§ 10.01 PART OF CODE.
(A) All ordinances of a permanent and general nature of the city, as revised, codified, rearranged, renumbered, and consolidated into component codes, parts, chapters, and sections, shall be known and designated as the “city code” for which designation “code of ordinances,” “codified ordinances” or “code” may be substituted. Code part, chapter, and section headings do not constitute any part of the law as contained in the code.
(B) All references to codes, parts, chapters, and sections are to the components of the code unless otherwise specified. Any component code may be referred to and cited by its name, such as the “Traffic Code.” Sections may be referred to and cited by the designation “§” followed by the number, such as “§ 10.01.” Headings and captions used in this code other than the part, chapter, and section numbers are employed for reference purposes only and shall not be deemed a part of the text of any section.
§ 10.02 RULES OF INTERPRETATION.
(A) Generally. Unless otherwise provided herein, or by law or implication required, the same rules of construction, definition, and application shall govern the interpretation of this code as those governing the interpretation of state law.
(1) AND or OR. Either conjunction shall include the other as if written “and/or,” whenever the context requires.
(2) Acts by assistants. When a statute, code provision or ordinance requires an act to be done which, by law, an agent or deputy as well may do as the principal, that requisition shall be satisfied by the performance of the act by an authorized agent or deputy.
(3) Gender; singular and plural; tenses. Words denoting the masculine gender shall be deemed to include the feminine and neuter genders; words in the singular shall include the plural, and words in the plural shall include the singular; the use of a verb in the present tense shall include the future, if applicable.
(4) General term. A general term following specific enumeration of terms is not to be limited to the class enumerated unless expressly so limited.
§ 10.03 APPLICATION TO FUTURE ORDINANCES.
All provisions of Part I compatible with future legislation shall apply to ordinances hereafter adopted which amend or supplement this code unless otherwise specifically provided.
Headings and captions used in this code other than the part, chapter, and section numbers are employed for reference purposes only and shall not be deemed a part of the text of any section.
(A) General rule. Words and phrases shall be taken in their plain, or ordinary and usual sense. However, technical words and phrases having a peculiar and appropriate meaning in law shall be understood according to their technical import.
(B) Definitions. For the purpose of this code, the following definitions shall apply unless the context clearly indicates or requires a different meaning.
CITY. The area within the corporate boundaries of the city as presently established or as amended by ordinance, annexation or other legal actions at a future time. The term CITY when used in this code may also be used to refer to the City Council and its authorized representatives.
CODE, THIS CODE or THIS CODE OF ORDINANCES. This city code as modified by amendment, revision, and adoption of new parts, chapters, or sections.
COUNTY. The county or counties in which the city is located.
MAY. The act referred to is permissive.
OATH. An affirmation in all cases in which, by law, an affirmation may be substituted for an oath, and in those cases the words SWEAR and SWORN shall be equivalent to the words AFFIRM and AFFIRMED. All terms shall mean a pledge taken by the person and administered by an individual authorized by state law.
OFFICER, OFFICE, EMPLOYEE, COMMISSION, or DEPARTMENT. An officer, office, employee, commission, or department of this city unless the context clearly requires otherwise.
PERSON. Extends to and includes an individual, person, persons, firm, corporation, copartnership, trustee, lessee, or receiver. Whenever used in any clause prescribing and imposing a penalty, the terms PERSON or WHOEVER as applied to any unincorporated entity shall mean the partners or members thereof, and as applied to corporations, the officers or agents thereof.
PRECEDING or FOLLOWING. Next before or next after, respectively.
SHALL. The act referred to is mandatory.
SIGNATURE or SUBSCRIPTION. Includes a mark when the person cannot write.
STATE. The State of Minnesota.
SUBCHAPTER. A division of a chapter, designated in this code by a heading in the chapter analysis and a capitalized heading in the body of the chapter, setting apart a group of sections related by the subject matter of the heading. Not all chapters have subchapters.
WRITTEN. Any representation of words, letters, or figures, whether by printing or otherwise.
YEAR. A calendar year, unless otherwise expressed.
If any provision of this code as now or later amended or its application to any person or circumstance is held invalid, the invalidity does not affect other provisions that can be given effect without the invalid provision or application.
§ 10.07 REFERENCE TO OTHER SECTIONS.
Whenever in one section reference is made to another section hereof, that reference shall extend and apply to the section referred to as subsequently amended, revised, recodified, or renumbered unless the subject matter is changed or materially altered by the amendment or revision.
§ 10.08 REFERENCE TO OFFICES.
Reference to a public office or officer shall be deemed to apply to any office, officer, or employee of this city exercising the powers, duties, or functions contemplated in the provision, irrespective of any transfer of functions or change in the official part of the functionary.
§ 10.09 ERRORS AND OMISSIONS.
If a manifest error is discovered, consisting of the misspelling of any words; the omission of any word or words necessary to express the intention of the provisions affected; the use of a word or words to which no meaning can be attached; or the use of a word or words when another word or words was clearly intended to express the intent, the spelling shall be corrected and the word or words supplied, omitted, or substituted as will conform with the manifest intention, and the provisions shall have the same effect as though the correct words were contained in the text as originally published. No alteration shall be made or permitted if any question exists regarding the nature or extent of the error.
The official time, as established by applicable state and federal laws, shall be the official time within this city for the transaction of all city business.
(A) In all cases where an ordinance requires an act to be done in a reasonable time or requires reasonable notice to be given, reasonable time or notice shall be deemed to mean the time which is necessary for a prompt performance of the act or the giving of the notice.
(B) The time within which an act is to be done, as herein provided, shall be computed by excluding the first day and including the last. If the last day is a legal holiday or a Sunday, it shall be excluded.
This code, from and after its effective date, shall contain all of the provisions of a general nature pertaining to the subjects herein enumerated and embraced. All prior ordinances pertaining to the subjects treated by this code shall be deemed repealed from and after the effective date of this code.
All ordinances of a temporary or special nature and all other ordinances pertaining to subjects not embraced in this code shall remain in full force and effect unless herein repealed expressly or by necessary implication.
§ 10.14 EFFECTIVE DATE OF ORDINANCES.
All ordinances passed by the legislative body requiring publication shall take effect from and after the due publication thereof, unless otherwise expressly provided.
§ 10.15 REPEAL OR MODIFICATION OF ORDINANCE.
(A) Whenever any ordinance or part of an ordinance shall be repealed or modified by a subsequent ordinance, the ordinance or part of an ordinance thus repealed or modified shall continue in force until the publication of the ordinance repealing or modifying it when publication is required to give effect to it, unless otherwise expressly provided.
(B) No suit, proceedings, right, fine, forfeiture, or penalty instituted, created, given, secured, or accrued under any ordinance previous to its repeal shall in any way be affected, released, or discharged, but may be prosecuted, enjoyed, and recovered as fully as if the ordinance had continued in force unless it is otherwise expressly provided.
(C) When any ordinance repealing a former ordinance, clause, or provision shall be itself repealed, the repeal shall not be construed to revive the former ordinance, clause, or provision, unless it is expressly provided.
§ 10.16 ORDINANCES WHICH AMEND OR SUPPLEMENT CODE.
(A) If the City Council shall desire to amend any existing chapter or section of this code, the chapter or section shall be specifically repealed and a new chapter or section, containing the desired amendment, substituted in its place.
(B) Any ordinance which is proposed to add to the existing code a new chapter or section shall indicate, with reference to the arrangement of this code, the proper number of the chapter or section. In addition to this indication as may appear in the text of the proposed ordinance, a caption or part shall be shown in concise form above the ordinance.
§ 10.17 PRESERVATION OF PENALTIES, OFFENSES, RIGHTS AND LIABILITIES.
All offenses committed under laws in force prior to the effective date of this code shall be prosecuted and remain punishable as provided by those laws. This code does not affect any rights or liabilities accrued, penalties incurred, or proceedings begun prior to the effective date of this code. The liabilities, proceedings and rights are continued; punishments, penalties, or forfeitures shall be enforced and imposed as if this code had not been enacted. In particular, any agreement granting permission to utilize highway right-of-ways, contracts entered into or franchises granted, the acceptance, establishment or vacation of any highway, and the election of corporate officers shall remain valid in all respects, as if this code had not been enacted.
§ 10.18 COPIES OF CODE.
The official copy of this code shall be kept in the office of the City Clerk for public inspection. The Clerk shall provide a copy for sale for a reasonable charge.
§ 10.19 ADOPTION OF STATUTES AND RULES BY REFERENCE.
It is the intention of the City Council that all future amendments to any state or federal rules and statutes adopted by reference in this code or referenced in this code are hereby adopted by reference or referenced as if they had been in existence at the time this code was adopted, unless there is clear intention expressed in the code to the contrary.
(A) Any person, firm, or corporation who violates any provision of this code for which another penalty is not specifically provided, shall, upon conviction, be guilty of a misdemeanor. The penalty which may be imposed for any crime which is a misdemeanor under this code, including Minnesota Statutes specifically adopted by reference, shall be a sentence of not more than 90 days or a fine of not more than $1,000, or both.
