# BIMBADHAR PRADHAN v. THE STATE OF ORISSA

- **Citation:** [1956] 1 S.C.R. 206
- **Court:** Supreme Court of India
- **Decided:** 1956
- **Case number:** Criminal Appeal No. 49of1954
- **Bench:** B. P. Sinha, Jafer Imam, CHANDRASE!l:HARA AIYAR
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/bimbadhar-pradhan-v-the-state-of-orissa-1304
- **Pages:** 17

## Headnote

lndianPsnalCods.1860 (Act XLV of 1860), s. J!JO·B-Crimi!ial
conspiracy-Case where the only persons alleged to have been guilty of
the o.D'ence of conspiracy were the persons placed on trial and only one
person was concerned with the crinie after the acquittal of the rest of the
accused and the case where on the findings apart front the persons
placed on the trial there was the approver who irnplicated himself and
a number of other prosecution witnesses as having been privy to the
conspiracy-Distinction between-Crirninal Procedttre Code, 1898
(Act V of 1898), ss. 225 and 637-0mission to mention the name of
approver in the charge-Whether occasioned failu,re of justice-Repu,gnancy on the face of record in convicting only one person for
conspiracy-English and Indian Law-Difference between.
The appellant and f0ur others were placed on their trial before
the Assistant Sessions Judge of Sambalpur for offences under ss.
120·B, 409, 477-A and 109, !.P.O. with having committed the
offences of criminal conspiracy, criminal breach of trust in respect
, of Government property and falsification of accounts with a. view
to defraud the Government. The appellant was the District Food
Production Officer a.nd the other four accused persons were a.gri·
cultural sub-overseers under the appellant and another agricultural
sub-overseer namely P. was examined at the trial as an approver.
The Assistant Sessions Judge convicted the appellant under all the
three charges but acquitted the lour sub·overseers giving them the
benefit of doubt.
The High Court in appeal allowed the appeal of the appellant
in respect of charges under ss. 409 and 477-A, I.P.O. but upheld his
conviction and sentence in respect of the charge of conspiracy under
s.120·B, I.P.0. observing that in respect of that charge the evidence
given by the approver got corroboration from other independent
evidence. On appeal by special leave to the Supreme Court the
main question for consideration wa.s whether the ruling of the
Supreme Court in the case of Topan Das v. The State of Bombay
([1955] 2 S.O.R. 881), governed the present case in view of the fact
that the appellant was the only person out of the accused persons
on trial who had been convicted of the offence of conspiracy under
s. 120-B, !.P.O.
Held (i) that the case of Topa1' Daa v. State of Bombay was
clearly distinguishable from the present case as in that case the only
persons alleged to have been guilty of the offence of conspiracy were
the persons placed on trial. Thora was no allegation nor any
S.C.R.
SUPREME COURT REPORTS
207
evidence forthcoming that any other persons though not placed on
trial, were concerned with the crime. On the findings in that case,
only one person, after the acquittal of the rest of the accused, was
concerned with the crime and stood convicted of the charge of con·
1956
Bimbadhar
Pradhan
spiracy.
As a person cannot be convicted of conspiring with him·
v.
.
self to commit an offence, the Supreme Court gave effect to the; con· Th~ State 01 Orissa
tention that on the findings and on the evidence, as also on the
charge in that case, the conviction could not be sustained. But in
the instant case on the findings of the courts below, apart from the
persons placed on the trial, there was the approver who implicated
himself equally with the other accused persons and a number of
other prosecution witnesses as having been privy to the conspiracy.
And tlforefore the present case was not on all fours with the case of
Topan Das v. State of Bombay.
(ii) The provisions of s. 225, Cr. P.O. were clearly applicable to
the facts and circumstances of the present case. It had not been
shown how the omission to mention the name of the approver in
the charge under s. 120-B, I.P.C. had misled the e,ppellant or had
occasioned a failure of justice.
(iii) The provisions of s. 537 of the Code of Criminal Procedure
were equally applicable to the facts of the case.
As the appellant
did not raisa the point with reference to the alleg

## Text

1956
March 13
206
SUPREME COURT REPORTS
[1956]
BIMBADHAR PRADHAN
v.
THE STATE OF ORISSA.
