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PETITIONER: STATE OF MAHARASHTRA

       Vs.

RESPONDENT: WASUDEO RAMCHANDRA KAIDALWAR

DATE OF JUDGMENT06/05/1981

BENCH: SEN, A.P. (J) BENCH: SEN, A.P. (J) REDDY, O. CHINNAPPA (J) ISLAM, BAHARUL (J)

CITATION:  1981 AIR 1186            1981 SCR  (3) 675  1981 SCC  (3) 199        1981 SCALE  (1)819  CITATOR INFO :  R          1988 SC  88  (11)

ACT:      Prevention of  Corruption Act,  1947-Section 5(2)  read with section 5(1) (e)-Scope of.      Interpretation-"assets disproportionate  to  the  known sources of income" meaning of.      Evidence-Burden of  proof under  section 5(2) read with section 5(1)(e)-On whom lies.

HEADNOTE:      The respondent  was a Range Forest Officer on a monthly salary of  Rs. 515.  In a  search conducted by an officer of the Anti-Corruption  Bureau, Rs.  26 thousand-odd  in  cash, savings bank  accounts in the names of himself, his wife and children,  national   savings  certificates,  postal  saving certificates, gold  and  silver  ornaments,  sale  deeds  of certain properties  in the  name of  his wife, sister-in-law and  brother-in-law  aggregating  in  all  to  over  Rs.  79 thousand were  discovered from  his house. On the allegation that he  was found  in possession of assets disproportionate to his  known sources  of income he was charged with offence punishable under  section 5(2)  read with section 5(1)(e) of the Prevention of Corruption Act, 1947.      The respondent  pleaded that  he led  a frugal life and that secondly  much of  the  property  found  in  his  house belonged to  his father-in-law. He added that his father-in- law was  a pairokar  of a  Zamindar in  the area,  that  two sisters of his father-in-law were the kept mistresses of the Zamindar, and  the Zamindar  gave large  amounts of cash and presents most  of which were passed on to his father-in-law. At the  time of  his death,  his father-in-law entrusted his minor daughter  and son  to his care and instructed that his property should  be divided among his three children equally and that  therefore he  was holding the property merely as a custodian.      Rejecting the  plea of  the respondent  a Special Judge convicted and  sentenced him  under section  5(2) read  with section 5(1)(e) of the Act.      On appeal  a single  Judge of  the High Court acquitted him holding that the prosecution had failed to discharge the

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burden  of   disproving  all   possible   sources   of   the respondent’s income, that it was not possible to exclude the probability that  the property found in his possession could be the  property left  by his  father-in-law, and  that mere possession of  assets disproportionate  to his known sources of income  would not  be sufficient  to bring home the guilt under  section   5(1)(e)  unless   the  prosecution  further excluded all  possible sources of income. The High Court was also of the view that the changes brought about by the Anti- 676 Corruption Laws  (Amendment) Act,  1964 had  the  effect  of limiting the presumption of guilt arising under section 4(1) of the Act to an offence of criminal misconduct specified in section 5(1)(a) and (b) and not to that in section 5(1)(e). ^      HELD: The  construction placed  by the  High  Court  on section 5(1)(e)  was wrong  in that  it overlooked  the fact that, by  the use of the words "for which the public servant cannot satisfactorily  acquit", a  burden  is  cast  on  the accused.                                                      [680 B]      Section 5(3) which now stood deleted, did not create an offence separate  from the  one created  by section 5(1) but only raised  a presumption  of criminal  misconduct if he or any person  on his  behalf was  in possession  of  pecuniary resources or  property disproportionate to his known sources of income  which he  could not  satisfactorily account. Once the prosecution proves this fact the burden shifts on to the accused to  prove the  source of acquisition of such assets. [681 F-G]      The expression "known sources of income" in the context of the  section means  "sources known  to the  prosecution". Secondly, the  onus placed  on the accused under the section was not  to prove  his innocence beyond reasonable doubt but only  to   establish  a  preponderance  of  probability.  To eradicate the  widespread corruption  in public services the legislature  dispensed  with  the  rule  of  evidence  under section 5(3)  and made  possession by  a public  servant  of assets disproportionate  to his income as one of the species of offences  of criminal  misconduct by inserting clause (e) in section 5(1). [682 A-C]      The meaning  to be  assigned to  the expression  "known sources of  income" occurring in section 5(1)(e) must be the same as  was given to that expression in section 5(3) before its repeal,  that is, "sources known to the prosecution". So also the  same meaning must be given to the words "for which a  public  servant  is  unable  to  satisfactorily  account" occurring in section 5(1)(e). When clause (e) uses the words "if the  public servant is unable to satisfactorily account" it is  implied that  the burden is on such public servant to account for  the  sources  for  the  acquisition  of  assets disproportionate  to   his  income.   The  High  Court  was, therefore, in error in holding that a public servant charged for having  in his possession assets disproportionate to his income for  which he cannot satisfactorily account could not be convicted  of an  offence under  section 5(2)  read  with section  5(1)(e)   unless  the   prosecution  disproves  all possible sources of income. [682 D-F]      Sajjan Singh v. State of Punjab [1964] 4 S.C.R. 630 and V.D. Jhagan  v. State  of U.P. [1966] 3 S.C.R. 736, referred to.      The expression  "burden  of  proof"  has  two  distinct meanings: (1)  the legal  burden, that  is,  the  burden  of establishing the  guilt and  (2) the evidential burden, that is, the  burden of  leading  evidence.  Notwithstanding  the

