http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 13

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.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 13

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 13

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,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 13

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 13

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 13

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 13

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.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 13

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 13

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 13

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 13

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 13

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 13

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.