judgement:
: 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 section 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.
vs 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) , 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 section 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 vs 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) ; , 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. vs 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 vs 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) ; ,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 section 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 vs 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 ; , 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.

summary/full:
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.
vs State of Bombay, 324; followed.
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 vs State of Punjab, ; , 241 and State of U.P. vs 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 vs State of Gujarat, ; , 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 vs State of Haryana, ; , 391 92 followed.
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]


judgement:
: Criminal Appeal No. 149 of 1976.
Appeal by Special Leave from the Judgment and Order dated 19 7 1975 of the Punjab & Haryana High Court in Crimi nal Appeal No. 1205 of 1974 and Murder Reference No. 60 of 1974.
902 Frank Anthony, Hatbans Singh and Harjender Singh for Appellants Nos. 1, 2 and 4.
A.N. Mulla, and Harbans Singh for Appellants Nos. 3 and 5.
R.L. Kohli for the Respondent.
The Judgment of the Court was delivered by FAZAL ALI, J.
After having gone through the entire evidence on the record and the judgment of the courts below and after hearing counsel for the parties and for the rea sons that we have already given, we are fully satisfied and convinced .that the prosecution case against the appellants has been proved beyond reasonable doubt and that the appel lants were rightly convicted by the Sessions Judge and the High Court.
This, however, does not dispose of the matter completely, because it appears that the commitment inquiry was held under the Code of Criminal Procedure, 1973 and the Sessions Judge after delivering the judgment of conviction has not given any opportunity to the accused of being heard on the question of sentence separately.
In Santa Singh vs State of Punjab(1) this Court has taken the that under the provisions of the Code of Criminal Procedure, 1973, it is incumbent on the Sessions Judge delivering a judgment of conviction to stay his hands and hear the accused on the question of sentence and give him an opportunity to ,lead evidence which may also be allowed to be rebutted by the prosecution.
This procedure has not been adopted by the learned Sessions Judge and, therefore, the sentences of death passed on the appellants Narpal Singh, Gurdev Singh and Jagmohan Singh cannot be sustained although the convictions recorded against them are confirmed by us and will not be reopened under any circumstance whatsoever.
Counsel for the State has drawn our attention to the fact that in some cases the accused have raised the question that once the case is remitted to the Sessions Judge, then the accused is entitled to claim a de novo trial on the question of conviction also.
In this connection, reliance was placed on Pyare Lal vs State of Punjab(2).
In the first place, this case was based on an interpretation of sections 251 to 259 of the Code of Criminal Procedure, 1898, and the reason why this Court held that the proceedings by a succes sor Judge cannot be started from the stage left out by his predecessor was that a Judge who had heard the whole of the evidence before had the advantage of watching the demea nour of the witnesses which would be lost if the successor Judge was to proceed from the stage left by his predecessor.
It is true that under section 326 of the Code of Criminal Proce *Only pages 33 to 36 of the Judgment are reported as .per directions of the Court.
(1) [1976] s.c.c. 190.
(1) 903 dure, 1973, there is a discretion given to the successor Magistrate to act on the evidence already recorded and not to hold a de novo trial and no such provision is made in case of a trial by the Sessions Judge or a Special Judge.
The ratio of Pyare Lal 's case (supra), however, is not applicable to the present case.
Once the judge who hears the evidence delivers a judgment of conviction, one part of the trial comes to an end.
The second part of the trial is restricted only to the question of sentence and so far as that is concerned, when a case is remitted by us to the Sessions Court for giving a hearing on the question of sentence under section 235(2) of the Code of Criminal Procedure, 1973, there would be fresh evidence and the principle that the Sessions Judge may not act on evidence already recorded before his predecessor and must conduct a de novo trial would not be violated.
In these circumstances, therefore, the ratio of Pyare Lal 's case mentioned above cannot be applied or projected into the facts and circumstances of the present case or to cases where the trial has ended in a conviction but the matter has been remitted to the Trial Court for hearing the case only on the question of sentence.
