Tuesday, December 29, 2009

DILIP PREMNARAYAN TIWARI & ANR. Versus STATE OF MAHARASHTRA

Penal Code, 1860 Sections 302, 307, 452/120, 34 and 120 B (Substantive) Capital Punishment - Brahman girl marrying a Malayali boy P belonging to Ezhava caste - Not approved by family of girl - Murder of P and other three family members and injury to others - Trial court while acquitting mother and father of accused, awarding death sentence to accused (brother) and two of his co-accused and various sentences awarded under different sections - High Court confirming the capital punishment. Held on considering the evidence of injured eyewitnesses, who gave a detailed account of occurrence, there is no merit in appeal and conviction stands confirmed.
Sections 302, 307, 452/120, 34 and 120B - Quantum of sentence - Honour killing - Inter-caste marriage - D, girl's brother killing her husband, three others and injuring other family members of his family - Courts below awarding death sentence. Held High Court made no effort to consider the mitigating circumstances though trial court considered their age and clean past record. Considering the circumstances, societal pressure and mind set of D, it would not be justified to award death sentence. But D and M are awarded 25 years of actual imprisonment. S is to undergo 20 years of actual imprisonment Bachan Singhs case followed.

Dying declaration - Honour killing - S marrying P against family wishes - D brother of S along with three associates murdering P and three others and injuring other family members of P - P while in ambulance giving dying declaration naming D and his associates - Another dying declaration made in hospital before Doctor, counter signed by investigating officer, carrying thumb impression of P and made a part of charge-sheet, not brought on record by prosecution - Application filed under Section 391, CrPC to take on record the dying declaration, opposed by public prosecutor and rejected by High Court - Whether non consideration has prejudiced the case of accused as his name was not found in the dying declaration. Held the proceeding before the High Court was in the nature of extended trial. The document could not be held back and High Court erred in doing so on the ground that Doctor was not put any question in his examination as witness with regard to the dying declaration. Fairness of the trial is the basic requirement and Public Prosecutor, being an officer of the court, ought not to have opposed the production of the document. Its production therefore allowed. Since accused nos. 1 and 3 did not get a chance to cross-examine it, it will not be considered against them. For accused no. 2 S this document will not be of any help since eye witnesses fixed the criminal liability on him.

Evidence Omissions - Injured eye-witnesses - Honour killing - Inter-caste marriage - Girl's brother D along with three associates killing P and three of his family members and injuring others - De, sister of deceased P seriously injured giving detailed account of occurrence - She knew accused D and M - Another injured eyewitness assented that she knew accused and gave detailed account of event - She further claimed that M and S were friends of D - However some minor omissions found - Whether these omissions make their statements doubtful. Held no. Presence of De and I was very natural and despite omission their statements inspire confidence that they had seen the occurrence and identified all the three accused. Their evidence being the evidence of injured eye witnesses was wholly credible as found by High Court and trial court and was sufficient to prove the guilt of accused.

FIR - Omission to name accused - Murder of four and grievous injury to other family members - Though name of accused D mentioned in the FIR that of accused M and S missing - Name of one deceased also not mentioned - Whether M entitled to benefit of doubt. Held omission was not of much relevance considering the state of mind of the person giving FIR who had lost his son and brother-in-law and had his three members seriously injured in the incident.



Supreme Court of India

CRIMINAL APPEAL NO.1026 of 2008

Judge(s): V.S. Sirpurkar,Deepak Verma

Date of Judgment: Thursday, December 10, 2009

DILIP PREMNARAYAN TIWARI & ANR. Versus  STATE OF MAHARASHTRA


J U D G M E N T

V.S. SIRPURKAR, J.

1. This judgment will dispose of two appeals, they being Criminal Appeal No.1026 of 2008, filed on behalf of the appellant accused Dilip Premnarayan Tiwari and Manoj Paswan, as also Criminal Appeal No.1025 of 2008 filed by Sunil Ramashray Yadav. Their appeals against their convictions by the Sessions Judge have been dismissed by the Bombay High Court and the death sentence awarded to all the three accused has also been confirmed.

2. As many as five accused persons were tried by the Trial Court for offences under Section 302, 307, 452 read with Section 120B of the Indian Penal Code (`IPC' for short) and Section 34 and Section 120B, IPC (substantive). Eventually, original accused No. 4, Premnarayan Brijkishore Tiwari and accused No.5 Tulsa Devi were acquitted by the Trial Court whereas the other three accused persons, namely, accused No.1, Dilip Premnarayan Tiwari, accused No.2, Sunil Ramashray Yadav and accused No.3, Manoj Tulshi Paswan were convicted under different Sections for various offences including Section 302 read with Section 34, Section 307 read with Section 34, IPC and Section 452 read with Section 34 of the IPC. While they were awarded death sentence for the offence under Section 302, they were awarded 10 years' rigorous imprisonment with fine of Rs. 5,000/- each, and in default, to suffer 5 month's imprisonment each for offence under Section 307 read with Section 34, IPC and three year's rigorous imprisonment and to pay a fine of Rs. 1,000/- each, in default, to suffer one month's imprisonment.

3. Since it was a death sentence matter, reference was made to the High Court for the confirmation of the death sentence and the accused also filed appeals against their conviction and the punishment therefor before the High Court. The High Court has confirmed the death sentence while the appeals of the accused persons were dismissed. That is how these two appeals have come before us.

4. As per the prosecution case, accused No.1, Dilip Premnarayan Tiwari, is the son of original accused No. 4, Premnarayan Brijkishore Tiwari, and original accused No. 5, Tulsa Devi is the wife of accused No.4. Accused No.1, Dilip's sister Sushma fell in love with deceased Prabhu who used to live in the neighbourhood of their residential house. Ultimately, she got married to Prabhu. Prabhu being a Keralite and belonging to `Ezhava' caste, the marriage was not approved of by the family of Sushma since Sushma belonged to a Brahmin caste from the State of Uttar Pradesh. The whole family of Sushma was extremely opposed to the marriage which took place on 29.10.2003 before the Registrar of Marriages, Bandra, Mumbai. According to the prosecution, there were efforts to call back Sushma into her familyfold. According to the prosecution, she was threatened and so were her in-laws by original accused No.1, Dilip.

5. The love affair of Sushma with deceased Prabhu was going on for about 5-6 years and deceased Abhayraj @ Bachhu and Bijit used to act as messengers between the two. They were also threatened during the love affair by Dilip as well as his mother, original accused No.5, Tulsa Devi. According to the prosecution, accused Dilip had assaulted Sushma with kicks and fist blows on account of her love affair with Prabhu and had also threatened that in case she married Prabhu, both will be eliminated. However, as has been stated earlier, the marriage took place on 29.10.2003 and after the marriage Sushma started residing with her husband, deceased Prabhu. She was a college going girl at the time of her marriage and she continued her education even after her marriage. Accused No. 5, Tulsa Devi also advised her to leave Prabhu. She also promised her that her second marriage would be arranged in Uttar Pradesh. Her elder sister Kalpana, who is already married had also tried to contact Sushma and had come to the house of Sushma to meet her. She had also met Sushma on 08.05.2004 in her college and tried to persuade her that her husband was not smart and was not earning anything and, therefore, she should accompany her to their hometown in Uttar Pradesh where they had selected one youth serving in the Air Force and that Sushma should marry him. Sushma straightaway refused all these proposals. In fact, on account of these threats, Sushma had suggested that a police complaint should be lodged against Tiwari family. However, she was assured by her husband Prabhu that everything would be alright with the passage of time. There were even proposals that on account of the threats, Sushma and Prabhu should leave Bombay and stay in his hometown in Kerala. However, instead of doing that, Sushma, who was pregnant at that time, was sent to Prabhu's relative's house in Andheri and that is how Sushma was shifted to the house of Shashidharan, PW-2. Shashidharan's wife was the sister of Prabhu's mother, Indira. One Balan, PW-1 also used to live in Andheri. His wife was the third real sister of Prabhu's mother, Indira.

6. The ghastly incident took place on the night of 16/17th May, 2004. On that day, Prabhu's father Krishnan Nochil himself, his nephew Bijit, Prabhu's sister, Deepa (PW-4) and Indira (PW-8) were present in the Noichil household. At about 1.15 a.m. at night someone knocked the back side door of their house. Deceased Krishnan Nochil opened the door. According to the prosecution, the three appellants, namely, Dilip (A-1), Manoj (A-3) and Sunil (A-2) and one more unknown person entered the house. Dilip and Manoj assaulted Krishnan Nochil with knife over the chest, stomach and when Prabhu rushed to save his father, accused No. 1, Dilip and accused No. 3, Manoj assaulted him also with knife and stabbed him in stomach and chest. As per the prosecution case, Dilip asked Sunil and one unknown person to take Prabhu out of the house and kill him. When Deepa (PW-4) started proceeding ahead to save her brother, Dilip and Manoj rushed towards her with knife and at that time Bijit who had come there caught hold of accused Manoj and urged him not to assault her. At that time accused Manoj inflicted blows with knife over hand, chest and cheek of Bijit as a result of which Bijit fell down. The accused Dilip and Manoj came near Deepa and inflicted blows with knife on her face and body and when Deepa fell down, Indira, Prabhu's mother who was awakened, tried to intervene. At that time, she was also assaulted by Dilip (accused No.1) and Manoj (accused No.3). At that time, Sunil who had gone out along with the unknown assailant came back and inflicted knife blows over the neck of Abhayraj @ Bachhu who had in the meantime come there. Abhayraj was the immediate neighbour and used to live in between the houses of Tiwari household and Noichil household. Having been assaulted, he ran outside when Sunil (original accused No.2) chased him and assaulted him also. Accused Dilip and Manoj then left the house and while leaving, Manoj had dropped the knife in that room. Deepa who was severely injured gathered her courage and after 10- 15 minutes of the assault contacted PW-1, Balan on phone and informed him about the incident of assault at the instance of accused No.1 Dilip, accused No.3 Manoj and accused No, 2 Sunil and one more person. Indira, mother of Prabhu who was also seriously injured somehow opened the front door and shouted `bachao bachao'.

7. At this time Prabhu was lying in an injured condition in front of the door and was shouting `mummy mummy''. Balan (PW-1), on receiving the phone call in the dead of night from Deepa, rushed to the Noichil household in Khairpada Waliv at about 4'O clock in the morning only to find that his son Bijit and brother- in-law Krishnan Nochil were dead and lying in the pool of blood while Deepa, Indira and Prabhu who were alive, were shifted to the local dispensary by Head Constable Bhosale who was on bandobast duty at check post, Sativali Khind, who had rushed to the spot on being informed. Bhosale had also sent a message to Manikpur Police Station to send one mobile van. Bhosale also brought one tempo and arranged to send the three injured to Primary Health Centre, Navghar.

8. By that time, Balan who was informed by Deepa had contacted Shashidharan and come to Navghar along with Shashidharan. Thereafter, all the injured were taken to one Bhagvati hospital as they were very seriously injured and could not have been treated in the Primary Health Centre at Navghar. Deepa and Indira were not in a condition to speak, however, Prabhu disclosed to Shashidharan who was accompanying them in the mobile van that Sushma's brother Dilip, Manoj and Sunil and one more person had inflicted knife blows and had injured him and other persons of the family.

9. The injured Prabhu reached Bhagvati hospital along with Shashidharan in the mobile van and there he also succumbed to his injuries. Deepa had lost her consciousness while Indira was also very seriously injured and they were treated in the Hospital. But before that, at about 5 a.m. Balan came to the police station and lodged the First Information Report which was registered as C.R.No. 1-144/04 registered at about 5.30 a.m. for the offence under Section 302 and 307, 452 read with Section 34 of the IPC. The police reached the spot and PSI Shri Bharve prepared the inquest Panchnama of the dead bodies of Krishnan Nochil and Bijit. He also prepared the inquest Panchnama of Abhayraj who was lying outside the house near K.T.Maidan and, thereafter, all the three dead bodies were sent for post-mortem examination. Investigation officer also prepared the spot Panchnama and seized blood stained handkerchief, blood stained iron knife which were lying there and also collected the blood samples lying on the floor. Deepa's statement came to be recorded on 18.05.2004 after she regained consciousness. Prabhu's body was also sent for post-mortem.

10. During the investigation, the statements of witnesses like Sushma and Indira came to be recorded. Dilip was arrested on 29.5.2004 from Uttar Pradesh. One knife, pant and shirt having blood stains were recovered at the instance of Dilip. Since Indira was very seriously injured, her statement could be recorded on 02.06.2004 in the Hospital. Accused Sunil came to be arrested on 02.06.2004. He has also disclosed on 05.06.2004 about the knife and the blood stained clothes which were seized. Accused No.2, Manoj came to be arrested only on 22.06.2004 while the parents of Dilip (original accused No.1), Premnarayan Tiwari (original accused No. 4) and Tulsa Devi (original accused No.5) were also arrested on 25.6.2004. After the completion of the investigation the charge sheet was filed against five named accused and on that basis charges were framed against all the accused persons. The Trial Court, however, acquitted original accused Nos.4 and 5 since they had not taken part in the dastardly attack and the charge of conspiracy under Section 120B, IPC also was not proved against them, but awarded death sentence to the remaining accused and that is how the matter has come before us.

