Rabindra Kumar Dey Vs. State of Orissa
[1976] INSC 205 (31 August 1976)
FAZALALI, SYED MURTAZA FAZALALI, SYED MURTAZA
BHAGWATI, P.N.
CITATION: 1977 AIR 170 1977 SCR (1) 439 1976
SCC (4) 233
CITATOR INFO :
RF 1991 SC1853 (6)
ACT:
Prevention of Corruption Act, 1947--Sec.
5(1)(c) and 5(1)(d) r/w Sec. 5(2)--Misappropriating Govt. Funds--Retaining
Govt. Funds by a Govt. servant--Evidence Act.
Sec. 154--When can a witness be declared
hostile--Can evidence of a hostile witness be accepted-Evidence Act Sec. 105--onus
of proving exceptions in I.P.C. on accused---Degree of proof--Criminal
Trial-Effect of non examination of material witness--Conviction on evidence of
a solitary witness--Whether adverse inference can be drawn against accused for
not leading evidence--Onus of prosecution--Presumption of innocence.
HEADNOTE:
The appellant ,who was the Additional
District Magistrate in overall charge ,of the Nizarat and the Land Acquisition
sections of the Collect orate was charged for criminal misconduct under section
5(2) read with section 5(1)(c) and 5(1 ) (d) of the Prevention of Corruption
Act, 1947. The allegation against the appellant was that he withdrew a sum of
Rs. 10,000/on 9-1-1965 on the ground that he wanted to distribute the said
amount amongst the villagers whose land was acquired as the compensation; that
in fact the appellant never wanted to distribute the said amount and that he
retained the money with him for about 6 months dishonestly and only after that
the money was deposited in the Treasury.
The defence of the appellant was that the
Secretary of the Works Department called a meeting in the Secretariat on
25-9-1964and that the appellant was expressly directed to proceed to the spot
and persuade the villagers to accept the compensation money; that it was
pursuant to that mandate that the appellant withdrew the money on 9-1-1965;
that he could not go to the village in question in that day because one of the
officers who was to accompany him was not available; that he, therefore, again
deposited the money back with the Nazir and collected the money from him again
on 20-1-1975; that he went there along with several officials;
that the villagers, however, refused to
accept the compensation. The appellant was, however, hopeful of getting the
compensation increased and to persuade the villagers to accept the increased
compensation. He, therefore, on his return handed over the money to the Nazir,
however, asked him not to deposit the same in the Treasury so that cash would
be readily available as soon as needed.
Nazir was examined by the prosecution and he
denied having received the money as suggested by the appellant.
Secretary of the Works Department was not
examined by the prosecution. The Land Acquisition Officer PW 8 deposed that the
Secretary directed the appellant to take action for payment of the compensation
money to the villagers and that the appellant should personally persuade the
villagers to accept the compensation. The said witness was, however, declared
hostile on the ground that he did not state to the Police that when the
appellant and the Executive Engineer visited the village they did not persuade
the villagers to receive the compensation amount. PW 7 the Executive Engineer
deposed that he accompanied the appellant to the village and that the appellant
tried to persuade the villagers to receive the compensation but that they
refused to accept the same. This witness was also declared hostile because of
certain minor omissions in his statement before the Police. PW 6, one of the
villagers also deposed that the appellant persuaded them to give up possession
but the villagers did not agree. This witness was also declared hostile because
he omitted state some facts before the Police.
The Trial Court and the High Court relying on
the evidence of Nazir and certain documents convicted the appellant under
section 5(1)(c) and 5(1)(d) read with section 5(2)of the Prevention of
Corruption Act, 1947.
12--1104SCI/76 440 Allowing the appeal by
Special Leave,
HELD: 1. In a charge of misappropriation once
the entrustment of money is proved and although the onus to prove the
entrustment is on the prosecution. if the explanation of the accused is found
to be false he must be presumed to have retained the money with himself. [444
A-B] Jaikrishnadas Manohardas Desai and Anr. v. State of Bombay, [1960] 3
S.C.R. 319. 324; followed.
2. Three principles of criminal jurisprudence
which are well settled are as under:
(i) that the onus ties affirmatively on the
prosecution to prove its case beyond reasonable doubt and it cannot derive any
benefit from weakness or falsity of the defence version while proving its case;
(ii) that in a criminal trial the accused
must be presumed to be innocent until he is proved to be guilty; and (iii) that
the onus of the prosecution never shifts. [444 G-H, 445 A]
3. Under section 105 of the Evidence Act the
onus of proving exceptions mentioned in the Indian Penal Code lies on the
accused but the said section does not at all indicate the nature and the
standard of proof required. It is sufficient if the, accused is able to prove
his case by the standard of preponderance of probabilities as envisaged by
section 5 of the Evidence Act. [445 A-B] Harbhajan Singh v. State of Punjab,
[1965] 3 SCR 235, 241 and State of U.P. v. Ram Swarup & Anr. [1975] 1
S.C.R.
409, 416-17, followed.
The accused succeeds if the probability of
his version throws doubt on the presecution case. He need not prove his case to
the hilt. It is sufficient for the defence to give a version which competes in
probability with the prosecution version for that would be sufficient to throw
suspicion on the prosecution case entailing its rejection by the court.
[445 B-C]
4. In a criminal trial it is not at all
obligatory on the accused to produce evidence in support of his defence and for
the purpose of proving his version he can rely on the admissions made by
prosecution witnesses or on the documents filed by the prosecution. The courts
below were not justified in drawing adverse inference against the accused for
not producing evidence in support his defence.
The prosecution cannot derive any strength or
support from the weakness of the defence case. [446 E-G]
5. The courts below erred in basing
conviction of the appellant on the sole testimony of the Nazir completely
ignoring the important admissions made in favour of the accused by other
prosecution witnesses, some of whom were declared hostile and some were .not.
[446 H, 447 A]
6. No explanation is coming forth why the
Secretary, Works Department Who was a Government servant, has not been
examined. It was a part of the prosecution case that in the said meeting the
Secretary did not direct the appellant to go to the village for making payment.
The prosecution ought to have examined the Accountant who was a material
witness in order to unfold the prosecution narrative itself. The court drew
adverse inference for his non-examination.
