Ramlagan Singh and ors. Vs. State of Bihar - Court Judgment

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criminal - murder - sections 149, 302 and 304 part ii of indian penal code, 1860 - appeal against conviction for offence under section 304 part ii for causing death of x - appellants gave gandasa blows on the head of deceased resulting in his death - appellants contended that prosecution failed to explain injuries suffered by them - facts revealed that no question had been put to any of prosecution witnesses to explain injuries on appellants and thus there was no occasion for prosecution witnesses to explain injuries on appellants - witnesses refrained from referring injuries on appellant for fear of being implicated in cross case - held, non mention of injuries on appellants in prosecution evidence would not justify interference with appraisement of evidence by trial court and high court - appeal dismissed. - [s.k. dass, acting c.j.,; k. subba rao,; n. rajagopala ayyangar,; raghuvar dayal, jj.] the appellant was a registered dealer carrying on business in bidis. for the year 1949-50, i.e., for the period from october 22, 1949 to november 9, 1950 he submitted only one return on october 5, 1950 for one quarter and defaulted in respect of the other quarters. he was served a notice on august 13, 1954 under s. 11(1) and (2) of the c.p. and berar sales tax act, 1947, in respect of the turnover for the said period. there after, he filed the returns, but in the assessment proceedings he contended inter alia, that the proceedings before the sales tax commissioner were barred by time. this contention was rejected and his tax liability was determined. then the appellant moved the high court in writ petition. in the other appeal no. 102/1961, the appellant had not filed any return for the year 1950-51 i.e. for the period from november 10, 1950 to october 31, 1951. he was served a notice on october 15, 1954, under s. 11(4) of the act. the said notice was within 3 years from october 16, 1951 which fell within the 4th quarter of the concerned year. the appellant then, filed his returns under protest and contended that the assessment proceedings were barred by limitation under s. 11(a) of the act. this plea was re- jected and his tax liability was determined. the appellant then, filed another writ petition for a similar relief. both the writ petitions were heard together and the learned single judge relying on a decision in firm sheonarayan matadin v. sales tax officer, raipur, quashed the said assessments. the respondent then, filed letters patent appeals before the division bench and by a common judgment the orders of the learned single judge were set aside. in this court, the appellant contended : (1) the expression "escaped assessment" in s. 11-a of the act would apply also to a case where there was no assessment at all ; (2) even if the first assessment proceedings were pending before the appropriate authority, it could only make the assessment within three years from the date of the commencement of the said proceedings, which would start only after the appropriate authority issued a notice under s. 10(1) or s. 11(2) or s. 11(5) of the act; (3) in the present case no proceedings in respect -of the said assessment were pending and (4) as only a part of the fourth quarter in the second appeal falls within three years, the proceedings in respect of the said entire quarter would be barred under s. 11-a of the act and, in any view only the turnover escaped in respect of the period between november 10, 1950 to october 31, 1951 could be assessed. the respondent mainly contended that whatever may be said in the case of an unregistered dealer, in the case of a registered dealer the proceedings commence from the date fixed in the registration certificate within which the said dealer has a statutory obligation to furnish his return. held : (raghubar dayal, j. dissenting) : the expression "escaped assessment" in s. 11-a of the act includes that of a turnover which has not been assessed at all, because for one reason or other no assessment proceedings were initiated and therefore, no assessment was made in respect thereof. commissioner of income-tax, bombay v. pirojbai' n. contrac- tor, (1937) 5 i.t.r. 338, maharaj' kumar kamal singh v. com- missioner of income-tax, bihar and orissa, [1959] supp. - s.c.r. 10 maharajadhiraj sir kameshwar singh v. state of bihar, [1960] 1 s.c.r. 332, commissioner of income-tax, bombay v. narsee nagsee & co. [1960] 3 s.c.r. 988 and state of madras v. balu chettiar, (1956) 7 s.t.c. 519,relied on. the assessment proceedings under the sales tax must be held to be pending from the time the said proceedings were initiated until they were terminated by a final order of assessment. before the final order of assessment, it could not be said that the entire turnover or a part thereof of a