PETITIONER: <NAME> Vs. RESPONDENT: <NAME> DATE OF JUDGMENT: 27/04/1962 BENCH: <NAME>, S.K. BENCH: <NAME>, S.K. <NAME>, M. <NAME>, J.C. CITATION: 1963 AIR 449 ACT: Trade Mark--Likely to Receive or cause confusion- Approach to determine-Acquiescence-Effect of- Trade Marks Act , 1940 (V. of 1940), ss.8, 10. HEADNOTE: The respondent applied for registration of the trade name "<ORG>" in relation to the medicinal preparation manufactured by him at Kanpur since 1923. It was admitted that the respondent's product was mainly sold in the State of Uttar Pradesh. The appellant opposed the registration on the ground that it had an exclusive proprietary interest in the trade mark "Amritdhara" in relation to a similar medicinal preparation which had acquired considerable repu- tation since 1903 and that the respondent's trade name "<ORG>" was likely to deceive and cause confusion and therefore the registration was prohibited by s. 8 of the Trade Marks Act. The Registrar of Trade Marks held that there was sufficient similarity between "Amritdhar'a' and "Lakshamandhara" so as to cause confusion and it was likely to deceive the public, but the acquiescence of the appellant in the use of the trade name "<ORG>" by the respondent in the relation to his product for a long period to the knowledge of the appellant was special circumstance under s. 10(2) entitling the respondent to have his name registered along with the appellant's trade name. He, however, confined the registration to sales with the State of Uttar Pradesh. Both the appellant and the respondent appealed to <ORG> which allowed the respondent's appeal holding that the words "Amrit" and "dhara" were common words in the Hindi language as also the words "Lakshman" and "dhara" and that there was no possibility of any Indian confusing the two ideas. <ORG> further held there had been honest concurrent user by the respondent.,, On the question of acquiescence it held against the respondent. On appeal by special leave. <NAME>, that the question whether a trade name is likely to deceive or cause confusion by its resemblance to another <ORG> ready registered is a matter of first impression and one for decision in each case and has to be decided by taking an over. all view of all the circumstances. The standard of comparison to be adopted in judging the resemblance is from the point of 485 view of a man of average intelligence and imperfect recollection. <ORG> Application, (1906) 23 R. P. C. 774, referred to. <CITATION> .,  1 S. C. R. 968, referred to. <NAME>, further, that the two names as a whole should be considered for comparison and not merely the component words thereof separately. <ORG>'8 application, (1935) 52 R. P. C. 137, referred to. <NAME>, also, that in the present case the similarity in the two name in respect of the same description of goods was likely to deceive or cause confusion; but the facts found by the Registrar established the plea of acquiescence so a to bring the case within sub-s.(2) of s. 10 , and the Registrar was right in imposing the limitation which he imposed.. JUDGMENT:

CiviL APPELLATE JURISDICTION: Civil Appeal No. 22 of 1960. Appeal by special leave from the judgment and order dated March 19, 1958, of <ORG> in F. A. No. 62 of 1954.

<NAME>, <NAME> and <NAME>, for the appellant.

<NAME>, <NAME>, <NAME> and <NAME>, for the respondent.

1962. April 27. The Judgment of the Court was delivered by <NAME>, J.-This is an appeal by special leave granted by this Court on December 8, 1958. On July 19, 1950, <NAME>, respondent before us, made an application under a. 14 of the Trade Marks Act , 1940 (Act V of 1940) (hereinafter referred to as the Act) for registration of the trade name of a biochemical medicinal preparation, commonly known as 'Laksbmandhara', in Class 5 of the Fourth Schedule to the Trade Marks Rules, 1942. The application was made by the respondent as the sole proprietor of <ORG> situate, at Dhankutti in Kanpur. The averments made in the application were that the said medicinal preparation had been in use by the name of "Lakshmandhara' since 1923 and was sold throughout the length and breadth of India as also in some foreign markets; the mark or name 'Lakshmandhara' was said to be distinctive to the article, and it was stated that the approximate annual turnover was Rs. 40,000/-. Notice of the application was given by the Registrar of Trade Marks, Bombay, and <ORG>, a limited liability company and appellant before us, filed an application in opposition. In this application the appellant stated that the word 'Amritdhara' was already registered as a trade name for the medicinal preparation of the appellant, and that medicinal preparation was introduced in the market so far back as in the year 1901; on account of its great popularity many people advertised similar medicines with slight variations of name to pass off their goods as 'Amritdhara'. It was averred that the composite word Lakahmandhara' was used to denote the same medicine as Amrit, dhara'; and the single word dhara , it was stated, was first used in conjunction with 'Amritdhara' to denote the medicine of the appellant and the medicine 'Lakahmandhara' being of the same nature and to quality could be easily passed off as 'Amritdhara' to the ultimate purchaser. The appellant contended that as 'Amritdhara' was already registered and 'Lakshmandhara' being a similar name was likely to receive the public, registration should be refused.

On behalf of the respondent a counter-affidavit was made in which it was stated that "Amritdhara' and Lakshinandhara' were two distinctly different names and no one could pass off one for the other.

It was further stated that during the long period of introduction and sale of Lakshmandhara' since 1923, no objection was ever raised from any quarter, from the appellant or anybody else, to the use of the name 'Lakshmandhara'. It was denied by the respondent that the composite word 'Lakshmandhara ' was likely to deceive the public or could by any stretch of imagination be taken or mistaken for 'Amritdhara'. The respondent further alleged that the single word 'dhara' had no particular significance in relation to the medicine, nor did that word mean or convey any special or exclusive meaning or effect in relation to the medicine. It was also stated that apart from the difference in name, the phial, label and packing of 'Lakshmandhara' had exclusive designs of their own and were not likely to be confused with 'any other medicine of similar nature, least of all with 'Amritdhara' whose packing was distinctly different in colour, design and layout. The Registrar of Trade Marks dealt with the application and the opposition thereto by his order dated September 10, 1953. It appears that apart from the affidavits filed, no other evidence was led on behalf of either party; but certified copies of certain decisions in earlier cases (to which the respondent was not, however, a party) given in favour of the appellant in support of its claim of infringement of its registered trade mark 'Amritdhara' were filed. A list of such cases has been printed as annexure 'A'. These cases showed that a number of medicines with the word 'Amrit' or 'dhara' as part of their names had been introduced in the market since 1947; and the appellant 'successfully took action against them for infringement of its trade mark. Even in <ORG> the appellant successfully opposed the introduction of names which contained the word 'dhara' as part of the,trade name. A question has been raised before us whether the Registrar of Trade Marks was justified in taking into consideration the decisions in those cases. To that question we shall advert later. The Registrar found that in 1901 <NAME> commenced to do business at Lahore in a particular ayurvedic medicine which was meant for alleviation for of headaches, diarrohea, constipation and other complaints. This medicine was first sold under the mark 'Amrit Ki Dhara', but in 1903 the name was changed to "Amritdhara', <NAME> formed a limited liability company in 1942 and the name 'Amritdhara' became a well-known popular name for the medicine. The sale of the medicine went up to about Re. 4 lacs a year. The business was done in Lahore but when partition came in 1947, the appellant established its business in Dehradun. The Registrar expressed the view that if the matter had rested on s. 8 and s. 10(1) of the Act, he world have no hesitation in allowing the opposition and dismissing the application. This could only mean that the Registrar was of the view that the name 'Lakshmandhara' so nearly resembled the trade mark 'Amritdhara' that it was likely to deceive the public or cause confusion to the trade. We are saying this because the High Court through that the Registrar did not express his own opinion whether the name 'Lakshmandhara' was likely to cause deception to the public or confusion to the ' trade. The respondent, however, relied also on two other circumstances, viz. (a) honest concurrent user of the name 'Lakshmandhara' since 1923, and (b) acquiescence on the part of the appellant in the user of the name Lakshmandhara'. The respondent contended that these two circumstances brought the case With in the meaning of special circumstances' in A. 10(2) of the Act, which permitted the registration by more than one Proprietor of trade marks which are identical or nearly resemble each other, subject to such condition and limitations, if any, as the Registrar might think fit to impose. On the point of honest concurrent user the Registrar found in favour of the appellant. As to acquiescence he, however, found in favour of the respondent and expressed his finding in these words.

