PETITIONER: MUNNU RAJA & <NAME>. Vs. RESPONDENT: THE STAE OF MADHYA PRADESH DATE OF JUDGMENT20/11/1975 BENCH: CHANDRACHUD, Y.V. BENCH: CHANDRACHUD, Y.V. GUPTA, A.C. CITATION: 1976 AIR 2199 1976 SCR (2) 764 1976 SCC (3) 104 CITATOR INFO : F 1979 SC1173 (8) F 1980 SC 559 (11) RF 1986 SC 250 (27) R 1988 SC2013 (23) RF 1992 SC1817 (17) ACT: I.P.C . Section 302 r/w Section 34-Dying declaration- Whether F.I.R. can be treated as dying declaration- Appreciation of dying declaration -Wehther dying declaration must cover the whole incident. Section 32(1) of Evidence Act-Dying declaration made before investigating officer in presence of a doctor but in the absence of a Magistrate-Evidentary value of the testimony of hostile eye witnesses-Powers of <ORG> in appeal against acquittal. HEADNOTE: The appellants were tried by the Sessions Judge on the charge of committing murder of <NAME>. The prosecution relied on the evidence of two eye witnesses and three dying declarations made by the deceased. The two eye witnesses supported the prosecution case only partly and were, therefor, permitted to be cross-examined by the Public Prosecutor. The Sessions Judge thought it unsafe to rely on the testimony of the two eye witnesses and was also not impressed by and of the dying declarations. Consequently he acquitted the appellants. The <ORG> in appeal did not discard the evidence of the eye witnesses but utilised it by way of corroboration to the dying declarations. The <ORG> set aside the order of acquittal and convicted the appellants under section 30 read with section 34 I.P.C. and sentenced each of them to imprisonment for life. In an appeal under section 2(1) of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970. ^ HELD: 1. <ORG> rightly discarded the evidence of the hostile eye witnesses. They resiled from their Police, Statements and it is evident that they have no regard for truth. Their evidence cannot be used to corroborate the dying declarations. [766-C] 2. In regard to the dying declarations <ORG> wholly overlooked the earliest dying declaration which was made by the deceased soon after the incident. The second dying declaration was the first information report lodged by the deceased at the Police Station. The Sessions Judge was clearly in error in holding that the first information report cannot be treated as a dying declamation. After making the statements before the police the deceased succumbed to his injuries and, therefore, the statement can be treated as a dying declaration, and is admissible under section 32(1) of the Evidence Act, The maker of tho statement is dead and the statement relates to the cause of his death. [766DF] 3. It is, well settled that though a dying declaration must be approached with caution for the reason that the maker of the statement cannot be subjected to cross examination, there is neither a rule of law nor a rule of prudence that a dying declaration cannot be acted upon unless it is corroborated. [766G] 4. Law does not require that the maker of the dying declaration must cover the whole incident or narrate the case history. What is necessary is that the whole of the statement made by the deceased must be laid before the court without tampering with its terms or its tenor. [767-C] 5. The deceased did not bear any enmity or hostility towards the appellants nor did any other persons who were in the company of the deceased after the assault were shown to have any animus for implicating the appellants false. [767E] 765 6. The second dying declaration was not made to the Investigating officer. It was made by way of First Information Report and it was only after the information was recorded that the investigation commenced. The <ORG> was right in relying on the first and second dying declarations. Considering the facts and circumstances of the case these two dying declarations can be accepted without corroboration. [767F, 768C] 7. The <ORG> ought not to have relied on the third dying declaration which is said to have been made by the deceased in the hospital. The Investigating officer ought to have requisitioned the services of a Magistrate for re- cording that dying declaration, Investigating officers are naturally integrated in the success of the investigation and the practice of the Investigating Officer himself recording a dying declaration during the course of investigation ought not to be encouraged. [768CD] 8. The <ORG> in reversing the order of acquittal passed by the Sessions rt did not violate any of the principles governing appeals against acquittal. [768E] JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 227 of 1972 From the Judgment and order dated the 8th September, 1972 of <ORG> in Criminal Appeal No. 927/69.

<NAME> for the Appellant.

<NAME>, <ORG>. Advocate General for the State of M.P., <NAME> and <NAME> for the Respondent.

ORDER CHANDRACHUD, J.-The appellants, <NAME> and <NAME>, were tried by the learned Sessions Judge, Chatarpur on the charge that at about 10 a.m. On April 30, 1969 they committed the murder of one <NAME>. In support of its case, the prosecution relied upon the evidence of <NAME> (P.W. 1 ) and Mst. <NAME> (P.W. 4) who claimed to be eye witnesses and on three dying declarations alleged to have been made by the deceased. The two eye witnesses were permitted to be cross-examined by the Public Prosecutor as they supported the case of the prosecution only partly. <NAME> stated that he saw <NAME> assaulting <NAME> with a spear but that he did not see <NAME> at all. On the other hand, Mst. <NAME> stated that it was <NAME> and not <NAME> who assaulted the deceased. Since the two principal witnesses turned hostile, the learned Sessions Judge thought it unsafe to rely on their testimony and, in our opinion, rightly. The learned Judge was also not impressed by any of the dying declarations with the result that he came to the conclusion that the prosecution had failed to establish its case beyond a reasonable doubt. In that view of the matter, the appellants were acquitted by the learned Judge.

Being aggrieved by the order of acquittal, the State Government filed an appeal in <ORG> of Madhya Pradesh, which was allowed by <ORG> of that Court by its judgment dated September 8, 1972. <ORG> did not discard the evidence of the eye witnesses but utilised it by way of corroboration to the dying declarations alleged to have been made by the deceased. Setting aside the order of acquittal, <ORG> has convicted the appellants under s: 302 read with s. 34 of the Penal Code and has sentenced each of them to imprisonment for life. The appellants have filed this appeal under s. 2(1) of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970.

We have heard Mr. <NAME> on behalf of the appellants at some length and we have considered each of his submissions care fully. It is however unnecessary to discuss every one of the points made by him because, basically, the scope of this appeal-not for getting that the appellants had a right to file this appeal in this <ORG>-lies within a narrow compass. As we have indicated earlier, no exception can be taken to the view taken by the learned <ORG> that it is not safe to place reliance on the testimony of <NAME> and Mst. <NAME>. They resiled from their police statements and it is evident that they have no regard for truth. Their evidence cannot be used to corroborate-the dying declarations either.

We are thus left with the three dying declarations made by <NAME> and since the prosecution has placed great reliance on them, we thought it necessary to hear the learned counsel fully on the facts and circumstances leading to the dying declarations.

In regard to these dying declarations, the judgment of <ORG> suffers from a patent infirmity in that it wholly overlooks the earliest of these dying declarations, which was made by the deceased soon after the incident in the house of one <NAME>. The second statement which has been treated by <ORG> as a dying declaration is Ex. P-14, being the first information report which was lodged by the deceased at the police station. The learned Sessions Judge probably assumed that since the statement was recorded as a first information report, it could not be treated as a dying declaration. In this assumption, he was clearly in error. After making the statement before the police, <NAME> succumbed to his injuries and therefore the statement can be treated as a dying declaration and is admissible under section 32(1) of the Evidence Act. The maker of the statement is dead and the statement relates to the cause of his death.

<ORG> has held that these statements are essentially true and do not suffer from any infirmity. It is well settled that though a dying declaration must be approached with caution for the reason that the maker of the statement cannot be subject to cross-examination, there is neither a rule of law nor a rule of prudence which has hardened into a rule of law that a dying declaration cannot be acted upon unless it is corroborated: [see <CITATION> ]. <ORG>, it is true, has held that the evidence of the two eye witnesses corroborated the dying declarations but it did not come to the conclusion that the dying declarations suffered from any infirmity by reason of which it was necessary to look out for corroboration.

It was contended by the learned counsel for the appellants that the oral statement which <NAME> made cannot, in the eye of law, constitute a dying declaration because he did not give a full account of the incident or of the transaction which resulted in his death There is no substance in this contention because in order that the <ORG> may be in a position to assess the evidentiary value of a dying declaration, what is necessary is that the whole of the statement made by the deceased must be laid before the <ORG>, without tampering with its terms or its tenor. Law does not require that the maker of the dying declaration must cover the whole incident or narrate the case history. Indeed, quite often, all that the victim may be able to say is that he was beaten by a certain person or persons. That may either be due to the suddenness of the attack or the conditions of visibility or because the victim is not in a physical condition to recapitulate the entire incident or to narrate it at length. In fact, many a time, dying declarations which are copiously worded or neatly structured excite suspicion for the reason that they bear traces of tutoring.

It was urged by the learned counsel that after the attack, the deceased was all along accompanied by a large number of persons and one cannot therefore exclude the possibility that he was tutored into involving the appellants falsely. We see no basis for this submission because not even a suggestion was made to any of the witnesses that the deceased was tutored into making the statement. The deceased, on his own, did not bear any enmity or hostility to the appellants and had therefore no reason to implicate them falsely. Indeed, none of the persons who were in the company of the deceased after he was assaulted, is shown to have any particular animus for implicating the appellants falsely.

In regard to the second dying declaration, Ex. P-14, the main objection of the learned counsel is that it was made to the investigating officer himself and ought therefore be treated as suspect. In support of this submission, reliance was placed on a Judgment of this Court in <CITATION> error of this argument consists in the assumption that the dying declaration was made to an investigating officer. The statement, Ex. P.14, was made by <NAME> at the police station by way of a first information report. It is after the information was recorded, and indeed because of its that the investigation commenced and therefore it is wrong to say that the statement was made to an investigating officer. The <ORG> officer who recorded the statement did not possess the capacity of an investigating officer at the time when he recorded the statement. The judgment on which the counsel relies has therefore no application.

