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TMI Blog1962 (9) TMI 35X X X X Extracts X X X X X X X X Extracts X X X X ..... attached to the Kozhikode Circle of the Sales Tax Department. While conducting surprise inspections of shops to detect cases of sales tax evasion, they entered the shop of the first appellant (accused 1). P.W. 1 asked the accused to produce his account books for inspection, to which the latter replied that the books were not available in the shop, In the meanwhile P.Ws. 2 and 3 noticing an open bag with account books kept in another room entered the room and brought out the bag. They then began to examine the books. Accused 3 who had come to the shop by this time declared that the books were his and demanded their return, When the officers refused the demand and continued their examination, the third accused hit P.Ws. 2 and 3 on their hands causing them to drop the books on the floor. Then some of the persons who had gathered there began assaulting them while some others collected the fallen books and papers and handed them over to accused 3 who carried them away. During the assault P.W. 1 fell down on the floor. Then accused 1 got up on his chest and began to throttle him. P.W. 4 a peon who had accompanied the officers seeing them assaulted rushed up to the nearby police station ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f such figures is that, if they are entered in a properly kept account book they may be called in support of a legal claim. In other words an account book generally speaking may be valuable evidence but is not valuable security within the definition given in section 30. That is not to say that under no circumstances can an account book be considered valuable security. For instance, if the books involved here contained entries showing that certain amounts have been received from customers as sales tax which would be an acknowledgement by the dealer of his liability to pay over those amounts to the Sales Tax Department, then it can be rightly argued that the books themselves are valuable security. However, as there is no evidence before us regarding the contents of the books, it would be not proper to presume the presence of any such entries. 5.. The learned Advocate-General argued that even without knowing the contents of these books it is open to the Court to hold that they were valuable security because under the Sales Tax Act account books provide a dealer with a right to establish the correctness of his return We are not impressed with his argument. All that section 12 provide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efined by the Supreme Court as taking possession contrary to the wishes of the owner of the property, vide Gian Chand v. State of Punjab A.I.R. 1962 S.C. 496., and we do not find any evidence in this case to hold that accused 1 expressed any wish that the officers should not take the books. The prosecution case is that when the officers entered the shop accused 1 who was sitting behind the counter and was acquainted with P.W. 1 received them and offered them seats. When P.W. 1 wanted to see the account books accused 1 replied that the books were not there. Seeing the books in a bag inside the open room P.W. 2 entered the room and brought it out. According to the learned defence counsel accused 1's reply that the books were not there is only a polite way of expressing his refusal to show the books. We do not think accused 1's reply will permit of such an interpretation in view of the fact that accused 1 made no protest whatsoever either by word or by deed, when the officers entered the room, brought out the books and began to scrutnise them. In fact the only protest made was by accused 3 who came to the shop when the books were being inspected and demanded their return on the ground ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is that as soon as accused 3 was given the books he went off without taking any part in the scuffle that followed. However a reading of the complaint exhibit P.4 filed by P.W. 1 immediately after the incident shows that the person who snatched away the books also participated in the assault on the officers. It is stated in exhibit P.4: "Immediately one Mohammed rushed to the spot of inspection...... Sri K.P. Moosa the dealer (accused 1) and one Mohammed took part in the scuffle. Sri Mohammed was identified and was shown to the Sub-Inspector of police." The above seems to indicate that the person named Mohammed who took part in snatching away the books also assaulted the officers and this person was later identified before the Sub-Inspector of Police. Though accused 2 and accused 3 are both named Mohammed the only person of that name identified before the sub-Inspector was accused 2. That the Sub-Inspector understood the complaint to mean that only one person named Mohammed was involved, is clear from the First Information Report where the accused persons are given as "Moosakutty, Mohammed and some others." The officers do not claim to have known accused 3 previously and no identif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and within my cognizance." Now accused 1 would have understood the charge to mean that while accused 2 was to be tried for causing hurt to Narasimhan, the other accused are to be held vicariously liable for being members of an unlawful assembly the common object of which was to assault Narasimhan and/or for having shared with accused 2 a common intention to assault the officers. In other words what accused 1 is called upon to do in oreer to escape conviction and punishment is only to show that he was not a member of an unlawful assembly and that he shared no common intention with the others to assault the officers. He was not given notice that he was being tried for having personally assaulted Narasimhan. Indeed that charge is in clearest terms laid against accused 2 and accused 2 only. One cannot but agree with the learned defence counsel that the charge as framed is misleading in the extreme. Nor could it be said that in spite of the defects in the charge, accused 1 had notice that he was being tried for assaulting Narasimhan. Even the question put to him by the Judge under section 342. Criminal Procedure Code, does not seem to have made matters any the clearer. The question is t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tand. All the three officers. P.Ws, 1, 2 and 3 have given evidence about the part played by accused 2. They swear that as soon as the books were struck down from the hands of P.Ws. 2 and 3, accused 2 entered the shop and gave two blows to P.W. 2 on his neck. When the police arrived at the scence after the incident he was pointed out to them by the officers and he was arrested on the spot, There are no significant discrepancies or contradictions in the evidence of P.Ws. 1 to 3 regarding the act done by accused 2. An objection raised by the learned defence counsel is that there were no injuries on the person of P.W. 2 corresponding to the alleged blows. We do not think there is anything in this. Two blows with bare hands on a person's neck need not invariably leave any discernible marks. Another argument advanced by the defence is that as the witnesses were found to be untruthful in their story regarding the attempt to murder, their evidence on other matters also is not fit to be accepted. We do not think that a mere exaggeration of a detail would be sufficient reason to brand these witnesses, all responsible officers of the Sales Tax Department, as untruthful. We have already negati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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