The admission or confession of a person to be taken as a whole - Such admission or confession cannot be split up


Before : - Mehr Chand Mahajan, S.R. Das and N.H. Bhagwati, JJ.
Criminal Appeals Nos. 56 and 57 of 1951. D/d. 23.9.1952.

Hanuman Govind, Nargundkar and another - Appellant
State of M.P. - Respondent

For the Appellant : - N.C. Chatterjee , Senior Advocate, B. Bannerjee and A.K. Datt, Advocates, Ganpati Rai, Agent, Bakshi Tek Chand, Senior Advocate, K.V. Tembay, Advocate, Rajinder Narain, Agent.
For the Respondent : - T.L. Shevde, Advocate-General of Madhya Pradesh, T.P. Nath, Advocate, P.A. Mehta, Agent.

Supreme Court of India


Mehr Chand Mahajan, J. - This is a consolidated appeal by special leave from the two orders of the High Court of Judicature at Nagpur passed on 9-3-1950 in Cri. Revns. Nos. 152 and 153 of 1949.

2. On a complaint filed by the Assistant Inspector-General of Police, Anti-Corruption Department, Nagpur, the appellant in Cri. Appeal No. 56 of 1951 (H.G. Nargundkar, Excise Commissioner, Madhya Pradesh), and the appellant in Cri. Appeal No. 57 of 1951 (R.S. Patel) were tried in the Court of Shri B.K. Chaudhri, Special Magistrate, Nagpur for the offence of conspiracy to secure the contract of Seoni Distillery from April 1947 to March 1951 by forging the tender, Ex. P.3A and for commission of the offences of forgery of the tender (Ex. P. 3A) and of another document, Ex. P-24. The learned Special Magistrate convicted both the appellants on all the three charges. He sentenced R.S. Patel to rigorous imprisonment for one year under each charge and to pay fines of Rs. 2,000, Rs. 2,000 and Rs. 1,000, under the first, second and third charges respectively. The appellant Nargundkar was sentenced to rigorous imprisonment for six months under each charge and to pay fines of Rs. 2,000, Rs. 2,000 and Rs. 1,000, under the first, second, and third charges respectively. Each of the appellants appealed against their respective convictions and sentences to the Court of the Sessions Judge, Nagpur. The learned Sessions Judge quashed the conviction of both the appellants under the first charge of criminal conspiracy under Section 120-B; Penal Code, but maintained the conviction and sentences under Section 465, Penal Code on the charges of forging Ex. P-3 (A) and P-24. Both the appellants went up in revision against this decision to the High Court but without any success. An application was then made under Article 136, Constitution of India for special leave to appeal and this was allowed by this Court on 24-3-1950.
3. The appellant, Nargundkar, is a member of the Central Provinces and Berar Provincial Service and held the substantive post of Deputy Commissioner for several years. In April 1946 he was appointed Excise Commissioner, Madhya Pradesh and continued to hold that office till 5-9-1947.
4. The appellant, R.S. Patel, is a Sugar Technologist and Chemical Engineer. He received his technical education and practical training in Americal and after working as Chief Chemist and General Manager in factories in Madras for five years, came to the Central Provinces in 1944, when the Provincial Government gave him a license to set up a distillery for the manufacture of industrial spirit.
5. On 11-9-1946, Nargundkar in his capacity as Excise Commissioner invited tenders for working the Government distillery at Seoni and supplying spirit to certain specified districts for a period of four years from 1-4-1947 to 31-3-1951. The last date for submitting the tenders was 31-10-1946. In response to this tender notice, five tenders were filed including those filed by (1) appellant, R.S. Patel, (2) K. B. Habibur Rahman, (3) Zakir-ur-Rahman, and (4) Edulji P. Doongaji (P.W. 4), in sealed covers with the Excise Commissioner on 31-10-1946 and he handed them over with the seals intact to the Office Superintendent, S.W. Gadgil (P.W. 13) for safe custody. Gadgil took them to his room and kept them under look and key in the office safe.
