PETITIONER: <NAME> Vs. RESPONDENT: PREM CHAND & ANR. DATE OF JUDGMENT20/04/1989 BENCH: <NAME>, S. (J) BENCH: <NAME>, S. (J) AHMADI, A.M. (J) CITATION: 1989 AIR 1661 1989 SCR (2) 612 1989 SCC Supl. (2) 680 JT 1989 (3) 1 1989 SCALE (1)1076 CITATOR INFO : D 1990 SC 209 (41) ACT: Indian Penal Code -- Sections 304B , 306 and 498A --Dowry Offences--Punishment for----What would constitute instiga- tion for commission of offence----Would depend on facts of case----Act of abetment-To be judged in the conspectus of evidence of the case. HEADNOTE: <NAME>, accused-respondent, had married <NAME>, deceased, in the year 1973. <NAME> was then employed in <ORG>. Soon after their marriage the accused resigned his job as Prosecuting Sub-inspector and started his practice at Sangrut. <NAME> got herself transferred to Sangrur and the couple set up house there. From the very beginning <NAME> had an unhappy married life because the accused constantly tormented her to get more money from her parents. The accused was also given to heating her frequently. <NAME> gave birth to a male child. Even after child-birth the accused did not stop iII-treating her. Unable to bear the iII-treatment, <NAME> took leave on loss of pay and went away to her parents. She later filed an application under section 9 of the Hindu Marriage Act in the Court at Patiala for restitution of conjugal rights. At this stage, a compromise was brought about between the parties and <NAME> came back to live with the accused at San- grur. But nothing changed, and the accused continued to torment her for money. The immediate provocation for the accused stepping up his illtreatment of <NAME> was his demand of Rs. 1,000 to pay the balance amount of the scooter price which he had purchased. <NAME> had no funds of her own. She, there- fore, wrote to her brother and mother narrating her woes and requesting them to send Rs. 1,000. In spite of <NAME> writing to her brother and mother, the accused did not relent in the immediate compliance of his demand. On 15.9.1975, the day of the tragedy, the accused and <NAME> had a quarrel and thereupon both of them went to the house of <NAME>, Advocate, who advised the accused not to torment <NAME>. 613 There, in the presence of <NAME>, the accused went to the extent of saying that <NAME> may go to hell but he should get the money forthwith. <NAME> reacted by saying that she preferred death to such life. The accused, far from expressing regret for his conduct, drove her to despair by further saying that she can provide him relief quicker by dying on the very day. Thereafter, the accused left <NAME> at their house and went to court at about 9.00 a.m. At 10.15 a.m. shrieks were heard from their house, and when people rushed in, they found <NAME> lying on the ground with extensive burn injuries. Before her death in the hospi- tal, <NAME> told the doctor that she had been tortured at home and that she wanted to die as early as possible. The Additional Sessions Judge found the accused guilty under section 306 , I.P.C ., and sentenced him to undergo R.I. for four years. The Judge held that the accused had been tormenting and also physically assaulting <NAME>, and that <NAME> had committed suicide by reason of the accused's instigation. <ORG>, on appeal, acquitted the accused holding that even though <NAME> had committed suicide on account of her unhappy married life, there was nothing on the record to show that the appellant in any manner instigated the deceased to commit suicide. In this Court, two special leave petitions have been filed, one by the father of <NAME> and the other by the State of Punjab. On behalf of the appellants it was contend- ed that <ORG> had completely erred in its apprecia- tion of the evidence and in its application of the law. On behalf of the accused it was contended that even if the prosecution evidence was accepted in full, there was no material to show that the suicidal death of <NAME> was abetted in any manner by the accused. Allowing the appeals and restoring the conviction of the accused under s. 306 , this Court, HELD: (1) <NAME>'s death was undoubtedly due to suicide and not due to any accident or homicide. [621A] (2) There is overwhelming evidence in the case to estab- lish that <NAME>'s life was made intolerable by the accused by constantly demanding her to get him money and also beating her frequently. [620G] 614 (3) Viewed in the background of <NAME>'s plight during the few days preceding her death and the events that took place on the morning of the tragedy, the utterances by the accused to the effect that she can provide him relief quicker by dying on the very same day would have certainly been seen by <NAME> as an instigation to her to commit suicide. [621D; 622B] (4) No mother, however distressed and frustrated, would easily make up her mind to leave her young child in the lurch and commit suicide unless she had been goaded to do so by someone close to her [622B-C] (5) When the evidence is of so compulsive and telling in nature against the accused, <ORG>, it is regretted to say, has dealt with the matter in a somewhat superficial manner and acquitted the accused on the basis of imaginary premises. <ORG> has failed to comprehend the evi- dence in its full conspectus and instead has whittled down the evidence by specious reasoning. [624E-F] (6) As to what constitutes instigation would depend upon the facts of each case. Therefore, in order to decide wheth- er a person has abetted by instigation the commission of an offence or not, the act of abetment has to be judged in the conspectus of the entire evidence in the case. The act of abetment attributed to an accused is not to be viewed or tested in isolation. [627A-B] (7) Such being the case, the instigative effect of the words used by the accused must be judged on the basis of the distraught condition to which the accused had driven <NAME>. [627B-C] (8) In the instant case, the abetment of the commission of suicide by <NAME> is clearly due to instigation and would therefore fail under the first clause of section 107 , IPC . [626E-F] (9) The degradation of society due to the pernicious system of dowry and the unconscionable demands made by greedy and unscrupulous husbands and their parents and relatives resulting in an alarming number of suicidal and dowry deaths of women has shocked the Legislative conscience to such an extent that the <ORG> has deemed it neces- sary to provide additional provisions of law, procedural as well as substantive, to combat the evil and has consequently introduced Sections 113A and 113B in the Indian Evidence Act , and section 498A and 304B in the Indian Penal Code . [627E-G] 615 (10) It is not a case where <NAME> had wanted to commit suicide for reasons of her own and the accused had facilitated her in the commission of suicide, as would attract Explanation II to Section 107 . [626A] <CITATION> .,  2 SCR 622; distin- guished. (11) Taking all factors into consideration including the fact that more than 11 years have elapsed since <ORG> acquitted the accused and the accused is now leading a settled life, the Court considered the plea of leniency, and while restoring the conviction of the accused under section 306 modified the sentence to the period already undergone and enhanced the fine to Rs.20,000, out of which Rs. 18,000 were to be given to the father of the deceased for being utilised for the maintenance of <NAME>'s son. [628E] JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 477 of 1978.

From the Judgment and Order dated 23.11.1977 of <ORG> in Criminal Revision No. 880 of 1976.

<ORG> of 1989.

From the Judgment and Order dated 23.11. 1977 of <ORG> in Crl. A. No. 670 of 1976. <NAME> and <NAME> for the Appellant in Crl. Appeal No. 477 of 1978.

<NAME> and <NAME> for the Appellant in Criminal Appeal No. 288 of 1989.

<NAME>, <NAME> and <NAME> for the Respondent. The Judgment of the Court was delivered by: <NAME>, J. Appeal No. 477 of 1978 by Special Leave and Appeal No. 288 of 1989 by Special Leave arising out of Special Leave (Crl.) Petition No. 250 of 1980 are directed against a judgment of <ORG> in Criminal Appeal No. 670 of 1976 whereunder a learned single Judge of <ORG> had set aside the conviction of respondent <NAME> and acquitted him of the charge under Section 306 I.P.C. The former appeal has been filed by the father of the deceased <NAME> while the latter appeal has been filed by the State of Punjab. The facts of the case are in brief as under:

Deceased <NAME> who died of burn injuries on 15.9. 1975 was married to the respondent <NAME> (hereinafter referred to as accused) in the year 1973. <NAME>, who had passed the M.A. and B .Ed. degree examinations was employed in <ORG> and was earning about Rs. 600 to 700 per month. The accused, who had obtained a degree in law was a prosecuting Sub-Inspector and soon after marriage he resigned his job and set up practice in his native place Sangrur. When the accused resigned his job and set up practice in Sangrut, <NAME> obtained a transfer to Sangrur from Patiala and the couple set up house in a building owned by PW 5 <NAME>. From the very beginning <NAME> had an unhappy married life because of the ac- cused constantly demanding her to get more money from her parent's house. Even though the accused had joined the office of a senior advocate by name <NAME>, his earnings were meager and consequently the house-hold ex- penses were borne by her from out of her salary. Besides tormenting <NAME> to get more money from her parents, the accused was also given to beating her frequently. <NAME> complained to her parents, brother and brother-in-law about the cruel treatment meted out to her by the accused. <NAME> and PW 14 <NAME>, the mother and broth- er respectively of <NAME> and PW 17 <NAME>, her brother-in-law have deposed about <NAME> telling them about the accused iII-treating her and physically assaulting her. Apart from them, PW 5 <NAME>, the landlord has also testified that the accused was in the habit of beating <NAME> and that on hearing her cries he used to inter- vene and advise the accused to stop beating her. Since the accused did not mend his ways and continued his beatings of <NAME>. PW 5 <NAME> asked the accused to vacate his house.

