“376AB. Punishment for rape on woman under twelve years of age.—Whoever, commits rape on a woman under twelve years of age shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person's natural life, and with fine or with death: Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim: Provided further that any fine imposed under this section shall be paid to the victim.”

 Criminal Appeal No.5725 of 2018 filed by the petitioner-convict herein aggrieved by the conviction and sentence imposed against him for certain other offences under the IPC, as also against the conviction under the Protection of Children from Sexual Offences Act, 2012 (for Page 2 of 17 short, ‘POCSO Act’). As per the impugned judgment, the capital punishment awarded for the conviction under Section 376 AB, IPC was not confirmed and it was commuted to imprisonment for life, which, going by the provisions thereunder, means imprisonment for the remainder of the convict’s natural life.

2024 INSC 82

Page 1 of 17

Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

Special Leave Petition (Crl.) No.2888 of 2023

Bhaggi @ Bhagirath @ Naran

 …Petitioner

Versus

The State of Madhya Pradesh

 …Respondents

O R D E R

1. The petitioner-convict seeks to assail the judgment dated

11.10.2018 of the High Court of Madhya Pradesh at Jabalpur in

Criminal Appeal No.5725 of 2018.

2. In troth, it is a common judgment in Criminal Reference

No.6/2018 submitted by the Trial Court under Section 366 of the

Code of Criminal Procedure, 1973 (Cr.PC) for confirmation of the

conviction under Section 376 AB of the Indian Penal Code, 1860

(IPC) as amended by Act No.22 of 2018 and in Criminal Appeal

No.5725 of 2018 filed by the petitioner-convict herein aggrieved

by the conviction and sentence imposed against him for certain

other offences under the IPC, as also against the conviction under

the Protection of Children from Sexual Offences Act, 2012 (for

Page 2 of 17

short, ‘POCSO Act’). As per the impugned judgment, the capital

punishment awarded for the conviction under Section 376 AB, IPC

was not confirmed and it was commuted to imprisonment for life,

which, going by the provisions thereunder, means imprisonment

for the remainder of the convict’s natural life.

3. Heard the learned counsel appearing for the petitionerconvict and the learned Additional Advocate General for the State

of Madhya Pradesh.

4. It is to be noted that in the instant case, after condoning the

delay, limited notice on the question of sentence alone was issued

on 24.02.2023. Since we do not find any reason to enlarge the

scope, the parties confined their arguments within the permissible

scope.

5. We are of the considered view that for considering the

aforesaid question it is apposite to refer succinctly to the facts of

the case. On 21.05.2018, the complainant Munni Bai (PW-8) who is

the grandmother of the victim lodged a report that her

granddaughter X, who was examined as PW-1, aged 7 years was

kidnapped and raped by the petitioner-convict. After the trial, the

Trial Court found that the prosecution had succeeded in bringing

damning evidence to establish that the victim, aged 7 years was

Page 3 of 17

taken to Rajaram Baba Thakur Mandir by the petitioner-convict and

there upon making her and himself nude he committed rape.

Upon her screaming, the prosecution witnesses who went there

found the convict, belonging to the same village, laying over and

violating the victim and at their sight running away from there. The

oral testimonies of the prosecution witnesses (PWs-1, 2 and 14) on

the culpability of the convict got credence from the medical

evidence unerringly pointing to his guilt. The consequential

conviction inter alia, under Section 376 AB, IPC as amended by Act

No.22 of 2018, originally, brought him capital sentence. Though,

the petitioner was also convicted under Section 376 (2) (i) and

under Sections 3/4, Sections 5(d)/6 of the POCSO Act taking note

of his conviction under Section 376 AB, IPC, no separate sentences

were awarded for the aforesaid offences by the trial Court. In view

of the commutation of capital punishment awarded for the

conviction under Section 376 AB, IPC it is also a matter to be

considered if we interfere with the sentence of life imprisonment

for the offence under Section 376 AB, IPC as amended under the

Act No.22 of 2018.

6. As noticed hereinbefore, on appreciating the evidence on

record and coming to the conclusion that the guilt of the petitioner

Page 4 of 17

under Section 376 AB, IPC has been conclusively proved, but

capital punishment imposed therefor, is to be commuted while

confirming the conviction under Section 376 AB, IPC. The High

Court commuted it to imprisonment for life though another

alternative punishment was also possible viz. rigorous

imprisonment for a term not less than 20 years with fine.

7. In the decision in Mulla v. State of U.P.1

, this Court held:-

“85……...It is open to the sentencing court to prescribe

the length of incarceration. This is especially true in cases

where death sentence has been replaced by life

imprisonment…...”

8. Evidently, the decision in Mulla’s case (supra) and a catena

of decisions where death sentence was commuted to the

imprisonment for life including the decisions in Bantu alias

Naresh Giri v. State of M.P.2, Amrit Singh v. State of Punjab3 and

Rameshbhai Chandubhai Rathod (2) v. State of Gujarat4 were

considered by the High Court while commuting capital sentence to

imprisonment for life. A bare perusal of all those decisions would

reveal that those are cases involving rape and murder of young

1

(2010) 3 SCC 508

2

(2001) 9 SCC 615

3

(2006) 12 SCC 79

4

(2011) 2 SCC 764

Page 5 of 17

girls aged between 4 to 12 years. It is true that after referring to

those decisions the High Court, in the instant case held in

paragraph 34 of the impugned judgment thus:-

“ln the present case the important consideration is the

manner in which the alleged offence is committed. The

evidence of Dr. Saroj Bhuriya (PW -3) is relevant. She stated

that there was no external injury on the person of the

prosecutrix, specially on her neck, chick, chest, abdomen

and thigh. She also did not find any injuries on the outer

part of the genital part of the prosecutrix. She has found the

hymen was ruptured recently and there was bleeding. The

injury was ordinary in nature. She further stated that the

same could have been possibly be caused by hard and

blunt object as well. The evidence has established that a

minor child was violated by the accused. However, there

was no other injury inflicted him either on the other parts of

the body and also on the private part. Thus the manner in

which the offence is committed is not barbaric and brutal.

We have given our anxious consideration to the material on

record and find that though the offence is condemnable,

reprehensible, vicious and a deplorable act of violence but

the same does not fall within the aggravating circumstances

namely extreme depravity and the barbaric manner in

which the crime was committed. Taking into consideration

the totality of the facts, nature, motive and the manner of the

offence and further that nothing has been brought on record

Page 6 of 17

by the prosecution that the accused was having any criminal

antecedent and the possibility of being rehabilitation and

reformation has abo not been ruled out. Nothing is available

on record to suggest that he cannot be useful for the society.

In our considered opinion, it is not a ease in which the

alternative punishment would not be sufficient to the facts of

the case.”

9. Now, we will refer to the rival contentions. The contention of

the learned counsel for the petitioner is that at the time of

commission of offence, the petitioner was aged only 40 years. The

High Court after taking note of the manner in which the alleged

offence was committed observed that it was not barbaric and brutal

and further that owing to the absence of anything on record to

suggest that the convict is having criminal antecedents the

possibility of rehabilitation and chances for his reformation could

not be ruled out and opined that the case is not one where the

alternative punishment would not be sufficient. The alternative

punishment provided under Section 376 AB, IPC viz., sentence of

rigorous imprisonment not less than 20 years and with fine alone

may be imposed after altering the life imprisonment for the

conviction under Section 376 AB, IPC and no separate sentence be

awarded for the conviction under the other offences mentioned

Page 7 of 17

above. According to the learned counsel, rigorous imprisonment

for 20 years with a minimal fine will be the comeuppance. Per

contra, the learned counsel appearing for the respondent State

would submit that the question as to what extent the capital

sentence could be commuted, in the facts and circumstances of the

case was considered in detail with reference to the decisions

mentioned in the impugned judgment by the High Court and no

case has been made out by the petitioner for further interference

qua the quantum of sentence imposed on the petitioner.

10. We have taken note of the observation of the High Court

made after referring to the manner of commission of the crime

concerned that it was not barbaric and brutal. We are of the

concerned view that when the words ‘barbaric’ and ‘brutal’ are

used simultaneously they are not to take the character of synonym,

but to take distinctive meanings. In view of the manner in which

the offence was committed by the petitioner-convict, as observed

by the High Court under the above extracted recital, according to

us, one can only say that the action of the petitioner-convict is

barbaric though he had not acted in a brutal manner. We will take

the meanings of the words ‘barbaric’, ‘barbarians’ and ‘brutal’ to

know the distinctive meanings of the words ‘barbaric’ and ‘brutal’.

Page 8 of 17

As per the New International Webster’s Comprehensive Dictionary

of the English Language, Encyclopedia Edition they carry the

following meanings:

‘Barbaric’ (adj): 1. of or characteristic of barbarians.

2. Wild; uncivilized; crude

‘Barbarians’ : (n) 1. One whose state of culture is between

savagery and civilization;

 2. Any rude, brutal or uncultured person.

‘Brutal’ (adj) : Characteristic of or like a brute; cruel;

savage.

In the light of the evidence on record and rightly noted by the

High Court in the above-extracted paragraph 34 of the impugned

judgment it may be true to say that the petitioner-convict had

committed the offence of rape brutally, but then, certainly his action

was barbaric. In the instant case, the petitioner-convict was aged

40 years on the date of occurrence and the victim was then only a

girl, aged 7 years. Thus, the position is that he used a lass aged 7

years to satisfy his lust. For that the petitioner-convict took the

victim to a temple, unmindful of the holiness of the place disrobed

her and himself and then committed the crime. We have no

Page 9 of 17

hesitation to hold that the fact he had not done it brutally will not

make its commission non-barbaric.

11. In the circumstances obtained in this case there can be no

doubt regarding the requirement of deterrent punishment for the

conviction under Section 376 AB, IPC. The only question is whether

the commutation of capital punishment to sentence of life

imprisonment requires further interference. There can be no

doubt with respect to the position that on such commutation of

sentence for the conviction under Section 376 AB, IPC, the other

alternative available is only imprisonment for a period not less than

20 years with fine. This position is clear from the provision under

Section 376 AB, IPC which reads thus:-

“376AB. Punishment for rape on woman under twelve years

of age.—Whoever, commits rape on a woman under twelve

years of age shall be punished with rigorous imprisonment for a

term which shall not be less than twenty years, but which may

extend to imprisonment for life, which shall mean imprisonment

for the remainder of that person's natural life, and with fine or

with death:

Provided that such fine shall be just and reasonable to meet the

medical expenses and rehabilitation of the victim:

Provided further that any fine imposed under this section shall

be paid to the victim.”

