"Since the case of the defendant is that of one of denial, therefore, the statement of the plaintiff that he was ready and willing to perform his part of the contract is sufficient to infer that plaintiffs were ready and willing to perform their part of contract. It was a meager amount of Rs.2000/- alone which was required to be paid at the time of registration of the sale deed. The substantial amount was paid at the time of execution of the agreement. More than Rs.12000/- was kept for payment to the mortgagee. Therefore, the argument raised by the learned counsel for the appellant that the plaintiffs have led evidence to prove his ready and willingness to perform the contract is not tenable." Since the appellants are denied the execution of sale deed, they Section 16(c) of the Act envisages that plaintiff must plead and prove that he had performed or has always been ready and willing to perform the essential terms of the contract which are to be performed by him, other than those terms the performance of which has been prevented or waived by the defendant. The continuous readiness and willingness on the part of the plaintiff is a condition precedent to grant the relief of specific performance. This circumstance is material and relevant and is required to be considered by the court while granting or refusing to grant the relief. If the plaintiff fails to either aver or prove the same, he must fail. To adjudge whether the plaintiff is ready and willing to perform his part of the contract, the court must take into consideration the conduct of the plaintiff prior and subsequent to the filing of the suit along with other attending circumstances. The amount of consideration which he has to pay to the defendant must of necessity be proved to be available. Right from the date of the execution till date of the decree he must prove that he is ready and has always been willing to perform his part of the contract. As stated, the factum of his readiness and willingness to perform his part of the contract is to be adjudged with reference to the conduct of the party and the attending circumstances. The court may infer from the facts and circumstances whether the plaintiff was ready and was always ready and willing to perform his part of the contract.” “Section 20 of the Specific Relief Act, 1963 provides that the jurisdiction to decree specific performance is discretionary and the court is not bound to grant such relief merely because it is lawful to do so; the discretion of the court is not arbitrary but sound and reasonable, guided by judicial principles and capable of correction by a court of appeal. Performance of the contract involving some hardship on the defendant which he did not foresee while non-performance involving no such hardship on the plaintiff, is one of the circumstances in which the court may properly exercise discretion not to decree specific performance. The doctrine of comparative hardship has been thus statutorily recognized in India. However, mere inadequacy of consideration or the mere fact that the contract is onerous to the defendant or improvident in its nature, shall not constitute an unfair advantage to the plaintiff over the defendant or unforeseeable hardship on the defendant.” (emphasis supplied) 21. In the present case, the appellant had neither pleaded hardship nor produced any evidence to show that it will be inequitable to order specific performance of the agreement. Rather, the important plea taken by the appellant was that the agreement was fictitious and fabricated and his father had neither executed the same nor received the earnest money and, as mentioned above, all the Courts have found this plea to be wholly untenable. 22. In the result, the appeals are dismissed and the following directions are given: i) Within three months from today the respondent shall pay Rs.5 crores to the appellant. This direction is being given keeping in view the statement made by Shri Dushyant Dave, learned senior counsel for the respondent on 03.05.2012 that his client would be willing to pay Rs.5 crores in all to the appellant as the price of the land. ii) Within next three months the appellant shall execute and get the sale deed registered in favour of the respondent and hand over possession of the suit property.

                                                              NON-REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                       CIVIL APPEAL NO. 4307  OF 2012
                  (arising out of SLP (C) No.15051 of 2011)


Narinderjit Singh
… Appellant
                                   versus
North Star Estate Promoters Limited                           …
Respondent
                                    WITH
                       CIVIL APPEAL NO. 4306  OF 2012
                  (arising out of SLP (C) No.15730 of 2011)


                               J U D G M E N T
G.S. SINGHVI, J.

1.    Leave granted.
2.    Having failed to convince the learned Single Judge of the  Punjab  and
Haryana High Court to reverse the judgment and decree passed  by  the  lower
appellate Court  for  specific  performance  of  Agreement  for  Sale  dated
22.10.1996  executed  by  his  father-cum-General  Power  of  Attorney  Col.
Gurcharan Singh in favour of the  respondent  and  to  review  the  judgment
passed in the second appeal, the appellant has  filed  these  appeals.   For
the sake of convenience, the parties shall hereinafter  be  referred  to  as
the appellant and the respondent.
3.     The  respondent  filed  suit  for  possession  by  way  of   specific
performance of the agreement for  sale  impleading  the  appellant  and  his
father as the defendants.  The case set up by the  respondent  was  that  at
the time of execution of agreement, its authorised representative  had  paid
Rs.1,00,000;  that  on  22.11.1996,  Rs.9,00,000   were   offered   to   the
appellant’s father but he avoided to accept the  amount  despite  telephonic
message and phonogram sent on 23.11.1996 and personal visit  to  his  office
and residence.  It was further pleaded that even though the  respondent  was
always ready and willing and is still ready and willing to perform its  part
of the agreement, the appellant intentionally committed breach of the  terms
and  conditions  thereof  and  failed  to  perform  his  obligation  by  not
extending cooperation in obtaining colonization licence  from  Punjab  Urban
Development Authority and ITC Certificate under Section 34-A of  the  Income
Tax Act.

4.    In the joint written statement filed by the appellant and his  father,
the locus standi of the respondent to file the suit was  questioned  on  the
premise that it had been incorporated on 1.11.1996, i.e. after execution  of
the agreement.  On merits, it was pleaded that the appellant’s  father,  who
was about 88 years old and was sick had not executed the agreement  and  the
same was a fictitious document prepared by the respondent in collusion  with
Col. Gurcharan Singh and Vijay  Bhardwaj.   The  appellant  and  his  father
denied the receipt of the earnest money and the offer allegedly made by  the
respondent’s representative to pay Rs.9 lacs.

On the pleadings of the  parties,  the  trial  Court  framed  the  following
issues:
      “1.   Whether plaintiff is  entitled  for  decree  for  possession  by
      way of specific performance of agreement to sell  dated    22.10.1996?
      OPP.

       2.     Whether plaintiffs are not entitled  to  relief  claimed  for?
      OPD.


      3.          Relief”

6.    After considering the evidence produced  by  the  parties,  the  trial
Court          recorded          the           following           findings:
(i)   the respondent has succeeded in proving  execution  of  the  Agreement
for Sale.
(ii)  the appellant and his father could not prove that the Agreement was  a
forged                and                fabricated                document.
  (iii)     the respondent succeeded in proving that its representative  had
paid a sum of Rs.1,00,000 as earnest money and offered  to  pay  Rs.9,00,000
which         defendant         No.2         did         not         accept.
        (iv)     that the plaintiff was ready and  willing  to  perform  its
part of the agreement.

      However, the trial Court declined the relief of  specific  performance
by observing that the price of the land had considerably  increased  and  it
would be unfair to compel the appellant to execute  the  sale  deed  at  the
rate agreed to by the parties.  For arriving at this conclusion,  the  trial
Court relied upon the judgments of this Court in Sargunam (Dead) by L.R.  v.
Chidambaram (2005) 1 SCC 162 and Janardhanam Prasad v. Ramdas (2007) 15  SCC
174 and of the Division Bench of the Punjab and Haryana High Court in  Mohan
Singh v. Kulwinder Singh 2006 (2) P.L.J.  748  and  of  the  Allahabad  High
Court in Ramawati Devi v. Idris Ahmad 2008 (2) Civil Court Cases  332.   The
trial Court finally held that the respondent is entitled to  refund  of  the
earnest money with interest at the rate of 12% per annum.

7.    The respondent challenged the judgment and decree of the  trial  Court
by filing an appeal.  The appellant and his father did not  file  appeal  or
cross   objection to challenge the findings recorded by the trial  Court  on
the issues of execution of the agreement and readiness  and  willingness  on
the respondent’s part to perform its part of the agreement.

8.    The lower appellate Court independently  analysed  the  pleadings  and
evidence of the parties and agreed with the trial Court that the  respondent
had succeeded in proving execution of the agreement and  its  readiness  and
willingness  to  pay  the  balance  amount  and  perform  its  part  of  the
obligation.  The lower appellate Court further held  that  even  though  the
respondent’s representative had offered to pay Rs.9,00,000,  defendant  No.2
avoided to accept the same and deliver possession of the  suit  property  as
per clause (5) of  the  agreement  for  sale.   The  lower  appellate  Court
disagreed with the trial Court  that  the  respondent  is  not  entitled  to
decree of specific  performance  because  cost  of  the  suit  property  had
increased and observed that  there  was  no  justification  to  relieve  the
appellant of his obligation to  execute  the  sale  deed  in  terms  of  the
agreement.
9.    The second appeal filed by the appellant was dismissed by the  learned
Single Judge of the Punjab and Haryana High Court  who  concurred  with  the
lower appellate Court that the trial Court was  not  justified  in  invoking
the provisions of Section 20 (2) (c) of the Specific Relief Act,  1963  (for
short, ‘the Act’) for the purpose of declining  substantive  relief  to  the
respondent.  The learned Single Judge relied  upon  the  judgments  of  this
Court in K. Narendra v.  Riviera  Apartments  (P)  Ltd.  (1999)  5  SCC  77,
Sargunam (Dead) by LRs. v. Chidambaram (supra) 1 SCC 162 and Gobind  Ram  v.
Gian Chand 2000 (7) SCC 548, and held that inadequacy  of  consideration  or
the fact that the contract is onerous to the defendant is not sufficient  to
deny the relief of specific performance.

