26 March 1970
Supreme Court


Case number: Appeal (crl.) 153 of 1967






DATE OF JUDGMENT: 26/03/1970


CITATION:  1970 AIR 1514            1971 SCR  (1) 138  1970 SCC  (3) 624  CITATOR INFO :  F          1977 SC 472  (7)

ACT: Constitution  of India, 1950, Art. 136--Criminal  Appeal  by special leave--Review of evidence by Supreme Court.

HEADNOTE: The  appellants were charged with the offences  of  criminal conspiracy  and  criminal breach of trust in respect  of  80 bags  of wheat.  They were ,convicted by the High Court  for various offences under the Penal Code and the Prevention  of Corruption Act.  The evidence disclosed that there were some irregularities in the matter of keeping the records relating to storage of stocks at the storage sheds.  It was therefore contended  in .appeal by special leave, to this Court,  that the  evidence should be reviewed to see if  the  prosecution had  established by unimpeachable evidence that the 80  bags were  in fact not received at the storage shed and, that  no presumption should be drawn against the appellants for their failure  to give evidence as to where and to whom  the  bags were delivered. HELD : Non-appearance of an accused as a witness in his  own defence  does not give rise to any presumption against  him. [141 C] HELD,  also  :  Negative  onus can  also  be  discharged  by circumstantial  evidence  if  it  is  trustworthy  and  with unerring certainty establishes facts and circumstances,  the combined effect of which leads to the only safe inference of guilt.   The  court has, however, to be watchful  to  ensure that  conjectures  or suspicions do not take  the  place  of proof.   The  chain  ,of  circumstantial  evidence  must  be complete  and admit of no reasonable  conclusion  consistent with the innocence of the accused. [141 E-F] HELD  further : under Art. 136 this Court does not  normally proceed to review the evidence in criminal cases unless  the trial   is   vitiated  by  some   illegality   or   material irregularity of procedure or the trial is held in  violation of  rules of natural justice resulting in unfairness to  the accused  or the judgment or order under appeal has  resulted in  grave miscarriage of justice.  This Article reserves  to this  Court  a special discretionary power to  interfere  in



suitable  cases when for special reasons it  considers  that interference  is  called  for in  the  larger  interests  of justice. [145 A-C] HELD  further  : This Article cannot be so construed  as  to confer  ,on a party right of appeal where none exists  under the law. [145 C] In the present case there were irregularities in the storage records  and the evidence was looked into see if the  charge as framed was proved. [145 C-D] [An   examination   of  the  entire   evidence,   oral   and documentary, however, showed, that there was enough evidence to  support the conviction and that the irregularities  were unimportant.] [145 A] Chidda Singh v. State of Madhya Pradesh, Cr.  A. No. 125  of 1967 dt. 12-1-1968, referred to.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeals Nos.  153, 155 and 172 of 1967. 139 Appeals  by special leave from the judgment and order  dated April 3, 1967 of the Bombay High Court in.  Criminal Appeals Nos. 617, 621, 619 and 620 of 1965. A.  S.  R.  Chari, N. H. Hingorani  and  K.  Hingorani,  for appellant No. 1 (in Cr.  A. No. 153 of 1967). N. H. Hingorani and K. Hingorani, for appellant No. 2 (in Cr. A.    No. 153 of 1967). A. S. R. Chari, and N. N. Keswani, for appellant (in Cr.  A. No. 155 of 1967). W. S. Barlingay and A. G. Ratnaparkhi, for the appellant (in Cr. A.    No. 172 of 1967). M. S. K. Sastri and S. P. Nayar, for the respondent (in  all the appeals). The Judgment of the Court was delivered by Dua,  J.  The  four appellants in  these  three  appeals  by special  leave were tried in the court of the Special  judge for  Greater  Bombay on a charge  of  conspiracy  punishable under  s.  120-B, I.P.C. Accused No. 1 (Shiv  Kumar  Lokumal Bhatia) was a godown clerk; accused No. 2 (Hargun  Sunderdas Godeja)  was  the  Senior Godown Keeper and  accused  No.  3 (Hundraj  Harchomal Mangtani) was the Godown  Superintendent at  the  General  Motors Godown at  T-Shed,  Sewri,  Bombay, belonging to the Food Department of the Government of India. Accused  No.  4 (Shankar Maruthi Phadtare) was a  driver  of Truck  No. 2411.  The allegation against them was  that  all these accused during the month of July, 1963 were parties to criminal  conspiracy to commit criminal breach of  trust  in respect  of 1060 bags of red wheat which were released  from the ship S. S. Hudson on July 7, 1963 at Bombay for  storing them  in  the G-M.2 Godown at Sewri.  In pursuance  of  this conspiracy,  it  was  alleged,  they  had  dishonestly   and fraudulently  misappropriated or converted to their own  use 80  bags  of red wheat out of 1060 bags  released  from  the ship.   Accused Nos. 1, 2 and 3 were also charged  under  s. 409 read with s. 34, I.P.C., s. 5(2) read with s. 5(1)(d) of the Prevention of Corruption Act.  1947  read  with  s.  34, I.P.C., s. 5(2) read with s. 5(1) (c)   of the Prevention of Corruption  Act  read with s. 34, I.P.C. and s.  477-A  read with s. 34, I.P.C. The learned Special Judge on a consideration of the evidence on  the  record held that the prosecution has  succeeded  in proving  conspiracy on the part of all the four  accused  to commit



