# S. L. GOSWAMI v. STATE OF MADHYA PRADESH

- **Citation:** [1972] 2 S.C.R. 948
- **Court:** Supreme Court of India
- **Decided:** 1972-01-04
- **Bench:** P. Jaganmohan Reddy, D. G. Palekar
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/s-l-goswami-v-state-of-madhya-pradesh-5584
- **Pages:** 17

## Headnote

Evidence-Burrfen of Proof in
crin1inal cc.:se-ProJ'ecution
must establish ingredients of offence before burden shifts ti accused-Accused's
burden discharged if reasonable doubt created against prosecution cau.
The appellant was Professor and Head of the Department of Pharmacology and Therapeutics ·in the Medical College Jabalpur. In connection with a reseai:ch project to be carried out by him in collaboration with
the Atomic Energy Commision a Doutle Distillation Apparatus was purchased from Messrs S. K. Biswas and Co. Calcutta for Rs. 450/ - in
September 1964.. In 1965 the Indian Council of Medical Research entrusted him with another research project for which be required a Double
Distillation apparatus of 10 litres capacity. An order for the supply
of the same was placed with Messrs Goverdhandas Desai P..t. Ltd. Bombav.
They were asked to send their acceptance and bills in triplicate immediately.
Messrs Goverdhandas aforesaid sent their acceptance and bills
in triplicate for Rs. 969-10. A draft for that sum was issued by the Accounts offirer Indian
Council of
Medical
Research
in
favour
of
Messrs Goverdhandas and was received by the appellant on April 12,
1965. · The appellant thereafter wrote to Messrs Goverdhandas that he
did not w~nt the apparatus as shown in the sketch shown by them but
wanted it according to the orignal order placed by him.
Messrs Goverdbandas replied expressing their inability to supply the same. In May
1965 the appellant happened to be in Bombay. He asked Messrs Goverdhandas to accept the draft for Rs. 969 in their favopr and to issue a
bearer cheque for the same amount to him so that he could purchase
the apparatus required by him in Bombay. A
receipt for
the draf.
was given to the appellant bv Messrs Goverdhandas an<l he issued a receipt
for the cheque to them. The appellant was subsequently tried for misappropriation of the amount. According to the prosecution he did not
purchase any apparatus in Bombay and continued to use the apparatus
earlier purchased from Calcutta. According to the appellant however. he
contracted one Rasikl al Shah (DW3) a partner of Messrs Scientific Sales
Syndicate who after a telephonic conversation wrote to him a letter introducing one D'Souza who could supply the apparatus to the appellant.
The appellant claimed that he purchased the apparatus from D'Souza.
obtained a receipt for the amount paid and brought the apparatus to
Jabalpur and used it in ,his laboratory. The bill given to the appellant
by D'SouZ'3 bore the nam'.:: of M.B. Corporation.
An 'apparatus Art.
A
\\'a5 seized by the police fron1 the appellant's laboratory which accordin,q
to the prosecution was the apparatus purchased in 1964 but according t(i
the appellant was the one purchased in Bombay. The appellant produced
before the investigating officer the letter written by Rasiklal Shah as well
as other documents
connected,
according to him, with the
purcha«.e.
The trial court convicted the appellant of offences under ss. 409 and 42il
I.P.C. ands. 5(2) of the Prevention of corruption Act. The High Cq11n
dismissed his appeal. This Court .in appeal by special leave,
HELD · The onus of provinr all the ingredients of an offence is
always upo~ the prosecution and at no stage does it shift to the accused.
It is no part of the prosecution duty to somehow hook the crook.
E:·· ..
in casc·s wh~re the defence of the accused docs not appesr to be c,red1b1c
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s. L. GOSWAMI v. M.P. STATE (Jaganmohan Reddy, J.)
94 9
or is palpably false that burden does not become any the. less. It is only
when this burden is discharged that ·;t will be for the accused to explain
or controyert the essential elements in the prosecution case \vhich would
negative it. It is not however for the accused even at the initial stage
to prove something whic!J has to be eliminated bv the prosecution to
establish the ingredients of the offence with which he is charged, and
even if the onus shifts upon the accused and the accused

## Text

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948
S. L. GOSWAMI
v.
STATE OF MADHYA PRADESH
January 4, 1972
[P. JAGANMOHAN REDDY AND D. G. PALEKAR, JJ.J
Evidence-Burrfen of Proof in
crin1inal cc.:se-ProJ'ecution
must establish ingredients of offence before burden shifts ti accused-Accused's
burden discharged if reasonable doubt created against prosecution cau.
The appellant was Professor and Head of the Department of Pharmacology and Therapeutics ·in the Medical College Jabalpur. In connection with a reseai:ch project to be carried out by him in collaboration with
the Atomic Energy Commision a Doutle Distillation Apparatus was purchased from Messrs S. K. Biswas and Co. Calcutta for Rs. 450/ - in
September 1964.. In 1965 the Indian Council of Medical Research entrusted him with another research project for which be required a Double
Distillation apparatus of 10 litres capacity. An order for the supply
of the same was placed with Messrs Goverdhandas Desai P..t. Ltd. Bombav.