10.   Shri J. L. Gupta, learned senior  counsel  for  the  appellant  argued
that even though the finding recorded by  the  trial  Court  and  the  lower
appellate Court on the issue of readiness and willingness of the  respondent
was concurrent, the  learned  Single  Judge  of  the  High  Court  committed
serious error by  approving  the  same  ignoring  that  the  respondent  had
neither pleaded  nor  any  evidence  was  produced  to  prove  that  it  had
sufficient financial resources to pay  the  balance  price.  Learned  senior
counsel  emphasised  that  the  respondent  was   not   only   required   to
specifically plead but also prove its readiness and willingness to  pay  the
balance price and the lower appellate Court was not  justified  in  granting
the decree  of  specific  performance  merely  because  the  respondent  had
produced evidence to show that its representative had offered Rs.9  lacs  to
the appellant’s father.  Shri  Gupta  further  argued  that  the  so  called
refusal of the appellant’s father to receive the amount of  Rs.9,00,000  and
hand over possession of the suit property was  inconsequential  because  the
application  made  by  the  respondent  for  grant  of  licence  to  develop
residential colony  had  been  rejected  by  the  Punjab  Urban  Development
Authority.   Learned senior counsel submitted that the delay of three  years
in filing of the suit was an important  factor  which  ought  to  have  been
considered by the High Court for restoring the judgment  and  decree  passed
by the trial Court.   In  support  of  his  arguments,  the  learned  senior
counsel relied upon the judgments of this  Court  in  K.  S.  Vidyanadam  v.
Vairavan (1997) 3 SCC 1 and J. P. Builders v. A. Ramadas Rao  (2011)  1  SCC
429.  In the end, Shri Gupta  referred  to  the  provisions  of  the  Punjab
Apartment  and  Property  Regulation  Act,  1995  and  submitted  that   the
appellant did  not  hand  over  possession  of  the  suit  property  to  the
respondent for the purpose of development of residential colony because  the
latter failed to  get  the  requisite  licence  and  any  violation  of  the
provisions of the Act would have amounted to an offence.

11.    Shri  Dushyant  Dave,  learned  senior  counsel  for  the  respondent
supported the impugned judgment and argued  that  the  High  Court  did  not
commit any error by dismissing the second appeal and approving the  judgment
of the lower appellate Court which had set aside the trial  Court’s  verdict
on the issue of the applicability of Section 20(2)(c)  of  the  Act  because
the respondent was always ready and willing  to  perform  its  part  of  the
agreement and the escalation, if any, in the price of the  land  could  not,
by itself, be made a ground for denying the relief of specific  performance.
 Learned senior counsel submitted that the finding  recorded  by  the  trial
Court on the issue of the respondent’s readiness  and  willingness  will  be
deemed to have become final because  the appellant  did  not  challenge  the
same by filing an appeal against the judgment of the trial Court  or  cross-
objection in the appeal preferred by the respondent.
12.   We have considered the  respective  submissions.   A  reading  of  the
agreement executed by the appellant’s father in  favour  of  the  respondent
shows that he had agreed to  sell  51  Bighas  9  Biswas  land  situated  in
village  Dhakauli,  Tehsil  Rajpura,  District  Patiala  at  the   rate   of
Rs.14,00,000 per Killa, i.e. 4 Bighas. Clauses 1, 2, 3, 4, 5 and  7  of  the
Agreement read as under:
      “1.   That the total sale price of the above said land has been  fixed
      at Rs.14,00,000/- (Fourteen Lac Only) per Killa i.e.  (4-0)  (Bighas).




      2.    That the said purchaser Company has paid to the  said  Seller  a
      sum of Rs.1,00,000/- (Rupees One Lac Only) in cash  in  the  shape  of
      currency Notes as earnest money  for  which  amount  the  said  Seller
      hereby acknowledges the receipt in the presence of marginal witnesses.


      3.    That the purchaser company will develop the land for residential
      colony and the said purchaser company  will  pay  further  advance  of
      Rs.9,00,000/- (Rupees Nine Lac Only) as part payment on or before 23rd
      Nov., of 1996, further part payment of Rs. 10,00,000/- (Rupees Ten Lac
      Only) on or before 24.12.1996, further part payment of  Rs.28,00,000/-
      (Rupees Twenty Eight Lac Only) on or before 23.4.1997 i.e.  equivalent
      to the registration value of two acres of land and the balance payment
      of Rs.42,00,000/- (Rupees Forty Two Lac  Only)  will  be  made  on  or
      before 23.7.1997 equivalent to the value of three acres and the  final
      payment will be made to the Seller on or before 23.10.1997.


      4.    That the Seller and purchaser parties will be bound  to  execute
      one or more sale deeds in favour  of  the  purchaser  company  or  its
      nominees as per schedule mentioned in para no.3 without any delay  and
      hesitation and registration will be made from one end of the  land  in
      continuous  manner  and  the  earnest  money  and  part   payment   of
      Rs.20,00,000/-(Rupees Twenty Lac Only) will be adjusted  in  the  last
      and final sale deeds. The Seller party  will  present  personally  for
      execution of sale deed in favour of the  nominees  in  the  office  of
      Joint Sub Registrar, Dera Bassi as per time  and  date  fixed  between
      both the parties.


      5.     That  the  said  Seller  will  handover  the  vacant   physical
      possession of the said land for the purpose of development  activities
      to the purchaser company at the  time  of  after  receiving  the  part
      payment of Rs.9,00,000/-(Rupees Nine Lac Only).


      6.    xx         xx          xx         xx


      7.    That the Seller party will fully cooperate  with  the  purchaser
      company to apply and obtain the colonization licence  from  the  PUDA,
      Chandigarh. The Seller party will give a Special Power of Attorney for
      this purpose to the nominee of the company.”


13.   The question whether the respondent was ready and willing  to  perform
its part of the agreement is required to be decided  in  the  light  of  the
pleadings of the parties, evidence produced by them and  their  conduct.  In
paragraph 5 of the plaint, the respondent categorically pleaded that it  was
always ready and willing and is still ready and willing to perform its  part
of the contract and on 22.11.1996 Rs. 9,00,000/- had  been  offered  to  the
appellant’s father but the latter refused to accept the amount.  The  thrust
of the case set up  by  the  appellant  was  that  his  father  had  neither
executed the agreement nor received the earnest money.   According  to  him,
the agreement was an end product  of  criminal  conspiracy  hatched  by  the
respondent with the help  of  Col.  Harjit  Singh  and  Vijay  Bhardwaj  for
defrauding him.  The appellant also pleaded that the agreement  relied  upon
by the respondent was a fake and  fabricated  document.   In  reply  to  the
averments contained in para 5 of the plaint that the respondent  was  always
ready and willing and is still ready and willing to perform its part of  the
contract, the following statement was made in the written statement:
      “5.   Para no.5 of the plaint is  wrong  and  therefore  denied.   The
      question of readiness and willingness on the part  of  the  defendants
      does not arise at all.  Question of receiving of  Rs.  nine  lac  also
      does not arise at all.”

14.   The trial Court comprehensively analysed the  pleadings  and  evidence
of the parties and  held  that  the  respondent  has  succeeded  in  proving
execution of  the  agreement  by  the  appellant’s  father  and  receipt  of
Rs.1,00,000/- by him. The trial Court then considered the  question  whether
the respondent was ready and willing to pay the balance price and observed:


