judgement:
minal Appeal Nos. 39, 49 of 1962.
Appeals by special leave from the judgment and order dated August 26, 1960 of the Court of Judicial Commissioner of Tripura at Agartala in Criminal Revision Nos. 9, 8, 16, 22, 21, 32, 23, 18, 20, 24 and 17 of 1960.
C. K. Daphtary, Attorney General, D. N. Mukerjee and R. H. Dhebar, for the appellant (in all the appeals).
P. K. Chatterjee, for the respondents (in Appeals Nos. 39, 42, 23, 46, 48 and 49 of 1962).
May 5, 1964.
The Judgment of the Court was delivered by: AYYANGAR, J.
The respondents in these several appeals were prosecuted before Magistrates in Tripura for offences under section 26(1) of the and were convicted and sentenced to terms of imprisonment and fine, Their appeals to the learned Sessions Judge, Tripura having been dismissed, they preferred Criminal Revision Petition,, to the Judicial Commissioner, Tripura.
The learned Judicia 161 Commissioner allowed their revisions by a common judgment and directed their acquittal.
From these orders of acquittal the Union of India has filed these appeals by virtue of special leave granted by this Court under article 136 of the Constitution.
Before proceeding to narrate the facts which have led to these appeals it is necessary to mention that three of these II appeals Criminal Appeals 40, 41 and 45 of 1962 have become infructuous.
The notices issued to the respondents in Appeals 40 and 45 of 1962 of the filing of the appeals could not be served on them as it was reported that they had left for Pakistan.
The appeals could not accordingly be prosecuted.
In regard to Criminal Appeal 41 of 1962 it is reported that the accused died pending the hearing of the appeals and hence the appeal has abated.
We are, therefore, concerned only with the other 8 appeals.
The material clauses of section 26(1) of the for contravention of which the respondents in the several appeals were prosecuted read: "26.
(1) Any person who (a) makes any fresh clearing prohibited by section 5, or who, in a reserved forest (d) trespasses or pastures cattle, or permits cattle to trespass: (e) (f) fells, girdles, lops, taps or burns any tree or strips off the bark or leaves from, or other. wise damages, the same; (g) (h) clears or breaks up any land for cultivation or any other purpose; shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both, in addition to such corn 51 S.C. 11.
162 sensation for damage, done to the forest a , the convicting Court may direct to be paid.
" The magistrate convicted some of the accused respondents of offences under cls.
(a) and (d) others of offences under cls.
(d) & (h).
It is common ground that in order to constitute an offence under section 26(1) the acts specified in the clauses of the sections should be committed in an area which is a "reserved forest" under the Act.
We might point out that if the area concerned was a reserve forest, the guilt of the respondents would practically be made out and their conviction by the Magistrates, confirmed by the Sessions Judge, Tripura might have to be upheld.
The principal, if not the sole question for consideration in the appeals, however, is whether the forest area where the respondents were held to have committed the acts alleged against them was such a "reserve forest".
Before, however, dealing with that question, it would be convenient to set out very briefly the facts which have given rise to these prosecutions.
The forests wherein the several respondents are stated to have committed the offences set out in the clauses of s.26(1) of the Act quoted above are comprised in three distinct areas in the former Indian State of Tripura.
These three areas are known, respectively, as the Garjichhera reserve, Chandrapur reserve and the North Sonamura reserve.
In April, 1958 an officer of the Forest Department went on circuit duty in these forest areas and found that the several accused had cleared the forests, reclaimed some land and had dug tanks for the purpose of cultivation and had made homesteads there.
On the averment that these acts on the part of the several accused who are respondents in the several appeals constituted offences under section 26(1) (a) and (h) and in some cases under section 26(1) (a), (d) and (h) and in still some others under section 26(1)(d), (f) and (h), the accused were produced in the courts of the Magistrates having jurisdiction.
The accused admitted that they had made homesteads and were living in structures constructed at the places where they were found and the only defence then raised was that they were entitled 163 to do so under a claim of jote rights on the lands.
No evi dence was, however, produced by any of the accused to substantiate their claim to trespass on and plough up and cultivate and erect homesteads on the lands on which they were found squatting and the learned Magistrates holding that while the prosecution had made out their case, the accused had not established their defence, found the accused guilty and passed appropriate sentences on them.
Appeals were filed against these convictions by the several accused to the learned Sessions Judge of Tripura.
At that stage the accused raised the contention that the forest areas comprised in the Garjichhara, Chandrapur and North Sonapura reserves were not "Reserve forests" within the meaning of the Act.
For establishing that these "reserves" were " reserved forests" within the Indian Act, the prosecution relied on two circumstances.
First, there was a Forest Act promulgated by the Ruler of the Tripura State (Act 2 of 1257 TE 1297 T.E.?) which contained provisions some what analogous to those contained in the Indian Act.
Next, section 5 of the Tripura Act enabled the State Government to declare by notifications published in the State Gazette, the boundaries of the forest areas to be governed by the State Act.
There were three such notifications published in the Tripura State Gazette in 1346 and 1349 T.E. corresponding to 1936 and 1938 by which the boundaries of the three reserves of the Garjichhera, Chandrapur and North Sonamura forests were defined.
The contention urged by the proseution was that the Tripura Act was replaced by the by reason of legislative provisions to which we shall advert later and that the notifications under the Tripura Act which were continued in force by these same provisions rendered these three reserves "Reserved forests" under the .
We shall have to set out the terms of the Act as well as of the notifications later but it is sufficient to mention at this stage that the places where the respondents cleared the forests and built their homesteads were admittedly within one or other of these three reserves.
The respondents in Appeals 39, 43, 47 and 49 had trespased into the Garjichhera reserve, while those concerned in appeals 42, 46 and 48 had trespassed into the Chandrapur reserve, and the respondent in appeal 44 was found to have 164 committed a similar offence in respect of the forest described as the North Sonamura reserve.
When these three notifications were produced before the learned Sessions Judge he held that by reason of these notifications the three forest areas became "reserved forests" under the relevant provisions of the and he therefore upheld the order of the Magistrate convicting the accused and dismissed the appeals of the several accused.
Thereafter revisions were filed to the Judicial Commissioner, Tripura.
The same question of law viz., whether having regard to the terms and provisions of the Tripura Forest Act, the notifications setting out the boundaries of the three reserves constituted these "reserves" "reserve forests" within the , was again debated before the learned Judicial Commissioner, the learned Judicial Commissioner differing from the Sessions Judge held that they were not, and on this finding, directed the acquittal of the several accused.
It is the correctness of this conclusion of the learned Judicial Commissioner that is challenged in these appeals.
It would be seen from the above narrative that the question for consideration is whether the areas where the offence are said to have been committed were within "reserve forests" within the meaning of the .
On the terminology employed by the reserve forests" are those areas of forest land which are constituted as "reserve forests" under Ch.
II of the Act Chapter II comprises sections 3 to 27 and is headed "Of Reserveed Forests".
Section 3 empowers the State Government to constitute "any forest land or waste land which is the pro perty of Government or over which the Government has proprietary rights or to the whole or in part of the forest produce to which the Government is entitled, a reserve forest in the manner hereinafter provided".
Section 4 require that the State Government, when it has decided to constitute any land as a "reserved forest", should notify by the issue of a notification in the Official Gazette specifying the situation, 'limits, etc.
of that land and declare its decision constitute the land as "a reserved forest".
Section 6 make 165 provision for a proclamation of the notification issued under s.4 by publication in several places, so that persons who might be affected by the issue of the notification may prefer objections thereto.
Section 7 directs an enquiry by a Forest Settlement Officer of all claims made by persons in response to the publication of the notification under section 6.
Section 9 provides generally for the extinction of rights in respect of which no claim has been preferred under section 6.
Where claims are preferred and are found to be made out section I I provides for the acquisition of such rights or of lands in respect of which the rights are claimed in the manner provided by the Land Acquisition Act.
The next succeeding provisions of the Act enable appeals to be filed against the orders and for their hearing by the appellate authorities.