140 criminal  breach of trust in respect of the 80 bags  offered wheat Accused Nos. 1, 2 and 3 were also held to have  gained pecuniary advantage and further to have altered the  records of  the T Shed.  Holding the offences to be serious in  view of  the  general shortage of foodgrains in the  country  the court  felt  that the case called for  deterrent  sentences. Under  s. 120-B I.P.C. all the accused were  sentenced,,  to rigorous imprisonment for four years.  Accused Nos. 1, 2 and 3  were  in addition held guilty under s. 409,  I.P.C.  read with s. 34, I.P.C. and under s. 5 (2) read with s. 5 (1) (c) of the Prevention of Corruption Act read with S. 34, I.P.C., under  S.  5(2)  read  with  S.  5(1)(d)  of  Prevention  of Corruption  Act  read with s. 34, I.P.C. and also  under  S. 477-A  read  with s. 34, I.P.C. and  sentenced  to  rigorous imprisonment  for four years on each of these four  counts,. the sentences to be concurrent. On  appeal the High Court confirmed the order of  the  trial court  as  against accused No. 4 and dismissed  his  appeal. The  conviction of accused No. 1 under s. 5(2) read with  s. 5(1)  (c) of the Prevention of Corruption Act read  with  s. 34,  I.P.C. was set aside.  But his conviction and  sentence under  s.  120-B,  I.P.C. and under s.  5(2)  read  with  s. 5(1)(d) of the Prevention of Corruption Act read with s. 34, I.P.C.  as also under s. 477-A read with s. 34,  I.P.C.  was confirmed.   His  conviction under s. 409 read with  S.  34, I.P.C.  was altered to one under s. 409, I.P.C. but  without altering  the sentence.  The convictions of accused  Nos.  2 and  3 under S. 409, I.P.C. read with s. 34, I.P.C. as  also under s. 5 (2) read with S. 5 (1 ) (c) of the Prevention  of Corruption  Act read with s. 34, I.P.C. were set  aside  but their  conviction  and sentence under s. 120-B,  I.P.C.  and under  s.  5(2) read with s. 5(1)(d) of  the  Prevention  of Corruption Act read with s. 34, I.P.C. was confirmed. In  this Court Shri Chari questioned the appellants  convic- tion on the broad argument, which was indeed the main  plank of his challenge against the impugned order, that there  was great  confusion in the matter of storage of stocks  of  the foodgrains  in  the T-Shed and there was  complete  want  of regularity  and considerable inefficiency in the  matter  of keeping  the  records  of the arrivals and  storage  of  the stocks  with  the result that it would be highly  unsafe  to rely  on the evidence relating to the records of the  stocks in  the  T-Shed, for holding the appellants  guilty  of  the criminal offences charged.  The learned counsel appearing on behalf  of  the other appellants, while  generally  adopting Shri  Chari’s arguments, supplemented them by  reference  to the distinguishing features of the case against their  indi- vidual clients. 141 The counsel in the course of their arguments emphasised that the  prosecution,  in order to prove the negative,  has  the difficult    task   of   affirmatively    establishing    by unimpeachable  evidence that 80 bags which were the  subject matter  of  the charge were in fact not received in  the  T- Shed.   The  prosecution must, said the counsel,  bring  the charge home to every accused person beyond reasonable doubt. The submission as developed by all the counsel  representing the appellants did seem on first impression to be attractive but on a deeper probe we consider it to be unacceptable.  It is  no doubt true that the onus on the prosecution is  of  a negative character and also that the failure on the part  of the  accused  to give evidence on the question as  to  when, where and to whom. the controversial 80 bags were  delivered at the point of unloading a fact on which the driver of  the



