PETITIONER:
RABINDRA KUMAR DEY
Vs.
RESPONDENT:
STATE OF ORISSA
DATE OF JUDGMENT31/08/1976
BENCH:
FAZALALI, SYED MURTAZA
BHAGWATI, P.N.
CITATION:
1977 AIR 170 1977 SCR (1) 439
1976 SCC (4) 233
ACT
Prevention of Corruption Act, 1947--Sec. 5(1)(c) and
5(1)(d) r/w Sec. 5(2)--Misappropriating Govt. Funds--Re-
taining Govt. Funds by a Govt. servant--Evidence Act.
Sec. 154--When can a witness be declared hostile--Can evi-
dence of a hostile witness be accepted-- Evidence Act Sec.
105--onus of proving exceptions in I.P.C. on
accused---Degree of proof--Criminal Trial-Effect of non
examination of material witness--Conviction on evidence of
a solitary witness--Whether adverse inference can be drawn
against accused for not leading evidence--Onus of prosecu-
tion--Presumption of innocence.
HEADNOTE
The appellant ,who was the Additional District Magis-
trate in overall charge ,of the Nizarat and the Land Acqui-
sition sections of the Collectorate was charged for criminal
misconduct under section 5(2) read with section 5(1)(c) and
5(1 ) (d) of the Prevention of Corruption Act, 1947. The
allegation against the appellant was that he withdrew a sum
of Rs. 10,000/- on 9-1-1965 on the ground that he wanted to
distribute the said amount amongst the villagers whose land
was acquired as the compensation; that in fact the appellant
never wanted to distribute the said amount and that he
retained,the money with him for about 6 months dishonestly
and only after that the money was deposited in the Treasury.
The defence of the appellant was that the Secretary of the
Works Department called a meeting in the Secretariat on
25-9-1964- and that the appellant was expressly directed to
proceed to the spot and persuade the villagers to accept the
compensation money; that it was pursuant to that mandate
that the appellant withdrew the money on 9-1-1965; that he
could not go to the village in question in that day because
one of the officers who was to accompany him was not avail-
able; that he, therefore, again deposited the money back
with the Nazir and collected the money from him again on
20-1-1975; that he went there along with several officials;
that the villagers, however, refused to accept the compensa-
tion. The appellant was, however, hopeful of getting the
compensation increased and to persuade the villagers to
accept the increased compensation. He, therefore, on his
return handed over the money to the Nazir, however, asked
him not to deposit the same in the Treasury so that cash
would be readily available as soon as needed.
Nazir was examined by the prosecution and he denied
having received the money as suggested by the appellant.
Secretary of the Works Department was not examined by the
prosecution. The Land Acquisition Officer PW 8 deposed that
the Secretary directed the appellant to take action for
payment of the compensation money to the villagers and that
the appellant should personally persuade the villagers to
accept the compensation. The said witness was, however,
declared hostile on the ground that he did not state to the
Police that when the appellant and the Executive Engineer
visited the village they did not persuade the villagers to
receive the compensation amount. PW 7 the Executive Engi-
neer deposed that he accompanied the appellant to the vil-
lage and that the appellant tried to persuade the villagers
to receive the compensation but that they refused to
accept the same. This witness was also declared hostile
because of certain minor omissions in his statement before
the Police. PW 6, one of the villagers also deposed that
the appellant persuaded them to give up possession but the
villagers did not agree. This witness was also declared
hostile because he omitted state some facts before the
Police.
The Trial Court and the High Court relying on the evi-
dence of Nazir and certain documents convicted the appellant
under section 5(1)(c) and 5(1)(d) read with section 5(2)of
the Prevention of Corruption Act, 1947.
12--1104SCI/76
440
Allowing the appeal by Special Leave,
HELD: 1. In a charge of misappropriation once the en-
trustment of money is proved and although the onus to prove
the entrustment is on the prosecution. if the explanation of
the accused is found to be false he must be presumed to
have retained the money with himself. [444 A-B]
Jaikrishnadas Manohardas Desai and Anr. v. State of
Bombay, [1960] 3 S.C.R. 319. 324; followed.
2. Three principles of criminal jurisprudence which are
well settled are as under:
(i) that the onus ties affirmatively on the
prosecution to prove its case beyond reasonable
doubt and it cannot derive any benefit from weak-
ness or falsity of the defence version while prov-
ing its case;
(ii) that in a criminal trial the accused must
be presumed to be innocent until he is proved to be
guilty; and
(iii) that the onus of the prosecution never
shifts. [444 G-H, 445 A]
3. Under section 105 of the Evidence Act the onus of
proving exceptions mentioned in the Indian Penal Code lies
on the accused but the said section does not at all indicate
the nature and the standard of proof required. It is suffi-
cient if the, accused is able to prove his case by the
standard of preponderance of probabilities as envisaged by
section 5 of the Evidence Act. [445 A-B]
Harbhajan Singh v. State of Punjab, [1965] 3 SCR 235,
241 and State of U.P. v. Ram Swarup & Anr. [1975] 1 S.C.R.
409, 416-17, followed.
The accused succeeds if the probability of his version
throws doubt on the presecution case. He need not prove his
case to the hilt. It is sufficient for the defence to give
a version which competes in probability with the prosecution
version for that would be sufficient to throw suspicion on
the prosecution case entailing its rejection by the court.
[445 B-C]
4. In a criminal trial it is not at all obligatory on
the accused to produce evidence in support of his defence
and for the purpose of proving his version he can rely on
the admissions made by prosecution witnesses or on the
documents filed by the prosecution. The courts below were
not justified in drawing adverse inference against the
accused for not producing evidence in support his defence.
The prosecution cannot derive any strength or support from
the weakness of the defence case. [446 E-G]
5. The courts below erred in basing conviction of the
appellant on the sole testimony of the Nazir completely
ignoring the important admissions made in favour of the
accused by other prosecution witnesses, some of whom were
declared hostile and some were .not. [446 H, 447 A]
6. No explanation is coming forth why the Secretary,
Works Department Who was a Government servant, has not been
examined. It was a part of the prosecution case that in the
said meeting the Secretary did not direct the appellant to
go to the village for making payment. The prosecution ought
to have examined the Accountant who was a material witness
in order to unfold the prosecution narrative itself. The
court drew adverse inference for his non-examination.