"In the case before me it is not disputed that the applicant commenced his user in a small way in 1923 and it may even be said that up to about 1942 the applicant's user was insignificant. In paragraph 12 of the appli- cant's affidavit dated the 30th March, 1953 he has given details of advertisements in directories, pamphlets, newspapers etc. in which both the applicant's and the opponents' marks were advertised. The facts given in the affidavit go to show that from 1938 right up to the date of the applications by the applicant he has been advertising through mediums which were common to both the applicant and the opponents. Here we have a case in which Pandit <NAME> states that he had no notice of the applicant's mark. He has, however, admitted that he had about 12 persons in his factory which constituted the clerical staff and amongst them were persons who were in charge of advertising the opponents mark. It seems to me that the opponents and their agents were well aware of the advertisements by the applicant and did not raise any protest till the applicant's mark was advertised in <ORG>. In other words the opponents stood by and, allowed the applicant to develop his business and, as I have shown, from small beginning he began to sell these medicines to the extent of about Rs. 43,000/-in 1949. In my opinion, this is acquiescence which would come under, the phrase 'or other special circumstances' in section 10(2) of the Trade Marks Act and, that appears to me to be fatal to the case of the opponents."

Before the Registrar it was admitted on behalf of the respondent that his goods were sold mainly in, Uttar Pradesh and there were, at the most, only sporadic sales in other States. Taking that circumstance into consideration the Registrar passed an order allowing registration of 'Lakshmandhara' for sale in the State of Uttar Pradesh only. From the decision of the Registrar two appeals were referred to <ORG> at Allahabad under s. 76 of the Act: one appeal Was referred by the respondent and' the other by the appellant. The respondent complained of the registration being limited to Uttar Pradesh only and the appellant pleaded that registration should: have been refused altogether, The learned Judges of <ORG> held that the words 'Amrit' and 'dhara' were common, words in the Hindi language and the combined word 'Amritdhara' meant current of nectar' or the flow of nectar'; the two words 'Lakshman' and 'dhara'were also well-known common words and combined, together they meant "current or flow of Lakshman'. The learned Judges, then said:

"There- is no possibility of any Indian confusing the two ideas. Even phonetical differences are wide enough not to confuse anybody. The claim of the Amritdhara pharmacy that both the words Amrit and dhara' have become so associated- with their goods that the use of each part separately or in any combination is' likely to mislead is an, untenable claim. The whole phrase 'Amritdhara' had been registered and the Monopoly' has to be confined only to the use of the whole word. The words of common language like "Amrit' and 'dhara' cannot be made the monopoly of any individual. We, therefore see no reason to disallow registration of the trade mark "Lakshmandhara'. "

As to honest concurrent user from 1923 to 1942 the learned Judges again held in favour of the respondent. But on the point acquiescence they held against the respondent and found in favour of the appellant. They said that from the fact that both the medicines were being advertised in-the same journals or periodicals it did not, following that the attention of the appellant was, drawn to@ the use of the word 'Lakshmandhara' by the respondent. In view, however, of their finding that the two names were not likely to cause any confusion and that the' respondent had been an honest concurrent user from 1923 onwards, they held that there was no justification for refusing registration to the trade mark 'Lakshmandhara' for the whole of India. They accordingly allowed the appeal of the respondent and dismissed that of the appellant by their judgment dated March 19, 1958. The appellant then obtained special leave from this Court and the present appeal has been filed in pursuance of the leave granted by this court.

Two points have been agitated before us. The first point is whether the name 'Lakshmandhara' was likely to deceive the public or cause confusion to trade within the meaning of s. 8 and s. 10 (1) of the Act. The second point is whether there was Such, acquiescence on) behalf of the appellant in the use of the name 'Lakshmandhara' in the. State of Uttar Pradesh as to bring it within the, expression 'special circumstances' mentioned in sub-s. 10 of the Act. We shall deal with these two points in the order in which we have stated them, We may first read the relevant sections of the Act, viz.s. 8 and 10.

8. Prohibition of registration of certain matter.- No trade mark nor part of a trade mark shall be registered which consists of, or contains, any scandalous design, or any matter the use of which would.-

(a) by reason of its being likely to deceive or to cause confusion or otherwise, be disentitled to protection in a Court of justice ; or

(b) be likely to hurt the religious susceptibilities of any class of the citizen of India or

(c) be contrary to any law for the time being in force, or to morality.

10. Prohibition of registration of identical or similar trade mark.-(1) Save as provided in sub-section (2), no trade mark shall be registered in respect of any goods or description of goods which is identical with a trade mark belonging to a different proprietor and already on the register in respect of the same goods or description of goods or which so nearly resembles such trade mark as to be likely to deceive or cause confusion.

(2) In case of honest concurrent use or of other special circumstances which, in the opinion of the Registrar, make it proper so to do he may permit the registration by more than one proprietor of trade- marks which are identical or nearly resemble each other in respect of the same goods or description of goods, subject to such conditions and limitations if any, as the Registrar may think fit to impose.