6. The case for the prosecution is that on 9-11-1946, accused Nargundkar took these sealed tenders home, that the tenders were opened by him at his house, that the rates of the tender (Ex. P-6) of E. J. Doongaji (P.W. 4) were divulged to accused 2 (R.S. Patel), who was allowed to substitute another tender (Ex. P-3A), containing rates lower than those of Doongaji, that thereafter these open tenders were brought to the office on 11-11-1946 and given to Amarnath (P.W. 20) who was the Assistant Commissioner of Excise, for submitting a report and that on the recommendation of Nargundkar the tender of accused 2 (Patel) was accepted and the contract was given to him. In May 1947, on receipt of an application (Ex. P-1) from one Dilbagrai (P.W. 14), enquiries were started by the Anti-Corruption Department. Both the accused became aware of the enquiry. In order to create evidence in their favour they brought into existence a letter (Ex. P-24) and antedated it to 20-11-1946. This document was forged with the intention of committing fraud and of causing injury to Amarnath (P.W. 20) and also to Doongaji (P.W. 4). Ex. P-24 is alleged to have been typed on a typewriter (Article A) which was purchased on 30-12-1946 by the National Industrial Alcohol Co., Nagpur, of which accused Patel was the Managing director. It was further alleged that the endorsement made by accused 1 (Nargundkar) in the said letter. "No action seems necessary. File", and marked to Superintendent "S" was not made on 21-11-1946, which date 1 bears. This letter was handed over by accused 1 to the Office Superintendent, S.W. Gadgil (P.W. 13) about the middle of August 1947 and thereafter accused 1 wrote a letter (Ex. P-26), on 2-10-1947 to Sri S. Sanyal (P.W. 19) who was then the Excise Commissioner, requesting that this letter (Ex. P-24) and a note sheet (Ex. P-17) be kept in safe custody.
7. Both the accused denied the commission of the offences of criminal conspiracy, forgery and abetment thereof. Nargundkar denied having attended office on 9-11-1946. He denied having taken the tenders home. According to him, the tenders were opened by him in the office on 11-11-1946. Accused 2 denied that the tender of Doongaji was shown to him by accused 1 between 9th and 11th November 1946. He stated that the tender (Ex. P-3A) was the original tender submitted by him on 31st October 1946. As regards Ex. P-24, it was denied that it was fabricated or ante-dated. Accused 2 stated that it was not typed on Article A. He also alleged that the allegations made in Ex. P-24 were correct. Accused Nargundkar stated that the endorsement was made by him on 21st November 1946. The first charge having failed, nothing need be said about it herein.
8. In order to prove the second charge the prosecution had to establish that Gadgil, P.W. 13, handed over the sealed tenders on 9th November 1946 to accused Nargundkar, that the latter took them home, that between 9th and 11th November he met Patel at his house or elsewhere and that accused Nargundkar showed or communicated the particulars of the tender of Doongaji to accused Patel who substituted Ex. P-3A for his original tender before 11th November 1946. Admittedly there is no direct evidence to prove any of these facts except the first one, and the nature of the case is such that recourse could only be had to circumstantial evidence to establish those facts. The fact that the sealed tenders were handed over by Gadgil to accused Nargundkar on 9th November has been proved solely on the uncorroborated testimony of Gadgil as against the denial of Nargundkar. Gadgil was himself a suspect in the case. He was kept by the police away from the office for about eight months during the investigation, he was asked to proceed on leave at the instance of the police, and his leave was extended at their request. On the expiry of his leave, he was kept off duty without salary for a period of about five months but later on, he was paid his full salary after he had given evidence in support of the prosecution. He made additions and improvements on vital points from stage to stage of his deposition and in certain particulars his statements was contradicted by Ramaswami, P.W. 30. On his own admission, he is an accomplice in respect of the forgery of Ex. P-27, one of the documents alleged to have been forged for purposes of the defence but concerning which no prosecution was started. Ex. P-27 bears date 31st October 1946. Gadgil's statements about it is as follows :
    "He (Nargundkar) put down his signature and the date 31st October 1946. This order was actually written by Sh. Nargundkar in the note-sheet, Ex. P-27, in the month of July or August 1947. The dates were ante-dated. In the margin of the note-sheet I have put down my initials S.W. G. and put the date 31st October 1946. This, note-sheet was not prepared on 31st October 1946. He asked me to keep it in my custody."