      “……………Perusal of the terms and conditions of the agreement to sell  in
      question reveals that the plaintiff had to pay an amount of Rs.9  lacs
      as part payment amount on or before 23.11.1996 and the defendant  No.2
      in turn was schedule to deliver the vacant physical possession of  the
      property in dispute to the plaintiff i.e. on 23.11.1996. The  specific
      stand taken by the plaintiff is that he remained ready with  the  said
      amount of Rs.9 lacs to be paid to the defendants on  23.11.1996,  but,
      the defendants refused to accept the said amount  on  pretext  or  the
      other. The plaintiff sent a telephonic  message  through  STD  to  the
      defendant No.2 besides sending the  other  phonogram  message  to  the
      defendant No.2 on the same day at 11.00 a.m. More  significantly,  the
      plaintiff had prepared a draft  of  Rs.9  lacs  bearing  No.BC/F322341
      dated 23.11.1996 in this regard. Had the  plaintiff  not  been  having
      ready cash amount of Rs.9 lacs and not ready and willing  to  pay  the
      amount of Rs.9 lacs to the defendants, then, he  would  have  prepared
      the said draft. Rather, defendants have denied the  execution  of  any
      such agreement dated 22.10.1996 and therefore, defendants cannot  take
      the plea that plaintiff never offered an  amount  of  Rs.9  lacs.  The
      defendants are also estopped from taking the plea that  plaintiff  was
      not ready and willing to perform his part of the contract and that the
      plaintiff did not have the capacity  to  make  the  payment  when  the
      defendants  have  denied  the  very  execution  of  the  agreement  in
      question. It may be pertinent to mention here that plaintiff had  also
      served  a  legal  notice  upon  the  defendants  through  his  counsel
      Sh.G.K.Verma, Advocate on 24.11.1996, but, the defendants  refused  to
      accept the said notice. The plaintiff was scheduled  to  make  further
      payment on different dates to the defendants  after  23.10.1996,  but,
      since the defendants have  denied  the  execution  of  the  agreement,
      therefore, the question  where,  the  plaintiff  was  ready  with  the
      subsequent payment of Rs.10 lacs, Rs.18 lacs and Rs.42 lacs to be paid
      on subsequent dates becomes meaningless and  loses  its  significance.
      DW1 Narinderjit Singh has himself stated that document was forged  and
      fabricated, but, he has failed  to  prove  this  averment  on  record.
      Although, the defendants have examined an expert  witness  namely  DW3
      Navdeep Gupta, who has stated that agreement to sell dated  22.10.1996
      did not contain the signatures of defendant No.2 Gurcharan Singh, but,
      his testimony cannot be given  much  weightage  in  the  wake  of  the
      positive oral as well as documentary evidence led  by  the  plaintiff.
      Rather, the plaintiff has also examined PW6 Jassy Anand, Finger Prints
      and Handwriting Expert, who has specifically stated on oath before the
      Court that  in  the  present  case,  she  has  examined  the  disputed
      signatures of defendant No.2 on the agreement  in  question  with  the
      standard signatures and he was of the opinion that signatures of  Col.
      Gurcharan Singh, defendant No.2 tallied with the  disputed  signatures
      of Col. Gurcharan Singh, defendant No.2 on the agreement  in  question
      which  means  that  signatures  on  the  disputed  agreement  and  the
      signatures on the authentic documents were done by one  and  the  same
      person. ………………………………. So, the agreement in question  dated  22.10.1996
      EX.PW3/A duly stands proved in accordance with provisions of  law.  It
      stands sufficiently proved on record that defendants on 22.10.1996 had
      executed an agreement  to  sell  in  favour  of  the  plaintiff  after
      receiving earnest amount of Rs.one lacs  from  the  plaintiff  in  the
      presence of marginal witnesses.”
                                                         (emphasis supplied)




15.   The appellant did not question the aforesaid  findings  of  the  trial
Court by filing an appeal. Not only this, he did  not  file  cross-objection
in the appeal filed by the respondent. Therefore, the lower appellate  Court
was not required to consider whether execution of  the  agreement  for  sale
has been proved and whether respondent was ready and willing to perform  its
part of the agreement, but it considered both the questions and observed:
      “The learned trial Court has specifically held that due  execution  of
      the agreement in question has been proved and there is  no  defect  in
      the findings recorded by the learned trial Court in this  regard.  The
      version of the appellant/plaintiff in this regard has been  proved  by
      PW3 Vijay Bhardwaj  who  is  marginal  witness  of  the  agreement  in
      question. So far as readiness and  willingness  on  the  part  of  the
      appellant/plaintiff to perform its contract is concerned, the  learned
      trial Court has recorded findings in favour of the appellant/plaintiff
      and the said findings are based on proper  appreciation  of  evidence.
      The evidence produced by  the  appellant/plaintiff    shows  that  the
      appellant/ plaintiff had got issued a demand draft of Rs.9,00,000/- on
      23.11.1996   for   payment    of    the    said    amount    to    the
      defendants/respondents but they did not receive the said  amount.  The
      appellant/ plaintiff had sent message and also phonogram  Ex.PW3/1  to
      the defendants/respondents on 23.11.1996 vide receipt ex.PW3/H. Even a
      notice Ex.PW3/D was sent to the defendants/respondents through courier
      vide receipt Ex.PW3/C and even a legal notice had  been  sent  to  the
      defendants/respondents by the appellant/plaintiff through its counsel.
      Further the statement of M.K.Jain Director of the  appellant/plaintiff
      in this  regard  finds  corroboration  from  the  testimony  of  Vijay
      Bhardwaj. On the other hand, the  defendants/respondents  have  denied
      the  agreement  in  question  and  it   is   not   their   plea   that
      appellant/plaintiff was not ready and willing to perform its contract.
      Under   these   circumstances,   the   evidence   produced   by    the
      appellant/plaintiff  to  prove  their  readiness  and  willingness  to
      perform their part of contract can be accepted without any  hesitation
      and in this regard I find support from the judgment of Hon'ble  Punjab
      and Haryana High Court in Santa Singh Vs. Binder Singh and Ors 2006(4)
      Civil Court Cases-608 wherein it was held as under:-


           "Since the case of the defendant  is  that  of  one  of  denial,
           therefore, the statement of the plaintiff that he was ready  and
           willing to perform his part of the  contract  is  sufficient  to
           infer that plaintiffs were ready and willing  to  perform  their
           part of contract. It was a  meager  amount  of  Rs.2000/-  alone
           which was required to be paid at the time of registration of the
           sale deed. The substantial  amount  was  paid  at  the  time  of
           execution of the agreement. More than Rs.12000/-  was  kept  for
           payment to the mortgagee. Therefore, the argument raised by  the
           learned counsel for the appellant that the plaintiffs  have  led
           evidence to prove his  ready  and  willingness  to  perform  the
           contract is not tenable.”

16.   The learned Single Judge also considered the issue  of  readiness  and
willingness of the respondent to perform  its  part  of  the  agreement  and
observed:

      “The factum of readiness and willingness to  perform  the  plaintiff’s
      part of the contract is to be adjudged with the conduct of the parties
      and the attending circumstances.  In  the  present  case,  it  may  be
      noticed that according to the terms and conditions of the agreement in
      question,  the  plaintiff-respondent  was  to  make   a   payment   of
      Rs.9,00,000/- to the appellant on 23.11.1996 and  on  receipt  of  the
      aforesaid payment, the appellant was to allow the plaintiff-respondent
      to carry  out  the  development  activities.   However,  it  has  been
      established on record  that  the  appellant  refused  to  receive  the
      aforesaid amount of Rs.9,00,000/- on 23.11.1996.  There is no evidence
      on record that the appellant ever allowed the plaintiff-respondent  to
      carry out development activities  in  the  land  in  question.   Thus,
      thereafter, there was no  occasion  for  the  plaintiff-respondent  to
      further perform its part  of  the  contract  on  subsequent  dates  as
      argued. Still there is no evidence on record placed by  the  appellant
      to prove the fact that the plaintiff-respondent was not ready  to  get
      the sale deed executed on  subsequent  dates  as  per  the  terms  and
      conditions of the  agreement  in  question.  There  is  a  distinction
      between readiness to perform the contract and willingness  to  perform
      the contract. By readiness, may be meant the capacity of the plaintiff
      to perform the contract which includes his financial position  to  pay
      the purchase price whereas determining the willingness to perform  his
      part  of  the  contract,  the  conduct  of  the  parties  has  to   be
      scrutinized.  In the present case, there  is  no  evidence  placed  on
      record to show  that  the  plaintiff-respondent  was  not  having  the
      capacity to pay the purchase price for  execution  of  the  subsequent
      sale deeds. The plaintiff-respondent had demonstrated his  willingness
      to pay Rs.9,00,000/- on 23.11.1996 by placing  on  record  the  demand
      draft of Rs.9,00,000/- in favour of the appellant. However, as noticed
      above, since the appellant refused to accept the same, the  plaintiff-
      respondent was prevented from performing its part of the agreement  by
      offering money for execution of the sale deeds on subsequent dates.”