11. Shri Gaurav Agrawal, Advocate appeared for accused No.1, Dilip and accused No. 3, Manoj and Shri S.N. Raj, Advocate appeared for accused No.2, Sunil while the State of Maharashtra was represented by Shri Sushil Karanjkar, Advocate. Shri Gaurav Agrawal attacked the findings of the Trial Court and the High Court in respect of both the accused persons. The mainstay of his argument was that the whole prosecution case stood on extremely weak basis inasmuch as all the prosecution witnesses were interested witnesses and as such it was very risky to rely on the evidence of those witnesses. Learned counsel severely attacked the so-called oral dying declaration by deceased Prabhu alleged to have been made by him in the Ambulance Van to Shashidharan (PW-2). Learned counsel argues that Prabhu who was severely injured and who died barely within few hours of his reaching the Hospital could not be said to be in the proper physical condition to make a dying declaration. The counsel, therefore, urged that the acceptance of such a weak piece of evidence for corroborating the prosecution evidence could not be accepted. The learned counsel also invited our attention to the fact that though from the beginning, the case of the prosecution was that there were, in all, four accused persons; the fourth accused person besides the three appellants could neither be identified nor brought before the law. Therefore, the whole prosecution case had become mysterious. As regards the evidence of the eye witnesses, the learned counsel pointed out that the said evidence of Deepa (PW-4) and Indira (PW-8) was unnatural, apart from the fact that it was riddled with material contradictions and omissions and was contradictory inter se. The learned counsel also commented upon the medical evidence suggesting that the said evidence was not commensurate with the eye witness account. As regards the rest of the circumstantial evidence, the learned counsel pointed out that it was not trustworthy. Insofar as the verdict of the High Court in confirming death sentence was concerned, the learned counsel urged that this was not a rarest of rare case though as much as four persons had lost their lives.

12. Shri Raj, learned counsel appearing on behalf of the accused No.2, Sunil adopted the arguments of Shri Agrawal insofar as they pertained to the evidence of the eye witnesses as also the other aspects of the case. However, Shri Raj invited our attention to the fact that after reaching the Hospital, the deceased Prabhu had made a dying declaration which was recorded by Doctor Shri S.S. Anakal (PW-5). He pointed out that the said dying declaration was counter signed by the Investigating Officers and the said dying declaration also bore the thumb impression of deceased Prabhu Krishnan Nochil. Learned counsel further pointed out that this dying declaration formed part of the charge-sheet and was supplied to the accused persons along with the same. He further pointed out that though this dying declaration was not put to the witness, Dr. Anakal (PW-5) during the Trial before the Sessions Judge, an application to that effect was filed before the High Court and the High Court rejected the same. Learned counsel issued a notice under Section 294 (2) Cr.P.C. to the Public Prosecutor to admit this document whereupon the Public Prosecution has admitted the said document. According to the learned counsel, therefore, the non-consideration of the said dying declaration very seriously prejudiced at least accused No.2, Sunil whose name was not to be found in the said dying declaration. Learned counsel, therefore, urged that the participation of Sunil (accused No.2) was highly suspicious, more particularly, in view of the fact that the identity of Sunil was not established by the prosecution either by holding Test Identification Parade or even in the Court hall as the witnesses had not specifically identified the accused persons individually. Shri Raj also urged that the absence of Sunil's name in the First Information Report given by Balan (PW-1) speaks volumes and was not realized by the Courts below. Shri Raj further urged that there was no reason for the Courts below to presume that Sunil Yadav was a friend of Dilip and Manoj as there was no evidence brought on record regarding their acquaintance and even the prosecution had not collected any evidence to establish the nexus between accused No.2, Sunil and the other two accused persons. Shri Raj, therefore, argued that accused Sunil was bound to be given the benefit of doubt.

13. It has come in evidence of Deepa (PW-4) that immediately after the incident, though injured seriously, she managed to call Balan (PW-1) on his landline and narrated the incident to him. She undoubtedly claims that she had taken the names of Dilip (A1), Manoj (A-3) and Sunil (A-2) as also one more person as the persons who had assaulted her family members and herself. Because of the presence of mind of Deepa to call Balan, Balan immediately went into action and firstly contacted Shashidharan (PW-2), also a resident of Andheri as Balan. Both these witnesses were related to the family inasmuch as while Balan is the husband of PW-8, Indira's sister, Shashidharan is the husband of Balan's wife's sister meaning that she is the third sister of Indira though Balan does not specifically say so in his evidence. Shashidharan deposed that he was woken up by Balan at about 1.30 a.m. and was told that Dilip, Manoj and Sunil along with their associate had assaulted the members of Nochil family. Significantly enough, Sushma, wife of deceased Prabhu was also at that time present in his household, she having come to his house for staying allegedly on account of the threats given to her by Dilip. Shashidharan then seems to have contacted his brother Gopal Krishnan and with his help contacted Vasai Police Station and informed about the incident. However, he was informed by Vasai Police Station that Waliv Kherpada where incident had taken place comes within the jurisdiction of Manikpur Police Station. According to this witness, he narrated this incident to Manikpur Police Station by calling them but they refused and instead asked them to contact Waliv Police Station.Thus, they left Andheri at about 3 a.m. and reached the spot of occurrence Waliv at about 4 a.m. After reaching there they came to know that the injured Deepa and Indira along with injured Prabhu had been sent to the Primary Health Cenre of Wasai. The claim of Shashidharan (PW-2) is that he and Balan reached Manikpur Police Station at about 5 a.m. where Balan lodged the complaint. We have seen the said report made by Balan vide Exbt. P-27. It is to be seen specifically that in that report he informed that Deepa Nochil had informed him at about 1.15 a.m. on 17.05.2004 that Dilip who was the brother of her sister-in-law Sushma and his three associates had trespassed into the house and had beaten all the inmates and had also given knife blows to them and they still were engaged in assault and, therefore, Balan should come as early as possible to Vasai. Significantly enough, the names of accused Manoj and accused Sunil are not to be seen in this report. It has also come in the report that since Dilip and his family members did not approve of love marriage of Sushma with Prabhu and inspite of their opposition Sushma had married Prabhu; hence Dilip and his associates had given blows with sharp weapon to his brother-in-law Krishnan, sister-in-law Indira, her daughter Deepa, her son Prabhu and his son, Bijit. It was also pointed out that Krishnan and Bijit had died in the attack and Indira, her dauther Deepa and her son Prabhu were seriously injured and were taken to the dispensary. Though in his evidence Balan (PW-1) insisted that he had also told the names of Dilip (A-1), Manoj (A-3) and Sunil (A-2), the names of Manoj and Sunil are not to be found in the FIR. Though there was a reference that Dilip (A-1) was accompanying three other associates, the witness was specific in asserting that from the spot of occurrence he did not go directly to the dispensary but went to the Police Station first.

14. The further significant thing about the FIR is that there is no reference to the death of Abhayraj who had also lost his life. It is slightly unusual that though this witness as per his admission knew Abhayraj, there is no reference of the name of Abhayraj in the FIR. Shri Gaurav Agrawal, learned counsel tried to take advantage of this and pointed out that the name of Manoj (A- 3) was not to be found in the FIR and that advantage must go to Manoj on that account. It is also seen that the witness had also failed to speak about the body of Abhayraj. In our opinion, though the omission of names of Manoj and Sunil is significant, much importance cannot be given to this omission. The FIR was after all given by a person who had seen the body of his young son having been brutally murdered. He had also seen the dead body of his brother-in-law and had also come to know that the other three members of the family of Krishnan were also seriously injured in the incident. The witness is bound to be excited and some scope would have to be given to the mental state of the witness at that time. The significance of this omission will be considered when we individually consider the case of each accused. The Trial Court as well as the High Court have not attached much importance to this omission and rightly so. However, the fact must be noted at this juncture that though this witness PW-1, Balan had come to know about the role played by Manoj (A-3) and Sunil (A-2), their names were not mentioned in the report. After these two persons went to the Primary Health Centre from the Police Station an Ambulance was called as all the three injured persons were in a serious condition and possibly could not have been treated in the Primary Health Centre and, therefore, they had to be shifted to the other Hospital.

15. At that time, during the journey to the hospital, Prabhu is stated to be conscious and had told the names of Dilip, Manoj and Sunil to Shashidharan who was accompanying the injured in the Ambulance Van. That is the claim of Shashidharan (PW-2). As per his claim, Prabhu had taken the names of Dilip, Manoj and Sunil and one more person as the persons who had inflicted blows with knife on Prabhu. The witness described Manoj (A-3) and Sunil (A- 2) as the friends of Dilip (A-1). The witness was candid enough to tell that he did not know them personally and further claimed that Prabhu had told him that they were Dilip's friends. His statement was recorded on 17.05.2004 in the evening. He denied and was contradicted on the question of Balan's wife accompanying them. However, he asserted further that the wife of Balan was not accompanying them. That, in our opinion, is an insignificant contradiction. Other omissions were also proved in the evidence but they are all insignificant omissions. Sushma was allegedly present at the time when Balan came to her house and a suggestion was given to him that they enquired from Sushma about the names of Manoj and Sunil. He, of course, refuted this suggestion. He was candid enough to admit that he did not know the names of fathers and surnames of Manoj and Sunil. He had not even seen Manoj and Sunil till then. He deposed in the Court that he had never gone to the house of Dilip at any time nor talked to any of his family members. There is a significant omission in his statement to the effect that he admitted that he had not stated before the police that Sushma's brother Dilip, Manoj, Sunil and one more person inflicted blows with knife. He also asserted that he had not stated that Prabhu had told him that Manoj and Sunil were Dilip's friends. It was specifically suggested that Prabhu had never disclosed him about Manoj and Sunil being Dilip's friends. It was also suggested that Prabhu had not disclosed about the assault by these three persons on Prabhu's family members. He obviously refuted those suggestions.

16. From the evidence of these two important witnesses one of whom was the author of the FIR what transpires is that while the role played by Dilip has been reflected in the FIR, the roles played by Manoj and Sunil are not to be seen as reflected in the FIR. Even as regards the alleged disclosure by deceased Prabhu to this witness in the Ambulance Van would depend upon the evidence of Deepa and Indira who were also present in the same van.

17. When we see the evidence of Deepa, it is seen that she was an injured witness. As per the evidence of PW-9, Dr. Mahendra Chandak, Deepa had suffered as many as four contused lacerated wounds over right side of upper and lower lip, left shoulder, left lumber region with omentum protruding out and over left gluteal region.

18. All the injuries and, more particularly, the injury Nos. 3 and 4 do appear to be serious injuries which have been reflected in medical Exbt.57 and the injuries were stated to be possible with sharp edged weapon like articles 6, 17 and 19. Therefore, there can be no dispute about the presence of Deepa on the scene. In her evidence Deepa asserted that she also knew the accused in the case and then points out that she heard the knocking of the door at about 1.15.-1.30 a.m. She then saw the door being opened by the father after putting on the electric light and the further fact that as soon as the door was opened accused Manoj, DIlip and Sunil and one unknown person entered the house and they were all armed with knife. She asserted that accused Dilip (A-1) and Manoj (A-3) started stabbing her father. She was terrified and, therefore, shouted and her brother Prabhu also came and when he intervened accused Dilip (A-1) and Manoj (A-3) stabbed him also on his stomach and chest. She then claims that she tried to intervene to save her brother. Accused Dilip told accused Sunil and the unknown person to take Prabhu outside and accordingly Sunil and the other unknown person took Prabhu outside. She then claimed that Dilip and Manoj then rushed towards her. However, Bijit came out and caught hold of Manoj and urged him not to assault Deepa and, therefore, accused Manoj started inflicting blows with knife on the stomach and chest of Bijit also. It is further stated that Dilip and Manoj rushed towards her and inflicted knife blows on face, stomach and other parts of her body. She shouted and it is at that time her mother Indira came and she was also given blows by Manoj and Dilip because of which her mother fell down. She then adds that afterwards accused Sunil entered the room and deceased Abhayraj also entered the room and Sunil inflicted the blow with knife on him and he ran away and was followed by Sunil. At that point of time, according to her, Manoj dropped the knife in his hands and then accused Dilip and Manoj left. She also asserted that she had told the names of Manoj, Dilip and Sunil and one more unknown person when she telephoned her uncle Balan (PW-1). According to her, she heard her brother Prabhu who was lying outside the front door calling `mummy mummy'. She, thereafter became unconscious and regained her consciousness only on the next day in Bhagwati Hospital where she was admitted for about 1-1/2 months. A statement came to be recorded only on 18.05.2004. In her examination-in-chief, she has asserted that she knew Manoj and accused Sunil as Dilip's friends. She was extensively cross-examined as regards the topography of the place and the topography of her house as also the role played by him.

