judgement:
iminal Appeal No. 7 of 1972.
Appeal by special Leave from the judgment and order dated 25 2 1971 of the Punjab and Haryana High Court in Crl.
Appeal No. 1031/70.
A. N. Mulla and R. N. Sachthey, for the appellant.
Nuruddin Ahmed and R. L. Kohli, for the respondents.
The Judgment of the Court was delivered by KHANNA, J.
Nine accused Jagir Singh (27), Baljit Singh (36), Karam Singh (30), Amarjit Singh (38), Atma Singh (27).
Chsnan Singh (22), Tarlok Singh (19), Joginder Singh (22) and Swarn Singh (23) were tried in the court of Sessions Judge Gurdasnur in connection, with an occurrence which took place on July 8, 1948 in village Longowal Khurd.
In the course of that occurrence Labh Singh (35), Joginder Singh (30,) and Lakha Singh (25) received fatal in 329 juries.
Injuries were also received by Ajit Singh, Jarnail Singh, Mohinder Singh and Harbans Singh PWs.
Learned Sessions Judge convicted Jagir Singh and Baljit Singh under section 302 Indian Penal Code on two counts for causing the death of Joginder Singh and Lakha Singh deceased and sentenced them to death on each count.
The said two accused were also convicted under section 302 read with section 34 Indian Penal Code in connection with the murder of Labh Singh and were sentenced to undergo imprisonment for life on that account.
In addition to that, the aforesaid two accused were convicted under section 307 Indian Penal Code on four counts for the injuries caused to Mohinder Singh, Ajit Singh, Jarnail Singh and Harbans Singh PWs and were sentenced to undergo rigorous imprisonment for a period of three years on each count.
Karam Singh accused was convicted under section 302 Indian Penal Code for causing the death of Labh Singh deceased and was sentenced to death.
In connection with the death of Joginder Singh and Lakha Singh, Karam Singh was convicted under section 302 read with section 34 Indian Penal Code on two counts and was sentenced to undergo imprisonment for life.
Karam Singh was, in addition, convicted under section 307 read with section 34 Indian Penal Code for injuries caused to Ajit Singh, Jarnail Singh, Mohinder Singh and Harbans Singh and was sentenced to undergo rigorous imprisonment for a period of three years on each count.
The remaining six accused were acquitted by the, Sessions Judge.
On appeal and reference, the Punjab and Haryana High Court acquitted Jagir Singh, Baljit Singh and Karam Singh by giving them the benefit of doubt.
The State of Punjab has now come up in appeal to this Court by special leave against the judgment of the High Court acquitting the above mentioned three accused respondents.
Out of the nine accused, Karam Singh, Amarjit Singh and Baljit Singh are brothers.
Likewise, Jagir Singh, Joginder Singh and Tarlok Singh accused are brothers.
Chanan Singh accused, who is a constable in the Border Security Force, add Swarn Singh accused too are brothers.
Atma Singh accused is the maternal uncle of Jagir Singh.
Amongst the three deceased persons, Labh Singh and Joginder Singh were brothers.
Chanan Singh (PW 8) and Mohinder Singh (PW 27) are the brothers of those two deceased persons.
Harbans Singh (PW 21 ) is brother of Lakha Singh deceased.
The prosecution case is that the relations between the party of the accused and that of the deceased persons were strained for about 10 or 12 years before the occurrence, and the two groups had since then been involved in a number of cross criminal cases.
About two years before the occurrence, Lakha Singh deceased along with some others had caused injuries to Atma Singh and Puran Singh, uncle of Jagir Singh accused.
A criminal case was on that account pending in.
the court of Magistrate Batala.
July 8, 1968 was the date of hearing in that case and on that day Chanan Singh (PW 8) accompanied Lakha Singh to the court at Batala for pursuing that case.
After the proceedings of the case were over, Chanan Singh (PW 8) came back with Lakha Singh deceased to his house in village Longowal Khurd.
Longowal Khurd is at a distance of about two and a half miles from Batala.
The house of Labh Singh deceased was at a short distance from that 330 of Lakha Singh in Longowal Khurd.
Chanan Singh (PW 8) himself lived in Longowal Kalan which is at a distance of about two and a half furlongs from Longowal Khurd.
When Chanan Singh (PW 8) was still present at the house of Lakha Singh deceased, it is stated, they heard the noise of changars (challenging shouts) from near the, house of Labh Singh deceased.
Hearing the noise of changars, Lakha Singh deceased and his brother Harbans Singh, (PW 21) went to the house of Labh Singh.
Chanan Singh PW also followed them to the house.
of Labk Singh.
On arrival there Chanan Singh (PW 8) found Labh Singh, Joginder Singh and Lahha Singh deceased as well as Ajit Singh (PW 19), Jarnail Singh (PW 22), Mohinder Singh (PW 27), Harbans Singh (PW 21), Bawa Singh (PW 25) and Chanan Singh (PW 26), present in the courtyard of Labh Sigh 's house.
Joginder Kaufman, wife of Labh Singh, and Harbans Kaur, wife of Bawa Singh, too were present there.
The nine accused are then stated to have come near the compound wall of the courtyard of Labh Singh 's house.
The compound wall was about sixand a half feet high from outside and four and a half feet high from inside because the courtyard was at a higher level than the ground outside.
At the instigation of Tarlok Singh, Atma Singh and Swarn Singh accused, it is stated, Jagir Singh and Baljit Singh accused threw one hand grenade each into the courtyard of Labh Singh 's house.
Both the hand grenades exploded in the courtyard as a result of which Labh Singh, Joginder Singh and Lakha Singh deceased and Mohinder Singh, Jarnail Singh, Ajit Singh and Harbans Singh PWs received injuries.
All the nine accused then came inside the courtyard of the house of Labh Singh deceased.
Karam Singh and Amarjit Singh accused were armed with spears.
Tarlok Singh, Joginder Singh, Atma Singh, Chanan Singh and Swarn Singh accused had kirpans, while Jagir Singh and Baljit Singh were empty handed.
Karam Singh accused on arrival delivered a spear blow in the left flank of Labh Singh deceased.
Amarjit Singh accused also gave a spear blow on the right arm of Labh accused dealt a kirpan blow on the nose of Harbans Singh PW, while Chanan Singh accused gave a blow with his sheathed kirpan on the back of Mohinder Singh PW.
Swarn Singh accused stepped towards Chanan Singh,.
(PW 8) for attacking him with a kirpan whereupon Chanan Singh (PW 8) took up a panda from the courtyard of Labh Singh and brandished it towards Swarn Singh.
One blow with that danda was given on the left shoulder of Swarn Singh accused.
Those present in the courtyard also raised alarm whereupon the nine accused ran away.
Some water was then poured into the mouth of Labh Singh, but he succumbed to the injuries received by Mm.
Mohinder Singh and Harbans Singh PWs then brought a cart from the house of Charlie Singh (PW 8).
Lakha Singh and Joginder Singh deceased were laid an that cart.
Chanan Singh (PW 8), Harbans Singh, Sarjan Singh and Mohinder Singh then took that cart to Batala hospital.
When they arrived near the hospital, Chanan Singh (PW 8) went to police station Sadar Batala and lodged there report P.A. at 11.15 p.m. 331 Sub Inspector Kehar Singh (PW 30) then went to the hospital.
Before doing so, the Sub Inspector deputed two Assistant Sub Inspectors and four constables to proceed to the place of occurrence.
Sub Inspector Kehar Singh found Lakha Singh and Joginder Singh present in the hospital.
Their injuries were being examined by Dr. N. section Dhillon when the Sub Inspector arrived there.
On the applications of the Sub Inspector, Dr. Dhillon made an endorsement that Joginder Singh and Lakha Singh were in fit condition to make statements.
The Sub Inspector then deputed a head constable to call the magistrate having jurisdiction in the area.
It was raining heavily at that time and as the magistrate did not arrive, the Sub Inspector recorded the dying declarations of Lakha Singh and Joginder Singh in the presence of Dr. Dhillon.
The condition of Lakha Singh and Joginder Singh was found to be serious and so they were sent to V. J. Hospital Amritsar.
Sub Inspector Kehar Singh then went from Batala hospital to the place of occurrence and reached there at 5 a.m.
The Sub Inspector found the dead body of Labh Singh lying on a cot.
The Sub Inspector prepared inquest report relating to the dead body of Labh Singh.
Blood stained earth was taken into possession from three places in the courtyard of Labh Singh 's house.
The, Sub Inspector also took into possession lever PI, percussion cap P2 and four pieces of exploded hand grenade from the place of occurrence and put them into a sealed parcel.
Injuries of Harbans Singh, Ajit Singh and Jarnail Singh were examined by Dr. N. section Dhillon on July 9.
Harbans Singh was found to have two lacerated wounds, one on his right index finger and the other on the bridge of his nose.
Both the injuries were grievous.
Ajit Singh was found to have one punctured wound with averted lacerated margins on his right thigh, while Jarnail Singh had one lacerated wound on the right side of his neck.
The injuries of Ajit Singh and Jarnail Singh were found to be simple.
Mohinder Singh was examined by Dr. section P. Mago on July 10, 1968 and was found to have four simple injuries on his person.
Lakha Singh and Joginder Singh who were sent to V. J. Hospital Amritsar succumbed to their injuries on July 10 and 11, 1968 respectively.
Post mortem examination on the dead bodies of Lakha Singh and Joginder Singh was performed by Dr. Narinder Mohan on July 11, 1968.
The lever, precussion cap and the other parts of the hand grenades which had been recovered from the place of occurrence were sent to PW 20 Shri J. M. John, Senior Inspector of Explosives.