[447 D:E]
7. Section 154 of the Evidence Act confers. a discretion
on the court to permit a witness to be cross-examined by a
party calling him. The section confers a judicial discretion
and must be exercised judiciously and properly in the inter-
est of justice. The court will not nor.m. ally allow a
party to cross-examine his own witness and declare the same
hostile unless the court is Satisfied that the statement of
the witness exhibits an element of hostility. or that he has
resiled from a material statement which he made before an
earlier authority. [448 G-H, 449 A]
441
Dahyabhai Chhaganbhai Thakker v. State of Gujarat,
[1964] 7 S.C.R. 361, 368. 69. 70 followed.
Merely because a witness in an unguarded moment speaks
the truth which may not suit the prosecution or which may be
favourable to the accused, the discretion to allow the party
concerned to cross-examine his own witnesses cannot be
allowed. The contingency _of permitting the cross-examina-
tion of the witness by the party calling him is an extra-
ordinary phenomenon and permission should be given only in
special cases. [449 G-H, 450 C]
8. On the facts the court found that the Trial Court
wrongly exercised its discretion in permitting the prosecu-
tion to cross-examine its own witnesses.
[451 F]
9. Merely because a witness is declared hostile it does
not make him unreliable so as to exclude his evidence from
consideration altogether. [450 E-F]
Bhagwn Singh v. State of Haryana, [1976] 1 S.C.C. 389, 391-
92 followed.
10. The court found that the defence version was ren-
dered probable by the testimony of witnesses as well as
documents. [457 A-D]
11. The Court found that the Nazir was not a reliable
witness and that the courts below ought not to have acted on
his sole testimony. [455-C]
JUDGMENT
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 193
of 1971.
Appeal by Special Leave from the Judgment and Order
dated 11-5-71 of the Orissa High Court in Criminal Appeal
No. 14/70.
Gobind Das, Mrs. Sunanda Bhandare, ,A. K. Mathur, A.
K. Sharma and M.S. Bhandare, for the Appellant.
S.C. Agarwal and G.S. Chatterjee, for the Respondent.
The Judgment of the Court was delivered
FAZAL ALl, J. In this appeal by special leave, the
appellant has been convicted for criminal misconduct under
s.5(2) read with S.5(1) (c) of the Prevention of Corruption
Act, 1947 and sentenced to rigorous imprisonment for three
years. He has also been convicted under s. 5(1)(d) of the
Prevention of Corruption Act but no separate sentence has
been passed thereunder. The appellant preferred an .appeal
to the High Court of Orissa against the order of the-
Special Judge which was, however, dismissed, and the convic-
tions and sentences imposed on him were confirmed by the
High Court. Thereafter an application for leave to appeal
to this Court was made before the High Court, which having
been refused the appellant obtained special leave from this
Court, and hence this appeal.
After going through the judgments of the Courts below,
we are constrained to observe that the High Court as well as
the Trial Court have made a wholly wrong approach in apply-
ing the provisions of the Prevention of Corruption Act in
the case of the appellant. Put briefly, the prosecution
case was as follows:
The appellant was the Additional District Magistrate,
Cuttack from September 1964 to June 1966 and in that capaci-
ty he was in
442
overall charge of the Nizarat and land acquisition sections
of the Collectorate. Sayad Allamuddian Ahmed P.W. 8 was the
District Land Acquisition Officer and one A. Ballav Pradhan
P.W. 9 was the Nizarat Officer, whereas Prahalad Mahapatra
P.W. 1 was the Nazir and Rajkishore Das P.W. 2 was the
Assistant Nazir under P.W. 1 P.W. 3 Bhakta Charan Mohanti
was the Land Acquisition Inspector. It appears that a number
of lands had been acquired by the Government for certain
public projects in various villages particularly Mauza
Balichandrapur with which we are concerned in the present
case. A huge compensation amount to be given to land-owners
had been deposited in the treasury for payment to them. It
appears that a sum of Rs. 31,793.85 had been disbursed by
July 24, 1964 leaving a balance of Rs. 11,650-61 but no
disbursement could be made between July 24, 1964 and January
20, 1965 as the villagers refused to accept the payments and
wanted the Land Acquisition proceedings to be withdrawn.
The prosecution case further is that the appellant as Addi-
tional District Magistrate attended a meeting at the Secre-
tariat in the office of the Secretary of Works Department at
Bhubaneswar on September 25, 1964 where certain decisions
were taken. There appears to be some divergence of opinion
between the appellant and the prosecution on the delibera-
tions of the aforesaid meeting which we shall consider
later. It is further alleged that on January 9, 1965 the
appellant directed the Nazir to pay him a sum of Rs.
10,000/from the cash which remained with the Nazir P.W. 1
for the purpose of distributing the amount to the land-
owners of the village Balichandrapur. As, however, the
A.D.M.’s visit to Balichandrapur could not materialise
because the Executive Engineer with whom he was to go there
was not available, the visit was postponed and the A.D.M.
went to some other place. On January 20, 1965 the appellant
again took a sum of Rs. 10,000/- from the Nazir and decided
to visit the village Balichandrapur along with the Executive
Engineer and the Land Acquisition Inspector. It is said
that the S.D.O., P.W.D., also accompanied the party to the
village Balichandrapur, and the case of the appellant is
that the Land Acquisition Inspector also travelled to Bali-
chandrapur with the appellant, though this fact is disputed
by the Land Acquisition Inspector. It is, however, the
admitted case of the prosecution that there ,was no dis-
bursement in village Balichandrapur and thereafter the
amount of Rs. 10,000/- was not deposited with the Nazir but
remained in the personal custody of the appellant who ap-
pears to have retained it dishonestly for about six months.
This is the gravamen of the charges against the appellant.
We may also mention that the amount was paid to the Nazir
towards the end of September 1965 when it was deposited in
the treasury. On receiving certain applications, the Vigi-
lance Organisation of the State of Orissa instituted an
inquiry against the appellant and after completing the same
lodged a formal F.I.R. on May 13, 1966. The appellant
thereafter was challaned under various sections of the
Prevention of Corruption Act and ultimately convicted as
indicated above.
