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    Treatment of investment on construction of house under section 69C of IT Posted on 05 November 2012 by Apurba Ghosh Court INCOME TAX APPELLATE TRIBUNAL Brief
    Message 1 of 1 , Nov 6, 2012

      Treatment of investment on construction of house under section 69C of IT

      Posted on 05 November 2012 by Apurba Ghosh

      Court

      INCOME TAX APPELLATE TRIBUNAL


      Brief

      On the facts and in the circumstances of the case, the Ld. Commissioner of Income Tax (A) has erred in deleting the addition of ` 15,12,750/- made by the Assessing Officer on account of unexplained investment on construction/ renovation of 1st floor of House u/s. 69C of the Income Tax Act, 1961. The Ld. Commissioner of Income Tax (A) has erred in appreciation following facts and circumstances:-It is undisputed fact that the loan from LIC Housing Finance was for the purposes of construction of house which has been confirmed by Sh. R.T. Sharma, Panel Valuer of LIC Housing Finance under statement u/s. 131.


      Citation

      Income Tax Officer,Ward-4, Hisar (Appellant) Vs. Smt. Suman Saini, W/o Sh. Vinod Kumar Saini, C/o Sh. S.K. Jain, Advocate,696/8, Ganga Bagh,Hansi-125003, (Haryana)(PAN/GIR NO.: AEZPS6199F)(Respondent)


      Judgement

       
      IN THE INCOME TAX APPELLATE TRIBUNAL
      DELHI BENCH “G” New Delhi
       
      BEFORE SHRI I.C. SUDHIR, JUDICIAL MEMBER
      AND
      SHRI SHAMIM YAHYA, ACCOUNTANT MEMBER
       
      I.T.A. No. 717/Del/2012
      A.Y.: 2007-08
       
      Income Tax Officer,
      Ward-4,
      Hisar
      (Appellant)
       
      Vs.
       
      Smt. Suman Saini, W/o Sh. Vinod
      Kumar Saini,
      C/o Sh. S.K. Jain, Advocate,
      696/8, Ganga Bagh,
      Hansi-125003,
      (Haryana)
      (PAN/GIR NO.: AEZPS6199F)
      (Respondent)
       
      AND
      C.O. No. 286/Del/2012
      (In ITA No. 717/Del/2012)
      A.Y. 2007-08
       
      Smt. Suman Saini, W/o
      Sh. Vinod Kumar Saini,
      C/o Sh. S.K. Jain, Advocate,
      696/8, Ganga Bagh,
      Hansi-125003,
      (Haryana)
      (PAN/GIR NO.: AEZPS6199F)
      (Appellant)
       
      Vs.
       
      Income Tax Officer,
      Ward-4, Hisar (Haryana)
       (Respondent)
       
      Assessee by: Sh. S.K. Jain, Adv.
      Department by: D r. Prabha Kant, Sr. D.R.
       
      ORDER
      PER SHAMIM YAHYA : AM
       
      This appeal by the Revenue and Cross Objection by the assessee emanate out of order of the Ld. Commissioner of Income Tax (Appeals), Rohtak dated 01.2.2011 and pertain to assessment year
      2007-08.
      2. Assessee’s cross objection. At the threshold in this case, ld. Counsel of the assessee su bmitted that he shall be withdrawing the cross objection filed by the assessee. The Ld. Departmental Representative did not have any objection to this proposition. Hence, upon careful consideration, we permit the withdrawal of the cross objection. Accordingly, the cross objection stands dismissed.
       
