UNITED STATES of America, Plaintiff-Appellee, v. Timothy J. STUBBS, Defendant-Appellant.
After a jury convicted Timothy John Stubbs of two counts of tax evasion in violation of 26 U.S.C. § 7201 and six counts of failure to file personal and corporate income tax returns in violation of 26 U.S.C. § 7203, the district court sentenced him to 88 months’ imprisonment. Through counsel, Stubbs now appeals from both his convictions and his sentences. Exercising jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), we affirm.
Stubbs was the owner and sole shareholder of National Rebate Fund, Inc., also known as National Energy Rebate Fund, Inc. (NRF). NRF sold businesses such as home-improvement companies the opportunity to offer rebates to their customers. Say, for example, a window company proposed to sell a homeowner new windows for $10,000. That company could sweeten the deal by offering the homeowner the chance to file for a rebate of, say, 50% of the purchase. The company would pay NRF a fee plus 15% of the rebate amount (in this example, the potential rebate would be $5,000, and so the company would pay NRF the fee plus $750) and give its customer, the homeowner, the rebate forms. It would be the homeowner’s responsibility to file for the rebate.
NRF’s profit allegedly came from the “slippage” between the total number of customers eligible for rebates and the much smaller number who successfully completed the requirements. The rebate opportunity carried extremely stringent rules: customers had to register the rebate within 17 days of receiving the form; they had to send forms by registered mail only; they had to claim the rebate within the 30 days after the 47th month from the purchase; and the rebate offer would be invalid if anyone other than NRF, such as the company from which they got the rebate forms, reminded them about the deadlines. NRF set aside only a small portion of the revenues it received to pay rebates. And although the rebate program ostensibly was administered by an independent third party, that administration company actually was connected to Stubbs. Apparently, some customers received rebates, but numerous customers who failed to strictly satisfy each and every condition were denied rebates. NRF and its activities were the subject of civil lawsuits brought by Wisconsin and Colorado on behalf of their citizens, which resulted in multi-million-dollar default judgments against Stubbs.
Stubbs elected for NRF to be an S corporation. As an S corporation, NRF still had to file a tax return, but it did not itself pay tax. Instead, its shareholders (e.g., Stubbs) were responsible for paying tax on NRF’s income. For tax years 2005, 2006, and 2007, NRF earned a total of approximately $7 million in gross revenue, with a net income of nearly $1.8 million. Stubbs’ total individual income was approximately $2.1 million, upon which a total of $639,114 in taxes were due. But neither NRF nor Stubbs filed tax returns for those years. Nor did Stubbs pay any income tax for those years. In fact, Stubbs had neither filed income tax returns nor paid income tax since 1993.
Stubbs represented himself at trial. He did not contest that he failed to file tax returns and pay income tax for 2005, 2006, and 2007. Instead, he raised a good-faith defense. He testified that in 1993, it was brought to his attention that the Fourteenth Amendment was not properly ratified, that he was not actually a United States citizen, that the IRS is not an agency of the United States government, and that the Federal Reserve is not part of the United States government but is a privately held bank. He researched on the Internet and began reading books such as Irwin Schiff’s How Anyone Can Stop Paying Income Taxes. “And the culmination of that has been that to this very moment, until the day I die, I understand that I am not a person [as defined by the Internal Revenue Code], but that I am a man, and I am not subject to this jurisdiction that they are claiming over me[.]” R., Vol. 8 at 300. He described his avenues of research and his communications with the IRS, and concluded, “it’s just my heartfelt belief that I have not done anything wrong; that I am not a person required to file․ And that is just where I am coming from, and that has been my belief.” Id. at 306.
On cross-examination, the prosecutor brought up tax returns for 2002 and 2003 that Stubbs had prepared and submitted to Bank of America in support of an application for a mortgage loan—tax returns that Stubbs had never filed, but that reflected income and inaccurately stated that Stubbs had paid taxes on that income. She asked Stubbs why he submitted those returns to the bank if he did not believe he had a duty to file. Stubbs asserted his Fifth Amendment privilege against compelled self-incrimination. The district court initially upheld the privilege. After a sidebar conference and a short recess, however, the district court held that by testifying on direct examination about his good-faith beliefs, Stubbs had waived his Fifth Amendment privilege as to any questions that related to impeaching those beliefs. Stubbs then answered the prosecution’s questions, reiterating that he believed he was not required to pay income tax. He further conceded that he did not avail himself of many readily available resources that would have undermined or contradicted his beliefs. For example, he did not consult the IRS website, did not learn that Schiff had been convicted of income tax evasion three times, did not search for information that would discredit his interpretations, and did not speak to any licensed attorney or accountant about his beliefs.
The jury found Stubbs guilty of tax evasion for tax years 2006 (Count 1) and 2007 (Count 2). It further found Stubbs guilty of failing to file corporate tax returns for tax years 2005, 2006, and 2007 (Counts 3, 4, and 5) and failing to file personal income tax returns for those same tax years (Counts 6, 7, and 8).
The district court allowed Stubbs to remain free on conditions pending sentencing. Two weeks before his scheduled sentencing hearing, he fled to Costa Rica, where he had resided before being indicted in this case. Some sixteen months later, he was deported from Costa Rica, arrested, and returned for sentencing.
Stubbs’ base offense level was 20. The district court increased the offense level by 6 levels: 2 levels under United States Sentencing Guideline (USSG) § 2T1.1(b)(1) for failing to report income exceeding $10,000 derived from criminal activity; 2 levels under USSG § 2T1.1(b)(2) for using sophisticated means; and another 2 levels under USSG § 3C1.1 for obstruction of justice for fleeing. The resulting offense level of 26, combined with Stubbs’ criminal history level of I, yielded an advisory Guidelines range of 63 to 78 months. The district court upwardly varied and sentenced Stubbs to a total of 88 months’ imprisonment: 60 months’ imprisonment on Count 1; 16 months’ imprisonment on Count 2, to be served consecutively to the sentence in Count 1; and 12 months’ imprisonment on each of Counts 3 through 8, to be served concurrently to each other and consecutively to the other terms of imprisonment.
On appeal, Stubbs asserts (1) the evidence was insufficient to support his tax-evasion convictions; and (2) it was plain error to admit certain evidence under Fed. R. Evid. 404(b).1 Regarding his sentences, he asserts that the district court should not have applied Guideline increases for failing to report income exceeding $10,000 from criminal activity and for using sophisticated means.
I. The evidence is sufficient to support the tax-evasion convictions.
Stubbs first argues that the district court erred in denying his Fed. R. Crim. P. 29 motion for acquittal on the two tax-evasion counts. “To prove evasion under § 7201, the government must show (1) a substantial tax liability, (2) willfulness, and (3) an affirmative act constituting evasion or attempted evasion.” United States v. Hoskins, 654 F.3d 1086, 1090 (10th Cir. 2011) (internal quotation marks omitted). Stubbs’ opening and reply briefs argue that the evidence failed to establish the third element, an affirmative act. His reply brief further argues that the evidence failed to establish the second element, willfulness.2 Because he does not challenge the existence of a substantial tax liability, we need not address that element. United States v. Boisseau, 841 F.3d 1122, 1125 (10th Cir. 2016).
Generally, we review sufficiency of the evidence de novo. Hoskins, 654 F.3d at 1090. The government argues that Stubbs moved for acquittal based only on willfulness, not on affirmative acts, and therefore his affirmative-acts argument should be reviewed only for plain error. See United States v. Goode, 483 F.3d 676, 681 (10th Cir. 2007). We need not parse the standard of review that finely here, however, given that the government prevails under either standard.
“Evidence is sufficient to support a conviction if a reasonable jury could find the defendant guilty beyond a reasonable doubt, given the direct and circumstantial evidence, along with reasonable inferences therefrom, taken in a light most favorable to the government.” United States v. Thompson, 518 F.3d 832, 849 (10th Cir. 2008) (internal quotation marks omitted). “We will not weigh conflicting evidence or second-guess the fact-finding decisions of the district court.” Hoskins, 654 F.3d at 1090 (brackets and internal quotation marks omitted).