The case of the appellant was that he had no doubt
withdrawn a sum of Rs. 10,000/- from the Nazir on January 9,
1965 but on his return from tour as he could not disburse
the money to the
443
villagers he had returned it to the Nazir at Cuttack on
January 13, 1965. When, however, he again decided to go to
the village with the Executive Engineer and others on Janu-
ary 20, 1965 he again directed the Nazir to pay him the
amount for disbursement. He went to the village Balichan-
drapur and tried to persuade the villagers to accept the
compensation amount so that the Government project may be
started as soon as possible. The villagers wanted some
other alignment to be made or the compensatioion to be
increased, and the appellant persuaded them to accept part
payment and assured them that he will try to get the amount
increased. It was also the definite case of the appellant
that in the meeting held in the secretariat on September 25,
1964, the appellant was expressly directed to proceed to the
spot and persuade the villagers to accept the compensation
money and it was in consequence of this mandate from the
Secretary of works Department that the A.D.M. proceeded
to the village Balichandrapur and made all possible efforts
to persuade the tenants to accept compensation even by
holding out promises to them. Unfortunately, however, the
villagers refused to accept the compensation and the party
had to come back to Cuttack disappointed. The appellant
further seemed to suggest that although he had failed to
persuade the villagers to accept the money he had not com-
pletely lost all hopes and that there was a possibility of
the villagers coming round to his point of view and ulti-
mately decide to accept the compensation and for this
reason the appellant returned the sum of Rs. 10,000/- to the
Nazir on his return from the village but directed him not to
deposit the same in the treasury or to make any entry in the
Cash Register so that if the villagers came to Cuttuck to
demand the money they could be given the same immediately
without any formality of a fresh withdrawal. The appellant
further averred that because of some personal jealousies,
a false complaint was made against him which necessitated an
inquiry. The Courts below accepted the prosecution case and
disbelieved the version of the defence completely. The High
Court has found that as the entrustment was proved and
admitted by the appellant himself and the explanation given
by him was absolutely false, this would lead to the irre-
sistible inference that the appellant had temporarily misap-
propriated the money. It was also suggested by the prosecu-
tion that at the relevant time the appellant was building a
house and he had already applied for loans from the Govern-
ment and it may be that for this purpose he might have been
in need of the money to build his house.
One of the essential peculiarities of this case is that
as many as three witnesses examined by the prosecution to
prove its case, namely, P.Ws. 6, 7 and 8, had been declared
hostile and the Public Prosecutor sought permission of the
Court to cross-examine those witnesses which was readily
allowed. According to the prosecution these witnesses tried
to help the accused and made certain statements which sup-
ported the case of the appellant and, therefore, had to be
crossexamined by the prosecution.
Having regard to the stand taken by the parties, the
matter lies within a very narrow compass. So far as the
entrustment of Rs.
444
10,000/- is concerned that is undoubtedly admitted by the
appellant, and the only explanation given by him is that he
had returned the money to the Nazir after his return from
the village Balichandrapur and he had also directed the
Nazir not to deposit the money in the treasury. If once the
explanation of the accused is disbelieved, or proved to be
absolutely false, then it is quite natural that he must be
presumed to have retained the money with himself for a
period of six months. Although the Onus lies on the prose-
cution to prove the charge against the accused, yet where
the entrustment is proved or admitted it will be difficult.
for the prosecution to prove the actual mode or manner of
misappropriation and in such a case the prosecution would
have to rely largely on the truth or the falsity of the
explanation given by the accused. In Jaikrishnadas Manohar-
das Desai and Anr. v. State of Bombay(1) this Court observed
as follows:
"The principal ingredient of the offence
being dishonest misappropriation or conversion
which may not ordinarily be a matter of direct
proof, entrustment of property and failure in
breach of an obligation to account for the property
entrusted, if proved, may in the light of other
circumstances, justifiably lead to an inference of
dishonest misappropriation on conversion. Convic-
tion of a person for the offence of criminal breach
of trust may not, in all cases, be founded merely
on his failure to account for the property entrust-
ed to him, of over which he has dominion, even when
a duty to account is imposed upon him, but where he
is unable to account or renders an explanation for
his failure to account which is untrue, an infer-
ence of misappropriation with dishonest intent may
readily be made."
The Courts below appear to have convicted the appellant on
the basis of the decision referred to above and have held
that since the explanation given by the appellant was false,
an inference of misappropriation could reasonably be drawn
against him. This proposition cannot be doubted. But the
question is whether the explanation given by the appellant
in this case can be said to be absolutely false ? Another
question that arises is what are the standards to be em-
ployed in order to judge the truth or falsity of the version
given by the defence ? Should the accused prove his case
with the same amount of rigour and certainty, as the prose-
cution is required, to prove a criminal charge, or it is
sufficient if the accused puts forward a probable or reason-
able explanation which is sufficient to throw doubt on
the prosecution case ? In our opinion three cardinal prin-
ciples of criminal jurisprudence are well-settled, namely:
(1) that the onus lies affirmatively on the
prosecution to prove its case beyond reasonable
doubt and it cannot derive any benefit from weak-
ness or falsity of the defence version while prov-
ing its case;
(1) [1960] 3 S.C.R. 319, 324.
445
(2) that in a criminal trial the accused must
be presumed to be innocent unless he is. proved to.
be guilty; and
(3) that the onus of the prosecution never shifts.
It is true that under section 105 of the Evidence Act the
onus of proving exceptions mentioned in the Indian Penal
Code lies on the accused, but this section does not at all
indicate the nature and .standard of proof required. The
Evidence Act does not contemplate that the accused should
prove his case with the same strictness and rigour as the
prosecution is required to prove a criminal charge. In
fact, from the cardinal principles referred to above, it
follows that, it is sufficient if the accused is able to
prove his case by the standard of preponderance of probabil-
ities as envisaged by s. 5 of the Evidence Act as a result
of which he succeeds not because he proves his case to
the hilt but because probability of the version given by him
throws doubt on the prosecution case and, therefore, the
prosecution cannot be said to have established .the charge
beyond reasonable doubt. In other words, the mode of proof,
by standard of benefit of doubt, is not applicable to the
accused, where he is called upon to prove his case or to
prove the exceptions of the Indian Penal Code on which he
seeks to rely. It is sufficient for the defence to give a
version which competes in probability with the prosecution
version, for that would be sufficient to throw suspicion on
the prosecution case entailing its rejection by the Court.
