i.V. Shivaswamy Vs. State of Mysore - Court Judgment

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criminal - murder - sections 302 and 309 of indian penal code, 1860 and sections 464 and 465 of criminal procedure code, 1973 - appellant convicted for offence under sections 302 and 309 and sentenced to death by session judge - conviction of appellant for offence under sections 302 and 309 confirmed by high court but death sentence was converted to life imprisonment - hence, present appeal - appellant contended that by reason of unsoundness of mind he was incapable of knowing the nature of the act or that he was doing what was either wrong or contrary to law - further contended that violation of sections 464 and 465 vitiated the commitment of the appellant and the trial - medical examination of appellant showed that appellant was not insane within section 184 - the material on the record did not disclose that he was insane at the time of the occurrence - section 465 requires that there should be an enquiry within the second limb of the section if it appears to the sessions judge that the accused was insane but if it does not appear to him so it is not necessary that he should conduct a regular enquiry under the second limb of the section - facts revealed that session judge was satisfied that it did not appear to him that the appellant was insane - held, no reason to interfere with decision of high court - appeal dismissed - [] there were five firms in sivakasi manufacturing matches under the name and style of shenbagam match works, brilliant match works, manoranjitha match works, pioneer match works and gnanam match works. the sole proprietor of shenbagam match works and one partner from each of the four firms entered into a partnership in their individual capacity and executed a partnership deed dated april 1, 1950. the income-tax officer registered the said partnership 'deed under s. 26(a) of the act; but the commissioner of income- tax acting under s. 33b of the act, cancelled the registration of the said partnership deed. on appeal, the tribunal held that the said partnership deed was not a genuine one. on a reference the high court held on a construction of the partnership deed that the match works were not the real parties to the partnership but the parties to the document were the real partners. this appeal has come by way of special leave. held:-(i) (per k. subba rao and s. m. sikri jj) that the discretion conferred on the income-tax officer under s. 26-a of the act is a judicial one and he cannot refuse to register a firm on mere speculation, but he shall base his conclusion on relevant evidence. the jurisdiction of the income-tax officer under s. 20-a is, confined to the ascertaining of two facts namely, (i) whether the application for registration is in conformity with the rules made under the act, and (ii) whether the firm shown in the document. (partnership deed) presented for registration is a bogus one or has no legal existence. (ii) in the present case the partnership deed ex facie conforms to the requirements of the law of partnership as well as the income-tax act. there is no prohibition under the partnership act against a partner or partners of other firms combining together to form a separate partnership to carry on a different business. the fact that such a partner or partners entered into a sub-partnership with others in respect of their share does not detract from the validity of the partnership; nor the manner in which the said partner deals with the share of his profits is of any relevance to the question of validity of the partnership. (iii) the tribunal erred in holding the partnership deed as not a genuine one. in the present case the assessde-firm has a separate legal existence, and as such the two circumstances relied upon by the tribunal, namely, that one of the partners of the assessee firm, brought in the capital from his parent firm or that the profits earned by some of the partners were surrendered to the parent firm, would be irrelevant. a partner of a firm can certainly' secure his capital from any source or surrender his profits to his sub-partner or any other person. those facts cannot conceivably convert a valid partnership into a bogus one. in the present case the partnership deed is a genuine document and it complies with the requirements of law. it is not an attempt to evade tax, but a legal device to reduce its tax liability. (iv) a question of law within the meaning of s. 66(2) of the act arose for decision in this case as the tribunal misconstrued the provisions of the partnership deed and relied upon irrelevant considerations in coming to the conclusion. sree meenakshi mills ltd. v. commissioner of income-tax, madras. [19561 s.c.r. 691, relied on. per shah, j.-(i) it was exclusively within the province of the tribunal to decide the question whether the partners entered into the partnership in their individual capacities or as representing their match factories and its decision that in entering into the deed of partnership, the named partners represented their respective match factories, was not open to be canvassed in a reference under s. 66(2) of the indian incometax act. in a reference under s. 66(2) the high court was not authorised to disregard the finding of the tribunal on a question which was essentially one of fact. in the present case the high court was not justified in interfering with the finding of the tribunal on a question of fact because it was not the case of the assessee that the conclusion of the tribunal was based on no evidence or that it was perverse. (ii) where the law prescribes conditions for obtaining the benefit of reduced liability to taxation, those conditions, unless otherwise provided, must be strictly complied with, and if they are not so complied with, the