly, on the night of April 23, 1964 after closing the shop at 8.00 P.M., which was the time for all shops to close, <NAME>, <NAME> and <NAME> started for the latter's house by the aforesaid Generalganj Bazar Street. That street appears to be a one way street and no conveyances, not even Rickshas, were allowed to ply in that street. When the two of them reached near the shop of <NAME>, the milk vendor, they noticed that the three accused were near the aforesaid shop. On seeing them, they came up, <NAME> addressed <NAME> reminding him about the superior airs about gambling which he displayed a few days ago and told him that he now wanted to settle scores with him. <NAME> retorted that he had seen many a person like <NAME> whereupon <NAME> asked the other two accused to finish <NAME>. Thereupon <NAME> and <NAME> each whipped out a knife and attacked <NAME> in the back. <NAME> made an attempt to run but <NAME> caught hold of him by his hand. <NAME> fell on the ground there and became unconscious. The incident attracted a number of persons and as the miscreants were running away, shouts were uttered and they were chased by <NAME>, <NAME>, <NAME>. P.W. 2, <NAME>, P.W. 5 and one <NAME> all of whom caught <NAME> before he had run five or six paces while the other two accused <NAME> and <NAME> ran away and disappeared. <NAME> had still the knife in his hand. He was disarmed by <NAME>, <NAME>. A large crowd had gathered on the spot and just when the captors of <NAME> were thinking of taking him to the Police Station, <NAME>. <NAME> the brother of <NAME>, came on the scene. He was coming from the shop of one <ORG> in the same street after closing the shop at about 8.00 P.M. On the way he had seen a crowd and hastened to the spot. From some distance he first saw that <NAME>, <NAME> and two or three other persons had caught hold of <NAME> and after advancing further he saw his brother <NAME> lying on the road with injuries. <NAME> shortly told him that <NAME> had been stabbed by two or three persons and. that they were taking <NAME> to the Police Station. He left it to <NAME> to remove <NAME> to the hospital. The captors of <NAME> then took him to the Police Station of Collectorganj. The Sub-Inspector <NAME>, <NAME>7 was present in the Police Station along with Head Constable <NAME>, <NAME>0 who was the Head Moharrir. The later recorded <NAME>'s statement as per Ext. K.I. <NAME> was taken into custody. A seizure memo was made of the blood stained knife as per Ext. K. 2. It was found that there were blood stains on the shirt of <NAME> and so the shirt was also seized under the Memo Ext. K. 3. The knife and shirt are Exts. 1 and 2 in the case. These were sent to the Chemical Analyser in due course who certified that whereas there was human blood on the shirt, the blood on the knife had disintegrated.

5. While <NAME> was recording the complaint of <NAME>, a telephone message was received at 20.35 hours i. e. 8.35 P.M from Sub-Inspector <NAME>, P.W. 8 who was in-charge of <ORG>. The message was that a man was lying injured at the crossing of <NAME>. <NAME> informed <ORG> that a report in respect of the occurrence had been already lodged and necessary action was being taken. The necessary entries were made with regard to the progress of the investigation in the General Diary of the Police Station and <NAME> went on duty at 9.00 P.M-his place being taken by Head Constable <NAME>. P.W. 13.

6. The source of <NAME> information in the Control Room that a man was lying near the gate of <NAME> was <NAME>. P.W. 12. <NAME> is a local Advocate and has his house only 40 or 50 paces from the shop of <NAME> the milk vendor. On being informed by somebody that a man was lying injured, he went to the place and saw the injured person. Nobody gave him any in formation as to who he was and what had happened and so he went back to his house and at 8.34 P.M telephoned to the Control Room informing it that a man was lying injured near the gate of <NAME> and a patrol car should be sent. It was this message from <NAME> which was picked by <NAME> in the Control Room. On receiving that message, he sent a wireless message to patrol car No. 2 in-charge of <NAME>, P.W. 9 and at the same time also sent the message to <ORG> within whose jurisdiction the man was lying. That is how at 8.35 P.M. <NAME>, P.W, 10 received the message from the Control Room which was duly recorded by him in the General Diary of the Station.

7. On receiving the message from the Control Room <NAME>, P.W. 9 proceeded to the locality indicated. He reached the place at about 8.49 P.M. The man who was standing there said that he was the brother of the injured person (obviously referring to <NAME>, P.W. 7) and gave the name and address of the injured. He then put the injured <NAME> in the car. An Officer of <ORG> and some Constables had already come there. The <ORG> is under the Collectorganj Police Station. He, therefore, took Constable <NAME> of that <ORG> along with him in the car and though the brother of the injured <NAME> wanted to go in the car to the hospital, he could not be accommodated. He left the scene of offence at about 8.54 P.M. and reached <ORG> with the injured at about 8.59 P.M. Dr. <NAME>, P.W. 11 who was in-charge at once examined the injured, person and found that he was, dead. He then informed the Police Station Kot-wali about his death. Message about death was transmitted from the Kotwali Police Station to the Collectorganj Police Station at about 11.30 P.M. and the same was noted by the Head Mohrrir Head Constable <NAME>, P.W. 13.

8. In the meantime <NAME>, P.W. 17 after finishing part of the investigation of the offence, which had been registered as an offence under Section 307 I.P.C. at the Police Station, had gone to the scene of occurrence for further investigation. He recovered the blood stained earth from the place where <NAME> had fallen and recorded also the statements of eye witnesses who had accompanied him from the Police Station. While the investigation was proceeding, the officer received intimation from his Police Station that <NAME>. had died. So he ordered <NAME>, P.W. 16 the Officer incharge of Sirki Outpost, who was there at the place since about 8.30 P.M to proceed to the hospital to prepare the inquest report. He had been instructed to take the duplicate copy of the complaint from the complaint Raja Ram P.W. 1 for the purposes of the inquest. <NAME> went to the hospital at about 12.30 a.m. but there was a delay in obtaining the body in. the hospital. He could actually start his inquest panchnama at about 2. O'clock.

9. In the meantime <NAME>, P.W. 17 continued his investigation at the scene of offence. He started searching for <NAME> and <NAME>. The house of <NAME> which was close to the shop of <NAME>, his uncle was searched at about 1.00 or 1.30 a. m. but he was not found. Thereafter he went to Canal road in search of <NAME>. His house was searched but <NAME> was not found. The search continued till about 10. O' clock on 24-4-1964 but both <NAME> and <NAME> were found to have absconded. After returning to the Police Station at 10.00 A. M. he recorded the statement of <NAME> and sent him to the Jail : Doctor as there were two small injuries on the little finger of the right hand. The search of <NAME> and <NAME> was fruitless and so he reported for proceeding against the accused under Sections 87 and 88 of the Criminal Procedure Code. Thereafter <NAME> Surrendered before a court in Unnao.on 28th April 64 and since he Claimed. to be identified' in an identiflcation; parade at Unnao, a test identification parade was held in the District. Jail Unnao on 11th. June. 1964.At. this; identification parade, he was correctly picked out by <NAME>, P.W. X and <NAME>, P.W. 2. <NAME>, P.W. 5 did not pick him out. As for <NAME>, he surrendered in the court at. Lakhimpur Kheri on 4th May, 1964.

