minal Appeal No 540 of 1985
From the Judgment and Order dated 27385  22585 of the Patna High Court in Govt
Appeal No 28 of 1979
Udai Narain Sinha and MP Jha for the Appellants
D Goburdhan for the Respondent
ANAND J This appeal under Section 2a of the  is directed against the judgment and order of the High Court of Patna dated 27th March 1985 in Government Appeal No 28 of 1979 convicting and sentencing the appellants Shatrugan Singh Al Kapildeo Singh A2 Rampriya Yadav A4 Brij Bihari Singh A5 Ram Ekbal Singh A6 and Suresh Singh A7 Awadesh Singh A3 died after the judgment of the High Court for offences under Sections 302 302149 148 324 and 326 IPC by reversing an order of acquittal recorded by the Additional Sessions Judge VI Patna dated 28th April 1979
While Al and A2 are brothers A3 is the son of A2 A4 is a ploughman of A 1
A5 is the son in law of A2 A6 is the brother in law of A3 and A7 is the son of A6
The prosecution case in brief is that the deceased Shyamdeo Singh was on enimical terms with A1 and A2 and litigation was going on between the two parties
On the night intervening 1213 October 1977 at about mid night at village Malia Gaura the appellants along with Awadesh Singh A3 variously armed went to the house of the deceased and knocked at the door of the room in which he was sleeping
Rajmani Devi PW 13 the daughter of the deceased alongwith her ailing child was also sleeping in the same room
On hearing the knocking she opened the door and found Al A3 and A5 armed with pistols A2 armed with a gun A4 and A7 armed with a grasa each and A6 armed with a dagger present there As soon as she opened the door 5 Kapildeo Singh A2 fired from his gun at her causing an injury to her person
Rampriya Yadav A4 hurled a grasa blow as a result of which two of her fingers of the left hand were chopped off
Ram Ekbal Singh A6 thereupon told his companions to spare her and to kill her father Shyaindeo Singh for which purpose they had come there
Rajmani Devi PW 1 3 was pushed aside by the accused who entered the room
When her father moved towards her A1 Shatrugan Singh opened fire at him with his pistol aiming it at his chest
Shyamdeo Singh on receipt of the pistol shot fell down in the room and died
Ram Ekabal Singh A6 hurled a dagger below on the deceased
After committing the crime the accused party opened the entrance door and fled away
While they were retreating some villagers who were coming towards the house of the deceased on hearing the noise were also attacked and in the process a gun shot injury was caused to Basant Sao PW II
The villagers thereafter made arrangements for a cot to carry Rajmani Devi PW 1 3 to the Police Station and while going to the Police Station they stopped at the house of the local Mukhiya Ram Nandan Singh PW 8 who also accompanied her to the Police Station Naubatpur
Basant Sao PW 11 was also brought to Naubatpur Police Station on a cot by his relations and villagers
On the basis of the statement of Rajmani Devi PW13 FIR exhibit 7 was drawn up at the Police Station Naubatpur and a case was registered in the early hours of the morning of 13101977
Investigation was immediately taken up by Pameshwar Parshad Singh PW 15 and both the injured Rajmani Devi PW 13 and Basant Sao PW 11 were sent for treatment to Naubatpur Hospital where their injuries were examined by Dr Ramesh Kumar Ran PW14
Considering the serious nature of the injuries of Basant Sao PW II he was referred to Patna Medical College Hospital  The investigating officer Parmeshwar Prasad Singh PW 15 visited the place of occurrence and prepared the inquest report of the dead body of Shyamdeo Singh and sent the body forpost mortem examination
During the investigation the investigating officer PW 15 seized blood stained earth from the place of occurrence
An empty cartridge was produced before the investigating officer by one Ram Rekha Singh
After Basant Sao PW11 reached PMCH for treatment information was sent by the doctor to the local police of Pirbahore Police Station
ASI Ram Lakhan Jha of Pirbahore Police Station went to the hospital and recorded the statement of Basant Sao PW 11 exhibit 12 on 14101977 at about 8 PM after Basant Sao PWI 1 had regained consciousness
He sent the same to the officer 6 in charge of Naubatpur Police Station
Mr Udai Sinha learned senior advocate appearing for the appellants submitted that the version of the occurrence given by Basant Sao PW 11 in his statement recorded at PMCH by Ram Lakhan Jha DW1 exhibit 12 was materially different from the statement of Rajmani Devi PW 1 3 recorded as FIR exhibit 7 at Police Station Naubatpur and gave a lie to the prosecution case rendering the prosecution case doubtful