“To prove the element of willfulness, the Government was required to show [the defendant] intentionally failed to report income and pay taxes he knew the law required him to report and pay.” United States v. Melot, 732 F.3d 1234, 1241 (10th Cir. 2013). At trial, Stubbs asserted that his conduct was not willful because he had a good-faith belief that he was not violating the law. See Cheek v. United States, 498 U.S. 192, 202, 111 S.Ct. 604, 112 L.Ed.2d 617 (1991) (stating that carrying the government’s burden “requires negating a defendant’s claim of ignorance of the law or a claim that because of a misunderstanding of the law, he had a good-faith belief that he was not violating any of the provisions of the tax laws”).
“The Government can meet its burden of proving actual knowledge without presenting direct evidence of [the defendant’s] state of mind. That is, a jury can infer willfulness from a defendant’s conduct.” Melot, 732 F.3d at 1241 (citation omitted). “Willfulness may be inferred from ‘concealment of assets or covering up sources of information, handling of one’s affairs to avoid making the records usual in transactions of the kind, and any conduct, the likely effect of which would be to mislead or conceal.’ ” United States v. Kaatz, 705 F.2d 1237, 1246 (10th Cir. 1983) (quoting Spies v. United States, 317 U.S. 492, 499, 63 S.Ct. 364, 87 L.Ed. 418 (1943) ); see also Cheek, 498 U.S. at 202, 111 S.Ct. 604 (holding that “the jury would be free to consider any admissible evidence from any source showing that [the defendant] was aware of his duty to file a return and to treat wages as income”).
Viewing the evidence in the light most favorable to the government, testimony at trial established, at a minimum, that Stubbs covered up sources of information and handled his and NRF’s affairs to avoid making the usual records. Stubbs received checks from NRF designated as independent-contractor payments, but NRF did not issue Stubbs 1099 or W-2 forms even though it did issue such forms to other employees. Likewise, NRF withheld taxes from salaries and turned over those withholdings to the IRS for other employees, but not for Stubbs. Also, NRF paid hundreds of thousands of dollars for Stubbs’ personal expenses, including mortgages on his personal properties and the purchase of thousands of dollars in gold and silver, without acknowledging those payments as compensation to him rather than legitimate business expenses. And a customer company, Kool View, who paid approximately $468,000 for NRF rebate opportunities, repeatedly requested NRF’s Tax Identification Number (TIN). Stubbs responded that “[y]ou do not need a TIN on our company, nor to report amounts paid to us as ‘income.’ The premiums collected by us are not our income and it is not proper to report it as such.” R., Vol. 8 at 62. The jury was entitled to view that response as evidence that Stubbs sought to avoid having Kool View report its payments to NRF to the IRS.
The evidence, again viewed in the light most favorable to the government, also showed that Stubbs was aware of his duty to file returns. He had filed returns and paid taxes through the 1992 tax year, and he helped his office bookkeeper complete her personal tax returns for tax years subject to the indictment. When asked about filing NRF’s tax returns in a deposition in a civil suit in Wisconsin in April 2008 (just before the deadline for tax year 2007), he stated that he was behind on that, not that there was no duty to file. Moreover, when seeking a mortgage loan from Bank of America, he submitted copies of income tax returns (which he never filed with the IRS) acknowledging income and stating (inaccurately) that tax was paid.
In addition, while Stubbs testified about his years of study regarding the duty to pay taxes, he acknowledged that his beliefs came primarily from Internet sources who profited from promoting tax-protestor rhetoric, and that he did not consult readily available sources of information that would discredit those beliefs.3 The jury was entitled to view that course of conduct as unreasonable. “[T]he more unreasonable the asserted beliefs or misunderstandings are, the more likely the jury will consider them to be nothing more than simple disagreement with known legal duties imposed by the tax laws and will find that the Government has carried its burden of proving knowledge.” Cheek, 498 U.S. at 203-04, 111 S.Ct. 604.
For these reasons, the evidence is sufficient to support the willfulness element.
“To be liable under § 7201, a defendant must do more than passively fail to file a tax return[.]” Hoskins, 654 F.3d at 1091. The government must also prove “an affirmative act constituting evasion or attempted evasion.” Id. at 1090 (internal quotation marks omitted).4 “Because Congress has proscribed attempts to evade taxes ‘in any manner,’ 26 U.S.C. § 7201, the type of affirmative conduct that can constitute an affirmative act of evasion is broad.” Boisseau, 841 F.3d at 1125. “Lawful conduct can constitute an affirmative act under § 7201 when done with the intent to evade taxes, even if the conduct serves other purposes as well.” Id. The government need prove only one affirmative act for each count of tax evasion. Thompson, 518 F.3d at 852.
With regard to Count 1, the jury found that Stubbs committed two affirmative acts of evasion: (1) “[i]ssuing and causing to be issued payments to third parties for personal expenses from bank accounts he controlled which were held under the names of businesses,” and (2) “[f]alsely instructing a vendor that payments to defendant’s business National Rebate Fund, Inc. were not income and did not need to be reported to the IRS, in response to a vendor’s request for his Tax Identification Number (TIN).” R., Vol. 2 at 80. With regard to Count 2, the jury also found that Stubbs committed two affirmative acts of evasion: (1) “[i]ssuing and causing to be issued payments to third parties for personal expenses from bank accounts he controlled which were held under the names of businesses,” and (2) “[p]urchasing coins and other metals, on at least three separate occasions, with a total cost of more than $370,000 to conceal and disguise his unreported income and his ownership and control of said assets.” Id. at 81.
Stubbs’ assertion that these affirmative acts were insufficient relies on his own interpretation of the evidence. “Essentially, [Stubbs] is asking this court to review the evidence in the light most favorable to him, but that is not the correct standard.” Boisseau, 841 F.3d at 1127. When viewed in the light most favorable to the government, the evidence is sufficient to support the affirmative-acts element.
II. The district court did not plainly err in admitting evidence of prior acts.
Stubbs next asserts that the district court improperly admitted evidence of certain prior acts under Fed. R. Evid. 404(b). He concedes that he did not object to this evidence at trial.5 Therefore, this argument is reviewed only for plain error. United States v. Battles, 745 F.3d 436, 452 (10th Cir. 2014). To establish plain error, Stubbs must show (1) error, (2) that is plain, (3) that affects his substantial rights, and (4) that seriously affects the fairness, integrity, or public reputation of judicial proceedings. United States v. Archuleta, 865 F.3d 1280, 1290 (10th Cir. 2017).
(1) evidence of other crimes, wrongs, or acts must be introduced for a proper purpose; (2) the evidence must be relevant; (3) the court must make a Rule 403 determination whether the probative value of the similar acts is substantially outweighed by its potential for unfair prejudice; and (4) the court, upon request, must instruct the jury that the evidence of similar acts is to be considered only for the limited purpose for which it was admitted.
United States v. Farr, 701 F.3d 1274, 1280 (10th Cir. 2012) (internal quotation marks omitted). Whether to admit Rule 404(b) evidence is a matter within the court’s discretion. See id.
Stubbs challenges the admission of (1) the unfiled tax returns he prepared and presented to Bank of America as part of his mortgage loan application and (2) testimony about his history of not filing tax returns and paying taxes in years other than those for which he was indicted. He asserts that “[n]one of this evidence had any bearing on the charges as set forth in the Indictment for tax years 2005, 2006, and 2007.” Opening Br. at 31. As discussed above, however, willfulness is an element of tax evasion, and Stubbs invoked a good-faith defense. The disputed evidence was relevant to these issues and introduced for a proper purpose. Further, the district court instructed the jury to consider such evidence only to the extent it bore upon willfulness, intent, knowledge, and absence of mistake or accident.
