minal Appeal No 77 of 1958
Appeal by special leave from the judgment and order dated February 26 1958 of the Punjab High Court in Criminal Appeal No 860 of 1957 arising out 155 1220 of the judgment and order dated December 23 1957 of the Additional Sessions Judge at Ambala in Sessions No 20 of 1957 and Trial No 32 of 1957
Harnam Singh and Sadhu Singh for the appellant
Har Parshad and T M Sen for the respondent
September 2
The Judgment of the Court was delivered by IMAM J
The appellant and one Prem were tried for the murder of Nirmala Devi wife of Banwari Lal a Practising lawyer at Rupar
The appellant was sentenced to death while Prem was sentenced to imprisonment for life
The appellant and Prem appealed against their conviction and sentence to the High Court of Punjab
Their appeals were dismissed and their conviction and sentence were affirmed by the High Court
The appellant obtained from this Court special leave to appeal and in the present appeal the only question for consideration is whether the appellant was rightly convicted and sentenced for the murder of Nirmala Devi
The case of Prem is not before us
At Rupar Banwari Lal practised as a lawyer
His wife the deceased Nirmala Devi lived with him there with their child eight months old
With them also lived Banwari Lal s sister Vina a girl of about 16 to 17 years of age
Banwari Lal had employed Prem as a servant about four months before the murder of Nirmala Devi on February 12 1957
This Prem was a youngster of about fourteen years of age at that time
According to the prosecution lie was an associate of the appellant who was posted at Rupar in the capacity of a foot constable in the police force
The appellant and Prem became friendly and it is said that the appellant had an eye on the ornaments of the deceased Nirmala Devi which she was in the habit of wearing when she went out
The deceased was a young person in her twenties and of good character
She used to be left alone in the house with her child when Banwari Lal went to court and Vina went to school
Prem however used to remain at the house
It is the case of the prosecution that the appellant in 1221 conspiracy with Prem took advantage of the deceased being alone in the house when the appellant went upstairs and killed Nirmala Devi and stole her ornaments while Prem remained down stairs with her child
Vina had returned from school round about 12 30 in the afternoon as it was the recess time
At that time Nirmala Devi was in the drawing room feeding her child
Prem was also at the house at that time
Vina again returned to the house at about 3 45 pm
She enquired from Prem as to where Nirmala Devi was and was told by him that he did not know as he himself had been absent from the house
Vina thereafter went upstairs to the kitchen to take her food
Banwari Lal had returned from court at about 3 15 pm earlier than usual as he had to attend an election meeting at the Municipal Office
He was accompanied by a pleader Sudarshan Kumar Jain who was going to Chandigarh
He had intended to give him a cup of tea but finding the door leading through the staircase to the residential portion looked and thinking that his wife was not at home lie and his friend left for the Municipal Hall
Banwari Lal returned to his house at about 4 45 pm
He enquired from Prem as to where his wife was and was informed by him that she had gone out
He went upstairs and saw his sister Vina eating her food
On opening the drawing room however Banwari Lal was stunned to find his wife lying dead on the floor in a pool of blood
lie noticed several injuries on her and that some of her jewellery was missing
He proceeded to the police station almost opposite to his house and lodged a First Information Report about the murder at 5 pm
There can be no manner of doubt that an audacious and a brutal murder of a young and a defenceless person had taken place with the intention of robbing her of her ornaments
The fact of murder has been apply proved and has not been seriously questioned
The only matter for consideration is Whether the evidence established that the deceased Nirmala Devi was murdered by the appellant with the assistance of Prem
The evidence upon which the prosecution relied for 1222 conviction is the confession of Prem the statement of the appellant which led to the recovery of the ornaments belonging to Nirmala Devi from the possession of one Raj Rani a mistress of the appellant the recovery of a blood stained dagger from his belongings at the police station and his conduct after the murder
So far as the confession of Prem was concerned it was retracted by him in the Court of Session
Prem s statement under section 342 to the Committing Magistrate however which had been brought on to the record under section 287 of the Code of Criminal Procedure clearly stated that the confession was a voluntary one
Indeed his statement to the Committing Magistrate showed that the crime was committed by the appellant and that Prem had assisted him in the commission of that crime
Although in the Court of Session Prem had retracted his confession his memorandum of appeal in the High Court would indirectly suggest that the con fession made by him was voluntary and true
Before we consider whether the confession was a voluntary and a true one it is necessary to deal with the submission on behalf of the appellant that the confession having been retracted by Prem is irrelevant so far as the appellant is concerned as the retracted confession of an accused cannot be used against his co accused
Although on behalf of the appellant it had not been argued that the retracted confession of Prem was inadmissible we regard the submission that it was irrelevant and cannot be used against the appellant as tantamount to saying the same thing
Section 30 of the Indian Evidence Act states  When more persons than one are being tried jointly for the same offence and a confession made by one of such persons affecting himself and some other of such persons is proved the Court may take into consideration such confession as against such other person as well as against the person who makes such confession
 It will be clear from the terms of this section that where more persons than one are being tried jointly for the same offence a confession made by any one of them affecting himself and any one of his co accused 1223 can be taken into consideration by the court not only against the maker of the confession but also against his co accused
The Evidence Act nowhere provides that if the confession is retracted it cannot be taken into consideration against the co accused or the confessing accused
Accordingly the provisions of the Evidence Act do not prevent the Court from taking into consideration a retracted confession against the confessing accused and his co accused
Not a single decision of any of the courts in India was placed before us to show that a retracted confession was not admissible in evidence or that it was irrelevant as against a co accused
