Criminal Appeals Nos 120  121 of 1955
497 Appeals from the judgment and order dated December 16 1954 of the Mysore High Court at Bangalore in Criminal Appeals Nos 49 and 50 of 1953 arising out of the judgment and order dated May 19 1953 of the Court of the Third Additional Sessions Judge at Bangalore in Bangalore Sessions Case No 7 of 1953
V Krishnamurthy and R Gopalakrishnan for the appellants
G Channappa Assistant Advocate General for the State of Mysore and T M Sen for the respondent
April 14
The Judgment of the Court AA as delivered by KAPUR J
These two appeals under article 1341c of the Constitution arise out of the judgment and order of the High Court of Mysore at Bangalore confirming the convictions and sentences passed upon the appellants who were accused Nos 2 3 and 4 respectively by the Third Additional District Judge Bangalore
Accused Nos 1 5 and 6 who have been acquitted and the appellants were charged as follows I   hereby charge you A 1 Sanjeeva Rao A 2 Srikantiah A 3 Sidda A 4 Kidaripathi A 5 Hanumantha and A 6 Pujari Anantha as follows 1That you on or about the 25th day of August 1952 at Mayasandra in Magadi Taluk were members of an unlawful assembly the common object of which was to murder deceased Anne Gowda and thereby committed an offence punishable under section 143 of the Indian Penal Code and within the cognizance of the Court of Sessions
2That you A 2 Srikantiah
 A 3 Sidda A 4 Kadaripathi A 5 Hanumantha and A 6 Pujari Anantha on or about the 25tb
day of August 1952 at Mayasandra in Magadi Taluk did commit murder by intentionally causing the death of Anne Gowda and thereby committed an offence punishable under section 302 of the Indian Penal Code and within the cognizance of the Court of Sessions
And that you A 1 Sanjeeva Rao on or about 498 the 25th day of August 1952 at Mayasandra in Magadi Taluk abetted the commission of the offence of murder by A 2 to A 6 which was committed in consequence of your abetment and thereby committed an offence punishable under sections 109 and 302 of the Indian Penal Code and within the cognizance of the Court of Sessions
 Thus all of them were charged with being members of an unlawful assembly the common object of which was to murder the deceased Anne Gowda
The appellants along with Hanumantha accused No 5 and Pujari accused No 6 were further charged with committing murder of Anne Gowda by intentionally causing his death
No doubt the charge does not contain the words  in furtherance of the common inten tion of all  but short of that the charge is as near them as it could be
Accused No I Sanjeeva Rao was further charged with abetting the offence of murder
The trial Court acquitted all the accused of the charge under section 143 Indian Penal Code and accused Nos 5  6 of the charge under section 302 but he convicted accused No 1 under section 302109 and the appellants under section 302 and sentenced them all to transportation for life
They took an appeal to the High Court and the State appealed against the order of acquittal of accused Nos
5  6 and the order of acquittal under section 143
The High Court acquitted accused No I Sanjeeva Rao of abetment of murder after the matter was referred to a third judge under section 429 of the Criminal Procedure Code as there was a difference of opinion between the two judges of the Division Bench hearing the appeal and thus the case of abetment set up by the prosecution failed
It upheld the acquittal of accused Nos
5 and 6
The charge of unlawful assembly of which the common object was the murder of Anne Gowda the deceased also failed because of the acquittal of Sanjeeva Rao accused No 1 Hanumantha accused No 5 and Pujari accused No 6 thus leaving only the appellants
Their conviction for an offence under section 302 Indian Penal Code and the sentence of transportation was upheld
The trial Court s finding against them was as follows 499  So far as A 2 Srikantiah A 3 Sidda and A 4 Kadaripathi alias Kunta are concerned there is ample evidence to show that they alone inflicted injuries on the deceased Anne Gowda and caused his death
Thus a prima facie case has been made out against them for the murder of Anne Gowda 
The High Court in appeal said The evidence on the whole is consistent and in fact it is so consistent that it was being urged on behalf of the accused that each witness was repeating what the other says
Some of the important witnesses have been mentioned in the First Information Report and the inquest itself was over within 24 hours after the incident
Taking the consistent evidence of the witnesses and the probabilities of the case it has to be stated that the evidence of the prosecution witnesses as regards the incident has to be believed We have not had the advantage of a critical and analytical examination of the evidence of the prosecution witnesses by either of the courts below nor has the evidence against each of the appellants been collated and therefore it was necessary for its to examine the evidence in some detail