The witness admittedly became a party to the preparation of a forged document. Whether he was telling the truth, or he was telling a lie, as appears likely from the his cross-examination, he is in either event, not a person on whom any reliance could be placed. It is curious that this aspect of the evidence of Gadgil has not been noticed by any of the three Courts below.
9. When the Court of first instance and the Court of appeal arrive at concurrent findings of fact after believing the evidence of a witness, this Court as the final Court does not disturb such findings, save in most exceptional cases. But where a finding of fact is arrived at on the testimony of a witness of the character of Gadgil and the courts below depart from the rule of prudence that such testimony should not be accepted unless it is corroborated by some other evidence on the record, a finding of that character in the circumstances of a particular case may well be reviewed even on special leave if the other circumstances in the case require it, and substantial and grave injustice has resulted. After fully examining the material on the record we have reached the conclusion that the Courts below were in error in accepting the uncorroborated testimony of Gadgil to find the fact that he handed over the tenders to Nargundkar on 9th November 1946. The witness was not allowed to live in a free atmosphere and was kept under police surveillance during the whole of the period of investigation and the trial, and was rewarded with payment of his full salary after he had given evidence to the satisfaction of the prosecution. He is a person who felt no hesitation in deposing on oath that he willingly became a party to the forgery of Ex. P-27.
10. Assuming that the accused Nargundkar had taken the tenders to his house, the prosecution in order to bring the guilt home to the accused, has yet to prove the other facts referred to above. No direct evidence was adduced in proof of those facts. Reliance was placed by the prosecution and by the Courts below on certain circumstances, and intrinsic evidence contained in the impugned document, Ex. P-3A. In dealing with circumstantial evidence the rules specially applicable to such evidence must be borne in mind. In such cases there is always the danger that conjecture or suspicion may take the place of legal proof and therefore, it is right to recall the warning addressed by Baron Alderson to the jury in Reg. V. Hodge,(1838) 2 Lewin 227) where he said :
    "The mind was apt to take a pleasure in adapting circumstances to one another, and even in straining them a little, if need be, to force them to form parts of one connected whole; and the more ingenious the mind of the individual, the more likely was it, considering such matters, to overreach and mislead, itself to supply some little link that is wanting, to take for granted some fact consistent with its previous theories and necessary to render them complete."
It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. In spite of the forceful arguments addressed to us by the learned Advocate-General on behalf of the State we have not been able to discover any such evidence either intrinsic within Ex. P-3A or outside and we are constrained to observe that the Courts below have just fallen into the error against which, warning was uttered by Baron Alderson in the above mentioned case.
11. The trial magistrate was of the opinion that friendship between the two accused was of a very rapid growth and that their relations were very intimate and accused 2 was in a position to influence accused 1. He thus found that there was motive for the commission of the crime. The learned Sessions Judge disagreed with this finding and the High Court agreed with the Sessions Judge on this point. It observed that the evidence which tended to prove friendship or undue favour was not such as to form the basis for a finding. It further found that there was nothing to show that the appellant Nargundkar received any illegal reward or the promise of one for showing Doongaji's tender to accused R.S. Patel. The first circumstances therefore on which the trial Judge placed considerable reliance was negatived by the Court of appeal and in revision. It having been found that there was no motive whatsoever for accused Nagrundkar to show the tenders to accused Patel and to take a substituted tender from him, the main link in the chain of reasoning of the trial Court vanishes. Amiable relations between the two accused or their official relationship could not be regarded as sufficient motive for committing the crime of forgery.
12. The mainstay of the prosecution case is the intrinsic evidence of the contents of Ex. P-3A itself which according to the Courts below are unusual, peculiar and strange and which according to the Advocate-General could not be there if it was a genuine document. The argument would have force provided the premises on which it is based are correct. Having examined the contents of Ex. P-3A, we do not find anything very unusual or extraordinary in it which could not be there without its author having seen Ex. P-6.
