H. B. Gandhi, Excise and Taxation v Messrs Gopi Nath and Sons and Others
Supreme Court of India

11 December 1989
C.A. Nos. 5092-93 of 1989
The Order of the Court was as follows:
Special leave is granted.
1.  These appeals are by the Revenue and are directed against the order dated May 20, 1983 of the Division Bench of the High Court of Punjab and Haryana in L.P.A. Nos. 444 and 445 of 1982 dismissing the appeal preferred by the appellant against and affirming the orders dated January 13, 1983 of the learned Single Judge in Civil Writ Petition Nos. 2054 and 2170 of 1982. By those writ petitions, the respondents assailed orders of assessment of sales tax under the Haryana General Sales Tax Act, 1973 bringing to tax a turnover of sales of articles of food said to have been sold by the respondents in their restaurants.
2.  Against the respective orders of assessment the respondents filed appeals provided for in the statute. S. 39(5) of the Act contemplates that no appeal shall be entertained unless it is filed within sixty days from the date of the order appealed against and the appellate authority is satisfied that the amount of tax assessed has been paid. The proviso to that sub-section, however, invests the appellate authority with the discretion to waive the requirement of the payment of tax as a precondition to the entertainability of the appeal and to proceed to consider it on the merits subject to the appellant furnishing a bank guarantee or adequate security for the tax. In the present cases, appeals envisaged and permitted by the statute had been lodged. However, respondents were aggrieved by the order of the appellate authority declining to exercise the discretion under proviso to S. 39(5) in favour of respondents and calling upon them to deposit the tax due as a condition for the appeals being heard on the merits. Respondents appear to have assailed the order declining to exempt them from payment of the tax in further appeals; but without any success.
3.  Respondents thereafter approached the High Court u/art. 226 of the Constitution. From the order of the learned Single Judge, which has come to be affirmed by the Division Bench, it would appear that the appellants did not confine their challenge to the legality of the order of the appellate authorities declining relief under proviso to sub-s. (5) of Section 39, but the respondents raised and the High Court permitted a challenge to the merits of the assessment itself on the ground that the transactions assessed to sales tax were in fact services rendered by the respondent restaurants to their customers and did not constitute sale of articles of food.
The High Court entertained the writ petition and upon a re-appreciation of the facts proceeded to hold that the transactions did not constitute sales but were mere transactions of service. In these appeals the permissibility of such a re-assessment of the evidence by the High Court at a stage where appeals were the appropriate remedy and where in fact such appeals had been filed is assailed. Learned counsel for the Revenue urged that the question whether supply of articles of food and drinks to a customer in a hotel constitute sale of goods invoking a transfer of the property in the goods to the customer or whether the transactions are essentially and predominantly one of merely the rendering of service - the supply of food and drinks being merely incidental - is a complex and difficult question to be decided on a number of criteria and dependent on primary facts to be found by the fact-finding authority under the statute. This, indeed, is so.
4. In the Northern India Caterers (India) Ltd. case, 1979 Indlaw SC 110 the complexities of the exercise were indicated by this Court
"We have no hesitation in saying that where food is supplied in an eating house or restaurant, and it is established upon the facts that the substance of the transaction, evidenced by its dominant object, is a sale of food and the rendering of services is merely incidental, the transaction would undoubtedly be exigible to sales tax. In every case it will be for the taxing authority to ascertain the facts when making an assessment under the relevant sales tax law and to determine upon those facts whether a sale of the food supplied is intended."
5.  In the course of the proceedings of assessment the assessing authority said:
"After going through the above judgment of the Supreme Court of India, it becomes clear that where a food is supplied in an eating house or a restaurant and the substance of the transaction has a dominant object of sale and rendering of services is merely incidental, the transactions would be subject to sales tax. The deciding factor in the case of this dealer, therefore, is whether the transaction made by him is the purpose of providing entertainment and other services to the customers or the dominant factor was sale of foodstuffs. As already held by the Supreme Court in Northern India Caterers case, 1979 Indlaw SC 110 there may be high style restaurants or residential hotels rendering a bundle of special services like ball dance, rare music, viands of high regale, etc. as described by learned judges in their above-cited judgment. The establishment of the dealer does not answer the above description and cannot be considered to be of a high style restaurant providing services. It is an ordinary restaurant. I have paid a visit to the restaurant and have observed that the furniture and crockery provided in the restaurant is of an ordinary type which is barely necessary to run any restaurant in a small place like Karnal. No special music has been provided nor any bikini dances or special shows are held. Their Lordships of the Supreme Court have clearly held that where the charges for music, dances and the supply of foodstuffs are made in a consolidated form and it is not possible to bifurcate the items and decide the bills to discover separately the components of goods sold and in case where the service charges are much more than the value of the goods supplied, the transactions would not attract the levy of sales tax. It is, however, unambiguous that where the charges for the foodstuffs are dominant in the bills and the services are nominal, the object of the dealer is definitely one of sale of foodstuffs and not of rendering services. I have examined some of the bills of the dealer and find that he has charged the price of foodstuffs only and there is no other consideration for any type of services. The dominant object in his case is, therefore, undoubtedly the sale of foodstuffs and not of providing any music, or entertainment services. I think the Supreme Court had in mind those establishments where the entrance is on some payment, where shows are held and the supply of foodstuffs is just nominal and incidental to the entertainment. A visitor to such entertainment or amusement house spends few hours for the purpose of entertainment on payment. Naturally, the establishment providing such amusement/entertainment to the customer has to satisfy his bodily wants and amounts charged for satisfying such bodily wants are nominal as compared to the charges of services and providing amusement etc. No such thing is, however, found in his restaurant"
6.  The constitutional validity of the provisions in sub-s. (5) of S. 39 of the Act were not assailed in the writ petition. Similar provisions, accompanied by similar proviso, have been held valid. At the stage at which the respondents approached the High Court, what the respondents could have, if the facts so justified, assailed was the question of the refusal of the appellate authority to exercise the discretion under the proviso. When an hierarchy of appeals is envisaged by a taxing statute, it is generally to be insisted that an assessee must go through the statutory proceedings. In C. A. Abraham v. ITO 1960 Indlaw SC 280, it was observed
"In our view the petition filed by the appellant should not have been entertained. The Income Tax Act provides a complete machinery for assessment of tad and imposition of penalty and for obtaining relief in respect of any improper orders passed by the income tax authorities, and the appellant could not be permitted to abandon resort to that machinery and to invoke the jurisdiction of the High Court u/art. 226 of the Constitution when he had adequate remedy open to him by an appeal to the Tribunal"
7.  In the present case, the stage at and the points on which the challenge to the assessment in judicial review was raised and entertained was not appropriate. In our opinion, the High Court was in error in constituting itself into a court of appeal against the assessment. While it was open to the respondent to have raised and for the High Court to have considered whether the denial of relief under the proviso to S. 39(5) was proper or not, it was not open to the High Court to re-appreciate the primary or perceptive facts which have otherwise within the domain of the fact-finding authority under the statute. The question whether the transactions were or were not sales exigible to sales tax constituted an exercise in recording secondary or inferential facts based on primary facts found by the statutory authorities. But what was assailed in review was, in substance, the correctness - as distinguished from the legal permissibility - of the primary or perceptive facts themselves. It is, no doubt, true that if a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then, the finding is rendered infirm in law.
8.  But here what was assailed was the correctness of findings as if before an appellate forum. Judicial review, it is trite, is not directed against the decision but is confined to the decision making process. Judicial review cannot extend to the examination of the correctness or reasonableness of a decision as a matter of fact. The purpose of judicial review is to ensure that the individual receives fair treatment and not to ensure that the authority after according fair treatment reaches, on a matter which it is authorised by law to decide, a conclusion which is correct in the eyes of the Court. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. It will be erroneous to think that the Court sits in judgment not only on the correctness of the decision making process but also on the correctness of the decision itself.
9.  On a consideration of all the circumstances of the case, we think that the order of the High Court cannot be allowed to remain undisturbed. We allow these appeals, set aside the judgments of the Division Bench in the letters patent appeals as also the orders of the learned Single Judge in the writ petitions in the High Court.
10.  Learned counsel for the respondents, however, said that though the legality of the refusal of the benefit of an order under the proviso to S. 39(5) had been raised before the High Court, that question receded to the background in view of the relief having been allowed on the main question touching the nature of the transactions. Learned counsel said that the former question yet remains to be examined. Learned counsel also submitted that the refusal of the appellate authorities to exempt respondents from the deposit of the assessed tax as a precondition to the entertainability of the appeals was unsupportable and that in their present straitened financial circumstances it will not be possible for the respondents to avail themselves of the right of appeal.
11.  It appears to us that having regard to the circumstances that we are considering this matter after lapse of several years it would neither be necessary nor appropriate to remit the matter to the High Court to examine the question whether the refusal of the appellate authorities to give to the respondents a benefit of the proviso to S. 39(5) was legal or not. It appears just that respondents should be enabled to have the benefit of the right of appeal and that we should, as a rough and ready measure, determine the conditions on which relief under the proviso should be given to them.
