Criminal Appeal No 624 of 1979
From the Judgment and Order dated 2731979 of the Madhya Pradesh High Court in Criminal Appeal No 498 of 1977
Frank Anthony Sushil Kumar Jain Ms Pratibha Jain and RV Singh for the Appellants
UN Bachhavat Uma Nath Singh and JM Sood for the Respon dent
The following Order of the Court was delivered These two appellants namely Mathura Prashad and Binda Prashad have preferred this appeal questioning the correct ness and legality of the judgment rendered in Criminal Appeal No 49877 by the High Court of Madhya Pradesh at Jabalpur Bench
These two appellants A4 and A5 before the Trial Court along with three others namely Gulab Chand and Gulab Singh and Laxman Rao who were arrayed as accused Nos 1 to 3 took their trial on the accusation that on the night intervening 561275 at about 1230 am at Sarkanda Bilaspur within the limits of Bilaspur Police Station Civil Lines intentionally caused the death of the deceased Keshav Singh by Gulab Singh stabbing the deceased with a knife and the rest of the people assaulting him and that in the course of the same transaction they also committed the offence of dacoity
Under the above accusation they were tried for offences punishable us 302 IPC in the alternative us 302 IPC read with 149 IPC and also for offence us 396 IPC
The Trial Court found the third accused namely Laxman Rao not guilty of any of the charges and consequently acquitted him but convicted these two appellants and accused Nos 1 and 2 who are not before us us 302 read with 34 IPC and sentenced each of them to undergo imprisonment for life
However the Trial Court acquitted the appellants and the other two accused of the offence us 396 IPC
On being aggrieved by the judgment of the Trial Court the convicted accused namely these two appellants Gulab Chand and Gulab Singh filed 429 an appeal before the High Court which for the reasons men tioned in its judgment dismissed the appeal confirming the conviction recorded by the Trial Court
Challenging this judgment these two appellants filed their SLP No 190279 and the other two convicted accused namely Gulab Chand and Gulab Singh A1 and A2 filed a separate petition in SLP Crl No 143579
This Court by an order dated 291079 granted leave so far as SLP filed by these two appellants but dismissed the SLP filed by the first and the second accused namely Gulab Chand and Gulab Singh
Hence the present appeal by these two appellants
The facts of the case which led to the filing of this appeal are well set out in the judgments of the Trial Court and the High Court and hence we think that it is not neces sary for us to proliferate the same except to refer to certain salient features relevant for the disposal of this appeal
The deceased Keshav Singh was a petition writer
He was living in his house at Sarkanda in Bilaspur with his wife Smt
Phatokan Bai PW 19 and two daughters namely Anjani Bai PW 1 and Shail Kumari PW 2 and his son Ram Kumar PW 3 who was younger to PW 1 and eider to PW 2
There were some tenants in different parts of that house
The accused Gulab Chand occupied a portion of that house as a tenant but vacated the same about two months before this occurrence due to frequent quarrels between the children and ladies of the families belonging to Gulab Chand and that of the deceased
It is alleged that the wife of Gulab Chand had complained about some alleged misbehaviour of the deceased with her
According to the prosecution when the deceased was sleeping in a room with his wife on the iII fated night he heard someone knocking at the door
On this the deceased switched on the light and opened the door
This appellant and the other accused entered his room
Gulab Chand and Gulab Singh whipped up their knives and gave stab wounds one on the chest another on the back while bending
These two appellants slapped and fisted the deceased
It is fur ther stated that the second appellant herein namely Binda Singh caught hold of the deceased and banged him against the wall repeatedly
PW 19 tried to save her husband but she was pushed aside
During the course of the occurrence a gold PUTRI  which PW 19 was wearing was attempted to be snatched away from her
PW 1 who was sleeping in a room on the first floor on hearing the cry got down and saw these appellants and the other accused leaving her father s room
It is alleged that the appellant while running away took with them a box con taining some clothes and other articles belonging to PW 1
According to the prosecution the appellants had chained the doors in such a way that the other inmates of the house could not reach the spot
430 After the appellants had fled away PW 1 opened the doors
PW 3 who was sleeping in another room reached the spot
PW 15 was a tenant in an adjoining room and he on hearing the distress cry of PW 19 wanted to come out of his room but he could not do so as the house was chained from outside
Therefore PW 15 shouted for opening the latches of the door
He came to the spot after the door was opened
One Ramji Dayal who seemed to have played an important role in the prosecution also reached the spot but he has not been examined by the prosecution as a witness
