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This Court on its own did not come to the conclusion that the acquittal of Gokul was not well founded as High Court 's appreciation of evidence was not correct. Ratio |
Had it come to that conclusion it could have recorded a conviction of the appellant under section 302/34, IPC, notwithstanding the acquittal of Gokul. Ratio |
Therefore, all the aforesaid cases are clearly distinguishable from the facts of Brathi 's case where the High Court had clearly departed from the apprecia tion of the evidence by the Trial Court and had reached own conclusion in regard to the proof of various facts and circumstances relied on by the prosecution. Ratio |
We are, there fore in respectful agreement with the distinction drawn by this Court on the ground that in none of the cases cited on behalf of the appellant it was shown that the Appellate Court had disagreed with the appreciation of evidence by the Trial Court and the conclusion of facts and circumstances recorded by ... |
Does the decision in Krishna Govind Patii (supra) take a different view? Ratio |
It is true that the attention of the Bench which disposed of Brathi 's case was not invited to this decision. Ratio |
But, in our opinion, this decision does not take a view inconsistent with the ratio laid down in 24 Brathi 's case. Ratio |
The facts reveal that Krishna Govind Patil and three others were put up for trial for the murder of one Vishwanath. Ratio |
They were charged under section 302/34, IPC and were also separately charged under section 302, IPC. Ratio |
Accused Nos. 1, 3 and 4 pleaded an alibi while accused No. 2 raised the plea of private defence. Ratio |
The Trial Court acquitted all the accused on the ground that the prosecution witnesses were not speaking the truth and the version of accused No. 2 was a probable one. Ratio |
The State appealed against the order of acquittal under section 302/34, but not against the acquit tal under section 302, IPC. Ratio |
The High Court confirmed the acquittal of accused Nos. 1, 3 and 4 on the ground that the evidence regarding their participation in the commission of the crime was doubtful but convicted accused No. 2 on the ground that one or more of them might have participated in the commission of the offence. Ratio |
Accused No. 2, therefore, preferred an appeal to this Court and contended that when three of the four named persons were acquitted the High Court was not justified in convicting him on the basis of constructive liability. Ratio |
This Court held that before a Court can convict a person under section 302/34, IPC, it must record a definite finding that the said person had prior consultation with one or more other persons, named or un named, for committing the offence. Ratio |
When three of the accused came to be acquitted on the ground that the evidence was not acceptable or on the ground that they were entitled to benefit of doubt, in law it meant that they did not partici pate in the offence. Ratio |
It was further held that the effect of the acquittal of the three co accused is that they did not co jointly and with the appellant commit the murder. Ratio |
These observations have to be read in the context of the facts stated above. Ratio |
The High Court on an appreciation of the evidence, came to a definite conclusion that accused Nos. 1, 3 and 4 had not participated in the commission of the crime. Ratio |
On that appreciation of the evidence the High Court could not have come to the conclusion that any of those acquitted accused was privy to the crime even for the limited purpose of convicting the appellant with the aid of section 34. Ratio |
This again is not a case where the Appellate Court disagreed with the appreciation of evidence and reached a conclusion dif ferent from the conclusion recorded by the Trial Court in regard to the participation of the other co accused. Ratio |
This decision is also distinguishable on the same ground as this Court distinguished the other decisions in Brathi 's case. Ratio |
We are, therefore, of the opinion that the omission to refer to this decision does not render the decision in Brathi 's case per incuriam. Ratio |
We are, therefore, in respectful agreement with the law explained in Brathi 's case. Ratio |
Coming now to the facts of this case the Trial Court acquit ted the 25 co accused but convicted the appellant under section 302, IPC. Ratio |
The High Court has confirmed that conviction. Ratio |
Mr. Lalit is right when he says that the prosecution evidence does not disclose that the fatal blow which caused injury No. 1 was given by the appellant. Ratio |