It will be noticed that the words used in the sections and relevant for our purpose are "likely to deceive or cause confusion." The Act does not lay down any criteria for determining what is likely to deceive or cause confusion. Therefore, every case must depend on its own particular facts, and the value of authorities lies not so much in the actual decision as in the tests applied for determining what is likely to deceive or cause confusion. On an application to register, the Registrar or an opponent may object that the trade mark is not registerable by reason of cl. (a) of s. 8, or sub-s. (1) of s. 10 , as in this case. In such a case the onus is on the applicant to satisfy the Registrar that the trade mark applied for is not likely to deceive or cause Confusion. In cases in which the tribunal considers that there is doubt as to whether deception is likely, the application should be refused. A trade mark is likely to deceive or cause confusion by the resemblance to another already on the Register if it is likely to do so in the course of its legitimate use in a market where the two marks are assumed to be in use by traders in that market. In considering the matter, all the circumstances of the case must be considered. As was observed by <NAME>, J. in <ORG> Application (1), 'which was also a case of the comparison of two words-

"You must take the two words. You must Judge them, both by their look and by their sound. You must consider the goods to which they are to be applied. You must consider the nature and kind of customer who would be likely to buy those goods. In fact you must consider all the surrounding circumstances and you must further consider what is likely to happen if each of those trade marks is used in a normal way as a trade mark for the goods of the respective owners of the marks (1) (1906) 23 R. P. C. 774,777.

For deceptive resemblance two important questions are: (1) who are the persons whom the resemblance must be likely to deceive or confuse, and (2) what rules of comparison are to be. adopted in judging whether such resemblance exists. As to confusion, it is perhaps an appropriate description of the state of mind of a customer who, on seeing a mark thinks,that it differs from the mark on goods which' he has previously bought, but is doubtful whether that impression is Dot due to imperfect recollection. (See <NAME> on Trade Marks, 8th edition, p. 400.) Let us apply these tests to the facts of the case under our consideration. It is not disputed before use that the two names 'Amritdhara' and 'Lakahmandhara' are in use in respect of the same description of goods, namely, a medicinal preparation for the alleviation of various ailments, Such medicinal preparation will be purchased mostly by people who instead of going to a doctor wish to purchase a medicine for the quick alleviation of ;their suffering, both villagers and townsfolk, literate as well as illiterate. As we said in <CITATION> (1); the question has to be approached from the point of view of a man of average intelligence and imperfect recollection. To such a man the overall structural and phonetic similarity of the ,two names 'Amritdhara' and '<NAME>dbara' is, in our, opinion likely. t o deceive or ; cause confusion. We must consider, the overall similarity of the two composite words 'Amritdhara' and '<NAME>- dhara'. We do not think that the learned Judges of <ORG> were right in Paying that no Indian would mistake one 'for the other. An unwary purchaser of average intelligence and imperfect recollection would not, as <ORG> supposed, split the name into its component parts and consider the etymological meaning thereof or even consider the meanings of the composite words as 'current of nectar' or current of <NAME>'. He. would go more by the overall structural and phonetic similarity and the nature of the medicine he has previously purchased, or has been told about, or about which has other vise learnt and which he wants to purchase. Where the trade relates to goods largely sold to illiterate or badly educated persons, it is no answer to say that a person educated in the Hindi language would go by the entymological or ideological meaning and, see the difference between 'current of nectar' and current of <NAME>'. 'Current of <NAME> in a literal sense has no meaning to give it meaning one must further make the inference that the 'current or stream' is as pure and strong as <NAME> of the Ramayana. An ordinary Indian villager or townsmen will perhaps know <NAME>, the story of the Ramayana being familiar to him but we doubt if he would etymologine to the extent of seeing the so called ideological difference between 'Amritdhara'and '<NAME>dhara'.. He would go more by the similarity of the two names in the context of the widely known medicinal preparation which he wants for his ailments. We agree that the use of the word 'dhara' which literally means 'Current or stream' is not by itself decisive of the matter. What we have to consider here is the overall similarity of the composite words, having regard to the circumstance that the goods bearing the two names are medicina l preparations of the same description. We are aware that the admission of a mar is not to be refused, because unusually stupid people, "fools or idiots", may be deceived. A critical comparison of the two names may disclose some points of difference. but an unwary purchaser of average intelligence and imperfect recollection would be deceived by the overall similarity of the two names having regard to the nature of the medicine he is looking for with a somewhat vague recollection that he had purchased a similar medicine on a previous occasion with. a similar name. The trade mark is the whole thing the whole word has to be considered a the case of the application to register 'Erectiks' (opposed by the proprietors of the trade mark 'Erector') Farwell, J. said in <ORG> Application (1) :

"I do not think it is right to take a part of the word and compare it with a part of the- other Word; one word must 'be considered as a whole and compared with the other word as a whole................ I think it is a danger- ous method to adopt to divide the word up, and seek to distinguish a portion of it from a portion of the other word".

Nor do we think that <ORG> was. right in thinking that the appellant was claiming a. monopoly in the common Hindi word 'dhara'. We do not think that is quite the position here. What the appellant is claiming is its right under s. 21 of the Act, the exclusive right to the use of its trade mark, and to oppose the registration of a trade mark which go nearly resembles its trade mark that it is likely to deceive or cause confusion.

A large number of decisions relating to the use of composite words, such as Night Cap and RedCap, Limit and Summit, Rito and Lito, Notrate and Filtrate, etc. were cited in <ORG>. Some more have been cited before us. Such deci- sions, examples of deceptive resemblance arising out of contrasted words, have been summarised at page 429 to 434 in Karly on Trade Marks, 8th Edition. No useful purpose will be served by referring to them all. As we have said earlier, each case must be decided or its own fact. What degree of' (1) (1935) 52 R.P.C. 137.

resemblance is necessary to deceive or cause confusion must the nature of things be incapable of definition a priori. As to the decisions in annexure 'A', it has been argued before us that they were not at all admissible by reason of ss. 40 to 43 of the Indian Evidence Act , 1872. On behalf of the appellant it has been contended that they were admissible under s. 13 of the Evidence. Act as showing the particular instances in which the appellant claimed its right under s. 21 of the Act. We consider it unnecessary to decide this question for the purposes of this case because those decisions even if they are admissible under s. 13 do not throw any light on the question whether 'Amritdhara' and 'Lakshmandhara' so nearly resemble each other as to cause deception or confusion. That is a, question which we must determine as a case of first impression and irrespective of the earlier decisions.

On a consideration of all the circumstances, we have come to the conclusion that the overall similarity between the two names in respect of the same description of goods was likely to cause deception or confusion within the meaning of s. 10(1) of the Act and Registrar was right in the view he expressed. <ORG> was in error taking a contrary view.

We know go the second question, that of acquiescence. Here again we are in agreement with the Registrar of Trade Marks, who in a paragraph of his order quoted earlier in this judg- ment has summarised the facts and circumstances on which the plea of acquiescence was based. The matter has been put thus in <ORG>, Vol. 32 (second edition) pages 659-657, paragraph 966.

" If a trader allows another person who is acting in good faith to build up a reputa-

tion under a trade name or mark to which he has rights, he may lose his right to complain, and may even be debarred from himself using such name or work. But even long user by another, if fraudulent, does not affect the plaintiff's right to s. final injunction on the other hand prompt warning or action before. the defendant has built up any good- will may materially assist the plaintiff 's case".