      3. The grounds raised in the Revenue’s appeal read as under:-
       
      “(1) On the facts and in the circumstances of the case, the Ld. Commissioner of Income Tax (A) has erred in deleting the addition of ` 15,12,750/- made by the Assessing Officer on account of unexplained investment on construction/ renovation of 1st floor of House u/s. 69C of the Income Tax Act, 1961. The Ld. Commissioner of Income Tax (A) has erred in appreciation following facts and circumstances:-
       
      a) It is undisputed fact that the loan from LIC Housing Finance was for the purposes of construction of house which has been confirmed by Sh. R.T. Sharma, Panel Valuer of LIC Housing Finance under statement u/s. 131.
       
      b) The Assessing Officer has referred to the copy of application made by the assessee to LIC Housing Finance, in para 2 of the assessment order. This application in Col. No. 3 entitled as “Loan Information” mention “as per valuation” and the valuation report is attached as Annexure-III. Assessee has signed verification at the end of application, certifying all information to be true. Therefore,  assessee cannot simply deny the facts contained in valuation report. It is erroneous appreciation that valuation report is an evidence of the department and assessee needs cross verification of the same, since, the assessee has already given verification of facts contained in the valuation report. The onus of disregarding the contents of the valuation report is on the assessee.
       
      (2) The appellant craves leave to add or amend the grounds of appeal before the appeal is heard and disposed off. of the hearing.”
       
      4. The facts of the case are as under:-
       
      “The appellant filed return of income on 13.1.2008 declaring total income of 1,38,580/-. On the basis of certain information received from ADIT (Inv.), Hisar, the Assessing Officer issued notice u/s. 148 after recording the reasons. It has come to the notice of the Assessing Officer that the assessee has purchased agriculture land measuring 29 killas and 11 marlas situated at village Chortapur Distt. Bhhiwani, registered vide sale deed dated 13.10.2006 for a consideration of ` 8,47,000/- and also constructed first fllor and renovated the existing house situated at Kalidevi Road, Hansi. With regard to the investment in agriculture land, the assessee submitted that she raised a loan of ` 8.50 lacs from LIC Housing Finance Ltd., Karnal. The Assessing Officer issued summons to the Area Manager, LIC Housing Finance Ltd., Karnal requesting him to furnish corroborative evidence as to whether the loan sanctioned was actually utilized by the assessee for the purpose for which it was given. The Area Manager, furnished copy of sale deed in favour of the appellant, copy of application form, copy of valuation before the sanction of loan and copy of valuation for the final disbursement of loan.
      From the above documents, the AO noted that the assessee applied for a loan of Rs 15.00 lacs to LIC Housing Finance Ltd. and loan of only Rs 8.50 lacs was sanctioned. From the bank a/c of the assessee, the AO noted that she received the first installment of loan of Rs 6.00 lacs on 21.04.2006 which was withdrawn on 22.04.2006 and 25.04.2006 and the second installment of Rs 2.50 lacs was given on 26.06.2006 which was withdrawn on the very next day i.e. 27.06.2006. The loan amount was utilized for constructing the first floor and renovation of the existing house situated at Kalidevi Road, Hansi in which the assessee is residing. Inspection report dated 26.05.2006 of the authorized representative of the LIC Housing Finance Ltd. clearly
      mentioned that an amount of Rs 15,12,750/ - has been spent on the repair/construction of the said house. The above documents were supplied by the AO to the assessee in response to which the assessee filed affidavit dated 22.12.2010 and a letter dated 23.12.2010 stating that the entire amount of loan of Rs 8.50 lacs taken from LIC Housing Finance Ltd. has been invested in the purchase of agriculture land and no part thereof has been invested/utilized in the construction/repair of the existing house. The assessee deposed in her affidavit that she has no knowledge as to what documents/reports, if any, were got prepared and managed by the Agent for sanction of  loan from LIC Housing Finance Ltd. as she was assured by the Agent that she will not have to comply with any paper formalities with LIC Housing Finance Ltd.
       
