Datasets:

aashsach

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legaleval_rr

like 0

a9cdec2689484060a8a6987029db7621

On hearing the hue and cry of Pw-1, his wife Ratnavva came to the entrance of their house and requested the Accused not to assault her husband-P.W.1, but Accused Nos.1, 2 and 9 assaulted her and killed at the entrance of her house.

6ANALYSIS

11ef2641d17b4772ac2395cf775e3cd0

P.W1 has deposed that he was hearing and also watching the scene from inside the house.

6ANALYSIS

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Thereafter, his grand father/Siddalingappa and uncles- Mallappa and Nagappa were proceeding towards Police Station to lodge a complain against the Accused and at that time Accused Nos.1 and 5 assaulted his uncle-Mallappa with axe and Accused Nos.3 and 7 with Koitha; Accused Nos.3 and 4 assaulted his grand father/Siddalingappa with koitha; whereas Accused Nos.8 and 9 assaulted Siddalingappa with an axe and Accused No.10 assaulted Siddalingappa with stone; his uncle- Nagappa was assaulted by Accused Nos.1 and 6 with an axe and Accused No.2 with long and within half an hour, the Accused killed four persons viz., his wife, uncles and grand father.

6ANALYSIS

8594d5b4aa584ae591f7a2441f7b2cab

It is in his evidence that after assaulting his wife Ratnavva, grandfather-Siddlingappa, uncles Nagappa and Mallappa, all the accused chased him and PW-5 Maruthi with an intention to kill them.

6ANALYSIS

f03f0fcac2a24e84b8e37fb300e6d285

PW.5-Maruthi escaped through Mallari Oni whereas he (PW-1) ran away from the village; 15 minutes later came to the spot and saw dead body of his wife, grandfather and uncles

6ANALYSIS

e7c36603eb764bebb2d944c30372e81e

The evidence of P.W-1/complainant is corroborated by eye witnesses viz., P.W1's sister- P.W2/Bhagawwa N Wadeyar; P.W-1's elder brother's wife/P.W-4-Balawwa; his sister-in-law/P.W3-Kasturi N Wadeyar and his uncles P.W5/Maruti S Wadeyar and P.W- 32/Basappa S Wadeyar.

6ANALYSIS

6bb4cb515edc40d69b32fc416c28e2ee

18. Now, we refer to the evidence of the Investigating Officer-Smt.Sonia Narang-PW.47 who was the Assistant Superintendent of Police at Bailhongal.

6ANALYSIS

777490f5ebb74f9bb9a5df6bd6592fe6

It is in her evidence that on 2.9.2005, she took up further investigation and the Circle Inspector of Police at Bailhongal produced accused Nos.1 and 4 before her with a report and she arrested them and they gave voluntary statement as per Ext.P.62 and 63, respectively and produced a Scooter bearing No.KA 24/E 1908, which was used by the accused for escaping from the scene of crime.

6ANALYSIS

d633739cf6cf43de8ecc66c817b47f07

She seized the said Scooter under a panchanama in the presence of P.Ws.16 and 17 as per Ex.P12.

6ANALYSIS

2b6b075d86834faaa6e68f9ddc1412e9

Further, she has seized axe (M.O-12), blue colour shirt (M.O- 47) and while lungi (M.O-48) at instance of Accused No.1 under a panchanama in the presence of the above-said panchas.

6ANALYSIS

392ee2f1eef44799ac2ae38cd26140f6

Likewise she has seized one long (M.O-19), shirt (M.O-50) and black and yellow checks lungi (M.O-51) at the instance of Accused NO4, under a panchayama (Ex.P-13).

6ANALYSIS

ff5294e84447473a96db20cd35f6c91c

She has further deposed that the CPI, Bailhongal, produced three accused persons viz., accused No.7/Chandranaik, accused No.3/Siddalingappa @ Mudakappa and accused No.5/Rajashekhar @ Gangappa before her on 10.9.2005 along with a report as per Ex.P-61.

6ANALYSIS

edfb40c940c148719146105876d61c7c

She has recorded voluntary statement of Accused NO.5 and accused No.7 as per Ex.P65; Ex.P66 respectively and recovered their clothes worn at the time of incident and weapons used in the commission of crime.