10. On being charged for the murder of <NAME> the accused pleaded not guilty. The case of <NAME> in his statement under Section 342 Criminal Procedure Code was that on the evening in question at about 7.45 p.m. he was returning home from a shop in Collectorganj and when he reached the turning of Jagannath Lane, he saw two or three unknown persons attacking <NAME> with knives. As he knew <NAME>, he went for his rescue but the assailants. turned on him and he received injuries; on both his hands. So leaving <NAME> at the place, he rushed to the <ORG>. Station Collectorganj to give information. He asked the officers to take, down his information but they said that they would make the investigation first and then record his statement. He further stated that he, had been made to sit there in the <ORG> Station till about midnight and the officers asked him to give evidence against two or three persons whose names he could not recall at the time. He refused to oblige saying that though he did not know the names of the assailants, he could recognise them if shown to him. Because of this obstinacy on his part, he alleged, .he had been falsely implicated by the police. He admitted that article No. 2 - the shirt, which he was wearing at the time, contained blood stains and was seized. He, however, denied that the knife Ext. 1 had been snatched from him by P.W. 1 Raja, <NAME>. Though <NAME> had stated that he received injuries on both the hands, it is now established that he had only two wounds on the inner surface of the right hand little finger only - one being a slight lacerated wound and the other an incised wound above it. In the certificate given by the Doctor, however, an inadvertent mistake crept in to the effect that these two wounds were on the left hand little finger. In fact that should be the right hand little finger. The injuries were one above the other on one finger of one hand, that is the right hand and there was no injury on the left hand. We may mention here only that both the courts agree that these injuries on the little finger sustained by <NAME> must have been , caused in the act of inflicting injuries on another person with a knife and not in warding off knife blows by a third person. <NAME> had deliberately told a: falsehood that he had received injuries on both hands taking the cue from the error made in the medical certificate with a view to suggest that the injuries on both hands were more likely to be caused when he was warding off an assault on him.

11. The other two accused namely <NAME> and <NAME> denied participation in the incident and alleged that they had been falsely implicated because of enimity with the police.

12. On behalf of <NAME>. <NAME> D.W. 1 was examined as a witness to suggest that the story told by <NAME> in court was probable.

13. It is not in dispute that deceased <NAME> was attacked with knives at about 8.10 p.m. and he had fallen on the road hardly two or three paces away from the shop of <NAME>, the milk vendor. There is no dispute also that whosoever be the assailants, it was a clear case of murder. The learned Sessions Judge on a consideration of the evidence recorded the following findings:

(1) The motive alleged by the prosecution was substantially proved;

(2) The three eye-witnesses examined in the case namely <NAME>, P.W. 1, <NAME>. P.W. 2 and <NAME>, P.W. 5 were not reliable witnesses, since it was very probable that they were not at the scene of offence at all to witness the assault.

(3) <NAME>, P.W. 7 must not have reached the place of occurrence till after <NAME> had been removed to the hospital.

(4) That the story of <NAME> may not be entirely trustworthy. However his case that he had by himself gone to the Police Station could not be ruled out. The story of the prosecution that he had been caught by the alleged witnesses and others did not appear to be true.

(5) The F.I.R. must not have been recorded at 8.25 p.m. as alleged by the prosecution. The entries made in the General Diary from 8.25 p.m. till the next morning may not have been made that night only. They might have been made on the next day as suggested by the defence.

(6) That both <NAME> and <NAME> had absconded after the incident.

(7) There was a great possibility that these very accused might have been involved in the affair, but, however strong the suspicion, there could be no conviction.

14. Accordingly, the learned <NAME> Judge gave the benefit of doubt to the accused and acquitted them.

15. Aggrieved by the order of acquittal the <ORG> went in appeal to <ORG>. Being an appeal against acquittal, <ORG> approached the findings of the Sessions Judge in the light of the principles laid down by <ORG> in the case of <NAME> (2) and by this court in <CITATION> and other cases. Since <ORG> was of the opinion that the accused were wrongly acquitted, it recorded from place to place in the judgment how the learned Sessions Judge was palpably wrong in the consideration of the evidence. Finally <ORG> observed, "On a consideration of the evidence on record in the light of the aforesaid principles we are satisfied that the grounds on which the learned Sessions Judge acquitted the respondents (accused) were not good and reasonable, and the order of acquittal was against the weight of evidence. The learned Sessions Judge did not approach the case in the correct perspective. Before rejecting the testimony of the eve witnesses the learned Sessions Judge should have considered the question as to whether the prosecution case as to the pursuit given to the miscreants and as to the apprehension of respondent <NAME> on the spot and as to his being taken in custody to the Police Station was established or not. The one grave error which he committed was that he first recorded a finding on the question as to whether the eye witnesses could have been present at the scene of occurrence or not. Having once come to a finding that they could not have been present at the scene of occurrence he could not have recorded a finding in favour of the prosecution on the question as to whether respondent <NAME> was apprehended on the spot or not. The prosecution evidence should not have been considered by the learned Sessions Judge in isolated parts and a finding on the question as to whether the eye witness account was trustworthy or not should have been recorded after taking into consideration the prosecution evidence as a whole."

16. After hearing counsel on behalf of the accused and the <ORG> and on a perusal of the evidence to which our attention was invited,, we have come to the conclusion that the above criticism of <ORG> was fully justified. We will only add that the learned <NAME> Judge failed to see the wood for the trees.