17.   In our view, the concurrent findings recorded by the trial  Court  and
the lower appellate Court on the issues of execution  of  the  agreement  by
the appellant’s father and the respondent’s  readiness  and  willingness  to
perform its part of the agreement were based on correct  evaluation  of  the
pleadings and evidence of the parties and the learned Single  Judge  of  the
High Court did not commit any error by refusing  to  upset  those  findings.
The argument of the learned senior counsel for the  appellant  that  in  the
absence of specific pleading about continued readiness  and  willingness  of
the respondent to perform its part of  the  agreement  and  availability  of
funds necessary for payment  of  the  sale  consideration,  the  High  Court
should have set aside the concurrent finding recorded by  the  Courts  below
sounds attractive but on a careful scrutiny of the record  we  do  not  find
any valid ground to entertain the same.   In  R.C.  Chandiok  v.  Chuni  Lal
Sabharwal (1970)  3  SCC  140,  this  Court  observed  that  “readiness  and
willingness cannot be treated as a straitjacket formula and  the  issue  has
to be decided keeping in view the facts and circumstances  relevant  to  the
intention and conduct of the party concerned”. The same view was  reiterated
in D'Souza v. Shondrilo Naidu, (2004) 6 SCC 649.  In N.P. Thirugnanam v.  R.
Jagan Mohan Rao (Dr) (1995) 5 SCC 115, the Court found  that  the  appellant
was dabbling in real  estate  transaction  without  means  to  purchase  the
property and observed:
      “Section 16(c) of the Act envisages  that  plaintiff  must  plead  and
      prove that he had performed or has always been ready  and  willing  to
      perform the essential terms of the contract which are to be  performed
      by him, other than those terms  the  performance  of  which  has  been
      prevented or waived by the defendant.  The  continuous  readiness  and
      willingness on the part of the plaintiff is a condition  precedent  to
      grant  the  relief  of  specific  performance.  This  circumstance  is
      material and relevant and is required to be considered  by  the  court
      while granting or refusing to grant the relief. If the plaintiff fails
      to either aver or prove the same, he must fail. To adjudge whether the
      plaintiff is ready and willing to perform his part  of  the  contract,
      the court must take into consideration the conduct  of  the  plaintiff
      prior and subsequent to the  filing  of  the  suit  along  with  other
      attending circumstances. The amount of consideration which he  has  to
      pay to the defendant must of necessity  be  proved  to  be  available.
      Right from the date of the execution till date of the decree  he  must
      prove that he is ready and has always been willing to perform his part
      of  the  contract.  As  stated,  the  factum  of  his  readiness   and
      willingness to perform his part of the contract is to be adjudged with
      reference to the conduct of the party and the attending circumstances.
      The court may infer from  the  facts  and  circumstances  whether  the
      plaintiff was ready and was always ready and willing  to  perform  his
      part of the contract.”



18.   In J. P. Builders v. A. Ramadas Rao  (supra),  the  Court  has  merely
reiterated the principles already laid down and no new proposition has  been
laid down which may help the cause of the appellant.

19.   It is significant to note that the appellant and his  father  had  set
up the case of total denial. They repeatedly pleaded that the agreement  for
sale was a fictitious document and the respondent had  fabricated  the  same
in connivance with  Col.  Harjit  Singh  and  Vijay  Bhardwaj.  However,  no
evidence was adduced by the appellant to substantiate  his  assertion.  That
apart, he did not challenge the finding recorded by the trial Court  on  the
issue of readiness and willingness of the respondent to perform its part  of
the agreement. Therefore,  we  do  not  find  any  valid  ground  much  less
justification for exercise of power by this Court under Article 136  of  the
Constitution of India to interfere with the judgment of the lower  appellate
Court which was approved by the High Court.

20.   We are also inclined to agree with  the  lower  appellate  Court  that
escalation in the price of the land cannot,  by  itself,  be  a  ground  for
denying  relief  of  specific  performance.   In  K.  Narendra  v.   Riviera
Apartments (P) Ltd. (supra), this Court interpreted Section 20  of  the  Act
and laid down the following propositions:
      “Section 20 of  the  Specific  Relief  Act,  1963  provides  that  the
      jurisdiction to decree specific performance is discretionary  and  the
      court is not bound to grant such relief merely because it is lawful to
      do so; the discretion of the court is  not  arbitrary  but  sound  and
      reasonable, guided by judicial principles and capable of correction by
      a court of appeal. Performance of the contract involving some hardship
      on the defendant  which  he  did  not  foresee  while  non-performance
      involving  no  such  hardship  on  the  plaintiff,  is  one   of   the
      circumstances in which the court may properly exercise discretion  not
      to decree specific performance. The doctrine of  comparative  hardship
      has  been  thus  statutorily  recognized  in  India.   However,   mere
      inadequacy of consideration or the mere  fact  that  the  contract  is
      onerous to the defendant or  improvident  in  its  nature,  shall  not
      constitute an unfair advantage to the plaintiff over the defendant  or
      unforeseeable hardship on the defendant.”


                                                         (emphasis supplied)



21.    In the present case, the appellant had neither pleaded  hardship  nor
produced any evidence to show that it will be inequitable to order  specific
performance of the agreement.  Rather,  the  important  plea  taken  by  the
appellant was that the agreement  was  fictitious  and  fabricated  and  his
father had neither executed the same nor received the earnest money and,  as
mentioned  above,  all  the  Courts  have  found  this  plea  to  be  wholly
untenable.

22.   In the result, the appeals are dismissed and the following  directions
are given:

      i)    Within three months from today the  respondent  shall  pay  Rs.5
           crores to the appellant. This direction is being  given  keeping
           in view the statement made by Shri Dushyant Dave, learned senior
           counsel for the respondent on 03.05.2012 that his  client  would
           be willing to pay Rs.5 crores in all to  the  appellant  as  the
           price of the land.

      ii)   Within next three months the appellant  shall  execute  and  get
           the sale deed registered in favour of the  respondent  and  hand
           over possession of the suit property.

                                                …..……….....……..….………………….…J.
                                             [G.S. SINGHVI]

                                                  ..…………..………..….………………….…J.
                                  [SUDHANSU JYOTI MUKHOPADHAYA]
New Delhi,
May 08, 2012.


-----------------------
19

As has been rightly observed by his lordship O. Chinnappa Reddy, J., in Rana Pratap’s case (supra.) there is no fixed pattern of reaction of an eyewitness to a crime. When faced with what is termed as ‘an unusual reaction’ of an eyewitness, the Court must only examine whether the prosecution story is in anyway affected by such reaction. If the answer is in the negative, then such reaction is irrelevant. We are afraid that the unusual behaviour of the injured eyewitness, PW6, will not, in anyway, aid the appellants to punch a hole on to the prosecution story. We are afraid the decision of this Court in the case of Mahendra Pratap Singh (supra.) cited by Shri. Dholakia would not help the appellants, as in the case not only were the weapons used identified, but also the evidence on record did not inspire confidence in the story of the prosecution. In that case, this Court came to conclude that two views were possible, and therefore gave the benefit of the same to the accused. In the instant case, cumulative reading of the entire evidence makes the prosecution story believable, thereby proving the guilt of the accused appellants beyond any doubt. The High Court in the impugned judgment has correctly appreciated the evidence on record, and we do not find any infirmity in the same, therefore we uphold the conviction of guilt and sentence imposed by the High Court.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPEALATE JURISDICTION

                      CRIMINAL APPEAL NO. 1042 OF 2002


Kathi Bharat Vajsur & Anr.            ...Appellants


                       Versus


State of Gujarat                          ...Respondent


                               J U D G M E N T


H.L. DATTU, J.





1) This appeal is directed against the judgment  and  order  passed  by  the
   Division Bench of the High  Court  of  Gujarat  in  Criminal  Appeal  No.
   744/1985 dated 15.07.2002. By the impugned judgment and order,  the  High
   Court has reversed the  order  of  acquittal  passed  by  the  Additional
   Sessions Judge, Amreli in Sessions Case No. 22/84 and convicted  the  two
   appellants for the offence punishable under section 302 read with section
   34 of the Indian Penal Code, 1860 [“the IPC” for short], sentencing  them
   to imprisonment for life and a fine of ` 1000/- each, in default of which
   they are directed  to  further  undergo  rigorous  imprisonment  for  six
   months.






2) At the outset, we note that initially there  were  three  accused  before
   the Trial Court, and they were all acquitted  for  the  offences  alleged
   against them.  During the pendency of the appeal before the  High  Court,
   A1 (Kathi Fakira Vajsur) expired, and the appeal stood abated as  against
   him. The other two accused, namely A2 (Kathi Bharat Vajsur) and A3 (Kathi
   Ramku Vajsur) are prosecuting this appeal. During the  pendency  of  this
   appeal, this Court had enlarged the appellants on bail vide  order  dated
   03.12.2002.





3) The factual scenario giving rise to the present appeal is as follows:


  The case of the prosecution is that, a part of the adjoining land  of  the
  primary school in village Gigasan was leased  out  to  A1,  where  he  had
  constructed a storage tank for storage of kerosene. It was resolved by the
  Gigasan Panchayat to give the road between the school and the tank to  the
  school for their use.  Therefore, Panchayat had proposed  to  construct  a
  wall on the land so granted.  Prior to the date of the incident, when  one
  Amra Pitha and other labourers had commenced the work on the said plot, A1
  protested to it and did not permit them to carry out  the  proposed  work,
  due to which Amra Pitha had to complain to the Sarpanch Jagu Dada and  the
  Secretary of the Panchayat Shri. Kanubhai about the interference caused by
  A1. On the morning of the incident, i.e. 30th March 1984, when  Jagu  Dada
  (PW6), Mulu Dada (deceased)  and  Dhoha  Vasta  (Informant)  informed  the
  President of the Taluka Development  Officer  about  the  attitude  of  A1
  towards Amra Pitha and other labourers, he directed Mulu  Dada  to  ignore
  the threat and complete the construction as resolved by the Panchayat.