Learned counsel submitted that the High Court erroneously ignored the statement of Basant Sao PW 11 holding it inadmissible in evidence on the ground that it had been recorded after the investigation in the instant case had started on the FIR being lodged by Rajmani Devi PW 13
According to the learned counsel statement of Basant Sao exhibit 12 could not be said to have been recorded during the investigation of the case and should not have been ruled out of consideration
We cannot agree
In our opinion the High Court was justified in ignoring the statement of Basant Sao exhibit 12 as it admittedly was recorded during the investigation of the case registered on the basis of FIR exhibit 7 and had been sent to the investigating officer PW 15 by Ram Lakhan Jha DW 1
The statement was therefore hit by Section 162Cr
PC and could not be read in evidence
Even if be assumed for the sake of argument though without accepting it that exhibit 12 was in the nature of an FIR lodged by Basant Sao PWI 1 the same could not have been brought on record as not only Basant Sao PW11 denied making any such statement he was not even confronted with the alleged statement exhibit 12 nor his signatures got proved on it
exhibit 12 could not therefore be read at all in evidence
The trial court not only committed an error in bringing on record exhibit 12 and reading it in evidence but also going further and comparing it with FIR exhibit 7 lodged by Rajamani Devi and finding discrepancies in the two documents
Learned counsel then submitted that due to the admitted enmity between the parties and the hostility of the Mukhiya of the Gram Panchayat PW8 towards A1 and A2 it would not be safe to rely upon the testimony of the prosecution witnesses without looking for independent corroboration and since none was forth coming in the case the conviction of the appellants was not justified
In view of the hostile relations between the parties and the fact that all the accused are closely related to each other and the prosecution 7 witnesses are also closely related or connected with each other we have scrutinised the evidence on the record with care
Our independent and careful appraisal of the evidence on the record has convinced us that the version given by the first informant PW13 about the occurrence in the first FIR exhibit 7 lodged almost within three hours of the occurrence is a truthful version of the manner in which she had received the injuries as also how her father had been shot at and as to who the assailants were
Rajmani Devi PW 13 is the
injured person and as such she would be the last person to spare her real assailants or the assailants of her father and substitute the real assailants by innocent persons
She was the first victim of the assault
Her statement in court corroborates FIR exhibit 7 and the medical evidence and the testimony of other witnesses lends sufficient corroboration to her testimony
From the evidence on the record it is established that Rajmani Devi PWI 3 was sleeping along with her child in the same room as her father deceased Shyamdeo Singh at the time of the occurrence
She knew all the appellants and she had enough time to see them in the light of the burning lantern
It is the consistent case of prosecution witnesses PW9 PW 1 0 and PW 1 2 that a lantern was burning in the room and the mere fact that the investigating officer failed to take the lantern into possession cannot render the testimony of these witnesses doubtful
Rajmani Devi PW13 attributed specific acts to Kapildeo Singh A 1 and Rampriya Yadav A4 in so far as the injuries on her own person were concerned and to Shatrugan Singh A1 in so far as the fatal pistol shot on her father was concerned
She of course deposed that the other accused persons variously armed were also present at the time of occurrence
Kunti Devi PW10 the sister of Rajmani Devi PWI 3 stated that after hearing the sound of gun shot she woke up and went into the room where her sister was sleeping with the child
She then went on to say  I saw that the accused Kapildeo Singh Shatrugan Singh and Awadesh Singh were coming out from the room of my father
Besides these other people were also there but I could not recognize them due to darkness
A lantern was hitting up in the room of my father
I had recognised the aforesaid three accused persons in the lantern light
This witness 8 therefore recognized only Al A2 and A3
though she knew all the accused persons