13. We now proceed to examine the so-called peculiar features in Ex. P-3A. In order to appreciate the points made by the learned Advocate-General it is necessary to set out certain facts. Ex. P-9 is the notice calling for tenders for the supply of country spirit in the Seoni distillery area. The rates which were called for by this notice were as follows :
    1. Flat rate for four years.
    2. Rates on sliding scale for four years.
    3. All-in-rate on the sliding scale for one year 1947-48.
    4. Flat, rates on the basis of the price of mahua flowers for three years 1948-51.
    5. All-in-sliding scale rate on the basis of the price of mahua flowers for three years 1948-51.
The trial magistrate held on a construction of it that no rate or rates of separate years were asked for in this notice and that one flat rate was only asked for, for four years. Habibur Rahman and Zakirur Rahman in their tenders, Exs. P-4 and P-5, quoted one flat rate for four years and did not mention separate flat rates for separate years. Doongaji in his tender, Ex. P-6, mentioned separate flat rates for each separate year also. He did so because he consulted one Mr. Munshi, Personal Assistant to the Excise Commissioner, whether he should quote each rate separately and Mr. Munshi told him that he could give flat rate for the combined years as well as flat rates and also sliding scale rates for each year separately. Admittedly accused 2 was working as an agent of Habibur Rahman and his son Zakirur Rahman for the distillery contracts of Betul and Seoni, ad, therefore, he must have been the author not only of his own tender but of the tenders submitted by Habibur Rahman and Zakirur Rahman, Exs. P-4 and P-5. All of them were acting together with the object of getting the contract though they were submitting three separate tenders. The trial magistrate held that as Habibur Rahman and Zakirur Rahman gave one flat rate for four years as called for by Ex. P-9 but accused 2, the author of all these tenders, did not do it in Ex. P-3A, but followed the method of Doongaji in giving the rates of each year separately as well as the rate for the combined four years he must have done so as he was shown the tender Ex. P-6. The question arises whether the circumstance that the accused Patel and Habibur Rahman and Zakirur Rahman were acting together was such from which a necessary inference arises that the accused Patel must have been the author of all the three tenders and, if he were, that he could not have departed from the method adopted by him in preparing Exs. P-4 and P-5 unless and until he had seen Ex. P-6. We are clearly of the opinion, that from the premises stated, this inference does not necessarily follow. Doongaji even after reading Ex. P-9, could not make up his mind whether to submit the tender with one flat rate for all the four years or whether to submit it by giving separate flat rates for each of the four years and made enquiry from the office of the Excise Commissioner and then quoted separate rates for each of the four years separately also. Patel who has admittedly considerable experience of distillery contracts and about the method of submitting tenders might very well have thought that it was best to quote a flat rate for all the years as well as a flat rate for each year separately. The circumstance that he did not do so in the other two tenders prepared by him does not materially advance the prosecution case. The very object of submitting several tenders on behalf of three persons acting in unison was to indicate to the excise authorities that they were being submitted by three different persons. If there were no variations whatsoever between those that would have defeated the very purpose of submitting them. Moreover, a variation of this trifling nature between Exs. P-3A and P-4 and P-5 cannot be said to be of such an unusual or of such an extraordinary character as to warrant the inference that it could not have been made except without a look at the tender of Doongaji. The circumstance is of a neutral character and the trial magistrate and the learned Sessions Judge gave undue importance to it, being obsessed with the idea that such a quotation of flat rates for each year could not be mentioned in a tender by a contractor merely on a construction of Ex. P-9 and without any further inquiry or without seeing the tender of somebody else who had followed that method.
14. The next circumstance on which considerable reliance is placed is that accused 2 studiously maintained rates below the rates of Doongaji throughout, that when Doongaji lowered his rates for the second year accused 2 did the same, and when Doongaji raised his rates for the third and fourth years accused 2 also did so, at the same time maintaining rates lower than Doongaji's rates. It is said that the system followed by Habibur Rahman and Zakirur Rahman and Patel originally must have been the same as Patel was the author of all the three tenders, that Habibur Rahman's rates were higher than Zakirur Rahman's by six pics and this variation was constant throughout, that in Patel's original tender which must have followed the same system his rates would be lower than Habibur Rahman's by three pics throughout. Ex. P-3A, however, shows that this is not so. Patel abandoned the system when he found that his rates on his original scheme would be higher than the corresponding rates of Doongaji. Learned Advocate-General contended that it was impossible for Patel unless he had seen Ex. P-6, to quote rates of a large number of items numbering about 197, in every case lower than the rates given in Ex. P-6 and the circumstance that in not a single case he has quoted a higher rate than Ex. P-6 is conclusive of the fact that he had done so after he had seen Ex. P-6. It was also said that there is no satisfactory explanation why Patel abandoned the scheme adopted by him in drawing up Exs. P-4 and P-5 and his original tender.
