Criminal Appeal No490 of 1985
From the Judgment dated 2951985 of the Judge Special Court Ferozepur in Case No6284 Trial No2385 and FIR No154 of 1984
URLalit and Prem Malhotra for the Appellants
261 NSDas Behl and RSSuri NP for the Respondent
The Judgement of the Court was delivered by KRAMASWAMYJ
This appeal under s141 of the  61 of 1984 for short the Act  the reference under s153 thereof and s366 of the Code of Criminal Procedure 1973 for short the Code  for confirmation of the death sentence of Malkiat Singh accused No 1 in Sessions case No62 of 1984 Trial No23 of 1985 on the file of the Special Court Ferozepur
The first accused was convicted under s302 read with s34 IPC for causing the deaths of Ram Babu D 1 Sunder Lal D 2 Ram Nath D 3 and Ram Chand D 4 of each death and sentenced to death subject to confirmation by this court
He was also further convicted under s307 read with s34 IPC and sentence to undergo rigorous imprisonment for 5 years for attempt to murder Ashok Kumar PW 4
Sukhdev Singh A 2 and Sohna Singh A 3 were convicted under s302 read with s34 IPC for causing deaths of D 1 to D 4 and sentenced to undergo imprisonment for life
A 2 and A 3 were convicted under s307 read with S341 IPC for attempt to murder of PW 4 and were sentenced to undergo rigorous imprisonment for 5 years all the sentences to run concurrently
Ram Avtar PW 3 and D 3 Ram Nath first cousin had liquor contract in the village Kotli Ablu from 1983 and 1984
D 2 and PW 4 were working in the liquor shop
The wives of D 2 and D 4 are sisters
D 4 came to see D 2
D 1 was working in the liquor shop at Ablowbad
Since the liquor therein had exhausted he came to Kotli Ablu to sell the liquor in the shop of D 3
A 1 and A 2 are brothers and are residents of Kotli Ablu and Sohna Singh A 3 is their maternal uncle mother s brother and a resident of Rameana situated at a distance of 8 km
to Kotli Ablu
These are the admitted facts
It is the case of the prosecution that at about 900 pm On June 4 1984 A 1 and A 3 came to the liquor shop of D 3 wherein PW 3 D 1 D 2 and PW 4 were also present and were vending the liquor
They sold one bottle of liquor to A 1 and A 3 on credit
After its consumption A 1 and A 3 demanded another bottle to which D 3 refused to sell on credit
Thereon A 1 and A 3 abused them and a quarrel ensued
Both left the shop in anger
D 1 and D 2 slept on a cot in front of the liquor shop
D 3 and D 4 slept wooden takthposh in front of the liquor shop
PW 3 and PW 4 climbed the roof of the shop and slept there
During past midnight of June 4 5 1984 at about 1230 am PW 3 and PW 4 heard gun shot fire and got up and saw with visibility of electric light emanating 262 from the house of one Gurbax Singh whose son was examined on DW 2 that A 1 was firing with rifle at D 1 to D 4 and A 2 and A 3 hitting them with Gandasas sharp edged weapons
Seeing PW 3 and PW 4 on the terrace A 1 fired at them but they escaped uninjured and they jumped down
PW 3 jumped towards back side of the shop and ran towards the village and hid in the school
PW 4 jumped to the front side and ran towards the village
A 1 fired at PW 4 and A 2 hit him
He received seven bullet injuries fired by A 1 on the backside of right leg thigh and left side of the abdomen while he was running
A 2 hit him on the right shoulder and had incised injury
He ran to the house of Gurmail Singh PW 3 with bleeding injuries knocked the door and fell down unconscious
On June 5 1984 at about 900 am Jit Singh the Chowkidar of the village reached Kotli Police Station and reported to PW 5 SHO who reduced ExP 24 into writing
In the FIR he stated that he had heard gun shot firing from the side of the liquor shop
Due to fear and the prevailing tense situation he did not come out
Next day morning he saw several people collected at the liquor shop and saw the dead bodies of D 1 to D 4 and PW 4 was lying unconscious in the house of DW 3 and he was asked to report the matter accordingly
PW 5 after issuing FIR to all the concerned went alongwith police party to the spot at noon and saw the dead bodies
He went to the house of DW 3 and found PW 4 under shock and unconscious
He sent him for medical examination by PW 2 the Doctor as his condition was serious
PW 3 on coming to know the arrival of the police and the military people at noon mustered courage and came out from the school and went to the shop
He was examined at the inquest and he also attested the statement recorded by the police at the inquest
PW 5 enclosed the copies of his statement to the inquest report ExP 4 P 6 P 8 and P 10 and sent the dead bodies with the reports for post mortem by PW 2 Doctor
He also prepared rough sketch of the scene under Ex P1A
He recovered the blood stained earth and cots etc under exhibit
He recovered 7 empty and two live cartridges exhibit M 01 to M 09 under panchnama Exp 18
He remained on the spot till 1030 pm and saw the light emanating from the house of Gurbax Singh and falling at the scene of occurrence
