judgement:
ivil Appeal No. 687 of 1987.
716 From the Judgment and Order dated 8.9.1986 of the Alla habad High Court in C.W.P. No. 501 of 1986.
Yogeshwar Prasad, Vishal Jeet, S.R. Srivastava and Ms. Rachna Gupta for the Appellant.
section Markandeya for the Respondents.
The Judgment of the Court was delivered by VENKATARAMIAH, J.
The appellant is a person providing transport service in the District of Mathura.
He questioned the validity of the Order dated May 22, 1986 passed by the District Magistrate, Mathura declaring Plot Nos. 701 and 702 in the Town Area, Baldev (Mathura) as a bus stand/halting place of Baldev, where the stage carriages were directed to stand for the purpose of allowing the passengers of Baldev to get into and to get down from the stage carriages in a writ petition, Civil Miscellaneous Writ Petition No. 501 of 1986 filed before the High Court of Allahabad under Article 226 of the Constitution of India.
That petition was dis missed by the High Court on September 8, 1986.
This appeal by special leave is filed against the said decision of the High Court.
The case of the appellant was that the District Magis trate had no power to appoint any area as a bus stand under section 76 of the (hereinafter referred to as 'the Act ') under which he purported to pass the impugned order.
According to the appellant the power to fix any area as a bus stand was vested in the Regional Transport Authority having jurisdiction over the area and not in the District Magistrate.
The High Court was of the opinion that section 76 of the Act conferred wide powers on the District Magistrate 'to fix the places for the bus stand/halting place '.
It was further of the view that the place where the appellant and other bus operators were asked to stop their buses was only a halting place and hence the order made under section 76 of the Act was unassailable.
It further observed that since the impugned order did not specifically state that the bus operators could allow the passengers to get down and pick up the passengers, it could not be construed as an order fixing the area as a bus stand.
It should be stated at this stage that after the impugned order was passed the Town Area Committee gave a contract to a private contractor to collect that fees payable by the bus operators for making use of the area in question which was within its jurisdiction for stopping their buses in accord ance with the order passed by the 717 District Magistrate.
After the Writ Petition was filed in the High Court.
the appellant had obtained an order of stay preventing the Town Area Committee from collecting the fees.
Immediately after the Writ Petition was dismissed, the Executive Officer of the Town Area Committee, Baldev (Mathu ra) wrote a letter on 10.10.1986 to the President of the Mathura Sadabad Manikpur Eta Motor Operators Union, Mathura requiring all the bus operators to stop their buses at the bus stand fixed by the District Magistrate.
The letter reads thus: "President Mathura Sadabad Manikpur Eta Motor Operators Union Mathura.
Letter No. 192/TAB/86 Dated: 10.10.86 Subject: Civil Miscellaneous Writ Peti tion No. 501/86 Shri Hari Om Gautam Versus District Magis trate, Mathura.
Sir, The aforesaid Writ Petition which was filed against the order of District Magis trate, Mathura dated 22.5 1986 declaring the old bus stand of T.A. Baldev (Mathura) as authorised Bus stand/Halting place, has been dismissed by High Court, Allahabad on 8.9.86 and the stay order concerned has also been cancelled.
Now the order of District Magis trate dated 22.5.86 has become effective again.
As a result of which all the buses of the union are bound to stop and start from the authorised Bus stand/Halting place of Baldev allowing the passengers to get in and get down from the bus and for booking at this very stand and to pay standcommission to T.A. Faithfully, Sd/ 8/10 illegible Executive Officer (Seal) Town Area Com mittee, Baldev, Mathura." 718 The relevant provisions of the Act which govern the case are these.
Section 68, which is in Chapter IV of the Act containing the provisions relating to 'control of transport vehicles ' confers the power on the State Government to make rules for the purpose of the said chapter.
Clause (r) of sub section (2) of section 68 of the Act specifically con fers on the State Government without prejudice to the gener ality of the power conferred under sub section (1) of sec tion 68 of the Act the power to frame rules regarding or 'prohibiting the picking up or setting down of passengers by stage or contract carriages at specified places or in speci fied areas or at places other than duly notified stands or halting places and requiring the driver of a stage carriage to stop and remain stationary for a reasonable time when so required by a passenger desiring to board or alight from the vehicle at a notified halting place. ' Section 76 of the Act reads thus: "76.
Parking places and halting stations The State Government or any authority authorised in this behalf by the State Government may, in consultation with the local authority having jurisdiction in the area concerned, determine places at which motor vehicles may stand either indefinitely or for a specified period of time, and may determine the places at which public service vehicles may stop for a longer time than is necessary for the taking up and setting down of passengers.
" Section 91 of the Act, which is in Chapter VI dealing with 'control of traffic ', confers the power on the State Government to make rules for the purpose of carrying into effect the provisions of Chapter VI.
Clause (e) of sub section (2) of section 91 of the Act confers the power on the State Government specifically to make rules regarding the maintenance and management of parking places and stands and the fees, if any, which may be charged for their use.
Section 76 is also in Chapter VI.
The first question which arises for consideration is whether the area in which the bus operators were asked to stop their buses is a bus stand or a halting place.
The next question is whether, if the said area is a bus stand, the District Magistrate had the power to pass the impugned order.
It is not disputed before us that the District Magis trate had passed the impugned order in question with the object of establishing a bus stand in the area in question.
That appears to be so from the order passed by the District Magistrate and the letter dated 10.10.1986 written by the Executive Officer of Baldev Town Area 719 Committee.
We shall proceed on the basis that the District Magistrate fixed the area as a bus stand.
Regarding the authority which had the power to notify an area as a bus stand, there are at least three decisions of this Court.
In T.P. Ibrahim vs Regional Transport Authority, Tanjore, ; this Court took the view that the expres sion 'duly notified stand ' in section 68(2) (r) of the Act meant a stand duly notified by the Transport Authority and not a stand notified by the municipality within whose juris diction the area was situated.
This Court held that the fixing and alteration of bus stands was not a purpose for eign to the 'control of transport vehicles ' which was gov erned by Chapter IV of the Act and, therefore, rules could be framed by the State Government regarding the said subject under section 68(2)(r) of the Act.
At page 297 of the Re ports this Court has observed thus: "The expression 'duly notified stands ' is not defined in the Act, but it is reasonable to presume that a duly notified stand must be one which is notified by the Transport Author ity and by none other.
" It accordingly affirmed the view of the High Court against whose judgment the said appeal had been filed that section 76 of the Act which contained the provision relating to parking places and halting places had no application to a permanent bus stand which was a sort of radiating centre of all the bus traffic in the town.
A similar question arose for consideration in Municipal Board, Pushkar vs State Transport Authority, Rajasthan and Ors., [1963] Supp. 2 S.C.R. 373.
Following the decision in T.B. Ibrahim 's case (supra) this Court held in this case that section 76 of the Act had nothing to do with the fixation or alteration of a bus stand and the power to issue a notification fixing a bus stand was implied in section 68(2)(r) of the Act.
