judgement:
l Appeals Nos.
280 and 281 of 1960.
Appeal from the judgment and order dated April 20, 1956, of the Madras High Court, in T. R. C. Nos. 101 and 102 of 1956.
B. Ganapathy Iyer and G. Gopalakrishnan, for the appellant.
M. M. Ismail and T. M. Sen, for the respondent.
572 D. V. Sastri and T. M. Sen, for Intervener No. 1.
Naunit Lal, for Intervener No. 2.
section M. Sikri, Advocate General, Punjab and D. Gupta, for Intervener No. 3.
section M. Sikri, Advocate General, Punjab, N. section Bindra and D. Gupta, for Intervener No. 4.
G. C. Kasliwal, Advocate General, Rajasthan, section K. Kapur and D. Gupta, for Intervener No. 5. 1961.
April 28.
The Judgment of the Court was delivered by section K. DAS, J.
These are two appeals on certificates granted by the High Court of Madras and consolidated by its orders dated March 22, 1957.
They are from the judgment and orders of the said High Court dated April 20, 1956 and July 30, 1956 in two Tax Revision Cases, by which the High Court dismissed two petitions filed by the appellants under section 12 B of the Madras General Sales Tax Act (Madras Act IX of 1939), hereinafter called the principal Act, in the fol lowing circumstances.
Messrs. George Oakes (Private) Limited, appellants herein, are dealers in Ford motor cars, spare parts and accessories.
For the two years 1951 52 and 1952 53 the appellants submitted their returns under the relevant provisions of the principal Act and claimed exemption from tax with regard to certain amount realised on transactions of sales which the appellants contended were inter State sales and hence exempt from tax under article 286 of the Constitution as it stood at the relevant time.
The Deputy Commercial Tax Officer, Madras, not only rejected the claim of exemption, but added to the turnover certain amounts which the appellants had collected by way of tax.
The amounts so added for 1951 52 were (a) Rs. 8,000 to the net turnover assessable at 3 pies per rupee, and (b) Rs. 4,30,000 to the turnover assessable at 9 pies per rupee.
For 1952 53 the amounts so added were (a) Rs. 30,132 odd and (b) Rs. 2,92,257 odd res pectively.
Aggrieved by the orders of the Deputy Commercial 573 Tax Officer, the appellants preferred two appeals to the Special Commercial Tax Officer, Appeals, Madras City.
These appeals were dismissed.
The matter was then taken to the Sales Tax Appellate Tribunal by means of two appeals.
By this time the Madras Legislature had passed the Madras General Sales (Definition of Turnover and Validation of Assessments) Act, 1954, being Madras Act No. XVII of 1954.
This Act we shall refer to as the impugned Act in this judgment, because its constitutional validity is now the only question for decision in these appeals.
The Tribunal negatived the claim of the appellants arising out of the contention that some of the sale transactions in the relevant years were in effect interState sales and therefore exempt from tax; the tribunal declined to go into the second question of the constitutional validity of the impugned Act.
We may state here, though nothing now turns upon this, that the Tribunal held that when sales tax was included in the turnover, it was proper to tax the amounts so included at the minimum rate only, viz., 3 pies in the rupee under section 3(1) of the principal Act.
Thereafter the appellants filed two revision petitions to the High Court under section 12 B of the principal Act.
These were dismissed in limine.
By the orders dated April 20, 1956 the High Court held that the contention as to some of the transactions being inter State sales was concluded by one of its earlier decisions, which came before us in Ashok Leyland Ltd. vs The State of Madras, Civil Appeal No. 446 of 1958.
In that appeal we delivered judgment on March 28, 1961 and held that the Sales Tax Laws (Validation) Act, 1956 applied and it was unnecessary to consider the true nature of the transactions which the appellants contended were inter State sales.
Learned Counsel for the appellants has conceded before us that decision governs the present appeals, and the first question no longer survives.
As to the second question, the High Court by oversight did not deal with it in its orders dated April 20, 1956.
When the matter was brought to the notice of 73 574 the High Court, it said in its orders dated July 30, 1956 that the second question was also concluded by its decision in Sri Sundararajan and Co., Ltd. vs The State of Madras( ') where the validity of the impugned Act was upheld.
When we heard these appeals along with Ashok Leyland Ltd. vs The State of Madras, Civil Appeal No. 446 of 1958, we expressed the view that there was some divergence of opinion in the High Courts on the second question and the substantial point for consideration before us was whether the impugned Act was validly made under entry 54 of the State List in the Seventh Schedule to the Constitution: thus the question raised was one of legislative competence and affected all the States.
The State of Madras was already a party respondent to these appeals.
Accordingly, we directed the issue of notices to the Advocates General of all other States also.
In pursuance of the said notices the Advocates General of Andhra Pradesh, Assam, West Bengal, Gujarat, Maharashtra, Punjab and Rajasthan have appeared before us.
They have unanimously supported the State of Madras in its submission that the impugned Act is valid; some of them have added supplementary arguments in support of that submission.
For convenience and brevity we shall refer in this judgment to the main arguments as representing two differing points of view; firstly, there is the argument on behalf of the appellants that the several provisions of the principal Act as also section 2 of the impugned Act make a distinction between the sale price of goods sold and the amount collected by way of tax and in view of that distinction made, What the impugned Act seeks to impose is a 'tax on Sales tax ' a subject which does not come within the ambit of entry 54 of List II which at the relevant time read as "Taxes on the sale or purchase of goods other than newspapers.
" On the other side, the argument is that what the impugned Act seeks to do is to enlarge the scope of the definition of 'turnover ' so as to include the amount collected by way of tax in the turnover by a deeming (1) (1956) 7 S.T.C. 105.
575 provision, and this the State Legislature was competent to enact under entry 54 of the State List.
These are the main arguments on two sides; but there are several subsidiary points in support of the main argument on each side, and it would be an over simplification to ignore these altogether.
We shall, therefore, consider them also when dealing with the main argument on each side.
We shall first refer to the relevant provisions of the principal Act and of the impugned Act, in so far as they bear on the points debated before us.
Under section 3 of the principal Act which is the charging section, every dealer is liable to pay, subject to the provisions of the Act, for each year a tax on his total turnover for that year calculated at a particular percentage of such turnover.
What is 'turnover ' is defined in section 2(i).
The definition substantially states " 'turnover ' means the aggregate amount for which goods are either bought or sold by a dealer whether for cash or for deferred payment or other valuable consideration. . 'Sale ' is defined in section 2(h) and means (we are reading so much of the definition only as is material for our purpose) "every transfer of property in goods by one person to another in the course of trade or business for cash or deferred payment or other valuable consideration.
" It is worthy of note here that the tax imposed by the principal Act is a tax on total turnover, and turnover means the aggregate amount for which goods are either bought or sold by a dealer.
