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Appeals Nos.253 to 255 of 1955.
Appeals from the judgment and decree dated November 30, 1954, of the former Nagpur High Court in Misc.
Petitions Nos. 245, 279 and 308 of 1954.
N. C. Chatterjee and G. C. Mathur, for the appellant in C. A. No. 253 of 1955.
G. C. Mathur, for the appellant in C. A. Nos. 254 and 255 of 1955.
B. Sen, section B. Sen and 1.
N. Shroff, for the respondents in C. A. Nos. 253 and 254 of 1950 and for the State of Madhya Pradesh (Intervener).
C. K. Daphtary, Solicitor General of India and R. H. Dhebar, for the respondents in C. A. No. 255 of 1955 and for the State of Bombay (Intervener).
N. section Bindra and T. M. Sen, for the State of Punjab (Intervener).
April 3.
The judgment of section R. Das C. J., Venkatarama Aiyar, section K. Das and A. K. Sarkar JJ.
was delivered by Venkatarama Aiyar J. Bose J. delivered a separate judgment.
VENKATARAMA AIYAR J.
These are appeals against the judgment of the High Court of Nagpur in writ applications filed by the appellants impugning the validity of certain provisions of the Central Provinces and Berar Sales Tax Act, 1947 (C. P. & Berar 21 of 1947), hereinafter referred to as the Act, imposing sales tax on materials used in construction works.
It will be convenient to refer to these provisions at this stage.
Section 2(b) of the Act defines " contract " as including " any agreement for carrying out for cash or deferred payment or other valuable consideration the construction, fitting out, improvement or repair of any building, road, bridge or other immovable property or the installation or repair of any machinery 430 affixed to a building or other immovable property ".
Section 2(c) of the Act defines " dealer " as including a person who carries on the business of supplying goods.
In section 2 (d), " goods " are defined as including " all materials, articles and commodities whether or not to be used in the construction, fitting out, improvement or repair of immovable property ".
Section 2(g) defines sale " as follows: " " Sale " with all its grammatical variations and cognate expressions means any transfer of property in goods for cash or deferred payment or other valuable consideration, including a transfer of property in goods made in course of the execution of a contract, but does not include a mortgage, hypothecation, charge or pledge; and the word 'purchase ' shall be construed accordingly.
" Section 2(h) defines " sale price " as including the amount payable to a dealer as valuable consideration for the carrying out of any contract, less such portion, representing the proportion of the cost of labour to the cost of materials, used in carrying out such contract, as may be prescribed.
" Turnover " is defined in section 2(j) as including the aggregate amount of the sale price received or receivable by a dealer in respect of the supply of goods in the carrying out of any contract.
The charging section is section 4(a), and it provides that dealers whose turnover exceeded certain limits shall be liable to pay tax in accordance with the provisions of the Act on all sales effected after the commencement of the Act.
Rule 4 of the Sales Tax Rules, 1947, provides that " in calculating the sale price for the purpose of sub cl.
(ii) of cl.
(h) of section 2, a dealer may be permitted to deduct from the amounts payable to him as valuable consideration for carrying out a contract, a sum not exceeding such percentages as may be fixed by the Commissioner for different areas subject to the following maximum percentages ", and then follows a scale of percentages to be allowed in respect of different classes of contracts.
Acting on these provisions, the authorities constituted under the Act called upon the contractors within the State to furnish returns in respect of their receipts 431 from contract works for the purpose of assessment of sales tax, to which the appellants replied by instituting the proceedings, out of which the present appeals arise.
The appellant in Civil Appeal No. 253 of 1955 is a contractor doing business in the construction of buildings and roads for the Military and Public Works Department in the State of Madhya Pradesh, and he filed M. P. No. 245 of 1954 challenging the validity of the assessment which the respondents proposed to make, on two grounds.
He contended firstly that the Provincial Legislature had authority under Entry 48 of List 11, Sch.
VII of the Government of India Act, 1935, to impose tax only on sale of goods, that the supply of materials in works contracts was not a sale within that Entry, and that the provisions of the Act, which sought to impose a tax thereon treating it as a sale, were therefore ultra vires; and secondly that he was entitled to exemption under item 33 in Sch.