So far as the case of Devinder Singh and Maha Singh are concerned as they have already been given sentences of life imprisonment and this is the minimum sentence that could be passed under section 302 I.P.C. it is not necessary to remit their cases to the Sessions Judge.
The convictions and sentences of these two accused are, therefore, confirmed and their appeals are dismissed.
As regards the appeals by the three other appellants, namely, Narpal Singh, Jagmohan Singh and Gurdev Singh, we confirm their convictions which would not be reopened under any circumstances, but set aside the sentence of death passed on them and remit their cases to the Trial Court for passing sentences on them afresh after hearing the accused in the light of the observations made by us and to this extent only the appeals of the three appellants are allowed so far as their sen tences are concerned.
S.R. Appeals partly allowed.

dataset_name: IN-Abs

summary/full:
Appellants Nirpal Singh, Gurdev Singh and Jagmohan Singh were convicted under section 302 J.P.C. and sentenced to death while the appellants Devinder Singh, and Maha Singh were convicted under section 302 but sentenced to imprisonment for life by the Sessions Judge.
The High Court upheld the convictions as also the sentences while accepting the refer ence under section 366 made by the Sessions Judge and dismissing the appeals by the accused.
On appeal by special leave, the appellants contended inter alia, that the sentence passed against them was bad as the Sessions Judge, after delivering the judgment of conviction has not given any opportunity to them of being heard on the question of sentence separately.
Dismissing the appeals of Devinder Singh and Maha Singh and partly allowing the appeals of the other three appel lants, the Court maintained their convictions set aside the sentence of death passed on them and remitted their cases to the trial Court for passing sentences on them afresh under section 235(2) of the Criminal Procedure Code.
The Court HELD: (1) Though the commitment inquiry was held under the Code of Criminal Procedure, 1973, since the procedure under section 235(2) has not been adopted by the Sessions Judge, the sentence of death passed on the appellants, Narpal Singh, Gurdev Singh and Jagmohan Singh in the instant case cannot be sustained.
Since Devinder Singh and Maha Singh have already been given sentences of life imprisonment which is the minimum sentence that could be passed under section 302, remetting their cases to the Sessions Judge was not neces sary.
[902 F G, 903 E] Santa Singh vs State of Punjab [1977] 1 S.C.R. 229, reiter ated.
(2) When a case is remitted by this Court to the Ses sions Court for giving a hearing on the question of sentence under section 235(2) of the Code of Criminal Procedure 1973.
there would be fresh evidence and the principle that the Sessions Judge may not act on evidence already recorded before his predecessor and must conduct de novo trial would not be violated.
The ratio of Pyare Lal 's case cannot be applied or projected into the facts and circumstances of the present case or to cases where the trial has ended in a conviction but the matter has been remitted to the trial Court for hearing the case only on the question of sentence.
[903 A D] Pyare Lal vs State of Punjab , distin guished.


judgement:
Appeal No. 696 of 1971.
Appeal from the Judgment and Decree dated the 20 4 1970 of the Allahabad High Court in First Appeal No.15 of 1966.
A.K. Sen, S.T. Desai and P.P. Juneja for the Appellant.
S.V.Gupte and M.V. Goswami for Respondents.
The Judgment of the Court was delivered by KAILASAM, J.
This appeal is filed by the plaintiff against the judgment of the Allahabad High Court on a cer tificate dismissing the suit for specific performance of a contract of sale dated 24th March, 1964.
878 The facts of the case are briefly as follows : The suit property was owned by one Shri Aditya Narain and the plaintiff/appellant became a tenant of the suit property under Aditya Narain in the year 1942.
On 2nd January, 1961 the respondents, the two defendants in the suit purchased the suit property for Rs. 19,000 from Aditya Narain and the appellant became tenant of the respondents.
Soon after the purchase of the property by the respondents they sought to evict the appellant by filing a petition under section 3 of the U.P. Rent and Eviction Act.
The appellant resisted and the Rent Control and Eviction Officer rejected the petition holding that the respondents ' require ment of the premises was not genuine.
On the mediation of Sri Chand Doneria the parties entered into the suit agree ment on 24th March, 1964.