We are in full agreement with <ORG> that both of these dying declarations are true. We are further of the opinion that considering the facts and circumstances of the case, these two statements can be accepted without corroboration. <NAME> was assaulted in broad day light and he knew the appellants. He did not bear any grudge towards them and had therefore no reason to implicate them falsely. Those who were in the constant company of <NAME> after the assault, had also no reason to implicate the appellants falsely. They bore no ill-will or malice towards the appellants. We see no infirmity attaching to the two dying declarations which would make it necessary to look out for corroboration.

We might, however, mention before we close that <ORG> ought not to have placed any reliance on the third dying declaration. Ex. P-2, which is said to have been made by the deceased in the hospital. The investigating officer who recorded that statement had undoubtedly taken the precaution of keeping a doctor present and it appears that some of the friends and relations of the deceased were also present at the time when the statement was recorded. But, if the investigating officer thought that <NAME> was in a precarious condition, he ought to have requisitioned the services of a Magistrate for recording the dying declaration. Investigating officers are naturally interested in the success of the investigation and the practice of the investigating officer himself recording a dying declaration during the course of investigation ought not to be encouraged. We have therefore excluded from our consideration the dying declaration, Ex. P-2, recorded in the hospital.

<ORG> was, therefore, justified in reversing the order of acquittal passed by <ORG> and in convicting the appellants of the offence of which they were charged. In so doing, <ORG> did not violate any of the principles governing appeals against acquittal, to which our attention was drawn by the appellants' counsel from time to time In the result, we confirm the judgment of <ORG> and dismiss the appeal.

P.H.P. Appeal dismissed.


JUDGMENT Divan, C.J.

1. In this case, at the instance of the assessee, the following question has been referred to us :

"Whether, on the facts and in the circumstances of the case, the expenditure of Rs. 48,004 incurred between October 1, 1964, and March 31, 1965, could be allowed as business expenditure ?"

2. The assessment year under consideration is 1965-66, the relevant accounting year being the year ending March 31, 1965. The assessee is a private limited company. It was incorporated on March 24, 1964. The main object of the company was to acquire immovable property and to give out either on leave and licence basis or on lease, office accommodation or residential accommodation, together with all appurtenant amenities. Soon after its incorporation the board of directors of the assessee-company passed a resolution on March 26, 1964, resolving that the assessee should purchase a portion of the main bungalow belonging to <NAME> in the "Retreat" compound, Shahibag, Ahmedabad, together with the appurtenant land admeasuring 12,175 square yards for a sum of Rs. 8,73,500. The land together with the building was purchased and the document of purchase was registered on March 28, 1964. The case of the assessee before the revenue authorities and before the <ORG> was that it started procuring material for providing necessary facilities with which the building was to be given on licence. According to the assessee, it was in a position to offer services to licence on and from October 1, 1964. The assessee company, therefore, claimed that expenditure of Rs. 48,004 which was incurred by it between October 1, 1964, and March 31, 1965, was a business expenditure. The assessee-company claimed deduction of the said expenditure and it contended that it was entitled to carry forward the loss shown in its return. The Income-tax Officer rejected the assessee's claim on the ground that it had not started or commenced its business in the year of account. according to the Income-tax Officer, the assessee company commenced business only from May 1, 1965, the day on which it gave on leave and licence part of the said building. Being aggrieved by the decision of the Income tax Officer, the assessee company went in appeal. The Appellate Assistant Commissioner dismissed the appeal. Thereafter, the matter was carried in further appeal to the <ORG> and the <ORG> upheld the orders of the revenue authorities and dismissed the appeal field up by the assessee company. The <ORG> was of the view that on the evidence on record it was not possible to hold that the assessee was ready to carry on its business from October 1, 1964, as claimed. The <ORG> held that it was not possible to say that the assessee was ready to carry on business in the accounting year relevant to the assessment year under reference. Thereafter, at the instance of the assessee, the question set out hereinabove has been referred to us for our opinion.

3. In order to appreciate the contentions, both of the assessee-company and of the revenue authorities, it is necessary to refer to some of the objects of the company as set out in the memorandum of association. The objects of the company are, according to the objects clause (1) (a) :-

"to establish, erect, maintain provide, regulate and let on lease or licence, dwelling houses, buildings office and residential and storage accommodation and all other appurtenances, conveniences, services, privileges, benefits, advantages and amenities such as supply of water, electricity, gas or other motive power, telephone connections, internal telephone teleprinter and communications and facilities, swimming pools, dining and other refreshments rooms, canteens, common roads, passages, drainage, transport and other services, supply of food and victuals, sports, games, recreation centres, libraries, medical and health services, industrial health facilities and services, industrial relations department, storage and safe custody of goods and movables, transport of moneys, valuables and documents, watch and ward, housing, education and recreation, holidays homes and other social amenities and other conveniences."

4. Clause (2) of the objects clause provides as follows :

"To acquire, by purchase, lease, exchange or otherwise, land, buildings and hereditaments of any tenure or description or any estate or interest or rights over or connected with land so situate and to turn the same to account as may seem expedient, and in particular by preparing building sites and by constructing, reconstructing, altering, improving, decorating, furnishing and maintaining offices, flats, houses, factories, warehouses, shops, wharves, buildings, works and conveniences of all kinds and by consolidating or connecting or subdividing properties." Clause (3) provides as follows :

"To manage land, building and other property, whether belongings to the company or not and to collect rents and income and to supply to tenants and occupiers and others all kinds of services, conveniences, privileges, benefits, advantages and amenities, including those enumerated in clause (1), refreshments, attendants, messengers, light, waiting rooms reading rooms, lavatories, toilet, laundry conveniences, electric conveniences, stables, garages and other advantages."

5. Clause (24) of the objects clause provides :

"To purchase, take on lease or in exchange or otherwise acquire, for the purpose of the business of the company, improve, manage, develop, cultivate, work, sell, exchange, surrender, lease, mortgage, charge, convert, turn to account, dispose of and deal with movable and immovable property and rights and privileges of all kings and in particular lands, buildings, easements, mortgages, debentures, produce concessions, options, contracts, patents, licences, machinery, plant, stock-in-trade, business concerns and undertakings and claims, privileges, concessions, and choses in action of all kinds."

6. Thus, from these different parts of the objects clause in the memorandum of association of the assessee company, it clearly emerges that the main object of the company was to acquire immovable properties and to give residential or, in the alternative, business accommodations, either for office purposes or, in the alternative, business accommodation, either for office purposes or for storage purposes with all appurtenant amenities including the amenities of storage, watch and ward facilities, canteens, refreshments rooms, etc. Thus the business of the company is to render services in the shape of providing accommodation with all appurtenant amenities and as a part of these business activities, it has to acquire and make available to its licensees or lessees such residential or business accommodation together with the appurtenant amenities and services.

7. The immovable property, "Retreat", at Shahibag was purchased as stated above by the resolution of the board of directors passed on March 26, 1964, and the actual documents of sale was executed and registered in favour of the assessee company on March 28, 1964. Annexure "J" to the statement of the case is a statement setting out details of the expenses incurred during the accounting period 1964-65. For purpose of easier reference, the expenses are split up into two, namely, expenses incurred prior to October 1, 1964, and expenses during the period October 1, 1964, to March 31, 1965. The aggregate amount of Rs. 48,373.04 which was subsequently reduced to Rs. 48,004 at the stage of the appeal before the Appellate Assistant Commissioner, consists mainly of salaries to gardeners, servants and to others aggregating to Rs. 13,074.92 for electric rewiring. The other items of legal and registration charges, stationery and printing, conveyance charges, etc. do not account for more than Rs. 1,489. The correspondence which has been annexed in the paper book and which is part of the record of the case indicates that between January, 1965, the assessee company was purchasing various types of equipment, like hot-plates, refrigerator, handcart, cycle, electric fittings in the shape of fans and fittings, garden equipment, furniture and fixtures and thus it was acquiring equipment so as to make the services of the different types of gadgets and machinery available to those who chose to occupy the property. The correspondence which has been annexed to the statement of the case also goes to show that correspondence was being carried on for installation of a lift and it was expected that the period of delivery would be fourteen months for the lift from the date of the receipt of the lay out approval. Mr. <NAME> for the assessee company has emphasized that though a licensee started occupying the premises with effect from May 1, 1965, only an amount of Rs. 6,000 was spent for building repairs and all other items of expenditure had been incurred by the company prior to March 31, 1965. The Income Tax Officer, the Appellate Assistant Commissioner and the <ORG> have all of them come to the conclusion that the company could not be said to be ready to commence its business or to be in a state to commence its business prior to May 1, 1965, and certainly not by October 1, 1964.

8. From the materials on record it clearly emerges that a residential bungalow or a part of a residential bungalow together with the lands appurtenant to the said portion was purchased by the assessee company and whatever building repairs, rewiring, installation of lift, etc., was carried on was done by the assessee company for the purpose of converting residential accommodation to business and storage accommodation and to render these premises more serviceable to its prospective licensees or lessees. Even as it stood on the date of the purchase by the assessee company the building was capable of being used for residential accommodation and one of the objects of the company was to let out residential accomodation together with all appurtenant facilities, etc. The question that we have to ask ourselves is, at what could the assessee be said to have completed its preparations for rendering these services available, that being the main object with which it was incorporated and thus be in a position to commence business.

9. As has been pointed out by Bhagwati C. J. in <CITATION> ., in connection with cement factory :

"Loosely, it may be said that the business of the assessee was manufacture and sale of cement. But in determining question arising under fiscal legislation, loose use of expression often tends to confound the real issue. To determine what was the business of the assessee, we must consider what are the activities which constituted such business without being misguided by loose expression of vague and indefinite import."