All the witnesses saw bleeding injuries on the body of Keshav Singh the deceased herein who was unable to speak
PW 3 at the instance of his deceased father brought a pen and a piece of paper on which the injured Keshav Singh wrote Gulab Chand  and thereafter became unconscious
The injured Keshav Singh was then taken to the Government hospital at Bilaspur where he succumbed to his injuries
The medical officer sent a requisition exhibit P 14 to the police station
PW 19 by then lodged the first information report Exh
P 43 at about 300 am on 61275 before PW 21
PW 21 held inquest and pre pared the inquest report Exh
During the course of the investigation he has seized exhibit P50 the paper on which the deceased had written the name Gulab Chand  on being produced by PW 3
PW 9 the medical officer who conducted autopsy on the dead body of the deceased found two stab wounds and one incised wound on the person of the deceased
PW 8 another medical officer examined accused Gulab Singh and found on his person a small incised wound at the base of the index finger on the palmer aspect
After completing the investigation the charge sheet was laid against all the accused persons
As aforementioned the trial court convicted the four accused inclusive of these two appellants which conviction was confirmed by the High Court
Hence this appeal by these two appellants
Of the witnesses examined PWs 1 2 and 19 speak about the participation of the appellants in the perpetration of this heinous crime
No doubt both the Courts below have concurrently found that these two appellants and the other two accused 1 and 2 were responsible for causing the death of the deceased and consequently convicted and so the question would be whether this Court while exercising its jurisdiction under Article 136 of the Constitution of India will be justified in interfering with the concurrent find ings of fact
This Court in Balam Ram vs State of UP 11975 3 SCC 219 at 227 held that the powers of the Supreme Court under Article 136 of the Constitution are wide but in criminal appeals this Court does not interfere with the concurrent findings of fact save in exceptional circumstances
The 431 scope of interference by this Court under Article 136 of the Constitution of India in a case of concurrent findings of fact arose in Arunachalam vs PSR Sadhanathan  wherein this Court has held that Article 136 of the Constitution of India invests the Supreme Court with a plenitude of plenary appellate power over all Courts and Tribunals in India
The power is plenary in the sense that there are no words under Article 136 itself qualifying that power
But the very nature of the power has led the Court to set limits to itself within which to exercise such power
It is now the well established practice of this Court to permit the invocation of the power under Article 136 only in very exceptional circumstances as when a question of law of general public importance arises or a decision shocks the conscience of the Court
But within the restrictions im posed by itself this Court has the undoubted power to interfere even with findings of the fact making no distinc tion between judgments of acquittal and conviction if the High Court in arriving at those findings had acted per versely or otherwise improperly
See State of Madras vs
A Vaidyanatha Iyer  and Himachal Pradesh Admin istration vs Om Prakash We think that it is not necessary to swell this judgment by citing all the decisions relating to this principle of law
When the facts and circumstances of the case are scruti nised in our considered opinion they do compel this Court to interfere on the ground that the findings of the Courts below suffer from the vice of perversity
I1 is the admitted case that the deceased was a petition writer and so in that capacity he was very well conversant as to how to draft a complaint
He asked for a pen and paper and wrote the name Gulab Chand  evidently thereby saying that Gulab Chand was the assailant
The deceased had not written any other name except the name of Gulab Chand
Now the explana tion given by the prosecution is that the deceased became unconscious after writing this one name Gulab Chand thereby saying had he not become unconscious probably he would have written the names of other assailants also
But we have to test this evidence in the background of the evidence given by other witnesses namely PWs 1 2 and 19
PW 19 who is none other than the wife of the deceased was sleeping in the same room in which the deceased was sleeping and there fore she must be the proper and natural witness and her evidence has to be given credence
PW 19 admittedly did not inform either PW 1 or PW 2 the names of the assailants but she gave the names only to PW 3 her son
It transpires from the evidence of PW 19 that after PW 1 went to fetch the rickshaw PW 3 asked his father as to who had assailed him and that it was only thereafter the injured Keshav Singh wrote the name of Gulab Chand on a piece of paper
The relevant portion of the evidence of PW 19 reads as follows 432 Then Ram Kumar asked my husband as to who had assaulted and he asked for a pen and paper
Ram Kumar brought a paper and pen and my husband could write on it the name of Gulab Chand