In pursuance of the agreement the appellant handed over Rs. 4,000 as earnest money to the respondents.
The terms of the agreement will be set out in due course but suffice it at this stage to state that it provided that the appellant should get the sale deed execut ed within two months i.e. upto 24th May, 1964 and in case the appellant did not get the sale registered within two months the earnest money of Rs. 4,000 shall stand forfeited.
From the 5th May, 1964 letters and telegrams were exchanged between the parties but the sale deed was not executed on or before the 24th or on the 25th May as the parties had agreed.
The appellant filed a suit, Civil Suit No. 122 of 1964, in the court of Civil Judge, Agra, on 2nd September, 1964 alleging that the appellant has always been ready and willing to perform his part of the contract and he did all that he was bound to do under the agreement but the respond ents failed to execute the sale deed as agreed and therefore committed breach of the contract.
The plaintiff prayed for a decree of specific performance of the contract of sale dated 24th March, 1964 against the respondents and for direction to the respondents to execute the sale deed of the property and get it registered and in default the sale deed may be executed by the court according to law.
The respond ents filed a written statement denying the various allega tions made in the plaint and pleaded that the appellant did not perform his part of the contract within the stipulated time and the contract thereafter did not subsist and there fore the suit was misconceived.
On these pleadings the trial court framed five issues of which it is relevant to note only two which are issues 1 and 3.
They are as under : Issue No. 3.
"Whether the contract did not subsist on the date the to perform his part of the contract as alleged in the plaint ?" Issue No. 3.
"Whether the contract did not subsist on the.
date the suit was field ? The trial court found that it was proved beyond a shadow of any doubt that the appellant was always ready and willing to perform his pan of the contract and the respondents were not at all anxious to execute the sale deed in his favour and that the respondents were guilty of breach of contract.
On issue No. 3 it found that even though the time for getting the sale deed executed expired after the 24th May, 1964 the 879 appellant would not be disentitled to the relief of specific performance of the contract for sale on the.
ground of delay as the respondents themselves were responsible for it.
The respondents preferred an appeal to the Allahabad High Court and a Bench of the court on the arguments set out two points for determination in the appeal.
They are: ' (1) whether the appellant or the respondents committed the breach of con tract entered into between the parties on 24th March, 1964; and (2) whether the time was of the essence of the contract.
If not, its effect.
The High :Court found that the respond ents were always ready and willing to perform their part of the contract in terms of the agreement dated 24th March, 1964 and it was the appellant who committed the breach of the contract by not getting the sale deed executed by 25th May, 1964 in terms of the agreement dated 24th March, 1964.
The High Court on the issue as to whether time was of the essence of the contract held that in the circumstances of the ease and in view of the conduct of the parties of serv ing on each other notices, counter notices and telegrams they expressed their intention to treat time as of the essence of the contract and that once the time is held to be the essence of the.
contract the appellant 's suit for spe cific performance must fail.
The High Court also held that even if time is not held to be of the essence of the con tract it was of the opinion that the appellant is not enti tled to a decree for specific performance as he had failed to prove that he was ready to perform his part of the con tract.
The appellant applied for a certificate and the High Court by its order dated 22nd February, 1971 granted the certificate under clause (a) of Article 133(1) of the Con stitution.
In this appeal before us the learned counsel for the appellant submitted that the High Court was in error in holding that the time was of the essence of the contract and that the High Court 's finding that the appellant was not ready and willing to perform his part of the contract while the respondents were always ready to perform their part of the contract is opposed to oral and documentary evidence and the probabilities of the case.
The first question that arises for consideration is whether time is of the essence of the contract.
In order to.
determine this question it is necessary to set out the suit agreement which is marked as exhibit 23 at page 137 of the papers.
It runs as follows : "Dear Pandit Govind Prasad Ji Chaturvedi, Sir, A litigation has been going on between you and us with respect to the Kothi of Bima Nagar, of which you are a tenant on behalf of us.
The said dispute has been decided today through the mediation of Sri Shri Chand Done riya, on the terms and conditions given below which shall be.
fully binding on you as well as us.