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general rule  that the burden of proof lies exclusively upon the prosecution, in the case of certain offences, the burden of proving  a particular  fact in  issue may  be laid by law upon the  accused. This  burden is  not so  onerous as  that which lies  on the prosecution and is discharged by proof of a balance  of probabilities.  To substantiate  the charge of criminal misconduct  under section  5(2) read  with  section 5(1)(e) the  prosecution must prove (1) that the accused was a public servant; (2) the nature and extent of the pecuniary resources or  property in  his  possession,  (3)  his  known sources of  income, i.e.  known to the prosecution; (4) that such 677 sources or  property  were  disproportionate  to  his  known sources of  income. Once  these are established, the offence of  criminal  misconduct  under  section  5(1)(e)  would  be complete.  The   burden  then   shifts  to  the  accused  to substantially  account  for  possession  by  him  of  assets disproportionate to  his income.  The extent  and nature  of burden of  proof resting  upon the  public servant cannot be higher than  establishing his  case by  a  preponderance  of probability. [683 A-E]      In the  instant case  the  High  Court  has  placed  an impossible  burden   on  the  prosecution  to  disprove  all possible sources  of income  which were  within the  special knowledge of  the accused.  The prosecution  cannot  in  the nature of things be expected to know the affairs of a public servant  found   in  possession  of  resources  or  property disproportionate to  his known sources of income that is his salary, because  these  are  matters  specially  within  his knowledge, within the meaning of section 106 of the Evidence Act.      The phrase "burden of proof" in section 106 of Evidence Act is  clearly used in the secondary sense, namely the duty of introducing evidence. The nature and extent of the burden cast on  the accused  is well  settled. The  accused is  not bound to  prove his  innocence beyond  all reasonable doubt. All that  he need  do is  to bring  out a  preponderance  of probability. [684 B]      On the  proved circumstances  there was a preponderance of probability  that the  property found in the respondent’s house could be the property left by his father-in-law. There is overwhelming  evidence on  record that  the  respondent’s father-in-law was  a man  of affluent circumstances, being a paiorkar of  a Zamindar and that he had amassed considerable wealth, more  so because  his  two  sisters  were  the  kept mistresses of the Zamindar. On the death of the Zamindar his father-in-law  stayed   with  the   respondent.  Also,   the respondent’s  father   had  a  liquor  shop  besides  forest contracts. The  evidence led  in the  case was sufficient to create a  doubt whether  the respondent was in possession of assets disproportionate  to his  known sources of income. On the other  hand there  is preponderance  of probability that the property  in his  possession belonged not to him, but to his father-in-law. [684 D-H]

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  No. 277 of 1976.      Appeal by  special leave  from the  judgment and  order dated the  9th April,  1975 of the Bombay High Court (Nagpur Bench), Nagpur in Criminal Appeal No. 134 of 1971.      M.C. Bhandare and R.N. Poddar for the Appellant.