[447 D:E]
7. Section 154 of the Evidence Act confers. a
discretion on the court to permit a witness to be cross-examined by a party
calling him. The section confers a judicial discretion and must be exercised
judiciously and properly in the interest of justice. The court will not nor.m.
ally allow a party to cross-examine his own witness and declare the same
hostile unless the court is Satisfied that the statement of the witness
exhibits an element of hostility. or that he has resiled from a material
statement which he made before an earlier authority. [448 G-H, 449 A] 441
Dahyabhai Chhaganbhai Thakker v. State of Gujarat, [1964] 7 S.C.R. 361, 368.
69. 70 followed.
Merely because a witness in an unguarded
moment speaks the truth which may not suit the prosecution or which may be
favourable to the accused, the discretion to allow the party concerned to
cross-examine his own witnesses cannot be allowed. The contingency _of
permitting the cross-examination of the witness by the party calling him is an
extraordinary phenomenon and permission should be given only in special cases.
[449 G-H, 450 C]
8. On the facts the court found that the
Trial Court wrongly exercised its discretion in permitting the prosecution to
cross-examine its own witnesses.
[451 F]
9. Merely because a witness is declared
hostile it does not make him unreliable so as to exclude his evidence from
consideration altogether. [450 E-F] Bhagwn Singh v. State of Haryana, [1976] 1
S.C.C. 389, 39192 followed.
10. The court found that the defence version
was rendered probable by the testimony of witnesses as well as documents. [457
A-D]
11. The Court found that the Nazir was not a
reliable witness and that the courts below ought not to have acted on his sole
testimony. [455-C]
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 193 of 1971.
Appeal by Special Leave from the Judgment and
Order dated 11-5-71 of the Orissa High Court in Criminal Appeal No. 14/70.
Gobind Das, Mrs. Sunanda Bhandare, ,A. K.
Mathur, A. K. Sharma and M.S. Bhandare, for the Appellant.
S.C. Agarwal and G.S. Chatterjee, for the
Respondent.
The Judgment of the Court was delivered FAZAL
ALl, J. In this appeal by special leave, the appellant has been convicted for
criminal misconduct under s.5(2) read with S.5(1) (c) of the Prevention of
Corruption Act, 1947 and sentenced to rigorous imprisonment for three years. He
has also been convicted under s. 5(1)(d) of the Prevention of Corruption Act
but no separate sentence has been passed thereunder. The appellant preferred an
.appeal to the High Court of Orissa against the order of theSpecial Judge which
was, however, dismissed, and the convictions and sentences imposed on him were
confirmed by the High Court. Thereafter an application for leave to appeal to
this Court was made before the High Court, which having been refused the
appellant obtained special leave from this Court, and hence this appeal.
After going through the judgments of the
Courts below, we are constrained to observe that the High Court as well as the
Trial Court have made a wholly wrong approach in applying the provisions of the
Prevention of Corruption Act in the case of the appellant. Put briefly, the
prosecution case was as follows:
The appellant was the Additional District
Magistrate, Cuttack from September 1964 to June 1966 and in that capacity he
was in 442 overall charge of the Nizarat and land acquisition sections of the
Collectorate. Sayad Allamuddian Ahmed P.W. 8 was the District Land Acquisition
Officer and one A. Ballav Pradhan P.W. 9 was the Nizarat Officer, whereas
Prahalad Mahapatra P.W. 1 was the Nazir and Rajkishore Das P.W. 2 was the
Assistant Nazir under P.W. 1 P.W. 3 Bhakta Charan Mohanti was the Land
Acquisition Inspector. It appears that a number of lands had been acquired by
the Government for certain public projects in various villages particularly
Mauza Balichandrapur with which we are concerned in the present case. A huge
compensation amount to be given to land-owners had been deposited in the
treasury for payment to them. It appears that a sum of Rs. 31,793.85 had been
disbursed by July 24, 1964 leaving a balance of Rs. 11,650-61 but no
disbursement could be made between July 24, 1964 and January 20, 1965 as the
villagers refused to accept the payments and wanted the Land Acquisition
proceedings to be withdrawn.
The prosecution case further is that the
appellant as Additional District Magistrate attended a meeting at the Secretariat
in the office of the Secretary of Works Department at Bhubaneswar on September
25, 1964 where certain decisions were taken. There appears to be some
divergence of opinion between the appellant and the prosecution on the deliberations
of the aforesaid meeting which we shall consider later. It is further alleged
that on January 9, 1965 the appellant directed the Nazir to pay him a sum of
Rs.
10,000/from the cash which remained with the
Nazir P.W. 1 for the purpose of distributing the amount to the landowners of
the village Balichandrapur. As, however, the A.D.M.'s visit to Balichandrapur
could not materialise because the Executive Engineer with whom he was to go
there was not available, the visit was postponed and the A.D.M.
went to some other place. On January 20, 1965
the appellant again took a sum of Rs. 10,000/from the Nazir and decided to
visit the village Balichandrapur along with the Executive Engineer and the Land
Acquisition Inspector. It is said that the S.D.O., P.W.D., also accompanied the
party to the village Balichandrapur, and the case of the appellant is that the
Land Acquisition Inspector also travelled to Balichandrapur with the appellant,
though this fact is disputed by the Land Acquisition Inspector. It is, however,
the admitted case of the prosecution that there ,was no disbursement in village
Balichandrapur and thereafter the amount of Rs. 10,000/was not deposited with
the Nazir but remained in the personal custody of the appellant who appears to
have retained it dishonestly for about six months.
This is the gravamen of the charges against
the appellant.
We may also mention that the amount was paid
to the Nazir towards the end of September 1965 when it was deposited in the
treasury. On receiving certain applications, the Vigilance Organisation of the
State of Orissa instituted an inquiry against the appellant and after
completing the same lodged a formal F.I.R. on May 13, 1966. The appellant
thereafter was challaned under various sections of the Prevention of Corruption
Act and ultimately convicted as indicated above.