That you are agreeable to purchase our Kothi of which you are a tenant and a transaction between you and 880 us has been finally settled today; at Rs. 24,000 (rupees twenty four thousand), with respect to the said Kothi.
2.That you are paying us, at present, a sum of Rs. 4000 in cash, as earnest money, the receipt where,of has been acknowledged by us by affixing a revenue stamp at the foot of this letter, and that the remaining sum of Rs. 20,000 shall be paid by you to us at the time of registration.
That the expenses relating registra tion and cost of stamps etc.
shall be borne by you and we shall be entitled to get a sum of Rs. 24,000 (rupees twenty four thousand) net.
That you must get the sale deed executed within two months i.e. upto 24th May, 1964, and in case you do not get the sale deed registered within two months then the earnest money amounting to rupees four thousand, paid by you shall stand forfeited without serving any notice.
But in cane we in some way evade the execution of the sale deed, then you will be entitled to compel us to execute.
the sale deed legally and we shall be liable to pay the costs and damages incurred by you.
That we shall furnish you a guarantee of good title in respect of the property which is free and immune from all sorts of disputes.
That you shall be liable to pay the rent till the date you get the sale deed registered and you shall clear off all amount due to us before registration.
That both the parties shall withdraw their respective cases or get the same dis missed and shall bear their own costs.
That neither party shall take any fresh legal steps during this period of two months by which any hindrance may be caused in execution of our sale deed.
In confirmation of the agreement which has been made between you and me through this letter, you too have affixed your signature on this letter.
Your s, Signature of Hari Dutt Shastri 24 3 1964 Signature of Bhavbhooti Sharma 24 3 1964 X X X X X The relevant clause is clause 4 which provides that the appellant must get the sale deed executed within two months i.e. upto 24th May, 1964, and in case the appellant did not get the sale deed registered within 881 two months then the earnest money amounting to Rs. 4000 paid by the appellant shall stand forfeited without serving any notice.
The clause further provides that in case the re spondents in some way evade the execution of the sale deed then the appellant will be entitled to compel them to exe cute the sale deed legally and the respondents shall be liable to pay the costs and damages incurred by the appel lant.
It is settled law that the fixation of the period within which the contract has to be performed does not make the stipulation as to time the essence of the contract.
When a contract relates to sale of immoveable property it will normally be presumed that the time is not the essence of the contract.
(vide Gomathinayagam, Pillai & Ors.
vs Palaniswami Nadar)(1).
It may also be mentioned that the language used in the agreement is not such as to indicate in unmistakable terms that the time is of the essence of the contract.
The intention to treat time as the essence of the contract may be evidenced by circumstances which are suffi ciently strong to displace the normal presumption that in a contract of sale of land stipulation as to time is not the essence of the contract.
Apart from the normal presumption that in the case of an agreement of sale of immovable property time is not the essence of the contract ' and the fact that the terms of the agreement do not unmiStakably state that the time was under stood to be the essence of the contract neither in the pleadings nor during the trial the respondents contended that time was of the essence of the contract.
In the plaint the allegation was that the appellant has always been ready and willing to perform his part of the contract and he did all that he was bound to do under the agreement while the respondents committed breach of the contract.
The respond ents did not set up the plea that the time was of the es sence of the contract.
In paragraph 32 of the Written Statement all that was stated was that the appellant did not perform his part of the contract within the stipulated time and that the contract thereafter did not.
subsist and the suit is consequently misconceived.
The parties did not go to trial on the basis that time was of the essence of the contract for no issue was framed regarding time being the essence of the contract.
Neither is there any discussion in the judgment of the trial court regarding this point.
The trial court after considering the evidence came to the conclusion that appellant was always ready and willing to perform his part of the contract while the respondents were not in the circumstances therefore the High Court was in error setting as one of the points for determination wheth er time was of the essence of the contract.
The High Court after referring to the agreement was of the view that the agreement was entered into between the parties during the course of a litigation between the appellant and the re spondents and in pursuance of the agreement the parties were directed, to withdraw their cases and were directed further not to take fresh legal steps during the period of two.
months within which the sale deed was to be executed.