<NAME> conceived and gave birth to a male child. But even after the child birth, the accused did not stop iII- treating her. Unable to bear the iII-treatment, <NAME> took leave on loss of pay and went away to her parent's house at Patiala. The separation had no effect on the ac- cused and hence <NAME> filed an application under Sec- tion 9 of the Hindu Marriage Act in the Court at Patiala for restitution of conjugal rights. As a counter move, the accused also filed a similar petition in the Court at Sangrur. However, the enquiry of that petition was stayed by the Senior Sub Judge, Sangfur till the disposal of the earlier petition filed by <NAME> at Patiala. At that stage of matters, <NAME>, who was acting as the counsel for the accused and PW 9 <NAME>, another advocate at Sangrut who was appearing for <NAME> brought about a compromise between the parties and in terms thereof <NAME> came back to Sangrur to live with the accused. The re-union, however, took place only after the accused's counsel <NAME> had personally assured that their would be no danger to <NAME>'s life at the hands of the accused. This time, the parties set up residence in a house belonging to PW 12 <NAME>. Nothing changed, however because the accused started tormenting <NAME> almost from the day of re-union for money and continued beating her. PW 12 <NAME> was a witness to the accused quarrel- ling with <NAME> and beating her. The immediate provoca- tion for the accused stepping up his iII-treatment of <NAME> was his purchase of a scooter for Rs.3,500 from one <NAME>. The accused was able to obtain only Rs.2,500 from his father for buying the scooter and for the balance amount of Rs. 1,000 he asked <NAME> to get tile same from her parents. <NAME> had no funds of her own because she had been on leave on loss of pay for several months and had joined duty at the <ORG> only on 13.8.1975. She was in a fix and therefore she wrote a letter on 10.9.75 to her brother PW <NAME> as under:

"Dear brother, the day I came here he is asking for Rs. one thousand from the same day to repay the loan of the scooter. He does not pay any expenses which are required by me. Because I will receive my pay only on 26th September and all things are as they were before." Again just one day before her death i.e. 14.9.1975, she wrote to her mother PW-4 Shanti Devi a pathetic letter as follows:

"Yesterday I was to come to see <NAME> in the evening but there is a quarrel in the house. I have no money, if I have any require- ment I must fulfil myself, otherwise no alter- native than to go on weeping and crying. Because he is saying that I am to repay the loan of Rs. 1,000 and I am to pay Rs. 100 for the house rent. Dear mother, you know it very well that I have not received my pay. It is therefore I am unable to pay anything for the household expenses. It is therefore, I am in a very bad condition at my house. I do not understand what to do. Whenever I talk to go to any place, the same day there is an uproar in the house and he does not turn up till 12.00 in the night and unhealthy atmosphere develops in the house. Dear mother, please send me Rs. 1,000 immediately through <NAME>. Dear mother, I am very sad on this account and unhappy. The whole day I remain weaping. <NAME> (the child) is alright. You do not worry but please send me Rs. 1,000 immediate- ly."

In spite of <NAME>, writing to her brother and mother for a sum of Rs. 1,000 being sent immediately, the accused did not relent in his insistence for immediate compliance of his demand. This led to a quarrel between the husband and wife on the 15th morning and thereupon both of them went to the house of PW-9 <NAME> at 6.30 a.m. itself. After-PW-9 <NAME> woke up, he made enquiries and <NAME> told him that the accused was "demanding money from her and annoying her on that account" in spite of her telling him that she had written letters to her brother and mother. He advised the accused not to torment <NAME> for money but in spite of it the accused said he wanted immediate payment of the sum of Rs. 1,000. The accused went to the extent of saying that <NAME> can go to hell but he should get his sum of Rs. 1,000 forthwith. <NAME> reacted by saying that because of the accused quarrelling with her every day over the payment of money, she preferred death to life in this world. The accused, far from express- ing regret for his conduct, drove her to despair by further saying that she can provide him relief quicker by dying on the very same day and that she need not postpone her death to the next day. PW-9 <NAME> then sent the parties home saying that the matter can be talked over in the evening.

After things had gone to such a pitch the accused and <NAME> left the house of PW-9 <NAME> at about 9.00 a.m. and went back to their house. After leaving <NAME> in the house, the accused went to the Court. At about 10.15 a.m. <NAME> was informed by one <NAME>, advo- cate that shrieks were heard coming from the house occupied by the accused and .<NAME>. Both of them rushed to the house and saw <NAME> lying on the ground with extensive burn injuries on her body. At once <NAME> rushed on his bicycle to the Court and informed the accused and <NAME>, about <NAME> having sustained burn injuries Thereupon all of them came to the house and the accused with the help of PW-<NAME> removed <NAME> to the Civil Hospital at Sangrut. FW-9 <NAME> on coming to know of <NAME> having sustained burn injuries, had information sent to PW- 17 <NAME> and also made arrangements for a phone message being given to the parents of <NAME> at Patiala. There- after he went to the hospital but by then <NAME> had died.

<NAME> was seen by Dr. <NAME> at the hospital at 10.45 a.m. and the doctor found her to have sustained severe burns and to be in a state of shock. <NAME> who was given treatment by <ORG> Dr. <NAME> told him that she had been tortured at home and that she wanted to die as early as possible. At 11.30 a.m. <NAME> died. At the autopsy, it was noticed that she had sustained 19 burn injuries. Her death was certified to be due to shock result- ing from the burn injuries.

On receipt of an intimation from the hospital entries were made in the general diary and subsequently a case was registered on the basis of representations made to PW-18, the Deputy Superintendent of Police by PW- 16 <NAME> and another relation. Investigation of the case resulted in a chargesheet being laid against the accused under Section 306 I.P.C.

In his statement under Section 313 Cr. P.C. the accused denied having iII-treated <NAME> but admitted that he had asked her to give him a sum of Rs. 1,000 for payment of the balance money for the scooter purchased by him. He however stated that he had offered to repay the amount as soon as he received his G.P.F., amount. He denied having told <NAME> at the house of PW-9 <NAME> that she may go to hell and that she can put at an end to her life the same day without waiting for the morrow. He has also stated that <NAME> was of an irritable nature and would get agitated for no reason whatever. Lastly, he has stated that on coming to know of her having sustained burn in- juries, he had rushed home and taken her to the hospital to save her life but unfortunately she could not be saved. After a detailed consideration of the prosecution evi- dence and the statement of the accused, the Additional Sessions Judge, <NAME>, found the accused guilty under Section 306 I.P.C. and sentenced him undergo R.I. for four years. The learned Addl. Sessions Judge held that the ac- cused had been tormenting and also physically assaulting <NAME> and that <NAME> had committed suicide by reason of the accused's instigation.

The accused preferred an appeal to <ORG> and a learned single judge of <ORG> has acquitted the accused holding that even though <NAME> had committed suicide on account of her unhappy married life "there is nothing on the record to show that the appellant in any manner instigated the deceased to commit suicide." Aggrieved by the judgment of <ORG> the father of <NAME> and the <ORG> have preferred the two appeals under consideration. <NAME>, learned counsel for the <ORG> and Mr. <NAME>, learned counsel for the father of <NAME> took us through the evidence in the case and the judgments of the Addl. Sessions Judge and <ORG> and argued that <ORG> has completely erred in its appreciation of the evidence and in its application of the law and there- fore the appeals should be allowed and the conviction and sentence awarded to the accused should be restored. <NAME>, learned counsel for the accused contended that even if the prosecution evidence is accepted in full, there is no material to show that the suicidal death of <NAME> was abetted in any manner by the accused and hence the judgment of <ORG> does not call for any interfer- ence.

We have considered the evidence and the arguments of the counsel in great detail. The evidence brings out with tell- ing effect the distressed life that <NAME> was leading almost from the day of her marriage with the accused. Since the accused had resigned his job and set up practice as an advocate at Sangrur, she got herself transferred from Patia- la to a branch of the Bank at Sangrur. The parties lived as tenants in a portion of the house of PW-5 <NAME> and <NAME> was meeting the household expenses from out of her salary because the accused had no income as a lawyer. In spite of <NAME> spending her entire salary on the house- hold, the accused was constantly demanding her for money and made her life miserable by frequently beating her. These matters have been spoken to by PW-4 <NAME>, PW-14 <NAME> and PW-17 <NAME>. Besides them, independent wit- nesses viz. PW-5 <NAME>, PW-9 <NAME> and PW-12 <NAME> have also spoken about the iII-treatment of <NAME> and their evidence has gone unchallenged. There is thus overwhelming evidence in the case to establish that <NAME>'s life was made intolerable by the accused by constant- ly demanding her to get him money and also beating her frequently.

