Ghasita Alias Ghasi Ram Vs. State of U.P. - Court Judgment

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criminal - murder - section 302 of indian penal code, 1860 - appeal against conviction for murder - evidence of eye witnesses clear, consistent and convincing - nothing elicited in cross examination to discredit their testimony or to throw any suspicion about correctness of version given by all of them consistently - medical report also corroborated evidence of witnesses - conviction upheld. - [] the appellant company, carrying on business as manufacturer of iron and steel, with its factory and works at jamshedpur in bihar, was assessed to sales tax for two periods prior to the constitution, under the bihar sales tax act, 1947 (no. xix of 1947), enacted by the bihar legislature in exercise of its exclusive power under the government of india act, 1935. the company used to send its goods from jamshedpur to various parts of india. in the railway receipt the company itself figured as the consignee, it paid the freight and the receipt was sent either to its branch offices or bankers to be handed over to the purchaser when he paid the price. from the amounts shown as gross turn-over in the two returns for the two periods, the company claimed deduction of certain amounts, being the valuable consideration for the goods manufactured in bihar but sold, delivered and consumed outside, on the ground that in none of the transactions in respect of the said sums did property in the goods pass to the purchasers in bihar. the appellant claimed further deductions on account of the railway freight paid by it. the sales tax officer disallowed both the claims and added the amounts of sales tax realised by the appellant from its purchasers to the taxable turnover. the company appealed against the orders of assessment, but the commissioner of sales tax dismissed its appeals. the board of revenue, in revision, confirmed the orders of the commissioner with certain modifications and remanded the matters to the sales tax officer. on the appellant's application for reference of certain questions of law, the board referred them to the high court. one of them related to the legality of adding the sales tax to the turn-over and was answered in favour of the appellant and the respondent did not appeal. the other questions decided by the high court against the appellant related to the vires of the act and the validity of retrospective levy of sales tax under s. 4(1) of the act. the appellant's contentions in the appeals were that the tax levied under s. 4(1) read with s. 2(g) second proviso, cl. (ii), of the act, was not a sales tax within the meaning of entry 48 in list ii of the seventh schedule to the govern- ment of india act, 1935, but was in the nature of excise duty which a provincial legislature had no power to impose, that the theory of territorial nexus was inapplicable to sales tax and, in any case, there was no real or sufficient nexus in the present cases and that retrospective levy of the sales tax under s. 4(1) of the act destroyed the indirect nature of the tax, thus making it a direct tax on the dealer which could not be passed on to the consumer: held, (per das, c. j., venkatarama aiyar, s. k. das and a.k. sarkar, jj., bose, j. dissenting), that the contentions raised on behalf of the appellant must be negatived. the provisions of s. 4(1) read with s. 2(g), second proviso, of the bihar sales tax act, as amended by the bihar sales tax (amendment) act, 1948, (vi of 1949), were within the legislative competence of the legislature of the province of bihar. both before and after the amendment, the word 'sale' as used in s. 4(1) and as defined by s. 2(g) of the act, meant the transfer of property in the goods sold. the second proviso added by the amending act did not extend that meaning so as to include a contract of sale. what it actually did was to lay down certain circumstances in which a sale, although completed elsewhere, was to be deemed to have taken place in bihar. those circumstances did not constitute the sale, but only located the situs of the sale. sales tax officer, pilibhit v. messrs. budh prakash jai prakash, [1955] 1 s.c.r. 243, distinguished. nor was it correct to contend that the tax levied under s. 4(1) read with s. 2(g) of the act was in the nature of excise duty. under cl. (ii) of the second proviso to s. 2(g) of the act the producer or manufacturer became liable to pay the tax not because he produced or manufactured the goods but because he sold them. province of madras v. boddu paidanna and sons, [1942] f.c.r. go and governor general v. province of madras, (1945) l.r. 72 i.a. 91, referred to. there can be no doubt that the theory of territorial nexus does apply to sales tax legislation. although sales tax can be levied only on a completed sale, this theory has its use in indicating the circumstances in which the tax may be enforced in a particular case. one or more of the several