On taking (1) ; , 233. 882 into, account the circumstances of the case and. the con duct of the parties of serving on each other notices, coun ter notices and telegrams the High Court inferred an inten tion on the part of the parties to treat the time as of essence, of the contract.
We will refer to the terms of the contract and the correspondence between the parties in due course but at this stage it is sufficient to state that neither the terms of the agreement nor the correspondence would indicate that the parties treated time as of essence of the contract.
In fact, according to the agreement the sale deed ought to have been executed by the 24th May but it is the admitted case that both the parties consented to have the document registered on the 25th May.
On the question whether the time is of the essence of the contract or not we are satisfied that the High Court was in error in allowing the respondents to: raise this question in the absence of specific pleadings or issues raised before the trial court and when the case of time being the essence of the contract was not put forward by the respondents in the trial court.
Apart from the absence of pleadings we do not find any basis for the plea of the respondents that the time was of the essence of the contract.
The decision on this issue would be sufficient to allow this appeal and to grant the appellant the decree for spe cific performance which he has prayed for but as on the question whether the appellant was always ready and willing to perform his part of the contract the courts below have given contrary finding and the High Court ,has recorded a finding that the appellant was not ready and willing to.
perform his part of the contract while the respondents were always ready and willing with which finding we are unable to agree we will discuss the evidence at some length.
The background to the suit agreement dated 24th March, 1964 is that there was litigation between the parties.
The appellant was a tenant under the previous owner, Aditya Narain, from 1942.
The respondents purchased the property in 1961 and in 1963 filed.
a petition to evict the appel lant.
That petition was resisted and the Rent Control and Eviction Officer dismissed the petition of the respondents.
While the matters stood thus the compromise was entered into.
The appellant having been a tenant of the" premises from 1942 would have been naturally anxious to, continue in possession while the respondents who. had purchased the property in 1961 were anxious to.
get into possession.
As they wanted to settle their dispute the respondents agreed to.
sell the property for which the appellant was willing and.
which they had purchased on 2 1 1961 for Rs. 19,000 to the appellant for Rs. 24,000.
Of this Rs. 24,000 the tenant paid Rs. 4000 in cash as earnest money.
This would indicate that the tenant was keen on purchasing the property in which he was living since 1942.
The agreement provided that the appellant must get the sale deed executed within two, months after 24th March, 1964 and, if the appellant failed to get the sale deed registered within two months the earnest money of Rs. 4000 shall stand forfeited.
Normally one would not expect the appellant to.
forfeit his earnest money.
As the period stipulated was 24th May, 1964 the appellant started prepara 883 tions for getting the sale deed executed.
According to the appellant he wrote exhibit 24 on 5th.
May, 1964 calling upon the respondents to come to Agra on the 18th May, 1964 for exe cuting and making registration in pursuance of the contract and to complete the sale deed.
According to the appellant no reply was received to this letter and he sent a notice through his advocate, exhibit 35, on 13th May, 1964 in which he stated that he was ready to pay the balance of the consider ation of Rs. 24,000 along with the entire arrears of rent and requested the respondents to.
execute the sale deed by 18th May and latest by 24th May, 1964.
The lawyer 's notice ,,iso.
referred to the letter of the 5th May. Another lawyer 's notice.
was sent, exhibit 36, on 20th May, 1964 by registered post complaining that the respondents had not replied to his letter dated 5th May, 1964 and to his law yer 's notice dated 13th May, 1964 and called upon them to.
get the sale deed registered by 25th May, 1964 as 24th May is Sunday.
Along with the lawyer 's notice a draft sale deed was endorsed.
These three letters were followed by tele grams which were sent by the appellant to both the respond ents on 20th May, On the 22nd.
May the appel lant attended the office of the Sub Registrar, Agra and presented an application to the Registrar to the effect that he was at the Registrar 's office between the hours 3 and 4 p.m. on that day.
On 22nd May, 1964 the appellant received a reply from the respondents acknowledging the registered notices given on 13th and 20th May by the appellant 's coun sel.