12. We, accordingly, set aside the orders of the appellate authorities declining or confirming, as the case may be, the refusal of the benefit of an order under said proviso and direct that the appeals filed by the respondents before the first appellate authority be now restored and proceeded with on the merits in accordance with law, subject to the condition that the respondent, in each of the appeals, deposits a sum of Rs 5000 towards the assessed tax and furnishes security in respect of the balance of the tax to the satisfaction of the said first appellate authority within two months from today.
13.  The appeals shall be taken up for consideration of the merits and dealt with and disposed of in accordance with law after compliance with these conditions.
These appeals are disposed of accordingly. No costs.
Appeals disposed of.


Khedu Mohton and Others v State of Bihar
Supreme Court of India

17 August 1970
Criminal Appeal No. 162 of 1967. Appeal by special leave from the judgment and order dated May 3, 1967 of the Patna High Court in Criminal Appeal No. 40 of 1965
The Judgment was delivered by : K. S. Hegde, J.
1. This appeal by special leave is directed against the decision of single judge of the High Court of Judicature at Patna setting aside the acquittal of the appellants and convicting them under ss. 379/149, I.P.C. as well as under s. 143, I.P.C.
2. The appellants were prosecuted before the Munsiff Magistrate, 1st Class, Arrah for dishonestly cutting and removing the paddy crop in plots Nos. 340 and 346 pertaining to khata No. 82 in village Ibrahim Nagar District Shahbad.
3. The complainant's case is that those lands belonged to him and the appellants unlawfully trespassed into that property on November 19, 1961 and harvested the rice crop. The appellants pleaded not guilty to the charge. The learned trial magistrate held the appellants guilty and convicted them as mentioned earlier. In appeal the learned District Judge, Shahbad acquitted the appellants. He felt unable to rely on the prosecution case for three different reasons.
4. Firstly he came to the conclusion that the witnesses who spoke about the occurrence are all interested witnesses and it is unsafe to place reliance on their testimony. He secondly came to the conclusion that there was considerable delay in filing the complaint and the delay in question has not been explained by the prosecution and that circumstance throws doubt on the prosecution case. Lastly he held that the non-examination of the police inspector who is said to have come to the place of occurrence at the time of the occurrence and seen some of the appellants' harvesting the crop casts further doubt on the prosecution case. The High Court differing from the 1st appellate court held that there was no delay in filing the complaint nor was the non examination of the police inspector a circumstance that went against the prosecution. It did not deal with the finding of the 1st appellate court that it is unsafe to place reliance on the evidence of P.W.s. 1 to 4 as they were interested witnesses.
5. It is true that the powers of the High Court in considering the evidence on record in appeals under s. 417, Cr. P.C. are as extensive as its powers in appeals against convictions but that court at the same time should bear in mind the presumption of innocence of accused persons which presumption is not weakened by their acquittal. It must also bear in mind the fact that the appellate judge had found them not guilty. Unless the conclusions reached by him are palpably wrong or based on erroneous view of the law or that his decision is likely to result in grave injustice, the High Court should be reluctant to interfere with his conclusions. If two reasonable conclusions can be reached on the basic of the evidence on record then the view in support of the acquittal of the accused should be preferred. The fact that the High Court is inclined to take a different view of the evidence on record is not sufficient to, interfere with the order of acquittal.
6. The learned appellate judge has come to the conclusion that P.Ws. 1 to 4 are interested witnesses and it is unsafe to place reliance on their testimony. It is established in evidence that P.Ws. 1 to 3 are interested witnesses. They are the enemies of the appellants. This aspect of the case was not considered by the High, Court at all.
7. The occurrence Is said to have taken place on November 19, 1961 but the complaint in respect of the same was filed on November 27, 1961. The explanation given by the complainant for this inordinate delay was that he laid information about the occurrence before the police on the date of the occurrence itself; he was expecting the police to take up the investigation; as the police did not take up the investigation, he filed the complaint on 27th November, 1961. This explanation has been rejected by the 1st appellate court. The complaint said to have been filed by the complainant has not been summoned nor proved. No satisfactory proof of any such complaint has been adduced before the court. If a complaint tinder s. 154 had been filed, the same would have been registered and a final report under s. 173 submitted. None of those documents have been summoned much less proved. Curiously enough, the learned judge of the High Court says that if the learned Sessions Judge had looked into the diary of the magistrate, he would have found reference to the complaint filed by the complainant. In this Court we requested the Counsel for the State to look into the original records and inform us whether there is any reference to a complaint filed by the complainant. After examining the records, he told us that there is no such reference. We do not know how the learned judge formed the impression that there was some reference in some record about the information laid before the police.
8. In fact in this Court Counsel for the State told us that what had happened was that before the occurrence, the complainant appears to have filed an application before the police mentioning that there was an apprehension of breach of peace. The delay of about 8 days in filing the complaint in a case of this nature throws a great deal of doubt on the prosecution story. It was the duty of the prosecution to explain the delay satisfactorily. Failure of the prosecution to do so undoubtedly is a circumstance of considerable importance.
9. According to the complainant, as the appellants were reaping the crop the Police Inspector happened to come there and that he had seen some of the appellants harvesting the crop. If that be so the Inspector of Police would have been an extremely important witness. His evidence would have been useful in determining the guilt of the accused. He is a disinterested person. No explanation was given for not examining him. Strangely enough the learned Judge of the High Court opined that there was no purpose in examining the inspector when he had failed to investigate the complaint made before him. As seen earlier, the alleged complaint appears to be an imaginary one. Therefore the inference that the inspector of police was guilty of dereliction of duty was unwarranted.
10. In view of our above conclusion, it is unnecessary for us to consider the question of law canvassed by Mr. E. C. A agarwal, learned Counsel for the appellant. But as the same has been argued we shall go into it. The appeal before the High Court was brought after obtaining special leave under sub-s. (3) of s. 417, Cr.P.C. It appears that during the pendency of the appeal, the complainant died. It was contended before the High Court and that contention was repeated before us that the appeal abated in view of the death of the complainant. This contention was rejected by the High Court. In support of that contention, Counsel for the appellant relied on two decisions one of Allahabad High Court in Nehal Ahmad v. Ramji (A.I.R. 1925 All. 620) 1924 Indlaw ALL 111 and the other of Madras High Court in Thothan and anr. v. Murugan and ors.( A.I.R. 1958 Mad 624) 1958 Indlaw MAD 894 The first decision has no application to the facts of the present case. That was an appeal under S. 476 (B) of the, Cr. P.C. It is true that the Madras decision was rendered in an appeal under s. 417(3) of the Cr. P.C. In our opinion, the learned single judge of the Madras High Court erred in thinking that the decision of the Allahabad High Court lent any support to his conclusion that an appeal filed under S. 417(3), Cr. P.C. abates on the death of the complainant. The question of abatement of criminal appeals is dealt with by s. 431 of Cr. P.C.. That section reads
"Every appeal under S. 41 1 A, sub-s. 1 or s. 417 shall finally abate on the death of the accused and every other appeal under this Chapter (except an appeal from a sentence of fine) shall abate on the death of the appellant."From this section it is clear that an appeal under s. 417 can only abate on the death of the accused and not otherwise. Once an appeal against an acquittal is entertained by the High Court, it becomes the duty of the High Court to decide the same irrespective of the fact the appellant either does not choose to prosecute it or unable to prosecute it for one reason or the other. The argument that while introducing sub-s (3) into s. 417, Cr. P.C., the Parliament overlooked the provisions contained in s. 43 1, does not deserve consideration. The language of s. 431 is plain and unambiguous. Therefore no question of interpretation of that provision arises.
11. In view of our finding on the merits of the case, we allow this appeal, set aside the judgment of the learned single judge of the High Court and restore that of the Sessions Judge. The appellants on bail. Their bail bonds do stand cancelled.
Appeal allowed.


Gambhir v State of Maharashtra
Supreme Court of India

15 April 1982
Cr.A. No. 746 of 1980
The Judgment was delivered by: MISRA, J.
1.  The present appeal is directed against the judgment of the Bombay High Court at Nagpur dated 19th/25th of June, 1979, convicting the appellant under S. 302 of the Indian Penal Code, 1860 and sentencing him to death for the murder of Laxmi and her two children.
2.  One Namdeo Gopal, resident of Shelgaon-Jahagir, was in the employment of Shankarrao Shewale, resident of the same village, as an agricultural labourer. Shankarrao Shewale had also land in another village Andrul at a distance of 15 miles from Shelgaon-Jahagir. Shankarrao had deputed Namdeo to cultivate his filed at Andrul about three weeks prior to the date of occurrence on 26th February 1975. He accordingly went to village Andrul leaving his wife Laxmi and daughter Manda aged about 10 years and his son Samadhan aged about 4 years at his residence in a locality known as Tagwale locality. During his absence Gambhir the appellant used to visit the house of Laxmi off and on.
3.  The prosecution story as unfolded in evidence is that on 26th of February 1975 Gambhir was seen in the house of Laxmi in the evening. He was also seen in the company of Laxmi at about 10.00 p.m. at night on the same day under a Neem tree. Thereafter neither Laxmi nor her children were seen alive. Next morning that is on 27th of February the neighbours found that the thatched door of the house of Namdeo was open and household utensils and other goods in the house were lying in disorder. Laxmi and her children were not found there. The news spread in the village about the disappearance of Laxmi and her children. When Shankarrao Shewale, the employer of Namdeo got the news, he proceeded to village Andrul and brought Namdeo back in the evening of 27th of February 1975.