19. Before we consider her evidence, it must be noted that though she did not know the father's name of accused Manoj Paswan and further though she did not know about his job, business or service she asserted that prior to the marriage of Prabhu with Sushma, accused Manoj had interacted with her on many occasions. She also asserted that Manoj lived in the house of accused Dilip only. She also asserted that after the marriage between Prabhu and Sushma, she had not gone to the house of Dilip. She also denied the suggestion that Dilip had never come to their house after the marriage of Sushma. She asserted that accused Dilip had come to their house and given threats. In her cross-examination, it has come that Abhayraj was her next door neighbour and used to exchange the messages between Prabhu and Sushma. She has also spoken about the efforts on the part of Dilip's sister Kalpana and Dilip's mother to persuade Sushma to come back to her house even after the marriage.

20. Significantly enough, in her lengthy cross-examination, very little is asked to her about the actual incident of assault. This witness was the most natural witness and had also the opportunity to watch the dastardly attack and she had withstood her cross-examination extremely well insofar as the attack by accused Dilip and Manoj was concerned. She was not injured till her father, deceased brother Prabhu and Bijit were attacked by the accused persons. A wild suggestion was thrown to her about the fact that she had not seen the incident as she was also being assaulted with her mother, which Deepa has, of course, refuted. Again a wild suggestion was thrown at her that the unknown person had disconnected the electric supply and the telephone connection and thereafter, the incident took place. Again one fantastic suggestion was given to her that on the night of incident her brother and Abhayraj had gone to Shivaji Nagar and consumed liquor and they quarreled there and Abhayraj was killed at Shivaji Nagar and thereafter those unknown persons chased her brother up to their house. Some omissions were shown in her evidence and she admitted that she had not stated that all the four persons were armed with knife. She also accepted that she had not given the description of knife since she was not asked. Insofar as the cross-examination at the instance of accused No.2, Sunil is concerned, one very significant fact has come in her evidence to the effect that she asserted that she had told the names of Sunil and Manoj as Dilip's friends. She had accepted that such fact was not written in her statement. She had also stated before the police that accused Sunil and the unknown person took Prabhu out of the room and she did not know as to why this fact is not written in her statement before police. She stated that it was not true to say that she made a false statement that Sunil was Dilip's friend. She further stated it was not true to say that she made a false statement that her father opened the door and accused Sunil and others entered the house armed with knives. She also stated that it was not true to say that she made a false statement that accused Sunil and one unknown person took Prabhu out of the room as stated.

21. Inspite of all these omissions which have been proved, we are convinced that Deepa had seen all the three accused persons. Not only that, she had also identified all the three accused persons. She had no reason not to identify Dilip and Manoj who were staying almost in her neighbourhood. Her assertion that Manoj was residing in Dilip's house has come in her cross- examination and has not been explained anywhere. As far as accused No. 2, Sunil is concerned, it must be noted that a poor attempt was made that Yogita who was her friend had also a brother called Sunil. Merely because the witness had not stated that Sunil and Manoj were the friends of Dilip, it cannot be said that Sunil was not identified. Her claim that she knew all the accused persons could not be demolished in spite of the lengthy cross- examination.

22. Shri Raj, learned counsel tried to submit that she had not identified the accused persons individually in the Court. The argument is clearly incorrect. If she had claimed that she had known all the accused persons that could have been challenged in the cross-examination by asking her to identify the accused persons. The defence backtracked on that issue and did not choose to ask her to identify the accused individually. It was obvious that if she very well knew Dilip and Manoj, which claim cannot be disputed, the remaining third accused would be Sunil and she would be in a position to identify him individually and probably that is why the defence did not take the chance. The other two accused were also related to Dilip, being father and mother of Dilip. Therefore, it was obvious that the witness had meant only accused No. 2 as Sunil. The evidence of the witness about the role played by Dilip and Manoj, to begin with, and thereafter by Sunil in assaulting Abhayraj has gone almost unchallenged. There is practically nothing in the cross-examination and the whole cross- examination was only on fringes. She also went to the extent of telling the colours of the clothes which were worn by Bijit and her father as also described the clothes worn by Prabhu. That claim has also not been disputed nor demolished in cross- examination. Very strangely, the cross-examination was directed at the omissions of the claims which the witness had not made in her examination-in-chief and on the basis of the answers given in cross-examination which was not permissible. The whole evidence of the witness is extremely natural and the witness has not tried to unnecessarily implicate anybody else. She has not assigned any role to the unknown person. She has also not exaggerated by stating that Sunil also assaulted herself, Indira or Bijit. It is only as regards Abhayraj that she has attributed the assault to Sunil against him. Her whole evidence being the evidence of injured eye-witness was wholly credible as has been held by the Trial Court as well as the High Court. Even her evidence, insofar as the assault on herself and her father and Bijit is concerned, is supported by the medical evidence which evidence we will consider in the latter part of the judgment. We, therefore, cannot accept the contention raised by Shri Agrawal that Manoj was not identified merely because his name did not appear specifically in the FIR. We also reject the contention of Shri Raj to the effect that Sunil was not identified at all by this witness. This takes us to the evidence of Indira, another witness injured during the assault.

23. Indira also asserted in her evidence that she knew the accused persons including Sunil (accused No.2) and accused Manoj (accused No.3). She was woken up owing to the shrieks of Deepa and Krishnan. She saw that Deepa and her husband were in the injured condition when she entered the TV room. It is significant that at that time, accused Dilip and accused Manoj rushed towards her and inflicted blows with knife over her neck, chest, face and hands. She has also seen accused Sunil (accused No.2) entering the room at that time which version completely tallies with the version of Deepa. She also attributed the neck injury of Abhayraj to accused Sunil. It is significant that she has not referred to deceased Prabhu who had been dragged outside. She then asserted that accused Sunil chased Abhayraj who ran outside the house from the back door. She asserted that Prabhu disclosed to her that Dilip (accused No.1), Manoj (accused No.3) and Sunil (accused No.2) and one more person had assaulted him with knife. She has also extensively been cross-examined. In her cross-examination, she had rightly asserted that when she entered the room, Prabhu was not present in the room and Deepa had also fallen down. She was asked about Deepa Kakad who resided adjacent to their house. There is an important omission about Prabhu's having stated to her that it was accused Dilip, Manoj and Sunil who had assaulted him. In spite of that omission, it cannot be forgotten that Indira is an injured eye-witness herself and had seen assault on deceased Abhayraj by Sunil (accused No.2). She has also seen Dilip and Manoj. Her claim in the examination-in-chief that she knew accused Dilip (accused No.1), Manoj (accused No.3) and Sunil (accused No.2) and further claim that Sunil and Manoj were friends of Dilip has not been demolished at all in the cross-examination.

In fact there does not appear to be any challenge to that claim. It must be noted that both Deepa (PW-4) and Indira (PW-8) have not spoken about any dying declaration having been made by Prabhu to PW-2, Shashidharan while they were being taken to the Hospital, probably because both Deepa and this witness, Indira were unconscious while Deepa regained her consciousness only in the Hospital. This witness was very seriously injured and regained her consciousness after quite some time. The only cross- examination on behalf of accused No.2 was that there were a few persons with the name Sunil in their locality. She also had not stated that Sunil was a friend of Dilip. In our opinion, these omissions do not help the defence as there was no reason for these witnesses to falsely implicate Sunil. There is really no strained relationship of this witness with Sunil at least shown in their cross-examination. Under these circumstances, the witnesses would gain nothing by falsely implicating Sunil and Manoj. There is absolutely no cross-examination in respect of the identity. Therefore, the evidence of these two witnesses was rightly believed by the Trial Court as also by the High Court. In our opinion, this clear cut eye-witness account by Deepa and Indira is enough to convict Dilip (accused No.1), Manoj (accused No.3) and accused Sunil (accused No.2).

24. During the arguments before us Shri Raj gave a notice under Section 294 (2), Cr.P.C. to the State counsel to admit the document which is so-called dying declaration of Prabhu dated 17.05.2004. This dying declaration was a part of the charge-sheet and the copy thereof was supplied to the accused persons. Very strangely, this dying declaration was not brought forth on record by the prosecution. The said dying declaration now having been admitted by the Public Prosecutor can be read in evidence. It is counter signed by Dr. S.S. Anakal (PW-5). It is also counter signed by the Investigating Officer Kailash Bharve. It bears a thumb mark. This was made by deceased Prabhu wherein it has been stated that at about 1.30 a.m. Prabhu's father was assaulted by 2- 3 persons with knife and when he came out, he was also assaulted. At that time accused Dilip and accused Manoj inflicted knife blows on him and at that time two more persons entered the house and started assaulting them. Further it is stated that while Dilip and Manoj were trying to assault his mother, he tried to stop them. He has also suggested that since he had married Dilip's sister Sushma, Dilip, Manoj and their other associates had entered their house and assaulted them. In fact when the matter was pending before the High Court for confirmation, the accused filed an application under Section 391 of the Code of Criminal Procedure to take on record this dying declaration. We have seen that application. In that application production of additional evidence under Section 391, Cr.P.C. was suggested on the ground that though such a dying declaration was given to Dr. S.S. Anakal by deceased Prabhu, the same was not brought on record by the prosecution and the same was suppressed from the defence before the Trial Court. It was stated to be a vital omission on the part of the prosecution and it was further claimed that it went to the root of the matter as far as the culpability of accused Sunil is concerned. It was also pointed out that in the said dying declaration, the name of Sunil Yadav was not mentioned and that due to inadvertence, the said dying declaration was not confronted during the evidence of PW-5, Dr.S.S.Anakal. The application was rejected by the High Court. Very strangely, this application was opposed by the Public Prosecutor as also the learned counsel appearing for Dilip (accused No.1) and Manoj (accused No.3). The High Court observed in its order dated 01.09.2007 that though Dr. Anakal was examined as witness and though the copy of this dying declaration was furnished to all the accused persons during the trial, no question was put with regard to Prabhu's dying declaration by the counsel for accused No.2, Sunil before the Trial Court. It was on these grounds that the High Court observed that in view of the strong opposition by Dilip (accused No.1) and Manoj (accused No.3) to the application, the High Court was not inclined to exercise its discretion in favour of the appellant and on that ground the application stood rejected.

25. To say the least, we are surprised by the order passed by the High Court. In fact the proceedings before the High Court were in the nature of an extended trial. The confirmational proceedings are always the original proceedings. The High Court was dealing with the accused who was facing death sentence. Therefore, merely because no question was asked to Dr. S.S. Anakal (PW-5), the document could not have been held back and an opportunity was bound to be given by getting the document proved if necessary by re-calling Dr. Anakal by the High Court itself. The task of the Public Prosecutor is not only to secure the conviction, he has a duty to the Court. He is an officer of the Court and, therefore, in all fairness, firstly the document should have been brought on record and secondly, even if Dr. Anakal who recorded the dying declaration was not confronted with that dying declaration, that opportunity could not have been denied before the High Court since the proceedings before the High Court were in the nature of original proceedings and an extended trial. We are surprised that the Public Prosecutor opposed the application. Fairness of the trial is the basic requirement in the criminal law. We think that the Public Prosecutor ought not to have opposed the production of the document. We, therefore, allowed the production of the document.

26. In a reported judgment Rampal Pithwa Rahidas & Others. v. State of Maharashtra [1994 Supp (2) SCC 73] somewhat similar situation occurred where this Court reiterated the duty of the investigating agency to act honestly and fairly. In that case a communication-cum-application by an approver, before he was made approver wherein he had claimed the bail on the ground that he knew nothing about the offence and he was unnecessarily being incarcerated, was not confronted to him at the time of trial. The Court took the view that though the witness was not confronted with that statement and in a strict sense it was not brought before the Court, yet the same communication could be looked into by the Courts. The Court also observed in paragraph 37 as under:

"The quality of a nation's civilization," it is said, "can be largely measured by the methods it uses in the enforcement of criminal law" and going by the manner in which the investigating agency acted in this case causes concern to us. In every civilized society the police force is invested with the powers of investigation of the crime to secure punishment for the criminal and it is in the interest of the society that the investigating agency must act honestly and fairly and not resort to fabricating false evidence or creating false clues only with a view to secure conviction because such acts shake the confidence of the common man not only in the investigating agency but in the ultimate analysis in the system of dispensation of criminal justice. Let no guilty man go unpunished but let the end not justify the means! The Courts must remain ever alive to this truism. Proper results must be obtained by recourse to proper means - otherwise it would be an invitation to anarchy."