According to the reply by the advocate on behalf of the respondents the two letters of the 13th and 20th May were received by the respondents only on the 22nil May, 1964.
In this reply of 22nd May, 1964 the advocate of the respondents denied the allegation in the notice dated 20th May, 1964 of the.
appellant that the draft sale deed has been put in the cover.
It also complained that the draft sale deed has not been sent.
The respondents stated that they were ready to execute the sale deed but the appellant was wanting postponement for reasons best known to him.
It may be noted that the two complaints that are made in the advocate 's notice on behalf of the respondents.
do not bear scrutiny.
The notice complains that the draft sale deed has not been enclosed.
It has been proved that in one of the notices sent to the son and which was opened in the court the draft sale deed was found enclosed.
Further without the cooperation of the respondents it is difficult to prepare a draft sale deed as the date.of sale by Aditya Narain in favour of the respondents would not have been available to.
the appellant.
In fact Mr. Gupte the learned counsel for the respondents submitted that the letter stating that a copy of the draft sale deed was enclosed cannot be true as the appellant could not have got particulars about the earlier document of title of the respondents.
The respond ents ' plea that the draft sale deed was not received does not show that they were willing or cooperating in the execu tion of the sale deed.
We are unable to, give any weight to the contention of the learned counsel that their plea that they sent a draft sale deed cannot be true as they could not have been in possession of particulars about the title deed of the respondents.
In fact no question was asked of the appellant when he was in the box as to how they got information as to the sale deed, by Aditya Narain in favour of the respondents.
The letter of the 884 5th May the receipt of which was not denied by the reply of the advocate for the respondents and the lawyer 's notices on behalf of the appellant, exhibit P 35 and P 36, dated 13th May and 22nd May, 1964 would show great anxiety on the part of the appellant to complete the sale deed.
There can be no doubt that they had basis for suspecting that the respond ents were not willing to perform their part of the contract.
A considerable volume of evidence has been let in on behalf of the appellant as well as the respondents regarding as to what took place in the Sub Registrar 's office on 25th May, 1964.
It is sufficient to state that both the parties let in oral evidence as well as acknowledgment by the Sub Registrar to prove their presence.
Though both the parties would assert their presence it is common ground that they did not meet each other.
It is difficult for us to.
comprehend as to how if both the parties were present at the Sub Registrar 's office they did not meet each other.
It is obvious therefore that the parties were keen on creating evidence in support of the ensuing litigation.
But on the facts the conclusion is irresistible that it was the appel lant who was anxious to get through the sale deed, he having paid Rs. 4000 as the earnest money and living in the prem ises for over 25 years.
It is not necessary for us to refer to the subsequent letters and telegrams exchanged between the parties as that would not alter the position in any event.
On a consideration of the letters and telegrams that passed between the parties the trial court held that it was proved beyond a shadow of doubt that the appellant was always ready and willing to perform his part of the contract and that the respondents were not anxious to execute the sale deed.
The trial court accepted the evidence on behalf of the appellant that the appellant was possessed of suffi cient funds and in fact he withdrew a sum of Rs. 20,500 from the Central Bank of India Ltd. As the appellant had paid the respondents Rs. 4000 he had to pay them only Rs. 20,000 towards the balance of sale consideration.
The arrears of Rs. 956 due towards rent and a sum of Rs. 2000 was to be spent on getting the sale deed executed.
In all a sum of Rs. 22,956 was required.
He had withdrawn Rs. 20,500 from the Central Bank of India Ltd. The trial court accepted the evidence adduced by the appellant.
The trial court also accepted the evidence that the appellant had Rs. 5,000 with him at home and about Rs. 30,000 in deposit with a firm.
This part of the testimony on behalf of the appellant was proved by the evidence of Kailash Nath. P.W.2, Manira of M/s. Chhitar Mal Ram Dayal and the trial court accepted the evidence and found that the appellant had sufficient funds for getting the sale deed executed.
This conclusion which we consider is irresistible was not accepted by the High Court.