6ANALYSIS

1242d389177b408080a1bdcb34d95e58

She has deposed that on 16.9.2005, the ASI produced accused No.13/Nagappa Udakeri before her and she interrogated and produced him before the court for remand.

6ANALYSIS

00b1bb730d22473199d24099c8a701c1

She received post mortem report.

6ANALYSIS

ed841f4a3afc4951afd6a985a5b2c21f

She has sent 47 sealed articles to FSL, Belgaum for chemical examination and filed charge sheet on 8.3.2006.

6ANALYSIS

590b8e7a17a9494889b81350a195da95

The FSL report has been marked as Ex.P57.

6ANALYSIS

60eea585991d486a80dcb22bec423d94

IN the cross-examination of P.W-47, she has deposed that since the complainant himself gave further statement stating that the other accused mentioned in the FIR did not commit any offence, they were given up.

6ANALYSIS

dc84edf38a15457d8108361bcfe243e7

Nothing worthwhile is elicited in her cross-examination with regard to the evidence given before the trial Court.

6ANALYSIS

4a30e5204aa445ec90ade4fbd9ee39a7

Ex.P-47/FSL report reveals that 47 articles were subjected to chemical analysis and all the articles except two articles viz., sample mud and lungi were stained with blood.

6ANALYSIS

a41ff3675f974fb585d26b239da5fad6

Serology report has not been produced.

6ANALYSIS

cb4face727cc4fec9e7434205b4a1866

Ex.P.51-rough sketch of scene of crime, shows the place of crime and the place where the dead bodies were lying.

6ANALYSIS

35478a0284c8483e93d14150f1587d3e

All the star witnesses were cross-examined by the defence at length by learned counsel for the accused, but nothing worth while was elicited to disbelieve their oral evidence as to the role of the accused in the commission of crime.

6ANALYSIS

71a2db9a8d914bb786d50bfe5e1beb41

There is no major omissions and contradictions elicited in the cross-examination of the prosecution witnesses.

6ANALYSIS

4d572e05f0dc41ab8a88fa5cd87a294a

19. It is the case of prosecution that the Accused persons are powerful members of the community in the village and the independent witnesses have not supported the case of prosecution fearing the accused.

6ANALYSIS

d8cfa78d36f64b5ea5e978322af60b46

It is alleged that Accused No.10 threw chappal at the complainant and instigated the Accused persons to kill the complainant and his family members and also assaulted on the fore head of the deceased Siddalingappa with a stone.

6ANALYSIS

cad2461342824989a36eee9ea1bc1466

It is a fact that wife of P.W.1 was killed by the said accused in front of her house and when Siddalingappa along with his two sons-Mallappa and Nagappa were proceeding through Asundi Oni to Police Station, to lodge a complaint, the Accused persons chased them and killed and the dead bodies were lying in the same lane one after another.

6ANALYSIS

99b2582f672942b592c94027d4f3a35d

The dead bodies lying on the street can be seen in the photographs at Exs.P26 to 29, taken at the scene of crime.

6ANALYSIS

ceee379108ba44bd8dfbeefb1319c57a

Though there is no mention in the complaint about the overt acts by Accused No.8, the evidence of the eye witnesses is sufficient to hold that all nine accused ( namely Nos.1 to 9), in pursuance of the common object and at the instigation of Accused No.10/Mallawwa, they have killed Ratnavva, Siddalingappa, Nagappa and Mallappa, within half an hour.

6ANALYSIS

36e19ae552534ab194616000d9ca2211

No doubt the name of Accused No.9/Shankreppa does not find a place in the FIR, but during the course of recording statement of the witnesses, he was arrested and according to the evidence of eye witnesses, Accused No.9 assaulted Ratnavva and Nagappa with an axe.

6ANALYSIS

91a8f900d44142cb8b5e166f6d5d42aa

The contention of the learned counsel for the accused that Accused No.9 was falsely implicated in the case falls to the ground.

6ANALYSIS

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The prosecution has proved that all the above said four persons died an homicidal death.