It further held that the power under section 68(2)(r) of the Act could be exercised only by the Regional Transport Authority having jurisdiction over the area and therefore, the order passed under that provision was open to revision under section 64 A by the State Transport Authority.
The last case to which reference has to be made is Municipal Council, Bhopal vs Sindhi Sahiti Multipurpose Transport Co op.
Society Ltd. & Anr., ; where the two decisions referred to above were applied for purposes of deciding the said case.
The facts of this case were these.
The Municipal Council of Bhopal had made bye laws under the provisions of section 358(7)(f) and (m) read with section 349 (ii) of the Madhya Pradesh Municipalities Act, 1961.
Bye law 2 provided that no person incharge of a motor bus plying for hire shall for 720 the purpose of taking up or setting down of passengers, park or stop his bus anywhere within the limits of the municipal ity except at the Municipal Bus Stand.
The other bye laws provided for a levy of a fee of Re. 1 for every 8 hours or part thereof in respect of the use of the bus stand by such buses and for the issue of a permit on such payment.
The respondent in that case filed a writ petition in the High Court of Madhya Pradesh challenging the said bye laws.
The High Court held that bye law l(c), which defined the expres sion 'Municipal Bus Stand ' and bye law 2 were valid but held bye laws 3 to 7 which provided for the payment of fee and the ' giving of permit etc., as invalid and restrained the Municipal Council from giving effect to those bye laws in any manner.
In that case this Court affirmed the decision of the High Court holding that the power to regulate or prohib it the use of municipal land as a halting place of vehicles could not be used to compel people to use such land as halting place.
Such a power should be given specifically by the statute and that the power to compel persons in charge of motor buses to stop only at certain places for the pur pose of taking up or setting down passengers was a matter which relating to motor traffic and that there was a specif ic provision in section 68(2)(r) of the Act for that pur pose.
Accordingly this Court held that the bye laws which compelled persons in charge of motor buses to use the Munic ipal Bus Stand could not be passed by the Municipality.
In that case also the District Magistrate had declared the Bhopal Municipal Bus Stand as a bus stand.
The Municipal Council contended before this Court that the District Magis trate had been authorised by the State Government under section 76 of the Act to pass an order fixing the Municipal Bus Stand as a bus stand for purposes of the Act.
Rejecting the said contention this Court held that the District Magis trate could not exercise the power of fixing a bus stand under section 76 of the Act and that could be done only under section 68(2)(r) of the Act.
The Court further ob served that while the Municipal Corporation had no power to compel persons plying motor buses for hire to use only the Municipal Bus Stand for the purpose of taking up and setting down passengers, there can be no objection to its providing a bus stand for anybody who chooses to use it voluntarily and to such person being required to pay for such use.
In the instant case reliance is placed by the learned counsel for the Town Area Committee of Baldev on rule 93 of the U.P. Motor Vehicles Rules, 1940 which authorises the District Magistrate to specify places within the limits of any municipality, notified area, town area or cantonment or within such other limits as he may define where alone public service vehicles or any specified class or classes of public 721 service vehicles and/or goods vehicles may stand indefinite ly or for such period as may be specified or public service vehicles may stop for a longer time than is necessary for the taking up and setting down of passengers.
We do not think that the Town Area Committee can derive any assistance from this rule.
It only authorises the District Magistrate to exercise the powers under section 76 of the Act which is confined to the question of determination of parking places and halting places which are not the same as bus stands which can only be notified by the Regional Transport Author ity as held by this Court in T.B. Ibrahim 's case (supra).
It is not disputed that in the instant case no order has been passed by the Regional Transport Authority, Mathura to determine the area in question as a bus stand and the Dis trict Magistrate cannot be equated with the Regional Trans port Authority constituted under the Act.
The High Court was, therefore, in error in upholding the impugned order passed by the District Magistrate.
We, therefore, set aside the judgment of the High Court and quash the order dated 22.5.1986 passed by the District Magistrate.
We also quash the letter dated 10.10.1986 written by the Executive Officer of Town Area Committee, Baldev to the President of the Union requiring the bus operators to stop their buses at the bus stand and to start from there and to permit the passengers to get into and to get out of their buses at that bus stand.
It is open to the Regional Transport Authority to take action immediately for determining any convenient place or places within the Town Area of Baldev (Mathura) as a bus stand.
The appeal is accordingly allowed.
There shall, however, be no order as to costs.
S.R. Appeal allowed.

summary/full:
Chapter VI of the contain provisions relating to "control of transport vehicles".
Section 68 confers the power on the State Government to make rules for the purpose of the said chapter.
Clause (r) of sub section (2) of section 68 of the Act specifically con fers on the State Government without prejudice to the gener ally of the power conferred under sub section (1) of section 68 of the Act the power to frame rules regarding "prohibit ing the picking up or setting down of passengers by stage or contract carriages at specified places or in specified areas or at places other than duly notified stands or halting places and requiring the driver of a stage carriage to stop and remain stationary for a reasonable time when so required by a passenger desiring to board or alight from the vehicle at a notified halting place.
" Section 76 empowers the State Government or any authority authorised in this behalf by the State Government to determine parking places and halting stations.
Clause (e) of sub section (2) of section 91 of the Act confers the power on the State Government specifically to make rules regarding the maintenance and management of parking places and stands and the fees, if any, which may be charged for their use.
Rule 93 of the Uttar Pradesh Motor Vehicles Rules, 1940 similarly authorises the District Magistrate to specify places within the limits of any munic ipality, notified area, town area or cantonment or within such other limits as he may define where alone public serv ice vehicles or any specified class or classes of public service vehicles and/or goods vehicles may stand indefinite ly or for such period as may be specified or public service vehicles may stop for a longer time than is necessary for the taking up and setting down of passengers.
715 The District Magistrate, Mathura by his order dated 22.5.1986 declared and determined plot Nos. 701 and 702 in the Town Area, Baldev (Mathura) as a bus stand/halting place of Baldev, where the stage carriages were directed to stand for the purpose of allowing the passengers of Baldev to get into and to get down from the stage carriages.
Accordingly, the Town Area Committee gave a contract to a private con tractor to collect the necessary fees payable by the bus operators for making use of the area in question which was within its jurisdiction for stopping their buses in accord ance with the order passed by the District Magistrate.
The appellant, a person providing transport service in the District of Mathura, challenged the said order dated May 22, 1986 and the order of the Town Area Committee the levy fees by filing a Civil Writ Petition No. 501 of 1986 before the High Court of Allahabad.
The Writ Petition was dismissed by the High Court on 8.9.1986.
Hence the appeal by special leave.
Allowing the appeal.
the Court, HELD: Rule 93 of U.P. Motor Vehicles Rules, 1940 only authorises the District Magistrate to exercise the powers under Section 76 of the which is confined to the question of determination of parking places and halting places which are not the same as bus stands which can only be notified by the Regional Transport Author ity under section 68(2)(r) of the Act.