These are followed by section 20 under which, after the stage of enquiry and decisions on claims made is completed, the State Government is directed to issue a notification in the Official Gazette `specifying definitely, according to boundary marks erected or otherwise the limits of the forest which is to be reserved, and declaring the same to be reserved from a date fixed by the notification.
Sub section (2) of the section enacts: "20.(2) From the date so fixed such forest shall be deemed to be a reserved forest." Section 21 provides for the translation of the notification and its publication in every town or village in the neighbourhood of the forest.
The next relevant provision is section 26 which prohibits the doing of certain acts in "a reserved forest" and provides for punishment for these contraventions the material parts of which we have already set out.
From these provisions it would be seen that it is the notification under section 20 after complying with the procedure prescribed by the other sections of the Chapter commencing with section 4 that constitutes a forest area "a reserved forest" within the Act.
The forests in the former State of Tripura were not dec clared "reserved forests" under a notification issued under section 20 of the after following the procedure prescribed by Ch.
H. We have, therefore, to examine the steps by which this result is said to have been reached.
We have already referred to the existence of the Tripura Forest (1297?) T.E. enacted by the Ruler of Tripura under which certain provisions were made for the preservation of Forest areas in the State and the notifications issued thereunder constituting the three areas as "reserve forests" for the purpose of that Act.
It would be necessary to exa mine the details of these provisions, but this we shall defer till we complete the narration of the constitutional changes which brought the State of Tripura into the Indian Union and the legislation which accompanied and accomplished these changes.
Tripura was a native State and the ruler by a merger agreement with the Governor General of India merged his State with the Dominion in the year 1949.
By para 5 of the Tripura Administration Order, 1949 issued on October 15, 1949 under the powers conferred in that behalf by the Extra Provincial Jurisdiction Act, 1947 all the laws in force in the State of Tripura immediately before the commencement of the said Order were continued in force until they were repealed or amended by a competent legislature or authority.
Then came the Constitution which was operative from January 26, 1950 and under it Tripura became a Part C State of the Union of India.
By virtue of Art 372 of the Constitution the laws in force in the territory of India which would have included the Tripura Forest Act in so far as it applied to the territory of the former Tripura State, were continued in force until repealed or anended by competent legislation.
Next, came the Part C States (Laws Act, 1950 enacted by Parliament.
By its section 3 the Acts and Ordinances specified in the Schedule to the Merged State (Laws) Act, 1949 were extended to and directed "to be in force in the State of Tripura. as they were general in force in the territories to which they extended immediate before the commencement of that Act".
One of the enactments specified in the Schedule to the (Act LIX of 1949) was the .
The was thus extended to the Tripura State.
Section 4 of the States (Laws) Act 1950 provided that "any law which immediately before the commencement of the Act (April 15, 1950) was in form in any of the States which included Tripura and correspondent to an Act extended to that State by the Act was there repealed".
The operation of the repeat was subject to the I67 provisos and it is the second of these provisos that calls for construction in these appeals.
This proviso ran: Provided further that, subject to the preceding proviso, anything done or any action taken, including any appointment or delegation made, notification, order, instruction or direction issued, rule, regulation, form, bye law or scheme framed, certificate, patent, permit or licence granted or registration effected, under such law shall be deemed to have been done or taken under section 2 or, as the case may be, under the corresponding provision of the Act or Ordinance as now extended to the State by section 3, and shall continue in force accordingly, unless and until superseded by anything done or any action taken under the said section 2 or, as the case may be, under the said Act or Ordinance.
" Shortly stated, the question for consideration in these appeals is whether as a result of the operation of sections 3 and 4 of the Part C States (Laws) Act read in the light of the proviso above quoted the three reserved forests which were notified under the Tripura Act of 1257 (T.E.) could be de emed to be "reserved forests" under Ch.
II of the .
Stopping here, it would be convenient to notice a few mat ters.
In the first place, when the was extended to the State of Tripura in 1950 it would have been open to Government to have taken steps to constitute " reserved forests" within the State by following the procedure prescribed by Ch.
II to which we have already adverted.
But this was not done and the Government seem to have proceeded on the basis that the areas notified as "reserved forests" under the Tripura Act were "reserved forests" under the .
Next, it is common ground that the Tripura Act which was continued by the Tripura Administration Order, 1949 did not survive 168 the Part C States (Laws) Act, 1950 because the being "a corresponding law" to the Tripura Forest Act stood repealed by the operation of section 4 of that enactment.
Besides, the provisions of the Tripura Forest Act under which the notifications constituting these forests as "reserved forests" were issued were under the proviso to section 4 "deemed to have been done under the corresponding provi sion of the Act as now extended to the State by section 3".
The position, however, is that the whose ex tension to the Tripura area effected the repeal of the Tripura Act, contains provisions of two distinct types or kinds for the exercise of control over forests and forest areas and the question then arises as to which of the provisions of the Indian Act, "correspond" to those of the Tripura Act, to enable one to say that the notifications under the latter Act should be deemed to have been issued.
On a consideration of the relevant provisions of the Tripura Forest Act the learned Judicial Commissioner held that at the most the corresponding provision of the to which the Tripura notification could be related was as a "protected forest" under Ch.
IV of the and not a " reserved forest" under Ch.
11 of the Act.
He, therefore, decided that as the offence for which the accused were being prosecuted was one under section 26 the accused could not be held guilty since there was no legal or effective notification of the forest area as a "reserved forest" within section 20 of the and accordingly directed the acquittal of the accused.
The appeals challenge the correctness of this last conclusion.
The principal submission of the learned AttorneyGeneral who appeared for the Union of India in support of the appeals was directed to establish that the notification constituting the three forests as reserved forests under the repealed Tripura Forest Act 11 of 1257 (1297?) T.E. must be deemed to have been taken under Ch.
11 of the which, it was contended, was the provision corresponding to the repealed Tripura Act.
it is the validity of this submission that now calls for consideration.
Before entering on a discussion of this question we might dispose of a minor consideration which might be urged in I69 order to show that the notification under the Tripura Act could not be deemed to be a notification under section 20 of the .
One of the submissions under this head, and this was one of the points that appears to have appealed to the learned Judicial Commissioner, was that Ch.
II of the prescribes an elaborate procedure which is mandatory and is required to be complied with, before any land could be constituted into a "reserved forest" under that Act.
The Tripura Act admittedly does not make provision for any such procedure being followed before an area is notified as "a reserved forest" or is constituted into one.
The argument based on this was that in the absence of identity between the procedural requirements of the two Acts, a notification under the revealed Act could not be deemed to be one under a "corresponding provision" of the Act extended to the territory, the emphasis being on the words "corresponding provision".
We are unable to accept the correctness of this submission.
The scheme of the Part C States (Laws) Act is this.
In the first place, by reason of section 3 certain enactments are extended to these States.
If there is no law in that State which was in force on the date of the extension of a parti cular enactment under section 3 which is in pari materia and covers the same field as the law that is extended, section 4 does not come into play and consequently there is no question of the repeal of any pre existing law.
If such were the case the law in force in the native State of Tripura would have first continued by reason of the provision contained in section 5 of the Administration of Tripura (Laws) Order, 1949, already referred to which was promulgated on October, 15, 1949 and later by reason of article 372 of the Constitution.
To the extent to which there was no repeal by virtue of section 4 of the Part C States (Laws) Act, 1950 the Tripura law would have continued in force.
It is only on the basis that the whose operation was extended to that territory by section 3 was "a corresponding law" that the Tripura Act can stand repealed.
For the purpose of effecting the repeal under section 4 the only consideration is whether any existing law of that State "corresponded" to a law which, was extended by reason of section 3. 170 As stand earlier, it is common ground that the Tripura Forest Act "corresponded" to the and that the former therefore stood repealed on the extension to Tripura of the latter enactment.
If then the extension of the to the State effected a repeal of the Tripura Forest Act we have next to consider whether the notification under the Tripura Act could be deemed to be a notification under "the corresponding provision" of the .
For that purpose the preliminaries to the notification or the procedure which must precede a notification are not of any relevance but only whether the particular notification could be held to be under a corresponding provision under the extended enactment, viz., the .
