N Criminal Appeal No 238 of 1988
From the Judgment and Order dated 481986 of the Punjab and Haryana High Court in Criminal Appeal No 329 DB of 1986 and Murder Reference No 2 of 1986
Mrs Urmila Kapoor and Ms section Janani for the Appellant
R section Suri for the Respondent
The Judgment of the Court was delivered by OJA J
This appeal has come to this Court on grant of leave against the conviction of the appellant under Section 302 and sentence of death and also his conviction under Section 201 IPC and sentence of 7 years rigorous imprisonment and fine of Rs200 awarded by Sessions Judge Ferozepur and confirmed by the High Court of Punjab  Haryana
The appellant is convicted for having committed the murder of his father and son
It is alleged that deceased Banta Singh father of the present appellant owned 4 5 killas of land situated at Ferozepur Road where a tube well was also installed by the side of a samll kotha where he alongwith his grandson Seva Singh used to live away from the house where the appellant resided
It is alleged that Seva Singh was crippled and used to move about on a tricycle Banta Singh and Seva Singh used to go to Gurudwara of their village to render services
Banta Singh had only one son ie present appellant whereas the appellant had a son Seva Singh the deceased from his first wife since deceased
Later he married second time and had two children but she also died
At present he has the third wife and with her he has two sons
616 It was alleged as motive for the offence that the appellant used to quarrel with his father and son in connection with land owned by father as the latter wanted to transfer his land in the name of Seva Singh who used to live with the grandfather
According to the prosecution a day prior to Amawasaya of Chet 1985 May 1985 when Nihal Singh PW 2 was rendering services with Banta Singh and Seva Singh at Gurudwara at about 5 pm the appellant went to the Gurudwara and told his father and son that in the evening a truck of Car Seva would come from Fazilka and that they would go to Amritsar to take the holy bath
On this representation appellant took Banta Singh and Seva Singh from the Gurudwara
It is alleged that on the same day at about 10 pm when Nihal Singh was proceeding to his fields for guarding his tubewell he met the accused on the way and found carrying dang with him
On being questioned by Nihal Singh as to why he was there and why he did not go to Amritsar the appellant replied that Banta Singh and Seva Singh were sent to Amritsar by him in a truck of Car Seva
It is further alleged that when Nihal Singh did not see for sometime Banta Singh and Seva Singh he felt suspicious and lodged a report dated 10 October 1985 in the Police Station Mamdot
That became the FIR exhibit PG
SI Puran Singh who recorded the statement of Nihal Singh raided the house of the appellant who it is alleged was not present
On 13 of August 1985 it is alleged that the appellant made an extra judicial confession to one Amrik Singh and Amrik Singh produced the appellant before the Police
On 15 August 1985 a memorandum under Section 27 of the evidence Act was recorded by the Investigating officer at the instance of the appellant and later the dead bodies of Banta Singh and Seva Singh were recovered from a field
It is also alleged that at that time there was a Jhinjan crop standing in the field
The dead bodies were identified by one Channan Singh who was a Panch witness
The tricycle and other articles were recovered from the Kotha at the instance of the appellant
On the basis of this evidence the courts below convicted the present appellant
The circumstances which have been found against the appellant are i Last seen with the deceased at the Gurudwara by
Nihal Sing ii extra judicial confession made to Amrik Singh iii the statement under Section 27 leading to discovery of dead bodies and iv recovery of tricycle and other articles from the Kotha where the two deceased used to reside and the motive alleged against the appellant
617 Learned counsel for the appellant contended that as against the motive is concerned
the appellant at the trial had produced a will A executed by deceased Banta Singh wherein he has given away all his lands to the appellant
In the cross examination of prosecution witnesses it was suggested that  that his brother in law Manjit Singh was interested in getting the property transferred in his name or in his wife s name
It was also argued that extra judicial confession even otherwise is a very weak piece of evidence and in this case it is strange that the appellant chose this Amrik Singh to make an extra judicial confession and the reasons suggested by Amrik Singh also do not appear to be justifiable
Similarly it was said that the recovery of dead bodies and the memorandum of the statement leading to the discovery are of no consequence as even according to the Investigating officer he had learnt from Amrik Singh that the dead bodies were in the field but he felt that the information he had got was not sufficient and therefore he recorded the information under Section 27 given by the appellant
In our opinion these contentions are well founded and must be accepted as correct
The field where the bodies were recovered is an open place