(B) Any person, firm or corporation who violates any provision of this code, including Minnesota Statutes specifically adopted by reference, which is designated to be a petty misdemeanor shall, upon conviction be guilty of a petty misdemeanor. The penalty which may be imposed for any petty offense which is a petty misdemeanor shall be a sentence of a fine of not more than $300.
(C) In either the case of a misdemeanor or a petty misdemeanor, the costs of prosecution may be added. A separate offense shall be deemed committed upon each day during which a violation occurs or continues.
(D) The failure of any officer or employee of the city to perform any official duty imposed by this code shall not subject the officer or employee to the penalty imposed for a violation.


Justia › US Law › Case Law › California Case Law › Cal. 2d › Volume 30 › Isenberg v. California Emp. Stab. Com.
Isenberg v. California Emp. Stab. Com.
H. N. ISENBERG, Respondent, v. CALIFORNIA EMPLOYMENT STABILIZATION COMMISSION et al., Appellants.
Robert W. Kenny, Attorney General, Clarence A. Linn and Doris H. Maier, Deputy Attorneys General, for Appellants.
John Moore Robinson for Respondent.
Plaintiff brought this action pursuant to section 45.10 of the California Unemployment Insurance Act (Stats. 1935, p. 1226, as amended; 3 Deering's Gen. Laws, Act 8780d) to recover contributions paid under protest on the remuneration received by free-lance jockeys performing services for plaintiff during the period from April 1, 1944, to June 30, 1944. Defendant appeals from a judgment in favor of plaintiff.
The evidence at the trial related in the main to the customs and practices of the owners of race horses and the trainers generally in employing jockeys, and their control over the jockeys' activities in riding the horses. Plaintiff testified that he had no written agreement or understanding with the jockeys in question other than a standard form signed by the jockeys' agents specifying the jockey's name, the race, the date, and the first and second calls. There was no other evidence of any specific agreement, written or oral between the plaintiff and the jockeys whose services are involved in this case. Neither plaintiff nor defendant introduced any competenat evidence as to the actual control exercised over the jockeys in question by the plaintiff and his trainer. The evidence showed that the jockeys, through agents, contracted with the owners to ride particular horses in particular races. In accordance with rule 278 of the rules adopted by the California Horse Racing Board pursuant to chapter 769. Statutes of 1933, the remuneration for the services of these jockeys was $35 when they won a race and $15 when they lost. Such remuneration was received by all jockeys in the absence of specific contract provisions to the contrary. It was shown that it is the custom for a jockey to report to the jockey room with his personal riding equipment at noon on the day of the race; that he changes into silks furnished by the owner and then proceeds to the paddock, where he meets with the owner or trainer. At this time either the owner or the trainer, acting as the owner's agent, gives instructions as to the running of the race and the handling of the horse; but, under rule 323(a) of the rules of the California Horse Racing Board, the owner or trainer can give no instructions or orders that do not have as their objective the winning of the race, unless the owner has more than one horse entered in the same race. If the owner or trainer does not wish the horse to be whipped, he may so instruct the jockey, but he cannot enforce such an instruction unless he has the whip taken from the horse upon application to the stewards, in which case no whip may be used on that particular horse until, upon the application of the owner or trainer, the stewards change the ruling. The owner must pay the jockey the contract price in the event he discharges the jockey without cause before the running of the race. Obviously, neither the owner nor the trainer can discharge the jockey while he is engaged in running the race. After the race, the owner or trainer usually confers with the jockey to ascertain how the horse performed and, if the horse [30 Cal. 2d 37] did not do as expected, the reasons therefor. If it is apparent that the jockey did not follow instructions, the owner does not engage the jockey to ride again.
 It cannot seriously be contended that one who is an employee within the meaning of section 3351 of the Labor Code (Workmen's Compensation Act) is not engaged in "employment" within the meaning of section 6.5 of the California Unemployment Insurance Act. Section 3351 of the Labor Code provides that "Employee" means every person in the service of an employer under any appointment or contract of hire or apprenticeship, express or implied, oral or written. ..." An employer is defined by section 3300 of the Labor Code to include "Every person including any public service corporation, which has any natural person in service." Section 6.5 of the Unemployment Insurance Act defines employment as "service ... performed for wages or under any contract of hire, written or oral, express or implied."
It has been held that the word "employment" as defined in section 6.5 of the Unemployment Insurance Act does not include independent contractors. (Briggs v. California Emp. Com., 28 Cal. 2d 50, 54 [168 P.2d 696].) In Empire Star Mines Co. v. California Employment Commission, 28 Cal. 2d 33, 43 [168 P.2d 686], this court set forth the rules for the determination of the question whether or not a person is an independent contractor or is engaged in employment under [30 Cal. 2d 39] section 6.5. The principal test of the employment relationship was held to be the "right to control over the manner and means of accomplishing the result desired." Strong evidence of this right is shown by the right of the principal to discharge the worker. The secondary tests are listed in that opinion as including, "(a) whether or not the one performing service is engaged in a distinct occupation or business; (b) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the principal or by a specialist without supervision; (c) the skill required in the particular occupation; (d) whether the principal or workman supplies the instrumentalities, tools, and the place of work for the persons doing the work; (e) the length of time for which the services are to be performed; (f) the method of payment, whether by time or by the job; (g) whether or not the work is a part of the regular business of the principal; (h) whether or not the parties believe they are creating the relationship of employer-employee. (Rest., Agency, § 220; Cal.Ann. § 220.)"
Among the secondary elements of the employment relation, only three are clearly absent from this case: (c) Jockeys are not unskilled workmen; however, many skilled workmen are employees. (e) Free-lance jockeys are employed for a fixed period, the duration of one race. (f) The basis of payment is the race, not the time involved. The other elements are either present or inapplicable to this case: (a) The occupation is an integral part of the owner's business. (b) The work is usually performed under the direction of the owner or trainer to the extent allowed by the rules of the California Horse Racing Board. (d) Although the jockeys furnishes his [30 Cal. 2d 40] personal riding equipment the silks and the horse are furnished by the owner. (g) The question whether horse racing is the regular business or occupation of owners of race horses is immaterial in determining whether jockeys are employees. The plaintiff made no showing that it was not his regular occupation and testified that he could not say what his regular occupation was. (h) The belief of the parties as to the relationship created is relevant only to indicate whether or not there was an assumption of control by the principal and submission thereto by the worker. (Rest., Agency, § 220, comment (i).)  There was no evidence in regard to the belief of the parties as to their relationship at the time the services were performed. The belief of the jockeys, however, that they would not be rehired if they failed to follow instructions is relevant to show their submission to control.
 Plaintiff contends that the judgment cannot be reversed, since it is based on a conclusion drawn from the evidence as an inference of fact, not as a conclusion of law. There was no evidence from which the trial court could reasonably have drawn any inference inconsistent with the conclusion that the plaintiff had the right to control the activities of the jockeys except where he was prevented from doing so by the rules of the Racing Board or by the inaccessibility of the jockeys while they were actively engaged in the race. The contention that the question whether a person is an employee under section 6.5 of the Unemployment Insurance Act is wholly one of fact, even when the evidence is not in conflict and not reasonably susceptible of conflicting inferences, is untenable. Under such a rule there would be nothing to prevent conflicting interpretations of identical facts by the various trial courts so that free-lance jockeys would sometimes be classified as employees and sometimes not. Such a rule would make effective enforcement of the Unemployment Insurance Act impossible.
In California Emp. Stab. Com. v. Morris, 28 Cal. 2d 812, 818 [172 P.2d 497], this court, applying the same rule as that applied in the Drillon case, supra, held that the Real Estate Act in so far as it regulates real estate salesmen for the protection of the public is not relevant to the question whether such salesmen are employees under section 6.5 of the California Unemployment Insurance Act. The court stated that "... the occupation of real estate salesmen, in so far as the Unemployment Insurance Act is concerned, is one that may be classified [30 Cal. 2d 41] as that of an employee, or an independent contractor, depending upon the facts of the particular case." Clearly this statement does not mean that the trial courts of the state can conclude that, under section 6.5, one real estate salesman is an employee while another operating under identical facts is not. It means that whether a particular type of real estate salesman is within the purview of the act depends on the facts involved in the relationship between such salesmen and their principals rather than on some statute that has no relation to unemployment insurance.
Gibson, C.J., Shenk, J., Carter, J., and Spence, J., concurred.
A jockey, called as a witness in behalf of Isenberg, testified, "I think the procedure is, that if an owner is willing to pay a rider his fee, that he can substitute a rider." This was in answer to the question as to whether it was "possible for ... [the jockey] ... to be removed from that mount without the horse being taken out of the race?" As indicated by other testimony of this witness, he was not necessarily referring to the rules of the Racing Board, and it reasonably may be inferred that in his statement as to "the procedure" he was referring to the agreement of the parties of the national custom.
