Civil Appeal No 692  693 of 1981
From the Judgment and Order dated 1951980 of the Delhi High Court in WP Nos
883 of 1978 and 1079 of 1979
RK Habbu RB Hathikhanwala and BR Aggarwala for the Appellants
Soli J Sorabjee Attorney General NP Kapil Sibal Additional Solicitor General Ms Indu Malhotra P Parmeshwaran and CVSubba Rao for the Respondent
The Judgment of the Court was delivered by RANGANATHAN J
These two appeals involve a common question and can be disposed of by a common judgment
The question is whether the appellant companies hereinafter referred to as the assessees  are entitled to full draw back  of the customs duty which they had paid on the import of di methyl terephthalate shortly referred to as DMT  for manufacture of polyester staple fibre yarn
The assessees converted the DMT into polyester staple fibre in their factory at Thane and then sent it to Bhilwara in Rajasthan where the Rajasthan Spinning and Weaving Mills blended it with indigenous viscose staple fibre to spin out certain varieties of blended yarn
It is common ground that the product manufactured by this process was exported by the assessees to Imperial Chemical Industries Pvt
Ltd Singapore who had supplied the DMT free of charge to the assessees
The answer to the question revolves around the interpretation of Section 75 of the read with the Customs and Central Excise Duty Draw Back Rules 1971
291 Section 75 of the empowers the Central Government by notification in the official gazette to direct in respect of goods of any class or description manufactured in India and exported to any place outside India that draw back should be allowed of the duties of customs chargeable under the Act on any imported materials of a class or description used in the manufacture of such goods in accordance with and subject to the rules framed under sub section 2 of the said section
Sub section 2 which confers a rule making power enacts that such rules may among other things provide a for the payment of draw back equal to the amount of duty actually paid on the imported materials used in the manufacture of the goods or as is specified in the rules as the average amount of duty paid on the materials of that class or description used in the manufacture of export goods of that class or description either by manufacturers generally or by any particular manufacturer There is a similar provision in section 37 of the Central Excises  Salt Act 1944 enabling grant of draw back of the excise duty paid in relation to such manufacture
The Central Government framed the Customs and Central Excise Duties Drawback Rules 1971 hereinafter referred to as the rules  in exercise of the powers conferred on it under these two statutes
These are composite rules under the above two provisions and enable drawback being availed of in relation to customs duty as well as in relation to duties of central excise
Some relevant provisions of these rules may be quoted here
Rule 3 in so far as it is relevant for our present purposes reads as follows Rule 3 Drawback 1 Subject to the provisions of a the 52 of 1962 and the rules made thereunder
b the 1 of 1944 and the rules made thereunder and c these rules a drawback may be allowed on the export of goods specified in Schedule II at such amount or at such rates as 292 may be determined by the Central Government
xxx xxx xxx 2 In determining the amount or rate of drawback under this rule the Central Government shall have regard to a the average quantity or value of each class or description of the materials from which a particular class of goods is ordinarily produced or manufactured in India
b the average quantity or value of the imported materials or excisable materials used for production or manufacture in India of a particular class of goods
c the average amount of duties paid on imported materials or excisable materials used in the manufacture of semis components and intermediate products which are used in the manufacture of goods
d the average amount of duties paid on materials wasted in the process of manufacture and catalytic agents Provided that if any such waste or catalytic agent is used in any process of manufacture or is sold the average amount of duties on the waste or catalytic agent so used or sold shall also be deducted
e the average amount of duties paid on imported materials or excisable materials used for containing or packing the exported goods
f the average amount of duties of excise paid on the goods specified in Schedule 1 and g any other information which the Central Government may consider relevant or useful for the purpose
Rule 4
Revision of rates The Central Government may revise the amounts or rates determined under rule 3
xxx xxx xxx 6
Cases where amount or rate of drawback has not been determined 293 1a Where no amount or rate of drawback has been determined in respect of any goods any manufacturer or exporter of such goods may before exporting such goods apply in writing to the Central Government for the determination of the amount or rate of drawback therefor stating all relevant facts including the proportion in which the materials or components are used in the production or manufacture of goods and the duties paid on such materials or components
b On receipt of an application under clause a the Central Government shall after making or causing to be made such inquiry as it deems fit determine the amount or rate of drawback in respect of such goods