15. In our view, this circumstance again is not so strange or peculiar as was made out by the learned Advocate-General or in the Courts below. In the first place, there is no material whatsoever for the assumption that the so-called original tender was drawn up on the same scheme as Exs. P-4 and P-5 or that there was a constant variation in rates between it and Habibur Rahman's tender. It has been assumed on mere surmise that the first five rates in the tender, Ex. P-3A, are the rates that had been originally quoted. The original tender is not forthcoming and there is no evidence at all about its contents. Moreover, in the deposition of Doongaji it was elicited that in the year 1942 when tenders for the Seoni distillery contract were called for, the rates quoted by Ratanshah were lower than his rates for all items. He, however, voluntarily added that Ratanshah obtained his rates of the previous contracts before he submitted his tender for the year 1942 and that he had made a reduction of annas two to three in those rates but he was forced to admit that the rate of Ratanshah in the tender was not only lower than his but was also lower throughout than the rates of Laxminarain, Haji Ismail and Habibur Rahman even without seeing their tenders. From this statement it is quite clear that even without seeing the tenders of different tenderers a contractor may quote rock-bottom rates of all items on his own calculation or impelled by the desire of taking the contract anyhow. We do not follow why Patel could not do in 1946 what was done by Ratanshah in his tenders in 1942 and quote rates lower in all particulars and regarding all items than the rates of Doongaji. If a person is out to give rockbottom rates and his calculation is such that his rates work out lower than the rates of others, it may well he that be may quote lower rates in respect of all items.
16. It was then said that Patel had adopted a particular plan in submitting the three tenders, of himself, Habibur Rahman and Zakirur Rahman and that his plan was that his rates should be less by three pies than the rates he had quoted for Habibur Rahman, that in the first five items of Ex. 145 he stuck to that plan and did not after the rates of those items as originally submitted by him, as those rates were lower than the rates of Doongaji but from the sixth item onwards he substituted new rates for the ones he had originally submitted and he departed from the plan so that his rates for each item were to be lower only by three pies as compared with the rates of Habibur Rahman. It is no doubt true that Patel did not adhere to the plain that he adopted in the first five items of his tender but is that a circumstance from which any inference can be drawn that the first five items are a part of his original tender or that he did so depart from them because he had seen Ex. P-6 and he wanted to underbid Doongaji ? As we have already said, the object of submitting three separate tenders ostensibly by persons who were acting together was to secure the contract in one or the other name and Patel who was the author of all the three documents may very well in his own document have quoted much lower figures than were quoted by Habibur Rahman and Zakirur Rahman, in order also to give the impression that all these tenders had not been submitted by one and the same person. Be that as it may, a closer examination of the tenders of Doongaji and Patel completely negatives the theory of the Courts below. The rates quoted in the first five items of Ex. P-145 are lower than the rates of Doongji by 102, 69, 18, 12 and 9 pies respectively. Even in the subsequent quotations except in one case where the disparity in the rates of Doongaji and Patel is only two pies, the disparity in the rates is from 9 to 11 pies. Patel is certainly a businessman and the whole object of quoting the rates was to earn the maximum profit. If he had seen the tender of Doongaji he would have modelled the rates in a manner that would give him the highest profit. The learned Advocate-General could not suggest any reason whatsoever why Patel would maintain his quotation for the quantity of 50,000 gallons at Rs. 2-10-6 when the rate of Doongaji was Rs. 3-3-0. He could easily raise the quotation to Rs. 3/- and similarly in all other cases he could have underbid Doongaji by 2, 3 or 6 pies at the most. He need not have maintained as disparity of 9 to 11 pies between his rates and the rates of Doongaji. In our opinion, therefore, no conclusion of any character could be drawn from the disparity in the rates of Doongaji or of Patel or of the expected uniformity in the rates of Habibur Rahman or of R.S. Patel which would establish that Ex. P-3A had been prepared by having a look at Ex. P-6.
