INCOME TAX OFFICER, SHILLONG AND ANR. ETC.

N. TAKIM ROY RYMBAI ETC. ETC.

February 17, 1976

[R. S. SARKARIA AND S. MURTAZA FAZAL ALI, JJ.]

Income-tax Act, 1961-S. 10(26) (a)-Scope of-Assessee, a person belonging to Scheduled Tribe residing in the specified area-Income accruing or arising in a non-scheduled area-If entitled to exemption.

Section 10(26) (a), Income-tax Act, 1961 provides that a person is entitled to exemption from income-tax if ( 1) he is a member of a Scheduled Tribe as defined in Art. 366(25) of the Constitution, (2) he is residing in any area specified in Part A or Part B of the Table appended to paragraph 20 of the Sixth Schedule to the Constitution, or the State or Union Territories mentioned ins. 10(26)(a), and .(3) the income in respect of which.exemption is claimed is income which accrues or arises to him from any source in the area, State or Union Territories mentioned in the section.

The assessee belonged to the Jaintia Scheduled Tribe and was a permanent resident of the United Khasi-Jaintia Hills Autonoinous . District referred to in para 20 of the Sixth Schedule to the Constitution. He was employed in the Secretariat of the Assam Government, and his place of work was within the Shillong Municipality, and was not a part of the area described in para 20 of the Sixth Schedule to the Constitution. The Income-tax Officer held that the income of the . assessee from his salary arose in the non-scheduled area and was not covered by the tax exemption provided under s. 10(26)(a). In a writ petition under Art. 226 the assessee challenged the validity of s. 10(26)(a) on the 2round that the classification of meinbers of Scheduled Tribes into those haing income from a source within the scified areas and those having income from tt source outside the areas was arbitrary. The High Court struck it down as violative of Art. 14 on the ground that the exemption clause which was enacted for the benefit of the Scheduled Tribes would be frustrated if the income of such person/was made subject to tax merely because the source of that income was outside that area.

Allowing the_ appeals of the Deprtment,

HEW : The High Court was in error in holding that the classification

contemplated by s. 10(26)(a), Income Tax Act, 1961, was artificial and wa• F not based on any intelligible differentia. [422D]

l(a). A taxation law, like any other law, has to pass the equality test of Art. 14. but given the legislative competence, the legislature has ample freedom to select and classify persons, incomes and objects which it would or would not tax. The mere fact that a tax falls more heavily on sorrie _in the same catel!:ory, is not by itself a ground to render the law invalid. It is only when, within the rarui; e of its selection, the law operates unequally and cannot be iustified on the basis of a valid classification, that there would be a G violation of Art. 14. [420B-D]

East India Tobacco Co. v. State of Andhra Pradesh, [1963) 1 S.C.R. 404 Vivan loseph Ferriera v.

Municipal Council of Greater Bombay, [1972] i S.C.C. 70 and Jaipur Hosiery Mills v. State of Rajastlian, [1970) 2 S.C.C. 27, followed.

(b) Classification for the purpose of taxation or for exempting from tax with reference to the source of the income is integral to the fundamental scheme of the Incpm~ Tax Act. Tbe classification made by sub-cl. (a) for the purpose H of ex:mpbon lS not l_lnrea~ ?r unk?own ut conforms. to a well recognised pattern and ts ased on tn!elhg1ble dt!J'erenlta. The obiect of this differentiation between income accnung or received from a source in the specified areas and 12-522SCl/76

A the income accruin_g or received from a source outside such areas is to benefit not only the members of the Scheduled Tribes residing in the specified areas but also to benefit such areas economically.

[420F; 421E-F]

(c) If it is held that a rnember of the Scheduled Tribe residing in a specified area was entitled to the exemption irrespective of whether the source of his income lay within or outside such area, it may lead to mischievous results.

A non-Tribal assessee in India n1ay enter into a sham partnership with a member of the Scheduled Tribe residing in the specified area and ostensibly give him a substantial share of the profits of the business but really give him only a nominal amou11t and thus evade tax. Also a tribal re_siOing in the scheduled areas. earning: large profits from business loc3:ted outside the specified areas would be totally exempt while a non.tribal whose source of income is a share in the same business would be taxed and thus the exemption is likely to operate unequally between individuals similarly situated. [421GH]

(2) The decision in S. K. Datta, I11con1e Tax Officer and Or:r. v. Lawrence SinRh lnRty, [19681 2 S.C.R. 165, on which the High Court had relied is no authority for the proposition that the exemption granted under s. 10(26) to the members of the Scheduled Tribes residing in the specified area, as a class, could not be validly subjected to the condition contained in subcl. (a) of that provision.

The sentence that "the exemption in question was not given to individuals either on the basis of their social status or economic resources; it was given to a class" occurring in that case could not be torn out of the context and used for spelling out a proposition different from what was actually decided in that case. [419H; F]

(3) The State is the best jude to formulate its policies and to decide bow far and for what period and in what situations, the members of a particular Scheduled Tribe residing in a particular Tribal area should be afforded the protection and benefit in the matter of promotion of their educational and economic intersts embodied in Art. 46 of the Constitution. [ 422C]

CIVIL APPELLATE JURISDICTION : Civil Appeals Nos. 579 to 594 E of 1975.

Appeals by special leave from the judgment and order dated the 11 October 1974 of the High Court at Gauhati in Civil Rule Nos. 252, 293, 305, 640 and 730 of 1976, and 24, 405, 507 & 510/71, 515 to 517 of 1972 and 165-166 of 1975.

N. M. Lahiri with D. N. Mukherjee, for the appellants. (in all the F appeals)

N. M. Lahiri with D. N. Mukherjee, for respondents in CAs 57') & 583-586/75.

S. Chaudhuri for respondents in CAs 588 to 590/75

D. N. Mukherjee & R. P. Agarwala, for respondents in CAs 587-590 N. M. Lahiri with D. N. Mukherjee & R. P. Agarwala for the respondents in CAs 591-592/75

N. M. Lahiri with D. N. Mukherjee for respondents in CAs 593-594 of 1975 Ex parte, for respondents in CAs 580-582, 593-594 of 1975.

H The Judgment of the Court was delivered by

SARKARIA, J.

These appeals directed against a judgment of the High Court of Judicature at Gauhati raise a common question in regard

to the interpretation and constitutional validity of sub-clause (a) of A clause (26) of s. 10 of the Income-tax Act, 1961 (for short, called the 1961 Act). The appeals will be disposed by a common judgment.

R. Takin Roy Rymbai (respondent in Civil Appeal 579 of 1975) belongs to Jaintia Scheduled Tribe and is a permanent resident of United Khasi-J aintia Hills Autonomous District under the Sixth Sch~- dule of the Constituti•; m within the State of Meghalaya.

He joined B service under the Government of Assam in 1941. In the previous year relevant to the assessment year 1970-71, he was posted at Shillong as Secretary to the Government of Assam.

The Assam Secretariat building and office, which .constitute his place of work was within that quarter of the town which is included in Shillong Municipality and is not a part of the area described in para 20 of the Sixth Sche' dule. C The Income-tax Officer took the view that the assessec's income from salary in the relevant year arose in the non-scheduled area and as such, is not covered by the exemption provided under s. 10(26) (a) of the Act.

The assessee claimed that his income from salary had accrued or arisen within the specified area and, as such, he was entitled to the exemption. In the alternative, he contended that this was not a valid condition for denying him the benefit of the exemption under s. 10

(26). The Income-tax Officer over-ruled these contentions and completed the assessment subjecting the assessee's salary to tax.

The assessee thereupon filed a petition under Article 226 of rhe Constitution in the High Court for impugning the assessment orders and the notices of demand for the assessment year 1970-1971, on the ground that sub-clause (a) of s. 10(26) of the Act is invalid and ultra vires Article 14 of the Constitution.

