Full Judgment Text
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PETITIONER:
BIMBADHAR PRADHAN
Vs.
RESPONDENT:
THE STATE OF ORISSA.
DATE OF JUDGMENT:
13/03/1956
BENCH:
SINHA, BHUVNESHWAR P.
BENCH:
SINHA, BHUVNESHWAR P.
IMAM, SYED JAFFER
AIYAR, N. CHANDRASEKHARA
CITATION:
1956 AIR 469 1956 SCR 206
ACT:
Indian Penal Code, 1860 (Act XLV of 1860), s. 120-B-Criminal
conspiracy-Case where the only persons alleged to have been
guilty of the offence of conspiracy were the persons placed
on trial and only one person was concerned with the crime
after the acquittal of the rest of the accused and the case
where on the findings apart from the persons placed on the
trial there was the approver who implicated himself and a
number of other prosecution witnesses as having been privy
to the conspiracy-Distinction between-Criminal Procedure
Code, 1898 (Act V of 1898), ss. 225 and 537-Omission to
mention the name of approver in the charge-Whether
occasioned failure of justice-Repugnancy on the face of
record in convicting only one person for conspiracy-English
and Indian Law-Difference between.
HEADNOTE:
The appellant and four others were placed on their trial
before the Assistant Sessions Judge of Sambalpur for
offences under ss. 120-B, 409, 477-A and 109, I.P.C. with
having committed the offences of criminal conspiracy,
criminal breach of trust in respect of Government property
and falsification of accounts with a view to defraud the
Government. The appellant was the District Food Production
Officer and the other four accused persons were agricultural
sub-overseers under the appellant and another agricultural
sub-overseer namely P. was examined at the trial as an
approver. The Assistant Sessions Judge convicted the
appellant under all the three charges but acquitted the four
sub-overseers giving them the benefit of doubt.
The High Court in appeal allowed the appeal of the appellant
in respect of charges under ss. 409 and 477-A, I.P.C. but
upheld his conviction and sentence in respect of the charge
of conspiracy under s. 120-B, I.P.C. observing that in
respect of that charge the evidence given by the approver
got corroboration from other independent evidence. On
appeal by special leave to the Supreme Court the main
question for consideration was whether the ruling of the
Supreme Court in the case of Topan Das v. The State of
Bombay ([1955] 2 S.C.R. 881), governed the present case in
view of the fact that the appellant was the only person out
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of the accused persons on trial who had been convicted of
the offence of conspiracy under s. 120-B, I.P.C.
Held (i) that the case of Topan Das v. State of Bombay was,
clearly distinguishable from the present case as in that
case the only persons alleged to have been guilty of the
offence of conspiracy ’Were the persons placed on trial.
There was no allegation nor any
207
evidence forthcoming that any other persons though not
placed on trial, were concerned with the crime. On the
findings in that case, only one person, after the acquittal
of the rest of the accused, was concerned with the crime and
stood convicted of the charge of conspiracy. As a person
cannot be convicted of conspiring with himself to commit an
offence, the Supreme Court gave effect to the. contention
that on the findings and on the evidence, as also on the
charge in that case, the conviction could not be sustained.
But in the instant case on the findings of the courts below,
apart from the persons placed on the trial, there was the
approver who implicated himself equally with the other
accused persons and a number of other prosecution witnesses
as having been privy to the conspiracy. And therefore the
present case was not on all fours with the case of Topan Das
v. State of Bombay.
(ii) The provisions of s. 225, Cr. P.C. were clearly
applicable to the facts and circumstances of the present
case. It had not been shown how the omission to mention the
name of the approver in the charge under s. 120-B, I.P.C.
had misled the appellant or had occasioned a failure of
justice.
(iii) The provisions of s. 537 of the Code of Criminal
Procedure were equally applicable to the facts of the case.
As the appellant did not raise the point with reference to
the alleged illegality or irregularity in the charge before
the High Court it must be held, applying the Explanation to
that section, that the omission in the charge bad not
occasioned a failure of justice.