Therefore, one of the questions which fall for consideration is whether the State Legislature went beyond its legislative competence in enacting by the impugned Act that the amounts collected by the dealer by way of tax shall be deemed to have formed part of his turnover.
This brings us to section 8B of the principal Act, which provides in sub section
(1) that no person who is not a registered dealer shall collect any amount by way of tax; nor shall a registered dealer make any such collection except in accordance with such conditions and restrictions, if any, as may be prescribed; sub section
(2) provides inter alia that every person who has collected or collects by way of tax any amounts shall pay 576 over the same to the State Government.
Section 15 provides for penalties for a, contravention of some of the provisions of the principal Act including the provisions of section 8B.
In The Deputy Commissioner of Commercial Taxes, Coimbatore Division vs M. Krighnaswami Mudaliar & Sons (1) the Madras High Court held that the amount collected by a registered dealer from the consumer by way of sales tax and paid over to Government should not be included in the turnover of the registered dealer as part of the sale price of the goods sold and it was not liable to be taxed again.
This decision was given on January 7, 1954.
In July 1954 was enacted the impugned Act sections 2 and 3 whereof need only be set out here.
"section 2.
Sales Tax Collections by dealers to be deemed part of turnover.
In the case of sales made by a dealer before the 1st April 1954, amounts collected by him by way of tax under the Madras General Sales Tax Act, 1939 (Madras Act IX of 1939) (hereinafter referred to as the principal Act), shall be deemed to have formed part of his turnover.
Validation of certain assessment and collections. (1) All assessments, and collections made, all orders passed, all actions taken by any officer in the exercise or purported exercise of jurisdiction or power conferred by the principal Act, and all judgments, decrees or orders pronounced by any Tribunal or Court in the exercise of its jurisdiction or powers with respect to matters in the principal Act, on the basis that amounts collected by a dealer by way of tax under the principal Act before the 1st April 1954, formed part of the turnover of the dealer are hereby declared to have been validly made, passed, taken or pronounced, as the case may be; and any finding recorded by any officer, Tribunal or Court to a contrary effect and any order, judgment or decree in so far as such order, judgment or decree embodied or is based on any such finding and does not relate merely to the costs of the proceeding which result in the judgment, decree or order shall be void and of no effect: (2) [1954] 5 S.T.C. 88.
577 Provided that no act or omission on the part of any person shall be punishable as an offence which would not have been so punishable if this Act had not been passed.
(2) Nothing in sub section (1) shall be construed as authorising any officer, in assessing any dealer in s the exercise or purported exercise of jurisdiction or powers conferred by the principal Act, to include in the turnover of the dealer amounts collected by him after the 1st April 1954 by way of tax under the principal Act.
" The validity of the impugned Act was then questioned in the Madras High Court and in Sri Sundararajan and Co., Ltd. vs The State of Madras (1) it was held that the impugned Act was valid.
The High Court pointed out that the earlier decision in Krishnaswami Mudaliar 's case (2) was not that the State Legislature could not make the amounts collected by a registered dealer by way of tax under section 8B part of the assessable turnover, but that the principal Act as it stood at the relevant time did not make such amounts part of the assessable turnover.
It held that in pith and substance the impugned Act validated the assessments already made before April 1, 1954 and that even where the registered dealer collected any amount by way of tax under the authority of section 8B, the payment by the purchaser was on the occasion of the sale by the dealer and vis a vis the latter it was in reality part of the price the purchaser paid the seller for purchasing the goods.
The same view was also expressed by the Patna High Court in Ashoka Marketing Company Ltd. vs The State of Bihar (3) with regard to the Bihar Sales Tax (Definition of Turnover and Validation of Assessments) Act, 1958.
The question before us is whether the aforesaid view is correct.
The relevant legislative entry, as we have said earlier, is entry 54 of List II "Taxes on the sale or purchase of goods other than newspapers.
" A similar entry (No. 48) in List 11 of Schedule VII to the Government of India Act, 1935 read as "Taxes on the (1) [1956] 7 S.T.C. 105.
(2) [1954] 5 S.T.C. 88.
(3) [1959] 10 S.T.C. 110, 578 sale of goods." The true scope and effect of that entry was considered by this Court in the State of Madras vs Gannon Dunkerley and Co. (Madras) Ltd. (1) and on a review of several decisions bearing on the subject it held that the expression "sale of goods" was a term of well recognised legal import in the general law relating to sale of goods and in the, legislative practice relating to that topic and must be interpreted as having the same meaning as in the ; in other words, it was held that sales contemplated by entry 48 of the Government of India Act, 1935 were transactions in which title to the goods passed from the seller to the buyer, and in The Sales Tax Officer, Pilibhit vs Messrs. Budh Prakash Jai Prakash (2) it was held that a mere executory agreement was not a sale within the meaning of that entry.
We think that the same meaning must be given to entry 54 of List 11 of the Seventh Schedule to the Constitution.
The question before us is that giving that meaning to the entry, is the impugned Act a valid piece of legislation by a competent Legislature? Now, learned Counsel for the appellants has not raised before us the extreme contention that in no case could the State Legislature validly make a law which would include the amount collected by way of tax as part of the turnover of the dealer.
He has submitted that it is unnecessary for him in this case to press into service any such wide proposition.
His argument is that the principal Act by sections 8B and 15 and the impugned Act by section 2 thereof having made a distinction between what he calls the sale price and what is collected by way of tax by the dealer, the question of the validity of the impugned Act must be determined on the basis of that distinction and so determined, what the impugned Act does is to impose what learned Counsel calls "a tax on tax" and therefore not covered by the relevant legislative entry.
His submission further is that what is collected by way of tax being distinct from sale price and therefore from turnover, it must be necessarily held that the amount collected by way of tax is not essentially (1) ; (2) ; 579 connected with the transaction of sale and therefore the imposition of "a tax on tax" has no necessary connexion with the transaction of sale as understood in the general law relating to sale of goods.
We are unable to accept this argument as correct.
First of all, we do not think that either the principal Act or the impugned Act proceeds,on any immutable distinction between sale price and tax such as learned Counsel for the appellants has suggested.
The principal Act does not contain any separate definition of sale price.
We have already referred to the definitions of 'sale ' and 'turnover '; those definitions do not show any such distinction.
On the contrary, the expression 'turnover ' means the aggregate amount for which goods are bought or sold, whether for cash or for deferred payment or other valuable consideration, and when a sale attracts purchase tax and the tax is passed on to the consumer, what the buyer has to pay for the goods includes the tax as well and the aggregate amount so paid would fall within the definition of turnover.
In Paprika Ltd. and Another vs Board of Trade (1) Lawrence, J. said "Whenever a sale attracts purchase tax, that tax presumably affects the price which the seller who is liable to pay the tax demands but it does not cease to be the price which the buyer has to pay even if the price is expressed as x plus purchase tax." The same view was again expressed in Love vs Norman Wright (Builders), Ltd. (2) when Goddard, L. J. said: "Where an article is taxed, whether by purchase tax, customs duty, or excise duty, the tax becomes part of the price which ordinarily the buyer will have to pay.
