N Criminal Appeal No 326 of 1979
From the Judgement and Order dated 451979 of the Gujarat High Court in Criminal Appeal No 389 of 1976
TU Mehta PH Parekh and Ms Geetanjali Mathrani for the Appellant
DA Dave Anip Sachthey and BR Jad for the Respondent
The following Order of the Court was delivered
The appellant was charged under Section 302 IPC for causing murder of Gangaben her brother s wife  in the early hours of 11th June 1975 by pouring kerosene on her person and setting her aflame
The marriage had taken place with Jayantilal the brother of the appellant hardly three months before the incident in question
On the date of the incident the deceased was in the husband s house when the unfortunate incident took place
On hearing the cries a neighbor Prahladbhai went to the house and found that the deceased was inside the kitchen
He pushed opened the door and saw the deceased aflame
The said Prahladbhai Bhanubhai the brother of the appellant and others took her to Shardaben Hospital for treatment
They reached the casualty department at about 645 am and thereafter she was admitted to the Burns Ward as an indoor patient at about 650 am
Within five minutes thereafter PW 5 Dr Kritikumar Solanki examined her
While taking her case history he enquired of the injured as to what had happened
The injured replied my nanad sister in law burnt me
He prescribed certain medicines noted the case history and thereafter instructed the nurse
PW 4 Pankajben to give the treatment
Dr Solanki was incharge of the Burns Ward at the relevant time as PW 2
Dr Suresh Ambvani was absent
Dr Ambvani arrived at about 830 am in the ward and examined the patient
After noting her pulse etc he asked her how she had received the burns
She told him that she had been burnt
On further questioning she stated that her husband s sister and burnt her
Dr Ambvani thereupon asked her the name of her husband s sister which she disclosed as Padma the appellant before us
Dr Ambvani later made a note about the information divulged by the victim on the police yadi  which was received
92 at about 245 pm to ascertain if the victim was in a fit condition to make a dying declaration
After the victim was brought to the hospital a telephone message was sent to Madhupura Police Station
The investigating officer in the course of investigation recorded the panchnama of the scene of occurrence at about 1015 am
The panchnama shows that the residence of the victim was on the first floor
In the outer room pieces of burnt clothes and a peeled skin piece were found
To the south thereof was the kitchen which was smelling of kerosene
Pieces of burnt clothes were also lying in that kitchen
There was a primus with a burner and broken match box soiled with water lying alongside certain garmentsnamely two blouses two petti coats and two half burnt sarees
There was water on the floor
Inspector Nagori claims to have interrogated the accused on the same day but arrested her on the next day at about 500 pm
The investigation thereafter proceeded in usual course and ultimately the appellant came to be charged as stated above
The prosecution mainly relies on the evidence of the two medical men PW 2 Dr Ambvani and PW 5 Dr Solanki
In addition thereto reliance is placed on the evidence of the two nurses PW 3 Rukshmaniben and PW 4 Pankajben
The neighbor PW 7 Prahladbhai was also examined but he turned hostile
On an appreciation of the evidence of these witnesses the learned City Session Judge Ahmedabad came to the conclusion that this was a case of homicidal death
That conclusion has been confirmed by the High Court and has not been contested before us
With regard to the evidence of the two medical men the trial judge concluded that there was no reason to doubt their testimony since the same was corroborated by the contemporaneous entries made by them in the case paper and the police yadi 
Taking note of the evidence of PW 1 Dr Purohit who performed the post mortem a nd the evidence of PW 5 Dr Solanki he came to the conclusion that the victim was in a position to speak
having regard to the fact that she had 90 of burns her pulse was 130 respiration was 20 and her general condition was not good he concluded relying on the decisions of this Court in Balak Ram  Anr
vs State of UP  1975 Crl
Appeals Reporter 39 and Lallubhai vs State of Gujarat that the deceased could not be in a fit state of mind when she made the dying declaration
He thought it unsafe to place implicit reliance on the said evidence particularly because it was the appellant s contention that she was not on good 93 terms with her brother ie the husband of the deceased
The learned trial Judge also thought that the possibility of torturing could not be ruled out
In this view that he took he gave the benefit of doubt to the appellant and acquitted her
The State feeling aggrieved filed an appeal being Criminal Appeal No 389 of 1976 which was heard and decided by a Division Bench of the High Court of Gujarat on 4th may 1979
The High Court on a re appreciation of the prosecution evidence concluded that the view taken by the learned Sessions Judge was thoroughly untenable