An examination of the reported decisions of the various High Courts in India indicates that the preponderance of opinion is in favour of the view that although it may be taken into consideration against a co accused by virtue of the provisions of section 30 of the Indian Evidence Act its value was extremely weak and there could be no conviction with out the fullest and strongest corroboration on material particulars
The corroboration in the full sense implies corroboration not only as to the factum of the crime but also as to the connection of the co accused with that crime
In our opinion there appears to be considerable justification for this view
The amount of credibility to be attached to a retracted confession however would depend upon the circumstances of each particular case
Although a retracted confession is admissible against a co accused by virtue of section 30 of the Indian Evidence Act as a matter of prudence and practice a court would not ordinarily act upon it to convict a co accused without corroboration
On this basis it is now to be seen whether the confession was voluntary and true
It will then be necessary to consider whether the confession has received full and strong corroboration in material particulars both as to the crime and the appellant s connection with that crime
It was strongly urged that the police had adopted a device to get the accused Prem into their custody again on a charge of theft as lie had already been placed in the judicial lock up after his arrest in 1224 connection with the murder of the deceased Nirmala Devi
He was arrested on June 25 1957 in connection with a burglary which had taken place on December 5 1956 and he had been since then in police custody in connection with the investigation of that case until July 10 1957 the last day of remand to police custody
On July 10 1957 Prem made a confession before a Magistrate concerning the murder of Nirmala Devi
Prem was discharged in the burglary case on July 20 1957
Having adopted this device of getting Prem into police custody the police were in a position to exercise great influence upon Prem a young  lad of about 14 years of age
When lie made his confession on July 10 1957 he must have been still labouring under the influence of the police and sufficient time was not given by the Magistrate to remove that influence
The Magistrate ought not to have recorded his confession on July 10 1957
He ought to have remanded Prem to jail custody for a few days in order that the police influence may be removed from his mind
We have examined the record and find no justification for the suggestion made that the police adopted a device to got the accused Prem in to their custody again by arresting him in the burglary case of December 5 1956
It is true that the accused Prem was discharged from the burglary case on July 20 1957 but there is nothing on the present record to suggest that his arrest in the burglary case of December 5 1956 was without justification and that it was done purely for the purpose of getting him back into police custody
It is true that Prem had been in police custody from June 25 1957 to July 10 1957 and the Magistrate might as well have refrained from recording his confession on July 10 1957
It is clear however from the record of the Magistrate that at 1 pm the accused Prem was produced before him by the police for the recording of his confession
The Magistrate told him that lie was not a police officer but a Magistrate and that he was at liberty to think over the matter whether he would volunteer to make a confession and gave him time until 2 pm for this purpose
He further explained to Prem that he should 1225 consider himself quite free and not make a statement under the influence or temptation of anybody
At 2 pm the Magistrate took various precautions
All the doors and the windows of his room were closed
Everyone except Prem was turned out
The police were asked to stand in the verandah from where they could not see Prem
Prem was again told that he must regard himself as quite free and should not be under the influence of the police or anybody else
The Magistrate then put a series of questions which have been recorded in the form of questions and answers
By question 7 the Magistrate enquired how long Prem had been in police custody and from where he bad been brought that day to which the answer was that some 5 months back he had been arrested since then sometimes he had been sent to jail and sometimes had been kept in police custody
By question 8 the Magistrate asked whether he was kept awake during that period or had been given greased diet Mnaggan giza etc which we understand to mean whether he had been given greasy food which would induce a sleepy condition in persons eating such food to which question he replied that he had enjoyed regular sleep and had been taking common diet
At the beginning of course the police had kept him awake
The Magistrate also enquired whether the police or any other person had made any promise or had given any undertaking to help Prem or had given all temptation to him or had influenced or frightened him
If so he should state this fully from his heart to which Prem replied that he had not been given any promise temptation or inducement nor was he subjected to fear or exhortation
He had been merely asked to make a true statement
Prem then said that he would make his statement of his own free will and the Magistrate could believe him or not
The Magistrate also asked Prem whether any one had beaten him or if there was any mark of injury on his body to which the answer was no 
The Magistrate then examined the body of Prem and found that there was no mark of injury on his person
The Magistrate then asked as to why he was making a confession to which Prem answered 1226 that he was doing so of his own free will and to lessen the burden of his heart
The nature of the questions put and the manner in which the Magistrate examined Prem clearly showed that the Magistrate took every precaution to be satisfied whether Prem was going to make a voluntary statement
We are satisfied that during the period of police custody between the 25th of June and July 10 1957 Prem was not induced to make a confession
He made the confession voluntarily
That the confession was voluntary finds support from Prem s statement to the Committing Magistrate under section 342 of the Code of  Criminal Procedure
In that statement Prem told the Magistrate in answer to various questions the following story He had been employed as a domestic servant by the lawyer Banwari Lal
He had developed during this period friendship with the appellant
The appellant had told him that he would commit rape on Nirmala Devi and would rob her of her ornaments and if she resisted he would murder her
He informed the appellant on February 11 1957 that Nirmala Devi would be alone in her house at about mid day on February 12 1957
He had received on February 11 1957 a dagger wrapped in a pajama from the appellant and bad kept it in the store behind the office of Banwari Lal On February 12 1957 he informed the appellant that Nirmala Devi was alone in the house