10. Applying the same test to the present assessee company, loosely it may be said that the business of the assessee company in the case before us was to let out residential or office accommodation together with all appurtenant services, making the garden facilities available, and making the kitchen and canteen facilities available was also part of its business and once the kitchen facilities, garden facilities and others were available and were made available, it can be said that the business activities of the company were started. It is possible that one business activity preceded the other as was the case in <CITATION> what is material for our purposes is as to what are the definite business activities, that is, regular course of activities which the company was required to carry on, for example, watch and ward facilities, facilities by way of providing kitchen staff, other service staff, gardeners, etc., and equipment would be part of the business activity of the company and when the company carried on these activities by engaging the adequate staff, it can be said that the company was carrying on its business activities. Hence, in each such case, what is required to be done is to determine what was the business of the assessee and in particular what are the activities which constituted such business. We must also point out the confusion which is likely to be created by the two concepts, setting up the business for the particular business concern and the commencement of business of the particular assessee.

11. <CITATION> , a Division Bench of <ORG> consisting of <NAME> and <NAME> has held that there is a clear distinction between a person commencing a business and for the purpose of the Indian Income-tax Act it is the setting up of the business and not the commencement of the business that is to be considered. It is only after the business is set up that the previous year of that business commences and any expense incurred prior to the setting up of a business would not be a permissible deduction. When a business is established and is ready to commence business, then it can be said of that business that it is set up; but before it is ready to commence business it is not set up. There may, however, be an interval between the setting up of the business and the commencement of the business and all expenses incurred during that interval would be a permissible deduction.

12. In Commissioner of Wealth tax v. <ORG>, the question before <ORG> was in the context of section 5(1)(xxi) of the Wealth-tax Act, 1957, which provided that it a new and separate unit is set up after the commencement of the Act by a company established with the object of carrying on an industrial undertaking in India, that portion of the net wealth of the company which is employed by it in such unit would be excludible in computing the net wealth of the company. There the question which arose for decision before <ORG> was whether the factory of the assessee could be said to have been set up after the commencement of the Act so as to entitle the assessee to exclusion of that portion of the net wealth which was employed in the factory, and thus the observation of the supreme court regarding the setting up of a concern or a unit have to be read in the context of the Wealth-tax Act and not in the context of the Income-tax Act . The question before the earlier <ORG> in <CITATION> . is not when the busness of the assessee could be said to have commenced and, on that aspect of the case, the decision of the supreme Court is of very little assistance.

13. Mr. <NAME> for the revenue has laid considerable emphasis on the decision of <ORG> of this court in <CITATION> there observed that there is a clear distinction between commencing a business and settings it up. For the purpose of section 3(1)(d) of the Income-tax Act, 1961, what is required to be considered is the setting up of a business. When a business is established and is ready to start business it can be said to be set up. The business must be put into such a shape that it can start functioning as a business or a manufacturing organization. It must be pointed out, as is clear from <ORG> Ltd., that the main question before <ORG> was whether on the finding of the <ORG> that the business of the assessee had been set up in the previous year was unreasonable or contrary to evidence or based on so evidence at all. Therefore, the main question which was considered by <ORG> in that case was the question of appreciation of evidence on record and to find out whether there was evidence to support the conclusion that the business of the assessee had been set up in the previous year or whether the finding of the <ORG> that it had been set up in the previous year was unreasonable or contrary to evidence. The decision in <ORG> Ltd. has been explained by the same division Bench in <CITATION> . in these terms :

"That decision raised the question as to when a certain business carried on by the assessee could be said to have been set up : whether it was set up prior to 31st March, 1966, or subsequent to that date" and the Division Bench proceeded to observe :

"We fail to see how a decision given on one set of facts can bind us to reach a similar decision on a totally different set of facts. There is nothing in this decision which would deflect us from the view of which we are otherwise inclined to take."

<CITATION> ., at page 175 of the report, it is observed :

"It is necessary in order to determine this question to consider what constituted the business of the assessee. Loosely, it may be said that the business of the assessee was manufacture and sale of cement. But in determining questions arising under fiscal legislation, loose use of expression often tends to confound the real issue. To determine what was the business of the assessee, we must consider what are the activities which constituted such business without being misguided by loose expressions of vague and indefinite import. The activities which constituted the business of the assessee were divisible into three categories :

The first category considered of the activity of extraction of limestone by quarrying leased area of land. This activity was necessary for the purpose of acquiring raw material to be utilised in manufacture of cement;

The second category comprised the activity of manufacture of cement by user of the plant and machinery set up for the purpose; and The third category consisted of the activity of selling manufactured cement.

These three activities combined together constituted the business of the assessee. Each one of these activities was as much essential for the purpose of carrying on the business of the assessee as the others. If the assessee ceased to carry on any one of these activities, the business would come to an end. Each one of these activities constituted an integral part of the business of the assessee. Why then can it not be said that the assessee commenced its business when it started the first of these activities ? The activity of quarrying the leased area of land and extracting limestone from it was as much an activity in the course of carrying on the business as the other two activities of manufacture of cement and sale of manufactured cement. The business could not in fact be carried on without this activity. This activity came first in point of time and laid the foundation for the second activity, when completed, laid the foundations for the third activity. The business consisted of a continuous process of these three activities and when the first activity was started with a view to embarking upon the second and the third activities, it clearly amounted to commencement of the business. It may be that the whole business was not set up when the activity of quarrying the leased area of land and extracting limestone was started. That would be set up only when the plant and machinery was installed, the manufacture of cement started and an organization for sale of manufactured cement was established. But, as pointed out above, business is nothing more than a continuous course of activities and all the activities which go to make up the business need not be started simultaneously, in order that the business may commence. The business would commence when the activity which is first in point of time and which must necessarily precede the other activities is started. Take, for example, a case where an assessee engages in the business of a trader which consists of purchasing and selling goods. The assessee must necessarily purchase goods in order to be able to sell them and purchase of goods must, therefore, necessarily precede their sale. Can it be said in such a case that when the assessee purchase goods for the purpose of sale, he does not commence his business ? Is it necessary that he must start the activity of selling goods before he can said to have commenced his business ? We have to consider the question as to when an assessee can be said to have commenced business from a commonsense point of view. We have to ask ourselves the question as to when a business would regard a business as being commenced ? Would he not consider a business as having commenced when an essential activity of that business is started ? The argument of the revenue seeks to confound the commencement of a business with the establishment of the business as a whole and carrying on of all the activities of the business. This confusions the result of a loose description of the business of the assessee as a business of manufacture and sale of cement."

14. Applying the same reasoning to the facts of the case before us the business activities of the assessee-company can also be said to fall into three broad categories. The first business activity is to acquire either by purchase or by any other manner immovable property so that the property can be ultimately given out either on leave and licence basis or on lease to others together with the appurtenant services. The second category of the business activity is to put these buildings accomodation and lands and gardens into proper shape and set up the appurtenant services so that ultimately the property can be given out on leave and licence basis and the third business activity is actually to give out on lease or on leave and licence basis. In the present case the property was acquired on March 28, 1964. Thereafter, for sometime various types of alterations and additional were being carried out and the activity of getting this property ready for its licences that the garden staff and other staff was engaged, pieces of equipment and gadgets, etc., were acquired by purchases or otherwise, lift was installed and ultimately with effect from May 1, 1965, a portion of the accomodation was actually given out on licence basis at the fee of Rs. 27,000 per month Therefore, if we have merely to look at giving out on licence as the business activity of the concern, then in a loose sense it can be said that the company commenced its business with effect from May 1, 1965, but that is not the only business activity of the company. The business activity of the company consists of three broad categories which we have pointed out above and the objects clause of the memorandum of association justifies such a conclusion. Therefore, when the company actually let out on leave and licence basis a portion of these particular premises with effect from May 1, 1965, the earlier preceding part of its activities were also part of the business activities of the company, for example, engaging the garden staff, kitchen staff or other staff, buying the equipment and getting the equipment ready, making the staff familiar with the working of that equipment etc. They are all part of the business activities of the company so that thing would be in shape for use of the licensee or lessee, as the case may be. Under these circumstances following the principle lad down by <ORG> of this court in <CITATION> ., it must be held that it is only in a loose sense that the business of the company can be said to be to give out on leave and licence basis residential or office accommodation together with the appurtenant services. The business of the company was of a three-fold category as mentioned above after a proper analysis and once that analysis and is made, it is clear that from October 1, 1964, the company was carrying on the second category of is business, namely, the business activity of making the residential accommodation with all the appurtenant services available to the intended lessees or licences. We find from the order of the <ORG> that though the decision of <ORG> in <CITATION> was cited, the <ORG> did not think that it had any application to the facts of the case. We are unable to see how the principles laid down in <ORG> case cannot be said to have any bearing on the facts of the present case. In our opinion, the desirability of avoiding thinking in a loose sense and clearly analysing the nature of the business activity of the assessee was essential for the purpose of arriving at the correct decision in this case. Under the circumstances, the <ORG>, in our opinion has not applied the correct tests and has consequently arrived at an erroneous conclusion regarding the commencement of the business activity of the assessee-company.

15. Under these circumstances it is clear that any rate from October 1, 1964, the assessee can be said to have commenced its business activity of the second category and, therefore, the assessee-company had commenced business and all expenses incurred by the assessee-company between October 1, 1964, and March 31, 1965, namely, the amount of Rs. 48,004 can be said to have been incurred by it as business expenditure. Under these circumstances, on the facts and in the circumstance of the case, this expenditure of Rs. 48,004 incurred between October 1, 1964, and March 31, 1965, should have been allowed as business expenditure. We, therefore, answer the question referred to us in the affirmative and in favour of the assessee. The Commissioner will pay the costs of this reference to the assessee.