Page 10 of 17

12. Thus, a bare perusal of Section 376 AB, IPC would reveal that

imprisonment for life thereunder means imprisonment for the

remainder of the convict’s natural life and the minimum term of

imprisonment under the Section is 20 years. Now, while

considering the question whether further interference with the

sentence handed down for the conviction of the offence under

Section 376 AB, IPC is warranted, it is only appropriate to refer to

a decision of this Court in Shiva Kumar @ Shiva @ Shivamurthy v.

State of Karnataka5

. In Shiva Kumar’s case (supra) this Court

referred to the decision of a Constitution Bench of this Court in

Union of India v. V. Sriharan alias Murugan and Ors.6 and also

the decision in Swamy Shraddananda (2) alias Murali Manohar

Mishra v. State of Karnataka7. Evidently, this Court in V.

Sriharan’s case (supra), upon considering the question whether

imprisonment for life in terms of Section 53 read with Section 45

IPC means imprisonment for rest of life of the prisoner or a convict

undergoing life imprisonment has a right to claim remission, held

after referring to the decision in Swamy Shraddananda (2) (supra)

that the power derived from the Penal Code for any modified

5

(2023) 9 SCC 817

6

(2016) 7 SCC 1

7

(2008) 13 SCC 767

Page 11 of 17

punishment within the punishment provided for in the Penal Code

for any specified offence could only be exercised by the High

Court and in the event of further appeal only by the Supreme Court.

Furthermore, in paragraph 105 of the said decision it was held:- “to

put it differently, the power to impose modified punishment

providing for any specific term of incarceration or till the end of the

convict’s life as an alternate to death penalty, can be exercised only

by the High Court and the Supreme Court and not by any other

inferior Court.” In Shiva Kumar’s case (supra) this Court further

took note of what was held by the Constitution Bench in V.

Sriharan’s case (supra) paragraph 104 as well, which reads thus: -

“104. That apart, in most of such cases where death penalty or

life imprisonment is the punishment imposed by the trial court

and confirmed by the Division Bench of the High Court, the

convict concerned will get an opportunity to get such verdict

tested by filing further appeal by way of special leave to this

Court. By way of abundant caution and as per the prescribed law

of the Code and the criminal jurisprudence, we can assert after

the initial finding of guilt of such specified grave offences and

the imposition of penalty either death or life imprisonment, when

comes under the scrutiny of the Division Bench of the High Court,

it is only the High Court which derives the power under the Penal

Code, which prescribes the capital and alternate punishment, to

alter the said punishment with one either for the entirety of the

convict's life or for any specific period of more than 14 years, say

Page 12 of 17

20, 30 or so on depending upon the gravity of the crime

committed and the exercise of judicial conscience befitting such

offence found proved to have been committed.”

13. After referring to the relevant paragraphs from the said

decisions in Shiva Kumar this Court held as follows: -

“13.Hence, we have no manner of doubt that even in a case

where capital punishment is not imposed or is not proposed, the

Constitutional Courts can always exercise the power of imposing

a modified or fixed-term sentence by directing that a life

sentence, as contemplated by “secondly” in Section 53 of the

IPC, shall be of a fixed period of more than fourteen years, for

example, of twenty years, thirty years and so on. The fixed

punishment cannot be for a period less than 14 years in view of

the mandate of Section 433A of Cr.P.C.”

14. In view of the decisions referred (supra) and taking note of

the position that when once the conviction is sustained under

Section 376 AB, IPC the fixed term punishment could not be for a

period of less than 20 years. Evidently, the High Court had

referred, in paragraph 33 of the impugned judgment, to decisions

where minor girls were raped and murdered, but did not pointedly

consider whether for the conviction under Section 376 AB, IPC

involving commission of rape of victim, aged 7 years not coupled

Page 13 of 17

with murder what would be the comeuppance, after deciding to

commute the capital sentence.

15. We have taken note of the hapless situation of the victim after

being taken to a temple by the petitioner-convict. The evidence

would reveal that unmindful of the holiness of the place he

disrobed her and himself and raped her. When such an act was

done by the petitioner, who was then aged 40 years and X who was

then aged only 7 years and the evidence that when PW-2 and PW14 reached the place of occurrence, blood was found oozing from

the private parts of the disrobed child. The High Court had rightly

considered the aggravating and mitigating circumstances while

commuting the capital sentence into life imprisonment which

going by the provisions under Section 376 AB, IPC means rest of

the convict’s natural life. For effecting such commutation, the High

Court also considered the question whether there is possibility for

reformation and rehabilitation of the petitioner and opined that it is

not a case in which the alternative punishment would not be

sufficient in the facts of the case. But then, it is noted that if the

victim is religious every visit to any temple may hark back to her

the unfortunate, barbaric action to which she was subjected to. So

Page 14 of 17

also, the incident may haunt her and adversely impact in her future

married life.

16. Then, we are also to take into account the present age of the

petitioner and the fact that he has already undergone the

incarceration. On consideration of all such aspects, we are of the

considered view that a fixed term of sentence of 30 years, which

shall include the period already undergone, must be the modified

sentence of imprisonment.

17. We have already taken note of the fact that while commuting

the capital sentence to life imprisonment, the High Court had lost

sight of the fact that despite conviction under Section 376 (2) (i) and

under Sections 3/4, Sections 5(d)/6 of the POCSO Act, no separate

sentences were imposed on the petitioner for the offence under

Section 3/4 and 5(m)/6 of the POCSO Act by the Trial Court,

evidently, only on the ground that capital sentence is imposed on

the petitioner for the offence under Section 376 AB, IPC. However,

it is a fact that the said aspect escaped the attention of the High

Court. That apart, in terms of the provisions under Section 376 AB,

IPC when a sentence of imprisonment for a term not less than 20

years which may extend upto life imprisonment is imposed, the

convict is also liable to suffer a sentence of fine which shall be just

Page 15 of 17

and reasonable to meet the medical expenses and rehabilitation of

the victim which we quantify as Rupees One Lakh and the same

shall be paid to the victim with respect to the conviction under

Section 363, IPC. In that regard also, there is absolutely no

consideration in the impugned judgment.

18. It is submitted by the learned counsel, with reference to

paragraph 1 of the impugned judgment that the order in paragraph

35 of the impugned judgment that the conviction and sentence

under Section 366, IPC is maintained, can also be in relation to the

conviction under Section 363, IPC and the sentence imposed

therefor.

19. We fully endorse the said contention as paragraph 1 of the

impugned judgment itself would reveal that the High Court had

actually taken into consideration the fact that the petitioner-convict

was convicted only under Section 376 AB, IPC as amended by Act

No.22 of 2018 and under Section 363 IPC. In such circumstances,

the conviction and sentence imposed on the petitioner-convict is

confirmed. We have taken note of the fact that though the

petitioner-convict was convicted for the offence under Section 3/4

and 5 (m)/6 of the POCSO Act, no separate sentence was imposed

on the petitioner-convict by the Trial Court taking note of the

Page 16 of 17

provision under Section 42 of the POCSO Act. The said provision

reads thus:-

“42. Alternate punishment.—Where an act or omission

constitutes an offence punishable under this Act and also under

sections 166A, 354A, 354B, 354C, 354D, 370, 370A, 375, 376,

[376A, 376AB, 376B, 376C, 376D, 376DA, 376DB], [376E, section

509 of the Indian Penal Code or section 67B of the Information

Technology Act, 2000 (21 of 2000)], then, notwithstanding

anything contained in any law for the time being in force, the

offender found guilty of such offence shall be liable to

punishment only under this Act or under the Indian Penal Code

as provides for punishment which is greater in degree.”

20. Since, even after the interference with the sentence imposed

for the conviction of the petitioner-convict under Section 376 AB,

IPC and modified sentence imposed on commutation by the High

Court, we have awarded 30 years of rigorous imprisonment with a

fine of Rupees One Lakh, no separate sentence for the aforesaid

offence under POCSO Act is to be imposed on the petitioner convict. While maintaining the conviction of the petitioner-convict

under Section 376 AB, IPC, the sentence imposed thereunder is

modified to a sentence of rigorous imprisonment for a term of 30

years, making it clear that this will also include the period of

sentence already undergone and the period, if any ordered by the

Page 17 of 17

Trial Court for set off. The imprisonment awarded for the

conviction under Section 363, IPC shall run concurrently. The

amount of fine imposed thereunder shall be added to the fine

imposed by us viz., Rupees One Lakh.

21. We further direct that the petitioner-convict shall not be

released from jail before completion of actual sentence of 30 years,

subject to the observation made in the matter of its computation, as

mentioned above.

22. The Special Leave Petition is partly allowed, as above.

………………………, J.

 (C.T. Ravikumar)

………….…………, J.

 (Rajesh Bindal)

New Delhi;

February 05, 2024

Be that as it may, having regard to our discussions made above, we have no hesitation in holding that the respondent was entitled to refund of duty drawback. Appellants had belatedly accepted the said claim and made the refund. Since there was belated refund of the duty drawback to the respondent, it was entitled to interest at the rate which was fixed by the Central Government at the relevant point of time being fifteen percent

 Rule 3 of the 1995 Rules makes it abundantly clear that a drawback may be allowed on the export of goods at such amount or at such rates as may be determined by the Central Government. Further, Rule 14 provides for payment of drawback and interest.

2024 INSC 83

REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.7238 OF 2009

UNION OF INDIA AND ORS. APPELLANT(S)

VERSUS

M/S. B. T. PATIL AND SONS

BELGAUM (CONSTRUCTION) PVT. LTD. RESPONDENT(S)

J U D G M E N T

UJJAL BHUYAN, J.

Appellants i.e., Union of India, Director General of Foreign

Trade and Joint Director General of Foreign Trade by means of this civil

appeal have taken exception to the judgment and order dated

22.08.2008 passed by a Division Bench of the High Court of Karnataka,

Circuit Bench at Dharwad in Writ Appeal No.356 of 2006 affirming the

judgment and order of the learned Single Judge dated 22.09.2005

allowing Writ Petition No.45525 of 2004 filed by the respondent.

2

2. Facts lie within a narrow compass. Nonetheless, for a

determination of the lis, it would be necessary to briefly narrate the

relevant facts as projected by the respondent in the related writ petition.

2.1. Respondent is a class-I contractor specializing in the field

of civil contract works especially funneling and hydro electric power

projects.

2.2. Central Government had approved funding of a project

called Koyna Hydro Electric Power Project, Maharashtra by the

International Bank for Reconstruction and Development, which is an

arm of the World Bank. In the said project, respondent was awarded a

sub-contract to execute civil works from Lake Intake to the Emergency

Valve Tunnel. Respondent has relied upon a letter dated 08.08.1991

issued by the Chief Engineer of the project. Relevant portion of the letter

reads thus:-

4.2. Information regarding the benefits available

under the “Deemed Export” concept for this World Bank

Aided (Loan) Project may please be obtained by the

contractors from their own sources and the information

gained by them may be utilised, while quoting the rates.

