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PETITIONER: HANUMANT

       Vs.

RESPONDENT: THE STATE OF MADHYA PRADESH.RAOJIBHAITHE STATE OF MADHYA PRA

DATE OF JUDGMENT: 23/01/1952

BENCH: GUPTA, A.C. BENCH: GUPTA, A.C. BEG, M. HAMEEDULLAH CHANDRACHUD, Y.V.

CITATION:  1975 AIR 1083

ACT:     Criminal trial--Circumstantial evidence--Sufficiency  of evidence  for conviction--Caution against basing  conviction on guess or suspicion--Admission--Must be taken as a whole.

HEADNOTE:    In dealing with circumstantial evidence there is  always the  danger that conjecture or suspicion may take the  place of  legal proof. It is therefore right to remember  that  in cases where the evidence is of a circumstantial nature,  the circumstances  from which the conclusion of guilt is  to  be drawn should in the first instance be fully established  and all the facts so established should be consistent only  with the  hypothesis  of the guilt of the  accused.   Again,  the circumstances should be of a conclusive nature and tendency, and  they should be such as to exclude every hypothesis  but the  one proposed to be proved.  In other words, there  must be  a chain of evidence so far complete as not to leave  any reasonable  ground  for  a conclusion  consistent  with  the innocence of the accused and it must be such as to show that within all human probability the act must have been done  by the accused. Reg. v. Hodge [(1838) 2 Lew. 227] referred to.     An  admission  made by a person whether amounting  to  a confession  or  not cannot be split up and part of  it  used against  him.  It must be used either as a whole or  not  at all.

JUDGMENT: CRIMINAL   APPELLATE  JURISDICTION:  Criminal Appeal No.  56 of 1951.     Appeals  by  special leave from the Judgment  and  Order dated  the 9th March, 1950, of the High Court of  Judicature at  Nagpur (C. R. Hemeon J.) in Criminal Revisions Nos.  152 and 153 of 1949 arising out of Judgment and Order dated  the 24th  March, 1949, of the Court of the Sessions Judge,  Nag- pur, in Criminal Appeals Nos. 26 and 27 of 1949 and Judgment and Order dated the 15th January, 1949, of the Court of  the Special Magistrate, Nagpur, in Criminal Case No. 1 of 1948.

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1092     N.C.  Chatterjee (B. Bannerjee and A.K. Dart, with  him) for the appellant in Criminal Appeal No. 56 of 1951.     Bakshi Tek Chand(K. V. Tarnbay, with him) for the appel- lant in Criminal Appeal No. 57 of 1951.     T.L.  Shivde, Advocate-General of Madhya Pradesh (T.  P. Naik, with him) for the respondent.     1952. Sept. 23.  The Judgment of the Court was delivered by     MAHAJAN  J.-- This is a consolidated appeal  by  special leave from the two orders of the High Court of Judicature at Nagpur passed on the 9th March, 1950, in Criminal  Revisions Nos. 152 and 153 of 1949.     On a complaint filed by the Assistant Inspector  General of  Police,  Anti-Corruption  Department, Nagpur, the appel- lant  in Criminal Appeal No. 56 of 1951  (H. G.  Nargundkar, Excise  Commissioner, Madhya  Pradesh), and the appellant in Criminal  Appeal No. 57 of 1951 (R.S. Patel) were  tried  in the  court of Shri B.K. Chaudhri, Special  Magistrate,  Nag- pur, for the offence of conspiracy to secure the contract of Seoni Distillery from April, 1947, to March 1951 by  forging the tender, Exhibit P-3A, and for commission of the offences of  forgery  of  the tender (Exhibit P-3A)  and  of  another document,  Exhibit  P-24.  The  learned  Special  Magistrate convicted both the appellants on all the three charges.   He sentenced  R.S. Patel to rigorous imprisonment for one  year under each charge and to pay fines of Rs. 2,000, Rs.  2,000, and  Rs.  1,000, under the first, second and  third  charges respectively.  The  appellant  Nargundkar was  sentenced  to rigorous  imprisonment for six months under each charge  and to  pay fines of Rs. 2,000, Rs. 2,000 and Rs. 1.,000,  under the  first, second and third charges respectively.  Each  of the appellants appealed against their respective convictions and  sentences to the Court of the Sessions  Judge,  Nagpur. The  learned Sessions Judge quashed the conviction  of  both the appellants under the first charge of criminal conspiracy under section  120-B, I.P.C.,  but maintained the 1093 convictions  and sentences under section 465, I.P.C. or  the charges  of  forging  Exhibits P-3 (A) and  P-24.  Both  the appellants went up in revision against this decision to  the High Court but without any success.  An application was then made  under  article 136 of the Constitution  of  India  for special  leave to appeal and this was allowed by this  Court on 24th March, 1950     The  appellant, Nargundkar, is a member of  the  Central Provinces  & Berar Provincial Service and held the  substan- tive  post  of Deputy Commissioner  for  several  years.  In April,  1946, he was appointed Excise  Commissioner.  Madhya Pradesh,  and  continued to hold that office  till  the  5th September, ’1947.     The  appellant, R.S. Patel, is a sugar Technologist  and Chemical Engineer.  He received his technical education  and practical  training  in America and after working  as  Chief Chemist and General Manager in factories in Madras for  five years,  came  to  the Central Provinces in  1944,  when  the Provincial  Government gave him a licence to set up  a  dis- tillery for the manufacture of industrial spirit.     On the 11th September, 1946, Nargundkar in his  capacity as  Excise  Commissioner  invited tenders  for  working  the Government  distillery  at  Seoni and  supplying  spirit  to certain specified districts f or a period of four years from 1st  April,  1947, to 31st March, 1951. The  last  date  for submitting  the  tenders  was the 31st  October,  1946.   In response  to  this tender notice, five  tenders  were  filed

