Patna High Court
Krishna Nandan Prasad Verma vs The State on 1 November, 1957
Equivalent citations: AIR1958PAT166, 1958(6)BLJR6, 1958CRILJ406, AIR 1958 PATNA 166, 1958 BLJR 6
JUDGMENT Sahai, J.
The petitioner has been convicted under Section 409 of the Penal Code and has been sentenced to undergo rigorous imprisonment for two years and also to pay a fine of Rs. 2,000 or, in default, to undergo further rigorous imprisonment for one year.
2. The facts, which have either been admitted or have been found by the courts below to be proved and which are not in dispute any longer, are as follows: The petitioner was employed as the only clerk (called head clerk) in the office of Lady Elgin Zenana Hospital (hereinafter to be referred to as the hospital) at Gaya from before August, 1951, up to the 23rd January, 1953, when he was not under suspension. As clerk, he was in charge of correspondence, office work, accounts, deposits and withdrawals of money, etc. He used to write the cash book and collection register, to prepare chalans for deposit of money in the treasury and to prepare bills for withdrawal of money from the treasury. The hospital was previously managed by a committee; but it was provincialised, that is to say, its management was taken over by the State Government, in 1949. It was directly in charge of a Lady Superintendent; but its administrative head was the Civil Surgeon. Dr. T.K. Sundaram (P.W. 1) was the Lady Superintendent of the hospital from the 17th July, 1951, onwards, and Dr. S. Prasad (P.W. 13) was the Civil Surgeon of Gaya from May, 1952.
3. Sources of income of the hospital included rent from paying wards and side rooms as well as charges for confinements and operations. The system was that the senior nurse, for the time being, took a receipt book from the petitioner, realised charges payable from paying patients, issued receipts to these patients, and, at intervals of two to four days, handed over the money collected by her to the petitioner.
The nurse concerned as well as the petitioner made endorsements on the back of the last counterfoil of receipt issued by the nurse to the effect that the money collected by the nurse had been paid to, and received by, the petitioner. When one receipt book was exhausted, the senior nurse returned the book containing the counterfoils to the petitioner who issued a fresh receipt book to her. The nurse concerned used to make necessary entries in the paying patients' register showing the names of patients and the amount and nature of realisations from each of them.
The nurses who have been examined as Prosecution witnesses in this case are P. W's 2, 7 and 17. P.W. 2 made entries in the paying patients' register from the 18th April to the 8th September, 1951 and again from the 14th November 1951, to the 26th April, 1952, as she was in charge of collections during these periods, P.W. 7 made entries from the 9th September 1951, to the 24th October, 1951 and P.W. 17 made entries from the 28th April to the 28th July, 1952, when they were in charge of the collections.
The petitioner, on the other hand, used to enter in the cash book the amounts which he received from the nurses, excluding the share of such receipts which was to be paid to doctors (i.e., the Lady Superintendent and other physicians) and to enter in exercise books (exhibits 7 and 7/a), called doctors' fee books, the shares of receipts which were payable to the doctors. In the collection register, the petitioner used to enter the amounts collected from the hospital under different heads and to note the chalan numbers under which different sums had been deposited in the treasury.
4. On the 23rd January, 1953, an Assistant Accounts Officer named Mr. R.N. prasad (P.W. 3) and a senior auditor named Mr. C. Prasad (P.W. 21), accompanied by another auditor, came to the office of the hospital with the permission of the Civil Surgeon (P. W. 13) and started making a surprise audit of the accounts in the presence and with the assistance of the petitioner. They found several defects in the accounts and they spoke to Dr. Sundaram (P. W. 1) about it, asking her to inform the Civil Surgeon.
She, accordingly, gave information to the Civil Surgeon by telephone, and he came to the hospital at about 5 P.M. when P.w. 3 was preparing his preliminary report (exhibit 14) which was ready about half an hour later. P. W. 3 gave the report (exhibit 14) to the Lady Superintendent (P. W. 1) who immediately forwarded it to the Civil Surgeon, and the Civil Surgeon received it at about 6 p. m.