[B. P. SINHA, JAFER IMAM and CHANDRASE!l:HARA
AIYAR, JJ.)
lndianPsnalCods.1860 (Act XLV of 1860), s. J!JO·B-Crimi!ial
conspiracy-Case where the only persons alleged to have been guilty of
the o.D'ence of conspiracy were the persons placed on trial and only one
person was concerned with the crinie after the acquittal of the rest of the
accused and the case where on the findings apart front the persons
placed on the trial there was the approver who irnplicated himself and
a number of other prosecution witnesses as having been privy to the
conspiracy-Distinction between-Crirninal Procedttre Code, 1898
(Act V of 1898), ss. 225 and 637-0mission to mention the name of
approver in the charge-Whether occasioned failu,re of justice-Repu,gnancy on the face of record in convicting only one person for
conspiracy-English and Indian Law-Difference between.
The appellant and f0ur others were placed on their trial before
the Assistant Sessions Judge of Sambalpur for offences under ss.
120·B, 409, 477-A and 109, !.P.O. with having committed the
offences of criminal conspiracy, criminal breach of trust in respect
, of Government property and falsification of accounts with a. view
to defraud the Government. The appellant was the District Food
Production Officer a.nd the other four accused persons were a.gri·
cultural sub-overseers under the appellant and another agricultural
sub-overseer namely P. was examined at the trial as an approver.
The Assistant Sessions Judge convicted the appellant under all the
three charges but acquitted the lour sub·overseers giving them the
benefit of doubt.
The High Court in appeal allowed the appeal of the appellant
in respect of charges under ss. 409 and 477-A, I.P.O. but upheld his
conviction and sentence in respect of the charge of conspiracy under
s.120·B, I.P.0. observing that in respect of that charge the evidence
given by the approver got corroboration from other independent
evidence. On appeal by special leave to the Supreme Court the
main question for consideration wa.s whether the ruling of the
Supreme Court in the case of Topan Das v. The State of Bombay
([1955] 2 S.O.R. 881), governed the present case in view of the fact
that the appellant was the only person out of the accused persons
on trial who had been convicted of the offence of conspiracy under
s. 120-B, !.P.O.
Held (i) that the case of Topa1' Daa v. State of Bombay was
clearly distinguishable from the present case as in that case the only
persons alleged to have been guilty of the offence of conspiracy were
the persons placed on trial. Thora was no allegation nor any
S.C.R.
SUPREME COURT REPORTS
207
evidence forthcoming that any other persons though not placed on
trial, were concerned with the crime. On the findings in that case,
only one person, after the acquittal of the rest of the accused, was
concerned with the crime and stood convicted of the charge of con·
1956
Bimbadhar
Pradhan
spiracy.
As a person cannot be convicted of conspiring with him·
v.
.
self to commit an offence, the Supreme Court gave effect to the; con· Th~ State 01 Orissa
tention that on the findings and on the evidence, as also on the
charge in that case, the conviction could not be sustained. But in
the instant case on the findings of the courts below, apart from the
persons placed on the trial, there was the approver who implicated
himself equally with the other accused persons and a number of
other prosecution witnesses as having been privy to the conspiracy.
And tlforefore the present case was not on all fours with the case of
Topan Das v. State of Bombay.
(ii) The provisions of s. 225, Cr. P.O. were clearly applicable to
the facts and circumstances of the present case. It had not been
shown how the omission to mention the name of the approver in
the charge under s. 120-B, I.P.C. had misled the e,ppellant or had
occasioned a failure of justice.
(iii) The provisions of s. 537 of the Code of Criminal Procedure
were equally applicable to the facts of the case.
As the appellant
did not raisa the point with reference to the alleged illegality or
irregularity in the charge before the High Court it must be held, ap·
plying the Explanation to that section, that the omission in the
charge had not occasioned a failure of justice.
The contention that with the acquittal of the alleged conspira·
tors no verdict of guilty against the appellant could be given,
because the verdict would be regarded as repugnant in so far as it
would amount to saying that there was a criminal agreement between
the appellant and the others and none between them and him, the con·
viction of the appellant would amount to a similar repugnancy was
without substance because the rule of English law as to the acquittal
of an alleged conspirator when the conspiracy was said to be only
between the two is based upon a rule of practice and procedure,
namely that repugnancy or contradiction on the face of the record
is a ground for annulling a conviction. But such a repugnancy is
not by itself a sufficient ground for quashing a conviction in India
where the matter is gdverned by statutory law both as to the offence
and the procedure- for bringing the offender to justice. In India
there is no provision in the statutory law justifying an interference
with a conviction on the ground of repugnancy in the record.
