judgement:
ICTION: Criminal Appeal No. 778 of 1979.
From the Judgment and Order dated 21.6.1979 of the Punjab and Haryana High Court in Crl.
A. Nos. 120 and 163 of 1977.
Frank Anthony and Sushil Kumar for the Appellants.
R.S. Suri for the Respondent.
The Judgment of the Court was delivered by AHMADI, J.
Harnam Singh, Sarpanch of Village Naushera, was murdered on the night between 6th June, 1976 while he was sleeping at his tubewell to guard the wheat bags stacked in his filed.
PW 1 Dr. Malhotra who conducted the autopsy at about 4.15 p.m. on 7th June, 1976 found four injuries on the person of the deceased, namely, (i) a lacerated penetrating circular would, 1/4 ' ' in diameter, with black margins inverted on right middle back, 3 ' 'from mid line and 9 ' ' from iliac crest, (ii) a vertical bruise 6 ' ' X 1/2 ' ' on the front of right forearm running downwards and outwards, (iii) beuises in the area of 5 ' ' X 1 ' ' on the front and inner aspect of right upper arm above the elbow joint, running forwards, outwards and downwards and (iv) an abrasion 5 ' ' X 1 ' ' on the right side of the chest, 5 ' ' from mid line and 3 ' ' from the clavicle running downward and inward.
On opening the first would it was found that the 8th and 9th ribs were fractured posteriorly; the diaphram and superior surface on the left lobe of the liver were lacerated; the heart was lacerated into pieces and the third, fourth, fifth, sixth and seventh ribs of the left side were broken anteriorly.
The exit wound was 8 ' ' X 4 ' ' on the left upper chest just 969 above the nipple.
Death was on account of shock and haemorrhage resulting from the bullet injury.
This injury No. 1 was stated to be sufficient in the ordinary course of nature to cause death.
The other injuries were possible by a hard and blunt weapon and were simple in nature.
Death was instantaneous.
Both the Courts below, therefore, rightly concluded that death was homicidal.
The prosecution case, briefly stated, was that the appellant and the deceased who were neighbours in the village had quarrelled over the passage of sullage water a few months before the incident.
The appellants had diverted their sullage water towards the house of the deceased and the latter had protested and frustrated their effort.
On account of this obstruction the sullage water collected in a pool near the house of the appellants which infuriated them.
On account of this incident as well as past election rivalries the relations between the appellants and the deceased were so soured that on the night of the incident the three appellants went armed with weapons to the tubewell of the deceased where the latter was sleeping to guard his wheat stacked in bags.
Gurmej Singh was armed with a rifle, Gian Singh was armed with Gandasi and Bur Singh carried a Dang.
The prosecution alleged that Gurmej Singh had concealed the rifle in the Chadar wrapped around him and on reaching the place where the deceased was sleeping on a cot he threw off the chadar and shot the deceased at point blank range.
The incident was witnessed by three persons.
PW2 Swaran Singh, nephew of the deceased, PW3 Fauja Singh, a close relative of the deceased and one Narain Singh (not examined) who too were sleeping in the field.
Actually Narain Singh was sleeping near the deceased whereas PWs 2 and 3 were sleeping at a distance of approximately 10/15 karams therefrom.
the prosecution did not examine Narain Singh on the plea that he was won over.
The evidence of PWs 2 and 3 shows that they got up on hearing some movement in the filed and they saw the three appellants near the cot of the deceased.
They were able to identify them because of the existence of an electric light at the tubewell.
According to them on reaching near the cot of the deceased Gurmej Singh fired a shot from close range at the deceased who was still sleeping in his cot.
Thereafter Gian Singh struck a Gandasi blow on the chest of the deceased followed by a Dang blow on the right arm by Bur Singh.
Gurmej Singh is stated to have warned others not to get up unless they wanted to be killed.
On account of this warning PWs 2 and 3 did not run to the rescue of the deceased for fear of being killed.
After making sure that their victim was dead, the appellants fled away.
PW 2 Swaran Singh then went to the house of his father PW4 Waryam Singh and narrated the incident.
PW2 accom 970 panied by Gurdas Singh, Lambardar, then went to the Police Station at about 8.30 a.m. on 7th June, 1976 and lodged the first information report.
PW8 Sub Inspector Kartar Chand Singh then reached the place of occurence, held an inquest on the dead body of the deceased, lifted the blood stained earth from the place of occurrence and then recorded the statements of PW3 Fauja Singh, Narain Singh and others.
Gian Singh and Bur Singh were arrested on 2nd July, 1976 while Gurmej Singh was arrested on 7th July, 1976.