2.3. A deemed export scheme was announced under the

Exim Policy, 1992-1997 by the Ministry of Commerce, Government

of India and the Director General of Foreign Trade under the

Foreign Trade (Development and Regulation) Act, 1992. Certain

3

benefits under ‘deemed export’ were also included in the said Exim

Policy.

2.4. Respondent completed the construction work awarded

to it in the month of March, 1996 and thereafter filed applications

dated 25.03.1996, 13.09.1996 and 20.12.1996 claiming duty

drawback for Rs.35,75,679.00, Rs.88,98,206.00 and

Rs.85,05,853.00 respectively.

2.5. By endorsements dated 10.11.1996, 06.12.1996 and

31.12.1996, Director General of Foreign Trade (for short ‘DGFT’

hereinafter) rejected the applications of the respondent for duty

drawback on the ground that supplies in civil construction work

were not eligible for ‘deemed export’ benefit.

2.6. Notwithstanding such rejection, respondent made

representations for reconsideration of such decision and sought for

duty drawback under the Exim Policy, 1992-1997. One such

representation is dated 05.02.1997. However, the same was

rejected by the DGFT vide the order dated 10.08.1997 stating that

civil construction work did not qualify for drawback.

2.7. On 20.08.1998, DGFT issued a circular under the

successor Exim Policy, 1997-2002 clarifying that supply of goods

under paragraph 10(2)(d) of the 1997-2002 Exim Policy would be

4

entitled for ‘deemed export’ benefit. It may be mentioned that the

Exim Policy of 1992-1997 had expired with effect from 31.03.1997.

2.8. On 05.12.2000, DGFT issued a circular that drawback

was to be paid in respect of excise duty on supply of goods to

projects funded by multilateral agencies.

2.9. In the above scenario, respondent once again addressed

a letter dated 28.08.2001 to the DGFT to finalize the issue.

However, DGFT rejected the claim vide the communication dated

21.06.2002.

2.10. Notwithstanding the same, a Policy Interpretation

Committee was constituted which examined the case of the

respondent in its meeting held on 07.10.2002. It was decided that

the benefit of duty drawback under the ‘deemed export’ scheme

would be extended to the respondent. Consequently, in

supersession of the earlier rejection order dated 21.06.2002 and in

the light of the decision of the Policy Interpretation Committee

dated 07.10.2002, DGFT vide the order dated 01.11.2002

permitted duty drawback of Rs.2,05,79,740.00 to the respondent.

Thereafter cheques for Rs.25,00,000.00, Rs.63,23,575.00,

Rs.81,05,583.00 and Rs.56,50,312.00, totalling Rs.2,25,79,470.00

vide endorsements dated 31.03.2003 and 20.05.2003 were issued.

5

However, it was clarified that duty drawback granted to the

respondent would not be treated as a precedent.

2.11. Respondent thereafter submitted representation

addressed to the appellants dated 06.06.2003, 14.06.2003,

17.07.2003, 29.10.2003 and 10.08.2004 seeking interest on the

duty drawback amount paid on the ground of delayed payment.

However, the request for interest made by the respondent was

rejected by the DGFT.

3. Aggrieved by rejection of the request for interest on the

amount of duty drawback paid, respondent preferred a writ petition

before the High Court which was registered as Writ Petition

No.45525 of 2004. After hearing the parties, a learned Single Judge

of the High Court vide the judgment and order dated 22.09.2005

referred to the notification dated 05.12.2000 and held that

respondent was entitled for duty drawback. After observing that

there was delay in payment of duty drawback, learned Single Judge

held that respondent would be entitled to interest for delayed

payment of duty drawback. Since Customs Act, 1962 provides that

interest has to be paid in such a case in the range of five percent

to thirty percent, learned Single Judge awarded interest at the rate

of fifteen percent. Consequently, directions were issued to the

6

appellants to consider the claim of the respondent for payment of

interest on delayed refund from the date of notification dated

05.12.2000 till the date of payment to the respondent within a

period of three months.

4. This judgment and order of the learned Single Judge

came to be assailed by the appellants before the Division Bench of

the High Court which was registered as Writ Appeal No.356 of

2006. Respondent also filed Writ Appeal No.3699 of 2005 assailing

the direction of the learned Single Judge to pay interest only from

05.12.2000. The Division Bench took note of the fact that since

duty drawback was refunded by the appellants to the respondent,

the only question to be considered was the entitlement of the

respondent to interest for the delayed refund. In this connection,

the Division Bench examined the notification dated 20.08.1998

and observed that this notification had clarified that ‘deemed

export’ would include goods and services of civil construction

projects. Thus, duty drawback under the Exim Policy in force was

extended even to civil construction. This position was further

clarified by the subsequent notification dated 05.12.2000. Such

notification was held by the Division Bench to be clarificatory in

nature, thus having retrospective effect. After referring to Sections

7

27A and 75A of the Customs Act, 1962, the Division Bench held

that respondent would be entitled to interest after expiry of three

months from the date of making the applications for refund of duty

drawback. Vide the judgment and order dated 22.08.2008, the

Division Bench opined that respondent would be entitled to

interest from the date of expiry of three months after submitting

the applications for refund of duty drawback in the year 1996 at

the rate of fifteen percent as awarded by the learned Single Judge.

While the writ appeal of the respondent was allowed, the writ

appeal of the appellants was dismissed.

5. Mr. V. C. Bharathi, learned counsel for the appellants

submitted a short list of dates and events. He pointed out

therefrom that applications filed by the respondent for duty

drawback were repeatedly rejected by the DGFT. Notwithstanding

such rejection, respondent continued to file one representation

after the other claiming duty drawback. It is in such

circumstances that a Policy Interpretation Committee was

constituted by the DGFT which examined the case of the

respondent and vide its decision dated 07.10.2002 decided to

extend the benefit of duty drawback to the respondent as a special

case. It is in this backdrop that DGFT had passed order dated

8

01.11.2002 emphasizing that the duty drawback paid to the

respondent would not be treated as a precedent. He submitted that

duty drawback was extended to the respondent as a special case

which was not available to the respondent under the Exim Policy

of 1992-1997. In such circumstances, question of awarding any

interest to the respondent on the ground of alleged delay in

payment of duty drawback did not arise. There was no provision

under the Exim Policy of 1992-1997 for payment of such interest.

Therefore, learned Single Judge erred in awarding interest to the

respondent, that too, at the high rate of fifteen percent.

5.1. He further argued that the Division Bench had fallen in

error taking the view that circulars dated 20.08.1998 and

05.12.2000 were clarificatory in nature and therefore would have

retrospective effect covering the case of the respondent. According

to him, these circulars were issued under the successor Exim

Policy, 1997-2002 and thus could not be applied to cases like that

of the respondent under the Exim Policy 1992-1997. He, therefore,

submitted that the present is a fit case for interfering with the

decision of the learned Single Judge as affirmed by the Division

Bench.

9

6. Per-contra, Mr. Basuva Prabhu Patil, learned senior

counsel for the respondent supported the orders of the learned

Single Judge and that of the Division Bench. He submitted that the

appellants having granted the benefit of duty drawback to the

respondent though belatedly, it is not open to them to now contend

that respondent was not entitled to such duty drawback which was

only granted as a concession. Admittedly, there was delay in refund

of duty drawback. Respondent is, therefore, entitled to interest on

such delayed refund which was rightly awarded by the High Court.

6.1. Referring to the provisions of Section 27A of the

Customs Act, 1962 (referred to as the ‘Customs Act’ hereinafter),

learned senior counsel submitted that the High Court had taken a

rather conservative figure considering the legislative scheme while

awarding interest at the rate of fifteen percent to the respondent.

He, therefore, submitted that no interference would be called for in

the orders of the High Court and that the civil appeal filed by the

appellants should be dismissed.

7. Submissions made by learned counsel for the parties

have received the due consideration of the Court.

10

8. Before we examine the decisions of the High Court, it

would be apposite to briefly highlight the statutory framework and

the concerned Exim Policy.

9. Section 11A of the Central Excise Act, 1944 (briefly

‘Central Excise Act’ hereinafter) deals with recovery of duties not

levied or not paid or short-levied or short paid or erroneously

refunded. Relevant for our purpose is sub-section (1) which says

that where any duty of excise has not been levied or not paid or

has been short levied or short paid or erroneously refunded, for

any reason other than the reason of fraud or collusion etc. with

intent to evade payment of duty, the Central Excise Officer shall

serve notice on the person so chargeable within two years from the

relevant date requiring him to show cause why he should not pay

the amount specified in the notice. The person chargeable with

duty may either before service of notice pay on the basis of his own

ascertainment or the duty ascertained by the Central Excise

Officer, the amount of duty along with interest payable thereon

under Section 11AA. In the event of fraud, collusion etc. the notice

period gets extended to five years.

9.1 Duty is cast upon the person liable to pay duty either

voluntarily or after determination under Section 11A to pay interest

11

in addition to the duty under sub-section (1) of Section 11AA. As

per sub-section (2), such interest shall not be below ten percent

and shall not exceed thirty six percent per annum, as the Central

Government may by notification in the Official Gazette fix. Such

interest shall be calculated from the date on which the duty

becomes due up to the date of actual payment of the amount due.

9.2. Section 11B of the Central Excise Act entitles any person

claiming refund of any duty of excise and interest to make an

application for refund of such duty and interest before the expiry

of one year from the relevant date (prior to 12.05.2000, it was six

months instead of one year).

9.3. Section 11BB provides for interest on delayed refund. It

says that if any duty ordered to be refunded under sub-section (2)

of Section 11B to any applicant is not refunded within three

months from the date of receipt of the application under subsection (1) of that section, there shall be paid to such applicant

interest at such rate not below five percent and not exceeding thirty

percent per annum as for the time being fixed by the Central

Government, by notification in the Official Gazette. Prior to

11.05.2001, the rate of interest was not below ten percent. The

applicant would be entitled to interest after expiry of three months

12

from the date of receipt of such application till the date of refund

of such duty.

10. Section 27 of the Customs Act deals with claim for

refund of duty. As per sub-section (1), any person claiming refund

of any duty or interest paid by him or borne by him, may make an

application in the prescribed form and manner, for such refund

addressed to the designated authority before the expiry of one year

from the date of payment of such duty or interest. Explanation

below sub-section (1) clarifies that for the purpose of sub-section

(1), the date of payment of duty or interest in relation to a person,

other than an importer, shall be construed as the date of purchase

of goods by such person.

10.1. Sub-section (2) says that if on the receipt of such

application the designated authority is satisfied that the whole or

any part of the duty and interest, if any, paid on such duty, paid

by the applicant is refundable, he may make an order accordingly

and the amount so determined shall be credited to the Consumer

Welfare Fund established under Section 12C of the Central Excise

Act. However, as per the proviso, the amount of duty and interest

so determined shall be paid to the applicant instead of being

credited to the Consumer Welfare Fund if such amount is relatable,

13

amongst others, to drawback of duty payable under Sections 74

and 75 of the Customs Act.

