ONCriminal Appeal No 680 of 1987
From the Judgement and Order dated 1681984 of the Andhra Pradesh High Court in Crl
A No 604 of 1982
N Santosh Hegde ADN Rao and A Subha Rao for the Appellants
G Prabhakar for the Respondent
The Judgement of the Court was delivered by 877 VRAMASWAMI J
The appellants along 11 others were tried for causing the murder of on Appikatla Tataiah and for causing injuries on Jarugu Rama Koteshwararao PW2 on 24th June 1981 near Manchineeti Cheruyu fresh water tank at or about 800 PM in Machavaram Village
The learned Sessions Judge Krishna Division Machilipatnam by his Judgment dated 1671982 acquitted A 3 A 4 A 6 to A 10 A 12 and A 15 of all the charges
He convicted Kurakula Nagamelleswarao A 1 Jarugu Kotaiah A 2 Appikatla Krishnamurthy A 5 and Appikatla Nagulu A 11 under section 148 Indian Penal Code and sentenced each of them to undergo two years rigorous imprisonment
A 1 was further convicted under section 302 IPC and sentenced to imprisonment for life
A 2 was convicted under section 302 read with section 34 IPC and sentenced to imprisonment for life
A 5 and A 11 were convicted under section 302 read with section 149 IPC and each of them were sentenced to undergo imprisonment of life
Regarding the attack on PW 2 jarugu Rama Koteshwararao the learned Sessions Judge convicted A 1 and A 2 under section 326 IPC read with section 149 and sentenced each of them to undergo rigorous imprisonment for four years
The learned Judge further convicted A 5 and A 11 under section 324 IPC for causing simple hurt to PW 2 and sentenced each one of them to undergo rigorous imprisonment for two years
A 1 and A 2 were also convicted under section 324 read with section 149 IPC and each of them were sentenced to two years rigorous imprisonment
The sentences awarded against each accused under various ground were ordered to run concurrently
The convicted accused preferred Criminal Appeal No 604 of 1982 and the State appealed against the acquittal of the rest of the accused in Criminal Appeal No 630 of 1983
At the time of admission of appeal however the State appeal was dismissed as against A 9 A 10 A 12 A 13 A 14 and A 15 and it was admitted only as against acquittal of A 3 A 4 and A 6 to A 8
The High Court confirmed the conviction and sentence of A 1 A 2 A 5 and A 11 under section 148 IPC
However it alterted the conviction of A 1 and A 2 under section 302 IPC and Section 302 read with section 34 respectively into one under section 148 and section 302 read with section 149 and the sentence awarded thereunder were also confirmed
The High Court also confirmed the conviction and sentences on the accused under sections 326 and 324 read with section 149 and sections 324 read with 878 section 149 IPC
The sentences were directed to run concurrently
the lerned Judges of the High Court dismissed the appeal preferred by the State in respect of acquittal of the other accused
In this appeal Sh
Santosh Hedge Senior Advocate appearing for the accused appellants did not canvass the conviction of the four appellants namely A 1 A 2 A 5 and A 11 under section 324 and 326 IPC and section 324 read with section 149 IPC and section 326 read with section 149 IPC in relation to the attack on PW 2 but without prejudice to his contention that on the facts section 149 IPC could not have been invoked in relation to the offence under section 302IPC
This stand was taken on the basis that the appellants had already served or had almost finished serving the four year terms which was awarded for those offences
The conviction and sentence under section 148 was also not canvassed for the same reason without prejudice the above said contention
He confined his arguments against the convictions and sentences of A 1 A 2 A 5 and A 11 under section 302 read with section 149 IPC
The argument of the learned counsel for the appellant was that in the absence of specific finding to the effect and apart from the four appellants the prosecution has proved the involvement of other persons section 149 IPC cannot be used for convicting for four appellants under section 302
In this connection he also relied on the decisions of this Court in Amar Singh V State of Punjab 1987 1SCC 679 and Maina Singh V State of Punjab 19763SCR651
So far this part of the case is concerned in the present case the High Court observed The lower court has convicted A 1 under section 302 of the Indian Panal Code for attacking the deceased
A 2 was convicted under sections 149 302 rw section 34 324 rw section 149 and 326 IPC for attacking the deceased
A 5 and A 11 were convicted under sections 148 302 rw section 149 324 and 326 rw section 149 IPC
As already observed the facts and circumstances undoubtedly show that there was an unlawful assembly consisting of more than five persons and the common object of the unlawful assembly was to attack and kill the deceased and attack PW 2
As already observed only such of accused whose presence and participation is established can safely be held to be the members of the unlawful assembly
To arrive at such a conclusion we have indicated that the evidence of PW 2 to extent consisting with the earlier versions of exhibit P 2 can 879 safely be accepted to be the basis and if corroboration is necessary the same can be found in the evidence of PWs 1 3 and 4P Ws 2 s evidence is subjected to scrutiny in the light of the contents in exhibit P 2