This aspect of the matter is no longer res integra but is
concluded by several authorities of this Court. In Harbha-
jan Singh v. State of Punjab (1) this Court observed
as follows:
"But the question which often arises and has been
frequently considered by judicial decisions is
whether the nature and extent of the onus of proof
placed on an accused person who claims the benefit
of an Exception is exactly the same as the nature
and extent of the onus placed on the prosecution in
a criminal case; and there is consensus of judicial
opinion in favour of the view that where the burden
of an issue lies upon the accused, he is not re-
quired to discharge that burden by leading evidence
to prove his case beyond a reasonable doubt. That,
no doubt, is the test prescribed while deciding
whether the prosecution has discharged its onus to
prove the guilt of the accused; but that is not a
test which can be applied to an accused person who
seeks to prove substantially his claim that his
case falls under an Exception. Where an accused
person is called upon to prove that his case fails
under an Exception, law treats the onus as dis-
charged if the accused person succeeds "in proving
a preponderance of probability." As soon as the
preponderance of probability is proved, the burden
shifts to. the prosecution which has still to
discharge its original onus. It must be remembered
that basically, the original onus
(1) [1965] 3 S.C.R. 235, 241
446
never shifts and the prosecution has, at all stages of the
case, to prove the guilt of the accused beyond a reasonable
doubt."
The same view was taken in a later case in State of U.P. v.
Ram Swarup & Anr.(1) where this Court observed as follows:
"That is to say, an accused may fail to
establish affirmatively the existence of circum-
stances which would bring the case within a general
exception and yet the facts and circumstances
proved by him while discharging the burden under
section 105 of the Evidence Act may be enough to
cast a reasonable doubt on the case of the prosecu-
tion, in which event he would be entitled to an
acquittal. The burden which rests on the accused
to prove the exception is not of the same rigour as
the burden of the prosecution to prove the charge
beyond a reasonable doubt. It is enough for the
accused to show, as in a civil case, that the
preponderence of probabilities is in favour of his
plea."
While the Courts below have enunciated the law correct-
ly, they seem to have applied it wrongly by overlooking the
mode and nature of proof that is required of the appellant.
A perusal of the oral and documentary evidence led by the
parties goes to show that the Courts not only sought the
strictest possible proof from the appellant regarding the
explanation given by him, but went to. the extent of mis-
placing the onus on.the accused to prove even the prosecu-
tion case by rejecting the admissions made by the prosecu-
tion witnesses and by not relying on the documents which
were in power and possession of the prosecution itself on
the speculative assumption that they were brought into
existence by the accused through the aid of the officers.
Further more, the Courts below have failed to consider that
once the appellant gives a reasonable and probable explana-
tion, it is for the prosecution to prove affirmatively that
the explanation is absolutely false. In a criminal trial,
it is not at all obligatory on the accused to produce evi-
dence in support of his defence and for the purpose of
proving his version he can rely on the admissions made by
the prosecution witnesses or on the documents field by
the prosecution. In these circumstances, the Court has to
probe and consider the materials relied upon by the de-
fence instead of raising an adverse inference against the
accused, for not producing evidence in support of his
defence, because as we have already stated that the prosecu-
tion can not derive any strength or support from the weak-
ness of the defence case. The prosecution has to stand on
its own legs, and if it fails to prove its case beyond
reasonable doubt, the entire edifice of the prosecution
would crumble down. Thus it would appear to us that both
the Courts below have made an absolutely wrong approach in
deciding the truth of the defence version and have not
followed principles laid down by this Court in judging the
case of the accused.
The Courts below have based the conviction of the appel-
lant on the sole testimony of P.W. 1 the Nazir who has
categorically stated
(1) [1975] 1.S.C.R. 409, 416-17.
447
in the Court that the appellant had taken a sum of Rs.
10,000/- on January 9, 1965 and thereafter he never returned
this amount to the Nazir until September 30, 1965. The
Courts below have chosen to place implicit reliance on the
evidence of P.W. 1 completely ignoring the important admis-
sions made in favour of the accused by other prosecution
witnesses some of whom were declared hostile and some of
whom were not. Before analysing the evidence, it may be
necessary to describe the exact allegation made by the
prosecution against the accused. The starting point of the
case is a meeting which is said to have taken place in the
Secretariat on September 25, 1964 in which according to the
appellant he was positively directed to visit the villages
and persuade the land-owners to receive the compensation and
this formed the occasion for the A.D.M. to have withdrawn
the money to visit the spot with the money. According to
the prosecution no such decision was at all taken in the
meeting and the visit to the village Balichandrapur might
have been for some other purpose and the question of distri-
bution was only a pretext invented by the accused to shield
his guilt. We would, therefore, now take up the evidence
regarding the meeting said to have taken place on September
25, 1964. We might also mention that the learned Special
Judge has believed the statement of the accused that he did
attend the meeting in the Secretariat on September 25, 1964,
as would appear from the finding given by him at p. 79 of
the Paper Book. What the Special Judge has not accepted is
the assertion of the accused that he had been directed to
visit the village personally and distribute the amounts to
the villagers. The meeting is said to have been called by
the Secretary Works Department and therefore the Secretary
Works Department was the best person who would have thrown
light on the subject and would have clinched the issue. The
Secretary, Works Department, was a Government servant and
it was not at all difficult for the prosecution to have
examined him to settle the controversy on this matter. For
the reasons best known to the prosecution, the Secretary,
Works Department, was not at all examined and we have to
decide this question on the basis of oral and documentary
evidence produced by the prosecution. The Special Judge,
instead of drawing an adverse inference against the prosecu-
tion, has placed the onus on the accused for not having
summoned the Secretary, Works Department, as a witness in
defence forgetting that it was part of the prosecution case
itself that no decision to distribute the amount was taken
in the meeting and therefore, the money was not taken for
distribution to tenants in the village but was misappropri-
ated. It was not for the defence to prove the prosecution
case which formed the bulwark of the charge of misappro-
priation. Further more, the Secretary, Works Department,
was a high Officer of the Government and he could have
thrown a flood of light on this question.
Now coming first to the oral evidence, P.W. 8 Sayad
Allamuddin who was the Land Acquisition Officer Cuttack has
testified to the fact that in the meeting held on September
25, 1964 the appellant had been asked to take early action
for payment of compensation money by going personally to
persuade the tenants. Perhaps, it was because of this
statement, that this witness was declared hostile, and the
prosecution
448
sought permission to cross-examine him. The actual state-
ment made by him in the Court may be quoted thus:
"The accused had been asked to take early
action for payment of the compensation money, by
going personally and by persuading the tenants. It
was the duty of the accused to see that compensa-
tion amounts were paid for land acquisition."