11. Section 27A of the Customs Act provides for interest on

delayed refund. It says that, if any duty ordered to be refunded

under sub-section (2) of Section 27 to an applicant is not refunded

within three months from the date of receipt of the application,

there shall be paid to that applicant interest at such rate not below

five percent and not exceeding thirty percent per annum as is for

the time being fixed by the Central Government, by notification in

the Official Gazette, on such duty from the date immediately after

the expiry of three months from the date of receipt of such

application till the date of refund of such duty.

12. Chapter X of the Customs Act comprising of Sections 74

to 76 deals with drawback. While Section 74 allows drawback on

re-export of duty-paid goods, Section 75 provides for drawback on

imported materials used in the manufacture of goods which are

exported. On the other hand, Section 75A deals with interest on

drawback. Sub-section (1) of Section 75A says that, where any

drawback payable to a claimant under Section 74 or Section 75 is

not paid within a period of one month (earlier it was two months

and prior thereto it was three months) from the date of filing a claim

14

for payment of such drawback, there shall be paid to that claimant

in addition to the amount of drawback, interest at the rate fixed

under Section 27A from the date after the expiry of the said period

of one month till the date of payment of such drawback.

13. In exercise of the powers conferred under Section 3 of

the Imports and Exports (Control) Act, 1947, the Central

Government notified the Export and Import (Exim) Policy for the

period 1992-1997. It came into effect from 01.04.1992 and

remained in force for a period of five years up to 31.03.1997.

14. After the enactment of The Foreign Trade (Development

and Regulation) Act, 1992, the Exim Policy, 1992-1997 was

deemed to have been made under the aforesaid Act. That being the

position, we will briefly refer to the said enactment.

15. The Foreign Trade (Development and Regulation) Act,

1992 (briefly ‘the 1992 Act’ hereinafter) is an act to provide for the

development and regulation of foreign trade by facilitating imports

into and augmenting exports from India and for matters connected

therewith or incidental thereto.

15.1. Section 4 declares that all orders made under the

Imports and Exports (Control) Act, 1947 and in force immediately

before the commencement of the 1992 Act shall so far as they are

15

not inconsistent with the provisions of the 1992 Act would continue

to be in force and shall be deemed to have been made under the

1992 Act.

15.2. Thus, by virtue of Section 4 of the 1992 Act, the Exim

Policy of 1992-1997 continued to be in force and was deemed to

have been made under the 1992 Act.

16. Section 5 of the 1992 Act, as it stood at the relevant

point of time, dealt with export and import policy. As per Section

5, the Central Government may from time to time formulate and

anounce by notification in the Official Gazette, the export and

import policy and may also, in the like manner, amend that policy.

17. Rule 2(e) of the Foreign Trade (Regulation) Rules, 1993,

framed under the 1992 Act, defines the word ‘policy’ to mean export

and import policy formulated and announced by the Central

Government under Section 5.

18. Let us now revert back to the Exim Policy, 1992 – 1997.

Section 7 of the said policy ascribes meaning to the words and

expressions for the purpose of the policy. As per Section 7(13),

‘drawback’ in relation to any goods manufactured in India and

exported means the rebate of duty chargeable on any imported

16

materials or excisable materials used in the manufacture of such

goods in India.

19. Chapter VII of the policy provides for ‘Duty Exemption

Scheme’. Section 47, which is the first section in Chapter VII,

mentions that under the Duty Exemption Scheme, imports of duty

free raw materials, components, intermediates, consumables,

parts, spares including mandatory spares and packing materials

required for the purpose of export production may be permitted by

the competent authority under the five categories of licences

mentioned in the said chapter, including special imprest licence.

As per Section 56 (ii)(3), supplies made to projects financed by

multilateral or bilateral agencies like the International Bank for

Reconstruction and Development would be entitled to duty free

import of raw materials, components, intermediates, consumables,

parts, spares including mandatory spares and packing materials

to main/sub-contractors for the manufacture and supply of

products to such projects.

20. Chapter X introduced the concept of ‘deemed exports’.

Section 120 defines ‘deemed exports’ to mean those transactions

in which the goods supplied did not leave the country and the

payment for the goods was received by the supplier in Indian

17

rupees but the supplies earned or saved foreign exchange for the

country.

21. Under Section 121 (f), supply of goods to projects

financed by multilateral or bilateral agencies, such as, the

International Bank for Reconstruction and Development under

international competitive bidding or under limited tender system

would be regarded as ‘deemed exports’ under the Exim Policy of

1992-1997.

22. Section 122 provides that ‘deemed exports’ shall be

eligible for the benefits in respect of manufacture and supply of

goods qualifying as ‘deemed exports’, including under the Duty

Drawback Scheme.

23. In exercise of the powers conferred by Section 75 of the

Customs Act, Section 37 of the Central Excise Act and Section 93A

read with Section 94 of the Finance Act, 1994, the Central

Government has made a set of rules called the Customs, Central

Excise Duties and Service Tax Drawback Rules, 1995. Rule 2(a)

defines ‘drawback’ in relation to any goods manufactured in India

and exported, to mean the rebate of duty or tax as the case may

be, chargeable on any imported materials or excisable materials

used or taxable services used as input services in the manufacture

18

of such goods. ‘Excisable material’ has been defined under Rule

2(b) to mean any material produced or manufactured in India

subject to a duty of excise under the Central Excise Act. Likewise,

the expression ‘imported material’ has been defined under Rule

2(d) to mean any material imported into India and on which duty

is chargeable under the Customs Act.

23.1. Rule 3 provides for allowance of drawback. Sub-rule (1)

says that subject to the provisions of the Customs Act, Central

Excise Act, the Finance Act, 1994 and the rules made under the

aforesaid three enactments, a drawback may be allowed on the

export of goods at such amount or at such rates as may be

determined by the Central Government.

23.2. Rule 14 deals with payment of drawback and

interest. Sub-rule (1) says that the drawback under the Customs,

Central Excise Duties and Service Tax Drawback Rules, 1995

(briefly ‘the 1995 Rules’ hereinafter) and interest, if any, shall be

paid by the proper officer of customs to the exporter or to the agent

specially authorized by the exporter to receive the said amount of

drawback and interest. Sub-rule (2) clarifies that the officer of

customs may combine one or more claims for the purpose of

payment of drawback and interest, if any, as well as adjustment of

19

any amount of drawback and interest already paid and may issue

a consolidated order for payment. As per sub-rule (3), the date of

payment of drawback and interest, if any, shall be deemed to be,

in the case of payment by cheque, the date of issue of such cheque;

or by credit in the exporter’s account maintained with the Custom

House, the date of such credit.

24. At this stage, we may mention that in exercise of the

powers conferred by Section 27A of the Customs Act, the Central

Board of Excise and Customs had issued notification bearing

No.32/1995 (NT)-Customs dated 26.05.1995 fixing the rate of

interest at fifteen percent for the purposes of Section 27A of the

Customs Act. This was notified by the Central Government in the

Ministry of Finance, Department of Revenue in the Official Gazette

of India dated 26.05.1995.

25. Likewise, in exercise of the powers conferred by Section

11BB of the Central Excise Act, the Central Board of Excise and

Customs issued notification No.22/95-Central Excises (NT) dated

29.05.1995 fixing the rate of interest at fifteen percent per annum

for the purposes of the said section. This was also notified by the

Central Government in the Official Gazette of India on 29.05.1995.

20

26. Though it may not be necessary, still we may refer to the

circulars dated 20.08.1998 and 05.12.2000 issued by the DGFT.

Circular dated 20.08.1998 says that representations had been

received from individual exporters as well as clarifications sought

for by different regional licencing authorities with regard to

availability of deemed export benefit for supply of goods and

services to civil construction projects. Circular dated 20.08.1998

says that the issue as to whether supply of goods and services to

civil construction projects would be entitled for deemed export

benefit or not had been examined in detail, whereafter it was

clarified that supply of goods under paragraph 10(2)(d) of the Exim

Policy would be entitled to deemed export benefit. Therefore, if

within the scope of a work of turn-key civil construction project,

supply of goods is included then supply of such goods would be

entitled to deemed export benefit.

26.1. It appears that representations were continued to be

received by the DGFT regarding admissibility of duty drawback on

supplies made to turn-key projects, considered as deemed export

in terms of the Exim Policy. Circular dated 05.12.2000 mentions

that the matter was deliberated upon by the Policy Review

Committee. It was noted that it was not possible for a single

21

contractor to manufacture himself all the items required for

execution of such projects. Hence certain items, either imported or

indigenous, had necessarily to be procured from other sources. It

was, therefore, clarified that all such directly supplied items,

whether imported or indigenous, and used in the projects, the

condition ‘manufactured in India’, a pre-requisite for grant of

deemed export benefit, was satisfied in view of the fact that such

activities being undertaken at the project site constituted

‘manufacture’ as per the definition provided in the Exim Policy.

Accordingly, it was clarified that the duties, customs and central

excise, suffered on such goods should be refunded through the

duty drawback route. Referring to the previous circular dated

20.08.1998, it was further clarified that excise duty paid on supply

of inputs, such as, cement, steel etc., would be refunded through

the duty drawback route in the same manner as in any other case

of excisable goods being supplied to any other project qualifying for

deemed export benefit, subject to the project authority certifying

the receipt and use of such inputs in the project.

27. As already noted above, a Policy Interpretation

Committee was constituted. The said committee held a meeting on

07.10.2002, chaired by the DGFT. One of the agenda items

22

deliberated upon in the said meeting was the claim of the

respondent regarding inclusion of excise duty component in the

price quoted before the project authority as a case of deemed export

and refund of the same through the duty drawback route. The

Policy Interpretation Committee discussed the case of the

respondent and opined that in case any such firms were still

competitive and able to supply goods at international prices despite

including the component of excise duty in the price quoted before

the project authority, the deemed export benefit could not be

denied to such firms. Hence, the committee decided to permit

deemed export benefit even in cases where the excise duty

component was factored in the pricing quoted provided other

conditions of deemed export benefit were adhered to.

27.1. From a perusal of the minutes of the meeting of the

Policy Interpretation Committee held on 07.10.2002, it is evident

that the committee had opined to extend the deemed export benefit

to those firms which included excise duty component in the tender

pricing quoted before the project authority such as the respondent.

There is nothing in the minutes to indicate that such benefit was

being extended to the respondent as a one off case or by way of

concession.