The evidence of the witnesses for the prosecution shows that the deceased Anne Gowda and the party of Sanjeeva Rao accused No I had considerable amount of enmity between each other
On the date of the occurrence i e August 25 1952 the deceased had gone to Ramanagram where in a Magistrate s Court a case had been brought against him by accused No 1
After the case was over the deceased and P W 18 Gangabyriah who was a co accused in the case and Putta P W 20 who was a witness traveled by the bus which reached a place called Kudur at about 7 pm From Kudur the deceased accompanied by his two companions and also PW 17 Thimmappa and PW 19 Puttarangiah and PW 21 Basavalingappa who had gone for shopping to the shop of P W II Subba Rao started for their village Yollapore
When they reached the bund of the tank of Mayasandra accused Nos
I and 5 and the appellants came from the opposite side
Accused No
I flashed his torch on to the 500 deceased and his companions
Thereupon appellant No 1 who is the brother of Sanjeeva Rao accused No 1 gave a blow with his chopper which cut into two the torch which at the time was in the hand of PW 18 Gangabyriah and on the instigation of accused No 1 to kill the deceased the appellants started their attack on him
Appellant No 3 Sidda gave a blow from behind on the right side of the neck of the deceased with his chopper and accused No 4 Kadaripathi aimed a blow on his head but to ward off the blow the deceased raised his hand and the blow fell on his hand
The deceased then ran towards the tank chased by the accused Nos 1 and 5 and the appellants
He fell into a shallow water pit
Accused Nos 5 and 6 who were empty handed are stated to have caught hold of him and the appellants gave five or six blows to the deceased with choppers
Accused Nos 5 and 6 then released him but the appellants continued the assault with their choppers and caused 24 incised injuries
This story is supported by PW 17 Thimmappa PW 18 Gangabyriah PW 19 Puttarangiah and PW 20 Putta and lastly P 
W 21 Basavalingappa
The First Information Report which was lodged at about 1 am on August 26 was made by PW 17 Thimmappa and  the whole incident is there set out along with the names of the accused as well as the witnesses
When the house of Appellant No 3 Sidda was searched a bloodstained chopper M O 11 was produced by him before the Panchayatdars
Similarly the house of accused No 4 Kadaripathi was also searched and that appellant also produced a chopper there
As the prosecution has not proved that any of these choppers was stained with human blood it cannot get much assistance from this recovery
The medical witness PW 2  found as many as 24 injuries
Of these injury No 5 was described as follows A transverse incised wound in front of the neck 5 long 2 12 deep cutting the skin muscles arteries veins above the thyroid cartilage pharynx and muscles in front of the vertebral column
On the right side the wound starts 2 below
the lobule of the right 501 ear runs to the left and ends 2 below and 1 behind the lobule of the left ear
All the other injuries were incised varying in degree of seriousness
The medical witness s opinion was that injury No 5 is a fatal injury sufficient to cause death All the other injuries taken as whole may be fatal The prosecution has not proved as to who caused injury No 5 nor has it specified the injuries caused by individual appellants
The question then arises what is the offence which the appellants are guilty of if any
Courts below have accepted the testimony of the witnesses which establishes that there was enmity between the parties and that on the date of the occurrence the deceased had gone to the Magi strate s Court at Ramanagram for the case which had been brought at the instance of accused No 1
The evidence also shows that on that date appellants 3 and 4 were seen together at Kudur in front of the shop of PW 10 at about 6 pm
When accused No 3 was asked by Siddappa PW 10 as to what had brought him there his reply was that he was waiting for somebody who was coming by Renuka Bus Service 
The testimony of PW 11 on this point is that he saw accused Nos 3 and 4 and another man about 5 30 pm or 6 pm in front of his shop
He asked them why they had come
They replied that they had come to see some persons coining by Renuka Bus and there is evidence to show that the deceased and his two companions had come from Ramanagram by this Bus Service at about 7 pm
The evidence of prosecution witnesses Nos
17 to 21 also establishes that when the deceased and his party arrived near the bund of the tank the party of the accused came towards them