Stubbs further asserts that he, an unwary pro se litigant, suffered prejudice before the jury by being lured into a trap when he invoked his Fifth Amendment privilege not to answer questions about the unfiled tax returns, only to have the district court hold that the privilege was waived. But we see no plain error. The government had notified the court and defense of its intent to introduce the evidence, and the district court cautioned Stubbs before he chose to testify that offering himself as a witness may affect his ability to invoke his Fifth Amendment privilege.
For these reasons, Stubbs has failed to show any plain error with regard to the admission of Rule 404(b) evidence.
III. The district court did not err in applying the criminal-activity and sophisticated-means enhancements.
“In reviewing a district court’s calculation of a defendant’s advisory Guidelines range, this court reviews legal questions de novo and factual findings for clear error, giving due deference to the district court’s application of the guidelines to the facts.” United States v. Stegman, 873 F.3d 1215, 1235-36 (10th Cir. 2017). “A finding of fact is clearly erroneous only if it is without factual support in the record or if the appellate court, after reviewing all of the evidence, is left with a definite and firm conviction that a mistake has been made.” United States v. Maestas, 642 F.3d 1315, 1319 (10th Cir. 2011) (internal quotation marks omitted).
USSG § 2T1.1(b)(1) provides for a two-level enhancement “[i]f the defendant failed to report or to correctly identify the source of income exceeding $10,000 in any year from criminal activity.” U.S. Sentencing Guidelines Manual § 2T1.1(b)(1) (U.S. Sentencing Comm’n 2015). “Criminal activity” is defined as “any conduct constituting a criminal offense under federal, state, local, or foreign law.” Id., comment. (n. 4). Over Stubbs’ objection, the district court applied this enhancement, finding by a preponderance of the evidence that the NRF rebate scheme met the elements of criminal fraud.
On appeal, Stubbs argues that the district court erred in making that finding. He notes that the state suits were civil, not criminal, and states, “[t]he NRF rebate program was described at trial․ There is nothing fraudulent about it. It is a simple concept operating on the fact that a large number of people will not follow simple instructions four years after purchasing windows or siding in order to get the rebate (called ‘slippage’).” Opening Br. at 39.
Stubbs fails to show that the district court clearly erred in finding that the record established, by a preponderance of the evidence, that NRF’s rebate business met the elements of criminal fraud. That the state suits were civil rather than criminal does not preclude the district court’s finding. See 18 U.S.C. § 3661 (“No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence.”). The district court could consider the underlying facts even if the state suits had been criminal and Stubbs had been acquitted; what matters is that the facts meet the preponderance standard. United States v. Watts, 519 U.S. 148, 157, 117 S.Ct. 633, 136 L.Ed.2d 554 (1997) (“[A] jury’s verdict of acquittal does not prevent the sentencing court from considering conduct underlying the acquitted charge, so long as that conduct has been proved by a preponderance of the evidence.”). And Stubbs ignores salient facts underlying the district court’s finding, such as that the rebate instructions were onerous rather than simple, that NRF escrowed only a small fraction of the monies that would have been needed to pay claims, and that the allegedly independent third-party company who handled claims actually was connected to Stubbs.
USSG § 2T1.1(b)(2) provides for a two-level enhancement “[i]f the offense involved sophisticated means.” U.S. Sentencing Guidelines Manual § 2T1.1(b)(2) (U.S. Sentencing Comm’n 2015). “ ‘[S]ophisticated means’ means especially complex or especially intricate offense conduct pertaining to the execution or concealment of an offense,” including “[c]onduct such as hiding assets or transactions, or both, through the use of fictitious entities, corporate shells, or offshore financial accounts.” Id., comment. (n. 5). Over Stubbs’ objection, the district court applied this enhancement because of Stubbs’ use of NRF to conceal his compensation and income, his attempt to prevent Kool View from sending information to the IRS, and his attempts to present the third-party fund administrator as independent.
On appeal, Stubbs depicts his operations as “unsophisticated.” Opening Br. at 36. “Nothing was concealed or hidden, all of his financial activities were documented by bank records, wire transfers, or his own business records in QuickBooks.” Id. He further attempts to distinguish his circumstances from other cases in which this court upheld the application of § 2T1.1(b)(2).
Stubbs has failed to show that the district court’s finding was clearly erroneous. Section 2T1.1(b)(2) “does not require a brilliant scheme, just one that displays a greater level of planning or concealment than the usual tax evasion case.” United States v. O’Doherty, 643 F.3d 209, 220 (7th Cir. 2011) (internal quotation marks omitted). “Indeed, the essence of the definition is merely deliberate steps taken to make the offense difficult to detect.” Id. (ellipses and internal quotation marks omitted). “[T]he list contained in the application note is not exhaustive․ [T]he enhancement properly applies to conduct less sophisticated than the list articulated in the application note.” United States v. Jennings, 711 F.3d 1144, 1147 (9th Cir. 2013). “[T]he fact that the concealment might not have been total does not mean that there was no effort at concealment or that the method employed was not sophisticated.” Id.
In O’Doherty, the Seventh Circuit held that it was proper to apply § 2T1.1(b)(2) where the defendant “used corporations to avoid the direct reporting of income in his name” and “used the funds in those corporations as personal funds.” 643 F.3d at 220. This conduct is similar to Stubbs’ actions in using NRF’s funds to pay personal expenses and to conceal his income. And in Jennings, the Ninth Circuit upheld the enhancement where the defendants only partially obscured their activities, using one defendant’s real name and Social Security number to open a bank account to siphon money from their employer. 711 F.3d at 1147. The court noted that opening the account under the defendant’s real name and Social Security number “might have made it somewhat less likely that the diversion of funds would go undetected,” but went on to point out that an outside party would have to know other facts to figure out the scheme. Id. Similarly, Stubbs’ activities might be imperfectly concealed and even obvious from his own records, but an outside party without access to those records would have to know other facts to figure out the scheme.
For these reasons, the district court did not err in applying USSG §§ 2T1.1(b)(1) and (2).
Stubbs’ convictions and sentences are affirmed.
1. Stubbs’ opening brief also argues that the district court erred in failing to give a lesser-included-offense misdemeanor instruction with regard to his failure-to-file convictions. But as the government responds, § 7203 is a misdemeanor offense, except in circumstances not applicable here. Stubbs’ reply brief appropriately concedes there was no error.
2. The opening brief only briefly mentions willfulness and fails to make any reasoned argument regarding that element. Nevertheless, even though we generally do not consider arguments raised for the first time in a reply brief, we have decided to do so here. The government briefed willfulness as well as affirmative acts. In addition, willfulness is “closely connected to the affirmative act element,” United States v. Boisseau, 841 F.3d 1122, 1127 (10th Cir. 2016) (internal quotation marks omitted), which Stubbs’ opening brief squarely challenged, and it is relevant also to his Fed. R. Evid. 404(b) argument.
3. One such source was this court’s precedent: long before the tax years at issue in this case, and even before Stubbs stopped filing returns and paying income tax in 1993, this court had rejected as legally frivolous numerous arguments that are the same as or similar to the beliefs about which Stubbs testified. See United States v. Collins, 920 F.2d 619, 629 (10th Cir. 1990); Lonsdale v. United States, 919 F.2d 1440, 1448 (10th Cir. 1990).
4. Hoskins states that “the statute also requires a positive act of commission designed to mislead or conceal.” 654 F.3d at 1091 (internal quotation marks omitted). Since Hoskins, the Supreme Court has stated “the elements of tax evasion pursuant to § 7201 do not necessarily involve fraud or deceit.” Kawashima v. Holder, 565 U.S. 478, 488, 132 S.Ct. 1166, 182 L.Ed.2d 1 (2012). We have not yet decided how Kawashima affects our precedent. See Boisseau, 841 F.3d at 1128. The parties do not argue this aspect of the affirmative-act element, however, and we need not discuss it further. When viewed in the light most favorable to the government, the affirmative acts found by the jury evidence a design by Stubbs to mislead or conceal.