27. Shri Raj urged that we should send back the matter for further examination of Dr. S.S. Anakal and, if necessary, the other witnesses like the Investigating Officer who has also counter singed the said dying declaration. Shri Gaurav Agrawal also urged that in case the dying declaration is sent back then further opportunity will have to be given even to accused Nos. 1 and 3 to further cross-examine the witnesses as the dying declaration clearly goes against at least accused Nos. 1 and 3.

28. Ordinarily, we would have sent back the matter. However, we cannot ignore the fact that all the three accused persons are facing death sentence awarded by the Trial Court and confirmed by the High Court. We would not, therefore, increase the agonies of the accused persons by sending back the matter to the High Court; in stead, since accused No.1 and 3 did not have opportunity to cross-examine the witnesses about the document, we will not consider the documents against accused Nos. 1 and 3. Insofar as accused No.2, Sunil is concerned, it is true that his name does not appear in the said dying declaration but in our considered opinion that would be of no consequence for the simple reason that the evidence of the eye-witness completely fixes the criminal liability on the part of accused No.2, Sunil. Therefore, even if the said dying declaration is somewhat helpful to Sunil, that by itself will not wipe out the evidence of the two eye-witnesses whose evidence was credible as held by the Trial Court as well as the Appellate Court.

29. Thus in our view, the conviction of all the three appellants before us as ordered by the Sessions Judge and confirmed by the High court is correct and we confirm the same.

30. This, however, takes us to the question of sentence. This is a case where the death sentence has been ordered by the Sessions Judge which has been confirmed by the High Court. We must, at this juncture, take the overall circumstances while taking into consideration the death sentence awarded by the Courts below. As held in Machhi Singh v. State of Punjab [1983 (3) SCC 470] as also in Bachchan Singh v. State of Punjab [1980 (2) SCC 684], we must weigh the circumstances justifying the grant of death sentence vis-`-vis the mitigating circumstances. The High Court considered the following circumstances justifying the imposition of death penalty"

"(a) Helpless victims

(b) Unarmed victims

(c) Victims woken from sleep at midnight

(d) Manner of inflicting injuries, 20-30 serious injuries on death of the deceased, whereas even a single injury would have been sufficient to kill, shows the barbarous attitude;

(e) Attacking ruthlessly six persons, Deepa and Indira were let off presumed to be dead, seeking to wipe off the entire family;

(f) Attack on every vital organ;

(g) Young boy Bijit was brutally assaulted;

(h) Not only Prabhu, even the messenger boy Abhayraj was brutally assaulted;

(i) The time chosen was past midnite hence clearly premeditated;

(j) Assault on lower caste based on caste hatred:

(k) Marriage took place on 29.10.2003 and the assault was on 17.05.2004 i.e. after a lapse of seven months. As Dilip was totally opposed to the marriage, the above attack was highly premeditated and not at the heat of moment.

31. The High Court relied on the judgment of Dhananjoy Chatterjee @ Dhana v. State of West Bengal [2004 (9) SCC 751] and quoted extensively therefrom. One other case Ronny alias Ronald James Alwaris & Ors. v. State of Maharashtra [1998 (3) SCC 625] was also relied on by the High Court. The High Court extensively quoted from the judgment in Ediga Anamma v. State of Andhra Pradesh [1974 (4 )SCC 443] and State of U.P. v. Dharmendra Singh & Anr. [1999 (8) SCC 325] as also Lehna v. State of Haryana [2002 (3) SCC 76].

32. However, even a close scrutiny of the judgment does not show any effort on the part of the High Court to consider the mitigating circumstances, though such exercise has been done by the Trial Court in paragraph 42 of its judgment. The mitigating circumstances considered by the Sessions Court are:

"1) The age of the accused persons being between 20-25 years; 2) Their clean past, in the sense they were not involved in any offence previously"

33. Shri Raj and Shri Gaurav Agrawal addressed us extensively on the mitigating circumstances. As far as accused No.1, Dilip and accused No.3 Manoj are concerned, the learned counsel first pointed out that apart from the two circumstances considered by the Sessions Judge, namely, the young age of the accused persons and there being no criminal antecedents, there were number of other mitigating circumstances which the Courts below had not considered. It was submitted that accused No.1, Dilip must have felt morally justified in attacking the family members due to the fact that his younger sister had revolted against the family and got married to Prabhu, a Keralite. Therefore, to preserve the family honour, Dilip had taken the revenge of the so-called insult of his family. It was also pointed out that since Manoj was the resident of the same house, he also may have been persuaded to join the crime as also Sunil who was all through described as the friend of Dilip.

34. Learned counsel further argues that insofar as Manoj was concerned, he apparently had no enmity though he might have felt it necessary to display the loyalty to the family in whose house he was living and it could have been only out of that, that the murders took place. Learned counsel further argued that the deaths of Bijit and Abhayraj were in reality not the intended deaths but they became the victims of the circumstances since Bijit tried to stop the assailants. He was not supposed to be present there but his fate drew him in the house and he became the prey of the murderous assault. Perhaps nothing would have happened had he not come to the room. He not only came in the room but also tried the stop the assailants from assaulting.

35. As regards Abhayraj, learned counsel pointed out that he was not there in the beginning but he being the immediate neighbour must have come attracted by the shrieks and lost his life. According to the learned counsel, there is very little or almost no evidence available as to how Abhayraj was killed and by whom. The counsel pointed out that the only allegation was that Sunil (A-2) dealt a blow on his neck and when he ran away he was followed by Sunil and the unknown person. Learned counsel also highlighted that the possibility of the said unknown person being responsible for the death of Abhayraj and Prabhu could not be ruled out since, as per the evidence of Deepa, Sunil and that unknown person took Prabhu out and then it is not established as to how many blows were dealt on Prabhu and, therefore, Sunil alone could not be held to be responsible. There may be a substantive contribution on the part of that unknown person to the crime, at least for the murder of Prabhu and Abhayraj. Learned counsel further highlighted the role of the unknown person and the fact that the said unknown person remained a mysterious part of the investigation and trial. Therefore, it was ultimately urged that it could not be deemed to be an assault with a common intention to wipe out the whole family as has been tried to be suggested by the prosecution.

36. Learned counsel further submitted that it could not be said that the accused could not be reformed, particularly, because their antecedents were clean or at least the prosecution was unable to point out any criminal activity in the past on the part of the accused persons.

37. Shri Raj, appearing for accused No.2, Sunil also supported these arguments and added that, in reality, Sunil could not be attributed with the brutal attack. Undoubtedly, Sunil did not assault either Krishnan Nochil or Prabhu, to begin with, he was merely attributed assault on Prabhu after Prabhu was dragged out for which there was no evidence as to whether it was he or other unknown person who had given blows to him. As far as the allegation regarding Abhayraj is concerned, learned counsel pointed out that like Prabhu, there was no evidence available as to how many blows had been given on Abhayraj's body and by whom. Learned counsel pointed out that it was only one blow which was given to Abhayraj. Learned counsel also urged that it must have been because of the friendship between the other accused and Sunil that Sunil had accompanied the accused persons but it could not be said that Sunil also shared the common intention to wipe out the whole family. In fact, Sunil did not act, to begin with, insofar as the assaults on Krishnan and Prabhu were concerned. It was further pointed out that Sunil was merely 19 years of age at the time of incident.

38. The Trial Court has made some exercise in weighing the mitigating circumstances though such conscious effort does not seem to have been made by the High Court. In terms of the law laid down in Bachan Singh's case (cited supra) as also in Machhi Singh's case (cited supra) and number of subsequent decisions of this Court thereafter, it would be now our task to weigh those circumstances.

39. All murders are foul, however, the degree of brutality, depravity and diabolic nature, differ in each case. It has been held in the earlier decisions of this Court which we may not repeat that the circumstance under which the murders took place, differ from case to case and there cannot be a straightjacket formula for deciding upon the circumstances under which the death penalty is a must.

40. Insofar as the accused No. 1, Dilip is concerned, there can be no doubt that he was the chief architect of the crime. There can also be no doubt that he entered the house of the victims in the dead of night. Obviously, the visit was not intended to be a courtesy call. It was obvious that he had visited being duly armed and in company of three other friends. What was then the psychology of Dilip, accused No.1 and why did he wait for seven months are the relevant questions which must attract our attention.

41. Sushma was the younger sister of this accused. It is a common experience that when the younger sister commits something unusual and in this case it was an intercaste, intercommunity marriage out of the secret love affair, then in the society it is the elder brother who justifiably or otherwise is held responsible for not stopping such affair. It is held as the family defeat. At times, he has to suffer taunts and snide remarks even from the persons who really have no business to poke their nose into the affairs of the family. Dilip, therefore, must have been a prey of the so-called insult which his younger sister had imposed upon his family and that must have been in his mind for seven long months. It has come in the evidence that even if the marriage was performed with Prabhu, there were efforts made by the family members of Dilip to bring Sushma back. It has come in evidence that mother of Dilip tried to lure back Sushma and so did her other married sister Kalpana who actually went on to meet Sushma in her college. Those efforts paid no dividends. In stead, Sushma kept on attending the college thereby openly mixing with the society. This must have added insult to the injury felt by the family members and more particularly, accused Dilip. Why did he wait for seven months? The answer lies in the fact that Sushma became pregnant and thus reached a point of no return. Till such time as she became pregnant, there might have been some hopes in the family to win her back but once she became pregnant, even that distant hope faded away and, in our opinion, that is the reason why this ghastly episode took place. As if all this was not sufficient, Dilip himself must have had the feeling of being cheated. It is not that Dilip did not know Prabhu who was living only three houses away from his house. The secret love affair which went on between Sushma and Prabhu for which Abhayraj acted as a messenger must have raised the feeling of being cheated by Prabhu. This was further aggravated because of the so-called higher status of a Brahmin family on the part of Dilip and so- called non-Brahmin status of Prabhu. It has come on record that Sushma was moved to Andheri at the house of Shashidharan and this ought to have added as a spark which resulted in tornado. Dilip undoubtedly was a young person not even having crossed his 25 years of life and not having any criminal antecedent. If he became the victim of his wrong but genuine caste considerations, it would not justify the death sentence. The murders were the outcome of social issue like a marriage with a person of so-called lower caste. However, a time has come when we have to consider these social issues as relevant, while considering the death sentence in the circumstances as these. The caste is a concept which grips a person before his birth and does not leave him even after his death. The vicious grip of the caste, community, religion, though totally unjustified, is a stark reality. The psyche of the offender in the background of a social issue like an inter-caste-community marriage, though wholly unjustified would have to be considered in the peculiar circumstances of this case.

42. No doubt, the murder was brutal. However, it has been pointed out by Shri Gaurav Agrawal as also Shri Raj that this was not a diabolic murder nor had the murderers acted in depravity of their minds by disfiguring the bodies. The incident must have taken place barely within 10-15 minutes when they came, assaulted the family members and left. True it is that the two ladies who were assaulted were helpless and so were Krishnan and Prabhu. But when we weigh all the circumstances, particularly, about the mindset of Dilip, the cruel acts on the part of the accused would not justify the death sentence. The disturbed mental feeling or the constant feeling of injustice has been considered by this Court as a mitigating circumstance in Om Prakash v. State of Haryana [1999 (3) SCC 19] where the accused had committed the murder of seven persons. That is also an indicator to the fact that mere number of persons killed is not by itself a circumstance justifying the death sentence. In fact in one other case reported as Ram Pal v. State of U.P. [2003 (7) SCC 141] total 21 persons were killed as the accused trapped them in a house and burnt the house. Shri Karanjkar, appearing on behalf of the State very strongly contended as against this, that in the present case while four persons were killed, two helpless ladies were also assaulted and very seriously injured and it is only because the accused thought that those two ladies had died and left, that the lives of Deepa and Indira were spared. Therefore, in the circumstances of this case, we must lean in favour of the death sentence. In a death sentence matter, it is not only the nature of the crime but the background of the criminal, his psychology, his social conditions and his mindset for committing the offence are also relevant. No doubt in Ravji alias Ram Chandra v. State of Rajasthan [1996 (2) SCC 175], this Court held as under:

"...The crimes had been committed with utmost cruelty and brutality without any provocation, in a calculated manner. It is the nature and gravity of the crime but not the criminal, which are germane for consideration of appropriate punishment in a criminal trial. The Court will be failing in its duty if appropriate punishment is not awarded for a crime which has been committed not only against the individual victim but also against the society to which the criminal and victim belong. The punishment to be awarded for a crime must not be irrelevant but it should conform to and be consistent with the atrocity and brutality with which the crime has been perpetrated, the enormity of the crime warranting public abhorrence and it should "respond to the society's cry for justice against the criminal"...."