The case of the appellant was that he had no
doubt withdrawn a sum of Rs. 10,000/from the Nazir on January 9, 1965 but on
his return from tour as he could not disburse the money to the 443 villagers he
had returned it to the Nazir at Cuttack on January 13, 1965. When, however, he
again decided to go to the village with the Executive Engineer and others on
January 20, 1965 he again directed the Nazir to pay him the amount for
disbursement. He went to the village Balichandrapur and tried to persuade the
villagers to accept the compensation amount so that the Government project may
be started as soon as possible. The villagers wanted some other alignment to be
made or the compensatioion to be increased, and the appellant persuaded them to
accept part payment and assured them that he will try to get the amount
increased. It was also the definite case of the appellant that in the meeting
held in the secretariat on September 25, 1964, the appellant was expressly
directed to proceed to the spot and persuade the villagers to accept the
compensation money and it was in consequence of this mandate from the Secretary
of works Department that the A.D.M. proceeded to the village Balichandrapur and
made all possible efforts to persuade the tenants to accept compensation even
by holding out promises to them. Unfortunately, however, the villagers refused
to accept the compensation and the party had to come back to Cuttack
disappointed. The appellant further seemed to suggest that although he had
failed to persuade the villagers to accept the money he had not completely lost
all hopes and that there was a possibility of the villagers coming round to his
point of view and ultimately decide to accept the compensation and for this
reason the appellant returned the sum of Rs. 10,000/to the Nazir on his return
from the village but directed him not to deposit the same in the treasury or to
make any entry in the Cash Register so that if the villagers came to Cuttuck to
demand the money they could be given the same immediately without any formality
of a fresh withdrawal. The appellant further averred that because of some
personal jealousies, a false complaint was made against him which necessitated
an inquiry. The Courts below accepted the prosecution case and disbelieved the
version of the defence completely. The High Court has found that as the
entrustment was proved and admitted by the appellant himself and the explanation
given by him was absolutely false, this would lead to the irresistible
inference that the appellant had temporarily misappropriated the money. It was
also suggested by the prosecution that at the relevant time the appellant was
building a house and he had already applied for loans from the Government and
it may be that for this purpose he might have been in need of the money to
build his house.
One of the essential peculiarities of this
case is that as many as three witnesses examined by the prosecution to prove
its case, namely, P.Ws. 6, 7 and 8, had been declared hostile and the Public
Prosecutor sought permission of the Court to cross-examine those witnesses
which was readily allowed. According to the prosecution these witnesses tried
to help the accused and made certain statements which supported the case of the
appellant and, therefore, had to be crossexamined by the prosecution.
Having regard to the stand taken by the
parties, the matter lies within a very narrow compass. So far as the
entrustment of Rs.
444 10,000/is concerned that is undoubtedly
admitted by the appellant, and the only explanation given by him is that he had
returned the money to the Nazir after his return from the village
Balichandrapur and he had also directed the Nazir not to deposit the money in
the treasury. If once the explanation of the accused is disbelieved, or proved
to be absolutely false, then it is quite natural that he must be presumed to
have retained the money with himself for a period of six months. Although the
Onus lies on the prosecution to prove the charge against the accused, yet where
the entrustment is proved or admitted it will be difficult.
for the prosecution to prove the actual mode
or manner of misappropriation and in such a case the prosecution would have to
rely largely on the truth or the falsity of the explanation given by the
accused. In Jaikrishnadas Manohardas Desai and Anr. v. State of Bombay(1) this
Court observed as follows:
"The principal ingredient of the offence
being dishonest misappropriation or conversion which may not ordinarily be a
matter of direct proof, entrustment of property and failure in breach of an
obligation to account for the property entrusted, if proved, may in the light
of other circumstances, justifiably lead to an inference of dishonest
misappropriation on conversion. Conviction of a person for the offence of
criminal breach of trust may not, in all cases, be founded merely on his
failure to account for the property entrusted to him, of over which he has
dominion, even when a duty to account is imposed upon him, but where he is
unable to account or renders an explanation for his failure to account which is
untrue, an inference of misappropriation with dishonest intent may readily be
made." The Courts below appear to have convicted the appellant on the
basis of the decision referred to above and have held that since the
explanation given by the appellant was false, an inference of misappropriation
could reasonably be drawn against him. This proposition cannot be doubted. But
the question is whether the explanation given by the appellant in this case can
be said to be absolutely false ? Another question that arises is what are the
standards to be employed in order to judge the truth or falsity of the version
given by the defence ? Should the accused prove his case with the same amount
of rigour and certainty, as the prosecution is required, to prove a criminal
charge, or it is sufficient if the accused puts forward a probable or reasonable
explanation which is sufficient to throw doubt on the prosecution case ? In our
opinion three cardinal principles of criminal jurisprudence are well-settled,
namely:
(1) that the onus lies affirmatively on the
prosecution to prove its case beyond reasonable doubt and it cannot derive any
benefit from weakness or falsity of the defence version while proving its case;
(1) [1960] 3 S.C.R. 319, 324.
445 (2) that in a criminal trial the accused
must be presumed to be innocent unless he is. proved to.
be guilty; and (3) that the onus of the
prosecution never shifts.
It is true that under section 105 of the
Evidence Act the onus of proving exceptions mentioned in the Indian Penal Code
lies on the accused, but this section does not at all indicate the nature and
.standard of proof required. The Evidence Act does not contemplate that the
accused should prove his case with the same strictness and rigour as the
prosecution is required to prove a criminal charge. In fact, from the cardinal
principles referred to above, it follows that, it is sufficient if the accused
is able to prove his case by the standard of preponderance of probabilities as
envisaged by s. 5 of the Evidence Act as a result of which he succeeds not
because he proves his case to the hilt but because probability of the version
given by him throws doubt on the prosecution case and, therefore, the
prosecution cannot be said to have established .the charge beyond reasonable
doubt. In other words, the mode of proof, by standard of benefit of doubt, is not
applicable to the accused, where he is called upon to prove his case or to
prove the exceptions of the Indian Penal Code on which he seeks to rely. It is
sufficient for the defence to give a version which competes in probability with
the prosecution version, for that would be sufficient to throw suspicion on the
prosecution case entailing its rejection by the Court.