If the notifications had been issued after complying with the formalities prescribed by the State law and they are kept alive by the proviso to section 4, the notifications would necessarily have to be deemed to have validly been made under the latter Act.
Judged by this test it appears to us that the fact that under the Tripura law there were no preliminaries prescribed before a forest could be notified as a reserved forest does not detract from such a notification being a notification under the .
We have next to consider whether the notification under the Tripura Act could be deemed to be a notification under Ch.
11 or under section 20 of the for that is the basis upon which the entire prosecution case rests.
For this purpose it is necessary to analyse the provisions of the Tripura Act and also examine the corresponding provisions of the .
We shall first.
take up the Tripura Act.
Its preamble, after reciting that some classes of trees are regarded as protected ones from times immemorial, goes on to state that it was expedient to consolidate the law with a view to bring order in the matter of the supervision of the protected trees and also to place the same on a sound footing.
This would appear to indicate that the Act was designed for the protection of particular trees as distinguished from the reservation of an area as a forest for the purpose of protecting all the trees within that forest.
We shall in due course have to refer to the provisions of Ch.
TV of the Indian 17I Forest Act headed "Of Protected Forests" under which also the aim of the law is to afford protection to certain trees in particular areas.
To revert to the Tripura Act, its section 3 provides for the repeal of the earlier laws and saves only rules or customs not inconsistent with the Act.
Section 4 is one of the key provisions of the Act and under it are specified seven classes of trees which shall be deemed to be protected within the independent State of Tripura.
The Act is divided into seven chapters of which the first one is headed "Of protection of Rakshita Bana" which, as stated earlier, has been translated as "Protected Forests".
Section 5 under which the three notifications to which we have already referred were issued reads: "The boundaries of 'Rakshita Bana ', shall be fixed and publication of the same shall be made in all police stations, offices, markets, ports and other public places within this independent State".
Section 6 runs: "No person shall be entitled to carry out any 'Jhum ' cultivation (shifting cultivation) within half a mile radius of a Rakshita Bana".
Sections 9 to 11 specify the acts which are prohibited in the notified forest areas.
These enact: "9.
No person shall set fire to the hills in such a manner which may cause damage to a Rakshita Bana in any way".
No person shall enter into a Rakshita Bana car rying fire.
" I 'll.
No person shall enter into a Rakshita Bana carrying axe or other weapons which may be used for cutting trees without permission." Chapter 11 with which section 12 opens is headed "Of Gradual Development of Rakshita Banas.
" The relevant sections of this Chapter are sections 12 to 17 and they read: "12.
In each year protected trees like sal etc.
and other valuable trees shall be grown either by sowing seeds or otherwise.
172 "13.
In order to give effect to the provisions of section 12, suitable sites will be selected at regular intervals after taking sanction for the same." "14.
If there are other trees in a Rakshita Bana than those mentioned in section 4, and if it is considered expedient that such other trees are harmful to the growth of the protected trees, then such trees shall be cut." "15.
In case any old tree referred to in section 4 is cut, then a new tree shall be grown in its place. " "16.
No person on any account shall be allowed to cut any tree within the reserved forest in a manner which might cause any damage to the block.
" "17.
If there be dense growth of any specific type of tree as mentioned in section 4 and if such growth is mutually detrimental to the general growth of the trees then to facilitate growth of the species some may be cut according to neces sity.
" Chapter III is headed "Of Penalties" and of the sections comprised in it is sufficient to refer to section 18 under which any person kindling fire in a forest is made punishable with imprisonment, section 19 on which much stress was laid which ran: "Whoever fells any tree within the limits of a Rakshita Bana shall be punished with rigorous imprisonment which may extend to three months or with fine which may extend to Rs. 5001or with both". and section 20 which ran: "20.
Any person who cuts any tree as specified under section 4 outside the limits of a reserved forest shall be punished with rigorous imprisonment which may extend to two months or with fine which may extend to Rs. 200/ or with both.
" 173 In this connection it is necessary to point out that under s.20 the cutting of the protected trees specified in section 4 is made an offence even if the cutting were to take place beyond the limits of the forest notified under section 5.
The only point of difference brought in by the cutting being within the boundaries of the forest is that in that case the punishment is heavier.
The other chapters relate to the officials and the manner in which they should perform their duties and have not much relevance for the purposes of these appeals.
From the above summary of the provisions it would be seen that in substance the object and purpose of the Tripura Act was the protection of particular trees the seven types of trees specified in s.4.
The notification under section 5 is for the purpose of constituting areas where these types of trees would be protected.
The penal provisions enacted are for ensuring the protection of these trees.
No doubt, section 16 enacts a ban against the cutting of any tree within a forest so as to cause damage to any block and section 19 penalises the cutting of any tree within the area of a forest, but it is obvious that in the context of the other provisions of the Act and the purpose which the enactment is intended to subserve, these prohibitions under penal sanctions were designed primarily and essentially to ensure more effective protection to the trees specified in s.4.
Now, let us see whether Ch.
II of the could be said to be a provision which corresponds to the Tripura Act, so that the notification under section 5 of the latter ,enactment could be deemed to be a notification under Ch.
II ,or section 20 of the Forest Act.
We have set out the several provisions of Ch.
II and their object.
The prime purpose of that Chapter is the constitution of reserved forests in which (1) all private rights within the reserved area are completely eliminated by their being bought up where these are ascertained to exist by payment of compen sation, (2) the entire area being devoted to siviculture, every tree in the forest being protected from injury and within the scope of the penal provision contained in section 26.
In other words, the reservation here is to the "forest area" as such and not the protection of particular specified trees or species of trees in such a forest.
174 In this connection some point was sought to be made from the terms of the notification under section 5 of the Tripura Act by which the boundaries of the several forests were specified.
The three notifications were substantially in the same form and it is, therefore, sufficient to set out the one setting out the boundaries of the Garjichhera reserve.
The relevant conditions are: "2.
Jhum cultivation will not be permissible in this forest area.
The land previously settled within this forest a ea shall remain valid.
Plough cultivation will be permissible in that area.
The fallow Taluka land falling within this area shall be deemed as not being within this reserve.
Until further orders, cutting of all kinds of trees are prohibited within this Reserve.
Cutting and export of unclassified forest products. . will be permissible.
Except in the settled area, grazing of all kinds of animals elsewhere within this Reserve will be prohibited.
AR kind of hunting within this Reserve is prohi bited.
" In regard to these conditions stress was laid principally on condition No. 5 under which all cutting of trees was forbid den.
The provision here appears to be a reproduction of section 16 of the Act and to have no further or more extended operation.
We are therefore unable to accept the submission that by reason of this clause the area which is notified as the reserved forest is constituted a reserved forest of the same type as under Ch.
II of the .
In the first place, as the notification was issued under the Tripura Act it would be reasonable to construe it with reference to the prohibition against cutting of trees contained in the Act itself and we have already adverted to the terms of section 16 which we have held was designed for the purpose of protecting the trees set out in section 4.
But that apart, clause 5 175 itself permits the cutting of certain forest produce which it was evidently thought would not interfere with the functioning of the forest as a place for the protection of the protected trees.
The other two notifications do not permit the cutting of Bamboo etc.
without Government permit, but this in our opinion makes no difference.
If one now turns to the provisions of Ch.
IV of the the correspondence between the Tripura Act and the provisions of Ch.
IV would become clear.
Section 30, corresponding to section 4 of the Tripura Act, in Ch.
11 enables the State Government by notification in the Official Gazette (a) to declare any trees or class of trees in a protected forest to be reserved from a date fixed by the notification; (b) declare that any portion of such forest specified in the notification shall be closed for such term, not exceeding thirty years, as the State Government thinks fit, and that the rights of private persons, if any, over such portion shall be suspended during such term, provided that the remainder of such forest be sufficient, and in a locality reasonably convenient, for the due exercise of the rights suspended in the portion so closed; or (c) prohibit, from a date fixed as aforesaid, the quarrying of stone, or the burning of lime or charcoal, or the collection or subjectionto any manufacturing process, or removalof, any forest produce in any such forest andthe breaking up or clearing for cultivation,for building, for herding cattle or for any other purpose, of any land in any such forest.