He had handed over the dagger and the pajama to the appellant on February 12 after taking it out of the store room
The appellant had sought his assistance in the commission of rape robbery and murder of Nirmala Devi and he had been promised a half share in the booty
To the question whether he had kept watch over the house of Banwari Lal when the appellant entered it for committing rape robbery and murder of Nirmala Devi Prem answered that he was made to stand near the stair case by the appellant and that he kept watch while the appellant committed the crime
He finally admitted to the Committing Magistrate that the confession which had been recorded on July 10 1957 was a voluntary confession
When asked whether he had to say anything else Prem told the Committing 1227 Magistrate that he had made a true statement before him and also in the Court of the Magistrate who had recorded his confession
Shorn of details the substance of the story told by Prem to the Committing Magistrate is in keeping with the substance of his confession recorded on July 10 1957
It is to be further remembered that the statement of Prem to the Committing Magistrate was brought on to the record of the Court of Session under section 287 of the Code of Criminal Procedure which directs that the statement should be read as evidence
Although Prem retracted the confession in the Court of Session his memorandum of appeal filed in the High Court showed that he had acted under the influence of the appellant and had been allured by him to achieve his object
He however pleaded that be should not have received such severe punishment
On the contrary lie should have been acquitted
These circumstances clearly indicate that the confession recorded on July 10 1957 was a voluntary confession
It remains now to be seen whether it was a truthful confession
Prem asserted in his confession that he had acquaintance with the appellant previous to the appellant s posting to Rupar and their association continued at Rupar
There is nothing inherently improbable in this story of Prem
It is true that there is not much evidence to corroborate Prem
that lie and the appellant were acquainted and used to associate
Banwari Lal had seen them talking to each other once or twice before the murder
The police station at which the appellant was posted was almost opposite to the house of Banwari Lal where Prem was employed as a servant and there was every probability of the appellant and Prem meeting
It is significant that on the day of murder of Nirmala Devi in the afternoon Prem was present in the compound of the police station with a child in a perambulator
Foot constable Gurbachan Singh PW 4 enquired from Prem as to why he had gone inside the police station
On this the appellant asked Gurbachan Singh not to remonstrate with Prem as he was a mere boy
Gurbachan 156 1228 Singh had stated that previously he had never seen Prem going inside the police station with a perambulater
The intervention of the appellant suggests that he knew Prem and was friendly towards him
Prem s story that he was employed as a servant by Banwari Lal is corroborated by the evidence of Banwari Lal himself his sister Vina and his clerk Naranjan Das
In the nature of things there could be no corroboration of Prem s story about the appellant s proposal to rape and rob Nirmala Devi and if necessary to murder her
According to Prem s confession a day before the murder he had been given a dagger by the appellant along with a _pajama and that Prem took the pajama and the dagger to the upper storey of Banwari Lal s house having concealed it in the kothri of firewood which was near the office room of Banwari Lal
This part of his story receives corroboration from the evidence of Banwari Lal that after the murder he had found a blood stained pajama Exbt
P 14 banging on the door of the store room which is at the back of the residential portion of the house
Banwari Lal is supported by Nand Lal PW 34 Motor Mobile Patrol Sub Inspector who recorded the First Information of Banwari Lal
According to him he found the pajama hanging on one of the shutters of an almirah fixed in the wall in the fuel room situate at the back of the room where Nirmala Devi was found lying dead
It was bloodstained
Banwari Lal had clearly stated that this pajama did not belong to him or any one in his house
The existence of the pajama in Banwari Lal s house lends corroboration to the story of Prem that he had been given this pajama and that he had concealed it in the kothri of fire wood near the office of Banwari Lal
The statement of Prem that he had asked Raj sabziwala to bring down the perambulator of the child and that he did so finds corroboration from the evidence of Gurbachan Singh that in the afternoon he found Prem accused in the police station with a child in a perambulator
The presence of the accused Prem at Banwari Lal s house near about the time of the murder appears to 1229 be clear
When Vina had left for her school at 9 45 am Prem was in the house
Vina returned to the house from her school at about 12 30 noon
At that time Prem was present in the verandah in front of the office
When she finally returned from the school at about 3 45 pm apparently Prem was not in the house but arrived shortly thereafter
The murder was committed at any time between 12 30 pm and 2 15 pm if the appellant was the murderer because Gurbachan Singh s evidence showed that the appellant was at the thana at 2 15 pm
Apparently the appellant went out with Gurbachan Singh and returned to the thana with him in time for Gurbachan Singh to be on duty from 3 pm
If the appellant was the murderer he must have committed the murder before 2 15 pm Nirmala Devi was alive at 12 30 pm when Vina saw her feeding her child
Assuming that Vina did not stay long as she had come to get some money to purchase a copy book it would not be unreasonable to assume that Nirmala Devi was alive up to 12 40 or 12 45 pm
The interval of time between that and 2 15 pm when the appellant was seen at the police station is about 1 12 hours
It would be probable that during this time Prem was present in the house and when he says that lie was present there there is no inherent improbability in his statement
At 3 45 pm when Vina arrived no doubt Prem was not in the house but he came shortly thereafter and Vina took from him the child of Nirmala Devi
This clearly shows that Prem had gone out of the house with the child of Nirmala Devi which one would not normally expect him to do at that time of the day if Nirmala Devi had left the house to do shopping or to visit anyone
If Nirmala Devi was in the house and alive it was most unlikely that Prem accused would have taken her child out of the house
Prem s statement that he was amusing the child while the appellant was doing his nefarious work appears to be true because the child was with him and he had been seen at the police station with a child in a perambulator