Varat Devi PW 1 2 the sister in law of the deceased Shyamdeo Singh who was also present in the house on the night of the occurrence and was sleeping in another room with Kunti PW 1 0 and the wife of the deceased deposed that at mid night she heard the shot of a gun and as she got up and opened the door to go out she saw some persons coming out from Shyamdeo Singh s room
She went on to say that out of them I recognized Kapildeo Singh Shatrugan Singh and Awadesh Singh
All the three accused persons are present in the court
This witness also thus recognized only three accused Al A2 and A4 even though according to the prosecution case all the accused were known to her
Ram Nandan Singh PW8 who according to the prosecution case being the Mukhiya of the village went to the police station stated in his examination that he had told the police that seven persons had their hand in the killing of the deceased but admitted in the cross examination that before the police he had named only two accused persons namely Kapildeo Singh A2 and Shatrugan Singh A1 as the assailants
Rajeshwar Singh PW5 a neighbour of the deceased who woke up on hearing the firing of the gun and went to the house of the deceased stated that he had seen the deceased Shyamdeo Singh lying an Rajmani Devi PWI3 sitting near the dead body with injuries on her breast and fingers and that on his inquiry from Rajmani Devi PW 1 3 as to what had happened was told by her that Kapildeo Singh had caused her the injury by his gun and that Rampriya Yadav had cut her fingers with a grasa and that Shatrugan Singh had killed her father by the shot of pistol
This witness has also therefore supported PW13 about the manner of assault and the nomination of the actual assailants
From an analysis of the evidence referred to above it is clear that while Rajmani Devi PW 1 3 had named all the seven accused she had attributed specific acts onlyto Kapildeo Singh A2 Rampriya Yadav A4 and Shatrugan Singh A 1
Kunti Devi PW10 and Varat Devi PW 12 on I their own showing had recognized only Kapildeo Singh A2 Shatrugan Singh Al and Awadesh Singh Al
They did not recognize and other accused persons even though they were known to them
PW5 also did not state that Rajmani Devi PW13 had given to him the names 9 of any other accused when he had reached her house soon after the occurrence
In view of the admitted enmity between the parties and the close relationship of the witnesses inter se and the close relationship of the accused persons with one another the possibility that alongwith the actual assailants some other have also been implicated cannot be ruled out
Prudence therefore requires that this court should look for corroboration of the testimony of PWI3 in respect of each of the accused before finding them guilty
Since the prosecution witnesses referred to above knew each of the accused the non identification by any one of them of A5 A6 and A7 renders the presence of these accused and their participation rather doubtful
It is not possible to say with any amount of certainty that they were actually involved in the commission of crime with the other accused persons
Of course PW 1 3 would not leave her own assailants or the assailants of her father but it is not unknown that in view of the pronounced hostility between the parties the close relations of A 1 A2 A3 and A4 namely accused A5 A6 and A7 may have also been roped in
Though PW 1 0 and PW 12 did not recognize Rampriya Yadav A4 as one of the accused but the participation of Rampriya Yadav A4 who according to Rajmani Devi PWI3 had given her the blow with the grasa chopping off her two fingers of the left hand in our opinion has been conclusively established
The presence of Awadesh Singh A3 since deceased is admitted by all the prosecution witnesses
The testimony of Rajmani Devi PW 1 3 is consistent about the participation of Shatrugan Singh Al and Kapildeo Singh A2 alongwith Rampriya Yadav A4 in the crime
Inspite of lengthy cross examination nothing has been brought out to discredit her testimony in so far as either the occurrence or the actual assault on her and the deceased is concerned
The ocular testimony regarding the participation of the accused in the crime as well as the manner of assault and the nature of weapons used by A1 A2 and A4 for causing injuries has received ample corroboration from the medical evidence and the recovery of the blood stained clothes and earth from the place of occurrence
The FIR lodged by the injured witnesses promptly also lends enough assurance as regards the participation of A 1 A2 A3 and A4 in the crime
