# RABINDRA KUMAR DEY v. STATE OF ORISSA

- **Citation:** [1977] 1 S.C.R. 439
- **Court:** Supreme Court of India
- **Decided:** 1976-08-31
- **Case number:** Criminal Appeal No. 193 of 1971
- **Bench:** P. N. Bhagwati, _S. Murtaza Fazal Ali
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/rabindra-kumar-dey-v-state-of-orissa-6932
- **Pages:** 20

## Headnote

Preve111io11 of Corruption A ct, 1947-Sec. 5 ( 1) (c) and 5(1 )(d) r /1v
Sec.
5(2)-Misappropriating Gort. Funds-Retaining Go1·t.
Funds
by
a
Gort .
.serram-Ei•idnw2 Act. Sec. 154-When can a witness be declared hostile-Can
-el'id~nce of a hostile witness be accepted-El'idencc A ct Sec.
105-0nus of
proring exceptions in l.P.C. 011 accused-Degree of
proof-Criminal Trio/-
Effect of non exan1ination of n1aterial witness-Conviction on e\·id!!nce
of
a
..solitary \Vitness_:_ivhether adven,19 infer2nce can be drawn against accused
for
1101 leading evidence-Onus of prosecutio11-Presu1nption of innocence.
The appellant who was the Additional District Magistrate in overall charge
-0f the Nizarat and the Land Acquisition sections of the Collectorate was charged
for criminal misconduct under section 5 (2) read with section 5 ( 1) ( c) and S (1)
(d) of the Prevention of Corruption Act, 1947.
The allegation again;,t lhe
:appellant was that he withdrew a sum of Rs. 10,000/- on 9-1-1965 on the gi'ound
that he wanted to distribute the said amount amongst the villagers whose land
was acquired as the compensation; that in fact the appellant never w:rnted 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 ckposited in the Trcarnry.
The defence of the appellant was that the Secretary of the Works Dcpartm:nt
called a meeting in the Secretariat on 25-9-1964 and that the appelbnl was expressly di1:ccted to proceed to the spot and persuade the villagers to accept the
compensation money; that it was pursuant to that man,hte that the appellant
withdrew the money on 9-1-1965; that he could not go t<~ the village in question
on that day because one of the officers who was to accompany him· was not
:available; that he, therefore, again deposited the money ba<'.k with the Nazir and
collected the money from him again on 20-1-1975; than he went there along with
several officials; that the villagers, however, refused to accept the compemation.
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 Engineer
deposed that he accompanied the appellant to the village and that the appellant
tried to persuade the villagers to receive the compensation bnt 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
to state some facts before the Police.
The Trial Court and the High Court ·relying on the evidence of Nazir and
certain documents convicted the appellant under section 5 ( l ){ c) and 5 ( l ) ( d l
read with section 5(2) of the Prevention of Corruption Act, 1947.
12-l 104SCJ/76
A
B
c '
D
E
F
G
H
440
SUPREME COURT REPORTS
[1977) 1 S.C.R.
A
Allowing the appeal by Special Leave,
B
c
HELD : 1. In a charge of misappropriation once the entrustment of money is;
proved and alt

## Text

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,.,.,. -'
439
RABINDRA KUMAR DEY
v.
STATE OF ORISSA
August 31, 1976
[P. N. BHAGWATI AND _S. MURTAZA FAZAL ALI, JJ.J
Preve111io11 of Corruption A ct, 1947-Sec. 5 ( 1) (c) and 5(1 )(d) r /1v
Sec.
5(2)-Misappropriating Gort. Funds-Retaining Go1·t.
Funds
by
a
Gort .
.serram-Ei•idnw2 Act. Sec. 154-When can a witness be declared hostile-Can
-el'id~nce of a hostile witness be accepted-El'idencc A ct Sec.