11 to the Act as enacted by Act XVI of 1949, and that the notification of the Government dated September 18, 1950, withdrawing that exemption was unconstitutional and void.
To appreciate this contention, it is necessary to refer to section 6 of the Act, which is as follows: 6 (1) " No tax shall be payable under this Act on the sale of goods specified in the second column of Schedule 11, subject to the conditions and exceptions, if any, set out in the corresponding entry in the third column thereof.
(2) The State Government may, after giving by notification not less than one month 's notice of their intention so to do, by a notification after the expiry of the period of notice mentioned in the first notification amend either Schedule, and thereupon such Schedule shall be deemed to be amended accordingly.
" Item 33 in Sch.
11 as originally enacted was " Goods sold by the Crown ".
This was amended by Act XVI of 1949 by substituting for the above words " Goods sold to or by the Crown ".
By an Adaptation Order of 1950, the words "State Government" were substituted for "Crown", and item 33 became "Goods sold to or by the State Government " In exercise of 432 the power conferred by section 6 (2) of the Act, the State issued a notification on September 18, 1950, amending item 33 by substituting for the words " Goods sold to or by the State Government " the words " Goods sold by the State Government ".
The resultant position is that the appellant who was entitled to exemption under Act XVI of 1949 in respect of goods sold to the Government could no longer claim it by reason of the notification aforesaid.
Now, the ground of his attack was that it was not open to the Government in exercise of the authority delegated to it under section 6 (2) of the Act to modify or alter what the Legislature had enacted.
The appellant accordingly claimed that the proceedings which the respondents proposed to take for assessment of sales tax were incompetent, and prayed that an appropriate writ might be issued restraining them from proceeding with the same.
In Civil Appeal No. 254 of 1955, the appellants are the Jabalpur Contractors ' Association, which is a registered body and certain contractors, and they filed M. P. No. 279 of 1954 questioning the validity of the proposed assessment on the same grounds as in M. P. No. 245 of 1954.
The appellant in Civil Appeal No. 255 of 1955, is the Madhya Pradesh Contractors ' Association, Nagpur, which is again a registered body, and it filed M. P. No. 305 of 1954, challenging the legality of the proceedings for assessment on the same grounds as in M. P. No. 245 of 1954.
All these three petitions were heard together, and by their judgment dated November 30, 1954, the learned Judges held that the expression " sale of goods" in Entry 48 was wide enough to coverall transactions in which property in the moveables passed from one person to another for money, and that, accordingly, in a building contract there was a sale within Entry 48 of the materials used therein, and that the provisions of the Act imposing tax thereon were valid.
But the learned Judges also held that the tax could be levied only on the actual value of the materials to be determined on an enquiry into the matter, and that the definition of " price " in section 2 (h) (ii) and r. 4 framed pursuant thereto were ultra vires 433 in that they laid down artificial rules for fixing the same by deducting certain percentages from out of the total receipts on account of labour.
As regards the notification dated September 18, 1950, the learned Judges held that it was within the authority conferred by the statute and was valid.
In the result, the impugned provisions of the Act were held to be valid except as to the definition of " price " in section 2 (h) (ii) and r. 4 of the Sales Tax Rules, 1947.
It is against this judgment that the above appeals have been preferred on a certificate granted by the High Court under article 132(1) of the Constitution.
Two contentions have been urged in support of the appeals : (1) that the Provincial Legislature has no authority in exercise of its power under Entry 48 to impose a tax on the supply of materials in works contracts as such supply cannot be said to be also of those materials within that Entry ; and (2) that the notification dated September 18, 1950, is bad as being an constitutional delegation of legislative authority.
As regards the first contention, the question is now concluded by the decision of this Court in The State of Madras vs Gannon Dunkerley & Co. (Madras) Ltd. (1) in which it has been held that the expression " sale of goods " in Entry 48 has the same meaning which it has in the Indian , that in a building contract there is no sale of materials as such, and that it is therefore ultra vires the powers of the Provincial Legislature to impose tax on the supply of materials.