JUDGMENT

1. This appeal is directed against an order of an additional District Judge of Muzaffarpur who dismissed an appeal preferred by the judgment-debtor against the order of the Subordinate Judge dismissing his application under Section 77 of the Civil Procedure Code. The respondent filed a suit against the appellant and other members of his family to recover a certain amount on the basis of a promissory note executed by the judgment debtor appellant. The suit was dismissed for default on 3-9-57. An application for restoration of the suit was filed by the plaintiff respondent under Order 9, Rule 9 of the Code of Civil Procedure. In pursuance of a compromise petition filed by the parties, a consent order was passed on 17-9-57 restoring the suit and decreeing the suit for Rs. 7586 and odd against two of the defendants, namely, defendants 3 and 4. Defendant No. 3 was the appellant and his son was defendant No. 4. The execution proceeding, out of which this appeal arises, was started by the respondent decree-holder against judgment debtor No. 1, that is, defendant' No. 3 who is the appellant, only, with a prayer for realisation of the decretal dues by arrest and detention in the civil prison. After the service of notice under Order 21, rule 22 of the Code, the appellant filed the aforesaid application under Section 47 asserting that the decree-holder's dues could not be realised from him by arrest and detention in civil prison as the conditions laid down in the proviso to Section 51 of the Code were not fulfilled. The decree-holder respondent examined himself in support of his contention that the appellant did not pay the decretal dues in spite of the fact that he had means to pay the same since the passing of the decree, while the appellant examined himself in support of his application under Section 47 of the Code, the other two witnesses being formal. Both the courts below accepted the case of the decree-holder and consequently the application under Section 47 was dismissed.

2. Mr. <NAME>, appearing on behalf of the judgment-debtor appellant drew our attention to Rules 37 and 40 of Order 21 read with Section 51 of the Civil Procedure Code. The object of these provisions is to afford protection to honest debtors who are incapable of paying their dues for reasons beyond their control and who have not committed any act of bad faith. The test is whether the debtor is unwilling to pay in spite of his means to pay. The circumstances which justify an order for arrest are contained in Section 51 of the Code, which provides for the different modes of execution of a decree and lays down that, where the decree is for the payment of money, execution by detention in prison shall not be ordered, unless, after giving the judgment-debtor an opportunity of showing cause why he should not be committed to prison, the court for reasons recorded in writing is satisfied.

"(a) that the judgment-debtor, with the object or effect of obstructing or delaying with the execution of the Decree.

(i) is likely to abscond or leave the local limits of the jurisdiction of the <ORG>, or

(ii) has, after the institution of the suit in which the decree was passed, dishonestly transferred, concealed, or removed any part of his property, or committed any other act of bad faith in relation to his property, or

(b) that the judgment-debtor has, or has had since the date of the decree the means to pay the amount of the decree or some substantial part thereof and refuses or neglects or has refused or neglected to pay the same or,

(c) that the decree is for a sum for which the judgment-debtor was bound in a fiduciary capacity to account".

Clause (c) does not apply to the instant case nor Sub-clause (i) of Clause (a). It is, therefore, to be seen whether the judgment-debtor, with the object of obstructing or delaying execution of the decree has, since the passing of the decree, dishonestly transferred, concealed or removed any part of the property or committed any act of bad faith, or having had means to pay the decree has refused or neglected to pay the same. In the instant case, having gone through the evidence of the two witnesses examined on behalf of each party, we do not find any of the circumstances mentioned in any of these clauses. The decree-holder stated that the judgment-debtor was still joint with his brothers and father and they had 30 bighas of land inclusive of <NAME> and recently purchased lands; but no document was filed support of the same. In cross-examination the decree-holder expressed his ignorance as to when the recently purchased land had been acquired. He did not see the sale deeds under which the land was said to have been purchased by the judgment-debtor and others of his family, nor had he seen any of the sale deeds, nor was he present at the time of the execution or registration of any of the sale deeds. He could not say the boundaries of any land belonging to the judgment-debtor and other members of his family He had not even filed any petition for taking copy of the survey proceedings He did not even make any enquiry from the landlord's office or seen any paper relating to the land of the judgment-debtor and other members of his family. On the other hand, the appellant-judgment debtor said that he was separate from his father and other members of his family since 15 or 16 years and that in his share he had got only 16 kathas of land He denied having any property in the name of his wife and said that he did not conceal any property The learned Addl. District Judge relied on certain statements in his deposition and reproduced the same in his judgment which reads thus :-

"No land of mine has been recorded in the recent survey going on in the village. I do not know in whose name that 16 kathas of land has been recorded in the current survey operation. I do not know if lands are recorded in khata No. 220 in my name under touzi No. 13564. I do not know if lands in extensive area have been recorded under khata 404 of Touzi No. 13569 in the current survey. I do not know if lands are recorded in the names of my brothers. I do not know what area of lands are owned and possessed by my father. I do not remember the calendar year and month when I had separated from my father and brother. I do not know how much land went to my father and brother on partition. I do not know what rental is payable for my land".

The learned Judge then observed that one could not help getting the impression that the appellant, by pretending ignorance, has tried deliberately to suppress the facts and his assets from the <ORG> and that the proviso to Section 51 CPC was not enacted to give protection to such a judgment debtor. This inference is not justified, because the onus to bring a case within one or more clauses of the proviso to Section 51 C.P.C. is on the decree-holder who wants the judgment-debtor to be arrested and detained in civil prison. The learned Judge relied on an observation in the case of <CITATION> ., AIR 1955 Mad 409, which reads as follows:--

"In my view it is perfectly open to a court to apply a judicial corrective to the extreme lengths to which the onus which Act 9 of 1935 casts on decree-holders is sought to be taken by adopting the view that it is perfectly open to an executing court on all the material placed before it to come to an inference as regards the statutory findings required by provisos (a) (2) and (b) of Section 51. Civil P. C. It is also no doubt true that the onus rests on the creditor to prove the debtor's ability to pay, and mere disbelief of the latter's statement that he had no means to pay is not sufficient. Where, however, there is sufficient material shown to warrant an inference, as in the present case, that the judgment debtor has actually been in the possession of substantial assets a few months prior to suit, an inference is perfectly justifiable that he has since the institution of the suit dishonestly concealed them and, furthermore, that he has since the date of the decree means to pay a substantial portion of it from assets he is concealing from the <ORG>."

Act 9 of 1935 referred to in this quotation appears to be a printing error for Act 21 of 1936. Learned Counsel for the appellant, however, contended, on the observation of their Lordships, that it is open to apply a judicial corrective to the extreme length to which the onus is cast on the decree-holder. In our opinion, the court has to interpret the law as it is and it cannot minimise the rigor of the onus. It is, of course, true that the court has to consider all the materials placed before it, in order to decide whether the onus has been discharged by the decree holder. In the Madras case, referred to above, there were sufficient materials which justified the inference that the decree-holder had discharged that onus and the judgment-debtor was liable to be arrested and detained in civil prison. In the instant case, however, there is no material at all on the basis of which it can be said that the decree-holder has discharged the onus. Though he was in a position to produce documents and witnesses in support of the general statement that the judgment-debtor and the other members of his family were still joint and that they had 30 bighas of land, he did not choose to produce the same. This general statement of his was rebutted by the evidence of the judgment-debtor. From the fact that by the compromise the plaintiff, who is now the decree-holder, agreed to forgo his claim against all the members of the family of the judgment-debtor except himself and his son, because they had taken the plea in the suit that the judgment-debtor and his son had separated from the other members long before, the reasonable inference is that the alleged separation had taken place some time before the compromise, even though it, might not have taken place 15 or 16 years back, as stated by the judgment-debtor in his evidence in the instant case. Further, the mere fact, that the judgment-debtor had not produced his khatians or any document is not sufficient to draw the inference that he had been concealing any property, particularly when he definitely stated in his examination in chief that he had not concealed any property.

So far as the question of onus is concerned, it is enough to refer to a Bench decision of <ORG>, in the case of <CITATION> 1955 All 402, wherein it was held that, whether the judgment debtor files any written objection or not after the service of notice on him, it is for the decree-holder to lead his evidence in the presence of the judgment debtor in support of his application and should have reference to the grounds which, according to the decree-holder, would justify the arrest of the judgment-debtor and and it will be only when the decree-holder has led prima facie evidence in support of his application that the judgment-debtor has to be given an opportunity of showing cause why he should not be committed to the civil prison. Substantially, the same view was taken by Mr. Justice <NAME> in the case of <NAME> v. Municipal Commissioner. Muzaffarpur Municipality, 1964 BLJR 617 His Lordship held that it would not be a sufficient compliance with Section 51, if the decree-holder merely says vaguely that the judgment-debtor has movable and immovable properties from which he can pay the decretal amount.

3. From a persual of the judgment of the courts below, it is manifest that the finding that the decree-holder had been able to bring the case within the relevant clauses of the proviso to Section 51 of the Code of Civil Procedure is based on no evidence, and, therefore, we are entitled to take a different view in this case. In view of the foregoing discussions, we hold that there is absolutely no material on the record in the instant case to justify the arrest and detention of the judgment debtor appellant in civil prison.

