judgement:
: Criminal Appeal Nos.
600 601 of 1989.
From the Judgment and Order dated 13.3.1986 of the Punjab and Haryana High Court in Crl.
No. 434 and 1295 of 1984.
Ms. Geeta Luthra, Ms. Pinky Anand and D.N. Goburdhah for the Appellant.
R.L. Kohli and R.C. Kohli for the Respondents.
The following Judgments of the Court were delivered SABYASACHI MUKHARJI, J. Ravinder Kaur, daughter of Gurbachan Singh, resident of Amritsar, was married to Satpal Singh in November, 1982.
She died on 25th June, 1983 at about 2.30 p.m.
She, it was alleged, committed suicide because of the cruel behaviour of her in laws soon after her marriage.
She used to visit her parents ' at Amritsar occa sionally and during those visits she used to tell them that there was demand for dowry and also taunting of her by the members of the family of her in laws and also insinuation that she was carrying on illegitimate child.
There are sufficient, relevant and acceptable evidence to that effect.
It is alleged that provoked by the aforesaid conduct and behaviour , she committed suicide.
The father in law, moth er in law and the husband of the accused have been the abettors to the crime.
The evidence further established that she died of second to third degree burns on the body, and there was sprawling of kerosene oil on her body and the body was burnt by fire.
Accused No. 3 Smt.
Kamal Dip Kaur, the mother in law of the deceased and the mother of the accused Satpal Singh, stated in her statement under section 3 13 Cr.
P.C. that she was lying in her house at that time and the de ceased was 295 cooking food on a kerosene stove, and as such the deceased caught fire accidentally.
Learned Addl.
Sessions Judge held that there was absence of burn injuries on the fingertips of the mother in law and other members of the family.
As mentioned before, the de ceased was married in November, 1982.
After marriage, she used to stay in the house of her in laws at Raja Sansi.
The deceased used to visit the house of her parents at Amritsar occasionally, as noted before.
During these visits she used to tell them that her in laws were not happy with the dowry given to the latter.
It is further on evidence. that she complained that her in laws used to taunt her and insisted her tO bring more dowry.
It is stated that she complained that the in laws taunted her that at the time of the mar riage, her parents did not serve proper meals to the in laws and their guests.
It is further stated that the accused used to tell her that they had been offered by fridge etc.
by other parties for the marriage of the accused while she had not brought dowry expected from her parents.
It is also on evidence that she was often openly threatened that she would be turned out of the house in case she did not bring more articles.
These were all established by the evidence of Gurbachan Singh, father of the deceased and his two daugh ters.
It was insinuated of her by the accused that she was carrying an illegitimate child.
On the totality of these evidence on record, it was held by the learned Sessions Judge that the accused were guilty of abetment to suicide and as such punishable under section 306 of the I.P.C.
The High Court on appeal was of the view that the guilt of the accused had not been proved, and as such acquitted them.
The first thing that is necessary for proving the of fence is the fact of suicide.
Abetment is a separate and distinct offence provided the thing abetted is an offence.
Abetment does not involve the actual commission of the crime abetted; it is a crime apart.
See the observations of Baren dra Kumar Ghosh, It was contended on behalf of the accused that there was no direct evidence of the act of suicide by Ravinder Kaur.
There, indeed, could not be in the circumstances in which she died.
She was in the house of her in laws.
There is ample and sufficient evidence that she had complained that she was taunted for bringing meager dowry and that even insinuated that she was carrying 'an illegitimate child '.
The aforesaid facts stand established by cogent and reliable evidence.
These are grave and serious provocation enough for an ordinary woman in the Indian set up, to do 296 what the deceased is alleged.to have done.
There is also evidence that the persons in the house of her in laws in cluding the mother in law mother of the accused Satpal Singh, made no attempt to save her from the burn injuries.
The absence of any burn injury in the hands of the people around, indicates and establishes that there was no attempt to save the deceased though she was seen being burnt.
The evidence of attitude and conduct of the in laws the father in law, mother in law and the husband after Ravinder Kaur, the deceased, got burns in not informing the parents and not taking prompt steps to take her to hospital for giving medical assistance corroborate the inference that these accused connived and abetted the crime.
Criminal charges must be brought home and proved beyond all reasona ble doubt.
While civil case may be proved by mere preponder ance of evidence, in criminal cases the prosecution must prove the charge beyond reasonable doubt.
See Mancini vs Director of Public Prosecutions, , Woolmington vs The Director of Public Prosecutions; , It is true even today, as much as it was before.
There must not be any 'reasonable doubt ' about the guilt of the accused in respect of the particular offence charged.
The courts must strictly be satisfied that no innocent person, innocent in the sense of not being guilty of the offence of which he is charged, is convicted, even at the risk of letting of some guilty persons.
Even after the introduction of section 498A of the I.P.C. and section 113A of the Indian Evidence Act, the proof must be beyond any shadow of reasonable doubt.
There is a higher standard of proof in criminal cases than in civil cases, but there is no absolute standard in either of the cases.
See the observations of Lord Denning in Bater vs Bater, at 459 but the doubt must be of a reasonable man.
The standard adopted must be the standard adopted by a prudent man which, of course, may vary from case to case, circumstances to circumstances.
Exaggerated devotion to the rule of benefit of doubt must not nurture fancilful doubts or lingering suspicions and thereby destroy social defence.
Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent.
Letting guilty escape is not doing justice, according to law.
The conscience of the court can never be bound by any rule but that is coming itself dictates the consciousness and prudent exercise of the judgment.
Reasonable doubt is simply that degree of doubt which would permit a reasonable and just man to come to a conclusion.
Reasonableness of the doubt must be commensurate with the nature of the offence to be investigated.
297 Having regard to the circumstances of the case, there is no direct evidence indicating the circumstances in which the death took place, the conduct of the accused and the nature of the crime with which the accused was charged, there cannot be any scope of doubt that the learned Sessions Judge was right and the conviction was properly made.
This is not a case where there could be two views possible on the facts found and on the facts which could not possibly be found because of i,the nature of the offence.
The fact the two view are reasonably possible, is not established by the fact that two different conclusions are reached by two adjudica tory authorities.
The factum of that may be only a piece of evidence, but whether two views at all are possible or not, has to be judged in all circumstances by the Judge, by the logic of the facts found in the background of law.
For the reasons aforesaid, I respectfully agree with the judgment and order proposed by my learned brother.
RAY, J. Special leave granted.
These appeals are at the instance of Gurbachan Singh, the complainant against the judgment and order passed in Criminal Appeal No. 434 SB of 1984 by the High Court of Punjab & Haryana at Chandigarh acquitting the accused re spondents of the charge under section 306 of the Indian Penal Code on setting aside the conviction and sentence passed by the Additional Session Judge on August 9, 1984 convicting and sentencing all the accused.
The appeal was allowed on holding that there was no evidence on record that the ac cused at the time of commission of suicide by Ravinder Kant, in any way instigated or abetted her to commit suicide and as such the prosecution failed to establish the charge against the accused and their conviction consequently can not be sustained.
The prosecution case is that the deceased, Ravinder Kaur, daughter of Gurbachan Singh, the complainant was married to Satpal Singh in November, 1982.
After marriage, Ravinder Kaur started living in the house of her in laws at Raja Sansi.
She used to visit the house of her parents at Amritsar occasionally and during these visits, she used to tell them that her in laws were not happy with the dowry given to her and they used to taunt her and insisted her to bring more dowry and that they even used to taunt her that her parents at the time of the marriage did not serve them with proper meals.
The accused also used to tell her that they were being offered Fridge etc.
by the other parties in the marriage of Accused Satpal Singh and that she has not brought the dowry expected from her parents.
She was often told 298 by them that she would be turned out of the house, in case she did not bring more articles.
In November, 1982, Gurbachan Singh visited the house of her in laws at Raja Sansi where his daughter complained that the behaviour of her in laws towards her was not cordial and that they were maltreating her for bringing insufficient dowry and they even taunted her that she was carrying an illegitimate child.
Hearing these complaints from her daugh ter, Gurbachan Singh brought her daughter to his house at Amritsar, one day prior to Baisakhi, 1983 and his daughter continued to remain at his house for about eight days.
There .
after Satpal Singh, his father Harbhajan Singh, accused and his mother Smt.
Kanwal Dip Kaur along with Harjit Singh, and Mohinder Singh, maternal uncles of Satpal Singh came to the house of Gurbachan Singh at Amritsar and pursuaded that he should send Ravinder kaur with them where upon Gurbachan Singh told them that his daughter complained against the ill treatment and cruel behaviour towards her for bringing insufficient dowry and they also taunted her for this as well as for her illegitimate child and put pressure on her to bring more dowry.
So he was reluctant to send her daughter back to her in laws.
Gurbachan Singh called Ved Prakash, President of the Mohalla Committee, Smt.