ingredients of a sale may furnish the connection between the taxing state and the sale. state of bombay v. united motors (india) ltd., [1953] s.c.r. 1069, poppatlal shah v. the state of madras, [1953] s.c.r. 677 and the state of bombay v. r.m.d. chamarbaugwala, [1957] s.c.r. 874, relied on. bengal immunity co. ltd. v. the state of bihar, [1955] 2 s.c.r. 603, considered. case law reviewed. as in a sale of goods, the goods must necessarily play an important part, the circumstances mentioned in the proviso to s. 2(g) of the act, namely, the presence of the goods in bihar at the date of the agreement of sale or their production or manufacture there must be held to constitute a sufficient nexus between the taxing province and the sale wherever that might take place. governor general v. raleigh investment, [1944] f.c.r. 229, relied on. province of madras v. boddu paidanna and sons, [1942] f.c.r. go, distinguished. it would not be correct to contend that the theory of nexus might lead to multiple taxation or obstruct inter-state trade. article 286(2) of the constitution and the relevant entries in the legislative list are a complete safeguard to any such contingency. although as a matter of economic theory, sales tax maybe an indirect tax realisable from the consumer, it need not be legally so and is not so under the bihar sales tax act, 1947, which imposes the primary liability on the seller. a buyer, moreover, is not bound to pay sales tax over and above the agreed sale price unless he is by contract bound to do so. there can, therefore, be no scope for the argument that the retrospective enforcement of the tax under s. 4(1) of the act could destroy the character of the tax or that it was beyond the legislative competence of the bihar legislature. love v. norman wright (builders) ltd., l.r. (1944) 1 k.b. 484, referred to. per bose, j.-sales tax can be imposed only on the sale. it is, therefore, wrong to look to the goods or the agreement to sell or any other elements that constitute a sale in order to impose the tax. a state can tax a sale of goods that takes place within its boundary. it has no power to tax extra-territorially, and since a completed sale can have only one situs no state legislature can be allowed to break up a sale into its component parts, which are separate and distinct from the sale itself, and by an application of the theory of nexus claim that ,,he sale wholly took place within it. the nexus can only be in respect of the entire sale, wherever it may take place and not of its several parts. - 6 has clearly deposed in cross-examination that these injuries could be caused by an axe. 6. the learned counsel also submitted that failure on the part of the investigating agency to take into possession haraini of the plough, which having got broken was being repaired by the appellant at the time of the alleged occurrence, suggests that the investigation has not been thorough, fair and straight forward.i.d. dua, j.1. the appellant ghasita alias ghasi ram in this appeal by special leave has been convicted by the sessions judge, hamirpur for the offence of murder under section 302, indian penal code and sentenced to death. his appeal has been dismissed by the high court of judicature at allahabad and the sentence of death confirmed on reference under section 374, cr.p.c.2. the appellant was originally a resident of village beera. he was married to the daughter of one mataiyan chamar in village bargarh and had started living in the village of his father-in-law about a year prior to the murder in question. he was employed with one mahadeo lodhi as a plough-man. it appears that he had purchased some articles on credit from binda, a shop-keeper of village bargarh of the value of about rupees 5 or 6. as the appellant had not paid the sum due for some time in spite of several demands by binda and his father, on september 7, 1969, when the appellant was ploughing his master's field, binda passed that way and demanded the money due to him. ghasita, appellant, who was at that time mending haraini of the plough on the southern end of his master's field replied that he had no money at that time and would pay the same as and when he is in a position to do so. on binda's insistence on payment of the dues the appellant abused him. binda in return gave a slap on the appellant's cheek. the appellant then got hold of an axe and gave a blow on binda's neck. as a result of this blow binda fell down on the ground. the appellant gave three or four more blows with the axe on binda's neck, killing him instantaneously. soon thereafter the appellant ran away from the place of occurrence carrying the axe with him. this occurrence was witnessed by chunta son of dhani ram, p.w. 2, mahadeo son of birbal, p.w. 3, with whom the appellant was employed and rajdhar son of ramnath p.w. 4. mahadeo went to the village and informed punna, father of the deceased, about his son's murder. punna came to the place of occurrence