4. The next question is whether the judgment-debtor had, by virtue of the contents of the compromise petition, waived the privilege conferred on him by the proviso to Section 51 of the Civil Procedure Code. The learned Judge has referred to Clause (d) of the compromice petition in which it was stated that on the failure of any of the instalments on the due date the entire remaining decretal amount would become payable at once and would be realisable from "the person and properties of defendants Nos. 3 and 4". It was argued by Mr. <NAME> on behalf of the appellant that the portion of Clause (d) of the compromise petition stated above does not mean that defendants 3 and 4 of the suit meant to forego this privilege. What they really meant was that in case of default, the decree-holder would be entitled to realise the dues from their person and properties in accordance with law. It may be mentioned here that defendant No. 4 is a minor son of defendant No. 3 who is the appellant in this court. Mr. <NAME>, on the other hand, contended that in Clause (d) of the compromise the appellant did forgo his privilege; but we are unable to agree with him and we accept the contention of Mr. <NAME>.

5. In the alternative, Mr. <NAME> submitted that the privilege conferred by the proviso to Section 51 of the Code of Civil Procedure on the judgment debtor cannot be waived at all. It is well settled that every one has the right to waive and to agree to waive the advantage of a law or rule made solely for the benefit and protection of the individual in his private capacity, which may be dispensed with, without Infringing any public right or public policy: See Maxwell on Interpretation of Statutes, Eleventh Edition, page 376. In the case of <CITATION> , AIR 1959 SC 149, it was held that, where a right or privilege guaranteed by law rests in the individual and is primarily intended for his benefit and does not infringe on the right of others, It can be waived, provided such waiver is not forbidden by law and does not contravene public policy or public morale. It is apparent that waiver of the privilege conferred by the proviso to Section 51 of the Code does infringe the public policy, because by inserting this privilege for the judgment-

debtor in Section 51 of the Act of 1908, the <ORG> was guided by public policy, namely, that a debtor should not be put in the prison, when he is unable to pay his debt for reasons beyond his control.

Mr. <NAME>, however, submitted that some of the privileges conferred on the judgment-debtor by Section 60 of the Civil Procedure Code could be waived and, therefore, the privilege conferred by the proviso to Section 51 of the Code should also be waived. He has, like the court below, relied on four decisions, namely, <CITATION> , AIR 1950 Mad 284, <NAME> v. <NAME>, AIR 1927 Pat 233, <CITATION> , 24 Cal WN 575 = (AIR 1920 Cal 424) and <CITATION> , AIR 1946 All 432. In the Madras case, which was in respect of the Madras Buildings (Lease, Rent and Control) Act , 1946, there was a document of lease which expressly provided that, if the rent remained unpaid for two tenancy months after it became payable, the landlord would be entitled to re-entry upon the demised premises. Section 7(2)(i) of the Act, however, provided that the landlord may be entitled to apply for eviction even when there was default, in payment of a month's rent. The question raised was whether in a document of lease the landlord could make a contract for forgoing his privilege of going to court for eviction of the tenant on the letter's default in making the payment of a month's rent. It was held by their Lordships that such a contract was quite valid, as the privilege given to the landlord by section 7 of the Act could be waived, if such a waiver would not infringe any public right or public policy. It is obvious that the provision regarding the eviction on default of the payment of the rent for a month does not involve public policy.

The other three decisions deal with the waiver by the judgment-debtor in respect of his privilege under Section 60(1)(c) that his house could not be attached in execution of a money decree; and it was held by their Lordships that such a waiver was permissible. In the Calcutta case there were other properties also besides the house, but they were also not attachable in law. Sub-section (1) of Section 60 contains a list of properties which are liable to attachment and sale in execution of a decree and then there is a proviso to the effect that, in spite of the contents of that list, some properties shall not be liable to such attachment or sale. According to Clause (c) of the proviso, houses and other buildings belonging to an agriculturist and occupied by him cannot be attached. It is, therefore, apparent that it is for the judgment debtor to claim this privilege by proving that he is an agriculturist and occupies the house. It is, therefore, clear that the judgment-debtor can forgo such a claim. On the other hand, the proviso to Section 51 enjoins on the court itself not to order arrest and detention of the judgment debtor in prison unless the court, for reasons recorded in writing, is satisfied that the materials on the record of the case come within any of the clauses of the proviso. In other words, it is a mandate to the court by the <ORG> as a matter of public policy with a view to implement its object by protecting debtors who cannot pay their debts for reasons beyond their control. Irrespective of the fact whether the judgment debtor appears or not, the court has to satisfy itself, before issuing any warrant of arrest against the judgment debtor, whether the materials on the record bring the case within any of the clauses of the proviso to Section 51 of the Code." Proviso to Section 60 of the Code, however, shows that it is for the judgment debtor to place materials before the court to bring his case within the relevant clauses. The distinction between the two therefore, is obvious.

In this connection, Section 3 of the Limitation Act may be seen. This section lays down that, subject to the provisions contained in Sections 4 to 25 , every suit instituted, appeal preferred, and application made after the prescribed period shall be dismissed, although limitation has not been set up as a defence. Here too the <ORG> has given a mandate to the court to dismiss suits, appeals or applications filed after the prescribed period of limitation even though the other party does not take up the plea of limitation. It is by now well settled that the court must dismiss a suit as barred by limitation even though the defendant does not raise such a plea or press the same. In view of the foregoing discussions, we are unable to agree with the learned Additional District Judge and hold that the judgment-debtor could not waive the privilege conferred on him by Section 51 of the Code of Civil Procedure.

6. In the result, the appeal is allowed and the orders of the courts below are set aside. In the circumstances of the case, the parties will bear their own costs through out.


<NAME>, J.

1. These writ petitions coming on for hearing on this day upon perusing the petition and the respective affidavits filed in support thereof the order of <ORG>, dated 17.3.78 and made herein, and the counter and reply affidavits filed herein and the records relating to the order in 1. Order No. 1967/77 dt. 18.5.77 and order No. 970/77 dt. 29.4.77; 2. Order dt. 2.9.76 in CV/18A/ 24-76 (Appeal No. 1585/76) and dt. 30.6.75. in CV/18A/14/74 (Appeal 118/75) 3. Order dt. 6.4.75 in C.No. V/I8A/30-2-75 and dt. 4.5.74 in C.No. V/I8A/30-5-8-73 respectively on the file of the respondents herein and comprised in the return of the said respondents 1 to 3 herein in both the petition to the writ made by <ORG>, and upon hearing the arguments of Mr. <NAME> for M/s. <NAME>, <NAME> and <NAME> Advocates for the petitioner in both the cases, and of Mr. <NAME> Additional <ORG> standing Counsel on behalf of the respondents, the Court made the following order:

2. Both these writ petitions can be dealt with under a common order. The only question that arises for consideration in these cases is whether it will be open to <ORG> authorities to indulge in what is called best of judgment assessment proceedings. In order to highlight this question, the following facts require to be noted:

3. The petitioner in W.P. No. 868 of 1978 is a registered company registered under the Companies Act , 1956 and the petitioner is engaged in the manufacture of cotton yarn. It is assessed to <ORG> in respect of the yarn manufactured by it. Under item 18-A of the First Schedule to the <ORG>s and Salt Act , 1944, hereinafter referred to as 'the Act', excise duty is levied on cotton twist, yam and thread of all sorts, sized or unsized, in all forms including <ORG>, hanks, cops, cones etc. Under the Act and the Rules framed thereunder the duty exisable on cotton yarn of less than NF 51 counts is "nil"' and the rate of duty for cotton yarn of 51 to 69 NF counts is 65 paise per kilogram. The petitioner manufactured cotton yarn of NF 50.8 counts and therefore the petitioner is not liable to pay any duty on the yarn so manufactured. A test was conducted on 31.1.1975 and the result of the test was that 908 kgs. of cotton yarn manufactured on that day was found to be 55.8 NF. Concerning this there were checks and re-checks as a result of which the lowest count at which it could be placed was 53.9. NF. Under these circumstances, a show cause notice on 26.6.1975 came to be issued as under:

Whereas it appears that <ORG>, Raja-gambeeram, Manamdurai, have contravened Rule 10(1) read with Rule 173J of Central Excise Rules, 1944, inasmuch as they hive cleared a quantity of 908 kgs. of cotton yarn plain reel by declaring them as counts 50.8 N.F. under payment of Nil duty, leviable thereon at Rs. 0.65 per kg. and whereas the sample of such cotton yarn taken on 30.12.74 and sent to the Chemical Examiner, <ORG>, Madras, was determined by the chemical Examinar vide his letter L.CX/18A/S/75/86/CX. 10677 dated 31.1.75. Therefore, this quantity of 908 kgs. of cotton yarn cleared attracts higher rate of duty at the rate of Rs. 0.65 per kg. as the count determined on the samples of cotton yarn falls in the slab 51 M.F. or more but less than 69 N.F. and the differential duty on the above quantity works out to Rs. 590.20.

Reliance is placed on the chemical Examiner's report under L.CX/18A/S/ 75/86/CX. 10677 dated 31.1.75. (copy already supplied). The said M/s. Varadalakshmi Mills, Manamadurai are hereby required to show cause to the Assistant Collector of Central, Excise, No. 76 Pechiamman Padithurai Madurai-1, why the differential duty of Rs. 590.20 due on the 908 kgs. of cotton yarn cleared of payment of Nil duty than what actually is due should not be demanded from them under Rule 10(2) of Central Excise Rules, 1944, and why the differential duty at the appropriate rate due on 39,770.40 kgs. of cotton yarn left uncleared should not be demanded under Rule 10(2) of the Central Excise Rules, 1944, read with Rule 173J of Central Excise Rules, 1944.

2. M/s. Varadalakshmi Mills, Manamadurai are further directed to produce at the time of showing cause all the evidence upon which, they intend to rely in support of their defence.

3. M/s. Varadalakshmi Mills, Manamadurai should also indicate in the written explanation whether they wish to be heard in person before the case is adjudicated. If no mention is made about this in their written reply, it shall be construed that they to do not desire to be heard in person.