This aspect of the matter is no longer res
integra but is concluded by several authorities of this Court. In Harbhajan
Singh v. State of Punjab (1) this Court observed as follows:
"But the question which often arises and
has been frequently considered by judicial decisions is whether the nature and
extent of the onus of proof placed on an accused person who claims the benefit
of an Exception is exactly the same as the nature and extent of the onus placed
on the prosecution in a criminal case; and there is consensus of judicial
opinion in favour of the view that where the burden of an issue lies upon the
accused, he is not required to discharge that burden by leading evidence to
prove his case beyond a reasonable doubt. That, no doubt, is the test
prescribed while deciding whether the prosecution has discharged its onus to
prove the guilt of the accused; but that is not a test which can be applied to
an accused person who seeks to prove substantially his claim that his case
falls under an Exception. Where an accused person is called upon to prove that
his case fails under an Exception, law treats the onus as discharged if the
accused person succeeds "in proving a preponderance of probability."
As soon as the preponderance of probability is proved, the burden shifts to.
the prosecution which has still to discharge its original onus. It must be
remembered that basically, the original onus (1) [1965] 3 S.C.R. 235, 241 446
never shifts and the prosecution has, at all stages of the case, to prove the
guilt of the accused beyond a reasonable doubt." The same view was taken
in a later case in State of U.P. v. Ram Swarup & Anr.(1) where this Court
observed as follows:
"That is to say, an accused may fail to
establish affirmatively the existence of circumstances which would bring the
case within a general exception and yet the facts and circumstances proved by
him while discharging the burden under section 105 of the Evidence Act may be
enough to cast a reasonable doubt on the case of the prosecution, in which
event he would be entitled to an acquittal. The burden which rests on the
accused to prove the exception is not of the same rigour as the burden of the
prosecution to prove the charge beyond a reasonable doubt. It is enough for the
accused to show, as in a civil case, that the pre-ponderence of probabilities
is in favour of his plea." While the Courts below have enunciated the law
correctly, they seem to have applied it wrongly by overlooking the mode and
nature of proof that is required of the appellant.
A perusal of the oral and documentary
evidence led by the parties goes to show that the Courts not only sought the
strictest possible proof from the appellant regarding the explanation given by
him, but went to. the extent of misplacing the onus on the accused to prove
even the prosecution case by rejecting the admissions made by the prosecution
witnesses and by not relying on the documents which were in power and
possession of the prosecution itself on the speculative assumption that they
were brought into existence by the accused through the aid of the officers.
Furthermore, the Courts below have failed to
consider that once the appellant gives a reasonable and probable explanation,
it is for the prosecution to prove affirmatively that the explanation is
absolutely false. In a criminal trial, it is not at all obligatory on the
accused to produce evidence in support of his defence and for the purpose of
proving his version he can rely on the admissions made by the prosecution
witnesses or on the documents filed by the prosecution. In these circumstances,
the Court has to probe and consider the materials relied upon by the defence
instead of raising an adverse inference against the accused, for not producing
evidence in support of his defence, because as we have already stated that the
prosecution cannot derive any strength or support from the weakness of the
defence case. The prosecution has to stand on its own legs, and if it fails to
prove its case beyond reasonable doubt, the entire edifice of the prosecution
would crumble down. Thus it would appear to us that both the Courts below have
made an absolutely wrong approach in deciding the truth of the defence version
and have not followed principles laid down by this Court in judging the case of
the accused.
The Courts below have based the conviction of
the appellant on the sole testimony of P.W. 1 the Nazir who has categorically
stated (1) [1975] 1.S.C.R. 409, 416-17.
447 in the Court that the appellant had taken
a sum of Rs.
10,000/on January 9, 1965 and thereafter he
never returned this amount to the Nazir until September 30, 1965. The Courts
below have chosen to place implicit reliance on the evidence of P.W. 1
completely ignoring the important admissions made in favour of the accused by
other prosecution witnesses some of whom were declared hostile and some of whom
were not. Before analysing the evidence, it may be necessary to describe the
exact allegation made by the prosecution against the accused. The starting
point of the case is a meeting which is said to have taken place in the
Secretariat on September 25, 1964 in which according to the appellant he was positively
directed to visit the villages and persuade the land-owners to receive the
compensation and this formed the occasion for the A.D.M. to have withdrawn the
money to visit the spot with the money. According to the prosecution no such
decision was at all taken in the meeting and the visit to the village
Balichandrapur might have been for some other purpose and the question of
distribution was only a pretext invented by the accused to shield his guilt. We
would, therefore, now take up the evidence regarding the meeting said to have
taken place on September 25, 1964. We might also mention that the learned
Special Judge has believed the statement of the accused that he did attend the
meeting in the Secretariat on September 25, 1964, as would appear from the
finding given by him at p. 79 of the Paper Book. What the Special Judge has not
accepted is the assertion of the accused that he had been directed to visit the
village personally and distribute the amounts to the villagers. The meeting is
said to have been called by the Secretary Works Department and therefore the
Secretary Works Department was the best person who would have thrown light on
the subject and would have clinched the issue. The Secretary, Works Department,
was a Government servant and it was not at all difficult for the prosecution to
have examined him to settle the controversy on this matter. For the reasons
best known to the prosecution, the Secretary, Works Department, was not at all
examined and we have to decide this question on the basis of oral and
documentary evidence produced by the prosecution. The Special Judge, instead of
drawing an adverse inference against the prosecution, has placed the onus on
the accused for not having summoned the Secretary, Works Department, as a
witness in defence forgetting that it was part of the prosecution case itself
that no decision to distribute the amount was taken in the meeting and
therefore, the money was not taken for distribution to tenants in the village
but was misappropriated. It was not for the defence to prove the prosecution
case which formed the bulwark of the charge of misappropriation. Furthermore,
the Secretary, Works Department, was a high Officer of the Government and he
could have thrown a flood of light on this question.
