minal Appeal No 827 of 1981
From the Judgment and Order dated 22781 of the Allahabad High Court in Government Appeal No 1861 of 1975
PK Dey Rakesh Goswami and Ms
Rani Jethmalani NP for the Appellant
RC Verma for the Respondent
The Judgment of the Court was delivered by NP SINGH J
The appellant was acquitted of the charges under sections 302 and 307 read with section 34 of the Penal Code by the Trial Court
On appeal being filed on behalf of the State of Uttar Pradesh he has been convicted under section 302 of the Penal Code by the High Court and sentenced to undergo rigorous imprisonment for life
It is the case of the prosecution that on 2521974 at about 600 PM Chandrapal PW 2 along with Jagdish hereinafter referred to as the deceased were returning after answering the call of nature
It is said that at that time this appellant along with co accussed Ramesh came from the side of the village seeing Chandrapal PW 2 and the deceased the appellant and Ramesh rushed towards them with knives
After some chase the appellant gave a knife blow on the chest of the victim
The co accused Ramesh gave a knife blow to Chandrapal PW 2
Thereafter the appellant and Ramesh fled away
The victim while being taken to Debai died on the way Chandrapal PW 2 lodged the first information report at the Police Station Debai at about 1130 PM the same night
75 The motive of the occurrence according to the prosecution is that about 10 or 12 days before the date of the aforesaid occurrence there was some altercation between Chandrapal PW 2 and the deceased on the one side and this appellant on the other in which the appellant is said to have abused them
Chandrapal PW 2 and the deceased had given twothree slaps to the appellant
The defence of the appellant was that the prosecution has suppressed the real manner of occurrence
According to the appellant
for last two days prior to the date of occurrence the crop of his grand father Sohan Lal was being damaged
Because of that he was keeping a watch on the said field
During night Chandrapal PW 2 and the deceased came to the field
The appellant raised an alarm chor chor
Thereafter Chandrapal PW 2 and the deceased started running
The appellant chased them to catch them
But soon they turned back and started assaulting the appellant with lathies
To save his life the appellant attacked with a ballam  spear
The injuries on the person of the appellant were examined the next morning
He also filed an application before the Superintendent of Police giving his version of the occurrence in which he admitted that when he was being assaulted by Chandrapal PW 2 and the deceased he bad used a ballam
A case was registered by the Police at about 1025 AM on 2621974 on the basis of the petition filed on behalf of the appellant
The injuries on the person of the appellant were examined by Dr RP Rastogi at the District Hospital Bullandshahar on 2621974
He found the following injuries on his person 1 Faint contusion 2 cm x 12 cm back of left shoulder upper part
2 Faint contusion 10 cm x 2 cm on outer side left back at the lower angle of scapula
3 Faint contusion 4 12 cm x 1 cm on back of upper part 13rd left forearm
4 Faint contusion 12 cm x 1 cm on the back and inner aspect left forearm upper 13rd
 During the post mortem examination of the deceased which was also held on 2621974 the following injury was found on his person 76 Stab wound 1 x 12 x 134
On probing on left side front of chest 212 inner to left nipple at 10 O  clock position pointing the onwards and downwards
 The Doctor PW 1 who held the post mortem examination ad mitted that the aforesaid injury could be caused by ballam
So far Chandrapal PW 2 is concerned the Doctor noted the following injury on 2621974 Abrasion 1 12 x 13 on the left side front of chest horizontally with shallow edge medically 7 below ancillary pit
The wound was not bleeding afresh but had got clotted blood over it
 The Doctor in Court stated that possibility of self infliction of that injury could not be ruled out
According to the State even if the version disclosed by the appellant is accepted it will amount to a case of free fight between the prosecution party and the accused both being armed and when there is a free fight there is no question of right of private defence accruing to any side
A free fight is that when both sides mean to fight a pitched battle
The question of who attacks and who defends in such a fight is wholly immaterial and depends on the tactics adopted by the rival party
In such cases of mutual fights both sides can be convicted for their individual acts
This position has been settled by this Court in the cases of Gajanand vs State of Uttar Pradesh AIR 1954 SC 695 Kanbi Nanji Virji vs State of Gujarat AIR 1970 SC 219 Puran vs State of Rajasthan AIR 1976 SC 912 and Vishvas Aba Kurane vs State of Maharashtra AIR 1978 SC 414
As such once it is established by the prosecution that the occurrence in question is result of a free fight then normally no right of private defence is available to either party and they will be guilty of their respective acts
But so far the facts of the present case are concerned if the version disclosed by the accused can be held to be a probable version of the occurrence then it cannot be held to be a case of free fight
According to the appellant the crops of the field of his grand father were being damaged for last two days prior to the date of the occurrence because of that appellant claims that he was watching the said field
During the night the 77 deceased and Chandrapal PW 2 came to the same field and the appellant chased them
But soon they turned back and started assaulting the appellant with lathies
At this stage the appellant wielded his ballam spear which caused an injury to the deceased which ultimately proved fatal