      The AO held that the explanation of the assessee can't be accepted in its entirety as the loan from LIC Housing Finance Ltd. has been withdrawn from bank as and when it was received in the months of April & June 2006 but, the assessee purchased agriculture land during the month of Oct. 2006. Thus, it appears that the assessee has utilized the entire loan on construction of the first floor and renovation of the house. The AO held that the assessee invested Rs 8.50 lacs in purchasing of agriculture land and Rs 15,12,750/- in the construction of first floor and renovation of the existing house but she could explain only Rs 8.50 lacs received from LIC Housing Finance Ltd., which was invested in the purchase of agriculture land. Cash flow statement furnished during the assessment proceedings shows that no amount has been withdrawn for the purpose of construction of house. However, inspection report dated 26.05.2006 of the panel valuer of LIC Housing Finance Ltd. prepared in response to the loan sanctioned to assessee clearly mentioned that the actual amount spent on repair/construction of the property IS Rs 15,12,750/-. In view of the above, the AO made an addition of Rs. 15,12,750/- u/s 69C of the IT Act.”
       
      5. Upon assessee’s appeal Ld. Commissioner of Income Tax (A) considered the submissions and concluded as under:-
       
      “I have carefully considered the issue and the submissions made by the AR. The action of the AO in making addition of Rs 15,12,750/- on account of unexplained investment in the construction/renovation of house property is erroneous due to the following:-
       
      i) The concerned personnel of LIC Housing Finance Ltd., Karnal have not been offered for cross examination to the assessee.
       
      ii) The affidavit dated 22.12.2010 and letter dated 23.12.2010 of the assessee have been disbelieved without examining the assessee and collecting. adverse evidence.
       
      (iii) The certified copies of assessment register for the year 1999L2000 supplied by Municipal Council, Hansi demonstrate that the construction of the house property comprising ground and first floors have been completed by the year 1998.
       
      (iv) The report of SDO, Electricity Department, Hansi demonstrates that the entire electricity connections were installed latest by July, 1997.
       
      (v) The technical opinion report dated 30.04.2008 states that ground floor shops were constructed in 1990-91 and construction of house on ground floor and first floor was completed during 1992-98. This report appears to be authentic as it was made by a competent authority on the direction of Director General, SWB (H) Panchkula in connection with a complaint against Sh. Vinod Kumar, husband of the assessee, after personal inspection of the impugned house building.
       
      (vi) The AO has not made any efforts to verify the authenticity /veracity of the additional evidence submitted by the assessee. No comments have been made in this regard by the AO.
       
      (vii) The statement of Sh. RT. Sharma taken by the AO during remand proceedings on 19.10.2011 is not affirmative / categorical as he stated that the building appears to be 'fresh' and the possibility of demolition of erstwhile building for construction/renovation of a new building can not be ruled out'. Had Sh. RT. Sharma, approved valuer, made physical inspection of the property and prepared the reports dated 15.02.2006 and 26.05.2006, such unconfirmed/ evasive replies would not arise.
       
      (viii) From the facts, it appears that the assessee with a view to obtain housing loan at lower rates from Lie Housing Finance Ltd., has approached an Agent for procuring the loan with the purpose of investing the same in agriculture property. The entire documentation and valuation reports appear to have been made to enable grant of housing loan to the assessee.
       
      (ix) No evidence has been brought on record by the AD that the assessee has· constructed/renovated the house property during the year under consideration. The Municipal Committee and Electricity Department records show that the house property was constructed by the year 1998. If the erstwhile building has been demolished and a new building has been constructed, it would not have escaped the attention of the Municipal Committee and Electricity Department.
       
      In view of the above, the addition made by the AD of Rs 15,12,750/- u/s 69C of the Act is deleted.”
       