Raj Kumari, a social worker living in the neighbourhood of Gurbachan Singh and one Ramesh Kumar to his house and all these complaints and grievances were repeated in presence of these persons.
The accused assured him that in future they would not maltreat and taunt her and that he would not receive any complaint against them.
They also assured him that in future they would not ask her to bring more dowry.
On these assurances of the accused, Gurbachan Singh sent his daughter with the accused to Raja Sansi, the house of the accused.
For about two months, Gurbachan Singh did not receive any information from his daughter and so he sent his two daughters Surjit Kaur and Sajinder Kaur to Raja Sansi to the house of the in:laws of Ravinder Kaur to enquire about her welfare.
The said daughters of Gurbachan Singh went to the house of the in laws of Ravinder Kaur on June 23, 1983 that is, two days prior to the death of Ravinder Kaur.
The de ceased complained to them about the torture as well as cruel behaviour of her in laws, as before and they have not stopped maltreating her and torturing her and she was not happy there.
On June 25, 1983 at about 6.30 p.m., Mohinder Singh, maternal uncle of Satpal Singh came to the shop of Gurbachan Singh at Amritsar and informed him that his daugh ter committed suicide by sprinkling 299 kerosene oil on her body and then setting herself on fire and that she was lying at S.G.T.B. Hospital, Amritsar.
Gurbachan Singh immediately went to the hospital and found the dead body of her daughter lying in the dead house.
It has been alleged that Ravinder Kaur committed suicide on June 25, 1983 at 2.30 p.m. having fed up with the cruel behaviour of her in laws.
The appellant alongwith the mem bers of his family stayed in the hospital.
On June 26, 1983, Gurmeet Singh, A.S.I. Police Station, Ajnala came to the dead house at Amritsar at about 5 p.m. and examined the dead body of Ravinder Kaur.
He recorded the statements of Gurba chan Singh, Ved Prakash and Ramesh Kumar.
The statement of Gurbachan Singh was reproduced in the Roznamcha, and the statements of Gurbachan Singh and Ved Prakash, President of the Mohalla Sudhar Committee and Ramesh Kumar though disclosed the commission of a cognizable offence by the accused yet Gurmit Singn, A.S.I. and even Shri Iqbal Singh Dhillon, D.S.P., Ajnala Police Station did not register the case for extraneous reasons.
On June 27, 1983, Dr. Gurdip Kumar Uppal, Medical Offi cer, Police Hospital, Amritsar conducted the post mortem examination on the dead body of Ravinder Kaur and found 2nd to third degree burns on the body of deceased.
Gurbachan Singh alongwith his daughters and Raj Kumari, Ramesh Kumar, Ved Prakash and others met the S.S.P. Amritsar in this regard and the investigation of the case was then entrusted by S.S.P. to Shri Surjit Singh, S.P. (Head Quar ters) Amritsar who summoned Gurbachan Singh and other per sons and recorded their statements on July 23, 1983.
All the three accused were charged for an offence under section 306 of the Indian Penal Code and they pleaded not guilty to the charge framed against them.
The accused No. 3 Smt.
Kanwal Dip Kaur, the mother of the accused, Satpal Singh stated in her statement under section 313 Cr.
P.C. that she was lying in her house at the time and the deceased was cooking food in the kitchen on a kerosene stove and she caught fire accidentally.
The learned Additional Sessions Judge held that the absence of burn injuries on the fingertips of the mother in law or other members of the family as evident from the statement of D.W. 1, Jaswant Singh, 300 ruled out the story of accidental fire as set up by the defence.
He further held referring to the provisions of section 113A of the Evidence Act that having regard to the facts and circumstances of the case it may be presumed that the ac cused persons have abetted the suicide committed by the deceased and they fail to reverse this prosecution case by any evidence.
Accordingly, the Additional Sessions Judge, Amritsar convicted the accused under section 306 IPC and sen tenced them to suffer rigorous imprisonment for five years each and to pay a fine of Rs.2,000 each, in default of payment of fine the accused shall be further liable to rigorous imprisonment for four months.
The accused respondents preferred an appeal being Crimi nal Appeal No. 454 of 1984 in the High Court of Punjab and Haryana.
The appeal was allowed and the conviction and sentence was set aside on the ground that the prosecution failed to establish the charge against the accused persons.
Hence this appeal by special leave has been filed by the complainant.
It has been contended by the learned counsel appearing on behalf of the appellant that the cruel behaviour, mal treatment and taunts for not bringing sufficient dowry have been made to the deceased, Ravinder Kaur, soon after her coming to the house of her in laws.
It has also been urged that in November, 1982 she complained of her in laws ' iII treatment and taunts to his father and her father took her to his house.
It has also been urged that the accused Satpal Singh and his father accused Harbhajan Singh and other relatives of the accused met the deceased father at his house and requested him to send his daughter to the house of her in laws and assured them that they would not maltreat her or taunt her or torture her for not bringing sufficient dowry.
These assurances were given in the presence of Ved Prakash, the President of the Mohalla Sudhar Committee, and Raj Kumari, a social worker and one Ramesh Kumar.
Gurbachan Singh, father of the deceased on these assurances given by the accused and their relations sent his daughter, Ravinder Kuar to her in laws house.
It has also been urged that on June 23, 1983 the two daughters Surjit Kaur and Sujinder Kaur were sent by Gurbachan Singh to the house of the in laws of Ravinder Kaur to enquire about her welfare.
Surjit Kaur, PW 7 stated in her statement under section 161 Cr.
P.C. that her sister Ravinder Kaur complained them about the same iII treatment by her husband continuing in the same manner as before and as such she was not happy.
This was reported by them to their father at Amritsar.
It has also been urged that all the three accused taunted the deceased, Ravinder Kaur that she was carrying an illegitimate child.
Being 301 depressed with these taunts and iII treatment the deceased committed suicide by sprinkling kerosene on her person and setting her to fire.
The evidences of PW 4 Gurbachan Singh, father of the deceased and the evidence of PW 7 Surjeet Kaur as well as evidence of PW 6 Raj Kumari were duly considered by the trial court and the trial court clearly found the accused persons guilty of the offence of abetting the sui cide committed by the deceased.
The court of appeal below had wrongly found that the prosecution could not prove charge against the accused and set aside the order of con viction and sentence made by the trial court and acquitted the accused.
It has been urged in this connection that the defence that it was a case of accidental fire and not of suicide was also not believed by the trial court and the trial court gave very cogent and plausible reasons for not believing this story and holding that it was a case of suicide committed by the deceased Ravinder Kaur by the taunts and ill treatment made to her by her in laws and this forced her to take her own life by suicide.
It has been submitted that the accused have abetted the commission of suicide by Ravinder Kaur, deceased and the accused are, therefore, guilty of the said charge.
The order of acquittal made by the High Court is not sustainable in these circum stances.
The learned counsel, Mr. R.C. Kohli has made three fold submissions before this Court.
The first submission is that the case of suicide committed by the deceased Ravinder Kaur was not proved and as such the conviction on the charge of section 306 I.P.C. as made by the trial court was not sustain able.
He has further submitted that the prosecution has not proved beyond reasonable doubts that the deceased committed suicide.
The next submission made is that the evidences produced on behalf of the prosecution are meagre and do not prove that the accused had abetted the commission of suicide by the deceased Ravinder Kaur.
The prosecution did not prove that there was any instigation by the accused persons charged with the offence in this case.
The High Court has rightly held that the prosecution failed to prove the ingre dients of section 306 of the IPC and acquitted the accused of the charge under section 306.
This order of acquittal should not be interfered with by this Court in this appeal.
It has been lastly contended that if two reasonable views could be taken of evidences, one in favour of the accused and the other against them the appellate court should not interfere in such case and set aside the order of acquittal.
As regards the first submission that the case of suicide has not been proved, it is relevant to mention that in the FIR (exhibit PF) lodged by the complainant it has been specifi cally stated that due to constant 302 harassment of Ravinder Kaur by the accused persons for having brought less dowry in her marriage as well as due to constant taunts and also torture, the deceased committed suicide by pouring kerosene oil on her and burnt herself and afterwards she died.
It has been further stated in the FIR that the complainant apprehended that some quarrel must have happened on the day of the incident between his daughter, Ravinder Kaur and her husband Satpal Singh, father in law Harbhajan Singh and mother in law Kanwaldip Kaur before she took the extreme step.
P.W. 4, Gurbachan Singh has also stated in his deposition that his daughter used to tell them that her husband, father in law and mother in law always taunted her saying that her parents had not given sufficient dowry during the marriage and had not even served them with proper meals at the time of marriage.
He further stated that on 25th June, 1983 at 6.30 p.m. Mohinder Singh, maternal uncle of Satpal Singh came to shop and told him that his daughter had committed suicide by sprinkling kerosene oil on her body and then setting her on fire.