[721B] In the instant case no order has been passed by the Regional Transport Authority, Mathura to determine the area in question as a bus stand and the District Megistrate cannot be equated with the Regional Transport Authority constituted under the Act.
Therefore, the order dated 22.5.1986 passed by the District Magistrate and also the letter dated 10.10.1986 written by the Executive Officer of Town Area Committee, Baldev to the President of the Union requiring the bus operators to stop their buses at the bus stand and to start from there and to permit the passengers to get into and to get out of their buses at that bus stand is not in order.
[721C E] T.P. Ibrahim vs Regional Transport Authority, Tan/ore, ; ; Municipal Board, Puskar vs State Transport Authority, Rajasthan and Ors., [1903] Supp.
2 SCR 373; and Municipal Council, Bhopal vs Sindhi Sahiti Multipurpose Transport Co op.
Society Ltd. & Anr. ; , followed.


judgement:
Criminal Appeal No. 74 of 1978.
From the Judgment and Order dated 3.11.1976 of the Gujarat High Court in Criminal Appeal No. 95 of 1975.
Girish Chandra and M .N.
Shroff for the Appellant.
Dalveer Bhandari and S.K. Jain for the Respondents.
The Judgment of the Court was delivered by THAKKAR, J.
A passenger travelling by a train, (respond ent No. 1 herein) who had adorned his waistline with a waistchain (kandora) weighing 820 grammes, which according to the prosecution, was made of pure gold and was coated with mercury so as to give an appearance of being made of silver was acquitted by the trial court relying on the evidence of a licensed gold dealer as a defence witness, who, as per the narration in para.
17 of the judgment of the trial court, stated that: " . . such chains are put on as 'kando ra ' on the waist of ladies and gents in Rajas than.
He had sold such kandoras and seen people putting on such kandoras in Rajasthan State on their waist.
Such chains or kandoras can be prepared out of pure gold as well as mixed gold.
In old times 680 such kandoras used to be prepared out of pure gold.
In these days such type of kandoras are sold out to us by people.
The witness further states that the design of muddamal chain was much in vogue in Rajasthan as because of unsoldered hooks it would fetch full value on sale.
By pure gold he meant gold of more than 99.60 purity or 24 carats purity.
According to him about 25 years back sharaps of Rajasthan were not allowed to sell gold of less purity than 99.60 under Mewari State Law . . ".
The Learned Trial magistrate persuaded himself that the aforesaid evidence established that it was an ornament and not primary gold.
The learned Magistrate acted with an impropriety in making himself a witness for the defence by observing: " . .
I have seen the seized gold chain myself in court.
It cannot be called in unfinished state or form.
It is an ornament . . " The trial court in these premises held that what was seized was an 'ornament ' and not 'primary gold '.
The trial court accordingly acquitted the respondent accused of the charge for an offence under Section 85 of the Gold (Control) Act of 1968.
It is a matter of great concern that the High Court confirmed this finding by overlooking a significant circum stance which stood out a mile.
If the chain was bona fide worn as an ornament, it would not have been plated with silver.
The desire to show off being the basic purpose of wearing an ornament, one may subject an ornament of silver to gold plating.
But one would not subject an ornament of pure gold to silver plating.
It was obvious that it was a deceitful device to evade the law.
Be that as it may, this aspect need not be probed further in view of the fact that the appeal preferred by the State against the order of acquittal in so far as it concerns the offence under Section 85 of the Gold (Control) Act, 1968 was not pressed.
Suffice it to say that the approach made by the trial court evinces a permissive and over indulgent attitude towards the viola tors of laws enacted to prevent and punish economic of fences.
The occasion for approaching this Court has been provid ed by the view taken by the High Court in regard to the charge for an offence under Section 135(1) read with Section III of the .
The charge against respondent No. 1 was that he was concerned with acquisition, carriage, keep ing or concealing with the goods which were liable to be confiscated under Section III having regard to the fact that there was a prohibition against the import into India of goods which 681 were found in his possession namely pure gold of the speci fied fineness i.e. 99.60 or 24 carat.
It needs to be re called that Respondent No. 1 had adorned himself with a gold chain which was coated with mercury in order to give it an appearance that it was made of silver.
The trial court disregarded the evidence of P.W.3, the gold smith who certi fied that the chain was made of pure gold and that the presumption under Section 123(1) of the could not be raised as in the opinion of the learned Magistrate, P.W. 1 Mahida, Superintendent of Customs who had made the seizure could not have "entertained a reasonable belief" that the article in question was made of smuggled gold.
The trial court also found fault in regard to the proof of report of the Mint Master that the article in question was made of pure gold of the specified fineness.
The High Court confirmed the acquittal on all the three grounds.
The request made by the learned Assistant Public Prosecutor for adducing additional evidence under Section 391 of the Code of Criminal Procedure in order to remove the alleged formal defect in the proof of the Mint Master was rejected.
That is why the matter has been brought before this Court by way of the present appeal.
P.W. 1, Superintendent of Customs Shri Mahida testified that he had seized the article in question in the reasonable belief that the same was an article made of smuggled gold.
The acceptance of this evidence would result in the burden of proof being shifted on the person from whom the article was seized to establish that it was not smuggled gold in view of the statutory provision Section 123 of Customs relating to burden of proof which would justify raising the presumption that the article in question was made of smug gled gold.
Whether or not the 1.
Burden of proof in certain cases (1) Where any goods to which this section applies are seized under this Act in the reasonable belief that they arc smuggled goods, the burden of proving that they are not smuggled goods shall (a) in a case where such seizure is made from the possession of any person. (i) on the person from whose possession the goods were seized; and (ii) if any person, other than the person from whose possession the goods were seized, claims to be the owner thereof, also, on such other person; (b) in any ' other case, on the person, if any who claims 10 be the owner of the goods seized, 2.
This section shall apply to gold, diamonds, manufacturers of gold or diamonds.
watches and any other class of goods which the Central Government may by notification in the Official Gazette specify.
" 682 official concerned had seized the article in the "reasonable belief" that the goods were smuggled goods is.not a question on which the Court can sit in appeal.
The law to this effect has been declared in no ambiguous terms in Pukhran vs
D.R. Kholi; , = 1962 (3) Supp.
S.C.R. 866.
This Court has administered caution to the Courts not to sit in appeal in regard to this question and has observed that if prima facie there are grounds to justify the belief the Courts have to accept the officer 's belief regardless of the fact whether the court of its own might or might not have entertained the same belief.
The law declared by this Court is binding to the High Court and it was not open to the High Court to do exactly what it was cautioned against by this Court.
Section 123 of the Act does not admit of any other construction.
Whether or not the officer concerned had entertained reasonable belief under the circumstances is not a matter which can be placed under legal microscope, with an over indulgent eye which sees no evil anywhere within the range of its eyesight.
The circumstances have to be viewed from the experienced eye of the officer who is well equipped to interpret the suspicious circumstances and to form a reasonable belief in the light of the said circumstances.