4.  Namdeo along with Shankarrao Shewale and certain other persons proceeded to police station, Chikhli, at a distance of 8 miles from village Shelgaon-Jahagir for making a report. Shri Chaudhari incharge of the police station recorded the first information report and proceeded to village Shelgaon-Jahagir. He also sent a requisition for the assistance of a dog sqad to the authority concerned at Aurangabad. Shri Choudhary for some time waited for the arrival of the dog squad, but when the dog squad did not arrive, he commenced preliminary investigation. He tried to open the lock of the inner living room. The lock, however, could not be open so he pulled-up and seized the same under a Panchanama. He peeped into the room through the shutters and found things lying in disorder. He, however, did not enter the room so that the effectiveness of the dog squad might not to lost by the entry of other persons in the house. He closed the door and locked the room with another lock.
5.  The dog squad did not arrive till the evening of 28th February 1975. The Investigating Officer lost his patience and he along with the Panches climbed on the roof of the house and pushed aside the tin sheets covering the room. He peeped into the room with the help of a torch light and found foul smell coming from the room. He also sought to remove the clothes covering a corn-bin with the help of an iron bar and on removing the clothes he found legs of human being. He thereafter set right the tin sheets on the roof as before.
6.  At long last the dog squad arrived on the 1st of March, 1975, and the police with the Panches entered the house. One broken trunk lying inside the house and the lock which was broken open was shown to the dog, which took its smell and started moving about searching the area and locality around.
7. Eventually the dog went to the house of the appellant and stopped there. The appellant was arrested and at the time of his arrest some injuries were found on his person. The shirt and the dhoti put on by him at the time of his arrest were also found to contain stains of blood. On interrogation the accused offered to point out the well where the dead bodies of Laxmi and her daughter Manda were lying. Many more articles are alleged to have been recovered on his pointing out in various instalments during the course of three to four days.
8.  The accused was, therefore, sent up to the Court of Session to stand his trial for an alleged offence under S. 302 of the Indian Penal Code, 1860. The accused pleaded not guilty to the charge. Apart from making the statement under S. 313 of the Criminal P.C., he also filed a written statement and produced some documents. His defence was that Kisan Govinda, the Surpanch of the Gram Panchayat bore enmity against him and other members of his family. He had quarrel with his father and uncles. Kisan Govinda has claimed passage through the filed of Sahebrao, uncle of the accused. When he refused to grant him the way he filed a suit in the Court. Kisan had again made a complaint to the police on the allegation that he had obstructed 400 labourers.
9. There was again a theft in the house of Patilbua, another uncle of the accused. Kisan made a false charge of theft against his another uncle Rajaram. He had also given evidence against Rajaram. On account of this long, standing enmity between Kisan Govinda Rao and the family of the accused, he had sought to implicate the accused falsely in the case. Other neighbours who gave evidence against the accused are all relations of one another and they deposed against the accused at the instance of Kisan Govinda.
10.  There is no eye witness of the occurrence and the case proceeded only on the basis of circumstantial evidence. The Sessions Judge, however, convicted the appellant under S. 302, Indian Penal Code, 1860 and sentenced the accused to life imprisonment. The accused went up in appeal to the High Court. The State also filed a criminal revision for enhancement of the sentence. The High Court allowed the revision of the State and dismissed the appeal of the appellant and enhanced the sentence of the appellant from life imprisonment to death. The appellant has now come to challenge the judgment of the High Court by the present appeal.
11.  It has already been pointed out that there is no direct evidence of eye witness in this case and the case is based only on circumstantial evidence. The law regarding circumstantial evidence is well-settled. When a case rests upon the circumstantial evidence, such evidence must satisfy three tests :
(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.
12. The circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused. The circumstantial evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. In the light of the legal position about the circumstantial evidence, we have to examine whether the circumstantial evidence in the instant case satisfies the requirements of law. The circumstantial evidence in the instant case may be broadly classified into three parts; (1) oral evidence to prove that in the absence of Namdeo, the accused used to visit the house of Laxmi regularly and he was seen in the evening of 26th of February 1975 in the company of Laxmi and her children. He was also seen at about 10.00 p.m. the same night in the company of Laxmi under a neem tree in the village. At mid-night he was again seen going along the way near the house of Babulal, (2) the various recoveries most of them at the instance of the accused and (3) medical evidence.
13.  Dwarka, PW 2 and her husband Babulal PW 6 are next door neighbours. They deposed that the accused used to visit the house of Laxmi during the absence of Namdeo from the village. He generally, came to the house of Laxmi in the evening and chatted with her and her children. On 26th February also he was seen in the company of Laxmi and her children. At mid-night they heard some noise from the house of Namdeo. They woke up and opened their door. They found accused coming out from the house of Namdeo in white Dhoti, full sleeves Shirt with a cap on his head. In cross-examination both of them admitted that they could identify the accused in the dark night from behind from a distance of 20 to 24 feet when the accused turned his face towards the back. They did not question him. They did not report to anybody the village nor did they give this information even to the police when it came to the village. Although they were the next door neighbours they did not go to the house of Laxmi even when they found that the household utensils were lying scattered.
14.  At the face of it, it looks rather improbable that they would recognise the accused at the dead of night from behind during the twinkling of an eye when the accused turned his face back. Further the conduct of these witnesses in not informing the police what they had heard or seen at mid-night and their omission to report about it to anybody in the village are also significant. In the circumstances it is unsafe to rely on their testimony.
15.  Mathurabai PW 3, also deposed that in the evening of 26th February she saw the accused going to the house of Namdeo twice or thrice. She again saw the accused and Laxmi going towards the village from the house of Laxmi. At that time she asked Laxmi as to where she was going. She answered that he daughter had gone to the house of Himmatrao Patil for fetching milk but she had not turned back so far. She also deposed that her daughter Vimal used to go to the house of Laxmi in the night for sleeping as Laxmi used to call her for a company in the absence of Namdeo.  Thus she is a witness of seeing the accused going in the company of Laxmi at dinner time. But in cross-examination she admitted that he went away near dinner time and thereafter she talked to Laxmi for about half an hour. Thus from her own admission she belies the prosecution story of the accused going in the company of Laxmi at dinner time.
16.  She further admitted in cross-examination that besides the accused other persons also used to come to the house of Laxmi in the absence of her husband. Kisan Govinda Rao in whose service Namdeo previously was, also used to go to the house of Laxmi to enquire about her children.
17.  Vimal PW 19, is the daughter of Mathurabai, PW 3. According to her deposition she used to go to the house of Laxmi for sleeping during the absence of Namdeo. On 26th February as Laxmi and her children used to call her for giving a company she took her meals and went to the house of Laxmi, on the day of occurrence. At that time Laxmi was busy preparing tea. Samadhan was sleeping inside the house and Manda had gone to fetch milk. The accused was also sitting there. The accused took a cup of tea without milk, as Manda had not returned till then. Laxmi and accused both proceeded towards the village. Laxmi asked her to go home.
18.  She also like her mother admitted in cross-examination that the accused got up from the house of Laxmi and went away in her presence. Laxmi thereupon asked her to come again for sleeping. According to her Kisan Govinda Rao also used to come to the house of Laxmi. She also like her mother Mathurabai belied the prosecution case of the accused being seen in the company of Laxmi while going towards the village at dinner time.
19.  This leads us to the evidence of Satya Bhama PW 21 daughter of Patilbuwa, aged about 15 years. She deposed that at about dinner time she was standing on the terrace which is on the first floor of her house along with her brother Ramesh and Khushal. From there she saw one female standing below the Neem tree. On enquiring the female said that she was the wife of Namdeo. Gambhir was also standing at a distance of 2 or 4 feet from her..
20.  In cross-examination she admitted that her sister Rukhmini was married to the nephew of Kisanrao Sarpanch. She denied whether her father Patilbuwa had proceeded Raja Ram and Himmat Rao for the offence of theft. The Neem tree according to her was at a distance of 25 feet from her house. It is difficult to see a person standing under a Neem tree from a distance of 25 feet even if it was a moonlight night. A person standing under a tree at night can see a person in the moonlight night but not vice versa.
21.  In view of the close relationship between Patilbuwa, her father and Kisan Govinda Rao there is no wonder that this minor girl came to depose against the accused at the instance of Kisan Govinda Rao who is the moving spirit in the case. While discussing the evidence of Mathura Bai PW 3 and Vimal PW 19 the theory of accused going in the company of Laxmi from her house at dinner time has already been disbelieved and thus there was no occasion for his witness to see Laxmi and the accused under the Neem tree. Her evidence is too good to be relied upon.
22.  On scrutiny the only thing established is that the accused and other persons used to visit the house of Laxmi during the absence of her husband and that he was again seen in the company of Laxmi on 26th February in the night till before dinner time. This single circumstance by itself is too feeble to connect the accused with the murder of Laxmi and her children.