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including those filed by (1) appellant, R.S. Patel, (2) K.B. Habibur  Rahman,  (3).  Zakirur Rahman, and  (4)  Edulji  V. Doongaji (P. W. 4), in sealed covers with the Excise Commis- sioner  on the 31st October, 1946, and he handed  them  over with  the seals intact to the office superintende. nt,  S.W. Gadgil  (P. w. 13), for safe custody.  Gadgil took  them  to his  room  and kept them under lock and key  in  the  office safe.      The case for the prosecution is that on the 9th  Novem- ber,  1946,  accused Nargundkar  took these  sealed  tenders home, that the tenders were opened by him at his house, that the rates of the tender (Exhibit 1094 P-6)  of E.J. Doongaji (P. W. 4) were divulged to accused  2 (R. S. Patel), who was allowed to substitute another  tender (Exhibit  P-3A),   containing   rates lower  than  those  of Doongaji, that thereafter these open tenders were brought to the office on the 11th November, 1946, and given to Amarnath (P.W. 20) who was the Assistant Commissioner of Excise,  for submitting  a report and that on the recommendation of  Nar- gundkar   the  tender of accused 2 (Patel) was accepted  and the contract was given to him.  In May, 1947, on receipt  of an application (Exhibit P- 1) from one Dilbagrai (P. W. 14), enquiries  were started by the  Anti-Corruption  Department. Both  the accused became aware of the enquiry.  In order  to create evidence in their favour they brought into  existence a letter  (Exhibit P-24) and antedated it to 20th  November, 1946.   This document was forged with the intention of  com- mitting fraud and of causing injury to Amarnath  (P. W.  20) and  also to  Doongaji (P.W. 4). Exhibit P-24 is alleged  to have  been typed on a typewriter (Article A) which was  pur- chased on the 30th December, 1946, by the National Industri- al  Alcohol  Co.,  Nagpur, of which accused  Patel  was  the managing director.  It Was further alleged that the endorse- ment  made by accused 1 (Nargundkar) in the said letter  "No action seems necessary.  File", and marked to Superintendent "S"  was not made on the 21st November, 1946, which date  it bears.  This  letter  was handed over by accused  1  to  the Office  Superintendent,  S.W.  Gadgil (P.W.  13)  about  the middle  of  August, 1947, and thereafter accused I  wrote  a letter  (Exhibit  P. 26), on the 2nd October, 1947,  to  Sri S.  Sanyal (P.W. 19) who was then the  Excise  Commissioner, requesting that this letter (Exhibit P-24) and a note  sheet (Exhibit P-27)  be kept in sale custody.     Both  the accused denied the commission of the  offences of  criminal  conspiracy,  forgery  and   abetment  thereof. Nargundkar  denied having attended office on the 9th  Novem- ber,  1946.  He denied having taken the tenders  home.   Ac- cording  to  him,   the tenders were opened by  him  in  the office on the 1095 11th  November, 1946.  Accused 2 denied that the  tender  of Doongaji  was shown to him by accused 1 between the 9th  and 11th  November, 1946. He stated that the tender (Exhibit  P- 3A)  was  the original tender submitted by him on  the  31st October,  1946. As regards Exhibit P-24, it was denied  that it was fabricated or antedated. Accused 2 stated that it was not typed on article A. He also alleged that the allegations made  in  Exhibit  P-24 were  correct.   Accused  Nargundkar stated  that  the endorsement was made by him  on  the  21st November,  1946.   The first charge having  failed,  nothing need be said about it herein.     In order to prove the second charge the prosecution  had to  establish that Gadgil, P.W. 13, handed over  the  sealed tenders  on the 9th November, 1946, to  accused  Nargundkar,