Mr. B. Sen appearing for the respondents has argued that even if the expression " sale of goods " in Entry 48 is construed in the sense which it has in the , that might render the impugned provisions of the Act ultra vires only in respect of a building contract which is one and indivisible, that there might be contracts which might consist of two distinct agreements, one for the sale of materials and another, for work and labour, and that in such a case, it would be competent to the State to impose tax on the sale of materials even construing that word in its (1) ; 55 434 narrow sense, and that these are matters which must be left to be investigated by the appropriate authorities.
That undoubtedly is the correct legal position as observed in The State of Madras vs Gannon Dunkerley & Co. (Madras) Ltd. (1), and accordingly, when a question arises as to whether a particular works contract could be charged to sales tax, it will be for the authorities under the Act to determine whether the agreement in question is, on its true construction, a combination of an agreement to sell and an agreement to work, and if they come to the conclusion that such is its character, then it will be open to them to pro ceed against that part of it which is a contract for the sale of goods, and impose tax thereon.
(2) We have next to consider the contention that the notification dated September 18, 1950, is bad as constituting an unconstitutional delegation of legislative power.
In the view which we have expressed above that there is in a works contract no sale of materials as such, it might seem academic to enter into a discussion of this question ; but as there may be building contracts in which it is possible to spell out agreements for the sale of materials as distinct from contracts for work and labour, it becomes necessary to express our decision thereon.
Mr. Chatterjee appearing for the appellant in Civil Appeal No. 253 of 1955 contends that the notification in question is ultra vires because it is a matter of policy whether exemption should be granted under the Act or not, and a decision on that question must be taken only by the Legis lature, and cannot be left to the determination of an outside authority.
While a power to execute a law, it was argued, could be delegated to the executive, the power to make it must be exercised by the Legislature itself, and reliance was placed on the observations in Hampton J R & Co. vs United States (2), Panama Refining Co. vs Ryan (3), and Schechter vs United States (4), as supporting this position.
It was also contended that the grant of a power to an outside authority to (1) ; (2) ; ; , 629.
(3) ; ; , 458.
(4) ; ; 435 repeal or modify a provision in a statute passed by the legislature was unconstitutional, and that, in consequence, the impugned notification was bad in that, in reversal of the policy laid down by the legislature in Act XVI of 1949 that sales to Government should be excluded from the operation of the Act, it withdrew the exemption which had been granted thereunder, and the observations in re The etc.
(1), and the decision in Rajnarain Singh vs The Chairman, Patna Administration Committee, Patna and another (2), were strongly relied on as establishing this contention.
Mr. N. C. Chatterjee particularly relied on the following observations of Bose J. at p. 301 in Rajnarain Singh 's case (2) : " In our opinion, the majority view was that an executive authority can be authorised to modify either existing or future laws but not in any essential feature.
Exactly what constitutes an essential feature cannot be enunciated in general terms, and there was some divergence of view about this in the former case, but this much is clear from the opinions set out above; it cannot include a change of policy.
" On these observations, the point for determination is whether the impugned notification relates to what may be said to be an essential feature of the law, and whether it involves any change of policy.
Now, the authorities are clear that it is not unconstitutional for the legislature to leave it to the executive to determine details relating to the working of taxation laws, such as the selection of persons on whom the tax is to be laid, the rates at which it is to be charged in respect of different classes of goods, and the like.
In Powell vs Appollo Candle Company Limited the question arose as to whether section 133 of the Customs Regulation Act of 1879 of New South Wales which conferred a power on the Governor to impose tax on certain articles of import was an unconstitutional delegation of legislative powers.
In holding that it was not, the Privy Council observed: "It is argued that the tax in question has been (1) ; , 787, 982, 984 (3) (2) ; 436 imposed by the Governor and not by the Legislature who alone had power to impose it.
But the duties levied under the Order in Council are really levied by the authority of the Act under which the Order is issued.
The Legislature has not parted with its perfect control over the Governor, and has the power, of course, at any moment, of withdrawing or altering the power which they have entrusted to him.
In these circumstances, their Lordships are of opinion that the judgment of the Supreme Court was wrong in declaring Section 133 of the Customs Regulation Act of 1879 to be beyond the power of the Legislature.
" In Syed Mohamed & Co. vs The State of Madras (1), the question was as to the vires of rules 4 and 16 framed under the Madras General Sales Tax Act.