The High Court pointed out that two main reasons which weighed with the learned Sessions Judge for acquitting the appellant were 1 that the deceased had not the requisite mental condition so as to make acceptable dying declaration and ii that her husband was very much near the cot of the deceased and hence the possibility of tutoring the deceased cannot be ruled out
The High Court closely examined both these reasons and concluded that they could not be supported by the evidence on record
Being conscious of the fact that while dealing with an acquittal appeal the High Court should give due weight to the views of the trail court on the question of credibility of the prosecution evidence and should not lightly interfere with its appreciation it carefully scrutinized the evidence particularly in regard to the two oral dying declarations and concluded that there was no possibility of tutoring nor was the deceased mentally unfit to make the dying declarations
In that view of the matter it reversed the order of acquittal convicted the appellant of murder and sentenced her to life imprisonment
Mr Mehta the learned counsel for the appellant has taken us through the entire evidence as well the case law on which the learned trial Judge has based his order of acquittal
He also invited our attention to a number of decisions of this Court in support of his contention that the High Court ought not to have interfered with the order of acquittal
According to him the High Court should have given due regard to the appreciation of evidence by the trial court and should not have lightly brushed aside its conclusion on facts
Counsel submitted that an order of acquittal strengthens the presumption of innocence which should not be dislodged unless the appellate court comes to the conclusion that the trial court has committed a manifest error of judgement resulting in miscarriage of justice
His submission was that this Court should approach the question by inquiring if the High Court had adhered to the well settled principle that if two views are possible and the trial court accepts one view which the High Court considers less probable the High Court will not reverse the trial court
Lastly he 94 contented that although a conviction can be based solely on a dying declaration courts should be slow to accept a dying declaration as true where it is not recorded in question and answer from and is cryptic in nature since it is a piece of evidence not tested by cross examination
The weight to be attached to a dying declaration must largely depend on whether or not the deceased was a fit state of mind to make it and since in the present case the trial court had ruled against the prosecution the High Court was not justified inreversing the trial court more so because if was doubtful if she could speak at all having regard to the burns on her lips and tongue
In support of his submission he cited a host of decisions of this Court but it is unnecessary to refer to them as on principle there can be no dispute with the propositions of law stated by the appellant s counsel
We have given given our anxious considerations to these submissions but we are afraid we cannot accede to them because in the facts of the present case we are satisfied that the High Court would have failed in its duty if it had not reversed the decision of the trial court
The evidence on record shows that the marriage had taken place hardly three months before the incident
Even on the appellant s own showing her relations with the deceased were not strained
The appellant is the only sister of the husband of the deceased
The word nanad  means the husband s sister
Therefore when the deceased told PW 5 Dr Solanki that her nanad  had set her on the fire she meant the appellant and none else
The evidence of nurse PW 4 Pankajben corroborates the evidence of Dr Solanki
Both these witness have deposed that the deceased was in a fit state of mind and was able to speak elbeit with difficulty
If there was any doubt on the question of identity it was cleared by PW 2 Dr Suresh Ambvani to whom the deceased gave the name of her tormentor as padma
The learned Sessions Judge also came to the conclusion that notwithstanding the extensive burns the patient was conscious and was able to speak at the time she made the dying declarations
Her condition soon deteriorated and by 245 pm she was not in a position to make any statement to the police as recorded by PW 2 Dr Ambvani on the police yadi 
Dr Ambvani hadhowever recorded what the patient had told him
Therefore besides the oral evidence of two medical men there are contemporaneous documents which go to show that the deceased made the statements in question
Even the learned Sessions Judge did not doubt the correctness of truth of what both the medical men deposed but in his view the deceased was not mentally fit when she named the appellant
It is well settled by a catena of cases that a dying declaration is 95 admissible in evidence on the principle of necessity and can form the basis for conviction if it is found to be reliable