105-0nus of
proring exceptions in l.P.C. 011 accused-Degree of
proof-Criminal Trio/-
Effect of non exan1ination of n1aterial witness-Conviction on e\·id!!nce
of
a
..solitary \Vitness_:_ivhether adven,19 infer2nce can be drawn against accused
for
1101 leading evidence-Onus of prosecutio11-Presu1nption of innocence.
The appellant who was the Additional District Magistrate in overall charge
-0f the Nizarat and the Land Acquisition sections of the Collectorate was charged
for criminal misconduct under section 5 (2) read with section 5 ( 1) ( c) and S (1)
(d) of the Prevention of Corruption Act, 1947.
The allegation again;,t lhe
:appellant was that he withdrew a sum of Rs. 10,000/- on 9-1-1965 on the gi'ound
that he wanted to distribute the said amount amongst the villagers whose land
was acquired as the compensation; that in fact the appellant never w:rnted 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 ckposited in the Trcarnry.
The defence of the appellant was that the Secretary of the Works Dcpartm:nt
called a meeting in the Secretariat on 25-9-1964 and that the appelbnl was expressly di1:ccted to proceed to the spot and persuade the villagers to accept the
compensation money; that it was pursuant to that man,hte that the appellant
withdrew the money on 9-1-1965; that he could not go t<~ the village in question
on that day because one of the officers who was to accompany him· was not
:available; that he, therefore, again deposited the money ba<'.k with the Nazir and
collected the money from him again on 20-1-1975; than he went there along with
several officials; that the villagers, however, refused to accept the compemation.
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 Engineer
deposed that he accompanied the appellant to the village and that the appellant
tried to persuade the villagers to receive the compensation bnt 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
to state some facts before the Police.
The Trial Court and the High Court ·relying on the evidence of Nazir and
certain documents convicted the appellant under section 5 ( l ){ c) and 5 ( l ) ( d l
read with section 5(2) of the Prevention of Corruption Act, 1947.
12-l 104SCJ/76
A
B
c '
D
E
F
G
H
440
SUPREME COURT REPORTS
[1977) 1 S.C.R.
A
Allowing the appeal by Special Leave,
B
c
HELD : 1. In a charge of misappropriation once the entrustment of money is;
proved and although the onus to prove the entrustment is on the prosecutLon,
if the explanation of the accused is found to be false he must be presumed
ta>
have retained the money with himself.
[444 A-BJ
Jaikris/madas Manohardas Desai and Aur. v. State of Bombay,
[1960J
3·
S.C.R. 319, 324; followed.
2. Three principles of criminal jurisprudence which are well settled are as.
under:
(i) that the onus lies affirmatively on the prosecution to prove its case·
beyond reasonable doubt and it cannot deri\<e any benefit from weak··
ness or falsity of the defence version while proving 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 AJ
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 sufficient
if the accused is able to prove his case by the standard of preponderance of pro·
D
babilities as envisaged by section 5 of the Evidence Act.
[445 A-BJ
E
Harbhajan Singh v. State of Punjab, [1'765J 3 SCR 235, 241 and State of U.P'.
v. Ram SwarZtp & Anr. [1975J 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-CJ
4. In a criminal trial it is not at ·all obligatory on the accused to produce
,evidence in support of hls defence and for the purpose of proving his versiorr
he can rely on the admissions made by prosecution witnesses or on the docul
ments filed by the prosecution. The courts below were not justified· in drawing
11dverse inference against the accused for not producing evidence in support of
his defence.
The prosecution cannot derive any strength or support from the
/
--...
F
weakness of the defence case.
[446 E-GJ
5. The courts below erred in basing conviction of the appellant on the sole·
testimony of the Nazir completely ignoring the important admissions made irr
favour of the accused by other prosecution witnesses, some of whom were de··
clared hostile and some were not.
[446 H, 447 A)
6. No explanation is coming forth why the Secretary, Works Department whowas a Government servant, has not been examined. . It was a part of the prosecuG
tion 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 interest of
H
justice. The court will not normally allow a party to cross-examine, his own witness and declare the same hostile unless tl\e 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 AJ
RABINDRA KUMAR DEY. v. ORISSA (Fazal Ali, !.)