The price of an ounce of tobacco is what it is because of the rate of tax, but on a sale there is only one consideration though made up of cost plus profit plus tax.
So, if a seller offers goods for sale, it is for him to quote a price which includes the tax if he desires to pass it on to the buyer.
If the buyer agrees to the price, it is not for him to consider how it is made up or whether the seller has included tax or not.
" (1) (2) 580 We think that these observations are apposite even in the context of the provisions of the Acts we are considering now, and there is nothing in those provisions which would indicate that when the dealer Collects any amount by way of tax, that cannot be part of the sale price.
So far as the purchaser is concerned, he pays for the goods what the seller demands, viz., price even though it may include tax.
That is the whole consideration for the sale and there is no reason why the whole amount paid to the seller by the purchaser should not be treated as the consideration for the sale and included in the turnover.
But, argues learned Counsel for the appellants, section 8 B of the principal Act and Turnover and Assessment Rules made under section 19 show that under the scheme of the principal Act a distinction is drawn between the amount collected by way of tax and the amount of purchase price.
It is indeed true that in section 8 B the amount collected by way of tax is separa tely mentioned, and while sub section
(1) thereof is merely enabling in the sense that a registered dealer may pass on the tax, sub section
(2) imposes an obligation on the registered dealer to pay over the amount of tax collected by him to Government.
The position under the Turnover and Assessment Rules is correctly summarised in the following extract from the judgment in Krishnaswamy Mudaliar 's case (1): "Rule 4 provides that the gross turnover of a dealer for the purposes of the rules is the amount for which goods are sold by the dealer.
Provision is made in rule 5 for certain deductions, and the mode or manner in which the tax to be levied has to be arrived at.
The object of these rules is to assess.
, the net turnover on which the tax is to be levied under the charging section.
It is therefore clear that under the charging section, tax is to be paid on the turnover which is assessed according to the rules.
Rule 11 requires that every dealer should submit a return under rule 6 every year to the assessing authority in Form A in which he has to show the actual gross and net turnover for the preceding (1) [1954] 5 S.T.C. 88.
581 year and the amounts by way of tax or taxes actually collected during that year.
In Form A columns 1 to 10 relate to the gross turnover and the deductions to be made from the gross turnover; column 10 requires the net turnover liable to tax to be shown.
In column 11 the amount actually collected by way of tax or taxes under section 8 B has to be shown.
" The question however still remains do the aforesaid provisions show such a distinction under the scheme of the two Acts that the amount collected by way of tax cannot be part of the turnover of the dealer and if the impugned Act makes it a part of the turnover by a deeming provision, it must be struck down as being outside the legislative competence of the State Legislature? It is necessary to emphasise here that no question of legislative competence arose in Krishnaswamy Mudaliar 's case( ') the decision being based on a construction of section 8 B and the Turnover and Assessment Rules only.
We do not think that the distinction drawn in Krishnaswamy Mudaliar 's case( ') whether right or wrong on a question of construction only, is material to the question of legislative competence.
In The Tata Iron & Steel Co., Ltd. vs The State of Bihar (2) this Court dealt with a provision in the Bihar Sales Tax Act, 1947 similar to section 8 B of the principal Act.
Das, C. J., delivering the majority opinion said: "The circumstance that the 1947 Act, after the amendment, permitted the seller who was a registered dealer to collect the sales tax as a tax from the purchaser does not do away with the primary liability of the seller to pay the sales tax.
This is further made clear by the fact that the registered dealer need not, if he so pleases or chooses, collect the tax from the purchaser and sometimes by reason of competition with other registered dealers he may find it profitable to sell his goods and to retain his old customers even at the sacrifice of the sales tax.
This also makes it clear that the sales tax need not (1) [1954] 5 S.T.C. 88.
(2) ; 74 582 be passed on to the purchasers and this fact does not alter the real nature of the tax which, by the express provisions of the law, is cast upon the seller.
The buyer is under no liability to pay sales tax in addition to the agreed sale price unless the contract specifically provides otherwise.
See Love, vs Norman Wright (Builders), Ltd. L. R.
These observations show that when the seller passes on the tax and the buyer agrees to pay sales tax in addition to the price, the tax is really part of the entire consideration and the distinction between the two amounts tax and price loses all significance from the point of view of legislative competence.
The matter is not in any way different under the Turnover and Assessment Rules.
It is true that in column 11 of Form A the amount collected by way of tax under section 8 B has to be shown; that does not, however, mean that an immutable distinction such as will go to the root of legislative competence has been drawn and must be always maintained.
It appears to us that the true effect of section 8 B and the Turnover and Assessment Rules is that (a) a registered dealer is enabled to pass on the tax, (b) an unregistered dealer cannot do so, and (c) the amount collected by way of tax is to be shown separately, for it has to be paid over to Government.
This does not mean that it is incompetent to the legislature enacting legislation pursuant to entry 54 in List 11 by suitable provision to make the tax paid by the purchaser to the dealer together with the sale price in consideration of the goods sold, a part of the turnover of the dealer; nor does it mean that in law the tax as imposed by Government is a tax on the buyer making the dealer a mere collecting agency so that the tax must always remain outside the sale price.
There is another aspect from which the question may be considered.
We shall assume that under the ,scheme of the principal Act a distinction is drawn between the amount collected by way tax and the sale price other than the tax.
Is such a distinction continued and maintained by the impugned Act? Learned Counsel for the appellants has referred us to 583 section 2 of the impugned Act where the expression "collected by him by way of tax under the Madras General Sales Tax Act, 1939" occurs.
It is argued that the aforesaid expression in the impugned Act has to be read with the provisions of the principal Act and so read, B. 2 maintains and continues the distinction made under the principal Act.
Again, we are unable to agree.
The expression "collected by him by way of tax etc." is merely descriptive of the "amounts" so collected; the essential and operative part of section 2 says that the amounts so collected shall be deemed to have formed part of the turnover of the dealer.
Therefore, in express terms section 2 states that the tax shall be deemed to have formed part of the turnover and obliterates the distinction, if any, between 'tax ' and 'turnover ' for the limited period during which the impugned Act operates.
To hold that the distinction is maintained and continued under the impugned Act is to go against the express terms of section 2.
This aspect of the question was adverted to in The Government of Andhra vs East India Commercial Co. Ltd. (1) where the Andhra High Court had occasion to consider the question from a somewhat different point of view, namely, an amendment made by the Andhra Pradesh Legislature in the definition of the expression 'turnover ' in the principal Act.
Section 2 of the amending Act substituted the following definition of 'turn over ': Turnover means the total amount set out in the bill of sale (or if there is no bill of sale, the total amount charged) as the consideration for the sale or purchase of goods . including any sums charged by the dealer for anything done in respect of the goods sold at the time of or before the delivery of the goods and any other sums charged by the dealer, whatever be the description, name or object thereof.