The writ petition was heard by a Bench of three learned Judges of the High Court, which held that this exemption clause has been enacted for the benefit of the Scheduled Tribes residing in specified areas.

The object of this exemption clause, according to the High Court, will be frustrated and made nugatory if the income Of a member of the Scheduled Tribe residing in the specified areas, is made subject to tax merely because the source of such an income is outside that area. In its view, the classification between members of the Scheduled Tribes having income which accrues or arises to them from any source from the Tribal area or the specified territories on the one hand, and the members of Scheduled Tribe having income which accrues or arises to them from any source outside the Tribal areas or specified territories on the other, is not based on any intelligible differentia; the classification is artificial and is not based on any substantial distinction having a rational nexus to the purpose of the law. On the contrary, the condition contained in sub-clause (a) would defeat the .vi:ry object f the exemption clause ins. 10 (26). For this enunciat10n, the High Court has sought support from this Court's

oservations in S. K. Dutta, Income-tax Officer and ors. v. Lawrence Smgh lngty(l).

- (I) (1968] 2 S.C.R. 165.

On the above reasoning, the High Court has struck down the aforesaid sub-clause (a) as violative of Article 14 of the Constitution, allowed the writ petition and quashed the impugned notices and the orders of assessment.

The Department has now come in appeal before us after obtaining special leave under Article 136 of the Constitution.

The provisions of s. 10 of the 1961 Act are in the nature of exemptions.

The various clauses of this section indicate the incomes l<hich are to be excluded from computation of the total income of a person under this Act.

For a proper perspective, it will be useful to have a look at the historical background of this provision.

The .Indian Income-tax Act, 1922 did not contain any provision specifically exempting members of the Scheduled Tribes from the levy of income-tax. It was the Finance Act 1955 that first incorporated in the Income-tax Act, 1922 provisions for exemption of lhe Tribal people of the ea&ern region from payment Qf the tax. These provisions relating to such exemptions were further amended and recast by s. 3 of the Finance Act 1958 as follows:

"S. 4(3) XXL Any income of a member of a Scheduled Tribe defined in clause (25) of Article 366 of the Constitution, residing in any area specified in Part A or Part B of the Table appended to paragraph 20 of the Sixth Schedule to the Constitution or in the Union Territories of Manipur and Tripura, provided that such member is not in service of Government."

The 1961 Act then re-enacted this clause as under:

"10 (26) In the case \Jf a member of a Scheduled Tribe as defined in clause (25) of Article 366 of the Constitution, residing in any area specified in Part A or Part B of the Table appended to paragraph 20 of the Sixth Schedule to the Constitution or in the Union Territories of Manipur and Tripura, who is not in the service of Government.

any income which accrues or arises to him.

(a) from any source in the area or Union Territories aforesaid, or

(b) by way of dividend or interest on securities." The State of Nagaland (Adaptation of Laws on Union Subjects) Order 1965 added with effect from the 1st December 1963, the State of Nagaland also, to the areas, the Tribal people of which could claim this exemption.

The validity of the exclusion of the Government servants from the exemption given under s. 10(26), as it stood before the amendment of 1970, came up for consideration before this Court in S.

Datta, Income-tax Officer and ors. v. Lawrence Singh lngty (supra).

It was held that the classification of Tribals into Government servanlS

f ..

I.T.O. v. N.T.R. RYMBA! (Stirkaria, 1.)

and others for purposes of this exemption was violative of Article A 14 of the Constitution and, as such, invalid. , ·

Thereafter, Parliament passed the Taxation Laws (Amendment) Act 42 of 1970 whereby the words "who is not in the service of the

Gove=ent" appearing in s. 10(26), were deleted.

The North Eastern Areas (Reorganization) . (Adaptation of Laws on Union Subjects), Order 1974 amended this provision further . with effect B from January 25, 1972 so that it now reads as follows:

"(26) in the case of a .member of a Scheduled Tribe as defined in clause (25) of Article 366 of the Constitution,· residing in any area supecified in Part. A or Part B of . the Table appended to paragraph 20 of: the Sixth Schedule to the Constitution (or in the State of Nagaland) Manipur and c Tripura or in the Union Territories of. Arunachal Pradesh .and Mizoram or in the areas covered by Notification No.

TAD/R/35/50/109, .dated the 23rd February 1951, issued by the Governor of Assam under the. provisions to subparagraph (3) of the said paragraph 20 (as it stood immediately before. the co=encement of the North Eastern Areas (Reorganization) Act 1971 (81 9f 1971). any income D which accrues or. arises to him, (a) from any source in the (area,. State or Union territories) aforesaid, or . (b) by way of dividend or interest, on securities". . / An analysis of this provision shows that in order to entitle a t person to the exemption, three conditions must co-exist : E

(i) He should be a member of a Scheduled Tribe as defined in Clause (25) of Article 366 of the Constitution;

(ii) He should be residing' in any area specified in Part A or Part B of the Table appended to paragraph 20 of the Sixth Schedule to the Constitution; or the State or Union F Territories mentioned in this provision;

(iii) The income in respect ·oCwhich exemption is claimed . must be an income which accrues or. arises to him-

( a) from any source .in the area, State or Union territories mentioned in the provision or

(b) by way of dividend or interest, on securities" .. ·

Article 366(25) of the Cons!it_ution provides :

"Scheduled Tribes" means such tribes or tribal rommunities or parts of or groups within such tribes or tribal co=unities as are deemed under article 342 to be Sche- .

duled. Tribes for the purposes of this Constitution." K Article 342 empowers the President with respect to any State or Union Terrifory, and where it is a State, after consultation with the

41S

SUPREME COURT REPORTS [1976) 3 S.C.ll.

Governor thereof, by public notification, to specify Tribes or Tribal communities or parts of or groups within tribes of tribal communities which shall for the purpose of this Constitution be deemed to be Scheduled Tribes, as the case may be.

Clause (2) of this Article empowers the Parliament to exercise the some power by enacting a law.

The respondent belongs to J aintia Scheduled Tribe which is one of the Scheduled Tribes notified under Art. 342(1). The first condition for applicability of s. 10(26) was thus indubitably satisfied.

Part II of the Table appended to paragraph 20 of the Sixth Schedule of the Constitution lnter alia specifies the United Khasi- Jaintia Hills District as one of the Tribal Areas.

According to the averments in the writ petition, the respondent is a permanent resident of the United Khasi-Jaintia Hills autonomous District.

This allegation has not been denied by the other side.

Indeed, in the petition for special leave to appeal filed by the appellant the fact that he is a resident of a Tribal area specified in Paragraph 20 of the Sixth Schednle to the Constitution, is admitted.

The first two conditions necessary for claiming exemption under s. 10(26) existed in the present case.

Whether on the facts of the case, the third condition embodied in sub-clause (a) was satisfied or not, is a question which still remains to be determined.

The High Court has advisedly left it open. The controversy has thus narrowed down into the legal issue : whether the classification made by sub-clause (a) for the purpose of the exemption under s. 10(26) between the income of a member of a Scheduled Tribe accruing or arising from any source in. the area, State or Union Territories specitietl in the aforesaid Clause (26), and the income from a source outside such area., State or Union Territories is constitutionally valiti?

In answering this question in the negative, the High Court has propounded the proposition that the object of clause (26) of s. 1~ is to grant a blanket exemption to members of Scehduled Tribes as a class residing in the specified 11reas, and that the condition contained ill sub-clauso (a) is destructive of that object. In propounding this proposition, the learned Judges seem to have relied on certain observations of this Court in Lawrence Singh lngty's case (supra).