441
Dahyablwi Chlwganblzai Tlzakker v. State !lf Gujarat, [1964) 7 S.C.R. 361,
368. 69. 70 followed.
A
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
nllowed.
The contingency _of permitting the cross-examination 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, 45Q CJ
8. On the facts the court found that the Trial Court wrongly exercised its
B
discretion in permitting the prosecution to cross-examine
its
own
witnesses.
[451 F]
(
9. Merely because a witness is declared hostile it does not m,ike him unreliable so as to exclude his evidence from consideration altogether.
[ 450 E-F]
Bhagwan Singh v. State of. Haryana, [1976] l S.C.C. 389, 391-92 followed.
10. The court found that th~ defence version was rendered probable by the
C
testimony of witnesses as well as documents.
[457 A-DJ
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]
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 193
of 1971.
Appeal by Special Leave from the Judgment and Order dated
D
11-5-71 of the Orissa High Court in Criminal Appeal No. 14j.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 byF AZAL Au, 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, 194 7 and sentenced
to rigorous imprisonment for three years.
He has also been convicted under s. 5 (1) ( d) of the Prevention of Corruption Act but
no separate sentence has been passed thereunder.
The
appellant
preferred an appeal to the High Court of Orissa against the order
of the Special Judge which was, however, dismissed, and the, convictions 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 applying the provisions of
the Prevention of Corruption Act in the case of the appellant.
Put
briefly, the prosecution case was as follows :
E
F
G
The appellant was the Additional District Magistrate, Cuttack
H
from September 1964 to June 1966 and in that capacity he was in
A
B
c
D
E
F
G
H
442
SUPREME COURT REPORTS
[1977] 1 S.C.R.
overall charae of the N izarat and land acquisition sections of the
Collectorate.
0 Sayad Allamuddian Ahmed P.W. 8 was the District
Land Acquisition 01Iicer and one A. Ballav Pradhan P.W. 9 was t~e
Nizarat Otficer, whereas Prahalad Mahapatra P.W. 1 was the NazJr
and Rajkislwre Das P.W. 2 was the Assistant Nazir under P.W. 1
P.W. 3· Bhakta Charan Mohanti was the Land Acquisition Inspector.
It app~ars 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
Additional District Magistrate attended a meeting at the Secretariat
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 betwem the appellant and
the prosecujon on the deliberations of the aforesaid meeting which
we shall consider later. It is further alleged that 011 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 Balichandrapur 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 disbursement 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 appears 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
treasurv.
On receiving certain applications, the Vigilance 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
8ppellan'. thereafter was challancd 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
~.sum of Rs. 10,000/- from the Nazir on January 9, 1965 but on
ll!S return from tour as he could not disburse the money to the
"
•
RABINDRA KUMAR DEY v. ORISSA (Fazal Ali, J.)
443
villagers he had returned it to the Nazir at Cuttack on J~nuary ~3,
1965.
When, however, he again decided to go to the village w1~h
the Executive Engineer and others on January 20, 1965 he agam
directed the Nazir to pay him the amount for disbursemen~.
He _
wenMo the village Balichandrapur :ind tried to persuade the villa~ers
to accept the compensation amount ~o that the Government project
may be started as soon as possible.
Th(". villagers :vanted some other
alignment to be made or the compensatloL to be mcreased, and the
appellant persuaded them to accept part pay~ent and assured th~m
that he will try to get the amount increased. It was also the defimte
case of the appellant that in the meetin·g held in the secretariat on
September 25, 1964. the appellant was expressly directed to proc~ed
to the spot and persuade the villagers to
accept the compensation
money and it was in consequence of this mandate from tile Secretary
of Works Department that the A.D.M. proceeded to the vill:i.ge Balichandrapur and made all possible efforts to persuade the tenants to
accept compensation even by holding out promises to them.