23

28. Based on the minutes of the Policy Interpretation

Committee meeting held on 07.10.2002, DGFT issued letter dated

01.11.2002, a copy of which was marked to the respondent,

superseding the previous rejection order dated 21.06.2002 and

allowing duty drawback to be paid to the respondent for

materials/goods, such as, steel, cement etc., used in the civil works

of Koyna Hydro Electric Project. The amount of drawback

refundable to the respondent was quantified at Rs.2,05,79,740.00.

In the said letter, it was, however, mentioned that grant of

drawback should not be treated as a precedent. It was thereafter

that cheques were issued paying the aforesaid amount of duty

drawback to the respondent. At that stage, respondent submitted

representations contending that there was delay in the refund of

drawback and therefore, it was entitled to interest from the relevant

date at the rate of fifteen percent in terms of the notification

No.22/95 dated 29.05.1995 (we may mention that the respondent

had placed reliance on the aforesaid notification which fixed

interest at the rate of fifteen percent for delayed refund of duty

under Section 11BB of the Central Excise Act). However, such

representations were rejected by the DGFT on 10.07.2003 and

06.08.2003 respectfully. In the rejection letter dated 10.07.2003,

respondent was informed by the office of DGFT that there was no

24

provision for payment of interest on the deemed export duty

drawback. Therefore, the request for payment of interest could not

be agreed upon.

29. Learned Single Judge referred to the circular dated

05.12.2000 and observed that pursuant thereto appellants had

paid the duty drawback to the respondent. However, there was

delay in payment of duty drawback at least from the date of the

clarificatory circular dated 05.12.2000. Therefore, respondent

would be entitled to interest from the date of the clarification till

the date of payment. After observing that the Customs Act provides

for interest on delayed refund within the range from five percent to

thirty percent, learned Single Judge directed the appellants to pay

interest on the delayed refund from the date of the clarificatory

circular dated 05.12.2000 till the date of payment within a period

of three months.

30. Appellants filed Writ Appeal No.356 of 2006 assailing

the aforesaid decision of the learned Single Judge. On the other

hand, respondent also filed a writ appeal being Writ Appeal

No.3699 of 2005 assailing the directions of the learned Single

Judge to pay interest only from the date of the circular dated

05.12.2000.

25

30.1 Before the Division Bench, it was contended on behalf of

the appellants that it was only under the Foreign Trade Policy,

2004-2009 that for the first time payment of simple interest at the

rate of six percent per annum in the event of delay in refund of duty

drawback was provided. There was no provision for payment of

interest on delayed refund of duty drawback on deemed export

prior thereto. Therefore, respondent was not entitled to interest

even from 05.12.2000 as directed by the learned Single Judge. It

was canvassed before the Division Bench on behalf of the

appellants that only due to magnanimity on the part of the Central

Government refund of duty drawback under deemed export was

paid to the respondent. As such, refund would not carry any

interest.

30.2 The Division Bench repelled such contentions advanced

on behalf of the appellants and held that in view of the circular

dated 05.12.2000, it was clarified that even civil construction

works were entitled to the benefit of deemed export under the Exim

Policy. After saying so, the Division Bench noted that as a matter

of fact, an amount of Rs.2,05,79,740.00 was paid to the respondent

as duty drawback. Thereafter, the Division Bench analysed the

circular dated 05.12.2000 and upon such analysis it was observed

26

that the position vis-à-vis refund of duty drawback in civil

construction work treating it as deemed export was clarified in an

earlier circular dated 20.08.1998. Thus, according to the Division

Bench, by the year 1998 itself, DGFT had clarified that civil

construction work was entitled to the benefit of duty drawback as

deemed export. Having held so, the Division Bench posed a

question as to whether the respondent would be entitled to interest

after expiry of three months from the date of the applications for

refund of duty drawback? Corollary to the above question was an

ancillary question as to whether a clarificatory or declaratory

notification or circular would have retrospective operation? After

referring to decisions of this Court reported in 1993 Supplementary

(3) SCC 234 S. S. Grewal versus State of Punjab, (1995) 2 SCC 630

Rajagopal Reddy (dead) by Lrs. Vs. Padmini Chandrasekharan

(dead) by Lrs., and (2004) 8 SCC 1 Zile Singh versus State of

Haryana, the Division Bench opined that the minute the Exim

Policy came into force the benefit of duty drawback automatically

became available to the respondent and that the clarification was

only with regard to the doubts expressed in some quarters as to

whether civil construction works were also entitled to such benefit.

By virtue of the two circulars dated 20.08.1998 and 05.12.2000,

no new right or benefit came to be created; those two circulars were

27

clarificatory in nature only clarifying that the benefit under the

Exim Policy 1992-1997 was available to civil construction as well.

Therefore, such benefit would take effect from the date of the Exim

Policy. It was thereafter that the Division Bench posed the further

question as to what would be the rate of interest on the delayed

refund. In this connection, the Division Bench referred to Sections

27A and 75A of the Customs Act and came to the conclusion that

the date of payment of interest would have to be on expiry of the

period of three months from the date of making an application for

refund of duty drawback. The Division Bench held that the

respondent would be entitled to interest from the date of expiry of

three months after submission of applications for refund back in

the year 1996 till the time the payment was made at the rate of

fifteen percent as awarded by the learned Single Judge.

Consequently, the appeal of the appellants was dismissed while the

appeal of the respondent was allowed.

31. Reverting back to the Exim Policy of 1992-1997, we

have already noted about the Duty Exemption Scheme. We have

noted that under the Duty Exemption Scheme, import of duty free

raw materials, components, intermediates, consumables, parts,

spares including mandatory spares and packing materials

28

required for the purpose of export production could be permitted

by the competent authority under five categories of licences

mentioned in Chapter VII including special imprest licence.

Section 56 provided that a special imprest licence was granted for

the duty free import of raw materials, components, consumables,

parts, spares including mandatory spares and packing materials

to main/sub-contractors for the manufacture or supply of

products when such supply were made to projects financed by

multilateral or bilateral agencies, such as, the International Bank

for Reconstruction and Development under international

competitive bidding or under limited tender system.

31.1 In Chapter X ‘deemed export’ has been defined. It is a

transaction in which the goods supplied do not leave the country

and the payment for the goods is received by the supplier in Indian

rupees, but the supplies earn or save foreign exchange for the

country. Section 121 declares that the categories of supply of

goods mentioned in the said section would be regarded as ‘deemed

export’ under the Exim Policy provided the goods were

manufactured in India and the payment was received in Indian

rupees. This included supply of goods to projects financed by

multilateral or bilateral agencies or any other agency that may be

29

notified by the Central Government, such as, the International

Bank for Reconstruction and Development under international

competitive bidding or under limited tender system in accordance

with the procedures of those agencies.

31.2 Section 122 clarifies that deemed export would be

eligible for benefits under the Duty Drawback Scheme in respect

of manufacture and supply of goods by treating those as deemed

export.

32. That apart, as already mentioned in the earlier part of

the judgement, the Explanation below sub-section (1) of Section

27 of the Customs Act clarifies that the expression ‘the date of

payment of duty or interest’ in relation to a person other than an

importer shall be construed as ‘the date of purchase of goods’ by

such person.

33. Therefore, on a conjoint and careful reading of the

relevant provisions of the Exim Policy, 1992-1997 in conjunction

with the Central Excise Act and the Customs Act, it is evident that

supply of goods to the project in question by the respondent was a

case of ‘deemed export’ and thus entitled to the benefit under the

Duty Drawback Scheme. The language employed in the policy

30

made this very clear and there was no ambiguity in respect of such

entitlement.

34. Even if there was any doubt, the same was fully

explained by the 1995 Rules. In fact, under the definition clause

of the 1995 Rules, duty drawback, in relation to any goods

manufactured in India and exported has been defined to mean the

rebate of duty or tax chargeable on any imported materials or

excisable materials used or taxable services used in the

manufacture of such goods. In the preceding paragraphs, we have

noted the meaning of the expressions ‘excisable materials’ and

‘manufacture’.

34.1 Rule 3 of the 1995 Rules makes it abundantly clear that

a drawback may be allowed on the export of goods at such amount

or at such rates as may be determined by the Central Government.

Further, Rule 14 provides for payment of drawback and interest.

35. It was, therefore, not correct on the part of the

appellants to contend that there was no provision for payment of

interest on delayed refund of duty drawback. That apart, it is

wholly untenable for the appellants to contend that refund of duty

drawback was granted to the respondent as a concession, not to

be treated as a precedent. As we have seen, respondent is entitled

31

to refund of duty drawback as a deemed export under the Duty

Drawback Scheme. The applications for refund were made in 1996.

Decision to grant refund of duty drawback was taken belatedly on

07.10.2002 whereafter the payments were made by way of cheques

on 31.03.2003 and 20.05.2003. Admittedly, there was

considerable delay in refund of duty drawback.

36. As we have already examined, under sub-section (1) of

Section 75A of the Customs Act, where duty drawback is not paid

within a period of three months from the date of filing of claim, the

claimant would be entitled to interest in addition to the amount of

drawback. This section provides that the interest would be at the

rate fixed under Section 27A from the date after expiry of the said

period of three months till the payment of such drawback. If we

look at Section 27A, the interest rate prescribed thereunder at the

relevant point of time was not below ten percent and not exceeding

thirty percent per annum.

37. The Central Board of Excise and Customs vide its

notification bearing No.32/1995 (NT) – Customs dated 26.5.1995

had fixed the rate of interest at fifteen percent for the purpose of

Section 27A of the Customs Act. The High Court while awarding

interest at the rate of fifteen percent per annum, however, did not

32

refer to such notification; rather, there was no discussion at all as

to why the rate of interest on the delayed refund should be fifteen

percent. Therefore, at the first glance, the rate of interest awarded

by the High Court appeared to be on the higher side and without

any reason.

38. Be that as it may, having regard to our discussions

made above, we have no hesitation in holding that the respondent

was entitled to refund of duty drawback. Appellants had belatedly

accepted the said claim and made the refund. Since there was

belated refund of the duty drawback to the respondent, it was

entitled to interest at the rate which was fixed by the Central

Government at the relevant point of time being fifteen percent.

39. That being the position, we find no good reason to

interfere with the judgment and order of the Division Bench of the

High Court dated 22.8.2008. There is no merit in the appeal, which

is accordingly dismissed. No costs.

 .………………………………J.

 [ABHAY S. OKA]

…………………………………J.

 [UJJAL BHUYAN]

NEW DELHI;

05.02.2024

The notification provides that right of pre-emption shall not exist in respect of sale of land falling in the areas of municipalities in Haryana.

 suit for possession by pre-emption - whether the exemption of pre-emption as granted

vide notification dated 08.10.1985 would be available to the

property in dispute.- As the notification dated 08.10.1985 limits its application for taking away the right of pre-emption only with reference to sale of land falling in the areas of any municipality, the same will not come to the rescue of the appellants. In the case in hand, admittedly it is sale of immovable property, which is more than the land as a rolling mill had already been set up on the land, which was in occupation of the respondents as tenants.