If the circumstances tend to show that in all probability Prem was in the house from 12 30 pm to 2 15 pm then his 1230 story that he was present at the house when the appellant came there appears to be a truthful statement
It is significant that when Vina arrived at the house at 3 45 pm she found the door of the stair case locked
When Prem arrived she saw the key in his hand although Prem had said it was lying on the floor
He opened the lock of the door of the stair case with that key and Vinia went upstairs to the second floor where she went to the kitchen and took her food
When Banwari Lal arrived at his house at about 3 15 pm he found his office room locked from outside
He wanted to go to the residential portion for taking tea but found the door of the stair case locked from outside
Finding the door of the stair case leading to the residential portion of his house locked he came down and went away in connection with the election work
On his return he enquired from Prem about the whereabouts of his wife and Prem told him that she had gone out
He wished to go upstairs to the residential portion of the house and Prem at his request opened the lock of the stair case the key being with him
According to Banwari Lal the usual practice was to lock the door of the office which adjoins the stair case and to bolt the other door from inside but on the day of the murder the door adjoining the stair case was looked while the other door was lying open
Banwari Lal s clerk Naranjan Das came to the house at 4 15 or 4 30 pm
He went up to the verandah in front of the office and found both the doors of the office locked from outside
He asked Prem to open the office but Prem told him that the key of one of the locks which was fixed on the door adjoining the stair case had been lost
He gave the key of the other lock and then Prem took out a key from his pocket and opened the lock fixed on the other door of the office
There is no reason to distrust all this evidence which would indicate that after Vina had left the house on her first visit at about 12 30 pm the two doors were locked from outside which was something unusual and that the keys of the looks of these doors were with Prem
He had given evasive answers about the keys to Vinia and Naranjan Das 1231 while the key was in his pocket
These circumstances also indicate the truthfulness of Prem s statement that he was present in the house during the period in which Nirmala Devi was murdered
His statement in the confession that the appellant had locked the door and had thrown the key in tile office verandah and that while he sat there the child while playing picked up the key and that he said to the girl presumably Vina there was the key and then he un locked the door appears to be true
Reference in some detail to the various statements of Prem in the confession and the circumstances proved by the evidence of various witnesses became necessary in order to ascertain whether Prem had made a truthful statement about his presence at the house during the period in which Nirmala Devi was murdered and also as to the part he had played in assisting the appellant to commit the murder
While it is true that in the confession Prem does not attribute to himself any participation in the murder itself it is not to be for gotten that the murder of Nirmala Devi could not have taken place without his aid
Whoever entered the house of Banwari Lal in broad day light could not have gone upstairs without the knowledge and cooperation of Prem
According to his statement lie knew what was the intention of the appellant and to assist him in the accomplishment of his purpose he had concealed in his master s house the pajama and the dagger given to him by the appellant
If he did not actually participate in the murder he would be equally guilty of the murder if that murder was committed with his aid and his connivance
The confession as a whole concerning the murder of the deceased appears to us to be true and we have no hesitation after a very careful consideration of all the circumstances appearing in the case in saying so
In our opinion Prem s confession was not only voluntary and true but it had been corroborated in material particulars regarding the general story told by him in his confession
The other question which now remains for consideration is whether the confession received material corroboration connecting the appellant with the murder of Nirmala Devi
1232 Amongst the appellant s possessions a dagger was recovered which appeared to be blood stained but owing to the long delay in sending it to the Chemical Examiner its origin could not be determined
From the medical evidence it appears that the dagger in question could have inflicted the kind of injuries suffered by Nirmala Devi
The most important corroboration however is the recovery of the ornaments of the deceased
These ornaments according to Banwari Lal she had been wearing on the day of the murder when he left for court
On some statement made by the appellant his mistress Raj Rani was visited by the authorities and in the presence of respectable witnesses some ornaments were recovered and they were identified as the ornaments of the deceased
The evidence of Raj Rani also showed that these ornaments were given to her by the appellant
She apparently had no reason to depose against the appellant because she had said in her evidence that she wished to meet the appellant before giving clue to the ornaments and that she wished to give the ornaments to the police in his presence
The defence case was not that these ornaments did not belong to the deceased but that on the contrary they were hers but had been produced by Banwari Lal during the police investigation and that it was falsely alleged that they had been recovered from Raj Rani
The evidence of Charan Dass P W 24 President of the Municipal Committee of Rupar however clearly shows that in his presence the appellant made a statement to the police to the effect that one gold kara and seven gold bangles had been given by him to Raj Rani
This statement was made on August 3 1957
His evidence also shows that on August 9 1957 he accompanied the police party from Rupar to Jangpura and that Raj Rani took them to her sister s house
She brought out a trunk from inside the room
She opened the lock of the trunk and produced from it a tin box which contained a gold kara and seven gold bangles
The evidence of GoriShanker a Municipal Commissioner of Rupar is to the same effect and corroborated Charan Dass
The courts below believed these two witnesses
We have examined 1233 their evidence with some care in view of the submission on behalf of the appellant that they should not be relied upon
There is nothing in their evidence to show that they were in any way hostile to the appellant or had any motive to depose against him
The courts below having believed these witnesses we would not ordinarily go behind their view on a question of fact
Having regard however to the con sequences which arise as a result of the acceptance of their evidence in this particular case we have examined their evidence in the light of the submission made on behalf of the appellant