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that the latter took them home, that between the 9th and the 11th  November  he met Patel at his house or  elsewhere  and that accused. Nargundkar showed or communicated the particu- lars of the tender of Doongaji to accused Patel who  substi- tuted  Exhibit P-3A for his original tender before the  11th November,  1946. Admittedly there is no direct  evidence  to prove  any  of  these facts except the first  one,  and  the nature  of the case is such that recourse could only be  had to  circumstantial evidence to establish those  facts.   The fact  that the sealed tenders were handed over by Gadgil  to accused Nargundkar on the 9th November has been held  proved solely on the uncorroborated testimony of Gadgil as  against the  denial of Nargundkar. Gadgil was himself a  suspect  in the case. He was kept by the police away from the office for about eight months during the investigation, he was asked to proceed on leave at the instance of the police and his leave was extended at their request. On the expiry of his leave he was kept off duty without salary for a period of about  five months but later on he was paid his full salary after he had given evidence in support of the prosecution. He made  addi- tions  and improvements on vital points from stage to  stage of  his deposition and in certain particulars his  statement was contradicted by Ramaswami, P.W. 80. On his own admission he is an accomplice in respect 1096 of  the forgery of Exhibit P-27, one of the   documents  al- leged  to have been forged for purposes of the  defence  but concerning  which no prosecution was started.  Exhibit  P-27 bears date 31st October, 1946.  Gadgil’s statement about  it is as follows:     "He  (Nargundkar)  put down his signature and  the  date 31st  October, 1946. This order was actually written by  Sh. Nargundkar in the note-sheet, Exhibit P-27, in the month  of July  or  August,  1947. The dates were  antedated.  In  the margin of the note sheet I have put down my initials  S.W.G. and  put the date 31st October, 1946.  This  note-sheet  was not prepared on gist October, 1946.  He asked me to keep  it in my custody."     The witness admittedly became a party to the preparation of a forged document.  Whether he was telling the truth,  or he  was  telling a lie, as appears likely  from  his  cross- examination, he is in either event, not a person on whom any reliance could be placed. It is curious that this aspect  of the  evidence of Gadgil has not been noticed by any  of  the three courts below.     When the court of first instance and the court of appeal arrive  at concurrent findings of fact after  believing  the evidence  of a witness, this court as the final  court  does not  disturb such findings, save in most exceptional  cases. But  where a finding of fact is arrived at on the  testimony of a witness of the character of Gadgil and the courts below depart from the rule of prudence that such testimony  should not  be  accepted unless it is corroborated  by  some  other evidence  on the record, a finding of that character in  the circumstances of a particular case may well be reviewed even on  special  leave if the other circumstances  in  the  ease require it, and substantial and grave injustice has  result- ed.   After  fully examining the material on the  record  we have  reached the conclusion that the courts below  were  in error in accepting the uncorroborated testimony of Gadgil to find the fact that he handed over the  tenders  to  Nargund- kar on  the 9th November, 1946.  The witness was not allowed to live in a free atmosphere and was kept under police 1097 surveillance during the whole of the period of investigation

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and  the  trial and was rewarded with payment  of  his  full salary  after he had given evidence to the  satisfaction  of the  prosecution.  He is a person who felt no hesitation  in deposing  on  oath that he willingly became a party  to  the forgery of Exhibit 13-27.     Assuming  that  the  accused Nargundkar  had  taken  the tenders to his house, the prosecution, in order to bring the guilt home to the accused, has yet to prove the other  facts referred to above. No direct’ evidence was adduced in  proof of those facts.  Reliance was placed by the prosecution  and by the courts below on certain circumstances, and  intrinsic evidence  contained in the impugned document, Exhibit  P-3A. In dealing with circumstantial evidence the rules  specially applicable  to such evidence must be borne in mind. In  such cases  there is always the danger that conjecture or  suspi- cion  may take the place of legal proof and therefore it  is right  to recall the warning addressed by Baron Alderson  to the jury in Reg v. Hodge (1) where he said :--     "The mind was apt to take a pleasure in adapting circum- stances to one another, and even in straining them a little, if  need  be, to force them to form parts of  one  connected whole;  and the more ingenious the mind of  the  individual, the  more likely was it, considering such matters, to  over- reach  and mislead itself, to supply some little  link  that ’is  wanting, to take for granted some fact consistent  with its   previous  theories  and  necessary  to   render   them complete." It  is well to remember that in cases where the evidence  is of a circumstantial nature,the circumstances from which  the conclusion  of  guilt  is to be drawn should  in  the  first instance  be fully established, and all the facts so  estab- lished should be consistent only with the hypothesis of  the guilt of the accused. Again, the circumstances should be  of a conclusive nature and tendency and they should be such  as to  exclude  every  hypothesis but the one  proposed  to  be proved. In (1) (1838) 2 Lew. 227. 141 1098 other  words, there must be a chain of evidence so far  com- plete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must  be such  as to show that within all human probability  the  act must have been done by the accused.  In spite  of the force- ful arguments addressed to us by the learned Advocate-Gener- al on behalf of the State we have not been able to  discover any  such evidence either intrinsic within Exhibit  P-3A  or ,outside  and we are constrained to observe that the  courts below have just fallen into the error against which  warning was uttered by Baron Alderson in the above mentioned case.     The trial magistrate was of the opinion that  friendship between the two accused was of a very rapid growth and  that their  relations were very intimate and accused 2 was  in  a position  to influence accused 1. He thus found  that  there was  motive  for the commission of the crime.   The  learned Sessions  Judge  disagreed with this finding  and  the  High Court  agreed  with  the Sessions Judge on  this  point.  It observed that the evidence which tended to prove  friendship or  undue  favour was not such as to form the  basis  for  a finding.   It further found that there was nothing  to  show that the appellant Nargundkar received any illegal reward or the promise of one for showing Doongaji’s tender to  accused R.S. Patel.  The first circumstance therefore  on which  the trial  Judge placed considerable reliance was  negatived  by the  court of appeal and in revision. It having  been  found