Before considering the question whether the accused had abetted <NAME> in her committing suicide, we must point out that <NAME>'s death was undoubtedly due to suicide and not due to any accident or homicide. When <NAME> had set fire to herself no one else except her one and half year old son was in the house. Hearing her shouts <NAME> and <NAME> rushed to the house and found her lying on the ground with burn injuries. The accused was at once informed in the court and he removed her to the hospital along with others. Despite treatment, she succumbed to her injuries by about 11.30 a.m. The autopsy revealed that her death was due to severe shock resulting from the burn injuries sustained by her. In such circumstance, the suicidal death of <NAME> is an incontrovertible factor.

The crucial question for consideration is whether <NAME> put an end to her life of her own will and volition or whether her committing suicide had been abetted in any manner by the accused.

To determine this question, we must see the plight of <NAME> during the few days preceding her death and the events which had taken place on the morning of 15.9.75 itself. It is an admitted fact that the accused was wanting a sum of Rs. 1,000 for paying the balance of sale price for the scooter purchased by him and that he was demanding <NAME> to get him the amount from her parents. The accused has himself admitted in his statement under Section 313 Cr. P.C. this fact but has stated that he wanted it only as a loan and not as a gift. Besides the letter, (annexure 3) written by <NAME> to her brother and mother respectively throw considerable light on the matter. In the letter to the brother dated 10.9.75, <NAME> has stated that even on the day she came to Sangrur the accused began demanding a sum of Rs. 1,000 for being paid for the scooter purchased by him. The accused would not wait and hence she had again to write a letter to her mother on 14.9.75. Therein she has stated that she was in a very bad condition and that her mother should send her Rs. 1,000 immediately. These two letters written in quick succession reveal fully the amount of pressure the accused must have been applying on <NAME> to get him a sum of Rs. 1,000. So constant should have been his demand for money that on the morning of 15-9-75 even at about 6.30 or 7 a.m. the accused and <NAME> had to go to the house of PW-9 <NAME> to seek a solution. Even in front of PW-9 <NAME>, the accused had insisted that <NAME> should get him a sum of Rs. 1,000 forthwith. When <NAME> pleaded inability to make immediate payment, the accused told her that he did not care even if she went to hell but he wanted immediate payment. When <NAME> stated in despair that she had enough of torment and that she preferred death to living, the accused added fuel to fire by saying that she may put an end to her life the very same day and she need not wait till the next day to quit this world. Such an utterance by the ac- cused would have certainly been seen by <NAME> as an. instigation to her to commit suicide. Otherwise, she would not have set fire to herself within a short time after she reached home. One significant factor to be noticed is that but for being spurred to action, <NAME> would not have ,easily reconciled herself to forsaking her one and a half year old son and commit suicide. No mother, however dis- tressed and frustrated. would easily make up her mind to leave her young child in the lurch and commit suicide unless she had been goaded to do so by someone close to her. Yet another factor to be borne in mind is that there is no evidence as to what transpired between the accused and <NAME> after they had left the house of PW-9 <NAME>. The only two persons who could speak about it are the accused and <NAME> and since she is dead it is only the accused who can throw some light on the matter. Strangely enough, the accused has not said anything about it in his statement under Section 313 Cr. P.C. He has not said a word that he had assuaged the wounded feelings of <NAME> before he left for Court. His silence on this aspect of the matter would therefore mean that he had not changed his stand subsequently.

We may now look to the relevant provisions of the law. Section 306 I.P.C. under which the accused was charged reads as under:

"306 I.P.C . If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine." Section 107 I.P.C. sets out as to what- constitutes abetment. The Section reads as follows:

"107. A person abets the doing of a thing, who--

First. Instigates any person to do that thing; or Secondly.-- Engages with one or more other person or persons in any conspiracy for the doing of that thing, if an act or illegal omission takes place in pursuance of that conspiracy, and in order to the doing of that thing; or Thirdly.--Intentionally aids, by any act or illegal omission, the doing of that thing.

Explanation I.--A person who, by wilful mis- representation, or by wilful concealment of a material fact which he is bound to disclose, voluntarily causes or procures, or attempts to cause or procure, a thing to be done, is said to instigate the doing of that thing. Illustration (omitted) Explanation Il--Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act."

The learned Additional Sessions Judge has in the course of his judgment observed that Explanation-II to Section 107 I.P.C. would also be attracted to the facts of the case. The relevant portion in the judgment reads as under:

"Thus when the circumstances attending this case are read alongwith the aforesaid Explana- tion No. II given under Section 107 I.P.C., it is clear that the accused prior to the commis- sion of the suicide by <NAME>, had con- stantly committed certain acts and that has facilitated the commission of suicide and thus he had aided in the committing of that said act by <NAME>."

A few lines below the <NAME> Judge has given his finding as under:

"The question of abetment actually depends upon the nature of the act abetted and the manner in which the abetment was made. The offence of abetment is complete when the alleged abettor has instigated another to commit the offence. It is not necessary for the offence of abetment that the offence must be committed. It is only, in the case of a person abetting an offence by intentionally aiding another to commit that offence and the uttering of hot words by the accused to his wife in the presence of <NAME> PW 9 clearly indicates that the accused had abetted an act complained of."

From the portion extracted above, it may be seen that though the Addl. Sessions Judge has observed that Explana- tion II would have relevance to the case, he has in fact awarded conviction to the accused on the basis that the accused had instigated <NAME> to commit suicide and had thereby abetted the commission of suicide by <NAME>.

Having regard to the evidence in the case, there can be no doubt whatever that the Addl. Sessions Judge was perfect- ly right in holding that the accused had instigated <NAME> to commit suicide and therefore he would be guilty under Section 306 I.P.C. A person can abet the commission of an offence in any one of the three ways set out in Section

107. The case of the accused would squarely fall under the first category, viz. instigating a person to do a thing. In such circumstances, the need to invoke Explanation I1 does not arise. Mr. <NAME> contended that since Explanation II to Section 107 I.P.C. has no application to the facts of the case and since the Addl. Sessions Judge has convicted the accused on the premise that Explanation H is attracted, <ORG> was right in setting aside the conviction of the accused. We are unable to accept this argument because the Addl. Sessions Judge: though he has referred to Explanation II, has actually found the accused guilty only on the ground he had abetted the commission of the offence by instigation. When the evidence is of so compulsive and telling a nature against the accused, <ORG>, we regret to say, has dealt with the matter in a somewhat superficial manner and acquitted the accused on the basis of imaginary premises. <ORG> has failed to comprehend the evi- dence in its full conspectus and instead it has whittled down the evidence by specious reasoning. To mention a few, <ORG> has failed to give due weight to the letter <NAME> wrote to her brother on 10.9.1975 merely because in the last line she has written "in any way there is noth- ing to worry. This time everything will be alright." This one sentence in the letter cannot efface the frantic nature of <NAME>'s appeal for money to satisfy the demand of the accused. As regards the last letter dated 14.9.75, <ORG> has totally lost sight of it. <ORG> has failed to see that unless <NAME> was very desperate, she would not have written to her mother for money within four days of the letter to her brother. As regards the happenings on the morning of 15.9.75, <ORG> has failed to grasp their gravity. Unless a serious quarrel had taken place, the accused and <NAME> would not have gone to the house of PW 9 <NAME> in the early hours of the morning itself to seek a solution to the problem. Despite PW 9 <NAME> counselling patience, the accused refused to relent and insisted upon immediate payment of Rs. 1,000 and made it clear that the money was more impor- tant to him than <NAME>'s life and that if <NAME> wanted to die, she may put an end to her life the very same day and give him relief forthwith. <ORG> has viewed the accused's conduct and utterances as of no consequence because PW. 9 <NAME> has stated in crossexamination that he thought it was "an ordinary quarrel between the husband and wife as they had been doing so previously also." <ORG> has failed to realise that the effect of the accused's utterances on <NAME>'s mind should be assessed in the context of the overall evidence in the case and not on the basis of the opinion of PW 9 <NAME> about the nature of the quarrel. PW 9 <NAME> despite his having been the counsel for <NAME>, could not have realised the effect of the utterances of the accused on the mind of <NAME>. Furthermore <ORG> has failed to notice that the accused has not thrown any light as to what transpired between him and <NAME> after they had left the house of PW 9 <NAME>. The fact that <NAME> had forsaken her young son and had set fire to herself within a short time after reaching home will go to show that she would not have acted in that manner unless she had felt instigated to commit suicide by the utterances of the accused. <ORG>, besides unfortunately failing to give due weight to the evidence in the case, has drawn certain inferences which are not at all warranted. For example, <ORG> has stated that since <NAME> was an earning member, the accused would not have stood to gain by instigating her to commit suicide. This inference is totally wrong because the clear evidence in the case is that the accused had placed greater value on the payment of the money demanded by him than upon the life of his wife. Then again, <ORG> has remarked that <NAME> was suffering from depression and a diseased mind and hence she would have committed suicide. We are at a loss to know wherefrom <ORG> derived material to draw this conclusion. Far from there being any evidence, to show that <NAME> was having a diseased mind, PW 5 <NAME> and PW 12 <NAME>, have stated that <NAME> was a woman of gentle and amiable disposition. She was working in the <ORG> without any com- plaint whatever about her mental condition. Even the accused has not stated that she was of diseased mind. We are, there- fore, more than satisfied that the judgment of <ORG> suffers from serious errors and infirmities and is therefore manifestly unsustainable.