The consistent version regarding the presence and participation by A 1A 2 A 5 and A 11 can safely be accepted and they can be held to be the members of the unlawful assembly along with some others unidentified persons
The common object of the unlawful assembly along with some others unidentified persons
The common object of the unlawful assembly was to commit murder of the deceased
All of them can be conviction under section 302 read with section 149 IPC in as much as there can be no doubt whatsoever that the object of such an unlawful assembly of which A 1 A 2 A 5 and A 11 are members is to attack the deceased and PW 2
In this context it must also be remembered that PW 2 who received the serious injuries would be the last person to leave out the real assailants and implicate the innocent persons
Emphasis supplied We are of the view that there is some confusion in the statement of the High Court
The charges under section 324 and section 326 read with section 149 and section 326 and section 324 read with section 149 are in relation to the injuries inflicted on PW 2
So far as injuries inflicted on PW 2 is concerned as already stated the conviction and sentence in regard to the same are not canvassed in this appeal
So far as the attack on the deceased is concerned P 1 the statement of PW 1 given to the village Munsif on 2461981 immediately after the occurence stated that  surrounded my husband and my elder brother armed with axes curved knives and spears
Then Kurakula Nagamalleswararao hacked my elder brother with curved knife Yerukala Kathi on the left shoulder
Jargugu Kotiah hacked my elder brother with an axe on the left shoulder
Appikatla Nagulu beat my elder brother on the head with stick portion of the spear
I raised hue and cry loudly that they are killing my husband and my elder brother
On hearing my cries Ummadisetti Pooraniah and my sister in law Srikrishna came there
the above fifteen persons caused injuries to my husband by beating and hacking with axes spears and curved knives Yerukala Kathiwhich were in their hand
My husband succumbed to the knife injuries
 880 It may be seen from this report that there is a bald statement that fifteen persons caused injuries to her husband deceased by beating and hacking with axes spears and curved knives Yerukala Kathi which were in their hands and her husband succumbed to the knife injuries
It did not attribute any overt act to A 1 A 2 A 5 and A 11 who are the appellants in this case
The PW2 gave the statement exhibit P 2 dated 2561981 recorded by the Munsiff Magistrate Avamigadda as a dying declaration which was later taken as a statement under section 157 Code of Criminal Procedure
In this so far as the injuries inflicted on the deceased are concerned he had merely stated The aforesaid four persons and the other eleven persons beat and hacked my younger sisters  husband Appikatla Tataiah and felled him down The charges framed against the accused appellants also stated That you accused Np
1 to 15 on the night of 24th day of June 1981 at about 8PM near the Manchineeti Cheruvu  in Machavaram Village Divi taluk were members of an unlawful assembly and did in prosecution of the common object of which viz in killing Appikatla Tataiah So Chittonna alias Chinna Ammanna an d Jarugu Rama Koteswara Rao So Mangaiah of Machavaram village  Thus the specific prosecution case was that accused 1 to 15 attacked the deceased and no specific overt act was attributed to any of the accused
It is true that PW 1 in her evidence stated that A 1 hacked the deceased on the left side of neck with Yerukala Kathi and the evidence of doctor PW 8 showed that this is injury No 2 which proves fatal by itself
But in the light of the first information report P 1 and the dying declaration exhibit P 2 dated 2561981 of PW 2 recorded by the Munsiff Magistrate which was later on treated as statement under section 57 of the Criminal Procedure Code which did not attribute any specific overt act to any of the appellant accused in this case this case was not accepted by the High Court
It is because of this reason the High Court did not accept the conviction of the appellants 1 and 2 namely accused 1 and 2 under section 302 and section 302 and section 302 read with section 34 accused 1 and 2 under section 302 and section 302 read with section 34 IPC and altered the conviction into one under section 302 read with the section 149 IPC
The learned counsel for the appellant also contended that the evidence of PW 1 apart from the fact it was not accepted by the High 881 Court in so far as it related to the specific overt acts of A 1 2 5 and 11 are concerned are also not acceptable as they are full of infirmities and improbabilities and also by reason of the possibility of improving the case
He had pointed out that though PW 2 and deceased were said to have gone to the Manchineeti Cheruyu fresh water tank to verify whether the paddy bags kept by them for soaking were in tact paddy bags were not found the investigating officer or anybody and they were not recovered