dealer had escaped assessment, for, the assessment was not completed and, if completed, it might be that the entire turnover would be caught in the net. in re lachhiram basantlal, (1930) i.l.r. 58 cal. 909 and rajendra nath mukherjee v. income-tax commissioner, (1938) l.r. 61 i.a. 10, referred to. under sub-section (1) of s. 10, the commissioner need not issue a notice to a registered dealer for furnishing the relevant returns, but a statutory obligation is imposed on the said dealer to do so by such dates and to such authority as may be prescribed. in the case of a registered dealer there are four variations in the matter of assessment of his 'turnover : (1) he submits a return by the date prescribed and pays the tax due in terms of the said return; the commissioner accepts the correctness of the return and appropriates the amount paid towards the tax due for the period covered by the return. (2) the commissioner is not satisfied with the correctness of the return ; he issues a notice to him under s. 11(2), and makes an enquiry as provided under the act, but does not finalize the assessment. (3) the registered dealer does not submit a return; the commissioner issues a notice under s. 10(3) and s. 11(4) of the act. (4) the registered dealer does not submit any return for any period and the commissioner issues notice to him beyond three years. in the case of a registered dealer the proceedings before the commissioner starts factually when a return is made or when a notice is issued to him either under s. 10(3) or under s. 11(2) of the act. the acceptance of the contention that the statutory obligation to file a return initiates the proceedings is to invoke a fiction not sanctioned by the act. bisesar house v. state of bombay (1958) 9 s.t.c. 654 and ramakrishna ramnath v. sales tax officer, nagpur, (1960) 11 s.t.c. 811, distinguished. a statutory obligation to make a return within a prescribed time does not proprio vigore initiate the assessment proceedings before the commissioner; but the proceedings would commence after the return was submitted and would continue till a final order of assessment was made in regard to the said return. in the first case, therefore, the tribunal had no jurisdiction to issue a notice under s. 11-a with respect to the quarters other than that covered by return made by the appellant. in the second case, the commissioner had jurisdiction to assess the turnover in respect of the entire fourth quarter, but as it was done without showing separately the assessment of tax payable in respect of each quarter, this court cannot confine the relief to be given to the appellant in these appeals to the period barred under s. 1 1-a of the act. the appeals, therefore must be allowed. per raghubar dayal, j.--the turnover for the years 1949-50 and 1950-51 could not be said to be turnover which escaped assessment, within the meaning of that expression in s. 11-a of the act and therefore, the notices issued by the assistant commissioner of sales tax in 1954 under s. 11(2) cannot be said to be notices issued under s. 11-a beyond the period within which they could have been issued. the proceedings for the assessment commence against the registered dealer from the prescribed date for his submitting the return which he is required to submit by sub- section (1) of s. 10. no notice is necessary to be issued to him for the submitting of the return for the purpose of assessment. the statute, by the provisions of sub-section, (1) of s. 10, gives him the required notice to the effect that he is to submit the necessary returns by the dates prescribed by the rules. the registration certificate issued to him mentions the period of the dealer's year, the prescribed return period and the dates by which the dealer had to furnish the returns. the registered dealer is, in this way, in no worse position than an ordinary dealer who receives a notice for -submitting the returns by a certain date. in the case of the unregistered dealer, the proceedings commence by the issue of a notice under subsection (1) of s. 10. there is no time limit fixed for the sales tax officer to take action against the registered dealer under sub-sections (2) and (4) of s. 11. he does not contravene art. 14, if he takes action against a registered dealer under sub-section (2) or sub- section 4 of s. 11 even after the expiry of three years from the period whose turnover is to be assessed.h.r. khanna, j.1. this is an appeal by special leave by 13 persons, ram- lagan singh, ram suresh singh alias suresh singh, ramdutt singh, awadh singh, ambika singh, saligram. singh, america singh, ram nandan singh, karoo singh, ram swaroop singh, bhondu singh, sheodutta singh and bali singh, against the judgment of patna high court.2. the 13-appellants and kameshwar singh were tried in the court of additional sessions judge gaya for various offences. the