Shri John expressed the opinion that the above articles were the remnants of an exploded hand grenade.
At the trial the plea of the nine accused was denial simpliciter.
Chanan Singh and Swarn Singh accused, in the course of their statements ' also added that they had heard changers on the night of occurrence at about 10 p.m. from the direction of guru dwarf.
The explosion of a bomb was also heard at that time but these two accused did not stir out of their houses.
Defence evidence was led on behalf of the accused.
The purport of the defence evidence was that one 332 Bachan Singh had been admitted into Batala Hospital with multiple injuries on the night between July 8 and 9, 1968.
A metallic substance was thereafter recovered from the body of Bachan Singh on July 20, 1968.
Defence evidence was also led to show that Labh Singh deceased, who was a bus driver of the Punjab Roadways, was away to Pathankot at about 7 p.m. on the day of occurrence.
Learned Sessions Judge found that the prosecution case against Joginder Singh, Baljit Singh and Karam Singh accused had been proved beyond any shadow of doubt.
He accepted the ocular evidence produced in the case.
Reliance was, however, not placed upon the dying declarations of Lakha Singh and Joginder Singh.
The remaining six accused were given the benefit of doubt and were acquitted.
The High Court on appeal and reference acquitted Jagir Singh, Baljit Singh and Karam Singh also by giving them the benefit of doubt for reasons which would be dealt with hereafter.
In appeal before us Mr. Mulla on behalf of the appellant state has argued that the High Court was in error in setting aside the conviction of the three accused respondents and the view taken by the High Court was manifestly unreasonable.
As against that Mr. Nuruddin on behalf of the respondents has canvassed for the correctness of the view taken by the High Court.
There is, in our opinion, considerable force in the stand taken on behalf of the appellant.
The evidence of Dr. Dhillon, who performed postmortem examination on the body of Labh Singh, shows that there were five injuries on the body of the deceased.
Out of them, three could be caused with a hand grenade, while two had been caused with a sharp pointed weapon.
One of the last two mentioned injuries was a punctured incised wound on the back of the right forearm, while the other injury.was as under : "Punctured incised wound 1"X3/4" with clean cut margins, over 5th rib and 5th left intercostal space in mid axillary line with fracture of 5th rib, puncture of left lung near the fissure, went through the entire lung, cross punctured the walls of left auricle, haematoma over the lung and pleural cavity pleura punctured left side, pericardium puncture".
The above mentioned injury was sufficient in ordinary course of nature to cause death.
The evidence of Dr. Narinder Mohan, who performed postmortem examination on the bodies of Joginder Singh and Lakha Singh, shows that Joginder Singh had three lacerated wounds which could be caused with a hand grenade.
Likewise, Lakha Singh had two injuries which could be caused with a hand grenade.
The following injury of Joginder Singh was sufficient in ordinary course of nature to cause death : "A penetrating wound 1 1/2" roundish, with lacerated margins 1" ' to the left of the mid epigastric line 3" above the umbilicus with omentum seen out of the wound.
There was no charring of the margins.
" 333 In the case of Lakha Singh, the fatal injury was in the abdominal cavity.
Operation had been performed at the site of the injury in an attempt to save Lakha Singh.
According to the prosecution case, the hand grenade injuries to the three deceased persons and injured prosecution witnesses were caused by Jagir Singh and Baljit Singh accused when they threw the handgrenades in the courtyard of Labh Singh 's house.
It is further the case of the prosecution that the fatal punctured incised wound in mid axillary line of Labh Singh deceased was caused by Karam Singh accused when he gave the spear blow to Labh Singh deceased.
The prosecution in support of the above allegations has examined Chanan Singh (PW 9), Ajit Singh (PW 19), Harbans Singh (PW 21), Jarnail Singh (PW 22), Bawa Singh (PW 25), Chanan Singh s/o Sawan Singh (PW 26) and Mohinder Singh (PW 27) as eye witnesses of the occurrence.
There appears, in our opinion.
to be no cogent ground as to why the evidence of the above mention 'ed witnesses.
regarding the complicity of the accused respondents be not accepted.
It is, no doubt, true as pointed out by Mr. Nuruddin, that these witnesses belong to the party of the deceased but that fact, in our opinion, would only make the court scrutinise the evidence of these witnesses more closely.
If their evidence can stand that test, as it does in the present case, there is no reason why it should not be acted upon.
Some of the witnesses are close relatives of the deceased persons and it is most difficult to believe that they would spare the real assailants and falsely mention the names of innocent persons as having caused the injuries to the deceased persons.
Four of the eye witnesses, namely, Ajit Singh (PW 19), liarbans Singh (PW 21), Jarnail Singh (PW 22) and Mohinder Singh (PW 27) received injuries during the course of the present occurrence and there can be hardly any manner of doubt re garding their presence at the scene of occurrence.
It is not possible to accept the contention that these witnesses in spite of the attack upon them and the three deceased persons failed to fix the identity of the assailants.
Another fact of which note should be taken is that the first information report in this case was lodged at 11.15 p.m., within a few hours of the occurrence.
Although Mr. Nuruddin has urged that there was delay in lodging the first information report, we find it difficult to accept this submission.
The occurrence, according to the prosecution case, took place at 7.15 p.m.
As a result of the occurrence, Labh Singh died soon thereafter, while Joginder Singh and Lakha Singh received serious injuries.
In addition to that, four prosecution witnesses also received injuries.
It is plain that the prosecution witnesses must have got stunned because of the sudden occurrence in the course of which three of their close relatives received injuries which ultimately proved fatal and four others were also injured.
Attempt was made to pour water into the mouth of Labh Singh deceased but Labh Singh died soon thereafter.
It must have taken some time for Chanan Singh and others to get out of the state of shock and regain their composure '.
They then arranged for a cart which was brought from Chanan Singh 's house in Longowal Kalan.
Joginder Singh and Lakha Singh were then laid in that cart and the same was taken to Batala, at a distance of 334 two and a half miles.
It cannot, in the circumstances, be said that the period of four hours which was taken in lodging the report at the police station was in any way inordinately long.
The fact that the first information report was lodged at the time it Purports to have been done can also be not disputed because the first lnformation report was received by the magistrate having jurisdiction in the area at 1 a.m. as is borne out by the endorsement of the magistrate on the report.
The first information report, lodged at the police station within a few hours of the occurrence, contained all the, material facts and, in our opinion, the first information report lends considerable corroboration to the ocular evidence adduced at the trial.
The defence suggestion which was put in the cross examination of the prosecution witnesses was that a number of persons had Collected near the village gurudwara when a hand grenade exploded there and the three deceased persons and the prosecution witnesses received injuries.
This suggestion, in the circumstances of the case, was, in our opinion, wholly unfounded.
The evidence of Sub Inspector Kehar Singh shows that when he arrived at the scene of occurrence, he found the different pieces of exploded hand grenade in the courtyard of the house of Labh Singh deceased.
This fact would tend to show that the explosion had taken place in the courtyard and not at the gurudwar .
It is also not clear as to what advantage the prosecution would have derived in suppressing the actual place of occurrence and in mentioning a wrong place of occurrence.
As would appear from the narration of facts, only members of one party received injuries as a result of the explosion of hand grenade.
If the hand grenade had exploded in a large gathering near the village gurudwara, it is not likely that the splinters from the exploded hand grenade would hit the members of only one party and avoid those not belonging to that party.
Labh Singh deceased at the time of the present occurrence was wearing only a kachha besides a parna, on his head.
It is not likely that Labh Singh would have gone in that state without a shirt to the gatliering near the village gurudwara.
On the contrary, the fact that Labh Singh was without a shirt points to the inference that the occurrence took place in the courtyard of his house.
The High Court while rejecting the prosecution evidence referred to the fact that in one of the plans, height of the outer wall of the courtyard of Labb Singh 's house was mentioned to be 6 1/2 ft.
while in the other, it was mentioned to be 4 1/2 ft.
This discrepancy has been explained by Bal Kishan Draftsman (PW 9), whose evidence shows that the level of the courtyard of Labh Singh 's house was higher than the ground outside.
The height of the boundary wall consequently measured to be 6 1/2 ft from outside and 4 1/2 ft from inside.
No question was put to the witness in cross examination, and we can find no cogent reason as to why the evidence of Bal Kishan be not accepted.
There could also, in our opinion, be no difficulty for those present inside the courtyard from seeing as to who were the persons who threw the hand grenades, because a 41 ft high wall could not obstruct their view in fixing the identity of the culprits.
335 Another circumstance which weighed with 'the High Court in rejecting the prosecution evidence was the nature of the injury, on the nose of Harbans Singh (PW 21).
According to the evidence of the prosecution witnesses, the above injury had been caused with a kirpan by Joginder Singh.
The High Court took the view that the said injury had been caused by a hand grenade splinter.
It was 'held that as the witnesses had deposed that the injury had been caused by a kirpan blow, the evidence of the witnesses was not trustworthy.
In this respect we find that the evidence of Dr. Dhillon shows that he expressed the opinion in answer to a police query that the injury on the nose of Harbans Singh could have been caused with a kirpan.
It is, no doubt, true that Dr. Dhillon also expressed the opinion that the said injury could have been caused by a missile or other object, but this fact would not necessarily show that the eye witnesses in this case have made false statements regarding the injury on the nose of Harbans Singh.
In order to draw an inference about the falsity of the evidence of prosecution witnesses in this respect, it is not enough to show that the injury on the nose of Harbans Singh could have been caused either with a kirpan or with a missile, it is also necessary to rule out the Possibility of the said injury having been caused with a kirpan.
The evidence of Dr. Dhillon plainly does not rule out such a possibility.