" Section 31 provides for the publication of a notification under section 30 and section 32 for the regulations which may be made for protected forests i.e., areas in which particular trees are protected and section 33 provides for penalties for acts in contravention of a notification under section 30 or of rules under section 32.
This section enacts: 176 "33.
(1) Any person who commits any of the following offences, namely: (a) fells, girdles, lops, taps or bums any tree reserved under section 30, or strips off the bark or leaves from, or otherwise damages, any such tree; (b) contrary to any prohibition under section 30, quarries any stone or burns any lime or charcoal, or collects, subjects to any manufacturing process, or removes any forestproduce; contrary to any prohibition under section 30, breaks up or clears for cultivation or any other purpose any land in any protected forest; (d) sets fire to such forest.
kindles a fire without taking all reasonable precautions to prevent its spreading to any tree reserved under section 30, whether standing, fallen or felled, or to any closed portion of such forest; (e) leaves burning any fire kindled by him in the vicinity of any such tree or closed portion; (f) fells any tree or drags any timber so as to damage any tree reserved as aforesaid; (g) permits cattle to damage any such tree; (h) infringes any rule made under section 32; shall be punishable with imprisonment for a term which may extend to six months, or with fine which may extend to five hundred rupees, or with both.
It would thus be clear that the object of Ch.
TV is the protection of particular trees and the setting apart of particular areas as protected forests for the purpose of ensuring the growth and maintenance of such trees.
The object I77 sought to be achieved by the reservation in Ch.
IV of the is thus seen to be exactly similar to that which is sought to be achieved by the Tripura Act.
Only the Tripura Act makes the cutting of protected trees even outside a forest an offence, whereas there is no such provision under the .
If, therefore, one has to seek a provision "corresponding" to the repealed Tripura Forest Act that provision will be found not in Ch.
11 of the but only in Ch.
As the present prosecutions have been launched for offences under section 26 the learned Judicial Commissioner was right in holding that the prosecution has not been able to establish that the accused had committed an offence in respect of the provision under which they were charged since the three forests were not notified as reserved forests under a provision corresponding to Ch.
II of the .
We, therefore, hold that the learned Judicial Commissioner was right in considering that the provision in the "corresponding" to the Tripura Forest Act under which the notifications fixing the boundaries of these three forests were issued is that as regards "a protected forest" under Ch.
IV and not a "reserved forest" within section 20 contained in Ch.
The order acquitting the several respondents was therefore right and the appeals fail.
In the view that we have taken of the main question argued before us, we do not find it necessary to consider whether there were any other legal defences open to the several accused.
For instance, it will be noticed that the accused in these cases were held guilty of offences under section 26(1)(a), (d) and (h).
As regards the offence under cl.
(a) the learned Attorney General conceded that it was a prerequisite for a person being held guilty of an offence under that clause that there should be a notification under section 4 because section 5 which is referred to in section 26(1) (a) reads: "5.
After the issue of a notification under section 4, no right shall be acquired in or over the land comprised in such notification, except by succession or under a grant or contract in writing made or entered into by or on behalf of the Government or some person in whom 51 S.C. 12 178 such right was vested when the notification was issued; and no fresh clearings for cultivation or for any other purpose shall be made in such land except in accordance with such rules as may be made by the State Government in this behalf.
" In the absence, therefore, of such a notification the accused could not have been held guilty of a contravention of section 26(1)(a).
Coming next to cls.
(d) and (h), the question for consideration would be whether if these were not offences under the Tripura law, the accused could be prosecuted by reason of (a) the extension of the Forest Act to the Tripura State and (b) the notification.
under the Tripura law being "deemed to be a notification" under the corresponding provision of the Indian Act.
We consider it unnecessary to examine this problem or to express any opi nion on this matter in view of the conclusion that we have reached that the notification under section 5 of the Tripura Act would constitute the area in question only as a protected forest under Ch.
IV of the and not as a " reserved" forest under section 20 contained in Ch. ]El of that Act.
The appeals fail and are dismissed.
The appellant had undertaken to pay the costs of the respondents at the time of the admission of the appeals.
In accordance with that undertaking the appellant will pay the costs to the respon dents.
One hearing fee.
Appeals dismissed.

summary:
The respondents in these appeals were convicted by Magistrates for offences under section 26(1) of the Indian Forest Act.
Appeals were filed to the Sessions Judge, where the respondents raised the contention that the forest areas in which the alleged offences were committed were not "Reserve forests" within the meaning of the Act.
For establishing that these "reserves" were "reserved forests" within the Indian Act, the appellant relied on two circumstances.
First, there was a Forest Act promulgated by the Ruler of Tripura State (Act 2 of 1257 T.E. 1297 T.E. ?) which contained provisions somewhat analogous to those contained in the Indian Act.
Next, section 5 of the Tripura Act enabled the State Government to declare by notifications published in the State Gazette, the boundaries of the forest areas to be governed by the State Act.
Such notifications were published by which the boundaries of the reserves of the forests in question were defined.
The appellant urged that the Tripura Act was replaced by the Indian Forest Act by reason of legislative provisions upon the merger of the native State of Tripura with the Dominion of India, and that the notifications under the Tripura Act which were continued in force by these same provisions rendered these reserves "Reserved forests" under the Indian Forest Act.
The Sessions Judge held that by reason of these notifications the forest areas became "reserved forests" under the relevant provisions of the Indian Forest Act and dismissed the appeals.
Thereafter, revisions were filed before the Judicial Commissioner, who 'differing from the Sessions Judge held that they were not "reserved forests" and directed the acquittal of the respondents.
On appeal by special leave: HELD:. .(i) From the provisions of the Indian Forest Act, it would be seen that it is the notification under section 20 after complying with the procedure prescribed by the other sections of Chapter 11 commencing with section 4 that constitutes a forest area "a reserved forest" within the Act.
(ii).The fact that under the Tripura Act there were no preliminaries Prescribed before a forest could be notified as a reserved forest does not detract from such a notification being a notification under the Indian Forest Act.
(iii). .In substance the object and purpose of the Tripura Act was the protection of particular trees the seven types of trees specified in section 4.
The notification under section 5 is for the purpose of constituting areas where These types would be protected.
The penal provisions enacted are for insuring the protection of these trees.
(iv) The prime purpose of Chapter II of the Indian Forest Act is the constitution of reserved forests in which (1) all private rights within the reserved area are completely eliminated by their being bought up where these are ascertained to exist by payment of compensation, (2) the entire area being devoted to siviculture, every tree in the forest being protected 160 from injury and within the scope of the penal provision contained in section 26.
In other words, the reservation here is to the "forest area" as such and not the protection of the particular specified trees or species of trees in such a forest.
The object of Ch.
IV of the Indian Forest Act is the protection of particular trees and the setting apart of particular areas as protected forests for the purpose of ensuring the growth and maintenance of such trees.
The object sought to be achieved by the reservation in Ch.
IV is exactly similar to that which is sought to be achieved by the Tripura Act.
Only the Tripura Act makes the cutting of protected trees even outside a forest an offence, whereas there is no such provision under the Indian Forest Act.
(vi).The notification under section 5 of the Tripura Act would constitute the area in question only as a "protected" forest under Ch.
IV of the Indian Forest Act and not as a "reserved" forest under section 20 contained in Ch.
11 of the Act, (vii). .The
Judicial Commissioner was right in considering that the Provision.in the Indian Forest Act "corresponding" to the Tripura Forest Act under.which the notifications fixing the boundaries of these forests in question were issued was that as regards "a protected forest" under Ch.
IV and not "reserved forest" within section 20 contained in Ch.


judgement:
minal Appeals Nos.
30 34 of 1964.
Appeals by special leave from the judgment and order dated October 22, 1963 of the Allahabad High Court in Criminal Appeals Nos. 77 and 78 of 1963.