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    P. Govindan  Nair, K.  Ramavtar and  K.R. Choudhury for the Respondent.      The Judgment of the Court was delivered by      SEN,  J.   The  State  Government  of  Maharashtra  has preferred  this   appeal,  by  special  leave,  against  the judgment of the 678 Bombay High  Court, reversing  the judgment  and sentence of the Special  Judge, Chandrapur and acquitting the respondent of an  offence under  s. 5(2)  read with  s. 5(1)(e)  of the Prevention of  Corruption Act, 1947 (hereinafter called ’the Act’).      The respondent,  Wasudeo Ramchandra  Kaidalwar,  was  a Range Forest Officer, drawing a salary of Rs. 515 per month. On September  21, 1969,  PW 71, Patwardhan, Inspector, Anti- Corruption Bureau  under authorisation  from  the  Director, Anti-Corruption  Bureau,  Bombay,  carried  out  search  and seizure at  the residential  house of  the  respondent.  The Inspector made  a recovery  of Rs.  26,870 in  cash from  an almirah,  savings   bank  accounts   in  the  names  of  the respondent,  his   wife  and   children  totalling   to  Rs. 12,588.35, national  savings  certificates  worth  Rs.  510, postal savings  certificates worth Rs. 184.25 in the name of his daughter,  Nandini, savings bank deposits with the State Bank of  India and  the postal  savings certificates  in the name  of  his  brother-in-law,  Narayan,  amounting  to  Rs. 2,279.05, gold  and silver ornaments, household effects etc. of the  value of  Rs. 8,602.50, two sale-deeds in respect of two plots bearing Khasra Nos. 28/1K and 28/1Dh in Chandrapur purchased (1)  in the name of his wife, Smt. Sushila for Rs. 5,250 and  (2) in  the joint names of his wife, Smt. Sushila and his brother-in-law, Narayan for an amount of Rs. 21,210, papers relating  to the  building  of  a  house  at  village Gondpipri built  in the  year 1965  at a cost of Rs. 10,000. The petitioner  was accordingly  put  on  trial  for  having committed an  offence punishable  under s. 5(2) read with s. 5(1)(e) of  the Act,  being found  in possession  of  assets disproportionate to his income.      The  respondent   abjured  his  guilt  and  denied  the commission of  the offence.  He pleaded  that he was leading frugal life  and all the property found during the search of his  residential   house  belonged   to  his  father-in-law, Hanumanthu, pairokar  of Raja  Dharmarao, Zamindar  of Aheri Estate. He alleged that two of the sisters of his father-in- law were  the kept  mistresses of Raja Dharmarao and enjoyed special favours  from the late Zamindar who bestowed on them large amounts of cash, ornaments etc. They used to visit the house of  his father-in-law,  Hanumanthu, once  or  twice  a month, and  used to  keep all  their cash,  gold and  silver ornaments. Hanumanthu  owned a  grocery  shop.  He  and  his father  had   a  liquor   shop  besides   forest  contracts. Hanumanthu used  to deal  in  money  lending  business.  The respondent  alleged  that  his  father-in-law  deposited  an amount of  Rs. 30,000  in April  1957, Rs. 10,000/-in August 1957 and  Rs. 35,000 in cash and Rs. 1,000 in coins and also 23 tolas  of gold  in September,  1957 with  his wife,  Smt. Sushila. 679 He pleaded  that his father-in-law died on March 10, 1958 at his house leaving behind his son, Narayan and two daughters, Smt. Shakuntala, who on her marriage with the respondent was re-named as  Smt. Sushila,  and Smt. Sushila, his sister-in- law, minor  at that  time. He  instructed him  to divide the property into  three equal  shares among his three children. The respondent  maintained that  he was holding the property