The High Court also appears to have been impressed by the defence version that Labh Singh deceased was present in Pathankot at about 7 p.m. on the day of occurrence.
Reliance in this context was placed upon tile testimony of Radhey Sham (DW 3) who was conductor of Bus PNP 6972 and who has deposed about Labh Singh having driven that bus to Pathankot on the, day of occurrence and about that bus having reached Pathankot at 7 p.m.
We find it most difficult to accept this statement of Radhey Sham in the face of other evidence brought on the record and the surrounding circumstances of the case.
Dalip Singh (PW 11) is a yard master of Punjab Roadways depot at Pathankot.
The evidence of this witness was given on the basis of the relevant records.
According to this witness, two drivers had been allotted for the bus in question and they were Labli Singh deceased and Piara Singh (PW 12).
Dalip Singh 's testimony shows that on the day of occurrence it was Piara Singh who brought the bus in question to Pathankot at 7 p.m.
As the evidence of this witness is based upon the records , it is difficult to discard his testimony.
The evidence of Dalip Singh gets corroboration from the testimony of Piara Singh who has deposed that when the said bus arrived at Batala at about 5 p.m. on the day of occurrence on its way from Amritsar to Pathankot, the witness relieved Labh Singh deceased.
Labh Singn then got down from the bus at Batala and the witness took it to Pathankot.
Another witness who has been examined on the point is Yes Raj (DW 2), who was the booking clerk of the Punjab Roadways office at Pathankot.
According to this witness, the advance way bill of the bus in question showed that its driver was Labh Singh when it left Amritsar for Pthankot.
The witness, however, admitted that the entry in the way bill was made at the commencement of the journey.
In the circumstances, the evidence of the witness is quite consistent with Labh Singh having been relieved by Piara Singh at Batala.
336 Labh Singh admittedly died during the course of this occurrence.
Had he been at Batala at 7 p.m. on the day of occurrence, it is not likely that he could have reached his village before 9.30 or 10 p.m. on the day of occurrence.
It is in evidence that a bus takes two hours to travel from Pathankot to Batala.
It is difficult to believe that a report about the occurrence at Longowal Khurd could have been lodged at Batala Sadar police station at 11 15 p.m. if, in fact, the occurrence had taken place after 9.30 or 10 p.m.
We are also not impressed by the reasoning that the occurrence took place at a late hour when it was not possible to fix the identity of the assailants.
The case of the prosecution, as mentioned earlier, is that the occurrence took place at 7.15 p.m.
The sun set on the day of occurrence ,it 7.28 p.m.
There was full moon on July 9 and the occurrence took place a day earlier than that.
As the occurrence took place before sun set there could, in our opinion be no difficultly in fixing the identity of the assailants.
Even if the occurrence had taken place after the sun set time, there could still be no difficulty in finding out as to who the assailants were.
A number of persons were present in the courtyard of Labh Singh 's house.
There is no suggestion that a lamp had been lighted at that time.
The fact that a large number of persons were present in the courtyard without lighting a lamp would show that there was enough light at that time.
It is also significant that the assailants gave two Barcha blows to Labh Singh de ceased.
If there was enough light to enable the assailants to fix the identity of Labh Singh before they gave Barcha blows to him, it stands to reason that the same light would be enough for others to see as to who the assailants were.
We, therefore, have no hesitation in rejecting, the argument that there was not enough light at the time of occurrence to enable the prosecution witnesses to fix identity of the, culprits.
Another factor which weighed with the High Court in discarding the prosecution evidence was that Bachan Singh (DW 6) was admitted in Batala hospital a few minutes before Joginder Singh and Lakba Singh deceased were brought there.
According to the testimony of Dr. N. section Dhillon, a metallic foreign substance was recovered from the arm of Bachan Singh on July 20, 1968.
The High Court took the view that Bachan Singh too had been injured during the course of the present occurrence and the fact that no reference was made to Bachan Singh either in the first information report or in the evidence of the prosecution witnesses would go to show that the prosecution evidence is not worthy of credence.
In this respect we find that Bachan Singh was examined as a defence witness.
Bachan Singh in the course of his evidence denied being present at the scene of occurrence and having been injured at that time.
According to Bachan Singh, he had received an injury during the course of a dispute with his father.
Piaro, sister of Bachan Singh, was also examined as DW 4.
She too has denied that Bachan Singh was present at the time of the present occurrence.
It is, in our opinion, not necessary to dilate upon the injury of Bachan Singh because even if it may be assumed that Bachan Singh too received an injury during the course of the present occurrence, that 337 would not materially affect the substance of the prosecution evidence regarding the guilt of the three accused respondents.
The learned judges of the High Court in rejecting the prosecution evidence have made observations critical about the magistrate, who received the copy of the first information report, as well as about Dr. Dhillon, Sub Inspector Kehar Singh and.
the learned Sessions Judge.
So far as the magistrate is concerned, it observed that he was an irresponsible lazy officer as he could not reach the hospital at about 1 a.m. on the night of occurrence in spite of heavy rain for recording the dying declarations of Joginder Singh and Lakha Singh.
As, regards Dr. Dhillon, the criticism leveled is that he expressed an opinion in answer to the query of the investigating officer that the injury on the nose of Harding Singh could be caused with a kirpan.
It was observed that the doctor had gone out of the way to please the investigating officer.
The doctor was also criticized for attesting the dying declarations.
Regarding Sub Inspector Kehar Singh, the High Court formed the impression that he was a domineering police officer because lie obtained opinion favorable to the prosecution from Dr. Dhillon.
It was also observed that the Sub Inspector had tried to be over clever.
There was enough material available, according to the High Court, which could have been made better use of by a more imaginative officer without artificially or artfully advancing the time of occurrence to day time.
As regards the learned Sessions Judge, the High Court observed that the present marathon trial appeared to have strained his capacities to the maximum limits.
The criticism leveled by the High Court against the above mentioned officers, in our opinion, was not warranted and was couched in language, which was rather harsh.
Perusal of the judgment of the High Court shows that in acquitting the accused respondents, the High Court approached the entire matter in a spirit of distrust and suspicion of the various officers who dealt with this case.
We further find that the judgment of the High Court is based upon conjectures, surmises and suspicion.
Looked at in the context of the facts of the case, we find that the view taken by the High Court is manifestly unreasonable.
It is consequently not possible to sustain the judgment of the High Court.
A criminal trial is not like a fairy tale wherein one in free to give flight to one 's imagination and phantasm.
It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the crime with which he is charged.
Crime is an event in real life and is the product of interplay of different human emotions.
In arriv ing at the conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses.
Every case in the final analysis would have to depend upon ' its own facts.
Although the benefit of every reasonable doubt should be given to the accused, the courts should not at the same time reject evidence which is ex facie trustworthy on grounds which are fanciful or in the nature of conjectures.
The High Court in the present case, in our opinion, has rejected the prosecution evidence which was ex facie of a convincing nature 338 on grounds which partake of the nature of conjectures and surmises.
The view taken by the High Court, as already observed, is manifestly unreasonable and has resulted in miscarriage of justice.
We accordingly accept the appeal, set aside the judgment of the High Court and convict the accused respondents for the offences for which they were convicted by the trial court.
As regards the sentence for the offence under section 302 Indian Penal Code, we find that a period of more than two years has elapsed since the acquittal of the accused respondents by the High Court.
It would, in the circumstances, be appropriate if the extreme penalty for the offence under section 302 Indian Penal Code is not exacted from the accused respondents.
We, therefore, :sentence the accused respondents for the offence under section 302 Indian Penal Code to imprisonment for life.
The sentences imposed upon the accused respondents for the offences under section 302 read with section 34, section 307 and section 307 read with section 34 Indian Penal Code are maintained.
The sentences of each of the accused respondents would run concurrently, V.P.S. Appeal allowed.

summary:
The respondents were convicted of murder and sentenced to death.
The High Court acquitted them in appeal.
In appeal to this Court, setting aside the acquittal, HELD : (1) A criminal trial is not like a fairy tale wherein one is free to give flight to one 's imagination and phantasy.
It concerns itself with the question as to whether the accused arraigned at the trial is guilty of the crime with which he is charged.
Crime is an event in real life and is the product of interplay of different human emotions.
In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses.
Every case in the final analysis would have to depend upon its own facts.
Although the benefit of every reasonable doubt should be given to the accused, the courts should not at the same time reject evidence which is ex facie trustworthy on grounds which are fanciful or in the nature of conjectures.
[337F H] In the present case, the High Court has rejected the prosecution evidence which was ex facie of a convincing nature on grounds which partake of the nature of conjectures and surmises.
The view taken by the High Court is manifestly unreasonable and has resulted in miscarriage of justice.
A perusal of the judgment of the High Court shows that in acquitting the accused respondents, the High Court approached the entire matter in a spirit of distrust and suspicion of the various officers who dealt with the case.
[337H 338B] (2) The High Court, while rejecting the prosecution evidence, made unwarranted criticism couched in harsh language about the magistrate who received the copy of F.I.R., the doctor, the investigating officer and the Sessions Judge who tried the case.
[337E F] (3) In view of the fact that more than two years had elapsed since the High Court acquitted the respondents, it would be more appropriate to sentence the accused to imprisonment for life instead of to the extreme penalty.
[338B C]


judgement:
Appeal No. 2384 of 1972.
Appeal by special leave under section 116A of the Representation of Peoples Act 1951 from the judgment and order dated the 2nd August 1972 of the Punjab and Haryana High Court at Chandigarh in Election Petition No. 4 of 1972.
Appellant appeared in person.