Mr. <NAME> relied upon the observations in <CITATION> ,  2 SCR 622 to contend that even if the accused had told <NAME> that money was more important to him than her life and that she can put an end to her life the very same day instead of waiting for the morrow, it cannot be construed that the accused had done anything to facilitate the commission of suicide by <NAME> as would attract Explanation II to Section 107 I.P.C. We do not find any merit in the conten- tion. The facts in <NAME> case were entirely different. The question in that case was whether by shouting that "the <NAME> has come", <NAME>, one of the accused, had abetted the commission of the offence of murder of one <NAME> by the other accused persons who were hiding behind a shisham tree and coming out of their place of concealment and one of them shooting <NAME> with a gun carried by him. Though the Sessions Judge and <ORG> had held that <NAME>'s act would amount to abetment of the commission of the of- fence of murder in terms of Explanation II to Section 107 I.P.C., this <ORG> held that "apart from the words attribut- ed to <NAME>, there is nothing at all to show that she was aware of the nefarious design of <NAME> and his associates." It was in that context this <ORG> observed as follows.

"Thus in order to constitute abetment, the abettor must be shown to have "intentionally" aided the commission of the crime. Mere proof that the crime charged could not have been committed without the interposition of the alleged abettor is not enough compliance with the requirements of Section 107 ."

In the instant case, we have already seen that the committing of suicide by <NAME> was due to the accused's instigation. It is not a case where <NAME> had wanted to commit suicide for reasons of her own and the accused had facilitated her in the commission of suicide. It was then urged by Mr. <NAME> that since two views could be taken of the evidence we should not allow the appeals and set aside the acquittal of the accused solely on the ground that the view taken by <ORG> does not commend itself for our acceptance. We are fully alive to the position in law that where two views could reasonably be taken of the prosecution evidence in a case, <ORG> should not interfere with the acquittal of an accused merely because the view taken by <ORG> and/or <ORG> was less acceptable than the other view which could have been taken on the evidence. This principle will however have no application where the evidence does not afford scope for two plausible views being taken but still <ORG> or <ORG> acquits an accused for reasons which are patently wrong and the error leads to an element of perversity pervading the judgment.

As to what would constitute instigation for the commis- sion of an offence would depend upon the facts of each case. Therefore in order to decide whether a person has abetted by instigation the commission of an offence or not, the act of abetment has to be judged in the conspectus of the entire evidence in the case. The act of abetment attributed to an accused is not to be viewed or tested in isolation. Such being the case, the instigative effect of the words used by the accused must be judged on the basis of the distraught condition to which the accused had driven <NAME>. Full well knowing her helpless state and frustration, if the accused had told her that he set greater store on the sum of Rs. 1,000 required by him than her life and that she can die the very same day and afford him early relief, it is not surprising that <NAME> committed suicide a little later on account of the accused's instigation.

It would not be out of place for us to refer here to the addition of Sections 113A and 113B to the Indian Evidence Act and Sections 498A and 304B to the Indian Penal Code by subsequent amendments. Section 113A Evidence Act and 498A Indian Penal Code have been introduced in the respective enactments by the Criminal Law (Second amendment) Act, 1983 (Act 46 of 1983) and Section 113B of the Evidence Act and 304B Indian Penal Code have been introduced by Act No. 43 of 1986. The degradation of society due to the pernicious system of dowry and the unconscionable demands made by greedy and unscrupulous husbands and their parents and relatives resulting in an alarming number of suicidal and dowry deaths by women has shocked the Legislative conscience to such an extent that the <ORG> has deemed it neces- sary to provide additional provisions of law, procedural as well as substantive, to combat the evil and has consequently introduced Sections 113A and 113B in the Indian Evidence Act and Sections 498A and 304B in the Indian Penal Code . By reason of Section 113A , the Courts can presume that the commission of suicide by a woman has been abetted by her husband or relation if two factors are present viz. (1) that the woman had committed suicide within a period of seven years from her marriage, and (2) that the husband or rela- tion had subjected her to cruelty. We are referring to these provisions only to show that the <ORG> has realised the need to provide for additional provisions in the Indian Penal Code and the Indian Evidence Act to check the growing menace of dowry deaths. In the present case, however, the abetment of the commission of suicide by <NAME> is clearly due to instigation and would therefore fail under the first clause of Section 107 I.P.C.

In the light of our conclusions, the appeals have to be allowed and the conviction of the appellant under Section 306 I.P.C. has to be restored. The question however arises as to whether the sentence of 4 years R.I. awarded by the Sessions Judge should also be restored. Mr. <NAME>, learned counsel made a fervent plea for leniency on the ground that more than 11 years have elapsed since <ORG> acquit- ted the accused and the accused is now leading a settled life and that he and his family members would be ruined if he is to be sent back to prison to serve any further term of sentence. Learned counsel also stated that the accused has undergone imprisonment in connection with the case for a period of about 10 months and, therefore, even if we are to restore the conviction, we may reduce the sentence to the period of imprisonment already undergone. <NAME> learned counsel appearing for the <ORG> submitted that the <ORG> was only anxious that the error committed by <ORG> in acquitting the accused should be set right. He also added that in the event of the substantive sentence being reduced, the accused should be called upon to pay a heavy fine. Taking all factors into consideration, we think that the ends of justice would be met if we substitute the sentence awarded to the accused with the sentence of imprisonment for the period already undergone by him and enhance the sentence of fine from Rs.500 to Rs.20,000 with a direction that out of the fine amount, if paid, a sum of Rs. 18,000 should be paid to the father of <NAME> for bringing up <NAME>'s minor son <NAME>.

The <ORG> judgment is accordingly set aside and the appeals are allowed and the conviction of the accused under Section 306 I.P.C. is restored but the sentence is modified to the period of imprisonment already undergone and fine of Rs.20,000 in default thereof to suffer R.I. for two years. Out of the fine amount if paid, Rs. 18,000 will be given to the appellant in Crl. Appeal No. 477 of 1978 for being utilised for the maintenance of <NAME> son, <NAME>. One month's time from today is given to the accused to pay the fine.

R.S.S. Appeals allowed. ?629


CASE NO.: Appeal (civil) 5837 of 2006 PETITIONER: <NAME> and <NAME> RESPONDENT: Smt. <NAME> DATE OF JUDGMENT: 15/12/2006 BENCH: <NAME> & <NAME> JUDGMENT:

<NAME>, J.

Leave granted.

This appeal has been filed against the impugned judgment of <ORG> dated 17.1.2005 in C.M.M. No. 1367 of 2004 and C.MM. No. 1420 of 2004.

Heard learned counsel for the parties and perused the record.

The facts of the case are that respondent Smt. <NAME> was married to <NAME>, son of the appellants, on 14.4.2000.

After the marriage respondent <NAME> started living with her husband <NAME> in the house of the appellant no.2 in the second floor. It is not disputed that the said house which is at B-135, Ashok Vihar, Phase-I, Delhi belongs to the appellant no.2 and not to her son <NAME>.

<NAME> filed a divorce petition against his wife <NAME>, and it is alleged that as a counter blast to the divorce petition Smt. <NAME> filed an F.I.R. under Sections 406 / 498A / 506 and 34 of the Indian Penal Code and got her father-in-law, mother-in-law, her husband and married sister-in-law arrested by the police and they were granted bail only after three days.

It is admitted that Smt. <NAME> had shifted to her parent's residence because of the dispute with her husband. She alleged that later on when she tried to enter the house of the appellant no.2 which is at property No. B-135, Ashok Vihar, Phase-I, Delhi she found the main entrance locked and hence she filed Suit No. 87/2003 for a mandatory injunction to enable her to enter the house. The case of the appellants was that before any order could be passed by the trial Judge on the suit filed by their daughter-in- law, Smt. <NAME>, along with her parents forcibly broke open the locks of the house at Ashok Vihar belonging to appellant No. 2, the mother- in-law of Smt. <NAME>. The appellants alleged that they have been terrorized by their daughter-in-law and for some time they had to stay in their office.