He sent requisition twice to the hospital to find whether PW 4 was in a fit condition for recording his statement
On June 7 1984 at about 700 am he received an endorsement that PW 4 was in a fit condition to make the statement
Accordingly he recorded the statement
He sent MOS1 to 9 cartridges and pellets recovered from body of D 4 under exhibitP 25 to ballistic expert for report
on June 15 1984 when he was picketing on the drain of village Chand Bhan at about 330 am he arrested the appellants and recovered from the person of A 1
exhibit 263 M 011 rifle 351 bore semi automatic of USA make loaded with two cartridges M 012 and M 013 under panchnama in the presence of panch
Pursuant to a statement made under s27 Evidence Act by A 3 leading to discover Gandasa M 014 was recovered under exP 27 and sent them to the chemical examination and the ballistic reports
Under exhibitP 28 the Ballistic expert found that the empties exhibit M 01 to M 09 had been fired from rifle exhibit M 011
Gandasa was stained with human blood as per the report exhibit PW 2 who conducted the post mortem on D 1 and D 2 found on each of the dead bodies two gun shot entry and exit wounds
D 3 and D 4 were found to have 4 gun shot lacerated and two incised injuries and 5 lacerated and two incised injuries respectively
He removed MOS16 and 17 pellet from the body of D 4
He issued post mortem certificates ExP 3 P 5 P 7 and P 9 respectively
He also examined PW 4
He found as many as 7 lacerated gun shot injuries and one incised injury and issued medical certificate Ex
Injuries and one incised injury and issued medical certificate exhibit Injuries 1 to 7 were caused by gun shot fire and injury 8 by a sharp weapon
PW 5 sent two pellets recovered by him from the body of D 4 to the Ballistic and Chemical Examination
The defence consented to mark FIR the affidavits of panch witnesses and constables the fire arms licence of A 1 under exhibit P 17 and also the reports of the ballistic expert and chemical examination reports without oral evidence
PW 6 the Deputy Superintendent of Police supervised the investigation conducted by PW 5
The prosecution examined 6 witnesses and defence examined 3 witnesses and marked the documents
The accused were examined 3 witnesses and marked the documents
The accused were examined under s313 and denied their complicity and examined DW 1 to DW 3 to prove that the bulb of Gurbax Singh was not burning and PW 3 was residing at Medhak and he was brought to Kotli Ablu by the Police and PW 4 was conscious and did not disclose the names of the appellants at that time
The lower court believed the direct evidence of PW 3 and PW 4 and the prosecution case that A 1 fired at the deceased with M 011 rifle A 2 and A 3 also participated in the attack
If also found that M 011 the rifle belongs to A 1 and he fired the deceased and PW 4
Accordingly convicted them for an offences under sections 30234 and 30734 IPC When they were asked under s2352 they declined to lead evidence and the Sessions Court awarded sentence to the accused as referred to earlier
Shri Lalit the learned senior counsel for the appellants contended that the evidence of PW 3 and PW 4 is highly artificial unbelievable and untrustworthy barring their evidence there is no other evidence to connect the appellants with the commission of the crime
The story that PW 3 and PW 4 climbed on the terrace and were sleeping is 264 false as they cannot climb to a height of 812 ft PW 3 did not disclose his witnessing the occurrence to any one till noon
DW 3 the Sarpanch of Madhok spoke that PW 3 alongwith the panch witnesses were brought from Madhok in a Jeep by the police so he is a planted witness
In support thereof he contends that the specific evidence of DW 3 in this regard was not challenged in cross examination
PW 4 was not examined at the inquest though he was conscious
The police requisitioned the dog squad to sniff the scene of offence to identify the unknown accused
PW 5 and PW 2 the Doctor admitted that the omission of the names of the accused in the case diary and memos would belie the theory of witnesses
The omission of the names of the accused in the cause title Banam would clearly show that PW 3 and PW 4 were not direct witnesses and PW 3 was introduced at a later stage and he was not examined at the inquest and that PW 4 did not identify the appellants
This was also further corroborated from the fact that admittedly exhibit P 24 recited that three unknown assailants had killed the deceased
Admittedly the dog squad was requisitioned
The appellants were falsely implicated
As regards PW 4 he further contended that as per the evidence of DW 2 son of Gurbux Singh and DW 3 Gurmail Singh PW 4 was conscious at that time of his coming to the house of DW 3 and remained to be conscious
The police did not examine him till June 7 1984 as the assailants were not known
There was no light in the house of DW 1 and PW 3 and PW 4 could not have identified the assailants