D. N. Mukherjee and N. R. Chaudhury, for the respondent.
The Judgment of the Court was delivered by JAGANMOHAN REDDY, J.
The appellant is a voter on the electoral roll of Karnal Assembly Constituency.
He challenged the election held on March 11, 1972, for the membership of the Haryana Vidhan Sabha from Karnal Constituency.
At that election 16 candidates filed their nominations which were declared as valid nominations.
Out of these, eight candidates withdrew their candidature.
The respondent and sevel others were the contesting candidates.
After the polling on March 11, 1972, counting took place on March 12, 1972 and the respondent was declared elected having polled 17719 votes, the other candidates Shanti Devi polled 16857 votes, Balwan Singh 1602 votes, Piyare Lal 1243 votes, Kali Ram 1203 votes, Kalu Ram 616 votes, Radhey Sham 542 votes and Kashmira Singh 180 votes.
The appellant filed a petition on April 24, 1972, challenging the election of the respondent Ram Lal on the allegations, inter alia, that the respondent, his election agent and other persons with his consent, had committed various corrupt practices detailed in the petition as falling within the meaning of sub sections
(1) to (7) of section 123 of the Representation of the People Act hereinafter referred to as 'the Act '.
For the purposes of this appeal, the various allegations made against the respondent in the election petition are not relevant.
It is only necessary to state that certain allegations of corrupt practices were made in paragraphs 11 & 12 of the petition against Piyare Lal, Kali Ram and Kalu Ram.
The petition was verified by the appellant as required under the Rules.
The appellant also filed an affidavit in which he stated that paragraphs 11 & 12 among other paragraphs were based on information received and were believed to be true.
The respondent filed a written statement on September 25, 1972, contesting the allegations of various corrupt practices made by the appellant and further raised some pre iminary objections one of which was that the petition was liable to be dismissed for noncompliance with the provisions of section 82 of the Act inasmuch as the persons against whom allegatione of corrupt practice have been made such as Pivare Lal Kali Ram and Kalu Ram had not been joined as respondents to the petition.
351 The appellant, however, averred in reply that Ram Lal respondent alone was required to be made a party and it was not necessary to implead any other candidate or candidates as the allegations of corrupt.
practice were levelled against the successful candidate and not againstother candidates.
The learned Judge who tried the petition, after hearing the 'petitioner in person and the respondents counsel, framed the following two issues : 1.Whether it was necessary for the petitioner to implead Sarvshri Ram Piare, Piyare Lal, Kali Ram, Kalu Ram and Kaslimira Singh as parties to the petition in view of the allegations in paras 9, 10, 11, 12 and 20 of the election petition ? 2.
If Issue No. 1 is found in favour of the respondent, what is the effect of non impleadment of those persons as respondents to the petition ? It was conceded by the respondent 's counsel that there was no, imputation of any corrupt practice against Shanti Devi, Balwan Singh and Radhey Sham and accordingly there was no necessity to implead ' them.
It was, however, urged that Comrade Ram Piare and the remaining four candidates, namely, Piyare Lal, Kali Ram, Kalu Ramand Kashmira Singh, having been charged with committing corrupt practices set out in the a aforesaid paragraphs were necessary parties.
The arned Judge held that Comrade Ram Piare had withdrawn his candidature before the prescribed date, therefore, he was not a necessary party to the petition, nor was there any allegation against him, that he was prevailed upon to withdraw by bribery, receipt of gratification or reward which would constitute a corrupt practice within the meaning of section 123 of the Act.
Even in respect of Kashmira Singh the allegation that he was persuaded to retire from the contest and" sit silent in the election if he could not help the respondent could not amount to corrupt practice.
The Court, however, came to the conclusion that the petitioner had in paragraphs 11 and 12 of the petition made allegations of corrupt practices against Piyare Lal, Kali Ram and Kalu Ram and in view of these allegations failure to implead them as parties to the petition contravened the mandatory provisionsof section 82 of the Act.
In this view the election petition was dismissed.
Against 'this decision, the appellant has come up in appeal before us.
The petitioner who argued the appeal in person contends, inter alia, firstly, that as the affidavit filed by him in support of the election petition merely stated that the allegations contained in paragraphs 11 and 12 were based on information received and he had not stated.
what the sources of information were, that part of the petition in which the allegations of corrupt Practices were made against Pivare Lal, Kali Ram and Kalu Ram cannot form the basis of a triable issue.
Consequently the allegations against the respondent should have been enquired into; secondly, that the learned Judge should have on the pleading , framed and tried all issues arising out of the petition and not merely issues confined to a preliminary point.
Where issues of ' fact and law arise out of a petition it is contended that evidence should have, been recorded and findings given in respect of all those issues; thirdly, the appellant submits that while section 82(a) is mandatory, section 352 82(b) is directory, as such the petition cannot be dismissed; fourthly, the allegations in paragraphs 11 & 12 of the petition did not constitute corrupt practice inasmuch as the allegations, only state that money was paid, but there was no express averment that it was accepted by the persons, concerned; and lastly, it was contended that section 82(b) is violative of article 14 of the Constitution in that it was harsh and would result in the dismissal of the petition in which allegations of corrupt practices were made against the successful respondent who committed them, merely because proper allegations were not made against the persons who were not elected.
In support of his first contention the appellant has referred to decisions rend,. red under O. VI r. 15 and O. XIX r. 2 of the Code of Civil Procedure.
These decisions, in our view, have no relevance and ,do not support the submission of the appellant that in the affidavit in support of the petition if he has not stated the sources of information on which the several allegations in the petition are based, those allegations cannot be deemed to, have been made.
Order VI r. 15(2) states that the person verifying shall specify, by reference to numbered paragraphs of the pleadings, what he verifies on his knowledge and what he verifies upon information received and believed to be true.
This provision, as we shall presently show, is no different to that required to be stated on an affidavit by the proviso to section 83(1) read with r. 94A and Form 25 of the Conduct of Election Rules, 1961.
Order XIX r. 2 has no relevance as that deals with evidence being given on affidavit and if either party insists the Court may order the deponent to attend for cross examination.
At the outset it may be stated that the provision for setting out the sources of information where the allegations have been verified as having been made on information and knowledge of the petitioner is not a requisite prescribed under r. 94 A of the Conduct of Election Rules, 1961, which are applicable to the filing of an election petition.
Under sub.
section (1 ) of section 83 an election petition has to contain a concise statement of the material facts on which the petitioner relies; it has to set fort a full particulars of any corrupt practice that the petitioner alleges, including as full a statement as possible of the names of the parties alleged to have committed such corrupt practice and the date and place of the commission of each such practice and shall be signed by the petitioner and verified in the manner laid down in the Code of Civil Procedure, 1908, for the verification of the pleadings, provided that where the petitioner alleges any corrupt practice.
the petition shall also be accompanied by an affidavit in the prescribed form in support of the allegation of such corrupt practice and the Particulars thereof.
The affidavit in Form 25 prescribed under r. 94 A is as follows "I. the petitioner in the accompanying elect ion petition calling in question the election of Shri/Shrimati . (respondent Ro . in the said petition) make solemn affirmation on oath and say 353 (a)that the statements made in paragraphs. of the accompanying election petition about the commission of the corrupt practice of and the particulars of such cor rupt practice mentioned in paragraphs of the same petition and in paragraphs . of the Schedule annexed thereto are true to my knowledge; (b) that the statements made in paragraphs . of the said petition about the commission of the corrupt practice of * the particulars of such corrupt practice given in paragraphs.
of the said petition and in paragraphs of the Schedule annexed thereto are true to my information.
(c) (d) (e) Signature of deponent Solemnly affirmed/sworn by Shri/Shrimati. at this. day of 19 .
Before me, *Here specify the name of the corrupt practice.
Magistrate of the first class/Notary/Commissioner of Oaths.
There is nothing in this form which requires the petitioner to state under cl.
(b) of Form 25 the source or sources of his information The appellant has referred us to O. 11 r. 13 of the Supreme Court Rules as also to r. 12 of the Punjab High Court Rules, in which when the deponent in the affidavit filed in support of the petition states that he has made the allegations in the paragraph or paragraphs specified on information, he is required also to disclose the sources of in,formation.
But when there 'are specific Rules made under the Act which govern the election petitions, no other Rules are applicable.
Nor is the disclosure of the source of information a requisite under O. VI r. 15(2) C.P.C.
On this ground alone the submission of the appellant can be rejected.
But as he has cited several cases, a: few of them may be examined to show that they do not help him.
In Amulya Chandra Bhaduri vs Satish Chandra Giri and others() what was considered was whether the affidavit in support of the petition under the Contempt of Courts Act, 12 of 1926, disclosed the sources of information in respect of the allegations made in the petition for contempt of Court.
It was observed that in cases of this nature, as is well known, the practice of the Court was to enable the parties concerned to know what are the points they have got to answer in a charge of contempt and the practice has always been that the opposite parties, namely, the parties charged with contempt, can not be called upon to answer to anything which is not set out specifically in the grounds used be fore the Courts at the time when the Rule was (1) A.I.R, 1932 Cal.
(2) A.I.R. (1951) Nag., 26. 354 issued.
Wasudeoraoei vs A. D. Mani(2) is also a case under the Contempt of Courts Act.
1926, and does not support the submission of the appellant.
There is nothing in these decisions which state that the affidavit in support of an election petition should itself disclose the sources of information.
The election petition under section 83 (1) (b) its elf must contain all the particulars that are necessary and in the affidavit in support of that petition the petitioner is required to say which of the allegations made in various paragraphs of the petition are true to his knowledge and which of them are true to his information.
