Devi Lal and anr. Vs. the State of Rajasthan - Court Judgment

Excerpt:
criminal - appeal against conviction for offence under sections 302/34 - enmity existed between accused and the deceased - appellant no. 1 gave a lathi blow on the head of deceased and appellant no. 2 beat the deceased resulting in his death - but both the trial court and high court had held that both the appellants were not seen anywhere near the scene of occurrence - held, session court fell in error in convicting appellant under sections 302/34 as when a number of persons assault another with a stick mercilessly their intention can only be to murder that man or at least they should know that they were likely to cause death of person concerned and it would be relevant under section 149 and 34. penal code - sections 34 & 149--common intention--distinction between two sections.; the distinction between section 34 and 149 of the indian penal code was not clearly noticed by the sessions court and the high court did not deal with this point at all. under section 34 when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the tame manner as if it were done by him alone. the words 'in furtherance of the common intention of all' are a most essential part of section 34 of the indian penal code. it is common intention to commit the crime actually committed. this common intention is anterior in the time to the commission of the crime. common intention means a pre-arranged plan. on the other hand, section 149 of the indian penal code speaks of an offence being committed by any member of unlawful a semely in prosecution of the common object of that assembly. the distinction between 'common intention' under section 34 and 'common object' under section 149 is of vital importance. the sessions court fell into the error of convicting the appellants under section 302 read with section 34 of the indian penal code by holding that 'if a number of persons assault another with a stick mercilessly their intention can only be to murder that man or at least they should know that they are likely to cause death of the person concerned.' the aspect of their being likely to cause death would be relevant under section 149 and not under section 34 of the indian penal code for the obvious reason that under section 34 it has to be established that there was the common intention before the participation by the accused. - [ b.p. sinha, c.j.,; j.r. mudholkar,; k.subba rao,; n. rajgopala ayyangar, jj.] the respondent was a firm carrying on business in different lines. it was assessed to income-tax under s. 23(4) of the income-tax act, 1922 for the assessment year 1949-50 on the ground that notices issued under s. 22(2) and (4) had not been complied with. later on, that assessment was cancelled. however, before the cancellation, it was found that an interest income of rs. 88,737 in the shape of u.p. encumbered estates act bonds received by the respondent from third parties had escaped assessment as the assessee failed to disclose the same. the income-tax officer issued a notice for the assessment year 1949-50 on the ground that a sum of rs. 88,737 had escaped assessment in the said assessment year. after the cancellation of the assessment made under s. 23(4), the income-tax officer, ignoring the notice issued by him under s. 34(1)(a), included that amount in the fresh assessment made by him for the year 1949-50.the respondent appealed to the appellate assistant commissioner who ordered the deletion of the sum of rs. 88,737 from the assessment for the year 1949-50 and directed the same to be included in the assesment for the year ending 1948-49. pursuant to the direction given, the income-tax officer served a notice on the respondent under s. 34(1). against that notice the assessee filed a writ petition in the high court for quashing the above-mentioned proceeding on the ground that these were initiated beyond the time prescribed by a. 34. the high court accepted the petition and quashed the notice on the ground that it was issued by the appellant beyond the ordinary period of limitation it also overruled the contention of the appellant that no period of limitation governed the notice in as much as the second proviso to s. 34(3) was attracted to the facts of the case. the only direction which the appellate assistant commissioner could give was one which was covered by s. 31 of the act and as the appeal before him was confined to a particular assessment year, the direction must necessarily be limited to a matter falling within that year. if the direction be treated as based on a finding recorded by appellate assistant commissioner, that finding would have to be disregarded when applying the proviso. the appellant came to this court by special leave. held: (per b. p. sinha, c.j., k. subba rao and n. rajagopala ayyangar jj.). the proviso to sub-s. (3) of s. 34 of the indian incometax act, 1922 does not save the time limit prescribed under sub-s. (1) of s. 34 in respect of an escaped assessment of a year other than that which is the subject matter of appeal or revision as the case may be and hence the notice under s. 34(1)(a) issued in the present case was clearly barred by time. the jurisdiction of the high court or the supreme court under s. 66 or s. 66(b) is a limited one and is confined only to the questions referred to them. moreover, the questions referred by tribunal cannot exceed its jurisdiction. therefore the assessment or reassessment made under the said sections or pursuant to the orders or directions made thereunder must necessarily relate to the assessment of the year under review, revision or appeal as the case may be. 