      6. Against the above order the Revenue is in appeal before us.
       
      7. We have carefully considered the rival contentions and perused the records. We find that Ld. Commissioner of Income Tax (A)’s in this case has given a reasonable order which does not need any interference on our part. We agree with the Ld. Commissioner of Income Tax (A) that statement of LIC Housing Finance (Valuer) which has been used by the assessee were not offered for cross examination of the assessee. Furthermore, we note that Assessing Officer has relied upon the statement of Sh. RT Sharma, valuer of the LIC Housing Finance. We also note that in the statement of Sh. RT Sharma has observed that the building “appears” to be fresh and the possibility of demolition of erstwhile building for construction/ renovation of new\ building cannot be ruled out. Thus, we find that it is only a doubt and not a conclusive proof of construction. We agree with the Ld. Commissioner of Income Tax (A) that no evidence has been brought on record by the Assessing Officer that assessee has constructed/ renovated the house property during the year under consideration. The Municipal Committee and Electricity Department records showed that the house property was constructed by the year 1998. We further note that Assessing Officer has not referred the matter to the DVO. Hence, reliance on doubtful statement given by the LIC Valuer cannot be the basis of addition made in this regard. Accordingly, we affirm the order of the Ld. Commissioner of Income Tax (A).
       
      8. In the result, the revenue’s appeal as well as assessee’s cross objection stand dismissed.
       
      Order pronounced in the open court on 07/9/2012.
       
                                                             SD/-                               SD/-
                                                  [I.C. SUDHIR]            [SHAMIM YAHYA]
                                            JUDICIAL MEMBER ACCOUNTANT MEMBER
       
      Date:- 07/9/2012
      SRBHATNAGAR
       
      Copy forwarded to: -
       
      1. Appellant
      2. Respondent
      3. CIT
      4. CIT (A)
      5. DR, ITAT
       
      TRUE COPY
       
      By Order,
      Assistant Registrar,
      ITAT, Delhi Benches









      Consequences of offence under section 395, 396 and 397 of IPC

      Posted on 05 November 2012 by Apurba Ghosh

      Court

      Supreme Court of India


      Brief

      This appeal is directed against the judgment of the High Court of Bombay Bench at Aurangabad dated 25.04.2007 by which the High Court dismissed the Criminal Appeal No.403 of 2005 and confirmed the conviction and sentence imposed on the appellant for offences under Sections 395, 396 and 397 of IPC. The appellant was imposed with punishment of rigorous imprisonment of five years and a fine of Rs.500/- in default to undergo further three years rigorous imprisonment for offence under Section 395 of IPC, rigorous imprisonment for life and fine of Rs.500/- for offence under Section 396 of IPC and further rigorous imprisonment for three years and fine of Rs.500/- in default to undergo one year rigorous imprisonment for the offence under Section 397 of IPC


      Citation

      Deepak @ Wireless ….Appellant VERSUS State of Maharashtra .…Respondent


      Judgement

       
      Reportable
       
      IN THE SUPREME COURT OF INDIA
      CRIMINAL APPELLATE JURISDICTION
      CRIMINAL APPEAL NO. 438 OF 2009
       
      Deepak @ Wireless ….Appellant
       
      VERSUS
       
      State of Maharashtra .…Respondent
       
      J U D G M E N T
       
      Fakkir Mohamed Ibrahim Kalifulla, J.
       
      1. This appeal is directed against the judgment of the High Court of Bombay Bench at Aurangabad dated 25.04.2007 by which the High Court dismissed the Criminal Appeal No.403 of 2005 and confirmed the conviction and sentence imposed on the appellant for offences under Sections 395, 396 and 397 of IPC. The appellant was imposed with punishment of rigorous imprisonment of five years and a fine of Rs.500/- in default to undergo further three years rigorous imprisonment for offence under Section 395 of IPC, rigorous imprisonment for life and fine of Rs.500/- for offence under Section 396 of IPC and further rigorous imprisonment for three years and fine of Rs.500/- in default to undergo one year rigorous imprisonment for the offence under Section 397 of IPC.
       