23.  Now we take the evidence relating to various recoveries most of which are alleged to be on the pointing of the accused. These recoveries were made during the course of 4 days from 1st March to 4th March 1975. In Panchanamas regarding all these recoveries Kisan Govinda Rao is one of the witnesses including Ex. 27 on which his signature was subsequently appended by way of interpolation. At one stage the High Court felt suspicious about the Panchanama Ex. 27. It, therefore, directed the Sessions Court to take additional evidence of other Panches. Accordingly the evidence of Narain and Sukhdeo was recorded.
24.  From the deposition of Kisan Govinda Rao P.W. 8, it appears that he was called by the police first on the night of 27th February at 2.45 a.m. and Waman Janu was the other Panch. They were taken to the house of Namdeo. Some breads, vegetables and some utensils were lying in the Osari. The Panchnama Ex. 19 was drawn up. For the second time he was called along with Waman Janu, another witness of the Panchnama at 3 p.m. They were taken to the house of Namdeo. They climbed over the tin roof. The tin was removed from the roof. They could see the legs of a child after the removal of the clothes from the surface of a cornbin. Panchanama Ex. 21 of the same was drawn up. He was called for the third time by the police on 1-3-1975 with two other Panchas Waman Janu and Sada Shiva Mhaske. Police took them and the dog and her master to the house of Namdeo.
25. The dog was allowed to take the smell of the box which was lying open. The lock thereof was lying by the side. The dog then came out. Her master followed her and the Panchas followed the master. The dog stopped under the Neem tree on the way and took the smell. The dog then came at the back side of Raja Ram's house. She then again went to the house of the accused. The dog then went near the stone embankment near the tamarind tree. Eventually she went inside the house of the accused. Panchanama Ex. 22 of the same was drawn up. Kisan Govinda Rao was called for the fourth time at 5 p.m. along with Rambhau Nandu and took them to the nala to the west of the bridge at about 10 feet. Four stones were found in the bed of the nala by the side of the stream. All these stones were stained with blood. They were sealed under a Panchanama Ex. 28.
26.  He was called for the fifth time at 6 p.m. along with Waman Janu and Rambhau Nandu. Police took them to the house of Namdeo. Household utensils were lying scattered. Police Station Incharge asked Namdeo to verify whether his cash and ornaments were missing or intact. Namdeo told that one box and one Bhagona were missing. Panchnama Ex. 29 of the scattered articles was drawn. Kisan Govind Rao was called for the sixth time on 2-3-1975 at 11 a.m. with Waman Janu, the other Panch. Police took them to the house of Namdeo. Police opened the door and asked Namdeo to tell which articles of his were missing. Nemdeo on examining the articles said that a box and a blanket were missing. His cash and gold and silver ornaments were intact. Panchnama Ex. 30 of what happened there was drawn up.
27.  For the 7th time he was again called at 1 p.m. at the school along with Janardan Shripat and Wamanrao Bhikanrao, other Panchas. The police asked them to hear what the accused had to say. Accused informed that he had kept the keys of the lock buried underground near the kud wall of Osari of Namdeo. The memorandum of his statement was recorded under the signature of the two panchas.
28.  Kisan Govinda Rao was called for the eighth time at 1 p.m. on 3rd March, 1975. Dashrath Yeduji was the other Panch at the school. Police asked them to hear what the accused was saying. The accused offered to show the well in which he had thrown the blanker and the box. The memorandum of his statement Ex. 33 was recorded.
29.  Kisan Govinda Rao was called for the ninth time on 4th March 1975 at 3 or 3-30 p.m. at school. Waman Janu and Rambhau Nanduji were the other Panchas. Police asked them to hear what the accused was going to say. He said that a string containing black beads is contained below the stone behind his house. The memorandum of his statement was drawn up under the signature of the Panchas which is Ex. 34.
30.  For the last time Kisan Govind Rao was called by the police at 5 p.m. at school and the other Panch was Waman Janu. Again they were asked to hear what the accused had to say and the accused said that he had kept one brass pot into the stone embankment of his Wadga. The accused offered to discover the same. The memorandum of his statement Ex. 36 was recorded.
31.  The various recoveries made in various instalments most of them on the pointing of the accused appears to be suspicious. On 27th of February when the Investigating Officer along with the Panchas peeped inside the room after removing the tin roof they found foul smell coming out. If the body had decomposed just within one day of the occurrence obviously must more foul smell would be coming out from the well, on 1st of March, where two corpses were lying. It has come in evidence that people used to go towards the well to ease themselves. They must have come to know about the foul smell specially when the dog squad was there and it would have been not at all difficult for the dog to locate the place where the foul smell was coming from. In our opinion this must have been known to all concerned that foul smell was coming out of the well and people must have tried to find the reason thereof. In such a situation it was not at all necessary for the accused to have pointed out the place where the dead bodies were lying.
32.  Coupled with this fact we know that Kisan Govinda Rao had been called as a Panch in respect of each and every recovery made during the course of four days. There is both oral and documents on the record to establish that there was a long standing enmity between Kisan Govinda Rao on the one hand and the members of the family of the accused on the other.
33.  The High Court has, however, ignored the documentary, evidence including the judgment produced on behalf of the accused on the simple ground that they indicate enmity not with the father of the accused, but with his uncles, who were separate from the accused and his father and therefore, that enmity can be of no avail for the accused. His uncle may be living separately from the accused and his father, but that does not destroy the relationships of the members of the family. Blood is thicker than water. If the uncles of the accused were involved in criminal and civil litigation with Kisan Govinda, the evidence of Kisan cannot be safely relied upon.
34.  This leads us to the medical evidence. The two doctors, Dr. Tapre, P.W. 14 and Dr. Koti, P.W. 12, who conducted the post-mortem examination could not give the probable time of death of the three deceased as the bodies were in a high state of decomposition. The High Court, however, tried to delve deep into the master and after a long drawn-up reasoning came to the conclusion that the death of the three deceased had taken place late in the night on 26-2-1975. In this connection, the High Court made the following adverse remarks about the doctors;
"We feel and regret that Dr. Tapre as well as Dr. Koti have failed to bring the case in their notes and care and circumspection, and considerations which are patent and necessary before giving their opinion in regard to such a vital as to the probable time of death of the deceased ....... he failed to do his duty by the profession which he professed to practice ....... Dr. Koti who is an M. D. in General Medicine says that"
35. No opinion could be given as to the probable cause of death (which appears to be a mistake of time) as the body was in high state of decomposition." The High Court came to its own opinion when the doctors failed to given opinion. The Court has to draw its conclusion on the basis of the materials supplied by the expert opinion. The High Court has tried to usurp the functions of an expert. Accepting that the accused was seen in the evening of 26th February in the company of Laxmi, in the absence of any positive evidence about the probable time of death, it is difficult to connect the accused with the crime as there might be a long gap between the accused being seen in Laxmi's company and the time of the death of the three deceased. Many more persons might have come in between. Besides there is evidence on the record to show that other persons also used to visit Laxmi's house.
36.  The last but not the least in importance is the question of motive. The motive alleged by the prosecution is of robbery or theft of the cash and the ornaments to the tune of Rs. 7, 000/-. But curiously enough not a single item of cash or the ornaments was touched. The High Court had been impressed by the fact that the accused could not locate the place where the cash or the ornament were kept. If the prosecution case is that the accused had been coming regularly to the house of Laxmi, it is too much to assume that he would commit the murder of Laxmi and her children without first ascertaining where the cash and valuables were kept. The Sessions Judge himself did not accept the prosecution case regarding motive and it is on this account that he chose to award lesser punishment of life imprisonment.
37.  From the evidence discussed above, we find that the three conditions which are necessary to be satisfied before circumstantial evidence can be made the basis for conviction have not been fulfilled. There may be suspicion against the accused but the suspicion cannot take the place of evidence. The approach of the High Court in the appraisal of evidence is not at all satisfactory. The evidence on the record falls short of proving the guilt of the accused beyond all reasonable doubt. We accordingly allow the appeal set aside the conviction and sentence of the appellant and he is acquitted of the charge. He shall be set free forthwith.
Appeal Allowed.


Arulvelu and Another v State, By The Public Prosecutor and Another
Supreme Court of India

7 October 2009
Cr.A. Nos. 1233-1234 of 2002
The Judgment was delivered by: Dalveer Bhandari, J.
1. These appeals are directed against the judgment of the High Court of Madras dated 12.3.2002 in Criminal Appeal No. 315 of 1992 and Criminal R.C. No. 691 of 1991 respectively.
2. In the instant case, the High Court has reversed the judgment of acquittal passed by the II Additional Assistant Sessions Judge, Periyar District in Sessions Case No. 45 of 1999 and convicted the accused persons.
3. Brief facts which are necessary to dispose of the matter are recapitulated as under:
This appeal is filed by Arulvelu, A-1 and Krishnasamy, A-2 (father of A-1). Appellant Arulvelu has been convicted under section 304-B of the Indian Penal Code (for short 'IPC') and sentenced to seven years rigorous imprisonment and he has been further convicted under section 498-A IPC and sentenced to rigorous imprisonment for a period of two years and to pay a fine of Rs.1,000/-, in default to suffer three months rigorous imprisonment. Appellant accused no.2 has been imposed sentence of fine of Rs.1,000/- under section 498-A of IPC, in default to suffer simple imprisonment for a period of three months.
