# l 38 HARGUN SUNDER DAS GOD~A & ORS v. STATE OF MAHARASHTRA

- **Citation:** [1971] 1 S.C.R. 138
- **Court:** Supreme Court of India
- **Decided:** 1968-01-12
- **Case number:** Criminal Appeals Nos. 153, 155 and 172 of 1987
- **Bench:** A. N. Ray, I. D. Dua
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/l-38-hargun-sunder-das-god-a-ors-v-state-of-maharashtra-5022
- **Pages:** 8

## Headnote

Constitution of India, 1950, Art. 13&-Criminal Appeal by special
lea\.'e-Revie1v of evide•1ce by Suprenze Court.
The appellants were charged with the offences of criminal conspiracy
and criminal breach of trust in respect of 80 bags of wheat. They were
<:onvicted by the High Court for various offences under the· Penal Code
and the Prevention of Corruption Act.
The evidence disclosed that there
were some irregularities in the matter of keeping the records relating to
storage of stocks at the storage sheds.
It was therefore
contended in
appeal by special leave, to this Court, that the evidence should be reviewed to see if the prosecution had established by unimpeachable
evidence
that the 80 bags were in fact not received at the storage shed and, that 110
presumption should be drawn against the appellants for their failure
to
give evidence as to where and to whom the bags were delivered.
HELD : Non-appearance of an accused as a witne55 in his own dofence.
does not give rise to any presumption against him. [141 CJ
·
HELD, a.lso : Negative onus can also be discharged by circumstantial
evidence if it is trustworthy and with unerring certainty establishes facts
·and circumstances, the combined effect df which leads to the only
sa(e
inference of guilt.
The court has, however,
to be watchful to ensure
that conjectures or suspicions do not take the place of proof. The chain
of circumstantial evidence must be complete and admit of no reasonable
·conclmion consistent with the innocence of the accused. [141 E-F]
HELD further: under Art, 136 this Court does not normally proceed to review the evidence in criminal cases unless the trial is vitiated bv
some illegality or material . irregularity of procedure or the trial is helJ
in violation of rules of natural justice resulting in unfairness to the accused
or the jud~ment or order uncicr appeal has resulted in grave miscarriage of
justice. This Article reserves to this Court a special discretionary power
to interfere in suitable cases when for special reasons it considers that interference is called for in the larger interests of justice. [145 A-CJ
HELD further : This Article cannot be so construed as to confer
on a pa'rty right of appeal where none exists under the law. [145 CJ
Jn the present case there were irregul:rrities ii\ the storage records and
the evidence was looked into see if the charge as 1framed was proved.
(145 C-DJ
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[An examination of the ent,ire evidence, oral and documentary, however, showed. that there was enough evidence to snpport the conviction
·and that the irregularities were unimportant.] [145 A)
C!Mda Singh v. State of Madhya Pradesh, Cr. A. No. 125 of 1961
dt. 12-1-1968, referred to.

## Text

.l 38
HARGUN SUNDER DAS GOD~A & ORS.
v.
STATE OF MAHARASHTRA
March 26, 1910
[A. N. RAY AND I. D. DUA, JJ.]
Constitution of India, 1950, Art. 13&-Criminal Appeal by special
lea\.'e-Revie1v of evide•1ce by Suprenze Court.
The appellants were charged with the offences of criminal conspiracy
and criminal breach of trust in respect of 80 bags of wheat. They were
<:onvicted by the High Court for various offences under the· Penal Code
and the Prevention of Corruption Act.
The evidence disclosed that there
were some irregularities in the matter of keeping the records relating to
storage of stocks at the storage sheds.
It was therefore
contended in
appeal by special leave, to this Court, that the evidence should be reviewed to see if the prosecution had established by unimpeachable
evidence
that the 80 bags were in fact not received at the storage shed and, that 110
presumption should be drawn against the appellants for their failure
to
give evidence as to where and to whom the bags were delivered.
HELD : Non-appearance of an accused as a witne55 in his own dofence.
does not give rise to any presumption against him. [141 CJ
·
HELD, a.lso : Negative onus can also be discharged by circumstantial
evidence if it is trustworthy and with unerring certainty establishes facts
·and circumstances, the combined effect df which leads to the only
sa(e
inference of guilt.