It was suggested that at the earlier stage the police investigation was not properly conducted and the public were dissatisfied
A deputation of influential persons met the Chief Minister as a result of which a more active and thorough investigation took place
It may be that influential persons of Rupar interviewed the Chief Minister being dissatisfied with the manner in which the investigation was taking place
There is however nothing to show that Charan Dass or Gori Shanker were amongst those who had interviewed the Chief Minister or that they had taken part in any agitation against the police concerning the manner of the investigation
It is difficult to believe that two responsible persons such as the President of the Municipal Committee and one of its members would go out of their way to depose to certain events which would provide very strong evidence against the appellant and lead to his conviction on a capital charge unless they had really heard the statement of the appellant and witnessed the recovery as deposed to by them
It was then suggested that apparently Charan Dass had no real reason to go to the police station on August 3 1957 and therefore his story that he heard the appellant make the statement which led to the recovery of the ornaments was false
Charan Dass however had stated the reason for his visiting the police station
He went there to complain to the police that people parked their push carts in the bazar and thus obstructed the passage
In our opinion as the President of the Municipal Committee of Rupar if a nuisance was 1234 being created by people parking their push carts in the bazar it was a natural thing for him to go to the police station in order to get such obstruction removed and for the police to see that the nuisance did not continue
We can find nothing strange in the conduct of Charan Dass or Gori Shanker in having gone to the police station in the circumstances deposed to by them
We have no hesitation in believing the evidence of Charan Dass and Gori Shanker that the appellant made a statement to the effect that he had given one gold kara and seven gold bangles to Raj Rani and that the same were recovered from Raj Rani in their presence
It would appear therefore on the evidence of Raj Rani and these witnesses that not long after the murder of Nirmala Devi the appellant was in possession of her ornaments and that he had given them to Raj Rani
The ornaments being in possession of the appellant soon after the murder would show that he either stole the ornaments or was in possession of them knowing or having reason to believe that they were stolen properties
Nirmala Devi had been murdered by someone who had stolen her ornaments
According to the confession of Prem it was the appellant who had gone up stairs where Nirmala Devi was Sometime after the departure of Vina
He had given the appellant the pajama and the dagger
Thereafter the appellant left the house leaving the pajama behind
After the departure of the appellant no outsider entered the house
It is clear therefore that in order to steal the ornaments the thief killed Nirmala Devi
The circumstances clearly indicate that the thief was no other than the appellant
It seems to us therefore that the confession of Prem receives strong and substantial corroboration connecting the appellant with the crime of the murder of the deceased Nirmala Devi
The conduct of the appellant from 2 15 pm onwards clearly shows that he was in a disturbed state of mind which is consistent with his having committed the crime It is curious that lie was uttering the word I Nirmala
It had been suggested to Gurbachan Singh that the Assistant Sub Inspector Rikhi Ram had a 1235 daughter with whom the appellant had illicit connection and that her name was Nirmala but the witness stated that he had no knowledge about it
The appellant in his statement under section 342 of the Code of Criminal Procedure before the Sessions Judge admitted that he was shouting out the name of Nirmala but he had a love affair with a girl named Nirmala daughter of Rikhi Ram
We are not prepared to accept the explanation of the appellant as to how he was calling out the name of Nirmala so soon after the murder of Nirmala Devi
This conduct of the appellant may not by itself have been corroboration of sufficient importance to enable a court to convict the appellant on the retracted confession of Prem
No stronger and no better corroboration however of the confession of Prem could be had than the evidence which showed that the appellant had been in possession of Nirmala Devi s ornaments soon after her murder
There were several comments made on the evidence by the learned Advocate for the appellant but those comments were with reference to unimportant matters and were not at all relevant
In an appeal by special leave it is not ordinarily permissible to make submissions on questions of fact
The principal matter with which we have been concerned in this appeal was whether the confession of Prem had been corroborated in material particulars regarding the general story told by him and in material particulars tending to connect the appellant with the murder of the deceased
We have no hesitation in saying that the confession of Prem has been amply corroborated in both respects
Recovery of the ornaments of the deceased at the instance of the appellant incriminated him to the fullest extent and lent the strongest corroboration to the con fession of Prem from which it was apparent that no other person than the appellant could have murdered Nirmala Devi
The appeal is accordingly dismissed
Appeal dismissed


Summary:
The appellantpetitioner company Good Year India Limit ed a registered dealer both under the Haryana General Sales Tax Act 1973 and  was manufac turing automobile tyres and tubes at Ballabgarh in the State of Haryana
For the said manufacturing activity it was purchasing various kinds of raw materials both within the State and from outside the State of Haryana
The Company was despatching these manufactured goods viz tyres and tubes to its own branches and sales depots outside the State of Haryana
The assessing authority imposed upon the appellant company the purchase tax under section 9 of the Haryana General Sales Tax Act 1973 in view of the despatches made by it of the manufactured goods to its various depots out side the State
The petitioner company filed writ petition in the Punjab and Haryana High Court challenging the validity of the Notification levying the tax
A Division Bench of the High Court allowed the petition holding that disposal of goods being separate and distinct from despatch thereof a mere despatch of goods out Of the State by a dealer to his own branch while retaining both the title and possession there of does not come within the ambit of the phrase disposes of the manufactured goods in any manner otherwise than by way of sale as employed in Section 9iaii of the Act