4) On the same day, at about 3.30 pm, PW6, the deceased and  two  labourers,
   namely Jetha (PW8) and Natha  (PW7)  went  to  the  plot  and  began  the
   construction work as directed and they were  assisted  by  Manjibhai  and
   Patel who were teachers working in the Primary School.  When  they  began
   digging for laying the foundation, A1 along with his brothers A2  and  A3
   came near the plot and asked them  not  to  dig  the  pit.  After  verbal
   exchange, A1 took out a double bore tamancha from his pocket and  pointed
   at PW6, and threatened him to leave. On his refusal to leave,  A1  opened
   fire which caused injury on his right hand and thereafter, again fired on
   the chest of PW6. Meantime, A2 also fired from tamancha on the person  of
   Mulu Dada due to which Mulu Dada fell down, after which A3 caused  injury
   on the head with an axe which he was carrying with him.  Thereafter  they
   fled from the place of incident. Due to the injuries  caused,  Mulu  Dada
   died on the spot. Immediately, PW5 reported the incident  to  the  Police
   Station, Dhari and on the basis of the written report the Station Officer
   took-up the investigation and  on  completion  thereof  charge-sheet  was
   filed against the accused  persons  for  the  offences  punishable  under
   Sections 302, 307 read with Section 34 of  the  Indian  Penal  Code  (for
   short ‘the IPC’).






5) To substantiate its accusation, prosecution  examined  several  witnesses
   to prove its  case  before  the  Trial  Court.  The  Trial  Court,  after
   considering the entire evidence on record, acquitted the accused persons,
   on the ground that the  prosecution  failed  to  prove  its  case  beyond
   reasonable doubt.






6) Aggrieved by the same, the State preferred an appeal before  the  Gujarat
   High Court. The Court, after examining the entire evidence on record, has
   set aside the judgment and order passed by the Trial Court, and convicted
   A2 and A3 under Section 302 read with Section 34 of the  IPC,  sentencing
   them to life imprisonment and a fine of ` 1000/- each. However, as far as
   A1 was concerned, the appeal had abated due to his  death.  Aggrieved  by
   the conviction and  sentence  passed  by  the  High  Court,  the  accused
   -appellants are before us in this appeal.






7) Shri. Dholakia, learned senior counsel, submitted that  the  Trial  Court
   was justified in acquitting the accused persons, as the Trial  Court  had
   recorded that there are material contradictions in the statements of  PW5
   and PW6 recorded by the police under section 161 of the Code of  Criminal
   Procedure, 1973 [hereinafter referred to as “the Code”] and the  evidence
   that was tendered in the Court during the trial.  He further submits that
   the tamancha allegedly used, was a single barrel gun, which needs  to  be
   reloaded after firing a single shot and that there  was  no  evidence  of
   such reloading. By referring to the testimony of the ballistic expert (PW
   18), the learned senior counsel would state that the answer given by  him
   was not conclusive whether such a fire arm  could  have  been  used.   He
   would submit that since the conviction  and  sentence  is  imposed  under
   Section 302 r/w Section 34, it was required for the prosecution to  prove
   which injury was caused by which accused and which injury  was  fatal  to
   the life of the accused. He would emphasize that there  must  be  a  live
   link between all the alleged events, in order to prove the guilt  of  the
   appellants beyond reasonable doubt, which he would submit, is missing  in
   this case.










8) The four main contradictions/discrepancies  that  Shri.  Dholakia  points
   out in the prosecution story are: (a) The eye witnesses  (PW5  and  PW6),
   when they were shown the arms recovered, emphatically denied  that  those
   were not the arms used on the date of the incident; (b) the  sequence  of
   the shooting by A1 and A2, and who shot  whom  was  not  clear  from  the
   testimony of PW5 and PW6 when read along with their  statements  recorded
   under section 161 of the Code; (c) that the clothes of  PW5,  which  were
   seized and who is said to have carried the  body  of  the  deceased,  had
   absolutely no blood stains on his clothes; and  (d) the  conduct  of  the
   injured witness (PW6), in running away from the scene of the incident  to
   a room and locking himself, and then running back to  the  scene  of  the
   incident, was suspicious and abnormal. Shri. Dholakia would  then  submit
   that if two views are possible, then the one that was in  favour  of  the
   accused requires to be adopted. In conclusion, it is submitted  that  the
   Trial Court, which had  observed  the  demeanour  of  the  witnesses  and
   considered all the facts and circumstances,  had  rightly  acquitted  the
   appellants of all charges. It is also contended that in  the  absence  of
   any perversity or omission to  consider  material  evidence  or  apparent
   error  in  law,  the  judgment  of  the  Trial  Court  was  not  open  to
   interference in an appeal against acquittal.


9) Smt. Madhavi Divan, learned counsel appearing  for  the  respondent-State
   would fairly submit that some contradictions or  discrepancies  could  be
   found in the evidence recorded, but would contend that if the evidence is
   read as a whole, there would not be even an iota of doubt left as to  the
   guilt of the appellants. She would further submit that even  if  portions
   of the evidence of the hostile witnesses are eschewed from consideration,
   still it is possible to arrive at the same conclusion as has been done by
   the High Court. The learned counsel would rely on the testimony  of  PW6,
   who is an injured witness to establish the  presence  of  all  the  three
   accused at the time of the incident. PW6 has further described  the  kind
   of injuries  that  he  had  sustained,  which,  she  would  submit  would
   corroborate with the medical evidence as well as  the  testimony  of  the
   doctor who had treated the injured witness.  The  learned  counsel  would
   submit that though, PW6 may be confused about the  sequence  of  the  gun
   shots, there is absolutely no dispute as to who fired the  shots  at  the
   deceased person. Smt. Divan would further refer to the evidence  of  PW12
   (Manjibhai), a teacher in the Primary School, who has also testified that
   the three accused were present at the scene of occurrence and  they  were
   carrying tamanchas and one of them an axe, and that there was  an  heated
   altercation between the accused persons and the deceased (PW5  and  PW6),
   when he (PW12) left the scene. She would also state that he had heard the
   gun shots, and when he came out, saw the corpse of the deceased  in  pool
   of blood. The learned counsel would then refers to the  evidence  of  PW7
   and PW8, the labourers who were present at the place of the incident, who
   have also testified that the accused had come to the place with tamanchas
   and axe, and that there was  altercation  between  the  accused  and  the
   deceased, PW5 and PW6. They also testified that they had  heard  the  gun
   shots. She would then refer to the evidence of PW16 (Lakha), who had also
   heard the gun shots fired, and was told about the incident by PW5.






10) Smt. Divan would fairly submit that though PW7, PW8  and  PW12  are  all
   declared hostile, yet, she would state that  by  reading  their  evidence
   with the evidence of PW5, PW6 and PW16, it is clear  that  the  deceased,
   PW5 and PW6 were present at the place of the incident, and  so  were  the
   accused appellants armed with tamanchas and axe. She would further submit
   that the factum of an  altercation  between  the  two  parties  was  also
   established from the evidence on record, and that of the gun shots fired.
   With this evidence, Smt. Divan would submit, it is clear beyond any doubt
   that the death of the deceased was caused by the accused appellants,  and
   strongly refuted the contention of Shri. Dholakia  that  two  views  were
   possible, stating that on this evidence no other view was possible, apart
   from the view taken by the High Court.






11) Smt. Madhavi Divan, learned counsel, would submit that this  Court  must
   not give undue importance to the non-recognition of the  weapons  by  PW5
   and PW6 during the trial. According to the  learned  counsel,  the  panch
   witnesses have identified the weapons recovered at the  instance  of  the
   accused during the trial. She would, for  this  purpose,  refers  to  the
   evidence of PW10 (Vallabhbhai), who  not  only  narrated  the  place  and
   manner in which the axe and the  other  weapons  were  recovered  at  the
   instance of A2, but also identified the  same  when  shown  the  same  in
   Court.  She  would  further  state  that  it  is   reasonable   for   the
   eyewitnesses, one of whom was injured in the incident, not to  have  seen
   the weapons in the commotion of the incident properly.  To  sum  up,  the
   learned  counsel submits that the High Court, after  re-appreciating  the
   entire evidence on record, has come to  the  conclusion  that  the  Trial
   Court has fallen in error in magnifying  the   minor   contradictions  to
   arrive at a conclusion that the prosecution has failed to prove the guilt
   of the accused beyond all reasonable doubt.






12) The circumstances in which an appellate court will  interfere  with  the
   finding of the Trial Court are now well settled by catena of decisions of
   this Court. In Dwarka Dass v. State of Haryana, (2003)  1  SCC  204,  the
   dicta of all these decisions has been crystallized thus:


      “2. While there cannot be any denial of the factum that the power  and
      authority to  apprise  the  evidence  in  an  appeal,  either  against
      acquittal or conviction stands out to be very comprehensive and  wide,
      but if two views are reasonably possible, on the  state  of  evidence:
      one supporting the acquittal and the other indicating conviction, then
      and in that event the High Court would not be justified in interfering
      with an order of acquittal, merely because it feels that  it,  sitting
      as a  trial  court,  would  have  taken  the  other  view.  While  re-
      appreciating the evidence, the rules of  prudence  requires  that  the
      High Court should give proper weight and consideration to the views of
      the trial Judge...”