Unfortunately, however, the villageris 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 completely lost all hopes
and that there was a possibility of the villagers coming round to his
point of view and ultimately 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 Cutluck 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 prosecuiton case and disbelieved the v,ersion 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 irresistible inference that
the appellant had temporarily misappropriated the money. It was also
suggest~d . by the prosecution that at the relevant time the appellant
was bmldmg a house and he had already applied for loans from the
Government 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 exaniined 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
supported the case of the appellant and, therefore, had to be crosscxamined by the prosecution.
Having regard to the stand taken by the partie~, the matter lies
within a very narrow compass.
So far as the entrustment of Rs.
A
B
c
D
E
F
G
H
A
B
c
D
E
F
G
H
444
SUPREME COURT REPORTS
(1977] 1 S.C.R.
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 rhe 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 rhe onus lies on the prosecution 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 Manohardas Desai
and _A nr. v. State of Bombay(1) 1this 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.
Convicrion of a person for the
offence of criminal br)!ach of trust may not, in all cases,
be founded merely on his failure to account for the property
. entrusted to him, or 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 inference 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 pro~ositio? cannot
be doubted. But the question is whether the explanat10n given by
the appellant in this case can be said to be absolutely false?
~nother
question that arises is what are the standards to be employed m order
to judge the truth or falsity of the version given by the defe?ce ?
Should the accused prove his case with the same amount of ~1~our
and certainty, as the prosecution is required, to prove a cnmmal
charge, or it is sufficient if the accused puts forward a probable or
reasonable explanation which is sufficient to
throw doubt on the
prosecution case ? In our opinion three cardinal principles 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 anv benefit from weakness or falsity of the defence
version while proving ifs case;
(1) [1960] ? S.C.R: 319, 324.
•
-
+-
-
RABINDRA KUMAR DEY v. ORISSA (Fazal Ali, J.)
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 1 OS 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 probabilities as envisaged by s. S 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 applicab1e to the accused, where he is called upon to prove his
'Case or to prove the exceptions of the Indian Penal Code on wr,ich
he seeks to re1y.
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 ca~e 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
T-Ja.;-bhajan Singh v. State
of Punjab(')
this
Court observed
as
fo11ows ~
"But the question which often arises and has been fre-
'quently 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 prose-
•cution 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 required to discharge
that burden by leading evidence to prove his case beyond
·a reasonable doubt. That, no doobt, 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 falls under an Exception, law treats the
:?nus as discharged if the accused person succeeds "in provmg a preponderance of probability." As soon as the pre-
--ponderance 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
(I) [1965] 3 S.C.R. 233,, 241
A
B
c
D
E
F
G
H
-146
SUPREME COURT REPORTS
[1977) 1 S.C.R.
A
never shifts and the prosecution has, at all stages of the
case, to prove the guilt of the accused beyond a reasonable
doubt."
B
c
D
E
F
G
H
The same view was taken in a later case in State of U.P. v. Ram
S1tarup & Anr.(') where this Court observed as follows:
"That is to say, an accused may fail to establish affirmatively the existence of circumstances 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 prosecution, 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 correctly, 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 misplacing
the onus on the accused to prove even the prosecution case by· rejecting the admissions made by the prosecution 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 l'he appellant
gives a reasonable and probable explanation, 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
evidence 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 defence .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 prosecution can
not derive any strength or support from the weakness 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
the
principles laid down by this Court in judging the case of the accused.
The Courts below have based the conviction of the appellant on
the sole testimony of P.W. 1 the Nazir who has categorically stated
(I) [19751 1.S.C.R. 409, 416-17.
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RABINDRA KUMAR DEY v. ORISSA (Fazal Ali, J.)
447
rn 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 admissions made in favour of the accused
by other
prosecu:ion witnesses some of whom were declared hostik 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
t!Je villages and persuade the land-owners to receive the compensation
and this formed the occasion for the A.D.M. to have wirhdrawn 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 distribution 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
Departmc:nt, wa:s 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 prosecution, 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 misappropriated. It was not for the
defence to prove the prosecution case which formed the bulwark of
the charge of misappropriation.