Section 5 (vi) of that Act had left it to the rule making authority to determine at which single point in the series of sales by successive dealers the tax should be levied, and pursuant thereto, rules 4 and 16 had provided that it was the purchaser who was liable to pay the tax in respect of sales of hides and skins.
The validity of the rules was attacked on the ground that it was only the legislature that "as competent to decide who shall be taxed, and that the determination of that question by the rule making authorities was ultra vires.
The Madras High Court rejected this conntetion, and held on a review of the authorities that the delegation of authority under section 5 (vi) war, within permissible constitutional limits.
In Hampton J. R. & Co. vs United States (2), which was cited on behalf of the appellant, the question arose whether section 315(b) of the Tariff Act, 1922, under which the President had been empowered to make such increases and decreases in the rates of duty as were found necessary for carrying out the policies declared in the statute was an unconstitutional delegation, and the decision was that such delegation was not unconstitutional.
We are therefore of the opinion that the power conferred on the State Government by section 6(2) to amend the schedule relating to exemption is in consonance with the accepted legislative practice relating to the topic, and is not unconstitutional.
(1) (1952) 3 S.T.C. 367 (2) ; ; , 629.
437 The contention of the appellant that the notification in question is ultra vires must, in our opinion, fail on another ground.
The basic assumption on which the argument of the appellant proceeds is that the power to amend the schedule conferred on the Government under section 6(2) is wholly independent of the grant of exemption under section 6(1) of the Act, and that, in consequence, while an exemption under section 6(1) would stand, an amendment thereof by a notification under section 6(2) might be bad.
But that, in our opinion, is not the correct interpretation of the section.
The two sub sections together form integral parts of a single enactment, the object of which is to grant exemption from taxation in respect of such goods and to such extent as may from time to time be determined by the State Government.
Section 6(1), therefore, cannot have an operation independent of section 6(2), and an exemption granted thereunder is conditional and sub ject to any modification that might be issued under section 6(2).
In this view, the impugned notification is intra vires and not open to challenge.
But on our finding on the first question that the impugned provisions of the Act are ultra vires the powers of the Provincial Legislature under Entry 48 in List 11 in the seventh Schedule, we should set aside the orders of the Court below, and direct that the respondents be restrained from enforcing the provisions of the Central Provinces and Berar Sales Tax Act, 1947, in so far as they seek to impose a tax on construction works.
It should be made clear, however, in accordance with what we have already stated, that the prohibition against imposition of tax is only in respect of contracts which are single and indivisible and not of contracts which are a combination of distinct contracts for sale of materials and for work, and that nothing that we have said in this judgment shall bar the sales tax authorities from deciding "whether a particular contract falls within one category or the other and imposing a tax on the agreement of sale of materials, where the contract belongs to the latter category.
The parties will bear their own costs throughout, 438 BOSE J. I agree except that I prefer not to express an opinion about the validity of the power conferred on the State Government by section 6(2) of the Central Provinces and Berar Sales Tax Act, 1947, to amend the schedule in the way in which it has been amended here.
I would leave that open for future decision.
Appeals allowed.

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section 4(a) of the Central Provinces and Berar Sales Tax Act; 1947, provided that every dealer whose turnover exceeded certain limits shall be liable to pay tax in accordance with the provisions of the Act on all sales effected after the commencement 428 of the Act ; and by section 2(g) Of the Act, " sale . means any transfer of property in goods .
including a transfer of property in goods made in course of the execution of a contract.
Under section 6(1) of the Act no tax was payable on the sale of goods specified in Sch.
11 to the Act and section 6(2) enabled the State Government by notification to amend the schedule.
Item 33 in Sch.
11 as amended by Act XVl of 1949 and as adapted by the Adaptation Order of 195o, was " Goods sold to or by the State Government ".
In exercise of the power conferred by section 6(2) of the Act, the Government issued a notification on September 18, 1950, amending item 33 by substituting the words " Goods sold by the State Government ".
The appellant, a contractor doing business in the construction of buildings and roads for the Military and Public Works Department in the State of Madhya Pradesh, challenged the validity of the assessment which the respondent proposed to make on the appellant under the provisions of the Central Provinces and Berar Sales Tax Act, 1947, on the grounds (1) that the Provincial Legislature had no authority under Entry 48 Of List II, Sch.