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that  there was no motive whatsoever for accused  Nargundkar to  show the tenders to accused Patel and to take a  substi- tuted tender from him, the main link in the chain of reason- ing  of the trial court vanishes. Amiable relations  between the two accused or their official relationship could not  be regarded  as sufficient motive for committing the  crime  of forgery.     The  mainstay of the prosecution case is  the  intrinsic evidence  of the contents of Exhibit P-3A itself  which  ac- cording  to  the  courts below  are  unusual,  peculiar  and strange  and which according to the Advocate  General  could not be there if it was a genune 1099 document.  The argument would have force provided the  prem- ises  on which it is based are correct. Having examined  the contents  of  Exhibit  P-3A, we do not  find  anything  very unusual  or  extraordinary in it which could  not  be  there without its author having seen Exhibit P-6. We now proceed to examine the so-called peculiar features in Exhibit P-3A.  In order to appreciate the points made by the learned Advocate-General it is necessary to set out  certain facts.   Exhibit P-9 is the notice calling for  tenders  for the  supply of country spirit in the Seoni distillery  area. The  rates  which  were called for by this  notice  were  as follows: 1. Flat rate for four years. 2. Rates on sliding scale for four years. 3.   All-in-rate   on  the  sliding  scale  for   one   year 1947-48. 4. Flat rates on the basis of the price of mahua flowers for three years 1948-51. 5. All-in-sliding scale rate on the basis of the price of mahua flowers for three years 1948-51. The  trial magistrate held on a construction of it  that  no rate  or  rates  of separate years were asked  for  in  this notice  and that one flat rate was only asked for, for  four years.  Habibur Rahman and Zakirur Rahman in their  tenders, Exhibits  P-4 and P-5, quoted one flat rate for  four  years and did not mention separate flat rates for separate  years. Doongaji  in  his tender,  Exhibit P-6,  mentioned  separate flat  rates for each separate year also.  He did so  because he  consulted  one  Mr. Munshi, Personal  Assistant  to  the Excise  Commissioner,  whether  he should  quote  each  rate separately  and Mr. Munshi told him that he could give  flat rate  for the combined years as well as flat rates and  also sliding  scale rates for each year  separately.   Admittedly accused 2 was working as an agent of Habibur Rahman and  his son Zakirur Rahman for the distillery contracts of Betul and Seoni, and, therefore, he must have been the author not only of  his own tender but of the tenders submitted  by  Habibur Rahman and Zakirur Rahman, Exhibits 1100 P-4  and  P-5.  All of them were acting  together  with  the object  of getting the contract though they were  submitting three  separate tenders.  The trial magistrate held that  as Habibur  Rahman  and Zakirur Rahman gave one flat  rate  for four years as called for by Exhibit P-9, but accused 2,  the author of all these tenders, did not do it in Exhibit  P-3A, but  followed the method of Doongaji in giving the rates  of each  year separately as well as the rate for  the  combined four years. lie must have done so as he was shown the tender Exhibit  P-S.  The question arises whether the  circumstance that  the  accused  Patel and Habibur  Rahrnan  and  Zakirur Rahman were acting together was such from which a  necessary inference arises that the accused Patel must have  been  the

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author  of all the three  tenders and, if he were,  that  he could  not have departed from the method adopted by  him  in preparing Exhibits P-4 and P-5 unless and until he had  seen Exhibit P-6.  We are clearly  of the opinion  that from  the premises  stated this inference does not necessarily follow. Doongaji  even after reading Exhibit P-9, could not make  up his mind whether to submit the tender with one flat rate for all  the four years or whether to submit it by giving  sepa- rate flat rates for each of the four years and made  enquiry from  the office of the Excise Commissioner and then  quoted separate  rates for each of the four years separately  also. Patel who has admittedly considerable experience of distill- ery  contracts  and about the method of  submitting  tenders might  very  well have thought that it was best to  quote  a flat rate for all the years as well as a flat rate for  each year  separately. The circumstance that he did not do so  in the  other two tenders prepared by him does  not  materially advance the prosecution case.  The very object of submitting several tenders on behalf of three persons acting in  unison was  to  indicate to the excise authorities that  they  were being submitted by three different  persons.  If there  were no  variations whatsoever between those tenders  that  would have  defeated the very purpose of submitting  them.   More- over,  a variation of this trifling nature between  Exhibits P-3A and P-4 1101 and  P-5 cannot be said to be of such an unusual or of  such an extraordinary character as to warrant the inference  that it  could  not have been made except without a look  at  the tender of Doongaji. The circumstance is of a neutral charac- ter and the trial magistrate and the learned Sessions  Judge gave  undue importance to it, being obsessed with  the  idea that such a quotation of flat rates for each year could  not be  mentioned in a tender by a contractor merely on  a  con- struction of Exhibit P-9 and without any further inquiry  or without seeing the tender of somebody else who had  followed that method.     The next circumstance on which considerable reliance  is placed  is that accused 2 studiously maintained rates  below the rates of Doongaji throughout, that when Doongaji lowered his  rates for the second year accused 2 did the  same,  and when  Doongaji  raised his rates for the  third  and  fourth years  accused 2 also did so, at the same  time  maintaining rates  lower  than  Doongaji’s rates. It is  said  that  the system  followed  by Habibur Rahman and Zakirur  Rahman  and Patel  originally must have been the same as Patel  was  the author of all the three tenders, that Habibur  Rahman’srates were  higher  than  Zakirur Rahman’s by six  pies  and  this variation was constant throughout, that in Patel’s  original tender  which must have followed the same system  his  rates would be lower than Habibur Rahman’s by three pies  through- out.  Exhibit  P-3A,  however, shows that this  is  not  so. Patel  abandoned  the system  when  he found that his  rates on his original scheme would be higher than the  correspond- ing  rates of Doongaji.  Learned Advocate General  contended that it was impossible for Patel unless he had seen  Exhibit P-6,  to  quote rates of a large number of  items  numbering about  197,  in  every case lower than the  rates  given  in Exhibit  P-6 and the circumstance that in not a single  case he  has quoted a higher rate than Exhibit P-6 is  conclusive of  the fact that he had done so after he had  seen  Exhibit P-6. It was also said that there is no satisfactory explana- tion why Patel abandoned the scheme adopted by him in 1102 drawing up Exhibits P-4 and P-5 and his original tender.