Mr. Lahiri appearing for the respondent, also, reiterates thee reasoning of the High Court that the exemption was given to \he

Tribal people as a class, and not on the basis of their economic re:iourccs oc sources of income. In this connection Counsel has cited a few

sentences froo1 this Court's judgment in Lawrenct Singh lngty's cd, re (snpra).

With due respect to the learned Judges pf the High Court, we areulallble to accept this reasoning. The matter now in controversy was not even obliq_uely In lssiie before th!$ Court in Lawrence SinBh I/filly's cac. Therein, the only question for decision 'I/as, whether the excln ·

cif the Gomnment servants from the exrmptions given In s. 4( 3) (:il:KI) Q( t1lle Indian lncome-tt.x Act, 1922 and lJtcc !>11 ms. 10 (26). llf.~

l~Qlle-taJ Act 1961, ·~ vtolativo of Artlde 14 of t'be Colstituti<lit.

Althogh. sub-clause .Ca) was very much there, its validity was not, A even mdtrectly questioned. The contention of the Revenue, therein, was that the exemption from income-tax was given to members of certain Sheduled Tribes, due to their economic and social backwardness; that it was not possible to consider Government servants

s socially. and economically backward and hence the exemption was justly demed to the assessee, who was a Government servant having income from salary.

It was further urged by the Revenue that once B a Tribal becomes a Government servant, he is lifted out of his social environment and assimmilated into forward sections of society and therefore he needs no more any crutch to lean on.

These arguments were found to be irrelevant and unsustainable.

In that context, the Court observed :

"The exemption in question was not given to individuals C either on the basis of their social status or economic resources. lt was given to a class.

Hence individuals as individuals do not come into the picture.

We fail to see in what manner the social status and economic resources of a government servant can be diJ!erent from that of another holding a similar position in a corporation or that of a successful medical practitioner, lawyer architect, etc. To over-paint the picture of a government servant as the embodiment of all power and prestige would sound ironical. Today his position in the society to put at the highest is no higher than that of others who in other walks of life have the same income. For the purpose of valid classification what is required is not some imaginary difference but a reasonable and substantial distinction having regard to the purpose of the law." The sentences which have been underlined are the sheet-anchor of the argulllllnli advanced by Mr. Lahiri. In our opinion, they cannot

be torn ot of the context and used for spelling out a proposition

di"erent from what was actually decided in that case.

The ratio of that decision is that within the members of the Scheduled Tribes resid- F ing in spedfied areas selected by the State for the purpose of exemplion, the miniclassification between individuals who were government 1!etvants deriving income from salary and those who were not such

government servants, wa:s 11ot based on intelligible differentia.

Since there was no rational basis whatever for this differentiation, it wiS hold that within the range of the selection, the government servants had been unfairly discriminated against lawyers, medical practitionen, G private servants, businessmen, etc. whose income waa derived from non-government sources, and that the exclusion of government serva.ts from the exemption under s. 10(26) was bad and unconstitutinllal.

This vice Qf diSlcrimination .!rom which &. 10(26) was then sdering, was removed when the Antending Act 42 of 1970 exerd!Cd the obnoxious limb of the provision. 'I1ae dC'f.ision in Lawrew:t Singll lnaty i& thus no authority for l]a¢ H pt., sitlon th!it tho exemption arankl! under s, ~() (26). to the mem

beta ctf the Scheduled Tribe& resldinJ 10 th~ peciied arets, as a class.,

could not be validly subjected to the condition contained in subclause (a) of the provision.

\Vbile it is true that a, taxation law, cannot claim immunity from the equaiity clause in Article 14 of the Constitution, and has to pass like any other law, the equality test of that Article, it must be remembered that the State has, in view of the intrinsic complexity of fiscal adjustments of diverse elements, a considerably wide discretion in the matter of classification for taxation purposes. Given legislative competence, the legislature has ample freedom to select and classify persons, districts, goods, properties, incomes and objects which it would tax, and which it would not tax. So long as the classification made within this wide and flexib!e range by a taxing statute does not transgress the fundamental principles underlying the doctrine of equality, it is not vulnerable on the ground . of discrimination merely because it taxes or exempts from tax some incomes or objects and not others.

Nor the mere fact that tax falls more heavily on some in the same category, is by itself a ground to render the law invalid. It is only when within the range of its selection, the law operates unequally and cannot be justified on the basis of a valid classification, that there would be a violation of Article 14. (See East India Tobacco Co. v.

State. of Andhra Pradesh(') Vivian Joseph Ferriera v. Municipal Council of Greater Bombay;(') Jaipur Hosiery Mills v. State of Rajasthan. (>) · ·

The validity or otherwise of the classification of income envisaged by sub-clause (a), with reference to the source of income, for the purpose of the exemption under s. 10(26) is to be judged in the light of the a.hove principles .•.

Classification for purposes of taxation or for exempting . from tax with reference to the source of the income is integral to the fundamental scheme of the Income-tax Act. Indeed, the entire warp and woof of the 1961 Act has been woven on this pattern.

Section 2(4S) defines total income to mean "the total amount of income referre\I .to in s. 5 computed i.n the manner laid down in this .-Act" .

. . Section 5 makes the. chargeability of income dependent upon \he

),%aliy of, afC~_uaJ or .recejp.t Of \he .iJ?come. It defines the . extent of

l.<!tal IIlCOII).e with reference to the residence of the . assessee, and thus . .!P, a1\es ., qy Jni; i4e11c~ ?L taafio~ geP, Xndept, ppon. whetlier the .asssse.e '1s a resident ln India, It 1s \he estdence m India which entails 11ab1liiy. to tax: ... A hon-resident is. nodiable in India to get his iricome

as.esed, !:mt if any part of his income ac.crues or arises 'whether' directlv or indirectly th, rough any bµsiness connection in India or froni 'any property'fo India, the same would be assessable. Afi ordinzy tsident a§ defil)ed, in s. 6,. oes, mit at.tract additional .chargeability b11t ing "not ordinarily resident" .entitles a [ierson to parti, al .¢xelnptlo11. ftom

(I} [1963] I S.C.~. 404. .. .. - . , ;

(2) (1972! 1 S.C.C. 1o.

(3) {1970j 2 s.c.c: 27 ..

,~ .. ' : . .' . ! ,_' . ' _'•- ·. _, -.

t I

chargeahility as a resident, to which exemption a person who is "ordi- A narily resident" is not entitled-(see Kanga and Palkhivala Vol. !- Income-tax 6th Edn. p. 162).

The 1961 Act abounds in instances whereby certain sources of income have been exempted from tax, while others are assessable.

Section 10 of the !961 Act, itself contains no less than.30 instances of such classification for the purpose of granting exemptions from B tax. Thi" is so, in spite of the fact that another source of the same person's income may be assessable. A person may have agricultural inoome apart from salary or business income.

The income from the former source is not to be included in the total income of the assessee (vide s. 10(1) ); while income from the latter source is not so exempted. Again, interest realised from Scheduled banks on deposits upto a certain limit is exempt, while interest realised from nonc banking concerns is assessable.

Sections SOA to SOU further provide exemptions_ from tax to incomes derived from certain sources.

A business man's income is assessable, hut if it is from a newly established industrial undertaking or priorit:r industry, .to that extent, the same is exempted. Section

SOH pro1iil:les for deductions in cases of new industrial undertakings employing displaced persons etc.

It is not necessary to multiply such instances. Suffice it to say that classrncation of sources of income is integral to the basic scheme of the 1961 Act. It is nobody's case that the entire scheme of the Act is irrational and violative of Article 14 of the Constitution.

Such an. extravagant contention has not been canvassed before ns.