43. It is also true that this case was followed in as many as six cases where the death sentence was approved of. However, in his judgment reported as Santosh Kumar Satishbhushan Bariyar v. State of Maharashtra [JT 2009 (7) SC 248] Hon. Sinha, J. pointed out that this judgment is per incuriam as the law laid down therein is contrary to the law laid down in Bachan Singh's case (cited supra) where the principle has fallen out to the effect that the Court should not confine its consideration principally or merely to the circumstances connected with the particular crime but also give due consideration to the circumstances of the criminal. It is because of this that we have ventured to consider the mindset of accused No.1, Dilip and the vicious caste grip that might have catapulted the crime committed by him. We would, thus, follow Bachan Singh's case (cited supra) and the principles therein rather than following the narrow approach given in Ravji's case (cited supra).

44. Once we decide not to award the death sentence to accused No.1, Dilip, the accused No.3, Manoj also deserves not to be given death sentence. Even he is a person without any criminal antecedents and he appears to have joined the company of Dilip only out of his commitment as he was shown to be a resident of the same house. We, therefore, do not think that even he deserves death penalty. Accused No.2, Sunil has comparatively a lesser role. Admittedly, he has not assaulted Krishnan or Prabhu, to begin with. Who has assaulted Prabhu and Abhayraj is still not clear, as it could also be that in the assaults the leading role could have been taken by the unknown accused. In that view, he also does not deserve the death sentence. The question is then how are these accused persons to be dealt with. Ordinarily, they would be liable to be awarded the life imprisonment.

45. However, in the peculiar circumstances of this case, mere life imprisonment which is capable of resulting into 20 years of imprisonment or 14 years of actual imprisonment may not be adequate punishment for these accused persons. Considering the overall circumstances, we feel that accused No.1, Dilip and accused No.3, Manoj who assaulted Krishnan, Prabhu and the two helpless ladies would deserve the life imprisonment. But we direct that they shall not be released unless they complete 25 years of actual imprisonment. In case of Sunil, however, since he had not assaulted the helpless ladies nor had he taken part in the assault on Krishnan, he deserves the life imprisonment in the ordinary sense. He shall have to undergo the 20 years of actual punishment. Such a course has been held to be permissible in Haru Ghosh v. State of West Bengal [JT 2009 (11) SC 240] pronounced by this Bench, authored by V.S.Sirpurkar, J. This view was taken on the basis of the law laid down in Swami Shradhanand @ Murali Manohar Mishra v. State of Karnataka [JT 2008 (8) SC 27] where this Court after considering several cases held that such a course was permissible. We accordingly dismiss these appeals, however, modifying the sentences as shown above. The appeals are disposed off accordingly.

BHAGWATI PRASAD Versus STATE OF M.P.

Penal Code, 1860 Sections 148, 302/149, 304 Part II - Murder - Related and injured eye-witnesses - Trial Court acquitting all the accused on the ground that witnesses are related and there is serious discrepancy on the place of occurrence - High Court held that actual spot of dispute was of no consequence and minor discrepancies are not sufficient to disbelieve the evidence of eye-witnesses - Whether discrepancies minor and witnesses can be relied as no blood was found at the place of occurrence. Held existence or absence of blood is not a vital factor to discard the evidence of two eye-witnesses. Confusion as to place of incident resulted on account of use of words, namely, canal, bamba and cool. However as both witnesses were unanimous that incident took place in the field of complainant and placement of the field was fixed by the evidence, they could not have been disbelieved.

Sections 148, 302/ 149, 304 Part II - Murder - Injured eye-witnesses - Specific stand of eye-witness that present appellant gave spear blow on the back of deceased - No explanation for their injuries - In medical certificate age of injuries of witnesses mentioned as 24 hours - Whereas in postmortem report, age of injuries of deceased mentioned as 6 hours. Held maximum duration of injuries was stated in medical certificate. It means that injuries could have been caused within 24 hours. No merit in submission. High Court correct in recording conviction.



Supreme Court of India

CRIMINAL APPEAL NO. 1368 of 2003

Judge(s): R.V. RAVEENDRAN,V.S. SIRPURKAR,DEEPAK VERMA

Date of Judgment: Thursday, December 03, 2009

BHAGWATI PRASAD Versus STATE OF M.P.


JUDGMENT

V.S. SIRPURKAR, J.

1. Appellant herein, who was original accused No. 6 (A-6) in the trial, has challenged the judgment of the High Court, allowing the State's Appeal and setting aside the judgment of acquittal passed by the Trial Court. All the accused persons were tried for the offences punishable under Sections 148 and 149 read with Section 302 of the Indian Penal Code (hereinafter called "IPC" or short), while the charge against the present appellant was substantively for the offence under Sections 148 and 302 IPC.

2. The allegation was that all the accused persons, six in number, formed an unlawful assembly and by way of a common object thereof, committed murder of one Ramgopal (deceased) on 18.2.1984 at about 7 A.M. As per the prosecution story, a report came to be lodged by one Kedar Prasad (PW-2) of Bansipura, the brother of Ramgopal (deceased) in Police Station Ambah to the effect that he alongwith the deceased and neighbour farmer Ramgopal (PW-3) S/o Tularam had gone to irrigate their field from the canal in Village Lahdaria situated at a distance of 12 K.M. When they opened the canal for irrigation, at that time, Bhagwati (appellant herein), armed with spear and the other accused persons armed with Lathi came there and stopped them from opening the canal. The said accused persons belonged to Village Lahdaria and they were staying nearby. There were arguments, as the accused persons objected to the complainant party taking water from the canal while the complainant insisted upon taking water, on which Baburam, original accused No. 1 (A- 1) gave Lathi blow upon Kedar Prasad (complainant/ PW-2). When Ramgopal (deceased) came to his rescue, Bhagwati (A-6) gave a spear blow on Ramgopal' back, as a result of which Ramgopal fell down. It was further stated that other accused persons, namely, Devi Prasad, original accused No. 5 (A-5), Hari Shankar, original accused No. 2 (A-2) and Radhacharan, original accused No. 3 (A-3) also gave Lathi blows on injured Ramgopal (deceased). Ramgopal was then taken to Ambah, but he died on the way.

3. On receipt of the information, the usual investigation started. Inquest report was drawn and the body of Ramgopal (deceased) was sent for post mortem examination, which was conducted by Dr. K.S. Chauhan (PW-1). In the post mortem report, it was shown that the death was caused because of the piercing blow, due to which right lung was damaged by penetrating spear. After the registration of offence, Sambhu Singh, Sub-Inspector (PW-9) arrested all the accused persons, who were initially absconding. After their arrest, Bhagwati (appellant herein) agreed to discover the spear used in the crime from the wheat field, which was accordingly recovered from that place. So also, the other accused persons gave information leading to the recovery of their respective Lathis, which were used in commission of crime. The spear was sent to Forensic Science Laboratory, Sagar, M.P. and after completion of the investigation, the chargesheet was filed.

4. The Trial Court acquitted all the accused persons of all the offences. The Trial Court held that there was no direct evidence for common object. It was also held that the two eye-witnesses, namely, Kedar Prasad (PW-2), being the brother of Ramgopal (deceased) and Ramgopal (PW-3) S/o Tularam, being the cousin of the deceased could not be relied upon. After quoting from their evidence, the Trial Court found two irregularities, which according to the Trial Court were substantial. The first was relating to the spot of occurrence not being properly identified. For this, the Trial Court found that there was contradiction in the version of the eye-witnesses and the spot map (Exhibit P-4). The second irregularity, according to the Trial Court, was about the inquest panchnama (Exhibit P-12), which was found to be torn. According to the Trial Court, the Police had failed to supply the carbon copy of the panchnama, though direction was given by the Court, which was not complied with by the Police. According to the Trial Court that panchnama was deliberately held back. By way of some other irregularities, the Trial Court found that there was contradiction in the version of Kedar Prasad (PW-2) and Ramgopal (PW-3) about existence of the blood in the field and the spot on which the blood was found. One more contradiction was found in the evidence of Ramgopal (PW-3) as to whether he was accompanying the complainant party or whether he had joined them some time later. On these grounds, the Trial Court came to the conclusion that the prosecution case was not proved.

5. This order was appealed against before the High Court. The High Court, in its well considered judgment, discussed all the issues. The High Court firstly held that it had the full powers to review the evidence being the Court of Appeal. The High Court then examined the principles to be adopted in appeal against acquittal for appreciation of evidence. The High Court then went on to hold that the traumatic and homicidal death of deceased was proved. After discussing the medical evidence, the High Court firstly dealt with the caustic remarks by the Sessions Judge against the Police. Those remarks are to be found in Paras 13 and 14 of the judgment of the Trial Court. It so happened that some portion of panchnama (Exhibit P-12) was not to be found. The Trial Court held that that portion of the original panchnama was deliberately torn. It seems that the Sessions Judge had directed production of carbon copy of some documents and written some letters (Exhibits C-1 to C-4). However, it was pointed out by the Public Prosecutor that the originals of Case Diary and the documents were already there before the Court and, therefore, there was no question of producing the carbon copy of the record. This was not taken very well by the Sessions Judge and he observed in Para 13 of his judgment that :-

"13. ......... It is the matter of regret that police has treated this Court just like defence and enemy. When the police has such respect towards Court, then bad day of judiciary has come. It is said that till today people has faith upon judiciary. The people should be ready to bear bad result."

Further, in Para 14, the Sessions Judge held that:-

14. Fact is not so simple, Chor-ke-dadhi-me-tinka's fact is materialized in this case. Carbon copy of case diary is intentionally concealed. Had the carbon copy produced, then purpose of tourning of bottom portion of panchnama of dead body (P-12) would have been clearly proved or the good-faith of prosecution have been proved............................ From the activities of non-producing the carbon copy of diary into the Court, it can be easily said that this person Shri R.B. Sharma, S.P.O. (Police), Ambah is himself responsible for tourning (probably tearing) of panchnama of dead body to save his under-working employee. He cannot take the risk of contempt of Court and hence, there is sign of second offence."

The High Court noted this and found that all these comments were completely unwarranted, irrelevant and unnecessary for the decision of the case. It was further observed that no explanation of the Reader, who keeps the record, was taken on 22.8.1985, when one R.N. Sharma (PW- 6), who prepared the inquest panchnama, was examined and no question was put to him. The High Court thus found that at least till that date, inquest panchnama was intact. It further expressed that perhaps it was torn or mutilated while handling the file. The High Court further found that copy of the panchnama was supplied to the defence and the Trial Court either should have taken such copy from defence or could have written a suitable memo to the S.P. for sending carbon copy of the same, explaining the situation. The High Court also observed that sending the APP for obtaining the carbon copy and insisting upon his personally talking to S.P. was an unnecessary exercise. The High Court also observed that drawing of any adverse inference therefrom was unwarranted.

6. High Court then discussed the evidence of two eye-witnesses being Kedar Prasad (PW-2) and Ramgopal (PW-3) in details and came to the conclusion that their evidence was credible and unshakable. For this, the High Court also relied on the medical evidence of Dr. K.S. Chauhan (PW- 1) and the further fact that even Kedar Prasad (PW-2) and Ramgopal (PW- 3) had sustained injuries in the same occurrence. The High Court rejected the claim of the defence that these two witnesses were relations and, therefore, their evidence was liable to be rejected. For this proposition, the High Court relied on the decisions in Rachamreddi Chenna Reddy Vs. State of A.P. [1999 (3) SCC 97], Lilaram (Dead) through Duli Chand Vs. State of Haryana & Anr. [1999 (9) SCC 525], State of Rajasthan Vs. Hanuman [2001(1) SCC 337] and Munshi Prasad & Ors. Vs. State of Bihar [2002(1) SCC 351].

7. The High Court also discussed the evidence of Amar Singh (DW-1), Omprakash (DW-2), who were the relatives of the accused persons, as also Gopinath (DW-3), brother-in-law of the sister of Bhagwati Prasad (appellant herein). Gopinath (DW-3) was examined to prove the alibi of Bhagwati Prasad (appellant herein), however, the High Court rejected that claim. The High Court also refused to draw adverse inference for not examining some other witnesses like Ramdayal and Bansi, since they had come to the place of occurrence, only after the incident. The High Court, in Para 18 of its judgment, has discussed the topography of the place of occurrence and critically examined the evidence of Vishram Palia (PW-8), Head Constable and Jamna Prasad (PW-7), Patwari, who had drawn the spot map. It also examined the placement of Canal, Bamba and aqueduct. The claim of the defence that there was a serious discrepancy in respect of the place of occurrence was rejected by the High Court and concluded that the Trial Court had over-emphasized on this issue. The High Court then recorded that the defence had no alternative case to suggest that event had happened anywhere else. The defence had merely suggested that someone had murdered Ramgopal (deceased) in the night by the side of outlet of canal (Bamba) and a false case had been framed against the accused. The High Court, therefore, came to the conclusion that the actual spot of dispute was of no consequence and the two injured eye- witnesses, namely, Kedar Prasad (PW-2) and Ramgopal (PW-3) had clearly supported the prosecution case and, therefore, in keeping with the law laid down by this Court in Shankar Mahto Vs. State of Bihar [2002(6) SCC 431], the minor discrepancies, if at all, were not sufficient to disbelieve the evidence of two eye-witnesses. It was pointed out that there was no previous enmity between the parties and the incident arose on account of opening of the aqueduct for irrigation.