The High Court while ac cepting the evidence that the appellant had a sum of Rs.4,500 in deposit in the bank upto 20th May, 1964 and subsequently on 21st May, 1964 he deposited a sum of Rs.14,000 and again a sum of Rs. 2,500 on 22nd May, 885 1964 and that thus the appellant had Rs. 21,000 in bank on 22nd May, 1964 found the case of the appellant unworthy of credit.
The High Court further observed that after the appellant had raised his deposit in the bank to Rs. 21,000 he did not deposit any further amount and therefore the amount fell short of the needed amount by Rs. 2,000.
Con scious of the weakness in his story, the appellant asserted in his statement that he had Rs. 7,000 or 8,000 with him at his house.
We are at a loss to follow the reasoning of the High Court.
The appellant stated that he deposited the money which was with him in the house in the bank on advice for the purpose of proving that he had money with him.
The Court does not suspect that he did not have Rs. 20,500.
The shortage at the most is of Rs. 2,000 and it cannot be said that the evidence of the appellant that he had necessary money for expenses of registration is unacceptable.
Further the appellant examined Kailash Nath, P.W.2, of M/s. Chhitar Mal Ram Dayal who stated that a sum of Rs.30,000 belonging to the appellant was lying in deposit with them.
We are unable to accept the conclusion of the High Court that the appellant did not have enough funds for getting the sale deed executed the High Court while not disbelieving the fact that various letters and telegrams were sent by the appellant has remarked that the appellant did not take the course of personally going to the respondents and asking for the: sale deed.
In our view, the parties were suspecting each other and nothing would have been achieved by the appellant by going in person and requesting the respondents to execute the sale deed.
In fact the respondents set up.
a story that the appellant approached the respondents and stated that he was not able to perform his part of the contract within the Stipulated time.
This evidence cannot be accepted taking into account the relationship between the parties.
We have carefully considered the evidence and the correspondence between the parties and we have no hesitation in accepting the conclusion reached by the trial Judge that the appellant was always ready and willing to perform his part of the contract and that the respondents were evading their responsibility.
The finding on this issue by the High Court is not supported by evidence or on the probabilities of the case.
In the result we allow the appeal on the ground that the respondents have failed to establish that the time is of the essence.
of the contract and that the appellant has succeed ed in establishing that he was always ready and willing to perform his part of the contract and, the respondents evaded their responsibility.
The judgment of the High Court is set aside and that of the trial court is restored, The. appeal is allowed with costs.
The appellant will deposit Rs.20,000/and the sale documents in the court of the Civil Judge, Agra within six weeks from today and the parties will take further direction in the matter from the Civil Judge, Agra.
M. P,,.
Appeal allowed.

summary/full:
The appellants entered into an agreement with the re spondents on March 24, 1964, for purchasing the suit proper ty belonging to the latter.
The terms of the agreement provided that the appellant would get the sale deed executed upto May 24, 1964, and in case of his failure to do so, the earnest money paid by him to the respondent would stand forfeited.
The sale deed was not executed within the pre scribed time, and the appellant filed a suit against the respondents for breach of contract.
The trial court granted him the relief of specific performance of the contract.
The respondents succeeded in an appeal before the High Court on the ground that time was of the essence of the contract and therefore the relief of ' specific performance could not be granted, and also that the appellant had not been ready to perform his part of the contract.
Allowing the appeal by certificate, the Court, HELD: (1) Fixation of the period within which the con tract has to be performed does not make the stipulation as to time, the essence of the contract.
When a contract re lates to sale of immovable property it will normally be presumed that the time is not the essence of the contract.
The intention to treat time as the essence may be evidenced by circumstances which are sufficiently strong to displace the normal presumption.
[881 A C] Gomathinarayana Pillai & Ors.
vs Palaniswamy Nadar ; , 233, applied.
(2) In the absence of specific pleadings or issues raised before the trial court, the question whether the time is of the essence of the contract or not.
cannot be raised before the High Court in appeal.
[882 B C] (3) A careful consideration of the evidence and the correspondence between the parties shows that the appellant was always ready to perform his part of the contract and that the respondents were evading their responsibilities.
[885F G]