M. section K. Sastri, for the appellant (in Cr. A. No. 30 of 1964).
I. M. Lall and Ganpat Rai, for the appellants (in Cr. A. No. 31 of 1964).
V. 'Y. Sawhney, for the appellants (in Cr. A. Nos.
32 34/64).
0. P. Rana, Atiqur Pehman and C. P. Lal, for the res pondents May, 4.
The Judgment of the Court delivered by GAJENDRAGADKAR, C. J. Forty person were charged with having committed several offences the principal one of which was under section 302 read with section 149 of the Indian Penal Code.
The case against these persons was tried by the first Additional Sessions judge at Jhansi.
The other charges framed against them were under section 307 / 149, 201/ 149 & SI 1, 395, 396, 149 & 449, 1.
The learned trial Judge held that none of the char es had been proved against five of the accused persons. '.He also found that the charges under sections 395 & 396 were not proved against any of them.
In regard to the remaining charges.
he found that 35 out of 40 accused persons were guilty.
For the major offence charged under section 302/149, he sentenced 10 accused persons to death and 25 others to imprisonment for life.
He also directed that the said accused persons should undergo different terms of imprisonment for the remaining offences; but for the purpose of the present appeals, it is unnecessary to refer to them.
136 After the learned trial Judge pronounced his judgment on the 31st December 1962, the 35 accused persons who had been convicted by him preferred three appeals between them before the Allababad High Court, whereas the sentences of death imposed on 10 accused persons by the learned trial Judge were submitted to the said High Court for confirmation.
The High Court has held that 7 out of the 35 appellants before it were not proved to have committed any of the offences, and so, they were ordered to be acquitted.
In regard to the remaining 28 appellants, the High Court has confirmed the orders of conviction and sentence imposed on them by the trial Court.
In the result, the reference made to the High Court for confirmation of the sentences of death imposed on the 10 accused persons by the trial Court was allowed.
It is against this decision of the High Court that the present five appeals have been brought to this Court by special leave, and the number of accused persons who have brought these appeals before us is 16.
Before dealing with the points raised in these appeals, it is necessary to set out very briefly the relevant facts on which the prosecution case against the appellants and their co accused substantially rests.
The incident which has given rise to the present criminal proceedings took place on the 29th November, 1961 in village Bilati Khet in the district of Jhansi at about 8 a.m. It is clear that this village is cursed with keen rivalry and enmity between two factionsOne group was led by Gayadin who and four other members of his family were murdered on the said date.
All these murders were committed, according to the prosecution, by the members of the rival faction amongst whom are included the present appellants before us.
Criminal proceedings have continued between the parties for several years almost without interruption.
The rival group was led by Laxmi Prasad alias Laxmi Narain who is one of the appellants in this Court.
In the last election of the village Panchayat Laxmi Prasad succeeded as Pradhan of the village and defeated the candidate set up by Gayadin.
On the 28th November, 1961, a boundary dispute led to an incident between the members of the two groups.
This dispute related to two fields one of which belonged to Gayadin and 137 the other to Laxmi Prasad.
Attempts were made to settle this dispute by arbitration, but they failed.
It appears that Laxmi Prasad and the members of his group did not agree to submit to any arbitration and they left the meeting called for the purpose threatening that they would see that the matter in dispute between them was settled the next day.
It is on this grim note that the incident of the 28th November ended.
On the 29th November in the early morning, Bahoran, one of the sons of Gayadin, had gone out to ease himself.
He was then carrying a pharsa.
In the field he met Laxmi Prasad who attacked him with a lathi.
Bahoran retaliated this attack with his own pharsa and in the scuffle the nose of Laxmi Prasad was injured and it began to bleed; in fact, a part of the nose was actually cut.
Infuriated by this injury, Laxmi Prasad went to his house and collected the whole crowd belonging to his faction.
Bahoran eased himself and returned to his house.
Soon there after he washed his hands and went to the north where his father, brothers and other relations were warming themselves by fire.
At that stage, Ram Prasad and Dayaram rushed to the scene and informed them that Laxmi Prasad and his companions were all armed with guns, spears, swords, gandasas and lathis and were proceeding to the house of Gayadin determined to kill all the members of Gayadin 's family.
On receiving this alarming information, Gavadin and his friends and relatives thought of proceeding towards the house of Gayadin.
About that time, Laxmi Prasad and his companions reached near the house of Gayadin whereon Laxmi Prasad fired a gun.
Bhagwati was carrying a large quantity of cartridges in the folds of his dhoti and was instigating Laxmi Prasad to fire at everyone sitting near the fire to the north of the house and to exterminate the family of Gayadin.
On hearing this, everyone of the group sitting near the fire rushed into the house and closed the doors.
The assailants then broke open the doors of the house and entered the sehan of Gayadin.
Inside the house the assailants pursued Gayadin on the upper storey and killed him there.
Brindaban, Radha Saran and Dayaram were hiding in different rooms of the house; the doors of these rooms 138 were broken open and all the three of them were shot dead.
Bahoran and Shiroman Singh, both sons of Gayadin, escaped through the tiled roof into the cattleshed of Harbans which is situated towards the south east of Gayadin 's house.
Shiroman concealed himself in the godown while Bahoran concealed himself in the room in the upper storey where chaff had been stored.
After killing Gayadin, Brindaban, Radha Saran and Dayaram, the assailants mercilessly dragged the bodies of the victims out of the house of Gayadin and began their search for Bahoran and other male inmates of the house.
When the dead bodies were thus being dragged, Gori Dulaiya wife of Gayadin rushed after the assailants and implored them not to take the dead bodies away.
One of the assailants, however, struck her with a stick and she was forced to retrace her steps.
The dead bodies were then dragged towards the east of the house.
On reaching the cattleshed of Harbans, the assailants broke open the outer door of the house and entered into it.
They then injured Harbans and managed to discover Shiroman Singh who was promptly killed.
The five dead bodies were then taken into the field of Bhagwati.
In the field two big piles of cowdung cakes were prepared.
On one of the piles the bodies of Gayadin, Brindaban, Radha Saran and Davaram were placed and on the other Shiroman Singh 's body was put.
Kerosene oil was sprinkled on the bodies and fire was set to them.
That, in brief, is the story of the gruesome murders which have given rise to the present proceedings.
When the assailants had left the house of Gayadin dragging the dead bodies with them.
Rahoran came out of hi,, hiding place and rushed to the Police Station Krichh and lodged the First Information Report at about 11 o 'clock.
In this report,. .he gave all the material details in regard to the commission.of the offence and named the 35 persons as the assailants. .In fact, the first committal order passed on the 31st March,. .1962 in the present proceedings referred to 35 assailants.
Later.
five more persons were added to the list of assailants by the committal order made on the 14th May, 1962.
On receiving the first information report, the police party rushed to the scene of occurrence on cycles and they put off the burning fire and took out the half burnt 139 bodies of the five murdered persons.
These bodies were identified aid were sent for post mortem examination.
The injured persons Harbans, Ram Prasad, Mansa Ram and Smt.
Gori Dulaiya were sent for medical examination.
Post mortem examination was then held on the dead bodies and statements of witnesses were recorded in the course of investigation.
That led to the several charges framed against 40 persons and ultimately their trial in the Court of the First Additional Sessions Judge at Jhansi.
The case for the prosecution is sought to be established by the testimony of 12 eye witnesses.
All the accused persons denied that they had anything to do with the offences charged.
Their main contention was that a false case had been made against them and it was attempted to be supported by evidence of witnesses who were hostile to them and who had no regard for cruth.
The trial Judge, in substance.
rejected the defence plea and accepted the prosecution evi dence.
except in the case of five accused persons.
In appeal, several contentions were raised on behalf of the appellants, but they were rejected and in the result, the findings of the trial Court against the appellants were confirmed.
The High Court, however, reversed the conclusion of the trial Court in respect of 7 accused persons with whose cases we are not concerned in the present appeals.
The 12 persons who gave direct evidence against the appellants and their co accused persons are: Bahoran P.W. 1; Basanti Lal P.W.2; Rameshwar Dayal P.W.3; Prabhu Dayal P.W.5; Pancham P.W.6: Swarup Singh P.W.14; Kasturi P.W.15; Thakur Das P.W.16.