One of the accused Sanjeeva Rao accused No 1 flashed a torch and the others started attacking the deceased with choppers at the instigation of that accused
Injuries were caused on the head the neck and the shoulders or on the right and left forearms which must have been caused when the deceased tried to save himself by raising his arm to protect his head
The common intention of the 6 502 appellants is clear from the fact that not only were they armed with deadly weapons which they used to cause injuries to the deceased at the place where they first met him and his companions but they also chased him when he tried to run away to save himself and all of them continued assaulting him with these deadly weapons till he was dead
The evidence further shows that all of them took part in the assault
There were 24 injuries on the person of the deceased and of them twenty one were incised
They are either on his head or the neck or the shoulders and on the forearms
All these except perhaps the last are vital parts of the body and anybody who causes injuries with weapons of the kind that the appellants used must be fixed with the intention of causing such bodily injury or injuries as would fall within section 300 of the Indian Penal Code
The question has then been raised that there was no charge under section 34 and therefore the accused cannot be convicted of liability as sharers in an offence by the application of section 34 i e in prosecution of the common intention of all
Now intention is a question of fact which is to be gathered from the acts of the parties and whoever caused injury No 5 or the persons who caused the other injuries on the vital parts of the body could have had no other intention but of causing the death considering the nature and number of inju ries and the weapons used
The omission to mention section 34 of the Indian Penal Code in the charge cannot affect the case unless prejudice is shown to have resulted in consequence thereof
The charge was that the appellants and others were members of an unlawful assembly the common object of which was to murder the deceased
Although there is a difference in common object and common intention they both deal  with combination of persons who become punishable as sharers in an offence  and a charge under section 149 Indian Penal Code is no impedi ment to a conviction by the application of section 34 if the evidence discloses the commission of the offence in furtherance of the common intention of all
In the second charge it was clearly stated that the appellants and accused Nos
5  6 committed the 503 murder by
intentionally causing the death of the deceased
No doubt it would have been better if in the charge section 34 had been specified
But the mere omission to specify it cannot in the circumstances of this case have any effect as no prejudice has been alleged or shown
As a matter of fact this question was never agitated in either of the Courts below
This Court in Willie William Slaney vs The State of Madhya Pradesh 1 has laid down the law in regard to the effect of a defect in a charge
In that case the charge was under section 302 read with section 34 and the conviction was under section 302 Indian Penal Code
It was there pointed out that procedural laws are designed to subserve the ends of justice and not to frustrate them and if the trial is conducted substantially in the manner prescribed by the Code but some irregularity occurs in the course of such conduct the irregularity is curable under section 537 Criminal Procedure Code
See Pulukuri Kotayya vs King Emperor 2
As was pointed by Viscount Sumner in Atta Mohammad vs King Emperor 3  In the complete absence of any substantial injustice in the complete absence of anything that outrages what is due to natural justice in criminal cases their Lordships find it impossible to advise His Majesty to interfere
The object of a charge is to warn the accused person of the case he is to answer
It cannot be treated as if it was a part of a ceremonial
Bose J observed in William Slaney s case 1 with reference to sections 232 1 and 535 of the Criminal Procedure Code where the words used are  by the absence of a charge  in section 2321 and no charge was framed  in section 535  We see no reason for straining at the meaning of these plain and emphatic provisions unless ritual and form are to be regarded as of the essence in criminal trials
We are unable to find any magic or charm in the ritual of a charge
It is the substance of these provisions that count and not their outward form
To hold otherwise is only to provide avenues of escape for the guilty and afford no protection to the innocent 1   1165
2 1946 LR 74 IA 65 75
3 1929 LR 57 IA 71 76
504 The imperfection in the charge is curable provided no prejudice has been shown to have resulted because of it