It is alleged that there was Jhinjan crop standing in the field and prosecution has not led any evidence to indicate as to who was in possession of the field and who cultivated the crop which was standing at that time
We will discuss this part of the case in detail a little later
It is very significant to note that according to the medical opinion bodies were recovered about three months after the death
The bodies were found disintegrated
It was difficult to identify
The disintegration has gone to such an extent that the bodies could not be removed and sent for postmortem and therefore medical expert was called to the spot to perform the postmortem
The prosecution did not examine any one of the relatives or the daughter of deceased Banta Singh or the son in law Manjit Singh to identify the dead bodies although it has appeared in evidence that during the trial Manjit Singh was present in the Court
As to the extra judicial confession it may be noted that Nihal Singh claims to be a person who had seen the deceased Banta Singh and Seva Singh alongwith the appellant in the month of May in the Gurudwara
On the same night he again met the appellant and enquired about them
The witness also stated that when he did not see the old man for some time he became suspicious about the missing of those two persons
This witness in order to justify his meeting with the appellant at 10 PM
On that day said that although his own land was at 618 a distance he had taken some land on lease which was adjacent to the land of the appellant and so he had to go near the appellant s house
But in cross examination he had to admit that for the lease he had no document to support
The prosecution has suggested that the appellant did not search for his father but according to the appellant the deceased had been taken away by Manjit Singh to their place on the pretext that Manjit Singh s wife ie the appellant s sister was not well and this was also put in cross examination to Nihal Singh
In the absence of evidence of Manjit Singh the suggestion of the appellant cannot be brushed aside
On 10 August 1985 FIR was lodged by Nihal Singh PW 21 and on 13885 the appellant went to Amrik Singh PW 3 to make an extra judicial confession
Amrik Singh says that the appellant told him that as the Police was after him he had come and confessed the fact so that he might not be unnecessarily harrased
There is nothing to indicate that this Amrik Singh was a person having some influence with the Police or a person of some status to protect the appellant from harrassment
In his cross examination he admits that he is neither the Lumbardar or Sarpanch nor a person who is frequently visiting the Police Station
He further admits that when he produced the appellant there was a crowd of 10 to 12 persons
There is no other corroborative evidence about the extra judicial confession
As rightly conceded by the learned counsel for the State that extra judicial confession is a very weak piece of evidence and is hardly of any consequence
The council however mainly relied on motive the evidence of last seen the evidence of recovery of dead bodies and the conduct of the appellant in not making a report about the missing father and son
As regards the motive the will in question is sufficient to dislodge it
An attempt was made by the learned counsel for the State to suggest that even after the will the appellant could have done away with the old man to avoid changing the will
But the will was executed on 31 December 1984 and it is a figment of imagination that the murder was committed apprehending that the will likely to be changed
There is also no evidence to indicate that appellant was not having good relations with his father or that there was ever any trouble between father and the son
In fact Nihal Singh was asked in cross examination as to whether there was any dispute between the father and son He had to admit that there was no dispute or difference
As regards the evidence of last seen it was the case of appellant 619 that Manjit Singh had taken Banta Singh and Seva Singh to his place on the pretext that the wife of Manjit Singh was not well
There is no evidence led by the prosecution to negative this stand of the appellant
Manjit Singh has not been examined although it has come in evidence that he was present in the Court when Nihal Singh was examined
The sister of appellant was also not examined and in the absence of any such evidence to negative this stand of the appellant it could not be said that the prosecution has proved that suggestion was false
In these circumstances the presence of deceased Banta Singh and Seva Singh along with the appellant at the Gurudwara on the Amawasaya day in Chet could not be said to be the last seen before the murder in question
May be Nihal Singh saw them on that day but it is significant that no other person connected with the deceased has been produced to suggest that he was not seen thereafter
Therefore the evidence as to last seen also can not be considered as a piece of circumstantial evidence against the appellant
Then we are left with the recovery of the dead bodies
Investigating officer SI Puran Singh PW 8 admitted in cross examination that after recording the statement of Amrik Singh he could not know the correct place where the bodies and other articles were kept buried and concealed