'me proviso to sub-s. (3) of s. 34 does not confer any fresh power upon the income-tax officer to make assessment in respect of the escaped incomes without any time limit. it only lifts the ban of limitation in respect of certain assessments made under certain provisions of the act and the lifting of the ban cannot be so construed as to increase the jurisdiction of the tribunal under the relevant sections. the lifting of the ban was only to give effect to the orders that may be made by the appellate, revisional or reviewing tribunal within the scope of its jurisdiction. if the intention was to remove the period of limitation in respect of any assessment against any person, the proviso would not have been added as proviso to sub-s. (3) which deals with completion of an assessment but would have been added to sub-s. (1) of s. 34. the word 'finding' covers only the material questions which arise in a particular case for decision by the authority hearing the. case or the appeal which, being necessary for passing the final order or giving the final decision in the appeal, has been the subject of controversy between the interested parties or on which the parties concerned have been given a hearing. the expression 'direction' refers to a direction which the appellate or revisional authority is empowered to give under the law. the expression "any person" must be confined to a person intimately connected with the assessment of the year under appeal or revision. held: per raghubar dayal and j. r. mudholkar jj. (dissenting): that the notice was not in contravention of the provisions of s. 34 and hence could not be quashed on that ground. when an appeal is before an appellate authority, the whole matter is at large before it and there- fore when a specific case is put before it by an assessee, it has both the power as well as the duty to give its finding thereon. the ground given by an assessee for claiming a reduction or annulment of assessment may be that the income upon which he had been assessed was not earned in the accounting period of the year to which the assessment pertained but in respect of a specified earlier or later year. the appellate authority is entitled to go into the whole question and come to a finding one way or the other. the finding of a tribunal is its conclusion on a point agitated before it and for a conclusion to amount to a finding, it is not necessary that it should be the final and ultimate conclusion. the contention of respondent that the second proviso to a. 34(3) enabling a notice to issue only to assessee in respect of escaped income without limit of time on the ground that the appellate authority has made a finding or direction in the proceeding before it makes a discrimination against such assessee because it does not lift the bar of limitation with regard to other assessees similarly situated but with regard to whom no finding has been made or direction given by appellate authority, was rejected. it was held that prima facie, there was a reasonable basis for the classification. the ground on which classification was made had a rational relationship with the object which was intended to be achieved by law, ie., to detect and bring to assessment the escaped income. commissioner of income-tax v. s. m. chitnavis, (1932) l.r. 59 i.a. 290, sir kikabhai premchand v. commissioner of income-tax (central), bombay, [1954] s.c.r. 219. pt. hazart lal v. income-tax officer, kanpur. (1960) 39 lt.r 26s. lakshman prakash v. commissioner of income- tax, u.p., (1963) 48 i.l r 705, a. s. khader ismail v. income-tax officer, salem, (1963)48 i.t.r. 16, simrathmul v. additional income-tax officer, ootachamund, (1959)36 i.t.r. 41, brindaban chandra basak v. incometax officer, (1962) 46 i.t.r. 14, k. c. thomas, first income-tax officer. bombay v. vasant hira lal shah [1964] 6 s.c.r. 431, prashar & anr. v. sasantsen dwarkadas 49 i.t.r. (s.c.) 1, kamlapat hotilal v. income-tax officer, 29 i.t.r. 192, hiralal amrit lal shah v. k. c. thomas, income-tax officer, bombay, 34 i.t.r. 446, general construction and supply co. v. income-tax officer (8th) c ward, bombay, 44 i.t.r. 16, suraj mal mohata & co. v. a. v. visvanatha sastri [1955] 1 s.c.r. 448, a. thangal kunju mudaliar v. m. venkatachalam potti & anr. [1955] 2 s.c.r. 1196 and palaji v. income-tax officer, special investigation circle [1962] 2 s.c.r. 983, referred to.   - the high court set aside the conviction of jagram on the ground that in view of the finding of the sessions court that the evidence of the prosecution witnesses was not reliable in regard to the accused mukhtiar singh and bahadur, the same result should follow with regard to jagram. it would rightly be said that if the bedrock of the prosecution case that brijlal and nathu came armed with guns to throw a challenge to mota-ram and his sons could not prove as a fact, the whole prosecution case would fall like a pack of cards. 