In the present case the concerned official had mentioned three circumstances which made him entertain the reasonable belief that the article was a smuggled one viz: (1) On the basis of the prior information he was alert and was on the look out, watching the movements of respond ent No. 1.
(2) The chain which had adorned the waistline of respond ent No. 1 was coated with mercury so as to give an appear ance of being made of silver.
(3) As per the opinion of the goldsmith it was made of pure gold.
If these circumstances did not make the Superintendent of Customs entertain a reasonable belief that it was a smuggled article, he was not fit to be an Officer of the Customs Department.
The circumstance that the chain was coated with mercury and given an appearance of having been made of silver though it was made of pure gold of 99.60 purity or 24 carat, was sufficient even for a layman, not to speak of a Customs official, to entertain the belief that it was smug gled gold.
Would any one who was wearing an article as an ornament, evidently for ostentious purposes, given the article of pure gold the appearance of being made of silver? To repeat the observation made earlier one might coat an article of silver to give an appearance of having been made of gold but no one would ordinarily take the trouble and incur the expenditure to 683 coat an article of gold in order to give it an appearance of having been made of silver.
This was an extremely unusual circumstance which would have aroused the suspicion of anyone.
When the goldsmith was summoned at the Railway Station to test the article on the spot, and he expressed the opinion that it was made of pure gold, there was no scope for taking any other view.
Even if a layman, let alone a judge, were to ask himself the question as to whether in these circumstances he would have entertained a reasonable belief that the article was a smuggled article inasmuch as gold of this purity is manufactured only in foreign coun tries which have sophisticated equipment and the further fact that an attempt to camouflage the article was made by the person concerned his commonsense would not have given himself any other answer.
The conduct of respondent No. 1 in coating the article of pure gold to make it appear as if it was of silver was itself a conduct which could have provided the basis for entertaining a reasonable belief it being a relevant piece of evidence as per the law declared by this Court in Isardas Daulat Ram & others vs The Union of India & others, [1962] Suppl.
1 S.C.R. 358 = A.I.R. 1966 SC, 1867.
The view taken by the High Court is altogether unreasonable and accordingly it cannot be sustained.
The next question which arises is as regards the request made by the learned Assistant Public Prosecutor for adducing additional evidence in order to prove letter exhibit 26 received from the Mint Master certifying that the article in question was made of gold of the purity of 99.60.
The request was made in order to invoke the powers of the Court under Sec tion 391 of the Code of Criminal Procedure, 1973, which inter alia provides that in dealing with any appeal under Chapter XXIX the appeal court, if it thinks additional evidence to be necessary, shall record its reasons and may either take such evidence itself or ask it to be taken by a Magistrate.
The High Court rejected the prayer on the ground that it did not consider it "expedient in the interests of justice to open a new vista of evidence" in view of the fact that the offence had taken place six years back.
The mere fact that six years had elapsed, for which time lag the prosecution was in no way responsible, was no good ground for refusing to act in order to promote the interests of justice in an age when delays in the Court have become a part of life and the order of the day.
Apart from the fact that the alleged lacuna was a technical lacuna in the sense that while the opinion of the Mint Master had admittedly been placed on record it had not been formally proved the report completely supported the case of the prosecution that the gold was of the specified purity.
To deny the opportuni ty to remove the formal defect was to abort a case 684 against an alleged economic offender.
Ends of justice are not satisfied only when the accused in a criminal case is acquitted.
The Community acting through the State and the Public Prosecutor is also entitled to justice.
The cause of the Community deserves equal treatment at the hands of the court in the discharge of its judicial functions.
The Commu nity or the State is not a person non grata whose cause may be treated with disdain.
The entire Community is aggrieved if the economic offenders who ruin the economy of the State are not brought to books.
A murder may be committed in the heat of moment upon passions being aroused.
An economic offence is committed with cool calculation and deliberate design with an eye on personal profit regardless of the consequence to the Community.
A disregard for the interest of the Community can be manifested only at the cost of forfeiting the trust and faith of the Community in the system to administer justice in an even handed manner with out fear of criticism from the quarters which view white collar crimes with a permissive eye unmindful of the damage done to the National Economy and National Interest.
The High Court was therefore altogether unjustified in rejecting the application made by the learned Assistant Public Prosecutor invoking the powers of the Court under Section 391 of the Code of Criminal Procedure.
We are of the opinion that the application should have been granted in the facts and cir cumstances of the case with the end in view to do full and true justice.
The application made by the learned Assistant Public Prosecutor is therefore granted.
The High Court will issue appropriate directions for the recording of the evi dence to prove the report of the Mint Master under Section 391 Cr.
P.C. when the matter goes back to High Court and is listed for directions.
The appeal is therefore allowed.
The order of acquittal is set aside.
The matter is remitted to the High Court for proceeding further in accordance with law in the light of the abovesaid directions.
P.S.S. Appeal al lowed.

dataset_name: IN-Abs

summary/full:
The respondent accused, a rail passenger, was found by the Customs Officer wearing a waistchain weighing 820 gms., made of pure gold and coated with mercury so as to give an appearance of being made of silver.
The goldsmith who was summoned to the railway station to test the article on the spot certified that it was made of pure gold.
The article was seized and he was charged for offences under section 85 of the Gold (Control) Act, 1968 and section 135(1) read with section III of the .
The trial court held that what was seized was an 'ornament ' and not 'primary gold ' and acquit ted the accused respondent of the charge under section 85 of the Gold (Control) Act.
Disregarding the evidence of the gold smith it took the view that the presumption under section 123 of the could not be raised as the Customs official who had made the seizure could not have entertained a rea sonable belief that the article in question was made of smuggled gold.
It also found fault in regard to the proof of report of the Mint Master that the article in question was made of pure gold of the specified fineness.
The High Court confirmed the acquittal and rejected the request made by the prosecution for adducing additional evidence under section 391 of the Code of Criminal Procedure in order to remove the alleged formal defect in the proof of the Mint Master.
678 Allowing the appeal by the State, the Court, HELD: 1.1 The view taken by the High Court that the presumption under section 123 of the that the seized article was smuggled gold could not be raised was altogether unreasonable and cannot be sustained.
[681E F] 1.2 Whether or not the official concerned had seized the article in the "reasonable belief ' that the goods were smuggled goods was not a question on which the Court could sit in appeal.
If prima facie there were grounds to justify the belief the Courts have to accept the officer 's belief regardless of the fact whether the Court of its own might or might not have entertained the same belief.
Section 123 of the does not admit of any other construction.
[682A C] Pukhran vs D.R. Kholi, [1962] 3 Supp.
S.C.R. 866, applied.
In the instant case, the conduct of respondent No.1 in coating the article of pure gold with mercury to make it appear as if it was of silver was itself a conduct which could have provided the basis for entertaining a reasonable belief that the article was a smuggled article.
This was an extremely unusual circumstance which would have aroused the suspicion of anyone.
When the goldsmith was summoned at the railway station to test the article on the spot, and he expressed the opinion that it was made of pure gold, there was no scope for taking any other view.