Topan Das v. State of Bombay ([1955] 2 S.C.R. 881), The
Queen v. Manning ([1883] 12 Q:B.D. 241), The Queen v. Thompson
([1851] 16 Q.B. 832), The King v. Plummer ([1902] 2 K.B. 339),
Kannangara Aratchige Dharmasena v. The King ([1951] A.O. 1), I.
G. Singleton v. The King· Emperor ([1924] 29 C.W.N. 260), Dalip
Singh v. State of Pimjab ([1954] S.C.R. 145) and Kapildeo Singh v.
Th~ King ([1949·50] F.C.R. 834), referred to.
1956
Bimbadhar
208
SUPREME COURT REPORTS
[1956]
CRIMINAL APPELLATE
JURISDICTION: Criminal
Appeal No. 49of1954.
Pradhan
Appeal by special leave from the judgment and
Tl st /"'/ 0 .
order dated the 7th October, 1953 of the Orissa High
"
aeo
msa Court at Cuttackin Criminal Appeal No. 108of1952
arising out of the judgment and order dated the 14th
November 1952 of the Court of Assistant Sessions
Judge at Sambalpur Sundergarh in Sessions Trial
No. 7 /4 (5) of 1922.
S. 0. Isaacs, R. Patnaik and R. 0. Prasad, for the
appellant.
· Porus A. Mehta and P. G. Gokhale, for the respondent.
1956.
March 13. The Judgment of the Court
was delivered by
SINHA J.-The main question canvassed in this
appeal by special leave is whether the ruling of this
Court iu the case of Topan Das v. The State of Bombay(') governs this case also, in view of the fact that
the appellant is the only person out of the accused
persons placed on trial, who has been convicted for
the offence of conspiracy under section 120-B, Indian
Penal Code.
The point arises in the following way:
'['he appellant and four others were placed on their
trial before the Assistant Sessions Judge ofSall!balpur
for offences under sections 120-B, 409, 477-A and 109,
Indian Penal Code with having committed the offences
of criminal conspiracy, criminal breach of trust in
respect of Government property, and falsification of
accounts with a view to defraud the Government.
The appellant wa.s the District Food Production
Officer in Sambalpur and the other four accused persons were agricultural sub-overseers in charge of their
respective areas under the appellant. Another such
agricultural sub-overseer was Pitabas Sahu at Bargarh
centre. He was examined at the trial as P.W. 25 and
(I) [1955] 2 S,C.R. 881.
S.C.R.
SUPREME COURT REPORTS
'209
shall hereinafter be referred to as the approver. The
1956
prosecution case is that in furtherance of the Grow
Bimbadhar
More Food Scheme initiated by Government it was
Pradhan
decided to subsidize the supply of oil cake to agriculv.
turists with a view to augmenting the production of The State o/Ori"'6
food crops. Cultivators were to be supplied this
variety of manure at Rs. 4-4-0 per maund, though
the Government had to spend Rs. 7-12-0 per maund.
The appellant entered into a conspiracy with his subordinate staff including the agricultural sub-overseers
aforesaid to misappropriate the funds thus placed at
their disposal for the procurement and supply of oil
cake to cultivators. To bolster up the quantity of oil
cakes to be procured, they showed false transactions
of purchase and distribution thereof and falsified
accounts, vouchers, etc. Thus they were alleged to
have misappropriated the sum of Rs. 4,943-4-0 of
Government money.
A large volume of oral and documentary evidence
was adduced on behalf of the prosecution. The three
assessors who assisted at the trial were of the opinion
that none of the accused was guilty. The learned
Assistant Sessions Judge in agreement with the assessors acquitted the four agricultural sub-overseers
aforesaid of all charges, giving them the benefit of
the doubt. But in disagreement with the assessors
he convicted the appellant under all the charges and
sentenced him to rigorous imprisonment for four and
a half years and a fine of Rs. 2,000 under section 409,
Indian Penal Code, and to rigorous imprisonment for
two years each under sections 120-B and 477-A of the
Code, the sentences of imprisonment to run concurrently. The learned trial Judge observed in the course
of his judgment as follows:-
"Hence on a consideration of all the evidence as
discussed above, I find that the prosecution have fully
proved their case that the accused Bimbadhar
Pradhan, the D.F.P.O. has conspired to embezzle the
Government money. They have also proved that he
has got an active hand and in assistance of Pitabas
Sinha/.
