http://JUDIS.NIC.

IN SUPREME COURT OF INDIA Page 1 of 13

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.