We have therefore no hesitation to hold that the prosecution has established the case against Shatrugan Singh A1 Kapildeo Singh A2 Awadesh Singh A3 since dead and Rampriya Yadav A4 beyond any reasonable doubt
10 This now takes us to the question of the nature of the offence committed by the aforesaid four appellants
Since we have doubted the presence of A5 A6 and A7 and their participation in the crimethey are entitled to the benefit of doubt and giving them the benefit of doubt we allow their appeal and setting aside their conviction and sentence acquit them
With the acquittal of A5 A6 and A7 it is only the four appellants Al A2 A3 and A4 against whom the prosecution can be said to have established its case beyond a reasonable doubt
Section 148 IPC under the circumstances would have no application
Similarly Section 149 IPC would also not be attracted and A2 A3 and A4 cannot be convicted under Section 302 with the aid of Section 149 IPC
From the prosecution evidence however it stands amply established that the three appellants Al A2 and A4 alongwith A3 since dead had come together armed with deadly weapons to the house of the deceased Shyamdeo Singh and while Al Shatrugan Singh had fired pistol shot at Shyamdeo Singh resulting in his death Kapildeo Singh A2 had fired from his gun at Rajmani Devi PW 13 causing her a serious injury on her breast while Rampriya Yadav A4 had caused her grievous injuries with a grasa resulting in the chopping off two of her fingers of the left hand
The crime was committed in the presence of Awadesh Singh A3
Therefore while A2 A3 and A4 cannot be convicted for the offence under Section 302149 IPC all of them can be said to have shared the common intention with Shatrugan Singh Al for committing the murder of Shyamdeo Singh deceased
The very fact of Al A2 A3 and A4 came together armed with deadly weapons at the night to the house of the deceased and cause deadly injuries to the deceased and seriously wounded Rajmani Devi PW 13 and thereafter escaped together would undoubtedly go to show that all of them shared the common intention to murder Shyamdeo Singh
They are therefore liable to be convicted with the aid of Section 34 IPC and learned counsel was unable to point out any impediment in the way of convicting them with the aid of Section 34 IPC instead of Section 149 IPC
The evidence on the record has established beyond any doubt that Shatrugan Singh A 1 committed the murder of Shyamdeo Singh deceased by firing the pistol shot
He has therefore rightly been 11 convicted by the High Court for the offence under Section 302 IPC and sentenced to suffer imprisonment for life
His conviction for the offence under Section 27 of the Arms Act and the sentence of two years R 1 is also justified
We maintain his conviction and sentence on both counts
We however alter the conviction of Kapildeo Singh A2 Awadesh Singh A3 and Rampriya Yadav A4 for the offence under Section 302149 lPC to the one under Section 30234 IPC and sentence A2 and A4 each to suffer imprisonment for life A3 being already dead
We maintain the conviction of Kapildeo Singh A2 for the offence under Section 27 of the Arms Act as also the sentence of two years RI imposed on him for the said offence
His conviction and sentence for an offence under Section 324 IPC as recorded by the High Court is also maintained
Rampriya Yadav A4 has also been convicted for the offence under Section 326 IPC and sentenced to three years RI
We maintain his conviction and sentence for the said offence
The conviction of A1 A2 and A4 for the offence under Section 148 is however set aside
The sentence of imprisonment imposed on Al A2 and A4 on different counts shall however run concurrently
As a result of the above discussion the appeal of Brij Bihari Singh A5 Ram Ekbal Singh A6 and Suresh Singh A7 is accepted and allowed
Their conviction and sentence as recorded by the High Court are set aside
They are given the benefit of the doubt and acquitted
They are on bail
Their bail bonds shall stand discharged
The appeal of Al
A2 and A4 except to the extent of the modification of the judgment under appeal as indicated above is dismissed
All the three appellants Shatrugan Singh A1 Kapildeo Singh A2 and Rampriya Yadav A4 are on bail
Their bail bonds shall stand cancelled
They shall be taken into custody to under go the remaining period of their sentence
GN Appeal partly allowed


Summary:
The appellant assessee was a cooperative society engaged in the business of banking The previous year relevant to the assessment year 1963 64 was the year ending June 30 1962