truck   and those whose duty it was to receive the goods  at the  T-Shed  could  give  the  best  and  the  most   direct information-cannot   under   our  law  give  rise   to   any presumption against them.  The criminal courts holding trial under  the  Code of Criminal Procedure have  accordingly  to bear  in mind the provisions of s. 342-A of the Code and  to take  anxious care that in appreciating the evidence on  the record and the circumstances of the case, their mind is  not influenced by such failure on the part of the accused.   But that does not mean that such negative onus is not capable of being discharged by appropriate circumstantial evidence.  If the  circumstantial evidence which is trustworthy and  which with unerring certainty establishes facts and  circumstances the combination of which, on reasonable hypothesis, does not admit of any safe inference other than that of the guilt  of the accused then there can hardly be any escape for him  and the Court can confidently record a verdict of guilty  beyond reasonable  doubt.   The court would, of  course,  be  well- advised  in case of circumstantial evidence to  be  watchful and to ensure that conjectures or suspicions do not take the place  of legal proof.  The chain of evidence to  sustain  a conviction  must  be complete and admit of  no  reason  able conclusion consistent with the innocence of the accused.  In the  present  case it is fully- proved and  is  indeed  ,not disputed  on behalf of the accused that truck No. 2411  with the 80 bags of red wheat did leave the dock and did pass the yellow  gate  which is the check point where a  register  is kept  by  the Regional Director of Food.  In  this  Register entries  are made when a truck leaves the yellow gate.   The truck in question left the yellow gate at 1 1.20 a.m. on the second  trip as deposed by Parmar, (P.W.8). And this is  not disputed.  According to the accused the 80 bags in  question were  actually delivered at the appropriate place at the  T- Shed  and the truck chits duly given to the truck driver  in token of their receipt and indeed D.W. 1 war, 142 produced by accused No. 4 to prove the actual delivery.  The prosecution case, on the other hand, is that those bags were not,  delivered  at  the T-Shed  but  were  misappropriated. There  is no dispute about the procedure of delivery at  the T-Shed of the goods- brought from the dock.  This  procedure in  regard  to  the wheat brought on February  7,  1963  may briefly be stated. The  foodgrains  consisting of 1060 bags of  red  wheat  had arrived by S. S. Hudson at the Alexandra docks.  The  trucks were  loaded with the wheat bags to be taken to the  T-Shed, Sewri.  Four truck-chits were prepared at the docks for each truck  out  of  which two were given  to  the  truck  driver concerned.   The driver had to give the truck chits  at  the godown  at the time of the delivery of the bags.   One  such chit would be returned to him after endorsing acknowledgment of the receipt of the bags, the other chit being retained at the  godown.   The  one given to the  driver  was  meant  to authorise  the  receipt  of  hire  charges  from  the   food department.   At the godown, according to the  general  pro- cedure, the driver of the trucks had to give the truck chits to one of the godown clerks there.  A batch of gangmen under a particular Mukaddam had generally to unload the goods from the  truck allotted to him and no Mukaddam with his  gangmen could  unload the goods from a truck which was not  allotted to  him  for the purpose.  The gangmen  had,  therefore,  to unload  the goods as instructed by the clerk and the  senior godown  keeper.  After unloading the bags cooly voucher  was to be prepared and the daily diary maintained at the  godown written:  the kutcha chit was prepared by the godown  keeper