      2. The genesis of the case was that on the date of occurrence, namely, 13/14.06.2004, P.W.10 A.P.I., attached to police station Pachod received a wireless message from P.S.I. Dhakne, who was on patrol duty, that some thieves had entered in that area. P.W.10, therefore, proceeded to the police station and on the way he met P.S.I. Dhakne and others and in the enquiry it came to light that the thieves had gone to the adjoining area. They started combing operation in that area and while they were going towards Aurangabad they noticed three persons fleeing on a motorcycle in high speed. The team led by P.W.10 followed those persons and that after a distance of chase those persons abandoned the motorcycle in the place called Jamkhed crossroad and started running in the open field. The police party chased them and could apprehend two out of the three persons. Out of the two persons who were apprehended, one was the appellant. The suspects were brought to the police station and in the meantime, P.W.10 received a telephone call that a theft had taken place in the house of one Vasanta Bhumre. On reaching the house of Vasanta Bhumre, P.W.10, noticed the wife of Vasanta Bhumre lying in the middle room in a pool of blood and his brother Sharad was found dead in the adjacent passage. P.W.10 arranged for sending the injured wife of P.W.2- Vasanta Bhumre to the hospital in the police vehicle and while going to the hospital P.W.9-Mirabai informed P.W.10 that about four to five assailants wearing pant and shirt caused injuries to her as well as the deceased Sharad and fled away from the scene of occurrence in a motorcycle. After admitting P.W.9 in the hospital, P.W.10 said to have returned back to the scene of occurrence and sent the dead body for postmortem after holding the inquest. P.W.10, based on the investigation stated to have learnt that the appellant and his accomplices, namely, Rahul Bhosle, Ravi Shinde, one Balaji and another unknown person (the last two were absconding) indulged in the dacoity in the house of P.W.2 on the night of 13/14.06.2004. The appellant alone was proceeded for the offences under Sections 395, 396 and 397 of IPC, since the other two were juvenile, they were dealt with separately. The prosecution examined as many as 10 witnesses on its side apart from the material objects and chemical analysis report in support of the case. The Trial Court by its judgment dated 09.05.2005 convicted the appellant and imposed the punishment, as above, and the same was confirmed by the High Court, aggrieved by the same the appellant has come before this Court.
       
      3. Assailing the judgment of the Courts below, Mr. Rajiv Nanda, learned counsel for the appellant in his submissions contended that the offence of dacoity per se was not made out in as much as the basic ingredient of five persons conjointly committing the offence of robbery and murder was not made out. The learned counsel also argued that no recoveries either from the appellant or any other person were made as regards the alleged articles looted in the occurrence and, therefore, neither the charge of robbery nor that of dacoity was made out. In support of the said submission learned counsel also contended that though from the chemical analysis report the blood sample found in the clothes of the appellant was found to be of ‘Group B’, no comparison of the blood group of the appellant with that of the deceased was ever carried out and, therefore, merely based on the blood stains, found on the clothes of the appellant, there was no scope to connect the appellant to the offence of dacoity and murder falling under Section 396 of IPC. According to learned counsel, the police foisted a false case against the appellant by arresting him from his residence and that the appellant was not involved in the crime. The learned counsel contended that P.W.9, the so called eye-witness, never deposed that any jewels or other properties were stolen on that day and that identification of the appellant in the Court, without holding proper test identification parade cannot form the basis for convicting the appellant for the serious offence of dacoity and murder. The learned counsel summed-up his submissions by stating that there was no test identification parade, that there was no recovery of pant or stolen goods and the basic ingredient of conjoint effort of five persons in the involvement of the offence proved fatal to the case of the prosecution. Learned counsel also relied upon the decisions of this
      Court in Suraj Pal v. State of Haryana - reported in 1995) 2 SCC 64 and Mohd. Abdul Hafeez v. State of Andhra Pradesh – reported in (1983) 1 SCC 143 in support of his submission.
       