6ANALYSIS

2338f7febec24356b838825dbf2f21a4

Evidence on record is sufficient to hold that Accused Nos.1 to 10, with a common object, Rantnavva, Siddalingappa, Mallappa and Nagappa were killed and also attempted to kill PW.1-Suresh and PW.5-Maruthi and hence the order of conviction recorded by the trial court for the offence punishable under section 302 (on four counts) and 307 (on two counts) read with section 149 of IPC, does not call for our interference.

6ANALYSIS

a947bd4a547e4dbfbe94978c00a95c23

The evidence of the prosecution that accused No.11 to 15 abetted the crime is not sufficient to base conviction in the absence of cogent and satisfactory evidence and they are entitled for an order of an acquittal for all the offences alleged against them. 20.

6ANALYSIS

3c5c9925446549a08c8bfa590b0c6a5f

The trial Court has classified the case of murder as 'rarest of rare cases' and awarded death sentence to Accused Nos.1 to 9.

6ANALYSIS

e41491baeab44edab0b226d35f4617d9

Brutality is involved in every murder case.

6ANALYSIS

55d36f8a3e904455aac64688bc24966f

Number of murders cannot be a ground to award death sentence.

6ANALYSIS

36d3fe7b2c2d44f98a87d389bdf8e339

The facts to be considered for awarding death sentence are the magnitude and the manner and brutality.

6ANALYSIS

d1050d264ffb47528973c12c5afb415d

In the decision reported in 2003(7) SCC 141, supra, the Apex Court has held that "It is true that the incident in question has prematurely terminated the life of twenty-one people and the number of deaths cannot be the sole criterion for awarding the maximum punishment of death."

4PRE_RELIED

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In the decision reported in (2011)10 SCC 389, supra, Apex Court has held that the appellant/Accused would not be a menace to society and no reason to believe that the appellant cannot be reformed or rehabilitated or would constitute a continued threat to society and it is not the `rarest of the rare case' causing for extreme penalty of death.

4PRE_RELIED

645b3196fba64332baab59a943c07943

In the decision reported in (2011)13 SCC 706, supra, the Apex Court has held that murder committed in a very brutal and inhuman fashion alone cannot justify death sentence and in the absence of any evidence to show that the appellant was a continuing threat to society or was beyond reform and rehabilitation, death sentence cannot be sustained.

4PRE_RELIED

c08d780e89cb4dcba818ccca41ddb499

In the case of Bachan Singh Vs. State of Punjab reported in (1980)2 SCC 684, the Constitution Bench of the Apex Court has held that "for a person convicted of murder, life imprisonment is the rule and death sentence is an exception, and mitigating circumstances must be given due consideration and death sentence can be awarded only in the `rarest of rare cases' and for special reasons to be recorded."

4PRE_RELIED

675bfe2bbb534540838d405f1d63ac44

In the decision reported in 2012(4) SCC 289, supra, the Apex Court has held that by drawing balance sheet of aggravating and mitigating circumstances and examining them in the light of facts and circumstances of the case, concluded that this was not a case where extreme penalty of death be imposed upon the accused and therefore, death sentence awarded to the accused was commuted to one of life imprisonment of 21 years.

4PRE_RELIED

1c5d6b5cee1048b1bf015e12b3a10fc5

In the above-said case i.e., Brijendrasingh's case, the Apex Court has given the cases falling under the category of aggravating and mitigating circumstances.

4PRE_RELIED

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The Apex Court has laid down the principles to determine whether this case falls within the scope of rarest of rare cases for imposition of death sentence.

4PRE_RELIED

5a0ccf7e44834431a8a7dced18c40d20

The principles laid down by the Apex Court are as under: " (i) The Court has to apply the test to determine, if it was the 'rarest of rare' case for imposition of a death sentence; (i) In the opinion of the court, imposition of any other punishment i.e., life imprisonment would be completely inadequate and would not meet the ends of justice; (ii) Life imprisonment is the rule and death sentence is an exception; (iii) The option to impose sentence of imprisonment for life cannot be cautiously exercised having regard to the nature and circumstances of the crime and all relevant circumstances; and (iv) The method (planned or otherwise) and the manner (extent of brutality and inhumanity, etc.) in which the crime was committed and the circumstances leading to commission of such heinous crime."