The theory of liquor vending is doubtful for the reason that the entire State was under curfew on that day due to blue star operation on June 3 1984 and no vending would take place when there is a curfew
If really the appellants 1 and 3 had taken the liquor on credit nothing prevented the prosecution to produce the chit admittedly taken by D 3
The theory of burning the shop shows that it is an act of terrorists as was noted in the case diary by PW 6
Thus the appellants were implicated by suspicion and the prosecution had not established the guilt of the appellant beyond reasonable doubt
The conviction and sentence by the special court was on the same day namely May 29 1985 which contravenes the mandatory provision of s235 of the Code
In view of the decision of this court in Allauddin vs State of MP JT1989 2 SC 171 and Anguswamy vs State of Tamilnadu JT the sentence of death awarded to A 1 is illegal
A 2 had no axe to grind against the deceased
He neither went for drinking at 900 pm on that day nor had a quarrel
He bears no motive to kill the deceased or attack PW 4
No recovery of Gandasa was made from him
PW 3 and PW 4 have no prior acquaintance with him
Therefore it was highly doubtful whether A 2 had participated in the offence
As regards to the third 265 appellant A 3 it is his contention that he is a resident of Rameana
PW 3 or PW 4 do not know A 6 at all
Therefore he may not be able to have participated in the crime
It was resisted by MrDas Bahl learned counsel for the State
The acceptance of the prosecution case rests on the evidence of PW 3 and PW 4
PW 3 and D 3 had the licence to vend liquor at Kotli Ablu
PW 4 and D 2 were vending liquor under them
D 4 came to see D 2 as they were married sisters
D 1 came and was vending on the fateful day in the shop
D 1 to D 4 were killed in the intervening night of June 4 5 1984 is practically admitted from the evidence of DW 3
During the course of the same transaction PW 4 sustained 7 lacerated gunshot injuries and one incised injury is also admitted through the evidence of DW 2 and DW 3 PW 2 the Doctor s evidence conclusively established that D 1 and D 2 died due to gun shot injuries
D 1 and D 2 each had two entry and exit wounds due to gun shots
D 3 and D 4 also had gunshot lacerated as well as incised injuries
They also died on the spot due to the injuries which are sufficient to cause death in the ordinary course of nature
Seven empty and two live cartridge fired from M 011 rifle of 351 bore of USA make belonging to A 1 were recovered from the scene of occurrence
Therefore the deaths of D 1 and D 2 due to gunshot injuries and D 3 and D 4 due to gunshot and incised injuries are proved beyond doubt
Equally PW 4 sustained injuries is also established
The only question is whether the appellants are assailants
The conviction of the appellants hinges upon the acceptability of the testimony of PW 3 and PW 4
Let us first take the evidence of PW 4 the injured witness whose presence at the time of occurrence stands confirmed
He is aged about 19 years
He was working in the liquor shop of D 3 and PW 3 at Kotli Ablu
He is residing in that village was not disputed
As stated earlier he sustained 8 injuries 7 gunshot and one incised during the course of the same transaction is also indisputable and in fairness was not disputed by Shri Lalit
His serious attack is that PW 4 did not disclose the names of the assailants for two days which would show that he did not either see the assailants or the assailants were not known him
We find it difficult to accept
His case that he jumped from the terrace in front of the shop and he was attacked by the assailants was not disputed in the cross examination
The suggestion that he was sleeping alongwith D 4 would show that he could see A 1 who fired at him while he was running away and it receives corroboration from medical evidence of PW 2 that the injuries are on the backside while he was chased by the accused
So he 266 could clearly identify his own assailants as the occurrence did not take place at a fleet or glimpse
In the FIR at the earliest it was specifically stated that PW 4 was not in a condition to speak
It would mean that he was either under shock or unconscious
The First Information Report given by the Chowkidar was admitted in evidence with the consent of the defence
It is settled law that the First Information Report is not substantive evidence
It can be used only to contradict the maker thereof or for corroborating his evidence and also to show that the implication of the accused was not an after thought
Since the examination of first information was dispensed with by consent Ex P 24 FIR became part of the prosecution evidence
Under section 11 of the Evidence Act read with s6 the facts stated therein namely PW 4 was not in a speaking condition could be used only as a relevant fact of prior existing state of facts in issue as resgestae of the earliest information