There was also evidence from which it reasonably could be inferred that the jockeys were not required to follow instructions given them. One jockey testified that "His trainer sometimes gave ... [him] ... instructions how he thought a horse would run best." But, he added: "They [owner and trainer] have suggested ways of riding them [horses]. I wouldn't say they told me just how to ride them. That is impossible." As to whether or not such instructions were followed, he testified, "Well, if I found out that the horse wasn't running under those instructions, I would try some other means of getting him to run." This witness also testified that the owner "may leave it up to your own judgment" as to manner in which the jockey should ride. When asked whether he used his own judgment when riding a race, he replied: "Yes, you have to use your own judgment. Instructions are followed only when you don't figure in your own judgment that they hinder the chances of winning."
It is the well settled rule that when there is a conflict in the evidence, including not only objective facts but also the inferences which reasonably may be deduced therefrom, the determination of the trial court, in regard to the legal relationship of the parties to a controversy, will not be disturbed. (California Emp. Stab. Com. v. Norins Realty Co., 29 Cal. 2d 419 [175 P.2d 217]; California Emp. Stab. Com. v. [30 Cal. 2d 43] Morris, 28 Cal. 2d 812 [172 P.2d 497]; Twentieth etc. Lites v. California Dept. Emp., 28 Cal. 2d 56 [168 P.2d 699]; Briggs v. California Emp. Com., 28 Cal. 2d 50 [168 P.2d 696]; Empire Star Mines Co. v. California Emp. Com., 28 Cal. 2d 33 [168 P.2d 686].) And although strong evidence in support of an employment relationship is the right to discharge at will, without cause, the fact that a person's services may not be so terminated justifies the finding of an independent contractor relationship (Briggs v. California Emp. Com., supra, p. 54; Empire Star Mines Co. v. California Emp. Com., supra, p. 45).
The testimony quoted clearly warrants a conclusion of lack of control, and there is other evidence which supports the trial court's determination. The jockey furnished most of his own equipment. The method of payment was by the race, not according to the time involved. Jockeys are skilled workers and are employed for a fixed period, the duration of the race. Giving no effect to the rules of the Racing Board, the trial court had ample ground for deciding that an independent contractor relationship existed between the owner and the jockeys. Evidence that, by custom, the owner or trainer had the right to give instructions to the jockey, merely raised a conflict in the evidence which was resolved by the trier of fact. Furthermore, the rules of the Racing Board limit the right of the owner and trainer to control the activities of the jockeys and, therefore, support the finding of an independent contractor relationship.
Neither California Emp. Stab. Com. v. Morris, supra, nor Drillon v. Industrial Acc. Com., 17 Cal. 2d 346 [110 P.2d 64], is inconsistent with this conclusion. In the Morris case, the trial court found that certain real estate salesmen were independent contractors. Upon appeal from the judgment, the commission contended that the Real Estate Act gave a broker the right to control a salesman in certain ways and, therefore, as a matter of law, and regardless of a trial court's finding, all real estate salesmen were employees. Rejecting this contention, the court held that there was evidence to support the finding of the lack of control, and the provisions of the Real Estate Act did not compel a contrary determination. In the Drillon case, the Industrial Accident Commission decided that certain jockeys were employees. As requiring a reversal of the judgment, the taxpayer relied upon the rules of the Racing Board which restrict the right of an owner and trainer to control the activities of a jockey. These rules, it [30 Cal. 2d 44] was urged, establish, as a matter of law, that a jockey is an independent contractor. But the court refused to so construe them, and held that the evidence supported the trial court's determination.
These cases are clearly distinguishable from the situation presented in the record now under review. Here the trier of fact determined that the jockeys who rode Isenberg's horses were independent contractors. The commission attacks the decision upon the ground that the only evidence in the record which supports the trial court's finding of lack of control is the limitations found in the rules of the Racing Board. The issue in this regard, therefore, is whether the rules may be used to support a finding of the trial court. In the Morris and Drillon cases, the question was whether, when there is evidence to support the finding of the trial court or commission, may the rules of the Racing Board or the regulatory provisions of the Real Estate Act be invoked to compel a determination contrary to those findings. Both the Morris and the Drillon cases hold that the effect of such rules or regulations is, at most, to set up a conflict in the evidence; they may not be used to require findings contrary to those made by the trial court upon substantial evidence.
Also, I do not agree with the strong implication in the majority opinion that the determination of the legal relationship is primarily a question of law. This implication is found in the reference to the Workmen's Compensation Act, the holding, in effect, that the Drillon case controls the disposition of the present controversy, and the direction that judgment be entered in favor of the commission. Moreover, the cases of California Emp. Com. v. Los Angeles Down Town Shopping News Corp., 24 Cal. 2d 421 [150 P.2d 186], and California Emp. Com. v. Bates, 24 Cal. 2d 432 [150 P.2d 192], are cited as standing for the proposition that whether persons are independent contractors or employees is, in effect, a question of law. On the contrary, in the first of these cases the decision was based upon the proposition that "there is substantial evidence to support the findings of the trial court that the boys were employees within the meaning of the Unemployment Insurance Act. ..." The ground of decision in the Bates case was that there was no substantial evidence to support the trial court's finding of an independent contractor relationship. This is quite different from the present statement that the judgment in favor of Bates "was reversed because the conclusion of the trial court from the facts was [30 Cal. 2d 45] inconsistent with the decision in California Employment Commission v. L. A. Shopping News Corporation, 24 Cal. 2d 421, 425 [150 P.2d 186], where the facts were substantially the same."
For these reasons, I would affirm the judgment of the trial court.
I agree with the views expressed by Mr. Justice Edmonds. I am thoroughly cognizant of the (at least to the involved agencies) administrative desirability of having a simple, absolute, and universal or rule of thumb method for classifying entire industrial or professional groups as employees or nonemployees. But that desirability certainly does not warrant this court in departing from constitutional standards. Is it the intention of the majority of this court to hold that as a matter of law all jockeys who ride horse for compensation, regardless of the more specific terms of their several contracts, are employees? If that is not the effect of the holding its avowed object is not attained. If that is the effect of the holding it means that stable owners and riders no longer are permitted the freedom of mutually contracting such reciprocal relationships as they may agree upon. No longer do they have the right or capacity to establish the character of their obligations to each other. No matter how specific may be the terms by which they agree that the rider is a skilled specialist, that he shall furnish his own equipment, that he shall undertake a single project to be performed in his own way without any supervision or direction of the owner, the result will be the same as though the converse of all those heretofore material elements were substituted.
It is difficult for me to believe that the majority actually subscribe to the doctrine above indicated. But if they do not subscribe to it then not only do they fail to achieve the assertedly desirable objective of administrative universality but the only other rational basis for their holding in this case is equally disturbing. It means not that there shall be uniformity in classifying all jockeys as employees but that the majority have weighed the evidence in this one case and have themselves elected to draw inferences contrary to those drawn by the trial court. The evidence related by Mr. Justice Edmonds is in the record. It admits of the inferences suggested by him. Those inferences support the trial court's judgment. The functions of trial and appellate courts are [30 Cal. 2d 46] constitutionally disparate and no rule should be more scrupulously observed by courts of appeal than that in their appellate work they should not encroach upon or usurp a trial court function. The resolution of factual questions including the determination of the inferences to be drawn from the evidence whether that evidence be documentary or undisputed or otherwise, is in a major sense exclusively the province of the trial court (or of the jury). It is exclusive in the trial court (or jury) in the sense that the appellate court is given no right to resolve factual conflicts or to indulge its preference as to the selection of inferences from the evidence. It is only where clearly there is no substantial evidence from which essential inferences can be drawn that the appellate court may properly interfere in a factual sense; and its interference then should be both in form and in substance by a statement of the law, not a declaration of fact. Any other course by an appellate court is dictatorial in nature and tends toward depriving litigants of the constitutional standards of a fair trial.
The principles involved in this case are markedly similar to those in Cardillo v. Liberty Mutual Ins. Co. (1947), ___ U.S. ___ [67 S. Ct. 801, 91 L.Ed. ___]. There the critical question was whether the injury was one "arising out of and in the course of employment." In a proceeding before the commissioner under the District of Columbia Workmen's Compensation Act it had been found that the injury which resulted in the decedent's death had so arisen and an award was made to the widow. The employer and insurance carrier brought action in the district court to annul the award; they contended that there was "a lack of substantial evidence" to support the essential finding. The district court held that the findings "were supported by evidence in the record" but the Court of Appeals reversed. The Supreme Court in reversing the Court of Appeals and reinstating the judgment of the district court said: (pp. 806-807 of 67 S.Ct.) "In determining whether a particular injury arose out of and in the course of employment, the Deputy Commissioner must necessarily draw an inference from what he has found to be the basic facts. ... If supported by evidence and not inconsistent with the law, the Deputy Commissioner's inference that an injury did or did not arise out of and in the course of employment is conclusive. No reviewing court can then set aside that inference because the opposite one is thought to be more reasonable; nor can the opposite inference be substituted by the court because [30 Cal. 2d 47] of a belief that the one chosen by the Deputy Commissioner is factually questionable. Voehl v. Indemnity Ins. Co., supra [288 U.S.], 166 [53 S. Ct. 380, 77 L. Ed. 678, 87 A.L.R. 245]; Del Vecchio v. Bowers, 296 U.S. 280, 287 [56 S. Ct. 190, 80 L. Ed. 229]; South Chicago Co. v. Bassett, 309 U.S. 251, 257-258 [60 S. Ct. 544, 84 L. Ed. 732]; Parker v. Motor Boat Sales, 314 U.S. 244, 246 [62 S. Ct. 221, 86 L. Ed. 184]; Davis v. Department of Labor, supra [317 U.S.], 256 [63 S. Ct. 225, 87 L. Ed. 250].