Accordingly the High Court set aside the assessment orders and quashed the impugned Notification as ultra vires of section 9 on the ground that whereas Section 9 provided only for the levy of purchase tax On the disposal of the manufac tured goods the impugned Notification makes mere despatch of goods to the dealer themselves taxable
To override the effect of the said judgment the Haryana Legislature enacted Haryana General Sales Tax Amendment and Validation Act 1983 where by Section 9 of the Act was amended with retro spective effect to include within its sweep the despatch of manufactured goods to a place outside the State in any manner otherwise than by way of sale
The impugned Notifica tion and the con 513 sequential action taken thereunder were also validated
The petitioner company filed writ petitions challenging the assessments
The High Court allowed the petitions hold ing section 91b of the Haryana General Sales Tax Act 1973 as amended by the Haryana General Sales Tax Amendment and Validation Act 1983 in so far as it levied a purchase tax on the consignment of goods outside the State in the course of inter State trade or commerce was beyond the legislative competence of the State of Haryana and was void and inoperative because it intruded and trespassed into an arena exclusively meant for taxation by the Union of India under Entry 92 B of List I of the Seventh Schedule
Accord ingly the High Court set aside the amended provisions of section 9 as also the retrospective validation of the Noti fication and the consequential validation of all actions taken thereunder
Against this decision of the High Court State of Haryana preferred Special Leave Petitions in this Court
During the pendency of these Special Leave Petitions the assessing authority issued Show cause notices asking the petitioner company to show cause why in addition to the purchase tax it should not be liable to penalty as well
The Petitioner company again filed writ petitions in the Punjab  Haryana High Court challenging the validity of these notices
In the meantime a Full Bench of the High Court decided the question again and overruling the decision of the earlier Division Bench held that the taxing event was the act of purchase and not the act of despatch of the consignment
The Full Bench of the High Court held that section 91b as amended was neither invalid nor ultra vires
Against the aforesaid judgment of the Full Bench the Petitioner Company filed appeals in this Court
All these questions are the subject matters of these appeals
In the connected appeals the Food Corporation of India was procuring food grains from the farmers through commis sion agents in tile mandis of Haryana and despatching them to its own branches in the deficit State of the country
The Corporation branches in the recipient States were supplying these stocks to the State agenciesFair Price Shops and were also paying tax as per the provisions of the Sales Tax law of the respective States
Some of the stocks were distribut ed within the State of Haryana for the public distribution system for which sales tax was charged
and deposited with the sales tax depots as per the Haryana General Sales Tax Act 1973
In respect of the inter State despatch of wheat and other food grains by the Food Corporation of India to its own branches tax was attracted at the time of despatch 514 under section 91c of the Haryana Act
The Food Corpora tion of India impugned the levy of tax
In the other connected appeals the appellant companies Hindustan Lever Ltd and Wipro Products were manufacturing vanaspati soaps chemicals and agro chemi cals
For the said manufacturing activities they were purchasing non essential vegetable oil VNE oil and other raw materials and were paying purchase tax 4 under section 3 of the Bombay Sales Tax Act 1959
The VNE oil was subse quently used by the appellant companies in the manufacture of vanaspati and soaps
The finished products manufactured by the appellant companies viz vanaspati and soaps used to be despatched outside the State of Maharashtra to their clearing and forwarding agents
The assessing authority levied additional purchase tax  2 under section 13 AA of the Act on the purchase of said goods VNE oil
The appellant companies filed writ petitions in the High Court challenging the orders of the assessing authority levying the additional tax of 2 and also the vires of section 13 AA of the Bombay Sales Tax Act 1959 under which the additional tax was levied contending that the addition al tax of 2 levied on raw materials where the finished goods manufactured therefrom were despatched outside the State was in the nature of consignment tax which was not within the legislative competence of the State Legislature
The High Court dismissed the petitions holding i the additional purchase tax levied under section 13 AA of the Act was on the purchase value of VNE oil used in the manu facturing of goods transferred outside the State and not on the value of the manufactured goods so transferred ii the State Legislature was competent to levy the tax under Entry 54 of the State List in the Seventh Schedule to the Consti tution and iii Section 13 AA was not violative of either Article 14 or Article 301 of the Constitution of India
Against the decision of the High Court appellant compa nies filed appeal in this Court
Disposing of the matters this Court HELD Per Mukharji J 1
Analysing section 9 of the Haryana General Sales Tax Act 515 1973 it is clear that the two conditions specified before the event of despatch outside the State as mentioned in section 91b namely i purchase of goods in the State and ii using them for the manufacture of any other goods in the State are only descriptive of the goods liable to tax under Section 91b in the event of despatch outside the State
If the goods do not answer both the descriptions cumulatively even though these are despatched outside the State of Haryana the purchase of those goods would not be put to tax under Section 91b
The liability to pay tax under section 91b does not accrue on purchasing the goods simpliciter but only when these are despatched or consigned out of the State of Haryana
The section itself does not provide for imposition of the purchase tax on the transaction of purchase of the taxable goods but when fur ther the said taxable goods are used up and turned into independent taxable goods losing its original identity and thereafter when the manufactured goods are despatched out side the State  of Haryana and only then tax is levied and liability to pay tax is created
It is the cumulative effect of that event which occasions or causes the tax to be im posed
539F H 540A B 11 A taxable event is that which is closely related to imposition
In the instant section viz section 91b there is such close relationship only with despatch
The goods purchased are used in manufacture of new independent commodity and thereafter the said manufactured goods are despatched outside the State of Haryana
In this series of transactions the original transaction is completely eclipsed or cease to exist when the levy is imposed at the third stage of despatch of manufacture