210
SUPREME COURT REPORTS
(1956]
19S6
Sahu has embezzled Government money amounting
Bimbadhar
to Ra. 4,943-4-0 and in that act he has also actively
Pradhan
helped Pitabaa Sahu in falsifying the Government
...
records by making false entries. Hence all these
The State of Oris1ta three charges have been conclusively proved against
-
him. So far as regards the other accused persona, I
Sinha/.
have already stated that they are ccmsiderably inexperienced and the doubtful nature of evidence against
these accused persons and considering the position
bet.ween the first.accused and the other accused persons, I give these four accused persons the benefit of
doubt though I do not approve their conduct in this
affair.
As per my findings given above, I may state here
that this is a case in which we find a person in charge
of the entire administration of agricultural and
G.M.F. development of a district has not only soiled
his own hands by embezzling Government money by
corrupt means but has also introduced corruption
i~to the entire administration of that department by
spoiling the career of young men who are entrusted
with this work and employed under him".
The appellant went up in appeal to the High Court
of Orissa. A Division Bench of that Court allowed
his appeal and set aside his convictions and sentences
uhder sections 409 and 477-A, Indian Penal Code, but
upheld his conviction and sentence in respect of the
charge of conspiracy under section 120-B of the Code.
We need not enter into the correctness of the findings
of the trial court in respect of the acquittal of the
other four accused, or of the High Court with regard
to the acquittal of the appellant in respect of the
charges under sections 409 and 477-A, Indian Penal
Code. The High Court held that though the appellant had withdrawn the sum of Rs. 27,000 from the
Government treasury with a view to subsidizing the
procurement_of oil cake, it had not been proved that
there was an entrustment to the appellant. Hence
the charge against him under section 409 failed. As
- regards the charge under section 477-A, the High
-
-
S.C.R.
SUPREME COURT REPORTS
211
Court acquitted him on the ground that the docu1956
ments said to have been falsified, which were large in
Bimbadhar
number, had not been mentioned in the charge and a
Pradhan
vague statement that "accounts, cash books, stock
v.
books, petty cash sale register, cash memos, applica- The State o/Orissa
tions from cultivators, receipts, bills, vouchers,
SinliaJ.
papers, documents, letters, correspondencei etc. had
been falsified" was made.
As regards the charge of conspiracy under section
120-B, the High Court observed that the most
important witness to prove the charge was the approver aforesaid (P.W. 25) who had given a full description of the conspiracy on the 23rd or 25th September
1947 between the appellant and other sub-overseers
including himself for the purpose of showin'g bogus
purchases and bogus distribution of large quantities
of oil cake. It also observed that "Most of the
witnesses examined by the prosecution to corroborate
the evidence of Pitabas are themselves accomplices
in the conspiracy". The High Court found that in respect of that conspiracy the evidence given by the
approver got adequate corroboration from other independent witnesses. After setting out the evidence the
High Court recorded the following finding:-
"This would he strongest corroboration of the
evidence of the approver about the appellant being
the prime mover and the brain behind the entire fraud.
It was he who wanted to misuse his official position
and persuade his subordinates to join with him in
showing false procurement and distribution figures of
oilcakes".
And finally the High Court came to the following
conclusion:-
. "I am therefore of the opinion that the approver's version about the leading part in the conspiracy
played by the appellant in persuading all his subordi•
. nates to join with him for the purpose of committing
criminal breach of trust of the sums withdrawn from
the treasury by showing false procurement and distribution of oilcake is true. There is independent corro-
212
SUPREME COURT REPORTS
[1956]
1956
boration of his evidence which is inconsistent with
the appellant being a mere negligent superior officer
Bimbadltar
Pradilan
who was deceived and defrauded by his dishonest sub-
•·
ordinates. It was then urged that in the charge under
Tile State o/ o,;,.. section 120-B of the Indian Penal Code, the date of
the commission of the offence was stated to be the
SinilaJ.
month of October 1947, whereas according to the
evidence of P.W. 5, the conspiracy took place at
Bargarh between the 23rd and 25th September 1947.
This discrepancy in the date is immaterial and has
not prejudiced the appellant in any way''.
From the concurrent orders of conviction and sentence of the appellant under section 120-B, Indian
Penal Code, he was granted special leave to appeal
to this Court. The learned counsel for the appellant
has raised the following points in support of the
appeal:-
1.