The acceptance of this evidence would, in view of the provisions of section 123 of the , result in the burden of proof being shifted on the person from whom the article was seized to establish that it was not smuggled gold, which would justify raising the presumption that the article in question was made of smuggled gold.
[683C; 681E] lsardas Daulat Ram & Ors.
vs The Union of India & Ors., [1962] Suppl.
1 S.C.R. 358, referred to. 2.
The High Court was altogether unjustified in reject ing the application of the prosecution invoking the powers of the Court under section 391 of the Code of Criminal Procedure for reception of additional evidence.
The prayer was reject ed by the High Court on the ground that it did not consider it 'expedient in the interests of justice to open a new vista of evidence ' in view of the fact that the offence had taken place six years back.
The mere fact that six years had elapsed, for which time lag the prosecution was in no way responsible was no good ground for refusing to act in order to promote the ends of justice in an age when 679 delays in the Court have become very common.
The opinion of the Mint Master, which had admittedly been placed on record, though had not been formally proved, completely supported the case of the prosecution that the gold was of the speci fied purity.
To deny the opportunity to remove the formal defect was to abort a case against an alleged economic offender.
The matter remitted to the High Court.
An appro priate direction shall be issued for recording of the evi dence to prove the report of the Mint Master.
[683F H; 684A; E F] Ends of justice are not satisfied only when the accused in a criminal case is acquitted.
The Community acting through the State and the Public Prosecutor is also entitled to justice.
The cause of the Community deserves equal treat ment at the hands of the court in the discharge of its judicial functions.
The entire Community is aggrieved if the economic offenders who ruin the economy of the State are not brought to book.
[684A B]


judgement:
Civil Appeal No. 383(N) of 1973.
From the Judgment and Order dated 7.3.1972 of the High Court of Kerala in S.A. No. 549 of 1971.
G. Viswanath Iyer and Narayan Nettar for the Appellants.
T.S. Krishnamurthy Iyer, Vijay Kumar Verma and Madhu Moolchandani for the Respondent.
The Judgment of the Court was delivered by KHALID, J.
The appellants are the defendant in O.S. 55 of 1952 in the Sub Court, Mangalore.
Their father had ob tained sale of the property involved in this appeal by a document dated 28 4 1939, executed by the widowed mother of the respondent plaintiff who was a minor, aged six years, she acting as his guardian.
After he attained majority, he filed a suit for a declaration that the said sale deed was invalid and was not binding upon him and for recovery of possession thereof.
The Trial Court dismissed the suit.
In appeal, the appellate court confirmed the decree and Judg ment of the Trial Court.
In second appeal, the High Court of Kerala, by its Judgment, dated 27 11 1969, set aside the Judgments of the Courts below, allowed the appeal and de creed the suit.
The decree directed recovery of possession of the properties on payment of the sum of Rs.4,700 being the sale consideration and a sum of Rs.4,164 being the compensation for improvements.
On 15 9 1970, the decree holder, respondent herein, filed R.E.P. 68/70 in the Sub Court, Kasargod, depositing the amount due under the decree of the High Court and pray ing for delivery of the properties from the possession of the Judgment debtors, the appel 703 lants.
Execution was resisted by the appellants on the ground that no delivery could be ordered without payment of the value of improvements effected by them subsequent to the year 1952.
They also filed R.E.A. No. 146/70 for the issue of a commission to re value the improvements, claiming that they had effected improvements to the tune of Rs.80,000.
The respondent contested this application, denied that the appellants had made any improvements and contended that the question of improvements had been concluded by the Judgment of the High Court in the second appeal.
The executing Court dismissed this petition.
Aggrieved by this order, the appel lants filed an appeal before the District Judge, Tellicher ry, who allowed the appeal by his Judgment dated 12th April, 1971 and set aside the order of the executing Court.
The matter was taken to the High Court by way of Execution Second Appeal.
A Division Bench of the Kerala High Court, on a reference from a learned Single Judge, set aside the Judgment of the District Judge by its Judgment dated 7 3 1972 and restored the order of the Subordinate Judge and directed recovery of the property.
The appellants, moved the High Court for grant of certificate of fitness, which prayer was declined and hence have filed this appeal, by special leave.
The suit was filed by the plaintiff within three years 'of his attaining majority alleging that the assignee took advantage of the ignorance and helpless condition of the plaintiff 's mother, who was a young widow and that there was neither legal necessity nor pressure from the estate for effecting the sale.
He averred in the plaint that there was a partition decree in his favour in which he had been allot ted these properties with outstanding amounting to Rs.5,300 and mesne profits to the extent of Rs.1,549 which were sufficient to discharge the debts due by the estate.
The entire immovable properties belonging to the plaintiff, including the family residential house, were alienated.
The High Court in second appeal on the trial side held that the alienation was not something which a man of ordinary pru dence would have effected, had the properties been owned by him and thus held it not binding on the plaintiff.
The learned Judges of the Division Bench then considered the question of the defendant 's right for compensation for improvements, if any, effected.
This claim was denied.
In the written statement filed by the defendant, as noted by the High Court, all that was claimed was that improvements had been effected to the tune of Rs.4,000.
But no specific claim was made for compensation in the event of eviction.
The High Court also noted that the averment regarding im provements was itself made in the context of denying that the property would have fetched Rs.11,000 at the time of sale.
In the 704 additional written statement filed by the defendant a claim was made that improvements to the value of Rs.11,168 had been effected after the sale date and that under any circum stances, the defendants were entitled to just and adequate compensation for them.
The Division Bench adverting to this aspect of the case held against the appellants with the following observation: "The basis of the claim has not been stated anywhere, and no averments of fact necessary for attracting section 51 of the Transfer of Property Act or Section 4 of the Kerala Com pensation for Tenants ' Improvements Act, 1958, have been made.
Hence, the claim for value of improvements would appear to be unsustainable.
However, no objection has been taken by the appellant in the lower appellate court or in this Court to the finding of the trial court that in case of eviction, the defendants would be entitled to Rs.4,164.8.0 as compensation for improvements.
" It was with these observations regarding improvements that the appeal was allowed and the suit for recovery decreed.
When the matter reached the High Court in second appeal on the execution side the matter was heard by another Divi sion Bench of the Kerala High Court.
The Division Bench relied upon the following observation in the Judgment of the Division Bench on the original side and declined relief of value of improvements to the appellants, with the following observation: The Division Bench considered the question of value of improvements in paragraph 9 of the Judgments and Unnikrishna Kurup, J. who spoke for the Division Bench has stated in unequivocal terms: "Hence, the claim for value of improvements would appear to be unsustainable.
However, no objection has been taken by the appellant in the lower appellate court or in this Court to the finding of the trial court that in case of eviction, the defendants would be entitled to Rs.4,164,8.0.
as compensation for improve ments.
" We may in passing on also observe that the appellant had filed an application for special leave against the first Judgment in second appeal.
which was dismissed.