It is stated by the appellants that their son <NAME>, husband of the respondent, had shifted to his own flat at Mohan Nagar, Ghaziabad before the above litigation between the parties had started.

The learned trial Judge decided both the applications for temporary injunction filed in suit no.87/2003 by the parties by his order on 4.3.2003. He held that the petitioner was in possession of the second floor of the property and he granted a temporary injunction restraining the appellants from interfering with the possession of Smt. <NAME>, respondent herein.

Against the aforesaid order the appellants filed an appeal before the Senior Civil Judge, Delhi who by his order dated 17.9.2004 held that Smt. <NAME> was not residing in the second floor of the premises in question. He also held that her husband <NAME> was not living in the suit property and the matrimonial home could not be said to be a place where only wife was residing. He also held that Smt. <NAME> had no right to the properties other than that of her husband. Hence, he allowed the appeal and dismissed the temporary injunction application.

Aggrieved, Smt. <NAME> filed a petition under Article 227 of the Constitution which was disposed of by the impugned judgment. Hence, these appeals.

The learned Single Judge of <ORG> in the impugned judgment held that the second floor of the property in question was the matrimonial home of Smt. <NAME>. He further held that even if her husband <NAME> had shifted to Ghaziabad that would not make Ghaziabad the matrimonial home of Smt. <NAME>. The Learned Judge was of the view that mere change of the residence by the husband would not shift the matrimonial home from Ashok Vihar, particularly when the husband had filed a divorce petition against his wife. On this reasoning, the learned Judge of <ORG> held that Smt. <NAME> was entitled to continue to reside in the second floor of B-135, Ashok Vihar, Phase-I, Delhi as that is her matrimonial home.

With respect, we are unable to agree with the view taken by <ORG>.

As held by this Court in <CITATION> .,  4 SCC 183, whereas in England the rights of the spouses to the matrimonial home are governed by the Matrimonial Homes Act, 1967, no such right exists in India.

In the same decision it was observed "it may be that with change of situation and complex problems arising it is high time to give the wife or the husband a right of occupation in a truly matrimonial home, in case of the marriage breaking up or in case of strained relationship between the husband and the wife."

In our opinion, the above observation is merely an expression of hope and it does not lay down any law. It is only the legislature which can create a law and not the <ORG>. The courts do not legislate, and whatever may be the personal view of a Judge, he cannot create or amend the law, and must maintain judicial restraint.

There is no such law in India, like the British Matrimonial Homes Act, 1967, and in any case, the rights which may be available under any law can only be as against the husband and not against the father-in-law or mother- in-law.

Here, the house in question belongs to the mother-in-law of Smt. <NAME> and it does not belong to her husband <NAME>. Hence, Smt. <NAME> cannot claim any right to live in the said house.

Appellant No. 2, the mother-in-law of Smt. <NAME> has stated that she had taken a loan for acquiring the house and it is not a joint family property. We see no reason to disbelieve this statement.

Learned counsel for the respondent then relied upon the Protection of Women from Domestic Violence Act , 2005. He stated that in view of the said Act respondent Smt. <NAME> cannot be dispossessed from the second floor of the property in question.

It may be noticed that the finding of the learned Senior Civil Judge that in fact Smt. <NAME> was not residing in the premises in question is a finding of fact which cannot be interfered with either under Article 226 or 227 of the Constitution. Hence, Smt. <NAME> cannot claim any injunction restraining the appellants from dispossessing her from the property in question for the simple reason that she was not in possession at all of the said property and hence the question of dispossession does not arise.

Apart from the above, we are of the opinion that the house in question cannot be said to be a `shared household' within the meaning of Section 2(s) of the Protection of Women from Domestic Violence Act , 2005 (hereinafter referred to as the 'Act').

Section 2(s) states:

"`shared household` means a household where the person aggrieved lives or at any stage has lived in a domestic relationship either singly or along with the respondent and includes such a household whether owned or tenanted either jointly by the aggrieved person and the respondent, or owned or tenanted by either of them in respect of which either the aggrieved person or the respondent or both jointly or singly have any right, title, interest or equity and includes such a household which may belong to the joint family of which the respondent is a member, irrespective of whether the respondent or the aggrieved person has any right, title or interest in the shared household".

Learned counsel for the respondent <NAME> has relied upon Sections 17 and 19(1) of the aforesaid Act, which state:

"17. (1)Notwithstanding anything contained in any other law for the time being in force, every woman in a domestic relationship shall have the right to reside in the shared household, whether or not she has any right, title or beneficial interest in the same.

(2) The aggrieved person shall not be evicted or excluded from the shared household or any part of it by the respondent save in accordance with the procedure established by law.

19. (1) While disposing of an application under sub-section (1) of section 12 , the Magistrate may, on being satisfied that domestic violence has taken place, pass a residence order--

(a) restraining the respondent from dispossessing or in any other manner disturbing the possession of the aggrieved person from the shared household, whether or not the respondent has a legal or equitable interest in the shared household;

(b) directing the respondent to remove himself from the shared household;

(c) restraining the respondent or any of his relatives from entering any portion of the shared household in which the aggrieved person resides;

(d) restraining the respondent from alienating or disposing off the shared household or encumbering the same;

(e) restraining the respondent from renouncing his rights in the shared household except with the leave of the Magistrate; or

(f) directing the respondent to secure same level of alternate accommodation for the aggrieved person as enjoyed by her in the shared household or to pay rent for the same, if the circumstances so require:

Provided that no order under clause (b) shall be passed against any person who is a woman".

Learned counsel for the respondent <NAME> stated that the definition of shared household includes a household where the person aggrieved lives or at any stage had lived in a domestic relationship. He contended that since admittedly the respondent had lived in the property in question in the past, hence the said property is her shared household.

We cannot agree with this submission.

If the aforesaid submission is accepted, then it will mean that wherever the husband and wife lived together in the past that property becomes a shared household. It is quite possible that the husband and wife may have lived together in dozens of places e.g. with the husband's father, husband's paternal grand parents, his maternal parents, uncles, aunts, brothers, sisters, nephews, nieces etc. If the interpretation canvassed by the learned counsel for the respondent is accepted, all these houses of the husband's relatives will be shared households and the wife can well insist in living in the all these houses of her husband's relatives merely because she had stayed with her husband for some time in those houses in the past. Such a view would lead to chaos and would be absurd.

It is well settled that any interpretation which leads to absurdity should not be accepted.

Learned counsel for the respondent <NAME> has relied upon Section 19(1)(f) of the Act and claimed that she should be given an alternative accommodation. In our opinion, the claim for alternative accommodation can only be made against the husband and not against the husband's in-laws or other relatives.

As regards Section 17(1) of the Act, in our opinion the wife is only entitled to claim a right to residence in a shared household, and a `shared household' would only mean the house belonging to or taken on rent by the husband, or the house which belongs to the joint family of which the husband is a member. The property in question in the present case neither belongs to <NAME> nor was it taken on rent by him nor is it a joint family property of which the husband <NAME> is a member. It is the exclusive property of appellant No. 2, mother of <NAME>. Hence it cannot be called a `shared household'.

No doubt, the definition of `shared household' in Section 2(s) of the Act is not very happily worded, and appears to be the result of clumsy drafting, but we have to give it an interpretation which is sensible and which does not lead to chaos in society.

In view of the above, the appeal is allowed. The impugned judgment of <ORG> is set aside and the order of Senior Civil Judge dismissing the injunction application of Smt. <NAME> is upheld. No costs.

Contempt Petition (C) No. 38/2006 In view of the judgment given above, the contempt petition stands dismissed.