Again, in an action which originated in a state court under the Federal Employers Liability Act (35 Stats. 65, as amended, 45 U.S.C. § 51 et seq.) and which was before the United States Supreme Court on certiorari after the state Supreme Court had reversed a trial court "for insufficiency of evidence to show negligence," the high scourt said (Ellis v. Union Pacific Railroad Co. (1947), 329 U.S. 649 [67 S. Ct. 598, 600, 91 L.Ed. ___]) "The choice of conflicting versions of the way the accident happened, the decision as to which witness was telling the truth, the inferences to be drawn from uncontroverted as well as controverted facts, are questions for the [30 Cal. 2d 48] jury. Tennant v. Peoria & P. U. R. Co., 321 U.S. 29 [64 S. Ct. 409, 88 L. Ed. 520]; Lavender v. Kurn, supra [327 U.S. 645 (66 S. Ct. 740, 90 L.Ed. 916).] Once there is a reasonable basis in the record for concluding that there was negligence which caused the injury, it is irrelevant that fairminded men might reach a different conclusion. For then it would be an invasion of the jury's function for an appellate court to draw contrary inferences or to conclude that a different conclusion would be more reasonable." (Italics added.) To the same effect is Eagles v. United States ex rel Samuels (1946), 329 U.S. 304 [67 S. Ct. 313, 91 L.Ed. ___] (the case of a selective service registrant seeking to evade service as a theological student), where the court, in recognizing the force of that class of practical evidence which so often appears to the fact finder but which cannot be reflected in a phonographic record, said: "A registrant might seek a theological school as a refuge for the duration of the war. Congress did not create the exemption ... for him. There was some evidence that this was Samuels' plan; and that evidence, coupled with his demeanor and attitude, might have seemed more persuasive to the boards than it does in the cold record. Our inquiry is ended when we are unable to say that the board flouted the command of Congress in denying Samuels the exemption." (Italics added.) See, also, Estate of Bristol (1943), 23 Cal. 2d 221, 223 [143 P.2d 689].


[Bank] (X Bank or Bank) filed this administrative appeal challenging a January 28, 2002, determination by the Federal Deposit Insurance Corporations (FDIC) Division of Finance (DOF) that the Banks claim for a refund of assessment premiums was barred by the applicable five-year statute of limitations. The Bank sought recalculation of assessment premiums associated with its purchase of two branches of a savings bank in 1994. Deposit runoff from those branches, the Bank contended, should have reduced its insurance premiums by approximately $100,000, the refund amount it claimed.
In finding the Banks claim untimely, DOF did not address the underlying merits of the claim, nor does the Assessment Appeals Committee (Committee) consider them here. The sole issue to be determined in this appeal is whether the Bank brought its claim within the five-year limitations period for assessment matters prescribed by Congress in the Federal Deposit Insurance Act (FDI Act). Resolution of that issue requires an analysis of (1) when the Bank first brought its claim, and (2) when the claim accrued, that is, when the five-year statute of limitations began to run.
In its October 24, 2001, letter, the Bank referenced an effort to communicate its claim to Mr. Leslie R. Crawford, the FDICs Deputy Ombudsman, at the National Bankers Associations 74th Annual Convention, which took place October 9 through 12, 2001.
By letter dated January 28, 2002, the Director of DOF responded to the Banks claim that the FDIC withheld a Growth Worksheet from the Bank in 1994. The Director informed X Bank that the five-year statute of limitations for assessments had run, that the Banks claim was untimely, and that the FDIC would not consider it. The DOF Director provided instructions for filing an appeal to this Committee.
By letter dated March 8, 2002, the Bank opted to appeal the Division Directors determination to this Committee. In that letter, the Bank contended that it had pursued the FDIC over a 5 year period seeking to recover adjustments due to overpayments for the actual purchases of branches and for relief or reductions in a loan that was extended by the RTC/now FDIC. The FDIC, by letter dated April 5, 2002, requested from the Bank any documentation it had supporting the contention that it had pursued its claim with the FDIC over a five-year period.
By letter dated May 24, 2002, the Bank was notified that the appeal record was complete and that the Committee would issue a decision.
The question of whether the Bank brought its claim within the five-year statute of limitations of Section 7(g) may be resolved by analysis of when the Banks claim accrued, i.e., when the statute of limitations began to run, and when the claim was first brought. The Committee analyzes these issues below.
Section 7(g) of the FDIC Act, 12 U.S.C. § 1817(g), provides the statute of limitations for the collection of unpaid or erroneously collected deposit insurance assessments. Under section 7(g), an action or proceeding for the recovery of any assessment due the FDIC, or for the recovery of any excess amount paid to the FDIC, must be brought within five years after the right accrued for which the claim is made. The standard legal rule is that accrual occurs when the plaintiff has a complete and present cause of action, i.e., when suit can be filed and relief obtained. Bay Area Laundry and Dry Cleaning Pension Trust Fund v. Ferbar Corp. of Calif., 522 U.S. 192, 201 (1997): Reiter v. Cooper, 507 U.S. 258, 267 (1993); Rawlings v. Ray, 312 U.S. 96, 98 (1941).
The appropriate accrual date for AADA matters is established by identifying the alleged calculation error and then determining which semiannual assessment it first affected. On this basic point, X Bank directs us to the end of December 1994 when, the Bank asserts, the FDIC erred by not providing a Growth Worksheet. Because of that alleged error, the Bank contends that its AADA  its Bank Insurance Fund (BIF)/ Savings Association Insurance Fund (SAIF) ratio  was allegedly miscalculated. The calculations from any such 1994 worksheet would have been reflected on the Banks Certified Statement due January 31, 1995. At that time, however, the Bank attested that its assessment base for the second semiannual period in 1994  the base on which its January 31, 1995, assessment amount was computed  was true, correct and complete, and the Bank paid that assessment. Now, over six years later, X Bank contends that its 1994 assessment base was wrong, resulting in an overpaid SAIF assessment. The Committee finds that the accrual date for this claim was January 31, 1995, when the Banks alleged SAIF overpayment was first due.
The Committee turns to an alternate, and we think incorrect, method of calculating AADA claim accrual dates applied recently in Norwest Bank Minnesota, N.A. v. FDIC. 4 The Norwest court ruled that no AADA claim accrues where an institutions BIF/SAIF ratio is incorrect, so long as the two funds assessment rates remain the same. Instead, the court viewed an AADA claim as accruing only when the institution allegedly overpaid its combined BIF/SAIF assessment, which would result when the funds assessment rates diverged. Before divergence, the court apparently viewed the alleged SAIF overpayment as, in effect, an offset against the alleged BIF underpayment. In this way, the court tacitly and erroneously treated the BIF and SAIF as one fund. Thus, regardless of any error in BIF/SAIF apportionment, the Norwest court would not start the limitations clock running as long as the total combined BIF/SAIF assessment remained correct. Under this approach, had the BIF and SAIF rates never diverged, the statute of limitations for Banks claim would not yet have begun to run. We think the Norwest court was wrong.
Nevertheless, using the Norwest approach, the date of the first alleged overpayment by the Bank of its combined BIF/SAIF assessment can be precisely identified in FDIC records as September 29, 1995. On that date, the Bank paid its semiannual assessment, computed by applying BIF rates that were lower than SAIF rates. Accordingly, September 29, 1995, is the accrual date that would be found applying the Norwest approach.
. 28 U.S.C. § 2675(a). Courts have interpreted this provision to require filing with the agency (1) a written statement sufficiently describing the inquiry to enable the agency to begin its own investigation, and (2) a sum-certain damages claim. GAF Corp. v. United States, 818 F.2d 901, 919 & n.106 (D.C. Cir. 1987) (U.S. Circuit Court cases cited).
The Committee finds that X Banks September 22, 1995 letter failed to bring a claim against the FDIC. The letter therefore can have no effect on the statute of limitations issue presented here. Rather, the evidence in this matter supports the conclusion that Bank Xs claim against the FDIC was first brought in its October 24, 2001 letter.
The Committee resolves this matter by referring to two dates: the accrual date of X Banks claim for an assessment refund and the date the Bank first brought that claim to the FDIC. These dates must fall within five years of each other or, under the five-year limitation period contained in Section 7(g), the Banks claim is untimely.
Accordingly, X Banks claim was not brought within five years of its accrual as required under Section 7(g), 12 U.S.C. § 1817(g), the statute of limitations for FDIC assessment matters. The Committee therefore finds that X Banks claim is time barred.
For the reasons discussed herein, under the authority delegated by the Board of Directors of the Federal Deposit Insurance Corporation, the Committee denies Banks appeal.
1 Xs AADA assessment payments have already been twice reduced notwithstanding the assessments challenged here. The Bank received the permanent 20 percent reduction in its AADA provided for in the Deposit Insurance Funds Act of 1996 (DIFA) (12 U.S.C. § 1815(d)(3)(K)), and also received the 20 percent DIFA reduction in its AADA for purposes of the 1996 SAIF Special Assessment (12 U.S.C. § 1817 Note).