The contention that with the acquittal of the alleged
conspirators no verdict of guilty against the appellant
could be given, because the verdict would be regarded as
repugnant in so far as it would amount to saying that there
was a criminal agreement between the appellant and the
others and none between them and him, the conviction of the
appellant would amount to a similar repugnancy was without
substance because the rule of English law as to the
acquittal of an alleged conspirator when the conspiracy was
said to be only between the two is based upon a rule of
practice and procedure, namely that repugnancy or
contradiction on the face of the record is a ground for
annulling a conviction. But such a repugnancy is not by
itself a sufficient ground for quashing a conviction in
India where the matter is governed by statutory law both as
to the offence and the procedure for bringing the offender
to justice. In India there is no provision in the statutory
law justifying an interference with a conviction on the
ground of repugnancy in the record.
Topan Das v. State of Bombay ([1955] 2 S.C.R. 881), The
Queen v. Manning ([1883] 12 Q.B.D. 241), The Queen v.
Thompson ([1851] 16 Q.B. 832), The King v. Plummer ([1902] 2
K.B. 339), Kannangara Aratchige Dharmasena v. The King
([1951] A.C. 1), I. G. Singleton v. The King-Emperor ([1924]
29 C.W.N. 260), Dalip Singh v. State of Punjab ([1954]
S.C.R. 145) and Kapildeo Singh v, The King ([1949-50] F.C.R.
834), referred to.
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JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 49 of
1954.
Appeal by special leave from the judgment and order dated
the 7th October, 1953 of the Orissa High Court at Cuttack in
Criminal Appeal No. 108 of 1952 arising out of the judgment
and order dated the 14th November 1952 of the Court of
Assistant Sessions Judge at Sambalpur Sundergarh in Sessions
Trial No. 7/4 (5) of 1922.
S. C. Isaacs, R. Patnaik and R. C. Prasad, for the
appellant.
Porus A. Mehta and P. G. Gokhale, for the respondent.
1956. March 13. The Judgment of the Court was delivered by
SINHA J.-The main question canvassed in this appeal by
special leave is whether the ruling of this Court in the
case of Topan Das v. The State of Bombay(1) governs this
case also, in view of the fact that the appellant is the
only person out of the accused persons placed on trial, who
has been convicted for the offence of conspiracy under
section 120-B, Indian Penal Code. The point arises in the
following way:
The appellant and four others were placed on their trial
before the Assistant Sessions Judge of Sambalpur for
offences under sections 120-B, 409,477-A and 109, Indian
Penal Code with having committed the offences of criminal
conspiracy, criminal breach of trust in respect of
Government property, and falsification of accounts with a
view to defraud the Government. The appellant was the
District Food Production Officer in Sambalpur and the other
four accused persons were agricultural sub-overseers in
charge of their respective areas under the appellant.
Another such agricultural sub-overseer was Pitabas Sahu at
Bargarh centre. He was examined at the trial as P.W. 25 and
(1) (1955) 2 S.C.R. 881.
209
shall hereinafter be referred to as the approver. The
prosecution case is that in furtherance of the Grow More
Food Scheme initiated by Government it was decided to
subsidize the supply of oil cake to agriculturists with a
view to augmenting the production of food crops.
Cultivators were to be supplied this variety of manure at
Rs. 4-4-0 per maund, though the Government had to spend Rs.
7-12-0 per maund. The appellant entered into a conspiracy
with his subordinate staff including the agricultural sub-
overseers aforesaid to misappropriate the funds thus placed
at their disposal for the procurement and supply of oil cake
to cultivators. To bolster up the quantity of oil cakes to
be procured, they showed false transactions of purchase and
distribution thereof and falsified accounts, vouchers, etc.
Thus they were alleged to have misappropriated the sum of
Rs. 4,943-4-0 of Government money.
A large volume of oral and documentary evidence was adduced
on behalf of the prosecution. The three assessors who
assisted at the trial were of the opinion that none of the
accused was guilty. The learned Assistant Sessions Judge in
agreement with the assessors acquitted the four agricultural
sub-overseers aforesaid of all charges, giving them the
benefit of the doubt. But in disagreement with the
assessors he convicted the appellant under all the charges
and sentenced him to rigorous imprisonment for four and a
half years and a fine of Rs. 2,000 under section 409, Indian
Penal Code, and to rigorous imprisonment for two years each
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under sections 120-B and 477-A of the Code, the sentences of
imprisonment to run concurrently. The learned trial Judge
observed in the course of his judgment as follows:-
"Hence on a consideration of all the evidence as discussed
above, I find that the prosecution have fully proved their
case that the accused Bimbadhar Pradhan, the D.F.P.O. has
conspired to embezzle the Government money. They have also
proved that he has got an active hand and in assistance of
Pitabas
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Sahu has embezzled Government money amounting to Rs.