While it is in the nature of an exception to the general rule forbidding hearsay evidence it is admitted on the premises that ordinarily a dying person will not falsely implicate an innocent person in the commission of a serious crime
It is this premiss which is considered strong enough to set off the need that the maker of the statement should state so on oath and be cross examined by the person who is sought to be implicated
In order that a dying declaration may form the sole basis for conviction without the need for independent corroboration it must be shown that the person making it had the opportunity of identifying the person implicated and is thoroughly reliable and free from blemish
If in the facts and circumstances of the case it is found that the maker of the statement was in a fit state of mind and had voluntarily made the statement on the basis of personal knowledge without being influenced by others and the court on strict scrutiny finds it to be reliable there is no rule of law or even of prudence that such a reliable piece of evidence cannot be acted upon unless it is corroborated
A dying declaration is an independent piece of evidence like any other piece of evidence neither extra strong nor weak and can be acted upon without corroboration if it is found to be otherwise true and reliable
In the present case there can be no doubt that the deceased had an opportunity to see her tormentor as the incident happened in broad day light
Since the incident occurred in the early hours of the day there was the possibility of a family member being involved
There being no dispute that death was homicidal the question is who did it As no relative from the side of her parents was present the possibility of tutoring by them must be ruled out
The theory that her husband prompted her to name the appellant because his relations with the appellant were strained must be brushed aside as devoid of merit
Except the appellant s statement in this behalf there is no other evidence no such foundation was laid in the cross examination of the investigating officers
Since it is conceded that the appellant s relations with the deceased were not bad it is difficult to understand why the latter should falsely involved her assuming her husband did prompt her and allow her real tormentor to escape
Since the appellant is the only sister of her husband there remains no doubt about the identity of the nanad  husband s sister or sister in law
Doubt if any is removed by PW 2 Dr Ambvani s evidence to whom she disclosed the name Padma 
Both the medical men were conscious about her condition and therefore they would not have attached any importance to her statement if they had any doubt about her mental capacity
Even Mr Mehta had to concede that he was not in a position to say that the two medical men were motivated in giving false evidence
96 Mr Mehta howevercontented that apart from the fact that the appellant had 90 burns her pulse rate was high and she had respiratory difficulty the evidence of PW 5 Dr Solanki shows that he had prescribed morphine injection and therefore by the time PW 2 Dr Ambvani examined her she could not be in a conscious state to make the dying declaration to him
In this connection he relied on the statement of PW 4 Pankajben who stated that she had given the treatment prescribed by Dr Solanki
Mr Mehta however overlooks PW 4 Pankajben s categorical statement that she had not given any injection to the victim
On the other hand the other nurse PW 2 Rukshmaniben deposed that she had given the morphine injection intravenously after Dr Ambvani left the ward
Therefore the submission has no merit
Mr Mehta then submitted that having regard to the fact that the victim had 90 burns and her general condition was poor it would be hazardous to hold that her statements to the two medical men were true
He also argued that she had burns on her lips and her tongue was swollen making it doubtful if she could talk
We do not think there is any merit in this submission
In Suresh vs State of MP this Court was required to deal with a more or less similar situation
In that case the victim had sustained 100 burns of the second degree and her dying declaration was recorded by Dr Bhargava in the hospital
Dr Bhargava had deposed that the victim was in a fit state of health
The evidence howeverdisclosed that while Dr Bhargave was recording her statement the victim had started going into a coma
Yet this Court accepted the dying declaration made by the victim to Dr Bhargava
Therefore the mere fact that she had suffered 90 burns and her general condition was poor is no reason to discard the testimony of both of medical men when they say that she was in a fit state of mind and was able to make the dying declaration in question
Lastly the contention that since the dying declarations were not in question and answer from they must be discarded altogether is not correct
Dr Solanki had merely asked the patient how she was burnt to record the history of her case
The victim answered by stating that her nanad  husband  sister had burnt her