Thus the classifi.; ation made by the aforesaid sul>-clause (a) for .purposes of exemption is not unreal or unknown. It conforms to a well recognised pattern. l t is based on intelligible differentia.

The object of this dillerentiation between income accruing or received from a source in the specified areas and the income accruing or received from a source outside such areas is to benefit not only the "!embers of the Scheduled Tribes residing in the specified areas but also to benefit economically such areas: If the contention advanced by Mr. Lahid _is accepted, and a nfomber of the Scheduled Tribe residing in a specified area is held entitled to the exemption irrespective of whether the source of his income lies within or outside. such areas, it will lead to potentially mischlevious n'sults and evasion of tax by assessees who do not belong to the Scheduled Tribes. All that a non-tribal assessee in India need do would be tc enter into a sham partnership with a member of the Scheduled Tribe residing in the specified area and ostensibly give him under the partnership a substantial share of the profits of the business while, in reality, pay the trjbal only a nominal amount. Moreover, but for the cm1diti0'1 provided in sub-clause (a), the exemption granted under s. 10(26) il• likely to operate unequally and cause inequality of trat ment between individuals similarly situated. A Tribal residing in the Scheduled areas earning large income from business located outside the sNCified areas, would be totally exempt while the non-tribal whose source of income is a share in the same business would be taxed although with reference to tlie source of the income, both were similarly situated.

We are not persuaded to accept Mr. Lahiri's argument that the making of the exemption conditional upon the classification envisaged by sub-clause (a) would deter the members of the Scheduled Tribes from joining the mainstream of national life, or, would be inconsistent with the Directive Principle embodied in Article 46. This Article contains a Directive Principle of State Policy for promotion of educational and economic interests of the weaker sections of the people, particularly the Scheduled Castes and Scheduled Tribes. Its primary objective is to provide protection to the "weaker sections" of society. Members of the Scheduled Tribes who . are enterprising and resourceful enough to move out of the seclusion of the tribal areas and successfully compete with their Indian brethern outside those areas and rise to remunerative positions in service or business, cease to be "weaker sections".

In any case, the State is the best judge to formulate its policies and to decide how far and for what period and in what situations, the members of a particular Scheduled Tribe residing in a particular Tribal area should be afforded the protection and benefit in the matter of promotion of their educational and economic interests.

In view of what has been said above, we are of opinion that the learned Judges of the High Court were in error in holding that the D classification contemplated by sub-clause (a) of cl. (26) of s. 10 ot the 1961 Act is artificial and is not based on any intelligible differentia.

We would therefore, reverse the judgment of the High Court and hold that the aforesaid sub-clause (a) is constitutionally valid.

Before we part with this judgment, we may note that Mr. Lahiri made a detailed survey of the history of the Tribal areas of Assam and Scheduled Tribes residing in those 'autonomous' areas. Counsel also argued that virtually the source of the salary received by the asee Jay in the Tribal areas forming the State of Meghalaya, notwithstanding the fact that on account of the exigencies of service, the -Office of the assessee was located in those Wards ot Shillong which are not a part of the tribal areas. In our opinion, it is not necessary to gQ into this. question which, as already noticed, still remains open and undetermined.

In the result we allow these appeals, but in the circumstances of the case, leave the parties to pay and bear their own costs.

P.B.R.

Appeals al/awed.

N. TAKIM ROY RYMBAI ETC. ETC

February 17, 1976

R. S. SARKARIA

S. MURTAZA FAZAL ALI, JJ.

Income-tax Act, 1961

S. 10(26)

Section 10(26)

Income-tax Act, 1961

Art. 366(25)

Sixth Schedule

United Khasi-Jaintia Hills Autonoinous

Sixth Schedule

Assam Government

Shillong Municipality

Sixth Schedule

s. 10(26)(a)

Art. 226

s. 10(26)(a)

Art. 14

s. 10(26)(a)

Income Tax Act, 1961

Art. 14

Art. 14

[1963) 1 S.C.R. 404

India

s. 10(26)

Art. 46

D. N. Mukherjee

N. M. Lahiri

S. Chaudhuri

R. P. Agarwala

SARKARIA

High Court of Judicature at Gauhati

s. 10

Income-tax Act, 1961

R. Takin Roy Rymbai

Meghalaya

Shillong

Government of Assam

s. 10(26)

s. 10

Article 226

s. 10(26)

Article 14

(1968] 2 S.C.R. 165

Article 14

Article 136

s. 10

Indian Income-tax Act, 1922

was the Finance Act 1955

Income-tax Act, 1922

s. 3

Finance Act 1958

S. 4(3)

Article 366

Sixth Schedule

Article 366

Sixth Schedule

Tripura

State of Nagaland

1st December 1963

s. 10(26)

s. 10(26)

Article 366

Sixth Schedule

Assam

Article 366

Sixth Schedule

Article 366(25)

article 342

Article 342

Parliament

Art. 342(1)

s. 10(26)

Sixth Schedule

s. 10(26)

s. 10(26)

s. 1

Lawrence Singh lngty

Lahiri

Lawrenct Singh lngty

Lawrence SinBh

s. 4( 3)

Qlle-taJ Act 1961

s 11

s. 10(26)

Article 14

Article 14

s. 10(26)

Income-tax Act

Section 2(4S)

s. 5

Section 5

s. 6

Section 10

s. 10(1)

Article 14

Lahid

s. 10(26)

Article 46

s. 10


'-~-----' 423

H. H. MAHARAJ RANA HEMANT SINGHJI, DHOLPUR

COMMISSIONER OF INCOME-TAX, RAJASTHA..N

February 11, 1976

[A. C. GUPTA AND JASWANT SINGH, JJ.]

lnconze Tax Act (11 of 1922), s. 2(4A)(ii)-:-'Personal efjects',_~:h_at are.

Section 2(4A) (ii), Income Tax Act, 1922, provides that 'perSOnal effects, that is to say. movable property (including wearing apparel, jewellery, and [urniture) held for personal use by the assessee or any member of his family dependent on him: shall not be included in the 'capital assets' of th~ assessee •.

 The context in which the expression 'personal effects' oCcurs and the C enumeration of articles like wearing apparel, jewellery an4 furniture, -show that only those articles are to be included as peisonal effects which are intimately and comm0nly used by the assessee. The dictionary meaning of the expression is also the same. Therefore, 'personal effects' mean those items which are normally. commonly or ordinarily intended for personal use and not items \\'hich are capable of being intended for personal use. [425E-426F-427CD]

Where the assessee was in passession of a large number of gold sovereigns, silver rupee coins and silver bars, which were used at the time of the puja D of deities on special reliious festivals or rituals. they could J!Ot be deemed to be effects• meant for personal use. Tuey are capital assets and not personal effects and so, when sold, could not be excluded while computing the capital gains liable to capital gains tax unde.r s. 12B, Income Tax Ac4 1922. [427F]

G. S. Poddar v. The Commissioner of Wealth Tax, Bon1baf City, II, I.L.R.

11965) Born. 1062, approved.

CML APPELLATE JURISDICTION : Civil Appeal No. 779 of 1971.

Appeal by special leave from the judgment and order dated the 2nd December, 1969 of the Rajasthan High Court in I.T.R. No. 5 of 1966.

S. T. Desai, Rameshwar Nath, for the appellant.

B. B. Ahuja and S. P. Nayar, for the respondent. .

The Judgment _of the Court was deliver.::dbY

-JASWANT SINGH, J.-This appeal by special Jve is directed against the judgment dated Decmber 2,, 1969 of the High Court of Rajasthan.

Briefly stated the facts giving rise to this appeal are : Maharaja G Shri Udebhan Singhji of Dholpur died issueless on October 22, 1954.