They were asked to send their acceptance and bills in triplicate immediately.
Messrs Goverdhandas aforesaid sent their acceptance and bills
in triplicate for Rs. 969-10. A draft for that sum was issued by the Accounts offirer Indian
Council of
Medical
Research
in
favour
of
Messrs Goverdhandas and was received by the appellant on April 12,
1965. · The appellant thereafter wrote to Messrs Goverdhandas that he
did not w~nt the apparatus as shown in the sketch shown by them but
wanted it according to the orignal order placed by him.
Messrs Goverdbandas replied expressing their inability to supply the same. In May
1965 the appellant happened to be in Bombay. He asked Messrs Goverdhandas to accept the draft for Rs. 969 in their favopr and to issue a
bearer cheque for the same amount to him so that he could purchase
the apparatus required by him in Bombay. A
receipt for
the draf.
was given to the appellant bv Messrs Goverdhandas an<l he issued a receipt
for the cheque to them. The appellant was subsequently tried for misappropriation of the amount. According to the prosecution he did not
purchase any apparatus in Bombay and continued to use the apparatus
earlier purchased from Calcutta. According to the appellant however. he
contracted one Rasikl al Shah (DW3) a partner of Messrs Scientific Sales
Syndicate who after a telephonic conversation wrote to him a letter introducing one D'Souza who could supply the apparatus to the appellant.
The appellant claimed that he purchased the apparatus from D'Souza.
obtained a receipt for the amount paid and brought the apparatus to
Jabalpur and used it in ,his laboratory. The bill given to the appellant
by D'SouZ'3 bore the nam'.:: of M.B. Corporation.
An 'apparatus Art.
A
\\'a5 seized by the police fron1 the appellant's laboratory which accordin,q
to the prosecution was the apparatus purchased in 1964 but according t(i
the appellant was the one purchased in Bombay. The appellant produced
before the investigating officer the letter written by Rasiklal Shah as well
as other documents
connected,
according to him, with the
purcha«.e.
The trial court convicted the appellant of offences under ss. 409 and 42il
I.P.C. ands. 5(2) of the Prevention of corruption Act. The High Cq11n
dismissed his appeal. This Court .in appeal by special leave,
HELD · The onus of provinr all the ingredients of an offence is
always upo~ the prosecution and at no stage does it shift to the accused.
It is no part of the prosecution duty to somehow hook the crook.
E:·· ..
in casc·s wh~re the defence of the accused docs not appesr to be c,red1b1c
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s. L. GOSWAMI v. M.P. STATE (Jaganmohan Reddy, J.)
94 9
or is palpably false that burden does not become any the. less. It is only
when this burden is discharged that ·;t will be for the accused to explain
or controyert the essential elements in the prosecution case \vhich would
negative it. It is not however for the accused even at the initial stage
to prove something whic!J has to be eliminated bv the prosecution to
establish the ingredients of the offence with which he is charged, and
even if the onus shifts upon the accused and the accused has to establish
his plea, the standard of proof is not the saine as that which rests upon
the prosecution. Where the onus shifts to the accused, and the evidence
on his behalf probabilises the plea he will be entitled to the benefit o'
reasonabl~ doubt. [954 C-E]
Jn the present case the High Court itself held th'.lt it was not possible
on the evidence of the prosecution witnesses to hold that the apparatus
Art.
A could be identiffod as the one purchased in September 1964. The
oral evidence produced by the appellant to the. effect that a new apparatus
had been purchased in 1965 was wrongly reiected by the courts below.
The evidenc~ of DW3 regarding the enquiry made by the api:ellant !or
a doub!e distillation apparatus and his sending D'Souza with a ~lant. \Vh~ch
conformed to the specifications given by the appellant and sending it with
a covering letter could not be assailed and bad not been reiectecl by the
High Court. There was no suggestion that this letter 'va' fabricated er
got up sub:equently.
Once the genuineness of the letter ""nt by DW3. to
the appellant was believed it corroborated his plea.
Once the probab1l•!\'
of the accused's plea is established he must be given the benefit of douht.
The appellant had at the v·a-y initial stage even before the F.l.R. was
issued produ;;ed the original receipt and given a copy of the same to
the investigating officer.
Th;s will indicate that the bill and the receipt
were genuine.
The appellant was not responsible if no such fi:rm as
M.B. Corporation acturi\ly existed and a suurious bill (assuming that it
was so) was given to him. [958 G.H; 962 D; 963 B-D]
On the facts and circumstances of tlie case the appellant had established his plea and the courts below were wrong in holdin~ that he had
failed to d.isc.harge the burden of proof that lay upon him.
CRIMINAL APPEtLATE JURISDICTION : Criminal Appeal No.
69 l'Jf 1969.
F
Appeal by Special Leave from the judgment and order dated
G
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January 24, 1969 of the Madhya Pradesh High Court in Criminal
Appeal No. 942 of 1968.