Inherent of this submission is the assumption that the fatal blow was given by someone else. Ratio |
That establishes the fact that more that one person partici pated in the commission of the crime. Ratio |
We have also on an independent appreciation of the evidence of the three eye witnesses, namely, PW 1 Komal Chand, PW 3 Kishan Lal and PW 4 Ramesh, come to the conclusion that several persons had participated in the commission of the crime. Ratio |
The failure on the part of the prosecution witnesses PWs 3 and 4 to identi fy the others does not alter the situation. Ratio |
We are, on the other hand, convinced from the evidence of PW 1 Komal Chand that some of the co accused, particularly, Gunda, Parsu and Gopal had participated in the commission of the crime. Ratio |
It is another matter that in the absence of a State appeal the High Court could not, nor can we, interfere with their acquittal, but as rightly 'pointed in Brathi 's case this Court is not bound by the facts found proved on the appreci ation of evidence by the courts below and is, in law, enti tled to reach its own con... |
In that view of the matter we think that the conviction of the appellant can be sustained with the aid of section 34 or 149, IPC, as the case may be. Ratio |
In the present case we feel it safe to confirm the conviction of the appellant with the aid of section 34, IPC. Ratio |
We, therefore, cannot agree with the submission of the learned counsel for the appellant that at best the conviction can be recorded under section 324, IPC. Ratio |
We confirm the conviction of the appellant under section 302, IPC, with the aid of section 34 and maintain the sen tence awarded to him. RPC |
For the above reasons we see no merit in this appeal and dismiss the same. RPC |
N.P.V. Appeal dismissed. RPC |
ivil Appeal Nos. 2684 90 of 1982 etc. FAC |
From the Judgment and order dated 23.12.1981 of the Madras High court in Tax Cases (Revision) Nos.206 210, 586 and 825 of 1979. FAC |
M.L. Verma, G.L. Sanghi, S.K. Verma, Manoj Prasad, Ms. Minoti Mukherji, A.K. Srivastava, R. Mohan, T. Raja, R. Nedumaran and K. Ram Kumar for the appearing parties. FAC |
The Judgment of the court was delivered by RANGANATHAN, J. FAC |
By its judgment dated 23.12.1981, report as Ramco cement Distribution Co.(p) Ltd. vs The State of Tamil Nadu, (1982) 51 S.T.C. 171, The Madras High Court disposed of a batch of 48 sales tax revision cases arising out of the assessments, to local sales Tax(T.N.S.T) as well as Central sales Tax (C.S.T), of Ramco Cement D... |
Madras Cements Ltd. (8 cases), Dalmia Cement Bharat Ltd. (21 cases) and India cement Ltd. (3 cases). FAC |
The question at issue were answered partly in favour of Revenue and partly in favour of the assessees. FAC |
C.A. Nos. 5306 5336/1985 preferred by the state of Tamil Nadu arise out of 31 of these cases; 9 relating to Ramco Cements, 16 relating to Dalmia cements and 6 relating to Madras Cements. FAC |
C.A. No. 2684 to 2690/82 are appeals by Ramco Cements and C.A. No. 4043 4044/1982 are by Madras cements from the same judgment. FAC |
C.A. Nos. 315 319/1983 arise out of the other 5 cases relating to Dalmia Cements. FAC |
C.A. Nos 280 281/1989 arise out of a judgment of the High Court dated 17.1.1985 which dismissed two revision tax cases pertaining to Dalmia Cements. FAC |
One of the question involved in these cases was decided in favour in of the assessee by following the decision in 51 S.T.C. 171. FAC |
As the question involved are common, all these appeals are being disposed of by a common judgment. FAC |
In doing so, we shall refer to the fact in the appeals pertaining to Ramco Cements. FAC |
It is common ground that the facts in other cases are similar and that the decision reached in the case of Ramco Cements will govern the other appeals as well. FAC |
Ramco Cement Distribution Co. Ltd. (hereinafter referred to as 'the assessee ') are the selling agents of M/s. Madras Cements Ltd., Rajapalayam, For the assessment year 1969 70 , they were assessed to sales tax on a taxable turn over of Rs. 2,37,66,245 which included an amount of Rs. 29,71,527, representing freight cha... |
The assessee claimed exclusion of freight charges in computing the taxable turnover on the ground that freight had been independently charged in the invoice. FAC |
It relied on the decision of the supreme court in the case of Hyderabad Asbestos Cements products Ltd. vs state of Andhra Pradesh, (1969) 24 S.T.C. 487. FAC |
This contention was rejected by the assessing authority, the appellate authority as well as the Tribunal. FAC |