taxing authorities would be bound to refuse to give the tax payer the benefit claimed. it would be open to the income-tax officer to decline to register a 'deed, even if under the general law of partnership the rights and obligations of the partners ex nomine thereto may otherwise be adjusted. if the requirements relating to the form in which the petition is to be presented are not complied with, and the relevant information is withheld the income-tax officer may be justified in refusing registration. in the present case the income-tax officer was bound to refuse registration as the application submitted by the five partners of the assessee did not conform to the requirements of rr. 2 and 3 of indian income-tax rules. - 3. on the first point the learned sessions judge came to the conclusion that 'neither on the 21st march 1966 nor during any day subsequent thereafter including the days on which the accused took his trial before this court, was the accused in an unsound state of mind 'he held that 'on the contrary, during all the relevant period, above referred to, he showed himself to be in perfectly sound state of mind. 4. in the high court the first point was not raised but the second point was urged and the high court held that as the sessions judge came to the conclusion that the accused appeared to be perfectly normal in mind it was not necessary, much less incumbent, to hold an enquiry under section 465, cr. 16, that the appellant was not keeping good health since day before and they had got him admitted to the hospital but he had come from there. ' the father-in-law came to indivara on march 19, 1966, in response to this letter and on enquiring from the appellant, the appellant replied that he was not feeling very well and therefore he left the hospital. he spoke clearly and intelligently and he answered my questions equally clearly and intelligently. this application was granted 19. the appellant pleaded guilty before the learned sessions judge but the judge was satisfied that the accused should be tried as it was not expedient to act upon his plea of guilty. he made perfectly intelligible answers to all the questions put by me. i am satisfied that the accused is of sound mind, consequently capable of making his defence and is able to thoroughly understand the proceedings before this court, and i, therefore, direct that the trial should be proceededed with. 9, it was only stated that he was behaving foolishly the doctor's evidence quite clearly shows that the appellant was sane on the morning of march 18, 1966 and there is no evidence to show that on march 21, 1966 his condition had changed. clearly shows that he was sane in mind and able to stand trial. it seems that the statement of the standing counsel before the sessions judge made him look into the matter, & quite rightly, but on questioning the accused the learned sessions judge was satisfied that it did not appear to him that the appellant was insane.s.m. sikri, j.1. this appeal by special leave is from the judgment of the high court of mysore confirming the conviction of the appellant under sections 302 and 309, i.p.c. but setting aside the sentence of death passed by the learned sessions judge and instead imposing on the appellant a sentence of imprisonment for life on both the counts. the high court also confirmed the sentence under section 309, i.p.c.2. two questions have been raised before us by the learned counsel for the appellant:(1) at the time of the occurrence the appellant was by reason of unsoundness of mind incapable of knowing the nature of the act or that he was doing what was either wrong or contrary to law:(2) the violation of sections 464 and 465, cr.p.c. vitiated the commitment of the appellant and the trial.3. on the first point the learned sessions judge came to the conclusion that 'neither on the 21st march 1966 nor during any day subsequent thereafter including the days on which the accused took his trial before this court, was the accused in an unsound state of mind ' he held that 'on the contrary, during all the relevant period, above referred to, he showed himself to be in perfectly sound state of mind.' it may be mentioned that the accused had not pleaded any defence under section 84 of indian penal code before the learned sessions judge.4. in the high court the first point was not raised but the second point was urged and the high court held that as the sessions judge came to the conclusion that the accused appeared to be perfectly normal in mind it was not necessary, much less incumbent, to hold an enquiry under section 465, cr.p.c. the high court further held that 'the mere circumstance that the counsel appearing for the accussed made a submission that the accused did not answer him coherently is no ground to hold an enquiry under section 465, cr.p.c.'5. the relevant facts for determining the two points mentioned above may now be stated. the appellant had three brothers and one sister. p.w. 2, puttaswamygowda, was the son of appellant's deceased father by his first wife. the other two brothers chandra gowda, deceased, ram gowda, p.w. 14, the appellant and their sister were from the second wife, dyavamma, p.w. 5. chandra gowda's wife was nagamma, p.w. 4, and one of their children was sumitra, p.w. 16, aged about 15 or 16 years nagamma had a brother jayaramagowda, who was alleged to have been murdered by the appellant, on march 21, 1966, when the appellant is alleged to have also murdered his brother chandra gowda.6. the appellant was married to susheela, p.w. 7, daughter of tham-managowda, p.w. 16. p.w. 2, puttaswamygowda, p.w. 14, ramegowda, the appellant and the deceased, chandra gowda were all living in indavara p.w. 2. had separated himself from the joint family about 20 years ago and was living: separately in a portion of the house. the other