17. Learned Counsel for the appellants put before us in the fore-front an argument which seems to have impressed the learned Sessions Judge. The argument was that the evidence of the Advocate Mr. <NAME>, P.W. 12 was the touch stone for determining. whether the prosecution case was true or not. It was submitted that Mr. <NAME> was a disinterested witness and if his evidence is accepted it would be clearly established that neither <NAME>, P.W. 7 nor <NAME>, P.W. 1 could have been there before 8.34 P.M and hence the story now told by the prosecution that the first information had been recorded at the instance of <NAME>, P.W. 1 at 8.25 P.M is demonstrably false. The argument proceeds this way (1) If <NAME>, P.W. 7. had arrived at the scene within a minute or two of the stabbing and had seen <NAME> and the other captors taking <NAME>, it would be expected that <NAME> would remain near the fallen <NAME>, in which case Mr. <NAME> would not have failed to learn who the deceased was, who were his assailants and as to whether one of them was caught and taken to the Police Station. And since Mr. <NAME>. even after enquiry, did not learn about any of these things, it would be clearly established that <NAME>, P.W. 7 must not have come there at all till <NAME> was removed from the place; (2) and if <NAME>, P.W. 7 was not there at all, the story told by <NAME>, P.W. 1 that he had met <NAME> before leaving the scene of offence was false; (3) That in all probability <NAME>, P.W. 1 was also not there at the time of the incident because if he had been there and <NAME> was not there, he would not have left the place leaving <NAME> unattended. He would have been more anxious to take <NAME> to the hospital than to take <NAME> to the Police Station. There were other captors of <NAME> and he could have requested the captors to take <NAME> to the Police Station and remained behind to make arrangements for removing <NAME> to the hospital. The very fact that he was not there when actually the police van came to take <NAME> away would go to show that <NAME>, P.W. 1 must not have come to the scene of offence at all at any time. Therefore, the case now put forward by the prosecution that he had , gone to the Police Station with <NAME> and had filed the first information at 8.25 p.m. is false. 18. The whole argument proceeds on the assumption that if <NAME>, P.W. 7 were on the scene of offence. Mr. <NAME> Advocate, would not have failed to get all the particulars, since Mr. <NAME> had made enquiries with regard to the person whom he had seen fallen on the ground. That assumption, however, cannot be made, in the circumstances of the case. It is an' undisputed fact that the stabbing incident could not have taken place later than 8.10 p.m. The evidence of <NAME>, P.W. 1 and the other two eye witnesses is that immediately after the stabbing and the falling down of <NAME>, the miscreants were chased and accused <NAME>. was caught with the knife in his hand. They lost no time in taking him to the Police Station which would mean that within two minutes of the stabbing <NAME> and the other captors of <NAME> marched him to the Police Station. According to <NAME> and the eye witnesses, <NAME> arrived just when they were taking him away. <NAME> did not waste time. He merely told <NAME> to attend to his brother saying that he was taking <NAME> to the Police Station. That is also the evidence of <NAME>, P.W. 5 and <NAME>, P.W. 2. The last witness does not say in so many words that the man to whom <NAME> spoke was <NAME> but he says that a person had come at that time and <NAME> told the person that he should look after the boy and that he was going to the Police. Station. So if this evidence is believed, then it is clear that <NAME>, P.W. 7, had come on the scene of offence within a couple of minutes of the stabbing. That was also not unlikely because <NAME>'s evidence shows that after closing the shop at 8.00 p.m. he was coming that way to go to his house and the, scene of offence was on the way not far from the shop. When he saw a crowd . and heard about stabbing, he hastened to the spot and met <NAME> just when he was preparing to go to the Police Station. The evidence of the prosecution, therefore, goes to show that <NAME> was there almost immediately after the stabbing and the captors including <NAME> departed thereafter. Mr. <NAME>'s visit to the scene was much later. Mr. <NAME> says that at about 8.15 p.m. some body told him when he was in his house that some body had fallen on the road with injuries. He therefore, went there and found that a boy was lying in the middle of the road in front of the shop of <NAME>, the milk vendor. It is, therefore, clear from his evidence that Mr. <NAME> had come to the place after <NAME> had gone away from the place and, therefore, he could not have seen the apprehension of <NAME> and his being marched to the Police Station. There is further indication in his evidence that at least 10 to 15 minutes must have passed between the stabbing and the actual arrival of Mr. <NAME> on the scene. The time, can be fairly fixed from his own evidence. After returning to his house, Mr. <NAME> had telephoned to the Control Room and that was at 8.34 p.m. There is record about this at the Control Room. The house of Mr. <NAME> is hardly about 40 to 50 paces from the scene of offence. He further says that he was at the scene of offence for about five or six minutes. Calculating back, therefore, it is clear that Mr. <NAME> must have come to the scene of offence not much earlier than 8.25 p.m. In other words, between the stabbing and the coming of the Advocate, there was a Hap of nearly 10 to 15 minutes. In the meantime a big crowd had gathered. According to the prosecution witnesses it was a crowd of about 50 or 100 people. Mr. <NAME> says that there was a crowd when he went there but he says that it was a crowd of about 10 to 15 people. It is not disputed that this is a busy street and that was the time when shopkeepers were closing their shops and going away. It may be, therefore, taken that there must have been a fairly big crowd when Mr. <NAME> arrived at the scene. It is not the case that Mr. <NAME> had come there in his court robes or that he was in any way distinguishable from any other member of the crowd. Nor can it be said that Mr. <NAME> had taken the trouble to make any serious enquiry, because if he were serious about it he could have made enquiries with the milk vendor <NAME> who was admittedly in his shop and the man had fallen only two or three paces away in front of <NAME>'s shop. <NAME> was a man known to Mr. <NAME>. But Mr. <NAME> had not taken the trouble to question <NAME>. It would, therefore, appear that Mr. <NAME> must have casually asked the first man he met in the crowd as to who the boy was and he must not have received any answer. In fact he admits that when he put the first question, he did not receive any answer and so he did not make any further enquiry. One does not know with whom he made the enquiry. He might be just a passerby who, like the other members of the crowd, might have had only a casual interest. It is not also the case that Mr. <NAME> knew <NAME> or <NAME> knew Mr. <NAME>. For aught we know, <NAME> may have been there somewhere in the crowd not necessarily close to his brother. It would be difficult to conceive that <NAME> who was unaccompanied by friends at the time and who was anxious about removing his brother to the hospital would be fixed to the side of <NAME> all the time. Even to get help he might have to leave the side of his brother. Assuming further that he was near enough to hear the question of Mr. <NAME>, he might not have cared to answer him because to him he was just another passerby whose idle curiosity he may have ignored to satisfy through sheer tiresomeness. Further <NAME> had no inducement to make himself conspicuous before the arrival of the police by declaring that he was the brother of the deceased, because he was now in ah area where his brother had been stabbed and some of the miscreants were still at large. In this state of things the assumption made in the argument that if <NAME> was there Mr. <NAME> would not have failed to know better particulars about the boy, is not a sound assumption. As against this, we have a large volume of evidence to show that <NAME>. P.W. 7 was at the spot. We have already referred to the evidence of <NAME>, P.W. 1, <NAME>, P.W. 2 and <NAME>, P.W. 5. Their evidence as also the evidence of <NAME> clearly shows that he was at the scene of occurrence within a couple of minutes of the stabbing. Reference was made to the fact that <NAME>'s name was not referred to in the First Information Report where <NAME>, P.W. 1 merely stated "people are sending him to the hospital". It was contended that if <NAME> was there, <NAME> P.W. 1 would have said that <NAME> was arranging to send him to the hospital and not that "people are sending him to the hospital". We do not think that by his particular statement <NAME> wanted to exclude <NAME>. It is not the case of <NAME> that some un-known man in the crowd was making arrangements to take <NAME> to the hospital. And since he made a definite assertion at the Police Station that people were sending him to the hospital, it only shows that <NAME> was perfectly confident that arrangements were being made to send <NAME> to the hospital. He could get this confidence only because ' there was <NAME> present at the scene of offence. Moreover, the Investigating Officer had recorded more detailed statements of <NAME>, P.W. 1, <NAME>, P.W. 2 and <NAME>, P.W. 5 that same night at about 10.00 P.M. and it is not elicited from their cross-examination by reference to the police statements that they had failed to mention the presence of <NAME> at the time of the departure from the scene of offence at 8.10 P.M. Then again there is the evidence of Sub Inspector <NAME>, P.W. 16 who says that when he came to the scene at about 8.30 P.M he had met <NAME> at the place. Later, the Officer in-charge of <ORG> reached the place at 8.49 P.M. and he met <NAME> there and it was <NAME> who furnished him the name and address of <NAME>. Against all this evidence which establishes <NAME>'s. presence, at the; scene of occurrence soon after the stabbing, it will be extremely improper to hold that he must not have been present there merely because Mr. <NAME>, Advocate, did not receive any answer to the casual question asked by him to ascertain who that boy was.

19. And if <NAME> was there as alleged by the prosecution, there was no difficulty in <NAME> proceeding to the Police Station with <NAME> leaving <NAME> at the scene to make arrangements for removing <NAME> to the hospital. Then again if <NAME>, P.W. 1 and the other captors of <NAME> proceeded to the Police Station from the scene of occurrence soon after 8.10 P.M., there is no dispute that they would be in the Police Station at about 8.25 P.M. for recording the complaint.