17. Another circumstance on which reliance was placed was that certain rates in Ex. P-3A are lower than the corresponding rates in Ex. P-6 by only one or two pies. There is no doubt that one or two rates are lower by two pies than the rates in Ex. P-6 but nothing follows from that innocent circumstance, unless one starts with a presumption of guilt. Once it is assumed that the tender of Doongaji was shown to Patel, all these circumstances might to some extent fit in with the view that in certain respects it may have been copied from Ex. P-6. The courts below fell into this error and departed from the rule that in a criminal case an accused person is to be presumed to be innocent and that it is for the prosecution establish his guilt conclusively.
18. Next it was urged that in the covering letter Ex. P-3 sent by Patel he mentions three appendices numbered 1, 2 and 3. The same expression finds place in the covering letter Ex. P-4 of Habibur Rahman and Ex. P-5 of Zakirur Rahman, that appendices 1 to 3 of the tender of Habibur Rahman and Zakirur Rahman correctly answer to the reference in the covering letters but this is not so in Patel's case; on the other hand, instead of appendix 1, Patel has appendix 1(a) and 1(b) and the number of his appendices thus goes up to four and this departure from Exs. P-4 and P-5 came about because of his having seen Ex. P-6 and the number of appendices annexed to it. It was urged that the original tender of Patel must have contained three appendices like those of Habibur Rahman and Zakirur Rahman and not appendix 1(a) and 1(b) as now found and that this circumstance showed substitution of the tender. The learned magistrate, in our opinion, in giving importance to this circumstance misled himself completely. In the first place, it is not accurate to say that the expression appendices 1, 2 and 3 was common to the covering letters Exs. P-4 and P-5. In Ex. P-5 the appendices are marked A, B and C. Therefore, no uniform method was adopted by Patel in marking the appendices to the tenders, Exs. P-4 and P-5. Secondly, there is no conflict in the expression of the appendices of Habibur Rahman and Patel. They have been marked as 1, 2 and 3 and a more subdivision of the first appendix into (a) and (b) could not be taken to be a departure from the method adopted in the description of the appendices. It may further be observed that the covering letter signed by Patel mentions four appendices, while the covering letters of Habibur and Zakirur Rahman only mention three appendices. The trial magistrate as well as the Sessions Judge ignored all these differences in the method of the description of the appendices and assumed that they had been uniformly described.
20. The result, therefore, is that all these so-called peculiar features found by the courts below in Ex. P-3A should be eliminated from consideration and it must be held that these are really no circumstances inconsistent with Ex. P-3A being a genuine document. It could have been made out without looking at Ex. P-6. In this view of the case, the whole basis on which the judgements of the courts below are founded vanishes, and in the absence of any evidence of motive, we are of the opinion, that the facts did not on any just or legal view of them warrant a conviction and although the proceedings are taken to have been unobjectionable in form, justice has gravely and injuriously miscarried. We, therefore, set aside the conviction of both the appellants on the second charge and acquit them.
21. In order to appreciate the third charge, it is necessary to set out the terms of Ex. P- 24 which it is said was ante-dated in order to create evidence for the defence of the accused and to injure Amarnath. It is in these terms :
    Congress Nagar
    Nagpur 20-11-1946.
    The Commissioner of Excise,
    C.P. and Berar, Nagpur.
    Dear Sir,
    I beg to submit few of my complaints for such action as you may be pleased to take, which are as under.
    I went to see Mr. Amarnath last week, at his residence in connection with Seoni Distillery work, I saw Mr. Edulji and his partner with Mr. Amarnath in the office room of his residence with some office files. From the papers I could recognize my tender open on the table in front of them. As soon as I went there, all of them were astonished and they could not speak with me for a moment, and then they carried on some dry general conversation with me.