In his statement under Section 161, Cr.
P.C. recorded on 23rd July, 1983 he also stated that her two daughters namely Sajinder Kaur and Surjeet Kaur (P.W. 7) who visited Raja Sansi to meet their sister, Ravinder Kaur two days before the incident were told by her deceased daughter that her in laws often taunted her for not bringing sufficient dowry.
It has also been stated by him that the accused taunted her daughter saying that she was carrying an illegal child which is a great defame for them.
It has also been stated that "due to the bad treatment meted out towards his daughter Ravinder Kaur at the hands of her husband, Satpal Singh, her mother inlaw, Kanwaldip Kaur and her father in law, Harbhajan Singh that she had not brought scooter and fridge and had brought less dowry in her marriage they had forced her to put kerosene oil on her body and commit suicide and as they often taunted her saying that she had begotten immoral and illegal pregnancy and for this reason she had committed suicide and thus had lost her life." Furthermore, though the house of the accused persons is not far off yet the information was given not by his son in law or other members of the family promptly but it was given by the maternal uncle of the son in law, Satpal Singh at 6.30 p.m. to the appellant although the incident occurred at about 2.30 p.m.
It is also evident that the deceased, Ravinder Kaur who had second to third degree burns on her person was brought to the hospital in the evening and the doctor, P.W. I immediately examined her and declared that she was already dead.
Another most pertinent question which has been decided by the Trial Court is that the de fence story as stated by her mother in law, 303 Kanwaldip Kaur in her examination under section 3 13 Cr.
P.C. that it was a case of accidental fire and not a case of suicide, was falsified by the absence of burn injuries on the finger tips of the mother in law or other members of the family.
The Trial Court rightly held "that the intending circumstances show that she was not allowed to move till the process of burning had become irrecoverable and till she succumbed to her injuries.
" We do not find any infirmity in this finding and we also hold on consideration and appraisement of the evidences as well as the circumstances set out hereinbefore that it was not a case of accidental fire but a case of suicide commit ted by the deceased Ravinder Kaur being constantly abused, taunted for bringing less dowry and also being defamed for carrying an illegitimate child.
It is pertinent to mention that in the appeal before the High Court it was not urged on behalf of the accused that the case of suicide was not proved and as such there was no finding by the High Court on this score.
In such circumstances this argument is totally devoid of merit and as such it is not sustainable.
It is convenient to refer in this connection the deci sion cited at the bar in Wazir Chand and Another vs State of Haryana with State of Haryana vs Wazir Chand and Another, to which one of us (B.C. Ray, J) was a party, wherein it has been held that "a plain reading of this provision (section 306 I.P.C) shows that before a person can be convicted of abetting the suicide of any other person, it must be established that such other person committed sui cide.
" This decision is not at all applicable to the instant case in view of our specific finding that the evidence adduced on behalf of the prosecution clearly establish that the deceased Ravinder Kaur committed suicide at the instiga tion and abetment of the accused persons in the commission of the said offence.
The next argument advanced is that the evidences were too meagre and unreliable to sustain the conviction.
It has also been urged that the High Court considered the evidences and came to a reasonable finding that the prosecution could not prove the ingredients of Section 306, IPC as there was no instigation by the accused nor there was any conspiracy for the commission of that offence.
The High Court arrived at this finding on some contradictions in the statement of the evidences of P.W. 4, Gurbachan Singh, father of the deceased and of P.W. 7, Surjeet Kaur, sister of the deceased respectively with their statements made under Section 161 Cr.
P.C. 304 It is convenient to refer in this connection the obser vation made by this Court in the case of Sat Pal vs Delhi Administration, ; at 30 to the following effect: "It emerges clear that on a criminal prosecu tion when a witness is cross examined and contradicted with the leave of the court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether.
It is for the Judge of fact to consider in each case whether as a result of such cross examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony.
If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record that part of his testimony which he finds to be creditworthy and act upon it.
" We have already referred to the material portions of the FIR as well as all the statements made by P.W. 4 in his evidence as well as his statement under Section 161 Cr.
P.C. as well as the evidence of P.W. 7 and her statement under Section 161 Cr.
On a plain reading of these statements it will be crystal clear that the accused persons since the date when the deceased, Ravinder Kaur went to her in laws ' house after the marriage, was mal treated and was constantly taunted, harassed and tortured for not bringing sufficient dowry from her father and she was taunted for carrying an illegitimate child.
The appellant sometime in November, 1982 went to her in laws house.
His daughter, Ravinder Kaur complained to him about this torture and constant taunts for not bringing sufficient dowry.
On hearing this, her father brought her to his house and after eight days the accused persons, Satpal Singh, his father Harbhajhan Singh and two maternal uncles came to the house of the appellant and requested him to send his daughter with them assuring that there would be no further taunts or any iII treatment by the respondents.
The President of the Mohalla Sudhar Committee, Ved Prakash, P.W. 5 and a social worker, Smt.
Raj Kumari, P.W. 6 and another person Ramesh Kumar of the same village were called in by Gurbachan Singh and in their presence all these talks were held.
On the assurances given, Gurbachan Singh sent his daughter with them.
It is also in evidence that as no information of her was received, Gurbachan Singh sent his two other daughters namely Surjeet Kaur, P.W. 7 and Sajinder Kaur, to the 305 house of the in laws of the deceased Ravinder Kaur to en quire about her welfare.
Ravinder Kaur told them that there was no improvement in the treatment meted out to her and she was being taunted and tortured by her in laws in the same way and she was not happy.
Two days thereafter i.e. on 25th June, 1983 at 2.30 P.M. this unfortunate incident occurred.
P.W. 7, Gurjeet Kaur also stated in her deposition to the same effect.
In her statement under Section 161 Cr.
P.C. she also stated categorically that after about one month of the marriage whenever Ravinder Kaur met her she told that her in laws i.e. the respondents were not treating her well for bringing less dowry.
She was also told that the respondents were demanding refrigerator and a scooter.
They had also taunted that she was having illegitimate child.
She further stated that two days prior to the present occurrence she and her sister, Sajinder Kaur went to Raja Sansi to enquire about the welfare of our sister, Ravinder Kaur who told them weepingly that she was being beaten by the accused and again was mal treated for bringing less dowry and scooter and fridge etc.
She further stated that the respondents were leveling allegations that she had been carrying an illegiti mate child and that she should die.
It was also stated by her that her mother in law, Kanwaldip Kaur was present in the house and she was abusing Ravinder Kaur in their presence.
The learned Sessions Judge after carefully considering and weighing the evidences held that the witnesses P.W. 4, Gurbachan Singh, P.W. 5, Ved Prakash, President of the Mohalla Sudhar Committee, P.W. 6, Smt.
Raj Kumari, social worker and P.W. 7, Surjeet Kaur clearly proved that the respondents mal treated Ravinder Kaur for bringing less dowry and they even tortured her for carrying an illegiti mate child.
The said witnesses testified to the greedy and lusty nature of the respondents that they were persistently demanding more money.
It has also been held that the worst part of the cruelty was that she was even taunted for carry ing an illegitimate child.
The Trial Court also held that a respectable lady cannot bear this kind of false allegation levelled against her and this must have mentally tortured her.
Thus the persistent demands of the accused for more money, their tortures and taunts amounted to instigation and abetment that compelled her to do away with her life.
This finding was arrived at by the learned Sessions Judge on a proper appreciation of the evidences adduced by the prosecution.
The High Court without properly considering and weighing the evidences of the prosecution witnesses and on a wrong appreciation of the evidences found that the prosecution failed to prove the ingredients of 306 Section 306 of I.P.C.
It was also held that there was no evidence on record that the accused at the time of commis sion of suicide by Ravinder Kaur, deceased in any way insti gated or abetted her to commit suicide even though it has been brought but in evidences that the deceased was being maltreated by the accused continuously after her coming to the house of her in laws.
It was further held that the prosecution has singularly failed to establish the charge against the accused and their conviction and sentences were consequently unsustainable.
We have already stated hereinfore that P.W. 4, Gurbachan Singh, P.W. 7, Surjeet Kaur have clearly stated in their depositions about the ill treatment, torture and the cruel behaviour meted out to the deceased Ravinder Kaur which instigated her to take the extreme step of putting an end to her life by sprinkling kerosene oil on her body and setting fire.
We have also stated hereinbefore that though the incident occurred at 2.30 P.M. the information of the death of Ravinder Kaur by burning was given to her father, Gurba chan Singh at 6.30 P.M. in his shop at Amritsar.
Gurbachan Singh with members of his family immediately rushed to the hospital and found the dead body of her daughter in the dead house of the hospital.
It is also in evidence that Ravinder Kaur was brought to the hospital after much delay when she was already dead.
