minal Appeals Nos
153 155 and 172 of 1967
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 and 620 of 1965
A section R Chari N H Hingorani and K Hingorani for appellant No 1 in Cr A No 153 of 1967
N H Hingorani and K Hingorani for appellant No 2 in Cr A No 153 of 1967
A section R Chari and N N Keswani for appellant in Cr A No 155 of 1967
W section Barlingay and A G Ratnaparkhi for the appellant in Cr A No 172 of 1967
M section K Sastri and section 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 leave were tried in the court of the Special judge for Greater Bombay on a charge of conspiracy punishable under section 120 B IPC 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 Mangtani was the Godown Superintendent at the General Motors Godown at T Shed Sewri Bombay belonging 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 of 1060 bags of red wheat which were released from the ship section section Hudson on July 7 1963 at Bombay for storing them in the G M2 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 section 409 read with section 34 IPC section 52 read with section 51d of the Prevention of Corruption Act
1947 read with section 34 IPC section 52 read with section 51 c of the Prevention of Corruption Act read with section 34 IPC and section 477 A read with section 34 IPC The learned Special Judge on a consideration of the evidence on the record held that the prosecution has succeeded in proving conspiracy on the part of all the four accused to commit 140 criminal breach of trust in respect of the 80 bags offered 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 section 120 B IPC all the accused were sentenced to rigorous imprisonment for four years
Accused Nos 1 2 and 3 were in addition held guilty under section 409 IPC read with section 34 IPC and under section 5 2 read with section 5 1 c of the Prevention of Corruption Act read with section 34 IPC under section 52 read with section 51d of Prevention of Corruption Act read with section 34 IPC and also under section 477 A read with section 34 IPC 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 order of the trial court as against accused No 4 and dismissed his appeal
The conviction of accused No 1 under section 52 read with section 51 c of the Prevention of Corruption Act read with section 34 IPC was set aside
But his conviction and sentence under section 120 B IPC and under section 52 read with section 51d of the Prevention of Corruption Act read with section 34 IPC as also under section 477 A read with section 34 IPC was confirmed
His conviction under section 409 read with section 34 IPC was altered to one under section 409 IPC but without altering the sentence
The convictions of accused Nos 2 and 3 under section 409 IPC read with section 34 IPC as also under section 5 2 read with section 5 1  c of the Prevention of Corruption Act read with section 34 IPC were set aside but their conviction and sentence under section 120 B IPC and under section 52 read with section 51d of the Prevention of Corruption Act read with section 34 IPC 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 foodgrains 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 indi vidual clients
141 The counsel in the course of their arguments emphasised that the prosecution in order to prove the negative has the difficult task of affirmatively establishing by unimpeachable 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 information 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 section 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 reason able 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 yellow gate at 1 120 am on the second trip as deposed by Parmar PW8
And this is not disputed
According to the accused the 80 bags in question were actually delivered at the appropriate place at the T Shed and the truck chits duly given to the truck driver in token of their receipt and indeed DW 1 war 142 produced by accused No 4 to prove the actual delivery
The prosecution case on the other hand is that those bags were not delivered 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 section section 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 pro cedure 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 Mukaddam 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 voucher 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 were as a matter of practice to be actually weighed
The truck movement chart exhibit 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 trip which concerns us is entered at sl
No 9
Truck chit number of this trip is 69 and the truck left the dock at 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 am
The truck at sl
No 10 immediately next after the one in dispute is 1477 with 65 bags of red wheat whose truck chit No is 72
This truck left the dock at 1145 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 turn to the tally sheet for July 7 The first thing to be noticed in this document is that it only shows the arrival of 13 trucks
In other words accord 143 ing to this document there were only 13 trips of the trucks though the Truck Movement Order exhibit 10 clearly shows that there were 14 trips and on behalf of the accused also it was asserted that there were 14 trips
We find in Exhibit 41 that after sl No 8 which relates to truck No 2488 with its chit No 68 and which arrived at the T Shed at 1158 am there is recorded at serial No 9 the arrival of truck No 7866 with chit No 70 and at sl
No 10 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 pm
It was explained at the bar that from 12 noon to 1 pm no work was done it being lunch interval
It has been so stated by P section Shinde Assistant Director Vigilance Branch as PW 18
Items at sl
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 DW 1 claims to have been in truck No 2411 as a wamer 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 wamer by name Yashwant 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 No 241 1 on July 7 1963 on the second trip did not reach the T Shed at all
This finds support even from the testimony of DW 1
In view of this documentary evidence with 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 PW 1 on that day all gates were not opened
But this  is not all
Though 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 PW 6 on the reverse of all truck chits Exts
15 to 26 and Exts
li A and 11 B entries are made in the handwriting of accused No 1
In Exhibits 15 to 26 in addition to the arrival and denarture of the trucks progressive totals at the back of each of them is also stated but in exhibit ll B there is no progressive total and in exhibit 11 A there is no signature of accused No 1 144 though the progressive total is mentioned as 240
Exhibuit 11 B it may be pointed out appertains to the trip by truck No 2411 on July 7 1963
Shri Shinde PW 18 who was Assistant Director Vigilance Branch at the relevant time has deposed that according to the weighment register exhibit 69 only 98 bags of SS 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 exhibit 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 exhibit 41 is in our view very material
In exhibit 53 the daily Arrival Tally book for July 7 1963 the entry at sl
No 68 shows departure of the truck in question at 1215 afternoon whereas in exhibit 41 it is shown as at 1 15 pm and in exhibit 11 B at 1215 afternoon
This according to PW 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 he 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 he had no other alternative but to put the unentered truck chits in his pocket
According to him it was on July 10 1963 when he was giving his 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 1963 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 solitary truck 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 agree with the High Court in holdings this explanation to be unconvincing and that the 80 bags in question were in fact not received at the T Shed on July 7 1963
In 145 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 pointed out by this Court that under article 136 of the Constitution this Court does not normally 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 vs The State of Madhya Pradesh1 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 for interference with those conclusions
These appeals according fail and are dismissed
VPS Appeals dismissed
1 Crl
125 of 1967 decided on 12th January 1968


Summary:
The appellants were charged with the offences of criminal conspiracy and criminal breach of trust in respect of 80 bags of wheat
They were convicted 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 no 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 witness in his own defence does not give rise to any presumption against him
141 C HELD also  Negative onus can also be discharged by circumstantial evidence if it is trustworthy and with unerring certainty establishes facts and circumstances the combined effect of which leads to the only safe 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 conclusion consistent with the innocence of the accused
141 E F HELD further  under article 136 this Court does not normally 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
145 A C HELD further  This Article cannot be so construed as to confer on a party right of appeal where none exists under the law
145 C In the present case there were irregularities in the storage records and the evidence was looked into see if the charge as framed was proved
145 C D An examination of the entire evidence oral and documentary however showed that there was enough evidence to support the conviction and that the irregularities were unimportant 145 A Chidda Singh vs State of Madhya Pradesh Cr A No 125 of 1967 dt 12 1 1968 referred to