It appears that two more persons, namely, Sucha Singh and Santokh Singh (original accused Nos. 1 and 4, respectively) were also shown as arrested for the commission of this crime on 2nd July.
1976 although their names were not disclosed in the first information report.
The allegation of the prosecution witnesses PWs 2, 3 and 4 is that these two persons were falsely involved as PW8 Sub Inspector Kartar Chand Singh wanted to save his skin as he was found to have illegally and wrongly detained them at the police station.
We will deal with this aspect later but suffice it to say that both the courts below have come to the conclusion that they were falsely involved in the commission of this crime by fabricating statements of PWs 2 and 3 under Section 161 of Criminal Procedure Code (`the Code ' for short).
In view of this conclusion reached by both the courts, the said two persons were acquitted.
No appeal was preferred challenging their acquittal.
The Trial Court convicted Gurmej Singh under section 302 IPC and the other two under Section 302/34 IPC and sentenced all the three to imprisonment for life and also imposed token fines.
Against their conviction the present three appellants filed an appeal which was dismissed by a Division Bench of the High Court on 21st June, 1979.
It is against this finding of guilt recorded by both the courts below that the present three appellants have preferred this appeal by special leave.
Mr. Frank Anthony, counsel for the appellants, submitted that there were three eye witnesses to the incident even according to the prosecution case and out of them Narain Singh was nearest to the deceased when the incident occurred on that dark night in the field.
This Narain Singh alone was an independent witness and yet the prosecution did not examine him on the specious plea that he was won over.
The other two eye witnesses.
PWs 2 and 3, are admittedly close relatives of the deceased and out of them the presence of PW3 is extremely doubtful being a resident of a nearby village.
At any rate he can be termed as a chance witness and in all probability he came to the filed from his village after learning about the incident.
Besides, since the incident occurred on a dark night and the evidence that the electric light at the tubewell was on at that hour is extremely doubtful, it is 971 difficult to believe that PWs 2 and 3 saw the actual incident from a distance of 10/15 karams and were able to identify the assailants.
Said counsel, the conduct of both these eye witnesses is not normal since they did not raise an alarm even though they depose to have woken up on hearing some movement in the field.
They could have cautioned the deceased and Narain Singh about the entry of third parties in the field since they were there precisely for that purpose.
They have tried to explain their unnatural conduct on the plea that the appellant Gurmej Singh had raised a `lalkara ' that anyone trying to come near the deceased would be killed.
But this `lalkara ' was after the event and not before, while the conduct of the eye witnesses before the in incident is unnatural if they had actually got up on hearing some movement of third parties in the field.
Else it must be accepted that they got up on hearing the gun fire and before they could go near the deceased, the assailants had fled away.
In this situation the evidence of Narain Singh assumes importance as he was most competent to unfold the true version regarding the incident, being just by the side of the deceased at the time of the incident.
The failure to call him to the witness stand was, counsel submitted, unfair to the defence as it deprived the defence of the opportunity to elicit the true version regarding the offence.
Lastly he submitted that the prosecution has not place any material on record nor has it stated any reason in its written report in support of its conclusion that he had been won over.
In any event, it is hazardous to base a conviction on the highly interested testimony of PWs 2 and 3, particularly when the motive alleged by the prosecution for implicating the appellants is very weak.
Besides the evidence of PWs2 and 3 suffers from several infirmities.
Counsel for the State submitted that this Court should not disturb the concurrent findings of fact recorded by the two courts and the reliance placed by them on the two eye witnesses whose evidence is corroborated by PW4.
He pointed out that both the courts below had recorded a positive finding that the electric light was on at the tubewell which provided sufficient light to enable PWs 2 and 3 to identify the assailants even from a distance of 10/15 karams.
The assailants were not strangers to PWs 2 and 3 and, therefore, their evidence on the question of identity cannot be doubted.
The prosecution had stated the reason for not examining Narain Singh and if the defence had any doubt in that behalf it could have requested the court to examine the said witness as a court witness rather than keeping silent and then raising a belated grievance.
In short he supported the line of reasoning adopted by the two courts below.
972 It must be conceded at the outset that the prosecution se hinges on the credibility of PWs2 and 3.
PW2 is the nephew of the deceased.
PW3 is the maternal cousin of PW2 and ws closely related to the deceased as the latter 's daughter Piari was his younger brother 's wife.
PW3 is a resident of a neighbouring village lying at a distance of three miles from the village of the deceased.