A. S. R. Chari, R. Nagaratnam, S. K. Mehta, K. L. Mehta
and K. R. Nagaraja, for the appellant.
l. N. Shroff and M. N. Shroff, for the respondent.
The Judgment of the Court was delivered by
P. Jaganmoban Redrly, J.-The appellant who was Professor
~nd Head '?f the Department of Phamrncology and The~apeutics
m th.e l\!ed1cal College. Jabalpur, has been convicted by the
Special _Jndge. Jabalp~r under s. 5(1)(d) read with s. 5(2) of the
Prevention of Corruption Act to one year's riaorous imprisonment
and a fine of Rs. I 000 and in default to undergo rigorous imprisonment for three months. He was further convicted of
ff
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0 encc.,
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SUPRllME COURT REPORTS
[1972] 2 S.C.R.
under ss. 409 and 420 I.P.C. and was awarded sentences of six
months rigorous imprisonment in respect 0f each of them. All the
sentences were directed to run concurrently. An appeal against
this conviction and sentence to the High Court of Madhya
Pradesh was dismissed. · This appeal is by special leave.
• Shortly stated the case of the prosecution is that the appellant
who waS" employed in the Medical College, Jabalpur, with the permission of the Government of Madhya Pradesh given on December 20; 1962. accepted a grant-in-aid for carrying out a research
project entitled "Study of Manganese in Health and Disease by
Neutron Activation Analysis". This Research Project was to be
carrii;d on in collaboration with the Atomic Energy Commission
of the Government of India for three years 1963-64, 1964-65 and
1965-66. The appellant began his research work in July 1963
and sometime thereafter on September 30, 1964, an instrument
for distillation of water known as the Stadler Still Double Distillation Apparatus was purchased from Messrs S. K. Biswas &
Company of Calcutta-a firm of scientific instruments manufacturers and dealers of Calcutta, for Rs. 450. On April 11, 1964,
the Indian Council of Medical Research known as the I.C.M.R.
entrusted him with the research project on "Effect of Hypoxia and
Decompression on Body Temperature as function of Adaptation
to Hypoxia at various altitude".
The terms and conditions of
grant-in-aid were mentioned in the circular letter Ext. P-32 dated
April 11, 1964, and were current for the years 1965-66 and
1966-67. For this project the appellant wanted to purchase another double distillation apparatus and after inquiry from several
firms placed an order with Messrs Goverdhandas Desai Private
Ltd. Bombay (hereinafter -<:ailed 'Messrs Goverdhandas') as per
Ext. P-5 dated February 20, 1965 for a double distillation appara•
tus, horizontal type, Double Stage, capacity 10 litres, pyrex glass
for Rs. 890 and asked them to inform him of their acceptance
telegraphically and send triplicate l:.ills in advance.
Messrs
Goverdhandas sent wire Ext. P-6 and the advance bills Exts. P-8,
P-9, and P-10 to the appellant on March 3, 1965. This apparatns
was entered in the stock register of the l.C.M.R. Hypoxia Enquiry
as per Ext. P-44 in accordance with the details shown in the bills
and the triplicate bills for Rs. 969 .10 inclusive of sales-tax and
packing and freight charges were presented for payment. It may
be mentioned at this stage that the appellant was on leave from
February 9, 1965 to March 20, 1965 because of heart trouble and
the inquiry and the order were placed during that period. A draft
in favour of Messrs Goverdhandas was subsequently issued by the
Accounts Officer. I.(.M.R. and was received by the appellant on
April 12, 1965. On the same day the appellant wrote a letteir
Ext. P-16 to Messrs Goverdhandas saying that he did not want
the apparatus as. shown in the skl'tch sent by them but wanted it
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s. L. GOSWAMI v. M.P. STATE (Jaganmohan Reddy, J.)
951
according to the original order placed by him. He therefore requested them to expedite the order urgently as he had received the
payment against the bills and was withholding the same for want
of apparatus. As the firm was not able to supply the apparatus
as per the specifications the order was cancelled by let~r Ext. P-17
dated April 24, 1965. Thereafter the appellant was in Bombay
between May 15, 1965 and May 25, 1965 where he had gone for a
medical check-up and was staying in the M.L.As. Rest House. On
May 17, 1965, he met Mr. Patel a Director of Messrs Goverdhandas
and asked him to receive 'the draft and give him a cheque in order
to enable him to purchase the apparatus he wanted from the
Bombay market. This was agreed to, and accordingly the draft
was handed over to Mr. Patel and a receipt Ext. P-24 was obtained
from him on behalf of Messrs Goverdhandas.
At the same time
the appellant· also passed a receipt for the bearer cheque which he
received from Mr. Patel for the same amount. On the same day
the appellant telephoned to one Rasiklal Shah a partner of the
Scientific Sales Syndicate D. W. 3 and enquired whether he could
supply the distillation plaint as per the specifications given by him.
D.W. 3 said he did not have ifi.