Cases where amount or rate of drawback determined is low l Where in respect of any such goods the manufacturer or exporter finds that the amount or rate of drawback determined under rule 3 or as the case may be revised under rule 4 for that class of goods is less than three fourths of the duties paid on the materials or components used in the production or manufacture of the said goods he may make an application in writing to the Central Govermment for fixation of the appropriate amount or rate of drawback stating all relevant facts including the proportion in which the materials or components are used in the production or manufacture of the goods and the duties paid on such materials or components
2 On receipt of the application referred to sub rule 1 the Central Government may after making or causing to be made such inquiry as it deems fit allow payment of drawback to such exporter at such amount or at such rate as may be determined to be appropriate if the amount or rate of drawback determined under rule 3 or as the case may be revised under rule 4 is in fact less than three fourth of such amount or rate determined under this sub rule
Schedule II to the notification by which the rules were promulgated listed the items the export of which entitles an assessee to avail of the drawback facility
Item 25 of the list reads thus Synthetic and regenerated fibre textile yarn thread twines cords and ropes 294 It is common ground that the goods exported by the assessees fall under item 25 above
There is also no controversy that the DMT imported by the assessees was used for the manufacture of the above commodity and that on the import of the DMT the assessees have paid customs duty
The rates of drawback available in respect of various goods were notified by the Central Government in due course
Against serial no 25 the notification set out the rates of drawback as follows Serial Sub Si
Description of Rate of No No goods Drawback 25
SYNTHETIC AND REGENERATED FIBRES ANDTEXTILE YARN THREAD TWINES CORDS AND ROPES Brand rate to be 2501 Synthetic and regenerated fixed on an fibre and textile yarn application from thread twines cords and the individual ropes not elsewhere manufacturer specified
exporter
2502 a Yarn of above 21 BWS Counts or above 14 nf counts spun wholly out of either viscose rayon fibre or acetate fibre or polyster fibre polyamide fibre or acrylic fibre or wool or from a combination of two and not more than two of the above mentioned fibres or a combination of any one of the above mentioned fibres with either cotton or silk but excluding yarn spun out of fibres obtained from fibre wastes yarn waste or fabric wastes by gernetting or by any other process a Cellulosic fibre content Rs 180 Rupees one and paise eighty only per kg
295 b Polyester fibre content Rs4315 Rupees forty three and paise fifteen only per kg
c Acrylic fibre content Rs3775 Rupees thirty seven and paise seventy five only per kg
d Polyamide fibre content Rs 1640 Rupees Sixteen and paise forty only per kg
e Wool contents i in the worsted yarn of Rs 1895 Rupees Weaving quality made wool Eighteen and paise top
ninety five only per kg
ii in the worsted yarn of Rs 1355 Rupees weaving quality not made from Thirteen and paise fifty wool top
five only per kg
iii in the worsted Hosiery Rs 1665 Rupees Sixteen yarn and worsted hand knitting and paise sixty five yarn made from wool top
only per kg
iv in the worsted hosiery yarn Rs1125 Rupees Eleven and worsted hand knitting yarn and Paise twenty five not made from wool top
only per kg
v Bye content if the yarn is Rs085 Eighty five dyed paise only per kg
xxx xxx xxx It will be seen from the above table that the assessees are entitled to a drawback of Rs4315 per kg
of the polyester fibre content of the yarn exported by them
We are informed that this is the rate of central excise duty payable in respect of the manufacture of yarn having polyester fibre content
For reasons to be stated presently the assessees had to pay no central excise duty for the manufacture and hence there was admittedly no question of the assessee getting a drawback to this extent
The point raised by the assessee is that having paid customs duty on the DMT  it was entitled to a drawback in respect of the customs duty paid by it on the DMT
Since this was not included in the notification of the Central Government the assessees made an application to the Ministry of Finance on 2331977 requesting that drawback of the entire customs duty may be sanctioned
This request 296 however was rejected by the Central Government by a communication dated 1231978
This communication was in the following terms Under Rule 3 of the Customs and Central Excise Duties Drawback Rules 1971 all industry rates of drawback on polyester viscose blended yarn have been determined and announced under serial No 2502 of the Drawback Schedule
The said rates have been determined at the material time after taking into consideration a duty incidence of raw materials used in the manufacture of viscose fibre plus the Central Excise duty on viscose fibre and b the Central Excise duty on polyester fibre in respect of polyester yarn
However no raw material duty for manufacture of polyester yarn was taken into account as the same DMT is available indigenously and is exempted from Central Excise Duty