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   In  our view, this circumstance again is not so  strange or peculiar as was made out by the learned  Advocate-General or  in  the courts below.  In the first place, there  is  no material  whatsoever for the assumption that  the  so-called original tender was drawn up on the same scheme as  Exhibits P-4 and P-5 or that there was a constant variation in  rates between it and Habibur Rahman’s tender.  It has been assumed on  mere  surmise that the first five rates in  the  tender, Exhibit P-3A, are the rates that had been originally quoted. The  original  tender  is not forthcoming and  there  is  no evidence at all about its contents.  Moreover, in the  depo- sition  of  Doongaji it was elicited that in the  year  1942 when  tenders for the Seoni distillery contract were  called for, the rates quoted by Ratanshah were lower than his rates for all items. He, however, voluntarily added that Ratanshah obtained  his  rates  of the previous  contracts  before  he submitted his tender for the year 1942 and that he had  made a reduction of annas two to three in those rates but he  was forced to admit that the rate of Ratanshah in the tender was not  only lower than his but was also lower throughout  than the  rates of Laxminarain, Haji Ismail and  Habibur   Rahman even without seeing their tenders. From this statement it is quite clear that even without seeing the tenders of  differ- ent  tenderers a contractor may quote rock-bottom  rates  of all  items on his own calculation or impelled by the  desire of  taking the contract anyhow.  We do not follow why  Patel could  not  do  in 1946 what was done by  Ratanshah  in  his tenders in 1942 and quote rates lower in all particulars and regarding all items than the rates of Doongaji.  If a person is out to give rockbottom rates and his calculation is  such that  his rates work out lower than the rates of others,  it may well be that he may quote lower rates in respect of  all items.     It  was  then said that Patel had adopted  a  particular plan  in submitting the three tenders, of  himself,  Habibur Rahman  and  Zakirur Rahman and that his plan was  that  his rates should be less by three pies 1103 than the rates he had quoted for Habibur Rahman, that in the first  five items of Exhibit 145 he stuck to that  plan  and did not alter the rates of those items as originally submit- ted  by  him, as those rates were lower than  the  rates  of Doongaji but from the sixth item onwards he substituted  new rates  for the ones he had originally submitted and  he  de- parted from the plan so that his rates for each item were to be  lower only by three pies as compared with the  rates  of Habibur  Rahman.   It is no doubt true that  Patel  did  not adhere  to the plan that he adopted in the first five  items of   his tender but is that  a circumstance from  which  any inference can be drawn that the first five items are a  part of  his original tender or that he did so depart  from  them because  he had seen Exhibit P-6 and he wanted  to  underbid Doongaji. As we have already said, the object of  submitting three separate tenders ostensibly by persons who were acting together was to secure the contract in one or the other name and Patel who was the author of all the three documents  may very well in his own document have quoted much lower figures than  were quoted by Habibur Rahman  and Zakirur Rahman,  in order also to give the impression that all these tenders had not  been submitted by one and the same person.  Be that  as it may, a closer examination of the tenders of Doongaji  and Patel   completely   negatives   the theory  of  the  courts below.    The   rates   quoted in the first  five  items  of Exhibit  P-145 are lower than the rates of Doongaji by  102, 69, 18, 12 and 9 pies respectively.  Even in the  subsequent