Aggrieved by the above orders the assessee preferred revisions to the High court were enunciated as follows at the commencement of its judgment: (i) Whether the freight charges incurred by a dealer in the despatch of cement to the place of the customer could be deducted from the total turnover of the dealer under the C... |
These questions were answered by the High Court as follows: "In tax revision cases arising under the Central sales Tax act, we hold that the freight, packing charges and excise duty on packing materials have to be included in the sale price for the computation of sales tax. FAC |
In cases arising under the Tamil Nadu General Sales Tax Act and Tamil Nadu Additional Sales Tax Act, we hold that freight, packing changes and excise duty on packing materials are not liable to be included in the sale price for the computation of the sale price. FAC |
The assessees are not liable to pay additional sales tax on freight, packing materials and excise duty on packing materials in those cases arising under the Tamil Nadu Additional sales Tax Act. FAC |
" The High court certified the case to be one fit for appeal the Supreme Court and hence these appeals. FAC |
Both the asseesses as well as the state urges that, the High court having held that the amounts in question were liable to be included in the turnover for purpose of Central sales Tax, ought to have also held that these amounts were liable to be included in the taxable turnover for purposes of Tamil Nadu Additional sal... |
On the other hand, on behalf of the assessees it is contended that, even for the purposes of C.S.T., the freight charges, the cost of packing materials and excise duty on the packing materials should have been excluded in the computation of the taxable turnover. FAC |
It is thus there are cross appeals before us. Ratio |
We have heard learned counsel on both sides. Ratio |
In our opinion, so far as C.S.T is concerned, the issue in the present case is July and directly covered by the decision of this court in Hindustan Sugar mills Limited vs State of Rajasthan, (1979) 43 S.T.C.13. Ratio |
AS stated earlier, the assessee relied strongly on the decision of this court in Hyderabad Asbestos cement Products Ltd. vs state of Andhra Pradesh, (1969) 24 S.T.C. 487 but this decision has been considered and explained in the Hindustan sugar Mills case. Ratio |
We do not wish to state the facts or discuss the issues at great length since, in our opinion, they are all facts and issue at great length sine, in our opinion, they are all facts and issues that were under consideration by this Court in Hindustan Sugar Mills Ltd. Learned counsel for the assessee contended that the Ce... |
According to them all that the Cement Control order laid down was that cement could not be sold at a price higher than a price fixed by the Cement Control order on terms described "as free on rail (F.O.R.), destination" It did not stand in the way of cement manufacturers with various purchasers that the letter should b... |
In view of this, it was submitted that the terms of the cement control order do not alter the principal enunciated by this court in the Hyderabad Asbestos Cement products case. ARG |
It was then urged that, in fact, the assessees had entered into contracts with the purchasers which clearly stipulated that the freight will be payable by the letter. ARG |
The following terms and conditions of sale were cited before us as an instance of the type of contracts entered into by the assessees: " Condition 2 : Once the consignment is handed over to the carriers and a receipt is obtained, the responsibility of the company ceases. Ratio |
The company does not accept any liability for any delay, shortage, damage or loss of goods in transit. Ratio |
Claims should be lodged with the carriers by buyers directly. Ratio |
Condition 3 : The consignees shall arrange to take delivery against indemnity bond, should the railway receipt or bill of lading not reach them in time. Ratio |
The company is not liable in any manner whatsoever and is also not responsible for any demurrage or damages that may accrue due to non receipt or late receipt of railway receipt or bill of lading by the consignees. Ratio |
Condition 4 : Prices shall be charged as ruling on the date of despatch of the goods and the company shall not be responsible for any variation in prices. Ratio |
The price of the cement supplied to the buyers shall be the current general gross list price charged by the company, free on rail less such discount as may be fixed by the company from time to time. Ratio |