2 Y argued that the FDIC incorrectly withheld a Growth Worksheet at the end of the year in which it conducted Oakar transactions. The Committee rejected this contention as incompatible with the structure and purpose of the Oakar Amendment, violative of the Amendments prohibition on inter-fund transfers without payment of entrance and exit fees, and, coupled with the concept of negative growth, unreasonable in result. Ys claim of disparate treatment  i.e, other institutions had received Growth Worksheets that incorrectly instructed them to report transactions that occurred within the period of acquisition  was rejected: Y had no entitlement to inclusion in an error. The FDIC later refunded overpayments and chose not to pursue underpayments where errors had occurred.
3 The FDIC had allowed the Bank until April 19, 2002, to respond. When nothing was received by that date, the Chief of the FDICs Assessment Management Section telephoned *** to inquire whether the Bank intended to respond, and *** indicated that a response would be forthcoming.
4 C.A. No. 00-1250 (D.D.C. July 6, 2001) (presently on appeal to the U.S. Court of Appeals for the D.C. Circuit).
5 The oral communication, alleged to have occurred during the period from October 9 to October 12, 2001, obviously fails the requirement of a writing.
6 In fact, September 22, 1995, is one week prior to the claims accrual date calculated using the Norwest method.
7 See 12 C.F.R. § 327.3(h) (1995).
8 The other nine documents submitted with the September 22, 1995, letter lack any relevance whatever to the issue presented here, i.e. the timeliness of the Banks claim.
9 Even assuming that the Bank brought its claim by communicating it orally to the FDICs Deputy Ombudsman between October 9 and 12, 2001, the claim would still be untimely by more than a year.
10 The Norwest court considered a second statute of limitations, 28 U.S.C. § 2401(a), the six-year statute of limitations for civil actions brought against the United States. The Committee believes that only Section 7(g) governs FDIC assessment matters because: (1) the five-year period specified in Section 7(g) contradicts Section 2401(a)s six-year period; (2) Section 7(g)s five-year limitations period would be superfluous were Section 2401(a) to control; (3) Section 7(g)s specific limitations period supercedes Section 2401(a)s general limitations period; and (4) Section 7(g) is the more recent enactment of the two. In any case, the Committee notes that X Banks claim was not brought within six years, the limitations period of Section 2401(a), under either accrual method discussed in this decision.


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Present appeals, by special leave, call in question the defensibility of the judgment of conviction and the order of sentence dated 13.05.2009 passed by the High Court of Judicature at Allahabad in Criminal Appeal No. 1019 of 1981 whereby the Division Bench of the High Court has confirmed the judgment and order passed by the learned IV Additional Sessions Judge, Meerut in Sessions Trial No. 308 of 1979 whereunder the appellants along with two others stood convicted under Section 302 read with Section 34 of the Indian Penal Code (IPC) and visited with the sentence of life imprisonment.
2. Filtering the unnecessary details, the facts which are necessary to be adumbrated for the adjudication of the instant appeals are that there was enmity between the accused, Dharam Pal and his family on the one side and Charan Singh, PW-1, on the other. Charan Singh, PW-1, Gajpal, PW-2, Tedha, PW-3 and Nepal Singh belong to village Dastoi, to which the deceased, Badan Pal, the nephew of Charan Singh as well as the accused persons belong. As the prosecution story further unfurls, sometime prior to the occurrence, Gaje Singh, brother of the accused, Dharam Pal, was murdered and Charan Singh, PW-1, along with others had faced trial for his murder and eventually got acquitted.
The occurrence leading to the murder of Badan Pal took place in the evening hours of 26.03.1979. Badan Pal was a student and he used to stay overnight at his tube-well which had a shed in the jungle of village Sarva. On the date of occurrence, he was at the aforesaid tube-well. Gajpal, PW-2, and Nepal Singh in the fateful evening while carrying the meals for Badan Pal, on their way, met Tedha, PW-3, who wanted to irrigate his fields from the aforesaid tube-well. All of them reached near the said tube-well about 7.30 p.m. when they heard the sound of a gun fire from inside the "kotha" (shed) of the said tube-well. They reached the place without loss of any time and noticed that all the four accused, namely, Dhani Ram, Dharam Pal, Mahendra and Vijendra, came out of that "kotha". Dhani Ram and Dharam Pal carried pistols, Vijendra was armed with a ballam and Mahendra carried a lathi.
On seeing them, they took to their heels. After they reached the place, they found Badan Pal lying dead with bleeding wounds. The aforesaid witnesses identified the accused persons in the light of the electric bulb fixed on the roof of the tube- well as well as in the torch light. A report of the occurrence was prepared by Devendra Singh with the assistance of Charan Singh, PW-1, and was filed at Police Station Kharkhauda. After the criminal law was set in motion, the investigation was conducted by S.I. Rajveer Singh, PW-8, who after recording the statements of some of the witnesses under Section 161 CrPC between 6 a.m. to 8 a.m. on the next day, prepared the panchanama and the sketch map of the spot and collected blood stained and unstained earth as well as two cartridges.
These were sealed on the spot and the dead body was sent for postmortem. On 29.03.1979, the investigation was transferred to S.I. V.P. Saxena and he came to learn on 11.04.1979 that all the accused persons except Dhani Ram had surrendered before the Court and had been sent to custody. Dhani Ram was arrested by S.I. V.P. Saxena at Meerut on 19.04.1979. Eventually after concluding the investigation, charge sheet was laid against the accused persons before the concerned Magistrate.
3. After the matter was committed to the Court of Session, charges were framed under Section 302 read with Section 34 IPC against the accused persons on 10.01.1980. The accused persons abjured their guilt and intended to face trial. The prosecution in order to bring home the charges examined 11 witnesses and marked certain documents as exhibits. Defence chose not to adduce any evidence.
4. The trial court evaluating the ocular and the documentary evidence brought on record found the accused person guilty of the offence under Section 302 read with Section 34 IPC and sentenced them to suffer rigorous imprisonment for life.
7. Assailing the conviction, learned counsel for the appellants submits that in the present case, there is no circumstance to infer common intention and as there has been no meeting of minds, the conviction cannot be supported in aid of Section 34 IPC. It is further submitted by him that the conviction is based on the testimonies of PWs-1 to 3, though Charan Singh, the author of the FIR, who is not an eye witness; that apart, the evidence of PW-2, Gajpal, does not inspire confidence being replete with major contradictions, improvements and embellishments. It is urged that PW-3, Tedda, is a chance witness inasmuch as PW-1 has himself accepted in his testimony that Tedda's going to the tube-well was not regular.
According to Mr. Giri, the testimony of all the principal prosecution witnesses, namely, PWs-1 to 3 are not worthy of credence and they do not inspire confidence and hence, the conviction cannot be founded on their depositions which are definitely not beyond reproach. In this regard he would further urge that they are all related to each other and, therefore, their testimony has to be scrutinized with immense circumspection and when such a scrutiny is made, they do not reach the pedestal of unimpeachability and hence, on that score alone, their testimonies have to be discarded.
Learned counsel would contend that Nepal Singh, who is stated to have accompanied PW-2 and PW-3 has not been examined and Ram Lal and Kasa who have been stated to have arrived at the tube-well, as per the testimony of PW-2, have also not been examined and they are independent witnesses and their non-examination creates an incurable dent in the version of the prosecution.
As per the medical evidence there is only one gunshot injury attributed to pistol supposedly in the hands of Dhani Ram and Dharam Pal (both since dead) and none of the injuries on the person of the deceased could be attributed to lathi and ballam which were carried by the present appellants and, therefore, they cannot be made liable for the offence. Referring to the testimony of PW-6, Dr. M.C. Varshney, it is put forth that the said witness has stated that there was no blackening and scorching at the gunshot wound and that belies the prosecution version that the deceased died of gunshot injury.
Lastly, it is canvassed that Vijendra Singh was a juvenile on the date of incident and he has remained in custody more than the period that is required of a juvenile to remain at juvenile home. To buttress his submissions, learned counsel for the appellants has drawn inspiration from Pratap Singh v. State of Jharkhand & Ors., Hari Ram v. State of Rajasthan and Anr., Suresh Sakharam Nangare v. State of Maharashtra, Jai Bhagwan and Ors. v. State of Haryana and Bijendra Bhagat v. State of Uttarakahand.
8. Supporting the judgment of conviction of the trial court that has received the stamp of approval by the High Court, Mr. Dash, learned senior counsel submitted that the accused Mahendra Singh has rightly been convicted and sentenced with the aid of Section 34 IPC and in that regard he has placed reliance upon Mohan Singh & Anr. v. State of Punjab and Harshadsingh Pahelvansingh Thakore v. State of Gujarat. Mr. Dash further submitted that non-examination of certain witnesses in the backdrop of the present case does not affect the prosecution version inasmuch as the witnesses cited by the prosecution clearly established the charge against the accused persons. As regards the appeal preferred by appellant, Vijendra is concerned, learned senior counsel fairly conceded to the claim of juvenility and submitted that this Court may levy fine upon the appellant to be paid as compensation to the family of the deceased in terms of law laid down in Jitendra Singh v. State of Uttar Pradesh.