Now coming first to the oral evidence, P.W. 8
Sayad Allamuddin who was the Land Acquisition Officer Cuttack has testified to
the fact that in the meeting held on September 25, 1964 the appellant had been
asked to take early action for payment of compensation money by going
personally to persuade the tenants. Perhaps, it was because of this statement,
that this witness was declared hostile, and the prosecution 448 sought
permission to cross-examine him. The actual statement made by him in the Court
may be quoted thus:
"The accused had been asked to take
early action for payment of the compensation money, by going personally and by
persuading the tenants. It was the duty of the accused to see that compensation
amounts were paid for land acquisition." When the witness was declared
hostile, all that was elicited from him was as follows:
"It is not a fact that I had not stated
to Investigating Officer that the accused and the Executive Engineer persuaded
the tenants to receive the compensation amount. It is not a fact that I had
stated to the Investigating Officer that while we were returning, some people
wanted to take part payments for the lands already acquired, but no payment was
made by the accused as we were then leaving." Thus the prosecution even in
cross-examination did not give any suggestion that the witness who was present
in the meeting held on September 25, 1964 had stated on earlier occasions that
no decision was taken in the meeting directing the accused to visit the village
and persuade the tenants to receive the compensation amounts. He merely did not
state to the police that when the accused and the Executive Engineer visited
the spot they did not persuade the tenants to receive the compensation amounts.
This was a case of a mere omission of a broad detail and not a case of contradiction.
In these circumstances, therefore, the evidence of this witness on the question
as to what transpired in the meeting and the nature of the directions given to
the appellant remains unchallenged, and even if he was declared to be a hostile
witness, he does not cease to be a reliable witness. if the Court chooses to
accept his testimony.
Before proceeding further we might like to
state the law on the subject at this stage. Section 154 of the Evidence Act is
the only provision under which a party calling its own witnesses may claim
permission of the Court to cross-examine them. The section runs thus:
"The Court may in its discretion permit
the person who calls a witness to put any question to him which might be put in
cross-examination by the adverse party." The section confers a judicial
discretion on the Court to permit cross-examination and does not contain any
conditions or principles which may govern the exercise of discretion.
It is, however, well-settled that the
discretion must be judiciously and properly exercised in the interests of
justice. The law on the subject is well-settled that a party will not normally
be allowed to cross-examine its own witness and declare the same hostile,
unless the Court is satisfied that the statement of the witness exhibits an
element of hostility or that he has 449 resiled from a material statement which
he made before an earlier authority or where the Court is satisfied that the
witness is not speaking the truth and it may be necessary to cross-examine him
to get out the truth. One of the glaring instances in which this Court
sustained the order of the Court in allowing cross-examination was where the
witness resiles from a very material statement regarding the manner in which
the accused committed the offence. In Dahyabhai Chaganbhai Thakker v..State of
Gujarat(1) this Court made the following observations:
"Section 154 does not in terms, or by
necessary implication confine the exercise of the power by the court before the
examination-in-chief is concluded or to any particular stage of the examination
of the witness. It is wide in scope and the discretion is entirely left to the
court to exercise the power when the circumstances demand. To confine this
power to the stage of examination-inchief is to make it ineffective in
practice. A clever witness in his examination-in-chief faithfully conforms to
what he stated earlier to. the police or in the committing court, but in the
cross-examination introduces statements. in a subtle way contradicting in
effect what he ;stated in the examination-in-chief. If his design is obvious,
we do not see why the court cannot, during the course of his cross-examination,
permit the person calling him as a witness to put questions to him which might
be put in cross examination by the adverse party." "Broadly stated,
the position in the present case is that the witnesses in their statements
before the police attributed a clear intention to the accused to commit murder,
but before the court they stated that the accused was insane and, therefore, he
committed the murder." A perusal of the above observations will clearly
indicate that the permission to cross-examination was upheld by this Court
because the witnesses had categorically stated before the police that the
accused had committed the murder but resiled from that statement and made out a
new case in evidence before the Court that the accused was insane. Thus it is
clear that before a witness can be declared hostile and the party examining the
witness is allowed to crossexamine him, there must be some material to show
that the witness is not speaking the truth or has exhibited an element of
hostility to the party for whom he is deposing.
Merely because a witness in an unguarded
moment speaks the truth which may not suit the prosecution or which may be
favourable to the accused, the discretion allow the party concerned to
cross-examine its own witnesses cannot be allowed. In other words a witness
should be regarded as adverse and liable to be cross-examined by the party
calling him only when the Court is satisfied that the witness bears hostile
animals against the party for whom he is deposing or that he does not appear
(1) [1964] 7 S.C.R. 361,368, 369-70.
450 to be willing to tell the truth. In order
to ascertain the intention of the witness or his conduct, the Judge concerned
may look into the statements made by the witness before the Investigating
Officer or the previous authorities to find out as to whether or not there is
any indication of the witness making a statement inconsistent on a most material
point with the one which he gave before the i previous authorities. The Court
must, however, distinguish between a statement made by the witness by way of an
unfriendly act and one which lets out the truth without any hostile intention.
It may be rather difficult to lay down a rule
of universal application as to when and in what circumstances the Court will be
entitled to exercise its discretion under s. 154 of the Evidence Act and the
matter will largely depend on the facts and circumstances of such case and on
the satisfaction of the Court on the basis of those circumstances. Broadly,
however, this much is clear that the contingency of cross-examining the witness
by the party calling him is an extra-ordinary phenomenon and permission should
be given only in special cases. It seems to us that before a Court exercises
discretion in declaring a witness hostile, there must be some material to show
that the witness has gone back on his earlier statement or is not speaking the
truth or has exhibited an element of hostility or has changed sides and
transferred his loyalty to the adversary. Furthermore, it is not merely on the
basis of a small or insignificant omission that the witness may have made
before the earlier authorities that the party calling the witness can ask the
Court to exercise its discretion.
The Court, before permitting the party
calling the witness to cross-examine him, must scan and weigh the circumstances
properly and should not exercise its discretion in a casual or routine manner.
It is also clearly well settled that the mere
fact that a witness is declared hostile by the party calling him and allowed to
be crossexamined does not make him an unreliable witness so as to exclude his
evidence from consideration altogether. In Bhagwan Singh v. State of
Haryana(1), Bhagwati, J., speaking for this Court observed as follows:
"The prosecution could have been avoided
requesting for permission to cross-examine the witness under Section 154 of the
Evidence Act. But the fact that the court gave permission to the prosecutor to
cross-examine his own witness, thus characterising him as, what is described as
a hostile witness, does not completely efface his evidence. The evidence
remains admissible in the trial and there is no legal bar to base a conviction
upon his testimony if corroborated by other reliabIe evidence." Applying
these principles, we would now examine the position. So far as P.W. Sayad
Allamuddin was concerned, he was the Land Acquisition Officer and merely
because he happened to be working [1976] 1 S.C.C. 389, 391-92.