" Section 4 of the amending Act repeated sections 8 B and 8 C of the principal Act.
Dealing with the effect of these amendments, the High Court of Andhra Pradesh said, (1) [1957] 8 S.T.C. 114.
584 "The ultimate economic incidence of the sales tax is on the consumer or the last purchaser and whatever he pays for the goods is paid only as price, that is to say, as consideration for the purchase.
The statutory liability, however, for payment of sales tax is laid on the dealer on his total 'turnover ' whether or not he realises the tax from the purchasers.
Generally speaking, the price charged by the dealer would be inclusive of sales tax, for, it is to his interest to pass the burden of the tax to the purchaser.
So far as the dealer is concerned, the payment of a sum covering the tax made by a purebaser on the occasion of sale, is really part of the price which the purchasers pay for the goods.
" Later, it referred with approval to the decision in Sri Sundararajan and Co., Ltd. vs The State of Madras (1).
In this latter decision the validity of the impugned Act was questioned and dealing with section 2 of the impugned Act, the High Court said: "Section 2 only enacted that such amount shall be deemed ' to be part of the turnover and for a limited period.
It may not be necessary to set out authorities for the well settled principle of what the effect is of the use of the expression 'deemed ' in a statute.
Was the legislature competent to enact section 2 including the deeming provision, is the real question.
If the validity of section 2 of the impugned Act is established there should be little difficulty in upholding the validity of section 3, which gave effect to the legal fiction enacted by section 2.
Obviously, it is not the name the legislature accords to a payment by a purchaser to a seller, who is a dealer as defined by the Act, that determines the question of the legislative competence.
No doubt section 8B called the payment as amount (collected) by way of tax.
It is equally true that the statutory liability to pay the sales tax is laid on the dealer.
What is taxable is not each transaction of sale but the total turnover of the dealer, computed in accordance with the provisions of the (1) (1956) 7 S.T.C. 105.
585 Act and the Rules.
But it is well recognised that whatever be the form of the statutory provisions, the ultimate economic incidence of the tax is on the consumer, the purchaser.
It was that well settled principle that was re stated in Bengal Immunity Co. Ltd. vs State, of Bihar (1).
Even if the registered dealer collects the amount by way of tax under the authority of section 8B of the Act, the payment is by the purchaser on the occasion of the sale by the dealer.
Vis a vis the dealer it is in reality part of the price the purchaser has to pay the seller for purchasing the goods.
A tax on such a payment, in our opinion, is well within the ambit of Entry 54 of List 11, Schedule VII, read with Article 246(3) of the Constitution.
" We are of the view that the aforesaid observations correctly give the true effect of section 2 of the impugned Act, and section 3 of the impugned Act is merely consequential.
Mr. Sikri appearing on behalf of.
the States of Maharashtra and Punjab has drawn our attention to certain American decisions which show that treating tax as part of the sale price in cases where the tax is passed on to the buyer, is well recognised and is not unknown to law (see Lash 's Products Company vs United States, 73 L. Edn. 251; Pure Oil Company vs State Of Alabama, 148 American Law Reports 260).
We consider it unnecessary to examine these decisions, because the validity of the impugned Act must be determined on its own terms in the context of the provisions of the principal Act.
Reading the impugned Act in the light of the provisions of the principal Act, it seems clear to us that the impugned Act cannot be held to be bad on the ground of legislative incompetence.
Under the definition of turnover the aggregate amount for which goods are bought or sold is taxable.
This aggregate amount includes the tax as part of the price paid by the buyer.
The amount goes into the common till of the dealer till he pays the tax.
It is money which he keeps using for his business till he pays it over to Government.
Indeed, (1) 586 he may turn it over again and again till he finally hands it to Government.
There is thus nothing anomalous in the law treating it as part of the amount on which tax must be paid by him.
This conception of a turnover is not new.
It is found in England and America and there is no reason to think that when the legislatures in India defined 'turnover ' to include tax also, they were striking out into something quite unknown and unheard of before.
The only question which has been raised in these appeals is regarding the validity of the impugned Act.
That question having been decided against the appellants, the appeals fail and are dismissed with costs.
One hearing fee.
Appeals dismissed.

summary/full:
Certain amounts collected by the appellants as sales tax were included in their turnover by the sales tax authorities.
They contested the constitutional validity of the Madras General Sales (Definition of Turnover and Validation of Assessments) Act, 1954, on the ground inter alia that the Sate Legislature went beyond its legislative competence under entry 54 of List If of the Constitution in enacting by the impugned Act that the amounts collected by the dealer by way of tax shall be deemed to have formed part of his turnover.
Held, that entry 54 of List II of the Seventh Schedule of the Constitution is similar to entry 48 of List 11 of Sch.
Vil of the Government of India Act, 1935 sales under which have been held to be transactions passing title to the Goods from the seller to the buyer and that a mere executory agreement was not a sale within the meaning of that entry.
The same meaning must be given to entry 54.
571 State of Madras vs Gannon Dunkerly & Co., Ltd., ; and Sales Tax Officer vs M/s. Budh Prakash jai Prakash; , , referred to.
Under sections 2(i) and 2(h) of the Madras General Sales Tax Act, 1939, the expression "turnover" means the aggregate amount for which goods are sold either for cash or deferred payment or other Valuable consideration, and when a sale attracts purchase tax which is passed on to the consumer what the buyer has to pay includes the tax and the aggregate amount to be paid would fall under the definition of turnover.
When the seller passes on the tax and the buyer agrees to pay sales tax in addition to the price, the tax is really part of the entitle considerations.
Papreka Ltd. vs Board of Trade, , Love vs Norman Wright (Builders) Ltd., , followed.
Asoka Marketing Co. Ltd. vs The State of Bihar, [1959] IO S.T.C. 110 and Tata Iron and Steel Co. vs The State of Bihar, ; , referred to.
Although section 8B of the Madras General Sales Tax Act, 1939 and the Turnover and Assessment Rules separately mentioned the amounts collected as tax for the purpose of paying such amounts to the Government, no immutable distinction was drawn between the sale price and the tax nor was any such distinction maintained under section 2 of the impugned Act.
Assuming that such a distinction did exist the Legislature was competent to enact under entry 54 in List II of the Constitution that the tax shall be deemed to have formed part of the turnover and obliterate the distinction for the limited period during which the impugned Act operated.
The impugned Act was therefore valid.
The Deputy Commissioner of Commercial Taxes vs M. Kyishna swami Mudaliar, [1954] 5 S.T.C. 88, held not applicable.
Sri Sundararajan & Co. vs The State of Madras, [1956] 7 S.T.C. 105, approved.