We do not think that there was any fraudulent user by the respondent of his trade name '<NAME>'. The name was first used in 1923 in a small way in Uttar Pradesh. Later it was more extensively used and in the same journals the two trade marks were publicised. The finding of the Registrar is that the appellant and its agent were well aware of the advertisements of the respondent, and the appellant stood by and allowed the respondent to develop his business till it grew from a small beginning in 1923 to an annual turnover of Rs. 43,000/- in 1946. These circum- stances establish the plea of acquiescence and bring the case within sub-s. (2) of s. 10 , and in view of the admission made on behalf of the respondent 'that his goods were sold mainly in Uttar Pradesh, the Registrar was right in imposing the limitation which he imposed. For these reasons, we would allow the appeal, set aside the Judgment and order of <ORG>, and restore those of the Registrar of Trade Marks, Bombay, dated September 10. 1953. In the circumstances of this case, there will be no order for costs.

Appeal allowed.


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JUDGMENT <NAME>, C.J. and <NAME>, J.

1. This appeal arises out of a suit brought by the plaintiff for recovery of arrears of instalments payable under a bond given to him by the defendants. The plaintiff gave a lease to the defendants of certain property for a term of 14 years, namely, from 1305 to 1319 Fasli. At the date of the deed there wore arrears of rent due by the tenants, and the defendants agreed to pay the amount of these arrears, and executed a bond for the same, payable in instalments. The instalments payable for the years 1305 and 1306 were paid, but not upon the dates fixed for payment, but thereafter. The suit which has given rise to this appeal was then instituted by the plaintiff for the instalments for the years 1307--1309 Fasli. His claim was met by the defence that the first instalment was not paid when it fell due, namely, on the 4th of June 1898, and that consequently under the provisions of the bond all the instalments became forthwith due and payable, and this being so the claim is barred by limitation. <ORG> first instance decreed the plaintiff's claim, but upon appeal the learned District Judge upheld the contention that the suit was barred and dismissed the plaintiff's claim. An appeal from this decree is now before us.

2. A number of authorities have been quoted, including the case of <NAME> v. Gopal Parshad Weekly Notes, 1906, p. 193, in which the question as to the rights of a creditor in respect of bonds payable by instalments was considered. It appears to us that a case of this kind must be decided in view of the language of the particular bond which is the subject of litigation. In the bond sued on there is a provision enabling the creditor on failure on the part of the defendants to pay any instalments on the appointed date, to sue for and recover the entire amount of instalments then remaining unpaid. This option is given to him in very clear terms. The words are 'har guna ikhtiar hoga,' that is, it will be in his power to sue for the entire amount. When the first instalment became due on the 4th of June 1898, the plaintiff did not take advantage of the provision in the bond inserted for his benefit and sue for the entire debt, but accepted payment of the instalment for that year, as also the instalment payable for the succeeding year in various sums and at various dates. His forbearance to exercise the power given. to him in the bond, is now set up as a defence to his suit for the recovery of the balance still remaining unpaid. The article of the Limitation Act which is applicable to the cage is clearly Article 75. That article prescribes a period of three years for the institution of a suit upon a bond payable by instalments from the time when the first default is made; but there is this important qualification, namely, unless where the payee or obligee waives the benefit of the provision; in that case limitation, runs from the time when a fresh default is made in respect of which there is no such waiver.

3. The question then is whether or not the plaintiff in this case waived the benefit of the provision to which we have referred. There was no express waiver, but waiver may be implied, and it is implied when a person entitled to anything does or acquiesces in something else which is inconsistent with that to which he is so entitled;for instance, a landlord by acceptance of rent after a forfeiture of the tenancy is deemed to have waived his right to insist on a forfeiture. Here, it appears to us, the plaintiff impliedly waived his right to insist upon payment in a bulk sum of all the instalments remaining due when the first instalment was not paid on the 4th of June 1898, and he accepted payment of the instalments for two years in various sums at various dates. It would be very unfortunate if it were otherwise. It would be to punish a creditor for forbearance shown to his debtor, and compel him to press his demands at the earliest opportunity and insist upon speedy and full satisfaction of his claim. We cannot in this case take this stringent view of the law, which we are asked to do by Mr. <NAME>. We think that Article 75 provides for this case and that under that article limitation starts from the time when the instalment for 1900 became payable. The suit was not therefore barred by limitation. We allow the appeal, set aside the decree of the lower appellate <ORG>, and, as that <ORG> has decided this case upon a preliminary question, namely, that the suit is barred by limitation, and we have reversed its decision on that question, and other issues have been left undetermined, we remand the appeal under the provisions of Section 562 of the Code of Civil Procedure with directions that it be reinstated in the file of pending appeals and be decided on the merits. Costs here and hitherto will abide the event.


JUDGMENT <NAME>, J.

1. This appeal by the Judgment-debtors is directed against an order of the <ORG> below directing delivery of possession to the decree-holder.

2. The decree-holder had brought a suit for specific performance of a contract of lease of certain property. The suit was decreed by consent on the 15th October, 1947, Execution Case No. 102 of 1948 was started on the 22nd September, 1948, on failure of the judgment-debtors to execute the lease. The lease was executed by the <ORG> in March, 1949. On the 25th March, 1949, the decree-holder applied for delivery of possession, but that application was dismissed as premature, and on the 19th April, 1949, Execution Case No. 102 of 1943 was dismissed on full satisfaction, although no delivery of possession was given.

It was not surprising that delivery of possession had not been given because, though the document had been executed sometime in March, 1949. It had not been registered until the 23rd March, 1950. The delay was caused because the document had to be impounded as it did not bear sufficient stamp. On the 16th December, 1952, another execution petition was filed which was numbered as Execution Case No. 112 of 1952, and the prayer was to treat that application as an application for revival of Execution Case No. 102 of 1948. This application, however, was rejected on the 7th January 1953 and on the 19th January, 1953, the present Execution Case No. 7 of 1953 was filed, and on the 30th June, 1953 the application was allowed.

3. Mr. <NAME> has submitted three points for our consideration.

(i) that no delivery of possession could be given because the decree did not provide for delivery of possession.

(ii) that the execution Case was barred by limitation because the previous Execution Case No. 112 of 1952 had been filed more than three years after the dismissal of the first Execution Case No. 102 of 1948. It was also urged in this connection that Article 182 and not Article 181 of the Limitation Act applied to this case; and

(iii) that the present application for execution was barred by the principles of res judicata.