For the rates determined effective from 1881977 however the duty incidence on DMT has also been taken into consideration on the basis of weighted average of imported and indigenous material
 The assessees dissatisfied with this decision of the Central Government preferred a writ petition in the Delhi High Court which was dismissed by the High Court on 19580
Hence the present appeals
At this stage it may be necessary to outline some facts which may be relevant for appreciating the background in which the assessees  counsel urged strongly the equitable if not also legal claims of the appellant for the drawback of the customs duty
Counsel claims that the assessees were almost the first group of entrepreneurs in India to manufacture polyester fibre yarn
They had been fortunate enough to obtain a contract from the Imperial Chemical Industries Singapore
By a letter dated 2475 this concern agreed to supply free of cost the DMT required for the manufacture of blended yarn consisting of 67 per cent polyester and 33 per cent viscose fibre
The DMT was to be converted in polyester fibre blended with viscose indigenously and shipped to a customer of the ICI in Sri Lanka
Thereupon on 2675 the assessees obtained customs clearance permits for import of 392 tons of DMT and also of 178 tons of viscose staple fibre
Eventually however the viscose staple fibre was obtained indigenously and the import permit to this extent was not utilised by the assessee
At the 297 time of obtaining this permit the assessees also obtained permission to convert the imported DMT into polyester fibre under customs bond
The condition attached to the Customs Clearance permit was in the following terms The firm will convert the imported DMT into polyester fibre under Customs bond
The firm will then move the polyester fibre so manufactured and the imported viscose staple fibre under bond to the bonded warehouse of Rajasthan Spinning and Weaving Mills Bhilwara Messrs Rajasthan Spinning and Weaving Mills will then manufacture under bond polyester viscose yarn on behalf of the firm
The polyester viscose fibre yarn will then be exported by the firm to the overseas buyers who have supplied the DMT and viscose staple fibre on CCP basis or their nominees 
If these conditions had been fulfilled the assessees would have had no problems
The polyester fibre would have been manufactured under customs bond and this would have obviated payment of customs duty by the assessees
So also the production of the blended yarn at the Rajasthan Spinning and Weaving Mills would have been under Central excise supervision and no excise duty would have been payable on the manufacture
Unfortunately however the customs authorities were not in a position to permit the conversion of the DMT into polyester fibre under customs bond for reasons which are not at present relevant and which are not being challenged in these proceedings
The assessees s request for the manufacture of polyester fibre under customs bond was declined by the customs authorities on 241976
Perhaps anticipating this difficulty the Association of Polyester Staple Fibre Manufacturers at Bombay made an application to the Central Government on 2631976 praying for exemption from customs duty on DMT required for the manufacture of polyester staple fibre
This letter points out Members of this Association manufacture polyester staple fibre
One of our members has received an advance licence for the import of DMT a photostat copy of which we attach herewith
This DMT is to be used for manufacture in polyester fibre and the polyester fibre then converted into yarn to be supplied against export orders
Our members wish to explore possibility of larger export business in this manner
Indigenous supplies of both DMT and glycol are 298 insufficient to meet the domestic market requirements and export business can only be done by import of the two materials
Fulfilling export orders by using advance licences as the one issued to our member poses certain problems because the licence stipulated manufacture under Customs Bond
You will appreciate the difficulty in manufacturing under bond when the fibre for export constitutes only a portion of the total manufacture of the factory
If DMT and glycol could be included in the schedule to the customs Notification GSR 183 the procedural difficulties in manufacturing under Bond will not apply
Exports of yarn made from raw materials obtained against advance licences could earn considerable foreign exchange because of the value added during processing
One of the assessees also made a similar request and eventually a notification was issued on 2nd August 1976 under section 25 of the exempting DMT from customs duty
The Government of India also wrote to one of the present appellants on 9976 drawing attention to the said notification and stating that with the issue of this notification
The assessees  problem would appear to have been solved
This however was not correct
The notification exempted future imports of DMT from customs duty but the assessees having imported the DMT earlier had to clear the same after paying customs duty thereon
Hence their request for a drawback of the customs duty already paid by them the refusal of which has led to the present litigation