4,943-4-0 and in that act he has also actively helped
Pitabas Sahu in falsifying the Government records by making
false entries.- Hence all these three charges have been
conclusively proved against him. So far as regards the
other accused persons, I have already stated that they are
considerably inexperienced and the doubtful nature of
evidence against these accused persons and considering the
position between the first accused and the other accused
persons, I give these four accused persons the benefit of
doubt though I do not approve their conduct in this affair.
As per my findings given above, I may state here that this
is a case in which we find a person in charge of the entire
administration of agricultural and G.M.F. development of a
district has not only soiled his own hands by embezzling
Government money by corrupt means but has also introduced
corruption into the entire administration of that department
by spoiling the career of young men who are entrusted with
this work and employed under him".
The appellant went up in appeal to the High Court of Orissa.
A Division Bench of that Court allowed his appeal and set
aside his convictions and sentences under sections 409 and
477-A, Indian Penal Code, but upheld his conviction and
sentence in respect of the charge of conspiracy under
section 120-B of the Code. We need not enter into the
correctness of the findings of the trial court in respect of
the acquittal of the other four accused, or of the High
Court with regard to the acquittal of the appellant in
respect of the charges under sections 409 and 477-A, Indian
Penal Code. The High Court held that though the appellant
had withdrawn the sum of Rs. 27,000 from the Government
treasury with a view to subsidizing the procurement of oil
cake, it had not been proved that there was an entrustment
to the appellant. Hence the charge against him under
section 409 failed. As regards the charge under section
477-A, the High
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Court acquitted him on the ground that the documents said to
have been falsified, which were large in number, had not
been mentioned in the charge and a vague statement that
"accounts, cash books, stock books, petty cash sale
register, cash memos, applications from cultivators,
receipts, bills, vouchers, papers, documents, letters,
correspondence, etc. had been falsified" was made.
As regards the charge of conspiracy under section 120-B, the
High Court observed that the most important witness to prove
the charge was the approver aforesaid (P.W. 25) who had
given a full description of the conspiracy on the 23rd or
25th September 1947 between the appellant and other sub-
overseers including himself for the purpose of showing bogus
purchases and bogus distribution of large quantities of oil
cake. It also observed that "Most of the witnesses examined
by the prosecution to corroborate the evidence of Pitabas
are themselves accomplices in the conspiracy". The High
Court found that in respect of that conspiracy the evidence
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given by the approver got adequate corroboration from other
independent witnesses. After setting out the evidence the
High Court recorded the following finding:-
"This would be strongest corroboration of the evidence of
the approver about the appellant being the prime mover and
the brain behind the entire fraud. It was he who wanted to
misuse his official position and persuade his subordinates
to join with him in showing false procurement and
distribution figures of oilcakes".
And finally the High Court came to the following
conclusion:-
"I am therefore of the opinion that the approver’s version
about the leading part in the conspiracy played by the
appellant in persuading all his subordinates to join with
him for the purpose of committing criminal breach of trust
of the sums withdrawn from the treasury by showing false
procurement and distribution of oilcake is true. There is
independent corro-
212
boration of his evidence which is inconsistent with the
appellant being a mere negligent superior officer who was
deceived and defrauded by his dishonest subordinates. It
was then urged that in the charge under section 120-B of the
Indian Penal Code, the date of the commission of the offence
was stated to be the month of October 1947, whereas
according to the evidence of P.W. 5, the conspiracy took
place at Bargarh between the 23rd and 25th September 1947.
This discrepancy in the date is immaterial and has not
prejudiced the appellant in any way".