451 under the accused, there was no reason
for him to depose falsely at a time when the appellant had been suspended and
was facing a trial before the Special Judge. Furthermore, on the basic point
that the accused had been asked in the meeting to go personally to the village
and persuade the tenants to receive compensation money nothing has been
elicited from him even in cross-examination to show that this statement was an
after-thought or was in any event incorrect or false. We shall presently show
that this statement is supported by documents of an unimpeachable nature which
have been produced by the prosecution itself and whose genuineness cannot be
doubted. Exhibit 2 which is a note by this witness dated January 9, 1965 long
before an inquiry started against the accused contains categorically a
statement which runs as follows:
"In the last meeting held in the
Secretariat the Secretary, Works Department suggested that the A.D.M. and the
Executive Engineer (R & B) should .try to persuade the villagers and make
payment of the compensation." This note further shows that the appellant
proposed to pay a visit to the area along with the Executive Engineer and he
had suggested that the A.D.M. should take an amount of Rs.
10,000/for disbursement if the villagers
agreed to receive compensation. This document, according to P.W. 1, the Nazir,
who is the star witness of the prosecution, was received by him as far back as
January 9, 1965 along with Ext. 1 the order of the appellant directing the
Nazir to pay him Rs. 10,000/-. It would be impossible to suggest that as early
as January 9, 1965 the witness Sayad Allamuddin Ahmed P.W. 8 was fabricating
this document regarding an event which had taken three or four months ago
without any rhyme or reason. Thus Ext. 2 fully corroborates the evidence of
P.W. 8 on the point as to what transpired at the meeting held in the
Secretariat and demolishes the prosecution case that no instructions were given
to the appellant on September 25, 1964 in the meeting for visiting the spot and
persuade the tenants to accept compensation money. In these circumstances,
therefore, we feel that the Trial Court was not at all justified in declaring
P.W. 8 as a hostile witness or in allowing the prosecution to cross-examine
him.
Even if he was cross-examined his evidence
appears to be fully acceptable and worthy of credence. He is a person of status
and responsibility and there is nothing to show why he should depose falsely
merely to help the accused knowing full well that being a Government servant he
might be harmed if he made a false statement in order to support the appellant.
This fact is further supported by another
official document which is Ext. 10, namely, the tour diary of the appellant
dated January 7, 1965 to January 31, 1965. In this diary the appellant, as far
back as January 7, 1965, made a clear mention of the facts that transpired at
the meeting and stated thus:
"Discussed with Revenue Secretary
regarding various allegations of Kanika Tahasil pending for enquiry. He also
wanted that I should visit the spot and enquire into the matter 452 personally
and also make a thorough enquiry into the various encroachments in different
forest blocks of Kanika Tahasil." This statement which is made in an
official document in the discharge of his duties has been made even before the
money was sought to be withdrawn from the treasury and at a time when there was
no dispute at all regarding the question of misappropriation. This document
also fully corroborates the evidence of P.W. 8. Thus from the evidence of the
prosecution itself, the fact that in the meeting held in the Secretariat a
decision was taken by Which the appellant was directed to visit the village
Balichandrapur and persuade the tenants to accept the compensation has been
amply proved. The only person who could have contradicted this fact or
falsified the same would have been the Secretary, Works Department, in whose
presence the meeting took place whom the prosecution did not choose to examine.
On the materials produced by the prosecution itself, it is manifest that the
prosecution has miserably failed to prove that the visit of the A.D.M. to the village
Balichandrapur on January 9, 1965 was not in connection with the payment of compensation
to the villagers as no such decision was taken in the meeting.
The next question that arises is whether the
appellant had actually taken the money for disbursement to the village
Balichandrapur. On this point also oral and documentary evidence led by the
prosecution clearly proves the version given by the appellant. To begin with,
P.W. 7 who was an Executive Engineer at the relevant. time has categorically
stated that he had accompanied the appellant to village Balichandrapur and the
appellant did try to persuade the tenants to receive the compensation but they
refused to accept the same. In this connection the witness deposed as follows:
"The accused thereafter enquired from
the parties as to on what terms they were willing to give up possession of
their lands which had already been selected for acquisition. The parties stated
that if they were paid compensation at the rate of Rs. 200/per gunth, they
would part with their lands. The accused stated that he did not have sanction
for payment of Rs. 200/per gunth and could not pay them off hand, but if the
parties wanted payment at the rate of Rs. 150/per gunth he was willing to pay
them cash at the spot. The parties did not agree. The accused said that they
would be paid Rs. 200/-.
when that rate would be sanctioned and he was
going to write about it." This witness was also declared hostile and that
too not because he had not made the statement referred to above before the
police, but because of certain minor omissions in his statement before the
police. These omissions consisted of the facts that there is no mention about
the previous visit to Balichandrapur or that he had stated that while he was returning
to Cuttuck he remained sitting in the car and the accused asked P.W. 3 to
follow him with the bag 453 and things like that. It has, however, not been
elicited from him in cross-examination nor has it been argued that the witness
had told the Investigating Officer that the accused had not met or had not
talked at all with the tenants in his presence in order to persuade them to
accept the compensation.
P.W. 6 Udaynath Parida who is a villager of
Balichandrapur has categorically supported the statement of P.W. 7 that the
accused had agreed to pay compensation at the rate of Rs. 200/per gunth and
persuaded them to give up possession but the villagers refused. In this
connection, the witness stated thus:
"On hearing of the arrival of the accused
we met him in Balichandrapur near the market place.
We demanded payment of compensation money at
a rate higher than what was proposed by Government. The accused and his party
agreed to pay us compensation at the rate of RS. 200/per gunth and persuaded us
to give up possession so that Government may not be forced to take possession
forcibly with the help of police." "The accused had informed the
villagers including me that if we would be willing to accept the rate already
fixed by Government, at Rs. 150/per gunth, he would pay us at the spot;"
This witness was also declared hostile, merely because of certain facts which
he had omitted to state before the police. Thus it would appear that all the
prosecution witnesses P.Ws. 6, 7 and 8 had been allowed to be declared hostile
without any justification and the Trial Court appear to have exercised its
discretion mechanically in readily accepting the prayer of the prosecution
without making any probe into the reasons for allowing the cross-examination.