9. At the outset, it is necessary to mention that the principal witnesses are PW-1 to PW-3 and the trial court as well as the appellate court has given credence to their evidence. PW-1, Charan Singh, the author of the FIR, has testified that he got the FIR of the incident prepared on the spot itself and then lodged it at Police Station Kharkhauda in the same night by handing over it to the Head Constable Devi Ram, PW-4, who thereafter made entry in the general diary. He has deposed that the accused Dharam Pal, Mahendra and Vijendra are real brothers and they belonged to his own village; that about nine years ago prior to the date of occurrence, Gaje Singh, real brother of the accused, Dharam Pal, was murdered for which he and Hukam Singh, real brother of the deceased Badan Pal, and others were put on trial and eventually they were acquitted.
He has stated in his evidence that since then the accused persons brewed enmity against them. It has also come out in his evidence that the deceased was a student of High School and used to stay in the kotha where the tube-well situate for availing the facility of electric light for his studies. PW-2, Gajpal, cousin of the deceased Badan Pal, has clearly stated that he along with his cousin Nepal Singh left the village at about 7 p.m. carrying the meals for Badan Pal, who was staying inside the kotha of the aforesaid tube-well. He has further deposed that Tedha, PW-3, accompanied them and after they reached the place, they heard a sound of gun firing from inside the kotha of the tube-well.
He has deposed that he has seen all the four accused persons coming out of the northern side of the said kotha of the tube-well and he had also seen the accused Dhani Ram and Dharam Pal were armed with pistols and the accused Mahendra and Vijendra carried lathi and ballam respectively. He had identified the accused persons because of the electric bulb burning in the kotha and further he had a torch light with him.
Though there has been roving cross- examination with regard to him seeing the accused persons coming out of the kotha, nothing has been really elicited to make his testimony impeachable. PW-3, Tedha, has also identified the accused person and supported the testimony of PW-2. That apart, the said witness has lent support to the case of the prosecution and corroborated in each necessary particulars that has been stated by the PW-2. It was contended before the learned trial judge that PW-2 and PW-3 are extremely interested witnesses and further PW- 3 was a chance witness.
The learned trial judge did not find any substance in the said contention inasmuch as there had been identification of the accused persons, vivid description of the weapons they carried and the recovery. Be it noted that though the pistol was not recovered, two cartridges were recovered from the spot of the occurrence.
The learned trial judge arrived at the opinion that the prosecution had been able to prove the presence of the witnesses PWs 2 and 3 at the place of occurrence and their version with regard to the accused persons committing the murder of the deceased. In appeal it was urged before the High Court that there was no motive on the part of the accused to commit the murder of the deceased; that the trial court has not been circumspect in the scrutiny of the evidence of PWs 2 and 3 who were highly interested witnesses; that there was no justification on the part of PW-2 to carry a torch with him and, in any case, their testimony that they had seen the accused persons was absolutely unacceptable; that the deceased had received only one fire arm injury and the appellants were armed with lathi and ballam and had not assaulted the deceased and, therefore, decision by the learned trial judge to convict them in aid of Section 34 IPC was totally sustainable.
10. On a keen scrutiny of the decision of the High Court, it is evident that it repelled the submissions of the appellants on the ground that lack of motive was too feeble a plea in the circumstance of the case to throw the prosecution case overboard; that it has come in evidence that the accused persons had harboured vengeance against them after their acquittal in the case where they were tried for the offence under Section 302 IPC; that there was no reason why the witnesses who were close relations of the deceased would falsely embroil the accused persons leaving the real culprits; that there is no reason to discard the testimonies of PWs 2 and 3 singularly on the ground that they are related witnesses, for they have stood embedded in their version and there is no inconsistency to discredit them; that there is nothing unusual on the part of PW-2 to carry a torch with him; that the identification of the accused persons by PWs 2 and 3 with the help of electric light and torch has been appositely appreciated by the learned trial judge and there was no reason to dislodge the said finding; that the plea that PW-3 was a chance witness and his presence at the place of occurrence was doubtful did not really commend acceptation, for his testimony was worthy of credence; that nothing tangible could be elicited from the evidence of the witnesses in cross-examination by which the version could be doubted and hence, there is no infirmity or perversity in the finding recorded by the trial court; and that the trial court has not erred in convicting the accused persons in aid of Section 34 IPC.
In this regard, the High Court further held that the said provision is only a rule of evidence and does not create a substantive offence. It further opined that the evidence of ocular witnesses had been found to be satisfactory, reliable, consistent and credible by the trial court and nothing tangible could be elicited from their evidence in the cross- examination to create any speck of doubt in their version or to treat their testimony as infirm or perverse.
11. Learned counsel for the appellants referring to the authority in Suresh Sakharam Nangare (supra) would submit that the High Court has admitted in the impugned judgment that the direct proof of common intention is seldom available and in the present case there is no circumstance that such intention can be inferred without there being evidence of preconcert. Learned counsel for the appellants further criticized the judgment of the High Court submitting that as per deposition of Dr. Varshney, PW-6, who conducted post mortem of the deceased body, there was no blackening, no scorching present at the gunshot wound, the genesis of the entire prosecution case that the murder took place in kotha of tube-well i.e the gun was shot from close range deserves to be discarded.
13. As is evincible, the accused-appellants have been convicted with the aid of Section 34 IPC. It has come in evidence of PW-2 that the accused Mahendra was armed with lathi and accused Vijendra Singh was armed with a ballam and they were in the company of other accused. When the evidence in its entirety is studiedly scrutinized, it clearly shows that the accused persons were present in the shed, they were seen going away and the deceased was found lying in a pool of blood. The witnesses specifically stated about the weapons being carried by the accused persons. The submission is that the prosecution story rests on the gun shot injury but there is no evidence with regard to injury caused by the lathi or ballam.
It is relevant to state here that cartridges from the spot have been recovered and PW-6 Doctor who conducted the post mortem had found gunshot wound of entry eight in number in an area of 6 cm x 5 cm on the right side of neck just above the clavicle and lower part of neck. The dimensions of the wound ranged from 1 cm x 0.15 cm to 0.5 cm x 0.5 cm x bone deep. There was no blackening or scorching around the wound. True it is that the doctor has stated that there is no blackening or scorching around the wound, but that will not belie that the injury was not inflicted by the firing from the gun. He has opined that the death of the deceased was caused by gunshot injury.
14. The heart of the matter is whether Section 34 IPC would be attracted to such a case or not. In this regard, we may refer to certain authorities as to how this Court has viewed the concept of "common intention" and thereafter reflect upon how it is applicable to the case at hand.
(ii) participation of the accused in the commission of an offence. If a common intention is proved but no overt act is attributed to the individual accused, Section 34 will be attracted as essentially it involves vicarious liability but if participation of the accused in the crime is proved and a common intention is absent, Section 34 cannot be invoked. In every case, it is not possible to have direct evidence of a common intention. It has to be inferred from the facts and circumstances of each case."
(i) common intention, and (ii) participation of the accused in the commission of an offence. It further makes clear that if common intention is proved but no overt act is attributed to the individual accused, Section 34 will be attracted as essentially it involves vicarious liability but if participation of the accused in the crime is proved and common intention is absent, Section 34 cannot be invoked.
17. In the said case, the Court after analyzing the evidence opined that there is no material from the side of the prosecution to show that the appellant therein had any common intention to eliminate the deceased because the only thing against the appellant therein was that he used to associate himself with the accused for smoking ganja. On this factual score, the Court came to hold that the appellant could not be convicted in aid of Section 34 IPC.
18. In this regard, we may usefully refer to a passage from the authority in Pandurang and Ors. v. State of Hyderabad. The three-Judge Bench in the said case adverted to the applicability and scope of Section 34 IPC and in that context ruled that:- "32. ... It requires a pre-arranged plan because before a man can be vicariously convicted for the criminal act of another, the act must have been done in furtherance of the common intention of them all: Mahbub Shah v. King Emperor.
Accordingly there must have been a prior meeting of minds. Several persons can simultaneously attack a man and each can have the same intention, namely the intention to kill, and each can individually inflict a separate fatal blow and yet none would have the common intention required by the section because there was no prior meeting of minds to form a pre-arranged plan. In a case like that, each would be individually liable for whatever injury he caused but none could be vicariously convicted for the act of any of the others; and if the prosecution cannot prove that his separate blow was a fatal one he cannot be convicted of the murder however clearly an intention to kill could be proved in his case: Barendra Kumar Ghosh v. King Emperor and Mahbub Shah v. King Emperor (supra).
As Their Lordships say in the latter case, "the partition which divides their bounds is often very thin: nevertheless, the distinction is real and substantial, and if overlooked will result in miscarriage of justice". 33. The plan need not be elaborate, nor is a long interval of time required. It could arise and be formed suddenly, as for example when one man calls on bystanders to help him kill a given individual and they, either by their words or their acts, indicate their assent to him and join him in the assault. There is then the necessary meeting of the minds. There is a pre-arranged plan however hastily formed and rudely conceived. But pre- arrangement there must be and premeditated concert. It is not enough, as in the latter Privy Council case, to have the same intention independently of each other, e.g., the intention to rescue another and, if necessary, to kill those who oppose."