8. The High Court further found that participation of Devi Prasad (A-5), Hari Shankar (A-2) and Radhacharan (A-3) was not proved beyond doubt and proceeded to acquit them. It was also held that the participation of five persons was not proved and there could not be the common intention also of Baburam (A-1) and Bhagirath, original accused No. 4 (A-4) to cause death of the deceased. Ultimately, in Para 20 of its judgment, the High Court pointed out that the offence on the part of the present appellant could not be that under Section 302 IPC and it was only covered under Section 304 Part II IPC, while Babulal (A-1) and Bhagirath (A-4) were held guilty for the offences punishable under Section 323 IPC. In that view, the appellant was awarded 5 years' rigorous imprisonment, while Babulal (A-1) and Bhagirath (A-4) were sentenced to undergo simple imprisonment till rising of the Court and to pay a fine of Rs.1,000/-, in default of payment of which, to undergo rigorous imprisonment for 3 months.

9. Shri S.K. Dubey, Learned Senior Counsel appearing on behalf of the appellant led great stress on the spot, where the incident allegedly had occurred. He also took us through the evidence of the eye-witnesses and urged that the High Court had erred in setting aside the well considered verdict of acquittal by the Trial Court. Shri Dubey firstly urged that the change of spot of occurrence was apparent as the place where the incident allegedly took place, did not have any blood, though according to the witnesses, Ramgopal (deceased) had fallen down on that place. It is to be noted that Kedar Prasad (PW-2) had not referred to any spot of blood in the field of the complainant, while as per the evidence of Ramgopal (PW-3), there was blood at one spot. Ramgopal (PW-3) went on to depose that he had shown the spot where there was presence of blood and Vishram Palia (PW-8), Investigating Officer had also seized the blood- stained earth from the place of incident. In Para 9 of his deposition, Ramgopal (PW-3) had deposed that the place where Ramgopal (deceased) had fallen, there was presence of blood on that spot in the field. When we see the evidence of Vishram Palia (PW-8), Investigating Officer, he asserted that there was no blood found in the field. The Learned Senior Counsel for the appellant, therefore, argued that the whole prosecution claim is contradictory as according to Kedar Prasad (PW-2), incident took place near the canal. There was no blood to be found at that spot or even at the spot where the aqueduct was sought to be opened by the deceased. In comparison to this, on the claim of Ramgopal (PW-3) that there was blood somewhere in the field and it is at that spot that Ramgopal (deceased) was assaulted, the Learned Senior Counsel contended that this only suggested that both the eye-witnesses were lying completely and the whole incident was imaginary.

10. We cannot accept this contention. The version of Ramgopal (PW-3) that he showed the blood spot to Vishram Palia (PW-8), Investigation Officer and that there was blood, has to be rejected as exaggeration. Instead of relying on the evidence of a villager regarding the blood spot, we would chose to accept the evidence of Vishram Palia (PW-8), Investigation Officer, who very specifically asserted that there was no blood anywhere in the field. The Learned Senior Counsel argued that it was impossible that the blood would not come out of the body, however, the Learned Counsel appearing on behalf of the State pointed out that it is not necessary that the blood would flow like tap-water from a single wound, even if the said wound proved fatal, as has been asserted by Dr. K.S. Chauhan (PW-1). It must be borne in mind that the deceased, at that time, was wearing a vest and a shirt above and even if the blood came out, it could be soaked in the clothes worn by the deceased at that time.

Therefore, the Learned Counsel for the appellant urged that the evidence of Vishram Palia (PW-8), Investigation Officer would be more acceptable and appropriate. The Learned Senior Counsel is undoubtedly right. Further, there is no evidence that any artery of the deceased was cut. This is apart from the fact that there was no cross-examination of Kedar Prasad (PW-2) on this issue. The Learned Counsel for the State rightly pointed out that in the spot-map or in the observation panchnama, there is no place shown as blood-stained and had the blood been present there, there was no reason for the prosecution to hide that spot or to avoid stating about that. In our opinion, the existence of blood or absence thereof would by itself not be such a fact as would completely wipe out the evidence of two eye-witnesses.

11. In fact, much confusion was caused on account of the use of three words, namely, canal, Bamba and cool. The witnesses have specifically explained that the main canal was on the Northern side of the two adjacent fields of the complainant. Bamba, i.e., outlet of canal is from that canal on the Northern side and the water then comes in that small outlet, which feeds Eastern side field of the complainant. Adjacent to that field is another field of the complainant and naturally, in order to draw water from Bamba, there has to be an aqueduct, which would go up to the adjacent field of the deceased. It is at that spot that the incident must have taken place. This situation is explained by Kedar Prasad (PW-2). He says in Para 15 of his deposition that on the earlier day of the incident, water from the canal was released in his field; the water was released firstly in the canal and they (complainant party) went in the morning to open the water in his field. He was specific that before that, water was not flowing in the canal. He was obviously referring to the Northern side main canal. Much was made by the learned defence Counsel that the word used is "canal" in the First Information Report and, therefore, urged that the spot of occurrence must be near the canal in the Northern side. This is obviously impossible for the simple reason that both the eye-witnesses are unanimous on the point that the incident took place in the field of complainant, which was not adjacent to the main canal flowing East-West on the Northern side. The witness Kedar Prasad (PW-2) has specifically deposed:-

"When water is opened from canal, it comes to bomba and thereafter when bomba opens then comes to cool and when cool is opened, it comes to field."

As regards the spot of occurrence, the witness said in para 18 of his deposition that:

"Murder took place in the field situated near Lahdaria village. Murder was not taken place in the field situated near road named Ambah Used Ghat."

The witness was very specific in his answer when he was asked whether Investigation Officer collected the blood from the place of incident. He deposed:-

"I do not know whether I.O. had collected blood at the time of preparation of spot map. I do not know whether blood was present on the place of incident."

Ramgopal (PW-3) also asserted that:-

"Quarrel had taken place on the issue of water. Kedar was releasing water in his field. He was releasing water from the cool."

Ramgopal (PW-3) was very specific that the murder took place in the field of Kedar Prasad (PW-2). In his cross-examination, he stated that he was not called by Ramgopal (deceased) or Kedar Prasad (PW-2) to irrigate the field and that he was going to his own field alongwith them.

The Learned Senior Counsel for the appellant found fault with this and according to the Learned Senior Counsel, since the version was that he was going for irrigating his field and since the version of Kedar Prasad (PW-2) was that this witness was going with them to their field, this witness was lying. The argument is correct. What was the purpose of this witness in going was not material. Whether the witness was there or not at the time of assault on Ramgopal is the material fact. It was obvious that he may have gone to the spot either for irrigating or for collecting grass from his own field. The purpose is irrelevant. Therefore, the contention of the Learned Senior Counsel is not right.

As regards the incident and topography, Ramgopal (PW-3) says that:- "It is true that water is first released from canal to the Bomba and when released from Bomba then it comes to cool and when it released from cool then it comes to Baraha and when it is released from Baraha then it comes to field. No quarrel had taken place when water was opened from canal. Bomba from the canal came upto Lahdaria Village and take a turn therefrom. I do not know the distance between the place of murder and the place of cool where from water released for Baraha. Even I cannot say the distance in yard, hand, fields, steps etc."

He, however, refuted the suggestion that the quarrel has taken place where the water was released from the canal. He further asserted that:-

"It is also not a fact that when water open from canal then accused persons came with lathi and Ballam and started qurreling and mar-pit. "

Now, such suggestion, in our opinion, was a suicidal suggestion. It merely established the presence of the accused persons with weapons, which they handled. The witness further specified that when water was opened from cool, then mar-pit had taken place. It must be realized that vocabulary and the terms used by the villagers could always be confused by the police when they recorded their statements. Much importance cannot be given to such minor discrepancies. The broad features of the evidence were that the complainant party wanted to irrigate their field and for that they wanted to open the aqueduct for supplying water to their field and it was at that spot that the incident took place. Once the evidence of the two eye-witnesses, who themselves were injured eye-witnesses, was accepted by the High Court after the detailed consideration and when they asserted that the incident took place in the field of the complainant and when placement of the field of the complainant was fixed by the evidence, the evidence becomes immediately acceptable and then such minor discrepancy whether it was spot `A' or spot `B', would be pushed to the background. Such minor discrepancy cannot affect the whole prosecution story. It is only when the defence is able to establish that the change of the spot was deliberate and such a change was so substantial as would affect the whole prosecution story, that such discrepancies assume importance. In the present case, it was clearly an open and shut case where the two eye-witnesses in the broad day light witnessed the attack by the accused persons. There was absolutely no variance in the version of the two eye-witnesses to the effect that it was the present appellant, who gave the spear blow on the back of the deceased. It must be seen immediately that both the witnesses, i.e., Kedar Prasad (PW-2) and Ramgopal (PW-3) were injured and there was no explanation for their injuries.

12. Shri S.K. Dubey, Learned Senior Counsel for the appellant tried to suggest that in the medical certificate, age of the injuries was mentioned as 24 hours. Now, it is obvious that the maximum duration of the injuries was stated in the medical certificate. What was meant was that the injuries could have been caused within 24 hours from the time the witnesses were examined by the Doctor. Shri Dubey again pointed out that in the post mortem report, the age of the injuries of the deceased was mentioned as 6 hours. It must be borne in mind that in the post mortem report, the determination of precise duration of the injuries can be possible due to the internal examination of the injuries, whereas no such advantage is available to the Doctor when he examines the injuries in the nature of contusions. Therefore, normally the approximate duration is indicated in such certificates. We are not impressed by the argument of the defence on this aspect and reject the same.

13. It was also tried to be argued by the Learned Senior Counsel for the appellant that there were certain discrepancies in the First Information Report (FIR), like from the FIR, it was suggested as if the incident had taken place near the canal. We have already considered this contention that the use of the word "canal" may be because of the impression of the Constable, who wrote the report in vernacular. That, however, will not take the spot of occurrence near the canal on the Northern side.

14. We are, therefore, of the clear opinion that the High Court was absolutely right in upsetting the judgment of acquittal passed by the Trial Court and convicting the accused persons.

15. Shri S.K. Dubey, Learned Senior Counsel for the appellant then contended that the sentence of five years is too harsh, considering the fact that the prosecution is pending for so many years. We do not think that the sentence of five years is unduly harsh, considering that a life is lost and that too without any justification. In the result, the appeal fails and is dismissed.

In view of the order passed in the main appeal, this application has become infructuous and is accordingly dismissed.

M/S. MADNANI CONST.CORP. (P) LTD. Versus UNION OF INDIA & OTHERS

Arbitration Act, 1940 Sections 30, 33, 17, 20 - Construction agreement - Dispute arose - Notice dated 16.11.1983 served by appellant-contractor for appointment of an arbitrator - Prayer rejected by General Manager, Railways (respondent) as the disputes fell under 'excepted matter' in the contract and were not arbitrable - On an application before Additional Civil Judge, Sole Arbitrator appointed - Challenge thereto, dismissed by High Court - Award made in favour of appellant - Application filed for making decree as per the award - Objections raised - Senior Civil Judge, made award a rule of court - Appeal against partly allowed by High Court by holding that some of the items were excepted matters and were non-arbitrable - Justification. Held, arbitrator made an award in favour of the appellant on finding that there were subsequent alterations and over writing in the Log Book entries without any initials by the concerned authority of the respondent which resulted in reducing the quantities of the work done by the appellant. Further, prescribed procedure for bringing claims under excepted matters was not followed by respondent. In view of these specific findings which were not found to be perverse by High Court, High Court's finding that some items were non-arbitrable cannot be sustained.

Section 29 - Interest Act, 1978 - Power of arbitrator to award interest - Arbitrator while making award granting interest - High Court held that interest could not be awarded in view of specific prohibition contained in the contract. Held relevant clauses of the agreement i.e. Clause 16(2) of GCC and Clause 30 of the SCC do not contain any bar on the powers of the arbitrator to grant interest. High Court's interference with arbitrator's award was therefore unjustified. Engineers's case, G.C. Roy's case and N.C. Budharaj's case relied and followed.