The appellants had notice that they were being tried as  sharers in the offence   and their liability was collective and vicarious and not individual
No doubt they were charged under section 149 of the Indian Penal Code with being members of an unlawful assembly the common object of which was murder of the deceased but they were also charged that they with accused Nos
5  6 had committed murder by intentionally causing the death of the deceased
The prosecution led evidence to show that at least two of the appellants were waiting for the arrival of the evening Bus by which the deceased and his companions were traveling and that the appellants and others met them at the bund and there was a concerted attack by them followed by a chase and assault with choppers by all the appellants resulting in death because of 24 injuries of a serious nature given by the appellants collectively
Of these injury No 5 individually and others cumulatively were sufficient in the ordinary course of nature to cause death
Section 34 is only a rule of evidence and does not create a substantive offence
It means that if two or more persons intentionally do a thing jointly it is just the same as if each of them had done individually
As the Privy Council have pointed out in Barendra Kumar Ghosh vs King Emperor 1  Sect
34 deals with the doing of separate acts similiar or diverse by several persons if all are done in further ance of a  common intention each person is liable for the result of them all as if he had done them himself
The appellants  defence was a total denial of taking part in the offence
When examined under section 342 of the Criminal Procedure Code they stated that the prosecution case was false
They did not state anything indicative of prejudice having resulted as a consequence of a defect in the charge
To every question put to them their reply was that the prosecution evidence was false
One such question and the answer to it was Q  The witnesses have deposed that at about 1 1924 LR 52 I A40 51
505 8 30 on the night of 25th August 1952 you along with the accused persons 1 3 4 and 5 came upon the tank bund holding a matchu in the hand in order to hit Anne Gowda
What do you say regarding this matter  AThis is absolutely false
 In answer to another question as to whether he had assaulted the deceased with a chopper appellant No 1 stated that he never saw the deceased on that date and the evidence was false and the other two appellants just stated that the evidence for the prosecution was false
The form of the questions indicates notice to the appellants that the prosecution was relying on collective responsibility and their having acted with a common intention
They did not plead prejudice due to the want of section 34 in the charge itself
The judgment of the High Court does not indicate that any such objection was taken before it
The grounds of appeal taken in the High Court are not before us but their application under article 134 1c made to the High Court shows that objection was taken as to the failure to specify section 34 in the following words  There is no charge framed in the case against accused 2 3 and 4 5 and 6 for ail offence under Section 302 read with Section 34 of the Indian Penal Code
It was therefore not a case in which accused 2 3 4 alone could be convicted of the charge under Section 302 by resorting to the rule of common intention under Section 34 of the Indian Penal Code for two reasons viz a There is no charge under Section 34 of the Indian Penal Code b If it is implied  Accused 5 and 6 are out of the grove and there is no evidence of any prior conspiracy conducive to that requisite inference
Further it will be seen from the evidence of the eye witnesses it is not possible to predicate which blow caused by which instrument by which accused resulted in death
Therefore it is a case which accused 2 3 and 4 are charged on individual responsibility alone for having caused murder punishable under Section 302 Indian 506 Penal Code individually
Neither the trial Court nor it is submitted the High Court has considered this aspect of the matter and has considered the individual responsibility of accused 2 3 and 4 for their individual acts and in their grounds of appeal filed in this Court the language is the same
Nowhere has it been alleged that as a result of omission to specify section 34 in the charge there was any prejudice and nothing is disclosed whether by the trend of cross examination or by anything on the record to show that the appellants were misled by this omission in the charge
No case of prejudice has been alleged or established and there are no facts on the consideration of which the conclusion could be reached that the conviction under section 302 is vitiated as a result of prejudice