If any sources of information have not been set out and the respondent cannot answer them without particulars,.
he can always apply for better particulars.
If the petition and the affidavit conform to the provisions of the Act and the Rules made thereunder, it cannot be said that because the sources of information have not been given, the allegations made in the petition have to be ignored.
The decision in Smt.
Sahodrabai Rai vs Rain Singh Aharwar and others(1) states nothing further than that under the Representation of the People Act, details of corrupt practice or averments too compendious for being included in the election petition may be set out in the schedules or annexures to the election petition.
The law requires that even though they are outside the election petition, they must be signed and verified, but such annexures or schedules are then treated as integrated with the election petition and copies of them must be served on the respondents if the requirement regarding service of the election petition is to be wholly complied with.
No doubt it was observed in this case that the trial of election petition has to follow as far as may be the provisions of the Code of Civil Procedure.
But these observations were made in respect of the need to furnish along with the plaint copies of all the documents filed with the plaint when summoning the defendants.
The Court observed that the plaintiff is required to file one copy of the documents and not as many copies as there are defendants in the case.
It is clear that the documents which are filed with the plaint have to be accompanied by one copy of the documents.
This is because the copy is compared with the original and the copy is endorsed by the clerk of court and the document is sometimes returned to the party to be produced into Court later.
The copy takes the place of the document concerned and is not to be sent out to the parties with the plaint.
The election law does not provide anything different.
This case also does not assist the appellant.
It is unnecessary for us to refer to other decisions which are not germane to the contentions urged before us In our view.
there is no defect in the election petition.
There is no force in the submission that because the source of information had not been disclosed the allegations of corrupt practices made in the petition have to be ignored.
It may also be pointed out that the logical result of the contention urged by the appellant that the affidavit is defective, if accepted, would make the election petition itself not maintainable for having filed a defective affidavit.
On this ground itself the petition could be rejected, but such is not the position in law and in our view the election petition does not suffer from any defect on this score.
(1)A.I.R. 3 5 5 The next submission of the appellant that all issues should have, been framed and tried, instead of only one issue on the preliminary Point is equally without force.
Section 82(2) enjoins who the parties to the petition should be, and among those, apart from the returned candidate whose election is challenged, any other candidate against whom any allegations of corrupt practices are made in the petition should be joined.
If this requirement is not fulfilled, sub section
(1) of section 86 makes it mandatory for the High Court to dismiss the election petition for noncompliance with the provisions of section 82 of the Act.
The contention of the appellant that while cl.
(a) of section 82 is mandatory, cl.
(b) of that section is only directory, is not tenable because reading section 86 with section 82 makes both cls.
(a) and (b) of the latter section mandatory and non compliance with the requirements thereof visits the petitioner with the penalty of having his petition dismissed.
In view of these provisions, it is incumbent upon the High Court, where the allegation is that the requirements of section 82 are not complied with, to determine that issue as a preliminary issue.
If the respondent has made out his case on that issue, the Court is left with no option but to dismiss the petition for non compliance with the mandatory provisions of section 82.
This Court has held in Charan Lal Sahu vs Nandkishore Bhatt & Ors(1) that non. compliance with the provisions of section 117 of the Act which is one of the sections mentioned in sub section
(1) of section 86 merits dismissal of the election petition.
Before dealing with the third and fourth submissions, it is necessary to see what the allegations made by the petitioner in paragraphs 11 and 12 are.
The following are the allegations in respect of these paragraphs : "11.
That through Sh.
Sardha Ram, President, Municipal Karamchari Dal, Karnal and Sh.
Prithvi Raj President Distt.
Municipal Subordinate Employees Union, Karnal the respondent Sh.
Ram Lal and Sh.
Hargobind Senior Vice President, Municipal Committee, Karnal induced Sh.
Piara Lal a caste brother of Mr. Sardba Ram to stand at the election for the Karnal Assembly Constituency for that deal Sh.
Sardha Ram was promised that he would not be dismissed again even if his appeal had been dismissed by the learned Commissioner Ambala Division and Sh.
Prithvi Raj would be given extension of his service.
It was further promised by the respondent at the house of Sh.
Piara Lal Ward No. 9, Jundle gate, Karnal that he would bear the entire election expenses of Sh.
Piara Lal for the purpose and he was paid Rs. 3000 for standing in the elections in advance as gift by the respondent on 10th Feb. 1972.
It was further agreed upon that Jan Sangh workers would also work for Sh.
Piara Lal.
He was actually supplied workers and loud speaker fitted Rikshaw for opropaganda work.
So this inducement to Sh.
Piara Lal to stand at the election is a corrupt practice in the meaning of the section 123 (1) (A) (a) of the Representation of People Act and election is void.
(1) C. W No. 2411 of 1972 decided on August 1, 1973.
356 12.That the respondent Sh.
Ram Lal accompanied by his agents Sh.
Sunder Lal Dhawan, Sh.
Baldev Raj Anand and also Sh.
Prithvi Raj Anand Officiating Health Officer, Municipal Committee Karnal, went to the, house of Sh.
Kali Ram resident of Sadar Bazar, Karnal and offered him Rs. 2000/ as inducement to stand as candidate at the election, they further offered him that the entire election expenses and substantial workers would also be supplied by Sh.
Ram Lal and his party as the Congress nominee belonged to Jat community of the Chief Minister of Jats always have been torturing the Harijans.
Kali Ram on 10th Feb. 1972 took them to the house of Sh.
Kalu Ram resident of Jawahar Market, Karnal where Sh.
Kalia was sitting with his friends Sh.
Ved Parkash and Sh.
K. K. Marwaha and after discussions Sh.
Kalu said that the respondent every time makes Sh.
Piara Lal stand at the elections and why he did not come to him first as Sh.
Piara Lal was not superior or more influential in Jhimers of Karnal.
Upon this it was settled that Sh.
Kalu should also stand and for that purpose he was also paid Rs. 2000/ on the spot and so was Sh.
Kali Ram paid Rs. 2000/ .
Next day i.e. on 11 2 1972 Sh.
Kali Ram accompanied by Kalu filed their nomination papers and they both praised that they would not withdraw their candidature come what may and from next morning i.e. from 42 2 1972 both of them were given loud speaker fitted Rikshaw and workers for propaganda sake till 9th March, 1972.
This gratification and offer to the persons to stand in elections and with promise on their part not to withdraw till end of elections is a corrupt practice within the meaning of Section 123 (1 ) (A) (a) (B).
So election is void.
A perusal of the contents of paragraph 11 will show clearly that the respondent bad promised Piare Lal at his house that he would bear the entire expenses and in furtherance of that promise had paid Rs. 3000 for his standing in the elections in advance as gift on February 10 1972.
This inducement to Piara Lal to stand at the election has been alleged as a corrupt practice within the meaning of section 123 ( 1 ) (A) (a) of the Act.
Similarly allegations in paragraph 1 2 are that the respondent offered to Kali Ram and Kalu Ram on February 10, 1972, Rs. 2000 each to stand as candidates for elections and that on February 11, 1972, Kali Ram accompanied by Kalu Ram filed their nomination papers.
This gratification and offer to the persons to stand in elections so that they may later withdraw from the elections to help the respondent was a corrupt practice within the meaning of section 123(1)(A)(a)(B).
In our view, there can be no manner of doubt that the averments in paragraphs 11 and 12 amount to allegations of corrupt practice.
The argument of the appellant that there is nothing in paragraphs II and 12 from which it can be gathered that Piare Lal, Kali Ram and Kalu Ram had accepted the gratification, when it is categorically stated that the amounts had been paid to the persons on the soot and that these amounts were paid to induce them to stand for the elections and in pursuance thereto such person or persons stood 357 for the, elections with the object of withdrawing subsequently after the nomination papers were held valid.
appears to us to be spacious.
The case or Mohan Singh vs Bhanwarlal and others (1) cited by the petitioner has no application, because on the facts of that case, there was no express averment that one of the candidates had withdrawn his candidature as a consequence of a promise made to him by.
the successful candidate that a job will be secured for him, as such it was held that it did.
not disclose an allegation of corrupt practice.
The High Court, in our view, was right in holding that paragraphs 11 and 12 contained allegations of corrupt practices alleged to have been indulged in by the three persons named therein.
Once an allegation of corrupt practice is made against the candidates who have offered themselves for the elections, sub section
(b) of section 82 of the Act applies, and the failure to implead the three persons named in the petition is fatal to the maintainability of the petition.
The last contention that section 82(b) is violative of article 14 of the Constitution is equally far fetched.
The provision that non compliance with any of the provisions of section 82 makes it obligatory on the High Court to dismiss the petition cannot be said to be discriminatory, merely because substantial allegations against the respondent who had been successful at the elections cannot be tried for non compliance with those requirements, if other unsuccessful candidates against whom corrupt practices are alleged are not made parties ' A petition challenging the election of a successful candidate is required to set out certain particulars and to join certain persons as necessary parties to that petition, and if it omits to comply with any of the mandatory provisions of the Act the petition is liable to be dismissed under section 86(1).
The petition cannot be split up in a manner as to maintain it in respect of allegations of corrupt practices only against some persons and not against other persons who are required to be necessary parties.
In any election, where a candidate challenges the validity of the election of a successful candidate, and further asks that he be declared duly elected, all contesting candidates must be made parties to the petition.
The reason for this provision is obvious, because other candidates who have contested have interest in the result of the election and may even challenge the petitioner 's prayer for his being declared duly elected.
Where corrupt practice is alleged the need for maintaining the purity of elections requires that where it appears to the Court that persons whether candidates or not have indulged in corrupt practice, it should make an equity in respect of such corrupt practice which has been proved at the trial.