Later, however, one D'souza a
broker who was sitting with D.W. 3 at the time informed him that
he could supply the in~trument wanted by the appellant. D.W. 3
says he tried to ring the appellan~ back but could not get any reply
so he sent D'souza with the apparatus along with the introductory
letter copies of which are Ext. P-70 and D-13. According to the
appellant on the same day l!he man sent by Rasiklal Shah is said
to have brought the apparatus the cost of which was Rs. 989.35.
The appellant paid the money, obtained a receipt and brought it
to Jabalpur.
The crucial question in this case is whether the accused as
alleged by the prosecution did not btiy another apparatus for
which he had received a draft from the I.C.R. But in fact has been
carrying on the work with the distillation apparatus purchased
from Messrs S. K. Biswas & Company in Septiember 1964, for the
project for which he was receiving a grant-in•aid. from the At<>l!1ic
Energy Commission of th~ Government of Ind1~, by pretendmg
that it is the apparatus which he had p~rchased .m Bombay. By
this device it is said the appellant has m1sappropnated the amount
of the draft sent by the I.C.M.R.
There are in this case certain undisputed facts which are :-
(!) That a double distillation apparatus was purchased for the
project of the At0mic Energy Commission from M!'5srs S. K.
Biswas & Company on September 30. 1964. and m respect of
which entries were made in the stock register of the Atomic Energy
Commission.
952
SUPREME COURT REPORTS
(1972] 2 S.C.R.
(2) That the order for the purchase of !,he second double stage
distillation plant was placed with Messrs Goverdhandas which
was accepted by them on March 3, 1965. This firm had along with
the acceptance sent a packing note and bills in triplicate on the
strength of which a claim was made to the I.C.M.R. which issued
a demand draft in favour of Messrs Goverdhandas. The demand
draft was received by the appellant on April 12, 1965. Chokasey
P.W. 21 ri.iade entries in the stock register of the I.C.M.R. that the
apparatus was received as soon as the blills were received and submitted forpayment.
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(3) The appeJlant on the same day, i.e. April 12, 1965 as indicated in Ext. P-16 had informed Messrs Goverdhandas that the -
sketch sent by them was not in accordance with the original order
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and while informing them that he had received payment against
the bills asked them urgently to inform whether they could supply
the apparatus as per the specifications.
( 4) That inasmuch as Messrs Goverdha,ndas could not supply
the apparatus as per the specifications the order was cancelled on
April 24, 1965 by letter Ext. P-17.
(5) That the appellant went to Bombay on May 17. 1965 and
handed over the demand draft Issued by the I.C.M.R. in favour of
Messrs Goverdhandas to Mr. Patel and obtained a receipt from
him.
The appellant also obtained from Messrs Goverdhandas a
bearer cheque for the same amount for which he gave a receipt to
Mr. Patel and cashed the cheque.
It appears from the first information report Ext. P-46 dated
August 12, 1966, that during the course of investigation on
information received through a source Shri Shyam Biharilal Shrivastava, Deputy Superintendent of the Special Police Establishment, Jabalpur, came to know that the appellant the Head of the
Pharmacology Department in charge qf the Research Laboratory
had placed an order. on February 20, 1965 for
purchasing a
distillation apparatus, horizontal type, double stage, capacity IO
litres pyrex valued at Rs. 969-10 from Messrs Goverdhandas in
connection with research of 'Hypoxia Enquiry' entrusted to him
by the I.C.M.R., New Delhi, and he had. written to the said firm
to send bill in advance. On receiving three copies of the bill
from the firm, it was shown in the stock register that the said
distillation apparatus was recieved when in fact no such type of
apparatus was at all purchased from the said firm.
He then sent
two copies of the said bill to the I.C.M.R., New Delhi and acquired a demand draft for Rs. 969-10 from it. What the prosecution
has. not disclosed eithc;r in the F.I.R. or in the chargesheet filed
agai~st t~e appellant . 1s that the appellant during the course of
the mvestigation had stated that he had in fact purchased the
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s. L. GOSWAMI v. M.P. STATE (Jaganmohan Reddy, J.)
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double stage distillation plant in Bombay on May 17, 1965, from
out of the account of the bearer cheque received from Messrs
Goverdhandas in exchange for the demand draft handed over to
their Mr. Patel. Nor did the proseeution mention either the fact
that the appellant had obtained a receipt from Messrs Goverdhandas for the demand draft handed over to them or that he
had given a receipt for the bearer cheque obtained in exchange
by him from Messrs Goverdhandas.
There was also no mention in the said document that the appellant had handed over a
copy of the receipt for payment of Rs. 989-35 for the purchase
of the other apparatus on May 17, 1965, to the investigating officer and had informed him that Rasiklal Shah had sent some one
with the apparatus along with the introductory letter dated May
17, 1965. It is not as if the investigating officer had not verified
the information given by the appellant that Rasiklal Shah had
given such a letter, because a copy of that letter was seized from
the Scientific Sales Syndicate even before the F.1.R. was issued
and the charge-sheet was filed. It was only after the accused had
made an apPlication during the trial on September 16, 1968, for
summoning Rasiklal Shah and requesting the Court to call for the
copy of the letter seized by R. N, Dube, Deputy Superintendent
of Police, from Rasiklal Shah under a seizure memo that the copy
was produced by the prosecution. The accused in his statement
under s. 342 of the Code of Criminal Procedure produced another
copy of this letter as well as the bill with the original receipt a
copy of which had been handed over to the investigating officer
even before the F.I.R. was issued.