4. Before the marriage of Arulvelu with Mangayarkarasi (since deceased), an agreement was entered into to the effect that towards the consideration of the marriage, deceased's father P.W.1 would give gold ornaments of the weight of 50 sovereigns along with other articles and a car to Arulvelu.
5. The father of the deceased could give ornaments of the weight of only 30 sovereigns of gold and also could not give the car as undertaken. Instead of giving the remaining ornaments of 20 sovereigns and a car, P.W.1 in all gave only Rs.5,000/- in small installments. This was the main cause of annoyance of Arulvelu and his family members with the deceased. It is the case of the prosecution that accused nos. 1 to 3 had been torturing the deceased Mangayarkarasi by demanding a car and money.
6. A baby boy was born to Arulvelu and the deceased Mangayarkarasi. Arulvelu told his wife that he would take back her along with the newly born child only if ornaments of the weight of 5 sovereigns and a cash amount of Rs.5,000/- were given to him. The father of the deceased had given ornaments of the weight of 4 sovereigns and a cash of Rs.5,000/- to the first accused. The first accused had taken back the deceased and the child only after receiving the aforementioned articles from P.W.1.
7. The first accused had demanded the balance ornament of the weight of one sovereign when the second child was born. The father of the deceased gave ornament of the weight of one sovereign.
8. The first accused had sent the deceased Mangayarkarasi many times to her father for getting money for doing business.
According to the prosecution, since the car was not given to the first accused, he had beaten and tortured the deceased asking her to get the car from P.W.1. Mangayarkarasi ultimately became disgusted with her life and at 11.30 a.m. on 15.3.1989, she committed suicide by hanging herself.
9. The prosecution, in order to prove its case, had examined 20 witnesses. K. Ramalingam P.W.1 is the father of the deceased. D. Latha P.W.4 is the sister of the deceased. S.T.P. Muthusamy Mudaliar P.W.5 is the neighbour. Thirumathi N. Yasodha P.W.2 is the tenant of P.W.1and P.W.3 A. Periasamy is the person who had arranged the marriage of the first accused and the deceased. V.P. Subramaniam P.W.6 is a close relative of the deceased. N.Manickam P.W.8 is a member of the Panchayat. S.A. Periasamy P.W.9 is another Sambandhi of P.W.1 who later on turned hostile.
10. The fact that the deceased had committed suicide by hanging herself is undisputed. The question which arises for our adjudication is whether the appellant is guilty for compelling the deceased to commit suicide. According to the prosecution she was forced to commit suicide because of consistent demands of dowry made by the first accused. According to P.W.1 the father of the deceased, his daughter committed suicide because he could not give gold and a car as agreed before her marriage. The accused persons started torturing and harassing the deceased which ultimately led to suicide.
11. The trial court in its lengthy and comprehensive judgment has dealt with the prosecution evidence and also all the 33 material exhibits. According to the learned trial Judge, the evidence of P.W.1 that he agreed to give balance ornaments was not corroborated by P.W.3. According to the trial court, P.W.1 had admitted that for the first time, he told the court that accused no. 2 demanded 40 sovereigns and the same was not stated either before the police officers or during Revenue Divisional Officer's enquiry. According to the trial Judge, P.Ws. 15, 17 and 20 would depose that P.W.1 has not told about the demand of ornaments during his cross-examination.
The trial court further held that P.W.1 had admitted that he did not tell about the demand of 40 sovereigns of gold by accused no. 2 during the course of investigation, it is his case that an agreement was reached at 35 sovereigns.
This has been corroborated by P.W.3 also. P.W.15, the Revenue Division Officer who conducted the enquiry and who also held the inquest came to the conclusion that the death was due to cruelty meted out to the deceased by way of demand of dowry. He has stated in the cross examination that during enquiry P.W.1 did not tell him that first accused demanded 5 sovereigns as a condition to take his wife and the child after delivery. P.W.15 further stated that during enquiry P.W.1 did not tell him that the first accused demanded Rs.10,000/- for his business. During cross-examination on the side of the accused, P.W.15 had admitted as follows:
"P.W.1 stated that in his evidence that A2 demanded 50 sovereign of gold before marriage, but he accepted to put only 30 sovereign of gold and remaining 20 sovereign will be given later and if the business goes well then he will get a car. But he never stated in his evidence that A2 demanded 40 sovereign of gold and P.W.1 refused and then accepted to give later."
12. The trial judge, while discussing the evidence of P.W.15, found that there was no demand of bridal gifts before the marriage. The trial judge disbelieved the version of P.W.3 holding that he is not related to P.W.1 and he pleaded ignorance about the date and month of meeting of P.W.1 and accused no. 2. The trial judge also disbelieved the testimony of P.W.1 regarding giving of 4 sovereigns and Rs.5,000/- to the first accused after the birth of the first child and another sovereign of jewel at the time of birth of the second child for the reason that those facts were not spoken to during investigation. This part of the prosecution case is disbelieved. The trial judge has clearly held that P.W.1 deposed for the first time in the court with regard to demand of a car. He did not mention this fact in the first information report.
13. Ex. P.8 is the suicide note of the deceased which reads as under:
"Nobody is responsible for my death. Children should be handed over to mother's house." In the suicidal note, the deceased had not implicated any accused. This factor has also weighed heavily with the trial court in acquitting all the accused. The argument on behalf of the accused was that the accused no. 1 had suspected the character of his mother-in-law and other members of his in- law's family, so he did not want the deceased to visit her parents' house and to resolve the dispute Panchayat was held and, as per the version of P.W.1, according to the decision of Panchayat, P.W.1 should not go to the house of the accused and the deceased and accused nos. 1 to 3 also should not go to the house of P.W.1. As per the version of the accused, the decision of the Panchayat not permitting the deceased to go to her parents perhaps led to suicide. The trial court after carefully examining the entire evidence acquitted the accused.
14. According to the High Court, if she (the deceased) had no problem in her marital house and she was living peacefully with her husband and in-laws, what was the necessity for her to commit suicide Why should she write in her suicide note to leave her children in her mother's house  According to the High Court, unless an intolerable harassment was meted out to her, there was absolutely no necessity for her to write like this that the children be handed over to her mother's house. Therefore, the High Court held that, in all probabilities, there was demand of dowry and the deceased was harassed by the first accused and therefore, she committed suicide.
15. The High Court set aside the judgment of the trial court on the count that the trial court gave undue emphasis on the minor inconsistencies and contradictions.
The High Court discarded the version of the trial court regarding P.W.1's deposition for the first time in court regarding demand of car which he did not mention in the first information report (FIR).
16. The High Court observed that the FIR cannot be an encyclopedia to contain all the details of history of the case. This approach of the High Court does not seem to be correct. The FIR should at least mention a broad story of the prosecution and not mentioning of material and vital facts may affect the credibility of the FIR.
17. The trial court doubted the veracity of the statement of P.W.1 because it did not find any corroboration of the statement of P.W.1 with the statement of P.W.3 regarding agreeing to give the balance gold sovereigns. The High Court without any basis discarded the judgment of the trial court.
18. The trial judge observed that the testimony of P.W.1 is not credible because he for the first time in the court had stated that accused no. 2 had demanded 40 sovereigns. This was not stated either before the police officer or during Revenue Divisional Officers' enquiry.
19. The trial court disbelieved the version of P.W.1 regarding giving 4 sovereigns and Rs.5,000/- to the first accused after the birth of the first child and another sovereign of jewel at the time of birth of the second child for the reason that those facts were not spoken to during the investigation. The High Court held this part of the prosecution case unbelievable, but the fact remains that the demand of dowry was proved beyond doubt through the evidence of P.Ws. 1 and 3. This approach of the High Court is not correct.
20. The High Court ought to have considered the entire evidence in a proper perspective. Unless comprehensive view of the entire evidence is taken in the proper perspective, a correct conclusion may not be possible. In this case, there has been acquittal by the trial court and, while reversing the order of acquittal, the High Court ought to have carefully considered the following circumstances:
(1) In the suicide note Ex. P-8, the deceased has not implicated any of the accused.
This is indeed a very significant and vital factor which ought to have received proper attention by the High Court.
(2) There is no credible evidence to suggest that soon before the death, the deceased has been subjected to cruelty or harassment by the accused in connection with any demand of dowry which led to a serious act of committing suicide.
(3) The High Court failed to consider that the marriage took place in the year 1983 and the deceased committed suicide in the year 1989 i.e. after more than six years of the marriage. There are two small children out of the wedlock. It is quite improbable that ordinarily there would be consistent demands of dowry after six years. The fact of consistent demands is not established from clear evidence of the prosecution.
(4) The distance between the matrimonial home and the parental home of the deceased is merely one kilometer. There are many houses around the house of the accused. It is submitted that there was neither a whisper nor any complaint was filed by P.W.1 before the deceased committed suicide.
(5) It appears from the statement u/s. 313 IPC that A-1 wanted his wife (deceased) to keep some distance from her parental home. It transpired in the meeting of the Panchayat that to settle the dispute between the husband and wife and to reduce the affinity of the wife (deceased) towards her parental home (One kilometer away from the parental home), the Panchayat took the decision that both the families should not visit each other. The impact of the decision of Panchayat on the deceased was not properly appreciated by the High Court.