The Trial Court rightly held that in such cases direct evidence is hardly available.
It is the circumstantial evidence and the conduct of the accused persons which are to be taken into consideration for adjudicating upon the trust fulness or otherwise of the prosecution case.
We have already referred to hereinbefore the evidences of the prosecution witnesses who clearly testified to the greedy and lusty nature of the accused in that they persist ently taunted the deceased and tortured her for not having brought sufficient dowry from her father.
It is also in evidence that they also taunted her for carrying an illegit imate child.
All these tortures and taunts caused depression to her mind and drove her to take the extreme step of put ting an end to her life by sprinkling kerosene oil on her person and setting fire.
Circumstantial evidence as well as the evidences of the prosecution witnesses clearly prove beyond reasonable doubt that the accused persons instigated and abetted Ravinder Kaur, deceased in the commission of the offence by committing suicide by burning herself.
The find ings arrived at by the Trial Court after considering and weighing 307 the entire evidences are unexceptional.
The findings arrived at by the High Court without considering properly the cir cumstantial evidence as well as the evidences of the prose cution witnesses cannot be sustained.
As such the findings of the High Court are liable to be reversed and set aside.
The High Court drew an inference from the conduct of Gurbachan Singh, P.W. 4 in making a delay of about 24 hours after receipt of the information regarding her daughter 's death to make a statement to the police about the incident with lodging the F.I.R. on the same date, i.e. June 25, 1983 or on the following morning.
The High Court, therefore, held that all these circumstances would raise considerable doubt regarding the veracity of the evidence of these two witness es (P.W. 4 and P.W. 7) and point an infirmity in their evidence as would render it unsafe to base the conviction of the accused.
It is in evidence of P.W. 4 that he was intimate about the death of his daughter by committing suicide, by the maternal uncle of Satpal Singh, son in law on June 25, 1983 at about 5.30 p.m.
He immediately rushed to the hospital with members of his family where his daughter was brought.
It is also in his evidence that he stayed there the whole night with his wife and other members of his family near the dead body of his deceased daughter and also on the next day till the dead body was handed over to him after the comple tion of post martem in the afternoon.
The Assistant Sub Inspector of Police of Ajnala Police Station reached SGTB Hospital on the next day i.e. on June 26, 1983 and got his statement recorded there.
It has been rightly held by the Additional Sessions Judge that in the circumstances it cannot be said that there has been any delay in reporting the matter to the police.
We fully accept this finding of the Additional Sessions Judge and we also held that the delay in lodging the FIR in the above circumstances does not raise any doubt regarding the veracity of the said two witnesses and there is no infirmity in the evidences of P.W. 4 and P.W. 7 which would render them unsafe to base the conviction of the accused as wrongly observed by the High Court.
It is also convenient to refer to this connection to the provisions of Section 113A of which provide that: "113 A. Presumption as to abetment of suicide by a married women When the question is whether the commission of suicide by a woman had been abetted by her husband or any rela tive of her husband and it is shown that 308 she had committed suicide within a period of seven years from the date of her marriage and that her husband or such relative of her husband had subjected her to cruelty, the court may presume, having regard to all the other circumstances of the case, that such suicide had been abetted by her husband or by such relative of her husband." In the instant case the deceased Ravinder Kaur was married to the accused, Satpal Singh in November, 1982 and she committed suicide on June 25, 1983.
It has also been found on a consideration of the circumstantial evidence that she was compelled to take the extreme step of committing suicide as the accused persons had subjected her to cruelty by constant taunts, mal treatment and also by alleging that she has been carrying an illegitimate child.
The suicide having been committed within a period of seven years from the date of her marriage in accordance with the provisions of this Section, the Court may presume having regard to all the other circumstances of the case which we have set out earlier that such suicide has been abetted by the husband and his relations.
Therefore, the findings arrived at by the Additional Sessions Judge are quite in accordance with the provisions of this Section and the finding of the High Court that the accused persons could not be held to have instigate or abetted the commission of offence, is not sustainable in law.
It has been contended on behalf of the accused respond ents that Section 113 A of the was inserted in the Statutes Book by Act 46 of 1983 whereas the offence under Section 306, I.P.C. was committed on June 23, 1983 i.e. prior to the insertion of the said provision in the .
It has, therefore, been submitted by the learned counsel for the respondents that the provi sions of this Section cannot be taken recourse to while coming to a finding regarding the presumption as to abetment of suicide committed by a marriage woman, against the ac cused persons.
The provisions of the said Section do not create any new offence and as such it does not create any substantial right but it is merely a matter of procedure of evidence and as such it is retrospective and will be applicable to this case.
It is profitable to refer in this connection to Hals bury 's Laws of England, (Fourth Edition), Volume wherein it has been stated that: "The general rule as mat all statutes, other than those which are merely declaratory or which relate only to mat 309 ters of procedure or of evidence, are prima facie prospective, and retrospective effect is not to be given to them unless, by express words or necessary implication, it appears that this was the intention of the legislature It has also been stated in the said volume of Halsbury 's Law of England at page 574 that: "The presumption against retrospection does not apply to legislation concerned merely with matters of procedure or of evidence; on the contrary, provisions of that nature are to be construed as retrospective unless there is a clear indication that such was not the inten tion of Parliament." In Blyth vs Blyth, the wife left the husband in 1954 and lived with the co respondent until August, 1955, when she broke off the association.
In 1958 the husband and wife met by chance and sexual intercourse took place.
In December, 1962, the husband sought a divorce on the ground of his wife 's adultery.
During the pendency of the application section 1 of the Matrimonial Causes Act, 1963 came into force on July 31, 1963 which provided that any presumption of condonation which arises from the contin uance or resumption of marital intercourse may be rebutted on the part of a husband, as well as on the part a of wife, by evidence sufficient to negative the necessary intent.
The question arose whether this provision which came into force on July 31, 1963 can be applied in the instant case.
It was held that the husband 's evidence was admissible in that Section 1 of the Act of 1963 only altered the law as to the admissibility of evidence and the effect which the courts are to give to evidence, so that the rule against giving retrospective effect to Acts of Parliament did not apply.
In Herridge vs Herridge, similar ques tion arose, it was held that section 2(1) of the Act of 1963 was a procedural provision, for it dealt with the adducing of evidence in relation to an allegation of condonation in any trial after July 31, 1963; accordingly the subsection was applicable, even though the evidence related to events before that date, and the resumption of cohabitation in the present case did not amount, by reason of Section 2(1), to condonation.
On a conspectus of these decisions, this argument on behalf of 310 the appellant fails and as such the presumption arising under Section 113 A of The Evidence Act has been rightly taken into consideration by the Trial Court.
It has been urged by referring to the decision in Brij Lal vs Prem Chand & Anr., JT that where two views could reasonably be taken the appellate court should not interfere with the order of acquittal made by the Trial Court.
In the instant case on a proper consideration and weigh ing of the evidences the only reasonable view that can be taken is that the cruel behaviour and constant taunts and harassment caused by the accused persons while Ravinder Kaur, deceased was in her in laws house instigated her to commit suicide and in our considered opinion no other rea sonable view follows from a proper consideration and ap praisement of the evidences on record.
As such the decision cited above is not applicable to the facts and circumstances of the instant case.
For the reasons aforesaid we set aside the judgment and order of acquittal passed by the High Court and affirm the conviction of the accused of the offence under Section 306 I.P.C. and sentence imposed upon them by the Additional Sessions Judge, Amritsar.
The respondents will immediately surrender in the Court of Sessions Judge, Amritsar to serve out the remaining period of their sentence.
R.N.J. Appeals allowed.

summary:
Ravinder Kaur, daughter of Gurbachan Singh was married to Satpal Singh in November, 1962.
She died on 25th June, 1983 at about 2.30 P.M.
It was alleged, she committed sui cide because of the harassment, constant taunts and cruel behaviour of her in laws towards her and persistent demand for dowry and insinnuations that she was carrying an ille gitimate child.
It is alleged, provoked by the aforesaid conduct and behaviour she committed suicide.
The father in law, mother in law and the husband of the deceased have been the abetters of the crime and the deceased died of second to third degree burns.
The learned Additional Sessions Judge on the totality of evidence on record held that the accused were guilty of abetment to suicide and as such punishable under Section 306 of the I.P.C.
On appeal by the accused the High Court was of the view that the guilt of the accused had not been proved and as such acquitted them.
The complainant and father of the deceased aggrieved by the order of the High Court preferred these appeals by way of special leave to appeal.
This Court holding that the order of acquittal made by the High Court is not sustainable and affirming the conviction of the accused under section 306 of I.P.C. and the sentence imposed by the Additional Sessions Judge, Amritsar, HELD: (Per Sabyasachi Mukharji J. ) Abetment is a sepa rate and distinct offence provided the thing abetted is an offence.