When the witness was declared hostile, all that was elicited
from him was as follows:
"It is not a fact that I had not stated to
Investigating Officer that the accused and the
Executive Engineer persuaded the tenants to receive
the compensation amount. It is not a fact that I
had stated to the Investigating Officer that while
we were returning, some people wanted to take part
payments for the lands already acquired, but no
payment was made by the accused as we were then
leaving."
Thus the prosecution even in cross-examination did not give
any suggestion that the witness who was present in the
meeting held on September 25, 1964 had stated on earlier
occasions that no decision was taken in the meeting direct-
ing the accused to visit the village and persuade the ten-
ants to receive the compensation amounts. He merely did not
state to the police that when the accused and the Executive
Engineer visited the spot they did not persuade the tenants
to receive the compensation amounts. This was a case of
a mere omission of a broad detail and not a case of contra-
diction. In these circumstances, therefore, the evidence
of this witness on the question as to what transpired in the
meeting and the nature of the directions given to the appel-
lant remains unchallenged, and even if he was declared to
be a hostile witness, he does not cease to be a reliable
witness. if the Court chooses to accept his testimony.
Before proceeding further we might like to state the law
on the subject at this stage. Section 154 of the Evidence
Act is the only provision under which a party calling its
own witnesses may claim permission of the Court to cross-
examine them. The section runs thus:
"The Court may in its discretion permit the
person who calls a witness to put any question to
him which might be put in cross-examination by the
adverse party."
The section confers a judicial discretion on the Court to
permit crossexamination and does not contain any conditions
or principles which may govern the exercise of discretion.
It is, however, well-settled that the discretion must be
judiciously and properly exercised in the interests of
justice. The law on the subject is well-settled that a
party will not normally be allowed to cross-examine its own
witness and declare the same hostile, unless the Court is
satisfied that the statement of the witness exhibits an
element of hostility or that he has
449
resiled from a material statement which he made before an
earlier authority or where the Court is satisfied that the
witness is not speaking the truth and it may be necessary to
cross-examine him to get out the truth. One of the glaring
instances in which this Court sustained the order of the
Court in allowing cross-examination was where the witness
resiles from a very material statement regarding the manner
in which the accused committed the offence. In Dahyabhai
Chaganbhai Thakker v..State of Gujarat(1) this Court made
the following observations:
"Section 154 does not in terms, or by neces-
sary implication confine the exercise of the power
by the court before the examination-in-chief is
concluded or to any particular stage of the exami-
nation of the witness. It is wide in scope and the
discretion is entirely left to the court to exer-
cise the power when the circumstances demand. To
confine this power to the stage of examination-in-
chief is to make it ineffective in practice. A
clever witness in his examination-in-chief faith-
fully conforms to what he stated earlier to. the
police or in the committing court, but in the
cross-examination introduces statements. in a
subtle way contradicting in effect what he ;stated
in the examination-in-chief. If his design is
obvious, we do not see why the court cannot,
during the course of his cross-examination, permit
the person calling him as a witness to put ques-
tions to him which might be put in cross examina-
tion by the adverse party."
"Broadly stated, the position in the present
case is that the witnesses in their statements
before the police attributed a clear intention to
the accused to commit murder, but before the
court they stated that the accused was insane and,
therefore, he committed the murder."
A perusal of the above observations will clearly indicate
that the permission to cross-examination was upheld by this
Court because the witnesses had categorically stated before
the police that the accused had committed the murder but
resiled from that statement and made out a new case in
evidence before the Court that the accused was insane. Thus
it is clear that before a witness can be declared hostile
and the party examining the witness is allowed to cross-
examine him, there must be some material to show that the
witness is not speaking the truth or has exhibited an ele-
ment of hostility to the party for whom he is deposing.
Merely because a witness in an unguarded moment speaks the
truth which may not suit the prosecution or which may be
favourable to the accused, the discretion allow the
party concerned to cross-examine its own witnesses cannot be
allowed. In other words a witness should be regarded as
adverse and liable to be cross-examined by the party calling
him only when the Court is satisfied that the witness bears
hostile animals against the party for whom he is deposing or
that he does not appear
(1) [1964] 7 S.C.R. 361,368, 369-70.
450
to be willing to tell the truth. In order to ascertain
the intention of the witness or his conduct, the Judge
concerned may look into the statements made by the witness
before the Investigating Officer or the previous authorities
to find out as to whether or not there is any indication of
the witness making a statement inconsistent on a most mate-
rial point with the one which he gave before the i previous
authorities. The Court must, however, distinguish between a
statement made by the witness by way of an unfriendly act
and one which lets out the truth without any hostile inten-
tion.
It may be rather difficult to lay down a rule of univer-
sal application as to when and in what circumstances the
Court will be entitled to exercise its discretion under s.
154 of the Evidence Act and the matter will largely depend
on the facts and circumstances of such case and on the
satisfaction of the Court on the basis of those circum-
stances. Broadly, however, this much is clear that the
contingency of cross-examining the witness by the party
calling him is an extra-ordinary phenomenon and permission
should be given only in special cases. It seems to us that
before a Court exercises discretion in declaring a witness
hostile, there must be some material to show that the wit-
ness has gone back on his earlier statement or is not
speaking the truth or has exhibited an element of hostility
or has changed sides and transferred his loyalty to the
adversary. Further more, it is not merely on the basis of a
small or insignificant omission that the witness may have
made before the earlier authorities that the party calling
the witness can ask the Court to exercise its discretion.
The Court, before permitting the party calling the witness
to cross-examine him, must scan and weigh the circumstances
properly and should not exercise its discretion in a casual
or routine manner.
It is also clearly well settled that the mere fact that
a witness is declared hostile by the party calling him and
allowed to be crossexamined does not make him an unreliable
witness so as to exclude his evidence from consideration
altogether. In Bhagwan Singh v. State of Haryana(1), Bhag-
wati, J., speaking for this Court observed as follows:
"The prosecution could have been avoided
requesting for permission to cross-examine the
witness under Section 154 of the Evidence Act. But
the fact that the court gave permission to the
prosecutor to cross-examine his own witness,
thus characterising him as, what is described as a
hostile witness, does not completely efface his
evidence. The evidence remains admissible in the
trial and there is no legal bar to base a convic-
tion upon his testimony if corroborated by other
reliabIe evidence."