From the concurrent orders of conviction and sentence of the
appellant under section 120-B, Indian Penal Code, he was
granted special leave to appeal to this Court. The learned
counsel for the appellant has raised the following points in
support of the appeal:-
1. That all the persons charged with the offence of
conspiracy except the appellant having been acquitted, his
conviction and sentence in respect of that charge could not
in law be maintained;
2. That the appellant himself having been acquitted of the
substantive charges under sections 409 and 477-A of the
Code, he could not be convicted for conspiracy to commit
those very offences;
3. That the evidence of the prosecution witnesses having
been disbelieved as against the other accused, the same
evidence should not have been relied upon for convicting the
appellant of the charge of conspiracy;
4. That the provisions of section 342, Code of Criminal
Procedure, had not been fully complied with in so far as
important circumstances in the prosecution evidence had not
been put to the appellant in his examination by the court
under that section.
In our opinion, there is no substance in any one of these
contentions and we proceed to give our reasons for our
conclusions.
In support of the first contention raised on behalf of the
appellant strong reliance was placed on the
213
recent decision of this Court in Topan Das v. State of
Bombay(1) and the rulings relied upon in that case. The
cases, The Queen v. Manning(2), The Queen v. Thompson(3) and
The King v. Plummer(4) were cited in support of the
contention that where all the accused persons except one are
acquitted on a charge of conspiracy, the conviction of one
only on that charge cannot be sustained. In this connection
the recent decision of the Judicial Committee of the Privy
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Council in the case of Kannangara Aratchige Dharmasena v.
The King(5) may also be referred to, though it was not cited
at the Bar. In that case the Judicial Committee held that
where only two persons are involved in a charge of
conspiracy, if a new trial has to be directed in respect of
one it should be ordered in respect of both, because the
only possible conclusion in such a case was either that both
were guilty or that neither was guilty of the offence. The
recent decision of this Court so strongly relied upon by the
appellant lays down a similar rule, but is clearly
distinguishable from the case in hand inasmuch as in that
case the only persons alleged to have been guilty of the
offence of conspiracy were the persons placed on trial.
There was no allegation nor any evidence forthcoming that
any other persons were, though not placed on trial,
concerned with the crime. In those circumstances this Court
laid it down that it was essential to bring the charge of
conspiracy home to the accused person or persons to prove
that there was an agreement to commit an offence between two
or more persons. On the findings in that case only one
person, after the acquittal of the rest of the accused was
concerned with the crime-and stood convicted of the charge
of conspiracy. As a person cannot be convicted of
conspiring with himself to commit an offence, this Court
gave effect to the contention that on the findings and on
the evidence,
(1)[1955] 2 S.C.R. 881. (2) [1883] 12 Q.B.D 241. (3) [1851]
16
Q.B. 832. 117 E.R. 1100. (4) [1902] 2 K. B. 339.
(5) [1951] A.C. 1.
28
214
as also on the charge in that case the conviction could not
be sustained. But in the instant case, as already
indicated, on the findings of the courts below, apart from
the persons placed on trial, there was the approver who
implicated himself equally with the other accused persons
and a number of other prosecution witnesses as having been
privy to the conspiracy. The evidence of the approver has
been found by the courts below to have been materially
corroborated both as to the unlawful agreement and as to the
persons concerned with the conspiracy. In the first
information report lodged on the 28th June 1948 the approver
Pitabas Sabu, one of the agricultural sub-overseers, was
named along with the other five accused as the persons
concerned with the conspiracy. Subsequently Pitabas Sahu
aforesaid was granted pardon on condition of his making a
full and true statement of the facts of the case and was
examined as an approver, on whose evidence mainly rested the
case against the accused. His evidence, as indicated above,
was supported by the dealers in oilcake who supplied the
commodity which was the subject matter of the conspiracy.
It cannot therefore be said that this case is on all fours
with the recent decision of this Court referred to above.
But it was argued on behalf of the appellant that be was
charged only with a conspiracy with the other accused
persons and not with any conspiracy with the approver along
with those others. The charge under section 120-B is in
these terms:
"First, that you, on or about the month of October, 1947 in
the district of Sambalpur agreed with Hemchandra Acharya and
other accused persons to do or caused to be done an illegal
act by illegal means and that you did some acts in pursuance
of the said agreement to wit, the offence of criminal breach
of trust under s. 409, I.P.C. and falsification of accounts
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under s. 477-A punishable with R. I. for more than two years
and thereby committed an offence punish-
215
able under s. 120-B, I.P.C. , and within the cognizance of
court of Sessions".