On behalf of the appellants it is contended that the contains provisions enabling thd Government either to exempt goods under section 25 from the levy of Customs duty at the time of import or failing this to permit a drawback of customs duty paid in the event of the conditions set out in section 75 being fulfilled
In the present case an exemption under section 25 of the was in fact notified but unfortunately this happened only in August 1976
By this time the assessees had already imported the DMT
This they were obliged to do because of a time bound programme for export of the manufactured fibre to Sri Lanka
Counsel states that from the very outset the assessees had proceeded on the footing that they would be obtaining exemption from customs and excise duty because apart from getting some conversion charges from the ICI their own margin of profit on the transaction was not substantial
That is why even at the time of obtaining the customs clearance permit they had sought for permission to convert DMT into polyester under customs bond
If that had been 299 done there would have been no necessity to pay customs duty at all
Unfortunately because the department lacked facilities to supervise such an operation the attempt of the assessees was only partially successful in that they were able to get only the production of the blended fibre done under Central Excise supervision
The initial stage of conversion from DMT to polyester fibre could not be done under customs bond
It is pointed out that the Government of India had exempted DMT from customs duty only on the basis of the representations made by the assessees and it is urged that the refusal to grant drawback of customs duty to assessees is wholly unjustified
The object of section 75 of the  read with section 27 of the Central Excise Act is obviously to provide that in cases where certain goods are imported for complete utilisation in the manufacture of goods which are exported the importer should be able to obtain relief in respect of customs and excise duties
In the present case there is no controversy that the DMT imported by the assessee was utilised for the manufacture of polyester staple fibre and that the final product was fully exported to Sri Lanka
The notification made under the rules framed for this purpose however provides only for a drawback in respect of the excise duty involved in the manufacture of polyester staple fibre but not the customs duty on the raw material actually imported
Sri Habbu learned counsel contends that this notification in fact is contrary to the provision contained in rule 3 which obliges the Government in determining the amount or rate of drawback to have regard among other things to the amount of duties paid on imported or excisable material used in the manufacture of the exported goods
He submits that in so far as the rates prescribed by the Central Government do not take into account the element of import duty on DMT the fixation is not in accordance with the rule
According to him therefore this case falls under rule 6 which enables an assessee to apply to the Central Government to determine a drawback where none has been determined
The Central Government he submits was in error in rejecting the assessees  application as one falling under rule 7 and therefore not maintainable both in law and equity
Having heard the learned counsel for the assessees at some length we are of opinion that the High Court was right in rejecting the assessees contentions
We think that the assessees  arguments are based on a basic misapprehension that under the Acts and rules a manufacturer is automatically entitled to a drawback of the entire customs and excise duties paid by him if the terms and conditions of 300 section 75 are fulfilled
Though section 75 of the and section 37 of the Central Excises  Salt Act empower the Government to provide for the repayment of the customs and excise duties paid by individual manufacturers also the rules as framed rule 3 in particular provides only for a refund of the average amount of duty paid on materials of any particular class or description of goods used for the manufacture of export goods of that class or description by manufacturers generally except to the extent prescribed under rule 7 to be noticed presently
The rules do not envisage a refund of an amount arithmetically equal to the customs duty or central excise duty which may have been actually paid by an individual importer cum manufacturer
If that had been the statutory intendment it would have been simple to provide that in all cases where imported raw materials are fully used in the manufacture of goods which are exported the assessee would be entitled to a drawback of the customs or excise duties paid by him for the import or on the manufacture
On the other hand section 752 requires the amount of drawback to be determined on a consideration of all the circumstances prevalent in a particular trade and the fact situation relevant in respect of each of various classes of goods imported and manufactured
The need for providing an elaborate process of determination as envisaged in rule 3 is this
There may be different manufacturers of a particular manufactured item
Some of them may be using indigenous material and some may be importing some of the raw material
Similarly in the process of manufacture also there may be difference between manufacturer and manufacturer