three brothers effected a partition among themselves about 6 or 7 years ago and began to live separately in different portions of the family house. it was alleged that the appellant was dissatisfied because ghandra gowda deceased, was not getting the registration of the partition deed done.7. the appellant was working as a first division clerk in the d.a.c.g. polytechnic at chikmagalur. he took casual leave on 16th, 17th, 18th and 19th of march, 1966. the appellant was admitted as an in-patient in a special ward at about 6-45 p.m on march 17, 1966, in the general hospital at chikmagalur. p.w. 10, dr. j.k. paramashivaiah examined the appellant on the morning of march 18, 1966. ex.p. 13, out patient slip of the appellant showed against the heading 'history' chest and back pain. screening of the chest was ordered and medicine prescribed. no reference was made on that day to the mental condition of the appellant. the hospital case sheet of the accused showed the following particulars: history of present illness: the patient complains of fever, chest pain, cough since 8 days, slight raise of temperature in the evening, chest pain in the left side. 8. dr. j.k. paramashivaiah, p.w. 10, who examined the appellant stated in his examination-in-chief:the provisional diagnosis was that the accused was suffering from pulmonary tuberculosis. we further stated:my examination of the accused on the morning of 18-3-66 disclosed to me that the accused was sound in mind and was not suffering from any ailment other than what i provisionally diagnosed to be pulmonary tuberculosis. accused was a normal and same individual and was in full possession of his senses when i examined him. in cross-examination he started:when i examined the accused on the morning of 18-3-66 i found him possessed of normal and rational sense. he did not have any vacant look. he understood my questions and made answers coherently and intelligently. he told me his bodily complaints in clear terms and with precision. this examination at least shows that on march 18, 1966, the appellant was not insane within section 84, i.p.c.9. the appellant was discharged on his request on march 18, 1966. on the same day, the letter, ext.p. 19, was sent by his brother chandra gowda, deceased, to the appellant's father-in-law, thammanagowda, p.w. 16, that the appellant was not keeping good health since day before and they had got him admitted to the hospital but he had come from there. it was further stated in the letter, and this is the line relied on by the learned counsel for the appellant, that 'if his condition is observed, it is found that he behaves foolishly. it appears that he is mentally not all right. ' on the back of this letter, p.w. 2, puttaswamigowda, wrote that 'it appears that the matter written in this letter may be true.' the father-in-law came to indivara on march 19, 1966, in response to this letter and on enquiring from the appellant, the appellant replied that he was not feeling very well and therefore he left the hospital. the appellant's mother, dyavamma, p.w. 5, who was living with her daughter at mur adi, also came on march 19, 1966. as the 'vasige ceremony of sumitra was to take place, deceased jayaramagowda, elder brother of p.w. 4, nagamma, also came there. on march 20, 1966, the appellant again made a demand on chandra gowda, deceased, to get the partition deed duly registered. on march 21, 1966, the appellant attended the office at 10-30 a.m. but after working for some time he took casual leave for that day. sometime later on application praying for grant of earned leave for 8 days was given. he also requested that the casual leave granted to him be cancelled and treated as earned leave.10. the appellant left office at about 11-30 a.m. his wife susheela, p.w. 7, gave the appellant some money asking him to fetch something from the market. the appellant, however, did not go to the market but remained in the house.11. on the night of march 21, 1966, p.w. 5, dyavamma, and p.w. 6, sumitra, were sleeping in the hall belonging to chandra gowda, and chandra gowda, deceased, and jayaramegowda, deceased, were sleeping in the open verandah. the appellant and his wife slept in their room.12. the prosecution case, which has been accepted by the sessions judge and the high court is that sometime after midnight nagamma, p.w 4, woke up hearing some unusual sound. she came to the verandah and saw her husband lying dead and her brother lying dead in pools of blood with injuries on their faces and necks. she cried out and all the inmates of the house came to the verandah and found both chandra gowda and jayaramagowda lying dead p.w. 2, puttaswamigowda who was sleeping in the other portion of the house went to the house of p.w. 3, who was the talwar of the village, and told him about the incident. both then went to the house and found the dead bodies. p.w. 2 being the patel of the village wrote the report, ex.p. 3, at the spot and took it to chickmagalur police station. after he left the place, the appellant who was standing in the verandah went to his room and attempted to commit suicide by inflicting injuries on his neck. p.w. 3 prevented the appellant from inflicting further injuries on him.13. the appellant was got admitted to the general hospital and was examined by dr. shivalingaiah, p.w. 9 dr. shivalingaiah deposed that the 'history of the accident recorded by me in ext.p. 10(a) was given to me by the accused himself and not by the constable who brought him to me'. he further deposed that 'the accused whom i examined on 22-3-1966 was in full possession of his senses and he was mentally sound. he narrated to me the events that led to the injury on his neck. he spoke clearly and intelligently and he answered my questions equally clearly and intelligently. he was sound state of mind.'14. it