On the day following his demise all the movable valuables possessed by him were taken over and sealed by the Government of Rajasthan because of the dispute regarding succession to the gaddi.

On December 13, 1956 Maharaja Shri Hemant Singhji, the appellant herein, who was then a minor, was recognised by the Government of India as successor of the forriler Maharaja and the aforeSaid assets which H inter alia consisted of 4,825 gold sovereign, 7 ,90,440 old silver rupee coins and silver bars weighing. 2,54,174 totals were released by the Rajasthan Government and handed over to Rajmata in her capacity

as the adoptive mother and guardian 0£ the appellant on March 24, 1957.

During the financial year 1957-58, the aforesaid sovereigns, silver coins and silver bars wete sold at the suggestion of the Government of India for a net consideration of Rs. 20,78,257. Overruling the contentions raised on behalf of the appeUant to the effect that as there was no voluntary sale chargeable to capital gains tax under section 12B of the Indian Income Tax Act, 1922, hereinafter referred to as 'the Act',, and the aforesaid items did not constitute 'capital assets' as contemplated by section 2 ( 4A) of the Act but fell within the purview of the exception carved out by clause (ii) thereof and as such were to be excluded in computing the gains because they were held for personal use by the assessee and the members of his family as was evident from the fact that they were used for the purpose of Maha Lakshmi Puja and other religious festivals and rituals in the family, and taking into account the market value of the assets as on January 1, 1954, the Income Tax Officer, Bharatpur, worked out capital gains at Rs. 3,44,,303.

Dissatisfied with this order, the appellant took the matter in appeal to the Appellate Assistant Commissioner but remained unsuccessful.

A further appeal to the Income Tax Appe_llate Tribunal was taken by the appellant but the same also proved abortive as the Tribunal was of the view that the expression "'personal effects" meant such items of movable property as were necessary adjuncts to an individual's. own personality and the nature of sale befug voluntary or otherwise was irrelevant for the purpose of section 12B in.view of the decision of this Court in James Anderson v.

Commissioner of Income Tax, Bombay City(!). The Tribunal, however, referred the following question of law at the instance of the appellant to the High Court of Rajasthan at Jodhput under section 66( I) of the Act:

"Whether on the facts and in the circumstances of the case the assets sold were capital assets within the mea)).~ ing of section 2( 4A) chgeable to capital gains tax under section 12B of the Income-tax Act, 1922."

By its order da.te<; I Decembe.r 2, 1969,, the High Court answered the question in the affirmative holding that in order that an article should constitute a part of personal effects, it is necessary that the article must be associate.ct. with the person of the JlPSSCsor. and that the aforesaid . items . consisting of gold sovereigns, silver . rupees and sjlver barS could not be deell, led to fall within the exceptit>tn::arved out by clause (ii) of s'ection, 2(4A•)· of die Act merely because they were placed before Goddess Lakshmi while performing Prija, The appellant thereun made, an appiicatiqn, to. the High Court qf ):lajasthrui' for a cettifica~ of::Jitness , which was. iefu&ed.. . T\ieteafter, the apjien; pit _aPP, J!, e~. 10: tlii~. t"urr: tOi: scl; il leave iii)der Article '131i of ilie Constitu!lqn \Vhicll was granteq on May 6, 1971.

. •. A~aring in support of th"~ ap~, Mr. Desi has vcliernently contbH4ed that.the questibn i!s tt> whether an iteth bf mo:vable prt>- perty held for petsdnaHtise is a part Of r:_rsonal et~. ofan assessee shotlltt .!AA <le\enbine<! not in a comm@itial.se118e but accorol"g t& the

: c 1) llX<!,, 'ti<- !:i.Y •3' '"13 .•.•.•,,,. . . ~·; .. ;- . . . : .·· . " . ' •... . . ' . . ',-·; i , ~!7?..,~·~·~·~.t.-' ;.-~.

I \~· : ;.;·;,.'."f:::,,-· ._., '.,.':'.', • -----·

HEMANT SINGHJI v. C.I.T, (Jaswant Singh, ].) 425

ordinary ideas,. habits, customs and notions of the class of society to A whicll the assessee belongs or according to the well established habits, customs and traditions of his family.

He has in support of his contention reforred us to a decision in Commissioner of Wealth-tax Gujarat v. Arundhali Balkrishna(').

He has further urged that in construing section 2(4A) of the Act it must be borne in mind that the Legislature intended to lay emphasis on the nature of the use of the article rather than 9n the person of the assessee.

Mr. B. B. Ahuja appearing for the Revenue has, on the other hand, urged that the inte_rpretation sought to be placed on behalf of the assesse~ on the expression "personal effects" is not correct and while detennining whether the effects are personal it is essential to see whether they are meant for the personal use of the assessee.

We have given our earnest consideration to the submissions, of learned counsel for the parties.

For a proper decision of the point in question, it is necessary to refer to section 2 ( 4A) of the Act, the relevant po;:tion whereof ruus thus :

"2(4A). 'Capital asset' means property of any kind held by an assessee,, whether or not connected _with his business, profession or v0<; ation, but does not include-

(i) ..................... .

(ii) personal effects, that is to say, movable property (including wearing apparel, jewellery, and furniture) held for personal use by the assessee or any member of his family dependent on him;" E

The expression "personal use" occurring in clause (ii) of the above quoted provision is very significant.

A close scrutiny of the context in which the expression occurs shows that only those effects can legitimately be said to be personal which pertain to the assessee's person.

In other words. an intimate connection between the effects and the person of the assessee must be shown to exist to render them F ''personal eff1ts''.

The enumeration of articles like wearing apparel, Jewellery, and furniture mentioned by way of illustrations in the above quoted definition of "personal effects" also shows that the Legislature intended only those articles to be included in the definition which were intimately and commonly used by the assessee.

The meaning assigned to the expression "personal effects" in various dictionaries also lends support to this view.

In the Unabridged Edition of the Random House Dictionary of the English Language at page 1075, the expression is given the following meaning :-

"Personal effects, privately owned articles consisting chiefly of clothing, toilet items etc. for intimate use by an individual".

(I) 77 I.T.R. 505.

A In Black's Law Dictionary, Fourth Edition at Page 1301, the expression is assigned the following meaning :

"Personal effects.

Articles associated with person, as property having more or less intimate relation to person of possessor;" \

In Cyclopedic Law Dictionary, Third Edition, at page 832, the expression "personal effects" withont qualifying words is interpreted to include generally such tangible property as is worn or carried about the person.

In 'Words and Phrases' (Permanent Edition), Volume 32 at page 277 it is stated that the words "personal effects" when used without qualification,, generally include such tangible property as is worn or carried about the person, or to designate articles associated with the person.

At another place at the same page, it is stated that the words "personal effects" are used t9 designate articles assocfated with person, as property havin~ more or less intimate relation to person of possessor or such tangible property as attends the person.

Bearing in mind the aforesaid meaning assigned to the expression in various dictionaries and cases the silver ]Jars or bullion can by no stretch of imagination be deemed to be "effects" meant for personal

use, Even the sovereigns and the silver coins which are alleged to have been customarily brought out of the iron safes and boxes on two special occasions namely, the Ashtmi Day of 'Sharadh Pakh' for Maha Lakshmi Puja and for worship on the occasion of Diwali festival cannot also be designated as effects meant for persona! use.

They may have been used for puja of the deities as a matter of pride or ornamentation but it is difficult to understand how such user can be characterised as personal use. As rightly observed by the Income Tax authorities if sanctity of puja were considered so essential by the assessee, the aforesaid articles would not have been delivered by this guardian to the Banks for sale.

The language of section 5(l)(viii) of the Wealth Tax Act, 1957 which is pari materia with the definition of the expression "personal effects" as given in section 2 ( 4 A) (ii) of the Act is also helpful in construina the latter provision.