Abetment does not involve the actual commission of the crime abetted; it is a crime apart.
[295G] Criminal charges must be brought home and proved beyond all reasonable doubts.
While civil case may be proved by mere preponderance of evidence, in criminal cases the prose cution must prove the 293 charge beyond reasonable doubt.
There must not be any 're asonable doubt ' of the guilt of the accused in respect of the particular offence charged.
The courts must strictly be satisfied that no innocent person innocent in the sense of not being guilty of the offence of which he is charged is convicted.
even at the risk of letting of some guilty per sons.
Even after the introduction of section 493A of the I.P.C. and section 113A of the Indian Evidence Act, the proof must be beyond any shadow of reasonable doubt.
There is a higher standard of proof in criminal cases than in civil cases, but there is no absolute standard in either of the cases.
[296C F] The standard adopted must be the standard adopted by a prudent man which, of course, may vary from case to case, circumstances to circumstances.
Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts of lingering suspicions and thereby destroy social defence.
Justice cannot be made sterile on the plea that it is better to let hundred guilty escape than punish an innocent.
Let ting guilty escape is not doing justice, according to law.
[296F] (Per B.C. Ray, J): Circumstantial evidence as well as the prosecution witnesses in the instant case clearly prove beyond doubt that the accused instigated and abetted Ravind er Kaur, deceased in the commission of the offence by com mitting suicide by burning herself.
[306G] The findings arrived at by the Trial Court after consid ering and weighing the entire evidences are unexceptional.
The findings arrived at by the High Court without consider ing properly the circumstantial evidence as well as the evidences of the prosecution witnesses cannot be sustained.
As such the findings of the High Court are liable to be reversed and set aside.
[306H; 307A] The suicide having been committed within a period of seven years from the date of her marriage in accordance with the provisions of Section 113A the Court may presume having regard to all the other circumstances of the case that such suicide had been abetted by the husband and his relations.
Therefore, the findings arrived at by the Additional Ses sions Judge are quite in accordance with the provisions of this section and the findings of the High Court that the accused persons could not be held to have instigated or abetted the commission of offence, is not sustainable in law.
[308C D] Section 113A of the Indian Evidence Act was inserted in the Statute Book by Act 46 of 1983 whereas the offence under Section 306, I.P.C. was committed on June, 23, 1983 i.e. prior to the insertion of the 294 said provisions in the Indian Evidence Act.
[308E] Bardendra Kumar Ghosh, Mancini vs Director of Public Prosecutions, Woolmington vs The Director of Public Prosecutions; , , Bater vs Bater, [1950] 2 AET 458 at 459.
Wazir Chand and Anr.
vs State of Haryana with State of Haryana vs Wazir Chand and Anr.
, [1989] I SCC 244, Sat Pal vs Delhi Administration, ; at 30.
Blyth vs Blyth, Herridge ' vs Herridge, [1966] I AER 93, Brij Lal vs Prem Chand & Anr.
, Halsbury 's Laws of England, 4th Edn.
& P. 574, refered to.


judgement:
vil Appeal No. 2043 (NM) of 1989.
From the Judgment and Order dated 28.11.1988 of the Customs.
Excise and Gold (Control) Appellate Tribunal, New Delhi in Appeal No. E.A. No. 3302/87A in Order No. 558/88 A. K. Parasaran, Attorney General, A.K. Ganguli and P. Parmeshwaran for the Appellant.
Soli J. Sorabji, section Ganesh, R. Narain, P.K. Ram and D.N. Mishra for the Respondent.
The following Judgments of the Court were delivered SABYASACHI MUKHARJI, J. This is an appeal under section 35L(b) of the Central Excises & Salt Act, 1944 (hereinafter called 'the Act ') from the judgment and order of the Cus toms, Excise & Gold (Control) Appellate Tribunal, New Delhi, (hereinafter called 'the Tribunal ') date 28th November, 1988.
M/s. Ponds India Ltd., (hereinafter referred to as 'the respon 482 dent ') used to manufacture talcum powder and face powder falling under tariff item 14F of the Central Excise Tariff, which are now under sub heading No. 3304.00 and were clear ing the same on payment of duty.
The assessee claimed deduc tion of cost of packing for transportation in respect of small packings of 15, 18, 20, 30, 40 & 100 gms.
powder ranging from 0.27 paise to 0.76 paise per dozen packings and the same was approved provisionally by the office of the Asstt.
Collector of Central Excise, Pondicherry.
The said approval was by an order dated 10th December, 1985.
It is alleged that it was later noticed that the small packs were first packed in dozen and then packed in secondary packings for easy transportation to the wholesale dealer, and it was found that the secondary packings were a must for delivery to the wholesale dealers, (emphasis indicated).
The Asstt.
Collector came to the conclusion that the amount as claimed by the respondent was not deductible as per this Court 's decisions in respect of postmanufacturing expenses.
In the premises, a show cause notice was issued to the respondent on October 30, 1986 and a demand was made for the differen tial duty on the cost of secondary packings which was stated to be Rs.3,46,151.92 for the period from December 2, 1985 to May 31, 1986.
The Asstt.
Collector by his order dated Febru ary 27, 1987 disallowed the respondent 's claim for exclusion of the cost of packing of transportation and thus rejected its claim.
He inter alia, observed as follows: "Therefore, I consider that the cost of sec ondary packings viz, card board cartons are rightly includible in the assessable value of items mentioned in PL No. 405/85 86 and 406/85 86 dated 10.12.85 under Section 4(4)(d)(i) of the , and the provisional assessments are to be finalised accordingly.
The assessees are also liable for payment of differential duty of Rs.3,46, 15 1.92 as demanded in the show cause notice cited under Section 11A of the read with rule 9B of the Central Excise Rules, 1944.
" There was an appeal to the Collector of Customs which was disposed of by an order dated 15th September, 1987.
It is necessary to set out the said observations of the Collec tor, in view of the contentions sought to be raised in these matters.
He, inter alia, observed as follows: "I have carefully considered the submission of the appellants made in their grounds of appeal and repeated during 483 personal hearing.
I find that the appellant 's claim is solely based on the judgment of the Hon 'ble Supreme Court in the case of Godfrey Philips and which has been followed by differ ent High Courts also from time to time.
First of all, it is necessary to consider whether the goods sold by the appellants viz. talcum powder and face powder required an outer carton packing for purpose of safety in trans it, which was the case before the Hon 'ble Supreme Court in case of M/s Godfrey Philips.
It cannot be disputed that talcum powder and face powder are packed either in metal con tainers or in plastic packing also of card board packings, which are inner cartons and contain one dozen.
The same are then put in the master carton for purpose of delivery to wholesale dealers.
In the Hon 'ble Supreme Court 's judgment, it is stated that the corru gated fibre board containers are employed only for purpose of avoiding damage or injury during transit.
But that is not as in the case of the appellants.
There is no likelihood of any damage or injury to the tins or the plas tic containers employed as a primary packing even if the goods are transported without the outer packing.
Unlike cigarettes, even damp ness is not going to affect the goods because they are hermetically sealed when put in the primary packing.
Therefore, the ratio of the judgment of Hon 'ble Justice Pathak which is quoted by the appellants is not available in the case of different goods which are not perishable aS cigarettes are.
The second point is that cigarettes are sold by carton of 200 cigarettes each, even in wholesale trade.
That is not the case in the appellant 's wholesale trade where the goods are sold by number of dozens and in some cases by numbers of tins or other packings which are primary packing (this was seen from the invoice produced during personal hearing).
Therefore, it cannot be said that the outer cartons are employed only for the purpose of avoiding damage or injury to the goods during transit.
In view thereof, the Hon 'ble Supreme Court 's decision in the case of MRF becomes applicable.
In case of talcum powder and face powder, it is necessary to put the dozen cartons inside the outer cartons, for giving delivery whether at the factory gate, or at a place of delivery other than the factory gate, because it is not convenient for the wholesale dealers to col lect the goods in dozens ' packing.
Wholesale trade is not generally in quantities less than a dozen.
Therefore, even while giving 484 delivery by the wholesale dealers, to other dealers, the outer carton is necessary as otherwise it will become difficult for him to give such delivery of 50 dozens or 100 dozens of the goods.
It is not disputed that the outer carton packing is the packing in which the goods are cleared from the factory, and are put into the stream of wholesale trade . . the ratio of the Godfrey Phi lips case is not applicable in the appellant 's case.
I find that the talcum powder and face powder are cleared in the master carton pack ing in the factory and it is in that packing the same are put in the stream of wholesale trade.
Further, I do not find that the master cartons are employed solely for purpose of protecting the goods during transit.
But the same are used for giving delivery in wholesale trade by the appellants.
Therefore, the order of the Asstt.
Collector, including the cost of master cartons in assessable value of the goods is correct and proper and needs no interference.