    Same way after about a week, when I went to Seoni for mahua bill, when Mr. Amarnath visited for sanctioning the advance, I had the opportunity to see Mr. Amarnath in dak bungalow at about 9.30 P. M. when I saw Mr. Mehta the ex-manager of Mr. Eduji (who is also the manager of Seoni Electrict Co.) with Mr. Amarnath near table with the same file of the tender. No doubt after seeing the above two incidents I requested Mr. Amarnath to be fair in this affair.
    I am bringing these incidents to your notice, as I fear that something underhand may not be going on, and I am afraid that my tender may be tampered with.
Hoping to get justice.
Yours faithfully,
Sd. R.S. Patel."
The words "Congress Nagar, Nagpur 20-11-1946" are in manuscript while the rest of the letter has been typed. The digit 6 of the year 1946 has been over-written on digit 7 written in continental style and it is apparent to the naked eye that originally the writer wrote 7 and subsequently changed it to 6. It was contended by the learned Advocate-General, - and this is the finding of the courts below, - that this letter was written some time during the investigation of the case in July or August 1947 and was ante-dated in order to implicate Amarnath and to use it as evidence in defence. The point for decision is whether there is any evidence whatsoever to establish this fact. We have not been able to discover any such evidence on the record; on the other hand, the intrinsic evidence in the letter proves that most likely it came into existence on the date it bears. The relevant facts are that the tenders were opened by accused Nargundkar on 11-11-1946, he handed them over after making the endorsements to Amarnath and Amarnath had to submit a report about them. It is alleged in this letter that "last week" i. e., during the week commencing on 11-11-1946 accused Patel went to see Amarnath and there he saw Edulji Doondgaji with him with his tender open on his table in front of him and that he was astonished at it, that about a week later he again went to Seoni and had the opportunity to see Amarnath and Mr. Mehta, ex-manager of Edulji Doongaji, was with him and the tender file was lying there. It was stated that he had requested Amarnath to be fair in this affair and the Commissioner was asked that he should see that his tender was not tampered with and he got justice. The whole purpose and object of this letter was to protect himself against any underhand dealing in the granting of the contract. In his statement under Section 342, Criminal P.C., Patel said that he saw Amarnath on the morning of 15th or 16th November 1946 and he met Amarnath at Seoni at the distillery premises on 16-11-1946 and on the same day he met him at about 9 P.M. at the Seoni dak bungalow and that he again met him on 17th November at 10 A. M. He also stated that he had gone to see Amarnath at his residence at Nagpur between the dates 12th and 18th November. It was contended by the learned Advocate-General that this statement was inconsistent with the recitals contained in Ex. P-24. We see nothing inconsistent between this statement and the recitals. If accused Patel saw Amarnath on 12th, the letter having been written on 20th November, it would be quite a correct thing to say that he saw him "last week" and the next recital when he said that about a week thereafter he saw him again is quite consistent with his going and seeing him on 16th or 17th November. That would be about a week after the first visit. To draw any conclusion adverse to the accused from a slight inaccuracy in the description of dates and to conclude therefrom that it was established that the accused Patel had seen Amarnath on 9-11-1946 amounts to unnecessarily stretching a point against the accused. The recitals in the letter; true or false, are quite consistent with the letter bearing date 20-11-1946. The Magistrate observed that the vagueness about the date and the week shows that the allegations therein are not correct. We have not been able to understand how the vaguences about the date could lead to the conclusion arrived at. Emphasis was laid on the overwriting of the figure 6 over the figure 7 in the manuscript part of the letter. It was said that the normal experience is that it becomes a subconscious habit to automatically write the year correctly when several months have elapsed after the change of the year and that by sheer force of habit the correct year must have been put down when the date was entered in the letter, Ex. P-24 and that the figure was subsequently changed to 6 and this fact was an indication that the letter was written some time in the year 1947. In our view this argument again involves an element of conjecture. The mistake may well have been inadvertently made and the correction made there and then. That such mistakes are not very uncommon or unusual and occur in official documents is fully established on the record, in para. 93 of the judgement of the learned Sessions Judge and it is said as follows :
    "The appellants have produced a file which is Ex. ID-35. It contains a sheet which bears pages 9 and 10. On the 10th page there are two office notes - one is written by A. M. Naidu and the other by the appellant Nargundkar. A. M. Naidu below his signature has written 6-4-48. The appellant Nargundkar below his signature has written 6-4-47'. The other notes in the office file show that the correct date of the two signatures was 6-8-1947. Thus in this sheet there are two mistakes in mentioning the number of the month and one mistake in mentioning the number of the year. The appellants contend that such mistakes are possible. Nobody can deny that such mistakes are possible; but it has to be decided what inferences can be drawn from such mistakes, if there is other evidence also."