Shyamlal P.W.17; Harbans P.W.18; Dropadi P.W.19; and Kishori Lal P.W.20.
The High Court has critically examined the evidence given by these witnesses and has held that the evidence of Bahoran and Prabhu Dayal may be left out of account as it appeared to the High Court that the said evidence suffered from material infirmities.
The evidence given by the remaining 10 witnesses has, however, been accepted by the High Court as substantially true and correct.
Jr. dealing with this oral evidence, the High Court took into account the fact that most of these witnesses belonged to the faction of Gayadin and must, therefore, be regarded 140 as partisan.
It also considered another feature which characterised the evidence of all the witnesses and that was that they gave their account of the incident substantially in similar terms and did not assign particular parts in respect of overt acts to any of the assailants except Laxmi Prasad accused No. 1.
The approach adopted by the High Court shows that it decided to confirm the conviction of the accused persons against whom four or more witnesses gave a consistent account, and it is by the application of this test that 7 accused persons have been acquitted.
As to the sentence, the High Court realised that 10 persons had been ordered to be hanged and that it could not be said about all of them, except Laxmi Prasad, that they had actually fired a gun and caused the death of any of the five victims.
Even so, the High Court held that since they all formed members of the unlawful assembly the common object of which was to exterminate the male members of the family of Gayadin, they were all equally guilty of murder under s.302,/149, I.P.C. and it would not, therefore, be unreasonable to impose the penalty of death on such of the assailants is were shown to have carried guns in their hands on that occasion.
That is how the High Court upheld the orders of conviction passed against 28 persons who had brought their cases before it in appeal and confirmed the sentences of death imposed on I 0 of them.
In these appeals, Mr. Sawhney who has addressed the principal argument before us on behalf of the appellants, has urged that the High Court has failed in discharging its duty properly when it dealt with the appeals brought before it by the appellants and decided to confirm the sentences of death imposed on 10 of the accused persons.
In support of this argument, Mr. Sawhney has relied upon the decision of this Court in the case of Jumman & Ors.
vs The State of Punjab.
(1) In that case, this Court has emphasised the fact that the mandatory requirement prescribed by s.374 of the Code of Criminal Procedure shows that in dealing with reference for confirmation of death sentence imposed by the Sessions Judge, the High Court has to consider the entire case for itself before deciding whether the sentence of death (1) A.T.R. I957 S.C. 469 141 should be confirmed or not.
Section 374 provides that the sentence of death shall not be executed unless it is confirmed by the High Court.
In other words, the sentence of death imposed by the Court of Sessions is not effective until and unless it is confirmed by the High Court.
It is only when the High Court confirms the sentence of death that it is capable of execution.
That is why this Court emphasised the solemnity of the Proceedings brought before the High Court under s.374, and it pointed out that under s.375, the High Court is given the power to admit additional evidence if it thinks necessary to do so.
Proceedings brought before the High Court for confirmation of a death sentence give a right to the condemned prisoner to be heard on the merits and to require the High Court to consider the matter for itself without being influenced by the conclusions recorded by the Court of Sessions.
The conclusions of the High Court on the merits in such proceedings must be independent,.
and so, the High Court inevitably has to go into the whole of the evidence.
consider all the pros and cons of the case and satisfy itself that the offence charged under section 302, I.P.C. is established beyond reasonable doubt and the sentence of death submitted to it for its confirmation is fully justified.
Mr. Sawhney contends that this essential requirement of s.374 has not been complied with by the High Court when it dealt with the appeals brought before it in the present proceedings.
He also adds that since 10 persons have been ordered to be hanged, that itself is a reason why this Court should examine the evidence for itself and not hold that the appellants are concluded by concurrent findings of fact recorded by the Court below.
We are not impressed by this argument.
It is perfectly true that, in a murder trial when an accused person stands charged with the commission of an offence punishable under s.302, he stands the risk of being subjected to the highest penalty prescribed by the Indian Penal Code; and naturally judicial approach in dealing with such cases has to be cautious, circumspect and careful.
In dealing with such appeals or reference proceedings where the question of con firming a death sentence is involved, the High Court has also 142 to deal with the matter carefully and to examine all relevant and material circumstances before upholding the conviction and confirming the sentence of death.
All arguments urged by the appellants and all material infirmities pressed before the High Court on their behalf must be scrupulously examined and considered be fore a final decision is reached.
The fact that 10. persons had been ordered to be hanged by the trial Judge necessarily imposed a more serious and onerous res ponsibility on the High Court in dealing with the present appeals.
We have carefully considered the judgment delivered by the High Court in these appeals and we are satisfied that the criticism made by Mr. Sawhney that the High Court did not bestow due care and attention on the points involved in the case, cannot be regarded as well founded, The judgment shows that the arguments which were urged on behalf of the appellants, have been carefully examined, the evidence given by the respective witnesses has been accurately summarised and the infirmities in the said evidence closely scrutinised.
The relevance of the argument of the admitted enmity between the two factions of the village has been taken into account and the common features of the evidence tendered by the witnesses have not been overlooked.
After taking into account all the points which were urged before the High Court the High Court adopted what it thought to be a safe test before acting on direct evidence.
It has held that unless at least four witnesses are shown to have given a consistent account against any of the appellants.
the case against them cannot be said to have been proved beyond reasonable doubt.
Having regard to the manner in which the High Court has dealt with the appeals brought before it, we are not prepared to hold that the general criticism made by Mr. Sawhney against the judgment of the High Court can be accepted.
In this connection, Mr. Sawhney strongly relied on the fact that the High Court has not considered one important point in favour of the defence, and that is in to the failure of the prosecution to tender three material witnesses whose names had been shown in the witness list in the calendar sent by the committing Magistrate to the trial Judge.
These witnesses are: Ram Prasad, Mansa Ram and 143 Rani Dulhan.
It appears that this contention was raised by the defence before the Trial Court and had been rejected by it.
The Government counsel appearing for the prosecution had made an application to the trial Court expressing his inability to examine the three witnesses for the reason that Ram Prasad and Mansa Ram had been won over by the defence and Rani Dulhan, the widow of one of the victims, was suffering from such mental shock that she was unable to depose coherently.
After this application was made and granted, the learned trial Judge did not insist upon the prosecution examining the three said witnesses.
Then followed three other applications by the defence (Nos. 247B, 248B and 249B) in which it was urged that the said three witnesses should be examined under s.540, Cr.
The learned trial Judge rejected these applications, and so, the case concluded without the said three witnesses giving evidence before the trial Court.
In rejecting the applica tions made by the defence, the learned Judge has carefully examined the validity of the defence contention that the evidence given by the said witnesses before the Committing Magistrate showed that they were material witnesses and the plea raised by them that the absence of their evidence would cause prejudice to the defence, and has held that the evidence which the said three witnesses may give was not essential for a just decision of the case and that it was unreasonable to suggest that the prosecution had an oblique moive in supressing their evidence.
This part of the judg ment clearly shows that all relevant aspects of the matter were examined by the trial Judge before he refused to exercise his powers under s.540, Cr.
It is obvious that this contention was not urged before the High Court, and so, we find no discussion of the point in the judgment of the High Court.
We are not prepared to accept Mr. Sawhney 's argument that even if this point was not raised by the appellants before the High Court, they are entitled to ask us to consider that point having regard to the fact that 10 persons have been ordered to be hanged.
It may be conceded that if a point of fact which plainly arises on the record, or a point of law which is relevant and material and can be argued with 144 out any further evidence being taken, was urged before the trial Court and after it was rejected by it was not repeated before the High Court, it may, in a proper case, be permis sible to the appellants to ask this Court to consider that point in an appeal under article 136 of the Constitution; afterall in criminal proceedings of this character where sentences of death are imposed on the appellants, it may not be appropriate to refuse to consider relevant and material pleas of fact and law only on the ground that they were not urged before the High Court.
If it is shown that the pleas were actually urged before the High Court and had not been considered by it, then, of course, the party is entitled as a matter of right to obtain a decision on those pleas from this Court.
