S. L. GOSWAMI v. STATE OF MADHYA PRADESH

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 ques tion 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 appa ratus 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 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 purchas ing 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 in case~ prosecution duty to somehow hook the crook. Even where the defence of the accused does not appear to be credible It or is palpably false that burden does not become any the less. is only when this burden is discharged that it will be accused to explain or controvert the essential element.

It is not however for prosecution case which would negative it. 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 prosecution. Where the onus shifts to the accused, and evidence on his behalf probabilises the plea he will be entitled to the benefit of reasonable doubt. A B c D E In this case the prosecution seeks to establish the case against the appellant by showing-( l) that there is no firm by the name F of M.B. Corporation from which the appellant is saTd to have purchased the apparatus on May 17, 1965; and (2) 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 G 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; H A B c D I F G H s. L. GOSWAMI v. M.P. STATE (Jaganmohan Reddy,!.) 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. Corpo ration 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 wit ness 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 ques tion 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 accord i~gly she made the entry which was in her handwriting and she sigh ea ~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 ini t.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 Com mission. She had told Dube, Deputy Superintendent of Police, about the note-book.

This was in direct contradiction of her pre vious denial that she had kept a note of respect of this note-book was not accepted by both the Trial Court It would appear that she having enter· as well as the High Court. 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 break age 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. it. Her evidence 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 A B c D E F G H ·- A B c D E F G H s.

L. GOSWAMI v. M.P. STATE (Jaganmohan Reddy,!.) 957 It may be mentioned 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 that Mr. ~ube his firm had supplied. 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 In answer to these queries Messrs. Biswas & Company College. 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 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 were working during the relevant period in the research work entrusted to the appellant by the Atomic Energv Commission of I.C.M.R. These witnesses the Government of India and deposed about having seen Article A the Laboratory, room.. the Laboratory opposite though one of 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 If so how when he re;;eived the summons and gave his evidence. 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 the appellant's them Chokasey P.W. 21 time accepted 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 charac ter certificate was given to him by the appellant.

This suggestion ap pears 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 type writer 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 ap pa, 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 Sep tember 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 B c D E F G H , s. L. GOSWAMI v. M.P. STATE (Jaganmohan Reddy, J.) 959 A B c D E F G 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 Depart ment to the best of his knowledge for JeSearch. The apparatus was in use few days till it was packed and taken away. The ap paratus was packed when it was seized and that it is Article A. This admission not only negatives the prosecution case that no ap paratus was purchesed in May 1965 as alleged by the appellant, but definitely probabilises it. That apart, there is another cir cumstance 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 transaction. A closer scrutiny however would show that the ap paratus 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 Gover dhandas 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 capa city of that apparatus or that of Article A. This would leave ·a 'the appellant's lacuna in the prosecution case and probablise H 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 Col lege, 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 ex plained 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 re turn of the articles by the appellant saying that he cannot under stand 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 Commis sion 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 A c D E F G ({ s. L. GOSWAMI v. M.P. STATE·(laganmohan Reddy, J.) 961 A B c D E F 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. D-15, and forwarded a copy of the Jetter to the appellant for his informa thought that this evidence is not direct tion. The High Court evidence to show that really a double distillation apparatus was purchased by the appellant i·n Bombay. With this bare comment his evidence was discarded, ·and we think. without justification, because it is difficult to understand how and what D.W.1 has said is not direct evidence. ·What he saw, what he observed, and what he was told by the appellant when that is in issue cannot, biut be direct evidence. G H Similarly another witness Hamidullah Khan D.W.2 who was supplying animals for the experiments and who had made a clamp for the double distillation apparatus in October-November 1964 (which is the one obtained from Biswas & Compa'lly) was characte nsed as a purely chance witness and there is nothing in his examina tion to show how the appellant happened to know that he had se, en the apparatus in a broken condition or that he is likely to be a pos sible defence witness in this case.