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merely as a custodian and was not the owner thereof.      The Special  Judge, Chandrapur,  by his  judgment dated 7.6.1971, convicted  the respondent  for having committed an offence punishable under s.5(2) read with s.(5)(1)(e) of the Act inasmuch as he was found in possession of property worth Rs. 79,574.70  as against  his only  known source of income, namely, his  total salary in government service amounting to Rs. 44,000.  He held  that  the  respondent  had  failed  to account for  cash of Rs. 26,870, sale-deeds of the two plots purchased for  Rs. 5,250  and Rs.  21,210 in the name of his wife Smt.  Sushila and  the other jointly in the name of his wife and  brother-in-law, Narayan and for the house built at village Gondpipri  at a  cost of Rs. 10,000 He held that the acquisition of these immovable properties was not reasonably attributable to  the property  left  by  his  father-in-law, Hanumanthu. He  also rejected  the respondent’s plea that he was leading a frugal life and, therefore, was able to make a saving  of   Rs.  15,000   out  of  his  salary  income.  He accordingly sentenced  him to  undergo rigorous imprisonment for two  years and  to pay  a fine of Rs. 26,870. He further directed that  the two  plots at Chandrapur and the house at village  Gondpipri   be  sold   and  the  sale  proceeds  be forfeited.      On appeal, a learned Single Judge of the High Court set aside the  judgment  and  sentence  passed  by  the  learned Special Judge  and acquitted  the respondent.  The order  of acquittal was  based principally  on two  grounds:  (1)  The prosecution  having   failed  to  discharge  the  burden  of disproving all  possible sources  of income  i.e. failed  to account for  the properties left by the respondent’s father- in-law, Haumanthu,  he could  not be convicted under s. 5(2) read with  s. 5  (1)(e) of  the Act,  and  (2)  it  was  not possible to  exclude the probability that the property found in the  respondent’s house could be the property left by his father-in-law, Hanumanthu.      In coming to the conclusion that it did, the High Court was of  the view that the changes brought about by the Anti- Corruption Laws  (Amendment) Act,  1964 had  the  effect  of limiting the  presumption of  guilt arising  under s.4(1) of the Act to offences of criminal misconduct 680 specified  in   ss.5(1)(a)  and  (b)  and  not  to  that  in s.5(1)(e).  It   therefore  held  that  mere  possession  of disproportionate assets  by a  public servant  to his  known sources of  income for  which he has failed to account would not be  sufficient to bring home the guilt under s.5(1) (e), unless the prosecution further excludes all possible sources of income.  The construction placed by the High Court on the provisions contained  in s.5(1)(e)  of the  Act is obviously wrong. It  completely overlooks  the fact that the burden is cast on  the accused  by the use of the words "for which the public servant  cannot satisfactorily  account". It  is also wrong in  distorting the  meaning of  the expression  "known sources of  income" occurring  in s.  5(1)(e), which  has  a definite legal  connotation and  which, in the context, must mean "sources known to the prosecution".      It is  distressing to  find that  the  High  Court  has involved itself  into a process of evolution of a new theory of law, instead of confining itself to a re-appraisal of the evidence on  record which it was entitled to do sitting as a court of  appeal against  the judgment  of  conviction.  The order of acquittal recorded by the High Court could still be maintained on  a proper  evaluation of the facts, as, on the proved  circumstances,   there  was   a   preponderance   of probability that  the property  found  in  the  respondent’s