"34. ... But to say this is no more than to reproduce the ordinary rule about circumstantial evidence, for there is no special rule of evidence for this class of case. At bottom, it is a question of fact in every case and however similar the circumstances, facts in one case cannot be used as a precedent to determine the conclusion on the facts in another. All that is necessary is either to have direct proof of prior concert, or proof of circumstances which necessarily lead to that inference, or, as we prefer to put it in the time-honoured way, "the incriminating facts must be incompatible with the innocence of the accused and incapable of explanation on any other reasonable hypothesis".
(Sarkar's Evidence, 8th Edn., p. 30)."
20. In this context, we may refer with profit to the statement of law as expounded by the Constitution Bench in Mohan Singh (supra). In the said case, the Constitution Bench has held that Section 34 that deals with cases of constructive criminal liability provides that if a criminal act is done by several persons in furtherance of the common intention of all, each of such person is liable for the act in the same manner as if it were done by him alone. It has been further observed that the essential constituent of the vicarious criminal liability prescribed by Section 34 is the existence of common intention.
The common intention in question animates the accused persons and if the said common intention leads to commission of the criminal offence charged, each of the person sharing the common intention is constructively liable for the criminal act done by one of them. The larger Bench dealing with the concept of constructive criminal liability under Sections 149 and 34 IPC, expressed that just as the combination of persons sharing the same common object is one of the features of an unlawful assembly, so the existence of a combination of persons sharing the same common intention is one of the features of Section 34.
In some ways the two sections are similar and in some cases they may overlap. The common intention which is the basis of Section 34 is different from the common object which is the basis of the composition of an unlawful assembly. Common intention denotes action-in-concert and necessarily postulates the existence of a prearranged plan and that must mean a prior meeting of minds. It would be noticed that cases to which Section 34 can be applied disclose an element of participation in action on the part of all the accused persons. The acts may be different; may vary in their character, but they are all actuated by the same common intention.
"It is now well-settled that the common intention required by Section 34 is different from the same intention or similar intention. As has been observed by the Privy Council in Mahbub Shah v. King-Emperor (supra) common intention within the meaning of Section 34 implies a pre-arranged plan, and to convict the accused of an offence applying the section it should be proved that the criminal act was done in concert pursuant to the pre- arranged plan and that the inference of common intention should never be reached unless it is a necessary inference deducible from the circumstances of the case."
21. In Harshadsingh Pahelvansingh Thakore (supra), a three-Judge Bench, while dealing with constructive liability under Section 34 IPC has ruled thus:- "Section 34 IPC fixing constructive liability conclusively silences such a refined plea of extrication. (See Amir Hussain v. State of U.P.; Maina Singh v. State of Rajasthan.) Lord Sumner's classic legal shorthand for constructive criminal liability, expressed in the Miltonic verse "They also serve who only stand and wait" a fortiori embraces cases of common intent instantly formed, triggering a plurality of persons into an adventure in criminality, some hitting, some missing, some splitting hostile heads, some spilling drops of blood. Guilt goes with community of intent coupled with participatory presence or operation. No finer juristic niceties can be pressed into service to nullify or jettison the plain punitive purpose of the Penal Code."
22. In Lallan Rai and Ors. v. State of Bihar the Court relying upon the principle laid down in Barendra Kumar Ghosh (supra) has ruled that the essence of Section 34 is simultaneous consensus of the mind of persons participating in the criminal action to bring about a particular result.
23. In Goudappa and Ors. v. State of Karnataka the Court has reiterated the principle by opining that Section 34 IPC lays down a principle of joint liability in doing a criminal act and the essence of that liability is to be found in the existence of common intention. The Court posed the question how to gather the common intention and answering the same held that the common intention is gathered from the manner in which the crime has been committed, the conduct of the accused soon before and after the occurrence, the determination and concern with which the crime was committed, the weapon carried by the accused and from the nature of the injury caused by one or some of them and for arriving at a conclusion whether the accused had the common intention to commit an offence of which they could be convicted, the totality of circumstances must be taken into consideration.
24. The aforesaid authorities make it absolutely clear that each case has to rest on its own facts. Whether the crime is committed in furtherance of common intention or not, will depend upon the material brought on record and the appreciation thereof in proper perspective. Facts of two cases cannot be regarded as similar. Common intention can be gathered from the circumstances that are brought on record by the prosecution. Common intention can be conceived immediately or at the time of offence. Thus, the applicability of Section 34 IPC is a question of fact and is to be ascertained from the evidence brought on record.
The common intention to bring about a particular result may well develop on the spot as between a number of persons, with reference to the fact of the case and circumstances of the situation. Whether in a proved situation all the individuals concerned therein have developed only simultaneous and independent intentions or whether a simultaneous consensus of their minds to bring about a particular result can be said to have been developed and thereby intended by all of them, is a question that has to be determined on the facts. (See : Kirpal and Bhopal v. State of U.P.).
In Bharwad Mepa Dana and Anr. v. The State of Bombay, it has been held that Section 34 IPC is intended to meet a case in which it may be difficult to distinguish the acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. The principle which the Section embodies is participation in some action with the common intention of committing a crime; once such participation is established, Section 34 is at once attracted.
25. In the case at hand, it is contended that there is no injury caused by lathi or ballam. Absence of any injury caused by a lathi cannot be the governing factor to rule out Section 34 IPC. It is manifest from the evidence that the accused-appellants had accompanied the other accused persons who were armed with gun and they themselves carried lathi and ballam respectively. The carrying of weapons, arrival at a particular place and at the same time, entering into the shed and murder of the deceased definitely attract the constructive liability as engrafted under Section 34 IPC.
26. It is next contended by Mr. Giri, learned counsel for the appellants that all the eyewitnesses are related to the deceased Badan Pal and they being interested witnesses, their version requires scrutiny with care, caution and circumspection and when their evidence is scanned with the said parameters, it does not withstand the said test for which the case set forth by the prosecution gets corroded and the principle of beyond reasonable doubt gets shattered. The aforesaid submission, as we perceive, has no legs to stand upon, for PWs-1 to 3 have deposed in detail about the previous enmity between the parties, their presence at the spot, the weapons the accused persons carried, their proximity to the shed and establishment of the identity of all the four accused.
They have also testified as regards the deceased lying in a pool of blood. There is no reason why they would implicate the appellants for the murder of their relation leaving behind the real culprit. That apart, nothing has been elicited in the cross-examination for which their testimony can be discredited. In this regard reference to a passage from Hari Obula Reddy and Ors. v. State of Andhra Pradesh would be fruitful. In the said case, a three-Judge Bench has ruled that it cannot be laid down as an invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence.
All that is necessary is that the evidence of the interested witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon. It is worthy to note that there is a distinction between a witness who is related and an interested witness. A relative is a natural witness. The Court in Kartik Malhar v. State of Bihar has opined that a close relative who is a natural witness cannot be regarded as an interested witness, for the term "interested" postulates that the witness must have some interest in having the accused, somehow or the other, convicted for some animus or for some other reason.
27. Mr. Giri, learned senior counsel for the appellant has also impressed upon us to discard the testimony of PW-3, Tedda, on the ground that he is a chance witness. According to him, his presence at the spot is doubtful and his evidence is not beyond suspicion. Commenting on the argument of chance witness, a two-Judge Bench in Rana Pratap and Ors. v. State of Haryana was compelled to observe:- "We do not understand the expression "chance witnesses". Murders are not committed with previous notice to witnesses, soliciting their presence. If murder is committed in a dwelling house, the inmates of the house are natural witnesses.
If murder is committed in a brothel, prostitutes and paramours are natural witnesses. If murder is committed on a street, only passersby will be witnesses. Their evidence cannot be brushed aside or viewed with suspicion on the ground that they are mere "chance witnesses". The expression "chance witnesses" is borrowed from countries where every man's home is considered his castle and every one must have an explanation for his presence elsewhere or in another man's castle. It is a most unsuitable expression in a country whose people are less formal and more casual. To discard the evidence of street hawkers and street vendors on the ground that they are "chance witnesses", even where murder is committed in a street, is to abandon good sense and take too shallow a view of the evidence."
30. The next plank of argument of Mr. Giri is that since Nepal Singh who had been stated to have accompanied PW-2 and PW-3 has not been examined and similarly, Ram Kala and Bansa who had been stated to have arrived at the tube-well as per the testimony of PW-2, have not been examined, the prosecution's version has to be discarded, for it has deliberately not cited the independent material witnesses. It is noticeable from the decision of the trial court and the High Court, reliance has been placed on the testimony of PWs 1 to 3 and their version has been accepted.
They have treated PW-2 and PW-3 as natural witnesses who have testified that the accused persons were leaving the place after commission of the offence and they had seen them quite closely. The contention that they were interested witnesses and their implication is due to inimical disposition towards accused persons has not been accepted and we have concurred with the said finding. It has come out in evidence that witnesses and the accused persons belong to the same village. The submission of Mr. Giri is that non- examination Nepal Singh, Ramlal and Kalsa is quite critical for the case of the prosecution and as put forth by him, their non-examination crucially affects the prosecution version and creates a sense of doubt.