This witness had gone to the Medi cal College during the period when the appellant was laid up with ;t heart aitack which was about the 1st week of February 1965. He says it was then that he saw the double distillation apparatus lying in a broken condition. After the appellant came back from SUPRE?d.E CoU)lT REPORTS (1972) 2 S.C.R. :Bomq\ly in the last week of May 1965 he had again been to the I;Jyp9,llia Laboratory and saw. the appellant fi~ing a dou~e distilla t1oh apparatus which was opened from packing. We have gone through ,the cross-ex; imination of this witness and we find that there is ,nothi,1,1g ~n !hat evidence which would make it unacceptable. 'I):lere 1i$ il\O ,g4e:>tion of tl:lis witness being a chance witness. He was nqt ,only clirectly connected with the· Department, but had also made a .cl; imp for ti\e double distil!ation apparatus and was visit ing the appellant's office. When asked about the broken distina tion app; iratus he said that he came to know from a part of the apparaws which was still attached to the clamp that it was broken.

From the mere fact that he said that the appellant had told him that day in the morning .that he was cited as a witness though he did not tell him what the case was, his evidence has been dis believed. We .do not think that this by itself is such as to destroy the substantive part of his evidence. In .any case the evidepce ,of Rasiklal Shah D.W. 3 regarding tne enguiry Jl,lflde by !he appellant for a double distillation appa ratus ancl his ~fl\ld.iµg D'souza with a plant which conformed to the specific; ations givc;n py .(he appellant and sending it with a covering Je~er. cannot .be ;issailed, and in fact has not been rejected by the It however observed that his evidence was not direct High .Court. eY.i.slence on the point that a double distillation apparatus was pur <;llased by the appellant on May 17, 1965. It is true that D.W. 3 did not know whether in fact the appellant had purchased dqub!e distillation apparatus.

But that he did send one through D'souza with a covering letter cannot be gainsaid. The letter which is an important piece of evidence is ;is follows : "Sub :-Standler Quickfit type Double Distillation extra strong Pyres SKB. We refer to your telephonic talk and.have to inform you that we are out of stock of the above cited item, but the other party is having, who is coming with this letter-to you, with the Apparatus, if it serves your purpose, you may buy the same directly from him. against cost, for Rs. 989.35 nett. only. We are really sorry to ]earn from your phone message that you ;ire not keeping well, and hope, you will be a\l i:ight yery soon. " N:ot\ling )has :been urged why this Jetter should i11ot be accepted ,in f]Jere is no ~uggestion or whisper that it was fabricated ey;i\l,e)lc;~. O)' i!l_Ot yp sub'i;equently. · Once the genuineness of the letter sent ~ p.W,: 3 ~o :t\le appellant is believed, it corroborates ;his ;P!~a .th<J,t ~e ,il,i\,i malce .~ugl, liries from Rasiklal 1Shah, ·and ·that Rasildal §4ah B c D E F G H s.

L. GOSWAMI v. M.P. STATE (Jaganmohan Reddy, J.) 963 A B c D E F G the prosecution is required to adduce. Once had sent a person with the apparatus for which he paid the amount and obtained a receipt. It was urged that neither D'souza nor J. R. Patel who gave the receipt were examined. We have had occasion to observe earlier that the standard of proof which the accused may adduce in support of his plea in defence is not the same which probability of the accused's plea is established, we must give him the 'benefit of doubt. There is nothing to show that the accused fabricated the receipt. As we have pointed out, the appellant had at the very initial stage, even before the F.l.R. was issued, produced the original receipt and gave a copy of the same to the investigating This would indicate that the. bill and the receipt were officer. genuine. The prosecution, however, has sought to establish by evidence that there was no such firm as M.B. Corporation.

But the appel lant is not responsibile if a spurious bill (assumj.ng that it was so) was giverr to him or that he knew that it was spurious. This can not therefore affect the case of the appellant that he had purchased the double distillation apparatus on May 17, 1965 and paid for it. In fact he paid for it about Rs. 20/. more than he got from the .demand draft. If he wanted to misappropriate the money by producing a bogus receipt, he could have got the receipt for the that Taneja exact amount of the draft. Bansilal P.W. 14 Director-General of the I.C.M.R. also admitted that the appellant had come to De.l~i in connection with the pur chase of the apparatus and told him that the apparatus was pur chased from some firm, whose name he did not remember, but jt· In the circumstances was not the firm of Messrs Goverdhandas. the plea of the appeliant is substantiated. It may be mentioned No doubt in th_is case .the prosecution has established that the appellant has drawn a bill and obtained a draft for Rs.