Ordinarily, therefore, PW3 would not be expected to be present at the scene of occurrence but according to him he had gone to see P.W. 2 and after having his meals both he and PW 2 had gone to the tubewell of the deceased.
PW 3 claims that he woke up at about 3.00 a.m. as he was to return to his village when he saw the three persons and identified them as the appellants.
He does not speak of any `lalkara ' or to have got up on hearing footsteps as desposed by PW2 but he too did not raise any alarm or try to caution the deceased and Narain Singh who were sleeping 10/15 karams away.
After the incident he went to the village to inform his younger brother 's wife about the death of her father and returned with her to the village by which time the police has arrived.
In these circumstances the question is whether absolute reliance can be placed on PWs 2 and 3 regarding the involvement of the appellants? Mr. Frank Anthony, the learned counsel for the appellants, firstly submitted that the incident occurred on a dark night in an open field at about 3.00 a.m. when as shown by the defence through the evidence of two independent witnesses DW 1 and DW 2 the electricity had tripped and, therefore, the prosecution witnesses could not have seen the assailants from a distance of about 10/15 karams.
He, therefore, submitted that the claim of the prosecution witnesses that they had identified the assailants on account of the presence of electric light at the tubewell is clearly belied by the evidence of DWs 1 and 2.
DW 1 Kewal Krishan.
Sub Station Attendant, Punjab State Electricity Board, Gurdaspur, stated that on 7th June, 1976 the electric current had broken down at about 2.35 a.m. and was not restored till 5.50 a.m.
In support of this statement he produced certain entries from the register but on cross examination he admitted that the log sheets were not available and it was noticed that the register was not properly bound and the threads of the previous binding were broken and fresh binding was done raising a suspicion about the register having been tampered with.
DW2 Inder Pal Singh, SDO, Subarban Gurdaspur, merely reiterated what DW1 had stated.
The courts below suspected the correctness of the entry in the register.
But that apart, the High Court was right in saying that the time of 3.00 a.m. was a mere estimate of eye witnesses PWs 2 and 3 and neither of them had verified the time with any wrist watch so as to vouch for its accuracy.
PW 2 had 973 categorically stated that a 200 watt bulb was on at the time when the incident in question occurred.
He does not depose to have checked the time with his wrist watch or with the wrist watch of PW3.
Infact PW3 has deposed that he was not wearing a wrist watch at the time of the incident.
Therefore, the estimate of time given by PWs 2 and 3 cannot be taken as accurate and it is quite possible that the incident occurred before the tripping of supply of electric energy took place.
We are, therefore, not impressed by the contention of Mr. Anthony that the evidence of DWs 1 and 2 belies the version of PWs 2 and 3 that they were able to identify the appellants because of existence electric light at the tubewell.
Besides, it must be remembered that the appellants were no strangers to these prosecution witnesses to make their identification by them difficult.
It was next submitted by Mr. Anthony that Narain Singh, an independent witness, was deliberately dropped for fear that he would reveal the truth and expose the falsehood of PWs 2 and 3.
He submitted, relying on the decision of this Court in Sahaj Ram vs State of UP, that the prosecution should, in fairness, have produced this witness since he was one who would have unfolded the true version regarding the incident as he was in the vicinity of the deceased.
The presence of blood at the scene of occurrence establishes, beyond any manner of doubt that the incident occurred at the place pointed out by PWs 2 and 3.
It is true that Narain Singh was sleeping near the deceased when the latter was shot at.
Narain Singh was indeed a witness to the occurrence and ordinarily we would have expected the prosecution to examine him.
Dropping a witness on the specious plea that he won over without laying the foundation therefore is generally to be frowned upon.
Counsel for the appellants, therefore, submitted that an adverse inference should be drawn against the prosecution for its deliberate failure to examine Narain Singh.
But it must be remembered that the investigating office had recorded the further statement of Narain Singh under section 161 of the Code for involving the two acquitted persons who were nowhere in the picture.
Narain Singh was, therefore, not likely to support the prosecution version.
The defence at no point of time questioned the prosecution statement that Narain Singh was won over.
The courts below accepted the prosecution statement in this behalf.
The judgment of both the courts reveal that no submission was made before them regarding the non examination of this witness.
If an objection was raised at the earliest point of time, the prosecution may have called him to the witness stand.
His presence was not required to unfold the prosecution story.
That had been done by PWs 2 and 3.
Therefore, the non 974 examination of Narain Singh cannot reflect on the credibility of PWs 2 and 3.
Counsel for the appellants next submitted that according to the prosecution applellant Gian Singh was armed with a Gandasi and he is alleged to have given a blow therewith on the chest of the deceased.