Applying these principles, we would now examine the
position. So far as P.W. Sayad Allamuddin was concerned, he
was the Land Acquisition Officer and merely because he
happened to be working
[1976] 1 S.C.C. 389, 391-92.
451
under the accused, there was no reason for him to depose
falsely at a time when the appellant had been suspended and
was facing a trial before the Special Judge. Further more,
on the basic point that the accused had been asked in the
meeting to go personally to the village and persuade the
tenants to receive compensation money nothing has been
elicited from him even in cross-examination to show that
this statement was an after-thought or was in any event
incorrect or false. We shall presently show that this
statement is supported by documents of an unimpeachable
nature which have been produced by the prosecution itself
and whose genuineness cannot be doubted. Exhibit 2 which
is a note by this witness dated January 9, 1965 long
before an inquiry started against the accused contains
categorically a statement which runs as follows:
"In the last meeting held in the Secretariat
the Secretary, Works Department suggested that the
A.D.M. and the Executive Engineer (R & B)
should .try to persuade the villagers and make
payment of the compensation."
This note further shows that the appellant proposed to pay
a visit to the area along with the Executive Engineer and he
had suggested that the A.D.M. should take an amount of Rs.
10,000/- for disbursement if the villagers agreed to
receive compensation. This document, according to P.W. 1,
the Nazir, who is the star witness of the prosecution, was
received by him as far back as January 9, 1965 along with
Ext. 1 the order of the appellant directing the Nazir to pay
him Rs. 10,000/-. It would be impossible to suggest that as
early as January 9, 1965 the witness Sayad Allamuddin Ahmed
P.W. 8 was fabricating this document regarding an event
which had taken three or four months ago without any rhyme
or reason. Thus Ext. 2 fully corroborates the evidence of
P.W. 8 on the point as to what transpired at the meeting
held in the Secretariat and demolishes the prosecution case
that no instructions were given to the appellant on Septem-
ber 25, 1964 in the meeting for visiting the spot and per-
suade the tenants to accept compensation money. In these
circumstances, therefore, we feel that the Trial Court was
not at all justified in declaring P.W. 8 as a hostile wit-
ness or in allowing the prosecution to cross-examine him.
Even if he was cross-examined his evidence appears to be
fully acceptable and worthy of credence. He is a person of
status and responsibility and there is nothing to show why
he should depose falsely merely to help the accused knowing
full well that being a Government servant he might be
harmed if he made a false statement in order to support the
appellant.
This fact is further supported by another official docu-
ment which is Ext. 10, namely, the tour diary of the appel-
lant dated January 7, 1965 to January 31, 1965. In this
diary the appellant, as far back as January 7, 1965, made a
clear mention of the facts that transpired at the meeting
and stated thus:
"Discussed with Revenue Secretary regarding
various allegations of Kanika Tahasil pending for
enquiry. He also wanted that I should visit the
spot and enquire into the matter
452
personally and also make a thorough enquiry into
the various encroachments in different forest
blocks of Kanika Tahasil."
This statement which is made in an official document in the
discharge of his duties has been made even before the money
was sought to be withdrawn from the treasury and at a time
when there was no dispute at all regarding the question of
misappropriation. This document also fully corroborates the
evidence of P.W. 8. Thus from the evidence of the prosecu-
tion itself, the fact that in the meeting held in the Secre-
tariat a decision was taken by Which the appellant was
directed to visit the village Balichandrapur and persuade
the tenants to accept the compensation has been amply
proved. The only person who could have contradicted this
fact or falsified the same would have been the Secretary,
Works Department, in whose presence the meeting took place
whom the prosecution did not choose to examine. On the
materials produced by the prosecution itself, it is manifest
that the prosecution has miserably failed to prove that the
visit of the A.D.M. to the village Balichandrapur on Janu-
ary 9, 1965 was not in connection with the payment of com-
pensation to the villagers as no such decision was taken in
the meeting.
The next question that arises is whether the appellant
had actually taken the money for disbursement to the vil-
lage Balichandrapur. On this point also oral and documen-
tary evidence led by the prosecution clearly proves the
version given by the appellant. To begin with, P.W. 7 who
was an Executive Engineer at the relevant. time has categor-
ically stated that he had accompanied the appellant to
village Balichandrapur and the appellant did try to persuade
the tenants to receive the compensation but they refused to
accept the same. In this connection the witness deposed as
follows:
"The accused thereafter enquired from the
parties as to on what terms they were willing to
give up possession of their lands which had
already been selected for acquisition. The
parties stated that if they were paid compen-
sation at the rate of Rs. 200/- per gunth,
they would part with their lands. The accused
stated that he did not have sanction for payment of
Rs. 200/- per gunth and could not pay them off
hand, but if the parties wanted payment at the rate
of Rs. 150/- per gunth he was willing to pay them
cash at the spot. The parties did not agree. The
accused said that they would be paid Rs. 200/-.
when that rate would be sanctioned and he was going
to write about it."
This witness was also declared hostile and that too not
because he had not made the statement referred to above
before the police, but because of certain minor omissions in
his statement before the police. These omissions consisted
of the facts that there is no mention about the previous
visit to Balichandrapur or that he had stated that
while he was returning to Cuttuck he remained sitting in the
car and the accused asked P.W. 3 to follow him with the bag
453
and things like that. It has, however, not been elicited
from him in cross-examination nor has it been argued that
the witness had told the Investigating Officer that the
accused had not met or had not talked at all with the ten-
ants in his presence in order to persuade them to accept the
compensation.
P.W. 6 Udaynath Parida who is a villager of Balichandra-
pur has categorically supported the statement of P.W. 7 that
the accused had agreed to pay compensation at the rate of
Rs. 200/- per gunth and persuaded them to give up possession
but the villagers refused. In this connection, the witness
stated thus:
"On hearing of the arrival of the accused we
met him in Balichandrapur near the market place.
We demanded payment of compensation money at a rate
higher than what was proposed by Government. The
accused and his party agreed to pay us compensation
at the rate of RS. 200/per gunth and persuaded us
to give up possession so that Government may not be
forced to take possession forcibly with the help of
police."