4. In my opinion, there is no substance in any of these contentions. The suit, as I have said, was for specific performance of the contract for lease, and the relief for possession was inherent in that suit. It was pointed out in the case of <NAME> v. <NAME>, AIR 1931 Pat. 179 (A), 'that incidental to the relief to which the plaintiff is entitled in a decree for specific performance of a contract for sale, the <ORG> has a right to grant possession of the property, and that a contract for sale includes not only the execution of the necessary document but also putting the vendee in possession of the property, and <NAME>, J, who was a party to that judgment, made the following observation:--

"There is no doubt that the plaintiff's suit was for specific performance of contract of sale. It would have been quite enough for him if he would have simply prayed that the defendant be directed to specifically perform the contract for sale. If that relief was granted by the decree everything which was necessary for the contract to be specifically performed could have been ordered and enforced in the execution."

In that view of the matter, the point ought to be held concluded by that' judgment. Mr. <NAME>, however, tried to submit that that judgment followed a previous judgment of thus <ORG> in <CITATION> 5 Pat. L. J. 314: (AIR 1920 Pat 89) (B), but the latter judgment was distinguishable. In my opinion, the case reported in AIR 1931 Pat 179 (A), is similar to the facts of the present case, and we are bound by that decision. Even if we had no decision to guide us, there was no difficulty in holding that the relief of possession is inherent in a relief for specific performance of contract for lease. Mr. <NAME> also referred to a case reported in <CITATION> 39 Cal LJ 40: (AIR 1924 Gal 600)(C). In that case, the suit was one under Section 77 , of the Registration Act where the only prayer was that the document be registered. That case, in my opinion, cannot possibly be any guide to us to decide the question at issue in the present case.

5. From the dates which I have already indicated above, it is apparent that the present application for delivery of possession was made within three years from the date the document was registered. Before the document had been registered, the decree-holder had no right to be put in possession of the property leased; it was only when the document was registered that he got title to the property leased and to the possession thereof. In that view of the matter, the decree-holder could not possibly have got delivery of possession in the previous execution case. Mr. <NAME> is not correct when he says that Article 182 of the Limitation Act would apply. For the application of Article 182 , it must first be found that any one of the six points of time specified in column 3 of the article applies or not.

If none of these six starting points of time applies as in this case it must be obvious that Article 182 has no application. <CITATION> , AIR 1944 Mad. 561 (FB) (D), and I accept the decision of the <ORG> below on that point and hold that Article 181 of the Limitation Act would apply to this case. According to that article, an application has got to be made within three years "when the right to apply accrues." In the present case the right to apply for delivery of possession did not accrue until the 23rd March 1950, when the document was registered. Therefore, in my opinion, the decision of the <ORG> below on this point also is right, and the contention of Mr. <NAME> that Article 182 applies must be repelled.

6. So far as the question of res judicata is concerned, we have not got the proper materials on record to decide that question. It is true the question was raised in the. objection, but it was not pressed at the time of the hearing of objection. The ordersheet of the previous execution case is not to be found on the records of this case. Mr. <NAME>, however, argued on the materials that were present in the paper book, and he submitted that, upon the application made by the decree-holder himself, he had filed an application on the 16th December, 1952, and that was dismissed. When he says that, he is only partially correct.

From page 3 of the paper book, it appears that the decree-holder had filed a petition on the 16th December 1952 which was numbered as Execution Case No. 112 of 1952 "for revival of the Ex. Case No. 102 of 1948" and that application was dismissed. So what was dismissed was the application for revival of the first Execution Case No. 102 of 1948; that dismissal cannot possibly be held to decide the question whether the decree-holder was or was not entitled to delivery of possession. That being the position, in my opinion, there is no question of res judicata. Mr. <NAME> referred to the case of <CITATION> , 1953 S.C. R. 377: (AIR 1953 SC 65) (E).

In that case, however, the facts were entirely different, and cannot possibly give us any aid in deciding the present question. The question of res judicata depends upon the pleadings and the judgment. In the present case, as I have already said, materials are not on record and whatever materials there are they indicate that the question of delivery of possession was not decided by the executing <ORG> at any time previously after the decree-holder had been entitled to possession, that is to say, after the date the document was registered.

7. In the result, the appeal fails, and it must be dismissed with costs.

Dayal, J.

8. I agree.


PETITIONER: <NAME> Vs. RESPONDENT: THE STATE OF MADRAS(with connected appeal) DATE OF JUDGMENT: 12/04/1957 BENCH: <NAME>, BHUVNESHWAR P. BENCH: <NAME>, BHUVNESHWAR P. JAGANNADHADAS, B. GAJENDRAGADKAR, P.B. CITATION: 1957 AIR 614 1957 SCR 981 ACT: Murder--Conviction on the testimony of a single witnesS--Propriety--Capital sentence, if appropriate- Extenuating circumstance- Indian Evidence Act , s. 134 . HEADNOTE: The appellants were charged with murder and convicted on the sole testimony of a witness. The first appellant was sentenced to death and the second to five years' rigorous imprisonment. it was contended for them, inter alia, that the conviction and sentences should not be upheld because in a case involving a charge of murder the court should not, on the ground of prudence, convict an accused person upon the testimony of a single witness, and, in any case, impose the extreme penalty of law. Held, that the question whether in such a case the court could convict him depended upon the facts and circumstances of the case and unless corroboration was a statutory requirement, a court could act upon such evidence, though uncorroborated, except in cases where the nature of the testimony of the single witness itself required, as a matter of prudence, that corroboration should be insisted upon, as in the case of a child witness, an accomplice or any others of an analogous character. Where the court has recorded an order of conviction the question of sentence must be determined, not by the volume or character of the evidence adduced, but on a consideration of any extenuating circumstances which could mitigate the enormity of the crime. <CITATION> , A.I.R. (1946) P.C. 3 and <NAME> and three <CITATION> , (1956) S.C.R. 247, distinguished. JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeals Nos. 24 and 25 of 1957.

Appeals by special leave from the judgment and order dated July 25, 1956, of <ORG> in Criminal Appeals Nos. 247 & 248 of 1956 and Referred Trial No. 41 of 1956 arising out of the judgment and order dated March 28, 1956 of <ORG>, East Tanjore Division at Nagapatam, in care S.C. No. 5 of 1956.

<NAME> and <NAME>, for the Appellants. <NAME> and <NAME>, for the respondent. 1957. April 12. The Judgment of the Court was delivered by <NAME> two appeals by special leave, which arise out of the same occurrence, are directed against the Judgment and Order dated July 25, 1956, of <ORG>, confirming the sentence of death passed by <ORG>, East Tanjore Division, at Nagapattinam, under s. 302 of the Indian Penal Code , against appellant in Criminal Appeal No. 24 of 1957, for the murder of <NAME>, and modifying the order of conviction and sentence under s. 302 , read with s. 109 of the Indian Penal Code, to one under s. 326 , Indian Penal Code , and reducing the sentence of imprisonment for life to one for 5 years, in respect of the appellant in Criminal Appeal No. 25 of 1957. In the course of this Judgment, we shall call the appellant in Criminal Appeal No. 24 of 1957, as the " first appellant ", and the appellant in Criminal Appeal No. 25 of 1957, as the " second appellant ".