It is an admitted position that the appellant filed a petition before the Superintendent of Police giving his version of the occurrence in the morning of basis of that a case was registered at about 1025 AM on 2621974 the occurrence having taken place during the night of 2521974
This fact has been admitted by Shri Manohar Singh PW 6 who has proved the first information report lodged on behalf of the prosecution
On the examination Dr RP Rastogi PW 3 of the District Hospital Bullandshahar did find four injuries including one on the scapula of the appellant
It is true that injuries were simple in nature
But even on the deceased only one injury 1 x 12 134 was found on the left side front of the chest which according to the Doctor who held the post mortem examination could have been caused by a weapon like ballam spear
In the statement under section 313 of the Code of Criminal Procedure hereinafter referred to as the Code given by the appellant it was stated by the appellant in detail as to how the standing crops on the land of his grand father were being damaged and on the night of the occurrence he was guarding the field when he saw the deceased and Chandrapal PW 2 destroying the crops in the field
He also stated that he shouted chor chor and then chased them to catch them
But soon they turned round and started giving lathies blows and in self defence the appellant used a ballam
It appears that all this happened in the aforesaid field which the apppellant was guarding
From time to time this Court has pointed out that merely because some injuries are found on the accused which have not been explained by the prosecution by itself shall not be a ground for rejecting the whole prosecution case
It will depend on facts of each case what inference should be drawn by the Court
In the case of The State of Gujarat vs Bai Fatima   it was said that when the prosecution fails to explain the injuries on the person of an accused depending on the facts of each case any of the three results may follow  1 That the accused had inflicted the injuries on the members of the prosecution party in exercise of the right of self defence
78 2 It makes the prosecution version of the occurrence doubtful and the charge against the accused cannot be held to have been proved beyond reasonable doubt
3 It does not affect the prosecution case at all
 The aforesaid three inferences drawn on basis of the nature of injuries were reiterated in the case of Lakshmi Singh vs State of Bihar AIR 1976 SC 2263 and it was further observed It seems to us that in a murder case the non explanation of the injuries sustained by the accused at about the time of the occurrence or in the course of altercation is a very important circumstance from which the Court can draw the following inferences 1 that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version 2 that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and therefore their evidence is unreliable 3 that in case there is a defence version which explains the injuries on the person of the accused it is rendered probable so as to throw doubt on the prosecution case
The omission on the part of the prosecution to explain the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one
 A three Judge Bench in yet another case of Bliaba Nanda Sarma vs The State of Assam   said The prosecution is not obliged to explain the injuries on the person of an accused in all cases and in all circumstances
This is not the law
It all depends upon the facts and 79 circumstances of each case whether the prosecution case becomes reasonably doubtful for its failure to explain the injuries on the accused
 In the case of Hare Krishna Singh vs State of Bihar   it was said If the witnesses examined on behalf of the prosecution are believed by the Court in proof of the guilt of the accused beyond any reasonable doubt the question of the obligation of the prosecution to explain the injuries sustained by the accused will not arise
When the prosecution comes with a definite case that the offence has been committed by the accused and proves its case beyond any reasonable doubt it becomes hardly necessary for the prosecution to again explain how and in what circumstances injuries have been inflicted on the person of the accused
 But in the case of State of Rajasthan vs Madho AIR 1991 SC 1065 it was held If the prosecution witnesses shy away from the reality and do not explain the injuries caused to the respondents herein it casts a doubt on the genesis of the prosecution case since the evidence shows that these injuries were sustained in the course of the same incident
It gives the impression that the witnesses are suppressing some part of the incident
The High Court was therefore of the opinion that having regard to the fact that they have failed to explain the injuries sustained by the two respondents in the course of the same transaction the respondents were entitled to the benefit of the doubt As first impression there appears to be some conflict in the views expressed in the different judgments of this Court referred to above
But on proper reading with reference to the facts of each case there is no basic difference and according to us this Court rightly in the case of The State of Gujarat vs Bai Fatima supra put in three categories the result which may follow from the facts of each case
It is well known that guilt of the 80 accused is to be judged on the basis of the facts and circumstances of the particular case
In any particular case the injuries found on the person of the accused being serious in nature may assume importance in respect of the genesis and manner of occurrence alleged by the prosecution