2024 INSC 86 REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

 CIVIL APPEAL NO. OF 2024

(Arising out of SLP(C)No.18612 of 2015)

JAGMOHAN AND ANOTHER … Appellant(s)

VERSUS

BADRI NATH AND OTHERS … Respondent(s)

JUDGMENT

RAJESH BINDAL, J.

Leave granted.

2. The defendants are before this Court challenging the

concurrent findings of fact recorded by all the courts below.

3. It is a case in which the respondents had filed a suit1

on 25.01.1984 for possession by pre-emption of the plot

measuring 719 square yards, situated at Light Railway Bazar,

Jagadhri (hereinafter referred to as ‘the property in dispute’).

1 Civil Suit No. 309

1

The Trial Court2

 decreed the suit. The judgment and decree3

 of

the Trial Court was upheld upto the High Court4

.

4. The facts in brief are that the respondents (plaintiffs

in the suit) claimed themselves to be the tenants in the

property in dispute since 1949. The property in dispute was

owned by Anarkali and others. The same was sold by the

owners thereof to the appellants (defendants in the suit) by

way of a registered sale-deed dated 25.01.1983. The

respondents filed the suit exercising their right of pre-emption

of the sale claiming that in terms of the provisions of the 1913

Act5

, they had preferential right to purchase the property. They

offered to pay same sale consideration of ₹43,000/-. The Trial

Court decreed the suit subject to payment of ₹50,238/- to the

vendee after deducting 1/5th of the pre-emption amount

deposited in the Court at the time of filing of the suit. The

amount so directed by the Trial Court was including stamp duty,

registration fee and miscellaneous expenses incurred on

registration of the sale-deed6

.

2 Additional Senior Sub Judge, Jagadhri

3 Judgment and decree dated 27.05.1989

4 High Cour of Punjab and Haryana at Chandigarh

5 The Punjab Pre-emption Act, 1913

6 Sale-deed dated 25.01.1983

2

5. Challenging the judgment of the High Court, learned

counsel for the appellants submitted that in view of the

notification 08.10.1985, issued by the State in exercise of

powers under section 8(2) of the 1913 Act, the suit filed by the

respondents deserved to be dismissed as the right of preemption did not exist for sale of land falling in the areas of any

municipality in Haryana. It is not a matter of dispute that the

sale in question was pertaining to the property located within

the municipal limits of Jagadhri (State of Haryana). In terms of

the Constitution Bench judgment of this Court in Shyam

 Sunder and others v. Ram Kumar and another7

, the right

of pre-emption has to exist on the date of registration of the

sale-deed, on the date of filing of suit and also on the date the

same is decreed by the first Court. In the case in hand, no

doubt, the suit was pending when the aforesaid notification was

issued, however, the Trial Court had decided the same on

27.05.1989, hence the decree could not have been passed. The

courts below have failed to appreciate that aspect of the

matter.

6. He further submitted that the sale deed was

registered in favour of the appellants on 25.01.1983, the suit

7 (2001) 8 SCC 24

3

having been filed on 25.01.1984 was time-barred as the

limitation thereof is one year, which expired on 24.01.1984. It

was further argued that the courts below have wrongly

appreciated the issue regarding the custom of pre-emption

prevailing in the area. It was not a matter of dispute that the

area in which the property is situated, falls within the extended

area of municipal limits of Jagadhri. Though some evidence was

led pertaining to the custom prevailing in the urban area of

municipal limits of Jagadhri, however, for the extended area, no

evidence was produced. In terms of the judgment of the High

Court in Sandeep Bansal v. M. L. Hans and others8

,

decided on 24.08.2009, the same custom cannot be relied upon

for any transaction of sale in the extended area.

7. On the other hand, learned counsel for the

respondents submitted that though issue of limitation was

raised by the appellants before the Trial Court, however, the

same was not seriously contested for the reason that the suit

filed by the respondents was within limitation. The Schedule

attached to the 1963 Act9

 provides for a period of one year for

filing of suit for pre-emption. If the same is read along with

8 R.S.A. No. 2109 of 1998

9 The Limitation Act, 1963

4

Section 12 of the aforesaid Act, in terms of which the date of

registration of sale deed is to be excluded, the suit filed by the

respondents was within limitation. It was for this reason that

the appellants did not press the aforesaid issue before the

lower Appellate Court10 or the High Court.

8. It was further submitted that the notification dated

08.10.1985, as is sought to be relied upon by the appellants,

will not be applicable in the case in hand. From a perusal

thereof, it is evident that the exemption is only with reference

to sale of land within the municipal area. In the case in hand, it

is not the sale of land, rather immovable property in the form of

a rolling mill, which cannot be termed to be land. The aforesaid

notification has been issued in exercise of powers under Section

8(2) of the 1913 Act which enables the State Government to

exclude any transaction of sale of any land or property or class

of land or property for exercise of right of pre-emption. The

right to the respondents flows from Section 16 of the 1913 Act

which provides that right of pre-emption in respect of urban

immovable property vests in the tenant. The term ‘urban

immovable property’ has been defined in Section 3(3) of the

1913 Act to mean immovable property within the limits of town,

10 Additional District Judge, Yamuna Nagar at Jagadhri

5

other than agricultural land. Section 3(1) thereof defines any

agricultural land to mean land as defined in 1900 Act11. Section

3(2) defines ‘village immovable property’ to mean immovable

property within the limits of a village, other than agricultural

land.

9. The expression ‘land’ is defined in 1900 Act to mean

the land which is not occupied by site of any building in a town

or village and is occupied or let out for agricultural purposes or

for purposes subservient to agriculture. He also referred to the

definition of ‘immovable property’, as provided for in Section

3(26) of the 1897 Act12. As the sale in the case in hand was

pertaining to not the land situated within the municipal limits

but of a constructed area which was being used a rolling mill,

the exemption as granted vide notification dated 08.10.1985

will not be applicable in the case of the appellants. Very fairly,

he did not dispute the proposition of law as laid down by the

Constitution Bench of this Court in Shyam Sunder and

others’ case (supra). However, he submitted that the same

will not be applicable in the facts and circumstances of the case

11 Punjab Alienation of Land Act, 1900

12 The General Clauses Act, 1897

6

as the notification does not come to the rescue of the

appellants.

10. Heard learned counsel for the parties and perused

the relevant referred record.

11. The relevant provisions of the 1900 Act and 1913 Act

are extracted below:

“Sections 3(1) (2) and (3), 8, 15 and 16 of the

Punjab Pre-emption 1913 Act

3. Definitions. - In this Act, unless a different

intention appears from the subject or context, -

(1)‘agricultural land’ shall mean land as

defined in Punjab Alienation of Land Act,

1900 (XIII of 1900) (as amended by act, 1 of

1907), but shall not include the rights of a

mortgage, whether usufructuary or not in

such land:

(2)‘village immovable property’ shall mean

immovable property within the limits of a

village, other than agricultural land:

(3)‘urban immovable property’ shall mean

immovable property within the limits of

town, other than agricultural land. For the

purposes of this Act a specified place shall

be deemed to be a town (a)

7

If so declared by the State Government by

notification in the Official Gazette or (b) if so

found by the Courts:

 xx xx xx

8. State Government may exclude areas

from pre-emption- (1) Except as may otherwise

be declared in the case of any agricultural land in a

notification by the State Government, no right of

pre-emption shall exist within any cantonment.

 (2) The State Government may declare by

notification that in any local area or with respect to

any land or property or class of land or property or

with respect to any sale or class of sales, no right of

pre-emption or only such limited right as that the

State Government may specify, shall exist.

 xx xx

xx

15. Persons in whom right of pre-emption

vests in respect of sales of agricultural land

and village immovable property. (1) The right of

pre-emption in respect of agricultural land and

village immovable property shall vest-

(a) where the sale is by sole ownerFirst, in the son or daughter or son’s son or

daughter’s son of the vendor;

8

Secondly, in the brother or brother’s son of the

vendor;

Thirdly, in the father’s brother or father’s

brother’s son of the vendor;

Fourthly, in the tenant who holds under tenancy

of vendor the land or property sold or

apart thereof.

(b)Where the sale is of a share out of joint land or

property made by all the co-sharers jointlyFirst in the sons or daughters or sons’ sons or

daughters’ sons of the vendor or vendors;

Secondly, in the brothers or bother’s sons of the

vendor or vendors;

Thirdly, in the father’s brother or father’s brother’s

sons of the vendor or vendors;

Fourthly, in the other co-sharer’s;

Fifthly, in the tenants who hold under tenancy of the

vendor or vendor the land or property sold

or a part thereof;

(c) where the sale is of land or property owned

jointly and is made by all the co-sharers jointlyFirst, in the sons or daughters or son’s sons or

daughter’s sons of the vendors;

Secondly, in the brothers or bother’s sons of the

vendors;

9

Thirdly, in the father’s brother’s or father’s

brother’s sons of vendors;

Fourthly, in the tenants who hold under tenancy

of the vendors or any one of them the land

or property sold or a part thereof.

(2) Notwithstanding anything contained in subsection (1):-

(a) where the sale is by a female of land or

property to which she has succeeded through her

father or brother or the sale in respect of such

land or property is by the son daughter of such

female after inheritance, the right of pre-emption

shall vest:-

(i) if the sale is by such female in her

brother or brother’s son:

(ii) if the sale is by the son or daughter of

such female in the mother’s brother or

the mother’s brother’s son of the vendor

or vendors;

b. where the sale is by a female of land or

property to which she has succeeded through her

husband, or through her son in case the son has

inherited the land or property sold from his

father, the right or pre-emption shall vest-

 First, in the son or daughter of such husband of

the female;

10

Secondly, in the husband’s brother or

husband’s brother’s son of such female.

16. Person in whom right of pre-emption

vests in an urban immovable property- The

right of pre-emption in respect of urban immovable

property shall vest in the tenant who holds under

tenancy of the vendor the property sold or apart

thereof.”

Section 2(3) of the 1900 of Punjab Alienation

of Land Act, 1900

2. In this Act, unless there is anything repugnant in

the subject or context, --

 xx xx xx

(3) the expression “land” means land which is not

occupied as the site of any building in a town or

village and is occupied or let for agricultural

purposes or for purposes subservient to agriculture

or for pasture, and includes—

(a) the sites of buildings and other structures

on such land;

(b) a share in the profits of an estate or

holding;

(c) any dues or any fixed percentage of the

land-revenue payable by an inferior landowner to a superior land-owner;

11

(d) a right to receive rent; and

(e) any right to water enjoyed by the owner or

occupier of land as such:

12. The right of the respondents/tenants in the property

flows from Section 16 of the 1913 Act. It is not a matter of

dispute that the respondents were tenants in the property from

the year 1949 onwards where the rolling mill had been set up.