6ANALYSIS

844c5b1e1c5449aebb319b162696f019

21. Accused Nos.1 to 6 and 8 are aged between 18 and 38 years; whereas Accused Nos.7 and 9 are aged about 51 and 53 years.

2RATIO

14e0a5bc1f854f6bba446722d5cd73b6

Keeping in view the above principles laid down by the Apex Court, we are of the considered view that death sentence awarded by the trial court is contrary to the principles laid down by the Apex Court.

2RATIO

359b3aa42d96478188f749bc18ca851a

22. Accordingly we answer the points for consideration partly in favour of the accused.

6ANALYSIS

0c7aebe78f7a4b7285febf257a673075

23. For the foregoing reasons, we pass the following order: I.

1RPC

905e355d13e949f7be6a3764b4f9d34a

Reference case in Crl. R.C. No 11 of 2009 is rejected.

1RPC

7d0da703ac0e4ae185f36992f2d81314

II. Appeal in Crl. A. No. 2516 of 2009 filed by accused No.1, 4 to 6, 8, 9 and Crl.

1RPC

7f040057c4c241a6a942827e4ed5f4dd

A No. 2535 of 2009 filed by Accused No.2, 3, and 7 are rejected.

1RPC

79f8e0ed283e4eca90c0eaaccf6c7bf1

III. Appeal in Crl. A. No.2516 of 2009 filed by Accused No.11,12 and 13 and Crl.A.No.2536 of 2009 filed by Accused No.14 and 15 are allowed and the impugned judgment of conviction and sentence recorded against them (accused No11 to 15) are set aside and they are acquitted of the offences alleged against them and they shall be set at liberty forthwith, if their presence is not required in any other case; IV.

1RPC

bd02d54f686b4189834977595864aa19

The impugned order of conviction recorded by the trial court as against the Accused Nos.1 to 10 for the offence punishable under Section 114, 143, 147, 148, 307 (on two counts), 504, 506, 302 r/w Section 149 of IPC, on four counts, is confirmed; V.

1RPC

79533112f45d4ea288990d6103199ecd

The impugned order of sentence made against Accused Nos.1 to 10 for offences punishable under Section 114,143,147,148, 307 (on two counts), 504,506 read with section 149 is also confirmed.

1RPC

f941fbdcab164a1895cd790d4a6b683d

VI. Accused Nos.1 to 10 are sentenced to undergo imprisonment for life (21 years) and pay fine of `10,000/- each, on four counts, in default in payment of fine, to undergo imprisonment for a period of one year, for the offence punishable under Section 302 read with Section 114/149 of IPC; VII.

1RPC

16f4870c8596427992d4fde3ee4089cd

All the substantive sentences shall run concurrently.

1RPC

c69e961c8e17424a9f3d8e8ad20f8d15

VIII.

1RPC

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Accused are entitled for set-off of the period of detention undergone by them under section 428 of Cr.P C. X.

1RPC

223cc432842542e6a7486a3ad7c0b786

If the fine amount is recovered, a sum of `50,000/- shall be paid to P.W.1 towards the death of his wife; whereas a sum of `50,000/- shall be paid to the spouse of deceased Siddalingappa, Nagappa and Mallappa or their legal representatives, as the case may be, respectively, as compensation.

1RPC

03291b632c1148fda32b5b5ce434cd71

XI. Accordingly the impugned judgment of conviction and sentence are modified.

1RPC

2964ac9275ee4a2387b556740bc4a9a7

Sd/- JUDGE Sd/- JUDGE Bjs

0NONE

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PETITIONER: RAGHUBAR MANDAL HARIHAR MANDAL Vs. RESPONDENT:

12PREAMBLE

76e599edaae94f598524a36d31ddc745

THE STATE OF BIHAR DATE OF JUDGMENT:

12PREAMBLE

a3d41132935b411598aa95921f8777c4

22/05/1957

12PREAMBLE

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BENCH: DAS, S.K. BENCH: DAS, S.K. BHAGWATI, NATWARLAL H. KAPUR, J.L. CITATION: 1958 SCR 37 1957 AIR 810 ACT: Sales Tax-Assessee's accounts rejected as unreliable-Assess- ment made on guess without reference to evidence or materialValidity-Bihar Sales Tax Act, 1944 (Bihar Act VI of 1944),S.I0(2)(b)-Indian Income-tax Act, 1922 (XI Of 1922), S. 23(3). HEADNOTE: The appellant filed the necessary returns, as required by the provisions of the Bihar Sales Tax Act, 1944, and produced the account books.