5. I may mention at this stage that the prosecution case is that the Civil Surgeon questioned the petitioner, on his arrival at the hospital, about the hospital money which was missing and the petitioner then stated to the Civil Surgeon, in the presence of the Lady Superintendent (P. W. 1), the Assistant Accounts Officer (P.W. 3) and the senior auditor (P. W. 21), that he had committed a mistake, and that he had spent the money for his own purposes.
Thereafter, the petitioner promised to make good the deficit, and actually went from the hospital in the Lady Superintendent's car and came back a little later along with his father-in-law, handed over Rs. 666/- to the Civil Surgeon. Out of this amount, the sum of Rs. 66/- was the closing balance on the 23rd January, 1953, and the remaining amount of Rs. 600/- was part of Rs. 2,600/- which then appeared, under the preliminary report (exhibit 14), to have been defalcated. It is further alleged that the Civil Surgeon got this amount of Rs. 668/- deposited next day i. e., on the 24th January, 1953, in the treasury under a chalan (exhibit 5).
6. The investigating officer (P.W. 19) came to the hospital in the evening on receipt of a telephonic message. The Civil Surgeon (P.W. 13) then made over a written report (exhibit 23) to him. It was a very short document stating as follows:
"It is reported by the Assistant Audit Officer that Shri Krishna Nandan Prasad Verma, clerk, Lady Elgin Zenana Hospital, Gaya, has defalcate ed about Rs. 2,600/-. He is arranging for detailed audit "Necessary action be taken by you against the said clerk."
The Sub-Inspector, subsequently, drew up a formal first information report (Exhibit 6/c) on the basis of this report. The investigating officer could not make any progress with the investigation of the case because he was told that he could not get the registers and papers until the audit was completed. Mr. C. Prasad (P.W. 21) continued to audit the accounts of the hospital office.
Dr. Sundaram (P.W. 1) kept the registers and papers of the hospital office in her own custody from the 24th January to the 30th January when she handed them over to Sudama Prasad Jaddav, the diet daroga of the hospital, who had assumed charge as head clerk under the orders of the Civil Surgeon on the 23rd January, 1953, when the petitioner was put under suspension.
7. The investigating officer sent a letter (exhibit 26) dated the 4th March, 1953, to the Lady Superintendent asking her whether the audit had been completed. She forwarded it to the Civil Surgeon who made an endorsement on it on the 9th March to the effect that the audit had already been completed, and that the investigating officer could proceed with the investigation of the case.
It appears, however, that this letter was not sent to the investigating officer until the 14th March. In the morning of that date at about 8-30 Sudama Prasad Jadav reported to the Lady Superintendent that the office room was open and the iron safe had been broken open. The Lady Superintendent then found some papers, including two counterfoil books of receipt numbers 3001 to 3200, a daily collection register and a cash book missing. She informed the Civil Surgeon who sent a message to the police station.
A Sub-Inspector (P.W. 15) came to the hospital and drew up a first information report (exhibit 6/b) on the written report given to him by the Lady Superintendent. A case of theft under Section 379 of the Penal Code was started against Sudama Prasad Jadav; but it may be stated that that case, ultimately, ended in acquittal. The investigating officer (P.W. 19) also went to the hospital on the 14th March and recovered the letter (exhibit 26) sent by him to the Lady Superintendent along with the endorsement of the Civil Surgeon dated the 9th March thereon from the table of Sudama Prasad Jadav. From that date, he started the real investigation in the case.
8. It appears that a sum of Rs. 95/4/3 was drawn under bill No. 34 and treasury voucher No. 24 on the 8th March 1952, for the purchase of 2 maunds and 30 seers of sugar for consumption in the hospital. It was later found that only 1 maund and 15 seers of sugar had actually been purchased. It thus appeared that about half of the amount, i.e., about Rs. 47/10/-, had been defalcated.
On the 1st April, 1953, the Civil Surgeon sent a report (exhibit 23/a) to the Police Station complaining that only 1 maund 15 seers of sugar had been entered in the stock ledger, and that the diet daroga cum store-keeper, namely, Sudama Prasad Jadav, had defalcated the balance, probably, in collaboration with the petitioner. Formal first information report (exhibit 23/b) was drawn up on the basis of this report.