after the unloading and weighment of the goods.  Only 10% of the  bags  were  as  a matter of  practice  to  be  actually weighed. The truck movement chart Ex. 10 shows the order in which the various trucks left the dock for the T-Shed on July 7,  1963 as  also their contents and the truck chit  numbers.   Truck No.  2411  with 80 bags of red wheat figures twice  in  this document but it is not disputed that  trip which concerns us is entered at sl.  No. 9. Truck chit number of this trip  is 69  and the truck left the dock at 11. 15 hours.  The  truck at serial No. 8 (immediately preceding the trip in question) in  this document is No. 2248 with 80 bags and its chit  No. is 68.  This truck left the dock at 11 a.m. The truck at sl. No.  10 (immediately next after the one in dispute) is  1477 with 65 bags of red wheat whose truck chit No. is 72.   This truck  left  the dock at 11.45 hrs.  There were  in  all  14 trips  on  July 7, and indeed, this is also  established  by oral  evidence and is not denied on behalf of  the  accused. We may now turn to the tally sheet for July 7, 1963 Ex.  41. The  first thing to be noticed in this document is  that  it only shows the arrival of 13 trucks.  In other words accord- 143 ing to this document there were only 13 trips of the  trucks though  the Truck Movement Order Ex. 10 clearly  shows  that there were 14 trips and on behalf of the accused also it was asserted  that there were 14 trips.  We find in  Exhibit  41 that  after sl.  No. 8 which relates to truck No. 2488  with its chit No. 68 and which arrived at the T-Shed at 11.58 a.m there  is recorded at serial No. 9 the arrival of truck  No. 7866  with  chit No. 70 and at sl.  No. 10  the  arrival  of truck  No.  1477  with chit No. 72 and at sl.   No.  11  the arrival  of  truck No. 8769 with chit No. 71.   These  three trucks  are shown to have arrived at the unloading point  at 1. 15 p.m. It was explained at the bar that from 12 noon  to 1  p.m. no work was done, it being lunch interval.   It  has been  so  stated  by  P.  S.  Shinde,  Assistant   Director, Vigilance Branch, as, P.W. 18.  Items at sl. nos. 12 and  13 relate  to trucks Nos. 2752 .and 1289 with their  respective chit  nos. 73 and 74.  It is thus clear that chit No. 69  is missing  in this sheet.  Bapu T. Pingle produced as  D.W.  1 claims  to have been in truck No. 2411 as a wamer  with  the driver,  accused No. 4, on July 7, 1963.  According  to  him this  truck made two trips on that day between the dock  and the  T-Shed and on the second trip the other wamer  by  name Yashwant  had taken the truck chit from the clerk  concerned after  the same was duly signed.  This witness  has  deposed about  the procedure at the godown which is the same as  was suggested  on  behalf of the prosecution.  The  man  at  the godown used to direct the drivers to the place of  unloading the goods and, to quote his own words, "unless an entry  was made  in  this Book (Tally Book) we were not allowed  to  go ahead  at  all." So, according to his  evidence,  unless  an entry is made in the Tally Book the truck could not  proceed to the unloading point to deliver the goods brought from the dock.   Exhibits 10 and 41 in our view  affirmatively  prove that 80 bags of red wheat carried by truck No. 241 1 on July 7, 1963 on the second trip did not reach the T-Shed at  all. This  finds support, even from the testimony of D.W.  1.  In view  of this documentary evidence with which no  fault  has been  found  the evidence regarding  irregularities  in  the record of stock at the T-Shed loses all importance.  It  may be pointed out that July 7, 1963 was a Sunday and as deposed by  Parmeshwar D. Menon (P.W. 1) on that day all gates  were not  opened.   But this . is not all.  Though in  the  tally chits  time  of the arrival of the truck  at  the  unloading