That is why the drawback rules provide for a determination of the drawback after taking into account the average amount in respect of each of the various items specified in rule 3 in relation to each type of goods listed in Schedule II
The notification issued also determines the composite drawback available in respect of both customs and excise duties to importers cum manufacturers in respect of various categories of goods
In other words the amount of drawback is not intended to be the amount of the duties that may have been paid by individual manufacturers it is to be determined by considering the overall position prevalent in the country in respect of each of the categories of trade in the goods specified in Schedule II
We think that if this basic principle is understood the decision of the Govermment would become intelligible and rational
There is no controversy that in this case the goods exported fall under item 25
Learned counsel sought to contend that the goods here fall under sub item 2501 but this is clearly untenable
Sub item 2501 represents a residuary category which will not be attracted to the 301 goods here which clearly fall under sub item 2502
The notification prescribes different amounts of drawback under this itm depending on the composition of the yarn and the nature of its contents
It specifies an amount of Rs4315 per Kg
as the relief by way of drawback available against the goods with which we are concerned which fall under clause b of item 2502
This much indeed was conceded before the High Court
Once we understand the principles on which and the scheme according to which the rates of drawback are to be and are determined as explained earlier the plea of the appellants that the amount of drawback determined is nothing more than the excise duty payable on manufacture of blended fibre with polyester fibre content and that the notification has erred in overlooking the customs duty paid on imported DMT is wholly untenable
We say this for two reasons
First the rates prescribed constitute a composite rate of drawback fixed having regard to the liabilities under the as well as the Central Excises  Salt Act
It would not be correct in principle to bifurcate the amount so fixed into its two constituents and to say merely because the amount fixed is equal to one of the duties that the other has not been taken into account
In theory the drawback determined could have taken into account both sets of duties in part only
It cannot be said to be merely the customs duty drawback or central excise duty drawback
Though it does appear that the various rates of drawback prescribed under item 2502 are equal to the rates of excise duty payable on the manufacture of the various items referred to therein the nature of exemption granted is one of relief under both enactments
It is immaterial whether this quantum of relief benefits the assessee in respect of one or other or both of the levies which he has to discharge
The attempt to identify and correlate the rebate granted to the central excise duty paid does not therefore appear to be correct in principle
But this ground apart we think there is force in the point made by the learned counsel for the Union of India and accepted by the High Court that at the time when these drawback rates were fixed the Government of India took into account both the import duty as well as the excise duties which would be payable on the manufacture of the goods the export of which was intended to be encouraged
After examining the condition in the trade it was found that DMT was easily available in India at that time and that therefore it would not be necessary to grant any relief in respect of drawback of customs duty on the imported material because that would only result in assessees 302 attempting unnecessarily to import a raw material which was available in the country itself
In fact this is the aspect on which the Delhi High Court has laid considerable emphasis
Learned counsel for the appeallants contends that this is factually and that this is clearly shown by the very fact that Government of India itself in August 1976 decided to grant exemption in respect of customs duty for the import of DMT He submits that if DMT had been easily available indigenously at that time the question of granting exemption under section 25 would not have appealed to the Government at all
He therefore submits that in fixing the rate of drawback the Central Government had proceeded on the footing that no import duty would be payable on the DMT and that it will be sufficient to grant relief in respect of Central excise duty alone
We find that on this aspect the position is not so simple as submitted by the learned counsel for the appellants
We have already extracted reply of the Government of India to the assessees  representation which clearly mentions that DMT is available indigenously and that therefore no duty in manufacture of polyester yarn was taken into account
This is a statement of fact and there is no material placed before us to contradict the same except for the cor respondence referred to earlier
If one looks carefully at the corres pondence one will find that it does not support the assessees case
For one thing the memorandum submitted by the Association of March 1976 itself proceeds on the footing that DMT is available locally but not sufficient to meet the domestic market requirments