It is not used to corroborate the prosecution case but can be looked into as an earliest information of the existing condition of PW 4 at 900 am on June 5 1984 ie when the report was given in exhibit p 24 PW 4 was still unconscious
When PW 4 had stated that he became unconscious as soon as he came and tapped the door of DW 3 and fell down by operation of section 11 of the Evidence Act it may be relevant fact of the previous existing condition that PW 4 contained to remain unconscious till the report was given
Therefore the FIR could be used as relevant existing state of fact namely the continuous unconscious condition of PW 4 till PW 5 SHOreached and saw him within the meaning of s11 read with s6 of the Evidence Act
When PW 4 received 7 gun shot injuries and one incised injury and ran for life to a distance with bleeding injuries it would be quite likely that he would be under severe shock and his evidence that after reaching the home of DW 3 and knocked the door he fell down unconscious appears to be quite natural and probable
The evidence of PW 5 that on seeing PW 4 in critical unconscious condition he sent him to the Doctor for medical examination and the doctor administering sadation appear to be human probabilities and there is nothing intrinsic to suspect their evidence
Thus PW 4 was not in a fit condition to give statement till June 7 1984 at 700 am PW 4 s evidence that he was residing at Kotli Ablu and that he knew the accused was not disputed in the cross examination
It is not uncommon in normal human probability that he was not expected to know the names of the relations of A 3
When A 1 and A 3 came in that very night to the shop and quarreled for non supply of liquor on credit it would be fresh in the memory of PW 4 and as he saw the assailants he could have easily recognized A 3 267 Undoubtedly ocular defence evidence if it is not subjected to critical cross examination is entitled to the same weight as prosecution evidence
But merely because the prosecution as usual made insipid cross examination the defence evidence is not to be believed automatically
Witnesses may be prone to speak lies but circumstances will not
So even though the burden of the defence is not as heavy as of the prosecution the oral evidence tendered by the defence must also be subjected to critical scrutiny and be considered in the light of the given facts and attending circumstances of the case and human probabilities
The evidence on record is clear that PW 4 was left attended though was lying with injuries at the house of DW 3 till the investigating officer PW 5 came and saw him in critical condition
The normal human conduct which is common in the country side is to give immediate first aid and then to make inquire of the cause for injuries and the persons who caused the same
As DW 3 betrayed such conduct make us to suspect the credibility and veracity of his evidence and of DW 2 that PW 4 was conscious all through and that he did not disclose the assailants  names
Therefore the evidence of DW 2 and DW 3 that PW 4 was professed to have disclaimed the names of the assailants is unbelievable despite no specific cross examination was directed on that aspect
That apart they did not tender themselves to be examined by PW 5 the investigating officer
As regards the shedding of the light from the house of Gurbax Singh is concerned there is uncontroverted evidence of PW 5 that he remained in the village till 930 pm on June 5 1984 to see whether the light was emanating from the house of Gurbax Singh and found to be so and sufficient for PW 3 and PW 4 to identify the assailants
No cross examination on this aspect was directed
Gurbax Singh the owner of the house was not examined by the defence
Only his son DW 2 an youngster came into the box and perjured the evidence
Therefore the claim that the light was not working for three months prior to the date of occurrence cannot be believed
Even assuming that there was no light even then PW 4 could identify his own assailants when he was attacked and chased in the course of the same transaction
Nothing worthwhile was brought out in the cross examination to disbelieve his testimony
He had no axe to grind against any of the accused
To motive to make false implication of the accused was even suggested
He cannot be expected to allow his own assailants to go unpunished and would implicate innocent persons
Moreover the medical evidence of PW 2 fully corroborated the evidence of PW 4
It is settled law that corroboration is not a rule of law but one of caution as an assurance
The conviction could be made on the basis of 268 the testimony of a solitary witness
The occasion for the presence at the time of occurrence opportunity to witness the crime the normal conduct of the witness after the incident the nearness of the witness to the victim his pre disposition towards the accused are some of the circumstances to be kept in view to weigh and accept the ocular evidence of a witness