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house could  be the  property  left  by  his  father-in-law, Hanumanthu.      The legislature  deleted s.5(3) of Act which embodied a rule  of   evidence  by  s.6  of  the  Anti-Corruption  Laws (Amendment)  Act,   1964  and  instead,  inserted  s.5(1)(e) making, possession  of disproportionate  assets by  a public servant, a  substantive offence.  Section 5(1)(e) of the Act reads:           5.(1) A  public servant  is  said  to  commit  the      offence of criminal misconduct-           (e) if  he or  any person  on  his  behalf  is  in      possession or has, at any time during the period of his      office,  been  in  possession,  for  which  the  public      servant cannot  satisfactorily  account,  of  pecuniary      resources or  property disproportionate  to  his  known      sources of income.      Old s.5(3) of the Act was in these terms:           5.(3) In  any trial of an offence punishable under      subsection(2) the  fact that  the accused person or any      other person  on his behalf is in possession, for which      the accused 681      person  cannot  satisfactorily  account,  of  pecuniary      resources or  property disproportionate  to  his  known      sources of  income may be proved, and on such proof the      Court shall  presume, unless  the contrary  is  proved,      that  the   accused  person   if  guilty   of  criminal      misconduct in  the discharge  of his  official duty and      his conviction  therefor shall not be invalid by reason      only that it is based solely on such presumption.      Three questions  arise for  our consideration  in  this appeal, namely:  (1) Whether  a public  servant charged with having disproportionate  assets in his possession, for which he cannot  satisfactorily account, cannot be convicted of an offence under  s. 5(2) read with s.5(1)(e) of the Act unless the prosecution disproves all possible sources of his income (2) If  the prosecution establishes that a public servant is in   possession   of   pecuniary   resources   or   property disproportionate to his known sources of income, whether the burden to  disprove the  charge shifts  to  the  accused  to satisfactorily account for the source of acquisition of such resources or  property. and  if so, the nature and extent of such burden  on the  accused. (3)  Whether, on the facts and circumstances of the present case, having regard to the fact that the respondent’s father-in-law, Hanumanthu was pairokar of  Raja  Dharmarao,  Zamindar  of  Aheri  Estate  and  left substantial properties,  it  was  not  improbable  that  the properties found in possession of the respondent belonged to his father-in-law.      It is clear both on authority and principle that s.5(3) which now  stands deleted did not create an offence separate from the  one created  by s.5(1),  but intended  only to lay down a  rule of  evidence to raise a presumption of guilt in certain  circumstances.   Section  5(1)   defines  different species of  criminal misconduct  which can be committed by a public servant  and s. 5(2) provides that any public servant who commits  criminal misconduct  shall be  punishable  with imprisonment for  a term  which shall  not be  less than one year, but  which may extend to seven years and also shall be liable to  fine. Under  the old  s.5(3),  a  presumption  of criminal misconduct  could be drawn if such a public servant or any person on his behalf was found to be in possession of pecuniary resources  or  property  disproportionate  to  his known sources  of income  for which the public servant could not satisfactorily account. Once the prosecution proved that