9. In the charge which was framed against the petitioner, it was alleged that he had committed criminal breach of trust in respect of a sum of Rs. 2,744/2/- during the period from the 24th August, 1951 to the 10th July, 1952. This total amount is made up as follows:
1. A sum of Rs. 1,871-8-0 alleged to have been received by the petitioner from the nurses on account of collections under receipt numbers 3084 to 3134 from the 24th August, 1951, to the 31st March, 1952.
2. A sum of Rs. 825/- alleged to have been received by the petitioner from the nurses on account of collections under receipt numbers 3135 to 3156 from the 1st April, 1952 to the 23rd June, 1952.
3. A sum of Rs. 47/10 alleged to have been retained for his own purposes by the petitioner out of the amount of Rs. 95/4/3 withdrawn at his instance from the treasury on the 8th March, 1952 for purchase of 2 maunds and 30 seers of sugar.
A cash book with entries from the 1st April. 1930, to the 1st August, 1951, is exhibit 2. It appears from the evidence of P.W. 3 that the petitioner told him that no cash book was maintained for the period from the 1st of August, 1951, to the 23rd April, 1952. The petitioner produced before the auditors a new cash book which contained entries from the 24th April, 1952, up to the date of audit; but that cash book is one of the articles which are said to have been stolen on the night of the 13th/14th March, 1953.
The collection register for the period from the 26th April, 1949, to the 31st August, 1950, is exhibit 15. It is alleged that the collection register containing entries from the 1st September, 1950, onwards is another article which was stolen. Two counterfoil books of receipts bearing numbers 3001 to 3200 (each book containing a hundred counterfoils) are also said to have been stolen. Receipts from these counterfoil books only were issued to the paying patients during the period of charge i.e., from the 24th August, 1951 to the 10th July, 1952.
The learned Additional Sessions Judge who disposed of the petitioner's appeal in the lower court has considered some arguments relating to who was responsible for the theft in the hospital office. In my opinion, however, it is fruitless to enter into such a discussion because there is no satisfactory evidence to prove that the petitioner or any one also was instrumental in getting the papers stolen.
10. The learned Additional Sessions Judge has held that the petitioner made a confession before the Civil Surgeon and others, that he paid Rs. 666/- to the Civil Surgeon on the 23rd January, 1953, that this was the amount which was deposited in the treasury at the instance of the Civil Surgeon under the chalan (exhibit 5) but that the confession was not freely made as the probability was that it was made under some inducement or threat.
The learned Additional Standing Counsel, who has appeared before us on behalf of the State, has challenged the correctness of the learned Additional Sessions Judge's finding that the confession was not freely made. On the other band, Sir Sultan Ahmad, appearing on behalf of the petitioner, has argued that the learned Additional Sessions Judge's finding on this point is correct in the circumstances of this case. He has also attacked the confession on some other grounds.
11. The learned Additional Sessions Judge has further held that Appendix II to the final report (exhibit 18) of the senior auditor (P. W. 21) and the preliminary report (exhibit 14) of the Assistant Accounts Officer (P.W. 3) are admissible under Section 65 (g) of the Evidence Act as secondary evidence of the entries in the missing cash book, collection register and counterfoil books and also under Section 35 of the Act as substantive evidence. He has, therefore, used both these documents for the purpose of coming to the conclusion that the petitioner's guilt has been proved.
Sir Sultan Ahmad has contended that the learned Judge has erred in holding the documents to be admissible as secondary evidence under Section 65 (g) and as substantive evidence under Section 35. He has further argued that the final report (exhibit 18) must be rejected because, being only a copy of the original report submitted by P. W. 21 to the Accountant General, it is not secondary evidence within the meaning of Section 63 of the Evidence Act and also because it has not been shown that the circumstances under which secondary evidence can be given are in existence.
12. In challenging the learned Additional Sessions Judge's finding to the effect that the petitioner committed criminal breach of trust in respect of Rs. 47/10/- out of Rs. 95/4/3 withdrawn on the 8th March, 1952, Sir Sultan Ahmad has not raised any point of law. He has only argued that there is no clear evidence to show that P. W. 18, who encashed the bill for withdrawal of Rs. 95/4/3, actually made over the amount to the petitioner.