Supreme Court of India

CIVIL APPEAL NO.8385 of 2004

Judge(s): MARKANDEY KATJU,A.K. GANGULY

Date of Judgment: Monday, December 07, 2009

M/S. MADNANI CONST.CORP. (P) LTD. Versus  UNION OF INDIA & OTHERS

J U D G M E N T

GANGULY, J.

1. The subject matter of challenge in this appeal is the judgment and order dated 29.04.2003 passed by the High Court of judicature at Allahabad in F.A.F.O. No. 40 of 1993, in a matter arising from the order dated 1.12.1992 of the learned Senior Civil Judge, making the Award a Rule of the Court, and whereby the High Court had partly allowed the Appeal filed by the respondent.

2. The appellant, a private limited company, is carrying on, inter alia, various construction works for both the State and Central Government and their undertakings. The appellant's case is that an agreement dated 03.11.1981 was entered between the appellant and the North Eastern Railway for the construction of bridge island nos. 13 and 14 over the Kosi river. There were certain special conditions of the contract (hereinafter, SCC) and they stipulate that the General Conditions of Contract (hereinafter, GCC) and standard specifications of the North Eastern Railways shall form part of the aforesaid contract. In terms of the contract, the construction was to be completed by 15.02.1982. Certain payments were made to the appellant after completion of the contract but they were received by them "under protest". Thus, disputes cropped-up between the parties. The appellant is said to have served a notice dated 16.11.1983 for the appointment of an arbitrator to settle the disputes. The General Manager of the respondent- Railways by an order dated 24.03.1986 rejected the appellant's prayer for appointment of an arbitrator on the ground that the disputes were not arbitrable, as they fell under `expected matter' in the contract.

3. On or about 18.08.1987, the appellant filed an application under Section 20 of the Arbitration Act, 1940 (hereinafter, the Act) before the Court of Addl. Civil Judge, Gorakhpur for appointment of an arbitrator which was transferred on 21st February, 1990, to the Court of Judge of Small Causes /Additional Civil Judge (hereinafter, the Court below). The Court below passed an order on 2.3.1990 that `file received, put up on the date fixed'. Then by an order dated 31.05.1991 the learned Civil Judge appointed one Mr. B. N. Shukla, the Sole Arbitrator, to adjudicate the disputes arising out of the agreement dated 03.11.1981. Against the order of appointment of arbitrator the responder approached the High Court by filing F.A.F.O. No. 534 of 1991 (the earlier F.A.F.O.), but the same was dismissed vide order dated 27.08.1991.

4. The learned Arbitrator gave his award on 13.4.1992 holding that the Railways should pay an amount of Rs.4,48,873.22 along with compoundable bank interest prevalent at that time from 16.11.1983 to 21.3.1992. In passing the award the Arbitrator relied on the Level book No. I, the Graph Sheets, the Log Book No. IA and the Log Book No. 4. The Arbitrator found that there were subsequent alterations and over writing in the entries made in the Log Book No.IA and the same were without any initials by the concerned authority on behalf of the respondent Railways. From such materials the Arbitrator held that all the manipulations/alterations/overwritings had resulted in reducing the quantities of the work done by the appellant. It was further observed that clause 21 (iv) of the special conditions was not followed by the respondent Railways at all.

Moreover in utter violation of the Railway rules and orders on the subject, the measurements were hardly entered in the measurement book directly and mostly entries in the measurement books were copied down from subsidiary records or note books. After recording such findings, the Arbitrator gave the aforesaid award.

5. Thereafter on 08.05.1992 the appellant filed an application under Section 17 of the Act for pronouncing judgment and making decree according to the award.

6. On 20.5.1992 the respondent Railways filed application under Section 30 read with Section 33 (Section 30/33) of the Act before the Civil Judge for setting aside the award. Then on 24.08.1992 they also filed their objections against the application filed by the contractor under Section 17 of the Act. The following facts were recorded in the judgment of the High Court.

"The Railways filed an application before the District Judge for transfer of the application filed by the contractor under Section 20 of the Act and under Section 24 of the Civil Procedure Code. It was dismissed on 13th November, 1992. The Railways filed an application on 23rd November, 1992, before the court below for summoning their application and under Section 30/33 of the Act from the Court where it was filed. This was objected to by the Contractor on the same date. However, the Court below summoned it and not only rejected it but also rejected their objections against the application under Section 17 of the Act. The Court below by its order dated 1.12.1992 also pronounced judgment according to the award and decreed interest at the rate given by the Bank from the date of the award till actual payment".

7. On 1st December 1992, the Senior Civil Judge, Gorakhpur of the Court of Judge, Small Causes Gorakhpur made the award a Rule of Court and directed that a decree be prepared accordingly and directed that from the date of the award to the date of payment the rate of interest on the Bank loan is to be paid.

8. Challenging the aforesaid order of the Civil Judge, the Railways filed an appeal before the High Court.

9. Before the High Court, 7 issues were framed. The appeal was partly allowed by the High Court and in doing so the High Court came to the conclusion that the court below had the jurisdiction to entertain the application under Section 17 of the Act.

10. On the application of the Railways under Section 30/33 of the Act, the High Court held that the case is not required to be remanded as the court below decided the case correctly on merits.

11. Referring to the decision of the General Manager dated 24.03.1986 rejecting request for appointment of Arbitrator on the ground that dispute fell under excepted matters, the High Court concluded that there is difference of opinion between the parties whether the dispute falls under excepted matters or not and the decision of the General Manager regarding excepted matters is not final between the parties. The General Manager by wrongly deciding this question could not exclude the jurisdiction of the Court.

12. On the issue as to whether the respondent Railways are entitled to raise objections regarding the excepted matters at the stage of Section 20, the High Court concluded that the trial Court did not say a word about it and the High Court merely affirmed the order passed by the trial court. As such the issue was left to be decided by the Arbitrator who has held that none of the claims of the contractor were excepted matters. It was held that as the question was not decided in the earlier litigation, it cannot be said that the Railways are precluded from raising this question in these proceedings.

13. On the issue of excepted matters the High Court held that Item Nos. 1 to 3 and 5 to 8 were excepted matters and were non-arbitrable and the Arbitrator committed an illegality in allowing them. For the remaining items viz. item No. 9 (a)& (d) relating to supply of boats, 11 (b) relating to cost of wastage of labour, it was held that these were not covered by Clause 22 (5) or 45 (a) of the GCC, as such they do not fall in the category of non-arbitrable matters and are arbitrable.

14. On the award of interest it was contended that clause 16 (1) read with 16 (2) of GCC prohibits payment of interest on amounts payable to the appellant under the contract except the Government securities mentioned therein. In this regard, the High Court considered Clause 30 of SCC and Clause 52 of GCC and found them to be similar and these clauses, according to High Court, bar interest and damages in respect of withholding or retention under the lien. Further by placing reliance on the case of Executive Engineer, D.M.I. Division v. N. C. Budhraj, AIR 2001 SC 628 High Court held that interest could not be awarded since there was specific prohibition in the contract regarding awarding of interest.

15. On the award of interest High Court's specific conclusions are:

"(f) The contract prohibited payment of interest. Item 10 is award for interest; it could not be awarded. Similarly no interest could be a warded under clause 3 of the Award.

(g) There is no illegality in awarding interest payable at the bank rate, but it could only be awarded from the date of decree and not from the date of award."

16. Appellant also filed a review petition before the High Court but the same was dismissed vide order dated 15.05.2003.

17. This Court finds that the High Court's conclusion that Item Nos. 1 to 3 and 5 to 8 of the award are `excepted matters' and non-arbitrable is not correct for the reasons discussed below.

18. In coming to the aforesaid finding, the High Court relied on Clause 45 (a) of GCC. Clause 45(a) of the GCC is set out below:

"45(a): It shall be open to the Contractor to take specific objection to any recorded measurement or classification on any ground within seven days of the date of such measurements. Any re-measurements taken by the Engineer or the Engineer's Representative in the presence of the Contractor or in his absence after due notice has been given to him in consequence of objection made by the Contractor shall be final and binding on the Contractor and no claim whatsoever shall thereafter be entertained regarding the accuracy and classification of the measurements."

19. A plain reading of Clause 45(a) of the GCC makes it clear that re-measurement are to be made by the Engineer or the Engineer's representative in the presence of the Contractor. It may be done in the absence of the contractor but that has to be done only after due notice. On a proper construction of Clause 45(a) it appears that it gives the contractor, (a) an opportunity to take a specific objection to any recorded measurement within seven days of such measurements; (b) Then any re- measurements is to be taken by the Engineer or the Engineer's representative in the presence of the contractor or in his absence after due notice; if the steps under (a) and (b) are strictly followed, (c) no claim whatsoever by the contractor shall be entertained about the classification or the accuracy of the measurement.

20. Under Clause 62 of the GCC it is provided that matters for which provisions have been made in Clause 45(a) shall be excepted matters.

21. The arbitrator in his award after perusal of the level Book No.1, Graph-Sheets, Logbook No. 1A and Logbook No.4 came to a clear finding that there were manipulations/alterations/over writings by the railways and as a result of which the volume of work done by the contactor has been reduced.

22. It is well settled that the arbitrator is the master of facts. When the arbitrator on the basis of record and materials which are placed before him by the railways came to such specific findings and which have not been stigmatized as perverse by the High Court, the High Court in reaching its conclusions cannot ignore those findings.

23. But it appears that in the instant case, the High Court has come to the aforesaid finding that the items mentioned above are excepted matters and non-arbitrable by completely ignoring the factual finding by the arbitrator and without holding that those findings are perverse.

24. It goes without saying that in order to deny the claims of the contractor as covered under excepted matters, the procedure prescribed for bringing those claims under excepted matters must be scrupulously followed. The clear finding of the arbitrator is that it has not been followed and the High Court has not expressed any dis-agreement on that. Therefore, the finding of the High Court that those items are non-arbitrable cannot be sustained.

25. On the question of grant of interest by the arbitrator, the High Court held that Clause 16(2) of the GCC contains a provision against grant of interest. Clause 16(2)of the GCC is set out below:

"16(2): No interest will be payable upon the earnest money or the security deposit or amounts payable to the contractor under the contract but government securities deposited in terms of such clause (1) of this clause will be repayable with interest accrued thereto."

26. The High Court has also relied on Clause 30 of the SCC and Clause 52 of the GCC to hold that payment of interest has been barred. The relevant portion of Clause 30 of the SCC relating to interest is set out below:

"...That the contractor will have no claim for interest and damage whatsoever on any account in respect of such with-holding or retention under the lien referred to supra and duly notified as such to the Contractor."

27. The High Court has held that Clause 30 of the SCC is similar to Clause 52 of the GCC.

28. Before discussing the implication of these clauses, it may be noted that the Arbitration Act, 1940 does not contain any provision enabling the arbitrator to give interest.

29. Section 29 of the Arbitration Act enables the Court to award interest from the date of the decree and at such rate as the Court deems reasonable.

30. The present Act of 1996 (the Arbitration and Conciliation Act, 1996), however, empowers the Arbitrator under Section 31(7)(a) and (b) to grant interest. Admittedly, in this case the 1996 Act is not attracted. Therefore, the provisions of 1940 Act will govern. The arbitrator's power to grant interest is governed by the various judicial pronouncements and the provisions of Interest Act of 1978.

31. It goes without saying that in the instant case, the provision of the Interest Act, 1978 is attracted. Under the Interest Act, 1978, Section 2(a) defines "Court" to include both a tribunal and an arbitrator.

32. Under the Interest Act, Section 3 empowers the Court to allow interest. But sub-Section (3) of Section 3 contains a proviso, namely, Section 3, sub-Section (3), Clause (a) (ii), to the following effect:-

"3. (3) Nothing in this section, -

(a) shall apply in relation to –

(i) xxx xxx

(ii) any debt or damages upon which payment of interest is barred, by virtue of an express agreement'"

33. In the context of the aforesaid provision in the Interest Act, the Clauses in the agreement quoted hereinabove assume importance.

34. Normally there are three periods for which interests are awarded - (a) pre-reference period i.e. from the date of the cause of action for going to arbitration and to the date of reference; (b) the pendente lite period i.e. from the date of reference to the date of award; and (c) the post- reference period i.e. from the date of the award to the date of realization.

35. Initially there was a judgment of this Court in the case of Executive Engineer (Irrigation), Balimela and Others Vs. Abhaduta Jena and Others [1988 (1) SCC 418] which held, the arbitrator has no power to award interests in the absence of contract or any substantive law.