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the accused person was possessed of disproportionate assets, the burden was shifted to the accused to prove the source of acquisition of such assets. 682      The provisions  of s.5(3) have been subject of judicial interpretation.  First  the  expression  "known  sources  of income" in the context of s.5(3) meant "sources known to the prosecution". The  other principle  is equally well-settled. The onus placed on the accused under s.5(3) was however, not to prove  his innocence beyond reasonable doubt, but only to establish a  preponderance of  probability. These  are well- settled principles:  C.S.D. Swamy  v. The State Sajjan Singh v. State  of Punjab  and V.D.  Jhagan v.  State of  U.P. The legislature thought  it fit  to dispense  with the  rule  of evidence  under   s.  5(3)   and  make   the  possession  of disproportionate assets  by a  public servant  as one of the species of  the offence  of criminal misconduct by inserting s. 5(1)(e) due to widespread corruption in public services.      The terms  and expressions  appearing in  s. 5(1)(e) of the Act  are the same as those used in the old Section 5(3). Although the two provisions operate in two different fields, the meaning  to be  assigned to  them must  be the same. The expression "known sources of income" means "sources known to the prosecution".  So also the same meaning must be given to the words  "for  which  the  public  servant  is  unable  to satisfactorily account"  occurring in  s. 5(1)(e). No doubt, s. 4(1)  provides for  presumption of guilt in cases falling under ss. 5(1)(a) and (b), but there was, in our opinion, no need to  mention s.  5(1)(a) therein.  For,  the  reason  is obvious. The  provision contained in s.5(1)(e) of the Act is a self-contained  provision. The  first part  of the Section casts a  burden on  the prosecution  and the  second on  the accused. When  s. 5(1)(e)  uses the  words  "for  which  the public servant  is unable  to satisfactorily account", it is implied that the burden is on such public servant to account for the  sources for  the  acquisition  of  disproportionate assets. The  High Court,  therefore, was in error in holding that a  public servant  charged for  having disproportionate assets in  his possession for which he cannot satisfactorily account, cannot  be convicted  of an  offence under  s. 5(2) read with  s.5(1)(e)  of  the  Act  unless  the  prosecution disproves all possible sources of income.      That takes  us to  the difficult  question  as  to  the nature and  extent of the burden of proof under s. 5 (1) (e) of the  Act.  The  expression  ’burden  of  proof’  has  two distinct meanings  (1) the  legal burden. i.e. the burden of establishing the guilt, and (2) the 683 evidential burden, i.e. the burden of leading evidence. In a criminal trial,  the burden  of proving everything essential to establish  the charge  against the  accused lies upon the prosecution, and  that burden  never shifts. Notwithstanding the general  rule that  the burden of proof lies exclusively upon the  prosecution, in  the case of certain offences, the burden of  proving a particular fact in issue may be laid by law upon  the accused.  The burden resting on the accused in such cases is, however, not so onerous as that which lies on the prosecution  and is  discharged by proof of a balance of probabilities. The  ingredients of  the offence  of criminal misconduct  under  s.  5(2)  read  with  s.5(1)(e)  are  the possession    of    pecuniary    resources    or    property disproportionate to  the known  sources of  income for which the  public   servant  cannot   satisfactorily  account.  To substantiate the  charge, the  prosecution  must  prove  the following facts before it can bring a case under s. 5(1)(e),

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namely, (1)  it must  establish that the accused is a public servant,  (2)   the  nature  and  extent  of  the  pecuniary resources or  property which  were found  in his possession, (3) it  must be  proved as to what were his known sources of income i.e.  known to the prosecution, and (4) it must prove quite objectively,  that such resources or property found in possession of the accused were disproportionate to his known sources  of   income.  Once   these  four   ingredients  are established, the  offence of  criminal misconduct  under  s. 5(1)(e) is  complete, unless  the accused is able to account for such  resources or  property. The  burden then shifts to the accused  to satisfactorily account for his possession of disproportionate assets.  The extent and nature of burden of proof resting  upon  the  public  servant  to  be  found  in possession  of  disproportionate  assets  under  s.  5(1)(e) cannot be higher than the test laid by the Court in Jahgan’s case (supra),  i.e. to establish his case by a preponderance of probability.  That  test  was  laid  down  by  the  court following the dictum of Viscount Sankey, L.C. in Woolmington v. Director  of Public  Prosecutions.  The  High  Court  has placed an  impossible burden  on the prosecution to disprove all possible sources of income which were within the special knowledge of  the accused.  As laid  down  in  Swamy’s  case (supra), the  prosecution cannot,  in  the  very  nature  of things, be  expected to know the affairs of a public servant found   in    possession   of    resources    or    property disproportionate to  his known  sources of  income i.e.  his salary. Those will be matters specially within the knowledge of the  public servant  within the  meaning of  s.106 of the Evidence Act, 1872. Section 106 reads: 684           s. 106.  when any  fact is  especially within  the      knowledge of  any person,  the burden  of proving  that      fact is upon him. In this  connection, the  phrase  the  burden  of  proof  is clearly used  in the  secondary sense  namely. the  duty  of introducing evidence.  The nature  and extent  of the burden cast on  the accused  is well  settled. The  accused is  not bound to  prove his  innocence beyond  all reasonable doubt. All that  he need  do is  to bring  out a  preponderance  of probability.      Such being  the law,  the question  whether or  not the respondent had established a preponderance of probability is a  matter   relating  to  appreciation  of  evidence.  On  a consideration of the evidence adduced by the respondent, the High Court  has taken  the view  that it  is not possible to exclude  the   possibility  that   the  property   found  in possession of  the respondent belonged to his father-in-law, Hanumanthu. We  have been  taken through the evidence and we cannot say  that the  finding reached  by the  High Court is either manifestly wrong or perverse. Maybe, this Court, on a reappraisal of  the evidence,  could have come to a contrary conclusion.  That,   however,  is   hardly  a   ground   for interference with  an  order  of  acquittal.  There  are  no compelling reasons to interfere with the order of acquittal, particularly when  there is overwhelming evidence led by the respondent showing that his father-in-law, Hanumanthu, was a man of affluent circumstances. There is no denying fact that Hanumantha was  the pairokar  of Raja  Dharmarao Zamindar of Aheri Estate and by his close association with the Zamindar, had amassed considerable wealth. More so, because two of his sisters were  the kept  mistresses of the Zamindar and amply provided for.      It appears  that after  the death  of  Raja  Dharmarao, Hanumanthu took  up his  residence with  his elder daughter,