This is evident from section 99 which requires that the Court at the time of making an order under section 98 should also make an order, naming all persons who have, during the trial, been proved guilty of corrupt practices and also state the nature of those corrupt practices.
Where any person against whom corrupt practice is alleged is a party he will naturally have sufficient opportunity to defend himself against such allegation, but a person who is not a party and against whom corrupt practices have been proved at the trial, natural justice requires that he be also afforded an opportunity to (1)A.T.R. 358 contest that In order to facilitate him to do so the proviso to clause (b) of sub section
(1) of section 99 requires the Court give the person concerned notice to appear before the Court and to show cause why he should not be so named If any person whether he be a candidate at the election.
or not, is found guilty of any corrupt practice as provided in section 123 he will incur a disqualification under section 8 A for A period of six years from the date on which the order under section 99 takes effect.
If such are the consequences of being found guilty of corrupt practices in cases where a person is not made a party to the petition, and corrupt practice against him is discovered during the trial, then a person who challenges an election, and with the knowledge that other candidates have indulged in corrupt practices deliberately omits to make them parties debarring them from any opportunity to defend themselves,.
he is visited with the penalty of having his petition dismissed for noncompliance with the mandatory provisions of section 82.
The concept of fair trial requires that all candidates who are known to the petitioner to have indulged in corrupt practices should be made parties, and this is the reason why section 82(b) has been enacted.
Section 82 differs from the proviso to cl.
(b) of sub section
(1) of section 99 in that the former contemplates joining of parties who are known to the petitioner at the time of filing his petition, whereas the latter deals with the cases which are discovered during the trial and which were not known to the petitioner at the time of filing the petition.
Apart from ensuring the purity of elections, and finality in regard to all election matters, one other consideration seems to be the expeditious disposal of election petitions.
Before the amendment of section 82 by Act 27 of 1956 the unamended section made it incumbent on a petitioner "to join as respondent to his petitioner candidates who were duty,nominated at the election other than himself, if he was so nominated.
"The reason for the amendment of section 82 has been stated in thenotes on clauses to the Amendment Bill No. 33 of 1955 to be that thesection as it stands holds up the trial of an election petition because of the difficulty in serving a notice on all those who have been nominated It is further stated: "Naturally, it is only the returned candidate who takes any interest in contesting the election petition.
Moreover there is a provision in section 90 which enables any other candidate to join as a respondent.
It is accordingly proposed in this clause that section 82 should be revised so that it is necessary to join as respondents only those candidates who are interested prima facie in the outcome of the petition." After the amendment the candidates under clause (b) of section 82 are not impleaded merely because they are necessary parties in an election petition in which a declaration is sought that the election of all or any of the candidate would be void, but are impleaded as parties because there are allegations of corrupt practices against them in the election petition.
Where action is taken under section 90 and order under section 98 of the Act dismissing the election petition or declaring the election of all or any of the returned candidates to be void and/or declaring the petitioner or any other candidate to have been duly elected, would delay the, disposal of the election petition, because notice will have to be 3 5 9 given to all the persons named under the proviso to sub cl.
(ii) of cl.
(a) of sub section
(1) of section 99. , The provisions of 82(b) would avoid any such delay as they make it obligatory for a person filing an election petition when he makes an allegation of corrupt practice against any candidate to make him a party on pain of the petition being dismissed under section 86(1) if he omits to do so.
It may also be pointed out that a person who offers himself to stand as candidate at an election holds out to the voters that if elected he will truly and effectively represent them in the Assembly to which he is elected.
The voters of the Constituencies equally expect from their candidates who have offered themselves at the election a high degree if integrity and honesty, and if there are allegations in an election petition that any of the candidates have indulged in corrupt practices, it would be in consonance with the purity of elections that they should be made, parties and the allegations of corrupt practices enquired into after giving them an opportunity to meet those allegations.
Under section 90 though it is not required that those against whom corrupt practices have been proved should be made parties, yet they are required to be named for the purposes of being debarred from offering themselves as candidates, in future.
This then is the rationale underlying the mandatory requirements of section 82 (b).
In any view of the matter, article 14 has no application, because the object of section 82 is one and indivisible in that it is incumbent on any person coming to Court to challenge an election to come with clean hands and not attempt to prevent a full and complete enquiry or perhaps dictated by his own interests to thwart fair trial by picking and choosing the parties to the petition.
As none of the contentions urged by the appellant has any validity, this appeal is dismissed with costs.

dataset_name: IN-Abs

summary:
In his election petition challenging the election of the respondent the appellant alleged that the respondent and three other defeated candidates committed various corrupt practices within the meaning of sub sections (1) to (7) of section 123 of the Representation of the People, Act, 1951.
The respondent raised a preliminary objection that the petition was liable to be dismissed for noncompliance with the provisions of section 82 of the Act inasmuch as the defeated candidates against whom allegations of corrupt practice had been made had not been joined as parties to the petition.
The High Court upheld the objection and dismissed the petition.
In appeal to this Court it was contended that: (i) since the affidavit filed by the appellant in support of the election petition merely stated that the allegations contained in the relevant paragraphs were based on information received and had not stated what the sources of information were, that part of the petition in which the allegations of corrupt practices were made could not form the basis of a triable issued (ii) while section 82(a) was mandatory s.82(b) was directory and as such the petition could not be dismissed: (iii) s.82(b) was violative of article 14 of the Constitution.
Dismissing the appeal.
HELD : (i) The provision for setting out the sources of information in an affidavit was not a requisite prescribed under r. 94 A of the conduct of Election Rules, 1961.
There was 'nothing in the affidavit in Form 25 under this rule which required the petitioner to state the source or source", of his information.
When there were specific rules under the Act no other rules were applicable.
If the petition and the affidavit conformed to the provisions of the Act and the rules made thereunder, it could not be said that because the source of information had not been given.
the allegations made in the petition had to be ignored.
[353E F] Smt.
Sahodrobai Rai vs Ram Singh Aharwar & Ors.
A.I.R. ; Amulva Chandra Rhaduri vs Satish Chandra Giri & Ors.
A.I.R. 1932 Cal.
255 and Wasudeoraoji vs A. D. Mani A.I.R. 1951 Nag.
26, held inApplicable.
(ii) Section 82(2) enioins that, apart from the returned candidate whose election was challenged, any other candidate against whom any allegations of corrupt practices were made should be joined as parties to the petition Section 86 read with s 82 makes both cls.
(a) and (b) of s 82 mandatory and noncompliance with these requirements renders the petition to be dismissed.
In view of these provisions it was incumbent upon the High Court where the allegation *as that the requirements of section g) were not complied with, to deter mine that issue as a preliminary issue.
[353A D] Charan Lal Sohu vs Nandkishore Bhatt & Ors.
C. A. No. 2411 of 1972 dated August 1, 1973, referred to.
Mohan Singh vs Bhanwarlal & Ors. ; , held inapplicable.
(iii)An election petition cannot be split up in such a manner as to maintain it in respect of allegations of corrupt practiced only against some persons and not against other persons who were required to be made necessary parties.
350 A person who was not a party and against whom corrupt practices had been proved at the trial, natural justice required that he should also be afforded an opportunity to contest that finding.
Article 14 had no application because the object of section 82 was one and indivisible and a person coming to the court had to come with clean hands and not attempt to prevent a full and complete enquiry or thwart fair trial by picking and choosing the parties to the peti tion.
[357C F]


judgement:
iminal Appeal No. 16 of 1970.
Appeal by special leave from the judgment and order dated the 12 9 69 of the Allahabad High Court, in Criminal Appeal Nos. 1096 and 1097 of 1966.
Nuruddin Ahmed and U. P. Singh, for the appellants.
O. P. O. P. Rana, for the respondent.
The Judgment of the Court was delivered by KHANNA, J.
This is an appeal by special leave by Lalji (23), Mahabir (45), Nar Singh (30), Paras Nath (27) and Ram Naresh (30) against the judgment of the Allahabad High Court affirming on appeal the conviction and sentence of the appellants.
Lalji has been convicted under section 304 Part I and section 148 Indian Penal Code 368 and has been sentenced to undergo rigorous imprisonment for a period of ten years on the first count and rigorous imprisonment for a period of two years on the, second count.
Lalji has, in addition to that, been convicted for offences under section 324 read with section 149, section 325 read with section 149 and section 323 read with section 149 and has been sentenced to undergo rigorous imprisonment for a period of two years, 21 years and one year respectively.
Mahabir, Nar Singh, Paras Nath and Ram Naresh have been convicted under section 147, section 304 Part I read with section 149, section 324 read with section 149, section 325 read with section 149 and section 323 read with section 149 Indian Penal Code and each of them has been sentenced to undergo rigorous imprisonment for a period of 18 months, five years, 18 months, 21 years and one year respectively.
The sentences in the case of each of the appellants have been ordered to run concurrently.
Budhdhu (50) and Munni Lal (20) were tried along with the appellants.
Munni Lal was acquitted by the trial court, while Budhhu was acquitted by the High Court.
The appeal arises out of an occurrence which took place at 7 a.m. on March 29, 1965 in Nawagarh near village Shahpur Nawada at a distance, of five miles from police station Chandauli in Varanasi district.
As a result of that occurrence, Pancham (45) received fatal injuries and later died at 11 a.m. Injuries were also received by Nand Lal (PW 1), Munshi (PW 2), Jhuri (PW 3), Potan (PW 5) and Bhaggan on the side of the complainant.
On the side of the accused, Lalji, Mahabir, Paras Nath and Ram Naresh received in juries.
Both parties rushed be the police station and lodged reports.