The Government of Andhya vs East India Commercial Co., Ltd., [1957] 8 S.T.C. 114 and Bengal Immunity Co., Ltd. vs State Of Bihar,[1955] 2 S.C.R. 603, referred to.


judgement:
minal Appeal No. 341 of 1960.
Appeal by special leave from the judgment and order dated July 20, 1960, of the Bombay High Court in Criminal Appeals Nos. 488, 426 of 1960 with Review Application.
555 and 641 of 1960.
G. C. Mathur, for the appellant.
B.R.L. Iyengar and D. Gupta, for the respondent.
May 4.
The Judgment of Kapur, Subba Rao and Shah, JJ. was delivered by Kapur, J., and the judgment of Hidayatullah and Dayal JJ., was delivered by Dayal, J. KAPUR, J. This is an appeal against the judgment and order of the High Court of Bombay imposing the sentence of death in appeal by the State against the order passed by the Sessions Judge, Dhulia.
The facts of the appeal are these: The appellant, in about 1950, married Sindhubai the daughter of Chandrabhagabai.
Sindhubai who is the deceased had read up to the 7th Standard.
The appellant and Sindhubai were residing in a one room tenement in a house belonging to one Tavar pleader in which there 'are in all 12 to 15 tenements.
The tenement of the appellant was not very far from ' that of the appellant 's cousin Shantabai who was residing with her husband Pandu Genda and the house of 777 Cliandrabhagabai was about a furlong away from that of the appellant.
The relations between the appellant and the deceased were normal for sometime but about two years before the occurrence differences had arisen and there were frequent quarrels between them.
A child of the marriage was born about 1 1/2 years before the occurrence.
The deceased was a frequent visitor to her mother 's house to which the appellant took objection.
The appellant bad stopped giving her the necessities of life including foodgrains etc.
About a week before Diwali the appellant gave her a beating.
The deceased used to have her meals with her mother and the appellant with his cousin Shantabai and the daughter of the marriage Urmila stayed with the mother of the deceased during the day time.
The occurrence was on the Bhaubij day i.e. November 2, 1959 between 1.30 and 3.30 in the afternoon.
After having her meals at her mother 's house the deceased returned to her husband 's house and went to sleep in the afternoon.
It is stated that while she was sleeping the appellant gave her a beating and after sprinkling Kerosene oil on her clothes, set fire to them.
The deceased with her clothes burning went in the direction of the house of Shantabai but fell down in front of it and was almost naked when some body covered her body with a dhoti.
Chandrabhagabai received information, it is stated, from her nice Suman about this fact and Chandrabhagabai ran to the spot, and found her body burnt.
The cousin, Shantabai and her husband Pandu Genda also arrived and on enquiry by Chandrabhagabai the deceased told her that her husband had set fire to her clothes after sprinkling kerosene oil on her.
By this time a police constable informed the Police Station which was nearby and an ambulance car was sent and the deceased was taken to the Civil Hospital, Dhulia at about 4 15 P.m.
She was examined by Dr. Javeri who 778 treated her and on his enquiry the deceased told him that her husband had set fire to her clothes after sprinkling kerosene oil on her clothes.
Dr. Javeri then informed the police and advised that a dying declaration be recorded.
At about 5 30 P.m. a Magistrate Mr. Mhatre recorded the statement of the deceased but she died at 8 15 P. M. on the same day in the hospital.
The defence of the appellant was that of alibi, in that he was at work on the house of Mulchand Rajmal at Nehru Nagar which was being built and that he was entirely innocent of the offence.
The trial court found that it was the appellant who had set fire to the clothes of the deceased after sprinkling kerosene oil; that the appellant had the intention of causing such bodily injury to the deceased as was likely to cause death and it therefore convicted the appellant of an offence under section 304 Part 1 and sentenced him to three years ' rigorous imprisonment and a fine of Rs. 100/ .
The learned judge accepted the testimony of the mother Chandrabhagabai as to the dying declaration and also that of Dr. Javeri and finally he accepted the dying declaration recorded by the Magistrate which was in the form of questions and answers.
In all her dying declarations the deceased had accused the appellant of setting fire to her clothes and thus causing her severe bums.
The State took an appeal to the High Court which convicted the appellant of an offence under section 302, Indian Penal Code and sentenced him to death.
Against that judgment and order the appellant applied for certificate to appeal to this Court under article 134 (1) (a) but the certificate was refused and this Court gave special leave under article 136 of the Constitution.
The first question for decision is whether the appellant had a right of appeal to this Court under article 134 (1) (a) and the decision of that must depend 779 upon the construction to be put on the language used in that Article the relevant portion of which is as follows: 134 (1) ""An appeal shall lie to the Supreme Court from any judgment, final order or sentence in a criminal proceeding of a High Court in the territory of India if the High Court. (a) has on appeal reversed an order of acquittal of an accused person and sentenced him to death.
" If the High Court reverses an order of acquittal of an accused person and sentences him to death an appeal shall lie as of right to this Court under the Article.
The argument raised on behalf of the appellant was that as the appellant was acquitted of the offence of section 302 and was convicted under section 304 Part 1 it was a case of reversing an order of acquittal.
The argument on behalf of the State was that the word acquittal meant complete acquittal.
The decision of this must depend upon the construction of the word "acquittal".
If a person is acquitted of the offence charged and is convicted of a lesser offence, as in the present case, can it be said that he was acquitted and the High Court had on appeal reversed the order of acquittal.
" In our opinion the word "acquittal ? does not mean that the trial must have ended in a complete acquittal of the charge but acquittal of the offence charged and conviction for a minor offence (than that for which the accused was tried) is included in the word ", 'acquittal".
This view has the support of a judgment of the judicial Committee of the Privy Council in Kishan Singh vs The King Bmperor (1).
In that case an accused person was tried by the Sessions Judge under section 302 of the Indian Penal Code on a charge of murder but was convicted under section 304 for culpable homicide not amounting to murder, the Court having power to do that under section 238 (2) of the Criminal Procedure Code.
He was sentenced to (1) (1928) L.R. 55 I.A. 390.
780 five years ' rigorous imprisonment.
No acquittal of the charge under section 302 was recorded.
There was no appeal to the High Court by the then local Government but, it applied for revision under section 439 on the grounds that the appellant should have been convicted of murder and the sentence was inadequate.
The High Court convicted the appellant of murder and sentenced him to death.
On appeal to the Privy Council it was held that the finding of the trial court was to be regarded as an acquittal on the charge of murder and that under section 439 (4) Criminal Procedure Code the word "acquittal" did not mean complete acquittal.
At page 397 Sir Lancelot Sanderson observed: "Their Lordships, however, do think it necessary to shy that if the learned Judges of the High Court of Madras intended to hold that the prohibition in section 439 sub section 4 refers ' only to a case where the trial has ended in a complete acquittal of the accused in respect of all charges or offences, and not to case such as the present, where the accused has been acquitted of the charge of murder, but convicted of the minor offence of culpable homicide not amounting to murder, ' their Lordships are unable to agree with that part of their decision.