5. Stubbs’ opening brief argues that while he did not object at trial, his then-counsel filed a motion in limine before trial, which the district court never ruled on. But as the government points out, the motion addressed only evidence regarding the civil proceedings against Stubbs in Wisconsin and Colorado, not the prior-acts evidence about which Stubbs now complains. Accordingly, Stubbs never asserted any kind of objection regarding the prior-acts evidence he targets on appeal.


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PhD in Creative Arts and Communictions, Deakin University, 2015.
MFA in Creative Writing, Arizona State University, 1996.
BA in Drama and Religion, (Honors) Queensland University, 1988.
Valerie Jeremijenko holds a PhD from Deakin University’s Creative Arts and Communications Department, an MFA from Arizona State University in Creative Writing, and a BA (Hons) from Queensland University in English, Drama and Religion. She has worked in Student Affairs for close to 15 years and as a start-up member of VCUQatar established many of the student services and enrichment programs that are now fundamental to our student’s everyday life. Her current focus in student development is in fostering a student centered and culturally nimble learning environment and the development of citizen-students. Of particular interest is intercultural models of student leadership and engagement, and bi-cultural development models, and to that end, she has spearheaded a number of Intercultural Communication programs including the Qatar Institute of Intercultural Communication (QIIC), a summer institute open to all Education City members. Prior to coming to VCUQatar Valerie served in the Dance Departments of VCU, and Arizona State University and in the Interdisciplinary Arts and Performance program at Arizona State University West.
In addition to her work in Student Affairs Valerie continues to pursue her creative, academic and kinesthetic research. Her current research draws her disparate interests together by exploring embodied approaches to writing, the link between creative arts practices and affect theory, and the role of the body in cultural production. She has had numerous short stories and scholarly articles published, and is the editor of How We live our Yoga (Beacon 2002.) She is also the owner, director and founder of Yama Yoga Studios, a highly successful Doha-based center for yoga, dance and well being.
“Building community through international leadership exchange experiences.” Association of College Unions International annual conference. San Antonia, Texas. Pending for April 2015. Will present with Jeremy Schenk, Director of University Commons and Student Activities, VCU.
“Working together across cultures: The good, the bad and the ugly.” How Women Work Conference, Doha Qatar. May, 2014. Presented with Hissa Al Garni, Director of Student Leadership, VCUQatar.
“Souvenirs of the Senses: Collaborative and Cross-Artform Makings. The Creative Manoeuvres: Making, Saying, Being.Canberra: The Australasian Association of Writing Programs. (2013) Paper presented with Drs. Patrick West, Jonid Keane, & Byrad Yyelland.
“Material Writing: Towards Hybrid-Making.” The Creative Manoeuvres: Making, Saying, Being. Canberra: The Australasian Association of Writing Programs. (2013). Paper presented with Drs. Patrick West & Jondi Keane.
“Words and Things: Souvenirs of Over-Site/Over-Sight for Place-Making.” The Creative Manoeuvres: Making, Saying, Being. Canberra: The Australasian Association of Writing Programs. (2013). Paper presented with Drs. Patrick West & Jondi Keane.
“Working together across cultures: The good, the bad and the ugly.” MENSA NASFA. Association of International Educators. Middle East Dubai, UAE. May 2014. Presented with Hissa Al Garni, Director of Student Leadership, VCUQatar.
Jeremijenko, V. (ed.), (2001). How We Live our Yoga. Boston: Beacon Press.
Starred review by Publisher’s Weekly. Featured review in New York Times Magazine by Elizabeth Zimmer. Five stars on Amazon.
Jeremijenko, V. (2001). Introduction. In Jeremijenko, How We Live our Yoga (pp. 1-7). Boston: Beacon Press.
Jeremijenko, V. (1996) Excerpt from “A Sibling Romance.” Novel in progress. Sound Culture Festival Booklet.
Jeremijenko, V. (1996). Unnatural Twins. Antipodes: A North American Journal of Australian Literature, 25-27.
Jeremijenko, V. (1994). The Ritual of Return. Hayden's Ferry Review, 26-31.
Collaborative and Cross-Artform Makings. The Creative Manoeuvres: Making, Saying, Being. Canberra: The Australasian Association of Writing Programs.
West, P., Keane, J., & Jeremijenko, V. (2013). Material Writing: Towards Hybrid-Making.
The Creative Manoeuvres: Making, Saying, Being. Canberra: The Australasian Association of Writing Programs.
Site/Over-Sight for Place-Making. The Creative Manoeuvres: Making, Saying, Being. Canberra: The Australasian Association of Writing Programs.
Booklet, Sound Culture Festival, Intersection for the Arts, San Francisco, California.
Jeremijenko, Valerie. (2007). Review of “The Australian Writer’s Marketplace: 2007/08 edition. Compiled and edited by Queensland Writer’s Center.” TEXT: The Journal of the Australian Association of Writing Programs.

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IRVING SHULKIN & another vs. MORRIS SHULKIN.
In an accounting as to a partnership of three partners who had agreed to share profits and losses equally but had made no agreement as to withdrawals or for the payment of interest, where it appeared that two of the partners, without the knowledge of the third, each had withdrawn twice as much as the third, it was proper in the final decree to charge each partner with the amount of his drawings and to charge each of the first two with interest on the amount his drawing was in excess of the third partner's drawing, such interest to be shared equally by all the partners.
The mere fact that entries of withdrawals in books of a partnership were incorrectly stated to be "cash purchases" and "purchases," even if it be assumed that they were so made fraudulently or illegally, did not preclude treating them, in a partnership accounting in equity, in their true character where to do so did not require reliance upon the fraud or illegality.
On facts found by a master in a suit for an accounting as to a partnership of three partners respecting salaries paid to two active partners by agreement between them, provisions of a final decree approving such payments during active service and disapproving payments during periods of vacation and disability were proper.
Charges against a partner in a partnership accounting for profits made by him in secretly conducted transactions which were within the scope of the partnership business were proper.
No error appeared in a final decree in a suit in equity for a partnership accounting which required that receivership expenses be paid from the partnership fund, and refused to allow the plaintiff the expense of an accountant employed by him or to allow either party counsel fees and expenses.
By reason of the provisions of Section 31 of G. L. (Ter. Ed.) c. 108A, the provisions of Section 38 as to damages for breach of a partnership agreement did not apply in a suit for an accounting of a partnership whose term was at will.
In a suit for a partnership accounting, an innocent partner was entitled to the same share of secret profits and fraudulent withdrawals by his partner as he would have received if there had been no wrongdoing; the other partner, after being charged with the amount of the secret profit and such fraudulent withdrawals was entitled to a share thereof.
No error appeared in the circumstances in a direction in a final decree in a suit in equity for a partnership accounting that interest be computed to the date of the decree where some partners were charged as to improper withdrawals and secret profits.
BILL IN EQUITY for a partnership accounting, filed in the Superior Court on October 29, 1936.
After a hearing upon the report of a master by Pinanski, J., and rulings made by him, a final decree was entered adjudging the partnership fund to be $37,797.78; awarding no costs, and directing payment to Irving Shulkin of $19,519.76; to Benjamin Shulkin of $10,954.15; and to Morris Shulkin of $7,323.87. All parties appealed.
F. I. Rose, (A. H. Grossman & H. C. Kagan with him,) for the plaintiff Irving Shulkin.
R. L. Weiner, for the plaintiff Benjamin Shulkin, submitted a brief.
S. B. Stein, (H. J. Stein & L. Shulman with him,) for the defendant.
Allen Stationery Co. In 1923, the plaintiff Benjamin Shulkin, who had been an employee since 1919, was admitted as a third partner. The partnership agreement was oral, and the profits and losses were to be shared equally. Benjamin and Morris Shulkin were to have the active management of the business, the defendant to be the "outside man" and Benjamin Shulkin to have charge of the store. Benjamin and Morris Shulkin (hereinafter referred to as the active partners) were to give their full time to the business and were to draw salaries, but Irving Shulkin was not. The master found that the records of the business were inadequate and confusing, and that, as a result, it was difficult to ascertain precisely what actually happened with reference to some of the transactions hereinafter referred to. Irving Shulkin, beyond selecting an accountant in 1931 to install a double entry system of bookkeeping, had nothing to do with the keeping of the firm accounts or books, and so far as appears made no examination of them. The accounting, "so far as it relates to money," is, by the plaintiffs' election, confined to the period from January, 1931, to October 29, 1936.