the learned counsel also pointed out the story that PWs 1 and 3 and had gone that side for calls of nature are also not believable as the place were ladies ease was on the opposite direction and not in the direction of the fresh water
The houses of the deceased and PW 2 and that of Pw 4 were about 150 yards away from the scene of occurence and the occurrence is stated to have taken place at 800 PM
These ladies ran to the scene of occurrence on hearing the cries of the deceased and PW 2
It was also pointed out that though they stated that when they ladies went to answer the calls of nature they had taken along with them chambus or lotas with water and those chambus or lotas were not recovered
In her evidence PW 1 stated that when she found her husband lying dead with number of injuries and blood everywhere she fell over her husband and wept but none of her blood stained clothes were recovered
Though they had stated that when she found her husband PW 2 injured she carried him but her blood stained clothes were also not recovered
Though they had stated before going to the village Munsiff for giving the complaint and after taking PW2 to the house they have changed the clothing their evidence clearly throw a doubt as to the presence at the time of occurrence
It should be kept in mind that PW1 is the wife of the deceased PW3
And thus they are all closely related and the possibility of an exaggeration or of improving in their evidence cannot be ruled out
It may also be pointed out that these witnesses stated that there was electric lamp post and there was no question of any electric light being on
There is ample evidence of rivalry between the parties also
In these circumstances their presence at the time of occurrence is doubtful and it is also not possible to believe the evidence of PWs 123 and 4 in respect overt acts attributed to the four appellants herein
In fact as already stated the High Court was not willing to accept their evidence in this regard and that is why the conviction was made under section 302 read with section 149 IPC
882 However the learned Judges over looked that since the accused who are are convicted were only four in number and the prosecution has not proved the involvement of other persons and the courts below have acquitted all the other accused of all the offences section 149 cannot be invoked for convicting the four appellants herein
The learned Judges were not correct in stating that A1 A2 A5 and A11 can be held to be the members of the unlawful assembly along with some others unidentified persons  on the facts and circumstances of this case
The charge was not that accused 1 2 5 and 11 and others  or and other unidentified persons formed into an unlawful assembly but it is that you accused 1 to 15 who formed into an unlawful assembly
It is not the prosecution case that apart from the said 15 persons there were other persons who were involved in the crime
When the 11 other accused were acquitted it means that their involvement in the offence had not been proved
It would not also be permisible to assume or conclude that others named or unnamed acted conjointly with the charged accused in the case unless the charge itself specifically said so and there was evidence to conclude that some others also were involved in the commission of the offence conjointly with the charged accused in furtherance of a common object
In Maina Singh s case supra the appellant in that case and four others were charged with offences under sections 302149 IPC the appellant with having shot at the deceased and the other accused with giving blows to the deceased with a sharp edged weapon
The Trail Court acquitted the four accused and convicted the appellant under section 302 read with section 34
The High Court dismissed the appeal for the State against the acquittal as also the appellants appeal against the conviction
In the appeal before the Supreme Court it was contended for the appellant that it was not permissible to take the view that a criminal act was done by the appellant in furtherance of the common intention of other co accused when those accused who had been named had all been acquitted and that all that was permissible for the High Court was to convict the appellant of an offence which he might have committed in his individual capacity
The head note in the report brings the ratio of the judgement correctly and that may be quoted In a given case even if the charge disclosed only the named persons as co accused and the prosecution witness confined their testimony to them it would be permissible to conclude that others named or unnamed acted cojointly with one of the charged accused if there was other 883 evidence to lead to that conclusion but not otherwise
The charge in the present case related to the commission of the offence of unlawful assembly by the appellant along with four named co accused and with no other person
The trial in fact went on the basis throughout
There was also no direct or circumstantial evidence to show that the offence was committed by the appellant along with any other unnamed person
So when the other four co accused had been given the benefit of doubt and acquitted it would not be permissible to take the view that there must have been some other person alongwith with the appellant in causing injuries to the deceased