13) In the case of Narinder Singh v. State  of  Punjab  2000  Crl.  LJ  3462
   (SC), this Court has  held  that  the  High  Court  is  entitled  to  re-
   appreciate the evidence if it  is  found  that  the  view  taken  by  the
   acquitting Court was not a possible view or that it  was  a  perverse  or
   infirm  or  palpably  erroneous  view  or  the  Trial  Court  taken  into
   consideration inconsequential circumstances or has  acted  with  material
   irregularity or has rejected  the  evidence  of  eye-witnesses  on  wrong
   assumptions.


14) It is also now well settled that in a criminal trial the  guilt  of  the
   accused must be proved beyond reasonable doubt, in order to convict  him.
   This court in the case of State of U.P. v. Krishna Gopal,  (1988)  4  SCC
   302, held:


      “25. A person has, no doubt, a profound right not to be  convicted  of
      an offence which is not established  by  the  evidential  standard  of
      proof beyond reasonable  doubt.  Though  this  standard  is  a  higher
      standard, there is, however, no  absolute  standard.  What  degree  of
      probability amounts to “proof” is an exercise particular to each case.
      Referring to the interdependence of evidence and the  confirmation  of
      one piece of evidence by another a learned Author says:


        “The simple multiplication rule  does  not  apply  if  the  separate
        pieces of evidence are dependent. Two events are dependent when they
        tend to occur together, and the evidence of such events may also  be
        said to be dependent.  In  a  criminal  case,  different  pieces  of
        evidence  directed  to  establishing  that  the  defendant  did  the
        prohibited act with  the  specified  state  of  mind  are  generally
        dependent. A juror may feel  doubt  whether  to  credit  an  alleged
        confession, and doubt whether to infer guilt from the fact that  the
        defendant fled from justice. But since it is generally guilty rather
        than innocent people who make confessions, and  guilty  rather  than
        innocent people  who  run  away,  the  two  doubts  are  not  to  be
        multiplied together. The one  piece  of  evidence  may  confirm  the
        other.”


      Doubts would be called reasonable if they are free  from  a  zest  for
      abstract speculation. Law  cannot  afford  any  favourite  other  than
      truth. To constitute reasonable doubt, it must be free from  an  over-
      emotional response. Doubts must be actual and substantial doubts as to
      the guilt of the accused person arising from the evidence, or from the
      lack of it, as opposed to mere vague apprehensions. A reasonable doubt
      is not an imaginary, trivial or a merely possible doubt;  but  a  fair
      doubt based upon reason and common sense. It  must  grow  out  of  the
      evidence in the case.


      26. The concepts  of  probability,  and  the  degrees  of  it,  cannot
      obviously  be  expressed  in  terms  of  units  to  be  mathematically
      enumerated as to how  many  of  such  units  constitute  proof  beyond
      reasonable doubt. There is an unmistakable subjective element  in  the
      evaluation of the degrees of probability and  the  quantum  of  proof.
      Forensic probability must, in the last  analysis,  rest  on  a  robust
      common sense and, ultimately, on the trained intuitions of the  Judge.
      While the protection given by the  criminal  process  to  the  accused
      persons  is  not  to  be  eroded,  at  the   same   time,   uninformed
      legitimisation of trivialities would make a mockery of  administration
      of criminal justice.”










15) In the case of Gurbachan Singh v. Satpal Singh, (1990) 1 SCC 445, it  is
   observed:


      “4……. The standard adopted must be the standard adopted by  a  prudent
      man which, of course, may vary from case  to  case,  circumstances  to
      circumstances. Exaggeration devotion to the rule of benefit  of  doubt
      must not nurture fanciful doubts or lingering suspicions  and  thereby
      destroy social defence. Justice cannot be made  sterile  on  the  plea
      that it is  better  to  let  hundred  guilty  escape  than  punish  an
      innocent. Letting guilty escape is not  doing  justice,  according  to
      law.


      5. The conscience of the court can never be bound by any rule but that
      is coming itself dictates the consciousness and  prudent  exercise  of
      the judgment. Reasonable doubt is simply that degree  of  doubt  which
      would permit a reasonable and  just  man  to  come  to  a  conclusion.
      Reasonableness of the doubt must be commensurate with  the  nature  of
      the offence to be investigated.”










16) Now coming back to the facts of the case, it is not in dispute  that  in
   the incident, said to have taken place  on  30th  March,  one  person  is
   killed and the other person is  seriously  injured.  In  the  trial,  the
   injured has fully supported the case of  the  prosecution.  His  evidence
   finds support from the evidence of PW6 and the evidence of Doctor, PW 16.
   While hearing the learned counsel appearing for the parties, we have also
   perused the entire evidence on record, we are  of  the  view  that  Trial
   Court had erred in holding that the prosecution  had  not  been  able  to
   prove the case beyond reasonable doubt. We are inclined to agree with the
   submission of Smt. Madhavi  Divan,  learned  counsel  appearing  for  the
   respondent, that by relying on the evidence of PW5, PW6, PW7,  PW8,  PW12
   and PW 16, there can be no doubt that the A1, A2 and A3 were  present  at
   the place of the incident and were carrying tamanchas and axe, and  that,
   there was an altercation between the accused persons and PW5, PW6 and the
   deceased, and that gun shots were fired and the deceased died because  of
   the gun shot injuries and the blow on  the  head  with  the  axe  by  A3.
   Perhaps  the  Trial  Court  took  a  hyper-technical  view  by  primarily
   concentrating on minor contradictions to hold that  the  prosecution  has
   failed to prove the guilt of the accused beyond reasonable doubt. We  are
   not in agreement with the findings and conclusions reached by  the  Trial
   Court.






17) The argument canvassed by Shri. S.K. Dholakia, learned  senior  counsel,
   appearing for the appellants, that there was  material  discrepancies  in
   the evidence adduced by the eyewitnesses PW5 and PW6, with regard to  the
   sequence of shots fired and who  shot  whom.  This,  the  learned  senior
   counsel would submit, is enough to punch a hole in the prosecution story.
   He would further state that  the  High  Court  has  brushed  aside  these
   contradictions merely terming them as minor contradictions.  Per  contra,
   Smt. Divan, learned counsel  appearing  for  the  respondent,  while  not
   denying that there were some discrepancies in the evidence given  by  PW5
   and PW6, would state that on a complete reading of the evidence, there is
   no doubt about the guilt of the accused. We are inclined  to  agree  with
   the learned counsel for the respondent.





18) In the case of Leela Ram v. State of Haryana, (1999)  9  SCC  525,  this
   Court held:


      “12. It is indeed necessary to note that one  hardly  comes  across  a
      witness  whose  evidence  does  not  contain  some   exaggeration   or
      embellishment — sometimes there could even be a deliberate attempt  to
      offer embellishment and sometimes in their overanxiety they may give a
      slightly exaggerated account. The court can sift the  chaff  from  the
      grain and find out the truth from  the  testimony  of  the  witnesses.
      Total repulsion of the evidence is unnecessary. The evidence is to  be
      considered from the point of view of trustworthiness. If this  element
      is satisfied, it ought to inspire confidence in the mind of the  court
      to accept the stated evidence though not however in the absence of the
      same.”






19) This Court, in the case of Sunil Kumar Sambhudayal Gupta (Dr.) v.  State
   of Maharashtra, (2010)  13  SCC  657,  summarized  the  law  on  material
   contradictions in evidence thus:


      “Material contradictions


      30. While appreciating the  evidence,  the  court  has  to  take  into
      consideration whether the contradictions/omissions had  been  of  such
      magnitude  that  they  may  materially   affect   the   trial.   Minor
      contradictions, inconsistencies,  embellishments  or  improvements  on
      trivial matters without effecting the core  of  the  prosecution  case
      should not be made a ground to reject the evidence  in  its  entirety.
      The trial court, after going through the entire evidence, must form an
      opinion about the credibility of the witnesses and the appellate court
      in normal course would not be justified in reviewing  the  same  again
      without justifiable reasons. (Vide State v. Saravanan.)


      31. Where the  omission(s)  amount  to  a  contradiction,  creating  a
      serious doubt about the  truthfulness  of  a  witness  and  the  other
      witness also makes material improvements before the court in order  to
      make the evidence acceptable, it cannot be  safe  to  rely  upon  such
      evidence. (Vide State of Rajasthan v. Rajendra Singh.)


      32. The discrepancies in the evidence of eyewitnesses, if found to  be
      not minor in nature, may be a ground for disbelieving and discrediting
      their evidence. In  such  circumstances,  witnesses  may  not  inspire
      confidence and if their evidence  is  found  to  be  in  conflict  and
      contradiction with  other  evidence  or  with  the  statement  already
      recorded, in such a case it cannot be held that the prosecution proved
      its case beyond reasonable doubt. (Vide Mahendra Pratap Singh v. State
      of U.P.)


      33. In case, the  complainant  in  the  FIR  or  the  witness  in  his
      statement under Section 161 CrPC, has not disclosed certain facts  but
      meets the prosecution case first time before the court,  such  version
      lacks credence and is liable to be discarded. (Vide State v. Sait.)