The trial judge denied motions to recommit to the master, and ordered that an interlocutory decree be entered confirming the master's report as modified in certain respects, and overruling the objections and exceptions to the report except in so far as they were dealt with or disposed of by the rulings and findings of the judge. Irving Shulkin and the defendant appealed from the interlocutory decree which was entered upon this order, and the defendant appealed from the denial of his motion to recommit. The final decree ordered that the partnership funds be distributed to the partners in the amounts therein specified, and from this final decree all the parties appealed. It is agreed that the mathematical computations, upon which the amounts set out in the final decree are based, are correct.
partners are "equally at fault." The judge charged each partner with the amount of his respective drawing and also charged the active partners with interest at six per cent on the amount of their drawings in excess of that of the other partner. The parties do not question the computation of these amounts of interest, which was to the date of final decree, which date, for computation purposes, was taken to be as of October 25, 1937. The judge ruled that the interest so charged should be shared equally by all the partners.
was to allow Irving Shulkin interest upon a sum equivalent to the difference between what he had drawn and the amounts which had been drawn by the active partners. We think this is all to which Irving Shulkin was entitled, and that, under the circumstances, the active partners cannot complain. The defendant contends that the fact that the withdrawals were recorded in the books as "Purchases" and "Cash purchases" requires the inference that there was something illegal behind these entries and that consequently the plaintiffs are not in a position to seek equitable relief. If we assume that the purpose behind these entries was fraudulent or illegal, nevertheless the facts as to the withdrawals could be established without reference to any such purpose and the defendant takes nothing by his contention. Hazelton v. Lewis, 267 Mass. 533, 540. O'Gasapian v. Danielson, 284 Mass. 27, 34.
compensation for his services depends wholly upon agreement, express or implied. G. L. (Ter. Ed.) c. 108A, Section 18 (f). Dunlap v. Watson, 124 Mass. 305, 306. Hoag v. Alderman, 184 Mass. 217, 218. Wiggins v. Brand, 202 Mass. 141, 145. The court may draw its own inferences from the subsidiary facts reported by the master. Ryder v. Donovan, 282 Mass. 551, 554. The entire facts reported warrant the conclusion that the salary rates rested upon agreement and that their amounts were not unreasonable. See Winchester v. Glazier, 152 Mass. 316, 323-324; Hoag v. Alderman, 184 Mass. 217, 218. Compare Harris v. Carter, 147 Mass. 313. There was no error in charging Benjamin Shulkin and Morris Shulkin with the salaries drawn by them respectively while on their winter vacations, but we think it was error to allow the defendant the $440 drawn by him as salary during his disability in 1935. See Kinney v. Maher, 156 Mass. 252, 254. The active partners were properly charged with the sums received by them as salaries in excess of their regular weekly salaries for the two weeks in October, 1936, and they were entitled to the credits allowed for salaries during the last two weeks of the existence of the partnership. By the terms of the final decree, interest was charged on the amounts of the salary withdrawals which were disallowed, this interest to be shared by all the partners equally. There was no reversible error. It appears that by this method the same result was arrived at as in the case of the interest charged on the amount of the partnership withdrawals.
properly charged against the defendant. See Wiggins v. Brand, 202 Mass. 141, 146; Costa v. Costa, 222 Mass. 280, 282-283; Lindsay v. Swift, 230 Mass. 407, 412. The defendant's objection to the findings upon which these charges are based cannot be sustained for reasons already stated. In addition to the above items, the defendant was charged with certain sums, including interest, which represented profits made by him in transactions secretly conducted, and which came within the scope of the partnership business. Upon these findings these charges were proper. G. L. (Ter. Ed.) c. 108A, Section 21. Leach v. Leach, 18 Pick. 68, 76. Holmes v. Darling, 213 Mass. 303, 306. The finding was warranted that the defendant could not properly engage in business which was in competition with that of the partnership. Irving Shulkin contends that the master should have found the amounts of profit on nine transactions in which the defendant engaged, and relies upon a statement by the defendant, on cross-examination, that the profit on used furniture transactions ranged from fifty to eight hundred per cent. The master construed this statement, "given in a moment of anger," to express the thought that a dealer's profit in a used furniture transaction might be anything. He reported that he was unable to find the normal percentage of profit "during the period under review in secondhand furniture dealings," and, as to each transaction in question, stated that in some instances the purchase prices were unknown and that as to all he is unable to find any profit. We think there was no reversible error.
period a substantial part of the defendant's bank account was not specifically accounted for, and the master was asked to use this unaccountable figure as a basis upon which to compute the profit made by the defendant in his dealings in competition with the business of the partnership. The master declined to do this, and we think there was no error.
The trial judge ruled correctly that the expenses of the receivership were payable out of the partnership fund. Hurter v. Larrabee, 224 Mass. 218, 222. The trial judge's order, as embodied in the final decree, was that counsel fees and expenses of the several parties, including the expenses of an accountant employed by the plaintiffs, were not chargeable against the partnership fund nor against any of the partners individually in behalf of any one partner. "Counsel fees are awarded not as separate and distinct from costs but as a part of costs." Boynton v. Tarbell, 272 Mass. 142, 145. In suits in equity, in which no provision is expressly made by law, costs are wholly in the discretion of the court, but no greater amount shall be taxed therein than is allowed for similar charges in actions at law. G. L. (Ter. Ed.) c. 261, Section 13. Fuller v. Trustees of Deerfield Academy, 252 Mass. 258, 262, 264. Malloy v. Carroll, 287 Mass. 376, 384, and cases cited. Chartrand v. Chartrand, 295 Mass. 293, 297. Hooper v. Mayo, 298 Mass. 411, 415. We think there was no reversible error. Barnes v. Springfield, 273 Mass. 283, 286.
other provisions of this section, by the express will of any partner at any time." [Note Star] We are of the opinion that the provisions of Section 38 are not applicable, and that the counsel fees and expenses are not recoverable as damages under its provisions.
The plaintiffs contend that the decree should have provided for the payment by the defendant of the reasonable expense of proving certain facts, the existence of which the latter had denied. G. L. (Ter. Ed.) c. 231, Section 69, as amended by St. 1932, c. 177. It is provided that such expense shall be determined after summary hearing by the judge presiding at the trial, but there is nothing in the record to show that any such determination was made or that there was any suggestion, until now, that it should be made. We think it is too late to raise the question here. Millett v. Temple, 280 Mass. 543, 552; S. C. 285 Mass. 87. Compare Hooper v. Mayo, 298 Mass. 411, 415; Friedman v. S. S. Kresge Co. 290 Mass. 114, 117.