the appellant would accordingly be responsible for the offence if any which could be shown to have been committed by him without regard to the participation of others
The facts in the Amar Singh s case supra in short were that seven accused were charged for murder under section 302 read with section 149 IPC
Two out of the seven accused were acquitted by the Trial Court and on appeal the High Court acquitted one more accused
However the High Court convicted four of the accused under section 302 read with section 149 IPC and sentenced them for life imprisonment
The four convicted accused appealed to this Court and it was contended on their behalf that after the acquittal for three accused persons out of seven the appellants who were remaining four cannot be held to have formed an unlawful assembly within the meaning of Section 141 IPC and accordingly the charge under section 149 was not maintainable
Accepting this contention this Court observed As the appellants were only four in number there was no question of their forming an unlawful assembly within the meaning of section 141 IPC
It is not the prosecution case that apart from the said seven accused persons there were other persons who were involved in the crime
Therefore on the acquittal of three accused persons the remaining four accused that is the appellants cannot be convicted under section 148 or section 149 IPC for any offence for the first condition to be fulfilled in designating an assembly an unlawful assembly  is that such assembly must be of five or more persons as required under section 141 IPC
In our opinion the convictions of the appellants under sections 148 and 149 IPC cannot be sustained
 884 The ratio of these judgements are also applicable to the facts and circumstnces of this case
In the result the appeal of the appellants against the conviction and sentence under section 302 read with section 149 IPC is allowed and the same is set aside
We however confirm the conviction and sentence of the appellants under the other charges
RNJ Appeal allowed
885 GURMUKH SINGH V AMAR SINGH MARCH 15 1991 NMKASLIWAL AND K RAMASWAMY JJ  Section 23 Contract opposed to public policy What is Agreement to purchase property in public auction and thereafter convey half the property Specific performance of Whether enforceable
The respondent field a suit for specific performance of an agreement of sale of land or refund of the money paid to him contending that he and the appellant had contracted that the appellant would participate on their behalf in public aution to purchase the evacuee property and the appellant would convey half the property purchased thereat and in furtherance of that he had contributed his share but the appellant who became the highest bidder and got a sale certificate issued by the custodian of the evacuee property had not performed his part of the contract
The appellant resisted the suit and denied the execution of the agreement
He also pleaded that the contract was illegal and void being opposed to public policy and that the relief of specific performance being discretionary could not be granted in favour of the respondent
The trial court decreed the suit
On appeal by the appellant both the first appellate court and the High Court confirmed the decree
Hence the appeal by special leave
On behalf of the appellant it was contended that the agreement was opposed to public policy since it was to knock out the public property on a minimum price and therefore void under section 23 of the contract Act 1872
Dismissing the appeal this Court
 HELD 11 Section 23 of the Contract Act adumbrates that the consideration or object of an agreement is lawful unless it is forbidden by law or is of such a nature that if permitted it would defeat the provision of any law or is fraudulent or involved or implied injury to 886 the persons or property of another or the court regards it as immoral or opposed to public policy
In each of these cases the consideration or object of an agreement is unlawful
Thus every agreement of the consideration or object of which is unlawful is void
888F G 12 The word object would mean the purpose and design which is the object of the contracts it is opposed to public policy if it tends to defeat any provision of law or purpose of law and it becomes unlawful and void under section 23 of the Contract Act
Section 23 is concerned with only the object or consideration of the transaction and not the reasons or motive which prompted it
Public policy imposes certain limitation upon freedom of contract
Certain objects of contract are forbidden or discouraged by law though all other requisites for the formation of a contract are complied with yet if these objects are in contemplation of the parties when they entered into the agreement the law will not permit them to enforce any rights under it
Most cases of illegality are of this sort the illegality lie in the purpose which one or both parties have in mind
But in some instances the law strikes at the agreement itself and the contract is then by its very nature illegal
888G H889A B 13 The public policy is not static
It is variable with the changing times and the needs for the society