      34. In State of Rajasthan v. Kalki, while  dealing  with  this  issue,
      this Court observed as under: (SCC p. 754, para 8)


        “8. … In the  depositions  of  witnesses  there  are  always  normal
        discrepancies  however  honest  and  truthful  they  may  be.  These
        discrepancies are due to normal errors of observation, normal errors
        of memory due to lapse of time, due to mental  disposition  such  as
        shock and horror at the  time  of  the  occurrence,  and  the  like.
        Material discrepancies are those  which  are  not  normal,  and  not
        expected of a normal person.”


      35. The courts have to label  the  category  to  which  a  discrepancy
      belongs. While normal discrepancies do not corrode the credibility  of
      a party's case, material discrepancies do so.  (See  Syed  Ibrahim  v.
      State of A.P.6 and Arumugam v. State.)


      36. In Bihari Nath Goswami v. Shiv Kumar Singh this Court examined the
      issue and held: (SCC p. 192, para 9)


        “9. Exaggerations per se do not render the evidence brittle. But  it
        can be one of the factors to test the credibility of the prosecution
        version, when the entire evidence is put in  a  crucible  for  being
        tested on the touchstone of credibility.”






      37. While deciding such a case, the court has to apply  the  aforesaid
      tests. Mere marginal variations in the statements cannot be dubbed  as
      improvements as the same may be elaborations of the statement made  by
      the witness earlier. The omissions which amount to  contradictions  in
      material particulars i.e. go to the root of the case/materially affect
      the trial or core of the prosecution case, render the testimony of the
      witness liable to be discredited.”






20) Moreover, by reading  the  evidence  of  the  PW1  (Kamlesh),  PW2  (Dr.
   Savjibhai) and PW3  (Dr.  Shobhanaben),  the  injuries  on  PW6  and  the
   deceased have come to light.  These  injuries  are  consistent  with  the
   testimony of the evidence tendered by the eyewitnesses,  namely  PW5  and
   PW6. This Court, in the case of Rakesh v. State of M.P.,(2011) 9 SCC 698,
   held:


      “13. It is a settled legal proposition that the ocular evidence  would
      have primacy unless it is established that oral  evidence  is  totally
      irreconcilable  with  the  medical  evidence.  More  so,  the   ocular
      testimony of a witness  has  a  greater  evidentiary  value  vis-à-vis
      medical evidence; when medical evidence  makes  the  ocular  testimony
      improbable, that becomes a relevant  factor  in  the  process  of  the
      evaluation of evidence. However, where the medical  evidence  goes  so
      far that it  completely  rules  out  all  possibility  of  the  ocular
      evidence if proved, the ocular  evidence  may  be  disbelieved.  (Vide
      State of U.P. v. Hari Chand, Abdul Sayeed v. State of M.P. and  Bhajan
      Singh v. State of Haryana.)”






21) When the medical evidence is in consonance with the  principal  part  of
   the oral/ocular evidence thereby supporting the prosecution story,  there
   is no question of ruling out the ocular evidence  merely  on  the  ground
   that there  are  some  inconsistencies  or  contradictions  in  the  oral
   evidence. We are not inclined to agree with Shri. Dholakia on this count.






22) Shri. Dholakia would lay emphasis on the unusual conduct  of  PW6  after
   the occurrence of the incident and therefore  submits  that  the  learned
   trial judge was justified in disbelieving the evidence of PW6.  We cannot
   agree. This Court, in the case of Appabhai v. State of Gujarat, 1988 Supp
   SCC 241, held:






      “11.… Experience  reminds  us  that  civilized  people  are  generally
      insensitive when a crime is committed even  in  their  presence.  They
      withdraw both from the victim and the vigilante. They keep  themselves
      away from the court unless it is inevitable.  They  think  that  crime
      like civil dispute is between two  individuals  or  parties  and  they
      should not involve themselves. This kind  of  apathy  of  the  general
      public is indeed unfortunate, but it is there  everywhere  whether  in
      village life, towns or cities. One cannot ignore  this  handicap  with
      which the investigating agency has to discharge its duties. The court,
      therefore, instead of  doubting  the  prosecution  case  for  want  of
      independent  witness  must  consider  the  broad   spectrum   of   the
      prosecution version and then search for the nugget of truth  with  due
      regard to probability if any, suggested by  the  accused.  The  court,
      however, must bear in mind that witnesses to a serious crime  may  not
      react in a normal manner. Nor do  they  react  uniformly.  The  horror
      stricken witnesses at a dastardly crime or an act of egregious  nature
      may react differently. Their course of conduct may not be of  ordinary
      type in the normal circumstances. The court, therefore, cannot  reject
      their evidence merely because they  have  behaved  or  reacted  in  an
      unusual manner. In Rana Pratap v. State of  Haryana  Chinnappa  Reddy,
      J., speaking for this Court succinctly  set  out  what  might  be  the
      behaviour of different  persons  witnessing  the  same  incident.  The
      learned Judge observed: [SCC p. 330, SCC (Cri) p. 604, para 6]






        “Every person who witnesses a murder reacts in his own way. Some are
        stunned, become speechless and stand rooted to the spot. Some become
        hysteric and start wailing. Some start shouting for help. Others run
        away to keep themselves as far removed from the  spot  as  possible.
        Yet others rush to the rescue of  the  victim,  even  going  to  the
        extent of counter-attacking the assailants. Every one reacts in  his
        own special way. There is  no  set  rule  of  natural  reaction.  To
        discard the evidence of a witness on the  ground  that  he  did  not
        react in any particular manner is to appreciate evidence in a wholly
        unrealistic and unimaginative way.””










23) We are in agreement with the  above  observations.  When  an  eyewitness
   behaves in a manner that perhaps would be unusual,  it  is  not  for  the
   prosecution or the Court to go into the question as to why he reacted  in
   such a manner. As  has  been  rightly  observed  by  his  lordship     O.
   Chinnappa Reddy, J., in Rana Pratap’s case (supra.)  there  is  no  fixed
   pattern of reaction of an eyewitness to a crime. When faced with what  is
   termed as ‘an unusual reaction’ of an eyewitness,  the  Court  must  only
   examine whether the prosecution story  is  in  anyway  affected  by  such
   reaction. If the answer  is  in  the  negative,  then  such  reaction  is
   irrelevant. We are afraid that  the  unusual  behaviour  of  the  injured
   eyewitness, PW6, will not, in anyway, aid the appellants to punch a  hole
   on to the prosecution story.






24) Shri. Dholakia, learned senior counsel, would emphasis on the fact  that
   when the eyewitnesses PW5 and PW6 were shown the weapons recovered,  they
   explicitly stated that these  were  not  the  weapons  used  for  by  the
   accused. He would state that this was a major discrepancy in the case  of
   the prosecution. In support of  this,  he  would  rely  on  the  case  of
   Mahendra Pratap Singh v. State of UP, (2009) 11 SCC 334. In  reply,  Smt.
   Divan, learned counsel, would submit that it would be  more  reliable  to
   rely on the evidence of the Panch witness (PW10) and the PSI (PW20)  than
   on  the  eyewitnesses  for  the  purpose  of  identifying  the   weapons,
   especially when the weapons were recovered at the instance of the accused
   persons. She would further state that in the commotion of  the  incident,
   it is possible that the eyewitnesses might  not  have  clearly  seen  the
   weapons. We find that  the  argument  of  the  learned  counsel  for  the
   respondent is reasonable and therefore, we accept the same.





25) When the entire evidence on record is  considered,  the  fact  that  the
   eyewitnesses did not recognize the weapons used, makes no  difference  to
   the prosecution story.





26) We are afraid the decision of this Court in the case of Mahendra  Pratap
   Singh (supra.) cited by Shri. Dholakia would not help the appellants,  as
   in the case not only were the  weapons  used  identified,  but  also  the
   evidence on record did  not  inspire  confidence  in  the  story  of  the
   prosecution. In that case, this Court came to  conclude  that  two  views
   were possible, and therefore gave the benefit of the same to the accused.
    In the instant case, cumulative reading of the entire evidence makes the
   prosecution story believable, thereby proving the guilt  of  the  accused
   appellants beyond any doubt. The High Court in the impugned judgment  has
   correctly appreciated the evidence on record, and  we  do  not  find  any
   infirmity in the same, therefore we uphold the conviction  of  guilt  and
   sentence imposed by the High Court.





27) In the light of the above discussion, we see no merit in the appeal  and
   accordingly, the same is dismissed. The appellants have been enlarged  on
   bail during the pendency of this appeal before this Court. Therefore, the
   Jurisdictional Jail Superintendent is directed that the appellants herein
   be taken into custody  forthwith  to  serve  out  the  sentence  of  life
   imprisonment.








                                                ..........................J.


                                                                 (H.L.Dattu)





                                                ..........................J.


                                                              (anil r. dave)

NEW DELHI,
May 08, 2012.

custody of children given to the paternal grandfather a retd.professor providing visitation rights to the mother to see the children once in a month at the costs of the father.