appears that in the course of the investigation the investigation officer came to accused had been an in-patient in chickmagalur hospital and he requested the district surgeon to furnish him the details of the appellant's admission to the hospital.15. the appellant was discharged from the hospital on april 3, 1966 and he was arrested. in the meantime, however, constable had been posted at the hospital to watch him.16. the order sheet of the committing magistrate shows that the accused was not produced before the court, on april 15, 1966 as he was an in-patient in the district hospital from april 14, 1966, as reported by the district surgeon, but he was produced on april 21, 1966, april w, 1966, may 13, 1966, may 26, 1966 and may 30, 1966 again on june 5, 1966 the accused was not produced as he was an in-patient but he was produced on june 7, 1960 after hearing arguments on may 21, 1966, the committing magistrate committed the appellant to stand his trial in the court of sessions judge in respect of charges under secs. 302, 449 and 309, i.p.c. the accused stated that he had no witnesses.17. it cannot be deduced from the record of the proceedings that the magistrate should have taken steps under section 464, cr.pc. the fact that the appellant was an in-patient on two hearings and was not produced on april 15, 1966, does not show that there was any necessity to hold an enquiry under section 464. on may 21, j 966 the appellant seems to have answered the questions put to him, under section 364 cr.p.c., quite intelligently.18. on july 5, 1966, two counsels who were appearing for the appellant in the committal court put in an application stating that the appellant wanted the services of the standing counsel, and they prayed that they may be permitted to retire from the case. this application was granted19. the appellant pleaded guilty before the learned sessions judge but the judge was satisfied that the accused should be tried as it was not expedient to act upon his plea of guilty.20. as mentioned in the judgment of the learned sessions judge, it appears that the standing counsel stated on july 7, 1986 before the court that when he met the appellant on july 5, 1966 he did not make coherent answers. the learned sessions judge recorded the following order on this application, the relevant portion of which read :with a view to satisfy myself whether the accused at his trial is of sound mind or not and whether he is of unsound mind and consequently incapable of making his defence, i questioned the accused elaborately. he made perfectly intelligible answers to all the questions put by me. there can be no doubt whatsoever that the accused is of sound mind and is consequently capable of making his defence he understood every question put by me and made rational and sensible answers both in kanarese, and influent english language, which he speaks easily. when i asked the accused why when the learned standing counsel met him yesterday he did not make proper replies, the accused said that he told the standing counsel to look into the records to ascertain the details. i am satisfied that the accused is of sound mind, consequently capable of making his defence and is able to thoroughly understand the proceedings before this court, and i, therefore, direct that the trial should be proceededed with. 21. when the appeal was pending before the high court an application was put in by the counsel for the appellant for adjourning the appeal by two weeks as the appellant was in the mental hospital undergoing treatment.22. coming to the first point, i.e. whether the appellant was insane on the day of the occurrence, the material on the record does not disclose that he was insane at the time of the occurrence. in the letter, ex.p. 9, it was only stated that he was behaving foolishly the doctor's evidence quite clearly shows that the appellant was sane on the morning of march 18, 1966 and there is no evidence to show that on march 21, 1966 his condition had changed. his behavior after the alleged murder also does not show that he was insane.23. coming to the second point, no question was raised before the committing magistrate that the appellant was insane at the time of the occurrence or trial and his statement before the magistrate under section 364, cr.p.c. clearly shows that he was sane in mind and able to stand trial. it seems that the statement of the standing counsel before the sessions judge made him look into the matter, & quite rightly, but on questioning the accused the learned sessions judge was satisfied that it did not appear to him that the appellant was insane. section 465, cr.p.c. requires that there should be an enquiry within the second limb of the section if it appears to the sessions judge that the accused was insane, but if it does not appear to him so it is not necessary that he should conduct a regular enquiry under the second limb of the section. it is true that the word 'appears' in section 465 imports a lesser degree of probability that whenever a counsel raises a point before a sessions judge he has to straightaway hold an elaborate enquiry into the matter. if on examining the accused it does not appear to him that the accused is insane it is not necessary that he should go further and send for and examine medical witnesses and other relevant evidence. of course if he has any serious doubt in the matter the sessions judge should have a proper enquiry.24. the learned sessions judge was doubting it all the time and that is why he recorded that order on july 7, 1966, and that is how he dealt with the matter again in the judgment. we do not read the order of the learned sessions judge in that way, in his final judgment he had to deal with the point because it must have been argued before him again.in the result the appeal fails and is dismissed.