But the terms and the times of delivery and the payments therefore shall be in the absolute discretion of the company who may vary the same from time to time. Ratio |
Each despatch shall be a separate contract. Ratio |
Condition 10 : The condition of any railway receipt shall be binding on the buyer and the date of delivery shall mean the date of the railway receipt and in the case of consignments sold free on rail destination, the railway freight shall be nevertheless payable by the buyers at the destinations. Ratio |
Condition 11 : The buyer shall further be responsible for any additional freight, should transport by expensive route be undertaken or should the quantity despatched be less than a wagon load. Ratio |
Condition 12 : In the case of road deliveries, freight will be allowed upto the nearest rail head to the destination or actual transport charges whichever is less or according to the instruction of the control authorities from time to time. Ratio |
Condition 13 : The buyer shall put up his claim with the Railways direct whenever amounts are collected in excess of the freight indicated in the Railway receipt. Ratio |
The company will allow freight only at the scheduled wagon load rate basing themselves on these terms and conditions, learned counsel for the assessee contended that this was a case where, despite the terms of the control order, the assessees chose to sell the goods free on rail and that the liability to pay point wher... |
It was contended that these contracts were not inconsistent with or repugnant to the terms of the Cement Control Order and that on the same basis as the decision of this court in the Hyderabad Asbestos Cement products Ltd. case, the assesses are entitled to exclude the amounts of freight as not forming the part of the ... |
Interesting as these arguments are, we find that they are merely a repetition of what was urged in the case of Hindustan Sugar Mills Ltd. In that case also the point urged was that the Cement Control order only fixes the maximum price and that there was nothing to prevent the producer opted to sell his cement at price ... |
The second argument, based in the terms of the contract between the parties, was also addressed in the Hindustan Sugar Mills case. Ratio |
There also clauses 5,8 and 11 of the general terms and condition of supply were strongly relied upon on behalf of the assessee. Ratio |
Under those terms and conditions, it was specifically mentioned that although the price of cement was on the basis of F.O.R. destination railway station, consignments would nevertheless be despatched 'freight to pay ' and credit afforded in the bill for the amount of freight payable and that the purchaser should accord... |
This Court, after referring to the above contention, pointed out that, if the terms and conditions of the contract had stood alone, the assessee might have been entitled to succeed in excluding the freight charges on the principle of Hyderabad asbestos cement Products Ltd. case but that relief could not be given to the... |
The terms of the Cement control order have been fully analysed and discussed at pages 33 to 35 of the report. Ratio |
There is, therefore no difference either on facts or in principal between this case and the Hindustan Sugar Mills Ltd. case. Ratio |
on the other hand, as pointed out by the learned Judges in that case, the whole purpose of the cement control order was do not find any reason to doubt or dissent from the decision in the Hindustan Sugar Mills Ltd. case. Ratio |
On the other hand, as pointed out by the learned Judges in that case, the whole purpose of the Cement Control order was cement should be available for sale at all places in the country at a controlled price. Ratio |
No doubt, the price was described as a maximum beyond which the sale price could not go but the intention, which was also carried out by all the suppliers, was that cement was to be sold at what may be described as a controlled price on terms 'free on rail destination '. Ratio |
In other words, the producer was entitled to the controlled price irrespective of the amount of freight which might have been incurred in respect of the transaction. Ratio |
Having regard to the fact that the freight on consignments to places near the factory and consignments to places to places far away from the factories could show a lot of variation, the control order created a machinery by which all freight charges were credited to common account ad any particular cement manufacturer i... |
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