The words of the sub sec tion are clear and there can be no doubt as to their meaning.
There is no justification for the qualification which the learned Judges in the cited case attached.
to the sub section.
" We are in respectful agreement with the interpretation put on the word "acquittal" by the Judicial Committee of the Privy Council and the word "acquittal" therefore does not mean that the trial must have ended in a complete acquittal but would also include the case where an accused has been acquitted of the charge of murder and has been convicted of a lesser offence.
In that view of the matter the appellant was entitled, to a certificate 781 under article 134 (1) (a) as a matter of right and this appeal must be treated as if it is under that provision of the Constitution.
The facts of this appeal have been set out above.
In support of the prosecution the evidence mainly, if not solely, consists of the dying declarations.
The first dying declaration was made to the mother Chandrabhagabai as soon as she came to the place where the deceased was lying and in answer to her question "as to who had done it," the reply was that "it was done by her husband., also that the husband had set fire to her clothes.
" In cross examination she stated that at the time when this statement was made by the deceased Shantabai and her husband Pandu Gonda were present.
A suggestion was made to her that the deceased implicated the appellant at the instance of Chandrabhagabai but she repudiated this suggestion and both the trial court and the.
High Court have accepted the correctness of this dying declaration and also that it was not prompted by the mother Cbandrabhagabai.
Beyond a mere suggestion in the cross examination there is no material to support the contention of prompting by the mother.
A similar statement accusing the appellant of setting fire to her was made by the deceased to the Doctor (Dr. Javeri) who asked the deceased as to how she got the burns and her reply was that her husband had sprinkled kerosene oil on her and bad applied a match stick to her clothes.
This statement was also accepted by the High Court and we find no reason to differ from that conclusion.
The third dying declaration was made in the presence of and was recorded by Mr. Mhatre, a Magistrate at about 5 30 P.M. in the presence of Dr. Javeri who certified that the deceased was in a fit state of mind to make the statement.
The Magistrate asked her certain questions which are set out in detail and he took down the answers and his evidence is that the deceased understood the questions and replied to them.
He 782 made a record of the questions and answers but that record was not signed by her nor her thumb impression taken on it because her hands were badly burnt.
This examination took about an hour.
This dying declaration was held by the trial Court to have been made without the help or prompting 'of anybody and according to Chandrabhagabai she was not present at the time.
The learned Trial Judge held that the dying declaration was "freely given without the influence of anybody.
It was not made under influence of any personal feelings.
" The High Court Also accepted the correctness of this dying declaration and there is no evidence on the record which would in any way detract from the finding of the trial Court or of the High Court,.in regard to the correctness or the propriety of this dying declaration.
The argument raised before us was two fold: (1) that the appellant was not present at the place of occurrence at all and (2) that it was a case of suicide.
There are no cogent grounds which would lead to the, conclusion that the deceased wanted to commit suicide nor have any circumstances been shower to us which would lead to any such conclusion.
Even though it may be true that the relations between the husband and the wife, were strained so much so that the husband had almost refused to maintain the deceased and was not prepared to give her even food there is no indication that the deceased was so worked up as to have lost her self control so as to commit suicide.
Certain other circumstances as to the absence of any kerosene oil on the clothes of the appellant or the absence of kerosene oil on the bedding have been pointed out but in the circumstances of this case those circumstances are of no significance.
Both the trial court and the High Court have found that the deceased had died as a result, of burns 'caused by the fire set to her clothes by the appellant who had sprinkled kerosene oil on her, 783 This is supported by the dying declarations against the correctness of which no cogent reasons have been given or suggested and a conviction based on such evidence has been held to be sustainable by this Court in khushal Rao vs The State of Bombay (2).
The plea of alibi was sought to be supported by the evidence of Gangaram Sitaram a co worker of the appellant but his testimony was rejected by both the trial Court and the High Court and having gone through it we find no reason to differ from that opinion.
In the result this appeal fails and is dismissed.
RAGHUBAR DAYAL, J. We agree that the appellant had a right of appeal under article 134 (1) (a) of the Constitution, but regret our inability to agree with the view that the conviction of the appellant under s.302, I. P. C., be maintained.
In appeals preferred under article 134 (1) (a) of the Constitution , we are to assess afresh the value of the evidence of record, and do not follow the practice of this Court in appeals, by special leave, under article 136 of the Constitution, that the concurrent findings of the Courts below be not interfered with, ordinarily, but be interfered with only when special circumstances exist.
We are of opinion that it is not safe in this case to base the conviction of the appellant solely on the dying declarations made by the deceased, even though in law a conviction can lawfully be based on dying declaration alone if the Court feels fully satisfied about its giving a true version of the incident.
The first dying declaration was made to her mother, by the deceased.
It was certainly natural for the mother to question her daughter as to how she got burnt.
But that does not really mean that (2) ; 784 the daughter did state all what the mother deposes.
Two points arise there, and they are : (a) Did the mother speak the truth ? and (b) Did the daughter ,speak the truth ? The mother, P.W. 1, admittedly, has not good relations with her son in law.
She made discrepant statements.
The Sessions Judge has remarked, in paragraph 12 of his judgment, that there were lot of discrepancies in the statements of this witness.
Reference may be made to her stating at one place that when she used to request the accused not to beat the daughter, the result was adverse and denying the correctness of this statement when questioned in cross examination.
According to her, only she was sent away from the room when the Magistrate recorded the dying declaration of the deceased in the hospitals indicating that the accused and some others continued to remain in the room.
This statement is not borne out by Dr. Javeri or by the Magistrate.
She expressed ignorance about the deceased making a statement.
to the police.
The Sub Inspector and Dr. Javeri deposed about her making such a statement.
She could not have been ignorant about it.
She deposes that the accused came to the spot where Sindhubai, the deceased, lay injured, about five minutes after her arrival, She knew that he had set fire to Sindhubai 's clothes after pouring kerosene oil on her.
She did not question him about it.
She did not reprimand him.
She did not abuse him.
She did nothing which could have, been normally expected of a mother knowing that the, accused bad burnt her daughter The explanation that she was sorrow strike, lacks the ring of truth.
Grief striken she must be, but that would not have made her mute.
According to her Sindbubai made this dying declaration when Shantabai, cousin of the accused, and her husband Pandu Genda were present.
These witnesses have not been examined by the prosecution to corroborate her statement.
785 The other dying declaration relied on by the Courts below was made by the deceased to Dr. Javeri, on his casually questioning the deceased as to how she got injured.
It may be natural, but we have our doubts, for the Doctor to put such questions to the patient in agony, which had no real connection with his duties as a medical man, and such questioning cannot be said to have any comforting effect on the patient.
Such questioning can be nothing but idle curiosity which a Doctor in that position should not evince.