This clearly indicates that he could get some information from the statement of Amrik Singh
As seen earlier the field is an open place surrounded by other fields and according to Nihal Singh the adjacent field is his own as he had taken it on lease and therefore it cannot be said that any one else could not have known about the bodies being buried in the field
The Investigating officer himself admitted that after recording the statement of Amrik Singh he knew that the bodies were buried in the field but he felt that information was not sufficient
It cannot therefore be said that the place from where the bodies were recovered was such a place about which knowledge could only be attributed to the appellant and none alse
Since the exclusive knowledge to the appellant cannot be attributed the evidence under Section 27 also cannot be said to be a circumstances against the appellant
As regards the recovery made from the Kotha where the deceased Banta Singh and Seva Singh used to reside there is nothing significant
The tricycle and other belongings of the deceased were bound to be there and on that basis no inference could be drawn against the appellant
620 In view of all these circumstances the charge against the appellant cannot be said to have been proved beyond doubt and the conviction of the appellant Therefore cannot be sustained
The appeal is therefore allowed
Conviction and sentence passed against the appellant are set aside
He is in custody
He be set at liberty forthwith if not wanted in connection with any other case
PSS Appeal allowed


Summary:
The appellant has been manufacturing compressed oxygen and dissolved acetylene falling under tariff item No 14H of the First Schedule to the Act
These items were sold to Government undertakings at the rates determined by DGSD
In respect of other buyers the appellant charges prices on slab basis which is related to quantitative discount
These prices were found to be much more than the prices indicated in the approved price list
The appellant did not furnish quantities of the products sold from its depotsservice centres
Apart from the declared price the appellant charged delivery and collection charges cylinder deposit and rentals
The appellant explained that the difference in prices was due to special delivery and collection charges incurred for transporting the goods from the place of manufacture to the depot from where it was sold
The appellant s claim for abatements of account of freight and handling charges was not accepted as no evidence was produced for the same
In respect of the price lists submitted by the appellant for approval show cause notices were issued
The appellant replied that in the past under similar circumstances the claim for abatement had been upheld by the Department and therefore there was no reason to deviate from the previous practice
The Assistant Collector rejected the plea and approved the price list after disallowing the abatement on account of freight and handling charges
The appellant preferred an appeal before the Collector of Central Excise Appeals which was dismissed
Thereafter both the appellant and the Assistant Collector filed separate appeals before the Customs Excise and Gold Control Appellate Tribunal
688 The Tribunal emphasised that the ex factory prices were ascertainable and there was no scope of deduction from that price
However it directed that if ex factory prices were not ascertainable and the goods were to be assessed ex depot then it would be for the appellant to claim on the basis of actual evidence and remanded the case to the Assistant Collector to refix the assessable value accordingly
These appeals under section 35Lb of the Act are against the Tribunal s decision
Disposing of these appeals  HELD 1
The cost of transportation from factory to the depot cannot normally be included in computation of the value under Section 41a read with section 44di of the Act
Where the wholesale price is ascertainable at the factory gate the question of transportation charges becomes entirely irrelevant
The cost of transportation from the factory gate to the place of delivery and transit expenses were not to be added to the wholesale price at factory gate for purpose of duty under the Act
It is clear from section 4 that the delivery and collection charges have nothing to do with the manufacture as they are for delivery of the filled cylinders and collection of the empty cylinders
These charges have to be excluded from the assessable value
Insofar as the loading charges incurred for loading the goods within the factory are concerned they are to be included in the assessable value irrespective of who has paid for the same but the loading expenses incurred outside the factory gate are excludible
Duty of excise is a tax on the manufacture not a tax on the profits made by a dealer on transportation
690F H 691A 2
In the instant case there is a clear finding that the ex factory price was ascertainable
If once that is the position that should be the basis upon which the value is to be determined the other expenses costs or charges must be excluded
693B Union of India  Ors etc
vs Bombay Tyre International Ltd etc
  referred to
This Court observed that the Tribunal s order stood modified accordingly and directed the Assistant Collector to re fix the assessable value as indicated in this judgment  693C