It will thus appear from the words of the charge that the
approver was not specifically named as having been one of
the conspirators, unless he could be brought within the
category of "other accused persons". Something will have to
be said as to what those words denote, whether the approver
was also included within that description. Counsel for the
appellant contended that they did not. Counsel for the
State Government contended to the contrary. In England an
indictment consists of three parts: (1) the commencement,
(2) the statement of the offence, and (3) the particulars of
the offence. The English law of indictment from very early
times has been based on very technical rules. Those rules
have now been codified by the Indictments Act, 1915 (5 & 6
George 5, Chapter 90). In Rule 2 (Schedule 1) of the Act as
amended by the Administration of Justice (Miscellaneous
Provisions) Act of 1933, the form of "the commencement of
the indictment" has been prescribed. The form of "Statement
of the offence" has been prescribed by Rule 4 of the Act and
below that has to follow "Particulars of offence" as re-
quired by Rule 5. Those rules more or less correspond to the
rules laid down in Chapter XIX of the Code of Criminal
Procedure. Section 221, Code of Criminal Procedure,
requires that the charge shall state the offence with which
the accused is charged, giving the specific name of the
offence, if such a name has been given by the law which
creates the offence, which in this case means the offence of
criminal conspiracy, defined by section 120-A, Indian Penal
Code. The naming of the section is, under sub-section (5)
of section 221 , Code of Criminal Procedure, equivalent to a
statement that every legal condition required by law to
constitute the offence of criminal conspiracy charged
against the appellant was fulfilled. Section 222 of the
Code requires that the particulars as to the time and place
of the alleged offence, and
216
the person (if any) against whom, or the thing (if any) in
respect of which, the offence was committed, shall be
stated. It is noteworthy that section which requires the
particulars of the offence to be stated does not in terms
further require that in an offence,like conspiracy the names
of the co-conspirators should also be mentioned. Hence in
England it is enough if the indictment states that the
accused along with other persons unknown had committed the
offence of criminal conspiracy. Though the statute law in
India does not make it obligatory that the persons concerned
in the crime of criminal conspiracy should be specifically
named along with the person or persons charged in a
particular trial, it is always advisable to give those
particulars also in order to give a reasonable notice to the
accused that he has been charged with having conspired with
so and so (persons named), as also persons unnamed, to
commit a certain offence. In this case the charge against
the five accused persons with reference to section 120-B,
Indian Penal Code, named only those five persons as the
conspirators and omitted to name the approver also as having
been privy to the conspiracy. This is clearly brought out
with reference to the charge framed against the other four
accused (who have been acquitted by the trial court as
aforesaid). It states:-
"That you, on or about the month of October 1947 in the
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district of Sambalpur, agreed with Bimbadhar Pradhan to do
or caused to be done an illegal act by illegal
means.......................
We find with reference to the records of the trial court
that the trial has not been characterised by thoroughness or
circumspection. The date of the offence as given in the
charge is different from the date as disclosed in the
evidence, as pointed out by the High Court, which found that
mistake bad not caused any prejudice to the accused.
Similarly, the charge under section 477-A had not, as held
by the High Court, been framed with sufficient parti-
217
cularity as a result of which the appellant had to be
acquitted of that charge on appeal. If the charge under
section 120-B had added the words "and other persons, known
or unknown", there would have been no ground for a grievance
on the part of the appellant.