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quotations  except  in one case where the disparity  in  the tales of Doongaji and Patel is only two pies, the  disparity in  the  rates is from 9 to 11 pies.  Patel is  certainly  a businessman and the whole object of quoting the rates was to earn  the  maximum  profit.  If he had seen  the  tender  of Doongaji  he would have modelled the rates in a manner  that would  give  him the highest profit. The  learned  Advocate- General  could not suggest any reason whatsoever  why  Patel would  maintain his quotation  for  the quantity  of  50,000 gallons  at  Rs, 2-10-6 when the rate of  Doongaji  was  Rs. 3-3-0 1104 He  could easily raise the quotation to Rs. 3 and  similarly in  all other cases he could have underbid Doongaji by 2,  3 or  6 pies at the most.  He need not have maintained a  dis- parity   of 9 to 11 pies  between his rates  and  the  rates of  Doongaji.  In  our opinion, therefore, no conclusion  of any character could be drawn from the disparity in the rates of Doongaji or of Patel or of the expected uniformity in the rates of Habibur Rahman or of R.S. Patel which would  estab- lish that Exhibit P-3A had been prepared by having a look at Exhibit P-6.     Another  circumstance on which reliance was  placed  was that certain rates in Exhibit P-3A are lower than the corre- sponding  rates  in  Exhibit P-6 by only one  or  two  pies. There  is  no doubt that one or two rates are lower  by  two pies than the rates in Exhibit P-6 but nothing follows  from that  innocent circumstance, unless one starts with  a  pre- sumption  of guilt.  Once it is assumed that the  tender  of Doongaji  was shown to Patel, all these circumstances  might to some extent fit in with the view that in certain respects it  may have been copied from Exhibit P-6. The courts  below fell  into this error and departed from the rule that  in  a criminal case an accused person is to be presumed     to  be innocent and that it is for the prosecution to establish his guilt conclusively.   Next  it  was  urged that in the covering  letter  Exhibit P-3 sent by Patel he mentions three appendices numbered 1, 2 and  3,  The  same expression finds place  in  the  covering letter  Exhibit  P-4 of Habibur Rahman and  Exhibit  P˜5  of Zakirur  Rahman,  that appendices 1 to a of  the  tender  of Habibur  Rahman and Zakirur Rahman correctly answer  to  the reference  in  the covering letters but this is  not  so  in Patel’s  case;  on the other hand, instead  of  appendix  1, Patel  has  appendix 1 (a) and 1 (b) and the number  of  his appendices  thus  goes up to four and  this  departure  from Exhibits  P-4 and P-5 came about because of his having  seen Exhibit P-6 and the number of appendices annexed to it.   It was  urged  that  the original tender of  Patel   must  have contained three appendices  like  those  of  Habibur  Rahman and 1105 Zakirur  Rahman and not appendix l(a) and l(b) as now  found and  that  this  circumstance  showed  substitution  of  the ’tender.  The learned magistrate, in our opinion, in  giving importance to this circumstance  mislead himself completely. In  the  first place,  it is not accurate to  say  that  the expression  appendices 1, 2 and 3 was common to the covering letters   Exhibts P-4  and P-5.  In Exhibit P-5  the  appen- dices  are marked A, B and C. Therefore, no  uniform  method was  adopted by Patel in marking the appendices to the  ten- ders, Exhibits P-4 and P-5.  Secondly, there is no  conflict in  the expression of the appendices of Habibur  Rahman  and Patel. They have been marked as 1, 2 and 3 and a mere subdi- vision  of the first appendix into (a) and (b) could not  be

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taken  to  be  a departure from the method  adopted  in  the description  of the appendices.  It may further be  observed that  the  covering  letter signed by  Patel  mentions  four appendices, while the covering letters of Habibur and  Zaki- rur Rahman only mention three appendices.  The trial  magis- trate  as well as the Sessions Judge ignored all these  dif- ferences in the method of the description of the  appendices and assumed that they had been uniformly described. The  result therefore is that all these  so-called  peculiar features found by the courts below in Exhibit P-3A should be eliminated from consideration and it must be held that there are really no circumstances  inconsistent  with  Exhibit  P- 3A  being a genuine document.  It could have been  made  out without  looking at Exhibit P-6. In this  view of  the  case the  whole basis on which the judgments of the courts  below are founded vanishes,  and in the absence of any evidence of motive, we are of the opinion that the facts did not on  any just  or  legal view of them warrant a conviction,  and  al- though  the proceedings are taken to have been  unobjection- able  in form, justice has gravely and  injuriously  miscar- ried.  We  therefore set aside the conviction  of  both  the appellants   on   the  second  charge   and   acquit   them, 142 1106 In order to appreciate the third charge, it is necessary  to set  out  the  terms of Exhibit P-24 which it  is  said  was antedated in order to create evidence for the defence of the accused and to injure Amarnath. It is in these terms:       Congress Nagar, Nagpur, 20th November, 1946. The Commissioner of Excise, C.P. & Berar, Nagpur. Dear Sir,     I beg to submit few of my complaints for such action  as you may be pleased to take, which are as under.     I  went to see Mr. Amarnath last week, at his  residence in  connection with Seoni Distillery work. I saw Mr.  Edulji and his partner with Mr. Amarnath in the office room of  his residence  with some office files. From the papers  I  could recognize  my tender open on the table in front of them.  As soon  as I went there, all of them were astonished and  they could not speak with me for a moment, and then they  carried on some dry general conversation with me.     Same  way after about a week, when I went to  Seoni  for mahua  bill, when Mr. Amarnath visited for  sanctioning  the advance,  I had the opportunity to see Mr. Amarnath  in  dak bungalow  at  about 9-30 p.m. when I saw Mr. Mehta  the  ex- manager  of  Mr. Edulji (who is also the  manager  of  Seoni Electric  Co.)  with Mr. Amarnath near table with  the  same file  of  the tender. No doubt after seeing  the  above  two incidents  I requested Mr. Amarnath to be fair in  this  af- fair. I am bringing these incidents to your notice, as I fear that something  underhand  may not be going on, and I  am  afraid that my tender may be tampered with. Hoping to get justice,                       Yours faithfully,                        Sd. R.S. Patel." 1107     The words "Congress Nagar, Nagpur, 20th November,  1946" are  in  manuscript, while the rest of the letter  has  been typed.   The digit 6 of the year 1946 has been  over-written on  digit 7 written in continental style and it is  apparent to  the  naked eye that originally the writer  wrote  7  and subsequently  changed  it  to 6. It  was  contended  by  the learned  Advocate General,--and this is the finding  of  the