13. The last point can be disposed of very shortly. (His Lordship considered the evidence of P. W. 18 and concluded as under:)--in my opinion the finding of the Courts below in respect of this amount of Rs. 47-10-0 is perfectly correct, and there is" absolutely no ground for interference.
14. In regard to the alleged confession, Sir Sultan Ahmad has urged four points: (1) that the Courts below have erred in holding that the petitioner actually made the confession as alleged by the prosecution; (2) that the learned Additional Sessions Judge has erred in stating that "the onus of proving want of free will is on the appellant", though he has rightly come to the conclusion that the confession was not freely made; (3) that, so far as possible, the exact words of a confession must be proved, and that the alleged confession cannot be taken into consideration because there is no evidence to prove the exact words of the petitioner; and (4) that, as the confession is a retracted one, there must be reliable corroboration before it is acted upon.
15. In so far as the first point is concerned, I have already mentioned that the petitioner is said to have made the extra-judicial confession in the presence of the Lady Superintendent (P.W. 1), the Assistant Accounts officer (P. W. 3), the Civil Surgeon (P.W. 13) and the senior auditor (P.W. 21). The investigating officer did not examine P. Ws. 3 and 21 at all. He examined the Civil Surgeon on the 23-1-1953, and the Lady Superintendent on several dates before he started his investigation in right earnest on the 14th March, 1953. It appears that neither the Civil Surgeon nor the Lady Superintendent told him before the 14th March anything about the confession or payment of Rs. 666/- by the petitioner to the Civil Surgeon on the 23rd January. Sir Sultan Ahmad has laid great stress upon these facts, and has argued that the evidence of these witnesses relating to the confession should not be accepted because of the abnormal delay in the investigating officer being told about the confession. It appears, however, that the Assistant Accounts Officer (P.W. 3) mentioned in his preliminary report (exhibit 14) addressed to the Lady Superintendent on the very day on which the confession was made i.e. on the 23rd January :
"The clerk in charge named Shri Krishna Nandan Prasad Verma admitted before you that he has defalcated the amount to the tune of Rs. 2,600/-."
The Lady Superintendent forwarded it to the Civil Surgeon for necessary action on the same date, and the Civil Surgeon has made an endorsement on it on the same date to the effect that he had received it at 6 P.M. An argument appears to have been advanced before the learned Additional Sessions Judge that the report, (Exhibit 14) was antedated, but he refused to accept the argument. I have carefully gone through the evidence of all the four witnesses and I am unable to find any good reason to suspect their veracity. With the possible exception of the Lady Superintendent, all these witnesses are thoroughly disinterested. There is nothing to show that P.W.'s 3 and 21 had any reason to fabricate false evidence, or to pledge their oaths, in support of false allegations against the petitioner. Exhibit 29 is a receipt given by the Lady Superintendent under her signature on the 23rd January, showing that she had received a report "from Assistant Accounts Officer O.A.D. regarding apparent defalcation". This receipt was in the possession of the Accountant General and it was sent to the Court from there under a sealed cover. I have not the slightest doubt in my mind that this receipt (exhibit 29) is a genuine document, and that the report (exhibit 14) was also drawn up on the 23rd January and not later.
16. I entirely agree with the finding of the learned Additional Sessions Judge that the petitioner paid Rs. 666/- to the Civil Surgeon on the 23rd January. The chalan (exhibit 5) shows that this amount was deposited on the 24th January. It has been mentioned in the chalan that the deposit was being made in respect of house rent for January, 1953, and arrears; but I am satisfied that it was really the amount which the petitioner paid to the Civil Surgeon on the 23rd January.
17. In the circumstances mentioned above, I hold, in agreement with the Courts below, that the prosecution case that the petitioner made a confession in the presence of four of the witnesses has been proved beyond reasonable doubt.