'l'ha t all the persons charged with the offence
of conspiracy except the appellant having been acquitted, his conviction and sentence in respect of that
charge could not in law be maintained;
2. That the appellant himself having been
acquitted of the substantive charges under sections
409 and 477-A of the Code, he could not be convicted
for conspiracy to commit those very offences;
3. That the evidence of the prosecution witnesses having been disbelieved as against the other
accused, the same evidence should not have been
relied upon for convicting the appellant of the charge
of conspiracy;
4. That the provisions of section 342, Code of
Criminal Procedure, had not been fully complied with
in so far as important circumstances in the prosecution evidence had not been put to the appellant in
his examination by the court under that section.
In our opinion, there is no substance in any one of
these contentions and we proceed to give our reasons
for our conclusions.
In support of the first contention raised on behalf
of the appellant strong reliance was placed on the
S.C.R.
SUPREME COURT REPORTS
213
recent decision of this Court in Topan Das v. State of
1956
Bombay(1) and the rulings relied upon in that case.
Bimbadhar
The cases, The Queen v. Manning(9), The Queen v.
Pradhan
Thompson(8) and The King v. Plummer(') were cited
v.
in support of the contention that where all the The State of Ori&sa
accused persons except one are acquitted on a charge
of conspiracy, the conviction of one only on that
Sinha J.
charge cannot be sustained. / In this connection the
recent decision of the Judicial Committee of the Privy
Council in the case of Kannangara Aratchige Dharmasena v. The King(5) may also be referred to, though
it was not cited at the Bar. In that case the Judicial
Committee held that where only two persons are
involved in a charge of conspiracy, if a new trial has
to be directed in respect of one it should be ordered
in respect of both, because the only possible conclusion in such a case was either that both were guilty
or that neither was guilty of the offence. The recent
decision of this Court so strongly relied upon by the
appellant lays down a. similar rule, but is clearly
distinguishable from the case in hand inasmuch as
in that case the only persons alleged to have been
guilty of the offence of conspiracy were the persons
placed on trial. There was no allegation nor any evidence forthcoming that any other persons were,
though not placed on trial, concerned with the crime.
In those circumstances this Court la.id jt down that
it was essential to bring the charge of conspiracy
home to the accused person or persons to prove that
there was an agreement to commit an offence between two or more persons. On the findings in that
case only one person, after the acquittal of the rest
of the accused was concerned with the crime and
stood convicted of the charge of conspiracy. As a
person cannot be convicted of conspiring with himself
to commit an offence, this Court gave effect to the
contention that on the findings and on the evidence,
11) [1966) 2 s.c.R. 881.
(2) (1883] 12 Q.B.D 241.
(SJ (1861] 16 Q.B. 882: 117 E.R. 1100.
(4) (1902) 2 K. B. 889.
(5) (1951) A.O. l,
214
SUPREME COURT REPORTS
[1956]
as also on the charge in that case the conviction
could not be sustained. But in the instant case, as
Blmbadhar
Pradhan
already indicated, on the findings of the courts be19$6
v.
low, apart from the persons placed on trial, there
The State o/Orissa was the approver who implicated himself equally
Sinha].
with the other accused persons and a number of other
prosecution witnesses as having been privy to the
conspiracy. The evidence of the approver has been
found by the courts below to have been materially
corroborated both as to the unlawful agreement
and as to the persons concerned with the conspiracy.
In the first information report lodged on the 28th
June 1948 the approver Pitabas Sahu, one of the
agricultural sub-overseers, was named along with the
other five accused as the persons concerned with the
conspiracy. Subsequently Pitabas Sahu aforesaid
was granted pardon on condition of his making a full
and true statement of the facts of the case and was
examined as an approver, on whose evidence mainly
rested the case against the accused. His evidence. as
indicated above, was supported by the dealers in oilcake who supplied the commodity which was the
subject matter. of the conspiracy. It cannot therefore be said that this case is on all fours with the
recent decision of this Court referred to above.
But it was argued on behalf of the appellant that
he was charged only with a conspiracy with the other
accused persons and not with any conspiracy with
the approver along with those others. The charge
under section 120-B is in these terms:
"First, that you, on or about the month of October, 1947 in the district of Sambalpur agreed with
Hemchandra Acharya and other accused persons to
do or caused to be done an illegal act by illegal means
and that you did some acts in pursuance of the said
agreement to wit, the offence of criminal breach of
trust under s. 409, I.P.C. and falsification of accounts
under s. 477-A punishable with R. I. for more than
two years and thereby committed an offence punish-
S.C.R.
SUPREME COURT REPORTS
215
able under s. 120-B, I.P.C., and within the cognizance
of court of Sessions".