main charge was against ramlagan singh and suresh singh, who are both brothers, for an offence under section 302 indian penal code for causing the death of tulsi yadav. there were also charges under section 302 read with section 109, section 302 read with section 149, sections 324, 147 and 148 indian penal code. the charge under section 324 related to the injuries caused to narsingh yadav pw. the trial court acquitted kameshwar singh. ram suresh singh and ram-lagan singh were convicted under sections 302 and 148 indian penal code, and each of them was sentenced to undergo imprisonment for life on the former count and rigorous imprisonment for a period of two years on the latter count. ramdutt singh was convicted under section 147 and section 323 read with section 109 indian penal code. he was awarded a sentence of rigorous imprisonment for a period of one year on the former count. no sentence was awarded to him for the offence under section 323 read with section 109 indian penal code. karoo singh was convicted under section 148 indian penal code and was sentenced to undergo rigorous imprisonment for a period of two years. ambika singh, saligram singh and america singh were convicted under section 323 indian penal code and were sentenced to undergo rigorous imprisonment for a period of one year. they were also convicted under section 147 indian penal code and were sentenced to undergo rigorous imprisonment for a period of one year. awadh singh, ram nandan singh, ram swaroop singh, bhondu singh, sheodutta singh and bali singh were convicted under section 147 indian penal code, and each of them, was sentenced to undergo rigorous imprisonment for a period of one year. the sentences awarded to each of the accused were ordered to run concurrently. on appeal the patna high court altered the conviction of ram-lagan singh and suresh singh accused from under section 302 to that under section 304, part ii indian penal code. each of these two accused was sentenced to undergo imprisonment for a period of eight years on that count. in other respects, the appeals filed by the 13 accused-appellants were dismissed.3. the prosecution case is that on august 24, 1965 tulsi deceased, along with his brother raj kumar (pw 9) and narsingh yadav (pw 2), proceeded from his village hasanpur to dhia market. when they passed near the field of ramdutt accused in the area of village baraini, ramdutt shouted that the enemy was passing that way. on the shout of ramdutt accused, the other accused who were nearby, came there. four of the accused, namely, ramlagan singh, suresh singh, kameshwar singh and karoo singh were armed with gandasas while the others were armed with lathis. ramlagan singh and suresh singh then gave gandasa blows on the head of tulsi. tulsi fell down and was given further gandasa blows by ramlagan singh and suresh singh. the other accused, who were armed with lathis, also joined in the assault, karoo singh gave a gandasa blow at the back of narsingh yadav pw. narsingh yadav was also given lathi blows by america singh, ambika singh and saligram. narsingh yadav on receipt of injuries ran away, while tulsi died at the spot. the occurrence, it is stated, was also witnessed by tapeshwar singh (pw 1), lakhan singh (pw 3) and jaglal yadav (pw 5). these three witnesses were present in the nearby fields at the time of the occurrence, the accused after causing injuries ran away.4. raj kumar pw. accompanied by tapeshwar singh pw, went to police station belaganj at a distance of 8 miles from the place of occurrence and arrived there at about 5 p.m. raj kumar then made statement which was entered by the munshi in the daily diary. ramdeni singh (pw 9), who was station house officer, was not present at the police station at that time. on receiving intimation, s.h. o. ramdeni singh went to the police station and recorded the statement of raj kumar at 6.30 p.m. the station house officer left the police station at, 9 p.m. and arrived at the place of occurrence at about 2 a.m. delay in arrival at the place of occurrence was due to heavy rains and the fact that the station house officer had to cover the distance on foot. on arrival at the place of occurrence, the station house officer found the dead body of tutsi lying there. the station house officer prepared the inquest report and sent the dead body for post mortem examination. post mortem examination on the dead body of tulsi was performed by dr. ram chander prasad sinha on august 25,1965. narsingh yadav pw was also got examined from the doctor and was found to have six simple injuries on his person. one of those injuries consisted of an incised wound.5. at the trial tapeshwar singh (pw 1) narsingh yadav (pw 2), lakhan singh (pw 3). jaglal yadav (pw 5) and raj kumar (pw 8) gave ocular evidence regarding the occurrence in support of the prosecution case.6. the accused in their