In other case the injuries being superficial by themselves may not affect the prosecution case the version disclosed by the prosecution having been proved by witnesses who are independent reliable and trustworthy supported by the circumstances of that particular case including the prompt ness with which the first information report was lodged on behalf of the prosecution
But if the first information report has not been lodged promptly and there is no reasonable explanation for the delay the witnesses who support the version of the prosecution are not only inimical but even their evidence is not consistent with the circumstances found during the course of investigation then in that situation injuries on the person of the accused which are not very serious in nature assume importance for the purpose of consideration as to whether the defence of the right of private defence pleaded by the accused should be accepted
It is well known that accused pleading the right of private defence need not prove it beyond reasonable doubt
It is enough if on the basis of the circumstances of a particular case applying the test of preponderance or probabilities the version becomes acceptable
There are not two parallel versions before the Court one on behalf of the prosecution and other on behalf of the accused and the Court is required to choose as to which of the two versions is the correct version of the occurrence
The burden placed on the accused is discharged no sooner he creates a doubt in the mind of the Court and satisfies the Court that the version disclosed by him in the facts and circumstances of that particular case is more probable
The onus of the accused under section 105 of the Evidence Act has been examined by this Court in the cases of Partap vs The State of UP   Mohan Singh vs State of Punjab AIR 1975 SC 2161 Seriyal Udayar vs State of Tamil Nadu AIR 1987 SC 1289 Vijayee Singh vs State of UP  and Buta Singh vs State of Punjab So far the present case is concerned the injuries found on the person of the appellant are not serious in nature and merely on the ground that prosecution has suppressed those injuries the appellant is not entitled to the acquittal
But those injuries can certainly be taken into consideration 81 while judging whether the defence version of the accused is probable
The motive disclosed on behalf of the prosecution for the occurrence is not acceptable
Even if it is assumed that because of some altercation 1012 days before the date of occurrence the appellant had decided to cause the murder of Jagdish then more injuries would have been caused on the person of the victim by the appellant instead of an injury 1 x 12 x 1 34
The prosecution case regarding assault by Ramesh with a knife on Chandrapal PW 2 has been disbelieved by the Trial Court as well as the High Court
The delay in lodging the first information report by Chandrapal PW 2 has not at all been explained
The occurrence according to prosecution took place at 600 PM in the evening
The victim while being taken to Debai which is at a distance of five kilometers expired on the way
Then why first information report was lodged at 1130 PM there is no explanation
On the other hand the appellant s case is that the occurrence did not take place at 600 PM in the evening but at later part in the night
That appears to be more probable
The appellant appeared before the Superintendent of Police the next morning and disclosed his version of the occurrence on basis of which a case was registered
His injuries were also examined only the next morning
He also took a firm stand during his statement under section 313 that he give a ballam blow when the deceased and Chandrapal PW 2 started assaulting him with lathies
Out of the four injuries one was on the scapula
The doctor has not opined that they were manufactured or self inflicted
Those injuries according to the doctor had been caused by a blunt weapon which is consistent with the defence version of the occurrence
The injury found on the chest of the deceased is inconsistent with the prosecution case that appellant chased the deceased and then gave a blow by knife
But it is consistent with the defence version that soon the deceased and Chandrapal PW 2 returned and started assaulting the appellant when the appellant gave a ballam blow in the chest of the deceased
If the appellant had given the ballam blow while chasing the deceased in that event it would have caused injury on the back of the deceased
The High Court has not disbelieved the version disclosed by the appellant
The High Court on consideration of the evidence and the circumstances of the case has observed It is true that this respondent gave a different time of the occurrence and his version of the occurrence was also 82 different and it has been disbelieved by the learned Sessions Judge obviously on cogent grounds
But this cannot wash out the effect of his clear stand all through that there was a marpit between him and the informant and the deceased in which he had wielded a spear on them
This part of this respondent s version was clearly severable from the rest of his version and it was not at all necessary that if the learned Sessions Judge disbelieved his version regarding the manner of the occurrence he was bound to rule out of consideration this admission of the respondent which was clearly separate and severable from the rest of his story
 The High Court has used a part of the statement of the appellant as an admission
According to us that part of the statement made by the accused under section 313 of the Code cannot be used as an admission supporting the prosecution case
It is well known that an admission has to be taken as a whole
It was not open to the High Court to reject one part so far the aggression and assault by the prosecution party which according to the appellant preceded giving of the ballam blow and to accept only the later part of the statement that appellant gave a ballam blow for the purpose of convicting the appellant