In this connection evidence of PW 2 may also be re ferred to which is as follows Then at this stage my brother asked him as to who had assaulted him
My father asked by a sign of hand for a pen and paper whereupon my brother brought the pen and paper and gave that to my father
My father wrote on it by his hand he wrote the name of Gulab Singh and thereafter he became unconscious  This dearly indicates that before the deceased wrote the name of Gulab Chand on the paper given by his son PW 3 no one including PW 19 came forward with the names of the assailants but it is only thereafter PW 19 gave the names of the assailants
Here also the prosecution is not con sistent because PW 2 says that her father also gave the name of all the assailants to Ram Kumar PW 3
The relevant part of PW 2 s evidence reads thus Then my mother and father both mentioned the names of the assailants
At that time my brother Ram Kumar was also there
After Ramji had enquired my brother also enquired them
My father asked for by a sign of hand for pen and a copy
 The above extracted pieces of evidence of PWs 2 and 19 indicate that PW 3 was not informed of the names of the assailants before his father the deceased herein wrote the name of Gulab Chand
Had PW 3 informed by his mother PW 19 of the names of the assailants he might not have asked his father as to who the assailants were
In other words till the deceased wrote the name of Gulab Chand on a piece of paper evidently PW 3 did not know as to who assailant or assailants waswere
It seems that both the Courts below have not approached this significant aspect of this salient feature in the proper perspective
On the other hand it has conveniently omitted this significant factor from consideration which gives the death knell to the prosecution case so far as the alleged participation of these two appellants in this brutal crime
In the inquest report Exh
P 24 it is stated that all the relatives of the deceased 433 Keshav Singh were examined and the following conclusion was arrived at   the conclusion was reached that the death of deceased Keshav Singh by Gulab Singh Gulab Chand etc
was due to knife wounds
 This etc  in the present case has no relevance because there is a specific averment that the two assailants namely Gulab Singh and Gulab Chand stabbed the deceased with knives which case alone fits in with the earlier statements of PWs 2 and 19 as well as the version of the deceased in Exh
If really the names of these two appellants had been mentioned by the witnesses those names also would have been specifically mentioned in Exh
P 24
At this juncture the learned senior counsel appearing on behalf of the State referred to a decision of this Court reported in  Pedda Narayana vs State of Andhra Pradesh wherein this Court has held that the question regarding the details as to how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted is foreign to the ambit and scope of the proceedings under Section 174
This decision will not be of any help to the prosecution because only two names are mentioned in the inquest report as as sailants leaving the names of these two appellants who are now rightly attempting to take advantage of this conspicuous omission in Exh
P 24
Though PW 19 is said to be the author of Exh
P 43 she before the Trial Court does not claim to be the author of the entire averments
She states that the police who record ed the report asked only her name and her husband s name and nothing further was asked from her and she did state anything more than that
PW 19 further had deposed that she did not give the names of the accused who assaulted that she did not know whether her husband was then dead or alive that at Thana Police Station she came to know about the death of her husband that even then she did not mention the names of the assailants and that before going to the Thana she did not give the names of any of the assailants to any person
It is in evidence that both these appellants were present at the scene of occurrence when the police constable came but none pointed out to the police that these two appellants also participated in the crime
Now the explana tion offered by the prosecution is that these two appellants took the constable aside and whispered something and there fore PW 1 suspecting that the police constable was taking side with the appellants did not come forward with a state ment that these two appellants were also the participants in the crime
This explanation seems to have been offered only before the Trial Court
Both the Courts below have conven iently over 434 looked and ignored all the above glaring infirmities appear ing in the case and as such the concurrent findings recorded by both the Courts are not proper but perverse
After meticulously and scrupulously analysing the evi dence we are left with an impression that the prosecution has not satisfactorily established the guilt of these two appellants beyond all reasonable doubt
Hence we are unable to agree with the findings of the lower Courts that these two appellants also participated in the crime with the other two accused