This clearly is a reference to something which happened after the present appellants had imported their goods and started the manufacture
Indeed it is their claim that they were fore runners in this field
Fol lowing up on the assessees  attempt to obtain imports of DMT and exporting the goods manufactured other polyester staple fibre manufacturers also proposed to explore the possibilities of such imports and exports and what the letter says would only appear to be that the indigenous supplies of DMT and Glycol may not be enough to meet the domestic market requirements if the business is so expanded
By the time the notification fixing the rates was issued import duty on DMt had been removed and therefore there was no purpose in granting a drawback of customs duty
In these circumstances the customs duty was rightly not taken into account in fixing the rate of drawback
The letter of the Government dated 9976 is only an answer to the assessees  prayer that its problem may be solved by granting an exemption for DMT from customs duty and refers only to the position after the notification of exemption
It is not reply to the assessees  representation in respect of the past which was filed only much later in 1977
The correspondence in the case is therefore of no 303 help to the assessees
It may also be pointed out that the assessees appear to have imported DMT not because it was not locally available but only because it was able to get it free of cost from the ICI which was a benefit which other manufacturers if any could not have enjoyed
We are therefore of opinion that High Court was right in concluding that the rate of drawback in respect of the goods in ques tion was fixed after taking into consideration the aspect of customs duty payable in respect of DMT and that a conscious decision was taken that no relief in this respect should be granted as DMT was available in the Country itself
It cannottherefore be said that this is a case where the fixation is contrary to the terms of rule 3 and that the assessees  application for determination of a rate in his case should be taken as an application under rule 6
Rule 6 is also inapplicable for the reason that an application under rule 6 should be made before the export of the manufactured goods which does not seem to be the case here
The assessees  reliance on rule 6 therefore fails
It is true the fixation of rates of drawback on the average basis indicated in rule 3 could work hardship in individual cases
Provi sion for this contingency is made in rule 7
The assessees  application was rightly treated as one made under this rule and they could if at all seek relief only if their case fell within its terms
This rule unfortu nately does not provide for relief in every case where an individual manufacture has to pay customs and excise duty to a larger extent than that determined for his class of goods
Relief is restricted only to cases when the margin of difference is substantial and to the extent specified in rule 7
The High Court has discussed this point at length and demonstrated by giving necessary figures how the assessees  case does not fulfill the term of the rule and this conclusion is not in fact challenged by the learned counsel for the appellants
The Government was therefore right in rejecting the appellants  request made under section 7 of the Drawback Rules
For the reasons above mentioned we agree with the High Court that the order of the Central Government rejecting the assessees application was well founded and cannot be interfered with
Learned counsel for the appellants brings to our notice a manual published by the Directorate of Publication
Ministry of Finance Department of Revenue explaining the scope of the rules as well as two notifications issued by the Government on 961978 and 121982 respectively and submits that the present case falls within the terms of these notifica tions
We are constrained to point out that these are notifications issued subsequent to the period of the controversy before us also this 304 is material which was not placed before the authorities or the High Court
We therefore find ourselves unable to permit the assessee to rely upon them at this late stage
However having regard to the circumstances and the subsequent policy in the above rules we think it is a fit case in which the Central Government could consider whether on equitable grounds the assessee can be given relief in respect of the customs duty on DMT paid by it
In this context it is worthwhile noting that the assessee saved foreign exchange for the country by importing DMT free of cost
The entire manufactured product has also been exported and earned foreign exchange
The appellants also apparently gave impetus to other manufacturers for the export of blended fibre on large scale
If only the appellants had imported the DMT a few months later they would have been entitled to exemption from customs duty and would not have suffered the present handicap
They also did obtain the permission of the Government to convert DMT into polyester fibre under customs bond but this could not be implemented for reasons beyond their control
Having regard to all these circumstances it would seem only just and fair that the assessees should not be denied a benefit of which all other persons have since availed of