VII of the Government of India Act, 1935, to impose a tax on the supply of materials in works contracts and that the provisions of that Central Provinces and Berar Sales Tax Act which sought to impose a tax thereon treating it as a sale were ultra vires, and (2) that he was entitled to exemption under item 33 in Sch.
11, to tile Act and that the notification of the Government dated September 18, 1950, withdrawing that exemption was bad as being an unconstitutional delegation of legislative authority : Held, that the expression "sales of goods" in Entry 48 has the same meaning which it had in the Indian , that in a building contract there is no sale of materials as such, and that it is therefore ultra vires the powers of the Provincial Legislature to impose tax on the supply of materials.
The State of Madras vs Gannon Dunkerley & Co. (Madras) Ltd., ; , followed.
Per Das C. J., Venkatarama Aiyar, section K. Das and A. K. Sarkar JJ It is not unconstitutional for the legislature to leave it to the executive to determine details relating to the working of taxation laws, such as the selection of persons on whom the tax is to be laid, the rates at which it is to be charged in respect of different classes of goods, and the like.
The power conferred on the State Government by section 6(2) of the Act to amend the Schedule relating to exemption is in consonance with the accepted legislative practice relating to the topic, and is not unconstitutional.
Sub sections (1) and (2) of section 6 together form integral part of a single enactment the object of which is to grant exemption from taxation in respect of such goods and to such extent as may from time to time be determined by the State Government, and an 429 exemption granted under section 6(1) is conditional and subject to any notification that might be issued under section 6(2).
The notification dated September 18, 1950, is therefore intra vires.


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N: Criminal Appeal No. 175 of 1974.
Appeal by special leave from the judgment and order dated the 18th October, 1973 of the Allahabad High Court in Crl.
Appeal Nos.
1307 and 1966 of 1973.
AND Criminal Appeal Nos.
367 369 of 1974.
Appeals by special leave from the judgment and order dated the 18th October, 1973 of the Allahabad High Court in Criminal Appeal No. 1307 of 1973 connected with Crl.
Appeal Nos.
1287 and 1566 of 1973.
47 Rajendra Singh, R.K. Garg B.P. Singh and Ranjit Kumar for the Appellant.
O.P. Rana and M.V. Goswami for the Complainant.
Dalveer Bhandari for the Respondent.
The Judgment of the Court was delivered by BAHARUL ISLAM, J.
These four Criminal Appeals are by special leave.
Criminal Appeal No. 175 of 1974 is by the four appellants Maqsoodan, Madan Mohan, Prayagnath and Nando who have been convicted under Sections 302/34 and 307/34 Penal Code.
The material facts may be briefly stated as follows: On 8 6.1972 at about 5.45 or 600 a.m, when Sulley (P.W. 1) along with his brother, Jadon (deceased), his son, Rajendra (C.W. 1) and his nephew Vijay Kumar (P.W. 3) were going from their house in Neem Gali, Mathura, to their Dharamshala in Mohalla Bengali Ghat, via Vishram Ghat and reached the area called Shyam Ghat, they were waylaid by the twelve persons accused in the case and were assaulted.
According to the prosecution, the accused persons were variously armed with Ballams, phrases and lathis.
Another group of twelve or thirteen persons who were associates of the accused was standing at Vishram Ghat and some one was constantly inciting the accused persons with the expression, "kill, kill" whereupon the accused persons attacked and assaulted Jadon, Vijay Kumar, Rajendra and Sulley.
Jadon and P.W. 3 were severely injured.
The condition of Jadon was very precarious.
After the assault, the miscreants left.
P.W. 1 arranged for a lorry belonging to one Vishnu Chaubey and carried the injured persons to the District Hospital.
The driver of the lorry was one Than Singh.
Jadon and P.W. 3 were removed to the operation theatre.
Thereafter, P.W. 1 proceeded to the Police Station, Kotwali at Mathura and submitted a written First Information Report (FIR) about the incident.
The FIR was written by his nephew, Prakash Chandra Chaturvedi (P.W. 8).
The FIR was lodged at 6.30 a.m. at the Police Station and has been proved in this case as exhibit "Ka 16".