1956
Bimbadhat'
It will thus appear from the words of the charge that
Pradhan
the approver was not specifically named as having
.
v,
.
been one of the conspirators, unless he could be The State 01 Orissa
brought within the category of "other accused persons". Something will have to be said as to what
those words denote, whether the approver was also
included within that description. Counsel for the
appellant contended that they did not. Counsel for
the State Government contended to the contrary. In
England an indictment consists of three parts: (1)
the commencement, (2) the statement of the offence,
and (3) the particulars of the offence. The English
law of indictment from very early times has been
based on very technical rules. Those rules have now
been codified by the Indictments Act, 1915 (5 & 6
George 5, Chapter 90). In Rule 2 (Schedule I) of the
Act as amended by the Administration of Justice
(Miscellaneous Provisions) Act of 1933, the form of
"the commencement of the indictment" has been
prescribed. The form of "Statement of the offence"
has been prescribed by Rule 4 of the Act and below
that has to follow "Particulars of offence" as required by Rule 5.
Those rules more or less correspond to the rules laid down in Chapter XIX of the
Code of Criminal Procedure. Section 221, Code of
Criminal Procedure, requires that the charge shall
state the offence with which the accused is charged,
giving the specific name of the offence, if such a name
has been given by the law which creates the offence,
which in this case means the offence of criminal
conspiracy, defined by section 120-A, Indian Penal
Code. The naming of the section is, under sub-section (5) of section 221, Code of Criminal Procedure,
equivalent to a st.atement that every legal condition
required by law to constitute the offence of criminal
conspiracy charged against the appellant was fulfilled.
Section 222 of the Code requires that the particulars
as to the time and place of the alleged offence, and
Sinha J.
216
SUPREME COURT REPORTS
[1956]
1956
the person (if any) against whom, or the thing (if
Bimbadhar
any) in respect of which, the offence was committed,
Pradhan
shall be stated.
It is noteworthy that that section
v.
wh!Ch requires the particulars of the offence to be
Th< Stat• o/Orissa stated does not in terms further require that in an
Sinha J.
offence like conspiracy the names of the co-conspirators should also be mentioned. Hence in England it
is enough if the indictment states that the accused
along with other persons unknown had committed
the offence of criminal conspiracy.
Though the statute law in India does not make it obligatory that
the persons concerned in the crime of criminal conspiracy should be specifically named along with the
person or persons charged in a particular trial, it is
always advisable to give those particulars also in
order to give a reasonable notice to the accused that
he has been charged with having conspired with so
and so (persons named), as also persons unnamed, to
commit a certain offence.
In this case the charge
against the five accused persons with reference to
section 120-B, Indian Penal Code, named only
those five persons as the conspirators and omitted
to name the approver also as having been privy to
the conspiracy. This is clearly brought out with reference to the charge framed against the other four
accused (who have been acquitted by the trial court
as aforesaid). It states:-
"That you, on or about the month of October
1947 in the district of Sambalpur, agreed with Bimbadhar Pradhan to do or caused to be done an illegal
act by illegal means .................... ".
We find with reference to the records of the trial
court that the trial has not been characterised by
thoroughness or circumspection.
The date of the
offence as given in the charge is different from the
date as disclosed in the evidence, as pointed out by
the High Court, which found that that mistake had
not caused any prejudice to the accused.
Similarly,
the charge under section 477-A had not, as held
by the High Court, been framed with sufficient parti-
S.C.R.
SUPREME COURT REPORTS
217
cularity as a result of which the appellant had to be
7956
acquitted of that charge on appeal.
If the charge
Bimbadhar
under section 120-B had added the words "and other
Pradhan
persons, known or unknown", there would have been
v.
no ground for a grievance on the part of the appel- The State of Orissa
lant.
But eve11 so, in our opinion, the provisions of secSinhaJ.
tion 225, Code of Criminal Procedure, are clearly applicable to the facts and circumstances of the present
case. It has not been shown to us how the omission
to mention the name or'the approver in the charge
under section 120-B, Indian Penal Code, has misled
the appellant or has occasioned a failure of justice.
The prosecution case throughout has been, as is clear
with reference to the petition of complaint, that the
appellant with his subordinates in the Food Department had conspired to misappropriate the funds
allocated to the procurement of oil-cake with a view to
helping agriculturists with manure to raise more food
crops.