The court has, however,
to be watchful to ensure
that conjectures or suspicions do not take the place of proof. The chain
of circumstantial evidence must be complete and admit of no reasonable
·conclmion consistent with the innocence of the accused. [141 E-F]
HELD further: under Art, 136 this Court does not normally proceed to review the evidence in criminal cases unless the trial is vitiated bv
some illegality or material . irregularity of procedure or the trial is helJ
in violation of rules of natural justice resulting in unfairness to the accused
or the jud~ment or order uncicr appeal has resulted in grave miscarriage of
justice. This Article reserves to this Court a special discretionary power
to interfere in suitable cases when for special reasons it considers that interference is called for in the larger interests of justice. [145 A-CJ
HELD further : This Article cannot be so construed as to confer
on a pa'rty right of appeal where none exists under the law. [145 CJ
Jn the present case there were irregul:rrities ii\ the storage records and
the evidence was looked into see if the charge as 1framed was proved.
(145 C-DJ
·
·
[An examination of the ent,ire evidence, oral and documentary, however, showed. that there was enough evidence to snpport the conviction
·and that the irregularities were unimportant.] [145 A)
C!Mda Singh v. State of Madhya Pradesh, Cr. A. No. 125 of 1961
dt. 12-1-1968, referred to.
CRIMINAL APPELLATE JURISDICTION: Criminal Appeals Nos.
153, 155 and 172 of 1987.
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HARGUN V. MAHARASHTRA (Dua, J.)
139
Appeals by special leave from the judgment and order dated
April 3, 1967 of the Bombay High Court in Criminal Appeals
Nos. 617, 621, 619 aind 620 of 1965.
A. S. R. Chari, N. H. Hingorani and K. Hingorani, for
· appe:Jant No. l (in Cr. A. No. 153 of 1967).
B
N. H. Hingorani and K. Hingorani, for appellant No. 2 (in
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Cr. A.. No. 153 of 1967).
A. ·s. R. Chari, and N. N. Keswani, for appellant (in Cr. A.
No. 155 of 1967).
W. S~ Bar/inga~ and A. G. Ratnaparkhi, for the appellant (in
Cr. A. No. 172of1967).
M. S. K. Sastri and S. P. Nayar, for the respondent (in all the
appeals).
The Judgment of the Court was delivered by
Dua, J,.
The four appellants
in these three
appeals
by
special lea~e were tried in the court of the Special Judge for
Greater Bombay on a charge of conspiracy punishable under
s. 120-B, U'.C. Accused No. 1 (Shiv Kumar Lokumal Bhatia)
was a godown clerk; accused No. 2 (Hargun Sunderdas Godeja) was the Senior-Godown Keeper and accused No. 3 (Hundraj Harchomal . Man)l;tani) was the Godown Superintendent at
the General Motors Godown at T-Shed, Sewri, Bombay, belongin)l; to the Food Department of
the
Government of
India.
Accused No. 4 (Shankar Maruthi Phadtare) was a driver of
Truck No. 2411.
The allegation against them was that
all
these accused during the month of July, 1963 were parties to
criminal conspiracy to commit criminal breach of trust in respect t}f 1060 bags of red wheat which were released from the
ship S. S. Hudson on July 7, 1963 at Bombay for storing them
in the G-M.2 Godown at Sewri.
In pursuance of this conspiracy, it was alleged, they had dishonestly and fraudulently misappropriated or converted to their own use 80 bags of red wheat
out of 1060 bags released from the ship.
Accused Nos. 1, 2
and 3 were also charged under s. 409 read with s. 34, I.P.C.,
s. 5(2) read with s. 5(1 )(d) of the Prevention of Corruption
Act 1947 read with s. 34, l.P.C., s. 5 (2) read with s. 5 (1)
(cl of the Prevention of Corruption Act read
with
s.
34,
l.P.C. and s. 477-A read with s. 34, I.P.C.
The learned Special Judge on a consideration of the evidence
on the record held that the prosecution !las succeeded in proving the conspiracy on the part of all the four accused to commit
140
SUPREME COURT REPORTS
[1971] l S.C.R.
criminal breach of trust iri respect of the 80 bags of red wheat.
Accused Nos. 1, 2 and 3 were also held to have gained pecuniary
advantage and further to have altered the records of the T Shed.
Holding the offences to be serious in view of the general shortage
of foodgrains in the country the court felt that the case called
for deterrent sentences.
Under s. 121:>-B I.P.C. all the accused
were sentenced to rigorous imprisonment for four years.
Accused Nos. 1, 2 and 3 were in addition held guilty under
s. 409, I.P.C. read with s. 34, I.P.C. and under s. 5 (2) read
with s. 5 (1 )( c) of the Prevention of Corruption Act read with
s. 34, I.P.C., under s. 5(2) read with s. S(l)(d) of Preven·
tion of Com1ption Act read with s. 34, I.P.C. and also under
s. 477-A read with s. 34, I.P.C. and sentenced
to rigorous
imprisonment for four years on each of these . four counts, the
sentences to be concurrent.