According to Mr. Giri, Nepal Singh is a material witness. In this regard we may refer to the authority in State of H.P. v. Gian Chand wherein it has been held that non-examination of a material witness is again not a mathematical formula for discarding the weight of the testimony available on record howsoever natural, trustworthy and convincing it may be. The charge of withholding a material witness from the court levelled against the prosecution should be examined in the background of the facts and circumstances of each case so as to find whether the witnesses are available for being examined in the court and were yet withheld by the prosecution.
The Court after so holding further ruled that it is the duty of the court to first assess the trustworthiness of the evidence available on record and if the court finds the evidence adduced worthy of being relied on and deserves acceptance, then non-examination of any other witnesses available who could also have been examined but were not examined, does not affect the case of the prosecution.
31. In Takhaji Hiraji v. Thakore Kubersing Chamansing and Ors., it has been held that if a material witness, who would unfold the genesis of the incident or an essential part of the prosecution case, not convincingly brought to fore otherwise, or where there is a gap or infirmity in the prosecution case which could have been supplied or made good by examining a witness who though available is not examined, the prosecution case can be termed as suffering from a deficiency and withholding of such a material witness would oblige the court to draw an adverse inference against the prosecution by holding that if the witness would have been examined it would not have supported the prosecution case.
On the other hand, if already overwhelming evidence is available and examination of other witnesses would only be a repetition or duplication of the evidence already adduced, non-examination of such other witnesses may not be material. If the witnesses already examined are reliable and the testimony coming from their mouth is unimpeachable, the court can safely act upon it, uninfluenced by the factum of non-examination of other witnesses. In Dahari and Ors. v. State of U.P, while discussing about the non-examination of material witness, the Court expressed the view that when he was not the only competent witness who would have been fully capable of explaining the factual situation correctly and the prosecution case stood fully corroborated by the medical evidence and the testimony of other reliable witnesses, no adverse inference could be drawn against the prosecution. Similar view has been expressed in Manjit Singh and Anr. v. State of Punjab and Anr. and Joginder Singh v. State of Haryana.
33. Mr. Giri, learned counsel for the appellants laying stress on the absence of injury caused by lathi on the person of the deceased has urged that the appellant- Mahendra Singh cannot be convicted in aid of Section 34 IPC. In that regard, he has commended us to the authority in Bijendra Bhagat (supra). Learned counsel has drawn inspiration from paragraph four of the said decision. The relevant part of the said paragraph is as follows:- "... According to the witnesses these two accused were also armed with country-made pistols.
The injuries suffered by the deceased are incised wounds and one firearm injury. However, none of the injuries on the person of the deceased could be attributed to the lathi which was supposedly in the hands of the appellant. Undoubtedly, three injuries on the person of Sanjay Kumar could be caused by a hard and blunt object. But having gone through the testimony of the witnesses and the other materials on record, the presence of the appellant and his involvement in the incident clearly appears to be doubtful. We, therefore, deem it appropriate to give the appellant benefit of doubt. ..."
34. Relying on the same, it is contended by Mr. Giri that when there is no lathi blow on the person of the deceased as noticeable from the post mortem report, the appellant- Mahendra Singh deserves to be acquitted. The passage that has been commended to us has to be correctly appreciated. In that case, the Court has referred to injury caused on the person of the deceased and noticed how the injury was caused but the reason for acquittal is that the presence of the appellant therein and his involvement in the incident appeared to the Court to be doubtful. If a person is not present at the spot, the question of common intention does not arise.
As has been held in Pandurang (supra), if the common intention is established, an accused can be convicted. We have already discussed the role attributed to the appellant- Mahendra Singh by the prosecution. He had gone with other accused persons, who were carrying pistols and ballam. He himself was carrying a lathi. Similarly, accused-appellant Vijendra Singh was carrying a ballam and accompanying others. Their intention was to go to the shed where the deceased was studying because of availability of the electric light, has been established. Common intention can be gathered from the facts and circumstances and in the instant case, the same is clearly discernable and hence, the decision in Bijendra Bhagat (supra) is of no assistance to the appellant.
36. As far as appellant-Vijendra Singh is concerned, a report was called for and he has been found to be a juvenile being 16 years 3 months 10 days old on the date of offence. The said report has gone unchallenged and Mr. Dash, learned senior counsel appearing for the State, has fairly stated that he was a juvenile on the date of offence. Mr. Giri has commended us to the authority in Hari Ram (supra).
We find that the Court relying on Section 7-A of the Juvenile Justice (Care and Protection of Children) Act, 2000 and the amendments introduced in Section 20 of the 2000 Act whereby the proviso and Explanation were added to Section 20 and the Juvenile Justice (Care and Protection of Children) Rules, 2007, remitted the matter to the Juvenile Justice Board with the observation that if he had been detained for more than the maximum period for which a juvenile may be confined to a special home, the Board shall release him from custody forthwith. In the case at hand, as the appellant-Vijendra Singh remained in custody for more than the maximum period for which he could have been confined to a special home, while sustaining the conviction, we release him from custody forthwith.
37. Consequently, Criminal Appeal No. 1452 of 2010 is dismissed and Criminal Appeal No. 1448 of 2010 is disposed of treating the appellant- Vijendra Singh as a juvenile and directions issued in that regard as stated hereinbefore.

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Party Name: UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JOYCE M. SIMMONS, doing business as Diamond Notary and Tax Service, Defendant-Appellant.
Judge Panel: Before KING, BENAVIDES, and ELROD, Circuit Judges.
JOYCE M. SIMMONS, doing business as Diamond Notary and Tax Service, Defendant-Appellant.
Before KING, BENAVIDES, and ELROD, Circuit Judges.
Joyce M. Simmons appeals the sentence imposed following her guilty plea conviction for six counts of preparation of false tax returns. The district court sentenced Simmons to the statutory maximum sentence of three years of imprisonment on each count, and it ordered that the sentences would run consecutively for a total of 216 months. It also ordered Simmons to pay $28, 261, 295.08 in restitution to the Internal Revenue Service (IRS). We AFFIRM.
Simmons argues that the district court erred by finding that the amount of tax loss for her offense was over $28 million. She maintains that the district court erred because the $28 million estimation was not conservative and reasonable, because the sample of forty-one tax returns investigated by the IRS was not a random sample, and because she was not given enough time to prepare a defense to the allegation that the estimated loss was $28 million prior to the hearing regarding her initial plea agreement. She further contends that the loss calculation was incorrect because it included tax returns filed for the 2002 tax year, for which the statute of limitations expired before her indictment, and the 2006 tax year, when she alleges she leased her business to others and did not participate in preparing tax returns. She also asserts that the loss amount calculation was unconstitutional under United States v. Booker, because it was based on facts not admitted by her or proved to a jury beyond a reasonable doubt. 543 U.S. 220 (2005).
While Simmons objected to the amount of loss calculation in the district court, she argued only that the amount of loss should be lower for equitable reasons and that she did not operate the business in tax year 2006. She did not raise any of the arguments that she raises on appeal except for her argument that she leased her business to others in tax year 2006. Thus, Simmons' argument regarding tax year 2006 is reviewed for clear error, while her remaining arguments are reviewed for plain error. See United States v. Neal, 578 F.3d 270, 272-73 (5th Cir. 2009).
The guidelines commentary specifically states that reasonable estimation of tax loss is allowed, and other courts have approved of the use of roughly the same method of estimation used by the district court. See U.S.S.G. § 2T1.1, cmt. n.1 (2008); United States v. Bryant, 128 F.3d 74, 75-76 (2d Cir. 1997); United States v. Maye, No. 99-4556, 2000 WL 223344 at *1 (4th Cir. 2000) (unpublished). The evidence in the pre-sentence report (PSR) and the testimony of IRS Agent Shannon Dawson established the method by which the estimated tax loss was calculated. While Simmons correctly states that the forty-one tax returns investigated by Agent Dawson were not a completely random sample, the record does not indicate that those returns would have a higher falsity rate than any other returns prepared by Simmons. Moreover, the PSR correctly noted that Agent Dawson's calculation was conservative because she used the lower of two reasonable falsity percentages that she calculated from the investigated sample, and she did not include any tax loss from approximately 3, 000 tax returns prepared by Simmons that did not include a Schedule C. As the method of estimating the tax loss was reasonable and Simmons did not produce evidence contradicting it, the district court did not commit error, plain or otherwise, in its tax loss calculation. See United States v. Clark, 139 F.3d 485, 490 (5th Cir. 1998).
Although Simmons' counsel received Agent Dawson's calculation of estimated loss the day before the hearing at which Simmons' first plea agreement was rejected, the calculation was fully explained at that hearing, which occurred over five months before sentencing, giving Simmons more than ample time to prepare any defense she desired. Also, her contention that the district court improperly included tax returns filed in tax year 2002 in the estimated loss calculation is refuted by the record as it shows that only tax returns filed in tax years 2003-2007 were included.

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