The claim of value of improvements was 705 rejected by the Division Bench with the following observa tion: "The sum of Rs.4,164.8.0 was directed to be paid, we repeat, not because the respondents were entitled to it, but because the appellant agreed to pay it.
" It is with these materials that the present claim of the appellants for value of improvements has to be considered.
We may indicate at this stage itself that the Commissioner appointed at the instance of this Court, assessed the value of improvements at Rs.1,00,031.40, by his report dated 12 10 1972.
The learned counsel for the appellant made a forceful plea that the Judgment of the High Court was wrong and that the conclusion arrived at by the High Court was as a result of a confusion regarding the pleadings in the case and the question of law involved.
He stated that at the trial stage an issue was struck as issue No. 8 regarding the value of improvements.
This question was adjudicated and the value of improvements was adjudged after due consideration of this issue.
His further submission is that the appellants were tenants within the meaning of Section 2(d) of the Kerala Compensation for Tenants Improvements Act, 1958 (Act 29 of 1958), and that the claim for value of improvements was made on the strength of Section 5 of the Act.
He relied upon a Division Bench ruling in Veerasikku Gounder vs Kuri an, 1 in support of his contention that the appellants were tenants and were entitled to the value of improvements.
The property is situated in the old South Kerala Dis trict which formed part of the then Madras Presidency.
At the time the suit was filed, there was no enactment in force in that area, enabling persons in possession of property belonging to another to claim value improvements in a suit for recovery of possession.
The area, where the property in dispute is situated, became part of Kerala when the said State was formed.
When Act 29 of 1958 was enacted, there were two enactments in existence, applicable to the Travan core Cochin and the Malbar Area, regarding the claims for improvements for tenants in possession.
They are the Travan core Cochin Compensation for Tenants Improvements Act, 1956 and the Malbar Compensation for Tenants Improvements Act, 1899.
Both these Acts were repealed when Act 29 of 1958 was enacted.
Section 2(d) of the new Act defines 'tenant ', the relevant portion of which reads as follows: "2(d) 'tenant ' with its grammatical variations and cognate 706 expression includes (i) . . . (ii) . . (iii) a person who comes into possession of land belonging to another person and makes improvements thereon in the bona fide belief that he is entitled to make such improvements.
" The appellants contention is that they satisfy this defini tion and that, therefore, they are entitled to the benefit of this Act.
Section 4 deals with the entitlement to compen sation for improvements for tenants for the improvements made by them, or their predecessor in interest on eviction.
Section 5 states that when in a suit for eviction instituted against the tenant the plaintiff succeeds and the defendant establishes a claim for compensation due under Section 4 for improvements, the Court shall ascertain the amount of com pensation and shall pass a decree for payment of the amount so found due to the tenants.
Subsection 3 of this section gives an additional right to such tenants for value of improvements effected after the decree by evaluation.
We read the section for a correct understanding of the same: "5(3) The amount of compensation for improve ments made subsequent to the date upto which compensation for improvements has been ad judged in the decree and the re valuation of an improvement, for which compensation has been so adjudged, when and in so far as such revaluation may be necessary when reference to the condition of such improvements at the time of eviction as well as any sum of money accru ing due to the plaintiff subsequent to the said date for rent, or otherwise, in respect of the tenancy, shall be determined by order of the court executing the decree and the decree shall be varied in accordance with such order.
" It is basing on this Section that the claim is made for value of improvements by the appellants.
The suit was filed in 1952.
At the time there was no enactment available for the defendant to claim value of improvements.
Neither in the original written statement nor in the additional written statement 707 dated 15 11 1954, did the defendants claim the value of improvements under the Act.
It is true that at the execution stage a plea was raised under Section 5 of Act 29 of 1958.
But it is necessary to remember that in the Judgment in the Second Appeal No. 464 of 1964, the Division Bench decided on 27 11 1969, that no claim for .improvements was made either under Section 51 of the Transfer of Property Act or under Section 4 of Act 29 of 1958.
Moreover, the High Court also found that no objection was taken by the appellants in the lower appellate court or before the High Court to the find ing that in case of eviction the defendant would be entitled to Rs.4,164.8.0 as compensation.
This Judgment was rendered when Act 29 of 1958 had already come into force.
Against this Judgment this Court was moved by filing a special leave petition and that was dismissed.
Thus, there is a concluded finding against the appellants that they were not entitled to anything more than the value of improvements decreed by the trial Court.
In the Judgment under appeal also the High Court has reiterated the fact that the appellants were being paid the amount mentioned above not because they were entitled to it, but because the appellant agreed to pay it.
The learned counsel for the appellants Shri G. Vishwanatha Iyer tries to over come the finality of this Judgment with the contention that the value of improvements has to be ascertained under the Act on the execution side and his claim cannot be de feated by flourishing the Judgment of the High Court and the dismissal of the S.L.P.
We find it difficult to accept the appellant 's case.
Section 5 comes into operation only when a defendant against whom a suit for eviction is instituted establishes a claim for compensation under the Act.
The Judgment of the High Court rendered in 1969 has clearly held that the value of improvement awarded was not under Section 4 of the Act but was an amount agreed by the plaintiff.
The appellants cannot succeed and have not succeeded in satisfy ing us that they ever made a claim for compensation under Section 4 of the Act and succeeded in such a claim.
There fore their further claim for getting the improvements reval ued cannot be accepted.
We do not wish to pronounce upon the question whether a person like the appellants who came into possession of the properties of a minor through his young widowed mother could be brought within the definition of tenant in Section 2(d)(iii).
This matter will have to be considered in an appropriate case and the correctness of the decision of the Kerala High Court brought to our notice by the appellant 's counsel tested then.
The appeal has only, therefore, to be dismissed.
708 However, we feel that some equity has to be worked out in this case.
This Court issued notice in the S.L.P. on 20 6 1972.
On 1 9 1972 stay of operation of decree was granted, and an opportunity was given to enable the parties to come to a compromise.
On 18 9 1972, this Court directed a Commissioner to be appointed to assess the value of improve ments which were made subsequent to the date upto which the compensation for improvements had already been adjudged.
It was pursuant to this direction that a report was submitted showing the value of improvements at more than a lakh of rupees.
On 23 2 1973, this Court granted special leave and stayed the operation of the decree on condition that the appellants deposit a sum of Rs.5,000 each year in the Trial Court and permitting the respondents to withdraw the same on furnishing security.
On April 1, 1980, this Court passed an order as follows: "Counsel on both sides, after arguments were heard in substantial measure, agreed with us that this was a case pre eminently fit for settlement.
The question of law raised is a ticklish one and the consequences will be 'all or nothing '.
The suggestion which appears to be acceptable to counsel on both sides is one of two alternatives, the option to choose being left to the respondent, since he has won in the High Court.
The alternatives are: (a) the appellant is to pay a sum of Rs.50,000 to the respondent in addition to the respondent being entitled to withdraw an amount of Rs.30,000 plus Rs.8,000 and odd lying in deposit to the credit of the suit.