(6) S.A. Periyasamy P.W.9 has not supported the case of the prosecution. He has stated that "we told Ramalingam that he and his wife should not go to Arulvelu"s house often". He has also admitted that A-1 and Magaiyarkarsi (deceased) were living happily.
(7) Ramalingam P.W.1 has stated that he consoled and advised his daughter to be bold as they would not come to see her as per the dictum of the Panchayat and wisely handle the situation at her matrimonial house. In fact the suggestion of defence is that the Panchayat was convened as there was a serious apprehension about the character of the mother of the deceased and her family.
That is why in the Panchayat no discussion about dowry demand was whispered. Moreover, if the first appellant did not like his deceased wife, he would not be keen on keeping her with him.
(8) It appears that the Panchayat's decision caused serious depression to the deceased. It is submitted that the deceased's strong affinity towards her parents and her inability to cope up with the situation coupled with her sickness, she was driven to such a situation to commit suicide.
(9) R. Murugesan P.W.15, the RDO who prepared the inquest report has also stated about the panchayat's decision and has opined that "the reason for her death may be the control exerted on her that she should not go to her mother's house".
(10) The trial court has observed that when the accused were questioned u/s. 313 Cr.P.C., they filed a written statement jointly. In that written statement it has been explained that
"Due to mental agony, incurable stomach-ache, pain over the body and the control by the first accused that she should not go to the house of her parents, Mangayarkarasi had committed suicide".
Further that "Arulvelu, without marrying for the second time for several years looked after the children with lot of love and affection so that the children may not feel the absence of their mother. The family of accused is a joint family. In that family, accused nos. 1 to 3 and Vijayakumar, another son of accused nos. 2 and 3 and his wife Padma are living jointly."
(11) The trial court noticed serious contradictions and inconsistencies in the evidence of P.W.1 and those became relevant particularly when the High Court was dealing with the order of acquittal.
(12) There are material contradictions in the statements of P.W.1 and P.W.3. P.W.1 says after the birth of first child there was demand. Whereas P.W.3 says after 6-7 months of the marriage there was demand. Further P.W.1 says that 20 days before the occurrence A-2 and A-3 said that customary gifts were not good. Whereas P.W.3 says that after 6-7 months of 1st incident deceased was told that the articles were not good. P.W.1 says 30 sovereigns. However, P.W.3 says 35 sovereigns. P.W.1 has stated that he said to A-2 that he could give 20 sovereign later on.
However, P.W.3 does not corroborate the same. Though P.W.3 has stated that A-2 demanded car during the marriage negotiation, however, P.W.3 has not corroborated the evidence of P.W.1 with regard to the demand of car. It is submitted that none of the investigating officers have supported P.W.1 with regard to the demand of jewels, car, cash and/or with regard to harassment to the deceased due to non fulfillment of the above said items.
(13) A. Periyasamy P.W.3 has not been examined by the DSP Sivanandam, RDO, Karuppusamy and others. Only CB CID Velu examined him. CB CID, Velu has stated that P.W.3 told him that the (a) P.W.1 is not his relative (b) not a family friend (c) accused is also not related (d) that he did not go for condolence when Mangai died (e) he does not know about Seer Varisai (f) he does not know about the dates on which he arranged the talks. However during his deposition he has admitted that he knows Palaniappan, the brother of Rukmani (P.W.1's wife) and he is his relative. P.W.20 has admitted that P.W.3 has said that Ramlingam (P.W.1) is his family friend.
For the above said reasons the evidence was of P.W.3 was not relied upon the trial court. It is submitted that the High Court has not considered these aspects.
(14) D. Latha P.W.4 stated that she was present during the talks when the demand during the marriage negotiation took place. However, P.W.3 says during talks except P.W.1 and A-2 nobody was present. Further none of the witnesses including P.W.1 has said that P.W.4 was present during the talks. K. Sivanandhan, Deputy Superintendent of Police P.W.17 has stated that P.W.4 has not stated that failure to buy a car became a problem. She has not stated about the demand of 50 sovereigns and a car. Therefore the trial court has disbelieved the presence of P.W.4 during the talks. D. Latha P.W.4 has not given in her evidence that she had known personally that little by little 20 sovereign were given. The trial court has held that P.W.4 does not speak anything about the timings of the torture like four weeks, 20 days or 8 days before the death.
(15) S.T.P. Muthusamy Mudaliar P.W.5's testimony does not inspire confidence. He says that during the verbal argument between A-1 and Rukmani Amma, A-1 asked about car. However, Yasodha P.W.2 did not say the same. Further, Rukmani Amma was not examined. It is submitted that the trial court has discussed the contradictions between P.W.2, P.W.1 and P.W.5 and about utterance with regard to car in the quarrel and therefore the trial court has not relied on P.W.5. It is submitted that apart from Rukminiammal, Shaktivel (P.W.1's son) and Planniappan was also not examined by the prosecution.
(16) S.A. Periyasamy P.W.9 (Sambandhi of P.W.1) has not supported the case of prosecution. He says that he advised Ramlingam that they should not go to A-1's house often. During his cross-examination he has stated that "I understood that Arulvelu and Mangaiyarkarasi were living a happy matrimonial life. There is a Car in my son Sivakumar's name TNC-4128. Its RC was in the name of Ramalingam S/o Palaniappa Mudhaliar."
(17) The Assistant Judicial Magistrate PW 11 has stated that crime number of Exhibit A-1 has been manipulated. Further, P.W.13 has stated that "Ramalingam has given only one complaint on that day. Exhibit A13 is the first original copy. Exhibit A18 is the original of another set of copies taken.
The person who has written Exhibit 13 has not written Exhibit A18". The trial court has also discussed the discrepancy with regard to Exh. A-13 and Exh.A-18.
(18) R. Murugesan P.W.15, RDO who prepared the inquest report has admitted that Yashoda (P.W.2) was examined on 30.03.89. He also stated that nearly 1000 houses would be there. It was crowded area with many houses. However, no neighbour was examined as a witness. Further, P.W.17 has admitted that A-1 said to him that he (A-1) brought the doctor. However, P.W.15 did not believe the same. It is submitted that P.W.15 has not given any cogent reason for disbelieving the same.
It is submitted that the conduct of P.W.15 (the RDO) was adversely commented by the trial court.
(19) R.Murugesan P.W.15 has stated that Rukmaniammal said that on 18.3.89 Mangayarkarsi came to the house as she was ill. She asked as to why did she (Rukmaniammal) made controversy in a house where the death had taken place. She has also stated that on 21.3.89 she had sent medicine and tablets to Mangayarkarasi's husband's house through a car. It is submitted that R. Murugesan P.W.15 has admitted that Ramlingam (P.W.1) has not stated that A-1 had told him that he was going to get into another marriage. Further, he (P.W.1) did not say about demand of 5 sovereigns, Rs.10,000/- and that dowry was not enough. He (P.W.1) has also not stated before P.W.15 that Mangayarkarsi came to his house 8 days before and told that she could live only if he buys a car. Further, P.W.1 had also not stated before him that on Tuesday their daughter's parents in law asked them to buy a car. P.W.15 has further admitted that Yashoda (P.W.2) had stated that A-1 came to Rukmanniammal and told that 'because of you, A am very ashamed'. P.W.15 has also stated that P.W.1 had not told him that before marriage there was any discussion about dowry on presence of some persons. Further that none of the witnesses has stated that they discussed about jewels and car before the marriage.
(20) The Panchayat's decision coupled with the condition of illness could have driven the deceased to commit suicide. This possibility cannot be ruled out. P.W.15 has also stated that on 22.3.89 a panchayat was convened to decide on the issue of dispute between both the families. In that Panchayat it has been decided that they should not visit each others house and Mangaiyarkarasi has to be advised accordingly.
(21) The High Court has made erroneous observation that: "It is not the panchayat decision that the deceased should not visit her parents. The only thing is P.W.1 should not go to the house of the accused". As per the case of prosecution and as per the evidence it is crystal clear that the Panchayat's decision was that 'both the familier should not visit each other'.
(22) The High Court failed to appreciate that the prosecution has failed to prove that with all certainty, the dowry demand was the only cause for the deceased to commit suicide. The High Court has simply presumed with the following words: "The immediate temptation for her to commit suicide appears to be the demand of a car and subsequent quarrel of the first accused with the mother of the deceased. She has died in her in-law's house. Why should she commit suicide if she was happily living with the first accused?"
21. These are some of the material and vital aspects which clearly demonstrate that the trial court has carefully analyzed the entire evidence on record and the view taken by the trial court is certainly a possible or plausible view.
22. In our considered opinion, the approach of the High Court in the impugned judgment is not in consonance with the settled principles of criminal jurisprudence. The High Court while reversing the judgment of the trial court observed that "in all probabilities, I am inclined to hold that there was demand of dowry and the deceased was harassed by the first accused and therefore, she committed suicide." In criminal cases the conviction can be sustained only when there is clear evidence beyond reasonable doubt. The accused cannot be convicted on the ground that in all probabilities the accused may have committed the crime. The approach of the High Court is wholly fallacious and unsustainable in law.
23. The real question which falls for our consideration is whether the view which has been taken by the trial court was a possible or a plausible view.