20. The. defence suggestion before the learned Sessions Judge was that till the inquest papers were prepared between 2.30.& 3.30 A.M., on the same night, <ORG> had no idea of this offence at all and that the wheels of investigation started moving only thereafter. The allegation is that after the Investigating Officer found that an offence had been committed in a particular locality, he decided to falsely im plicate the accused because of some grudge against <NAME>. It is not the case that <NAME> or the other two eye witnesses, who were perfect strangers, had any interest in implicating falsely any of the accused in this case. But the suggestion is that the Investigating Officer had a grudge against <NAME> and he, therefore, pressurised <NAME> and the other two witnesses to give false evidence and it was only after he was successful in doing so that he obtained the F.I.R. from <NAME> on the morning of 24-4-1964. This suggestion on behalf of the defence seems to have very much impressed the learned Sessions Judge. There were serious difficulties, however, in accepting such a defence. The First Information Report was stated to have been recorded at 8.25 P.M. The seizure memo of the knife and the shirt had been made soon after and regular entries had been posted with regard to the same in the General Diary maintained at <ORG> in accordance with the regulations. Apart from entries with regard to the investigation of the offence that same night there are also other entries made in the General Diary in serial order which had nothing to do with this offence. These entries in the General Diary were fatal to the defence suggestion. The learned Sessions Judge however, brushed aside the difficulty with the facile observation that all those entries which are shown to have been made in the night in the General Diary must not have been made at all at the time and , that; after keeping some space blank in the General Diary, those entries must have, been made on the next day. after the investigating Officer had fixed up . everything. In our opinion the learned Sessions Judge was not justified in making this criticism. He has practically charged <ORG> with fabricating an official Register. The General Diary at <ORG> is maintained under U.P. Police Regulations. Regulation No. 294 prescribes that the General Diary . shall be written in duplicate under the superintendence of the officer-in-charge of the Station who is responsible for the entries made in it. The regulation further says that the original is to be sent to the Superintendent or Assistant or Deputy Superintendent-in-charge of the sub-division. The diary should be a complete but brief record of the proceedings of the police and of occurrences reported to them or of which they have obtained information.1 In other words, the General Diary, is to be kept from minute to minute and from hour to hour and a charge of this nature that the Officer-in-charge of the Station had not written up the General Diary in accordance with the regulation would be indeed a very serious charge which may not be countenanced unless established by strong evidence. As a matter of fact though the Officer-in-charge of <ORG> <NAME>. P.W. 17 and the two Head Moharrirs who were incharge of the General Diary on that night namely <NAME> and <NAME> had been examined in the case, there is no cross-examination of these witnesses on the charge now made. The entries till 9.00 P.M. relative to the present offence had been made by Head Constable <NAME>, P.W. 10. He was off duty at 9.00 P.M. and his place was taken by Head Constable Sheodeo Prasad P.W. 13. It will be wrong to assume that these two Head Constables who were in-charge of the General Diary would keep for no known reason blank spaces in the Diary for being filled up at some future time. It was not also explained why at all these Officers would decide to leave blank spaces in the General Diary at 8.25 P.M. The defence that <ORG> did not know about this offence till 3.30 A.M. would postulate that no body interested in filing a complaint with regard to this offence had approached <ORG> during the night. The only intimation which <ORG> had received in connection with this offence was-one received from the Control Room at 8.35 P.M. That intimation conveyed <ORG> nothing more than that, a per son was injured and lying at a certain place. No names or particulars had been mentioned. It would be recalled that this intimation had been given from the Control Room by Sub Inspector <NAME>, P.W. 8 as soon as he received the telephone message from Mr. <NAME>. the Advocate. In the ordinary course this would be the first entry in the General Diary in connection with this offence. But what we find is that even before this intimation was received, several entries have been made in connection with this offence-the first of them being at 8.25 P.M. relating to the First Information lodged by <NAME>, P.W. 1. In fact Head Constable <NAME>, P.W. 10 says that when he was recording the statement of <NAME>, P.W. 1 this particular message was received from the Control Room at 8.35 P.M. and at that very time he told the Control Room on the phone that a report in respect of that offence had already been lodged at <ORG> and necessary action was being taken. This is confirmed by <NAME>, P.W. 8 when he was specifically asked about it ,in his cross-examination. It is not suggested that <NAME> who was in-charge of the Control Room had anything to do with any mischief contemplated by the officers of this Police Station and it would only show that <NAME>, P.W. 10 was telling the truth when he said that when the message was received from the Control Room the investigation, of this offence was in progress. The General Diary shows that this particular message from the Control Room has been duly entered at 8.35 P.M. The suggestion is that even this message must not have been entered at the time but noted on a separate piece of paper to be posted in the General Diary sometimes afterwards. It is not easy to see why at this particular point of time <NAME> should not have made the record in the General Diary in due course of official business. The message itself was innocuous and did not suggest that an offence had been committed or who the offender was or who were the assailants. Therefore, there is no reason whatsoever why the entry should not have been made at the time when the message was received. And since this entry about the message follows the entry with regard to the first information report, the normal inference would be that the several entries had been made in due course of official business. If the defence suggestion were true, we must assume that something must have occurred at 8.25 P.M. which inspired <ORG> not to enter the entries in due course. If none of the persons interested in complaining about the offence had reached <ORG> at that time and there was no known source of information at <ORG> with regard to the offence, there could not have been any good reason at all why the entries should not be made in the usual course. The importance of this aspect of the question was not lost on the learned Sessions Judge. He got over, this difficulty also by saying that <NAME> must have come at about 8.25 P.M. and must have given some information. According to the learned Judge <NAME> must have given information about his companions <NAME> and <NAME> and that was the reason why the officers attached to <ORG> stayed their hands and refrained from making any entry about the information given by <NAME>. Now the case of <NAME>, as disclosed in his statement under Section 342 , Criminal Procedure Code , is that he had merely seen two or three persons assaulting <NAME> the deceased with knives and since he knew <NAME> he went to his rescue. The assailants of <NAME>, however, turned on him and he got injuries on both his hands. He, therefore, left the place and went to <ORG> to make a report. He does not say that he implicated <NAME> and <NAME> as being the assailants. Therefore, there is no basis for the conjecture of the learned Sessions Judge that the names of <NAME> and <NAME> might have been' mentioned by <NAME> as the assailants. Secondly if what <NAME> actually says is true there could be no possible reason for the Station Officer not to record his statement in the usual course because he was reporting the commission of a cognizable offence without naming the assailants and was wanting the officers to take immediate action to save <NAME>. It is impossible to believe that if such a statement of a cognizable offence being committed was reported to <ORG>, the Officers would have remained absolutely indifferent and inactive. As already stated no other influence was working at <ORG> at that time and, therefore, there could have been no reason at all why the information given by <NAME> should not have been recorded. To suggest that the Officer delayed recording of <NAME>'s statement in order to implicate <NAME> and <NAME> would be absurd because <NAME> had not mentioned the names of <NAME> and <NAME>. It would be extravagant to suggest that on hearing of a stabbing case within his area, the Officer would at once think of <NAME> and <NAME> with a view to implicate them falsely, without ascertaining, in the first place, the circumstances of the stabbing, the availability of <NAME> and <NAME> on that day at the particular place and time, the probability of eye witnesses mentioning the names of other assailants and the inclination of the relations of <NAME> to help the officer in his mischievous plans. It was not even considered by the learned Sessions Judge whether <NAME>, in the circumstances, would have voluntarily gone to <ORG> to give information. It was possible for him to phone <ORG> to get immediate help to rescue <NAME>. Instead of that it is supposed that he went to <ORG> which was about three to four furlongs away. Secondly <NAME> would be the last person to go to <ORG> by himself when there were circumstances which would impel him to keep himself as far away from <ORG> as possible. He could not have forgotten that only four or five days previously, he and <NAME> had given a threat to <NAME> - a fact of which due notice has been taken by the learned Sessions Judge. He had. blood on his shirt and injuries on the right little finger which would draw the suspicion of any experienced Police Officer at <ORG>. It is, therefore, impossible to believe the story of <NAME> that he had gone to <ORG> by himself to report about the assault on <NAME> and that though he made his report the Officer decided not to record it.

21. It necessarily follows from the above discussion that <NAME> must have been brought to the Police Station with the blood stained knife by somebody at 8.25 P.M. and in that behalf we have a large body of evidence both of the eye witnesses <NAME>, P.W. 1 etc. and the Police Officers who were in-charge of the Police Station. Immediately after the arrival of <NAME> with <NAME>, the investigation proceeded in the usual manner. <NAME>'s F.I.R. was recorded, the necessary seizure memos were prepared, the General Diary entries were posted and thereafter we know from <NAME> evidence that he went off duty at 9.00 P.M. The Investigating Officer <NAME>, P.W. 17, however, took some more time at the Police Station to complete the proceedings before he went to the scene of offence. There was no particular hurry because he had already come to know that <ORG> had been contacted and there were people attending to <NAME> at the scene of offence. The offence which had been recorded at the time was only under Section 307 , I.P.C . and not under Section 302 , I.P.C . It was only much later when the Investigating Officer was at the scene of offence and recording the statements of the eye witnesses that the report about the death of <NAME> was received by him. In our opinion, there was no sufficient basis for the learned Sessions Judge to think, that the information about this offence had not been received till early next morning and that the General Diary had not been posted with the entries in due course of official business.