On. appeal the High Court confirmed the prder of the trial
court as against accused No. 4 and dismissed bis appeal.
The
conviction of accused No. 1 under s. 5 (2) read .with s. 5 ( 1)
(c) of the Prevention of Corruption Act read with s. 34, I.P.C.
was 'set aside. But his conviction and sentence under s. 120-B,
I.P.C. and under s. 5(2J read with s. 5(1)(d) of the Prevention of Corruption Act read with s. 34, I.P.C. as also under
s. 477-A read with s. 34, I.P.C. was confirmed. His conviction
under s. 409 read with s. 34, I.P.C. was altered to one under
s. 409, I.P.C. but without altering the sentence.
The convic·
tions of accused Nos. 2 and 3 under s. 409, I.P.C. read with
s. 34, I.P.C. as also under s. 5(2) read withs, 5(1)(c) of the
· Prevention of Corruption Act read with s. 34, I.P.C. were set
aside but their conviction and sentence under s. 120-B, I.P.C.
and under s. 5(2) read with s. 5(l)(d) 9f the Prevention of
Corruption Act read with s. 34, I.P.C. was confirmed.
In this Court Shri Chari questioned the appellants convic·
tion on the broad argument, which was indeed the. main plank
of his challenge against the impugned order, that there was
great confusion in the matter of storage of stocks of the food-
. grains in the T-Shed and there was complete want of regularity
and considerable inefficiency in the matter of keeping the records
of the arrivals and storage of the stocks with the result that it
would be highly unsafe to rely on the evidence relating to the
records of the stocks in the T-Shed, for holding the appellants
guilty of the criminal offences charged.
The learned counsel
appearing on behalf of the other appellants, while
generally
adopting Shri Chari's arguments, supplemented them by reference to the distinguishing features of the case against their individual clients.
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HARGUN v. MAHARASHTRA (Dua, J.)
141
The counsel in the course of their arguments
emphasised
that the prosecution, in order to p~ov.e the negativ.e, has
the
difficult task of aflinnative!y establishing
by
ummpeachable
evidence that 80 bags which were the subject matter of the
charge were in fact not received in the T-Shed.
The prosecution
must, said the counsel, bring the charge home to every accused
person beyond reasonable doubt.
The submission as developed by all the counsel representing
the appellants did seem on first impression to be attractive but
on a deeper probe we consider it to be unacceptable.
It is no
doubt true that the onus on the prosecution .is of a negative
character and also that the failure on the part of the accused to
give evidence on the question as to when, where and to whom
the controversial 80 bags were delivered at the point of
unloading-a fact on which the driver of the truck
and
those
whose duty it was to receive the goods at the T -Shed could give
the best and the most direct info1mation---cannot under our law
give rise to any presumption against them. The criminal courts
holding trial under the Code of Criminal
Procedure have
accordingly to bear in mind the provisions of s. 342-A of the
Code and to take anxious care that in appreciating the evidence
on the record and the circumstances of the case, their mind is
not influenced by such failure on the part of the accused.
But
that does. not mean that such negative onus is not capable of
being discharged by appropriate circumstantial evidence. If
the circumstantial evidence which is trustworthy and which with
unerring certainty establishes facts and circumstances the combination of which, on reasonable hypothesis, does not admit of
any safe inference other than that of the guilt of the accused then
there can hardly be any escape for him and the Court can confidently record a verdict of guilty beyond reasonable doubt. The
court would, of course, be well-advised in case of circumstantial
evidence to be watchful and to ensure that conjectures or suspicions do not take the place of legal proof. The chain of evidence
to sustain a conviction must be complete and admit of no reasonable conclusion consistent with the innocence of the accused. In
the present case it is fully proved and is indeed not disputed on
behalf of the accused that truck No. 2411 with the 80 bags of
red wheat did leave the dock and did pass the yellow gate which
is the check point where a register is kept by the Regional Director
of Food. In this Register entries are made when a truck leaves
the yellow gate. The truck in question left the yelk•w gate at 11.20
a.m. on the second trip as denosed by Parmar, (P.W.8). And this
is
not
disnuted.
Accordin<l to
the accused the 80
bags in
question were actually delivered
at the aporopriate olace at the T-Shed and the truck chits dulv
given
to the truck driver in token of their receipt and indeed D.W. f wag
142
SUPREME COURT REPORTS
(1971 J 1 s.c.R.
produced by accused No. 4 to prove the actual delivery. The prosecution case, on the other hand, is that those bags were not
d~livered at the T-Shed but were misappropriated. There is no
dispute about the procedure of delivery at the T-Shed of the.
goods brought from the dock. This procedure in regard to the
wheat brought on February 7, 1963 may briefly be stated.