PETITIONER: COMMISSIONER OF INCOME-TAX, <NAME> Vs. RESPONDENT: <ORG>. DATE OF JUDGMENT: 15/12/1967 BENCH: <NAME>, <NAME>: <NAME>, J.C. RAMASWAMI, V. <NAME>, <NAME> CITATION: 1968 AIR 1131 1968 SCR (2) 696 CITATOR INFO : RF 1987 SC 798 (11) R 1989 SC1913 (14) ACT: lncome-tax Act (11 of 1922), ss. 10(2) (xii) and (xv)-Scope of. HEADNOTE: A Swiss company, <ORG>of <ORG>, carried on the business of selling its products in India, through a subsidiary called <ORG> After the incorporation of the assessee the activities of <ORG> in India were bifurcated : the pharmaceutical section was taken over by the assessee <ORG> and the other lines of business were continued by <ORG> An agreement was entered into between <ORG> and the assessee for providing the latter with technical assistance for running the business. <ORG>, which was continually carrying on research had agreed to make the, results available to the assesse, and the assessee was expressly prohibited from divulging confidential information to third parties without the consent of <ORG> A licence was granted to the assessee to use <ORG> patents and trade marks in India. The licence was to be for a period of 5 years liable to be terminated in certain eventualities even before the expiry of that period. It was subject to rights actually granted or which may be granted after the date of the 'agreement to others. In consideration of the right to receive scientific and technical assistance the assessee stipulated to make certain recurrent contributions dependent upon the sales and only for the period of the agreement. 'Pursuant to this agreement, the 'assessee paid diverse sums of money to <ORG> and claimed them as admissible deductions either under s. 10(2) (xii) or s. 10(2) (xv) of the Indian Income-tax Act , 1922, in proceedings for assessment to tax. <ORG> had also entered into an agreement with <ORG> England, who were also carrying on business as pharmaceutical manufacturers in India. By that agreement the two companies mutually agreed to grant to one another a non-exclusive licence in respect of certain products in different countries including India. By cl. 5 of the agreement the two companies agreed to take all necessary steps to defend patents granted to or applied for in respect of those products against infringement, and agreed to share equally all costs incurred. In a suit instituted by <ORG> and <ORG> against <ORG> alleging that the latter has infringed the Indian patents of the plaintiffs. <ORG> and <ORG> had co incur certain costs and <ORG> paid its share to <ORG> and <ORG> as per the terms of cl. 5 of the agreement. The assesse reimbursed that amount to <ORG> and claimed it as a permissible deduction under s. 10(2) (xv) in proceedings for assessment to tax <ORG>, on reference, held in favour of the assesses that the first claim was an admissible deduction under s. 10(2) (xv) but not under s: 10(2) (xii), and held that the second claim was not a permissible deduction. In appeals, by the Commissioner of Income-tax and the assessee, HELD : (1) Expenditure (not being in the nature of capital expenditure) laid out or expended on scientific research relating to the business 69 7 of a person is an admissible allowance under s. 10(2) (xii) if the expenditure was laid out or expended by the assessee. In the present case, the amounts paid to <ORG> were not laid out or expended by the assesses on scientific research relating to the business of the assessee. Payment made to recoup another for expenditure for scientific research incurred by that other person, even if it may ultimately benefit the assessee is, unless it is carried on for or on behalf of the assessee, not expenditure, laid out or expended in relation to the business of the assessee. Therefore, the expenditure was not allowable under s. 10(2) (xii). [701 G-H; 702 A-B] But, it was an admissible allowance under s. 10 (2) (xv), because, the expenditure incurred by the assessee was not an allowance of the nature described in cls. (i) to (xiv) of s. 10(2) , it was laid out or expended wholly or exclusively for the purpose of the business of the assessee, and it was not of a capital nature. The assessee did not become entitled exclusively even for the period of the, agreement to the patents and trade marks of <ORG>; it acquired merely the right to draw. for the purpose of carrying on its business upon the technical knowledge of <ORG> for a limited period; by making that technical knowledge available <ORG> did not part with any asset of its business nor did the assessee acquire and asset or advantage of an enduring nature for the benefit of its business. [702 B-C, H; 703 E-F] Evans v <ORG> v. <NAME> (H. M. Inspector of Taxes), 37 T.C. 540; <NAME> v. <ORG> 40 T. C. 443 and <NAME> v. <ORG> 41 T.C. 556, referred to. (2) From the terms of the agreement between <ORG> and the assessee, the assessee was entitled to certain Indian patents, but they did not include the Indian patents of <ORG> and <ORG> obtained by he Swiss Co. from <ORG> and <ORG>. It could not therefore be assumed that the, rights to patents standing in the name of <ORG> and <ORG> were available to the assessee under its agreement with <ORG> The rights to the patents and trade marks did not devolve upon the assessee when it took over the pharmaceutical business from <ORG>, nor was there any proof that the obligation of <ORG> to pay a share of the costs of the suit, incurred by <ORG> and <ORG> was taken over and transmitted by <ORG>, to the assessee. Therefore, <ORG> was right in holding against the assessee regarding the second claim. [707 E-G, H; 708 A-B] JUDGMENT:

CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 9 to 16 of 1967.

Appeals from the judgment and order dated January, 20, 21 of 1965 of <ORG> in Income-tax Reference No.67 of 1961.

<NAME>, <NAME> and <NAME>, for the appellant (inC.As. Nos. 9 to 13 of 1967) and the respondent (in C.As.

Nos. 14 to 16 of 1967).

<NAME>, <NAME> and <NAME>, for the appellant (in C.As. Nos. 14 to 16 of 1967) and the respondent (in C.As. Nos. 9 to 13 of 1967).

The Judgment of the Court was delivered by <NAME>, J. <ORG> referred two questions to <ORG> at Bombay under s. 66 (l ) of the Indian Income-tax Act , 1922 :

"(1) Whether on the facts and in the circumstances of the case, the payment made by the assessee to Ciba Ltd. Basle in pursuance of the agreement dated 17-12-1947 is an admissible deduction under the provisions of s. 10(2) (xii) of-the Income-tax Act , and if not. under s. 10(2) (xv) of the Act, either in part or whole ?

(2) Whether on the facts and in 'the circumstances or the case, the payment made in accordance with the terms of the agreements dated 15-11-1944 and 18-6-1948 for meeting the expenses of Suit No. 890 of 1946 is an allowable expense under s, 10(2)(xv) of the Income-tax Act ?"

In answer 'to the first question <ORG> recorded that the payment made by the assessee to <ORG>, Basle, in pursuance of the agreement dated December 17, 1947 is an admissible deduction under s. 10(2) (xv) of the Income-tax Act , but not under s. 10 (2) (xii) of the Act. The second question was answered in the negative. Against the answer recorded on the first question the Commissioner of Income- tax has appealed, and against the answer recorded on the second question the assessee has appealed. The assessee which was originally floated in the name of <ORG>, and is now called <ORG> is an Indian subsidiary of <ORG>, Basle (hereinafter referred to as '<ORG>') which is engaged in the development, manufacture and sale of medical and pharmaceutical preparations. <ORG> originally carried on business in India of selling its products through a subsidiary called <ORG> After the incorporation of the assessee on December' 13, 1 947 the activities of <ORG> in India were bifurcated : the pharmaceutical section was taken over by the assessee from January 1, 1948, and the other lines of business relating to dyes and chemicals were continued by its subsidiary <ORG>, the name whereof, was later changed to <ORG>, By a deed dated December 17, 1947 <ORG> agreed with the assessee in consideration of payment of a "tech- nical and research contribution for the use of its Indian patents and/or Trade Marks", to communicate the results of its research work, insofar as they relate to the products which were already manufactured or processed or sold by the assessee or which may. with the prior approval of <ORG>, in future be manu-

factured or processed or sold by the assessee. The preamble of 'the agreement, inter alia, recited :

"<ORG> has installed its own tabletting ampoule filling and finishing work and has an organisation suited for the distribution and promotion of the said products. <ORG> wishes to acquire the extensive knowledge and practical experience in the pharmaceutical field that <ORG> commands by reason of its long and extensive research work and scientific and practical experience. Therefore the parties have agreed that <ORG> shall pay to <ORG> a technical and research contribution for the use of its Indian patents and/or Trade Marks referring to the said products. The technical 'and research contribution is at the same time a consideration for the scientific and technical assistance and will refund partly <ORG>'s costs and expenses for the maintenance and development of the research work described in this Preamble."

The preamble was followed by six Articles and two Schedules, the first Schedule setting out the numbers of the Indian Patents, and the Second Schedule setting out the names and numbers of the Indian Trade-Marks. Article I provided .

" 1. <ORG> will communicate currently and/or at request of <ORG> all the results of its research work, insofar as they relate to the said products which are already manufactured or processed or sold by <ORG> or which shall hereafter with the prior approval of <ORG> be manufactured or processed or sold by <ORG>. Whenever manufacture or processing of a preparation is taken up by <ORG> with the prior approval of <ORG>, the pertaining patent right and Trade Marks will be licensed to <ORG> according to the terms of Articles 11 and III. In this case <ORG> undertakes to deliver to <ORG> all processes, formulae, scientific data, working rules and prescriptions pertaining to the manufacture or processing of said products, which have 'been discovered and developed in <ORG>'s laboratories and will forward to <ORG> as far as possible all scientific and biblio-

graphic information, pamphlets or drafts, which might be useful to introduce licensed preparations and to promote their sale in India..........

2. <ORG> agrees not at any time to divulge to third parties without <ORG> consent any confidential information received under this Agreement from <ORG> and in particular to keep all data connected with the manufacturing processes under lock and key."