On the side of the complainant, report was lodged by Nand Lal PW at 8.30 a.m., while on the side of the accused, report was lodged by Mahabir at 8.35 a.m.
On the basis of those reports, two cases were registered and both parties were sent up for trial.
The trial court convicted the accused appellants and Budhdhu in the present case, and Nand Lal.
Munshi, Jhuri, Bbaggan and one Sheo in the cross case.
Lalji accused is the son of Budhdhu accused.
Ram Naresh, Paras Nath and Nar Singh accused are the maternal uncle 's sons of Mahabir accused.
The prosecution case is that Nand Lal PW is the owner of plot No. 129/2.
Mahabir accused, who is a collateral of Nand Lal PW. owns the adjoining plot.
Mahabir had put up a hut on his own plot.
There is a mend (dividing ridge) between the plots of Nand Lal and Mahabir, On the morning of March 29, 1965, it is stated, Pancham deceased and Nand Lal PW saw that Budhdhu and Mahabir were digging earth and thus extending the frontage of Mahabir 's hut.
Ram Naresh armed with a gandasa, Lalji and Munni Lal armed with spears and Nar Singh and Paras Nath armed with lathis were standing close to Mahabir with a view to help him.
Pancham raised a Drotest against the act of the accused party whereupon Mahabir and Budhhu picked up lathis and those two accused along with the other accused started beating Pancham and Nand Lal with their respective weapons.
Jhuri and Munshi then came there, but they too were attacked.
Potan and Bhaggan also tried to intervene, but injuries were caused to them also by the accused party.
369 During the course of this occurrence, Lalji thrust his spear in the abdomen of Pancham who fell down on the ground.
Nana Lal, Jhuri, and others on the side of the complainant used their lathies, and in the process the accused were injured.
Bhaggan on medical examination was found to have two 'injuries caused by blunt weapon.
One of those injuries was grievous as it had resulted in the fracture of humerus bone of the left forearm.
Jhuri, Munshi and Nand Lal PWs had nine, seven and nine simple injuries respectively caused by blunt weapon.
Potan PW had four simple injuries, out of which three had been caused by blunt weapon and one with sharp edged pointed weapon.
Post mortem examination of Pan cham revealed that he had six injuries, out of which one was a stab, wound, one was an incised wound, three were contusions and one was an abrasion.
The fatal injury was the stab wound in the abdominal cavity measuring 2" x 1 Omentum and about 12" long portion of small intestines was protruding out of this wound.
Death of Pancham was due to shock and haemorrhage resulting from cutting of small intestines, mesentery and blood vessels by some sharp edged pointed weapon.
The accused were examined by Dr. K. P. Rai and subsequently by Dr. K. A. Khan in jail.
The trail court and the High Court have relied upon the medical examination of the accused by Dr. Rai.
According to Dr. Rai, he found nine injuries on Mahabir Nar Singh, Paras Nath and Ram Naresh accused had four injuries each on their persons while Lalji had one injury.
The injuries on the persons of the accused were simple and had been caused by blunt weapon.
The defence version was that there was sugar can crop in the plots of Mahabir, Ram Naresh and Nar Singh accused.
Those fields used to be irrigated from the well of the accused which was close to the hut of Mahabir.
A water channel ran over the intervening ridge between the plots of Mahabir and Mand Lal.
On the day of occurrence, it is stated, Mahabir and Ram Naresh accused had started repairing the water channel by digging earth from a portion of Mahabir 's plot.
Part of the water channel had been repaired with that earth when Pancham, Nand Lal, Munshi, Jhuri, Bhaggan, Sheo and Sotan appeared on the scene.
Pancham and others were all armed at that time.
Bhaggan then demolished the water channel which had been repaired by Mahabir and Ram Naresh.
When Mahabir protested, the party of the complainant attacked them.
Mahabir and Ram Naresh then picked up agricultural implements and wielded the same in self defence.
The other appellants too arrived at the spot and they too wielded lathis in exercise of the right of private defence Ram Naresh accused came into, the witness box and gave evidence in support of the defence version.
The trail court on scrutiny of the evidence came to the conclusion that the witnesses on both sides had stated only the half truth and resorted to exaggeration, twisting and embellishment of the true account of the occurrence.
It was further held by the trail court that the well near the hut of Mahabir was being used for irrigation pur 370 poses, that the channel through which the water from this well used to be taken was along the disputed ridge and that on the day of occurrence the party of the accused was digging and putting earth on the ridge in order to repair and reconstruct the water channel.
The trial court in this context referred to the evidence of the investigating officer, according to whom earth had been taken by the party of the accused from a pit in Mahabir 's plot.
The trail court did not accept the evidence of the prosecution witnesses that Pancham and Nand Lal first went to the spot and thereafter Jhuri and Munshi arrived there and after that Bhaggan, Potan and Sheo appeared there.
In the view of the trail court, all the members of the complainant 's party reached the place of occurrence almost simultaneously.
The prosecution allegation that the other accused Were standing nearby when Mahabir and Budhdhu were digging the earth and repairing the water channel was not accepted.
In the opinion of the trial court, these persons were present at the hut which was only 15 or 20 paces from the ridge in question.
As regards the actual assault, the trial court came to the conclusion that no attack was made immediately by either party on the arrival of the complainant 's party.
At first there was remonstrance and counter remonstrance.
A fight thereafter ensued when the complainant 's party insisted that they would not allow the earth to be put on the disputed ridge and the party of the accused claimed that they must put the earth and reconstruct the water channel.
The intransigence of the parties, in the opinion of the trial court, led to a free fight and none of them could therefore plead the right of private defence.
The accused, other than Lalji, in the opinion of the trial court, were armed with lathis only.
The High Court in appeal held that the conclusions reached by the trial court were substantially correct and were based upon reasonable appreciation of evidence.
In appeal before us Mr. Nuruddin on behalf of the appellants has :argued that the present is not a case wherein the accused party can be said to be members of the unlawful assembly or wherein the injuries caused by Lalji to Pancham can be said to have been caused in prosecution of the common object of the accused appellants.
Although Mr. Rana on behalf of the State has controverted the above contention, we find considerable force in the same.
The trial court has found that Mahabir accused had been using water from the well near his hut for irrigation purposes and that he along with Ram Naresh was repairing the old water channel on the ridge when the party of the complainant came there and stopped Mahabir and Ram Naresh from further repairing the water channel.
The other accused who were present in the hut nearly.
at a distance of 15 or 20 paces from the ridge.
then came there.
There was remonstrance and counter remon strance which resulted in a fight.
The trial court has also found that there was no premeditation on the part of Lalji or any other accused to cause Pancham 's death and that the fight was a sudden affair and was the result of heated passion.
In the circumstances, in our opinion it cannot be said that the appellants who were present in front of 371 their hut formed an unlawful assembly.
An assembly of five or more persons is designated an unlawful assembly if the common object of the persons composing that assembly is to do any of the acts mentioned in the five clauses of section 141 Indian Penal Code.
According to the explanation to that section, an assembly which was not unlawful when it assembled may subsequently become an unlawful assembly.
The, facts found by the trial court and the High Court and the circumstances of the case do not show that the appellants formed a common object to do any of the acts mentioned in the five clauses of section 141.
Reference has been made to clause (4) of section 141, according to which an assembly of five or more persons.
would be unlawful if the common object of the persons composing that assembly is to enforce any right or supposed right by means of criminal force or show of criminal force.
This clause cannot be of much avail because it cannot be said that the common object of the appellants was to enforce any right or supposed right by means of criminal force or show of criminal force.
As mentioned earlier, no party attacked the members of the opposite party at the commencement of the occurrence.
There was only at that stage remonstrance and counter, remonstrance.
Someone then started the fight and, according to, the trial court, it could not definitely be determined s to which of the two parties struck the first blow.
The circumstances of the case show that lathis were then wielded by the appellants, other than.
Lalji, not with a view to enforce any right or supposed right in respect of the water channel but because of the fact that a fight had, started and the complainant 's party was found to be armed.
As there was no premeditation and the occurrence was a sudden affair, each of the appellants, in our opinion, should be held to be liable for hi& individual act and not vicariously liable for the acts of others.
Lalji gave the spear blow in the abdomen of Pancham.
His conviction should, therefore, be maintained for the offence under section 304 Part I Indian Penal Code.
The sentence of rigorous imprisonment for a period of ten years awarded to Lalji for the injury caused to, Pancham cannot be held to be excessive.
As regards the other appellants, we find that they caused simple hurt with their lathis.
There is no doubt that one grievous injury was caused to Bhaggan with blunt weapon, but on the material on record it cannot be said as to who caused the said injury.
We would accordingly maintain the conviction of Mahabir, Nar Singh, Paras Nath and Ram Naresh for the offence under section 323 Indian Penal Code.
The conviction of Lalji for offences other than that under section 304 Part 1, and of the other four appellants for the offences other than that under section 323 ' Indian Penal Code is set aside.
Lalji is sentenced to undergo rigorous imprisonment for a period of ten years for the offence under section 304 Part 1.
As regards the other four appellants who have been convicted under section 323 Indian Penal Code, their sentence of imprisonment is reduced to the period already undergone.
V.P.S. Conviction and sentence modified.

summary:
As a result of a fight between the members of the accused party and the party of the complainants the accused were tried and convicted for various offences.
The first.
appellant was convicted of the offence under section 304, Part 1, and of offences under Ss. 148, 323, 324 and 325 read with 14.
The appellants were convicted of the offences under Ss. 147 and 04, 323, 324 and 325 read with section 149.
The High Court, in appeal, while acquitting one of the accused, observed that the conclusion reached by the trial court were substantially correct and were based upon reasonable appreciation of the evidence.