It is not the quantum of the evidence but its quality and credibility of the witness that lends assurance to the court for acceptance
Considered in this light we have no hesitation to conclude that PW 4 is a witness of truth and inspires us to believe his evidence
He would even in the absence of any light have identified the accused who had attacked him and committed the murders of sleeping unarmed and innocent D 1 to D 4
The evidence of PW 3 though was severely attacked by Shri Lalit giving our anxious consideration and subjecting to careful analysis we find that the Special Court committed no error in accepting his evidence
It is common knowledge that the villagers during summer sleep outside the house court yard of the house if any or on the terrace of the concrete houses
No doubt there is no stairs to the terrace of the shop whose height is only 8 and 12 feet
PW 4 and PW 3 being young men it is not difficult to climb up and sleep and now it was proved providential for them
Therefore the absence of producing the quilts or lack of steps is not a serious infirmity to doubt the presence of PW 3 and PW 4 and that they slept on the terrace of the shop
In view of curfew and tense condition in the State it would be unlikely that PW 3 would have traveled in the night to Madhok at a distance of 23 km
The evidence on record clearly shows that the defence has freely used the entries in the case diary as evidence and marked some portions of the diary for contradictions or omissions in the prosecution case
This is clearly in negation of and in the teeth of s1723 of the Code
Section 172 reads thus Diary of proceedings in investigation 1 Every police officer making an investigation under this Chapter shall day by day enter his proceedings in the investigation in a diary setting forthwith the time at which the information reached him the time at which he began and closed his investigation the place or places visited by him and a statement of the circumstances ascertained through his investigation
269 2 Any Criminal Court may send for the police diaries of a case under inquiry or trial in such Court and may use such diaries not as evidence in the case but to aid it in such inquiry or trial
3 Neither the accused nor his agents shall be entitled to call for such diaries nor shall he or they be entitled to see them merely because they are referred to by the Court but if they are used by the police officer who made them to refresh his memory or if the Court uses them for the purpose of contradicting such police officer the provisions of Section 161 or Section 145 as the case may be of the 1 of 1872 shall apply
 It is manifest from its bare reading without subjecting to detailed and critical analysis that the case diary is only a record of day to day investigation of the Investigating Officer to ascertain the statement of circumstances ascertained through the investigation
Under sub section2 the Court is entitled at the trial or enquiry to use the diary not as evidence in the case but as aid to it in the inquiry or trial
Neither the accused nor his agent by operation of sub section3 shall be entitled to call the diary nor shall he be entitled to use it as evidence merely because the Court referred to it
Only right given thereunder is that if the police officer who made the entries in the diary uses it to refresh his memory or if the Court uses it for the purpose of contradicting such witness by operation of s161 of the Code section 145 of the Evidence Act it shall be used for the purpose of contradicting the witness ie Investigation Officer or to explain it in re examination by the prosecution with permission of the court
It is therefore clear that unless the investigating officer or the Court uses it either to refresh the memory or contradicting the investigating officer as previous statement under s161 that too after drawing his attention thereto as is enjoined under s145 of the Evidence Act
The entries cannot be used by the accused as evidence
Neither PW 5 nor PW 6 nor the court used the case diary
Therefore the free use thereof for contradicting the prosecution evidence is obviously illegal and it is inadmissible in evidence
Thereby the defence cannot place reliance thereon
But even if we were to consider the same as admissible that part of the evidence does not impinge upon the prosecution evidence
As regards the omission of the names of the appellants in the memos sent to the Medical Officer PW 2 under exhibit D 13 and 15 it is also not evidence except as record of investigation
It is not a rule of 270 law that the memo should bear names with cause title of accused
It is enough if the name of the injured is mentioned in the memo
Therefore the omission to refer their names after the word Banam in the memos sent to the Doctor would not create any doubt that the appellants were later implicated