But even otherwise no hard and fast rule can be laid down prohibiting such pleas being raised in appeals under article 136.
In the present case, however, we are satisfied that there is no substance in the contention which Mr. Sawhney seeks to raise before us.
It is not unknown that where serious offences like the present are committed and a large number of accused persons are tried, attempts are made either to terrorise or win over prosecution witnesses, and if the prosecutor honestly and bonafide believes that some of his witnesses have been won over, it would be unreasonable to insist that he must tender such witnesses before the Court.
It is undoubtedly the duty of the prosecution to lay before the Court all material evidence available to it which is necessary for unfolding its case; but it would be unsound to lay down is a general rule that every witness must be exa mined even though his evidence may not be very material or even if it is known that he has been won over or terrorised.
In such a case, it is always open to the defence to examine such witnesses is their witnesses and the Court can also call such witnesses in the box in the interest of justice under s.540, Cr.
As we have already seen, the defence did not examine these witnesses and the Court, after due deliberation, refused to exercise its power under s.540, Cr.
That is one aspect of the matter which we have to take into account.
145 The other aspect of the matter is that the trial Court has found that the evidence which these witnesses would have given was not essential for a just decision of the case.
What these witnesses might have said in the Sessions Court was judged by the trial Court in the light of their previous statements already recorded, and that is a finding which is purely one of fact.
If this finding was not challenged by the appellants before the High Court, we do not see how they can claim to argue before us now that the said finding is erroneous.
Besides, so far as Rani Dulhan is concerned, it seems to us utterly unreasonable to insist that before per mitting the prosecutor not to examine her, evidence should have been led to show that she was suffering from such mental shock that she was unable to give a coherent account of the tragic events that happened on that fateful morning.
One has merely to recall the fact that five male members of her family were butchered to death by the assailants to realise that the prosecutor 's statement that she was mentally unbalanced must be true.
Then, as to Ram Prasad and Mansa Ram having been won over by the defence, that again is a matter on which the trial Court appears to have been satisfied; otherwise it would have readily acceded to the request of the defence to exercise its powers under section 540.
We are inclined to think that it is because this part of the defence contention was felt to be inarguable that the Advocate for the appellants did not raise this point before the Court.
Therefore, we are not prepared to allow Mr. Sawhney to take us through the evidence in the case on the ground that one important contention raised by the defence has not been examined by the High Court.
Mr. Sawhney has then argued that where witnesses giving evidence in a murder trial like the present are shown to belong to the faction of victims, their evidence should not be accepted, because they are prone to involve falsely mem bers of the rival faction out of enmity and partisan feeling.
There is no doubt that when a criminal Court has to appreciate evidence given by witnesses who are partisan or interested, it has to be very careful in weighing such evidence.
51 S.C. IO 146 Whether or not there are discrepancies in the evidence; whether or not the evidence strikes the Court as genuine; whether or not the story disclosed by the evidence is prob able, are all matters which must be taken into account.
But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses.
Often enough, where factions prevail in villages and murders are committed as a result of enmity between such factions, criminal Courts have to deal with evidence of a partisan type.
The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice.
No hard and fast rule can be laid down as to how much evidence should be appreciated.
Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct.
Then it is urged that the evidence given by the witnesses conforms to the same uniform pattern and since no specific part is assigned to all the assailants, that evidence should not have been accepted.
This criticism again is not well founded.
Where a crowd of assailants who are members of an unlawful assembly proceeds to commit an offence of murder in pursuance of the common object of the unlawful assembly, it is often not possible for witnesses to describe accurately the part played by each one of the assailants.
Besides, if a large crowd of persons armed with weapons assaults the intended victims, it may not be necessary that all of them have to take part in the actual assault.
In the present case, for instance, several weapons were carried by different members of the unlawful assembly, but it appears that the guns were used and that was enough to kill 5 per sons.
In such a case, it would be unreasonable to contend that because the other weapons carried by the members of the unlawful assembly were not used, the story in regard to the said weapons itself should be rejected.
Appreciation of evidence in such a complex case is no doubt a difficult task: but criminal courts have to do their best in dealing with such cases and it is their duty to sift the evidence carefully and decide which part of it is true and which is not.
In the 147 present case, the High Court has in fact refused to act upon the, evidence of Bahoran and Prabhu Dayal, because it appeared to the High Court that the evidence of these two witnesses suffered from serious infirmities.
Mr. Sawhney also urged that the test applied by the High Court in convicting the appellants is mechanical.
He argues that under the Indian Evidence Act, trustworthy evidence given by a single witness would be enough to convict an accused person, whereas evidence given by half a dozen witnesses which is not trustworthy would not be enough to sustain the conviction.
That, no doubt is true; but where a criminal court has to deal with evidence pertaining to the commission of an offence involving a large number of offenders and a large number of victims, it is usual to adopt the test that the conviction could be sustained only if it is supported by two or three or more witnesses who give a consistent account of the incident.
In a sense, the test may be described as mechanical; but it is difficult to see how it can be treated as irrational or unreasonable.
Therefore, we do not think that any grievance can be made by the appellants against the adoption of this test.
If at all the prosecution may be entitled to say that the seven accused persons were acquitted because their cases did not satisfy the mechanical test of four witnesses, and if the said test had not been applied, they might as well have been convicted.
It is, no doubt, the quality of the evidence that matters and not the number of witnesses who give such evidence.
But, sometimes it is useful to adopt a test like the one which the High Court has adopted in dealing with the present case.
Mr. Sawhney then attempted to argue that the High Court failed to give effect to the principles enunciated by this Court in the case of Baladin vs State of Uttar Pradesh( ').
In that case, it was observed by Sinha, J., who spoke for the Court, that it is well settled that mere presence in an assembly does not make a person, who is present, a number of an unlawful assembly unless it is shown that he had done something or omitted to do something which would make him a member of an unlawful assembly, or unless the case falls under s.142, I.P.C. The argument is (1) A.I.R. 1956 S.C. 181 148 that evidence adduced by the prosecution in the present case does not assign any specific part to most of the accused persons in relation to any overt act, and so, the High Court was in error in holding that the appellants were members of an unlawful assembly.
The observation of which Mr. Sawhney relies, prima facie, does seem to support his contention; but, with respect, we ought to add that the said observation cannot be read as laying down a general proposition of law that unless an overt act is proved against a person who is alleged to be a member of an unlawful assembly, it cannot be said that he is a member of such an unlawful assembly.
In appreciating the effect of the relevant observation on which Mr. Sawhney has built his argument, we must bear in mind the facts which were found in that case.
It appears that in the case of Baladin(1), the members of the family of the appellants and other residents of the village had assembled together; some of them shared the common object of the unlawful assembly, while others were merely passive wit nesses.
Dealing with such an assembly, this Court observed that the presence of a person in an assembly of that kind would not necessarily show that he was a member of an un lawful assembly.
What has to be proved against a person who is alleged to be a member of an unlawful assembly is that he was one of the persons constituting the assembly ,and he entertained along with the other members of the assembly the common object as defined by s.141, I.P.C. Section 142 provides that whoever, being aware of facts which render any assembly an unlawful assembly, intentionally joins that assembly, or continues in it, is said to be a member of an unlawful assembly.
In other words, an assembly of five or more persons actuated by, and entertaining one or more of the common objects specified by the five clauses of section 141, is an unlawful assembly.
The crucial question to determine in such a case is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects as specified by section 141.
While determining this question, it becomes relevant. to consider whether the assembly consisted of some persons. .who were merely passive witnesses and had (1) A.I.R. 1956 S.C. 181 I49 joined the assembly as a matter of idle curiosity without intending to entertain the common object of the assembly.
It is in that context that the observations made by this Court in the case of Baladin(1) assume significance; otherwise, in law, it would not be correct to say that before a person is held to be a member of an unlawful assembly, it must be shown that he had committed some illegal overt act or had been guilty of some illegal omission in pursuance of the common object of the assembly.
In fact, s.149 makes it clear that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence.
is a member of the same assembly, is guilty of that offence; and that emphatically brings out the principle that the punishment prescribed by s.149 is in a sense vicarious and does not always proceed on the basis that the offence has been actually committed by every member of the unlawful assembly.