22. Once it is established that the First Information Report was given by <NAME>, P.W. 1 at 8.25 P.M. the defence which had impressed the learned. <NAME> Judge completely collapses. <NAME> had been brought to the Police Station with a blood stained knife and the eve witnesses were available who, had also taken part in chasing and capturing <NAME>. As mentioned earlier, none of the three eye witnesses had any personal interest in implicating the three accused. In fact nothing was suggested to them in their cross-examination. One more remarkable thing which must be noted is that even <NAME>, P.W. 1 had not known the other two captors <NAME>, P.W. 2 and <NAME>, P.W. 5 and the captors also did not know each other. Their evidence, however, shows that all these three witnesses had known the three accused since before the incident. <ORG> has accepted their evidence as substantially true and we do not think that we have any good grounds to differ from <ORG> assessment of the. evidence. The learned <NAME> Judge having once formed the erroneous opinion that the F.I.R. must not have been recorded at 8.25 P.M. had no other alternative but to discard the evidence of eye witnesses; and. this the learned <NAME> Judge has done by attaching undue importance to minor details in the evidence of these witnesses as pointed out by <ORG>. <ORG> was, therefore, justified in its criticism of the judgment of the learned <NAME> Judge as unreasonable and palpably wrong and coming to its own conclusion as to the guilt of the accused.

23. In the result these appeals fail and are dismissed.


JUDGMENT <NAME>, J.

1. This litigation arises in connection with an ancient mosque standing on a portion of Holding No. 221 in the Government Khas Mahal of Dihi Panchannagram, near Calcutta. In a proceeding under Reg. II of 1819 between <ORG> as plaintiff and one <NAME> of Kalinga as defendant, the whole holding, then 3 bighas, 11 eottas and 3 chhataka in area (a portion has since been acquired under the Land Acquisition Act ), was declared by <ORG> to be revenue-free as property dedicated long ago to religious uses, i. e., a wake, of which the said <NAME> was the then mutwali. The mosque stood on a portion of this area and the rest of it was let out to tenants, the rents being appropriated for the expenses of the mosque.

2. <NAME> or <NAME> continued to hold this area of land as mutwali of the mosque until his death about seventy years ago, and after him his son, Sheikh <NAME>, succeeded him as mutwali. <NAME> died about fifty years ago, and thereafter his widow <NAME>, assumed the office of mutwali. On October 27, 1802, she executed a deed whereby she purported to nominate her son Mr. <NAME> as her successor in the mutwaliship.

3. Disputes having arisen, the heirs of <NAME> instituted in 1907 a Suit No. 78 of 1907 in <ORG>, on the basis that <ORG> was the secular property of <NAME> and asking for partition thereof. A preliminary decree for partition was actually made in that suit in 1908. On July 18, 1910, a suit No. 48 of 1910 <NAME> was filed in <ORG> with the sanction of the Advocate General under Section 92 of the Code of Civil Procedure of 1908 by seven <NAME>ans as plaintiffs against <NAME> as defendant. It was sought by that suit to obtain the removal of <NAME> from the office of mutwali, for accounts and for settling a scheme for the management of the said properties. The plaint in that suit was subsequently amended on December 15, 1910 :-

(1) By the addition of all the heirs of <NAME> as defendants, who, it was alleged, were claiming the property as their personal property; and (2) by adding a prayer for the declaration that the property in suit was wakf property and not the personal property of the defendants.

4. No sanction of the Advocate General was obtained for these amendments, and apparently the Advocate General had nothing further to do with that suit at any later stage.

5. On September 15, 1911, a petition of compromise was filed in that suit on behalf of plaintiffs Nos. 1, 2, 3, 4, 5 and 7 (i. e., all the plaintiffs except plaintiff No. 6, named Rahimbuksh). The first two paragraphs of the petition were as follows:-

That your petitioners have on consideration of all the circumstances and facts as disclosed in the evidence produced in the case and which the parties may produce on their behalf have decided that it would be to their best interest and in the interest of public for whose benefit the plaintiffs brought this suit to compromise the suit on the following terms and conditions :-

That out of the disputed property the portions shown in the plan herewith, tiled and marked A, B, C, D, measuring 1 bigha 1 cotta 8 cbhattaks, 24 sq. ft. (1 bigha 1 cotta 8 chhattfiks, and 24 square feet) should be declared a valid Mahomedan public religious and charitable endowment, a wakf.

6. The rest of the petition dealt with the appointment of new rautwalis and the future succession to the mutwaliship. On September 15, 1911, the following order was passed on the petition by the District Judge :-

The compromise has now been accepted by all parties to the suit. The terms are net out in the petition filed by the plaintiffs on September 15, to which a plan is attached. My previous order of September 5 refers to a petition filed on behalf of ten defendants.

A permission (petition) has now been filed on behalf of the remaining three defendants.

Let a decree be drawn up in terms of the petition- a copy of the plan above referred to will form a part of the decree.

No order is made as to costs.

7. It would appear that the District Judge's attention was not drawn to the fact that one of the plaintiffs was not a party to the compromise, nor is there anything on the present record to show that the learned Judge's attention was drawn to the nature of the suit as affecting a public religious trust. A decree was drawn up on the compromise petition on September 16, 1911. The effect of the consent decree was to declare by implication that, with the exception of 1 bigha 1 cotta 8 chhattaks 24 square feet, which was admitted to be wakf, the rest of the holding amounting to 2 bighas 9 cottas 10 chhattaks and 16 square feet, was secular property and as such belonged to the heirs of <NAME>, who had been added as party defendants by the amendment of the plaint.

8. Thereafter these heirs alienated most of the latter part of the property, and the present suit was brought on March 2, 1918, by five Mahomedans of the neighbourhood against the heirs of <NAME> and their alienees, as also the original plaintiffs in Suit No. 48 of 1910 or their representatives. They alleged that the partition decree in Suit No. 78 of 1907, as well as the compromise decree in Suit No. 18 of 1910, wore not binding upon them, and they also prayed that the whole of the then area of 3 bighas 8 cottas 3 chhattaks "may be declared wakf property and the defendants restrained from obtaining possession either directly or by realising rents of the said <ORG>."

9. The defence in substance was (1) that the lands in suit were not wakf; (2) that the suit was not maintainable by virtue of Section 92 , Sub-section (1), as no sanction of the Advocate General, had been obtained and the suit was not instituted in <ORG>, and (3) that the plaintiffs were barred by the rule of res judicata.

10. By his judgment dated July 8, 1921, the Subordinate Judge held that the whole of the holding was wakf and that the plaintiffs as worshippers iu the mosque were entitled to maintain the suit in that Court without the Senction of the Advocate General and, that the compromise decree in Suit No. 48 of 1910 was without jurisdiction and not binding upon them, and he accordingly passed a, decree in favour of the plaintiffs.

11. <ORG> on appeal set aside the judgment of the Sub-ordinate Judge. They entertained considerable doubt as to the maintainability of such a suit as this without the sanction of the Advocate General under Section 92 of the Code of Civil Procedure, having regard to Sub-section (2), which has been added to the corresponding Section 539 of the Code of Civil Procedure, but they considered it unnecessary to decide the point, as they were of opinion that the plaintiffs were bound by the rule of res judicata and the suit should be dismissed on that ground.