That being the only point for determination in appeal, the appeal is reject ed.
" There was an appeal to the Tribunal.
It was contended on behalf of the respondent herein before the Tribunal that the only question for determination was, whether the cost of third stage packing, the outer carton, intended for trans port can be included in the assessable value.
It was pleaded that all goods were cleared from the factory in the outer cartons with the smaller carton containing dozen containers of powder.
It was further contended that the facts of this case were same as in the case of cigarettes dealt with by this Court in Union of India & Ors.
vs Godfrey Philips India Ltd., ; It is contended that in view of the said decision of this Court, cost of cartons was included only if packing was necessary .for the sale of goods in the wholesale market.
It is submitted that it was not so necessary for sale.
The Tribunal noted that the question of inclusion of cost of secondary packing in Sec tion 4(4)(d)(i) of the Act, be it at the first stage, second or third stage of packing, has to be decided in each case depending upon the facts applicable.
The Tribunal found that so far as the smaller carton is concerned, the inclusion of the cost of the same in the assessable value was not in dispute and the appellants have conceded that the value is includible following the ratio of the judgment of this Court.
It also noted that it was nobody 's case that the number of tins contained in the smaller carton constitute retail packing rather than wholesale packing.
The Tribunal felt that the only question to be decided was, whether the goods packed in the smaller cartons could be sold to the wholesale buyer in the course of wholesale trade at the 485 factory gate without the outer carton in which the number of smaller cartons were packed.
It is important to emphasise this question in view of the contentions raised in this appeal.
The case of the revenue was that since the goods were sold in lots packed in the bigger outer cartons, the value of the same should be included for the purpose of assessment.
According to the Tribunal, there was however, no plea, raised by the revenue as to the capability or other wise of the sale of powder tins in the wholesale market in the smaller cartons described as the inner outer.
The Tribu nal noted that in the facts of the instant case, the talcum powder packed in tin containers is in no danger so far as the contamination of the powder is concerned and the pack ing, it was pleaded before them, was required for the pur pose of preventing damage to the tin containers which were sophisticated in nature taking into account the product being marketed, and it recorded that inner cartons contain 12 tins or so which is a wholesale packing and it was not made out that the smaller carton was not sufficient to protect the tins or that the sale could be made in the course of wholesale trade at the factory gate.
There was no plea on record that the smaller carton is flimsy and not sufficient for the purpose of marketing the tins and their storage in the course of wholesale trade.
the Tribunal referred to the observations of this Court in Union of India & Ors.
vs Bombay Tyre International Ltd., ; , and following the same came to the conclusion that the cost of outer or bigger cartons in which the smaller cartons containing powder tins are packed, is not includible in the assessable value as the delivery of the goods can be taken in smaller cartons at the factory gate by a buyer in the course of wholesale trade.
The outer cartons were held to be for the purpose of transport of the goods and were not required for the sale of the goods at the factory gate.
The revenue seeks to challenge this basis.
What is to be included in the value, has to be deter mined in terms of section 4(4)(d)(i) of the Act.
The ques tion has been examined from all points of views by this Court.
The question of secondary packing was examined by this Court in Bombay Tyres International 's case (supra).
There, this Court observed that for the purpose of determining the 'value ', broadly speaking both old section 4(a) and the new section 4(1)(a)speak of the price for sale in the course of whole sale trade of an article for delivery at the time and place of removal, namely, the factory gate.
Where the price con templated under the old section 4(a) or under new section 4(1)(a) is not ascertainable, the price is determined under the old section 4(b) or the new section 4(1)(b).
Now, the price of an article is related to its value (using this 486 term in a general sense) and into that value have poured several components, including those which have enriched its value and given to the article its marketability in the trade.
Therefore, the expenses incurred on account of the several factors which have contributed to its value upto the date of sale, which apparently would be the date of deliv ery, are liable to be included.
Consequently, where the sale is effected at the factory gate, expenses incurred by the assessee upto the date of delivery on account of storage charges, outward handling charges, interest on inventories (stocks carried by the manufacturer after clearance), charges for other services after delivery to the buyer, namely, after sales service and marketing and selling organ isation expenses including advertisement expenses marketing and selling organisation expenses and after sales service promote the marketability of the article and enter into its value in the trade.
Where the sale in the course of whole sale trade is effected by the assessee through its sales organisation at a place or places outside the factory gate, the expenses incurred by the assessee upto the date of delivery under the aforesaid heads cannot, on the same grounds, be deducted.
This Court further observed that the new section 4(4)(d)(i) of the Act has made express provision for including the cost of packing in the determination of 'va lue ' for the purpose of excise duty.
The packing, of which the cost is included, is the packing in which the goods are wrapped, contained or wound when the goods are delivered at the time of removal, (emphasis supplied).
Therefore, the cost which is incurred for making the goods available in the wholesale market and in which the goods are generally avail able in such market, would be the 'value ' which is includi ble under section 4(4)(d)(i) of the Act.
There is no dispute that the cost of primary packing, that is to say, the packing in which the article is contained and in which it is made marketable for the ordinary consumer, must be regarded as failing within section 4(4)(d)(i) of the Act.
There is often, as in this case, secondary packing which consists of larger cartons in which a standard number of primary cartons (in the sense mentioned earlier) are packed.
The large cartons may be packed into even larger cartons for facilitating the easier transport of the goods by the wholesale dealer.
The question with which this Court was concerned in that case was: is all the packing, no matter to what degree, in which the wholesale dealer takes delivery of the goods to be considered for including the cost thereof in the 'value '? Or does the law require a line to be drawn somewhere? This Court observed that one must remember that while packing is necessary to make the excisable article, marketable, the statutory provision calls for strict construction because the levy is sought to be extended beyond the manufactured article itself.
Therefore, this Court observed that the 487 degree of secondary packing which is necessary for putting the excisable article in the condition in which it is gener ally sold in the wholesale market at the factory gate is the degree of packing whose cost can be included in the 'value ' of the article for the purpose of the excise duty.
To that extent, this Court observed, the cost of secondary packing cannot be deducted from the wholesale cash price of the exciseable article at the factory gate.
It was further held therein that if any special secondary packing is provided by the assessee at the instance of a wholesale buyer which is not generally provided as a normal feature of the wholesale trade, the cost of the such packing shall be deducted from the wholesale cash price.
Therefore, it is clear by virtue of that decision that the cost of 'packing which is neces sary to make the exciseable article marketable, that is to say, in which it is generally sold in the wholesale market at the factory gate ', is to be included.
Therefore, accord ing to the said decision and by virtue of the terms of the section, the cost of that much of secondary packing, which is necessary only to put the exciseable good in condition in which it is generally sold in wholesale market is the degree of packing which cost can be included and not beyond that.
In the application of this principle, about which there is no dispute, there has been some divergence of the empha sis put on by what criterion that cost should be determined.
This question came up for consideration in Union of India vs Godfrey Philips India Ltd., [1985] Supp.
3 SCR 123.
There, Chief Justice Bhagwati observed that whenever a question arises whether the cost of any particular kind of secondary packing is liable to be included in the value of the arti cle, ' the question to be asked is does the packed condition in which the article is generally sold in the wholesale market at the factory gate include such secondary packing? The learned Chief Justice observed that if it does, it would be liable to be included in the value of the article for the purpose of excise duty.
It, therefore, followed that if the packed condition in which the cigarettes manufactured by the respondents were generally sold in that case in the whole sale market at the factory gate included packing in corru gated fibre board containers, the cost of such corrugated fibre board containers was liable to be included in the value of the cigarettes for the purpose of excise duty.
The learned Chief Justice further observed that the condition for applicability of the inclusive definition of "value" in section 4(4)(d)(i) of the act is that the goods are delivered at the time of removal "in a packed condition" and where this condition is satisfied, the "value" of the goods would include "the cost of such packing" and "such packing" must obviously mean the packing in which the goods are when they are 488 delivered at the time of removal.
Therefore, according to the learned Chief Justice, the question to be asked is what is the packed condition in which the goods are when deliv ered at the time of removal? Whatever is the packing of the goods at the time when they are delivered at the time of removal, the cost of such packing would be liable to be included in the 'value ' of the goods.
The Explanation to section 4(4)(d)(i) of the Act provides an exclusive definition of the term "packing" and it includes not only outer packing but also what may be called inner packing.
The question that the Chief Justice posed was not for what purpose a particu lar kind of packing was done.
The test was whether a partic ular kind of packing was done in order to put the goods in the condition in which these were generally sold in the wholesale market at the factory gate and if these were generally sold in the wholesale market at the factory gate in a certain packed condition, whatever may be the reason for such packing, the cost of such packing would be includi ble in the value of the goods for assessment to excise duty.
Pathak, J. (as the learned Chief Justice was then) and Sen, J. gave separate judgments in the aforesaid case.