In this event the appeal will stand allowed and the property will be kept by the appellant as owners of the property; (b) alternatively, the respondent will pay to the appellant a sum of Rs.50,000 and the appellant will be further entitled to withdraw a sum of Rs.30,000 plus Rs.8,000 now lying in deposit to the credit of the suit.
Thereupon the appellant will surrender posses sion forthwith to the respondent.
The property be kept in the same condition as it is now.
Post the matter on Tuesday i.e. 8 4 80.
" When the matter came before us for hearing, we asked the counsel whether a compromise was possible.
We found that the parties were not agreeable for a compromise.
The appellants have been in 709 possession of the properties ever since 1934 and have been enjoying the income therefrom.
It is true that they have effected improvements to the property.
That being so, we feel that the appellants should not be left without any compensation for the improvements effected.
We make this observation purely on an equitable basis.
We direct the respondents to pay to the appellants a sum of Rs.30,000 in addition to the amount decreed.
On such payment the appel lants shall deliver the property to the respondents.
The respondents will be at liberty to withdraw the amounts deposited by the appellants in the Trial Court pursuant to the orders of this Court if not already withdrawn.
A.P.J. Appeal dis missed.

summary/full:
The appellants ' father had obtained sale of the property in question during the minority of the respondent through his widowed mother, who was acting as his guardian.
The respondent, on attaining majority, filed a suit for declara tion that the said sale deed was invalid and not binding upon him and for recovery of possession of the property.
The judgment and decree of the trial Court dismissing the suit was affirmed by the Appellate Court.
In Second Appeal, the High Court set aside the judgments of the Court below, allowed the appeal and decreed the suit, directing recovery of possession of properties on payment of Rs.4,700 being the sale consideration and a sum of Rs.4,164 being the compensa tion for improvement.
The Special Leave Petition filed by the appellants was dismissed.
The respondent filed execution, which was resisted by the appellants on the ground that the properties could not be ordered to be delivered without payment of the value of improvements effected by them subsequent to the year 1952.
They also filed an application for the issue of a commission to revalue the improvements, claiming that they had effected improvements to the tune of Rs.gO,O00.
The respondent con tested this application denying that the appellants had made any improvements and contended that the question of improve ments had been concluded by the judgment of the High Court in the Second Appeal.
The executing Court dismissed this petition.
The District Judge allowed the appeal filed by the appellants and set aside the order of the executing Court.
The High Court set aside the judgment of the District Judge and restored the order of the executing Court and directed recovery of the property.
The High Court observed that "the sum of Rs.4,164.8.0 was directed to be paid not because the respondents were entitled to it, but because the appellant agreed to pay it. ' ' In the appeal to this Court, on behalf of the appellants it was 701 contended: (1) that the judgment of the High Court was wrong and that the conclusion arrived at by the High Court was as a result of confusion regarding the pleadings in the case and the question of law involved; (2) that at the trial stage an issue was struck as issue No. 8 regarding the value of improvements which was adjudicated and the value of improvements was adjudged; (3) that the appellants were tenants within the meaning of section 2(d) of the Kerala Compen sation for Tenants Improvements Act, 1958 (Act 29 of 1958) and that their claim for value of improvements was made on the strength of section 5 of the Act and, therefore, they are entitled to the value of improvements; and (4) that the value of improvements has to be ascertained under the Act on the execution side and their claim cannot be defeated by flourishing the judgment of the High Court and the dismissal of the S.L.P. Dismissing the Appeal, HELD: 1.
The suit was filed in 1952.
At that time there was no enactment available for the defendant to claim value of improvements.
Neither in the original written statement nor in the additional written statement dated 15.11.1954, did the defendants claim the value of improvements under the Act.
Though at the execution stage a plea was raised under section 5 of Act 29 of 1958, but in the Judgment in the Second Appeal No. 464 of 1964 dated 27.11.1969, the Division Bench decided that no claim for improvements was made either under section 51 of the Transfer of Property Act or under section 4 of Act 29 of 1958.
Moreover, the High Court also found that no objection was taken by the appellants in the lower Appellate Court or before the High Court to the finding that in case of eviction the defendant would be entitled to Rs.4,164.8.0.
as compensation.
This judgment was rendered when Act 29 of 1958 had already come into force.
Against this judgment a special leave petition was filed and dismissed.
Thus, there is a concluded finding against the appellants that they were not entitled to anything more than the value of improvements decreed by the trial Court.
[706H; 707A C] 2.
Section 5 comes into operation only when a defendant against whom a suit for eviction is instituted establishes a claim for compensation under the Act.
The Judgment of the High Court rendered in 1969 has clearly held that the value of improvement awarded was not under section 4 of the Act but was an amount agreed by the plaintiff.
The appellants cannot succeed and have not succeeded in satisfying this Court that they ever made a claim for compensation under section 4 of the Act and succeeded in such a claim.
Therefore, their further claim for getting the improvements revalued cannot be ac cepted.
[707E G] 702 3.
The question whether a person who came into posses sion of the properties of a minor could be brought within the definition of 'tenant ' in section 2(d)(iii) will have to be considered in an appropriate case.
[707G H] 4.
Purely on an equitable basis, the respondent shall pay to the appellants a sum of Rs.30,000 in addition to the amount decreed.
On such payment the appellants shall deliver the property to the respondent.
The respondent shall be at liberty to withdraw the amounts deposited by the appellants in the trial court pursuant to the order of this Court, if not already withdrawn.
[709B C]


judgement:
Criminal Appeal No. 169 of 1987.
From the Judgment and Order dated 11.8.1986 of the Allahabad High Court in Criminal Appeals No. 583, 892 896 of 1985 and Capital Reference No. 2 of 1985.
724 Shakeel Ahmad for the Appellants.
The Judgment of the Court was delivered by SEN, J.
Appellants Asharfi Lal and Babu who are real brothers, are under sentence of death on their conviction under section 302 read with section 149 of the Indian Penal Code, 1860 for having committed the brutal murders of their two nieces Kumari Sumati, aged 14 years and Kumari Kalkanta, aged 20 years, daughters of their pre deceased paternal cousin, and under section 307 read with section 149 of the Indian Penal Code for having attempted to commit the murder of Smt.
Bulakan, widow of Devi, and sentenced to undergo rigorous 'imprisonment for 7 years.
The remaining appellants Ganga Prasad and Hemraj, two sons of Asharfi Lal, and Mata Badal, son of Babu, have been convicted under section 302 read with section 149 of the Indian Penal Code for having committed the two murders in further ance of the common object of their unlawful assembly and each of them sentenced to life imprisonment.
They have also been convicted under section 148 for the attempted murder of Smt.
Bulakan.
There was long drawn litigation between the Smt.
Bulakan on the one hand and the appellants on the other in respect of certain agricultural property.
The last of the series of the litigation was a proceeding initiated under section 145 of the Code of Criminal Procedure, 1973 on a report made by Smt.
Bulakan, P.W. 1.