That provision runs as follows :-

"5. (!) Subject to the provisions of sub-section (1-A), wealth-tax shall not be p_ayable by an assessee in respect of the following assets, and such assets shall not be included in the net wealth of the assessee. ·

(viii) furniture, household utensils, wearing apparel, provisions and other articles intended for the personal or household use of the assessee butl not including jewellery;"

H In G. S. Poddar v. The Commissioner of Wealth Tax, Bombay City-11( 1) where the assessee at the time of his appointment in the year

(1) J.L.R. [1965] Born. 1062.

HEMANI SINGHJI V. C.I.T. (Jaswant Singh, J.) 42 7

1945 as a Justice oi the Peace was presented with two gold cas- A kets, ; i go.ld tray,, two gold glasses, a gold cup, saucer and spoons, and photo frames as souvenirs by the dealers and brokers in cloth with wliooe business he was connected and he kept these articles in a glass

how case for display in his drawing room and in assessment year 1959-60 daimed exemption in respect of these articles under the above quoted provision i.e. under section 5(l)(viii) of the Wealth Tax Act, 1957, it was held that merely because the gold ca_skcts were B kept in tht: show case did not make them part of the furniture and the rest of tht• articles could not be considered to be household utensils as that expression did not embrace within its sweep gold articles meant for ornamental use for special occasions but meant household articles which were normally, ordinarily, and _commonly so used. It was further held in this case that the use as a decoration in the drawing room which is only calculated to give a pride of possession is not con- C templated by the exemption and that the personal use which is contemplated by the exemption is the use of like nature as the use of other items mentioned in the clause, namely, furniture, household utensils, wearing apparel and provisions. It was further held in that case that the expression "intended for personal or household use"

did not mean capable of being intended for personal or household use.

It meant normally, commonly, or ordinarily intended D for personal or household use.

This in our opinion is the true concept of the expression "personal use".

It ir. also significant that no exemption on behalf of the assessee was claimed in respect of the aforesaid effects under the aforesaid provision of th(' Wealth-Tax Act.

The decision of this Court in Commissioner of Wealth Tax, Gujarat v. Arundhati Balkrishna (supra) on which strong reliance has been placed by Mr. Desai is of no assistance to the appellant as the point now sought to be agitated before us was never canvassed or considered in that case.

We are, therefore,, of the considered view that the aforesaid articles were capital assets and not personal effects as contended on behalf of the assessee-appe!lant and as such could not be exduded while computing the gaim.

For the foregoing reasons, we do not find any merit in this appeal which is hereby dismissed with costs.

V.P.S.

Appeal dismissed.

COMMISSIONER OF INCOME-TAX, RAJASTHA

A. C. GUPTA

JASWANT SINGH, JJ.

s. 2(4A)(ii)

Section 2(4A)

Income Tax Act, 1922

s. 12B

S. T. Desai

Rameshwar Nath

B. B. Ahuja

S. P. Nayar

Maharaja G Shri

Udebhan Singhji

Government of Rajasthan

December 13, 1956

Maharaja

Hemant Singhji

Government of India

Rajasthan Government

Rajmata

March 24, 1957

section 12B

Indian Income Tax Act, 1922

section 2

January 1, 1954

Bharatpur

Income Tax Appe_llate Tribunal

section 12B

High Court of Rajasthan at Jodhput

section 66( I)

section 2( 4A)

section 12B

Income-tax Act, 1922

Desi

section 2(4A)

B. B. Ahuja

section 2

section 5(l)(viii)

Wealth Tax Act, 1957

section 2

HEMANI SINGHJI V. C.I.T. (Jaswant Singh

HEMANI SINGHJI V. C.I.T. (Jaswant Singh, J.) 42 7

1945 as a Justice oi the Peace was presented with two gold cas- A kets, ; i go.ld tray,, two gold glasses, a gold cup, saucer and spoons, and photo frames as souvenirs by the dealers and brokers in cloth with wliooe business he was connected and he kept these articles in a glass

how case for display in his drawing room and in assessment year 1959-60 daimed exemption in respect of these articles under the above quoted provision i.e. under section 5(l)(viii) of the Wealth Tax Act, 1957, it was held that merely because the gold caskcts were B kept in tht: show case did not make them part of the furniture and the rest of tht• articles could not be considered to be household utensils as that expression did not embrace within its sweep gold articles meant for ornamental use for special occasions but meant household articles which were normally, ordinarily, and commonly so used.

section 5(l)(viii)

Wealth Tax Act, 1957

Wealth-Tax Act

Desai


-NINAJI RAOJJ BOUDHA & ANR. v.

STATE OF MAHARASHTRA

February 20, 1976

[R. S. SARKARIA AND P. N. SH!NGHAL, JJ.]

~ '-

Indian Penal Code (Act 45 of 1860) s. 34-Common intention-Evidee showing only intention to cause grievous hurt-Victim dying but no evidenCe

as to who caused the only fatal injury-If Clccused could be convicted iiilder ss. 302 and 34.

Nine accused were charged with offences of murder and causing hurt. The trial Court acquitted two and convicted the others under ss. 325 and 147, I.P.C.

On appeal by the State, the High Court convicted the two appellants also under s. 302 read with s. 34, I.P.C.

Partly allowing their appeal to this Court,

HELD : The High Court has not examined the liability of the accused with due regard to the facts and circl; lmstances of the case. Instead of giving_. a

cateorical findin2, the High Court stated at one place in its judgment that the appellants must be taken to have had the knowledge that the injury which they intended to cause to the victim was "likely to result" in his death, and in' an other place, that the appellants were guilty of an offence under s. 300, fourthly; because they "ought to have known that their act was so imminently 'dangerQUS having regard to the age and condition of the victim that their act must in all probability cause death or such bodily injury as is likely to cause death." But the evidence on record shows that the appellants did not have the commQD intention of giving a beatiil~ to the deceased when they reached his house but were only bent upon settling scores with his son. It was only when the deceased asked another witness to get ready a bullock cart for making a colhplaint about the beating of his son that the appellants inflicted injuries on him. But there was nothing to show that their intention was to inflict' a'ny fatal injury. Only one of the injuries was a forceful blow on the head . of the deceased and it resulted in his death. But the other injuries were on the back of-the neck. knees ahd right elbow of the deceased and not on anv vi1'!

part of the body. Therefore, the appellants bad only the common intention of causing grievous hurt. Since there was no reliable evidence to show which of the two appellants gave the fatal blow, the appellants could only be convicted of an offence under s. 325 read with s. 34, J.P.C. [431F; 432C-D, F-G; 433E-

434C]

.CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 181 of 1971 Appeal by special leave from the judgment and order dated the 25th and 28th September, 1970 of the Bombay High Court Nagpur Bench in Criminal Appeal No. 24 of 1968 with Crl. A. No. 100 of 1968.

liarjinder Singh, for the appellant

S. B. Wad and M. N. Shroff, for the respondent

The Judgment of the Court was delivered by

SHINGHAL, J.-This is an appeal of Ninaji Raoji Boudha (hereinafter referred to as Ninaji) and Raoji Gianu Boudha (hereinafter referred to as Raoji), against the appellate judgment of the Bombay High Court dated September 25 /28, 1970. The Additional Sessions

Judge of Khamgaon convicted them. of offences um!er ss. 325 and A 14 7 LP .C. and sentenced them to rigorous imprisonment for five years and a fine of Rs. 50/- for the offence under s. 325, and to rigorous imprisonment for six months and a fine of Rs. 25 /- for the offence under s. 147 I.P.C.