The foodgrains consisting of 1060 bags of red wheat had
arrived by S. S. Hudson at the Alexandra docks.
The trucks were
loaded with the wheat_ bags to be taken to the T-Shed, Sewri.
Four truck-chits were prepared at the docks for each truck out of
which two were given to the truck driver concerned. The driver
had to give the truck chits at the .godown at . the time of the
delivery of the bags. One such chit would be returned to him
after endorsing acknowledgment of the receipt of the bags, the
other chit being retained at the godown. The one given to the
driver was meant to authorise the receipt of hire charges from the
food department. At the godown, according to the general procedure, the driver of the trucks had to give the truck chits to
one of the godown clerks there. A batch of gangmen under a
particular Mukaddam had generally to unload the goods from the
truck allotted to him and no M ukaddam with his gangmen could
unload the goods. from a truck which was not allotted to him for
the purpose.
The gangmen had, .therefore, to unload the goods
as instructed by the clerk and the senior godown keeper. After
unloading the bags cooly vGucher was to be prepared and the
daily diary maintained at the godown written: the kutcha chit was
prepared by the godown keeper after the unloading and weighment of the goods. Only 10% of the bags w~re as a matter of
· practice to be actually weighed.
The truck movement chart Ex, 10 shows the order in which
the various trucks left the dock for the T-Shed.on July 7, 1963
as also their contents and the truck chit numbers.
Truck No.
2411 with 80 bags of red wheat figures twice in this document but
it is not disputed that the trip which congerns us is entered at sl.
No. 9.
Truck chit .number of this trip is 69 and the truck left
·the dock a·t 11.15 hours. The truck at serial No. 8 (immediately
. preceding the trip in question) in this document is No. 2248 with
80 bags and its chit No. is 68. This truck left the dock at 11 a.m.
The truck at sl. No. 10 (immediately next after the one in dispute)l
is 1477 with 65 bags of red wheat whose truck chit No. is 72:.
'This truck left the dock at 11.45 hrs. There were in
all 14 trips on July 7, and indeed, this is also established by oral evidence and is not denied· on behalf of the
accused. We may now tum to the . tally sheet for July ?•
1963 Ex. 41. The first thing to be noticed in this document is
that it only shows the arrival of 13 trucks. · In other words accord.
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HARGUN V. MAHARASHTRA (Dua, J.)
143
ing to this document there were only 13 trips of the trucks though
the .'J'.ruck Movement Order Ex. 10 clearly shows that there wero
~4 tnps and on behalf of the accused also it was asserted that
the~e were 14 trips. We fi.nd in Exhibit 41 that after sl. No. S
which relates to truck No. 2488 with its chit No. 68 and which
arrived at the T-Shed at 11.58 a.ml there is recorded at serial
No. 9 the arrival of truck No. 7866 with chit No. 70 and at sl.
No. IO the arrival of truck No. 1477 with chit No. 72 and at sl.
No. 11 the arrival of truck No. 8769 with chit No. 71. These
three trucks are shown to have arrived at the unloading point at
1.15 p.m. It was explained at the bar that from 12 noon to 1
p.m. no work was done, it being lunch interval. It has been so
stated by P. S. Shinde, Assistant Director, Vigilance Branch, as
P.W. 18. Items at sl. nos. 12 and 13 relate to trucks Nos. 2752
and 1289 with their respective chit nos. 73 and 74. It is thus
clear that chit No. 69 is missing in this sheet. Bapu T. Pingle
produced as D.W. l claims to have been in truck No. 2411 as a
warner with the driver, accused No. 4, on July 7, 1963. According to him this truck made two trips on that day between the
dock and the T -Shed and on the second trip the other warner by
name Y ashwant had taken the truck chit from the clerk concerned
after the same was duly signed. This witness has deposed about
the procedure at the godown which is the same as was suggested ·
on behalf of the prosecution. The man at the godown used to
direct the drivers to the place of unloading the goods and, to quote
his own words, "unless an entry was made in this Book (Tally
Book) we. were not allowed to go ahead at all." So, according
to his evidence, unless an entry is made in the Tally Book the truck
could ·not proceed tO the unloading point to deliver the goods
brought from the dock. Exhibits 10 and 41 in our view affirmatively prove that 80 bags of red wheat carried by truck Ne>, 2411
on July 7, 1963 on the second trip did not reach the T-Shed at
all. This finds support even from the testimony of D.W. 1. Jn
view of this doc.umentary evidence wjth which no fault has been
found the evidence regarding irregularities in the record of stock at
the T-Shed loses all importance. It may be pointed out that July
7. 1963 was a Sunday and as deposed by Parmeshwar D. Menon
(P.W. 1) on that day all gates were not opened. But this is
not all. Thou$ in the tally chits time of the arrival of the truck
at the unloading point is given in the truck chit in question that
time is not shown. According to the evidence of Roque (P.W.