Equally the prosecution cannot rely on the statement of PW 3 enclosed to the inquest reports as substantive evidence as is done and argued with vehemence by Sri Das Bahl
Section 174 of the Code empowers a police officer to investigate in the presence of two or more respectable witnesses and report only the cause of death and the person if known that has committed the offence
Section 175 empowers him to summon any person who appears to be acquainted with the facts of the case and every person so summoned shall be bound to attend the inquest and answer truely all the questions other than questions the answers to which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture
The statement made by such person is a previous statement within the meaning of s162 and it shall not be signed
So the statement made by such a person to police officer is in the course of the investigation and when reduced to writing it shall be used only by the accused to contradict such witness in the manner provided by s145 of the Evidence Act or with the permission of the court the prosecution could use it for re examination only to explain the matter referred to in his cross examination
It is settled law that s162 was conceived to protect an accused creating an absolute bar against the previous statement made before the police office being used for any purpose whatsoever
The obvious reason is that the previous statement under the circumstances was not made inspiring confidence
It enables the accused to rely thereon only to contradict the witnesses in the manner provided by s145 drawing attention of the witness of that part of the statement intended to be used for contradiction
It cannot be used for corroboration of a prosecution or defence witness or even a court witness nor can it be used contradicting a defence or a court witness
The investigating officer is enjoined to forward the inquest report to the Magistrate alongwith the statement recorded at the inquest so that the court would see the record at the earliest of the circumstances leading to the cause of the death of the deceased and the witness examined during the inquest
Therefore the statement of PW 3 record during inquest is not evidence
It is a previous statement reduced to writing under s162 of the Code and enclosed to the inquest report and cannot be used by the prosecution for any purpose including to show the names of the accused except to contradict the maker thereof or to explain the same by prosecution
271 It is true that DW 1 had stated and was not effectively cross examined that PW 3 was brought by the police in a jeep alongwith the Panch
But he was examined at the inquest is evident from the record
PW 3 was present at 900 pm at the time of vending liquor on credit to A 1 and A 3 and the quarrel
PW 4 stated that PW 3 and himself slept together on the terrace
He was examined at the inquest is corroborated by doctor s evidence that statement of PW 3 recorded under s162 was enclosed to the inquest reports and sent to PW 2 the Doctor alongwith the dead bodies
There is ring of truth in the evidence of PW 3
During curfew in the night he would not have under taken to go to Madhok at a distance of 23 km
The attending circumstances for coming to the scene of offence appear to be natural and probable in the ordinary course of human conduct
Having seen that four of his companions were done to death the instinct of self preservation and the grip of fear would have made him not to stir out from the school and mustered courage only when the police and the military people arrived at the scene at noon
Thus he came to be examined at the earliest at inquest whereat he disclosed the names and the participation of the appellants
Thus the evidence of PW 3 would lend to corroborate PW 4 s evidence
In addition there is a strong circumstantial evidence against A 1 and A 3
On his arrest on June 15 1984 M011 rifle was recovered from A 1
As per exhibit P 17 licence it belongs to him the ballistic report exhibit P 20 establishes that the empty cartridges exhibit M1 to M7 were discharged from the bore of M011
This evidence clearly established that M011 was used by A 1 in the crime
In his examination under s313 no explanation was given as to how M011 rifle could go out from his custody for being used in committing the crime by third parties
From its recovery from the person of A 1 it is clear that it continued to remain in his custody from the time of user in the crime till it was recovered from him
These circumstances coupled with oral evidence of PW 4 and PW 3 clearly establish the complicity of A 1 in committing the offences of murder of D 1 to D 4
As equally A 3 accompanied A 1 to the liquor shop and had quarrel
When A 1 and A 3 left the shop in anger it is clear that they left the shop in a huff smarting from humiliation at the hands of the contractor from out side the state and their staff
To avenge the humiliation heaped upon them they animated to finish the prosecution party
