(B) Criminal - Indian Penal Code, 1860, ss. 34 and 302 - Charge u/ss. 302 r/w s. 34 of IPC was framed against appellants - Additional Sessions Judge convicted 'A' to death penalty and 'X' with life imprisonment - Conviction u/s. 302 was based solely on dying declaration made by deceased and recorded by Investigating Officer in presence of a Doctor - On appeal, HC confirmed findings recorded by Additional Sessions Judge and upheld conviction of appellants awarded by him - Hence, present appeals - (A) Whether dying declaration made before police officer without there being any corroboration from any other independent witness is in itself sufficient to convict accused with capital punishment? - Held, where Court is satisfied that declaration is true and voluntary, it can base its conviction without any further corroboration - It cannot be laid down as an absolute rule of law that dying declaration cannot form sole basis of conviction unless it is corroborated; rule requiring corroboration is merely a rule of prudence - In the present case, Trial Judge rightly found that dying declaration credit worthy and held same to have been made by deceased in a fit mental state to depose - (B) Motive - Held, fight over property was motive of appellants for committing murder - (C) Whether courts below were justified in awarding death sentence in facts and circumstances of case and principles laid down SC? - Held, after analyzing all relevant materials presented by prosecution and in light of well established principles including aggravating and mitigating circumstances as laid by SC, it is concluded that murders committed by 'A' was extremely brutal and diabolical one - Cold blooded murder was committed with deliberate design in order to inherit entire property - Magnitude of crime was also enormous in proportion since 'A', with assistance of his mother and brother, committed multiple murders of all members of family - It was a gravest case of extreme culpability and rarest of rare case and death sentence alone would be proper and adequate - Entire act of 'A' amounts to a barbaric and inhuman behaviour of highest order - Conviction and sentence of death imposed on 'A' and conviction and sentence of life imprisonment imposed on 'X' confirmed - Appeals dismissed.

(B) Criminal - Practice & Procedure - Indian Penal Code, 1860, ss. 34 and 149 - Distinction between s. 34 and s. 149 of IPC - Held, (i) s. 34 does not by itself create any specific offence, whereas section 149 does so; (ii) Some active participation, especially in crime involving physical violence, is necessary u/s. 34, but s. 149 does not require it and the liability arises by reason of mere membership of the unlawful assembly with a common object and there may be no active participation at all in preparation and commission of the crime; (iii) s. 34 speaks of common intention, but s. 149 contemplates common object which is undoubtedly wider in its scope and amplitude than intention; and (iv) s. 34 does not fix a minimum number of persons who must share the common intention, whereas s. 149 requires that there must be at least five persons who must have the same common object - Appeal dismissed.

(B) Practice & Procedure - Land & Property - Urban Land (Ceiling and Regulation) Act, 1976, ss. 34, 9 - Land acquisition - Revision before the State Government - Limitation - Appellant's land was acquired by the respondent in 1979 - Appellant filed revision u/s. 9 of the Act before the State Government in 1998 - Whether revision was barred by limitation - Held, s. 34 does not prescribe any limitation during which the revisional power can be exercised by the State Government either on application or suo moto, however, revisional powers cannot be used arbitrarily at belated stage for the reason that the order passed in revision u/s. 34 of the Act, is a judicial order - What should be reasonable time for filing the revision, would depend upon the facts and circumstances of each case - Further, if some person has taken a relief from the Court by filing a writ petition immediately after the cause of action had arisen, appellant cannot take the benefit by resorting to legal proceedings belatedly as they cannot be permitted to take the impetus of the order passed at the behest of some diligent person - Appeal dismissed.

(B) Criminal - Indian Penal Code, 1860, ss. 201, 217, and 376 - Trial Court convicted the appellant u/s. 376 of IPC - Conviction upheld by HC - Present appeal filed by appellant challenging his conviction - (A) Inordinate delay in lodging the FIR - FIR was lodged after about four months of the commission of offence - Held, there was ample evidence on record to show that the Panchayat had intervened on the next day of the incident and it pressurised the complainant to compromise the case and settle it outside the Court - Delay occurred because of the intervention of the Panchayat, as the Panchayat had insisted on a compromise in the case, rather than moving the investigating machinery - Moreover, in case of sexual offences, the criteria may be altogether different - Due to the nature of the offence the decision whether to take the matter to the court or not is not a straight forward decision and may take time - Therefore, delay is bound to occur - (B) Consent - It was contended that prosecutrix and the appellant knew each other and it was a case of consent - Held, concept of 'Consent' in the context of s. 375 of IPC has to be understood differently, keeping in mind the provision of s. 90 of IPC, according to which a consent given under fear/coercion or misconception/mistake of fact is not a consent at all - It can be held that a woman has given consent only if she has freely agreed to submit herself, while in free and unconstrained possession of her physical and moral power to act in a manner she wanted - In facts and circumstances of the present case, question of drawing an inference that it could be a case of consent does not arise at all - There was resistance by the prosecutrix and thus, it cannot be held that she had voluntarily participated in the sexual act - Appeal dismissed.