Further inore, 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 A!Jamuddin
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
as~ed to take early action for payment of compensation money by
g01ng personally to persuade the tenants. Perhaps, it was because of
this statement, that this witness was declared hostife, and the prosecution
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sought permission to cross-examine him:
The actual statement 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 persuadmg the tenants. It was the duty
of
the
accused to see that compensation 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 t!1e prosecution even in cross-examination did not give any
suggest10n that the witness who was present in the meeting held on
September 25, 1964 had stated on earlier occasions that no dixision
was taken in the meeting directing the accused to visit the village
and persuade the tenants to receive the compensation amounts.
He
merely did not state to the police that when the accuseLl 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 contradiction.
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 appeliant 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
permi1ssion of the Court to cross-examine them.
The
section
runs
lthus :
"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,
~ell-~ettled
that the discretion must be judiciously and properly exercised m 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
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RABINDRA KUMAR DEY v. ORISSA (Fazal Ali, J.)
449
resilcd 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
«mt the truth.
One. of the glaring instances in which this Court sustained the order of the Court in allowing cross-examination was
where the witness resiles from a very material statement regarding the
manner in which the accused committed the offence.
In Dahyabhai
Chaganbhai Thakker v.1State of Gujarat(') this Court made the followiing observations :
"Section i54 does not in terms, or by necessary implication confine the exercise of the power by the court before
the examination-in-chief is concluded or to any. particul<ir
stage of the examination of the witness. It is wide in scope
and the discretion is entirely left to the court to exercise
the power when the circumstances demand. To confine this
power to the stage oL examination-in-chief is to make it in-
·effective in practice.
A clev~r witness in his examinationin-chief faithfully conforms to what he slated earlier to the
police or in the committing court, but in the cross-examinati<Jn
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 questions to him which might be put in
{;ross examination 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
.bad 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
bi.m, there must be some material to show that the witness is not
speaking the truth or has exhibited an element 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 prose-
·cution or which may be favourable to the accused, the discreti,on
:to 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 animus
against the party for whom he is deposing or that he does not appear
•(!) [1964] 7 S.C.R. 361, 368, 369-70.
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to be willing to tell tile 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 anv
indication of the witness making a statement inconsistent on a most
material point with the one which he gave before
the
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 intention.
It may be rather difficult to lay down a rule of universal application as to when and in what circumstances the Court will be entitled
to exercise its discretion under s. 154 of the Evidence Act and the
matter will largely depend on the facts and circumstances of such
case and on the satisfaction of the Court on the basis of those circumstances.
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
speci<\) 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 witness 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 .sl1ould not exercise its discretion in a casual or routine
manner.
It is also clearly well settled that the mere fact that a witness is
declared hostile by the party calling him and allowed to be crossexamined does not make him an unreliable witness so as to exclude
his evidence from consideration altogether. In Bhagwan Singh v. State
of Harya11aC), Bhagwati, 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 <.1> 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 conviction upon his testimony if corroborated by other reliable evidence."
Applying these principles, we would now examine the position.
So far as P.W. Sayad Allamuddin was concerned, he was the
L~nd
Acquisition Officer and merely because he happened to be workmg
(l) [1976] I S.C.C. 389, 391-92.
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RABINDRA KUMAR DEY v. ORISSA (Faza/ Ali, J.)
451
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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 tile· basic point
that the accused had been
asked in the meeting to go
personally
to the village and persuade the ten~!!ts ·to receive
compensation
money nothing has been elicited frcu him even in cross-examination
to show that this statement. was :m aft.er-thought. or was in any
event incorrect er false.
We sholl presently show that this statement
is suppor!ed 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
accus~d
contains categorically
a · st.at~ment , - which
runs
as
follo\VS :
·"In the last meeting held iii th~ Secretariat the Secretary,
Works Department suggested that the A.D.M.