Once these facts had come
to the knowledge of the investigating officer, it was his duty to
have placed them before the Court.
In the absence of such
a disclosure it is contended by the learned advocate for the appellant that for the prosecution to bring home the offence to the
appellant beyond a reasonable doubt, it should also establish that
the appellant did not in fact purchase the apparatus and that the
said documents were spurious and got up for tbe purpose of the
defence.
The burden of establishing this, it is averred, is also
upon the prosecution and not upon the defence bec:mse unless
the probability of the appellant having purchased the apparatus
is eliminated, the C!\Se against the appellant cannot be said to
be established beyond a reasonable doubt.
It may, ·however, be pointed out that in determining this question the Special Judge as well as the High Court seem to have laid
greater emphasis on the fact that the accused had not proved
that he had purchased the apparatus as contended by him. While
no doubt the questiQil whether the accused purchased the apparatus in Bombay with the money he got under the draft issued by
the I.(:.M.R. in favour of Messrs Goverdhandas may have to be
954
SUPREME COURT REPORTS
[1972] 2 S.C.R.
established by the accused, he can take full advantage of the
circumstances appearing in the prosecution case· itself to probabi!ise
his plea that he did.
The High Court posed the question for
detenniination as fo!Iows :
"Thus, the short question that fell for determination
by the Special Judge was whether the amount received
back by the appellant from Messrs Goverdhandas
Desai of Bombay was utilised or not by him in purchasing the apparatus as stated by him and sought to be
proved by him, burden of which fact
was
on him,
through his defence witnesses."
This approach both of the Special Judge as well as the High Court
is not altogether correct one.
In our view, the onus of proving
all the ingredients of an offence is always upon the prosecution
and at no stage does it shift to the accused. It is no part of the
prosecution duty to somehow hook the crook.
Even in
case~
where the defence of the accused does not appear to be credible
or is palpably false that burden does not become any the less.
It
is only when this burden is discharged that it will be for thy
accused to explain or controvert the essential element. in the
prosecution case which would negative it.
It is not however for
the accused even at the initial stage to prove something which has
to be eliminated by the prosecution to establish the ingredients
oi the offence with which he is charged, and even if the onus shifts
upon the accused and the accused has to establish his plea, the
standard of proof is not the same as thilt which rests upon the
prosecution.
Where the onus shifts to the
accused,
and
the
evidence on his behalf probabilises the plea he will be entitled to
the benefit of reasonable doubt.
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In this case the prosecution seeks to establish the case against
the appellant by showing-( l) that there is no firm by the name
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of M.B. Corporation from which the appellant is saTd to have
purchased the apparatus on May 17, 1965; and (2)
that the
distillation apparatus which was first purchased
in
September
1964 is the same as Article A which the Sp~cial Police had seized
and not that which the appellant alleges he had purchased and
(3) that the apparatus purchased in September ! 964 which had
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been shown as broken on February 1, 1965 and written off has
been in fact not broken but has been e.ntered as such in the
registers fraudulently.
The evidence on behalf of the prosecution can be classified
under three main heads :
Firstly, with regard to the entry in the stock register that the
double distillation apparatus purchased in September 1964 was
broken and written off;
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955
Secondly, that the distillation apparatus purchased in May
1965 was the one which was being used in the Laboratory by the
appellant and is the same as Article A which was seized by the
Special Police; and
Thirdly, that there was no firm by the name of M.B. Corporation from which the accused is alleged to have purchased the
subsequent distillation plant on May 17, 1965, and that he did
not in reality purchase it.
The first allegation is sought to be established by Kamlesh
Grover P.W. 22, who was working on the post of Research
Assistant in the Pathology Department of the Medical College,
Jabalpur from October 1, 1964 to September 30, 1965. The witness was posted from October l, 1965 as a Senior Scientific
Assistant in the research of the Atomic Energy Commissfon and
from December 15, 1965 in the Hypoxia Enquiry
and was
working under the appellant. According to her, although it was
riot part of her duties, she was required to do clerical work as
there were no other persons and that as the appellant told her
that some articles had been broken and the persons who were
working previously had not made entries she should make the same
as she was a Research Assistant.
Because of this she made the
entry and as far as she could remember it, that entry was made
on September 19, 1966. Till this stage she made no assertion that
she was asked to do something which to her knowledge was .false.
The learned Advocate for the prosecution however put her a question which we think is in the nature of a cross-examination d'e.5igned
to support the allegation that she did not make the entry willingly.