The march of law must match with the fact situation
A contract tending to injure public interest or public welfare or fraudulent to defeat the right of the third parties is void under section 23 of the Contract Act
892F 14 The object of conducting public sale is to secure as much price or revenue as possible to redeem the debt of the debtor or to secure maximum price to the exchequer for use of public purpose
If such a contract to form a ring among the bidders was to peg down the price and to have the property knocked out a low price it would defeat the above economic interest of the debtor or public welfare
Thereby the agreement becomes fraudulent and opposed to public policy and is void under section 23
 890E F In the instant case the facts demonstrate that the agreement between the appellant and the respondent was only a combination to participate at an auction of the evacuee property
There is no intention either to peg down the price or to defraud the Government to knock out the sale at a lower price
Thus the object of the agreement is not opposed to public policy and therefore it is not void under section 23 of the Contract Act
Therefore the agreement between the appellant and the 887 respondent is lawful contract
The courts below committed no error of law warranting interference892H893A B Rattan Chand Hira Chand vs Askar Nawaj Jung JT 1991 1SC 433 and Cheerulal Prakash vs Mabadeodas Maiyua  Ors 1959 Suppl 2 SCR 406 referred to
Scott vs Brown
Deorning Mc Nab  Co 1892 2 KB 724 and Mohamed Meerta vs SV Raghunadha Gopalar 27 Indian Appeals 17 referred to
Kayjay Industries P Ltd vs Asnew Drums P Ltd  Ors1974 3 SRC 678 Central Inland Water Transport Corpn
Ltd  Anr vs Brojo Nath Ganguli  Anr 1986 2 SCR 278 and Delhi Transport Corporation vs DTC Mazdoor Congress  Ors AIR 1991 SC 190 inapplicable
Chandra Sreenivasa Rao vs Korrapati Raja Rama Mohana Rao and Anr  Ram Lal Misra vs Rajendra Nath Sanyal AIR 1933 Oudh P 124 at 127 Nand Singh  Ghuddha vs Emperor AIR 30 1943 Lahore 101 Hutchegowda vs HM Basaviah AIR  Ratanchand Hirachand vs Askar Nawaz Jung  Ors AIR 1976 AP 112 Mo Issac V Sreeramula AIR Mad
289 1946 1 Madras Law journal 187 Ramalingiah vs Subbarami Reddi AIR 1951 Mad
390 Mohafazul Rahim vs Babulal AIR 1949 Nagpur 113 and Lachhman Das  Ors v Hakim Sita Ram  Ors
AIR 1975 Delhi 159 referred to
Chitty s contract 26th Edn Vol
I Paragraph 1134 P 686 and Halsbury s Laws of England
Fourth Edition Vol
9 Paragraph 392 at p 266 and paragraph 746 at 383 referred to
 CIVIL APPELLATE JURISDICTION Civil Appeal No 1335 of 1977
From the Judgement and Order dated 731977 of the Punjab  Haryana High Court in RSA No 1162 of 1966
JM Khanna and Mr IB Gaur for the Appellant
Dhruv Mehta Aman Vachhar SK Mehta Arvind Verma and Romesh Chand for the Respondent
888 The Judgement of the Court was delivered by K RAMASWAMY J
The unsuccessful defendantappellant resisted the suit of the respondent for specific performance of the agreement of sale of 27 Bhigas and 2 Biswas of the land situated in Chakkar Karman Village
According to the respondent he and the appellant contracted that the appellant would participate on their behalf in a public auction to purchase the evacuee property
he contributed his share
The appellant agreed to convey half the property purchased at the auction
The appellant became the highest bidder for a sum of Rs 5000 and he contributed his share and the sale was confirmed on March 11 1964 and a sale certificate was issued by the custodian of he evacuee property but the appellant had not performed his part of the contract
Accordingly he laid the suit for specific performance or refund the amount advanced by him
The suit was resisted by the appellant denying the execution of the agreement and also pleaded that the contract is illegal and void being opposed to public policy
The relief of specific performance being discretionary cannot be granted in favour of the respondent
The Trial Court decreed the suit on appeal and on further second appeal the District Court and the High Court confirmed the same
Thus this appeal on social leave under article 136 of the Constitution
The contention neatly argued by Shri Khanna the learned counsel for the appellant is that the agreement is opposed to public policy and therefore it is void under section 23 of the Contract Act 1872
According to him the agreement was to knock out the public property on a minimum price and that therefore the object of the agreement is opposed to public policy and is hit by section 23
We found no force in the contention 
Section 23 of the Contract Act adumbrates that the consideration or object of an agreement is lawful unless it is forbidden by law or is of such of nature that if permitted it would defeat the provision of any law or is fraudulent or involved or implied injury to the persons or property of another or the court regard it as immoral or opposed to public policy
In each of these cases the consideration or object of an agreement is a said to be unlawful
Every agreement of which the object or consideration is unlawful is void
The word object would mean the purpose and design which is the object of the contract if is opposed to public policy which tends to defeat any provision of law or purpose of law it becomes unlawful and thereby it is void under section 23 of the Contract Act