The High Court held, on appeal, that they were , guilty of the offence under s. 302 read with s. 34 I.P.C. and sentenced them to imprisonment for life by setting aside their acquittal for the offence of murder of Bhonaji. Ninaji and Raoji were also con- B victed for an offence under s. 325 read with s.149 I.P.C. for participating in the unlawful assembly which was held to be responsible for causing grievous injuries to Bhonaji's sons Samadhan and Rambhau, Mr. Harjinder Singh, Amicus Curiae, stated en behalf of the appellants that he did not think it worthwhile challenging the conviction of appellants Ninaji and Raoji for that offence, and that he would .confine the appeal to their conviction-for the offence under s. 302/ C 34 I.P.C. for causing the death of Bhonaji.

We would therefore concern ourselves with the incident which resulted in Bhonaji's death and the conviction of the appellants thereoor.

Appellants Ninaji and Raoji were two out of nine accused who were challaned for the commissicn of various offences in an incident which took place in mauza Narkhed in Buldana district on September

29, 1966, as a result of some petty quarrel between Bhonaji and his sons Samadhan and Rambhau on the one hand and the appellants and their party on the other. It was alleged that on September 29, 1966, at about 6 p.m., there was a quarrel between the two factions at Gothan', near the ho\lse of Bhonaji, because of the impounding of a she buffalo of Ananda (who was .one of the nine accused in the case) by Bhonaji's third son Madhukar and of the cow of Ninaji's nephew Narain. It was alleged that the nine accused, including the present appellants, went to 'gothan'.

There was some altercation between accused Ananda and Samadhan and the parties beat each other.

Samadhan and his relations then went to their house, which was close by.

Samadhan, who had received some injuries at 'gothan', went inside his house to dress them up.

His father Bhonaji sat on an 'oota' in front of the house. It is alleged that appellants Ninaji and Raoji, and accused Parashram, gave a beating to Bhonaji at the oota as a result of which he fell down, and the remaining accused forcibly took Samadhan to a place near the house of one Trimbak and beat him there. Reports of the incident were lodged at the police station.

Bhonaji succumbed to his injuries on October 2, 1966. The police investigated and challaned nine accused including appellants Ninaji and Raoji. The Additional Sessions Judge convicted them all, but acquitted

Parashram and Ram Das. While accused Ninaji and Raoji were convicted and sentenced as aforesaid, the remaining five accused were convicted and sentenced for offences under ss. 325 and 147 l.P.C. or/ and 325/149 and 147 1.P.C. As has been stated, this appeal is by Ninaji and Raoji in regard to the incident which took place in front of the house of Bhonaji and resulted in his death.

It has been argued by Mr. Harjinder Singh that in its appellate judgment the High Court lost sight of the fact that Bhonaji was present

13-L522SCI/76

at the incident which took place at 'gothan', and that it erred in thinking that there was another incident in front of the house of Bhonaji and that he was fatally beaten there while sitting in his 'oota'.

We have been taken through the evidence on the re;; ord, and w~ find that there is no justification for the argument that the fatal injury was caused to Bhonaji at 'gothan', and not in front of his house. We have gone through the appellate judgment of the High Court, and we are satisfied that while Bhonaji's house was quite near the 'gothan', there can be no doubt that the accused went to his house, after the beating which had taken place at 'gothan'.

As we shall show in a while, there is also satisfactory evidence to prove that Bhonaji was sitting in front of his house when he was beaten there.

The other argument of Mr. Harjinder Singh, which however requires serious consideration, is whethe> the appellants Ninaji and Raoji have rightly been convicted by the High Court for the offence under s. 302 read with s. 34 LP .C. The finding of the High Court in this respect is as follows,-

"The evidence very clearly shows that these two persons were responsible for assaulting Bhonaji as a result of which Bhonaji died. It may be that they had in the beginning no common object or intention to assault Bhonaji but it does appear from the circumstances that these two persons, and may be Parashram, formed a common intention at that moment and both of them dealt blows on Bhonaji which were on vital parts of the body such as head and neck. The blows were given by sticks though the description of the sticks cannot be known because the sticks which have been recovered in this case cannot be said to be sticks connected with the crime as such. But from the nature of the blows which were given on the person of Bhonaji, it appears that the sticks were quite heavy and the blows of the sticks actually resulted in the death of Bhonaji.

When the blows. were given the accused must have intended to cause those injuries to Bhonaji.

They must be taken to have knowledge that Bhonaji was an old mau and on account of the blows given by these accused his death was likely to be caused, particularly when the blows were given on vital parts of the body.

They must be taken to have knowledge that the injury they intended to cause to Bhonaji was likely to result in the death of Bhonaji.

The post-mortem examination of Bhonaji shows that there were several fractures and fissures in the head and the blows must have been dealt with quite an amount of force.

The accused Nos. 6 and 7 Ninaji and Raoji, therefore, would be guilty of an offence which would come under section 300, fourthly, because the accused Nos. 6 and 7 ought to have known toot their act was so imminently dangerous having regard to the age and condition of the victim Bhonaji that their act must in all probability cause death or such bodily injury as is likely to cause death."

A perusal of the judgment shows that while the High Court took the view, in the beginning, that the appellants had no common object or intention to assault Bhonaji, it took the view that they, and may be Parashram, "formed a common intention at that moment." It is not clear from the judgment at what moment of time such a common intention could be said to have been formed by them.

Moreover, the High Court has taken the view that both the appellants dealt blows on vital parts of Bhonaji's body which resulted in his death and that when the blows were given the accused "must have intended to cause those injuries to Bhonaji" with the knowledge that he was an old man and his death was likely to be caused by those blows.

Therefore the question which requires consideration 1s whether it could be said that there was any evidence to show that more than one blow was inflicted on any vital part of Bhonaji's body and whether both the assailants conld be said to have inflicted the fatal injury with the knowledge that it was likely to cause death. The High Court has stated that the post-mortem examination showed that there were several fractures and fissures in the head and that the "blows" must have been dealt with quite an amount of force.

Then it has been further held by the High Court that the accused ought to have known that their action in inflicting the injury was "so imminently dangerous" as to cause the death of an old. person like Bhonaji. As we shall show, there is justification for the argument that in arriving at this decision the High Court misread the evidence in vital particulars and committed an apparent error of law as well. ·

It is not disputed before us that there was an incident at 'gothan' where there was a beating between the parties bf the accused and E Samadhan, and that Samadhan and his father Bhonaji returned to their house thereafter. Samadhan (P.W.19)' has himself stated that h<: went inside his house while his father Bbonaji sat outside, and that when he (Samadhan) was tying a towel on bis bead to cover the injury which bad been inflicted at 'gothan', the party of the accused came to his door and called him out. Sri Ram (P.W. 5) and Sukbdev (P.W.

7) have stated much to the same effect.

The evidence on record F therefore showed that the common intention of the appellants was to settle their scores with Samadban, and nor Bhonaji. In fact the High

Cout has also held as follows,-

"It does not appear that any of these persons had initially any idea of assaulting either Bhonaji or Rambhau, but they seemed to be only after Samadhan.

While Samadhan G was being asked to come out of the house, the deceased Bbonaji must have abused or said something which infuriated some of the accused persons and it is on account of this, it appears that Ninaji and Raoji and perhaps Parashram directed their attention to Bhonaji."

It cannot therefore be said that the common intention of the accused H was to cause the death of Bhonaji. In fact the statement of Sri Ram

(P.W. ~) shows that at the time when the accmed came to Rhonaji's honse in search of Samadhan, Bhonaji was sitting on the platform or

'oota'. Sukhdev (P.W. 7) has also stated to the same effect, and the statement of Samadhan (P.W. 19) also shows that his father was siting in front of the steps of the house when they asked Samadhan to come out of the house. It is therefore quite clear that the accused did not give a beating to Bhonaji even though he was sitting on the platform outside his house. On the other hand, they passed him by; while calling Samadhan to come out. They could not therefore be said to have the common intention or object of inflicting any injury on the person of Bhonaji till then.