This Court in Rawalpenta Venkulu vs The State of Hyderabad 1 held that the omission to add section 34 of the Indian Penal Code in a charge had only an academic significance where the accused had notice as to what they were being charged with
That was a case where in pursuance of a conspiracy to commit murder the accused after locking the room in which the deceased was sleeping set fire to it and thus caused his death
The charge against the accused persons was only under section 302 without section 34
On the evidence the intention to kill was held proved as each one of the appellants had actively contributed to setting fire to the room by putting lighted matches to it while the deceased had been trapped in it and  each one of them therefore severally and in pursuance of the common intention brought about the same result by his own act
 In the trial Court the Sessions Judge had explained the charge as follows  You are charged of the offence that you with the assistance of the other present accused with common intention       From this the Court came to the conclusion that the accused had clear notice that they were being charged with the offence of committing murder in pursuance of their common intention and therefore the omission 1 AIR 1956 SC 171 507 of section 34 in the charge had only academic significance and had in no way misled the accused
Thus the accent was on whether the accused were misled or not or any prejudice resulted from the omission in the charge and on the facts and circumstances of that case this Court was of the opinion that they were not and there was no prejudice
Chikkarange Gowda vs State of Mysore 1 was relied upon by the appellants  counsel
In that case the accused persons were charged as follows  That you on or about the 18th day of April 1951 at Talkad were member of an unlawful assembly and in prosecution of the common object or intention or such as you know to be likely to be committed in prosecution of that object or intention namely in killing Putte Gowda caused the death of Putte Gowda and Nanje Gowda and you are thereby under section 149 read with section 34 Penal Code guilty of causing the said murders an offence punishable under section 302 Penal Code and within the cognizance of the Court of Sessions
 The Sessions Judge found that the common object of the unlawful assembly or the intention of the accused was not merely to assault Putte Gowda but also to kill him
The High Court on appeal held that there was no evidence to prove or establish any plan for concerted action or any common object to kill that individual
But it was of the opinion that the people of the locality were annoyed with Putte Gowda and the common object of the assembly as a whole was to give severe and open chastisement only
The person who was stated to have given the fatal injury to Putte Gowda was acquitted by the High Court on the ground of insufficiency of evidence and the other two accused were held guilty for severely assaulting the deceased and guilty of murder
In this Court it was contended that on the findings given by the High Court in regard to the common object of the unlawful assembly the conviction under section 30234 or section 149 was unsustainable and that the manner in which the charges under section 149 and 34 were mixed up it could not be said that the 1 AIR 1956 SC 731 508 accused had a reasonable opportunity of meeting the charges against them
This Court observed that  on the finding of the High Court none of the members of the unlawful assembly had the intention of killing Putte Gowda
 It also held that the way in which the charge was framed gave the accused no effective notice of the case they had to meet
In these circumstances the case of separate common intention of three persons was distinct from the common object of the other members of the unlawful assembly and therefore the question was not whether the specific charge under section 34 was or was not necessary but whether a reasonable opportunity of meeting the case of some of the accused having a separate common intention different from that of others of the unlawful assembly was given and as the finding was that it had not been given the conviction of the two accused for offence under section 30234 was unsustainable
That case has not laid down a rule different from Willie William Slaney s case 1
It merely emphasises that in the case of imperfection of a charge if prejudice is shown a conviction of an accused would be insupportable
In the present case the common intention of the appellants is indicated by their conduct the ferocity of the attack the weapon used the situs of the injuries and their nature and there was preconcert as shown by the evidence of P Ws 10 and 11
They have therefore been rightly convicted of murder as sharers ill the offence We would therefore dismiss these appeals