The levy has no direct connection with the transaction of purchase of raw materi als it has only a remote connection of lineage
The mere consignment of goods by a manufacturer to his own branches outside the State does not in any way amount to a sale or disposal of the goods as such
The consignment or despatch of goods is neither a sale nor a purchase
The tax imposed under Section 91b is a tax on despatch
The tax on despatch of goods outside the territory of the State cer tainly is in the course of inter State trade or commerce and amounts to imposition of consignment tax and hence the latter part of section 91b is ultra vires and void
540G H 542H 543A 544E 545A Tata Iron  Steel Co vs State of Bihar   referred to
Good Year India Ltd vs State of Haryana 53 STC 163 and Bata India Ltd vs State of Haryana  Anr 54 STC 226 approved
516 Des Raj Pushap Kumar Gulati vs The State of Punjab 58 STC 393 overruled
Yusuf Shabeer  Ors
vs State of Kerala  Ors 32 STC 359 Coffee Board vs Commissioner of Commercial Taxes  Ors 60 STC 142 and Coffee Board Karnataka vs Commissioner of Commercial Taxes Karnataka 70 STC 162 distinguished
State of Tamil Nadu vs MK Kandaswami 36 STC 191 Ganesh Prasad Dixit vs Commissioner of Sales Tax MP 1969 24 STC 343 and Malabar Fruit  Company vs Sales Tax Officer Pallai 30 STC 537 distinguished
12 The effect of the Constitution Forty sixth Amend ment Act 1982 is that the field of taxation on the con signmentdespatch of goods in the course of inter State trade or commerce expressly comes within the purview of the legislative competence of the Parliament
543H 2
If section 91b is ultra vires the penalty pro ceedings would automatically go as they are in substance based on the violation of section 91b of the Act and the consequent proceedings flowing therefrom
545B 3
Section 243 of the Haryana General Sales Tax Act 1973 without making any change in the substantive provision purports to give a direction to ignore the judgments in Goodyear and Bata India Ltd cases
This provision is void
546B Shri Prithvi Cotton Mills Ltd vs Broach Borough Munici pality 1969 2 SCC 283 and Dy
Commissioner of Sales Tax Law Board of Revenue Taxes vs Ms Thomas Stephen  Co Ltd Quilon   followed
In respect of inter State despatch of wheat and other food grains by Food Corporation of India to its own branch es tax is attracted at the time of despatch under Section 91c of the Haryana Act
Section 9 is the charging sec tion for taxation in case where the goods are purchased for export
There is no other provision for levy of purchase or sales tax in such cases of export
547B 41 No tax is payable under the Haryana Act when exports outside the State take place either in the course of inter State sale or export out of the territory of India
But the tax is payable for sale in the course 517 of inter State trade and commerce ie under the 
It is only when the goods are despatchedconsigned to the depots of the FCI in other States that tax is levied under section 9 of the Haryana Act
This is in addition to the sales tax paid by the FCI on the sale of grains in the recipient States
In view of sections 14  15 of the  it becomes clear that wheat is one of the commodities specified as declared goods  and in respect of which the intention is clear that the tax is payable only once on the declared goods
In the case of inter State sale if any tax has been paid earlier on declared goods inside the State the same is to be refunded to the dealer who is paying tax on such inter State Sales
On these transactions no tax is liable in the recipient State while in case of inter State despatch es the tax is leviable twice
Section 91c which inso far as it purports to tax exports is beyond the legisla tive competence of the State of Haryana
547E G 5
The incidence of the levy of additional tax of two paise in the rupee under Section 13 AA of the Bombay Sales Tax Act 1959 is not on the purchase of goods but such a levy is attracted only when a the goods which so pur chased on payment of purchase tax are used in the manufac ture of taxable goods and b the goods so manufactured are despatched to his own place of business or to his agent s place of business outside the State
Therefore the inci dence of tax is attracted not merely on the purchase but only when the goods so purchased are used in the manufacture of taxable goods and are despatched outside the State
The incidence of additional tax has no nexus with the purchase of the raw materials
553A B D 51 Purchase tax under section 3 of the Act is attracted when the taxable event ie the purchase of goods occurs but the taxable event for the imposition of additional tax of two paise in the rupee occurs only when the goods so pur chased are used in the manufacture of taxable goods and such taxable goods are despatched outside the State by a dealer manufacturer
The goods which are despatched are different products from the goods on the purchase of which purchase tax was paid
It is therefore not possible to accept the argument that the chargeable event was lying dormant and is activated only on the occurrence of the event of despatch
553E 556F 557C 52 The charging event is the event the occurrence of which immediately attracts the charge
Taxable event cannot be postponed to the occurrence of the subsequent condition
In that event it would be the subsequent condition the occurrence of which would attract the Charge which will be taxable event
Therefore the charge under 518 section 13 AA is a duty on despatch
Accordingly this charge can not be sustained557D The Bill to amend section 20 of the and section 3 of the Central Excises  Salt Act 1944   Ms Guruswamy  Co vs State of Mysore  Mukunda Murari Chakravarti  Ors
vs Pabitramoy Ghosh  Ors  Kedar Nath Jute Mfg Co Ltd vs CIT 82 ITR SC 363 State of MP vs Shyam Charan Shukla 29 STC SC 215 RC Jail vs Union of India 1962 Suppl
3 SCR 436 Union of India vs Bombay Tyre International Ltd  and State of Karnataka vs Shri Ranganatha Reddy   referred to
Wipro Products vs State of Maharashtra 1989 72 STC 69 Bom
 Reversed
53 Imposition of a duty or tax in every case would not tantamount per se to any infringement of Article 301 of the Constitution
Only such restrictions or impediments which directly or immediately impede free flow of trade commerce and intercourse fail within the prohibition imposed by Article 301
A tax in certain cases may directly and immedi ately restrict or hamper the flow of trade
but every impo sition of tax does not do so
Every case must be judged on its own facts and its own setting of time and circumstances
Unless the court first comes to the finding on the available material whether or not there is an infringement of the guarantee under Article 301 the further question as to whether the Statute is saved under Article 304b does not arise
558B C 54 In the instant case
the goods taxed do not leave the State in the shape of raw material which change their form in the State itself and there is no question of any direct immediate or substantial hindrance to a free flow of trade