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courts  below,  --that  this letter was  written  some  time during the investigation of the case in July or August 1947, and was antedated in order to implicate Amarnath and to  use it as evidence in defence.  The point for decision is wheth- er  there is any evidence whatsoever to establish this  act. We  have not been able to discover any such evidence on  the record;  on  the other hand the intrinsic  evidence  in  the letter proves that most likely it came into existence on the date it bears. The relevant facts are that the tenders  were opened by accused Nargundkar on the 11th November, 1946,  he handed  them over after making the endorsements to  Amarnath and  Amarnath  had  to submit a report about  them.   It  is alleged  in this letter that "last week", i.e.,  during  the week  commencing on the 11th November, 1946,  accused  Patel went to see  Amarnath and there he saw Edulji Doongaji  with him  with his tender open on his table in front of  him  and that  he  was astonished at it, that about a week  later  he again went to Seoni and had the opportunity to see  Amarnath and  Mr. Mehta, ex-manager of Edulji Doongaji, was with  him and  the tender file was lying there. It was stated that  he had  requested  Amarnath to be fair in this affair  and  the Commissioner  was asked that he should see that  his  tender was not tampered with and he got justice. The whole  purpose and object of this letter was to protect himself against any underhand  dealing in the granting of the contract.  In  his statement  under section 342, Cr. P.C., Patel said  that  he saw  Amarnath on the morning of the 15th or  16th  November, 1946,  and he met Amarnath at Seoni at the distillery  prem- ises on the 16th November, 1946, and on the same 1108 day he met him at about 9 p.m. at the Seoni dak bungalow and that  he again met him on the 17th November, at 10 a.m.   He also  stated that he had gone to see Amarnath at  his  resi- dence  at Nagpur between the dates 12th and  18th  November. It was contended by the learned  Advocate-General  that  his statement  was inconsistent with the recitals  contained  in Exhibit  P-24.   We see nothing  inconsistent  between  this statement  and the recitals.  If accused Patel saw  Amarnath on  the  12th, the letter having been written  on  the  20th November,  it would be quite a correct thing to say that  he saw  him "last week" and the next recital when he said  that about a week thereafter he saw him again is quite consistent with his going and seeing him on the 16th or 17th  November. That  would be about a week after the first visit.  To  draw any conclusion adverse to the accused from a slight  inaccu- racy  in the description of dates and to conclude  therefrom that  it  was established that the accused  Patel  had  seen Amarnath on the 9th November,  1946, amounts to unnecessari- ly stretching a point against the accused.  The recitals  in the  letter,  true or false, are quite consistent  with  the letter  bearing  date 20th November, 1946.   The  magistrate observed  that  the vagueness about the date  and  the  week shows   that  the allegations therein are not  correct.   We have  not been able to understand how -the  vagueness  about the  date could lead to the conclusion arrived at.  Emphasis was laid on the overwriting of the figure 6 over the  figure 7  in the manuscript part of the letter.  It was  said  that the  normal  experience is that it  becomes  a  subconscious habit to automatically write the year correctly when several months have elapsed after the change of the year and that by sheer  force  of habit the correct year must have  been  put down  when the date was entered in the letter  Exhibit  P-24 and  that the figure was subsequently changed to 6 and  this fact was an indication that the letter was written some time in  the year 1947. In our view this argument again  involves