statements under section 342 of the crpc denied the prosecution allegations and stated that they had been falsely involved in the case. written statement was also filed on behalf of the accused, according to which tapeshwar singh pw collected a mob of about 100 persons, including tulsi, narsingh yadav and others. the mob then went to the baithak of ram nandan singh appellant and assaulted ram nandan singh and suresh singh. the villagers then came there and caused injuries to tulsi, narsingh yadav and tapeshwar. in defence, the accused examined dr. k. n. sinha, who deposed that ram nandan singh and ram suresh singh accused had three injuries each on their persons when the witness examined them on the night of august 24, 1965. those injuries included incised wounds.7. the trial court accepted the evidence of the five eye witnesses. it was also held that the common object of the unlawful assembly was only to assault and not to commit murder. death of tulsi, it was observed, was due to the individual acts of ramlagan singh and suresh singh accused. the other accused, it was held, could not be held to be constructively liable for the murder of tulsi. the accused were accordingly convicted and sentenced as above. on appeal the high court took the view that ramlagan singh and suresh singh could not have the intention of killing tulsi. at the same time, in the opinion of the high court, they had the knowledge that death of tulsi might result as a result of the blows given by them. ramlagan singh and suresh singh were accordingly convicted under section 304, part ii indian penal code. in other respects the judgment of the trial court was upheld.8. we have heard mr. chari on behalf of the accused appellants and mr. jha on behalf of the state, and are of the opinion that no case has been made for interference with the judgment of the high court. it cannot be disputed that tulsi died as a result of the injuries which were inflicted upon him. dr. ramesh chander prasad sinha, who performed post-mortem examination on the body of tulsi deceased, found eight injuries on the body. the first injury consisted of an incised wound 4 i/2' x 1/2'. it was bone deep on the left side of the head. the injury resulted in the cutting of the skin muscles and the scalp, the left parietal bone and the outer covering of the brain with blood clots on the left lobes of the brain. the second injury consisted of an incised wound 2 1/4' x 1/2' x 1/4' on the right side of the head, just behind the forehead. the third injury was scalp deep on the vault of the head. there were five incised wounds bone deep on the back of the head. in addition to that, there were incised wounds on the left forearm, left wrist and right leg. bruise was also found on the right shoulder.9. according to the prosecution case, the incised wounds on the body of tulsi deceased were caused by ram-lagan singh and suresh singh accused. the prosecution in this respect examined tapeshwar singh (pw 1), nar-singh yadav (pw. 2), lakhan singh (pw 3), jaglal yadav (pw 5) and raj kumar yadav (pw 8). the evidence of these witnesses was accepted by the trial court and the high court, and nothing has been brought to our notice as may justify interference with the appraisement of the said evidence in this appeal under article 136. it may be stated that narsingh yadav was himself injured during the course of occurrence and there can be hardly any doubt regarding his presence at the spot. likewise, the other four witnesses have satisfactorily accounted for their presence at or about the place of occurrence.10. mr. chari has referred to the fact that injuries were found on the persons of the two of the accused, namely, ram nandan singh and suresh singh. it is stated that these injuries have not been satisfactorily explained by the prosecution witnesses. no question, however, appears to have been put to any of the prosecution witnesses regarding the injuries caused to ram nandan singh and suresh singh accused. as such, there arose no occasion for the prosecution witnesses to explain the injuries on the persons of the two of the accused. apart from that, we find that a cross case was started against the prosecution witnesses in this case regarding the injuries to ram nandan singh and suresh singh accused. the accused in the cross case, we have been informed by mr. chari, were acquitted on appeal by the high court. it appears that the witnesses refrained from referring to the injuries on the persons of ram nandan singh and suresh singh because of fear of being implicated in the cross case. looking to the circumstances of the case, we are of the opinion that the non-mention of the injuries on the persons of the two accused in the prosecution evidence would not justify, interference with the appraisement of the evidence by the trial court and the high court.11. the appeal fails and is dismissed.