24. We have carefully perused the judgment of the trial court and the impugned judgment of the High Court. The trial court very minutely examined the entire evidence and all documents and exhibits on record. The trial court's analysis of evidence also seems to be correct.
The trial court has not deviated from the normal norms or methods of evaluation of the evidence. By no stretch of imagination, we can hold that the judgment of the trial court is based on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it and consequently the judgment of the trial court is perverse.
25. We also fail to arrive at the conclusion that the discussion and appreciation of the evidence of the trial court is so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse and the findings rendered by the trial court are against the weight of evidence. The law is well settled that, in an appeal against acquittal, unless the judgment of the trial court is perverse, the Appellate Court would not be justified in substituting its own view and reverse the judgment of acquittal.
26. The expression 'perverse' has been dealt with in number of cases. In Gaya Din (Dead) through LRs. & Others v. Hanuman Prasad (Dead) through LRs. & Others (2001) 1 SCC 501 2000 Indlaw SC 2764 this Court observed that the expression 'perverse' means that the findings of the subordinate authority are not supported by the evidence brought on record or they are against the law or suffer from the vice of procedural irregularity.
27. In Parry's (Calcutta ) Employees' Union v. Parry & Co. Ltd. & Others AIR 1966 Cal. 31 1964 Indlaw CAL 11, the Court observed that 'perverse finding' means a finding which is not only against the weight of evidence but is altogether against the evidence itself.
28. In Triveni Rubber & Plastics v. Collector of Central Excise, Cochin AIR 1994 SC 1341 1993 Indlaw SC 1021, the Court observed that this is not a case where it can be said that the findings of the authorities are based on no evidence or that they are so perverse that no reasonable person would have arrived at those findings.
29. In M. S. Narayanagouda v. Girijamma & Another AIR 1977 Kar. 58 1976 Indlaw KAR 66, the Court observed that any order made in conscious violation of pleading and law is a perverse order.
30. In Moffett v. Gough, 1 L.R. 1r. 371, the Court observed that a perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence.
31. In Godfrey v. Godfrey 106 NW 814, the Court defined 'perverse' as turned the wrong way, not right; distorted from the right; turned away or deviating from what is right, proper, correct etc.
32. The expression "perverse" has been defined by various dictionaries in the following manner:
1. Oxford Advanced Learner's Dictionary of Current English Sixth Edition PERVERSE: Showing deliberate determination to behave in a way that most people think is wrong, unacceptable or unreasonable.
2. Longman Dictionary of Contemporary English - International Edition
PERVERSE: Deliberately departing from what is normal and reasonable.
3. The New Oxford Dictionary of English - 1998 Edition PERVERSE: Law (of a verdict) against the weight of evidence or the direction of the judge on a point of law.
4. New Webster's Dictionary of the English Language (Deluxe Encyclopedic Edition)
PERVERSE: Purposely deviating from accepted or expected behavior or opinion; wicked or wayward; stubborn; cross or petulant.
5. Stroud's Judicial Dictionary of Words & Phrases, Fourth Edition
PERVERSE: A perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence.
33. In Shailendra Pratap & Another v. State of U.P. (2003) 1 SCC 761 2003 Indlaw SC 8, the Court observed thus:
"We are of the opinion that the trial court was quite justified in acquitting the appellants of the charges as the view taken by it was reasonable one and the order of acquittal cannot be said to be perverse. It is well settled that appellate court would not be justified in interfering with the order of acquittal unless the same is found to be perverse. In the present case, the High Court has committed an error in interfering with the order of acquittal of the appellants recorded by the trial court as the same did not suffer from the vice of perversity."
34. In Kuldeep Singh v. The Commissioner of Police & Others (1999) 2 SCC 10 1998 Indlaw SC 192, the Court while dealing with the scope of Arts. 32 and 226 of the Constitution observed as under:
"Normally the High Court and this Court would not interfere with the findings of fact recorded at the domestic enquiry but if the finding of "guilt" is based on no evidence, it would be a perverse finding and would be amenable to judicial scrutiny.
A broad distinction has, therefore, to be maintained between the decisions which are perverse and those which are not. If a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, howsoever compendious it may be, the conclusions would not be treated as perverse and the findings would not be interfered with."
35. The meaning of 'perverse' has been examined in H. B. Gandhi, Excise and Taxation Officer-cum- Assessing Authority, Karnal & Others v. Gopi Nath & Sons & Others 1992 Supp (2) SCC 312 1989 Indlaw SC 300, this Court observed as under:
"In the present case, the stage at and the points on which the challenge to the assessment in judicial review was raised and entertained was not appropriate. In our opinion, the High Court was in error in constituting itself into a court of appeal against the assessment. While it was open to the respondent to have raised and for the High Court to have considered whether the denial of relief under the proviso to S. 39(5) was proper or not, it was not open to the High Court re-appreciate the primary or perceptive facts which were otherwise within the domain of the fact-finding authority under the statute. The question whether the transactions were or were not sales exigible to sales tax constituted an exercise in recording secondary or inferential facts based on primary facts found by the statutory authorities. But what was assailed in review was, in substance, the correctness - as distinguished from the legal permissibility - of the primary or perceptive facts themselves. It is, no doubt, true that if a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then, the finding is rendered infirm in law."
36. The legal position seems to be well settled and consistent at least since 1934 when the Privy Council decided the case of Sheo Swarup & Others v. King Emperor AIR 1934 PC 2271934 Indlaw PC 30 in which the Court (per Lord Russell) observed as under:
"..the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses, (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial, (3) the right of the accused to the benefit of any doubt, and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses.."
The aforesaid decision was followed in subsequent judgments of this Court. [See: Surajpal Singh & Others v. The State, AIR 1952 SC 52 1951 Indlaw SC 23; Tulsiram Kanu v. The State, AIR 1954 SC 1 1951 Indlaw SC 75, Atley v. State of Uttar Pradesh AIR 1955 SC 807 1955 Indlaw SC 135; Balbir Singh v. State of Punjab AIR 1957 SC 216 1956 Indlaw SC 121; M.G. Agarwal v. State of Maharashtra AIR 1963 SC 200 1962 Indlaw SC 520; Khedu Mohton & Others v. State of Bihar, (1970) 2 SCC 450 1970 Indlaw SC 315; Bishan Singh & Others v. The State of Punjab (1974) 3 SCC 288 1973 Indlaw SC 425; K. Gopal Reddy v. State of Andhra Pradesh (1979) 1 SCC 355 1978 Indlaw SC 108; Tota Singh & Another v. State of Punjab (1987) 2 SCC 529 1987 Indlaw SC 28143; Sambasivan & Others v. State of Kerala (1998) 5 SCC 412 1998 Indlaw SC 809; Bhagwan Singh & Others v. State of M.P. (2002) 4 SCC 85 2002 Indlaw SC 1611; Harijana Thirupala & Others v. Public Prosecutor, High Court of A.P., Hyderabad (2002) 6 SCC 470 2002 Indlaw SC 1635; State of Rajasthan v. Raja Ram (2003) 8 SCC 180 2003 Indlaw SC 630; Budh Singh & Others v. State of UP (2006) 9 SCC 731 2006 Indlaw SC 635; Kalyan Singh v. State of MP (2006) 13 SCC 303 2006 Indlaw SC 1276; Kallu alias Masih & Others v. State of MP (2006) 10 SCC 313 2006 Indlaw SC 4; and State of Goa v. Sanjay Thakran & Another, (2007) 3 SCC 755] 2007 Indlaw SC 182
37. In Shambhoo Missir & Another v. State of Bihar (1990) 4 SCC 17 1990 Indlaw SC 348, this Court observed thus:
"We are of the view that the High Court has interfered with the order of acquittal passed by the trial court not only for no substantial reasons but also by ignoring material infirmities in the prosecution case. Hence, we allow the appeals and set aside the order of the High Court convicting and sentencing the accused in both the appeals."
38. In Chandrappa & Others v. State of Karnataka (2007) 4 SCC 415 2007 Indlaw SC 121, this Court reiterated the legal position as under:
"An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
39. In Ghurey Lal v. State of Uttar Pradesh (2008) 10 SCC 450 2008 Indlaw SC 1197, a two Judge Bench of this Court of which one of us (Bhandari, J.) was a member had an occasion to deal with most of the cases referred in this judgment. This Court provided guidelines for the Appellate Court in dealing with the cases in which the trial courts have acquitted the accused. The following principles emerge from the cases above:
1. The accused is presumed to be innocent until proven guilty. The accused possessed this presumption when he was before the trial court.
The trial court's acquittal bolsters the presumption that he is innocent.
2. The power of reviewing evidence is wide and the appellate court can re-appreciate the entire evidence on record. It can review the trial court's conclusion with respect to both facts and law, but the Appellate Court must give due weight and consideration to the decision of the trial court.
3. The appellate court should always keep in mind that the trial court had the distinct advantage of watching the demeanour of the witnesses. The trial court is in a better position to evaluate the credibility of the witnesses.
4. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has "very substantial and compelling reasons" for doing so.
5. If two reasonable or possible views can be reached - one that leads to acquittal, the other to conviction - the High Courts/appellate courts must rule in favour of the accused.