In appeal to this Court, HELD : On the findings of the trial court neither party attacked the members of the opposite party at the commencement of the occurrence.
There was at that stage remonstrance and counter remonstrance only.
Someone then started ,a fight, and according to the trial court it could not definitely be determined as to which of the two parties struck the first blow.
There was no premeditation :and the occurrence was a sudden affair.
The circumstances of the case do not ,show that the appellants formed a common object to do any of the acts mentioned in the 5 clauses of section 141.
Section 141 (4), I.P ' C., could not be relied upon by the prosecution because, it could not be said that the common object of the accused was to enforce any right or supposed right by means of criminal force or show of criminal force.
The circumstances of the case show that the lathis were weilded by the accused not with a view to enforce any right or supposed right but because of the fact that a fight had started and the complainants ' party was found to be armed Therefore, it should be held that each accused was liable for his individual act and not vicariously liable for the acts of the others.
Hence, the first appellant could be convicted only of the offence under section 304, part 1, I.P.C. and his conviction for offences other than that should be set aside.
As regards the other appellants they caused simple hurt with their lathis and they could be convicted only of the offence under a. 323 I.P.C. One grievous injury was caused to a member of the complainants ' party but, on the material on record, it could not be said who caused that injury.
[371B H]


judgement:
Appeal No. 1743 of 1967.
Appeal by Special Leave from the judgment and Decree dated 15th October, 1958 of the Patna High Court in Appeal from Appellate Decree No. 552 of 1953.
V. section Desai and D. Goburdhan, for the appellants.
Sarjoo Prasad, R. K. Jain and E.C. Agarwal, for respondents Nos.
2 to 12.
The Judgment of the Court was delivered by BEG, J.
In this appeal by special leave the short question involved relates to an application of Sec.
141 of the Indian Succession Act to the facts of the case.
This section reads as follows : "141.
If a legacy is bequeathed to a person Who is named an executor of the will, be shall not take the legacy, 431 unless he proves the will or otherwise manifests an intention to, act as executor".
"Illustration: A legacy is given to A, who is named an executor.
A orders the funeral according to the directions contained in the will, and dies a few days after the testator, without having proved the will.
A has manifested an intention to act as executor".
The plaintiffs appellants before us claim as the heirs of Sham Narain Singh who died issueless in August 1913.
One Achhaiber Singh, a collateral of Shyam Narain Singh, had made a will on 3rd July, 1912, under which he gave life interests in the properties owned by him to his three daughters in law Deolagan Kuer, Chapkali Kuer, and Alodhan Kuer.
He laid down that, after the death of these three ladies, a half share in the properties would go to the two daughters of Alodhan Kuer, and another half to the above mentioned Shyam Narain Singh, a grandson of the testator 's first cousin: Achhaiber Singh died in November, 1912.
It was found by all the Courts that Shyam Narain Sing took part in the cremation ceremony, of Achhaiber Singh.
Apparently, the members of the family in which Achhaiber Singh had been adopted were not well disposed towards him.
It was, therefore, not surprising that Shyam Narain Singh, with, whom he was well pleased, should tight the funeral pyre as his agnate in the absence of his sons who had predeceased him.
It has also been found that Chapkali Kuer and Alodhan Kuer had applied for the Probate of the will of Achhaiber Singh after the death of Shyam Narain Singh.
Hence, Shyam Narain Singh could not possibly join them at that time.
He had died before the will could be duly proved.
He was also said to have looked after the properties of the two ladies.
The question before us is whether by taking part in cremation ceremonies and by helping two daughters in law to manage properties, Shyam Narain Singh manifested his inten tion to act as an executor so as to be covered by Sec. 141 of the Indian Succession Act, and, therefore, to claim his legacy.
We may mention here that there was some previous litigation also between the parties.
In suit No. 144 of 1946, brought by the heirs of Shyam Narain Singh, against some of the defendants in the suit before us, the precise question before us for decision had arisen, but the High Court had not decided it.
It had dismissed the suit on the ground that the, plaintiffs had not locus standi.
On the strength of that decision the bar of res judicata is relied upon by the Defendants Respondents before us as it was in the Courts below.
But, as this appeal can be disposed of on the first question, already mentioned by us, relating to the application of section 141 Indian Succession Act.
we need not deal with the plea of res judicata.
The suit before us was filed by the heirs of Shyam Narain Singh for a declaration of the rights of Shyam Narain Singh in the property bequeathed, and for a declaration that the compromise decree in suit No. 74 of 1944 was fraudulent, collusive, invalid, and not binding upon 432 the plaintiffs.
The Trial Court and then the Additional District Judge of Patna, on the first appeal of the Defendants Respondents before us, had decreed the plaintiffs ' suit.
The Additional District Judge had held that, by taking part in the cremation ceremonies and by helping the two legatees daughters in law of the testator, Shyam Narain Singh had manifested an intention to act as an executor before he died.
The Additional District Judge had also taken into account the fact that the heirs of Shyam Narain Singh had taken some interest in the properties left by Achhaiber Singh by litigating for it.
He thought that this was only possible if Shyam Narain Singh had himself manifested an interest in his right, , under the will.
This evidence was considered sufficient for holding that Shyam Narain Singh had manifested an intention to act as executor.
The High Court of Patna had allowed the second appeal of defendants on the ground that the findings of fact recorded by Courts below were not enough to attract the application of Section 141 of the Indian Succession Act.
The conduct of the relations of Shyam Narain Singh, in litigating for the properly left by Achhaiber Singh was, as the High Court rightly pointed out, not relevant for determining the intentions of Shyam Narain Singh.
Nor was the fact that he looked after the proprieties of the two co legatees, who were widows, a manifestation of his own intention to assert his own rights as an executor.
What was most important was the provision in the will itself which had been overlooked by the first two courts.
Achhaiber Singh had laid down in the will : "That on the death of me, the executant, the aforesaid executors, should perform the Shradh ceremonies of me, the executant according to the means and custom in the family".
The High Court had accepted the contention that there was no evidence that Shyam Narain Singh had performed Shradh ceremonies of Achhaiber Singh in accordance with "the means and the custom in the family".
The only contention which could be advanced before us on behalf of the plaintiffs appellants was that cremation ceremonies do not end with actual cremation of the testator, but include other ceremonies such as Sraddha ceremonies which come later.
In reply, we have been referred to the meaning of the term "Sraddha" given in Sir M. Monier Williams ' Sanskrit English Dictionary (p. 1097) as follows ". .a ceremony in honour and for the benefit of dead relatives observed with great strictness at various fixed periods and on occasions of rejoicing as well as mourning by the surviving relatives (these ceremonies are performed by the daily offering of water and on stated occasions by the offering of Pindas or balls of rice and meal to three paternal and three maternal forefathers, i.e. to father, grand father, and great grandfather, it should be borne in mind that a Sraddha is not a funeral ceremony (antyeshti) but a supplement to such a ceremony; it is an act of reverential homage to a deceased person performed by relatives, and is moreover supposed to supply the dead with strengthening nutriment after the performance of the previous funeral ceremonies has endowed 433 the with ethereal bodies; indeed until those antyeshti or funeral rites ' have been performed, and until the succeeding first Sraddha has, been celebrated the deceased relative is a prata or restless, wandering ghost, and has no real body (only a lingrasarira, q.v.); it is not until the first Sraddha has taken place that he attains a position among the Pitris or Divine Fathers in their blissful abode called Pitri loka, and the Sro is most desirable and efficacious when performed by a son;" Thus, it is clear that there is a distinction between cremation ceremonies and Sraddha ceremonies which are periodic.
It is also evident that what the testator desired his executors to do was that they should perform his Sraddha ceremonies.
The manner in which he refers to Shyam Narain Singh in his will, almost as a substitute for a son, shows that he expected Shyam Narain Singh to perform his Sraddha ceremonies as his 'own sons had predeceased him.
There is no evidence whatsoever on record that Shyam Narain Singh ever performed any such ceremony.
The conclusion reached by the High Court is, therefore, correct.
Accordingly, we dismiss this appeal with costs.
There is also a Civil Miscellaneous Petition No. 4146 of 1968 before us for an amendment of the plaint in case we order a remand of the case.
We see no reason to allow this application which is also dismissed.
Appeal dismissed.

summary:
A made a will giving life interest in his properties to three daughters in law '.
After the death of the three ladies, half share of the property was to go to two daughters of one of the daughters in law and the other half to one S, collaterally related to A. S was appointed as one of the executors of the will.
One of the terms of the will was "that on the death of me, executant the aforesaid executors should perform the Shradh ceremonies of the executant according to the means and customs in the family." S performed the cremation ceremonies and helped the two daughters in law to manage properties.
There was no evidence to show that he performed the Shradh as well.
S died before the will was duly proved.
The principal question in the suit filed by the heirs of S was whether there was adequate manifestation of an intention to act as an executor on the part of section The two lower Courts held that the intention to act as an executor was apparent from the facts while the High Court held that, since there was no evidence of Shradh being performed by there was no 'manifestation ', as required by Sec.
141 of the Indian Succession Act.
Dismissing the appeal, HELD : There is a distinction between the cremation ceremonies and shradh ceremonies which are periodic.
It is also evident that what the testator desired his executors to do was that they should perform his shradh ceremonies.
The manner in which the testator has referred to S in his will, almost as a substitute for a son, shows that he expected S to perform his shradh ceremonies as his own sons, who had predeceased him, would have preformed these.
There is no evidence whatsoever on record that S ever performed any such ceremony.
The conclusion reached by the High Court, therefore, is correct.
[433 C]