In the result the conviction of these two appellants us 302 read with 34 IPC and the sentence of imprisonment for life imposed therefore are set aside and both of them are acquitted
The appeal is thus allowed
VPR Appeal al lowed


Summary:
The appellant company was ordered to be wound up by Court s order dated 2661967
The liquidator invited creditors to prove their debts or claims and to establish title if any to determine priority under s5301a of the 
The Sales Tax Officer submitted a comprehensive claim of sales tax plus penalty and claimed priority
The liquidator rejected the claim for priority in its entirety but admitted a part of it payable as debt with other unsecured creditors
The Revenue appealed to the High Court contending that the liquidator erred in law in not granting priority to the claim to sales tax payable by the company for the period from 141957 to 31121965 under the Bombay Sales Tax Act and for period from 171957 to 31121965 under the Central Sales Tax Act inasmuch as notice of demand was issued and assessment order was made in respect thereof within a period of 12 months before the relevant date
The Company Judge interpreting section 5301a of the Act held that tax becomes due when taxing event occurs and not when assessment orders passed that even though the amount for which priority was claimed was the amount of tax arrears that became payable at the time of making assessment orders after giving credit for what was paid alongwith return yet it was due for a period much prior to 12 months next before the relevant date and rejected the appeal on that score but allowed the claim to the extent of a small amount of penalty under the two Sales Tax Acts upto the relevant date
The Revenue filed an intra court appeal which along with another referred matter was heard by a Division Bench
The Division Bench held that sales tax becomes due and payable when the tax has 528 been assessed and notice of demand for its payment is served
It allowed the claim of priority to the sales tax due under the two Acts assessment orders in respect of which were passed within the period of 12 months immediately preceding 2661967
The balance amount was directed to rank as ordinary debts since the relevant orders were passed after the date of winding up order
The claim of recovery of penalty was negatived because the demand was held to be without application of mind as to whether there was reasonable cause for the official liquidator for not paying the amount
Aggrieved the company filed the present appeal by certificate
Allowing the appeal this Court HELD 1 Section 5301a of the provides that State has a priority over debts liability and obligation of which was born within the time frame of 12 months next before the relevant date and as such due and becoming due and payable within those twelve months ascertainable if necessary later if not already ascertained
Thus the legal philosophy which permeats the provision is that the debts due and payable so as to claim priority must be appropriated to the period within 12 months next before the relevant date and their liability for payment must be founded during that period and no other536G H 537 A B 21 The words having become due and payable within the twelve months next before the relevant date  occurring in clause a of section 5301 of the need be understood to mean putting a restriction or cordoning off the amount for which priority is claimable and not in respect of each and every debt on account of taxes rates and cesses etc
which may be outstanding at that time and payable
And that such priority is in respect only of debts those of which became due and payable because the liability to those is rooted founded and belonging to that period of twelve months prior to the relevant date and none other both the conditions existing
537C E Airedale Garage Co In reAnglo South American vs The Company 1832 Vol  referred to
22 Both Benches of the High Court gave to the provision a very wide and varied interpretation and that too on literality and gramaticals
The Single Judge was not right in taking the view that the word due  in the first part of clause a of s5301 of the was to mean outstanding and payable at the relevant date  and in the expression  having become due  in the later part of the clause meant that the 529 event which brought the debt into existence occurred and also it became payable so as to be enforced against the company within twelve months before the date of order of winding up
The Division Bench erred in holding that the only meaning that could be assigned to the word due  occurring in the section was it must be presently due  and the words due and payable  meant that it must be presently payable
536G 531D E  532F G Sales Tax Officer Petlad vs Rajratha Naranbhai Mills Co Ltd and Another 1974 Vol
and Baroda Board  Paper Mills Ltd in liquidation vs Income Tax Officer etc 1976 Vol
46 Company cases 25 overruled
The liquidator was directed to re examine the claim and to ascertain as to whether the liability to sales tax belonged to and was founded within the period of 12 months next before 26 June 1967 and as such due and payable but preserving the order of the Division Bench in relation to its view on penalties
537E G