Setting out the passage from the Bombay Tyres International 's case (supra), which is referred to hereinbefore, Pathak, J. posed the question: is the packing necessary for putting the cigarettes in the condition in which they are generally sold in the wholesale market at the factory gate? And answering that question, Pathak, J. held it is not.
It is true that there is a divergence between the views of Bhagwati C J, Pathak, J and Sen, J.
But in my opinion, there is a unanimi ty in the test that is to be applied, that is to say, that much of the cost would be included only which is necessary for putting the article in the condition in which it is generally sold in the wholesale market.
The principle behind this is in order for manufacture to be taxable, article must become goods.
In order to become goods, these must come to the market or be capable of coming to the market as definite and identifiable goods.
So whatever expenses are necessary for making that possible, that much of the cost would be included in the "value".
But what is subsequent to that, that is to say, any cost merely facilitating transport or merely ensuring security in transit are costs which are post manufacture, i.e. after articles have become goods as a result of manufacture and are capable of becoming manufac tured and thereafter dealt with.
This, in my opinion, is the true test and read in that light, I do not find that there is really any divergence of opinion between Bhagwati, C J, Pathak, J. and Sen, J. of course, there is divergence of emphasis in the approach in which the question has to be looked into.
This aspect of the matter was also dealt with by this Court in M/s Hindustan Polymers vs The Collector of Central Excise, Appeals Nos.
4339 41 of 1986) judgment in 489 which was delivered on 23rd August, 1989, where one of us (Sabyasachi Mukharji, J) after analysing these several cases of this Court observed that: "In order, therefore, to be manufacture, there must be activity which brings transformation to the article in such a manner that different and distinct article comes into being which is known as such in the market.
If in order to be able to put it in the market, a certain amount of packing or user of containers or wrappers or putting them either in drums or containers, are required, then the value or the cost of such wrapper or container or drum must be included in the assessable value and if the price at which the goods are sold does not include that value then it must be so included by the very force of the terms of the section." Therefore, in all cases, according to that decision, the question must be examined whether packing, and if so, what packing is necessary to make the article marketable as such or could these goods be sold without the containers, drums or packing? This Court in that case took into account the fact that 90% of the goods were delivered in tankers belong ing to the assessee and only 10% of the goods were in packed condition at the time of removal.
This was taken as an indicia of in what condition of packing the goods are sold.
As mentioned hereinbefore, that principle has been clearly laid down in the Bombay Tyres International 's case (supra) in the sense that only that degree of secondary packing which is necessary for putting the assessable article in the condition in which it is generally sold in the wholesale market should be included in the 'value ' of the article.
The majority judgment in Godfrey Philips ' case (supra) also clarified this position.
It is true that Pathak, J. and Sen, J. made it clear that secondary packing does for the purpose of "facilitating transport and smooth transit of the goods to be delivered to the buyer in the wholesale trade would not be included in the value".
Chief Justice Bhagwati held in the said case that the fibre board containers in which the cigarettes were packed fell within the definition of 'packing ' in the Explanation to section 4(4)(d)(i) and if these formed part of the packing in which the goods were packed when delivered at the time of removal, then such cost of corrugated fibre board containers would be liable to be included in the value of cigarettes.
But Chief Justice emphasised that the test to determine whether the cost of any particular kind of secondary packing is liable to be included in the value of the article is whether a particular kind of packing is done in order to put the goods in the condition in which they 490 are generally sold in the wholesale market at the factory gate.
In my opinion, the views expressed by the majority of the Judges in Godfrey Philips ' case (supra) were in conso nance with the view of the this Court in the Bombay Tyres International 's case (supra).
The question is not for what purpose a particular kind of packing is done but the test is whether a particular packing is done in order to put the goods in the condition in which they are generally sold in the wholesale market at the factory gate and if they are generally sold in the wholesale market at the factory gate in certain packed condition, whatever may be the reason for such packing, the cost of such packing would be includible in the value of the goods for assessment to excise duty.
In the present case, it has been factually found as indicated hereinbefore, by the Collector that the talcum powder and face powder are packed either in metal containers or in plastic containers, and thereafter they are put in dozen packing also of cardboard packings, which are inner cartons, and contain one dozen.
The same are then put in the master carton for purpose of delivery to wholesale dealers.
But in Godfrey Philips ' case (supra), the corrugated fibre board containers were employed for the purpose of avoiding damage or injury during transit.
On the other hand, in this case, it was found that there was no damage or injury to the tins or plastic containers employed as a primary packing even if the goods are transported without the outer packing.
The second point is that cigarettes are sold in cartons of 200 cigarettes each, even in wholesale trade.
That is not the case in the appellants ' wholesale trade herein where the goods are sold by number of dozens and in some cases by numbers of tins or other packings which are primary packing.
Therefore, it cannot be said that the outer cartons are employed only for the purpose of avoiding damage or injury to the goods during transit.
But it may be indicative of the fact that the goods are so sold.
It may be mentioned in this connection that our atten tion was drawn to the unanimous order of three Judge Bench presided over by the Chief Justice Bhagwati of this Court in Civil Appeals Nos.
642 45 of 1982 in Geep Industrial Syndi cate Ltd. vs The Union of India & Ors.
There, the question that arose for determination was whether the cost of second ary packing in wooden boxes was liable to be added in deter mination of the value of batteries and torches for the purpose of excise duty.
The torches and batteries manufac tured by the appellants were first packed in polythene boxes and then these polythene boxes were placed in cardboard cartons.
There were certain varieties of batteries which were packed directly in cardboard cartons.
There was 491 no doubt that packing in polythene bags and cardboard car tons was includible in the determination of the value of batteries and torches for the purpose of levy of excise duty.
The question was whether the wooden boxes in which the cardboard cartons were placed at the time of delivery at the factory gate was to be includible in the value.
There was some dispute between the parties whether the cardboard cartons were packed in wooden boxes in all cases.
It was stated that when they were delivered in the course of the wholesale trade at the factory gate, they were not packed in wooden boxes as a matter of course but they were packed in wooden boxes only in those cases where delivery was taken by wholesale dealers outside the city of Allahabad in that case.
This Court found that it was not necessary to deter mine the disputed question of fact.
It was held that even if the cardboard cartons were packed in wooden boxes in all cases, it was clear that the cost of such secondary packing in wooden boxes was not includible in determination of the value of batteries and torches.
This Court agreed with the Godfrey Philips 's case (supra) that corrugated fibreboard containers were used as secondary packing only in order to ensure cartons or outers against injury or damage during transport and that it was not necessary for putting the cigarettes in the corrugated fibreboard containers for their sale in the wholesale market at the factory gate and the cost of such secondary packing was therefore not liable to be included in determination of the value of the cigarettes for the purpose of excise duty.
The Tribunal in the instant case observed as under: "We observe that in the facts of the present case, the rationale of the judgment of the Hon 'ble Supreme Court above is squarely ap plicable.
We hold following with respect to the ratio of the decision above that the cost of the outer or bigger carton in which the small cartons containing the powder tins are packed, is not includable in the assessable value as the delivery of the goods can be taken in smaller cartons at the factory gate by a buyer in the course of wholesale trade.
The outer carton have to be held to be for the purpose of transport of the goods and are not required for the sale of the goods at the factory gate." (emphasis supplied).
In my opinion, the correct position seems to be that the cost of that much of packings, be they primary or secondary, which are required to make the articles marketable would be includible in the 492 value.
How much packing is necessary to make the goods marketable is a question of fact to be determined by appli cation of the correct approach.
Packing, which is primarily done or mainly done for protecting the goods, and not for making the goods marketable should not be included.
In the instant case, therefore, could the powder be sold in smaller cartons at the wholesale market? The fact that these were usually sold in the wholesale market would be a good pointer for this question.
Having considered the order of the Tribu nal, which I have set out hereinbefore, I am of the opinion that the Tribunal was in error in approaching the problem before it by looking at the question whether the goods packed in the smaller cartons could be sold in a wholesale market in the course of wholesale trade at the factory gate without the outer cartons in which the smaller cartons are packed.
The question is not whether these goods could be so sold, but the question is whether these goods are so sold usually and as such used to become marketable in such man ner.
In my opinion, there has been a misdirection by the Tribunal on this aspect of the matter.
If the above be the true test, then the judgment and the order of the Tribunal must be set aside and the appeal must be allowed and the matter remanded back to the Tribunal to determine afresh this question from the stand point indicated above.
I accordingly allow the appeal, set aside the judgment and order of the Tribunal and remand the matter back to the Tribunal to decide it in accordance with the aforesaid directions.
In the facts and the circumstances of the case, there will be no orders as to costs.
RANGANATHAN, J. I agree.