Ordinarily a Gandasi blow would cause an incised wound whereas the deceased had an abrasion 5 ' ' X 1 ' ' on the chest caused by a hard and blunt substance.
According to counsel normally when a witness deposes to the use of a particular weapon there is no warrant for supposing that the blunt side of the weapon was used by the assailant.
In support of this contention counsel invited our attention to two decisions, namely, Hallu & Ors.
vs State of MP, ; and Nachhattar Singh & Ors vs The State of Punjab, In his submission, therefore, the injury found on the chest could not be attributed to Gian Singh who is stated to have used the Gandasi.
We see no merit in this contention for the simple reason that the prosecution witnesses have categorically stated that Gian Singh used the blunt side of the Gandasi.
If the prosecution witnesses were silent in this behalf the submission of counsel would have carried weight.
But where the prosecution witnesses categorically state that the blunt side of the weapon was used there is no room for believing that the sharp side of the weapon which would be normally used had in fact been used.
The observations in the aforesaid two judgments do not lay down to the contrary.
In fact in the first mentioned case it is clearly stated that if the prosecution witnesses have clarified the position, their evidence would prevail and not the normal inference.
Counsel, however, made a grievance that the prosecution had not tried to elicit the opinion of PW 1 Dr. Malhotra on the question whether such an abrasion was possible by a Gandasi blow.
According to him, as held by this Court in Kartarey vs State of U.P., and Ishwar Singh vs State of UP, , it was the duty of the prosecution to elicit the opinion of the medical man in this behalf.
PW1 clearly stated in the course of his examination in chief that injuries Nos. 2, 3 and 4 were caused by a blunt weapon.
It is true that he was not specifically asked if the chest injury could have been caused by the blunt side of the Gandasi.
It cannot be gainsaid that the prosecution must endeavour to elicit the opinion of the medical man whether a particular injury is possible by the weapon with which it is alleged to have been caused by showing the weapon to the witness.
In fact the Presiding Officer should himself have elicited the opinion.
However, in this case it should not make much difference because the evidence of PWs 2 and 3 is acceptable and is corroborated by the first information report as well 975 as PW 3.
If the medical witness had also so opined it would have lent further corroboration.
But the omission to elicit his opinion cannot render the direct testimony of PWs 2 and 3 doubtful or weak.
We, therefore, do not see any merit in this submission.
In fact if we turn to the cross examination of PW1 we find that the defence case was that these three injuries were caused by the rubbing of the body against a hard surface, a version which has to be stated to be rejected.
It was next contended that PWs 2 and 3 being close relatives of the deceased could not be relied upon particularly because their version regarding the incident is not corroborated by independent evidence and it is extremely doubtful if they could have identified the assailants from a distance of about 10/15 karams.
We have already dealt with the latter part of this submission.
We have no hesitation in agreeing with the two courts below that they could have identified the assailants who were no strangers to them from that distance of 10/15 karams since the electric light at the tubewell was switched on.
Once the evidence of the prosecution witnesses regarding existence of light is accepted, there is no difficulty in accepting their evidence regarding identification.
The presence of PW 2 at the tubewell cannot be doubted as it was he who went to PW 4 in the early hours and then travelled a distance of about 12 km.
to the police station where he lodged his complaint.
Since PW3 was visiting PW2 it was natural for him to accompany the latter to the field.
Both the courts accepted their evidence and we see no reason to discard the same on the specious ground that they are interested witnesses.
Their evidence has been subjected to close scrutiny but nothing adverse is found to doubt their credibility.
The next submission of counsel for the appellants is that the evidence regarding motive is weak and, therefore, it is not possible to believe that the appellants would kill the deceased on account of a minor quarrel regarding the passage of sullage water which had taken place a few months back.
In this connection he invited our attention to the decisions of this Court in A.N. Rao vs Public Prosecutor, Andhra Pradesh, and State of UP vs Hari Prasad & Ors., ; This submission cuts both ways.
It the evidence regarding motive is not sufficiently strong as argued by the counsel for the appellants, it is difficult to believe that PWs 2 and 3 would go out of their way to falsely involve the appellants.
But it must be realised that there were election disputes and the deceased had successfully contested the election against Dalbeer Singh who was the candidate of Gian Singh, Bur Singh and others.
This old enmity coupled with the incident regarding the passage of sullage water in regard to which 976 proceedings under section 107/151 of the Code were pending is the motive alleged by the prosecution and we do not think it is so weak that it would not prompt the appellants to kill their rival.