point  is given in the truck chit in question that  time  is not  shown.  According to the evidence of Roque (P.W. 6)  on the reverse of all truck chits Exts. 15 to 26 and Exts. li-A and 11-B entries are made in the handwriting of accused  No. 1.  In  Exhibits  15 to 26 in addition to  the  arrival  and denarture  of the trucks, progressive totals at the back  of each  of  them is also stated, but in Ex. ll-B there  is  no progressive total and in Ex.  11-A there is no signature  of accused No. 1 144 though the progressive total is mentioned as 240.   Exhibuit 11-B, it may be pointed out, appertains to the trip by truck No. 2411 on July 7, 1963. Shri Shinde, (P.W. 18) who was Assistant Director, Vigilance Branch  at the relevant time has deposed that  according  to the  weighment register Ex. 69 only 98 bags of  S.S.  Hudson were  weighed and this was 10% of 980 bags.   This  document bears  the signatures of accused No. 1. Exhibit  41,  carbon copy  of the Arrival Tally sheet which was sent to the  head office  for showing if there was any detention of trucks  in the  godown’ does not, as already noticed contain any  entry in respect of the truck in question.  The reverse of Ex.  41 is not printed in the printed paper book but we have checked up  from the original record that witness Shinde  is  right. Non-inclusion  of the entry of the truck in question in  Ex. 41,  is  in our view, very material.  In Ex.  53  the  daily Arrival Tally book for July 7, 1963 the entry at sl.  No. 68 shows departure of the truck in question at 12.15  afternoon whereas  in Ex. 41 it is ,shown as at 1. 15 p.m. and in  Ex. 11  B at 12.15 afternoon.  This, according to P.W.  18,  was designed  to  show that the truck was ,unloaded  during  the recess  period which, according to evidence ,on the  record, was  not done.  The explanation of accused No. 1 is that  on July 7, 1963 he was not feeling well though he attended  the office.  He had to get chits from the warners and count  the number  of  bags  in the truck and order  the  labourers  to unload  them from the trucks.  The suggestion appears to  be that  due to these multifarious duties and due to his  being unwell he had perforce to enter the truck chits in the tally books  only when he could get time and meanwhile he  had  no other  alternative but to put the unentered truck  chits  in his pocket.  According to him, it was on July 10, 1963  when he  was  giving  his  clothes  to  the  washerman  that   he discovered, the solitary chit in question left by mistake in his pocket.  The explanation is far from satisfactory and we are  not  impressed  by it.  It may in  this  connection  be pointed  out  that July 7, 1963 was a Sunday and  the  three accused  persons  were specially called  for  receiving  the grain  that had arrived by the two steamers.  The amount  of work to be done on that day can thus scarcely be ,considered to  be excessive.  And then the fact that only one  solitary truck chit relating to the 80 bags in question should happen to  have  remained  in the pocket of accused  No.  1  to  be discovered  only on July 10, 1963 is also not  without  some significance.   We  agree with the High Court  in  holdings, this explanation to be unconvincing and that the 80 bags  in question were in fact not received at the T-Shed on July  7, 1963.  In 145 our  opinion,  the  material  on the  record  to  which  our attention has been invited fully supports the conclusions of the High Court.  We may appropriately repeat what has  often been  pointed out by this Court that under Art. 136  of  the Constitution this Court does not normally proceed to  review the evidence in criminal cases unless the trial is  vitiated



by some illegality or material irregularity of procedure  or the  trial is held in violation of rules of natural  justice resulting  in unfairness to the accused or the  judgment  or order  under  appeal has resulted in  grave  miscarriage  of justice.   This  Article reserves to this  Court  a  special discretionary power to interfere in suitable cases when  for special reasons it considers that interference is called for in  the  larger interests of justice.  As observed  by  this Court in Chidda Singh v. The State of Madhya Pradesh(1) this Article  cannot  be so construed as to confer on a  party  a right  of  appeal  where none exists  under  the  law..  We, however, undertook in this case to go through the  evidence, to which our attention was invited to see whether or not the conclusions of the High Court are insupportable.  We are not persuaded  to  hold that in this case there  is  any  cogent ground  for  interference  with  those  conclusions.   These appeals according fail and are dismissed. V.P.S.                  Appeals dismissed. (1) Crl.  A.No. 125 of 1967 decided on 12th January, 1968. 146