and after entrusting the dead body of his son to the witnesses, went to the police station maiahgaon along with the village chowkidar to lodge the report of his son's murder.3. the evidence of the eye witnesses is clear, consistent and convincing. nothing has been elicited in the cross-examination to discredit their testimony or to throw any suspicion about the correctness of the version given by all of them consistently. in the statement made by the appellant under section 342, criminal procedure code he denied every allegation except that he had started living in village bargarh since about a year. the reason given by him for the prosecution witnesses deposing against him was that one brijbhan who was married in the appellant's village had strained relations with him and that the said brijbhan being the cousin brother of rajdhar and mahadeo they have falsely implicated him, adding that he had also refused to do begar for these persons.4. mr. m. s. srivastava, learned counsel appearing as amicus curiae in support of the appeal, which has been forwarded from district jail, bara banki, submitted that the medical evidence is inconsistent with the testimony of the prosecution witnesses who claimed to have witnessed the occurrence. the evidence of these witnesses should, therefore, be discarded. according to the counsel the injuries found on the person of the deceased could not have been inflicted by an axe. we are unable to sustain this submission. the four injuries described by dr. r. n. zaida, medical officer, rath (p.w. 6) to be ante-mortem are all around the neck and their description does not suggest that they could not be caused by an axe. p.w. 6 has clearly deposed in cross-examination that these injuries could be caused by an axe. it is not understood on what basis it can be urged that these injuries could not have been caused by an axe. it is true that we have not got on the printed record the description of the axe which said to have been used by the appellant but if the testimony of the eye witnesses was sought to be discredited on the basis of medical evidence it was for the appellant to have this aspect specifically clarified from the evidence of the doctor. a suggestion was, however, thrown by the learned counsel that injuries 3 and 4 as given in the post-mortem report must have been caused by different weapons and that, therefore, the prosecution story that they are both caused by the axe is unbelievable. we do not find any material to support this submission. injury no. 3 is an incised wound 2' x 5/10' vertebrae, transverse, over right side of neck 1 3/4' below right ear. a small piece 1/3' x 1/2' x 1/10' of lower part of 3rd cervical vertebrae body was cut and separated. all the soft tissues including blood vessels of the right side of neck were also completely cut underneath. the fourth injury is an incised wound at the back of the neck about 1' above 7th cervical spine. spinous process of 5th cervical vertebrae was completely cut underneath and so were all the soft tissues over back of neck under the injury. from the description of these injuries we are unable to infer that they could not be, caused by an axe and indeed no suggestion to that effect was made to dr. zaida, p.w. 6.5. it was next contended that the f.i.r. suggests punna was present when the alleged occurrence took place because it is not stated therein that he was reproducing the version conveyed to him by the eye witnesses. on this assumption it was argued that in the f.i.r. there being no mention of the fact that the appellant was repairing the haraini, the whole version of the alleged occurrence must be considered to be doubtful. the submission is wholly misconceived. it completely ignores that part of the f.i.r. where it is stated that mahadeo had gone to the village to inform punna of all the facts. this contention is thus devoid of merit.6. the learned counsel also submitted that failure on the part of the investigating agency to take into possession haraini of the plough, which having got broken was being repaired by the appellant at the time of the alleged occurrence, suggests that the investigation has not been thorough, fair and straight forward. we do not think it was necessary for the investigating officer to take into possession the haraini, which is not directly connected with the commission of the offence. the commission of the offence has been witnessed by the eye witnesses whose evidence is free from suspicion. the production of the haraini could not have rationally added more credibility to the testimony of the eye witnesses.7. finally it was submitted that the sentence is too severe. looking at the nature of the injuries which suggest that their author intended to sever the neck of the deceased from his body and the circumstances in which this brutal murder was committed, in our view, the sentence imposed can by no means be considered to be too severe. the appeal accordingly fails and is dismissed.