The decisions on which counsel places reliance can, therefore, have no application in the special facts and circumstances of the present case.
Counsel for the appellants then submitted that the evidence of PWs 2 and 3 which is corroborated by the evidence of PW4 to whom the incident was narrated by PW2 cannot be believed in view of the contradictions brought on record from their statements recorded under section 161 of the Code.
As stated earlier both the Courts have come to the conclusion that these statements are a fabrication.
Both the courts below have given cogent reasons for reaching this conclusion.
In particular the High Court has after examining the record of the habeas corpus petition shown beyond any manner of doubt that PW8 had intentionally prepared false statements of all these eye witnesses for falsely involving Sucha Singh and Santokh Singh since they were wrongly and illegally detained by him in the police station, a fact which was noticed by the Court 's Warrant Officer who had visited the police station on 2nd July, 1976 at about 5.15 p.m.
He was initially told that no such person or persons had been detained inthe police station.
The Warrant Officer, however, searched the police station and noticed the presence of these two and other persons.
It, therefore, became necessary for PW 8 to explain their presence in the police station since it was alleged in the habeas corpus petition filed on 30th June, 1976 that they were illegally detained.
The Court had appointed the Warrant Officer to verify this allegation.
PW8 had, therefore, to cover up the illegal detention of these two persons.
So he substituted statements purported to have been made by PWs 2 and 3 under section 161 of the Code involving the said two persons in the commission of the crime although their names did not figure in the first information report.
The courts below, therefore, rightly came to the conclusion that the contradictions brought on record on the basis of these statements cannot shake the credibility of the two eye witnesses to the occurrance.
It must be realised that immediately after two of the appellants were arrested on 2nd July, 1976, PW2, Swaran Singh had gone to the police station and had informed PW8 that the said two persons, namely, Sucha Singh and Santokh Singh were wrongly detained.
PW2 lost no time and followed it up by filing an affidavit in the trial court on 3rd July, 1976 alleging that the investigating agency was trying to favour Gurmej Singh and had for that purpose fabricated his statement as also the statements of other witnesses under section 161 of the Code.
In his evidence before the court also PW2 stated that 977 he had informed the police officials that Sucha Singh and Santokh Singh were in no way concerned with the crime and had been wrongly named by the police to bail out Gurmej Singh.
It is also difficult to believe that PW 2 would give a total go by to his immediate version in the first information report while making his statement under section 161 of the Code.
We are, therefore, of the opinion that both the courts were right in coming to the conclusion that the contradictions brought on record from such statements of PWs 2 and 3 can have no evidentiary value.
Counsel, however, submitted that the inference drawn by the two courts below is falsified by the fact that DSP Oujla had verified the investigation papers on 10th June, 1976 and had given a direction that Gurmej Singh should be shown in column No. 2 There is, however, nothing on record to show that Oujla had counter signed these two statements which are used for contradicting the two eye witnesses.
Therefore, the mere fact that Oujla had verified the investigation record on 10th June, 1976 cannot come to the rescue of the appellants.
There is, therefore, no substance in the criticism levelled by the learned counsel for the appellants that the prosecution had shifted its case at the trial from the one narrated to the police in the course of investigation.
The prosecution version is that immediately after the incident PW2 went to the residence of his father PW4 and informed him about the incident.
This conduct of PW2 is quite natural.
The evidence of PW2 stands corroborated by the evidence of PW4.
PW2 thereafter hired a tempo and left for the police station and promptly lodged the first information report.
It must be realised that PW2 had no time for manipulation as he had reached the Police Station, which was at a distance of 12 Km.
before 8.30 a.m. He would not have named the assailants if he had not seen them.
There was no reason for him to falsely implicate the appellants since he bore no grudge against them; it was just the reverse.
A copy of this report had reached the concerned Magistrate by about 11.15.a.m.
This first information report also lends corroboration to his testimony.
The medical evidence tendered by PW1 also corroborates the version of PWs 2 and 3.
We, therefore, do no see any infirmity in the approach of the two courts below in convicting the appellants.
For the above reasons we see no merit in this appeal and dismiss the same.
The appellants who are on bail will surrender to their bail forthwith.
Y.Lal.
Appeal dismissed.

summary/full:
The appellants and the deceased Harnam Singh, were neighbours and had strained relations on account of passage of sullage water and elections.
According to the prosecution, they had quarrelled over the passage of sullage water a few months before the incident; the appellants had diverted their sullage water towards the house of the deceased and the latter had protested and frustrated their effort, with the result the water collected in a pool near the house of the appellants which infuriated them.