But even so, in our opinion, the provisions of section 225,
Code of Criminal Procedure, are clearly applicable to the
facts and circumstances of the present case. It has not
been shown to us how the omission to mention the name of the
approver in the charge under section 120-B, Indian Penal
Code, has misled the appellant or has occasioned a failure
of justice. The prosecution case throughout has been, as is
clear with reference to the petition of complaint, that the
appellant with his subordinates in the Food Department had
conspired to misappropriate the funds allocated to the
procurement of oil-cake with a view to helping
agriculturists with manure to raise more food crops. The
approver has been very much in the picture all the time
and, as a matter of fact, as found by the courts below,
his evidence is the main plank in the prosecution case. Of
course, there is the other corroborative evidence, as
pointed out in the judgments of the courts below. The
provisions of section 537 are equally attracted to this
case. With reference to the provisions of that section it
is pertinent to note that though the other accused had been
acquitted by the trial court and though he was the only
appellant in the High Court, he did not raise the points
with reference to the alleged illegality or irregularity in
the charge, before that court. Hence applying the
Explanation to that section to this case, it cannot be urged
that the omission in the charge has occasioned a failure of
justice.
But the learned counsel for the appellant has invited our
pointed attention to the observations of Mr. Justice Mathew
at p. 243 of Queen v. Manning(1) that it is "an imperative
rule of law" that "in a
(1) [1883] 12 Q.B.D. 241.
218
charge for conspiracy in a case like this where there are
two defendants, the issue raised is whether or not both the
men are guilty, and if the jury are not satisfied as to the
guilt of either, then both must be acquitted". But Lord
Coleridge, C. J., whose direction to the jury in that case
was the subject matter of the judgment does not put it as
high as Mr. Justice Mathew, but understood it "to be the
established rule of practice".
Reliance was placed by the learned counsel for the appellant
on the case of The King v. Plummer(1), in which it has been
observed that with the acquittal of the only alleged
conspirators no verdict of guilty against the appellant
could be passed because the verdict would be regarded as
repugnant, in so far as it would amount to saying that there
was a criminal agreement between the appellant and the
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others and none between them and him. Hence it was
contended that in a situation such as the present case
presents, the conviction of the appellant would amount to a
similar repugnancy. This aspect of the matter has been well
discussed in a judgment of the Calcutta High Court delivered
by Mr. Justice Mukerji in the case of I. G. Singleton v. The
King-Emperor(2). The learned Judge has there pointed out
the difference between the position as it obtains in India
and that in England. The rule of English law as to the
acquittal of an alleged conspirator following from the
acquittal of the other when the conspiracy was said to be
only between the two and in a joint trial of both is based
upon a rule of practice and procedure, namely, that
repugnancy or contradiction on the face of the record is a
ground for annulling a conviction. But such a repugnancy is
not by itself a sufficient ground for quashing a conviction
in India where the matter is governed by statutory law both
as to the offence and the procedure for bringing the
offender to justice. In India there is no provision in the
statutory law justifying an interference with a conviction
on the
(1) [1902] 2 K.B. 339.
(2) [1924] 29 C.W N. 260.
219
ground of repugnancy in the record. That is not to say that
the court is to shut its eyes to the inconsistency in
convicting one person of the offence of conspiracy on the
same evidence on which the other alleged conspirator had
been acquitted. If the matter is as simple as that,
ordinarily the courts will have no difficulty in setting
aside the conviction, when there was absolutely nothing on
the record to distinguish the case against the one from that
against the other. Such was the case which was decided by
this Court in Topan Das v. State of Bombay(1).
Learned counsel for the appellant pressed upon us the
consideration that notwithstanding the state of affairs as
disclosed in the evidence, the appellant was entitled to an
acquittal because in the charge as framed against him there
was no reference to the approver. He contended that the
rule upon which the accused was entitled to an acquittal was
not a matter of practice but of principle. In the instant
case we are not sure that the acquittal of the co-accused by
the trial court was well founded in law or justified by the
evidence in the case. The trial court has not disbelieved
the evidence led on behalf of the prosecution. It has only
given the benefit of the doubt to the accused whom it
acquitted on grounds which may not bear scrutiny. But as
the case against those acquitted persons is not before us,
we need not go any further into the matter.
It has further been contended by the learned counsel for the
appellant that the High Court having acquitted him in
respect of the two substantive charges of criminal breach of
trust and of falsification of documents he should not have
been convicted of the offence of criminal conspiracy because
the conspiracy was alleged to have been for those very pur-
poses. It is a sufficient answer to this contention to say
that the offence of criminal conspiracy consists in the very
agreement between two or more persons to commit a criminal
offence irrespective of the
(1) [1955] 2 S.C.R. 881.