This was:
"Question :-Whether Dr. Goswami asked you fo
sign thereon or not?
Answer :-Dr. Goswami asked me to sign thereon,
but I refused to sign."
Eveu then she said that the appellant asked her to get a copy made
thereon because the b1·~akage register was to be sent and accordi~gly she made the entry which was in her handwriting and she sighea ~hereon. Tt was then that she said that the appellant had asl<ed
her to put the s·ame date in her signature, on which he told her
t~at the apparatus was broken. She identified the appellant's init.1als and asserts t~at s~e prepared the breakage register on 5eprem•
her 19. 1966. This eVJdence does not estab1ish that the distillaf18n
apparatus was not in fact broken. However, iri cr()Sg-efamiiiatibW
ghe was asked whether she saw the distillation appdtatlis before' !l'1ie
was deputed to the Hypoxia Enquiry and her answer was that she
956
SUPREME COURT REPORTS
[1972] 2 S.C.R.
does not remember and then said : "Wait for a minute", and after
trying to recollect her memory she answered that she saw the
apparatus.
But she does not know whether there was any mono·
gram on that apparatus and claims that she can identify if two
or three apparatuses of the same type are kept because of their
being old or new. Again she says if two or three apparatuses are
kept, it will be difficult to identify. When asked whether she k~t
a note of ii anywhere in respect of the breakage or was speakmg
from memory, she said that she had not kept a note thereof any·
where but remembered it because the appellant had returned from
foreign tour at that time, and had joined on Monday September
11, 1966.
She said that Shri Dube, Deputy Superintendent of
Police made enquiry from her in March 1967, which she stated
was on the basis of the note in her diary Ext. D-9 that on Septem·
ber 19, 1966 the appellant called her in his room and asked her
to prepare accounts of t'he articles of the Atomic Energy Commission.
She had told Dube, Deputy Superintendent of Police,
about the note-book. This was in direct contradiction of her previous denial that she had kept a note of it.
Her evidence in
respect of this note-book was not accepted by both the Trial Court
as well as the High Court. It would appear that she having enter·
ed in the register that the apparatus was broken and written off
is really anxious to exculpate herself because she was probably
made to believe that it was in fact not broken and she was made
to do something which was untrue.
This anxiety dominates her
evidence which read as a whole does not inspire confidence and
gives the impression that she was trying to put a sinister interpreta·
tion of what may appear to have been prolJably true.
For instance.
she says that she realised that she had to make an entry of the
article as broken and thought over it very much.
After that she
started to note down in her note book and told this fact to some
other men in the Department in the general talk.
She informed
Mr. Rao, Dr. Goswami and Dr. Harshwardhan who were sitting
there.
Though she first admits that she did not tell them that
the appellant had got an entry made by her in the stock register
and got breakage register prepared by her, she later says that
she told them that distillation plant was shown as broken. It was
then that the appellant called her in the office and said that breakage register was to be prepared and sent to the Atomic Energy
Commission and asked her to prepare the register and make entry
in the stock register.
None of the witnesses named by her however
say anything about her having informed them.
That the distillation apparatus purchased in September 1964
was the same as Article A has been spoken to by several witnesses
with which we will presently deal.
But before we do so, it is
necessary to notice that according to Nirodh Ranjan Ghosh P.W. 13,
Manager of Messrs S. K. Biswas & Company a similar apparatus
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s. L. GOSWAMI v. M.P. STATE (Jaganmohan Reddy,!.)
957
as the one supplied by them to the appellant could be purchased
also in Bombay, so that the probability of the accused having pur·
chased a similar apparatus with the markings of Mes.srs .s. K.
Biswas & Company in Bombay cannot be ruled out.
This w1tni;ss,
however, does not say that Article A is the same as the one which
his firm had supplied.
It may be mentioned that Mr.
~ube
who was investigating the offence against the accused had wntten
a letter to Messrs. S. K. Biswas & Company on December 30,
1966, enquiring whether the type of the stadler still supplied by
them was available in the Bombay market, whether they were
supplied to M/s M. B. Corporation, Nagar Niwas C. P. Tank
Road, _Bombay-4 7 for sale and whether some body from their
firm could identify the. apparatus suppli.~d to the J abalpur Medical
College.
In answer to these queries Messrs. Biswas & Company
wrote to Dube that they had not supplied the type of stadler still
to Messrs. M. B. Corporation which however may be available in
the Bo1ul:>ay market and that it was not possible to identify the
apparatus'st!pplied to the Jabalpur Medical College.
Even the High Court, after considering the evidence ot
Dr. Rajkumar Gupta, P.W. 15, working as a Demonstrator in the
Medical College, under the appellant since the year 1958, Shri
A. S. Venkat. Subbarao P.W. 16 working as Assistant Professor
. ·in the Department of Pharmacology Medic_al College during the
relevant period, and Dr. Harshwardhan P.W. 19 working aS
:Demonstrator in the :Department of Pharmacology during the
relevant time observed that all these witnesses have admitted that
they are unable to identify the double distillation apparatus from
another apparatus of the same quality and same markings.