The occurrence which was the subject-matter of the charges against the two appellants took place at about 11-30 p.m. on November 10, 1955, at Muthupet, in front of the tea stall of <NAME>, husband of <NAME>-prosecution witness No. 1who will be referred to, in the course of this judgment, as the " first witness ", and who is the principal witness for the prosecution, because, as will presently appear, the prosecution case and the convictions and sentences of the appellants depend entirely upon her testimony.

The occurrence took place in the immediate vicinity of a cinema-house in which the second show was in progress at the time of the alleged cold-blooded murder. As there were no customers at that time at the tea shop run by <NAME>, his wife called him for his dinner to be served to him behind the tea stall, as the husband and wife used to live there. <NAME> was about to attend to the call for dinner when an old man came into the shop and asked for a cup of tea. When <NAME> got busy preparing the tea, the two appellants rushed into the premises. The old man-the intending customer-naturally ran away, and the two accused dragged <NAME> out of the shop on to the road-side; and the first appellant gave him several blows on the front part of his body in the region of the chest with an aruval-a cutting instrument about 2 feet long including the handle. <NAME> fell down on his back and cried out for help. His wife, the only other inmate of the house, tried to come to his rescue by raising and putting his head into her lap after the two accused had left him. But soon after, perhaps, realising that <NAME> was not dead as a result of the first blows, as deposed by the wife, both the accused returned. <NAME>'s wife who figures in court as the sole witness to the killing, placed his head on the ground and went and stood on the steps of the tea stall. The first appellant this time, made the body of <NAME> lie with face downwards and gave a number of cuts in the region of the head, the neck and back. These injuries were such as to cause instantaneous death. At the time of the second assault, according to the evidence of the first witness, <NAME> 3, one of the proprietors of the cinema-housecame and remonstrated with the accused but to no purpose. After inflicting the injuries, both the accused ran away. According to the testimony of the first witness, it was the first appellant, the second accused (A-2 in therecord), who inflicted cutting injuries with the aruval. The second appellant, the first accused (A-1 inthe record), was standing nearby at the time the cutting injuries were inflicted. There were two electric lights burning in the tea shop, a <ORG> light burning on the road, as also a light burning on the pathway leading to the cinema-house. The wife of the deceased, finding her husband thus murdered, went and told <ORG> Witness No. 4--who had a tea stall on the other side of the road, and informed him as to what had taken place. He asked her to lodge information of the occurrence at the Police Station. She then went to the Mathupet Police Station, but found it shut. She went to the house of the Sub-Inspector of Police, who took her to the Police Station, and recorded her statement as the first information report (Exhibit P. 1). After recording the first information report, the SubInspector came along with the first informant to the scene of occurrence. He held an inquest early in the morning.

At the trial, the Prosecution examined, besides the widow of the murdered man (P.W. 1), P.W. 2-an assistant in the tea shop of <NAME>, P.W.3-one of the proprietors of the cinema-house and <NAME> who kept another tea stall near the cinemahouse, in support of the prosecution case. <NAME> -testified to the occurrence and stated that he had seen <NAME> and <NAME> standing by the side of <NAME>, a few feet away; but he added that the accused persons were not those con- cerned with the crime though they bore the same names. The Public Prosecutor was permitted to cross-examine this witness who admitted that he knew that the <ORG> were searching for the accused in the dock and that he did not tell the <ORG> that these were not the persons who had committed the murder. He went to the length of admitting that he did not tell anybody that the accused in the dock were not the persons who had committed the murder and that it was in the committal court that he stated, for the first time, that the accused persons were not concerned with the crime. He also admitted that at the time of the occurrence, lights were burning at the place of occurrence, in the tea shop and in the theatre. <NAME>, one of the proprietors of the cinema-house, when examined in court, admitted that he had been examined by the police two days after the occurrence, but stated that he did not tell the <ORG> that he had seen the accused assaulting <NAME>. It appears that, though the record of the examination-in-chief of this witness would itself indicate that the Public Prosecutor had, put questions to him in the nature of cross- examination, yet it is not recorded, unlike the record of the depositions of P.W. 2 and P.W. 4, that this witness had been declared hostile and the Public Prosecutor had been permitted to cross-examine him. That appears to be a slip of the learned Sessions Judge, as he had been so treated even in the committal court. The Investigating Sub-Inspector, P.W. 14, stated, with reference to his diary, that <NAME> had stated before him that he had seen accused No. 2 cutting the deceased on the head and neck with an aruval, and accused No. I standing by the side of the second accused. Witness No. 4 for the Prosecution-<NAME>-who ran a tea stall near the cinema-house, about 50 to 60 feet away from the tea stall of the deceased <NAME>, stated in court that the first witness came to him weeping and saying that <NAME> and <NAME> Thevar had cut her husband, but added that the two accused in court were not those persons. Thus, whatever may have been the previous statements of the prosecution witnesses 2 to 4, aforesaid, their evidence in court does not directly support the prosecution case. The orders of conviction and sentence, as passed by the courts below, as indicated above, rest solely on the testimony of the first witness.

It has been argued by the, learned counsel for the appellants that the conviction and sentences of the appellants should not, be upheld because they rest on the sole testimony of the first witness, particularly, because, it is further argued, her testimony is not free from all blemish. In this connection, her statement in court that it was the second accused (first appellant) who gave the number of cut injuries with the aruval to the deceased <NAME>, was challenged in crossexamination. She has been cross- examined with reference to her statement (Exhibit D-2) recorded by the committing Magistrate, and she has categorically stated :

" Accused 1 had no weapon of any kind with him. He did not give any cut. I have not stated in the committal court that accused 1 continued to cut even after <NAME> asked him not to cut." Exhibit D-2 is in these terms:

" Even while he was asking not to cut, accused 1 was cutting. Soon after, accused 1 stopped cutting and went away."