Dr Ambvani too had merely tried to ascertain from the deceased how she was burnt and it was only after she stated that she was burnt by her sister in law that he tried to find the name of her tormentor
In these circumstances we do not think that the failure on the part of the medical men to record her statement in question and answer from can in any manner affect the probative value to be attached to their evidence
In Rabi Chandra Padhan  Ors
vs State of Orissa at p 244 this Court 97 merely stated that dying declaration should preferably be in the question and answer form
That would be so when the statement of the victim is sought to be recorded as a dying declaration
But in the instant case as seen from the evidence of both the medical men they merely questioned her for the limited purpose of stating they history of the case
Even otherwise having regard to her condition they could not have questioned her in detail
In such circumstances the fact of the statements being cryptic is understandable
See Bankey Lal vs State of UP We therefore do not think that it would be reasonable to discard the prosecution evidence in regard to the dying declaration on such slender grounds
In the result we see no merit in this appeal and dismiss the same
The appellant will submit to her bail within fifteen days from today
Bail bond will stand canceled
RP Appeal dismissed


Summary:
The respondent assessee a private limited company and a licensee under an agreement was required to pay to its foreign colaborators licensors certain amounts towards cost of working drawings and royalty
It applied to the Income Tax Officer to grant the necessary certificate to enable it to approach the Reserve Bank of India for remittance to its foreign collaborators
The Income Tax officr held that the remittance represented payment for supply of technical know how and for use of the trade name and manufacturing right of the licenser company and that the said amount neither fell within the exempted category nor did the agreement for avoidance of double taxation apply to the case and directed the assessee to deduct tax  65 on the sum to be remitted
The assessee did not dispute the assessability of the royalty but challenged in appeal that since the whole of the sum towards the cost of working drawings exceeded the remuneration the same was not taxable and that the assessment was barred by the Double Taxation Avoidance Agreement
The Appellate Asstt
Commissioner rejected the Double Taxation Avoidance plea but determined the cost of the working drawings at 75 and the net profit chargeable at 25 of the amount to be remitted to the non resident company
The Revenue appealed before the Appellate Tribunal challenging the jurisdiction of the appellate authority under section 248 to determine the quantum of income and that the Appellate Asstt
Commissioner was wrong in allowing expenses  75 of the remittance
The assessee filed cross objection
Holding that the Appellate Asstt
Commissioner could pass an order regarding the quantum that the amount fixed by him 118 could not be said to be unreasonable and that the amount brought to charge by the Income Tax Officer was not exempt under the Double Taxation Avoidance Agreement the Tribunal dismissed the Department s appeal and partly allowed the assessee s cross objection
At the instance of the Revenue the Tribunal referred the question to the High Court which was answered in favour of the assessee
In the appeal by certificate to this Court it was contended that the order passed by the Income Tax Officer under section 1952 was not appealable to the Appellate Asstt
Commissioner under section 248 and that the appellate authority had no jurisdiction to deal with the quantum of the sum chargeable under the provision of the Income Tax Act from which the assessee was liable to deduct tax under section 195
Dismissing the appeal this Court HELD 11 Once an appeal has been preferred to the Appellate Asstt
Commissioner under section 248 of the Income Tax Act 1961 on the matter of liability of the company to deduct taxes the appellant authority was well within its competence to pass an order on quantum also
124D 12 Section 2511c gives full power to the appellate authority to pass such orders in the appeal as it thinks fit
125A 13 The right to appeal under section 248 of the Income Tax Act is clear and it cannot be said that such a right is restricted and the Appellate Asstt
Commissioner was not competent to fix the quantum or to revise the proportion of the amount chargeable under the provisions of the Act as determined by the Income Tax Officer
124F 2
The language of section 248 of the Income Tax Act 1961 is wide enough to cover any order passed under section 195
The Appellate Asstt
Commissioner was also competent to pass an order with regard to quantum when once he is seized of the matter
123F 124D 3
Under section 248 a person having deducted and paid tax under s195 may appeal to the Appellate Asstt
Commissioner denying his liability to make such deduction and for a declaration that he is not liable to make such deduction
124E Meteor Satellite Ltd vs Income Tax Officer Companies Circle IX Ahmedabad  held inapplicable