Any way, it would not be a good precedent to rely on such a statement to the Doctor in such circumstances, when the Doctor makes no record about it, even if it be not required to be noted in the medico legal register.
We would consider it safe not to rely upon such a statement made to a casual question by the Doctor, the details of which statement are not clear.
The dying declaration made to the police has been ignored, the Sessions Judge considering that it was not made at all, or not made at the time the Sub Inspector deposed to have got the dying declaration from the deceased.
No significance attaches to this dying declaration in any case when it was recorded after the deceased had made a formal dying declaration to the Magistrate.
The dying declaration to the Magistrate has certainly been recorded with care.
The relevant statements made in this dying declaration are the following "I am suffering injuries of burning.
My husband is my enemy.
My husband has burnt me.
Kerosene was poured over my body and a match stick was lighted.
I was sleeping in the house.
He, i.e., my husband, beat me and then burnt me.
I shouted, but nobody came.
He was ill treating me.
He was harassing me and was causing me starvation for 786 the last 8 days.
I had complained about it to Pandu Genda and Shanta Pandu.
I did not send any information to my parents about the starvation.
The High Court has stated several times in its judgment that Sindhubai was sleeping when the accused set fire to her clothes.
The panchnama Exhibit No. 14.
prepared about the room, does not show that the bedding had any oil sprinkled over it or that it got burnt.
Quite a number of other clothes were burnt, which need not have caught fire.
Absence of oil on the bedding is not consistent with her statement that she was sleeping in the house when the thing happened.
This statement is also not consistent with the next statement made by her that her husband beat her and then burnt her.
Her statement that nobody came on her shouts because the door of the house was shut, does not fit in with her statement to the police in Exhibit 19 that the accused ran away on his work after he had set fire.
The probability too is that if the accused had set fire to her clothes he would run away just after setting fire as he could expect that the victim would shout and that her shouts would attract neighbours and persons passing by.
Even if the door was latched for some time while the accused remained there because he did go subsequently, that does not explain the non arrival of any person.
The persons could have come and could have knocked at the door.
It is really remarkable that in this case not a single witness of the neighbourbood has come to depose anything in support of the prosecution case.
There is no evidence at all from an outside source.
The investigation seemed to have revealed nothing whatever.
, There is nothing inthe case to lend assurance to any circumstance.
Surely, this cannot be the result of the accused 'sinfluence on the witnesses or the result of a general inclination not to speak the truth in the interests of justice, even when the 787 accused committed the dastardly act of setting fire to his own wife.
Their absence from the witness box may be due to their not standing what they knew to be untrue or did not consider to be true.
It is always a difficult question to speculate why deceased accused a certain person of committing the crime, or why a witness deposes against a person with whom he has no ostensible cause of enmity or why the police.
in the discharge of its public duty should influence persons to make inaccurate statements, when Courts come to the conclusion that the accusation or the evidence does not appear to be true and that there are reasons to suppose that the.
police had influenced the testimony of witnesses.
Anyway, the same difficulty occurs in the present case.
But it is clear that the relations between the wife and the husband were strained to such an extent that, according to the prosecution, the accused not only starved her, but also set fire to her clothes with the intention to cause her death.
Such a conduct of the husband cannot be on account of ordinary domestic unpleasantness, but must be the result of a very acute feeling of desperation and a desire not to live any more with his wife.
If such were the relations which one is inclined to infer from what the prosecution wants the Court to believe, it should not be difficult to imagine that the wife 's motives in charging the husband falsely may be equally strong.
She too must have been fed up with the misery of her life and might have committed suicide and put an end to her life, but when, as often happens, she was questioned, she accused her husband of setting fire to her clothes, not with a view to save herself from a conviction for attempting to commit suicide, but either on account of her feeling that her husband was responsible for all her troubles and that her disparate action was also due to the same cause or out of malice.
Any way, a dying declaration is not to be believed merely because no possible reason 788 can be given for accusing the accused falsely.
It, can only be believed if there are no grounds for doubting it at all.
Apart from the above considerations indicating that implicit reliance cannot be placed on the dying declaration, there are other circumstances which add to the feeling of uncertainty about the truth of the accusation made in the dying declaration.
The panchnama of the room shows that a few shirts and old trousers and pieces of two sarees lay near the southern wall of the room in a wet and half burnt condition There is no explanation why such clothes should have been burnt.
There was no point in the accused pouring kerosene oil on these clothes even if they just lay huddled near the wall.
If Sindhubai fell on the clothes lying there, that may burn some of them, but will not explain their getting wet.
There is no suggestion that anybody had poured water over the 'burnt clothes in order to extinguish the fire, because none came there at all.
In fact, Ranganath Sitaram, P.W. 6, one of the Panchs, states that the burnt clothes were also giving smell of rock oil.
The panchnama further notes : "On the eastern wall, two feet height from the ground there is a black spot caused due to the burning of the clothes and the same is recent one.
" There is no explanation why such a mark should be there.
Sindhubai could not have stood opposite the wall and, even if she did, there should have been marks of burning along the length of her body beside the wall and not at a certain spot only.
These two observations can be consistent only with somebody deliberately setting fire to the clothes and keeping some burning clothes beside the wall for a, little time, The appellant, or whoever 789 set fire to her clothes, would not have done this as he would have made a very quick exit after drenching Sindhubai with kerosene oil and setting fire to her clothes.
Sindhubai does not make any statement about such a conductor the accused in her dying declaration.
The only inference then possible is that she herself (lid all this, in accordance with her own inclinations.
Why she did this, one cannot say.
Sindhubai returned to her house with her daughter after taking her mid day meal at her mother 's house and sent back the daughter with Usha.
This is according to the statement of her mother.
She brought the child, when, according to her mother 's statement, she expected her husband to come to the house after taking his meal at his cousin 's place.
The conduct is unusual, as, ordinarily, the child used to remain with her maternal grand mother during the day time, as for some reason the accused probably felt aversion to her.
The conduct can 'be consistent with her intention to commit suicide.
She brought the child to her place to fondle with her for the last time and then sent her back to her mother.
Sindhubai 's running towards the house of Shantabai, her husband 's cousin, and not running towards her mother 's place, also appears to be unnatural.
It may be that in such troubles moments one need not be absolutely logical, but it is expected to be instinctive that when in trouble one thinks of one 's relations who are expected to be sympathetic, and helpful, on the occasion.
It is in the statement of her mother that the route to her house is different from the passage to the house of Shantabai.
It may be that the accused did not go to the house as expected, and went away to his job from his cousin 's place.
It was a day of festival.
Sindhubai might have felt this conduct badly set fire to her clothes, and then run towards 790 Shantabai 's house where she might have expected her husband to be present.
The time of the incident though said to be between 1 30 and 3 30 P.m., appears to have been near about 3 O ' clock.
The mother states to have got information about that time.
Tile police got information at about 3 45 P.m., and the ambulance took Sindhubai to the hospital at 4 15 P.M.