By cl. 2 of Article II, <ORG> granted to the assessee "full and sole right and licence" in the territory of India under the patents listed in Sch. 1, to make use, exercise and vend the inventions referred to therein, and to use the Trade-Marks set out in Sch. 11 in the territory of India. By cl. 3 the sole right of the assessee under <ORG>'s Indian patents was limited by existing licences granted by <ORG> to third parties, and right was also reserved to <ORG> to conclude other licence agreements with third parties. By the first clause of Article III, it was provided:

"As consideration for <ORG> obligations stipulated in Article 1 and 11 , <ORG> agrees to pay to <ORG> half-yearly the following percentage contributions of the total of the net selling prices of all phar- maceutical products manufactured or processed and/or sold by <ORG> :

(a) Contribution towards technical consul- tancy and technical service rendered and research work done.

(b)Contribution towards cost of raw material used for experimental work...... 3%

(c) Royalties on trade marks used by <ORG>.

2% Total .... 10%"

Article IV imposed certain restrictions upon the assessee. it provided :

"1. <ORG> shall not assign the benefit and the obligations of this Agreement without the written consent of <ORG>; and

2. <ORG>, Pharma shall not grant any sub- licence under the patents and/or trade marks of <ORG> Basle without its previous written consent."

Article V dealt with duration and termination of the agreement.

It provided :

"1. This Agreement comes into force on January 1st, 1948, and shall continue in force for a period of 5 years. Therefore provided that if one of the parties fails to perform or observe the provisions of this Agreement the other party may cancel the same by giving to the party in default 3 months' notice by registered letter or by cable.

2. If <ORG> shall be compelled for any reason beyond its control to transfer or part with all or any of its shares in <ORG>, it will have the right to immediately determine this Agreement.

3. Upon the termination of this Agreement for any cause <ORG> shall cease to use the patents and trade marks to which this Agreement refers except as to stocks then on hand and shall return to <ORG> or to such persons as they may appoint for that purpose all copies of information, scientific data or material sent to it by <ORG> under this Agreement and then in its possession and shall expressly refrain from communicating any such information, scientific -data or material received by it hereunder to any person, firm or company whomsoever other than <ORG>."

Article VI incorporated an arbitration agreement. By a supplementary agreement dated July 15, 1949, the contribution under Article III payable by the assessee was reduced from 10% to 6% of the net selling price of the pharmaceuticals. Pursuant to this Agreement, the assessee paid year after year diverse sums of money to <ORG>.

In proceedings for assessment to tax for the assessment years 1949-50 to 1953-54 payments made to <ORG> were claimed as permissible allowance in the computation of taxable income under s. 10 (2) (xii) of the Indian Income- tax Act, 1922. The Income-tax Officer disallowed the claim (except as to 2% paid as royalty on trade marks used by the assessee). The order was confirmed in appeal by the Appellate Assistant Commissioner. <ORG> held that the payments made by the assessee to <ORG> were allowable under s. 10 (2) (xii) and in any event under s. 10 (2) (xv). <ORG> disagreed with the <ORG> as to the admissibility of the expenditure under s. 10 (2) (xii) of the Indian Income-tax Act , but agreed with the <ORG> on its admissibility under s. 10(2)

(xv). Correctness of the view taken by <ORG> is challenged on behalf of the Commissioner. Expenditure (not 'being in the nature of capital expenditure) laid out or expended on scientific research related to the business of a person in an admissible allowance under s. 10(2) (xii) of the Indian Income-tax Act in computation of the taxable profits and gains of the business of the assessee. One of the conditions of the admissibility of an allowance under cl. (xii) of s. 10(2) is that the expenditure must be laid out or expended on scientific research by the assessee. The amounts paid by the assessee were not laid out or expended by the assessee on scientific research related to the business of the assessee. Payment made to recoup another person for expenditure for scientific research incurred by that other person, even if it may ultimately benefit 'the assessee is. unless it is carried on for or on behalf of the assessee, not expenditure laid out or expended on scientific research related to the business of the assessee. <ORG> was. therefore right in rejecting the claim for allowance 1 under s. 10(2) (xii) of the Income-tax Act .

But the outgoing was properly treated as an allowable expen- diture under s. 10(2)(xv) of the Income-tax Act. Under the terms of the agreement, '<ORG> had-(1) undertaken to deliver to the assessee all processes, formulae, scientific data, working-rules and prescriptions pertaining to the manufacture or processing of products discovered and developed in <ORG>'s laboratories and to forward to the assessee as far as possible all scientific and bibliographic information, pamphlets or drafts, which might be useful to introduce licensed preparations and to promote their sale in India : (cl. 1 of Article 1 ), and (2) had granted to the assessee full and sole right and hence under the patents listed in Sch. 1, to make use, exercise and vend the inventions referred to in India and had also granted a licence "to use the trade marks" in Sch. If in the territory of India, subject to any existing licence which third parties held at the date of the agreement, or which <ORG> granted to third parties after that date : (cl. 2 of Article If and cl. 3 of Article 11 ). In consideration of the right to receive scientific and technical assistance the assessee had agreed to make the stipulated contributions, and had agreed (a) not to divulge to third parties without the consent of <ORG> any confidential information received under the agreement : ( Article 1 cl. 2); and (b) without the written consent of <ORG> not to assign the benefit of the agreement or grant sub-licences of the patents and trade marks of <ORG> (Article IV, cis. 1 and 2) and had further agreed (c) upon the termination of the agreement for any cause to cease to use the patents and trade marks and to return to <ORG> all copies of information, scientific data or material sent to it and to refrain from communicating any such information, scientific data or material received by it to any person : (Article V cl. 3).

The assessee did not, under the agreement, become entitled exclusively even for the period of the agreement, to the patents and trade marks of <ORG> : it had-merely access to the technical knowledge and experience in the pharmaceutical field which <ORG> commanded. The assessee was on that account a mere licensee for a limited period of the technical knowledge of <ORG> with the right to use the patents and trade marks of that Company. The assessee contends that tile contribution for being permitted to have access to this technical knowledge for the purpose of running the business during the period of the agreement falls within the terms of s. 10(2)(xv) of the Income-tax Act, 1922. That clause, insofar as it is material, provides :

"Such profits or gains shall be computed after making the following allowances, namely

(xv) any expenditure not being an allowance of the nature described in any of the clauses

(i) to (xiv) inclusive, and not being in the nature of capital expenditure or personal expenses of the assessee laid out or expended wholly and exclusively for the purpose of such business, profession or vocation."

The expenditure incurred by the assessee is not an allowance the nature described in cls. (i) to (xiv). Again the expenditure is laid out or expended wholly and exclusively for the purpose of the business of the assessee. Counsel for the Revenue however contends that the expenditure is of capital nature and on that account not admissible as an allowance in the computation of the taxable income. The assessee acquired under the agreement merely the right to draw, for the purpose of carrying on its business as a manufacturer and dealer of pharmaceutical products, upon the technical knowledge of <ORG> for a limited period : by making that technical knowledge available <ORG> did not part with any asset of its business nor did the assessee acquire any asset or advantage of an enduring nature for the benefit of its business. Counsel for the Commissioner strongly pressed for acceptance of what he called the principle of the speeches of Viscount <NAME> and Lord <NAME> and <NAME> in <ORG> v. <NAME> (H.M. Inspector of Taxes) (1). Counsel said that it was ruled in that case by the majority of the <ORG> that money received 'by a tax-payer for making available to another person a right to technical 'know-how' is liable to be treated as a capital receipt. It must in the first instance be noted that the <ORG> of Lords was dealing with the true character of a receipt by a tax-payer who had made technical 'know-how' available to another in consideration of a certain payment. The nature of a receipt as capital or (1) 37 T.C. 54).

revenue is not always determinative of the nature of the outgoing in the hands of the person who pays it. Again the view expressed by the majority of the <ORG> does not lay down any principle which may be of value in deciding this case. In <ORG>'s case(1) <ORG> granted a contract 'to the taxpayer company engaged in the, manufacture of pharmaceutical products with a world-wide trading Organisation and which till then carried on business in Burma through an agency to set up a pharmaceutical industry in Burma. The <ORG> undertook to disclose secret processes to <ORG> and to provide other information in consideration of the payment of a "capital sum of pound 1,00,000". The assessee had not entered into any other similar agreement with any other foreign Government or any other party. <ORG> held that the amount of pound 1,00,000 arose to the assesse as a receipt of its trade. but a part of that sum which was attributable to the disclosure of secret processes was a capital receipt, and on that view remanded ,the case 'to the Commissioners to determine the part so attributable. The speeches of the Law Lords in dealing with the appeals of 'the <ORG> and the <ORG> disclose a remarkable divergence ,of opinions. Viscount <NAME> and Lord <NAME> held that by the ,transaction the assessee had parted with a capital asset for a price, and that the <ORG> could not be permitted to make out a new ,case that a part of the amount received by the assessee was capital and the rest income. Lord <NAME> of Henryton agreed with <ORG>. Lord <NAME> of Avonholm held that the amount in its enitrely was received 'by the assessee in the course of its trading activity and Lord Denning said that he could see no ,distinction between the money paid for disclosing information of secret processes and money paid for other information, and that it was a single payment for "know-how" in the course of the assessee's trade and was on, that account income and not capital, but since there was no finding that it was received in the course of the existing trade which was being taxed, it was not liable to be brought to tax. The view of the majority of the <ORG> reached on different and somewhat contradictor' premises is of little assistance in deciding this case. In two later cases decided by the <ORG> of Lords : <NAME> v. <ORG>); and <NAME> v. <ORG>), it was observed that in <ORG> case(1) there was a total loss of the business of the company by the communication of secret processes to <ORG> and on that account the company parted with an asset against receipt of a capital sum. In the case of <ORG> (2) payment received for licensing a foreign Government to manufacture aero engines with the accumulated technical knowledge of the taxpayer and for supplying the necessary infor-

(1) 37 T.C. 540.