We have looked in vain for other evidence to prove that the letter was not written on the date it bears. Even Gadgil could not explain why he said that the letter was written in July 1946. It is clear that he is not telling the truth in this respect. The endorsement made on the letter by accused Nargundkar clearly bears the date 21-11-1946, and if this letter was not given to him on the date of the endorsement and was given to him several months afterwards he would in ordinary, course have made some note either on the letter or in the receipt register of his office when that letter was received by him. Then it was said that this letter was not in the file of the tenders which was kept separate. The commissioner had noted that the letter be filed and he sent it to the office. If the office people did not put it in the file, from that circumstance no adverse inference could be drawn as to the date that the letter bears. It is clear that no forgerer would have in such a clumsy manner corrected 1947 into 1946 so as to leave the original figure "7" intact and thus leave evidence of its suspicious character writ large on its face. There was no hurry about it and a second letter without the alteration could easily have been typed.
22. Next it was argued that the letter was not typed on the office typewriter that was in use in those days, viz., Article B and that it had been typed on the typewriter Article A which did not reach Nagpur till the end of 1946. On this point evidence of certain experts was led. The High Court rightly held that opinions of such experts were not admissible under the Evidence Act as they did not fall within the ambit of Section 45 of the Act. This view of the High Court was not contested before us. It is curious that the learned Judge in the High Court, though he held that the evidence of the experts was inadmissible, proceeded nevertheless to discuss it and placed some reliance on it. The trial magistrate and the learned Sessions Judge used this evidence to arrive at the finding that as the letter was typed on Article A which had not reached Nagpur till the end of December 1946, obviously the letter was antedated. Their conclusion based on inadmissible evidence has, therefore, to be ignored.
23. It was further held that the evidence of experts was corroborated by the statements of the accused recorded under Section 342. The accused Patel, when questioned about this letter, made the following statement :
    "Exhibits P-31 was typed on the office typewriter Article B. Ex. P-24 being my personal complaint letter was typed by my Personal Assistant on one of the typewriters which were brought in the same office for trial, with a view purchase. As this was kept in the Correspondence Files Ex. P-34 and Ex. P-35 just as there is no copy in these files of my tender-Ex. P-3A............In the months of September, October and November 1946 several machines were brought for trial from various parties in our office till the typewriter Article A was purchased by National Industrial Alcohol Ltd. Company."
If the evidence of the experts is eliminated, there is no material for holding that Ex. P-24 was typed on Article A. The trial Magistrate and the learned Sessions Judge used part of the statement of the accused for arriving at the conclusion that the letter not having been typed on Article B must necessarily have been typed on Article A. Such use of the statement of the accused was wholly unwarranted. It is settled law that an admission made by a person whether amounting to a confession or not cannot be split up and part of it used against him. An admission must be used either as a whole or not at all. If the statement of the accused is used as a whole, it completely demolishes the prosecution case and, if it is not used at all, then there remains no material on the record from which any inference could be drawn that the letter was not written on the date it bears.
24. For the reasons given above we hold that there is no evidence whatsoever on the record to prove that this letter Ex. P-24 was ante-dated and that being so the charge in respect of forgery of this letter also fails. Read as a whole, this letter cannot be said to have been written with the intention of causing any injury to Amarnath or for the purpose of creating a defence in respect of the second charge. The letter read as a whole is an innocuous document and its dominant purpose and intent was to safeguard the interests of accused Patel and to protect him against any underland or unfair act of his rival contractors. We cannot infer any intent to defraud or any intention to injure Amarnath, though in order to protect himself accused Patel made certain allegations against him. We, therefore, set aside the conviction of both the appellants under the third charge and acquit them.
25. The result is that the consolidated appeal is allowed, the judgements of all the three Courts below are set aside and the appellants are acquitted.

Accused acquitted.

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