It is the contention of Irving Shulkin that the active partners, to the extent that both or either acted with infidelity toward the partnership, should, as already stated, be required to return the salaries drawn by them and should not be permitted to share in any of the profits made as a result of any wrongdoing, or in the value of the good will of the partnership. There is nothing in the record to disclose that, when the assets were sold by the receiver, there was any attempt made to segregate any item to good will, but it is contended by Irving Shulkin that, by reason of certain figures as to values and profits which were before the master, it is possible to allocate a certain part of the sum received by the receiver to the item of good will. The master did not do this and the trial judge declined to follow the suggestion of Irving Shulkin. We think he was right.
a partner has wrongfully appropriated partnership property, or has made secret profits either in his dealings with the partnership funds or in transactions which properly come within the scope of the partnership business, or has acquired a share in fraud of his partners, he must account for the results to the partnership in order that his copartners may share therein. Leach v. Leach, 18 Pick. 68. Jones v. Dexter, 130 Mass. 380. Holmes v. Darling, 213 Mass. 303. Shelley v. Smith, 271 Mass. 106. G. L. (Ter. Ed.) c. 108A, Section 21. Irving Shulkin's contention, if followed, would deprive the wrong-doing partner of any participation in the fruits of his wrongful actions. The cases which he cites, however, in the main deal with the situation where a trustee, as distinguished from a partner, has made a profit by dealing with the trust property. Clearly in such a case the whole of such profit belongs to the principal of the trust. See Ball v. Hopkins, 268 Mass. 260. The same is true in the case of an agent who makes a secret profit as a result of a purchase by him on behalf of his principal. See Raymond v. Davies, 293 Mass. 117. But we do not understand that this is the rule in the case where a partner is a wrongdoer. The principle deduced from the cases which deal with such a situation seems to be that the innocent partner is to be put as nearly as possible in the same position which he would have occupied if there had been no wrongdoing, and that this result is accomplished by giving to him that portion of the property converted or of the secret profit, to which he would have been entitled had the property converted been allowed to remain with the partnership until its dissolution or distribution, or had the secret profit been earned by the partnership in the usual course of its business. See Leach v. Leach, 18 Pick. 68, 76; Harvey v. Varney, 104 Mass. 436; Emery v. Parrott, 107 Mass. 95, 100; Jones v. Dexter, 130 Mass. 380, 383; Wiggins v. Brand, 202 Mass. 141, 146; Holmes v. Darling, 213 Mass. 303, 305-306; Arnold v. Maxwell, 223 Mass. 47, 49-50; Lindsay v. Swift, 230 Mass. 407, 412; Steele v. Estabrook, 232 Mass. 432, 440-441; Shelley v. Smith, 271 Mass. 106.
other fiduciary who is unfaithful to his trust may be denied compensation. Little v. Phipps, 208 Mass. 331, 333-334. Rolikatis v. Lovett, 213 Mass. 545, 548-549. Robertson v. Hirsh, 276 Mass. 452, 453. Raymond v. Davies, 293 Mass. 117, 119. But this rule is not an absolute one and the question whether a fiduciary who has not been entirely faithful will be denied compensation to which he would otherwise be entitled ultimately rests in the discretion of the court. Jennison v. Hapgood, 10 Pick. 77, 112. Brooks v. Jackson, 125 Mass. 307, 311. White v. Ditson, 140 Mass. 351, 362. Rowland v. Maddock, 183 Mass. 360, 364. Am. Law Inst. Restatement: Trusts, Section 243. The judge, on the report, declined to charge the active partners with the salaries which they drew, except as hereinbefore stated, and we think there was no error in this. When Benjamin Shulkin was admitted to the partnership in 1923, he paid $4,000, presumably for a third interest in the partnership. During the accountable period Irving Shulkin withdrew $8,000 from the partnership and, by the terms of the accounting, is entitled to upwards of $20,000 more. If we may assume that the value of his investment in the partnership in 1923 was $4,000 (his original investment was less than $1,000), even without knowing what withdrawals were made in the years between 1923 and 1931, it seems apparent, from the record, that the services of the active partners were of real value, and resulted in handsome returns on the investment of their brother, who, except for conferences and furnishing merchandise at cost, left the management of the business entirely to them.
The decree provides that, wherever interest is allowed, it is to be computed to the arbitrary date of October 25, 1937, which, as already stated, for purposes of computation was to be taken as the date of the entry of final decree, the date of which, in fact, was January 17, 1938. The parties have variously argued that interest should run only to the time of the appointment of the receiver; and, on the other hand, that it should be computed to the date of the filing of the bill and added to the amounts found due, with interest then figured upon the total so found.
Compound interest may be allowed in equity in the discretion of the judge, depending upon the degree of misconduct involved in the case. Jennison v. Hapgood, 10 Pick. 77, 104. Boynton v. Dyer, 18 Pick. 1, 6-7. Forbes v. Ware, 172 Mass. 306, 310. Arnold v. Maxwell, 230 Mass. 441, 445. Ellis v. Sullivan, 241 Mass. 60, 64. The judge may look at the circumstances of the case to determine whether compound interest should be allowed. Harvey v. Varney, 104 Mass. 436, 445. Forbes v. Ware, 172 Mass. 306, 309-310. We see no occasion to disturb the decision of the trial judge in this matter. See Wiggins v. Brand, 202 Mass. 141, 147; Arnold v. Maxwell, 223 Mass. 47, 54; S. C. 230 Mass. 441, 445; Hawkes v. Lackey, 207 Mass. 424, 434. Compare Leshefsky v. American Employers' Ins. Co. 293 Mass. 164, 174. The defendant contends that interest, where allowed, should not run after the date of the appointment of the receiver, and makes the point that the situation is analogous to the claim of creditors against the estate in the hands of a court receiver. We do not agree with this if interest is allowable. We think it was proper for the trial judge to order that it be computed to the date when the innocent party would be in the position to receive what was due him.
The defendant's exception to the failure of the master to make certain rulings of law cannot be sustained. It would seem from the report that the requests were not presented until the defendant brought in his objections to the report, and there is nothing in the report to indicate that the master did not act upon the principles embodied in the requests for rulings, in so far as they correctly state the law and were applicable to his duty as master. First National Bank of Haverhill v. Harrison, 271 Mass. 258, 263.
drawn by him as salary during the period of his disability. Computation of interest should be made to the date of the final decree. The decree should also contain an order for a dissolution of the partnership. Wiggins v. Brand, 202 Mass. 141, 147. As so modified the decree is affirmed.
[Note Star] The master found: "The term of the partnership was at will." -- REPORTER.

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...............Over the course of the 19 th century, the tradition of vine cultivation in the Cévennes region was radically changed by the accidental introduction of disease and parasites originating from the United States . These changes were, on the one hand, qualitative; certain traditional vine varieties were abandoned in favor of more or less disease-immune American hybrid varieties, and on the other hand quantitative; the region saw the near total destruction of the “old” vineyard, built upon local French varieties, and the partial-birth of a “new” vineyard, which called for either higher-performing French varieties or Franco-American (or Americano-American) hybrid varieties.
The beginning of the century saw new ideas propagated by revolution, the creation of encyclopedias, and participation from French volunteers in the American War for Independence – all of which brought attention to east coast American vine varieties. It was Michaux, Director of the Museum of Natural History in Paris who, in 1803, edited the first edition of Flora of North America , in which he described several species of vines including V. riparia, V. cordiflora, V. aestivalis, V. rubas and V. rotundifolia . Oïdium was the first disease to arrive in the Gard region and the European continent as a whole. Heavy losses were first seen in 1853 and 1854, during which years the harvest suffered by 50% (641,000 hectoliters in 1855 versus 1,286,000 hls in 1851).
To combat the disease, winegrowers began importing resistant American varieties like Isabelle and Concord . However, in doing so they had, unbeknownst to them, introduced yet another redoubtable, but as of yet unidentified, parasite – Phylloxera – early signs of which were seen in Pujaut, near Roquemaure, in 1863. It was only on July 15, 1868 that an investigation committee overseen by Planchon, Bazille and Sahaut was able to identify the culprit, an aphid Planchon named Phylloxera Vastarix.
In just a few short years, the entire département was ravaged, and in 1862 there remained only 17,409 vines, the equivalent of 3,442 hectares of French vine land, for a production yielding 378,552 hls. Certain vineyards close to the Rhone attempted to fight the disease by submerging the vines during the winter months, having an unlimited water supply at their disposal, cultivating the vines, such as at Aigues-Mortes, along the sandy shores, thus keeping the disease at bay, or by treating the vines with carbonic sulfur. By 1878, when the entire Gard département had been declared “phyllorexic,” the use of American varieties was finally authorized.
Le milidou or brown rot made its first appearance in the département in the vineyard at Aigues-Mortes in 1880, quickly causing notable losses in the Cévennes, a humid region offering ideal conditions for the development and spread of the fungus. This latest phenomenon merely contributed to the intensified cultivation of the Hybrids.