The term ‘urban immovable property’ has been defined in

Section 3(3) of the 1913 Act to mean immovable property

within the limits of town, other than agricultural land. Section

3(1) defines any agricultural land to mean land as defined in

1900 Act. The term ‘land’ as defined in Section 2(3) of the 1900

Act excludes any site of any building in a town or village.

Meaning thereby that the immovable property would be more

than the land only or the land on which the construction has

already been made. The fact that the property in dispute is

located in a municipal area of Jagadhri is not in dispute.

13. After coming to the conclusion that the property in

dispute on which right of pre-emption was sought to be

exercised by the respondents was an urban immovable

property, the only issue which requires consideration by this

12

Court is as to whether the exemption of pre-emption as granted

vide notification dated 08.10.1985 would be available to the

property in dispute.

14. A perusal of the notification shows that it has been

issued in exercise of powers conferred under Section 8(2) of the

1913 Act, which enables the State Government to declare by

notification either no right of pre-emption or only limited right

will exist in any local area or with respect to any land or

property or class of land or property. The notification provides

that right of pre-emption shall not exist in respect of sale of

land falling in the areas of municipalities in Haryana.

15. As we have already noticed above, the term ‘land’ as

such has not been defined in the 1913 Act as it is only the

agricultural land which is defined. If the aforesaid notification is

read with reference to the powers available with the State

Government to grant exemption from pre-emption, it is evident

that the same has been granted with reference to land only and

not the immovable property. The fact that Section 8(2) of the

1913 Act uses two terms independently, clearly suggests that

the land and the immovable property have different meanings.

It is evident even from the language of Section 15 of the 1913

13

Act, which also provides right of pre-emption in respect of

agricultural land and village immovable property. ‘Village

immovable property’ has been defined to mean immovable

property within the limits of a village other than the agricultural

land.

16. From the aforesaid provisions of the 1913 Act, if read

Scheme of the Act, it is abundantly clear that the land and the

immovable property are two different terms. The immovable

property is more than the land on which certain construction

has been made. Guidance can also be taken from the definition

of immovable property, as provided in Section 3(26) of the

1897 Act, which includes land, means something more than the

land.

17. As the notification dated 08.10.1985 limits its

application for taking away the right of pre-emption only with

reference to sale of land falling in the areas of any municipality,

the same will not come to the rescue of the appellants. In the

case in hand, admittedly it is sale of immovable property, which

is more than the land as a rolling mill had already been set up

on the land, which was in occupation of the respondents as

tenants.

14

18. The issue regarding limitation for filing of the suit is

also misconceived if considered in the light of the facts of the

case, the provisions of the 1961 Act and also that the same was

not raised by the appellants before the lower Appellate Court or

the High Court.

19. For the reasons mentioned above, we do not find any

merit in the present appeal. The same is, accordingly,

dismissed.

 …...………….……………..J.

 (C.T.RAVIKUMAR)

…...………….……………..J.

 (RAJESH BINDAL)

New Delhi

February 06, 2024.

15

conviction and sentence of A-3 is however modified to Section 304 Part II and sentenced to 10 years imprisonment.

 conviction and sentence of A-3 is however modified to Section 304 Part II and sentenced to 10 years imprisonment.

The perusal of the evidence would reveal that it is not the

case of the prosecution that A-3 was along with the other accused

while the deceased was dragged to the house. The deposition would

reveal that after the other accused assaulted the deceased with

sword, A-3 came thereafter and assaulted the deceased with stone

lying there. We, therefore, find that the prosecution has not been

in a position to establish that A-3 shared the common intention

with the other accused to cause the murder of the deceased.

2024 INSC 87

1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 2852 OF 2023

VELTHEPU SRINIVAS AND OTHERS ...APPELLANT(S)

VERSUS

STATE OF ANDHRA PRADESH …RESPONDENT(S)

(NOW STATE OF TELANGANA)

AND ANR.

J U D G M E N T

PAMIDIGHANTAM SRI NARASIMHA, J.

1. This criminal appeal by appellants (accused 1 to 4) is against

the concurrent conviction under Section 302 read with Section 34

and sentence for life imposed by the Trial as well as the Telangana

High Court. For the reasons to follow, while we confirm the

judgment and sentence with respect to A-1, A-2 and A-4, the

conviction and sentence of A-3 is however modified to Section 304

Part II and sentenced to 10 years imprisonment. The details of the

crime, trial, decisions of the Courts, followed by our analyses and

conclusions are as follows.

2. The case of the prosecution is that the accused 1 to 4

belonging to the same family, and the deceased, come from the

2

same village - Janda Venkatpur, Asifabad, Telangana. It is alleged

that the sister of the deceased and the wife of A-4 were political

aspirants and they contested the Gram Panchayat elections. In the

said elections, the sister of the deceased succeeded and the wife of

A-4 lost and that, unfortunately, led to an animosity between the

two groups, eventually leading to the murder of the deceased

which is described as follows.

3. On 15.11.2001, at about 8AM, the deceased was going to

Luxettipet on some work in an auto-rikshaw. In the same autorikshaw, one Sanga Swamy @ Thruputhi (PW-6) and Smt.

Chetimala Rajitha (PW-9) were travelling as co-passengers. When

the auto reached the house of A-4, it is alleged that A-1 stopped

the auto-rickshaw and dragged the deceased out by pulling his

legs. At the same time, A-2 joined A-1 and both the accused

dragged the deceased towards the house of A-4. At that point, it is

alleged that A-1 to A-4 attacked the deceased with an axe, a sword,

a stone and a knife, thereby inflicting severe bleeding injuries

leading to death of the deceased on the spot.

4. The son of the deceased, Kona Kiran Kumar, later examined

as PW-1, being an eyewitness, proceeded to the police station and

reported the incident at about 9PM by way of a complaint (Exhibit

3

P-1). The Sub-Inspector of Police (PW-17), Luxettipet received the

complaint and registered an FIR (Exhibit P-32), and took up the

investigation. He then recorded the statement of PW-1.

5. In view of the gravity of the crime, the Circle Inspector of

Police (PW-18) took up further investigation and immediately

proceeded to the village to examine the scene of offence. He found

the body of the deceased in the front yard of A-4’s house. He

enabled PW-15 to take photographs of the dead body

(Exhibits P-21 to 30) and himself drew the sketch of the scene of

offence (Exhibit P-37). He also conducted an inquest over the body

of the deceased in the presence of PW-10 and

PW-12 (panch witnesses). The inquest report was marked as

Exhibit P-5. He also seized a stick (MO.4), control earth (MO.5),

blood-stained earth (MO.6), cotton full shirt (MO.7) and a baniyan

under cover of a panchnama. PW-18 recorded the statements of

PWs 4, 5, 6, 7, 8, 9, and 15. The prosecution maintained that PWs

1, 3, 4, 6, 7 and 8 are eyewitnesses to the incident.

6. The Judicial Magistrate First-Class (PW-16) also recorded the

statements of PWs 1 to 9 under Section 164 of the CrPC. The Postmortem over the dead body of the deceased was conducted by Dr

Victor Dinesh (PW-11) at 3PM on 15.11.2001 at the Government

4

Civil Hospital. PW-11, in his report, found 8 incised wounds, 3

partial amputations and 1 deep lacerated wound. It was his

opinion that the cause of death was due to cardio-pulmonary

arrest due to transaction spinal cord at atlanto occipital joint.

7. The Sub-Inspector (PW-17) is said to have apprehended all

the accused on 23.11.2001 and produced them before PW-18 in

his office. PW-18 recorded the confessional statement of the

accused in the presence of PW-13 and PW-14 (panch witnesses).

In pursuance of the confession, all the accused led him and the

panch witnesses to the field of one Mr. Appani Gangaiah at

Laximpur Shivar. There, A-1 recovered and showed an axe, A-2 a

sword and A-4 a knife which were all hidden behind the bushes in

the field. PW-18 seized these objects in front of PW-11 to PW-13,

later came to be marked as Exhibits MOs 1 to 3. PW-18 also

recovered a lungi belonging to A-1 and one belonging to A-2

(Exhibit MO’s 9 and 10, respectively). These material objects were

sent to a Forensic Lab in Hyderabad, the report of which is marked

as Exhibit P-16.

8. After completion of the above referred investigation, a chargesheet was filed on 09.01.2002. The Judicial First-Class Magistrate,

Luxettipet took cognizance of the offence under Section 302 read

5

with Section 34 of IPC, against all the accused. On production of

the accused, the Magistrate furnished copies of the charge-sheet

and other connected documents and committed the case to the

Court of Sessions and the Learned Sessions Judge numbered the

trial as Sessions Case No. 523 of 2003. After the charges were

framed, the accused pleaded not guilty and sought trial.

9. At the trial, the prosecution examined 18 witnesses being

PW-1 to PW-18, and marked 37 documents and 10 Material

Objects (MO’s). After the closure of evidence, the accused were

examined under Section 313 CrPC with reference to the

incriminating material found against them in the evidence of the

prosecution witnesses, and they denied the same. There are no

defence witnesses.

10. The Trial Court, by its elaborate judgment dated 24.02.2005,

found all four accused guilty for the murder of the deceased and

convicted them under Section 302 read with Section 34 of the IPC.

Accordingly, they were sentenced to undergo imprisonment for life

and to pay a fine of Rs. 500 each, in default, to undergo simple

imprisonment of one month. All the accused appealed to the High

Court.

6

11. For the completeness of narration, we may indicate that the

High Court initially acquitted all the accused by its judgment dated

21.06.2007, but in appeal to this Court, their conviction and

sentences were set-aside, and the criminal appeal was remanded

back to the High Court for fresh consideration. It is in this

background that the order impugned came to be passed by the

High Court.

12. After remand, the High Court confirmed the judgment of the

Trial Court and dismissed the criminal appeals. The Special Leave

Petition filed by the accused was admitted on 01.08.2022 and this

is how we have heard Shri Gaurav Agrawal, learned counsel for the

appellants and Shri Krishan Kumar Singh learned counsel for the

State and Shri Sirajudeen, learned senior counsel for the

respondent No. 2.

13. Findings of the Trial Court: The Trial Court had examined

the credibility of the Prosecution witness in great detail. According

to the Trial Court, PWs 1, 3, 4, 6, 7 and 8 were eyewitnesses to the

incident and their testimonies were consistent. Among them, PW6’s testimony was a clinching piece of evidence as he was privy to

the incident from the very beginning. He was subjected to intense

cross-examination with respect to his residence and other details

7

about the incident. Except for minor variations, the Trial Court

found his testimony unshaken, being consistent and natural. The

Trial Court found the testimonies PW-1, PW-3, PW-4, PW-7, PW-8

corroborating the incident of stopping an auto, dragging the

deceased out, and subsequently assaulting the deceased with

various weapons.