With reference to the statement of the first witness, as recorded in Exhibit D-2, the learned Sessions Judge has observed that it was a mistake of recording by the committing Magistrate. We have looked into the whole

-evidence of the first witness, as recorded by the committing Magistrate-not printed in the record, but supplied to us by the learned counsel for the appellants-and in our opinion, there is no doubt that the learned Sessions Judge was correct in his conclusion that the recording by the Magistrate is defective in the sense that accused 1 has been recorded in place of accused 2, inasmuch as, throughout her deposition, the first witness had consistently stated that it was accused 2 who actually used the deadly weapon against her husband and that accused I was only aiding and abetting him and lending him strength by his presence. That this conclusion is well-founded, is also substantiated by the state of the record of the appeal in <ORG>. Each of the two appellants in <ORG> filed a separate Memorandum of Appeal through his own counsel. In neither of the Memoranda of Appeal, any ground has been taken that the first witness had materially contradicted herself with reference to her previous statement in the committal court. Her testimony was assailed only as 'interested, artificial and unnatural'. It is not even suggested that the learned Sessions Judge's conclusion in respect of the recording by the committing Magistrate (Exhibit D-2) was not based on any material. When the matter was argued before a Bench of <ORG>, there is no indication in the judgment that any point was sought to be made of this alleged serious discrepancy in the statement of the first witness at different stages. In <ORG>, it was sought to be argued only that she was an interested witness though her testimony throughout had been consistent, as will appear from the following observations of <ORG> " To prove that it was the two accused that caused these injuries to the deceased, the prosecution put forth as many as four witnesses. Of these four witnesses, P.Ws. 2, 3 and 4 turned hostile both in the committal court as also in <ORG>. The only witness that remained constant throughout was P.W. I who is no other than the wife of the deceased."

The same was the position with reference to the petition for leave to appeal to this Court filed in <ORG>. It was a joint petition on behalf of both the appellants, and as many as 13 grounds had been taken. There is not even a suggestion that the testimony of the first witness was vitiated by any such discrepancy as has been sought to be made out in this Court. It was after <ORG> refused to grant the necessary certificate that for the first time, in the petition for special leave to appeal, filed in this Court, the ground is taken that <ORG> failed to appreciate that the testimony of the first witness was untrustworthy for the reason that there was the alleged discrepancy between her statement in the committal court and in <ORG>. Thus, it is abundantly clear that the finding of the learned Sessions Judge about the mistake in recording the evidence of the first witness, by the committal court, has not been challenged at any stage in the court below.

The second ground of attack against the veracity of the first witness is that she had stated that <NAME> Prosecution Witness No. 3-had also seen the first appellant giving the deadly blows to her husband, and that the assailant continued giving his blows in spite of protests of P.W. 3. This argument proceeds upon the assumption that Prosecution Witness No. 3 is telling the truth and that, therefore, his evidence effectively contradicts that of the first witness. P.W. 3 was, as indicated above, cross- examined by the Public Prosecutor with reference to his previous statement before the Investigating Police Officer (P.W. 14). P.W. 14 has stated that before him P.W. 3 had stated just the contrary Of what he stated in court. The statements of P.W. 3 at the earlier stage, before the Police, and later when examined in court, may or may, not have been false, but certainly both cannot be true. Hence, it cannot be said that the evidence of P.W. 3 in court was the true version. That being so, his evidence in court is not strong enough to wipe out the evidence of the first witness on the ground that it is contrary to what P.W. 3 had stated. It is, thus, clear that none of the grounds, urged in support of the contention that the evidence of the first witness is unreliable, has been made out. On the other hand, the first witness, being the most important witness from the point of view of the prosecution, was put to a severe test in her cross-examination. She has frankly made admissions in her cross-examination, which throw a very lurid light on the past life of her deceased husband. She admitted that he had been transported for life for having committed a murder and that after his release also, he had been sent to jail twice for having caused cut injuries to others. If the first witness were inclined to tell falsehoods or at least to conceal her husband's past, she could have taken shelter behind failing memory or want of information not an uncommon characteristic of prevaricating witnesses. Her evidence, read as a whole, rings quite true, and we have no hesitation in acting upon it. It is true that her evidence in court has been sought to be contradicted by the evidence of P.Ws. 2 to 4, but the latter set of witnesses have been shown to be not reliable because they appear to have made different statements at different stages for reasons of their own. Their testimony does not inspire confidence and we cannot, therefore, brush aside the testimony of the first witness as compared to the evidence of P.Ws. 2 to 4. The testimony of the first witness is consistent with what &he has stated in her first information report at the Police Station without any avoidable delay, within less than an hour of the occurrence. It cannot, therefore, be said that her statement in court, is an afterthought, or the result of tutoring by other interested persons. Her story of the double attack, first on the-front,: and subsequently on the- back and side of the victim, is also consistent with the medical evidence as deposed to by the Medical Officer-P.W. 8. It is not necessary to set out in detail the dozen incised gaping. wounds on the person of the deceased, which are all set out in extenso in the judgment of the learned Sessions Judge who has written a very careful and satisfactory judgment. Alternatively, it has been argued on behalf of the appellants that it is not safe to convict the appellants on the testimony of a single witness even though she may not have been demonstrated to have been a lying witness. It has not even been claimed by counsel for the appellants that this is a rule of law. He has only put it on the ground of prudence that, ordinarily, the court should not, in a case involving a charge of murder, convict an accused person upon the testimony of a single witness. In this connection, our attention was drawn to the observations of their Lordships of <ORG> in the case of <CITATION> (1). In that case, their Lordships looked for corroboration of the testimony of a single witness in a murder case. It is true that in that case, the court had to look for and found corroboration of the testimony of the single witness in support of the murder charge, but the testimony of that witness suffered from two infirmities, namely: (1)The witness was a girl of about 10 or 11 years at the time of occurrence.

(2)The girl witness had not been administered oath because the Court did not consider that she was able to understand the nature of the oath though she was competent to testify. That was a case from Somaliland to which the provisions of the Indian Evidence Act  and of the Indian Oaths Act (X of 1873), had been made applicable. Special leave had been granted to appeal to His Majesty-in-Council on the ground that the local courts had admitted and acted upon the unsworn evidence of a girl of 10 or 11 years of age. Their Lordship upheld the conviction and sentence of death, holding that the (1) A.I.R. (1946) P.C. 3.

evidence, such as it was, was admissible. In the course of their Judgment, they made the following observations (at pp. 5-6) which are pertinent to the present controversy : " It was also submitted on behalf of the appellant that assuming the unsworn evidence was admissible the Court could not act upon it unless it was corroborated. In England where provision has been made for the reception of unsworn evidence from a child it has always been provided that the evidence must be corroborated in some material particular implicating the accused. But in the Indian Act there is no such provision and the evidence is made admissible whether corroborated or not. Once there is admissible evidence a court can act upon it; corroboration, unless required by statute, goes only to the weight and value of the evidence. It is a sound rule in practice not to act on the uncorroborated evidence of a child, whether sworn or unsworn, but this is a rule of prudence and not of law." The decision of this Court in the case of <NAME> and three <CITATION> (1) was also relied upon in support of the contention that in a murder case the court insists on corroboration of the -testimony of a single witness. In the said reported decision of this Court, P.W. 14 has been described as " a dhobi boy named <NAME>. " He was the only person who had witnessed the murder and his testimony had been assailed on the ground that he was an accomplice. Though this Court repelled the contention that he was an accomplice, it held that his position was analogous to that of an accomplice. This Court insisted on corroboration of the testimony of the single witness not on the ground that his was the only evidence on which the conviction could be based, but on the ground that though he was not an accomplice, his evidence was analogous to that of an accomplice in the peculiar circumstances of that case as would be clear from the following observations at p. 252: (1)  S.C.R. 247.