The accused was not expected to be at his house at 3 P.m.
The learned Judges of the High Court did not believe the defence evidence about the accused working at the house of Mulchand Rajmal from about 2 P.m. and to have gone to his house on receiving information from one Daga because Daga was.
not examined, the Munim of the house owner was not examined and the register of workers was not produced.
It is however the case for the prosecution that the accused used to go to work at 7 A.M., to return at 12 O 'clock and again go for work at 2 P.m., and then return at 6 P.m. Chandrabhaga, the mother of the deceased, deposes so.
There is therefore no good reason 'to think that the accused did not go to his duty at 2 P.M., that day as deposed to by D.W. I. Sindhubai herself stated in her statement to the police that the accused, after setting her on fire, ran away to his work.
If the time of the incident be calculated from the time the police was informed, i. e., from 3 45 P.m., the incident would have taken place some time between 3 and 3 30 P.m., and the accused would not have been at his house at that time.
In fact, it appears to us that it is to avoid this difficulty that at Rome stage an attempt was made to time the incident at about 1 30 P.m.
The incident could not have taken place before 2 P.m., as, in that case, information to the police would be very belated and in the normal course of events, it is not expected that Sindhubai would have tarried in the room for long or that the persons who must 791 have collected after her running towards Shantabai 's place and falling down there, Would not have taken steps to inform the police without any undue delay.
The mother 's statement that Sindhubai used to tell her that if the ill treatment continued, she would sever her connection with the accused and would earn her own living would support the view that she had really got tried of her living with the accused and that this could have prompted her to attempt suicide.
If Sindhubai was not actually asleep when the kerosene oil was poured on her, it does not stand to reason that she would not have made any attempt to run away and the possibility of the accused successfully setting fire to her clothes in the course of the struggle, would be remote, and even if he succeeded, it is a moot point whether he too would not have been singed, if not burnt.
Those are the various considerations which make us feel doubtful about the truth of the dying declaration and take the view that the appellant 's conviction on the basis of the dying declaration should not be maintained.
It appears from the High Court judgment that the case put before it was "sometime after 1.30 P.m., the accused latched the room from inside and while Sindhubai was sleeping he poured a large quantity of kerosene oil on her person.
Her clothes became wet with that kerosene oil and before she could struggle and get up he searched for a match stick, lighted it and set Sindhu 's clothes on fire '.
Such a case could not be made out from the dying declaration recorded by the Magistrate.
Sindhubai had said at first she was sleeping when it happened, but, in answer to the very next question, she said that her husband beat her and then burnt her.
If the burning followed the beating, there could be no question of throwing kerosene oil on 792 her while asleep.
No reason for this conduct was stated.
The, Magistrate who cleared the doubt full points failed to elicit why this deed was perpetrated.
Further, the searching for a match box is very improbable thing.
If the accused had decided to set fire to his wife, he would have got, a match box handy and if he did forget about it and had to search for it, that would give sufficient time to Sindhubai to make good her escape.
The aversion of Sindhubai to tell the name of her husband could not have been on account of any tender feeling for her husband, but was the natural act of a Hindu married woman not to tell her husband 's name.
This aversion to tell the name of her husband is no guarantee of the truth of her subsequent statement accusing her husband of the crime.
We do not find any justification for the following observation of the High Court, when considering the defence evidence : "The accused has led evidence and his case is that he was not responsible for this murder at all.
But in fact he was in the house when the incident took place.
" The High Court had made the latter statement as a statement of fact, though there was no evidence to support it.
Of course, on the basis of a dying declaration, the High Court had already held before discussing the defence evidence, that the accused was responsible for the murder of his wife.
If the defence evidence is to be adjudged on the basis of the final finding of the Court, there is no use for defence evidence.
It has to be taken into consideration before arriving at a final finding.
The conduct of the accused in travelling in the same ambulance car and in remaining in the 793 hospital is in his favour and is against the prosecution.
The accused stated in his examination that he paid the charges for the ambulance car.
We would like to remark that the learned Judges who heard the appeal should not have heard it when they, at the, time of admitting it, felt so strongly about the accused being wrongly acquitted 'of the offence of murder that they asked the Government Pleader to look into the papers to find out whether it was a case where the Government would like to file an appeal against the acquittal, under section 302, I.P.C. Government did file an appeal against that acquittal.
We do not know whether it was at the suggestion of the Government Pleader or not.
But, in these circumstances, it would have beep better exercise of discretion if this appeal against the acquittal had not been heard by the same Bench which, in a way, suggested the filing of the Government appeal.
In fact, to make such a suggestion, appears to be very abnormal.
We are therefore of opinion that it is not satisfactorily proved that the appellant committed the murder of his wife by setting fire to her clothes.
We would therefore allow the appeal.
, set aside the order of the Court below and acquit the appellant of this offence.
By COURT.
In accordance with the opinion of the majority, this appeal fails and is dismissed.

dataset_name: IN-Abs

summary/full:
The appellant was tried for an offence under section 302 Indian Penal Code for the murder of his wife.
The evidence consisted mainly of the uncorroborated dying declaration of the wife.
The Sessions judge accepted the evidence but convicted the appellant under section 304 Part 1 Indian Penal Code.
On appeal by the State the High Court convicted the appellant of an offence under section 302 Indian Penal Code and sentenced him to death.
The appellant contended that he had a right of appeal to the Supreme Court under article 134 (1) (a) of the Constitution and that his conviction was bad.
Held, that the appellant had a right of appeal to the Supreme Court under article 134 (1) (a) of the Constitution.
The conviction of the appellant under section 304 Part 1 of the Indian Penal Code by the Sessions judge amounted to an acquittal of the offence under section 302 and the High Court had reversed this order of acquittal and sentenced the appellant to death.
The word "acquittal" in article 134 (1) (a) did not mean that the trial must have ended in a complete acquittal of the charge, but acquittal of the offence charged and conviction for a minor offence was included in the word "acquittal".
Kishan Singh vs The King Emperor, (1928) L. R. 55, I.A. 390 relied on.
Per Kapur, Subba Rao and Shah, JJ.
The appellant was rightly convicted and sentenced by the High Court.
it was legal to found a conviction on the uncorroborated dying declaration.
The dying declarations had been accepted both by the Sessions judge and by the High Court and there was nothing in the evidence on the record which detracted from the findings of those courts in regard to the correctness or the propriety of this dying declaration.
776 Khushal Rao vs The State of Bombay, ; , referred to.
Per Hidayatullah and Dayal, JJ.
In an appeal under article 134 (1) (a) of ' the Constitution the Supreme Court assessed afresh the evidence on record and did not follow the practice in appeals by special Leave under article 136 that concurrent findings of the Courts below could be interfered with.
only when special circumstances existed.
In the circumstances of the present case it was not safe to rely on the dying declaration and the appellant was entitled to be acquitted.