The appellants attacked and murdered Harnam Singh on the night between 6th and 7th June, while he was sleeping at his tubewell alongwith P.Ws 2 and 3 and one Narain Singh (not examined); P. Ws 2 and 3 were sleeping at a distance of about 15 karams while Narain Singh was sleeping near the deceased.
The prosecution alleged that Gurmej Singh fired a shot from close range at the deceased while he was asleep; Gian Singh struck a Gandasi blow on the chest and Bur Singh gave a Dang blow on the arm.
After making sure that the victim had died, the appellants fled away.
P. Ws 2 and 3 did not raise any alarm as they were threatened by the appellants that they would be killed in case they made any hue and cry.
P. W. 2 lodged the F.I.R. and disclosed therein the names of the appellants only as assailants.
Two other persons Sucha Singh and Santokh Singh were also shown as arrested for the commission of this crime though their names did not figure in the F.I.R.
According to the prosecution witnesses, these persons were falsely implicated by P.W. 8 Sub Inspector.
The appellants alongwith these two persons were put up for trial.
The trial Judge acquitted these persons as having been falsely involved and no appeal against their acquittal was preferred.
However the Trial Court relying on the evidence of P.Ws, convicted Gurmej Singh under Section 302, I.P.C. and the other two under Section 302/34 I.P.C. and sentenced all 967 the three to imprisonment for life and also imposed token fines.
The appellants appealed against their conviction before the High Court but the Division Bench of the High Court dismissed their appeal.
They have now filed this appeal against their conviction and sentence, after obtaining special leave.
Dismissing the appeal, this Court HELD: It is true that Narain Singh was sleeping near the deceased when the latter was shot at Narain Singh was indeed a witness to the occurrence and ordinarily we would have expected the prosecution to examine him.
Dropping a witness on the specious plea that he was won over without laying the foundation therefor is generally to be frowned upon.
[973E] The defence at no point of time questioned the prosecution statement that Narain Singh was won over.
The courts below accepted the prosecution statement in this behalf.
The judgment of both the courts reveal that no submission was made before them regarding the non examination of this witness.
If an objection was raised at the earliest point of time, the prosecution may have called him to the witness stand.
His presence was not required to unfold the prosecution story.
That had been done by P.Ws. 2 and 3.
Therefore, the non examination of Narain Singh cannot reflect on the credibility of P.Ws. 2 and 3.
[973G 974A] Both the courts were right in coming to the conclusion that the contradictions brought on record from the statement of PWs 2 and 3 can have no evidentiary value.
[977B] There is no substance in the criticism levelled by the learned Counsel for the appellants that the prosecution had shifted its case at the trial from the one narrated to the police in the course of investigation.
The prosecution version is that immediately after the incident PW2 went to the residence of his father P.W. 4 and informed him about the incident.
This conduct of P.W. 2 is quite natural.
The evidence of P.W. 2 stands corroborated by the evidence of P.W. 4 P.W. 2 therefore hired a tempo and left for the police station and promptly lodged the first information report.
It must be realised that P.W. 2 had no time for manipulation as he had reached the Police Station, which was at a distance of 12 Km.
before 8.30 a.m. He would not have named the assailants if he had not seen them.
There was no reason for him to falsely implicate the appellants since he bore no grudge against them; it was just the reverse.
A copy of this report had reached the concerned 968 Magistrate by about 11.15.
a.m. This first information report also lends corroboration to his testimony.
The medical evidence tendered by P.W. 1 also corroborates the version of P.Ws. 2 and 3.
There is, therefore, no infirmity in the approach of the two courts below in convicting the appellants.
[977D G] Sahaj Ram vs State of U.P., ; Hallu Singh & Ors.
vs State of Punjab, ; Kartarey vs State of U.P., ; Ishwar Singh vs State of U.P., ; A.N. Rao vs Public Prosecutor, Andhra Pradesh, and State of U.P. vs Hari Prasad & Ors., {1974} 3 S.C.C. 673, referred to.


judgement:
ivil Appeal No. 3041 of 1988.
From the Judgment and Order dated 2. 1988 of the Calcutta High Court in Original Order Tender No. (F.M.A.T.) No. 181 of 1987.
Dr. Shankar Ghosh, Mrs. Naresh Bakshi and K.D. Prasad for the Appellants.
Ashok H. Desai, P. Parmeshwaran and A. Subba Rao for the Respondents.
The Judgment of the Court was delivered by KULDIP SINGH, J.
M/s Burn Standard Company Limited, the appellant before us, is one of the leading manufacturer of wagons.