After lodging the FIR, P.W. 1 came back to the hospital where the injuries of all the four injured persons were examined by Dr. B.S. Babbar.
As the condition of the injured persons was serious, intimation was sent to Shri U.C. Tripathi (D.W. 7), Sub Divisional 48 Magistrate, Sahabad, for recording their statements.
The Magistrate came and recorded the statements of P.W. 3 and C.W. 1 at 9.15 a.m. and 9.20 a.m. respectively.
Jadon was operated upon and his condition was such that he could not make any statement.
In fact, he succumbed to the injuries the next day, namely, 9.6.1972 at 3.25 p.m.
The post mortem examination was conducted on the dead body of Jadon by Dr. B.S. Babbar on 10.6.1972 at 10.00 a.m. 3.
The police after investigation submitted charge sheet against the twelve accused persons, all of whom pleaded not guilty.
The First Additional Sessions Judge, Mathura, who tried the case, convicted eleven out of the twelve accused persons and acquitted accused No. 12, Kanhaiya.
Appellant Maqsoodan was convicted under Section 302 I.P.C. and sentenced to death.
The other ten accused persons were convicted under Sections 302/149 and 307/149 I.P.C. and sentenced to imprisonment for life, each under Section 302/149 Penal Code.
Accused Parmatma was convicted under Section 147 I.P.C. and the rest were convicted under Section 148 I.P.C. They were sentenced to various terms of imprisonment.
The sentences of imprisonment were directed to run concurrently.
There was also a reference for the confirmation of the death sentence imposed on Maqsoodan.
The convicts filed several appeals before the High Court of Allahabad.
The High Court altered the convictions of Maqsoodan, Madan Mohan, Prayagnath and Nando, from under Sections 302/149 and 307/149 to ones under Sections 302/34 and 307/34 Penal Code.
The sentence of death imposed on Maqsoodan was reduced to imprisonment for life.
All of them were acquitted of the offences under Section 147 or Section 148 I.P.C. The convictions and sentences as against the other six accused persons were set aside and they were acquitted.
The acquittal of Kanahaiya was affirmed.
Criminal Appeals No. 367, 368 and 369 of 1974 have been filed by the State against the acquittal of the eleven accused persons of the offences under Sections 147 and 148, Penal Code; S.L.P. No. 766 of 1974 is by the State against the acquittal of Kanahaiya.
All these appeals will be disposed of by this common judgment.
Shri Rajendra Singh, learned counsel appearing for the appellants in Criminal Appeal No. 175 of 1974, first submits that 49 the conviction of the four appellants is unsustainable in law; he submits that the evidence of the four witnesses, namely, P.W. 1, Sulley, C.W. 1, Rajendra, P.W. 3, Vijay Kumar and P.W. 2, Jagdish, cannot form the basis of the conviction as only one witness, namely, P.W. 2, Jagdish, out of five witnesses named in the FIR has been examined; the eye witnesses examined are interested and their evidence cannot be safely relied on.
The High Court has found that the testimony of the eye witnesses, namely, P.Ws 1, 2, 3 and C.W. 1 "suffer from numerous infirmities".
It, therefore, sought support to their testimony from the two earlier statements erroneously called dying declarations, Exhibits Ka 22 and Ka 23 made by P.W. 3 Vijai Kumar and P.W. 2 Jagdish respectively.
The infirmities referred to by the High Court consisted in, according to the High Court, improvements made by the witnesses and variations in their earlier and latter statements.
In our opinion, on that ground alone, the testimony of P.Ws. 1, 2, 3 and C.W. 1 cannot be held to be infirm.
It is the duty of the court to remove the grain from the chaff.
These four witnesses are the injured witnesses having received the injuries during the course of the incident.
Their presence at the time and place of the occurrence cannot be doubted; in fact it has not been challenged by the defence.
As both the parties were inimical for a long time, it will be prudent to convict only those persons whose presence and participation in the occurrence have been proved by the prosecution beyond reasonable doubt.
We agree with the finding of the High Court that the presence and participation of appellants Maqsoodan, Madan Mohan, Prayagnath and Nando, who are appellants in Criminal Appeal No. 175 of 1974 has been proved beyond reasonable doubt, despite the improvements and variations in their evidence.