4. If no cause is shown against the action proposed to be taken within ten days of receipt of this notice or they do not appear before the adjudicating officer when the case is posted for hearing the case will be decided ex-parte.

5. The Petitioner preferred his objections and ultimately an order came to be passed after personal hearing that on the yarn declared by the <ORG> as of NF. 50.8 but found on final test of NF 51 or more but less than NF 69 and totalling to 25081.67 kgs. in quantity as above, the petitioner <ORG> was called upon to pay the appropriate duty amount on the said quantity. Aggrieved against this order, the matter was taken up to the Appellate Collector. The Appellate Collector did not see any justification to interfere. The revision to <ORG> also failed, It is in these circumstance these writ petitions have been preferred to quash the orders of assessment.

6. The one and only contention urged by Mr; K.K. Venugopal, the learned Counsel for the petitioners is that there is no procedure for best of judgment assessment under the Act, especially when the petitioners have resorted to the self-removal procedure as contemplated under Rule 173-C. Consequently in so far as neither the Act nor the Rules thereunder did provide for best of Judgment assessment, the rulings reported in <CITATION> and <ORG> v. D.R.O. (1973) I M.L.J. 99 will clearly come to the aid of the petitioners. Then again as to what is best of judgment assessment can be seen from P. 862 of <NAME> and <NAME>'s : the Law and Practice of Income Tax (Seventh Edition vol. I wherein reference is made to <CITATION> 5 I.T.R. 170 and in this case from a mere sample test it can never be contended that the goods manufactured by the petitioners exceeded over and above 51. N.F. It was the duty of the officer concerned or the authority concerned to have taken sample test every now and then and required the petitioners to pay the necessary excise duty. A mere sample taken on one occasion cannot enable him to levy excise duty which would obviously mean that where there are materials so as to enable the authorities to levy, those materials are supplemented by means of best of judgment. This is precisely what is not possible in the circumstances of the case.

6. Mr. <NAME>, the learned Counsel for the respondents, submits that merely because the petitioners have resorted to self-removal procedure as contemplated under Rule 173-C that cannot tantamount to an assessment. Section 3 is the charging section. Every case listed in Schedule I when manufactured is subject to excise duty. In other words it is the incidence of manufacture that attracts the levy. If the petitioners were earnest nothing prevented them from showing that they would be entitled to the exemption granted under the notification or a lower rate shown in the notification. He cannot on the assumption that he has manufactured a lesser count resort to R-173-C self-removal procedure and expect the authorities to remain silent. The burden is on the petitioners to prove that they have manufactured yarn of a particular count. In the absence of it, having regard to the random sample test conducted by the department, it is always open to them to hold that the petitioners have produced goods belonging to the particular description. The rulings either under the Income-tax Act or the Sales Tax Act , namely <CITATION> , <ORG> and <ORG> v. D.R.O. 1973 I M.L.J. 99 can have no application whatever, because the law is that the person who claims exemption or seeks lower levy will have to prove the same and it is not for the department to go on conducting test and ultimately conclude as to what exactly is the count of the goods. That certainly is not the purport or the intention of the Act.

7. It is well-settled under law that it is the incidence of the manufacture that attracts excise duty. Section 3 is the charging section. So long as there is manufacture of those goods specified in Schedule 1, on account of such manufacture the goods become subject to excise duty. With this background let me approach the question to be decided, namely whether the assessment in this case partakes the character of best of judgment. It is not denied before me that cotton yarn of the varieties mentioned under tariff item 18-A of the First Schedule is subject to excise duty. Different rates are prescribed for different counts and in the case of count below NF 51 it is not subject to excise duty. If the count is between NF 51 to NF 69, it would be 65 ps. per kg. On the test conducted as seen from the show cause notice 908 kgs. manufactured on a particular day, namely 31.1.1975, was found to be of NF 55.8. There were tests and re-tests as a result of which ultimately the count came to be reduced to 53.9 N.F. The point to be noticed here is that if it is the case of the petitioners that they are entitled to exemption, since the duty for manufacture of yarn of less than 51 NF counts was 'nil', it is their duty to prove so as to enable the authorities to hold that it is eligible for exemption. In other words, the onus lies on the petitioners to prove that they qualify for exemption. It is also to be remembered in this connection that straightaway there cannot be a presumption in favour of an exemption. Nor can exemption be claimed as of right. Therefore one sample test would be enough to condemn the petitioner, when no proof whatsoever was forthcoming. This will be so even if the petitioner claims a lower excise duty. As to under what category the goods manufactured by the petitioners come is a matter of proof by them and not for the authorities to determine by taking samples. This will be so albeit there being a provision to make rules under Section 37(xiv) for taking samples and in fact the rules have been made to enable the authorities to take samples. But that is for the purpose of verification. On that score it cannot be said that the onus lies upon the department. The person who seeks exemption or says that the goods answer a particular description will have to let in proof. In the absence of such a proof, the department is well entitled to treat as it likes.

8. The resort to self-removal procedure under Rule 173-C cannot advance the case of the petitioners any further. It is well settled that such a procedure is not an assessment. Therefore, the contention urged that the assessment is based on best of judgment is untenable. The ruling reported in <CITATION> , is a case which arose under General Sales Tax Act . There the considerations are totally different. Likewise, <ORG> v. D.R.O. 1973 J M.L.J. 99 was a case which arose under the Medicinal and Toilet Preparations (Excise Duties) Act. There, the learned Judges held referring to the decision above cited that in so far as it does not provide for recovery of escaped assessment or provide residuary powers for recovery of sums due to Government the demand in pursuance of the Rules is unsustainable. But, as I observed above, there is no question of any best of judgment assessment arising here. The petitioners having failed to let in the necessary materials so as to enable them to qualify either for exemption or for lower rate of excise duty, cannot be heard to say that the department will have to conduct periodic tests and find out what the petitioners say is true or not. I do not think either the purport or the intent of the Central Excise Act is such. For these reasons, the writ petitions will stand dismissed. However, there will be no order as to costs.


PETITIONER: EARABHADRAPPA ALIAS KRISHNAPPA Vs. RESPONDENT: STATE OF KARNATAKA DATE OF JUDGMENT11/03/1983 BENCH: SEN, A.P. (J) BENCH: SEN, A.P. (J) VENKATARAMIAH, E.S. (J) CITATION: 1983 AIR 446 1983 SCR (2) 552 1983 SCC (2) 330 1983 SCALE (1)254 CITATOR INFO : R 1985 SC1224 (4) R 1988 SC1275 (20) R 1989 SC 79 (10) R 1989 SC1890 (31) R 1991 SC 917 (8) F 1992 SC2045 (20) ACT: A. Evidence-Circumstantial evidence-Nature of proof required for conclusion of guilt and conviction. B. Indian Evidence Act-Section 27, conditions prerequisite, therefor- 'Fact' and "Fact discovered" explained. C. Presumption under section 114 of the Indian Evidence Act-Nature of presumption under illustration (a) explained. D. Sentencing and duty of the <ORG> in appropriate case of conviction- Interference with sentence in criminal appeal by the Supreme <ORG>-Binding nature of Article 141 of the Constitution. HEADNOTE: The appellant, <NAME> hailing from village Mattakur, under the false name of <NAME> and with a false address obtained employment of service as a domestic servant under PW 3 <NAME>, the husband of the deceased <NAME>, who was found murdered by strangulation on the night between March 21-22, 1979 after having been robbed of her jewellery, clothes, etc. Based on circumstantial evidence, the appellant, who was found missing right from the early hours of the 22nd March, 1979 and who was apprehended a year later on March 29, 1980, was charged with and convicted for the offences under Sections 302 , 392  respectively. He was sentenced to undergo rigorous imprisonment for a term of 10 years under section 392  and to death under Section 302 . In appeal, the High <ORG> confirmed both the conviction and sentences imposed upon him. Hence the appeal by special leave. Dismissing the appeal and modifying the sentence, the <ORG>. ^ HELD: 1.1 To sustain a charge under s. 302 of the Indian Penal Code,the mere fact that the accused made a statement leading to the discovery of the stolen articles under s. 27 of the Evidence Act, by itself is not sufficient. There must be something more to connect the accused with the commission of the offence. The circumstances relied upon by the prosecution in the instant case led to no other inference than that of guilt of the accused as murder and robbery are proved to have been integral parts of one and the same transaction and therefore the presumption arising under illustration (a) to s.-114 of the Evidence Act is that not only the accused committed the murder of the deceased but also committed robbery of her gold ornaments which formed part of the same transaction. The prosecution had led sufficient evidence to connect the accused with the commission of the crime. [561 G-H] 553 1.2 For the applicability of s. 27 of the Evidence Act, two conditions are pre-requisite, viz: (1) Information must be such as has caused discovery of the fact, and (2) The information must "relate distinctly" to the fact discovered." Under s. 27 , only so much of the information as distinctly relates to the facts really thereby discovered is admissible. The word "fact" means some concrete or material fact to which the information directly relates. [549A, 550B- <CITATION> , LR  IA 65; <CITATION> ,  2 S.C.R.332, referred to. 2.1 The nature of presumption under illustration (a) to s. 114 of the Evidence Act from recent and unexplained possession must depend upon the nature of the evidence adduced. As to the meaning of "recent possession", it was observed: No fixed time limit can be laid down to determine whether possession is recent or otherwise and each case must be judged on its own facts. The question as to what amounts to recent possession sufficient to justify the presumption of guilt varies according as the stolen article is or is not calculated to pass readily from hand to hand. The fact that a period of one year had elapsed between the commission of the crime and the recovery of the ornaments on a statement made by the accused leading to their discovery under s. 27 of the Evidence Act immediately upon his being apprehended by the police, cannot be said to be too long particularly when the accused had been absconding during that period and the stolen articles were such as were not likely to pass readily from hand to hand. There was no lapse of time between the date of his arrest and the recovery of the stolen property. The accused had no satisfactory explanation to offer for his possession thereof. On the contrary, he denied that the stolen property was recovered by him. The false denial by itself is an incriminating circumstance. [56 H, 562 A-E] 3. In <NAME> State of Punjab,  2 SCC 684, the Supreme <ORG>, moved by compassionate sentiments of human feelings has ruled that sentence of death should not be passed except in the "rarest of rare" cases. The result now is that capital punishment is seldom employed even though it may be a crime against the society and the brutality of the crime shocks judicial conscience. The test laid down in <NAME> case is unfortunately not fulfilled in the instant case. That being so, the <ORG> is constrained to commute the sentence of death passed on the appellant into one for imprisonment for life. [562 F-H, 563 A] Observation of Dissent [A sentence or pattern of sentence which fails to take due account of the gravity of the offence can seriously undermine respect for law. It is the duty of the court to impose a proper punishment depending upon the degree of criminality and desirability to impose such punishment as a measure of social necessity as a means of deterring other potential offenders. Failure to impose death sentence in such grave cases where it is a crime against society- particularly in cases of murders committed with extreme brutality will bring to naught the sentence of death provided under Section 302 of the Penal Code.] [563 A-B] 554 JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 669 of 1982.

