minal Appeal No 462 of 1985
From the Judgment and Order dated 211284 of the Patna High Court in Crl
A No 146 of 1978 R
RC Kohli Advocate for the Appellant
Pramod Swarup Advocate for the Respondent
The Judgment of the Court was delivered by NP SINGH J
This appeal is on behalf of the sole appellant who has been convicted under section 304 Part 1 of the Indian Penal Code hereinafter referred to as the Penal Code and has been sentenced to undergo rigorous imprisonment for two years by the High Court
The appellant along with Sitaram Mandal and Tribhanga Mandal 140 were charged for offence under section 307 read with section 34 for attempting to commit the murder of Gopal Chandra Ravidas They had also been charged under section 379 of the Penal Code for committing the theft of the paddy crops from plot No 2760 of village Amjhore PS Baliapur District Dhanbad
According to the prosecution case on 261075 at about 1200 noon the informant Bishnu Ravidas PW 9 and his brother Gopal Chandra Ravidas having learnt that the accused persons were harvesting their paddy from the plot aforesaid went there
When they protested as to why their crops were being harvested accused Sitaram Mandal caught hold of the hands of Gopal Chandra Ravidas and Harendra Nath Mandal the appellant assaulted Gopal Chandra Ravidas on his head with the back portion of a Tangi
At that very time accused Tribhanga Mandal assaulted informant with a lathi on his right hand
On a consideration of the evidence on record the learned Sessions Judge convicted appellant Harendra Nath Mandal and Sitaram Mandal for offence under section 307 read with section 34 of the Penal Code and sentenced the appellant Harendra Nath Mandal to undergo rigorous imprisonment for seven years and accused Sitaram Mandal to undergo rigorous imprisonment for five years
Accused Tribhanga Mandal was convicted under section 323 and sentenced to undergo rigorous imprisonment for six months
All of them were also convicted under section 379 of the Penal Code and sentenced to one year rigorous imprisonment each
The sentences were directed to run concurrently
During the pendency of the appeal before the High Court Sitaram Mandal died and his appeal abated
The learned Judge however set aside the conviction and sentence under section 307 read with section 34 passed against the appellant Harendra Nath Mandal but convicted him under section 304 Part 1 of the Penal Code and sentenced him to two years  rigorous imprisonment
The conviction and sentence under section 379 were also set aside
The conviction and sentence under section 323 of the Penal Code against Tribhanga Mandal were also set aside and he was acquitted of the charges levelled against him
It was rightly urged on behalf of the appellant that when Gopal Chandra Ravidas to whom this appellant is alleged to have given a blow by the back portion of a Tangi has survived 141 the injury aforesaid there was no question of covicting the appellant under section 304 Part 1 of the Penal Code
Section 304 does not create an offence but provides the punishment for culpable homicide not amounting to murder
In view of section 299 of the Penal Code whoever causes death by doing an act with the intention of causing death or with the intention of causing such bodily injury as is likely to cause death or with the knowledge that he is likely by such act to cause death commits the offence of culpable homicide
In view of section 300 of the Penal Code except in cases covered by the five exceptions mentioned therein culpable homicide is murder
It is well known that if a death is caused and the case is covered by any one of the five exceptions of section 300 then such culpable homicide shall not amount to murder
Section 304 provides punishment for culpable homicide not amounting to murder and draws a distinction in the penalty to be inflicted in cases covered by one of the five exceptions where an intention to kill is present and where there is only knowledge that death will be a likely result but intention to cause death or such bodily injury which is likely to cause death is absent
To put it otherwise if the act of the accused falls within any of the clauses 1 2 and 3 of section 300 but is covered by any of the five exceptions it will be punishable under the first part of section 304
If however the act comes under clause 4 of section 300 ie the person committing the act knows that it is so imminently dangerous that it must in all probability cause death but without any intention to cause death and is covered by any of the exceptions it will be punishable under the second part
The first part of section 304 applies where there is guilty intention whereas the second part applies where there is guilty knowledge
But before an accused is held guilty and punished under first part or second part of section 304 a death must have been caused by him under any of the circumstances mentioned in the five exceptions to section 300 which include death caused while deprived of power of self control under grave and sudden provocation while exercising in good faith the right of private defence of person or property and in a sudden fight in the heat of passion without premeditation
So far the present case is concerned when death itself had not been caused there was no occasion for convicting the appellant under section 304 of the Penal Code
Now the next question is as to whether the appellant should be convicted for causing injury on the head of aforesaid Gopal Chandra 142 Ravidas with the back portion of a Tangi