Shri Rajender Singh has submitted that it is not safe to rely on the testimony of P.Ws. 1, 2, 3 and C.W. 1 as the prosecution has not examined all the witnesses named in the FIR except Jagdish, nor has the prosecution examined any of the neighbours.
It is not the number of witnesses examined nor the quantity of evidence adduced by the prosecution that counts.
It is the quality that counts.
Learned counsel has not pointed out to us that any witness better or more creditable has been omitted by the prosecution.
As stated above, the eye witnesses examined in this case were the best and natural witnesses.
Learned counsel also has criticized that during the course of evidence, prosecution alleged that Maqsoodan 50 gave two blows but that fact was not mentioned in the FIR.
He has also criticised that the injured witnesses do not say who injured whom.
This, on the contrary, shows that the witnesses examined were not tutored and they gave no parrot like stereotyped evidence.
It may be remembered that P.W. 1 who lodged the FIR received as many as seven incised wounds, one of them being on the left chest; he took Jadon, who had received sd serious injuries and who later on succumbed lo them, and C.W. 1, who received five incised injuries and P.W. 3, who has also seriously injured, to the hospital.
He lodged the FIR thereafter.
The condition of his mind and disposition can easily be imagined.
There were bound to be some errors in the FIR.
It may also be remembered that the FIR was lodged within half an hour of the occurrence.
There was little time lost.
The occurrence took place at about 6.00 a.m. on 8.6.1972 It is nobody 's case that the witnesses were unable to recognise the real culprits.
The accused persons were well known to the witnesses from before.
They did not have any reason to omit the real culprits and implicate falsely the accused persons.
The evidence of P.Ws. 1, 2, 3 and C.W.1 could have been accepted even without corroboration.
Even so, the High Court rightly pressed into service the earlier statements of P.W. 3 and C.W.1 (exhibit Ka 22 and Ka 23) respectively.
Ka 22 and Ka 23 have been wrongly called dying declarations.
The statement written or verbal, of relevant facts made by a person who is dead, is called a dying declaration; it is relevant under Section 32 of the Evidence Act, when the statement is made by the person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in case, in which that person 's death comes into question.
When a person who has made a Statement, may be in expectation of death, is not dead, it is not a dying declaration and is not admissible under Section 32 of the Evidence Act.
In the instant case, the makers of the statements exhibit Ka 22 and Ka 23, are not only alive but they deposed in the case.
Their statements, therefore,, are not admissible under Section 32; but their statements however are admissible under Section 157 of the Evidence Act as former statements made by them in order to corroborate their testimony in the Court.
In the instant case, exhibit Ka 22 and Ka 23 respectively corroborate the testimony in Court of P.W. 3 and C.W. 1 respectively.
The High Court has found that the witness later on improved the story and roped in some other persons.
As a rule of 51 caution, the High Court has found that the participation of the four appellants in the offence has been proved beyond reasonable doubt and the presence and participation of the other eight accused persons named by them have not been proved beyond doubt.
We do not find valid reason to interfere with this finding of fact of the High Court, in these appeals under Article 136 of the Constitution.
As the number of accused persons present and participating in the occurrence have not been proved to be five or more, the High Court has rightly held that the common object necessary for constituting an unlawful assembly has not been proved, and therefore in the facts and circumstances of the case, the High Court correctly held that common intention has not been proved and as such the four appellants were rightly acquitted of the offence under section 302 read with section 149 I.P.C., and also rightly acquitted all the other accused persons of the offences under Sections 147 and 148 I.P.C. 10.
Shri Rajinder Singh next submits that if any offence at all has been committed by the appellants of Criminal Appeal No. 175 of 1974, the offences may be under Section 326 I.P.C. depending on the medical evidence and circumstances of the case and that Section 34 I.P.C. cannot apply as no common intention has been proved.
We cannot accept this submission.
Dr. B.S. Babbar, P.W .
3, who held the post mortem examination on the dead body of Jadon found a number of wounds out of which the following were serious: 1.
Incised wound 2" x 1/4" x scalp deep on head.
Incised wound 3" x 1/4" x scalp deep on the head 3.