Appeal by Special leave from the judgment and order dated the 29th October, 1981 of <ORG> in Crl. Appeal No. 241 of 1981 B.D. <NAME> (A.C) for the Appellant.

<NAME> and <NAME> for the Respondent. The Judgment of the Court was delivered by SEN, <NAME> @ <NAME> is under sentence of death and this appeal by special leave is directed against the judgment of <ORG> dated October 29, 1981. The Sessions Judge, Kolar by his judgment dated March 21, 1981 convicted the appellant under s. 302 of the Indian Penal Code for having committed the murder of one Smt. <NAME>, wife of <NAME> and sentenced him to death. On reference, <ORG> has upheld the conviction of the appellant under s. 302 of the Indian Penal Code and confirmed the death sentence passed on him. The appellant has also been convicted by the learned Sessions Judge under s. 302 of the Indian Penal Code for having robbed the deceased of her gold ornaments and clothes and sentenced him to undergo rigorous imprisonment for a term of 10 years.

Upon the evidence presented at the trial it transpired that on the night between March 21 and 22, 1979 the deceased Smt. <NAME> was throttled to death at her house in village Mallur and relieved of her gold ornaments. On the night in question, the deceased Smt. <NAME> as usual served dinner to the family members. After taking his meals, <NAME> went upstairs to his bed-room, her mother-in-law <NAME> went to the '<ORG>' to keep a vigil while the deceased slept in the hall adjoining the kitchen and her son <NAME> slept in the courtyard of the house. The appellant who had recently been employed as a servant by <NAME> slept in a room on the ground floor where the silk cocoons used to be reared and kept. On the 22nd morning at about 6 a.m when P.W.4 went to wake up his mother he found that she was lying dead and he therefore went upstairs and called his father <NAME>. They saw that the deceased had been strangulated to death and relieved of her ornament. Her gold mangalsutra and gold-rope chain were missing so also the gold nose-ring and gold ear-rings. On the right side of the bed was lying the screw of the missing gold nose-ring. There was also lying a towel (M.O. 1) which had been given by <NAME> to the appellant for his use, and apparently the deceased has been strangulated with the towel. The iron safe and almirah kept in the hall were found open and bunch of keys which the deceased carried with her was found missing. All the jewellery and cash of Rs. 1700/- kept in the iron safe and six silk sarees kept in the almirah were also found missing. There was a search made for the appellant but he was not to be found either in the house or in the village and he had therefore absconded with the jewellery and valuables.

Intelligence report received by <NAME> <NAME>, Circle Inspector of Police who had taken over the investigation from P.W. 25 Sreenivasa Rao, Station officer Shidalaghatta on 28 March 1980 revealed that the appellant was seen moving in Hosakote and Anekal Taluks and accordingly <NAME> along with his staff searched for the appellant in both the taluks but he could not be found, and therefore he encamped at Anekal on that day. On March 29, 1980 he got definite information that the appellant was seen in village Hosahally in Hosakote Taluk and was able to apprehend him at that village at about 2 p,m. On being taken into custody, the appellant made a statement Ex. P-35 leading to the discovery of the ornaments and clothes belonging to the deceased from several places. He first led <NAME> to the house of his sister P.W. 8 Smt. Yallamma in village Gudisagarapelly leading to the recovery of four silk sarees (M. Os. 11 to 14) which were seized under seizure memo Ex. P-4. From that place, he took him to village Mattakur, from where he hails, to the house of one <NAME> leading to the recovery of the screw of the missing gold nose-ring (M.O. 5) which was seized under seizure memo Ex. P-7. Thereafter, he took <NAME> to the house of <NAME> leading to the recovery of a silk saree (M.O.15) which was seized under seizure memo Ex. P-5 and then to the house of P.W. 13 Narayanareddy leading to the recovery of the gold chain (M.O. 6) and a pair of gold bangles (M.OS. 7 & 8) which were seized under seizure memo Ex. P-6. The very day he took <NAME> to the house of P.W. 15 Chinnamma in Village Sollepura leading to the recovery of a silk saree (M.O.10) which was seized under seizure memo Ex. P-8. On the next day i.e. on the 30th the appellant took <NAME> to the house of P.W. 21 Ramachari in village Hosur who led them to the shop of P.W. 22 Palaniyachar leading to the recovery of a pair of gold earrings (M.Os. 3 & 4) and a gold ingot (M.O.

9) which were seized under seizure memo Ex. P-15. The seized articles have all been identified by <NAME> and his mother P.W. 2 Smt. Bayamma and son P.W. 4. G.M. Prakash as belonging to the deceased.

The appellant abjured his guilt and denied the commission of the alleged offence stating that he had been falsely implicated. He also denied that he ever made the statement Ex. P-35 or that the stolen articles were recovered as a direct consequence to such statement.

In cases in which the evidence is purely of a circumstantial nature, the facts and circumstances from which the conclusion of guilt is sought to be drawn must be fully established beyond any reasonable doubt and the fact and circumstances should not only be consistent with the guilt of the accused but they must be in their effect as to be entirely incompatible with the innocence of the accused and must exclude every reasonable hypothesis consistent with his innocence. The chain of circumstances brought out by the prosecution are these:

1. The appellant who hails from village Mattakur was a stranger to village Mallur ostensibly in search of employment. He falsely stated his name to be <NAME> and gave a wrong address stating that he belonged to a nearby village. The securing of employment by giving out false name and wrong address shows that he had some oblique motive in his mind. He obtained employment with p.w. 3 and gained his confidence and was allowed to sleep in a room on the ground floor where the silk cocoons were kept. He thus became familiar with the places where the inmates of the house used to sleep and where the jewellery, cash and other valuable belongings used to be kept i.e. in the iron safe and almirah kept in the hall adjoining the kitchen.

2. It appears that the appellant had pre-planned the commission of robbery. Earlier in the evening he went to P.W. 6 Narayanappa and borrowed Rs. 2 and thereafter went to the toddy shop of <ORG> and took liquor. On the night in question he reached the 'kana' at about 9 p.m. and was reprimanded by P.W. 2 for being late. Upon reaching the house he went upstairs in an inebriated state and told P.W. 3 that he no longer wanted to serve and he should settle his accounts. P.W. 3 told him to come in the morning and take his wages. It therefore appears that the appellant had made up his mind to leave the village.

3. On the next morning i.e. on the 22nd at about 6 a.m. it was discovered that the deceased Smt. <NAME> had been strangulated to death. The gold ornaments on her person and in the iron safe had been stolen. There was a search made for the appellant but he was not to be found anywhere. Near the dead body of the deceased was lying the blood-stained towel (M.O. 1) given by P.W. 3 to the appellant for his use with which the deceased had apparently been strangulated. The appellant had therefore absconded from the scene of occurrence after committing the murder and robbery.

4. After the appellant had suddenly disappeared from the house of P.W. 3 with the gold ornaments and other valuables, there was a frantic search made by P.W. 25, <NAME> and P.W. 26 <NAME> at various places and he was absconding till March 29, 1980 until he was apprehended by P.W. 26 at village Hosahally in Hosakote taluk at about 2 p.m. On being arrested after a year of the incident on March 29, 1980, the appellant made the statement Ex. P-35 leading to the recovery of some of the stolen gold ornaments of the deceased and her six silk sarees from different places and they have all been identified by P.Ws. 2, 3 and 4 as belonging to the deceased.

5. The appellant falsely denied the recoveries and could offer no explanation for his possession of the stolen articles.

6. It appears from the prosecution evidence that after the commission of the murder and robbery, the appellant had with him the incriminating articles and taken them to his native place Mattakur where he disposed them of to several persons. The testimony of P.W. 26 reveals that in consequence of the information given by the appellant he recovered the missing screw of the gold nose ring (M.O.5) from one <NAME> in village Mattakur, that of P.W,12 <NAME> that appellant had sold to him the silk saree (M.O.15) for Rs. 150/-, and that of <NAME> discloses that the appellant had sold to him a gold rope chain (M.O.6) and a pair of gold bangles (M.Os. 7&8) for Rs. 2000/-, The testimony of P.W.8, Smt, Yallamma, sister of the appellant, hailing from village Gudisagarapally show that the appellant had given her four silk sarees (M.Os.11 to 14), and that of P.W.15 Smt. Chinnamma of village Sollepura, who was known to the appellant from before, shows that the appellant gave her the silk saree for Re. 1/- when she refused to take his gratis. The testimony of <NAME> of village Hosur shows that appellant brought with him a pair of gold ear- rings and a gold ingot and wanted to sell them saying that he was hard-pressed. This witness took him to <NAME> and the appellant sold the gold ingot (M.O.9) for Rs. 330/-and a pair of gold ear-rings (M.Os. 3&4) for Rs. 500/-.