The wagons manufactured and produced by the appellant are primarily supplied to the Railway Board.
The wagons are manufactured in 962 accordance with the specifications, terms and conditions contained in the agreements entered between the appellant and the Railway Board from time to time.
It is the admitted case of the parties that the Railway Board supplies wheel sets, axle boxes and various other finished components of wagons to the appellant which are termed as "free supply items".
These items are not manufactured by the appellant.
The readymade "free supply items" are made available to the appellant by the Railway Board without charging any price.
There items are fitted in the wagons manufactured by the appellant and are ultimately supplied to the Railway Board.
The invoice value of the wagon charged by the appellant from the Railway Board does not include the value of the "free supply items".
On the above facts, the short question for our determination is whether the excise duty under Section 3 and 4 of the (hereinafter called `the Act ') is to be charged on the invoice value of the wagon or on the value of completed wagon including that of the "free supply items".
The central excise authorities issued various show cause notices in respect of different transactions calling upon the appellant to show cause as to why the excise duty be not computed and charged onthe value of the completed wagon including that of the "Free supply items".
The appellant challenged the show cause notices by way of writ petition under Article 226 of the Constitution of India before the Calcutta High Court which was heard by a learned Single Judge who allowed the writ petition and quashed the demand raised by the central excise authorities.
The Learned Judge came to the conclusion that the excise duty could only be charged on the basis of the invoice value under the contract.
The learned Judge based his conclusions on the following reasoning: "There is no dispute that certain items of finished components are supplied by the Railway Board to the petitioner.
The value of these items is not taken into consideration in fixing the price of the wagons sold by the petitioner to the Railway Board.
The price of the completed wagons is calculated on the basis of the manufacturing cost of the petitioner including the price of components acquired by the petitioner for which the petitioner has actually to pay the price.
But the components which are supplied free of cost by the Railway Board do not enter into the pricing mechanism of the petitioner at all.
Therefore, the excise 963 value of the wagons manufactured by the petitioner cannot be calculated after adding back the price of the components supplied free of cost by the Railway Board.
" The Union of India filed appeal against the judgment of the learned Single Judge which was heard by a Division Bench of the Calcutta High Court.
The Bench did not agree with the reasoning and conclusions of the learned Single Judge, set aside his judgment and dismissed the writ petition of the appellant petitioner.
The division Bench allowed the appeal in the following words: "Admittedly, in this case, the cost of wagon as a whole has not been mentioned in the agreement and we feel that the cost of normal price should include cost of construction and furthermore, when sale is the charge and the same under charging section of the said Act would mean actual price of the goods viz. wagon as a whole, so the value of a wagon as a whole, will form part of the relevant and necessary assessable value under section 4 of the said Act, as the manufacturing cost of a complete wagon cannot be conceived of without taking into account or consideration the cost of free supply items .
We hold that the valuation cost of the free supply items should be included in the manufacturing cost of wagons.
We think that section 4(1)(a) of the said Act applies in this case and as such, the valuation of excisable goods will be charged or will take place when manufacture takes place.
Thus, we also find and hold that while determining the valuation of wagons for charging the duty, the Revenue Authorities had acted duly and with justification, in adding the cost of free supply items under the provisions of the said Act as indicated above, the more so when, under the agreement in this case, the said petitioners were and are required to manufacture and supply completed wagons, in which the free supply items were and are required to be fixed at the time of manufacture.
There cannot be any doubt that without fixing the free supply items, the production and manufacture of a wagon would not be effectively completed.
The manufacture of a complete wagon thus takes place as soon as or as and when th free supply items are fitted and fixed by the said petitioners and with such manufacture, the process of manufacture would be complete under section 2(f) of the said Act and the liability to duty will also be 964 attracted.
We hold that the value of the manufactured goods must be determined at the factory gate i.e. at the stage when the manufactured goods here in this case wagons, leave the factory." The appeal, against the judgment of the High Court, via special leave petition is by M/s. Burn Standard Company Limited.
The relevant parts of Sections 3 and 4 of the Act are reproduced hereinafter: "3. Duties specified in the First Schedule to be levied (1) There shall be levied and collected in such manner as may be prescribed duties of excise on all excisable goods other than salt which are produced or manufactured in (India) . . 4.
Valuation of excisable goods for purposes of charging of duty of excise. (1) Where under this Act, the duty of excise is chargeable on any excisable goods with reference to value, such value shall, subject to the other provisions of this section, be deemed to be (a) the normal price thereof, that is to say, the price at which such goods are ordinarily sold by the assessee to a buyer in the course of wholesale trade for delivery at the time and place of removal, where the buyer is not a related person and the price is the sole consideration for the sale: . (b) where the normal price of such goods is not ascertainable for the reason that such goods are not sold or for any other reason, the nearest ascertainable equivalent thereof determined in such manner as may be prescribed.