6) on the reverse of all truck chits Exts. 15 to 26 and Exts .
. 11-A and 11-B entries are made in the handwriting of accused
No. l. In Exhibits 15 to 26 in addition to the arrival and
denarture of the trucks, pro~re<sive totals at the back of each
of them is afso stated, but in Ex. 11-B there is no orogrP.Ssive
total and in Ex. 11-A there is no signature of accused No. 1
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SUPREME COURT REPORTS
[1971) 1 S.C.R.
though the progressive total is
mentioned
as,. 240.
Exhibit
11-B, it may be pojnted out, appertains to the trip by truck No.
2411 on July 7, 1963.
Shri Shinde, (P.W. 18) who was Assistant Director, Vigilance Branch at the relevant time has deposed that according
to the weighment register Ex. 69 only 98 bags of s.s. Hudson
were weighed and this was 10% of 980 bags.
This document
bears the signatures of accused No. 1.
Exhibit
41,
carbon
copy of the Arrival Tally sheet which was sent to
the head
office for showing if there was any detention of trucks in the godown, does not, as already noticed contain any entry in respect
of the truck in question.
The reverse of Ex. 41 is not printed
in the printed paper book but we have checked up from
the
original record that witness Shinde is right.
Non-inclusion of
the entry of the truck in question in Ex.' 41, is in our view, very
material. In Ex. 53 the daily Arrival Tally book for Ju1y 7,
1963 the entry at sl. No. 68 shows departure
of· the
truck in question at 12.15 afternoon whereas in Ex. 41
it i&
shown as at 1.15 p.m. and in Ex. 11-B at 12.15 afternoon. This,
according to P.W. 18, was designed to show that the truck was
· unloaded during the recess period which, according to evidence
on the record, was not done.
The explanation of accused No.
1 is that on July 7, 1963 he was not feeling well though
be
attended the office.
He had to get chits from the warners and
count the number of bags in the truck and order the labourers
to unload them from the trucks.
The suggestion appears to
be that due to these multifarious duties and due to his
being
unwell he had perforce to enter the truck chits in the tally books
only when he could get time and meanwhile be had no other
alterna'tive but to put the unentered truck chits in his pocket.
According to him, it was on July 10, 1963 when he was giving
bis clothes to the washerman that he discovered the
solitary
chit in question left by mistake in his pocket.
The explanation
is far from satisfactory and we are not impressed by it.
It may
in this connection be pointed out that July 7,
I 963
was
a
Sunday and the three accused persons were specially called for
receiving the grain that had arrived by the two steamers. The
amount of work to be done on that day can thus scarcely be
considered to be excessive.
And then the fact that only one
so)itary truc:c chit relating to the 80 bags in question should
happen to have remained in the pocket of accused No. 1 to be
discovered only on July 10, 1963 is also not
without
some
significance.
We a)!ree with the Hiqh Court in holding
this
explanation to be u,nconvincing and that the 80 bags in question
were in fact not received at the T-Shed on July 7, 1963.
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HARGUN v. MAHARASHTRA (Dua,/.)
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our opinion, the material on the record to which our attention
has been invited fully supports the conclusions of
the High
Court.
We may appropriately repeat what has
often
been
point~ out by this Court that under Art. 136 of the Constitution this Court does not nomally proceed to review
the evidence in criminal cases unless the trial is vitiated by some illegality or material irregularity of procedure or the trial is held
in violation of rules of natural justice resulting in unfairness to
the accused or the judgment or order under appeal has resulted
in grave .miscarriage of justice. This Article reserves to
this
Court a special discretionary power to interfere
in
suitable
cases when for special reasons it considers that interference is
called for in the larger interests of justice.
As· observed
by
this Court in Chidda Singh v.
The State of Madhya Pradesh(')
this Article cannot be so construed as to confer on a party a
right of appeal where none exists under the law.
We, however,
undertook in this case to go through the evidence to which our
attention was invited to see whether or not the conclusions of
the High Court are insupportable.
We are not persuaded
to
hold that in this case there is any cogent ground fo, interference
with those conclusions. These appeals according fail
and are
dis1'1issed.
V.P.S.
Appeals dismissed.
(!) cr1: A.No. 125of1967 decided on 12th January, 1968.