It was pointed out that the appellant has sustained injuries during the same occurrence including one at the scalp
The aforesaid injuries on the person of the appellant were examined by the Civil Assistant Surgeon Sadar Hospital Dhanbad who has been examined as a witness at the trial
The appellant in his examination under section 313 of the Code of Criminal Procedure stated that he had sustained injuries aforesaid while warding off the Bhala blow aimed at his chest by the aforesaid Gopal Chandra Ravidas
The other accused Sitaram Mandal who died during the pendency of the appeal had also been examined by the jail Doctor in the Dhanbad jail and said Doctor was examined as a witness at the trial who proved the injuries on the person of accused Sitaram Mandal
The learned Judge himself on consideration of the materials on recored has come to the following conclusion  From the aforesaid discussion of the evidence in the facts and circumstances of the case it appears that since long before the occurrence both the parties were claiming title and possession over the disputed land and the occurrence took place regarding the harvesting of the paddy crop
In the same occurrence the informant PW 9 and his brother Gopal Ravidas sustained injuries and the first and second appellants were also injured
According to the appellants Gopal Ravidas aimed a Bhala  blow on the chest of the first appellant but he warded it off and sustained injuries at his hand
The first and the second appellants were also assaulted by lathis
The injuries were examined and proved by the doctor DW 8
Likewise the injuries of the second appellant were examined by the jaid doctor DW 7 who proved the injury report
May be that their injuries were not severe but it was a matter of luck that the first appellant could avoid and ward off the Bhala  blow aimed at his chest
The manner of occurrence as alleged by the appellants in which they sustained injuries has been suppressed and the true version of the occurrence has not been given by the prosecution
In the circumstances the right of private defence of person and property cannot be completely ruled out
 143 Once the finding aforesaid was recorded that the prosecution has not disclosed the true version of the occurrence and the right of private defence of person and property was available to the appellant then the appellant was entitled to be acquitted
Accordingly the appeal is allowed
The conviction and sentence passed against the appellant are set aside
NPV Appeal allowed


Summary:
The assessee appellant in the appeal is a non resident company having its place of business at Coven in the United Kingdom
It entered into a collaboration agreement with an Indian company in November 1939 the assessee being entitled to royalty of 5 on all sales effected by the Indian Company and this amount less the Indian tax had to be remitted by the assessee in Sterling currency
The assessee s accounting year was the year ending 30th September and with respect to its Indian income it was filing its returns through the Indian Company
The aforesaid collaboration agreement expired in the year 1965 but it was renewed and the renewed agreement also expired in November 1970
For the assessment years 1967 68 and 1968 69 the assessee riled returns in which it stated that it was maintaining its accounts on mercantile basis and did not dispute its liability to assessment
In these returns it disclosed a royalty income of Rs 721600 and Rs 457311 respectively
When it came to the filing of the return for the assessment year 1969 70 the assessee admitted a royalty of Rs 925357 but filed a nil return saying that it was maintaining its accounts on cash basis and not on mercantile basis that no part of the royalty amount had been received by it and therefore nothing was taxable
For the next assessment year 1970 71 as well the same stand was taken by the assessee
The Income Tax Officer completed the assessment for the first two 97 assessment years on the basis of the returnes but for the assessment years 1969 70 and 1970 71 he refused to accept the plea of the assessee and held that the assessee maintaining its accounts on mercantile basis alone and that the royalty amount disclosed be brought to tax
The assessee filed appeals against the assessments relating to all the four years taking the stand that even with respect to the accounting year relevant to the assessment years 1967 68 and 1968 69 it had been maintaining accounts on cash basis and since it did not actually receive any income in all these 4 years no tax was payable
The Appellate Assistant Commissioner dismissed the appeals holding that the assessment orders for the past years reveal that the method of accounting was mercantile that for the assessment year 1967 68 the assessee never contested its liability to be taxed on the amounts disclosed and further it was not open to the assessee to change the method of accounting to suit its convenience without the approval of the Income Tax Officer