220
further consideration whether or not those offences have
actually been committed. The very fact of the conspiracy
constitutes the offence and it is immaterial whether
anything has been done in pursuance of the unlawful
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agreement. But in this case the finding is not that
Government money had not been misappropriated or that the
accounts had not been falsified. The charge under section
477-A relating to the falsification of the documents has
failed because the High Court found that particular charge
was wanting in sufficient particulars, thus causing
prejudice to the accused. The charge under section 409,
Indian Penal Code, was set aside by the High Court on the
ground that there was "practically no evidence of
entrustment with the appellant of the price of 1500 maunds
of oil-cakes, a substantial portion of which he was said to
have misappropriated". How far this observation of the High
Court is well founded in law with reference to the official
position of the appellant who had the spending of the
Government money in his hands is not a matter on which we
need pronounce. It is enough to point out that it has not
been found by the courts below that the object of the
criminal conspiracy had not been achieved. On the other
hand, there is enough indication in those judgments that the
object of the conspiracy had been to a large extent
fulfilled. Hence it must be held that there is no substance
in this contention also.
Another contention raised on behalf of the appellant was
that the other accused having been acquitted by the trial
court the appellant should not have been convicted because
the evidence against all of them was the same. There would
have been a great deal of force in this argument, not as a
question of principle but as a matter of prudence, if we
were satisfied that the acquittal of the other four accused
persons was entirely correct. In this connection the
observations of this Court in the case of Dalip Singh v. State
of Punjab(1), and of the Federal Court in
(1) [1954] S.C.R. 145, 156.
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Kapildeo Singh v. The King(1) are relevant. It is not
essential that more than one person should be convicted of
the offence of criminal conspiracy. It is enough if the
court is in a position to find that two or more persons were
actually concerned in the criminal conspiracy. If the
courts below had come to the distinct finding that the
evidence led on behalf of the prosecution was unreliable,
then certainly no conviction could have been based on such
evidence and all the accused would have been equally
entitled to acquittal. But that is not the position in this
case as we read the judgments of the courts below.
Lastly, it was contended that the examination of the
appellant by the learned trial Judge was not in full
compliance with the requirements of section 342, Code of
Criminal Procedure. Two points have been sought to be made
in this connection. Firstly, it has been contended that
though the other accused who have been acquitted by the
trial court were questioned with reference to the conspiracy
with the approver Pitabas Sahu, no such question was put to
the appellant. It is true that the court questioned him
about his "conspiracy with the other accused persons".
Counsel for the parties before us did not agree as to the
significance of the words "in conspiracy with the other
accused persons". The contention on behalf of the appellant
was that they referred only to the persons actually standing
trial before the court, whereas counsel for the State con-
tended that they had reference to all the accused persons
named in the petition of complaint including the approver.
A number of rulings of the different High Courts as to what
is the position of an approver, whether he continues to be
an accused person even after the grant of pardon or whether
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he is only in the position of a witness on behalf of the
prosecution, were cited before us. But we do not think it
necessary in this case to pronounce upon that because we
have, as already indicated, come to our conclusions
(1) [1949-50] F.C.R. 834, 837, 838.
29
222
on the assumption that there is an omission in the charge in
so far as the approver has not been specifically named in
the charge under section 120-B, Indian Penal Code.
Secondly, it was contended that the evidence of P.W. 27 who
had been chiefly relied upon in the courts below as
corroborating the approver had not been specifically put to
the appellant though the evidence of the approver Pitabas
Sahu was pointedly put to him. In our opinion, it is not
ordinarily necessary to put the evidence of each individual
witness to the accused in his examination under section 342,
Code of Criminal Procedure. The appellant was put the
question "Have you got anything to say on the evidence of
the witnesses?" That, in our opinion, is sufficient in the
circumstances of this case to show that the attention of the
accused was called to the prosecution evidence. As to what
is or is not a full compliance with the provisions of that
section of the Code must depend upon the facts and circum-
stances of each case. In our opinion, it cannot be said
that the accused has been in any way prejudiced by the way
he has been questioned under that section.
As all the contentions raised on behalf of the appellant
fail, the appeal must stand dismissed.
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