The approver has been very much in the
picture all the time and, as a matter of fact, as found
by the courts below, his evidence is the main plank
in the prosecution case. Of course, there is the other
corroborative evidence, as pointed out in the judgments of the courts below. The provisions of section
537 are equally attracted to this case. With reference
to the provisions of that section it is pertinent to
note that though the other accused had been acquitted
by the trial court and though he was the only appellant in the High Court, he did not raise the points
with reference to the alleged illegality or irregularity
in the charge, before that court. Hence applying the
Explanation to that section to this case, it cannot be
urged that the omission in the charge has occasioned
a failure of justice.
But the learned counsel for the appellant has invited our pointed attention to the observations of
Mr. Justice Mathew at p. 243 of Queen v. Manning(1)
that it is "an imperative rule of law" that "in a
(1) [1883) 12 Q.B.D. 241.
218
SUPREME COURT REPORTS
[1956]
1956
charge for conspiracy in a case like this where there
are two defendants, the issue raised is whether or not
Bimbadhar
Pradha,.
both the men are guilty, and if the jury are not satisv.
fied as to the guilt of either, then both must be acThe State ofOrissa quitted". But Lord Coleridge, C. J., whose direction
Sinha}.
to the jury in that case was the subject matter of the
judgment does not put it as high as Mr. Justice
Mathew, but understood it "to be the established rule
of practice".
Reliance was placed by the learned counsel for the
appellant on the case of The King v. Plummer(1), in
which it has been observed that with the acquittal
of the only alleged conspirators no verdict of guilty
against the appellant could be passed because the
verdict would be regarded as repugnant,, in so far as
it would amount to saying that there was a criminal
agreement between the appellant and the others and
none between them and him. Hence it was contended
that in a situation such as the present case presents,
the conviction of the appellant would amount to a
similar repugnancy. This aspect of the matter has
been well discussed in a judgment of the Calcutta
High Court delivered by Mr. Justice Mukerji in the
case of I. G. Singleton v. The King-Emperor(').
Thi.
learned Judge has there pointed out the difference
between the position as it obtains in India and that
in England. The rule of English law as to the acquittal of an alleged conspirator following from the
acquittal of the other when the conspiracy was said
to be only between the two and in a joint trial of both
is based upon a rule of practice and procedure, namely'
that repugnancy or contradiction on the face of the
record is a ground for annulling a conviction. But
such a repugnancy is not by itself a sufficient ground
for quashing a conviction in India where the matter
is governed by statutory law both as to the offence
and the procedure for bringing the offender to justiee.
In India there is no provision in the statutory law
justifying an interference with a conviction on the
(ll [1902] 2 K.B. 33~.
(,2) (1924] 29 C.W N. 260.
S.C.R.
SUPREME COURT REPORTS
219
ground of repugnancy in the record. That is not to
19$6
say that the court is to shut its eyes to the inconsistBimbadhar
ency in convicting one person of the offence of conPradhan
spiracy on the same evidence on which the other
v.
alleged conspirator had been acquitted. If the matter The State o/Orissa
is as simple as that, ordinarily the courts will have no
difficulty in setting aside the conviction, when there
was absolutely nothing on the record to distinguish
the case against the one from that against the other.
Such was the case which was decided by this Court
in Topan Das v. State of Bombay(1).
Learned couqsel for the appellant pressed upon us
the consideration that notwithstanding the state of
affairs as disclosed in the evidence, the appellant
was entitled to an acquittal because in the charge. as
framed against him there was no reference to the
approver. He contended that the rule upon which the
accused was entitled to an acquittal was not a matter
of practice but of principle. In the instant case we
a.re not sure that the acquittal of the co-accused by
·the trial court was well founded in law or justified by
the evidence in the case. The trial court has not disbelieved the evidence led on behalf of the prosecution.
It has only given the benefit of the doubt to the
accused whom it acquitted on grounds which ma:y
not bear scrutiny. But as the case against those
acquitted persons is not before us, we need not go any
further into the matter.
It has further been contended by the learned
c~mnsel for the appellant that the High Court having
acquitted him in respect of the two substantive
charges of criminal breach of trust and of falsification
of documents he should not have been convicted of
the offence of criminal conspiracy because the conspiracy was alleged to have been· for those very purposes. It is a sufficient answer to this contention to
say that the offence of criminal conspiracy consists
in the very agreement between two or more persons
to commit a criminal offence irrespective of the
(1) [1955] ~ S.O.R. 881.
.Sinha].