In the case of Hanumant Govind Nargunadkar vs State of Madhya Pradesh AIR 1952 SC 343
it was said It is settled law that an admission made by a person whether amounting to a confession or not cannot be split up and part of it used against him
An admission must be used either as a whole or not at all
 The High Court should have taken the whole statement made by the appellant as an admission and then should have examined what shall be the effect thereof on the prosecution case
According to us taking all facts and circumstances into consideration the version of the accused of the occurrence appears to be probable and acceptable
The next question is as to whether in the circumstances of the case appellant could have caused the death of Jagdish
While accepting the plea of right of private defence it has been said that if the right is available while judging the question whether the accused has exceeded such right should not be weighed in a golden scale
But the right of private defence 83 does not extend to infliction of more harm than is necessary for the purpose of defence
When the appellant caused the injury with a ballam spear in the chest of the victim which resulted in his death certainly he exceeded his right of private defence
Accordingly the conviction of the appellant under section 302 of the Penal Code is set aside
But the appellant is convicted under section 304 Part 1 and sentenced to rigorous imprisonment for seven years which according to us shall meet the ends of justice
The appeal is allowed in part to the extent indicated above
VPR Appeal allowed partly


Summary:
Ballarpur a public limited company undertook to set up a caustic sodachlorine manufacturing plant
It entered into an agreement with a French concern for purchase of certain machinery and equipment
In another agreement with Ballarpur the French concern agreed to provide services of certain personnel and Ballarpur agreed to pay salaries and other emoluments free of any Indian tax or duty to the personnel
The French concern entered into an arrangement with a Swiss concern for supply of certain machinery and to make available services of certain personnel
The assessee appellant was one such person
He came to India and started working in connection with the setting up of the plant
In addition to daily allowances and other facilities the assessee appellant was paid Rs 382 481 and Rs 67200 for the assessment years 1974 75 and 1975 76 respectively
Before the Income Tax Officer the assessee contended that he was not liable to pay tax
The ITO did not agree
Ballarpur paid the tax amount of Rs 323400 and Rs 35546 for the assessment years respectively
The Income Tax Officer treated the tax amount paid by Ballarpur as a perquisite and added the same to the salary amount of the assessee
The assessee questioned the action of the ITO in appeal before the AAC which was dismissed
28 The appeal flied before the Tribunal was also dismissed whereupon the assessee obtained a reference to be answered by the High Court
The High Court answered the reference whether on the facts and in the circumstances of the case the amount of tax paid by Ballarpur on behalf of the assessee in assessment years 1974 75 and 1975 76 is income taxable under the heading other sources  against the assessee
Hence these appeals by the assessee contending that the amount paid by way of tax could not be treated as Income  of assessee that as the assessee did not receive the said amount from Ballarpur it could not constitute his income
Dismissing the appeals this Court HELD 101
The definition of Income  in clause 24 of Section 2 of the Act is an inclusive definition
It adds several artificial categories to the concept of income but on that account the expression income  does not lose its natural connotation
It is repeatedly said that it is difficult to define the expression income  in precise terms
Anything which can properly be described as income is taxable under the Act unless of course it is exempted under one or the other provision of the Act
31D 102
The amount paid by Ballarpur by way of tax on the salary amount received by the assessee can be treated as the income of the assessee
The said amount is nothing but a tax upon the salary received by the assessee
By virtue of the obligation undertaken by Ballarpur to pay tax on the salary received by the assessee among others it paid the said tax
The said payment is therefore for and on behalf of the assessee
It is not a gratuitous payment But for the said agreement and but for the said payment the said tax amount would have been liable to be paid by the assessee himself
He could not have received the salary which he did but for the said payment of tax
The obligation placed upon Ballarpur by virtue of Section 195 of the Income Tax Act cannot also be ignored in this context
It would be unrealistic to say that the said payment had no integral connection with the salary received by the assessee
31E G 103
Inasmuch as the assessee is not an employee of Ballarpur which made the payment it cannot be brought within the purview of Section 17 of the Act
It must necessarily be placed under sub section 1 29 of Section 56 income from other sources 
According to the said sub section income of every kind which is not to be excluded from the total income under the Act shall be chargeable to income tax under the head income from other sources  if it is not chargeable to income tax under any of the other heads specified in Section 14 Items A to E 32A B N 4
Modi vs SAL Narayana Rao SC CL T Bombay vs Smt
TP Sidhwa and Mrs Sheela Kaushish vs CI T Delhi 131 TR 435 SC distinguished