It will be recalled that the High Court has not stated at what point of time they could be said to have formed the common intention of causing the death of Bhonaji.

It appears from the statements of Rambhau (P.W. 1) and Tulsi Ram (P.W. 10) that on returning from 'gothan' Bhonaji asked Tulsi Ram, who was a chowkidar, to make a report of the incident to the Patil and also to get a bullock cart ready for going to the police station. That appears to be the point of time when the accused diverted their attention to him and gave him a beating, but there is nothing to show that their intention was to inflict any fatal injury. As has been stated, the High Court has taken the view that more than one blow was given on vital parts of Bhonaji's body and that caused several fractures and fissures in the head.

We have examined the correctness of that finding.

It has been stated by Dr. Garge (P.W. 40) that he performed the post-mortem examination on the dead body of Bhonaji and that on external examination he noticed only one contusion 2" in diameter on the right temporal region of the head. He made an internal examination and found that there was a depressed fracture of the skull, partly of the right temporal bone and right parietal bone, and fissured fractures of the left parietal, frontal and occipital bones the lines of which were "starting from the border of depressed fracture No. ( 1) and going away in different bones." The witness stated further that the depressed and fissured fractures were "due to blow by some hard and blunt substance, or by a fall from height with head downwards on a hard substance." It is therefore quite clear that there was only one blow on the head which caused Bhonaji's death, and the High Court misread the evidence in taking the view that more than cine blow was given on the head of the deceased.

This has made it necessary for us to examine the further question whether the High Court was justified in holding that both the appellants were guilty of the offence under s. 302 read with s. 34 I.P.C.

Here again, we find that the evidence on the record has not been read correctly. Smt. Kalawati (P.W. 2), Smt. Deoki Bai (P.W. 3), Sri Ram (P.W. 5) and Sukhdev (P.W. 7) have been examined as eye witnesses of the beating which was given to Bhonaji. The High Court has held that their evidence was "acceptable", and that there was "nothing to cast any doubt" on their evidence. Smt. Kalawati (P.W.

2) stated in the trial court that appellant Ninaji gave two blows to Bhonaji with a stick, but did not state on what parts of the body those blows were inflicted. She stated further that appellant Raoji gave a

blow with a stick on Bhonaji's back, near the neck.

She however admitted during her cross-examination that she could not explain why she did not mention in her statement to the police that Ninaji and Raoji gave blows on any particular part of Bhonaji's body. Her statement could not therefore go to prove that appellants Ninaji and Raoji inflicted injuries on the head of the deceased. We have examined the statement of Smt. Deoki Bai (P.W. 3) also. She is the daughter-inlaw of the deceased, being the wife of Rambhau. She stated that she had heard the noise, but came out only after feeding her child and saw that Bhonaji had fallen down on his face and the appellants were running away. While her statement may go to prove the presence of the appellants at the place of incident, it does not prove that both of them dealt blows on the head of the deceased. Sri Ram (P.W. 5) stated that appellant Ninaji gave two blows with a stick on the head of Bhonaji, and that appellant Raoji gave a blow with a 'khunt' near his neck. In his crossxamination he admitted that he did not state before the police about the place where the appellants dealt blows with their sticks on the person of Bhonaji. His statement could not also therefore prove the infliction of blows by both the appellants on the head of the deceased. That leaves the statement of Sukhdev (P.W. 7) for consideration.

He merely stated that while he could not state the exact number of the accused or their features, he saw that, out of seven or eight persons, three beat Bhonaji with sticks. He did not state about the infliction of any injury on the head, by any of the appellants. It would thus appear that the High Court could not possibly have reached the conclusion, on the basis of the statements of Smt. Kalawati

(P.W. 2), Smt. Deoki Bai (P.W. 3), Sri Ram (P.W. 5) and Sukhdev (P.W. 7) that more than one blow was inflicted on the head of the deceased, or that the one blow which was found there as a result of the pa<t-mortem examination was inflicted by the one or the other of the two appellants.

The evidence on record therefore went to show that the appellants did not have the common intention of giving a beating to Bhonaji when they reached his house for, as has been shown, they found him sitting outside the house on his 'oota' but passed him by in search of Samadhan who was dressing his injuries inside the house.

Bhonaji asked Tulsi Ram Chowkidar to make a report and to get ready a bullock cart for going to the police station. It was then that iniuries were inflicted on his person by the appellants Ninaji and Raoji. Out of those injuries, one was a forceful blow on the head which caused a depressed fracture and fissures all over, and resulted >n the ultimate death of Bhonaii. The other injuries were on the neck (back side), knees and the right elbow of the decea•ed and were simple injuries.

As has been shown, there was no reliable evidence on the record to prove whether the fatal blow on the head was caused by Ninaji or Raoji. The other blows did not fall on any vital part of the bodv and, in the absence of evidence to establish that their common intention was to cause death. it appears that the appellants had the common intention of cau<ing grievous injury with the lathi and the 'khunt'.

They could therefore be convicted of an offence under s. 325 read with s. 34 l.P.C. and not s. 302 read with s. 34 I.P.C.

It may also be mentioned that while the High Conrt stated at one place that the appellants must be taken to have the knowledge that the injury which , hey intended to cause to Bhonaji was "likely to result" m his death, it observed at another place that the appellants were guilty of an offence falling under section 300, fourthly, because they "ought to have known that their act was so imminently dangerous having regard to the age and condition of the victim Bhonaji that their act must in all probability cause death or such bodily injury as is likely to cause death." No categorical finding has therefore been given by the High Court one way or the other. On the other hand, as has been shown, the liability of the accused has not been examined with due regard to the facts and circumstances which had been clearly established on the rec<:lrd and to which reference has been made above.

The appeal is therefore allowed to the extent that the conviction of the appellants Ninaji and Raoji is altered from section 302/34 I.P.C. to one under section 325/34 l.P.C. and they are sentenced to rgorous imprisonment for five years therennder. Their sentences shall run concurrently.

V.P.S.

Appeal allowed in part.

NINAJI RAOJJ BOUDHA & ANR

STATE OF MAHARASHTRA

February 20, 1976

R. S. SARKARIA

Indian Penal Code

s. 34

ss. 302 and 34

ss. 325 and 147

I.P.C

s. 302

s. 34

I.P.C

s. 300

s. 325

s. 34

liarjinder Singh

S. B. Wad

M. N. Shroff

SHINGHAL

Ninaji Raoji Boudha

Raoji Gianu Boudha

Bombay High Court

Additional Sessions

Judge of Khamgaon

ss. 325

s. 325

s. 147

I.P.C

s. 302

s. 34

I.P.C

Bhonaji

Ninaji

Raoji

s. 325

I.P.C

Samadhan

Rambhau

Harjinder Singh

s. 302

I.P.C

Buldana district

September

29, 1966

September 29, 1966

Ananda

Madhukar

Narain

Samadhan

Parashram

Trimbak

Bhonaji

October 2, 1966

Parashram

Ram Das

ss. 325 and 147

Harjinder Singh

s. 302

s. 34

section 300

E Samadhan

Samadhan

Bbonaji

Ram

Sukbdev

Samadban

Samadhan G

Rhonaji

Sukhdev

Rambhau

Tulsi Ram

Garge

s. 302

s. 34

I.P.C

Kalawati

Deoki Bai

Tulsi Ram Chowkidar

Bhonaii

s. 325

s. 34

s. 302

s. 34

I.P.C

section 300

section 302

I.P.C

section 325