" Section 3 of the Act provides for levy of the duty of excise.
It is a levy on goods produced or manufactured in India.
Section 4 of the Act lays down the measure by reference to which the duty of excise is to be assessed.
The duty of excise is linked and chargeable with reference to the value of the excisable goods and the value is further defined in express terms by the said section.
In every case the fundamental crite 965 rion for computing the value of an excisable article is the normal price at which the excisable article or an article of the like kind and quality is sold or is capable of being sold by the manufacturer.
It is not disputed that the appellants are manufacturers of wagons.
What comes down from the assembly line of the appellant 's factory is a complete wagon and as such the appellant being manufacturer of wagons, is liable to pay duty of excise on the value of a complete wagon.
The "free supply items" like wheel sets etc.
in the process of manufacturing become part of the complete wagon and loose their identity.
It hardly matters how and in what manner the components of the wagon are procured by the manufacturer, so long as the appellant is manufacturing and producing the goods called "wagons" it is liable to pay duty of excise on the normal value of the wagon.
In Empire Industries Limited and Others vs Union of India and Others, ; this Court while interpreting Sections 3 and 4 of the Act held as under: "The fact that the petitioners are not the owners of the end product is irrelevant.
Taxable event is manufacture not ownership.
In M/s. Ujagar Prints and Others vs Union of India and Others, ; , M.N. Venkatachalaih, J. speaking for the Court observed as under: "Duties of excise are imposed on the production or manufacture of goods and are levied upon the manufacturer or the producer in respect of the commodity taxed.
The question whether the producer or the manufacturer is or is not the owner of the goods is not determinative of the liability.
" We, therefore, cannot accept the contention of the learned counsel for the appellant that the value of the "free supply items" should not be included in the assessable value of the wagons manufactured by the appellant.
We see no infirmity in the reasoning and the findings reached by the Division Bench of the High Court.
The appeal is, therefore, dismissed with no order as to costs.
V.P.R. Appeal dismissed.

dataset_name: IN-Abs

summary/full:
The appellant company manufactured railway wagons in accordance with the specifications, terms and conditions contained in the agreements entered between the appellant and the Railway Board from time to time.
The Railway Board without charging any price supplied wheel sets, axle boxes and various other finished components of wagons, which were termed as "free supply items," to the appellant, which were used in the manufacture of wagons and supplied the complete wagons to the Railway Board.
The invoice value of the wagon charged by the appellant did not include the value of the "free supply items.
" The central excise authorities issued show cause to the appellant as to why the excise duty be not computed and charged on the value of the complete, wagon, including that the "free supply items".
The appellant challenged the show cause notices by filing a Writ Petition before the High Court.
Holding that the excise duty could only be charged on the invoice value under the contract, the Single Judge allowed the petition.
The appeal filed by the Respondents against the judgment of the Single Judge was allowed by the Division Bench of the Court, against which the present appeal was made by the appellant company.
On the question, whether the excise duty under sections 3 and 4 of the Central Excise and Salt Act, 1944 was to be charged on the invoice value of the wagon or on the value of completed wagon including that of the "free supply items".
Dismissing the appeal, this Court, 961 HELD: 1.
Section 3 of the Act provides for levy of the duty of excise.
It is a levy on goods produced or manufactured in India.
Section 4 of the Act lays down the measure by reference to which the duty of excise is to be assessed.
The duty of excise is linked and chargeable with reference to the value of the excisable good and the value is further defined in express terms by the said section.
In every case the fundamental criterion for computing the value of excisable article is the normal price at which the excisable article or an article of the like kind and quality is sold or is capable of being sold by the manufacturer.
[940G 965A] 2.
What comes down from the assembly line of the appellant 's factory is a complete wagon and as such the appellant being manufacturer of wagons, is liable to pay duty of excise on the value of a complete wagon.
The "free supply items" like wheel sets etc.
in the process of manufacturing become part of the complete wagon and loose their identity.
It hardly matters how and in what manner the components of the wagon are procured by the manufacturer, so long as the appellant is manufacturing and producing the goods called "wagons" it is liable to pay duty of excise on the normal value of the wagon.
[965A C] Empire Industries Limited and Others vs Union of India and Others, ; and M/s. Ujagar Prints and Others vs Union of India and Others, ; , followed.