There
is also the evidence of other witnesses, namely, B. P. Namdeo
P, W. 20 a research scholar, M. L. Chokasey, P.W. 21 a Laboratory
Assistant in the Research Scheme & a Lower Division Clerk,
Jamund Prasad Khare P.W. 23 a Laboratory Assistant, and Rashid
Khan P.W. 24 a Laboratory Assistant who said that they
were working during the relevant period in the research work
entrusted to the appellant by the Atomic Energv Commission of
the Government of India and the I.C.M.R.
These witnesses
deposed about having seen Article A in the Laboratory,
first in the Laboratory opposite to the appellant's
room..
though one of them Chokasey P.W. 21
said that he saw
it in the verandah, which was later shifted into another room.
Chokasey says he did not disclose to any body and only did so
when he re;;eived the summons and gave his evidence. If so how
did the police- came to know is difficult to understand.
Though
we do not pay much attention to this incongruity, we are referring
to it because the High Court while dealing with the evidence of
D. W. 2 rejected it merely on the ground as will be seen when
we discuss that evidence and at the same time accepted the
SUPREME COURT REPORTS
[1972] 2 S.C.R.
eviddence of this witness. That this witness had a grouse against
appellant because he had asked for a certificate of <,:haracter which
the appellant is said to have given to him, but says tlieteafter it was
snatched from him and the appellant called for his explanation. It
was suggested to him he was making a false statement that a character certificate was given to him by the appellant. This suggestion appears to be justified is evident from his admission. He also admits
that the appellant had writfun a letter to Dr. Relen when he was
working with him, which was shown to him by Dr. Relen. That
letter is . from the Superintendent, Medical College, asking for
Chokasey's explanation.
It. says :
"Yonr former employer in the I.C.M.R. Scheme who
is the Professor of Pharmacology as well reports that you
had been indulging in derogatory activities against hlm in
the sense that you were typing the application on behalf
of Shri J.P. Khare while in this office and from the typewriter of this office.
Please let me know why you should not be strictly
warned.
Your explanation should reach to this office
within 24 hours from the date of receipt of this memo."
Jamuna Prasad Khare P.W. 23 was working in the Department
from August 5, 1964 to October 30, 1965, but the work started
orllv three or four months thereafter that is from November or
December. He says that the distillation apparatus received from
Messrs. Biswas & Company was there upto May-June 1965. This
witness on his own admission was dismissed by the appellant and
was given service by the Dean of the Medical College.. The appa,llant 11ad made a complaint against him to the Director of
Medical Services and was unemploye'd when Dube made enquiry
of him, about the double distillation apparatus. Even though he
WrOfc to the I.C.M.R. about the termination of his services he
adinitted that he did not write anything therein regarding this
double distillation apparatus.
The onher witnesses also are not in a position to identify the
apparatus as the one which was purchased in September 1964.
In our view, when as clearly admitted by the seniar members of the
staff working in the Laboratory for quite some time that they could
not identifv that Article A was the same as tha't purchased in September 1964, it is difficult to believe that there two witnesses or any
other witnesses could have done so, particularly when the High
Court itself held that1 it was not possible on the evidence of the
three witnesses to which we have referred that the apparatus could
be identified· as the one purchased in September 1964.
6iftheotherhand there is the evidence of A. S. Venkatsubbarao
'P:w. {6 which clearly indicates that there was another double
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s. L. GOSWAMI v. M.P. STATE (Jaganmohan Reddy, J.)
959
distillation apparatus a.part from Article A the one purchased .i,n
September 1964.
In the examination-in-ehief itself, the witness
says that from 1964 till the apparatllS was packed during the period
one more double distillation ·apparatus wafl received in the Department to the best of his knowledge for JeSearch.
The apparatus
was in use few days till it was packed and taken away. The apparatus was packed when it was seized and that it is Article A. This
admission not only negatives the prosecution case that no apparatus was purchesed in May 1965 as alleged by the appellant,
but definitely probabilises it.
That apart, there is another circumstance which goes to support the statement of P .W. 16 that
there was another double distillation apparatus which is not the
same as the one purchased in September 1964 and which could
be Article A.
It is seen that the apparatus which was purchased in September
1964 though it was said to be a double distillation apparatus it
cost only Rs. 486-62 -but a similar distillation apparatus said to
have been purchased in May 1965 by the appellan~ cost Rs. 969-10.
If these two apparatuses are similar, then the cost ot the one said
to have been purchased in May 1965 has doubled within one year
which, prima facie, raises doubts about the genuineness of
the
transaction. A closer scrutiny however would show that the apparatus purchased in September 1964 from Messrs.
Biswas
&
Company may not be of the same cap_acity as the one said to have
been purchased in May 1965 whlch is of ten litre capacity. From
a comparative statement of quotations from difierent companies,
Ext. P-38, it is apparent that the quotation called in 1965 was for
a distillation apparatus horizontal type capacity 10 litres for whlch
M/s. Unique Trading Corporation, Bombay, quoted Rs. 925/-,
Messrs. Goverdhandas Rs. 890/- and M/s. Scientific Instrument
Company Ltd., Allahabad Rs. 1229/-
duty free price and
Rs. 1920/- duty paid, for which an import licence was requested.