Therefore, we are satisfied that the observations made in the case of Baladin(l) must be read in the context of the special facts of that case and cannot be treated as laying down an unqualified proposition of law such as Mr. Sawhney suggests.
In this case, the High Court has carefully examined the evidence and has made a finding that the whole group of persons who constituted the assembly were members of the faction of Laxmi Prasad and they assembled together, armed with several weapons, because they entertained a common object in pursuance of which the five murders were committed on that day.
Therefore, there is no substance in the argument that the conclusion of the High Court that the appellants are guilty of the offences charged is not sup ported by the principles of law enunciated by this Court in the case of Baladin(1).
It is thus clear that the general grounds of attack urged before us by Mr. Sawhney in challenging the validity of the conclusions recorded by the High Court fail, and so, there (1) A.I.R.
I956 S.C. 181 150 would be no occasion or justification for this Court to con sider the evidence for itself.
That leaves one question still to be considered and that has relation to the sentence of death imposed on 10 persons.
Mr. Sawhney argues that in confirming the sentences of death imposed by the trial Court on 10 accused persons in this case, the High Court has adopted a mechanical rule.
The High Court has held that the 10 persons who carried fire arms should be ordered to be hanged, whereas others who have also been convicted under section 302/149, should be sentenced to imprisonment for life.
It is true that except for Laxmi Prasad, the charge under section 302/149 rests against the other accused persons on the ground that five murders have been committed by some members of the unlawfui assembly of which they were members, and the argument is that unless it is shown that a particular accused person has himself committed the murder of one or the other of the victims, the sentence of death should not be imposed on him.
In other words, the contention is that if a person is found guilty of murder under section 302/149 and it is not shown that he himself committed the murder in question, he is not liable to be sentenced to death.
In support of this argument, Mr. Sawhney has relied on certain observations made by Bose J. who spoke for the Court in Dalip Singh vs State of Punjab( ').
In that case, what this Court observed was that the power to. enhance a sentence from transportation to death should very. rarely be exercised and only for the stron gest reasons; and. it was added that it is not enough for the appellate court to. say or think that if left to itself it would have awarded the. greater penalty because the discretion does ,not belong to the. appellate court but to the trial Judge, and the only ground on which the appellate court can interfere is that the discretion has been improperly exercised.
These observations have no relevance in the present case, because we are not dealing With a case where the High Court has enhanced the sentence imposed by the trial Judge at all.
In fact, both the trial Court and the High Court are agreed that the sentences of death imposed on 10 persons are justi fied by the circumstances of the case and by the requirements (1) (1954] S.C.R. 145 151 of justice.
As a mere proposition of law, it should be difficult to accept the argument that the sentence of death can be legitimately imposed only where an accused person is found to have committed the murder himself.
Whether or not sentences of death should be imposed on persons who are found to be guilty not because they themselves committed the murder, but because they were members of an unlawful assembly and the offence of murder was committed by one or more of the members of such an assembly in pursuance of the common object of that assembly, is a matter which had to be decided on the facts and circumstances of each case.
In the present case, it is clear that the whole group of persons belonged to Laxmi Prasad 's faction, joined together armed with deadly weapons and they were inspired by the common object of exterminating the male members in the family of Gayadin, 10 of these persons were armed with fire arms and the others with several other deadly weapons, and evidence shows that five murders by shooting were committed by the members of this unlawful assesmbly.
The conduct of the members of the unlawful assembly both before and after the commission of the offence has been considered by the courts below and it has been held that in order to suppress such fantastic criminal conduct on the part of villagers it is necessary to impose the sentences of death on 10 members of the unlawful assembly who were armed with firearms.
It cannot be said that discretion in the matter has been improperly exercised either by the trial Court or by the High Court.
Therefore we see no reason to accept the argument urged by Mr. Sawhney that the test adopted by the High Court in dealing with the question of sentence is mechanical and unreasonable.
There are, however, three cases in which we think we ought to interfere.
These are the, case of accused No. 9 Ram Saran who is aged 18; accused No. II Asha Ram who is aged 23 and accused No. 16 Deo prasad who is aged 24, Ram Saran and Asha Ram are the sons of Bhagwati who is accused No. 2.
Both of them have been sentenced to death.
Similarly, Deo prasad has also been sentenced to death.
Having regard to the circumstances under which the unlawful assembly came to be formed, we are satisfied that these 152 young men must have joined the unlawful assembly under pressure and influence of the elders of their respective families.
The list of accused persons shows that the unlaw ful assembly was constituted by members of different families and having regard to the manner in which these factions ordinarily conduct themselves in villages, it would not be unreasonable to hold that these three young men must have been compelled to join the unlawful assembly that morning by their elders, and so, we think that the ends of justice would be met if the sentences of death imposed on them are modified into sentences of life imprisonment.
Accordingly, we confirm the orders of conviction and sentence passed against all the appellants except accused Nos. 9, 11 and 16 in whose cases the sentences are altered to those of imprisonment for life.
In the result, the appeals are dismissed, subject to the said modification.
Appeals dismissed.

dataset_name: IN-Abs

summary:
Forty persons belonging to a village faction and constituting an unlawful assembly were put up on trial before the Additional Sessions Judge under section 302 read with section 149 of the Indian Penal Code and other sections thereof for murdering 5 persons of the other faction with guns.
The trial Judge found 35 of them guilty and sentenced 10 of them, who carried fire arms, to death and the rest to imprisonment for life.
Three appeals were preferred by the convicted persons to the High Court and the sentences of death came up for confirmation under section 374 of the (1) L.R. 59 I.A. 2o6.
134 Code of Criminal Procedure.
The High Court acquitted 7 of the appellants and, concurring with the findings of the trial court, dismissed the appeals of the rest.
It confirmed the sentences of death passed on the 10 accused persons.
The appeals to this Court were preferred by those 10 and 6 others by special leave.
HELD: (i) In criminal appeals under article 136 of the Constitution involving sentences of death it would be improper to refuse to consider relevant pleas of fact or law on the ground that they had not been taken before the High Court.
when any such point had actually been urged and not considered by the High Court, the party urging it was entitled as a matter of right to obtain a decision from this Court.
Even otherwise no hard and fast rule can be laid down prohibiting such pleas being raised in such appeals.
(ii).It would be unsound to lay down as a general rule that every witness cited by the prosecution must be examined by it even though his evidence was not very material or he was known to have been won over or terrorised.
(iii). .Evidence of a witness could not be discarded only on the ground that he was a partisan or interested witness, particularly in cases of murder committed by a village faction, such mechanical rejection would invariably lead to failure of justice.
(iv).It was not improper for a criminal court having a large number of offenders and victims to deal with to adopt the test that the conviction of any particular accused could be sustained only if a particular number of witnesses gave a consistent account against him.
Such a test, even though mechanical, was not unreasonable.
Punishment prescribed by section 149 of the Indian Penal Code was in a sense vicarious and that section does not necessarily require that the offence must have been actually committed by every member of the unlawful assembly.
The observations of this Court in Baladin vs State of U.P. had to be read in the context of that case and could not be treated as laying down an unqualified proposition of law.
Baladin vs State of Uttar Pradesh, A.I.R. 1958 S.C. 181, explained.
(vi) It was. not correct to say that if a person was found guilty of murder under section 302/149 of the Indian Penal Code and it was not shown that he himself. .had committed the murder, no sentence of death could be inflicted on him.
Dalip Singh vs State of Punjab, [19541 S.C.R. 145, distinguished.
(vii). .There was no error in the exercise of their discretion by the courts below in the present case in making a distinction between the ten persons who carried fire arms and were sentenced to death and the others, who did not carry fire and were sentenced to imprisonment for life, under a common charge under sections 302/149.
I35 (viii).
Regard being had to the circumstances of the present case, the ends of justice would be properly served if the sentences of death passed on the three accused persons aged 18, 23 and 24, who had joined the unlawful assembly under pressure of their elders were modified to life sentences.