Section 23 is concerned with only the object or consideration of the transaction and not the reasons or motive which prompted it
Public policy imposes certain limitations upon free 889 dom of contract
Certain objects of contract are forbidden or discouraged by law though all other requisites for the formation of a contract are complied with year if these objects are in contemplation of the parties when they entered into the agreement the law will not permit them to enforce any rights under it
Most cases of illegality are of this sort the illegality lies in the purpose which one or both parties have in mind
But in some instances the law strikes at the agreement itself and the contract is then by its very nature illegal
Whenever a plea of illegality or against public policy is raised as a defence to a contractual claim the test to be applied is Does public policy require that this claimant in the circumstances which have occurred should be refused relief of which he would otherwise have been entitled with respect to all or part of his claim 
In addition once the court finds that the contract is illegal and unenfocreable a second question should be posed which would also lead to greater clarity do the facts justify the granting of some consequential relief other than enforcement of the contract to either of the parties to the contract
In Chandra Sreenivasa Rao vs Korrapati Raja Rama Mohan Rao and Anr  Subba Rao J as he then was while considering the word object in section 23 of the Contract Act in the context of enforceability of the debt secured to celebrate the marriage of the minor which was prohibited by the Child Marriage Restraint Act held that the word object in section 23 meant purpose or design of the contract
The purpose of borrowing was unlawful as it was opposed to the public policy of celebrating the marriage of a minor in violation of the statutory provisions and therefore the promissory note was held to be unenforcable
An agreement between A  B to purchase property at an auction sale jointly and not to bid against each other at the auction is perfectly lawful though the object may be to avoid competition between the two
But if there is an agreement between all the competing bidders at the auction sale be it of the court sale or revenue sale or sale by the government of its property or privilege and formed a ring to peg down the price and to purchase the property at knock out price the purpose or design of the agreement is to defraud the third party namely  the debtor or Govt
whose property is sold out at the court auction or revenue sale or public welfare
The object or consideration of the contract oral or written to share such property is unlawful
There is also implied injury to the debtor within the meaning of section 23
Thereby the contract was fraudulent
The contract thus is also opposed to public policy and is void
Take for instance four persons participated at an aution sale pursuant to their previous agreement they made pretext of partici 890 pation in the auction bid upto an agreed price though the real value of the property is much more than what they had offered for
Here the design or object of their forming a ring is to knock out the property for a song to defraud the debtor or public
What is the object of the public policy in this regard  The scope of public policy was classified into five groups in paragraph 1134 at p 686 of Chitty s on Contract  26th Edn Vol
I thus Objects which on ground of public policy invalidate contracts may for convenience be generally classified into five groups first objects which are illegal by common law or by legislation secondly objects injurious to good government either in the field of domestic or foreign affairs thirdly objects which interfere with the proper working of the machinery of justice fourthly objects injurious to marriage and morality and fifthly objects economically against the public interest
 In Halsbury s Laws of England  Fourth Edition Vol 9 in paragraph 392 at p 266 it is stated that an agreement which tends to be injurious to the public or against the public good is invalidated on the ground of public policy
The question whether a particular agreement is contrary to public policy is a question of law to be determined like any other by the proper application of prior decisions The object of conducting public sale is to secure as much price or revenue as possible to redeem the debt of the debtor or to secure maximum price to the exchequer for use of public purpose
If such a contract to form a ring among the bidders was to peg down the price and to have the property knocked out at a low price would defeat the above economic interest of the debtor or public welfare
Thereby the agreement becomes fraudulent and opposed to public policy and is void under section 23 
In Ram Lal Misra vs Rajendra Nath Sanyal AIR 1933 Oudh p 124 at 127 the finding was that the agreement was not merely of an honest combination between two bidders to purchase the property at an advantageous price but goes further by resorting to secret artifice for the purpose of defrauding a third person namely the rival decreeholder