From this evidence it is apparent that the appellant while he was absconding moved from place to place trying to dispose of the stolen property to various persons.

The learned Sessions Judge as well as <ORG> have come to the conclusion that the circumstances alleged have been fully proved and they are consistent only with the hypothesis of the guilt of the accused. We are inclined to agree both with their conclusion and the reasoning. The chain of circumstances set out above establishes the guilt of the appellant beyond all reasonable doubt There is no controversy that the statement made by the appellant Ex. P-35 is admissible under s. 27 of the Evidence Act. Under s. 27 only so much of the information as distinctly relates to the facts really thereby discovered is admissible. The word 'fact' means some concrete or material fact to which the information directly relates. As explained by Sir <NAME> in <CITATION> (1):

"It is fallacious to treat the 'fact discovered' within the section as equivalent to the object produced: the fact discovered embraces the place from which the object is produced, and the knowledge of the accused as to this, and the information given must relate distinctly to this fact".

For the applicability of s. 27 therefore two conditions are prerequisite, namely (1) the information must be such as has caused discovery of the fact; and (2) the information must 'relate distinctly' to the fact discovered. In the present case, there was a suggestion during the trial that P.W. 26 had prior knowledge from other sources that the incriminating articles were concealed at certain places and that statement Ex. P-35 was prepared after the recoveries had been made and therefore there was no 'fact discovered' within the meaning of s. 27 of the Evidence Act. We need not dilate on the question because there was no suggestion made to P.W. 26 during his cross- examination that he had known the places where the incriminating articles were kept. That being so, the statement made by the appellant Ex. P-35 is clearly admissible in evidence.

<CITATION> , (2) the portion of the statement with reference to which this question arose read as follows:

"I will point out one <NAME> of Delhi at Bombay Central Railway Station at III Class Waiting Hall to whom I have given a Packet containing diamonds of different sizes more than 200 in number."

The only question for decision in that case before the <ORG> was whether the aforesaid statement made by the accused was admissible in evidence by virtue of s. 27 of the Evidence Act, the diamonds having been found with the person named. In the facts of that case the <ORG> came to the conclusion that the police had already known that the diamonds were with the person named by the accused with the result that there was no fact discovered by the police as a result of the statement made by the accused. However, it was held clearly that, but for such knowledge of the police, the aforesaid statement of the accused would have been admissible in evidence.

In the present case, some of the material portions in the statement Ex. P-35 which distinctly relate to the fact discovered read:

"If I am taken to Gudisagarapally, I shall get the four silk sarees."

At village Gudisagarapally the appellant took P.W. 26 to the house of his sister P.W. 8 Smt. Yallamma who produced four silk sarees (M.Os. 11 to 14) which were seized under seizure memo Ex. P-4. P.W. 8 Smt. Yallamma states that she is the sister of the appellant and that he had given to her the four silk sarees. It was suggested that the police had not only planted P.W. 8 as a sister of the appellant but also the four silk sarees in question, but there is no basis for this assertion. Then the statement Ex. P-35 recites:

"If I am taken to native place Mattakur, I shall get one gold nose ring without screw .. one silk saree..... one gold rope chain and one pair of gold ear rings."

At village Mattakur from where he hails, the appellant took P.W. 26 to the house of one <NAME> leading to the recovery of the screw of the missing gold nose ring (M.O. 5) which was seized under seizure memo Ex. P-7. Thereafter, he took P.W. 26 to the house of <NAME> leading to the recovery of a silk saree (M.O. 15) which was seized under seizure memo Ex. P-5. He then took P.W. 26 to the house of <NAME> leading to the recovery of a gold rope chain (M.O. 6) and a pair of gold bangles (MOs. 7&8) which were seized under seizure memo Ex. P-6. The prosecution could not examine <NAME> because he was dead during the trial. P.W. 12 stated that the appellant had sold him a silk saree for Rs. 150 while P.W. 13 stated that he had sold him a gold rope chain and a pair of gold bangles for Rs. 2000/-. The statement Ex. P-35 contains similar recitals leading to the recovery of the other incriminating articles, viz (1) A silk saree (M.O.10) given by the appellant to P.W. 15 Smt. Chinnamma of village Sollepura whom he knew from before, for a token price of Re. 1/ -; (2) A pair of gold ear rings (M.Os. 3&4) and a gold ingot (M.O.9) from P.W. 22 Palaniyachar which he had purchased from the appellant for Rs. 830.

Apart from the question of sentence, two other contentions are raised, namely: (1) There is no proper identification that the seized ornaments belonged to the deceased Smt. <NAME>; and (2) the presumption arising under illustration (a) to s. 114 of the Evidence Act, looking to the long lapse of time between the commission of murder and robbery and the discovery of the stolen articles, should be that the appellant was merely a receiver of the stolen articles and therefore guilty of an offence punishable under s. 411 of the Indian Penal Code and not that he was guilty of culpable homicide amounting to murder punishable under s. 302 as well. We are afraid, none of these contentions can prevail.

Our attention was drawn to the testimony of <NAME> who, during his cross-examination, stated that ornaments similar to the gold rope chain and the pair of gold bangles were available everywhere and that other ornaments were also in his house. From this it is sought to be argued that the seized ornaments cannot be treated to be stolen property as they are ordinary ornaments in common use. Nothing really turns on this because <NAME>, mother-in-law of the deceased, her husband <NAME> and son <NAME> have categorically stated that the seized ornaments belonged to the deceased Smt. <NAME>. There is no reason why the testimony of these witnesses should not be relied upon particularly when <NAME> was not cross-examined at all as regards her identification of the seized ornaments and clothes as belonging to the deceased. Even if the seized ornaments could be treated to be ornaments in common use, this witness could never make a mistake in identifying the seized six silk sarees (M.Os. 10 to 15). It is a matter of common knowledge that ladies have an uncanny sense of identifying their own belongings, particularly articles of personal use in the family. That apart, the description of the silk sarees in question shows that they were expensive sarees with distinctive designs. There is no merit in the contention that the testimony of these witnesses as regards the identity of the seized articles to be stolen property cannot be relied upon for want of prior test identification. There is no such legal requirement.

This is a case where murder and robbery are proved to have been integral parts of one and the same transaction and therefore the presumption arising under illustration (a) to s. 114 of the Evidence Act is that not only the appellant committed the murder of the deceased but also committed robbery of her gold ornaments which form part of the same transaction. The prosecution has led sufficient evidence to connect the appellant with the commission of the crime. The sudden disappearance of the appellant from the house of P.W.3 on the morning of March 22, 1979 when it was discovered that the deceased had been strangulated to death and relieved of her gold ornaments, coupled with the circumstance that he was absconding for a period of over one year till he was apprehended by P.W. 26 at village Hosahally on March 29, 1980, taken with the circumstance that he made the statement Ex. P-35 immediately upon his arrest leading to the discovery of the stolen articles, must necessarily raise the inference that the appellant alone and no one else was guilty of having committed the murder of the deceased and robbery of her gold ornaments. The appellant had no satisfactory explanation to offer for his possession of the stolen property. On the contrary, he denied that the stolen property was recovered from him. The false denial by itself is an incriminating circumstance. The nature of presumption under illustration (a) to s. 114 must depend upon the nature of the evidence adduced. No fixed time limit can be laid down to determine whether possession is recent or otherwise and each case must be judged on its own facts. The question as to what amounts to recent possession sufficient to justify the presumption of guilt varies according as the stolen article is or is not calculated to pass readily from hand to hand. If the stolen articles were such as were not likely to pass readily from hand to hand, the period of one year that elapsed cannot be said to be too long particulary when the appellant had been absconding during that period. There was no lapse of time between the date of his arrest and the recovery of the stolen property.

Finally, there remains the question of sentence, it was cruel hand of destiny that the deceased Smt. <NAME> met a violent end by being strangulated to death by the appellant who betrayed the trust of his master p.w. 3 and committed her pre-planned cold-blooded murder for greed in achieving his object of committing robbery of the gold ornaments on her person and in ransacking the iron safe and the almirah kept in her bedroom on the fateful night. The appellant was guilty of a heinous crime and deserves the extreme penalty. But we are bound by the rule laid down in <CITATION> (1) where the <ORG> moved by compassionate sentiments of human feelings has ruled that sentence of death should not be passed except in the 'rarest of the rare' cases. The result now is that capital punishment is seldom employed even though it may be a crime against the society and the brutality of the crime shocks the judicial conscience. A sentence or pattern of sentence with fails to take due account of the gravity of the offence can seriously undermine respect for law. It is the duty of the <ORG> to impose a proper punishment depending upon the degree of criminality and desirability to impose such punishment as a measure of social necessity as a means of deterring other potential offenders. Failure to impose a death sentence in such grave cases where it is a crime against the society particularly in cases of murders committed with extreme brutality-will bring to naught the sentence of death provided by s. 302 of the Indian Penal Code. The test laid down in <NAME> case (supra) is unfortunately not fulfilled in the instant case. Left with no other alternative, we are constrained to commute the sentence of death passed on the appellant into one for imprisonment for life.

Subject to this modification in the sentence, the appeal fails and is dismissed.

<ORG> dismissed.