40. This Court in a recently delivered judgment State of Rajasthan v. Naresh @ Ram Naresh 2009 (11) SCALE 699 2009 Indlaw SC 1050 again examined judgments of this Court and laid down that
"An order of acquittal should not be lightly interfered with even if the court believes that there is some evidence pointing out the finger towards the accused. This Court has dealt with the scope of interference with an order of acquittal in a number of cases."
41. Careful scrutiny of all these judgments lead to the definite conclusion that the appellate court should be very slow in setting aside a judgment of acquittal particularly in a case where two views are possible. The trial court judgment cannot be set aside because the appellate court's view is more probable. The appellate court would not be justified in setting aside the trial court judgment unless it arrives at a clear finding on marshalling the entire evidence on record that the judgment of the trial court is either perverse or wholly unsustainable in law.
42. In State of Uttar Pradesh v. Banne Alias Baijnath and Ors. (2009) 4 SCC 271 2009 Indlaw SC 1633, a two-Judge Bench of this court of which one of us (Bhandari, J.) was a member had an occasion to deal with this controversy in detail has laid down some of the circumstances in which this court would be justified in interfering with the judgment of the High Court. The circumstances discussed in the judgment are illustrative not exhaustive.
i) The High Court's decision is based on totally erroneous view of law by ignoring the settled legal position;
ii) The High Court's conclusions are contrary to evidence and documents on record;
iii) The entire approach of the High Court in dealing with the evidence was patently illegal leading to grave miscarriage of justice;
iv) The High Court's judgment is manifestly unjust and unreasonable based on erroneous law and facts on the record of the case;
v) This Court must always give proper weight and consideration to the findings of the High Court;
vi) This Court would be extremely reluctant in interfering with a case when both the Sessions Court and the High Court have recorded an order of acquittal.
43. The appellate courts must keep in view these aforementioned observations in dealing with the appeals where the trial court has acquitted the accused.
44 In Dhanapal v. State 2009 Indlaw SC 1083 by Public Prosecutor, Madras (Criminal Appeal No.987 of 2002 decided on September 1, 2009), this Court again examined the aforementioned decisions and analyzed the principles emerging out of the said decisions, it seems to us that despite series of judgments, the High Court has not clearly appreciated the legal position. Unquestionably, the Appellate Court has power to review and re-appreciate the entire evidence on record. The appellate court would be justified in reversing the judgment of acquittal only if there are substantial and compelling reasons and when the judgment of the trial court is found to be perverse judgment. Interfering in a routine manner where other view is possible is contrary to the settled legal position crystallized by aforementioned judgments of this Court. The accused is presumed to be innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial court's acquittal bolsters the presumption that he is innocent. This fundamental principle must be kept in view while dealing with the judgments of acquittal passed by the trial court.
45. We have re-examined the entire case because of the conflicting judgments of the Trial Court and the High Court. On careful marshalling of the entire evidence and the documents on record, we arrive at the conclusion that the view taken by the trial court is a possible and plausible view. The judgment of the trial court cannot be termed as perverse.
The High Court ought not to have substituted the same by its own possible view. The impugned judgment of the High Court cannot stand the scrutiny of the well settled legal position which has been crystallized for more than 80 years since the case of Sheo Swarup. In the facts and circumstances of this case, we are constrained to set aside the impugned judgment of the High Court.
46. Consequently, these appeals filed by the appellants are allowed. The impugned judgment of the High Court set aside and that of the trial court is restored. Appeal allowed
Appeal allowed


Triveni Rubber and Plastics, Tiruvalla, Kerala v Collector of Central Excise, Cochin
Supreme Court of India

30 March 1993
C.A. No. 464(NM) of 1985 (Arising as an appeal from the Judgment and Order Dt. of the CEGAT, Dt. 27 September 1984 in Appeal No. ED(SB) A. No. 2921/83-C, (1994) 72 ELT 897 (ND))
The Order of the Court was as follows:
1.  This appeal is preferred under Section 35-L of the Central Excises and Salt Act, 1944 against the judgment and order of the Customs, Excise and Gold (Control) Appellate Tribunal. The appellant - Triveni Rubber and Plastics - is a partnership firm. It established a factory for manufacturing tread-rubber. Production was started on 8-10-1979. Tread-rubber was dutiable under Tariff Item 16-A(2) of the Schedule to the Act. At that time certain exemption notifications were in operation. According to the notification applicable to the year 1980-81, it is stated, a unit producing goods of a value of less than Rs. 5 lakhs was exempt from the provisions of the Act. The said exemption limit was raised to Rs. 15 lakhs for the year 1981-82.
2.  On 30-9-1981, a search was conducted of the premises of the appellant by the officers of the department. They found that a substantial quantity of tread-rubber (5807 kilograms) was removed from the factory without making an entry in the relevant records. They also recorded the statement of the managing partner of the factory in the presence of another partner. In this statement, the managing partner admitted not only that 5807 kgs of tread-rubber was removed from the premises without making an entry but also that they were doctoring their accounts so as to show that their annual production was below the exemption limit.
3.   On the basis of the material gathered at the time of the inspection, a show-cause notice was issued to the appellant calling upon him to explain as to why his production during the said years be not estimated at a particular figure and why he should not be called upon to pay the appropriate duty as well as penalty in that behalf. (It is not necessary for the purposes of this appeal to mention the precise figures specified in the show-cause notice; suffice to say that according to the estimated figures the appellant was not entitled to the benefit of exemption notification). The appellant showed cause, where after the Collector passed orders on 13-5-1983 confirming the show-cause notice. The appellant preferred an appeal before the CEGAT. The Tribunal considered the various submissions made by the appellant at length but finding that there is no substance therein, dismissed the appeal.
4.  In this appeal it is submitted by Mr. Anam, learned counsel for the appellant that the estimate made by the Collector is arbitrary based on no relevant material and is in the nature of a wild guess. He, therefore, requested that the matter may be remitted back to the Collector for further enquiry. We are unable to accede to the said submission. The quantum of tread-rubber produced in the appellant's factory during the said two years is a question of fact. Unless it is found that some relevant evidence has not been considered or that certain inadmissible material has been taken into consideration the concurrent finding of fact cannot be disturbed by us in this appeal under Article 136 of the Constitution. This is not also a case where it can be said that the findings of the authorities are based on no evidence or that they are so perverse that no reasonable person would have arrived at those findings.
5.  It is argued by Mr. Anam that the only basis of the estimate of the production is the consumption of electricity during the said period. What happened in this case is this : The Collector took the period from October 1979 to May 1980 as the base period. He ascertained the quantity of tread-rubber produced and the quantity of electrical energy consumed. Adopting the ratio between the consumption of electricity and the quantum of tread-rubber produced during the base period he estimated the production of tread-rubber during the disputed period on the basis of the electricity consumed. Mr. Anam, submits that during the base period, the electricity meter was not recording properly and that it was running in the reverse direction.
6.   We have been unable to appreciate this contention. If the meter was running in a reverse direction during the base period, it would not have recorded any consumption. But evidently that was not what happened. The meter did record the consumption. One could understand the appellant saying that the meter recorded less than the actual consumption, but that was not his case. Nor could he produce any material in support of the said allegation. Mr. Anam relies upon a letter dated 16-11-1985 from the Assistant Executive Engineer, Electrical-Major Section, Changanacherry, in support of his contention.
7.   Firstly, this letter has been obtained long after the order of the Collector.
8.   Secondly, this letter says that the meter was running in reverse direction. This theory is unacceptable in the circumstances of the case, as pointed out hereinbefore.
9.  It was then argued that the quantity estimated by the Collector is in excess of the installed capacity of the appellant's factory. Even this aspect has been dealt with and rejected by the Tribunal. It has been shown on the basis of the production figures disclosed by the appellant himself that his argument based upon the installed capacity cannot be accepted.
10.  Mr. Anam contended that according to Rule 173-E of the Central Excise Rules, the power consumption alone cannot be taken as the basis for estimating the production and that the several factors mentioned in the rule must all be taken into consideration together. Sub-rule (1) of Rule 173-E which alone is relied upon reads as follows:
"Rule 173-E. Determination of Normal Production. - Any officer duly empowered by the Collector in this behalf may fix the quantum and period of time when the production in the assessee's factory was considered normal by such officer having regard to the installed capacity of the factory, raw material utilisation, labour employed, power consumed and such other relevant factors as he may deem appropriate. The normal quantum of production during a given time so determined by such officer shall form the norm. The assessee shall, if so required by the said officer, be called upon to explain any shortfall in production during any time, as compared to the norm. If the shortfall is not accounted for to the satisfaction of the said officer, he may assess the duty due thereon to the best of his judgment, after giving the assessee a reasonable opportunity of being heard."
11.  On a reading of the rule we cannot agree that the officer empowered by the Collector or the Collector cannot determine the normal production unless all the factors mentioned in the rule are present simultaneously. The rule does not say so nor is it capable of being so interpreted.
12.   In a case like the present one, where the accounts are found fabricated and untrue, the figures of raw material utilised or the particulars of labour employed may not be available. It is not the case of the appellant that even though acceptable material with respect to these factors was available it was not considered.
The appeal accordingly fails and is dismissed. No costs.
Appeal dismissed.