      4. The learned counsel for the State in his submissions by retracing the sequence of events, which ultimately resulted in the arrest of accused persons, contended that P.W.9 was an eye-witness to the occurrence who after hearing the cries of her brother-in-law, namely, the deceased Sharad in the early hours of 13/14.06.2004 at about 2 to 2.30 a.m. noticed that the appellant and the other accused were brutally beating the deceased with knife, iron rod and wooden club and when she started shouting for help, the accused persons ran towards her and caused injuries by knife as well as by other weapons on her face and other parts of her body. The learned counsel, therefore, contended that since P.W.9 before the infliction of injuries upon her was able to view the brutal attack on her brother-in-law by the accused and, thereafter, such persons attacked the witness herself, she was able to identify the appellant without any hesitation in the Court. As far as the number of persons who participated in the crime is concerned, here again learned counsel would draw support from the version of P.W.9 herself in her cross-examination where she stated in uncontroverted terms that five individuals were involved in the crime at that point of time. As far as stealing of articles is concerned, the learned counsel by referring to the evidence of P.W.2 contended that he was able to specify the articles stolen while committing the dacoity in his house by way of cash as well as jewels removed from the body of P.W.9. As far as the non-production of weapons and the stolen articles are concerned, the Trial Court has noted that due to inability of the police to arrest the two absconding accused, recoveries of those items were not placed before the Court. The learned counsel for the State by relying upon the said conclusion of the Trial Court contended that the said conclusion was well justified and, therefore, on that ground the conviction cannot be interfered with. The learned counsel also pointed out that the evidence of P.W.8 whose motorcycle was stolen in the early hours of 14.06.2004, which was recovered and handed over to him, supported the case of the prosecution in finding the appellant guilty of the offence. Learned counsel placed reliance upon the recent decision of this Court where one of us (Hon’ble Mr. Justice Swatanter Kumar) was a party-Rafiq Ahmad alias Rafi v. State of Uttar Pradesh - reported in (2011) 8 SCC 300 in support of his submissions.
       
      5. In the above said background of the case pleaded by both the parties, when we examine the case on hand, the appellant was convicted and imposed with sentences for offences falling under Sections 395, 396 and 397 of IPC. When we examine the said offences alleged and found proved against the appellant, it will have to be stated that when a person is involved in an offence of theft of higher magnitude, then it becomes dacoity and when dacoity is committed with murder and also results in causin grievous hurt to others, it becomes robbery punishable under Sections 395, 396 and 397 of IPC. In other words, when the offence of theft is committed conjointly by five or more persons, it becomes dacoity and such dacoity by those persons also results in commission of murder as well as causing of grievous hurt to the victims, it results in an offence of robbery. A reading of Sections 395, 396 and 397 of IPC makes the position clear that by virtue of the conjoint effort of the accused while indulging in the said offence makes every one of them deemed to have committed the offence of dacoity and robbery. In the result, when such offences of dacoity and robbery are committed, the same result in the death of a person or hurt or wrongful restrain or creating fear of instant death or instant hurt or instant wrongful restraint. In
      substance, in order to find a person guilty of offences committed under Sections 395, 396 and 397 of IPC, his participation along with a group of five or more persons indulging in robbery and in that process commits murder and also attempts to cause death or grievous hurt with deadly weapons would be sufficient. Use of a knife in the course of commission of such a crime has always been held to be use of a deadly weapon.
       