From Ext. P-28-Extracts of order register of Messrs
Goverdhandas it also appears that the price of a single stage distillation
apparatus was Rs. 450 /- which was the one that was cancelled on
Apnl.24. 1965. ?".idently Messrs. Goverdhanaas wanted to sell
two smgle stage d1stillation apparatuses and it was because of this
that the appellant had cancelled the order.
We have already seen that what was purchased from Biswas &
Company w~s a st~dler still, q_uickfit type of double distillation,
automatic with special type clamp. But there is nothing to show
from Ext. P-49A that it was for a 10 litre capacity. Nor is the,re
any other evidence as fairly admitted by the learned advocate for
the prosecution from which we can ascertain what was the capacity of that apparatus or that of Article A. This would leave ·a
lacuna in the prosecution case and probablise 'the appellant's
960
SUPREME COURT REPORTS
[1972] 2 S.C.R.
·Contention that the apparMus Article A is not the same as that
purchased earlier for th(( Atomic Energy Commission, but is the
one which he purcb,ased in Bombay in 1965.
It is contended by Mr. Chari for the appellant that the evidence
of the prosecution must be read in the light of the intense feeling
of dislike and hostility exhibited by the Dean of the Medical College, against the appellant due to enmity and jealousy in his having
been given projects of national importance.
He has referred to
certain evidence tp show that at every stage the Dean has been
concerned with the inve~tigation. It is not necessary to go into all
the minute details of this controversy except to touch on the broad
features.
It is in evidence that initially
the grant-in-aid was routed
through the Dean in 1963-64 and 1964-65, but later from 1965-66
it was given direct to the appellant. The reason for this was explained by Durgacharan Chopra, P.W. 11, Under Secretary to.the
Government of India in the Di:.oartment of Atomic Energy with
headquarters at Bombay to be due to some trouble between the
Dean and the appellant, because of which they had decided to
place the grant at the disposal of the appellant for the year 1965-66.
Besides, Dr. Barat D.W. 1 whose evidence will be dealt with
latter in his letter to Dr. Subramanian, Ext. D-15, says that the
appellant was treated badly. He said that he had learnt that the
appellant was physically obstructed by the College Chowkidar when
he tried to return the equipment belonging to the witness. in which
the appellant sustained minor injuries which he saw when he came
to him with the apparatus.
He also says in that letter that Dr.
Chowdhary rang him up in the evening of Monday on February
14. 1967, that Dr. Subramanian did not want t!he removul and return of the articles by the appellant saying that he cannot understand when the articles did not belong to the Government, and
were loaned to the appellant through him, and asks why they
could not be removed by the appellant when a legal notice was
served on him.
We have already noticed how after the appellant
dismissed Khare P.W. 23 he was immediately employed by, the
Dean. All this would indicate that there has been a great• deal
of ill-will and hostility between the appellall't and the Dean.
Apart from viewing the prosecution evidence in the light of
this background, there is the defence evidence.
This evidence has
been summarily rejected, and, in our view, without any cogent
reasons.
Dr. Baral D.W. 1 says that he was the one who had
started the research of the I.C.M.R. and Atomic Energy Commission Projects.
He is a member of the executive council of the
Jabalpur University and is a consulting pliysician.
He says that
a.fter the sudden death of Professor Dr. Wahi from coronery heart
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s. L. GOSWAMI v. M.P. STATE·(laganmohan Reddy, J.)
961
trouble, the appellmt started getting pain in the chest . and he
consulted him. He had taken his E.C.G. and referred him to Dr.
Datey, President of Cardiological Society .of India for a thorough
check-up.
As there was some· abnormality he was asked to go
for another check-up to Bombay from where the appellant returned
after his second check-up, some time in the month of May 19?5.
The witness had sent his car to bring the appellant from station
and to take him to Me\iical College and the appellant had dropped
in at his place to see him on his way to the Medical College. When
the appellant came to see him two packages were lying in his car
on the black seat by his side and the witness asked him what those
were.
The appellant told him that 'he had bought some apparatus'.
It appears that in the High Court some interpolation _was made in
this evidence which would indicate that the appellant had showed
him "a glass distillation apparatus". We are not now concerned
with this interpolation, but as the evidence was recorded it shows
that the appellant had told the witness that he had bought some
apparatus.
After a week or two when the witness went to the
Medical College to see the appellant in his Department he enquired
from the appellant as to what he had bought and the appellant
showed him a double distillation apparatus with some modification
for triple distillation and the apparatus appeared to be new.
The
witness also says that the appellant complained to him about the
treatment given to him by the Dean oi the Medical College Dr.. B.
H. Choudhary. On hearing this complaint the witness had written
to the Director of Health Services, Madhya Pradesh, Ext.