Obviously they chose past mid night to be sure that all would be asleep and no evidence of their crime would be available
Thus they have strong motive to kill the deceased and to make murderous attack on PW 4
Moreover gandasa was recovered pursuant to A 3 s statement under s27 of 272 Evidence Act leading to its discovery and it contained human blood though blood group could not be detected due to disintegration
The two incised injuries each on the persons of D 3 and D 4 as corroborated by medical evidence clearly establishes the participation of A 3 in attacking the deceased
He accompanied A 1 at dead of night to the liquor shop and killed D 1 to D 4 and attempted to kill PW 4
Thus he shared with A 1 the common intention to kill the deceased D 1 to D 4 and attempt to kill PW 4
The production of the credit chit kept on the table in the shop would have lent corroboration to the prosecution case of the sale of liquor to A 1 and A 3 on credit
It is not the prosecution case that it was signed by either of the accused
It is now in evidence that it was burnt out also with the shop though no definite evidence for cause of burning is on record except vague suggestions but denied by the prosecution witnesses that the terrosists committed the arson and killings
From a totality of facts and circumstances it cannot be concluded that terrorists committed the offence
As regards A 2 we have grave doubt of his participation in the crime
Admittedly he had no motive to kill any of the deceased or to attack PW 4
He did not come at 900 pm on June 4 1984 to the liquor shop for drinking
There is no recovery of gandasa from him though he was arrested alongwith A 1 and A 3
The doubt whether A 2 was likely to be a participant in the commission of this grave crime of four deaths has not been removed from our minds
It is undoubtedly true that PW 4 had stated that A 2 attacked him with the gandasa but when he was attacked while he was fleeing for life the possibility of mistaken identity of A 2 to A 3 cannot be ruled out
We make it clear that we are not doubting the veracity of PW 4
In these circumstances A 2 is entitled to the benefit
Accordingly we hold that A 1 and A 3 have shared common intention they had motive to kill the deceased
They came together killed the sleeping innocent four persons D 1 to D 4 and also attempted to kill PW 4
Accordingly we hold that A 1 committed the offence of murder of D 1 and D 2 punishable under s302 D 3 and D 4 s under s302 read with s34 IPC and attempt of murder of PW 4 punishable under s307 read with s34 IPC A 3 shared the common intention with A 1 and also committed the said offences under s302 read with s34 s307 read with s34 IPC A 3 was given the minimum sentence of imprisonment of life
The sentences were directed to run concurrently
273 On finding that the accused committed the charged offences s2352 of the Code empowers the Judge that he shall pass sentence on him according to law on hearing him
Hearing contemplated is not confined merely to oral hearing but also intended to afford an opportunity to the prosecution as well as the accused to place before the Court facts and material relating to various factors on the question of sentence and if interested by either side to have evidence adduced to show mitigating circumstances to impose a lesser sentence or aggravating grounds to impose death penalty
Therefore sufficient time must be given to the accused or the prosecution on the question of sentence to show the grounds on which the prosecution may plead or the accused may show that the maximum sentence of death may be the appropriate sentence or the minimum sentence of life imprisonment may be awarded as the case may be
No doubt the accused declined to adduce oral evidence
But it does not prevent to show the grounds to impose lesser sentence on A 1
This Court in the aforestated Alluddin and Anguswamy s cases held that the sentence awarded on the same day of finding guilt is not in accordance with the law
That would normally have the effect of remanding the case to the Special Court for reconsideration
But in the view of the fact that A 1 was in incarceration for long term of six years from the date of conviction in our considered view it needs no remand for further evidence
It is sufficient that the sentence of death awarded to A 1 is converted into rigorous imprisonment for life
The sentences of death is accordingly modified and A 1 is sentenced to undergo rigorous imprisonment for life for causing the deaths of all four deceased
The conviction of A 1 for attempt to murder PW 4 and sentence of five years  rigorous imprisonment is also upheld and all the sentences would run concurrently
A 2 is acquitted of all charges
The bail bonds are cancelled
He shall be set at liberty unless he is required in any other case
The appeal is allowed only to the above extent
VPR Appeal Partly allowed


Summary:
The respondents were employed as drivers in the UPState Road Transport Corporation