is...... Though he was not an accomplice, we would still want corroboration on material particulars in this particular case, as he is the only witness to the crime and as it would be unsafe to hang four people on his sole testimony unless we feel convinced that he is speaking the truth. Such corroboration need not, however, be on the question of the actual commission of the offence; if this was the requirement, then we would have independent testimony on which to -act and there would be no need to rely on the evidence of one whose position may, in this particular case, be said to be somewhat analogous to that of an accomplice, though not exactly the same." It is not necessary specifically to notice the other decisions of the different <ORG> in India in which the court insisted on corroboration of the testimony of a single witness, not as a proposition of law, but in view of the circumstances of those cases. On a consideration of the relevant authorities and the provisions of the Indian Evidence Act , the following propositions may be safely stated as firmly established:

(1) As a general rule, a court can and may act on the testimony of a single witness though uncorroborated. One credible witness outweighs the testimony of a number of other witnesses of indifferent character. (2) Unless corroboration is insisted upon by statute, courts should not insist on corroboration except in cases where the nature of the testimony of the single witness itself requires as a rule of prudence, that corroboration should be insisted upon, for example in the case of a child witness, or of a witness whose evidence is that of an accomplice or of an analogous character.

(3) Whether corroboration of the testimony of a single witness is or is not necessary, must depend upon facts and circumstances of each case and no general rule can be laid down in a matter like this and much depends upon the judicial discretion of the Judge before whom the case comes. In view of these considerations, we have no hesitation in holding that the contention that in a murder case, the court should insist upon plurality of witnesses, is much too broadly stated. Section 134 of the Indian Evidence Act has categorically laid it down that " no particular number of witnesses shall in any case be required for the proof of any fact." The legislature determined, as long ago as 1872, presumably after due consideration of the pros and cons, that it shall not be necessary for proof or disproof of a fact, to call any particular number of witnesses. In England, both before and after the passing of the Indian Evidence Act , 1872, there have been a number of statutes as set out in <NAME>'s I Law of Evidence -9th Edition, at pp. 1 100 and 1 101, forbidding convictions on the testimony of a single witness. <ORG> has not insisted on laying down any such exceptions to the general rule recognized in s. 134 quoted above. The section enshrines the well recognized maxim that " Evidence has to be weighed and not counted". Our <ORG> has given statutory recognition to the fact that administration of justice may be hampered if a particular number of witnesses were to be insisted upon. It is not seldom that a crime has been committed in the presence of only one witness, leaving aside those cases which are not of uncommon occurrence, where determination of guilt depends entirely on circumstantial evidence. If the <ORG> were to insist upon plurality of witnesses, cases where the testimony of a single witness only could be available in proof of the crime, would go unpunished. It is here that the discretion of the presiding judge comes into play. The matter thus must depend upon the circumstances of each case and the quality of the evidence of the single witness whose testimony has to be either accepted or rejected. If such a testimony is found by the court to be entirely reliable, there is no legal impediment to the conviction of the accused person on such proof. Even as the guilt of an accused person may be proved by the testimony of a single witness, the innocence of an accused person may be established on the testimony of a single witness, even though a considerable number of witnesses may be forthcoming to testify to the truth of the case for the prosecution. Hence, in our opinion, it is a sound and well- established rule of law that the court is concerned with the quality and not with the quantity of the evidence necessary for, proving or disproving a fact. Generally speaking, oral testimony in this context may be classified into three categories, namely:

(1) Wholly reliable.

(2) Wholly unreliable.

(3) Neither wholly reliable nor wholly unreliable.In the first category of proof, the court should have no difficulty in coming to its conclusion either way-it may convict or may acquit on the testimony of a single witness, if it is found to be above reproach or suspicion of interestedness, incompetence or subornation. In the second category, the court, equally has no difficulty in coming to its conclusion. It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial. There is another danger in insisting on plurality of witnesses. Irrespective of the quality of the oral evidence of a single witness, if courts were to insist on plurality of witnesses in proof of any fact, they will be indirectly encouraging subornation of witnesses. Situations may arise and do arise where only a single person is available to give evidence in support of a disputed fact. The court naturally has to weigh carefully such a testimony and if it is satisfied that the evidence is reliable and free from all taints which tend to render oral testimony open to suspicion, it becomes its duty to act upon such testimony. The law reports contain many precedents where the court had to depend and act upon the testimony of a single witness in support of the prosecution. There are exceptions to this rule, for example, in cases of sexual offences or of the testimony of an approver; both these are cases in which the oral testimony is, by its very nature, suspect, being that of a participator in crime. But, where there are no such exceptional reasons operating, it becomes the duty of the court to convict,if it is satisfied that the testimony of a single witness is entirely reliable. We have, therefore, no reasons to refuse to act upon the testimony of the  first witness, which is the only reliable evidence in support of the prosecution.

Lastly, it was urged that assuming that the court was inclined to act upon the testimony of the first witness and to record a conviction for murder as against the first appellant, the court should not impose the extreme penalty of law and in the state of the record as it is, the lesser punishment provided by law should be deemed to meet the ends of justice. We cannot accede to this line of argument. The first question which the court has to consider in a case like this, is whether the accused has been proved, to the satisfaction of the court, to have committed the crime. If the court is convinced about the truth of the prosecution story, conviction has to follow. The question of sentence has to be determined, not with reference to the volume or character of the evidence adduced by the prosecution in support of the prosecution case, but with reference to the fact whether there are any extenuating circumstances which can be said to mitigate the enormity of the crime. If the court is satisfied that there are such mitigating circumstances, only then, it would be justified in imposing the lesser of the two sentences provided by law. In other words, the nature of the proof has nothing to to with the character of the punishment. The nature of the proof can only bear upon the question of conviction-whether or not the accused has been proved to be guilty. If the court comes to the conclusion that the guilt has been brought home to the accused, and conviction follows, the process of proof is at an end. The question as to what punishment should be imposed is for the court to decide in all the circumstances of the case with particular reference to any extenuating circumstances. But the nature of proof, as we have indicated, has nothing to do with the question of punishment. In this case, there are no such extenuating circumstances which can be legitimately urged in support of the view that the lesser penalty under s. 302 of the Indian Penal Code, should meet the ends of justice. It was a cold- blooded murder. The accused came for the second time, determined to see that their victim did not possibly escape the assassins' hands.

As regards the second appellant, we need not say anything more than that he was lucky enough to escape conviction under s. 302 of the Indian Penal Code, for the reasons given by <ORG>, which may not bear close scrutiny. He amply deserves the punishment of 5 years' rigorous imprisonment under s.326 of the Indian Penal Code . For the reasons aforesaid, both the appeals fail and are dismissed.

Appeals dismissed.