220
SUPREME COURT REPORTS
[1956)
7956
further consideration whether or not those offences
Bimbadhar
have actually been committed. The very fact of the
Pradhan
conspiracy constitutes the offence and it is immaterial
v.
whether anything has been done in pursuance of the
The State of Orissa unlawful agreement. But in this case the finding is
Sinha].
not that Government money had not been misappro-.
priated or that the accounts had not been falsified.
The charge under section 477-A relating to the falsification of the documents has failed because the High
Court found that that particular charge was wanting
in sufficient particulars, thus causing prejudice to the
accused. The charge under section 409, Indian Penal
Code, was set aside by the High Court on the ground
that there was "practically no evidence of entrustment with the appellant of the price of 1500 maunds
of oil-cakes, a substantial portion of which he was
said to have misappropriated". How far this observation of the High Court is well founded in law with
reference to the official position of .the appellant who
had the spending of the Government money in his
hands is not a matter on which we need pronounce.
It is enough to point out that it has not been found
by the courts below that the object of the criminal
conspiracy had not been achieved.
On the other
hand, there is enough indication in those judgments
thl!>t the object of the conspiracy had been to a large
extent fulfilled. Hence it must be held that there is
no substance in this contention also.
Another contention raised on behalf of the appellant was that the other accused having been acquitted
by the trial court, the appellant should not have
been convicted because the evidence against all of
them was the same. There would have been a great
deal of force in this argument, not as a question of
principle but as a matter of prudence, if we were
satiRfied that the acquittal of the other four accused
persons was entirely correct. In this connection the
observations of this Court in the case of Dalip Singh
v. State of Punjab('), and of the Federal Court in
(1) [196~) S.C.R. U6, 166.
S.C.R.
SUPREME COURT REPORTS
221
Kapildeo Singh v. The King(1) are relevant. It is not
1956
essential that more than one person should be conBimbadhar
victed of the offence of criminal conspiracy. It is
Pradhan
enough if the court is in a position to find that two
v.
or more persons were actually concerned in the crimi- The state of Oriua
nal conspiracy. If the courts below bad come to the
distinct finding that the evidence led on behalf of
SinhaJ.
the prosecution was unreliable, then certainly no
conviction could have been bali!ed on such evidence
and all the accused would have been equally entitled
to acquittal. But that is not the position in this case
as we read the judgments of the courts below.
Lastly, it was contended that the examination of
the appellant by the learned trial Judge was not in
full compliance with the requirements of section 342,
Code of Criminal Procedure. Two points have been
sought to be made in this connection. Firstly, it bas
been contended that though the other accused who
have been acquitted by the trial court were questioned with. reference to the conspiracy with the
approver Pitabas Sahu, no such question was put to
the appellant. It is true that the court questioned
him about his "conspiracy with the other accused
persons". Counsel for the parties before us did not
agree as to the significance of the words "in conspiracy with the other accused persons". The contention on behalf of the appellant was that they referred only to the persons actually standing trial
before the court, whereas counsel for the State contended that they had reference to all the accused persons named in the petition of complaint including the
approver. A number of rulings of the different'High
Courts as to what is the position of an approver,
whether he continues to be an accused person even
after the grant of pardon or whether he is only in the
position of a witness on behalf of the prosecution,
were cited before us. But we do not think it necessary in this case to pronounce upon that because we
have, as already indicated, come to our conclusions
(1) (1949-50] F.C.R. 834, 837, 838.
29
222
SUPREME COURT REPORTS
[1956]
1956
on the assumption that there is an omission in the
charge in so far as the approver has not been specifiBlmbadhar
Pradhan
cally named in the charge under section 120-B, Indian
v.
Penal Code. Secondly, it was contended that the
Th• Slat• o/Ori .. a evidence of P.W. 27 who had been chiefly relied upon
-
in the courts below as corroborating the approver had
Sinha/.
not been specifically put to the appellant though the
evidence of the approver Pitabas Sahu was pointedly
put to him. In our opinion, it is not ordinarily
necessary to put the evidence of each individual
witness to the accused in his examination under section 342, Code of Criminal Procedure. The appellant
·was put the question "Have you got anything to .say
on the evidence of the witnesses?" That, in our
opinion, is sufficient in the circumstances of this case
to show that the attention of the accused was called
to the prosecution evidence. As to what is or is not
a run compliance with the provisions of that section
of the Code must depend upon the facts and circumstances of each case. In our opinion, it cannot be
said that the accused has been in any way prejudiced
by the way he has been questioned under that
section.
..---
\
As all the contentions raised on behalf of the appellant fail, the appeal must stand dismissed .