12PREAMBLE

3891c88e3d984f06903be54ad0bce7f6

The Sales Tax Officer considered that the account books were not dependable and, after rejecting them as well as the returns, proceeded to estimate the gross turnover by adopting a figure by pure guess, without reference to any evidence or material, and made the assessment under s. 10 (2) (b) of the Act.

12PREAMBLE

c8cb0354be4d467e8f420033cad5238a

Held, that under S. 1O (2) (b) of the Bihar Sales Tax Act, 1944, a duty is imposed on the assessing authority to make the assessment after hearing such evidence as the assessee may produce and such other evidence as the assessing authority may require on specified points, and, in case the returns of the assessee and his books of account are rejected, the assessing authority must make an estimate, but this must be based on such evidence or material as the assessing authority has before him, including the assessee's circumstances, knowledge of previous returns and all other matters which the assessing authority thinks will assist him in arriving at a fair and proper estimate. Dhakeswari Cotton Mills Ltd. v. Commissioner of Income Tax, West Bengal, (1955) 1 S.C.R. 941 and Income-tax Commissioner v. Badridas Ramrai Shop, Akola, (1937) L.R. 64 I.A. 102, relied on.

12PREAMBLE

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JUDGMENT:

12PREAMBLE

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CIVIL APPELLATE JURISDICTION: Civil Appeal No. 249 of 1954.

0NONE

cd5012da7cf64bfe80c1d258ef34b45b

Appeal by special leave from the judgment and order dated January 8, 1952, of the Patna High Court in Misc. Judicial Cases Nos. 13, 14, 15, 16, 17, 18 and 19 -of 1949.

0NONE

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Bhawani Lal and K. L. Mehta, for the appellants.

0NONE

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L.K. Jha, B. K. P. Sinha and R. C. Prasad, for the respondent.

0NONE

02efe32961d94ad9abcce029234d6715

1957.

0NONE

c36ac8e16dd340c4b1d563fd45fe2450

May 22.

0NONE

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The Judgment of the Court was delivered by S.K. DAS J.-

0NONE

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The appellant Messrs. Raghubar Mandal Harihar Mandal, hereinafter referred to as the assessee, is a firm of bullion dealers carrying on its business at Laheriasarai in the district of Darbhanga in the State of Bihar.

11FAC

4584132a60d04d74bd22fbe3a8dc6987

The assessee was assessed to sales tax for seven quarters ending December 31, 1945, March, 31, 1946, June 30, 1946, September 30, 1946, December 31, 1946, March 31, 1947 and June 30, 1947, respectively.

11FAC

b7ae922d8efa4f6eb6036d4a53545ccd

For three of the aforesaid quarters, namely those ending on December 31, 1945, March 31, 1947 and June 30, 1947, the assessee failed to file the necessary returns as required by the provisions of the Bihar Sales Tax Act, 1944 (hereinafter referred to as the Act), which was the Act in force during the material period; therefore, the assessee was assessed for those three quarters under sub-s. (4) of s. 10 of the Act.

11FAC

6ad8948698e346f888843c2427a72a2a

For the remaining four quarters, the assessee did file returns.

11FAC

72f1b56cbc21423fbdced7c4e0bfffab

The Sales Tax Officer rejected those returns as also the books of account filed by the assessee for all the seven quarters and assessed the assessee under el. (b) of sub-s. (2) of s. 10 of the Act.

11FAC

8f36ee0a8fb342ee9208da823573f4a5

The Sales Tax Officer passed separate orders assessing the tax for all the seven quarters simultaneously on October 9, 1947.