The business income of the assessee was exempt under the provisions of Section 801 as it then stood
During the aforesaid accounting yew the assessee received a sum of Rs 19 being the interest on the deposit made by it with an Electricity Distribution Company
This deposit had to be made by the assessee as it was required by the conditions notified by the electricity company for supply of energy and it carried interest
It was on account of the said deposit that the sum of Rs 19 was received by the assessee by way of interest
The Income tax Officer treated the amount of Rs 19 as income from other sources and on that basis he levied additional surcharge in a sum of Rs 81920
The assessee appealed to the Appellate Assistant Commissioner who upheld the assessee s contention that the said sum of Rs 19 constituted its business income and was therefore exempt
He held that the levy of surcharge was unsustainable
The Revenue appealed to the Appellate Tribunal which held that it was income from business  and accordingly dismissed the Revenue s 997 998 appeal
At the instance of the Revenue the Tribunal referred the question to the High Court
The High Court held that the assumption made by the Appellate Assistant Commissioner and the Tribunal that the liability of surcharge was not attracted in case the said sum of Rs 19 represented business income may not be warranted and that in such a situation the High Court does possess the power to correct the error so long as the point arose out of the Tribunal s order
It returned the reference unanswered and directed the Tribunal to consider the case on all points that require consideration of the question whether additional surcharge was attracted
In the assessee s appeal to this Court it was submitted that the High Court exceeded its jurisdiction in making the aforesaid direction that the High Court widened the scope of enquiry which it was not empowered to do in a reference under Section 256 and that the matter should be sent back to the High Court for answering the question of law as stated by the Tribunal
Dismissing the appeal this Court HELD  All that the High Court has asked the Tribunal to do is to consider whether the liability of surcharge is not attracted even if the said sum of Rs 19 is treated as income from business
The fact that the revenue was also a party to the said erroneous assumption before the Tribunal cannot stand in the way of the Revenue resiling from an er roneous assumption of law
1004 D F In the instant case the question was whether additional surcharge was leviable for the assessment year 1963 64 under the relevant Finance Act
The assessee s contention was that it had no income which was liable to be assessed to income tax inasmuch as its entire income was exempt under Section 81 1 a and it was submitted that the sum of Rs 19 was also a business income and therefore the liability of additional surcharge did not attach to the assessee
The ITO took the view that the said sum of Rs 19 represented income from other sources and therefore liability of additional surcharge was attracted
The Appellate Assistant Commissioner upheld this contention
The High Court however thought that having regard to the language of the provisions of the relevant Finance Act the Tribunal ought to examine whether the liability to additional 999 surcharge was attracted even if the said sum of Rs 19 was treated as income from business
The High Court was of the opinion that this legal submission though raised for the first time did call for serious consideration
This was done to arrive at a correct decision in law relating to the liability to additional surcharge
If really additional surcharge was chargeable according to the Finance Act even In case the said sum of Rs 19 represented business income the High Court cannot be called upon to act on the assumption that it is not so chargeable and answer the question stated
Such a course would neither be in the interest of law or justice
That the Revenue was also a party to the erroneous assumption of law makes little difference to the principle
1004 B F CIT Bombay vs Scindia Steam Navigation Ltd 42 ITR 589 relied on1004 H VRYKN Kallappa Chettiar vs Commissioner of Income Tax  CL T vs Ogale Glass Works Ltd 25 ITR 529 Keshav Mills Co Ltd vs Commissioner of Income Tax Bombay North Ahmedabad  Commissioner of Income Tax Bihar and Orissa vs Kirkend Coal Co 74 ITR 67 and Kusumben D Mahadevia vs Commissioner of Income Tax Bombay City  not applicable
1004 H