"The accused had informed the villagers in-
cluding me that if we would be willing to accept
the rate already fixed by Government, at Rs. 150/-
per gunth, he would pay us at the spot;"
This witness was also declared hostile, merely because of
certain facts which he had omitted to state before the
police. Thus it would appear that all the prosecution
witnesses P.Ws. 6, 7 and 8 had been allowed to be declared
hostile without any justification and the Trial Court appear
to have exercised its discretion mechanically in readily
accepting the prayer of the prosecution without making any
probe into the reasons for allowing the cross-examination.
Indeed if suck a discretion is freely exercised, then the
accused will suffer serious prejudice and will be deprived
of taking advantage of any damaging admission made by the
prosecution witnesses, merely because the prosecution is
allowed to cross-examine them by declaring them hostile.
Such a course of action would have serious repercussion on
the fairness of the trial.
After going through the evidence of P.Ws. 6 and 7 we see
absolutely no reason to distrust their evidence. So far as
P.W. 7 is concerned he is a very high officer being an
Executive Engineer at the relevant time and in no way subor-
dinate to the appellant. He has admitted in his cross-
examination by the prosecution that even his confidential
reports are not written by the accused. There is also
nothing to show that he was in any way interested in the
accused or was his great friend and supporter. In these
circumstances, he had no reason to make a false statement
that the accused had visited the village and persuaded the
tenants to accept the compensation. The evidence of the
villager P.W. 6 Udayanath Parida who is an independent wit-
ness also proves that the accused had taken the money to the
village and made efforts to persuade the tenants to accept
the money. In fact the evidence of these two witnesses on
this point follows as a logical corollary from the decision
taken at the meeting held by the Secretary, Works Depart-
ment, where the appellant was
454
directed to visit the spot and persuade the tenants to
accept compensation. The evidence of P.W. 7 is fully cor-
roborated by Ext. B a letter written by P.W. 7 Executive
Engineer dated July 6, 1966, a copy of which was sent to
the appellant and other officers. In this letter which is
addressed to the Assistant Engineer, Road, Office of the
Chief Engineer, Bhubaneswar, P.W. 7 as Executive Engineer
had clearly mentioned that he along with the appellant had
visited the site at Balichandrapur and persuaded the tenants
to accept the money by enhancing the amount to Rs. 200/- per
gunth to which the tenants. agreed but for this the sanction
had to be taken. It was, however, submitted by counsel for
the State that this letter appears to have been brought into
existence after the inquiry against the accused was launched
in order to help him. This was an official letter and we do
not see any reason why such a high officer as the Executive
Engineer should have gone to the extent of fabricating an
unnecessary letter to help the appellant against whom an
inquiry had been ordered. Even if this letter be excluded
from consideration, the other evidence both oral and docu-
mentary clearly show that the appellant had visited the spot
in village Balichandrapur on January 20, 1965 with a view to
distribute the compensation money and did make an attempt to
persuade the tenants to accept the compensation but they
refused to accept the same unless the compensation was
raised to Rs. 200/- per gunth.
As against this the prosecution relied merely on the
fact that in the tour diary of the accused Ext. 8 of the
even date, viz. January 20, 1965, as also in the office
report there is no clear mention that the appellant tried to
persuade the tenants to accept the money or that he had
taken the money with him to the spot. These documents
undoubtedly contain the statement regarding the visit of the
appellant to the spot and some other matters. The question
of actual distribution or persuasion of the tenants being a
matter of detail does not appear to have been mentioned in
those documents. It would have been necessary to be men-
tioned in the documents, if the tenants had agreed to accept
the money and if the money was actually disbursed to them.
As the proposal suggested by the appellant did not materia-
lise, there was no occasion for mentioning these facts in
those documents.
As we have already indicated, it was not for the accused
but for the prosecution to prove, before raising an adverse
inference against the accused, that the visit of the appel-
lant to Balichandrapur was merely a hoax. On the materials
placed before us, not only the prosecution has miserably
failed to prove this fact, but the explanation given by the
accused appears to be not only probable but proved by the
accused, even applying the standard of benefit of doubt. For
these reasons, therefore, we do not agree with the finding
of the Courts below that the accused did not take the money
with him to Balichandrapur or made any attempt to distribute
it to the tenants but has misappropriated and retained it
dishonestly.
We might mention here that P.W. 3 Bhakta Charan Mohanti
is another Witness who has supported the case of the ac-
cused. But as
455
the witness has made inconsistent statements which sometimes
go to support the prosecution and sometimes the accused and
is further, contradicted by his own tour diary and T.A.
Bills, we do not choose any reliance on the evidence of this
witness.
The next and the last question that falls for determina-
tion is as to whether or not the accused after returning
from Balichandrapur handed over the money to the Nazir. It
may be mentioned that the appellant had made no secret of
the fact that after returning the money to the Nazir he had
instructed him not to deposit the same in the treasury but
to keep it out of cash for the reason which we have already
indicated. In this connection we have only the word of P.W.
1 the Nazir as against the word of the appellant. The Nazir
also does not appear to be a witness who is completely above
suspicion. Crossexamination of this witness clearly re-
vealed that the manner in which he had kept the accounts was
not at all satisfactory and he was in the habit of allowing
huge amounts to remain with him without depositing them in
the treasury and that he was also building a house for which
he had taken some loans.. Instead of applying a very strict
standard to test the testimony of such a witness, the High
Court seems to have explained the irregularities committed
by the Nazir P.W. 1 thus:
"Heavy cash remaining with the Nazir that
Ext. D discloses and the facts of the Nazir having
secured housebuilding advance during September 1965
may raise speculations and surmises against the
Nazir."
There are, however, important circumstances to indicate
that the explanation given by the appellant is both probable
and reasonable. P.W. 9 who was the Nizarat Officer and who
had not been declared hostile (emphasis ours) has clearly
stated that the amount was taken by the appellant for dis-
bursement. The witness further deposes that in March 1965
he had a discussion with the appellant regarding the amount
of Rs. 10,000/- taken by him and the appellant had then told
him that the amount could not be disbursed as the tenants
did not agree to take the amounts and that he had kept the
amount with the Nazir. In this connection his statement is
as follows:
"In March, 1965, I had a discussion with the
accused regarding the amount of Rs. 10,000/- taken
by him and the accused then told me that the amount
could not be disbursed as the tenants did not agree
to take the amounts and that he had kept the amount
with the Nazir. I did not make any enquiry from
the Nazir regarding this as the balance amount as
shown in the cash Book was the same in the cash
sheet. The accused had told me that the Nazir had
kept the amount of Rs. 10,000/- outside the cash as
per his instructions."