Therefore Section 13 AA of the Bombay Sales Tax Act 1959 is not violative of Article 301
558D E Atiabari Tea Co Ltd vs The State of Assam  Ors   The Automobile Transport Rajasthan Ltd vs The State of Rajasthan 1963 1 SCR 491 Andhra Sugars Ltd vs State of Andhra Pradesh   State of Madras vs NK Nataraja Mudaliar  and State of Kerala vs AB Abdul Khadir  Ors   referred to
Kalyani Stores vs The State of Orissa  Ors   relied on
519 6
The provisions of constitutional changes have to be construed not in a narrow isolationism but on a much wider spectrum and the principles laid down in Heydon s case are instructive
529H 530A Black Clawson International Ltd vs Papierwerke Waldhof Aschaffenburg   referred
Heydon s case   relied on
In construing the expressions of the Constitution to judge whether the provisions of a statute are within the competence of the State Legislature one must bear in mind that the Constitution is to be construed not in a narrow or pedantic sense
The Constitution is not to be construed as mere law but as the machinery by which laws are to be made
533F James vs Commonwealth of Australia  The Attorney General for the State of New South Wales vs The Brewery Employees Union etc
   Re
Central Provinces  Berar Sales of Motor Spirit and Lubri cants Taxation Act 1938 AIR 1939 FCI and The Province of Madras vs Ms Boddu Paidanna  Sons AIR 1942 FC 33 referred to
The nomenclature of the Act is not conclusive and for determining the true character and nature of a particular tax with reference to the legislative competence of a particular Legislature the Court will look into its pith and substance
543H 544A Governor General in Council vs Province of Madras 1945 72 IA 91 and Ralla Ram vs The Province of East Punjab AIR 1949 FC 81 referred to
The doctrine of pith and substance means that if an enactment substantially falls within the power expressly conferred by the Constitution upon the Legislature which enacted it it cannot be held to be invalid merely because it incidentally encroaches upon matters assigned to another legislature
555H 556A Kerala State Electricity Board vs Indian Aluminium Co 1976 1 SCR 552 and Prafulla Kumar Mukherjee  Ors
vs Bank of Commerce AIR 1947 PC 60 referred to
91 The true test to find out what is pith and substance of the 520 legislation is to ascertain the true intent of the Act which will determine the validity of the Act
577B 10
There are three stages in the imposition of tax
There is the declaration of liability that is the part of the Statute which determines what persons in respect of what property are liable
Next there is the assessment Liabili ty does not depend on assessment that exhypothesi has already been fixed
But assessment particularises the exact sum which a person is liable to pay
Lastly comes the method of recovery if the person taxed does not voluntarily pay
539B C Whitney vs Commissioner of Inland Revenue 1926 AC 37 and Chatturam  Ors
vs CIT Bihar 15 ITR FC 302 referred to
While determining nature of a tax though the stand ard or the measure on which the tax is levied may be a relevant consideration it is not the conclusive considera tion
556C Governor General in Council vs Province of Madras 1945 72 IA 91 RR Engineering Co vs Zila Parishad Bareilly  Anr   In Re A reference under the Government of Ireland Act 1920 and Navnitlal C Javeri vs KK Sen Appellate Asstt
Commis sioner of Income Tax D  Range Bombay   referred to
The liability to tax would be determined with reference to the interpretation of the Statute which creates it
It cannot be determined by referring to another Statute
555G 13
In fiscal legislations normally a charge is creat ed
The mischief of taxation occurs on the happening of the taxable event
Different taxes have different taxable events
A taxing event is that event the occurrence of which immediately attracts the levy or the charge of tax
What is the taxable event or what necessitates taxation in an appro priate Statute must be found by construing the provisions
The main test for determining the taxable event is that on the happening of which the charge is affixed
552H 553A 552G 533E 539B 14
Fiscal laws must be strictly construed
n is not permissible to make assumptions and presumptions in a fiscal provision
536H 538G CST UP vs The Modi Sugar Mills Ltd  and Baidyanath Ayurved Bhawan P Ltd Jhansi vs Excise Commis 521 sioner UP  Ors   referred to
While interpreting a Statute a reasonable construc tion should be followed and literal construction may be avoided if that defeats the manifest object and purpose of the Act
555F Commissioner of Wealth tax Bihar  Orissa vs Kripashan kar Dayashankar Worah and Income Tax Commis sioners for City of London vs Gibbs 10 ITR Suppl 121 HL referred to
The Entries in the Constitution only demarcate and legislative fields of the respective legislatures and do not confer legislative powers as such
544H 545A 17
A precedent is an authority only for what it actual ly decides and not for what may remotely or even logically follows from it
537E Quinn vs Leathem  and The State of Orissa vs Sudhansu Sekhar Misra  Ors   followed
171 A decision on a question which has not been argued cannot be treated as a precedent
542B Rajput Ruda Maha  Ors
vs State of Gujarat 1980 2 SCR 353 followed
Per Ranganathan J Concurring 1
Section 9 of the Haryana General Sales Tax Act 1973 as well as section 13 AA of the Bombay Sales Tax Act 1959 purport only to levy a purchase tax
The tax however becomes exigible not on the occasion or event of purchase but only later
It materialises only if the purchaser a utilises the goods purchased in the manufacture of taxable goods and b despatches the goods so manufactured other wise then by way of sale to a place of business situated outside the State
The legislation however is careful to impose the tax only on the price at which the raw materials are purchased and not on the value of the manufactured goods consigned outside the State
559G H 560A 2
It is one thing to levy a purchase tax where the character and class of goods in respect of which the tax is levied is described in a particular manner and a case like the present where the tax though described as purchase tax actually becomes effective with reference to 522 a totally different class of goods and that too only on the happening of an event which is unrelated to the act of purchase
560D E 21 The taxable event if one might use the expression often used in this context is the consignment of the manu factured goods and not the purchase
560E 22 The background of the Constitutional Forty sixth Amendment indicates that there were efforts at sales tax avoidance by sending goods manufactured in a State out of raw materials purchased inside to other States by way of consignments rather than by way of sales attracting tax
This situation lends force to the view that the State unable to tax the exodus directly attempted to do so indi rectly by linking the levy ostensibly to the purchases in the State
560G H Andhra Sugar Ltd  Anr
vs State   re ferred to
State of Tamil Nadu vs Kandaswami 1975 36 STC 191 distinguished