14. Collectively, the witnesses reiterated that A-1 stopped the

auto-rickshaw and pulled the deceased out and A-2 attacking the

deceased’s hands with a sword. As they reached A-4’s house, A-4

took the sword from A-2 and struck the deceased on his head. A4 also inflicted injuries by a knife. The common account about A3 is that he hit the deceased on the head with a stone. Accused

No. 1 continued the attack and hit the deceased with an axe.

Largely, these witnesses recounted a consistent narrative of the

attack, identifying the weapons used and the roles of each

accused.

15. Judgment of the High Court: According to the High Court,

the accounts of PWs 1, 3, 4, 6, 7 and 8, who witnessed the incident,

converge and are consistent with the injuries, weapons and motive

for the murder of the deceased. The High Court correctly relied on

the evidence of PW-6 who was in an auto-rickshaw along with the

8

deceased on the day of the incident. PW6’s evidence that he

boarded the auto-rickshaw of PW-5, followed by the deceased and

Rajitha (PW-9) joining him, was believed by the High Court.

16. The account of PW6 being corroborated by the evidence of

PWs 1, 3, 4, 7 and 8, the High Court held that the evidence

conclusively establishes the guilt of the accused beyond

reasonable doubt. The High Court also noted the submission

relating to the contradictions in the Complaint (Ex. P1) and the

testimonies of PWs 1, 3, 4, 6, 7 and 8, specifically relating to the

acts of assault, however, the High Court came to the conclusion

that they were minor in nature.

17. Though the High Court saw that the trial court extensively

examined the evidence and considered all the submissions, it has

nevertheless considered the evidence afresh and after a detailed

examination, arrived at the same conclusion. We have given our

anxious consideration and have scrutinised the evidence of all the

eye-witnesses in detail. We are in full agreement with the decision

of the Trial Court and the High Court. Their analyses and

conclusions are based on correct appreciation of evidence and law.

However, there is one aspect which stands out in the abovereferred analyses of the Trial Court and the High Court, and that

9

pertains to the conclusion on the culpability of A-3 for murder. We

will now examine the evidence as against A-3.

18. Evidence against Accused No.3: To commence with, the

FIR states that A-3 hit the deceased on the head, thereby causing

death. The Chargesheet states that A3 used a stone to do the same.

However, no further details have been provided. Further as we

examine the testimonies of all the eyewitnesses the following

picture emerges. PWs 1, 3, 4 and 6 state that the A-3 had used a

stone to hit the deceased’s head. PW-7 and PW-8 do not speak

about his role.

19. PW-1, in his examination-in-chief and cross-examination,

has respectively stated as follows:

Chief - “When I was trying to go near the deceased, A-3

threatened me saying that if I go there he would kill me.

A-3 hit the deceased with a stone.”

Cross - “I read Ex. P-1 complaint and it does not show

that A-1 and A-3 threatened me and other eye witnesses

to kill if we tried to rescue the deceased”

20. PW-3, in his examination-in-chief and cross-examination,

has respectively stated as follows:

Chief - “After hearing the cries of the said Rajitha and

Swamy I, PW1, Kona Mallesh Akireeddy Ramesh,

T.Odaiah rushed to the spot. By the time we reached the

spot the deceased was lying on ground with injuries and

10

on seeing us A-3 took a stone and gave threats to us

saying that he would hit us if we go there.”

Cross - “It is not true to say that I did not state before

the police that when land other eye witnesses were

going near· the place of the incident A-3 armed with a

stone threatened to kill us. It is not true to say that for

the first time before this court I am deposing that A-3

armed with a stone threatened me and other witnesses

to kill”

21. P.W. 4, in his examination-in-chief, has stated as follows:

“A-3 took a stone and hit on the head of the deceased.”

22. P.W. 6, in his examination-in-chief, has stated as follows:

“A-3 took a stone and hit on the head of the deceased.”

23. A reading of the judgment and order passed by the Trial as

well as the High Court would indicate that neither the prosecution

or defence, nor the court, have focussed on the role of A-3 as

evidenced by the oral and documentary evidence. There is nothing

to attribute A-3 with the intent to murder the deceased. In fact,

both the Courts have mechanically drawn an inference against A3 under Section 34 of the Act merely based on his presence near

the scene of offence and his familial relations with the other

accused.

24. As per the post-mortem report, the cause of death is “cardio

pulmonary arrest due to transaction spinal cord at atlanto occipital

11

joint”. The atlanto occipital joint is at the back of the neck, which

is the exact place where A-1 assaulted the deceased with the help

of an axe. This axe was then taken by A-2 and thereafter, by A-4,

who also assaulted the deceased. All the eye-witnesses are clear in

this account. In other words, it was only A-3 who never took the

axe in his hand. He only used a stone to assault the deceased.

25. Considering the statements of the eye-witnesses, coupled

with the post-mortem report, it is not possible to contend that A-3

would have had the intention to commit the murder of the

deceased and as such, he cannot be convicted under Section 302

IPC.

26. In fact, Victor Dinesh (PW-11), who gave the post-mortem

report had indicated the injuries as under:

“1. Incised wound extending from right ear to left cheek

19 cm long 6 cm deep 2 mm wide grievous sharp

weapon, Ante mortem.

2. Incised wound on the right eye brow (4cms) simple

sharp weapon Ante mortem.

3. Incised wound on the left side of fore head about 9

cms above left eye brow measuring 8 cms sharp

weapon Ante mortem.

4. Incised wound on left shoulder measuring 4 cm long

3mm wide. Sharp weapon ante mortem.

12

5. Incised wound on right should of 8 cm long 1 ½ cm

wide sharp weapon, ante mortem.

6. 5 cm x 6 Incised wound (slice) on the vertex. Sharp

weapon ante mortem.

7. 8 cms long incised wound backs of left wrist, sharp

weapon ante mortem.

8. 12 cms incised wound on the front of left hand,

sharp weapon, ante mortem.

9. Partial amputation of middle 3 fingers of left hand,

ante mortem.

10. Partial amputation of right thumb. Measuring 2 cms

sharp weapon ante mortem.

11. Partial amputation of right index finger measuring 3

cms sharp weapon, ante mortem.

12. Deep lacerated wound on the back of neck

measuring 18 cms 7 cms with complete transaction

of spinal card and Atlanta occipital joint. Blunt

weapon, ante mortem.”

27. It is evident from the evidence of PW-11 that the deceased

suffered 12 injuries, of which 10 are caused by sharp-edged

weapons. The 11th injury is a partial amputation of the middle 3

fingers of left hand. The final injury is a lacerated wound on the

back of neck measuring 18 cms x 7 cms with complete transaction

of spinal cord and atlanto occipital joint. The Trial Court and the

High Court have not analysed the evidence as against A-3. They

have proceeded to convict him along with others under Section 302

with the aid of Section 34. The cumulative circumstances in which

13

A-3 was seen participating in the crime would clearly indicate that

he had no intention to commit murder of the deceased for two clear

reasons. Firstly, while every other accused took the axe used by

A1 initially and contributed to the assault with this weapon, A-3

did not wield the axe at any point of time. Secondly, A-3 only had

a stone in his hand, and in fact, some of the witnesses said that

he merely threatened in case they seek to intervene and prevent

the assault. Under these circumstances, we hold that A-3 did not

share a common intention to commit the murder of the deceased.

Additionally, there is no evidence that A-3 came along with the

other accused evidencing a common intention. The description of

the incident is that when the deceased came to the scene of

occurrence, A-1 dragged him to the house of A-4, and the other

accused joined A-1. In this context, A-3 picked up a stone to

assault the deceased.

28. Even though, A-3 might not have had the common intention

to commit the murder, nevertheless, his participation in the

assault and the wielding of the stone certainly makes him culpable

for the offence that he has committed. While we acquit A-3 of the

offence under Section 302 read with Section 34 of the IPC, he is

liable for the offence under 304 Part II IPC. The law on Section 304

14

Part II has been succinctly laid down in Camilo Vaz v. State of

Goa, (2000) 9 SCC 1, where it was held that:

14. This section is in two parts. If analysed, the section

provides for two kinds of punishment to two different

situations: (1) if the act by which death is caused is

done with the intention of causing death or causing such

bodily injury as is likely to cause death. Here the

important ingredient is the “intention”; (2) if the act is

done with the knowledge that it is likely to cause death

but without any intention to cause death or such bodily

injury as is likely to cause death. When a person hits

another with a danda on a vital part of the body with

such force that the person hit meets his death,

knowledge has to be imputed to the accused….

29. In the past, this Court has considered factors such as lack of

medical evidence to prove whether the act/injury was individually

sufficient to cause death1, a single blow on head with a hammer2

and lack of cogent evidence of the eye-witnesses that the accused

shared a common intention to commit murder3 as some factors to

commute a sentence from Section 302 to Section 304 Part II IPC.

30. Returning back to the facts of the case, there is certainly no

escape from coming to the conclusion that A-3 should have had

the knowledge that the use of a stone to hit the head of the

deceased is likely to cause death. However, as demonstrated

1 Bawa Singh v. State of Punjab, 1993 Supp (2) SCC 754. 2 Sarup Singh v. State of Haryana, (2009) 16 SCC 479. 3 Ghana Pradhan & Ors. v. State of Orissa, 1991 Supp (2) SCC 451.

15

before, the evidence is insufficient to deduce a conclusion that he

shared a common intention with the other accused to commit the

murder of the deceased. Considering the role that A-3 has played,

we hold him guilty of the offence under Section 304 Part II IPC.

31. The perusal of the evidence would reveal that it is not the

case of the prosecution that A-3 was along with the other accused

while the deceased was dragged to the house. The deposition would

reveal that after the other accused assaulted the deceased with

sword, A-3 came thereafter and assaulted the deceased with stone

lying there. We, therefore, find that the prosecution has not been

in a position to establish that A-3 shared the common intention

with the other accused to cause the murder of the deceased.

32. For the reasons stated above, we uphold the conviction and

sentence of A-1, A-2 and A-4 under Section 302 read with Section

34 IPC and dismiss their Criminal Appeal No. 2852 of 2023 against

the judgment of the High Court of Telangana in Criminal Appeal

No. 308 of 2005 dated 26.04.2022. We acquit A-3 of the conviction

and sentence under Section 302 read with Section 34 and convict

him under Section 304 Part II and sentence him to undergo

imprisonment for 10 years. To this extent, the appeal of A-3 is

16

allowed by altering the conviction under Section 302 to Section

304 Part II IPC.

33. Pending applications, if any, are disposed of.

……..……………………………….J.

 [B.R. Gavai]

.………….………………………….J.

 [Pamidighantam Sri Narasimha]

New Delhi;

February 06, 2024