Accordingly it was held that the agreement was fraudulent and that therefore void under section 23 of the contract Act Same is the view expressed by the Lahore High Court in Nand Singh  Ghudda vs Emperor AIR 30 1943 Lahore 101 and in Hutchegowda vs HM Basaviah AIR 1954Mysore 29
In Rattan Chand Hira Chand vs Askar Nawaj JungJT this Court held that an agreement to influence authorities to obtain favourable verdict was held to 891 be opposed to public policy and void under section 23 and approved the decision of the AP High Court in Ratanchand Hirachand vs Askar Nawaz Jung  Ors
AIR 1976 AP 112
An agreement to rig the market for share has been held to be fraudulent and unenforceable in Scott vs Drown Deorning McNab  Co 18722KB 724
In Halsbury s Laws of England Fourth Edition Vol 2 paragraph 746 at p 383 it was stated that where good were purchased at an auction by a person who had entered into an agreement with another or others that the other or the others or some of them shall abstain from bidding for the goods and he or the other party or one of the other parties to the agreement is a dealer the seller may avoid the contract under which the goods are purchased
Where a contract is avoided by virtue of this provision then if the purchaser has obtained possession of the goods and restitution thereof is not made the persons who were parties to the agreement are jointly or severally liable to make good to the vendor any loss he sustained by reason of the operation of the agreement
In Md Issac vs Sreeramulu AIR1946 Mad
2891946 1 Madras Lw Journal 187 the Madras High court held that an agreement between two bidders not to bid against each other at an auction is not illegal and is not opposed to public policy
The same was followed in Ramalingiah vs Subbartami Reddi AIR 1951 Mad 390
In Mohafazul Robim vs Babulal AIR 1949 Nagpur 113 the Nagpur High Court also held that persons agreeing not to bid against each other is not opposed to public policy
The Division Bench of Delhi High Court in Lachman Das  Ors
vs Hakim Sita Ram  Ors
AIR 1975 Delhi 159 had to consider that an agreement entered into by the parties not to bid at the auction against each other is not opposed to public policy and therefore it is not avoid
While upholding the agreement it was also held that where agreements are likely to prevent the property put up for sale in not realising its fair value and to dump the sale would certainly be against public good and therefore is void being opposed to public policy
In Cheerulal Prakash v Madadeodas maiyua  Ors 1959 suppl 2 SCR 406 this court held that though a wagering contract was void and unenforceable under section 30 of the ContractAct it was not forbidden by law and agreement collateral to such a contract was not unlawful within the meaning of section 23 of the Contract Act
A partnership with the object of carrying on wagering transaction was not therefore hit by section 23
In Mohomed Meerta vs SV Raghunadha Gopalar 27 Indian Appeals 17 the sale was impugned on one of the grounds that the agreement was made for the benefit of the Papanand Zamidar and 892 the appellant intended to sell the property back to the former when he should be in a position to repurchase it and both of them had combined to dissuade persons from bidding and did in fact dissuade them
Thereby they purchased the property for lesser price than the real value
The execution was set aside
On appeal the High Court did not agree with the finding that the appellant and the Jainilabdin and the Papanand Zamindar did combine to dissuade the persons from bidding but fount that the appellant played fraud on the court by suppressing the contract as being a decree holder obtained leave of the count and bid in the auction
Therefore the sale was void on that ground
On further appeal the judicial committee found that the ground on which the High Court set aside the sale was not pleaded nor an opportunity given to the appellant
Therefore for the first time that ground cannot be taken before the High Court and having disagree with the executing court that there was an agreement to dissuade third party to participate in the bid the sale cannot be set aside on the new ground
The Privy Council confirmed the sale
On those facts the ratio is of no assistance to the appellant since there is no agreement between the appellant and the respondent to dissuade third party to participate in the bid
The ratio in Kayjay Industries P Ltd vs Asnew Drums P Ltd  Ors  is of no assistance to the appellant
Therein the executing court on the previous occasion with a view to secure better price did not confirm the sale the conduct of the second sale therefore was held not to be vitiated by any material irregularity
The general principles of public policy discussed by this Court in Central Inland Water Transport Corpn
Ltd  Anr
vs Brojo Nath Ganguli  Anr 1986 2SCR 278 and one of us KRS J in Delhi Transport Corporation vs DTC Mazdoor Congerss  Ors
AIR 1991 SC 190 are of no assistance on the facts in this case
The public policy is not static
It is variable with the changing times and the needs of the society
The March of law must match with the fact situation