36. Construing the provision of the 1940 Act, the Court held:-

"..in cases arising after the commencement of Interest Act of 1978 an arbitrator has the same power as the court to award interest up to the date of institution of the proceedings, in cases which arose prior to the commencement of the 1978 Act the arbitrator has no such power under the Interest Act of 1839." (Para 4)

37. The decision in Abhaduta Jena (supra), however, was overruled by the Constitution Bench of this Court in Secretary, Irrigation Department, Government of Orissa and Others Vs. G.C. Roy, [1992 (1) SCC 508].

38. The Constitution Bench in G.C. Roy (supra) discussed several aspects of the Act of 1940 and also the provisions of Section 34 of the Civil Procedure Code and also those of the Interest Act. After discussing those provisions, the Constitution Bench formulated the question which arose in that case as follows:-

"......In the context of these provisions the question arises whether an arbitrator to whom reference is made by the parties has jurisdiction or authority to award interest pendente lite. If the arbitration agreement or the contract itself provides for award of interest on the amount found due from one party to the other, no question regarding the absence of arbitrator's jurisdiction to award the interest could arise as in that case the arbitrator has power to award interest pendente lite as well. Similarly, where the agreement expressly provides that no interest pendente lite shall be payable on the amount due, the arbitrator has no power to award pendente lite interest. But where the agreement does not provide either for grant or denial of interest on the amount found due, the question arises whether in such an event the arbitrator has power and authority to grant pendente lite interest.

39. After formulating the above question and discussing various decisions and legal issues, the Constitution Bench in paragraph 43 at page 532 further held:

"The question still remains whether arbitrator has the power to award interest pendente lite, and if so on what principle. We must reiterate that we are dealing with the situation where the agreement does not provide for grant of such interest nor does it prohibit such grant. In other words, we are dealing with a case where the agreement is silent as to award of interest...."

40. After posing the question as above, the Constitution Bench laid down the following principles in paragraph 43 at page 532 to 533:

"(i) A person deprived of the use of money to which he is legitimately entitled has a right to be compensated for the deprivation, call it by any name. It may be called interest, compensation or damages. This basic consideration is as valid for the period the dispute is pending before the arbitrator as it is for the period prior to the arbitrator entering upon the reference. This is the principle of Section 34, Civil Procedure Code and there is no reason or principle to hold otherwise in the case of arbitrator.

(ii) An arbitrator is an alternative form (sic forum) for resolution of disputes arising between the parties. If so, he must have the power to decide all the disputes or differences arising between the parties. If the arbitrator has no power to award interest pendente lite, the party claiming it would have to approach the court for that purpose, even though he may have obtained satisfaction in respect of other claims from the arbitrator. This would lead to multiplicity of proceedings.

(iii) An arbitrator is the creature of an agreement. It is open to the parties to confer upon him such powers and prescribe such procedure for him to follow, as they think fit, so long as they are not opposed to law. (The proviso to Section 41 and Section 3 of Arbitration Act illustrate this point). All the same, the agreement must be in conformity with law. The arbitrator must also act and make his award in accordance with the general law of the land and the agreement.

(iv) Over the years, the English and Indian courts have acted on the assumption that where the agreement does not prohibit and a party to the reference makes a claim for interest, the arbitrator must have the power to award interest pendente lite. Thawardas has not been followed in the later decisions of this Court. It has been explained and distinguished on the basis that in that case there was no claim for interest but only a claim for unliquidated damages. It has been said repeatedly that observations in the said judgment were not intended to lay down any such absolute or universal rule as they appear to, on first impression. Until Jena case almost all the courts in the country had upheld the power of the arbitrator to award interest pendente lite. Continuity and certainty is a highly desirable feature of law.

(v) Interest pendente lite is not a matter of substantive law, like interest for the period anterior to reference (pre- reference period). For doing complete justice between the parties, such power has always been inferred."

41. Ultimately in paragraphs 44 and 45 at page 533 to 534 of the report the Constitution Bench held as follows:

"Where the agreement between the parties does not prohibit grant of interest and where a party claims interest and that dispute (along with the claim for principal amount or independently) is referred to the arbitrator, he shall have the power to award interest pendente lite. This is for the reason that in such a case it must be presumed that interest was an implied term of the agreement between the parties and therefore when the parties refer all their disputes -- or refer the dispute as to interest as such -- to the arbitrator, he shall have the power to award interest. This does not mean that in every case the arbitrator should necessarily award interest pendente lite. It is a matter within his discretion to be exercised in the light of all the facts and circumstances of the case, keeping the ends of justice in view.

45. For the reasons aforesaid we must hold that the decision in Jena, insofar as it runs counter to the above proposition, did not lay down correct law."

42. Following the Constitution Bench ratio in G.C. Roy (supra), another three-Judge Bench in the case of Hindustan Construction Company Limited vs. State of Jammu and Kashmir - (1992) 4 SCC 217, while referring to the ratio in G.C. Roy (supra), held in paragraph 5 at page 220:

"......Though the said decision deals with the power of the arbitrator to award interest pendente lite, the principle of the decision makes it clear that the arbitrator is competent to award interest for the period commencing with the date of award to the date of decree or date of realisation, whichever is earlier. This is also quite logical for, while award of interest for the period prior to an arbitrator entering upon the reference is a matter of substantive law, the grant of interest for the post-award period is a matter of procedure. Section 34 of Code of Civil Procedure provides both for awarding of interest pendente lite as well as for the post-decree period and the principle of Section 34 has been held applicable to proceedings before the arbitrator, though the section as such may not apply......."

43. Subsequently, in the case of State of Orissa v. B.N. Agarwalla - (1997) 2 SCC 469, before another three-Judge Bench a similar question came up for consideration and this Bench following the ratio in G.C. Roy (supra) and Hindustan Construction (supra) considered the question of payment of interest. After discussing the ratio in Abhaduta Jena (supra) and G.C. Roy (supra) and various other cases, the learned Judges in paragraph 18 at page 477 of the report came to the conclusion that; (a) it is well settled that the arbitrator has a jurisdiction to award pre-reference interest in cases which arose after the Interest Act, 1978 had become applicable. It is no doubt that in this case arbitration proceedings were initiated after the 1978 Act became applicable; (b) for the period in which the arbitration proceedings are pending the arbitrator has the power to award interest; (c) the Court also held that the power of the arbitrator to award interest for the post-award period also exists.

44. In G.C. Roy (supra) this Court made it clear that the arbitration clause was silent on the payment of interest but in B.N. Agarwalla (supra) the Court considered Clause (4) which had the following stipulation on interest:

"......No interest is payable on amounts withheld under the item of the agreement.......

" 45. Considering the said Clause (4), the learned Judges held that the claim which was made before the arbitrator was for non-payment of the full amount as per the final bill submitted by the claimant and the arbitrator awarded interest on that. The interest so awarded, according to the learned Judges, is not prohibited under Clause (4) of the Contract. Therefore, the three Judge Bench clearly held that just a stipulation in the contract purporting to indicate non-payment of interest cannot denude the arbitrator of his right to pay interest.

46. In a subsequent decision of three-Judge Bench in the case of State of U.P. v. Harish Chandra and Company - (1999) 1 SCC 63, there was stipulation in the arbitration agreement against grant of interest. The relevant clause namely Clause 1.9 to the aforesaid effect is set out below:

"1.9 No claim for delayed payment due to dispute etc.--No claim for interest or damages will be entertained by the Government with respect to any moneys or balances which may be lying with the Government owing to any dispute, difference; or misunderstanding between the Engineer-in-Charge in marking periodical or final payments or in any other respect whatsoever."

47. Considering the said clause, the Court held that the prohibition in the said clause does not prevent the contractor from raising the claim of interest by way of damages before the arbitrator on the relevant items placed for adjudication. (see paragraph 10 page 67). In saying so, the learned Judges relied on the ratio in the case of B.N. Agarwalla (supra) and G.C. Roy (supra).

48. In Board of Trustees for the Port of Calcutta v. Engineers-De-Space-Age, (1996) 1 SCC 516, a two- judge Bench of this Court considered the same question. That was a case under the 1940 Act. In Engineers (supra), the so-called prohibition in the contract relating to payment of interest was in Clause 13(g), which is set out below:-

"13(g) No claim for interest will be entertained by the Commissioners with respect to any money or balance which may be in their hands owing to any dispute between themselves and the Contractor or with respect to any delay on the part of the Commissioners in making interim or final payment or otherwise."

49. Relying on the said clause, the appellant in Engineers (supra) argued that there was absolute prohibition against payment of interest. The learned Judges however, relying on the ratio in G.C. Roy (supra) held that Clause 13(g) merely prohibits the Commissioner from entertaining any claim for interest but it does not prohibit the arbitrator from awarding interest. The learned Judges held that such clauses must be strictly construed in view of the ratio of the Constitution Bench in G.C. Roy (supra). The reasoning given by the learned Judges in favour of strict construction runs as follows:-

"...Clause has to be strictly construed for the simple reason that as pointed out by the Constitution Bench, ordinarily, a person who has a legitimate claim is entitled to payment within a reasonable time and if the payment has been delayed beyond reasonable time he can legitimately claim to be compensated for that delay whatever nomenclature one may give to his claim in that behalf. If that be so, we would be justified in placing a strict construction on the term of the contract on which reliance has been placed. Strictly construed the term of the contract merely prohibits the Commissioner from paying interest to the contractor for delayed payment but once the matter goes to arbitration the discretion of the arbitrator is not, in any manner, stifled by this term of the contract and the arbitrator would be entitled to consider the question of grant of interest pendente lite and award interest if he finds the claim to be justified." (Para 4, page 520)

50. It was argued before us by the learned counsel for the respondent that a subsequent Division Bench of this Court in the case of Union of India v. Saraswat Trading Agency & others, JT 2009 (9) SC 648, has taken a view different from the ratio in Engineers (supra). We do not think so.

51. In Saraswat Trading (supra) the Clause which was construed by the Court as clamping a prohibition on the grant of interest was Clause 31 and which is quoted in paragraph 15 of the judgment at page 656 of the report and runs as follows:-

"31. No interest or damage for delay in payment - No interest or damage shall be paid to the Contractor for delay in payment of the bill or any other amount due to the contractor for any reason whatsoever. The Railway Administration will, however, make every endeavour for payment of the bills or other amount due to the contractor within a reasonable time."

52. The learned Judges in Saraswat Trading (supra) in paragraph 16 held that Clause 31 is different from Clause 13(g) which was considered in Engineers (supra). The ratio in Engineers (supra) was not questioned.

53. In the instant case also the relevant clauses, which have been quoted above, namely, Clause 16(2) of GCC and Clause 30 of the SCC do not contain any prohibition on the arbitrator to grant interest. Therefore, the High Court was not right in interfering with the arbitrator's award on the matter of interest on the basis of the aforesaid clauses. We therefore, on a strict construction of those clauses and relying on the ratio in Engineers (supra), find that the said clauses do not impose any bar on the arbitrator in granting interest.

54. Reference in this connection may be made to another Constitution Bench judgment of this Court in the case of Executive Engineer, Dhenkanal Minor Irrigation Division, Orissa and others v. N.C. Budharaj (deceased) by Lrs. and others, (2001) 2 SCC 721.

55. In N.C. Budharaj (supra), Justice Raju, speaking for the majority, considered the question of the arbitrator's jurisdiction and authority to grant interest in great detail and also considered both Indian and English cases and the ratio of the Constitution Bench of this Court in G.C. Roy (supra).

56. In paragraph 25 of the judgment the learned Judge summed up the position as follows:-

"...By agreeing to settle all the disputes and claims arising out of or relating to the contract between the parties through arbitration instead of having recourse to civil court to vindicate their rights the party concerned cannot be considered to have frittered away and given up any claim which otherwise it could have successfully asserted before courts and obtained relief. By agreeing to have settlement of disputes through arbitration, the party concerned must be understood to have only opted for a different forum of adjudication with less cumbersome procedure, delay and expense and not to abandon all or any of its substantive rights under the various laws in force, according to which only even the arbitrator is obliged to adjudicate the claims referred to him. As long as there is nothing in the arbitration agreement to exclude the jurisdiction of the arbitrator to entertain a claim for interest on the amounts due under the contract, or any prohibition to claim interest on the amounts due and become payable under the contract, the jurisdiction of the arbitrator to consider and award interest in respect of all periods subject only to Section 29 of the Arbitration Act, 1940 and that too the powers of the court thereunder, has to be upheld."

(Emphasis supplied) 57. We are constrained to note that Hon'ble High Court unfortunately erred in appreciating the ratio of N.C. Budharaj (supra) in passing the impugned judgment and order.

58. In view of such consistent views taken by both the Constitution Bench judgments, in G.C. Roy (supra) and N.C. Budharaj (supra), we are of the view that in the facts of this case, no interference is called for with the award passed by the arbitrator. The judgment of the High Court is, therefore, set aside and the award is upheld. The appeal is allowed.

59. There will be no order as to costs.