In 1958 in the Gard, of the 89,807 hectares of cultivatable vine land 20,000 (22.8%) were dedicated to the cultivation of Hybrids, whereas in the Cévennes this percentage was much higher due to frequent springtime frosts and abundant rainfall – conditions in which disease could develop and thrive. The descendants of V. labrusca (Isabelle, Concord , Clinton , Othello (red) and Noah (white)), a variety known for its unique raspberry flavor, had become widespread. Jacquez and Herbemont, both descendants of V. aestivalis , were likewise being cultivated. These rustic varieties, requiring little to no treatment, had won the favor of small farmers and individuals who sought to produce just enough for their personal consumption. Yet, the law of December 24, 1934 had listed them among the “banned varieties” and now prohibited them even for individual use. In spite of these legal measures, the banned varieties continued to be maintained and cultivated for many years to follow. Today in the Cévennes there remain a handful of isolated arbors of Jacquez and Clinton, but on the whole the cultivation of Hybrids continues to decline; there now remain less than 1,500 hectares of the vines in the entire department , and those vines torn up long ago were seldom replaced, leading to the impressive 20,000 hectare reduction in the cultivation of these vine varieties.

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1. This appeal is preferred against the judgment dated 19.8.2011 passed by the High Court of Punjab and Haryana in Criminal Appeal No.181 SB of 2000, whereby the High Court partly allowed the appeal filed by the appellants thereby confirming the conviction of the appellants with certain modifications.
2. Briefly stated, case of the prosecution is that on the fateful day i.e. 18.11.1994, at about 8.00 A.M. in the morning the complainant Jagdish (PW-5) along with his two sons namely Sukhbir and Mange Ram (PW-6) were busy in cutting pullas (reeds) from the dola of their field. At that time, Jage Ram (A-1) and his sons Rajbir Singh @ Raju (A-2), Rakesh (A-3) and Madan (A-4) armed with jaily, pharsi and lathis respectively, entered the land where the complainant was working with his sons and asked them not to cut the pullas as it was jointly held by both the parties.
Wordy altercations ensued between the parties and Jage Ram insisted that he would take away the entire pullas. In the fight, the accused persons started inflicting injuries to the complainant, and his sons Rajbir @ Raju (A-2) gave a pharsi blow on the head of Sukhbir, Jage Ram (A-1) caused injury to Jagdish (PW-5) with two jaily blows. Additionally, Madan and Rakesh attacked the complainant with lathi blows on shoulder and left elbow respectively and caused several other injuries to the complainant party. Jagdish and his injured sons raised alarm, hearing which Rajesh and Usha came to rescue them and on seeing them, the accused persons fled away.
3. The injured witnesses were taken to the Primary Health Centre, Taoru where Dr. Pardeep Kumar, Medical Officer, medically examined the injured persons. Injured Sukhbir was vomiting in the hospital and later on he was referred to General Hospital, Gurgaon as his condition deteriorated. A CT scan disclosed that large extra-dural haematoma was found in the frontal region with mass effect and Sukhbir needed urgent surgery and he was operated upon and the large extra-dural haematoma was removed. Dr. Pardeep Kumar (PW-2) also examined the other injured persons, PW 5-Jagdish and PW 6- Mange Ram.
4. Statement of Jagdish was recorded, based on which F.I.R. was registered at Police Station Taoru, Gurgaon under Sections 323, 324, 325 and 307 read with Section 34 IPC. PW 8-Ramesh Kumar (ASI) had taken up the investigation. He examined the witnesses and after completion of investigation, challan was filed under Sections 307, 325, 324 read with Section 34 IPC. In the trial court, prosecution examined nine witnesses including Jagdish-PW5, Mange Ram-PW6 and Dr. Prem Kumar-PW2 and Dr. HiIol Kanti Pal-PW9, Neuro Surgeon, PW8-investigating officer and other witnesses.
The accused were examined under Section 313 Cr.P.C. about the incriminating evidence and circumstances. First accused Jage Ram pleaded that on the date of occurrence-complainant party Jagdish and his sons Mange Ram and Sukhbir forcibly trespassed into the land belonging to the accused and attempted to forcibly cut the pullas. Jagdish further claims that he along with Rakesh caused injuries to the complainant party in exercise of right of private defence of property. He has denied that Rajesh and Usha had seen the incident. Raju (A-2) and Madan (A-3) stated that they were not present on the spot and they have been falsely implicated. Rakesh (A-4) adopted the stand of his father Jage Ram.
5. Upon consideration of oral and documentary evidence, the learned Additional Sessions Judge vide judgment dated 17.2.2000 convicted all the accused persons under Sections 307 and 325 IPC and sentenced them to undergo rigorous imprisonment for five years and one year respectively and a fine of Rs. 500/- each with default clause. Aggrieved by the said judgment, the accused-appellants filed criminal appeal before the High Court of Punjab and Haryana. The High Court vide impugned judgment dated 19.8.2011 modified the judgment of the trial court thereby convicted Jage Ram (A-1) under Section 325 IPC and sentenced him to undergo rigorous imprisonment for one year, convicted second accused Rajbir @ Raju under Section 307 IPC and imposed sentence of imprisonment for five years as well the fine of Rs.500/- was confirmed by the High Court.
Sentence under Section 325 IPC (two counts) was modified as the sentence under Section 323 IPC and he was sentenced to undergo six months rigorous imprisonment. Both the sentences were ordered to run concurrently. High Court modified the sentence of Madan (A-3) Rakesh (A-4) under Section 323 IPC and sentenced them to undergo rigorous imprisonment for six months (two counts) respectively. In this appeal, the appellants assail the correctness of the impugned judgment.
6. Ms. Vibha Datta Makhija, learned Senior Counsel appearing for the appellants contended that the evidence of the witnesses suffers from material discrepancy and is self-contradictory. It was submitted that injured witness Sukhbir was not examined in the court and neither CT Scan nor x-ray nor operational notes of Sukhbir were produced before the court and in the absence of such material evidence, courts below erred in convicting the second accused under Section 307 IPC. Additionally, the learned counsel contended that the defence plea of private defence was not considered by the courts below in proper perspective.
7. Per contra, learned counsel appearing for the respondent-State contended that the evidence of all the witnesses satisfactorily establishes the overt act of the accused persons and Jagdish (PW-5) and Mange Ram (PW- 6) being the injured witnesses, the veracity of these witnesses cannot be doubted. It was submitted that the medical evidence sufficiently corroborated the oral evidence and the prosecution has established the intention of the 2nd accused in causing attempt to commit murder of Sukhbir and in appreciation of the evidence, courts below recorded concurrent findings convicting the second accused under Section 307 IPC and the same warrants no interference.
8. We have carefully considered the rival contentions and gone through the impugned judgment and perused the materials on record.
9. As it emerges from the evidence, complainant Jagdish (PW-5) and his two sons Sukhbir and Mange Ram were cutting pullas. The accused party went there and asked them not to cut the pullas. In the wordy altercation, second accused Rajbir @ Raju gave pharsi blows on the head of Sukhbir. PWs 5 & 6 have clearly spoken about the overt act of the accused that A-1 Jage Ram attacked and caused injury to PW-5 Jagdish with jaily blows and that second accused Rajbir @ Raju attacked on the head of Sukhbir with pharsi.
They have also stated that Madan and Rakesh caused injuries to PW5-Jagdish with lathi on shoulder and left elbow respectively. PW 2- Dr. Pardeep Kumar in his evidence stated that he has examined PWs 5 and 6 and noted the injuries on the body of PWs 5 and 6 and issued wound certificates. Evidence of PWs 5 and 6 is amply corroborated by medical evidence.
PWs 5 and 6 being injured witnesses, their evidence is entitled to great weight. Cogent and convincing grounds are required to discard the evidence of injured witnesses. In the light of the fact that PWs 5 and 6 were injured witnesses, courts below tested their evidence for its credibility and recorded concurrent findings that PWs 5 and 6 are trustworthy witnesses. We find no reason to take a different view.