The Corporation has framed the UPState Road Transport Corporation Employees other than Officers Service Regulations 1981 Regulations 172 inter alia requires the drivers to undergo medical test particularly vision test every year and under Regulation 173 services of those drivers who fail to pass the fitness test are to be dispensed with with the proviso that such drivers may in the discretion of the Corporation be offered alternative jobs
Pursuant to these Regulations the Managing Director of the Corporation issued two circulars dated December 19 1986 and March 12 1987 directing the Regional Managers to terminate the Services of the drivers who are medically found unfit to drive the vehicles with the further direction that such drivers should be paid benefits like retrenchment compensation under Section 6N of the UPIndustrial Disputes Act
The respondents were subjected to medical examination and it was found that their eye sights were defective
Consequently the Corporation discharged the respondents with immediate effect by paying them one month salary in lieu of notice and also retrenchment compensation under the UP Industrial Disputes Act
The respondents challenged their retrenchment by means of writ petitions before the High Court
The High Court allowed the writ petitions directing the Corporation to offer alternative jobs to the respondents
Being aggrieved the Corporation has preferred these appeals to this Court
Allowing the appeals the Court 275 HELD 1
Regulation 172 requires that the drivers have to undergo medical test particularly vision test every year or at such intervals as may be prescribed by the General Manager of the Corporation
Regulation 173 has two branches
The first branch provides power to the Corporation to remove the driver from the service who fails to pass the medical test
The second branch of Regulation 173 though styled as proviso is an independent and substantive provision providing discretion to the Corporation to offer an alternative job to the retrenched driver
278B D 2
The discretion conferred by Regulation 173 confers no vested right on the retrenched workmen to get an alternative job in the Corporation
Like all other statutory discretion in the administrative law Regulation 173 creates no legal right in favour of a person in respect of whom the discretion is required to be exercised other than a right to have his case honestly considered for an alternative job by the Corporation
279B 3
The High Court was in error in directing the Corporation to offer alternative jobs to the respondents because the Court cannot direct the statutory authority to exercise the discretion in a particular manner not expressly required by law and that it could only command the statutory authority by a writ of mandamus to perform its duty by exercising the discretion according to law
The Court cannot command the Corporation to exercise discretion in a particular manner and in favour of a particular person
That would be beyond the jurisdiction of the Court
279E In the instant case the Corporation has denied itself the discretion to offer an alternative job which the regulation requires it to exercise in individual cases of retrenchment
Although it is open to an authority to which discretion has been entrusted to lay down the norms or rules to regulate exercise of discretion it cannot however deny itself the discretion which the statute requires it to exercise in individual cases
The concerned authority of the Corporation therefore are required to consider the cases of retrenched drivers for alternative jobs279F G280A 41 There are two aspects to be borne in mind in exercising the discretion
Firstly there are constraints with which the Corporation has to exercise its discretion and perform its task
The Corporation is a public utility organisation where mediating motion is efficiency and effectiveness of public service
Efficiency and effectiveness of public 276 service are the basic concepts which cannot be sacrificed in public administration by any statutory corporation
The Corporation has to render this public service within the resource use and allocation280D 42 The second aspect relates to the manner in which the statutory discretion is to be exercised
Every discretion conferred by statute on a holder of public office must be exercised in furtherance of accomplishment of purpose of the power
280E G Sharp vs Wakefield at 179 referred to
The Corporation therefore cannot act mechanically
The discretion should not be exercised according to him caprice and ritual
The discretion should be exercised reasonably and rationally
It should be exercised faithfully and impartially
There should be proper value judgment with fairness and equity
280H Therefore it would not be improper if the discretion is exercised with greater concern for and sympathetic outlook to the disabled drivers subject of course to the paramount consideration of good and efficient administration
281A B