To wreak their vengeance, the appellants effected an entry on the night between August 13/14, 1984 into the courtyard of the adjoining house where the three ladies were sleeping on three different cots.
The testimony of Smt.
Bulakan, P.W. 1 shows that she woke up hearing the shrieks of her younger daughter Kumari Sumati and found that appellant Mata Badal was perched over the lower part of the body of Kumari Sumati pressing down her legs while appellant Babu repeatedly struck her with a gandasa and severed her neck.
The girl died almost instanta neously; her head hung down the cot partially attached to the neck.
Bulakan further deposes that appellant Ashar fi Lal struck her other daughter Kumari Kalkanta on the neck and face with a banka while appellant Hemra chopped off the right hand of the girl with a gandasa.
She also shrieked and appellant Ganga Prasad struck her on the face and upper part of the body with a gandasa.
She ran from her house through the village abadi and fell down near the house of Kandhai, P.W. 2, which was some 30 40 paces away.
She narrated the incident to Kandhai who immediately ran and informed Bhag wati Prasad Pandey, P.W. 3 who resided some 200 paces away.
The Village Pradhan Bhagwati Prasad Pandey, P.W. 3 accompa nied by some of the villagers arrived at the house of Smt.
Bulakan and saw the 725 deceased Kumari Sumati lying dead on the cot and Kumari Kalkanta lying unconscious in a pool of blood on another cot.
She subsequently died in the hospital.
Learned counsel for the appellants made no endeavour to challenge the conviction of the appellants for having com mitted various offences with which they were charged, and rightly so.
The conviction of the appellants rests on the unimpeachable and truthful evidence of Smt.
Bulakan who was herself the victim of the murderous assault, as conoborated by P.W. 2 Kandhai and P.W. 3 Bhagwati Prasad Pandey.
She is a natural witness and has given a vivid description of the entire incident resulting in the gruesome deaths of her daughters Kumari Sumati and Kumari Kalkanta.
It is estab lished in evidence that immediately after the occurrence she named all the assailants.
The first information report (Exh.
Ka 1) lodged by Bhagwati Prasad Pandcy P.W. 3, the Village Pradhan, contains the names of the assailants.
The 1st Additional Sessions Judge, Barabanki by his judgment and sentence dated August 23, 1985 convicted the two appellants Asharfi Lal and Babu under section 302 of the Indian Penal Code on two counts of murder and awarded them capital punishment.
He also convicted Ganga Prasad and Hemraj, two sons of Asharfi Lal, and Mata Badal, son of Babu, under section 302 read with section 149 and sentenced each of them to undergo life imprisonment.
All the appellants have also been convicted under section 148 of the Indian Penal Code.
The High Court by its judgment dated August 11, 1986 on a careful consideration of the evidence has agreed with the learned Additional Sessions Judge and confirmed the conviction and sentences awarded to the appellants.
In affirming the sentence of death imposed on the two appellants Asharfi Lal and Babu, the High Court observed that on a careful consideration of the entire material, the facts and circumstances and the applicable law, it was satisfied that this was one of the rarest of the rare cases where death penalty is the only appropriate sentence which ought to be imposed on them.
We have heard learned counsel for the appellants mainly on the question of sentence but we are not impressed with his submission.
The two appellants Asharfi Lal and Babu were guilty of a heinous crime out of greed and personal ven geance and deserve the extreme penalty.
This case fails within the test 'rarest of the rare cases ' as laid down by this Court in Bachan Singh vs State of Punjab, as elaborated in the later case of Machhi Singh vs State of Punjab, The punishment must fit the crime.
These were cold blooded brutal murders in which two innocent girls lost their 726 lives.
The extreme brutality with which the appellants acted shocks the judicial conscience.
Failure to impose a death sentence in such grave cases where it is a crime against the society particularly in cases of murders committed with extreme brutality will bring to naught the sentence of death provided by section 302 of the Indian Penal Code.
It is the duty of the Court to impose a proper punishment depending upon the degree of criminality and desirability to impose such punishment.
The only punishment which the appellants deserve for having committed the reprehensible and gruesome murders of the two innocent girls to wreak their personal vengeance over the dispute they had with regard to property with their mother Smt.
Bulakan is nothing but death.
As a measure of social necessity and also as a means of deterring other potential offenders the sentence of death on the two appellants Asharfi Lal and Babu is confirmed.
The appeal is dismissed accordingly.
N.P.V. Appeal dis missed.

summary/full:
The prosecution alleged that in order to wreak their vengeance on account of long drawn litigation in respect of certain agricultural property between P.W. 1 and the appel lants two real brothers and their three sons, the appel lants effected entry on the night of 13/14 8 1984 into the courtyard of the adjoining house where P.W. 1 and her two daughters.
were sleeping and brutally attacked them with gandasas and a banka.
The younger daughter was repeatedly struck with a gandasa and her neck was severed, as a result of which she died instantaneously, while the other daughter was struck on the neck and face with a banka and her right hand was chopped off with the gandasa, and she died later in the hospital.
P.W. 1 was struck on the face and upper part of the body with the gandasa.
She ran from the house through the village abadi and narrated the incident to P.W. 2 who, in turn, informed P.W. 5, the Village Pradhan.
After visit ing the scene of offence, P.W. 3 filed a First Information Report.
The appellants were tried and the two brothers were convicted under Section 302 of the Indian Penal Code on two counts of murder and were awarded capital punishment while the other three appellants were convicted under Section 302 read with Section 149 of Indian Penal Code and sentenced to life imprisonment.
All the appellants were also convicted under Section 148 of the Indian Penal Code.
723 The High Court, affirming the conviction and sentences awarded to the two brothers, observed that it was satisfied that this was one of the 'rarest of the rare cases ' where death penalty was the only appropriate sentence which ought to be imposed on them.
Dismissing the appeal, this Court HELD: 1.1 It is the duty of the Court to impose proper punishment depending upon the degree of criminality and desirability to impose such punishment.
[726B] 1.2 The punishment must fit the crime.
The present cases were cold blooded brutal murders in which two innocent girls lost their lives.
The extreme brutality with which the appellants acted shocks the judicial conscience.
The only punishment which the appellants deserve for having committed the reprehensible and gruesome murders of two innocent girls to wreak their personal vengeance over the dispute they had with regard to property with their mother is nothing but death.
[725H; 726B C] 1.3 Failure to impose death sentence in such grave cases where it is a crime against the society particularly in cases of murders committed with extreme brutality, will bring to naught the sentence of death provided by Section 302 of the Indian Penal Code.
[726A B] 1.4 As a measure of social necessity and also as a means of deterring other potential offenders the sentence of death on the two appellants is confirmed.
[726C] 1.5 The two appellants were guilty of a heinous crime out of greed and personal vengeance and deserve the extreme penalty.
This case falls within the test 'rarest of the rare cases ' as laid down by this Court.
[725G H] Bachan Singh vs State of Punjab, [1980] SCC 684 and Machhi Singh vs State of Punjab, referred to.