      6. Keeping the above basic prescription of the offence described in the above provisions in mind, we examined the case on hand. In the first instance, what is to be examined is whether the basic ingredient of the offence falling under Sections 395, 396 and 397 of IPC, namely, participation of five or more persons was made out. In the case on hand, as has been stated by the Courts below, the appellant alone was proceeded, though three out of five persons said to have been taken into custody. As per the judgment of the High Court three persons were arrested and since two accused persons other than the appellant were juveniles, they were stated to have been proceeded separately. It is the case of the prosecution that two other accused, namely, one Balaji and another unknown person were absconding through-out the stage of trial. In order to prove the participation of five persons, the sole reliance was placed upon the deposition of P.W.9, the victim who suffered severe injuries at the hands of the accused. In her evidence in the chief examination she stated that on the date of occurrence four to five thieves entered their house, that on hearing the shouts of her brother-in-law she went to the adjacent room and saw those persons assaulting her brother-in-law with the aid of knives, rods and wooden club. She also described the features of those persons as belonging to the age group of 18 to 25 years, that they were wearing trousers and shirts, that they were of medium height and dark in complexion. According to her, after witnessing the attack on the person of her brother-in-law Sharad, when she started shouting, the accused persons turned towards her and started assaulting her by inflicting injuries on her eyes, head, back etc. On the morning of 14.06.2004, after the police party arrived and when she was being taken to the hospital in the police vehicle by P.W.10, she stated to have informed him that four to five persons indulged in the said offence. In the cross-examination, however, she came out with a definite answer that the number of persons involved in the offence was five. As far as the appellant was concerned, P.W.9 identified him unhesitatingly in the Court and declared that he was one of the assailants. P.W.10, the investigating officer in his evidence stated that after apprehending two out of the three accused persons who were fleeing on the motorcycle, they were brought to the police station who disclosed their names as Deepak and Rahul Bhosale and that third person who fled away was Ravi Shinde by name. The Rahul Bhosale and Ravi Shinde were stated to be juveniles and, therefore, they were proceeded separately.
       
      7. P.W.4 the Panch witness confirmed the seizure of the full pant and shirt worn by the appellant, a motorcycle key, a knife and cash of Rs.150/- from the person of the appellant which were marked as Exhibit 19. It was pointed out by the said witness that the act of seizure from the accused was made in his presence between 9  a.m. and 10 a.m. in the morning of 14.06.2004. He,
      however, stated that police did not take into custody the wooden articles from the accused in his presence and it was, therefore, contended that his version cannot be believed. After holding the investigation P.W.10 filed chargesheet before the Court wherein it was alleged that the appellant along with juveniles Rahul son of Rambhau and Ravi son of Laxman and two others, namely, one Balaji and another unknown person (the last two were stated to be absconding) indulged in the offence on the night of 13/14.06.2004. The question for consideration is whether with the above evidence available on record, the conclusion of the Courts below in having held the appellant guilty of the offences under Sections 395, 396 and 397 of IPC merits acceptance.
       
      8. Primarily the version of P.W.9 who was a victim has stated that on the night of 14.06.2004 four to five thieves entered their house and indulged in the crime. In the cross-examination, however, she asserted that the number of persons were five. There is no reason why the version of P.W.9 should not be believed. She had the first hand information relating to the crime and who suffered extensively at the hands of the accused persons. Her statement before the Court did not appear to be vacillating. It is true that initially in her chief examination she stated that four or five persons were involved in the crime but the said doubt, if any, as regards the involvement of number of persons was cleared thankfully at the instance of the appellant himself by getting a definite answer from the witness in the cross-examination that the number of persons were five in all. Such a definite answer in the cross-examination should bind the appellant and, therefore, there is no reason to discard the said version of P.W.9. It was argued that when the police could apprehend three of the accused and also ascertained the name of fourth person as Balaji; its failure to even find out the name of fifth person creates serious dent in the case of the prosecution. In the first blush, such a submission though appears to be sound, having regard to the definite statement made by P.W.9 who suffered at the hands of the appellant and the other accused who was also able to witness the whole occurrence, namely, the initial assault on her brother-inlaw which cost his life and thereafter on herself in making a clear cut statement that the number of persons involved in the offence was five, we are of the view that the reliance placed upon her version by the Courts below was well justified for proceeding against the appellant for the offences falling under Sections 395, 396 and 397 of IPC.
       
      9. We are, therefore, not able to countenance the contention of learned counsel for the appellant that the basic ingredient of involvement of minimum of five persons for the offences under Sections 395, 396 and 397 of IPC was lacking in this case. Once we get rid of the said hurdle and hold that the case of the prosecution as proceeded against the appellant for the said offences was maintainable, the next

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