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Smt.  Sushila,   who  was  married  to  the  respondent.  To substantiate his plea in defence, the respondent examined as many as 12 witnesses including himself as AW 12, his sister- in-law, Smt.  Sushila (AW 11), Dr. Chandrasekhar Merekar (AW 6), Shri  V.N. Swamy, Advocate, Chandrapur (AW 8). We cannot brush aside  the unimpeachable testimony of Shri V.N. Swamy, AW 8, who was a leading advocate of Chandrapur and Member of Lok Sabha,  and Dr.  Chandrasekhar Merekar,  AW  6,  Medical Practitioner of  Chandrapur, who  attended on  Hanumanthu at the  time   of  his   death.  Both   these  witnesses   have unequivocally  stated  that  when  Hanumanthu  died  at  the respondents leaving his two minor children, Smt. Sushila and Narayan to  the care  of the  respondent and  his wife, Smt. Sushila, he told them that he 685 was  leaving   properties  worth   Rs.  70  to  80  thousand comprising cash  ornaments, jewellery  etc., and expressed a desire that  the same  be divided  equally among,  his three children, the two daughters and son. Shri Swamy testified to the fact  that he  was handling  all the  litigation of Raja Dharamrao, Zamindar of Aheri Estate who had an yearly income of Rs.  6 to  8 lakhs because the Zamindar had rich forests. He tells  us that he knew Hanumanthu well because he was the pairokar of  Raja Dharmarao,  that Hanumanthu  enjoyed great confidence of  the Zamindar  and  had  free  access  to  him because his  two sisters  were the  kept mistresses  of  the Zamindar. His  evidence shows  that  the  ladies  were  well provided for  and whenever they visited Hanumanthu they used to hand  over their cash, ornaments and jewellery to him for safe custody.  His evidence also shows that Hanumanthu was a man of  affluence and  that he  and his  father had a liquor shop besides  forest contracts. Hanumanthu also used to deal in money-lending business. The respondent has also placed on record documents  showing  that  Hanumanthu  was  a  man  of substantial  means.   To  add   to  the  difficulty  of  the prosecution, Smt.  Sushila,  AW  11,  sister-in-law  of  the respondent has  come  and  deposed  that  all  the  property belonged to her father.      All this evidence is sufficient to create a doubt as to whether the respondent was in possession of disproportionate assets. There  is certainly  a preponderance  of probability that the  property found in the possession of the respondent did not  belong to  him but  belonged to  his father-in-law, Hanumanthu.      The result, therefore, is that the appeal must fail and is accordingly dismissed. P.B.R.                                     Appeal dismissed. 686