14. the distinction between sections 34 and 149 of the indian penal code was not clearly noticed by the sessions court and the high court did not deal with this point at all.a.n. ray, j.1. this is an appeal by special leave from the judgment dated 6 may, 1968 of the high court of rajasthan convicting the appellants devi lal and bihari under section 302 read with section 34 of the indian penal code and sentencing them to imprisonment for life.2. there were seven accused in the case. the accused were devi lal, brijlal, jagram, bihari, mukhtiar singh, bahadur and nathu. the sessions court tried the accused for offences under sections 148, 307/149 and 302/149 of the indian penal code. the sessions court convicted devi lal, jagram and bihari under section 302 read with section 34 of the indian penal code and sentenced each of them to imprisonment for life. the other accused were acquitted.3. the state of rajasthan preferred an appeal against the acquittal. the high court dismissed the appeal of the state against accused brijlal and nathu and admitted the appeal as against the other accused.4. the high court maintained the conviction of the appellants devi lal and bihari under section 302 read with section 34 of the indian penal code and their sentence to imprisonment for life. the conviction of jagaram under section 302/34 of the indian penal code sentencing him to imprisonment for life was set aside. the appeal of the state was dismissed.5. the prosecution case was this. around mid-night of 11 june, 1966 dhannaram and sultan went to a liquor shop at village dhaulatpura. dhanna ram is the nephew of motaram and sultan is motaram's son. there were two groups. one was motaram's and the other was of binjaram and nathuram. there was enmity between the two groups. when they reached near the house of surja, accused brijlal and his brother ladu met them. brijlal and ladu are sons of binjaram. there were exchanges of verbal abuses between the two groups. ladu gave a blow with the butt end of the gun on the eye of dhanna-ram. dhannaram had an axe with which he gave a blow to ladu. ladu fired his gun. ladu was carried to government hospital at ganganagar and was admitted there. on the following day 12 june, 1966 at about 7 am. motaram, his son brijlal p.w. 1 and dhanna p.w. 3 nephew of motaram all went to the bus stand to make a report at the police station hindumalkote. all the seven accused formed an unlawful assembly. accused brijlal and nathu carried guns, while the other accused carried lathis. nathu shouted that enemies were standing that they should be attacked. thereafter nathu fired his gun brijlal also fired his gun none was hit. motaram, his son brijlal and his nephew dhanna ran to save their lives. brijlal and dhanna managed to jump away. motaram was encircled by the accused. devi lal gave a lathi blow on his head. the other accused beat him. motaram received 14 injuries. his condition became precarious. all the accused ran away. brijlal and dhannaram afterwards came to motaram. they found motaram in a serious condition. they took him to the hospital at ganganagar. on the way motaram expired.6. among the accused brijlal, jagaram and the appellant bihari are sons of binjaram. there was enmity between motaram on the one hand and binjaram and accused nathu on the other.7. there were four prosecution eye-witnesses of the alleged occurrence. they were brijlal p.w. 1, dhannaram p.w. 3, birbal, p.w. 2 and hariram p.w. 4. witness brijlal is the son of motaram. he is described as witness, brijlal to avoid confusion with accused brijlal son of bijaram. dhannram is the nephew of motaram. witness brijlal's father motaram deceased had appeared as a witness for the prosecution in a case against the accused bihari and brijlal son of binjaram. the case was under section 307 of the indian penal code. witness brijlal further said that motaram had appeared as a prosecution witness in another case under section 307 of the indian penal code against the appellant devi lal. witness brijlal's evidence in short was this. mukhtiar singh was convicted for causing injuries to witness brijlal and was sentenced to one years's rigorous imprisonment. motaram had given evidence in a murder case against the accused brijlal & bihari. motaram had also been convicted but the witness could not say in which case it was. witness brijlal had also been convicted in a criminal case where accused mukhtiar singh and devi lal had given evidence against brijlal.8. the evidence of dhannaram p.w. 3 was that a criminal case was pending against him and witness brijlal with regard to injury caused to ladu on the night previous to the date of incident. the high court therefore held that the evidence of brijlal and dhannaram showed that there was old enmity between the deceased motaram on the one hand and the accused bihari and brijlal sons of binjaram on the other. the evidence of brij lal and dhannaram was therefore found by the high court to be of a highly interested and inimical nature.9. as to other witnesses birbal and hariram the high court said that though birbal was not related to motaram in any manner, birbal's evidence was 'to be treated with caution' and was 'not to be believed in to to'. as to hariram p.w. 4 the high court said that the witness did not say anything as to what took place at the bus stand and hariram had not been believed by the trial court and the prosecution did not place much reliance on his evidence. the result is that there is no eye-witness on whose testimony any reliance can be placed.10. at this stage it may be noticed that the trial court did not accept the evidence of the prosecution witnesses and rejected the prosecution case that brijlal and nathu had gone to the bus stand with guns. the result was that of the seven accused the presence of two was totally disbelieved by the trial court. the sessions court acquitted brijlal. mukhtiar singh, bahadur and nathu but convicted devi