(A) Election - Civil Procedure - Practice & Procedure - Representation of the People Act, 1951, s. 97 - Code of Civil Procedure, 1908, O. 6 r. 16, O. 8, r. 6A - Election dispute - Recriminating plea in the written statement - Admissibility - Appellant was declared as returned candidate in the impugned legislative assembly election with two votes margin with the respondent/defeated candidate - Respondent challenged the election of appellant before the HC/Election Court - Appellant filed written statement to the respondent's election petition wherein he made several statements in the nature of counter claim/recrimination in paragraph nos. 22-31 of written statement - Respondent, subsequently, filed an application u/O. 6 r. 16 of the CPC seeking for striking off the paragraph nos. 22-31 in the written statement allegedly made by way of counter claim/recrimination - HC allowed respondent's application and struck off paragraph nos. 22-31 from appellant's written statement - When there is no provision and right vested in the returned candidate to file a recrimination petition due to absence of a prayer by the election petitioner in the election petition seeking for his declaration (or any other candidate) as a returned candidate, can the returned candidate in his written statement take up pleas which are in fact counter claims with the aid of O. 8, r. 6A of the CPC - Held, u/s. 97 of the Act, when an election petition is filed claiming a declaration that any candidate other than the returned candidate has been duly elected, in that event, the returned candidate or any other party would be entitled to give evidence to prove that the election of such candidate would have been void had he been the returned candidate - Statements made by the appellant/returned candidate in paragraph nos. 22-31 of the written statement would indicate that those statements were by way of counter-claim against the claim of the respondent/election-petitioner and relate to the right or claim in respect of the same cause of action - Therefore, paragraphs nos. 22-31 of the written statement relate to matters in respect of which evidence should have to be laid to prove that if those allegations are established then the election of such candidate would be void - Since there was no prayer in the election petition to declare the election petitioner or any other candidate as elected candidate, the provisions of s. 97 of the Act cannot be applicable or attracted - Therefore, in line with the provisions in s. 97 of the Act, the counter-claims could not be allowed to be raised by following the procedure under O. 8, r. 6A of the CPC - Under the 1951 Act, a specific provision has been incorporated in the form of s. 97 providing for considering recrimination petition/counter-claim under certain circumstances, and therefore, the same being a provision under a special Act, would prevail over the provisions of O. 8, r. 6A of the CPC which is a general law - Further, s. 97 of the Act bars filing of a counter-claim by way of a recrimination petition when an election petition is filed without seeking for a declaration that the election petitioner or any other candidate is the returned candidate - In such a case, the application of O. 8, r. 6A of the CPC would not be permissible, as permitting the same would amount to allowing indirectly, what is prohibited by law to be done directly - If there is no scope for filing a recrimination petition u/s. 97 of the Act, said limitation cannot be sought to be removed or overcome by taking resort to another provision of the CPC which would be explicitly and impliedly inconsistent with the provisions of s.97 of the Act - Therefore, order of the HC striking off paragraph nos. 22-31 form appellant's written statement to the election petition is justifiable - No merit in the appeal - Appeal dismissed.

V. S. Sirpurkar, J. (Contra)

(B) Election - Civil Procedure - Practice & Procedure - Representation of the People Act, 1951, 97 - Code of Civil Procedure, 1908, O. 6 r. 16, O. 8, r. 6A - Election dispute - Recriminating plea in the written statement - Admissibility - Whether the returned candidate can raise the recriminating plead in the written statement under O.8 r. 16A of the CPC - Held, plea raised by the appellant was not a recriminatory plea within the meaning of s. 97 of the and what was raised was a mere plain defence - Appellant was trying to show that it was he who was actually the elected candidate having secured the majority of valid votes through the said pleas in paragraph nos. 21-33 of the written statement - Raising of a counter claim by way of a valid defence would be permissible considering the broad language of the provision O.8 r.6A of the CPC - In the wake of amended provision of O.8 r. 6 of the CPC introducing counter claim, appellant/returned candidate, could still raise his defence by way of a counter claim - Language of s. 97 of the Act which is in the nature of positive language, does not bar raising of any such defence - Matter referred to Chief Justice Bench - Appeal disposed of.