A contract tending to injure public interest or public welfare or fraudulent to defeat the rights of the third parties are void under section 23 of the Contract Act
From the record it is clear that there were as many as six bidders who participated in the auction the upset price was fixed at Rs 1000
The auction was started with the bid at Rs 1000 and ultimately at 20th knock the highest bid of the respondent was at Rs 5000
Thus the facts demonstrate that the agreement between the appellant and the respondent was only a combination to participate at an auction of the 893 evacuee property
There is no intention either to peg down the price or to defraud the Government to knock out the sale at a lower price
Thus the object of the agreement is not opposed to public policy and therefore it is not void under section 23 of the Contract Act
Thus on the facts of this case we have no hesitation to conclude that the impugned agreement between the appellant and the respondent is lawful Contract
The Courts below committed no error of law warranting interference
The appeal is accordingly dismissed but in the circumstances without costs as we did not call upon the respondent to argue the case
NPV Appeal dismissed


Summary:
Nineteen persons were tried by the Additional District and Session Judge Khetri in ST No 264 of 1973 for offences under section 302149 201149 379149 147 and 148 for the incident that took place on 2541972 in village Padaria Tula UP on the day of filing of the nomination papers for election for the post of Pradhan Gaon Sabha Tikhra in which fire arms were used by the party led by Bhupendra Singh accused nol who was also a candidate for the office of Pradhan of Gaon Sabha resulting in the death on the spot of Gajendra Singh one of the supporters of the rival candidate Ram Sewak PW 2
The prosecution case is that both the rival candidates with their supporters had come to village Padaria Tula on the morning of 2541972 where nomination papers had to be filed
On seeing the party of the deceased arriving Bhupendra Singh enquired from Ram Sewak PW2 if he had come to file his nomination papers against him
Gajendra Singh deceased intervened and challengingly told the accused No 1 that he should ask him
Following the altercation that ensued it is alleged that Bhupendra Singh fired the first shot on the deceased followed by shooting by his other associates and the deceased fell dead
The party of Ram Sewak fled from the scene to escape the 857 attack
It is further alleged that the body of the deceased was dragged by Gajendra Singh and his companions and carried by them on a tractor trolly belonging to A1 on which they had come burnt it and ashes thrown in the river causing disappearance of the entire evidence
The first Additional Judge acquitted all the charges on the ground that there are many infirmities in the prosecution case rendering its evidence unworthy of belief
The state of Uttar Pradesh preferred appeal before the Lucknow Bench of the Allahabad High Court
The High Court set aside the acquittal of Bhupendra Singh A1 and convicted him for offence under section 302 IPC and awarded sentence of Rigorous Imprisonment for life  set aside the acquittal of A 4 7 8 in part convicted them under section 201 of IPC and sentenced each of them to seven years Rigorous Imprisonment thereunder
Their acquittal under other charges was confirmed
Appeal as against rest of the accused was dismissed altogether
A1 4 7 and 8 have thus come in appeal against the judgement of the High Court
In party allowing the appeal setting aside the conviction of appellants 2 to 4 A1 7 8 under section 201 IP C  and altering the conviction of appellant No 1 A1 from one under section 302 IP C to one under section 307 IPC and sentencing him to a term of 10 years rigorous imprisonment thereunder this Court
HELD The evidence only established that the first appellant shot at the deceased but it is not known where the bullet hit and whether that injury caused by the said bullet shot caused the death
Even in the case of shooting by a rifle unless the evidence shows the particular injury caused by the same and that injury is sufficient to cause death the offence under section 302 IPC could not be said to have been made out
In the circumstances therefore we are unable to agree with the High Court that the first appellant is guilty of offence under section 302 IPC of causing the death of Gajendra Singh
However we are of the view that while the first appellant shot at the deceased there could be no doubt that either he had the intention to kill him or at least he had the knowledge that the act could cause the death
863D E We consider that the offence would come under the second limb or second part of section 307 IPC
Though imprisonment for life also could be awarded as sentence for such an offence on the facts and circumstances we impose a sentence of 10 years rigorous imprisonment
We alter the conviction under section 302 IPC to one under section 307 IPC and sentence him to a term of 10 years rigorous imprisonment
863G
858 So far as the offence under section 201 IPC is concerned we have read the entire evidence carefully and the same does not impress as to bring home the offence of screening the evidence
863H865H