12. Two questions only have been argued before this <ORG>. The first is whether the suit is maintainable in view of the provisions of Sub-section (2) of Section 92 of the Code of Civil Procedure, 1908; and the second is whether the suit is barred by the rule of res judicata under Explanation 6, Section 11 , Civil Procedure Code.

13. It is urged broadly on behalf of the respondents that all Buits founded upon any breach of trust for public purposes of a charitable or religious nature, irrespective of the relief sought, must be brought in accordance with the provisions of Section 92 , Civil Procedure Code.

14. The short answer to that argument is that the legislature has not so enacted. If it had so intended, it would have said so in express words, whereas it said, on the contrary, that only suits claiming any of the reliefs specified in Sub-section (1) shall be instituted in conformity with the provisions of Section 92 , Sub-section (1).

15. The reliefs specified in Sub-section (1)(a) to (h) do not cover any of the reliefs claimed in this suit unless the words "further or other relief" in Clause (h) can be held to cover them. It is argued that the words "such further or other relief as the nature of the case may require" must be taken, not in connection with the previous Clauses (a) to (g), but in connection with the nature of the suit viz., any relief other than (a) to (g) that the case of an alleged breach of an express or constructive trust may require in the circumstances of any particular case. Their Lordships are unable to accept this argument. First, because the words "further or other relief" must on general principles of construction be taken to mean relief of the same nature as Clauses (a) to (g), Secondly, because such construction would cut down substantive rights which existed prior to the enactment of the Code of 1908, and it is unlikely that in a Code regulating procedure the <ORG> intended without express words to abolish or extinguish substantive rights of an important nature which admittedly existed at that time.

16. It is a sound rule of interpretation to take the words of a statute as they stand and to interpret them ordinarily without any reference to the previous state of the law on the subject or the English law upon which it may hi founded; but when it is contended that the <ORG> intended by any particular amendment to make substantial changes in the pre-existing law, it ie impossible to arrive at a conclusion without considering what the law was previously to the particular enactment and to see whether the words used in the statute can be taken to effect the change that is suggested as intended. For this reason it becomes necessary to consider how the law stood prior to the enactment of Section 92 of' the Code of Civil Procedure of 1908.

17. The first Code of Civil Procedure, Act VIII of 1859, contained no section specially relating to the administration of public trusts of a religious or charitable nature. The Code of 1877 for the first time introduced such a special section, viz., Section 539 , where particular reliefs only were sought in such cases. This was re-enacted in the Code of 1882.

18. Section 92 takes the place of what was Section 539 in the Code of 1882 as well as the Code of 1877, with certain changes, the most material of which are as follows:-

(a) In the relief clauses under Sub-section (1), Clauses (a) and (d), which did not appear in the Codes of 1877 and 1882, are inserted,

(b) Sub-section (2) is altogether new.

19. As regards Clauses (a) and (d), it appears that there had been some divergence of opinion as to whether Section 539 authorized the removal of a trustee or the directing of accounts and inquiries. Most of <ORG> held that the power to appoint a new trustee necessarily involved the power to remove an old trustee. But <ORG> held to the contrary <CITATION> (1894) I.L.R. 17 Mad. 462, f.b. see <NAME> v. Collector of Kaira (1895) I, L, R, 21 Bom. 48.-k.j.r. The <ORG> in 1908 adopt' d the former view, and inserted Clause (a) expressly giving power to remove a trustee, in addition to the power to appoint new trustees (now Clause (b)

20. Accounts and inquiries, though not expressly mentioned in the relief clauses, had been held by some of the <ORG> to be necessarily incidental to the power to remove an old trustee and appoint a new one. That power was expressly inserted by the present Clause (d). But the most important change was made by Sub-section (2) of Section 92 .

21. Under the Code of 1877, as well as the Code of 1882, the question had arisen whether Section 539 was mandatory and therefore all suits claiming any relief mentioned in Section 53 d should be brought as required by that section or whether the remedy provided by Section 539 was in addition to any other remedy that existed under the law for the redress of any wrongful action in connection with a public trust of a charitable or religious nature. Such rights, when claimed on behalf of the public or any section thereof, had been held to be capable of enforcement by a suit under Section 30 of those Codes (now replaced by Order I, Rule 8); and it had also been held that private persons who had individual rights under such trusts could bring suits to enforce such individual rights by an ordinary suit without being obliged to bring a suit of a representative nature, as above mentioned. Great divergence of opinion had arisen in India in this connection, not merely as between the different <ORG>, but between different Benches of the same Court. The resulting uncertainty could only be removed by legislative enactment, and Sub-section (2) of Section 92 was enacted to put an end to this difference of opinion. It accepted and enacted the view which had been taken by <ORG>, as opposed to the view taken by the other <ORG> generally, viz., that a suit which prayed for any of the relief mentioned in Section 92 could only be instituted in accordance with the provisions of that section. The words used in Sub-section (2) are appropriate and sufficient if that was the purpose, but they are insufficient and inadequate if it was intended to make a complete change such as is suggested on behalf of the respondents.

22. Their Lordships see no reason to consider that Section 92 was intended to enlarge tho scope of Section 539 by the addition of any relief or remedy against third parties, i. e., strangers to the trust. They are aware that the Courts in India have differed considerably on the question whether third parties could or should be made parties to a suit under Section 539 , but the general current of decisions was to the effect that even if such third parties could properly be made parties under Section 539 , no relief could be granted as against them. In that state of the previous law, their Lordships cannot agree that the <ORG> intended to include relief against third parties in Clause (h) under the general words "further or other relief."

23. The conclusion is that, inasmuch as the suit out of which this appeal arises did not claim any such relief as is specified in Sub-section (1) of Section 92 , that section was no bar to the maintainability of the suit without the sanction of the Advocate General and in <ORG>.

24. The only other question is whether the suit is barred by the rule of res judicata, i.e., whether the compromise decree of September 15, 1911, in Suit No. 48 of 1910 precludes the present from bringing this suit, it is said that the previous Suit No. 48 of 1910 was instituted under the provisions of Section 92  1927 with the sanction of the Advocate General, and therefore became a representative suit and the decree in that suit, whether by adjudication of the <ORG> or by consent of parties, is binding upon "that section of the public which was represented by the plaintiffs that suit, and therefore upon the plaintiffs in the present suit by virtue of Explanation 6 of Section 11 of the Code.

25. The learned Judges of <ORG> were of opinion that the consent decree of 1911 could not be questioned on the grounds stated by the Subordinate Judge, as there was no want of jurisdiction of the Judge to entertain the suit, or to order the amendment as prayed for, or to direct a decree to be made on compromise of the suit.

26. Their Lordships are unable to concur in this view. It is extremely doubtful whether a decree passed under the circumstances of this case can be held to be res judicata as against any persons other than those who consented to that decree.

27. The case of <NAME> v. <NAME> (1867) I.H.L. Sc. 117 was based on Scottish law and as explained in the case of In re South American and Mexican Company : Ex part Bank of England (1895) 1 Ch. 37, appears to lay down broadly that persons instituting a suit on behalf of the public have no right to bind the public by a compromise decree, though a decree passed against them on contest would bind the public. It is not necessary for the purpose of this case to decide whether the law in India under Section 11 of. the Code of Civil Procedure is the same as so explained. Their Lordships consider that, in so far as the nature of the suit was changed by the amendments mentioned, viz.; by adding strangers to the trust as defendants and by prayers for relief not covered by Section 92 , the suit ceased to be one of a representative character and the decree based on the compromise such as it was, viz., by six only out of the seven plaintiffs in the suit, however binding as against the consenting parties, cannot bind the rest of the public. Section 11 , Explanation 6, has no application to such a case.

28. On both grounds, therefore, the arguments for the respondents fail, and their Lordships will humbly advise <NAME> that the decree of <ORG> be set aside and the judgment and decree of the Subordinate Judge restored, with costs of <ORG> appeal and the costs of this appeal.