Indeed if suck a discretion is freely
exercised, then the accused will suffer serious prejudice and will be deprived
of taking advantage of any damaging admission made by the prosecution
witnesses, merely because the prosecution is allowed to cross-examine them by
declaring them hostile.
Such a course of action would have serious
repercussion on the fairness of the trial.
After going through the evidence of P.Ws. 6
and 7 we see absolutely no reason to distrust their evidence. So far as P.W. 7
is concerned he is a very high officer being an Executive Engineer at the
relevant time and in no way subordinate to the appellant. He has admitted in
his crossexamination by the prosecution that even his confidential reports are
not written by the accused. There is also nothing to show that he was in any
way interested in the accused or was his great friend and supporter. In these
circumstances, he had no reason to make a false statement that the accused had
visited the village and persuaded the tenants to accept the compensation. The
evidence of the villager P.W. 6 Udayanath Parida who is an independent witness
also proves that the accused had taken the money to the village and made
efforts to persuade the tenants to accept the money. In fact the evidence of
these two witnesses on this point follows as a logical corollary from the
decision taken at the meeting held by the Secretary, Works Department, where
the appellant was 454 directed to visit the spot and persuade the tenants to
accept compensation. The evidence of P.W. 7 is fully corroborated by Ext. B a
letter written by P.W. 7 Executive Engineer dated July 6, 1966, a copy of which
was sent to the appellant and other officers. In this letter which is addressed
to the Assistant Engineer, Road, Office of the Chief Engineer, Bhubaneswar,
P.W. 7 as Executive Engineer had clearly mentioned that he along with the
appellant had visited the site at Balichandrapur and persuaded the tenants to
accept the money by enhancing the amount to Rs. 200/per gunth to which the tenants.
agreed but for this the sanction had to be taken. It was, however, submitted by
counsel for the State that this letter appears to have been brought into
existence after the inquiry against the accused was launched in order to help
him. This was an official letter and we do not see any reason why such a high
officer as the Executive Engineer should have gone to the extent of fabricating
an unnecessary letter to help the appellant against whom an inquiry had been
ordered. Even if this letter be excluded from consideration, the other evidence
both oral and documentary clearly show that the appellant had visited the spot
in village Balichandrapur on January 20, 1965 with a view to distribute the
compensation money and did make an attempt to persuade the tenants to accept
the compensation but they refused to accept the same unless the compensation
was raised to Rs. 200/per gunth.
As against this the prosecution relied merely
on the fact that in the tour diary of the accused Ext. 8 of the even date, viz.
January 20, 1965, as also in the office report there is no clear mention that
the appellant tried to persuade the tenants to accept the money or that he had
taken the money with him to the spot. These documents undoubtedly contain the
statement regarding the visit of the appellant to the spot and some other
matters. The question of actual distribution or persuasion of the tenants being
a matter of detail does not appear to have been mentioned in those documents.
It would have been necessary to be mentioned in the documents, if the tenants
had agreed to accept the money and if the money was actually disbursed to them.
As the proposal suggested by the appellant
did not materialise, there was no occasion for mentioning these facts in those
documents.
As we have already indicated, it was not for
the accused but for the prosecution to prove, before raising an adverse
inference against the accused, that the visit of the appellant to
Balichandrapur was merely a hoax. On the materials placed before us, not only
the prosecution has miserably failed to prove this fact, but the explanation
given by the accused appears to be not only probable but proved by the accused,
even applying the standard of benefit of doubt. For these reasons, therefore,
we do not agree with the finding of the Courts below that the accused did not
take the money with him to Balichandrapur or made any attempt to distribute it
to the tenants but has misappropriated and retained it dishonestly.
We might mention here that P.W. 3 Bhakta Charan
Mohanti is another Witness who has supported the case of the accused. But as
455 the witness has made inconsistent statements which sometimes go to support
the prosecution and sometimes the accused and is further, contradicted by his
own tour diary and T.A.
Bills, we do not choose any reliance on the
evidence of this witness.
The next and the last question that falls for
determination is as to whether or not the accused after returning from
Balichandrapur handed over the money to the Nazir. It may be mentioned that the
appellant had made no secret of the fact that after returning the money to the
Nazir he had instructed him not to deposit the same in the treasury but to keep
it out of cash for the reason which we have already indicated. In this connection
we have only the word of P.W.
1 the Nazir as against the word of the
appellant. The Nazir also does not appear to be a witness who is completely
above suspicion. Crossexamination of this witness clearly revealed that the
manner in which he had kept the accounts was not at all satisfactory and he was
in the habit of allowing huge amounts to remain with him without depositing
them in the treasury and that he was also building a house for which he had
taken some loans.. Instead of applying a very strict standard to test the
testimony of such a witness, the High Court seems to have explained the
irregularities committed by the Nazir P.W. 1 thus:
"Heavy cash remaining with the Nazir
that Ext. D discloses and the facts of the Nazir having secured housebuilding
advance during September 1965 may raise speculations and surmises against the
Nazir." There are, however, important circumstances to indicate that the
explanation given by the appellant is both probable and reasonable. P.W. 9 who
was the Nizarat Officer and who had not been declared hostile (emphasis ours)
has clearly stated that the amount was taken by the appellant for disbursement.