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an element 1109 of conjecture.  The mistake may well  have been inadvertent- ly  made and the correction made there and then.  That  such mistakes  are  not  very uncommon or unusual  and  occur  in official  documents is fully established on the  record,  in para 93 of the judgment of the learned Sessions Judge and it is said as follows:     "The  appellants have produced a file which  is  Exhibit ID-35.  It contains a sheet which bears pages 9 and  10.  On the  10th page there are two office notes-one is written  by A.M. Naidu and the other by  the appellant Nargundkar.  A.M. Naidu  below  his signature has   written  ’6-4-1948’.   The appellant  Nargundkar below his signature has written  ’6-4- 1947’.  The  other notes in the  office file show  that  the correct  date  of the two signatures was 6th  August,  1947. Thus in this sheet there are two mistakes in mentioning  the number of the month and one mistake in mentioning the number of  the year. The appellants contend that such mistakes  are possible.  Nobody can deny that such mistakes are  possible; but  it has to be decided what inferences can be drawn  from such mistakes, if there is other evidence also."     We have looked in vain for other evidence to prove  that the  letter  was  not written on ’the date  it  bears.  Even Gadgil  could  not explain why he said that the  letter  was written  in July, 1946.  It is clear that he is not  telling the’  truth  in this respect.  The endorsement made  on  the letter  by  accused Nargundkar clearly bears the  date  21st November,  1946, and if this letter was not given to him  on the  date  of the endorsement and was given to  him  several months afterwards he would in ordinary course have made some note either on the letter or in the receipt register of  his office  when  that letter was received by him. Then  it  was said  that  this letter was not in the file of  the  tenders which  were kept separate.  The Commissioner had noted  that the  letter  be filed and he sent it to the office.  If  the office people did not put it in the file, from that  circum- stance no adverse inference could 1110 be  drawn as to the date that the letter bears. It  is  dear that no forger would have in such a clumsy manner  corrected 1947 into 1946 so as to leave the original figure "7" intact and  thus  leave evidence of its suspicious  character  writ large  on  its  face.  There was no hurry about  it,  and  a second letter without the alteration could easily have  been typed.     Next it was argued that the letter was not typed on  the office  typewriter that was in those days, viz., article  B, and that it had been typed on the typewriter article A which did  not  reach Nagpur till the end of 1946. On  this  point evidence of certain experts was led.  The High Court rightly held  that opinion of such experts was not admissible  under the  Indian  Evidence Act as they did not  fall  within  the ambit of section 45 of the Act.  This view of the High Court was not contested before us.  It is curious that the learned Judge in the High Court, though he held that the evidence of the  experts  was inadmissible,  proceeded  nevertheless  to discuss it and placed some reliance on it.  The trial magis- trate  and the learned Sessions Judge used this evidence  to arrive  at  the  finding that, as the letter  was  typed  on article  A  which  had not reached Nagpur till  the  end  of December,  1946, obviously the letter was antedated.   Their conclusion  based on inadmissible evidence has therefore  to be ignored.     It  was  further held that the evidence of  experts  was

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corroborated by the statements of the accused recorded under section 342. The accused Patel, when questioned  about  this letter, made the following statement:     "Exhibit P-31 was typed on the office typewriter article B. Exhibit P-24 being my personal complaint letter was typed by  my  Personal Assistant on one of the  typewriters  which were  brought in the same office for trial, with a  view  to purchase.  As this was my personal complaint no copy  of  it was kept in the Correspondence Files Exhibit P-34 and Exhib- it P-35 just 1111 as there is no copy in these files of my tender Exhibit   P- 3A   ..............   In  the month  of  September,  October and   November,   194t5, several machines were  brought  for trial from various parties in our of-rice till the typewrit- er  article A was purchased by National  Industrial  Alcohol Ltd. Company."     If  the evidence of the experts is eliminated, there  is no  material  for  holding that Exhibit P-24  was  typed  on article  A.  The trial magistrate and the  learned  Sessions Judge used part of the statement of the accused for arriving at  the conclusion that the letter not having been typed  on article  B  must necessarily have been typed on  article  A. Such  use of the statement of the accused was wholly  unwar- ranted.   It  is  settled law that an admission  made  by  a person  whether amounting to a confession or not  cannot  be split up and part of it used against him.  An admission must be used either as a whole or not at all. If the statement of the accused is used as a whole, it completely demolishes the prosecution  case and, if it is not used at all, then  there remains  no material on the record from which any  inference could  be drawn that the letter was not writeen on the  date it bears.     For  the  reasons given above we hold that there  is  no evidence whatsoever on the record to prove that this  letter Exhibit P-24 was antedated and that being so, the charge  in respect  of  forgery of this letter also fails.  Read  as  a whole, this letter cannot be said to have been written  with the  intention of causing any injury to Amarnath or for  the purpose  of  creating  a defence in respect  of  the  second charge.  The letter read as a whole is an innocuous document and  its  dominant purpose and intent was to  safeguard  the interests  of accused Patel and to protect him  against  any underhand or unfair act of his rival contractors. We  cannot infer  any  intent  to defraud or any  intention  to  injure Amarnath,  though in order to protect himself accused  Patel made certain allegations against him. We therefore set aside the conviction of both the appellants under the third charge and acquit them. 1112     The  result is that the consolidated appeal is  allowed, the  judgments of all the three courts below are  set  aside and the appellants are acquitted. Appellants acquitted.     Agent  for  the appellant in Criminal Appeal No.  56  of 1951: Ganpat Rai.     Agent  for  the appellant in Criminal Appeal No.  S7  of 1951: Rajinder Narain. Agent for the respondent: P.A. Mehta.