CASE NO.: Appeal (crl.) 1092-1093 of 1998 PETITIONER: STATE OF MAHARASHTRA RESPONDENT: SURESH DATE OF JUDGMENT: 10/12/1999 BENCH: G.T. NANAVATI & K.T. THOMAS JUDGMENT:

JUDGMENT 1999 Supp(5) SCR 215 The Judgment of the Court was delivered by <NAME>, J. A gory episode is narrated in this case the gravamen of which is a grisly perpetrated rape and murder of a four year old female child. The rapist had abducted the child from her house and decoyed her to a field at Arvi (in Wardha district of Maharashtra State). After the rape and murder the mangled body of the child was dumped in the field where pulses and cotton were cultivated. The man whom the police challaned as a culprit was convicted and condemned to death penalty by the sessions court but he now stands exonerated as a Division Bench of <ORG> proclaimed him not guilty. The State of Maharashtra is not prepared to reconcile with the clean chit granted to him by <ORG> and hence this appeal by special leave has been filed by the State.

<NAME> is the name of the little child who was subjected to the beastly sexual ravishment. She was endearingly called <NAME> by her kith and kin. She had a brother younger to her the children were living in the family house which is presumably a joint family house. The life of <NAME> was snuffed off on 22.12.1995.

As per the prosecution version the accused (who is respondent in this appeal) was already an accused in another case facing ah allegation that he committed rape and murder of one eight year old female child by name <NAME>. While he was in Jail in connection with that case he came into acquaintance with a prisoner (PW6-Sanjay) who is the brother of <NAME>'s father (PW5-Rameshwar). Both of them were later released from prison. (We are told that respondent was acquitted in that case).

After such release from jail respondent visited <NAME>'s house, and subsequently he paid frequent visits to the said house. During such visits he made himself familiar to <NAME>. On 22:12,1995 respondent went to that house and when he was told that <NAME> had gone out, he left the house. <NAME> was then playing near the gate other house. Respondent would have moved away by alluring the little child to go with him. The fact remains that after respondent left the house in the afternoon no one in that house had seen <NAME> alive.

Respondent took <NAME> to the shop of <ORG>, and later to the shop of <ORG>, and thereafter to a farm whereon pulses and cotton were cultivated. He chose that venue For sexually ravishing that little child and smothering her to death.

As <NAME> was not seen in the house or its precincts till nightfalls the panic-stricken member of her family began to make hectic searches for her. As all such efforts failed her uncle <NAME> went to the police station and reported that <NAME> was missing from that house. Next morning her father <NAME> (PW-5) went to the police station and lodged Ext; 22-complaint in which he expressed strong suspicion against the respondent regarding the disappearance of his child.

Respondent was arrested on the evening of 23.12.95. During interrogation the police came to know that dead body of the child was concealed in a farm. Though a search was made in the night to find out the spot where the body was concealed it did not fructify due to darkness. Hence the police resumed the search operation on the next morning and the spot was pointed out by the respondent wherefrom the dead body of <NAME> was traced out When autopsy was conducted on the body by two doctors of the local hospital a woeful picture of sexual molestation was etched by them. Ext. 68 (Post- mortem Report) contains the data, inter alia, that the vagina was torn down at the perennial region by 1" with irregular lacerations and a fleshy torn portion was found protruding out therefrom. Contusions and abrasions on the labia majora of both sides besides swelling were also noticed by the doctor. There were number of contusions and abrasions on her face also. Dr. <NAME>, Medical Superintendent and Dr. <NAME>, Medical Officer of <ORG>, Arvi, District Wardha, after completing the jointly conducted autopsy reported that death of the child was due to asphyxia by rape and smothering.

There is not even a speck of doubt that <NAME> was kidnapped from her house and she was raped arid killed by someday on the evening of 22.12.1995. In fact <ORG> and <ORG> concurrently found the aforesaid point affirmatively. The whole endeavour was therefore confined to the question whether the crime was committed by the respondent.

The trial court and <ORG> focused on the circumstances which prosecution presented through the evidence for proving that the culprit in the ghastly infanticide was the respondent himself and none else. The Sessions Judge found that all those circumstances were established and they formed themselves into a completed chain unerringly pointing to the guilt of the respondent. But <ORG> of <ORG> differed from the findings of <ORG> regarding some of the circumstances and that resulted in exoneration of the respondent.

The circumstances which prosecution presented can be recast as follows (1) Respondent visited the house of <NAME> at about 3.30 P.M. and after he left the house it was realised that <NAME> also disappeared; (2) PW-8 Mahadeo saw the accused and a female child together in his shop at about 4.30 P.M. on the same days; (3) PW-14 Motiram saw them together in his shop at about 4.00 P.M.; (4) A little later PW-3 Sayyed Niyamat saw them walking along the road; (5) Respondent after his arrest disclosed to PW.26 (Police Inspector of Arvi Police Station) that the dead body of the child was concealed in the farm and he offered to hand it over. Pursuant thereto the spot was pointed out by the respondent wherefrom the dead body was recovered; (6) PW-20 Dr. <NAME> stated that the person who caused the injuries on the vagina of the deceased child would have sustained injuries on his male organ. When respondent was medically examined on 25.12.1995 by PW-22 Dr. <NAME> it was noticed that his glands penis was swollen with multiple tiny punctuated abrasions besides abrasions on the posterior aspect of both elbow joints. According to the doctor those injuries could have been caused 48 hours earlier than the time of his examination; (7) Stains of human blood and semen were detected on the under-clothes of the accused when he has arrested.

<ORG> of <ORG> was not disposed to rely on the evidence of me three witnesses who claimed to have seen me respondent and the girl together though their evidence was found reliable by the trial court. Nor did <ORG> concur with <ORG> finding regarding recovery of the dead body as sequel to the information supplied by the respondent. <ORG> declined to take the injuries which the doctor noticed on the person of the respondent as an incriminating circumstance on the premise that it is not a conclusive circumstance. <ORG> sidestepped the circumstance that semen and blood were detected on the under-clothes of the accused on the premise that there was delay in seizing those wearing apparels.

The evidence of PW-3 <NAME> Mahadeo and <NAME> (PW-14) needs scrutiny by us because acceptability of that evidence will have a decisive impact on the final conclusion of this case.

<NAME> claimed to have seen the respondent with a. little girl at his grocery shop around 4 P.M. on 22.12.1995. He said that the man with the girl had purchased some peppermint from his shop presumably for appeasing the girl as she was then crying. His reason for remembering his purchase was that next he heard about the murder of a little girl and he visited the house of the girl on 24.12.1995, and identified the dead body as that of the same girl. In a test identification parade conducted by PW-26 Magistrate he identified the respondent as the person who accompanied the child. <NAME> gave evidence that when he was returning from his Friday Namaz he saw a young man holding a crying girl around 4.00P.M. He too gave almost the same reason for remembering it that when he heard next day about the murder of a little girl he had some doubt whether it was the same crying girl. He also identified the respondent in the test identification parade.

<ORG> Motiram has a betel shop in the locality. His evidence is that a young man wearing pant and shirt visited his shop at about 4.30 p.m. and bought some "Kharra" from the shop. He remembered it as a little girl was with him who was found crying then. When he heard next day about the murder he felt suspicious because the young man whom he saw the previous day in his shop was a total stranger in the locality. So he informed the police about it. He too was called in the Test Identification Parade wherein he identified the respondent as the person whom he saw with the girl.