Appeals dismissed
1  140 1 1165


Summary:
The respondent in the first of these appeals was manufacturing different varieties of printing paper includ ing wrapping paper failing under Item No 17 of the erst while Central Excise Tariff
The appellant issued a show cause notice to the Respondent for the alleged violation of Rules 91 173 F and 173 G of the Central Excise Rules 1944 in respect of wrapping paper removed outside the Facto ry without payment of Central Excise duty and for imposi tion of penalty
Showing cause the Respondent contended that the wrapping paper was captively consumed and utilised as component art of other varieties of paper and as such no duty was payable
Reliance was placed on section 2f of the and Notification No 18A83 CE dated 9th July 1983
The Superintendent Techni cal having held otherwise the respondent preferred an appeal to the Collector Appeals
The Collector rejected the claim
On appeal the Customs Excise and Gold Control Appellate Tribunal referred to its own decision which is the subject matter of the other appeals herein and set aside the order of the Collector
The facts leading to the other appeals are similar and the issue involved is the same
The Revenue has filed the appeals under section 35 L of the Central Excises  Salt Act
On behalf of the Revenue it was contended that wrapping paper cannot be deemed to be component part because it did not become an integral part of the packed paper
The assessee however contended that wrapping paper was raw material or component part of the wrapped paper and relied on section 2f of the Act which includes any process incidental or ancillary to the 1018 completion of a manufactured product
It was also urged that Revenue had itself considered the stage of wrapped or packed paper as the stage at which goods should be entered in the statutory production register
Dismissing the appeals HELD 1 Manufacture  in the sense it is used in the excise law was not complete until and unless wrapping was done
It is the law now that excise is a duty on manufac ture
Manufacture is the process or activity which brings into existence new identifiable and distinct goods
Goods have been understood to be articles known as identifiable articles known in the market as goods and marketed or mar ketable in the market as such
The finished goods were cut to size and packed paper which according to the Indian standard and trade practice consisted of the wrapping paper and the wrapped paper
Duty is levied on goods
As the Act does not define goods the legislature must be taken to have used that word in its ordinary dictionary meaning
The dictionary meaning of the expression is that to become goods  it must be something which can ordinarily come to the market to be bought and sold and is known to the market as such
The Tribunal found and there was material for the Tribunal to do so that the market in which articles in question were sold were paper packed and wrapped in paper
Therefore anything that enters into and forms part of that process must be deemed to be raw material or component part of the end product and must be deemed to have been used in completion or manufacture of the end product
1021G H 1022A D Bhor Industries Ltd Bombay vs Collector of Central Excise Bombay   South Bihar Sugar Mills Ltd etc
vs Union of India  Ors
   Union of India vs Delhi Cloth  General Mills Ltd 1963 Suppl
I SCR 586 Union Carbide India Ltd vs Union of India and Ors
  Collector of Central Excise Baroda vs Ms Ambalal Sarabhai Enterprises  relied on
Processes incidental or ancillary to wrapping are to be included in the process of manufacture manufacture in the sense of bringing the goods into existence as these are known in the market is not complete until these are wrapped in wrapping paper
Manufacture of goods should normally encompass the entire process carried on by the dealer of converting raw materials into finished goods
Where any particular process is so integrally connected with the ultimate production of goods that but for that process manufacture or processing of 1019 goods would be commercially inexpedient article required in that process would fail within the expression in the manufacture of goods 
1022E G Empire Industries Ltd  Ors
vs Union of India  Ors
   JK Cotton Spinning and Weaving Mills Co Ltd vs Sales Tax Officer 1965 16 STC 563 SC relied on
1023F 3
To be able to be marketed or to be marketable in the light of facts in the appeals it was an essential require ment to be goods to be wrapped in paper
Anything required to make the goods marketable must form part of the manufac ture and any raw material or any material used for the same would be component part for the end product
Collector of Central Excise vs Jay Engineering Works Ltd  referred to