We therefore think that this is a fit case in which the Government should consider in case the assessees make an application within two months from today whether the assessees could be granted the relief prayed for if only on equitable grounds and pass appropriate orders on such applications
With the above observations these appeals are dismissed
But in the circumstances we make no order as to costs
Y Lal Appeals dismissed


Summary:
The appellant had illicit connection with Agya Devi PW 3 wife of the deceased and in that connection he used to visit her house quit frequently to which the deceased and his two brothers  mother living separately in the adjacent house used to object
It may be pointed that the Agya Devi was related to the appellant s wife
On August 18 1973 at about 11 pm when the deceased was not in house the appellant came to visit Agya Devi
A shortwhile later the deceased also came home and he objected to the presence of the appellant whereupon an altercation and exchange of hot words ensued between the appellant and the deceased
The appellant took out a kirpan chhurra from his waist and stabbed the deceased in the chest
The deceased fell down crying that the appellant has killed him and the appellant fled away with the weapon
the incident was witnessed by Agya Devi PW 3 and PW 2 deceased s brother from the roof of the house
The deceased died as a result of the injury
The prosecution was thereupon launched against the appellant and the prosecution examined and amongst others PW 2 and PW 3
PW 3 turned hostile with the result the prosecution was left with only PW 2 brother of the deceased as eye witness
The trial court relied on the evidence of PW 2 and also held that his evidence was corroborated by the PWs 1 and 5 and recorded the conviction under section 302 IPC and sentenced him to imprisonment for life for causing the death of Champat Rai the deceased which order was later affirmed by the Delhi High Court
Hence this appeal by the appellant after obtaining special leave
The main contention of the appellant is that even if the prosecution case is to be accepted an offence of murder is not made out as the accused was entitled to the right of private defence even otherwise the accused having inflicted only one injury which proved fatal the offence would be one amounting to culpable homicide
203 Dismissing the appeal this Court HELD Intention  is different from motive  or ignorance or negligence 
It is the knowledge  or intention  with which that act is done that makes difference in arrival at a conclusion whether the offence is culpable homicide or murder
208 E The language of Clause Thirdly of Section 300 speaks of intention at two places and in each the sequence is to be established by the prosecution before the can can fall in that Clause
The intention  and knowledge  of the accused are subjective and invisible states of mind and their existence has to be gathered from the circumstances such as the weapon used the ferocity of attack multiplicity of injuries and all other surrounding circumstances
The framers of the Code designedly used the words intention  and knowledge  and it is accepted that the knowledge of the consequences which may result in doing an act is not the same thing as the intention that such consequences should ensue
Firstly when an act is done by a person it is presumed that he  must have been aware that certain specified harmful consequences would or could follow
But the knowledge is bare awareness and not the same thing as intention  that such consequences should ensue
As compared to knowledge  intention  requires something more than the mere foresight of the consequences namely the purposely doing of a thing to achieve a particular end211H 212C Knowledge  as contrasted with intention  signify a state of mental realisation with the bare state of conscious awareness of certain facts in which human mind remains supine or inactive
On the other hand intention  is a conscious state in which mental faculties are aroused into actively and summoned into action for the purpose of achieving a conceived end
213B C The circumstances would show that the accused intentionally inflicted that injury though it may not be pre mediated one
All the circumstances would certainly indicate such a state of mind namely that he aimed and inflicted that injury with a deadly weapon
In the absence of evidence or reasonable explanation to show that the appellant did not intend to stab in the chest with kirpan with that degree of force sufficient to penetrate the heart it would be perverse to conclude that he did not intend to inflict that injury that he did
When once the ingredient intention  is established then the offence would be murder as the intended injury is found to be sufficient in the ordinary course of nature to cause death
Therefore an offence of murder is made out
218D E 204 Tholan vs State of Tamil Nadu  Jagrup Singh vs State of Haryana   Randhir Singh vs State of Punjab  Kulwant Rai vs State of Punjab  Hari Ram vs State of Haryana  Jagtar Singh vs State of Punjab  Ram Sunder vs State of UP Crl
Appeal No 55583 decided on 24101983 Chahat Khan vs State of Haryana  Chamru Budhwa vs State of Madhya Pradesh AIR 1954 SC 652 Willie William Slaney vs State of Madhya Pradesh   Harjinder Singh alias Jinda vs Delhi admn
   Laxman Kalu Nikalji vs State of Maharashtra   Gurmail Singh and Ors
vs State of Punjab  referred to
Virsa Singh vs State of Punjab   followed