If a criminal court is to view the testimony of the aforesaid three witnesses as unnatural it would be easy to brush it aside with the stereotyped reasoning that those persons had no cause to remember having seen the man with the girl accompanying him. Such a reasoning overlooks the broad aspect that a human mind, on hearing about any shocking incident, would have the tendency to recollect any previous event which could have had a connection with that incident If as a matter of fact those witnesses had occasion to see a crying girl of that age on the very day of the gruesome episode as happened in this case, there is nothing improbable in those witnesses remembering the person who was seen in the company of that girl. If they had immediately informed the police that they noticed a similarly aged girl crying in the company of an utter stranger of that locality that cannot be brushed aside as a doubtful conduct. Either the three witnesses concocted the story falsely or what they said must be true. Why should they concoct it falsely. We are not told of any reason whatsoever for those three witnesses to bother themselves to concoct such a canard.

It seems that a minor discrepancy in their evidence had affected their credibility before <ORG>. They said that they went to the police station on 24.12.1995, whereas PW-26 Police Inspector said that they visited me police station only on 25.12.1995. We do not attach any significance to the aforesaid discrepancy as PW-26 should have been more correct because he was speaking with the help of investigation records while the witnesses would have spoken from their memory only. Another reason advanced by <ORG> is that when PW-3 <NAME> went to the bereaved house he did not inform anyone in that family as to what he saw earlier. But PW-3 himself gave an explanation for it that as members of that family were then in a shock he did not venture to tell them about it at that occasion. Here also the question is not whether PW-3 should have told them despite his hesitation but whether the witness had chosen to adopt such a reticence in a situation like that. It is not for the <ORG> to suggest that he should have divulged it to the members of the bereaved family despite his own thinking about it At any rate we are not impressed by the aforesaid reasoning for rejecting the testimony of an important witness like PW-3.

<ORG> then advanced a theory that there is "an inherent incredibility in the evidence" on the premise that a culprit kidnapping a minor girl with sinister design would normally take the precaution not to be seen by any other person on the way, but in this case the culprit along with the girl had moved from place to place in the town. We are unable to appreciate such a reasoning as proposition of human conduct. For considering that reasoning it must be remembered that <NAME> would certainly have been abducted by some body (even assuming that it was not this respondent) and that person had taken the abducted girl from her house up to the farm. Unless it is suggested that there was another alternative and safer route for the culprit to take the girl unnoticed by any shopkeeper or even a pedestrian there in no rationale in the reasoning that there is "inherent incredibility" in the version that respondent would have taken the girl through this route.

The last reasoning of <ORG> is based on a criticism of the modes adopted by the Executive Magistrate who held the test identification parade. The aforesaid criticism was based on the evidence of two witnesses who said that the accused were taken on foot from police station to the place where the parade was conducted and that their faces were not covered during such transit.

Ext 17 is the minutes of the test identification parade conducted by the Magistrate who himself was examined as PW-2. It contains the details of the steps adopted by him. Seven other persons were kept ready in the room and the witnesses were kept in another room from where they could not see the suspect Thereupon the suspect was brought from the lock up with the help of two respectable persons and all precautions were taken that the witnesses could not see the suspect during such transit. Then me suspect was permitted to stand anywhere among the 7 persons. It was thereafter that the witnesses were brought with the help of the same respectable persons and the witnesses were then asked to identify the person whom they saw on the crucial day. If potholes were to be ferreted out from the proceedings of the magistrates holding such parades possibly no test identification parade can escape from one or two lapses. If a scrutiny is made from that angle alone and the result of the parade is treated as vitiated every test identification parade would become unusable. We remind ourselves that identification parades are not primarily meant for the court. They are meant for investigation purposes; The object of conducting test identification parade is two fold. First is to enable the witnesses to satisfy themselves that the prisoner whom they suspect is really the one who was seen by them in connection with the commission of the crime. Second is to satisfy the investigating authorities that the suspect is the real person whom the witnesses had seen in connection with the said occurrence. So the officer conducting the test identification parade should ensure that the said object of the parade is achieved. If he permits dilution of the modality to be followed in a parade, he should see to it that such relaxation would not impair the purpose for which the parade is held, vide <CITATION> ,  2 SCO 128 and <CITATION> ,  3 SCC 86.

When we scanned through. Ex. 17 minutes of the test identification parade, we feel that the safeguards adopted by PW-2 Executive Magistrate were quite sufficient for ensuring that the parade was conducted in a reasonably foolproof manner. We feel that <ORG> niggled on unimportant details and came to the wrong conclusion that the test identification parade was irretrievably vitiated. The reasons by which the testimony of those three witnesses had been jettisoned by <ORG> were fatuous and we cannot support them.

One of the formidably incriminating circumstances against the accused was that the dead body was recovered as pointed out by the respondent. The statement of the respondent which led to the recovery of the dead body has been incorporated in Ext. 79 and the admissible portion of it reads thus :

"Her dead body is kept concealed in the field; I will take it out and produce the same; come with me."

But unfortunately <ORG> of <ORG> did not rely on the above circumstance on a very fragile reasoning. The first limb of that reasoning was based on a mistake committed by PW-3 <NAME> in his evidence when he said that he saw the dead body of the child on 23,12.1995. Much strain is not required in holding that what PW-3 said should have been understood as 24.12.1995. The second limb of the reasoning is that two other possibilities could not have been ruled out. Of which one is that respondent would have seen someone else placing the dead body at that spot, and the second is that respondent would have been told by somebody else that the dead body was placed there:

We too countenance three possibilities when an accused points out the place where a dead body or an incriminating material was concealed without stating that it was conceded by himself. One is that he himself would have concealed it Second is that he would have seen somebody else concealing it. And the third is that he would have been told by another person that it was concealed there. But if the accused declines to tell the criminal court that his knowledge about the concealment was on account of one of the last two possibilities me criminal court can presume that it was concealed by the accused himself. This is because accused is the only person who can Offer the explanation as to how else he came to know of such concealment and if he chooses to refrain from telling the court as to how else he came to know of it, the presumption is a well justified course to be adopted by the criminal court mat the concealment was made by himself. Such an interpretation is not inconsistent with the principle embodied in Section 27 of the Evidence Act.

It is regrettable that the Division Bench had practically nullified the most formidable incriminating circumstance against the accused spoken to by PW-22 Dr. <NAME>. We have pointed out earlier the injuries which the doctor had noted on the person of the accused when he was examined on 25.12.1995. The significant impact of the said incriminating circumstance is that the accused could not give any explanation whatsoever for those injuries and therefore he had chosen to say that he did not sustain any such injury at all. We have no reason to disbelieve the testimony of PW-22 Dr. <NAME>, False answer Offered by the accused when his attention was drawn to the aforesaid circumstance renders that circumstance capable of inculpating him. In a situation like this such a false answer can also be counted as providing "a missing link" for completing the chain.

It is disconcerting that a case like his in which the prosecution has presented such reliable and formidable circumstances forming into a completed chain and pointing unerringly to me irresistible conclusion mat the little girl <NAME> was raped and killed by none other than the respondent himself, ended in unmerited acquittal from <ORG> of <ORG> unfortunately became a casualty in this case when the High Curt side-stepped all such circumstances and exonerated the culprit of such a grotesque crime.

We, therefore, set aside the impugned judgment and restore the conviction passed by the trial court. Regarding sentence we would have concurred with <ORG> view that the extreme penalty of death can be chosen for such a crime, but as the accused was once acquitted by <ORG> we refrain from imposing that extreme penalty in spite of the fact that this case is perilously near the region of "rarest of the rare cases" envisaged by the Constitution Bench in <CITATION> ,  2 SCC 684. However, the lesser option is not unquestionably foreclosed and so we alter the sentence, in regard to the offence under Section 302 , to imprisonment for life. The sentences imposed by the trial court on all other counts would remain unaltered. The bail bond shall stand cancelled. We direct the respondent to surrender to bail. We also direct the Sessions Judge, <NAME> to take immediate and necessary steps to put the accused in jail if he is not already in jail, for undergoing the sentence imposed on him.