The assessee carried the matter In further appeals to the Tribunal and contended that it was not following any particular method of accounting regularly in the past years that it was the Indian Company which was finally filing the returns of income on behalf of the assessee by incorporating the figures as per its profit and loss account that the Indian Company was not aware of the assessee s system of accounting in regard to royalty and that therefore it had committed a mistake in filing the returns for the assessment years 1967 68 and 1968 69 that as soon as the mistake had been noticed it was corrected and returns for the assessment year 1969 70 on correct basis showing that the method of account cash receipt basis was filed Me appeals were allowed the Tribunal which held that as the assessee had not been following any particular method of accounting regularly over the past years the question of the method of accounting adopted by the assessee must be examined afresh and for that purpose remanded the matters to the Income Tax Officer
On a reference made at the instance
of the Revenue the High Court answered the reference in favour of revenue and against assessee
The High Court held that it was immaterial whether the assessee was keeping his accounts in regard to a particular income regularly on the cash basis that even if the assessee was keeping his accounts on the cash basis in regard to his income the assessee was liable to tax under Section 5 2 a to hold 98 otherwise would be to take the income outside the purview of taxation under the Act though such income had accrued in India to a non resident and under Section 52b the charge to tax had taken effect and therefore there is no possibility of Section 52b ever coming into operation and that Section 1451 cannot be given such an overriding effect so as to defeat the charge and the provisions of Section 52b
The assessee appealed to this Court contending that so far as the royalty income was concerned the assessee was maintaining its accounts at Coventry in the United Kingdom on receipt basis that the accounting year was the year ending 30th September of each year whereas the accounting year for the Indian Company was the Calendar year and that notwithstanding the stipulation in the collaboration agreement for half yearly remittances the practice was that the Indian Company was determining the amount of royalty at the end of its accounting year and that this amount was credited to the account of the assessee in the account books of the Indian Company and that receipt is only when the amount is remitted to the United Kingdom in accordance with the Company
Dismissing the appeals this Court HELD The collaboration agreement between the assessee and the Indian Company was as old as 1939
The assessee had been riling its income tax return in India through the Indian Company
Though the collaboration agreement contemplated the royalty amount being remitted in Sterling Currency to UK it cannot be said that until it was so remitted to and received in the UK the assessee had not received the income
The practice evidently was that the Indian Company was maintaining an account pertaining to the assessee in its Books
After it made up its accounts at the end of the calender year and determined the royalty amount payable to the assessee the Indian Company was crediting the said amount to the account of the assessee in its Books and this was recorded as income by the assessee over all these years
The returns riled by the assessee even with respect to the assessment years 1967 68 and 1968 69 were based upon this premise
In the said returns the assessee declared a particular amount of income and offered the same for taxation
It did not take the stand that the said credit entry in the Books of the Indian Company did not give rise to income in India nor did it ever say that the receipt in UK in the shape of sterling pounds alone constitutes 99 income or for that matter receipt of income
It can also be noticed that in its returns relating to the assessment years 1967 68 and 1968 69 the assessee stated that it was maintaining its accounts on mercantile basis and that only in the returns relating to the assessment year 1968 69 did it raise the plea that it was maintaining its books with respect to the said royalty amount on cash receipt basis
105E H The receipt of the said income in the UK is immaterial
It may happen that a non resident assessee may choose not to repatriate his incomeprofits to his parent country he may choose to plough back the said amount in India for such purposes as he may choose
It therefore cannot be said in such a situation that he has not received the income in India
106H Raghava Red vs CIT Andhra Pradesh  relied on
107A The credit entry to the account of the assessee in the Books of the Indian Company does amount to receipt by assessee and is accordingly taxable
It is immaterial when it was actually received in UK 108C The method of accounting adopted by the assessee for the relevant accounting years Is really irrelevant
Thi very concept of receipt as espoused by the assessee is untenable and unacceptable
The order of remand made by the Tribunal was unnecessary
It is not necessary to express any opinion either on the question whether there is any conflict or inconsistency between Section 52 and Section 145 of the Act or on the view expressed by the High Court that in the case of a non resident assessee like the appellant clause a of sub section 2 of Section 5 has no application whatsoever and that Section 52b governs it irrespective of the fact whether it maintains its accounts on cash basis or mercantile basis
The question referred did not really arise in the facts and circumstances of the case and need not have been answered
The Tribunal shall complete the assessments in question
108D F CI T vs Machillan  Co  and Keshav Mills Ltd vs CI T Bombay  distinguished
108G