                                                             NON- REPORTABLE

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL NO. 4308 OF 2012
        (Arising out of Special Leave Petition (C) No. 13254 of 2011)


Shaleen Kabra                                Appellant


                                     Vs.

Shiwani Kabra                                Respondent


                                    With

                        CIVIL APPEAL NO.4309 OF 2012
        (Arising out of Special Leave Petition (C) No. 15819 of 2011)



                                  JUDGMENT

ANIL R. DAVE,  J

1. Leave granted.

2. Being aggrieved by the judgment of the High  Court  of  Delhi  dated  the
   21st of February, 2011 in CM(M) 1018 of 2010,  these  appeals  have  been
   filed by the parties before the  High  Court,  who  are  parents  of  two
   children, whose custody is the subject matter of these appeals.

3. As the impugned order is challenged  in  both  these  appeals,  both  the
   appeals were heard together and they are being  decided  by  this  common
   order.  For the sake of convenience, parties to the litigation have  been
   referred to hereinbelow as arrayed in Civil Appeal arising out of Special
   Leave petition No. 13254 of 2011.

4. The marriage of the  appellant  and  the  respondent  was  solemnized  on
   14.02.1994. From the wedlock, two sons were born, who  are  approximately
   15 and 9 years old.  The appellant and the respondent  have  been  living
   separately  since  10.04.2007,  and  have  been   involved   in   various
   litigations since then, including a petition for  divorce  under  Section
   13(1)(i) & 1A of the Hindu Marriage Act, 1955  filed  by  the  appellant-
   father and also proceedings under the Protection of Women  from  Domestic
   Violence Act, 2005, initiated by the  respondent-mother.  The  appellant,
   who is an IAS officer, stationed at Jammu at present, had sought  certain
   modifications in the arrangement of custody of  the  children,  and  also
   permission to take transfer certificates of the children from  Delhi  and
   complete their admission in a school in Jammu, and in this respect, moved
   applications  dated  25.05.2010  and  22.06.2010  before  the  Additional
   District Judge. The Learned Additional District Judge, vide  order  dated
   19.07.2010 was pleased to allow the applications moved by the  appellant-
   father.

5. Being aggrieved by the above-mentioned judgment delivered  by  the  Trial
   Court, the respondent preferred CM(M) No. 1018 of 2010  before  the  High
   Court. By virtue of the impugned judgment, the High Court partly  allowed
   the petition filed by the respondent whereby the respondent was permitted
   to have custody of the younger son, whereas the  appellant  was  to  have
   custody of the elder son.

6. While coming to the above conclusion, the High Court  has  cited  various
   decisions in support of the contention  that  while  deciding  the  issue
   about custody  of  children  in  a  matrimonial  dispute,  the  paramount
   consideration is that of welfare of the child. Thereafter, on  the  basis
   of interaction with the children in  the  Chambers,  the  learned  Single
   Judge was of the view that the elder son had a strong desire to stay with
   the appellant-father.  He also found that there was also an admission  by
   the respondent-mother that she would not be able to adequately handle the
   educational needs of the elder son without tutors.  For  the  aforestated
   reasons, the learned Single Judge ordered that custody of the  elder  son
   should remain with the appellant-father.

7. In the case of the younger son, the learned Single  Judge  observed  that
   he, being of a very tender age,  was  incapable  of  forming  a  definite
   preference as to with whom he wanted to stay. In the  circumstances,  the
   learned Single Judge ordered that the custody of the younger  son  should
   be given to the respondent-mother, as she would be in a  better  position
   to understand the needs of such a young child. On this basis, the custody
   of the younger son was directed to remain with the respondent.

8. The learned Single Judge also recorded a finding to the effect that  both
   the children appeared to be very happy in the company of  each  other  as
   there was a strong bonding between them.

9. Being aggrieved by the said judgment, both the parties have  come  before
   this Court vide the present appeals.

10. We heard the learned counsel for the parties,  and  also  spoke  to  the
   children at length.

11.  The  counsel  appearing  for  the  appellant-father,  at  the   outset,
   submitted that the High Court ought not to have  directed  separation  of
   two children, in view of the  close  relationship  between  them  and  he
   further submitted that  there  could  be  disastrous  effect  of  such  a
   separation  on  them.  Thereafter,  the  learned  counsel  made   further
   submissions about the poor academic performance of the younger son  while
   in the custody of the respondent-mother, and also regarding  the  alleged
   adulterous conduct of the respondent-mother, which was  said  to  have  a
   severe adverse effect on the children. The learned counsel further  added
   that the father of the appellant, i.e. grand father of the  children,  is
   staying with the appellant and he, being a very educated person, would be
   in a position to take good care of the children. On these  grounds  inter
   alia, the learned counsel argued that both the children ought not to have
   been separated, and that custody  ought  to  have  been  granted  to  the
   appellant-father.

12. On the other hand, the learned counsel  appearing  for  the  respondent-
   mother submitted that looking to the service condition and status of  the
   appellant-father, occupying a stressful position in the state of Jammu  &
   Kashmir, he would not have sufficient time to give adequate attention  to
   the children and if custody of the children is given to him, the children
   would be taken care of only by servants and that  would  not  be  in  the
   interest of the children. Further, the learned counsel argued that as the
   children were already in a very good school in Delhi,  it  would  not  be
   just and proper to move them to another school in Jammu &  Kashmir  which
   might be of an  inferior  standard.  For  the  aforestated  reasons,  the
   learned counsel argued that custody of even the elder son ought  to  have
   been granted to the respondent-mother.

13. On hearing the learned counsel and also upon talking at length with  the
   children, we find force in the arguments of the counsel for the appellant-
   father.

14. Upon speaking to the children personally, we also found  that  they  are
   indeed very much attached to each other. This fact was also noted by  the
   learned Single Judge of the High Court in the impugned judgment,  and  is
   also  admitted  by  both  the  parties  in   their   respective   written
   submissions. Looking to the overall peculiar circumstances of  the  case,
   it is our view that the welfare of both the children would be best served
   if they remain together. In our view it would not be just and  proper  to
   separate both brothers, who are admittedly very close to each other.

15. If we are of the view that both the brothers  should  not  be  separated
   and should be kept together, the question would be as to  who  should  be
   given custody of the children.

16. We are of the view that the  children  should  be  with  the  appellant-
   father.  The respondent-mother is not in a position  to  look  after  the
   educational need of the elder son and as we do  not  desire  to  separate
   both the brothers, in our opinion, looking to the peculiar facts  of  the
   case, it would be in the interest of the children that they stay with the
   appellant-father.

17. We are sure that the appellant-  father,  who  is  a  member  of  Indian
   Administrative Service and is a well groomed person, with the help of his
   father, who was also a professor, will be able to take  very good care of
   the children.  Their education would not be adversely  affected  even  in
   Jammu  and Kashmir as it would be possible for  the  appellant-father  to
   get them educated in a good school in Jammu.  We do not believe that  the
   children would remain in company of servants as alleged  by  the  learned
   counsel appearing for the respondent-mother.   Father  of  the  appellant
   i.e. the grandfather of the children would also be in a position to  look
   after the children and infuse good cultural values into them.   Normally,
   grandparents can spare more time with their grand children and especially
   company of well educated grandparents would not only help the children in
   their studies but would also help  them  to  imbibe  cultural  and  moral
   values and good manners.

18. So as to see that the respondent-mother is also not kept away  from  the
   children, she shall have a right to visit the children atleast once in  a
   month.  The appellant –father shall  make  arrangements  for  A.C.  First
   Class railway ticket for the respondent-mother or shall pay  the  railway
   fare to her so as to visit the children once in a month at a weekend  and
   the appellant-father  shall  also  make  arrangements  for  stay  of  the
   respondent-mother either at his own residence, if  the  respondent-mother
   agrees to that, otherwise the appellant-father  shall  make  arrangements
   for suitable accommodation for the respondent-mother when  she  comes  to
   Jammu to visit the children.

19. During the period of vacation exceeding two weeks, the  appellant-father
   shall send the children to Delhi so that the children can stay  with  the
   respondent-mother atleast for three days.  We are sure that the appellant
   and the respondent shall determine the  modalities  as  to  during  which
   portion of the vacation, the children should visit the  respondent-mother
   as almost both the parents are interested in having the  company  of  the
   children.

20. For the aforestated reasons and looking to the  peculiar  facts  of  the
   case, we quash and set aside the impugned order passed by the High  Court
   and restore the order of the trial  court,  subject  to  modification  of
   conditions-arrangements, recorded hereinabove.  The custody of  both  the
   children shall be given to the appellant-father before 15th May, 2012 and
   the arrangements with regard to visit of the  children  etc.  shall  take
   effect from 1st June, 2012, the respondent-mother shall do the needful to
   send the younger son to the residence of the appellant-father before 15th
   May, 2012.

21. The appeals are accordingly allowed with no order as to costs.



                                  …………………………J

                                  (D.K. JAIN)







                                  …………………………J

                                  (ANIL R. DAVE)

NEW DELHI

May 8 , 2012



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