The witness further deposes that in March 1965 he had a discussion with the
appellant regarding the amount of Rs. 10,000/taken by him and the appellant had
then told him that the amount could not be disbursed as the tenants did not
agree to take the amounts and that he had kept the amount with the Nazir. In
this connection his statement is as follows:
"In March, 1965, I had a discussion with
the accused regarding the amount of Rs. 10,000/taken by him and the accused
then told me that the amount could not be disbursed as the tenants did not
agree to take the amounts and that he had kept the amount with the Nazir. I did
not make any enquiry from the Nazir regarding this as the balance amount as
shown in the cash Book was the same in the cash sheet. The accused had told me
that the Nazir had kept the amount of Rs. 10,000/outside the cash as per his
instructions." It is, therefore, clear from the admission made by this
witness that the case of the accused t,hat he had given money to the Nazir is
fully supported by him because he has referred to the statement made to him by
the appellant as far back as March 1965 when there was absolutely no dispute,
no inquiry and no allegation of misappropriation against the appellant. Much
was made by the learned counsel for the 13--1104SCI/76 456 State out of the
fact that the accused had directed the Nazir to keep the amount outside the
cash which betrayed the falsity of his explanation. A careful study of the
circumstances in which the accused was placed would show that the accused was
very much anxious to disburse the payments to the villagers, he had tried to
persuade them to accept the money, but the villagers wanted more compensation
and he had already taken steps to move the Government for increasing the amount
of compensation to Rs. 200/per gunth. In these circumstances, therefore, there
may be some justification in his thinking that the money should be readily
available to be paid as soon as the villagers decided to accept the same.
It is possible that he may have made an error
of judgment or calculation or he was rather too optimistic but this conduct by
itself does not lead to the inference of dishonest intention to misappropriate
the money. At any rate, in view of the evidence of P.W. 9 the Nizarat Officer
that the amount was given to the Nazir by the appellant which fact was
disclosed to him as far back as March 1965, it will be difficult to accept the
uncorroborated evidence and testimony of P.W. 1 the Nazir, that he did not
receive the money from the appellant after January 9, 1965.
Furthermore there were other important
circumstances why no reliance should be placed on the evidence of the Nazir
P.W. 1. It would appear from the evidence of the Nazir himself that on
September 15, 1965 the cash in the hands of the Nazir was Rs. 11,16,066.57 out
of which Rs. 7,36,810.86 were for land acquisition proceedings. Admittedly he
did not deposit this amount until October 20, 1965.
He has given no explanation as to why he had
kept such a huge amount with him without depositing the same in the Treasury.
This was undoubtedly a grave lapse on the part of the Nazir and should have
been taken notice by the Courts below. Exhibit D is the order of the appellant
dated September 27, 1965 by which the Nazir was directed to deposit the amount
in the treasury and it was only on October 20, 1965 as would appear from Ext.
D/4 that the Nazir deposited this amount in the treasury. The Nazir has given
no explanation for this delay. Again it appears that the Nazir was also
building a house and he had received advances from the Government which he had
not repaid and the possibility that he might have himself misappropriated the
money handed over to him by the appellant for the purpose of returning the
advances cannot safely be excluded. It would appear that the Nazir had taken a
loan of Rs. 4,500/on September 8, 1965 and another loan of Rs. 4,500/was taken
by him on September 27, 1965, total being Rs. 9,000/-, and it is quite possible
that the Nazir may have paid these amounts of the loans from out of the money
given to him by the appellant.
Finally even if the accused had not given any
money to the Nazir P.W. 1 right from January 9, 1965 he should have at least
approached him and should have drawn the attention of the appellant to the fact
that the money paid to him for the purpose of disbursement had not so far been
deposited with him. No such thing was done by the Nazir. It was suggested by
the prosecution that as the appellant was in charge of the Treasury, the Nazir
did not think it proper to interrogate him. It was, however, not a question of
interrogation. It was 457 only a question of a subordinate officer pointing out
something of very great importance to a superior officer which a superior
officer would never misunderstand. In view of these circumstances, therefore,
we are not in a position to place implicit reliance on P.W. 1.
There is yet another very important document
which has been brought on record by the appellant which is Ext. A dated
December 8, 1965. This is a statement by P.W. 3 which to a very great extent
supports the case of the accused, but as we do not propose to rely on the
evidence of P.W. 3, we would exclude this document from consideration. Another
document Ext. H is a statement of the Accountant Ghansham Das which appears at
p. 215 of the Paper Book wherein Mr. Ghansham Das clearly mentions that when he
found that Rs. 10,000/were not traceable, be brought the matter to the notice
of the officer in charge and he was told by the Nazir that the amount of Rs.
10,000/had been left with him by the appellant with instructions not to refund
in the treasury. TIffs statement clinches the issue so far as the defence case
is concerned and fully proves that the explanation given by the appellant was
correct. This document would also have falsified the evidence of P.W. 1 who has
tried to put the entire blame on the shoulders of the appellant. Unfortunately,
however, the prosecution did not choose to examine Ghansham Das the Accountant
who was a very material witness in order to unfold the prosecution narrative
itself, because once a reasonable explanation is given by the appellant that he
had entrusted the money to the Nazir on his return from Balichandrapur on
January 20, 1965 which is supported by one of the prosecution witnesses, P.W.
9, as referred to above, then it was for the
prosecution to have affirmatively disproved the truth of that explanation.
If Ghansham Das would have been examined as a
witness for the prosecution, he might have thrown a flood of light on the
question. In his absence, however, Ext. H cannot be relied upon, because the
document is inadmissible. At any rate, the Court is entitled to draw an
inference adverse to the prosecution for not examining Ghansham Das Accountant
as a result of which the explanation given by the appellant is not only
reasonable but stands unrebutted by the prosecution evidence produced before
the Trial Court.
Having regard to these circumstances. it is
not necessary for us to consider the other documents, like Exts. F, G and E
produced by the appellant because they do not throw much light on the question
and the facts contained therein have been seriously disputed by the
prosecution. Similarly we have not referred to the other documents produced by
the prosecution which show the entry of the money received by the appellant and
50 on because these facts are not disputed by the appellant at all.
On a consideration of the evidence and the
circumstances we are satisfied that the appellant has been able to prove that
the explanation given by him was both probable.and reason.able judged by the
standard of the preponderance of probabilities This being the position, it was
for the prosecution to prove affirmatively m what manner the amount was
misappropriated after it had been transferred from the custody of 458 the
appellant to the custody of the Nazir. Such proof is wholly lacking in this
case. As the accused has given a reasonable explanation, the High Court was in
error in drawing an adverse inference against him to the effect that he had
misappropriated the money.
For these reasons, the appeal is allowed, the
judgments of the Courts below are set aside, the convictions and sentences
imposed on the appellant are quashed and he is acquitted of the charges framed
against him. .
P.H.P. Appeal allowed.
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