(3) 41 T.C. 556.

(2) 40 T.C. 443.

mation and drawings, and for advising the foreign Government as to improvements and modifications in manufacture and design, instructing the licensee's personnel in their works and for releasing members of their own staff to assist in the manufacture -of engines by -the licensee was held to be received on revenue account of the taxpayer's trade. In <ORG> case(1) the taxpayer contracted with the <ORG> to design and develop a, turbine and to license its manufacture by a limited number of companies in the United Kingdom, Australia and Canada and also contracted with <ORG> and an American aircraft manufacturing corporation to license the manufacture of a bomber which the taxpayer had designed and developed, and received fixed lumpsum payments as a consideration for imparting " manufacturing technique" to the licensee'. The receipts were held to be income.

In the case in hand it cannot be said that <ORG> had wholly parted with its Indian business. There was also no, attempt to part with the technical knowledge absolutely in favour of the assessee.

The following facts which emerge from the agreement clearly show that the secret processes were not sold by <ORG> to the assessee : (a) the licence was for a period of five years, liable to be terminated in certain eventualities even before the expiry of the period; b) the object of the agreement was to obtain the benefit of the technical assistance for running- the business; (c) the licence was granted to the assessee subject, to rights ac- tually granted or which may be granted after the date of the agreement to other persons; (d) the assessee was expressly prohibited' from divulging confidential information to third parties without the con-sent of <ORG>, (e) there was no transfer of the fruits of research once for all : <ORG> which was continuously carrying on research and had agreed to make it available to the assessee; and (f) the stipulated payment was recurrent dependent upon the sales, and only for the period of the. agreement. We agree with <ORG> that the first question was rightly answered in favour of the assessee.

The second question relates to the admissibility of a share in, the costs incurred in a Civil Suit in <ORG> Calcutta as an allowable expenditure under s. 10(2)(xv) of the Income-tax Act. The relevant facts are these : In accordance with the terms of the agreement dated June 18, 1948, the assessee took, over the pharmaceutical section of <ORG> The pharmaceutical stock-in-trade together with all the pending contracts and orders were transferred to the assessee by <ORG>' which then had changed its name to <ORG> Under an (1) 4 T.C. 556.

agreement between <ORG> with Messrs. <NAME> and <ORG>, England-hereinafter called '<NAME> and <NAME>'-who were also carrying on business as pharmaceutical manufacturers in India, the two contracting companies mutually agreed to grant to one another a non-exclusive licence in respect of "sulphathiazol products" in different countries including India. <NAME> and <NAME> had prior to the date of the agreement obtained patents in India bearing Nos. 26513 and 36850, and <ORG> obtained the benefit of 'those patents under the agreement. By cl. 5 of the agreement the two companies agreed to take all necessary steps to defend patents -ranted to or applied for by it in respect of "sulphathiazol products" against infringement, and agreed to share equally all costs incurred and all damages or other sums received in respect thereof. Under cl. 8 of the agreement each party had to take all steps within its power to secure the observance of the terms of the agreement by its subsidiary or associated companies' licensees and agents. 'Sulphathiazole' was sold in India by <ORG> and by <NAME> and <NAME> under the trade names of "Cibasol" and "Thiazamide" respectively. In a suit instituted by '<NAME> and <NAME> in <ORG> against Messrs. <ORG> alleging that the latter had infringed the Indian patents of the plaintiff, it was found necessary during the progress of the suit 'to amend the specifications of the patents. <ORG> Calcutta made it a condition in granting the application for amendment that <NAME> and <NAME> shall not institute any action for ,any act of infringement of the patent committed prior to the date of the amendment, and that they shall pay to <ORG> costs of and incidental to the application for amendment of the specifications. <NAME> and <NAME> complied with the order of payment of costs and <ORG> _paid its share of costs to <NAME> and <NAME> under the terms of cl. 5 of the agreement. The assessee reimbursed that amount to <ORG> and claimed it as a permissible deduction in proceedings for assessment to tax. The Income-tax Officer disallowed the claim. In appeal, <ORG> held that in the payment made by 'the assessee there was no capital element and the assessee incurred the expenditure in the course of its business and for the purpose of ensuring that the patents with which it was connected were not infringed. <ORG> held that the assessee company was not responsible for the payment because the liability of <ORG> had not at any time devolved upon <ORG> prior to the transfer of the business in the pharmaceutical section to the assessee, and ,since the assessee had undertaken the liability to satisfy, discharge and pay all debts and liabilities of <ORG> and of no ,other person, the assessee was not entitled to claim the amount paid to <ORG> as an allowable deduction. <ORG> also observed that since the agreement between <ORG> and the assessee contained no clause for sharing any expen-

diture between the assessee and <ORG> as was to be found in the agreement dated November 15, 1944 between <ORG> and <ORG>, the amount paid by the assessee was not a permissible allowance, and even assuming that the agreement to assist implied a stipulation to share the cost, the agreement was only prospective, and did not attract liability in respect of any infringement before the date of the agreement.

Counsel for the assessee contended in the first instance that under the terms of the agreement between <ORG> and <ORG> each Company became a licensee for the patents of the other, and under the agreement with <ORG> the assessee was entitled to the rights to the patents of <ORG> and on that account the costs incurred for defending the rights of <ORG> as a licensee from <ORG> ensured for the benefit of the assessee and the assessee in paying the amount 'to <ORG> was acting for protecting its trading interest. In the alternative, it was contended that the obligations of <ORG> arising in respect of the patents, relating to sulphathiazole were debts which. <ORG> was liable to discharge, and from <ORG> under the terms of the agreement dated June 18, 1948, that liability devolved upon the assessee.

In our view, the contentions cannot be accepted. From the terms of the agreement between <ORG> and the assessee it is clear that the assessee was entitled to certain Indian patents 'but that did not include any patent either in respect of "sulphathiazole" or "thiazamide" ob- tained 'by <ORG> from <NAME> and <NAME>. The two patents Nos. 27,825 and 29,117 obtained by <ORG> and the Indian Trade Mark No. 1621 in respect of "Cibazol" are specifically referred to in the, Schedules to the agreement dated December 1, 1949. The right to the patents of <NAME> and <NAME> for the manufacture of "sulphalthiazole" and the trade mark in respect of thiazamide did not however devolve upon the assessee. It cannot therefore be assumed that the rights to the patents standing in the name of <NAME> and <NAME> were available to the assessee Jr under its agreement with <ORG>. No argument was apparently advanced either before the <ORG> or before the departmental authorities that the assessee was entitled to these patent rights, and no investigation was permissible on that question in <ORG>.

Suit No. 890 of 1946 was filed before the assessee was registered. By paying to <ORG> the share of costs in that Suit No. 890 of 1946, the assessee was not seeking to protect its trading interest.

We also agree with <ORG> that it is not proved that the obligation of <ORG> to pay a share of the costs ill Suit No. 890 of 1946 incurred by <NAME> and <NAME> was transmitted from <ORG> to the assessee. We are unable to agree with the contention of counsel for the assessee that the <ORG> had found that liability of <ORG> in regard to the payment of share of costs of <NAME> and <NAME> devolved upon the assessee. The <ORG> has riot expressly so found and there is no evidence in support of that view. In our view <ORG> was right in answering the second question against the assessee. Both the sets of appeals fail and are dismissed with costs. One hearing fee in each set.

<ORG> dismissed.

L2Sup.CI/68-28-11-68-2,500-Sec. VI-GIPF.

<NAME>