lal, jagram and bihari. the high court found that the prosecution evidence was totally false in regard to the version of brijlal and nathu going to the bus stand with guns as also the version that nathu incited the other accused to open the attack. as to devi lal, bihari and jagram the high court said that though brijlal and dhannaram were highly interested witnesses who bore enmity against some of the accused yet all the witnesses stated that the attack was opened by the appellants devi lal and bihari and therefore the conviction of devi lal and bihari was upheld by the high court. the high court set aside the conviction of jagram on the ground that in view of the finding of the sessions court that the evidence of the prosecution witnesses was not reliable in regard to the accused mukhtiar singh and bahadur, the same result should follow with regard to jagram.11. apart from the four eye-witnesses the other three witnesses were the doctor and two police officers. none of them could speak of the occurrence. the high court having found two of the witnesses to be interested and inimical, another witness not believable in toto and another witness who was not present at the occurrence fell into error of relying on the self same witnesses to hold that the appellants were present at the occurrence. the high court should not have proceeded without evidence aliunde of the presence of the appellants at the occurrence and their participation in the offence.12. in the present case, it appears that the core of the prosecution case that brijlal and nathu carried guns and were present at the bus stand and that nathu shouted that the enemies should be attacked & that nathu fired the gun was disbelieved. a new prosecution case could not be reconstructed in the manner suggested in the judgment of the high court. the high court disbelieved that among the seven accused one was armed with rifle and the other with a gun, that nathu was present and instigated and on his instigation accused brijal fired. it could not therefore be believed that on account of firing the witness and motaram ran away to save their lives. the high court also disbelieved that accused brijlal and nathu the two gunmen stood there and threatened the witnesses not to approach the accused, that the five accused caused 14 injuries. the sessions court held that the three accused caused the injuries. the high court held that two of the accused caused the injuries. it was not noticed by the high court that the improvement of the individual part ascribed to the two appellants was not in the first information report and was a subsequent improvement.13. counsel for the appellants was correct in raising the principal contention in the fore-front that the accused did never know that this was the prosecution case. it would rightly be said that if the bedrock of the prosecution case that brijlal and nathu came armed with guns to throw a challenge to mota-ram and his sons could not prove as a fact, the whole prosecution case would fall like a pack of cards. in criminal trials it is of prime importance for the accused to know as to what the exact prosecution case is. if the pivot of the prosecution case is not accepted a new prosecution case cannot be made to imperil defence. in the present ease, two of the accused are held both by the trial court and by the high court not to have been anywhere near the scene of occurrence. the entire prosecution case was, that these two persons pointed to the enemies, namely motaram and his son and nephew. the further prosecution case was those two persons gave the order to the accused to attack them. those two persons opened the gun fire. therefore when those two persons are found both by the sessions court and the high court not to have been present the whole prosecution case changed colour and becomes unworthy of belief.14. the distinction between sections 34 and 149 of the indian penal code was not clearly noticed by the sessions court and the high court did not deal with this point at all. under section 34 when a criminal act is done by several persons in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone. the words 'in furtherance of the common intention of all' are a most essential part of section 34 of the indian penal code, it is common intention to commit the crime actually committed. this common intention is anterior in time to the commission of the crime. common intention means a pre-arranged plan. on the other hand, section 149 of the indian penal code speaks of an offence being committed by any member of an unlawful assembly in prosecution of the common object of that assembly. the distinction between 'common intention' under section 34 and 'common object' under section 149 is of vital importance. the sessions court fell into the error of convicting the appellants under section 302 read with section 34 of the indian penal code by holding that 'if a number of persons assault another with a stick mercilessly their intention can only be to murder that man or at least they should know that they are likely to cause death of the person concerned'. this aspect of their being likely to cause death would be relevant under section 149 and not under section 34 of the indian penal code for the obvious reason that under section 34 it has to be established that there was the common intention before the participation by the accused.15. for these reasons, the appeal is accepted. the judgment of the high court is set aside. the accused are set at liberty.