But, as it has been contended by Sri Soli Sorabjee that the Tribunal 's conclusion in this case has to be upheld straightaway in view of the decision of this Court in Godfrey Philips, [1985] Suppl.
3 S.C.R. 123 and Geep, (C.A. Nos.
642 45 of 1982, I should like to add a few words.
section 4(4)(d)(i) of the Act lays down that where goods are delivered at the factory gate in a packed condition, the cost of the packing should be included in the assessable value.
The clause makes no distinction between primary packing and secondary or further subsequent packing.
Howev er, a restriction was read into the wide language of the clause by this Court in the Bombay Tyre International case; , Posing the question whether the cost of all packing, no matter to what degree, in which the whole sale dealer takes delivery of the goods, should be included in determining the assessable value or a line should be drawn somewhere, the Court indicated that while the 493 cost of primary packing was indisputably includible, the position would be different in regard to secondary packing.
The Court observed that "the degree of secondary packing which is necessary for putting the excisable article in the condition in which it is generally sold in the wholesale market at the factory gate, is the degree of packing whose cost can be included in the value of the article for the purpose of the excise levy.
"If any special secondary pack ing is provided by the assessee", the Court observed, "at the instance of a wholesale buyer which is not generally provided as a normal feature of the wholesale trade, the cost of such packing shall be deducted from the wholesale cash price." The exclusion indicated by these words is very limited and clearly does not extend to the cost of any packing in which the goods are generally sold by the manu facturer in the wholesale market.
However, the reference in Bombay Tyres, (supra) to secondary packing "which is necessary" led to a further refinement in Godfrey Philips and Geep.
In these cases, the conclusion of the Court was that the cost of packing of the goods in "corrugated fibre containers" and "wooden boxes" respectively was not includible in arriving at the assessa ble value.
Had the matter been free from authority, one might have been inclined to agree with the reasoning of Bhagwati, C.J., that the condition of packing in which the goods are usually placed in the wholesale market would be conclusive of the issue and that, the condition in which the goods are generally placed in the wholesale market notwith standing, a theoretical enquiry by the excise authorities into the purpose of such packing or as to whether such packing was "necessary" or not would be totally uncalled for.
Indeed, this was the test applied by one of us (Muk harji, J.) in Hindustan Polymers for holding that the cost of drums for packing fusel oil was not includible in the assessable value because the goods viz. fusel oil was gener ally sold in the wholesale market in the raw state, without any packing whatever, leaving it to the wholesale consumer to draw it from the manufacturer 's tanks into his trucks, containers or drums.
It will be appreciated that if this position were not to be accepted and an enquiry were to be made as to whether. such general packing is "necessary" or not, such an investigation might operate both ways.
For example, on that basis, it could be argued, in the Hindustan Polymers case, that though the goods were actually sold wholesale in a free condition, a container is "necessary" from a theoretical stand point to place the fluid goods on the market and that, therefore, the cost of the drums would have to be included in the assessable value.
But this was not the view taken by this Court.
There is, therefore, much to be said for the view that, in judging the condition of packing whose cost is to be included in the 494 assessable value, one should go by the conduct of the par ties and the nature of the packing in which the goods gener ally are not, can be placed in the wholesale market.
It is, however, urged for the respondent that such an enquiry has been held necessary by Godfrey Philips.
But, as pointed out by my learned brother, even the majority deci sion in that case does not go to the length suggested on behalf of the appellant and justify an investigation as to the state of packing in which the goods could be placed in the market.
That would only be an exercise in theoretical speculation.
On that basis, for instance, in the present case, it could be said, for the same reasons as have been given by the Tribunal, that the goods could be collected from the factory even in units of tin containers, leaving it free to the purchasers to make their own arrangements to pack them in cardboard cartons to convey them to their place of business.
This would render even the cost of the first outer packing of cardboard containers irrelevant in the determination of the assessable value.
That was not the contention even of the respondents and indeed, if carried to its logical conclusion, would render the cost of all pack ing, other than primary packing, excludible from the assess able value.
It seems to me, therefore, that what is to be really seen is this: What is the condition of packing con sidered by the manufacturers, having regard to the nature of the business, the type of goods concerned, the unit of sale in the wholesale market and other relevant considerations, to be generally necessary for placing the goods for sale in the wholesale market at the factory gate.
In Godfrey Philips and Geep, this Court was concerned with a special type of packing which seemed intended more to protect the packed goods against injury or damage rather than to enable it being placed on the market.
Indeed, in Godfrey Philips, this was a factual position that had been accepted by the depart mental authorities earlier for a period of a little over six years which they later wanted to go back upon.
Can the same be said of the goods and the packing with which we are concerned here is a question to be decided on the facts, as the appellate controller did and not as a proposition of law settled by, or the automatic consequence of the decision in, the Godfrey Philips case, as seems to have been done by the Tribunal and as is being argued for the respondents.
I would, therefore, agree that the matter should be remanded to be reconsidered in the light of our observations.
Y. Lal Appeals allowed.

dataset_name: IN-Abs

summary:
The Respondent assessee used to manufacture talcum powder and face powder and were clearing the same on payment of excise duty.
The assessee claimed deduction of cost of packing for transportation in respect of small packings of powder ranging from 0.27 paise to 0.76 paise per dozen packings and the same was first approved by the Department but later the Department having noticed that the small packs were first packed in dozen, and thereafter packed in second ary packings for easy transportation to the wholesale deal er, disallowed the claim of deduction.
The Assistant Collector in view of this Court 's decision in postmanufacturing expenses cases took the view that the amount claimed by the Respondent was not deductible and accordingly issued a show cause notice to the Respondent raising a demand on the respondent to pay the differential duty on the cost of secondary packings which was stated to be Rs.3,46,151.92 P. for the period from 2.12.85 to 31.5.1986.
The Asstt Collector by his order dated 27.2.87 disallowed the Respondent 's claim for exclusion of the cost of packing for transportation and thus rejected the claim.
The Respondent preferred an appeal to the Collector of Customs but did not succeed and thus appealed to the Cus toms, Excise and (;old (Control) Tribunal.
The Respondent relied on the decision of this Court in Union of India vs Godfrey Philips India Ltd.; , and contended that in view of the decision of this Court, the cost of third stage packing, the outer cartons, intended for transport could be included in the assessable value only if packing was necessary for the sale of goods in the wholesale market.
The Tribunal however relying on the decision of this Court in Union of India & Ors.
vs Bombay Tyre International Ltd., ; held that the Cost of outer or bigger cartons in which the smaller cartons containing powder tins are 480 packed is not includible in the assessable value as the delivery of the goods can be taken in smaller cartons at the factory gate by a buyer in the course of wholesale trade.
Being aggrieved by that decision the Revenue came up in appeal to this Court under Section 35L(b) of the Act.
Allowing the appeal and remanding the case to the Tribu nal with directions, this Court, HELD: (Per Sabyasachi Mukharji, J. ) What is to be included in the value has to be determined in terms of Section 4(4)(d)(i) of the Act.
[485F] The question is not for what purpose a particular kind of packing is done but the test is whether a particular packing is one in order to put the goods in the condition in which they are generally sold in the wholesale market at the factory gate and if they are generally sold in the wholesale market at the factory gate in a certain packed condition, whatever may be the reason for such packing, the cost of such packing would be includible in the value of the goods for assessment to excise duty.
[490B C] In the present case, it has been factually found by the Collector that the talcum powder and face powder are packed either in metal containers or in plastic containers, and thereafter they are put in dozen packing also of cardboard packings, which are inner cartons, and contain one dozen.
The same are then put in the master carton for purpose of delivery to wholesale dealers.
[490C D] The correct position seems to be that the cost of that much of packings, be they primary or secondary, which are required to make the articles marketable would be includible in the value.
How much packing is necessary to make the goods marketable is a question of fact to be determined by application of the correct approach.
Packing which is pri marily done or mainly done for protecting the goods, and not for making the goods marketable should not be included.
[491H; 492A] The Tribunal was in error in approaching the problem before it by looking at the question whether the goods packed in the smaller cartons could be sold in a wholesale market in the course of wholesale trade at the factory gate without the outer cartons in which the smaller 481 cartons are packed.
The question is not whether these goods could be so sold but the question is whether these goods are so sold usually and as such used to become marketable in such manner.
[492B C] (Per section Ranganathan, J.) Section 4(4)(d)(i) of the Act lays down that where goods are delivered by the factory gate in a packed condition, the cost of the packing should be included in the assessable value.
The clause makes no distinction between primary and secondary packing or further subsequent packing.
[492G] There is therefore, much to be said for the view that, in judging the condition of packing whose cost is to be included in the assessable value, one should go by the conduct of the parties and the nature of the packing in which the goods generally are not, can be placed in the wholesale market.
[493H; 494A] M/s. Hindustan Polymers vs The Collector of Central Excise, case, referred to.