It is, therefore, clear from the admission made by this
witness that the case of the accused t,hat he had given
money to the Nazir is fully supported by him because he has
referred to the statement made to him by the appellant as
far back as March 1965 when there was absolutely no dispute,
no inquiry and no allegation of misappropriation against the
appellant. Much was made by the learned counsel for the
13--1104SCI/76
456
State out of the fact that the accused had directed the
Nazir to keep the amount outside the cash which betrayed the
falsity of his explanation. A careful study of the circum-
stances in which the accused was placed would show that the
accused was very much anxious to disburse the payments to
the villagers, he had tried to persuade them to accept the
money, but the villagers wanted more compensation and he had
already taken steps to move the Government for increasing
the amount of compensation to Rs. 200/- per gunth. In these
circumstances, therefore, there may be some justification in
his thinking that the money should be readily available to
be paid as soon as the villagers decided to accept the same.
It is possible that he may have made an error of judgment or
calculation or he was rather too optimistic but this conduct
by itself does not lead to the inference of dishonest inten-
tion to misappropriate the money. At any rate, in view of
the evidence of P.W. 9 the Nizarat Officer that the amount
was given to the Nazir by the appellant which fact was
disclosed to him as far back as March 1965, it will be
difficult to accept the uncorroborated evidence and testimo-
ny of P.W. 1 the Nazir, that he did not receive the money
from the appellant after January 9, 1965.
Further more there were other important circumstances
why no reliance should be placed on the evidence of the
Nazir P.W. 1. It would appear from the evidence of the
Nazir himself that on September 15, 1965 the cash in the
hands of the Nazir was Rs. 11,16,066.57 out of which Rs.
7,36,810.86 were for land acquisition proceedings. Admit-
tedly he did not deposit this amount until October 20, 1965.
He has given no explanation as to why he had kept such a
huge amount with him without depositing the same in the
Treasury. This was undoubtedly a grave lapse on the part of
the Nazir and should have been taken notice by the Courts
below. Exhibit D is the order of the appellant dated Septem-
ber 27, 1965 by which the Nazir was directed to deposit the
amount in the treasury and it was only on October 20, 1965
as would appear from Ext. D/4 that the Nazir deposited this
amount in the treasury. The Nazir has given no explanation
for this delay. Again it appears that the Nazir was also
building a house and he had received advances from the
Government which he had not repaid and the possibility that
he might have himself misappropriated the money handed over
to him by the appellant for the purpose of returning the
advances cannot safely be excluded. It would appear that the
Nazir had taken a loan of Rs. 4,500/- on September 8, 1965
and another loan of Rs. 4,500/- was taken by him on Septem-
ber 27, 1965, total being Rs. 9,000/-, and it is quite
possible that the Nazir may have paid these amounts of the
loans from out of the money given to him by the appellant.
Finally even if the accused had not given any money to
the Nazir P.W. 1 right from January 9, 1965 he should have
at least approached him and should have drawn the attention
of the appellant to the fact that the money paid to him for
the purpose of disbursement had not so far been deposited
with him. No such thing was done by the Nazir. It was
suggested by the prosecution that as the appellant was in
charge of the Treasury, the Nazir did not think it proper to
interrogate him. It was, however, not a question of inter-
rogation. It was
457
only a question of a subordinate officer pointing out some-
thing of very great importance to a superior officer which a
superior officer would never misunderstand. In view of
these circumstances, therefore, we are not in a position to
place implicit reliance on P.W. 1.
There is yet another very important document which has
been brought on record by the appellant which is Ext. A
dated December 8, 1965. This is a statement by P.W. 3 which
to a very great extent supports the case of the accused, but
as we do not propose to rely on the evidence of P.W. 3, we
would exclude this document from consideration. Another
document Ext. H is a statement of the Accountant Ghansham
Das which appears at p. 215 of the Paper Book wherein Mr.
Ghansham Das clearly mentions that when he found that Rs.
10,000/- were not traceable, be brought the matter to the
notice of the officer in charge and he was told by the Nazir
that the amount of Rs. 10,000/- had been left with him by
the appellant with instructions not to refund in the treas-
ury. TIffs statement clinches the issue so far as the
defence case is concerned and fully proves that the explana-
tion given by the appellant was correct. This document
would also have falsified the evidence of P.W. 1 who has
tried to put the entire blame on the shoulders of the appel-
lant. Unfortunately, however, the prosecution did not
choose to examine Ghansham Das the Accountant who was a very
material witness in order to unfold the prosecution narra-
tive itself, because once a reasonable explanation is given
by the appellant that he had entrusted the money to the
Nazir on his return from Balichandrapur on January 20, 1965
which is supported by one of the prosecution witnesses, P.W.
9, as referred to above, then it was for the prosecution to
have affirmatively disproved the truth of that explanation.
If Ghansham Das would have been examined as a witness for
the prosecution, he might have thrown a flood of light on
the question. In his absence, however, Ext. H cannot be
relied upon, because the document is inadmissible. At any
rate, the Court is entitled to draw an inference adverse to
the prosecution for not examining Ghansham Das Accountant as
a result of which the explanation given by the appellant is
not only reasonable but stands unrebutted by the prosecution
evidence produced before the Trial Court.
Having regard to these circumstances. it is not neces-
sary for us to consider the other documents, like Exts. F, G
and E produced by the appellant because they do not throw
much light on the question and the facts contained therein
have been seriously disputed by the prosecution. Similarly
we have not referred to the other documents produced by the
prosecution which show the entry of the money received by
the appellant and 50 on because these facts are not disputed
by the appellant at all.
On a consideration of the evidence and the circumstances
we are satisfied that the appellant has been able to prove
that the explanation given by him was both probable.and
reason.able judged by the standard of the preponderance of
probabilities This being the position, it was for the
prosecution to prove affirmatively m what manner the amount
was misappropriated after it had been transferred from the
custody of
458
the appellant to the custody of the Nazir. Such proof is
wholly lacking in this case. As the accused has given a
reasonable explanation, the High Court was in error in
drawing an adverse inference against him to the effect that
he had misappropriated the money.
For these reasons, the appeal is allowed, the judgments
of the Courts below are set aside, the convictions and
sentences imposed on the appellant are quashed and he is
acquitted of the charges framed against him. .
P.H.P. Appeal allowed.
459