11FAC

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He assessed the tax on a taxable turnover of Rs. 2,94,000 for each of the five quarters ending December 31, 1945, March 31, 1946, September 30, 1946, December 31, 1946 and March 31, 1947; for the other two quarters ending on June 30, 1946, and June 30, 1947, he assessed the tax on a taxable turnover of Rs. 3,92,000.

11FAC

d86043c0507e4baab1889f514a6cb5f6

The assessee then moved in appeal the Commissioner of Commercial Taxes, Tirhut Division, but the Commissioner dismissed the appeals by his order dated February 23, 1948.

11FAC

b271fa83c9fa4e94aa0c848c04da273d

The Board of Revenue was then moved in revision but, by its order dated July 31, 1948, the Board refused to interfere.

11FAC

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The Board expressedthe view that the finding of the Sales Tax Officer and the Commissioner that the books of account maintained by the assessee were not dependable was a finding of fact which could not be interfered with in revision ; -therefore the assessing officer was bound to assess to' the best of his judgment.

11FAC

0d85e0d3f255490f84e0e948239cad7e

The Board was then moved under s. 21 of the Act to refer certain questions of law to the High Court of Patna which, the assessee contended, arose out of its order.

11FAC

d862845f193b41d8857c66e730e2af4a

By its order dated December 10, 1948, the Board rejected the applications for making a reference to the High Court on the same ground, namely, that no question of law was involved and the assessment orders were concluded by a concurrent finding of fact.

11FAC

33efa87133e94a3d9cd2cb2241f9d02d

The assessee then moved the High Court and by its order dated April 27, 1949, passed in Miscellaneous Judicial Cases Nos. 13 to 19 of of 1949, the High Court directed the Board of Revenue to state a case on the following question: " Whether the Sales Tax.Officer is entitled under section 10(2)(b) of the Act to make an assessment on any figures of gross turnover without giving any basis to justify the adoption of that figure ?"

10RLC

1b1547f75a3d4127aed0d04094f997f8

The Board of Revenue then stated a case, and the High Court disposed of the reference by answering the question in the affirmative by its judgment and order dated January 8, 1952.

10RLC

5fbb7ef1005b447b8f90867d9529fb7e

The assessee then moved this Court and obtained special leave to appeal from the said judgment and order of the High Court.

11FAC

7b1b951ec25d4db58585369c252c97f7

The main contention of the assessee is that the High Court has not correctly answered the question of law referred to it.

6ANALYSIS

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Before we proceed to consider this contention of the assessee, it is necessary to clear the ground by delimiting the precise scope of the question referred to the High Court.

6ANALYSIS

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It is well settled that the jurisdiction of the High Court in the' matter of incometax references is an advisory jurisdiction and under the Income-tax Act the decision of the Tribunal on facts is final, unless it can be successfully assailed on the ground that there was no evidence for the conclusion on facts recorded by the Tribunal or the conclusion was such as no reasonable body of persons could have arrived at.

6ANALYSIS

6a969a8080a14859838e6ec712b5726a

It is also well settled that the dutyof the High Court is to start with the statement of the case as the final statement of the facts and to answer the question of law with reference to that statement.

6ANALYSIS

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The provisions of the Indian Income-tax Act are in pari materia with the provisions of the Act under our consideration, the main scheme of the relevant provisions of the two Acts being similar in nature, though the wording of the provisions is not exactly the same.

6ANALYSIS

d0b0f0f5f54249c6a4509090d580b90a

Under s. 21 of the Act, the High Court exercises a similar advisory jurisdiction, and under sub-s. (3) of that section, the High Court may require the Board of Revenue to state a case and refer it to the High Court, when the High Court is satisfied that the refusal of the Board to make a reference to the High Court under sub-s. (2) is not justified.

5STA

8ba4d874671249c98f4ad2d50ac01b18

Under sub-s. (5) of s. 21 the High Court hears the reference and decides the question of law referred to it, giving in a judgment the grounds of its decision.

5STA

ab093b35b9554178a1870047134f02f5

In the case under our consideration, the question which was referred to the High Court related to the assessments made under s. 10(2)(b) of the Act; in other words, the question related to those four quarters only for which the assessments were made under s. 10(2)(b).

6ANALYSIS