Stiched wound with draining tube 3" towards upper portion of the stomach on right side.
Stiched wound 1.1/2" on the upper portion of the left side of the stomach.
In his opinion, death was due to cyncope following shock and Haemorrhage as a result of the injuries.
According to him, injuries No. 1 & 2 separately was sufficient to cause death in the ordinary course of nature.
It, therefore, cannot be argued that the offence committed was not murder.
52 Common intention is a question of fact.
It is subjective.
But it can be inferred from facts and circumstances.
In this case, the appellants were related.
All of them were armed with deadly weapons.
They were together.
There was an order by some one, "kill, kill", when all of them simultaneously attacked the deceased and P.Ws. 1, 2, 3, and C.W. 1.
After the occurrence, they left together; they were later arrested from the same place.
The High Court therefore rightly held that the appellants caused the injuries with the common intention, and was justified in convicting the appellants under Section 302/34 of the Penal Code.
We, therefore, affirm the conviction and sentences inflicted by the High Court on Maqsoodan, Madan Mohan, Prayagnath and Nando, appellants in Criminal Appeal No. 175 of 1974 and dismiss the appeal.
As held above that the High Court rightly held that the prosecution failed to prove the common object and therefore it rightly acquitted all the accused persons of the offences under Sections 147 and 148.
In the result, the State appeals are also dismissed.
P. B. R. Appeal dismissed.

Output:
The prosecution case against the 12 accused persons was that, armed with deadly weapons, they waylaid and assaulted the deceased and three others accompanying him, and that someone among another group of 12 of their associates standing at some distance constantly incited the accused with the words "kill, kill".
The deceased received serious injuries and died on the following morning.
While the appellant was convicted under section 302 Indian Penal Code and sentenced to death, ten other accused were convicted and sentenced variously.
One of them was acquitted.
On appeal the High Court reduced the sentence of death passed on the appellant to imprisonment for life.
Convictions of four of the 11 accused were altered from under section 302/149 and section 307/149 to one under sections 302/34 and 307/34 I.P.C.
All of them were however acquitted of the offences under section 147 or section 148 I.P.C. The convictions and sentences against the other six accused were set aside and they were acquitted.
It was contended on behalf of the appellants that their conviction was unsustainable in law because the evidence of the eye witnesses, who were interested parties, could not be safely relied upon.
Dismissing the appeal, ^ HELD: The High Court erred in stating that the testimony of the four eye witnesses suffered from numerous infirmities, that they made improvements in their testimony and that there were variations in their earlier and later statements.
On that count alone their testimony could not be held to be infirm.
It is the duty of the Court to remove the grain from the chaff.
[49 C D] 46 The parties were inimical for a long time.
The four witnesses were the injured persons and therefore, their presence at the time and place of occurrence could not be doubted.
The presence of all the four accused in the scene of occurrence and their participation in the crime had been proved beyond reasonable doubt despite the improvements and variations in the evidence of witnesses.
[49 E F] In a case of this kind it is not the number of witnesses examined or the quantity of evidence adduced by the prosecution that counts.
It is the quality that counts.
Eye witnesses, examined in the case were the best and natural witnesses.
The accused persons were known to the witnesses and they did not have any reason to omit the real culprits and implicate falsely accused persons.
[49 G H; 50 C] A statement, written or verbal, of relevant facts made by a person who is dead, is called a dying declaration and is admissible in evidence under section 32 of the Evidence Act.
But when a person who has made a statement, even if it be in expectation of death but is not dead, it is not a dying declaration.
It is not admissible under section 32 of the Evidence Act.
[50 E F] In the instant case the two witnesses whose statements were erroneously called dying declarations by the High Court were alive and deposed in the case.
Such statements are admissible under section 157 of the Evidence Act as former statements made by them to corroborate their testimony in the Court.
[50 F G] Common intention is a question of fact and is subjective.
It can be inferred from facts and circumstances.
In the instant case the appellants who were related to one another were armed with deadly weapons when they waylaid and attacked the deceased and his companions, someone incited them to "kill", and after the assault they left the scene of occurrence together and they were arrested from the same place.
There was the therefore common intention and the High Court was justified in convicting them under section 302/34, IPC.
[52 A C]