10. Appellants have raised the contention that the prosecution failed to adduce evidence that A-2 Rajbir attempted to commit murder of Sukhbir. It was submitted that injured person Sukhbir was neither examined nor medical evidence like CT Scan, x-ray and operational notes and Sukhbir were produced to corroborate the oral evidence and while so courts below erred in convicting second accused Rajbir @ Raju under Section 307 IPC.
11. Dr. Pardeep Kumar-PW-2, who examined Sukhbir found during his medico-legal examination a lacerated wound in the middle of the top of the skull. Injured-Sukhkbir was found vomiting in the hospital and he was examined by a Neuro Surgeon Dr. Hilol Kanti Pal (PW-9) of Safdarjung Hospital, Delhi on 19.11.1994, i.e. the day after the incident. PW-9 has stated that Sukhbir was unconscious since 2.00 P.M. on 18.11.1994 and was deeply comatose with irregularity of pupils and a laceration was diagnosed on the right front parietal region. Further, PW-9 has stated that during the CT scan, it was revealed that a large extra-dural haemotoma was present in the frontal region with mass effect and to avoid further deterioration of his condition, he was operated upon by frontal trephine craniopmy an haemotoma measuring about 125 ml was evacuated. PW-9 stated that had not the operation been conducted on Sukhbir and had not the extra- dural haemotoma removed by operation urgently, the head injury caused to Sukhbir would have caused his death. As noted by the High Court, it is thus brought on evidence that had not surgical assistance been given to Sukhbir, he would have definitely died.
(ii) the act done by the accused.
The burden is on the prosecution that accused had attempted to commit the murder of the prosecution witness. Whether the accused person intended to commit murder of another person would depend upon the facts and circumstances of each case. To justify a conviction under Section 307 IPC, it is not essential that fatal injury capable of causing death should have been caused. Although the nature of injury actually caused may be of assistance in coming to a finding as to the intention of the accused, such intention may also be adduced from other circumstances. The intention of the accused is to be gathered from the circumstances like the nature of the weapon used, words used by the accused at the time of the incident, motive of the accused, parts of the body where the injury was caused and the nature of injury and severity of the blows given etc.
14. This position was highlighted in State of Maharashtra v. Balram Bama Patil, (1983) 2 SCC 28, Girija Shanker v. State of U.P.(2004) 3 SCC 793 and R. Prakash v. State of Karnataka (2004) 9 SCC 27. * * * 16. Whether there was intention to kill or knowledge that death will be caused is a question of fact and would depend on the facts of a given case. The circumstances that the injury inflicted by the accused was simple or minor will not by itself rule out application of Section 307 IPC. The determinative question is the intention or knowledge, as the case may be, and not the nature of the injury." See State of M.P. v. Saleem (2005) 5 SCC 554 pp. 559-60, paras 11-14 and 16.
13. "6. Undue sympathy to impose inadequate sentence would do more harm to the justice system to undermine the public confidence in the efficacy of law and society could not long endure under such serious threats. It is, therefore, the duty of every court to award proper sentence having regard to the nature of the offence and the manner in which it was executed or committed, etc. This position was illuminatingly stated by this Court in Sevaka Perumal v. State of T.N.(1991) 3 SCC 471."
14. Having regard to the weapon used for causing the head injuries to Sukhbir, nature of injures, situs of the injury and the severity of the blows, courts below recorded concurrent findings convicting the 2nd appellant under Section 307 IPC. In our considered view, the conviction of the second appellant Rajbir @ Raju under Section 307 IPC is unassailable.
15. Learned counsel for the appellants contended that the second appellant is in custody for more than three years and since the occurrence was in the year 1994, prayed for reduction of the sentence imposed on the second appellant to the period already undergone. Placing reliance upon the judgment of this Court in Hari Singh vs. Sukhbir Singh & Ors., learned counsel for the appellants additionally submitted that in terms of Section 357 (3) Cr.P.C. that the compensation may be awarded to the victim and the sentence be modified to the period already undergone.
16. For the conviction under Section 307 IPC, courts below imposed upon the 2nd appellant rigorous imprisonment of five years, while imposing punishment, courts have an obligation to award appropriate punishment. Question of awarding sentence is a matter of discretion and the same has to be exercised by the courts taking into consideration all the relevant circumstances. What sentence would meet the ends of justice would depend upon the facts and circumstances of each case and the courts must keep in mind the gravity of the offence, motive for the crime, nature of the offence and all other attendant circumstances. Vide State of M.P. vs. Bablu Natt; Alister Anthony Pareira vs. State of Maharashtra and Soman vs. State of Kerala.
17. In the light of the above, considering the case in hand, the occurrence was of the year 1994 when the complainant party was cutting pullas, the accused asked them not to cut the pullas which resulted in the wordy altercation. In the heat of passion, the accused have caused injuries to the complainant party. The second accused Rajbir @ Raju is in custody. He surrendered on 5.1.2012 and is stated to be in custody since then, for more than three years. Having regard to the facts and circumstances of the case, in our considered view, the period of sentence of five years may be reduced to three years apart from directing the second appellant Rajbir @ Raju to pay substantial compensation to injured- Sukhbir.
18. As noticed above, injured-Sukhbir sustained grievous head injuries and was deeply comatose and was in a state of shock and trauma. Learned counsel for the injured-witness submitted that for quite some time injured-Sukhbir was unconscious and thereafter suffering from mental trauma. Having regard to the nature of injuries sustained by Sukhbir and the period of treatment and other circumstances, we are of the view that, it would be appropriate to direct second appellant-accused Rajbir @ Raju to pay Rs.7,50,000/- as compensation to the injured-Sukhbir. When the matter came up for hearing on 14.10.2014, learned counsel for the appellants informed the Court that he had offered Rs.5,00,000/- by way of demand draft towards compensation to the injured-Sukhbir in the presence of the Sarpanch of the village which he has refused to receive the same. The said amount of Rs.5,00,000/- is now kept in fixed deposit in the Registry of this Court.
19. For inflicting blows on PW-5 Jagidsh with jaily A-1 Jage Ram was convicted under Section 325 IPC and sentenced to undergo rigorous imprisonment for one year. A-3 and A-4 have also given lathis blows to PW- 5 and were convicted under Section 323 IPC and sentenced to undergo rigorous imprisonment for three months by the High Court. Having regard to the fact that the occurrence was of the year 1994, considering the other facts and circumstances of the case, the sentence of imprisonment imposed on Jage Ram (A-1), Madan (A-3) and Rakesh (A-4) is reduced to the period already undergone by them.
20. The conviction of A-1 under Section 325 IPC, A-3 and A-4 under Section 323 IPC is confirmed and the sentence is reduced to the period already undergone by each of them. The conviction of second accused Rajbir @ Raju under Section 307 IPC is confirmed and the sentence of imprisonment of five years is reduced to the period already undergone and additionally the second accused shall pay a compensation of Rs.7,50,000/- to the injured witness-Sukhbir. Compensation amount of Rs.5,00,000/- deposited in this Court by the 2nd appellant shall be paid to the injured witness-Sukhbir. The second accused Rajbir @ Raju shall deposit the balance compensation amount of Rs.2,50,000/- before the trial court within three months from the date of this judgment and on such deposit, the same shall also be paid to the injured witness-Sukhbir. On failure to deposit the balance compensation, the second appellant Rajbir @ Raju shall undergo default sentence of one year.
21. The appeal is allowed to the above said extent. Second appellant Rajbir @ Raju is ordered to be released forthwith if not required in any other case. Bail bonds of accused A1, A3 and A4 shall stand discharged.
Jage Ram & Ors. Vs. State of Haryana & ANR.
Hon'ble Mrs. Justice R. Banumathi pronounced the judgment of the Bench comprising of Hon'ble Mr. Justice V. Gopala Gowda and Hon'ble Mrs. Justice R. Banumathi.
The appeal is allowed in terms of the signed reportable judgment. Second appellant Rajbir @ Raju is ordered to be released forthwith if not required in any other case. Bail bonds of accused A1, A3 and A4 shall stand discharged.

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