18. As regards the second point, I agree that there is no onus upon an accused in a criminal case to prove that he did not voluntarily make a confession which he is alleged to have made. Before a confession is taken into consideration, the Court has not only to be satisfied that it was genuinely made but has also to be satisfied that it was made freely and voluntarily. It is, therefore, for the prosecution to satisfy the Court on these points. In The Queen v. Thompson, (1893) 2 QB, 12 (A), Cave , J. has considered various authorities. He has also quoted a passage from Taylor's Law of Evidence as follows :
"Before any confession can be received in evidence in a criminal case, it must be shown to have been voluntarily made; for, to adopt the somewhat inflated language of Eyre, C.B.,' 'a confession forced from the mind by the flattery of hope, or by the torture of fear, comes in so questionable a shape, when it is to be considered as the evidence of guilt, that no credit ought to be given to it and, therefore, it is rejected:' The King v. Warickshall, (1783) 1 Leach 263, 4th Ed. (B). The material question consequently is whether the confession has been obtained by the influence of hope or fear; and the evidence to this point being in its nature preliminary, is addressed to the Judge, who will require the prosecutor to show affirmatively, to his satisfaction, that the statement was not made under the influence of an improper inducement and who, in the event of any doubt subsisting on this head, will reject the confession".
Cave, J. has then laid down the test for deciding the admissibility of a confession. He has stated that the question which is to be asked is:
"Is it proved affirmatively that the confession was free and voluntary -- that is, was it proceeded by any inducement to make a statement held out by a person in authority?"
19. Unless the answer is that the confession has been proved to be free and voluntary and that it was not made in consequence of any inducement by a person in authority, it cannot be taken into consideration. The law in India is also the same. Section 24 of the Evidence Act lays down :
"A confession made by an accused person is irrelevant in a criminal proceeding, if the making of the confession appears to the Court to have been caused by any inducement, threat or promise having reference to the charge against the accused person, proceeding from a person in authority and sufficient in the opinion of the Court, to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him".
The words "appears to the Court" show that positive proof of the fact that there was any inducement, threat or promise is not necessary. The confession itself, the evidence adduced on behalf of the prosecution and the defence, if any, and all the circumstances of the case have to be taken into consideration. If, upon such consideration, the Court feels that the accused made the confession as a result of any inducement, threat or promise having reference to the charge, or even if the Court feels that there is reasonable doubt that there was such inducement, threat or promise, it cannot be satisfied that the confession is free and voluntary, and hence it has to exclude the confession from consideration. I must make it clear, however, that the Court cannot exclude a confession on mere conjecture or surmise, i.e., in other words, on mere assumption without any basis that inducement, threat or promise must have been used. Reference may be made in support of these views to the case of Emperor v. De-wan Kahar, AIR 1923 Pat 13 (C). Sir Sultan Ahmad has drawn our attention to a decision of the Wagpur High Court in Mt. Bhukhin v Emperor, 49 Cri LJ 561: (AIR 1948 Nag 344) (D). Their Lordships have said that "a well-grounded conjecture..... is sufficient to exclude the confession"; but they have made it clear that it must be "reasonably based upon circumstances disclosed in the evidence."
20. Extra-judicial confessions are frequently made in the presence of persons in authority, and, while that circumstance makes it necessary for the Court to scrutinise the evidence and circumstances carefully in order to ascertain whether the confession was voluntarily made, it is impossible to hold, on the basis of that circumstance alone, that the confession was not freely made.
The learned Additional Sessions Judge has, in this case, given three grounds for holding that, in all probability, the petitioner "made the confession under some kind of inducement or threat". The first ground is that the confession is alleged to have been made abruptly before a person in authority, i.e. the Civil Surgeon, and "very slight words of inducements are sufficient to taint the confession". As I have said, a confession cannot be thrown out merely on the ground that it was made before a person in authority. It is true that a Court would exclude a confession if it appears, in such circumstances, that the person in authority used some words which might possibly have induced the accused to make the confession. It is not possible to lay down any hard and fast rule as to what would constitute inducement in the circumstances of a particular case. There must, however, be some basis for the finding that the person in authority used words which might amount to inducement.
The learned Additional Sessions Judge has not referred to any evidence on the basis of which he could have come to the conclusion that the Civil Surgeon used even "slight words of inducement". The other two grounds given by the learned Additional Sessions Judge are even more worthless. He has said that P.W. 3 could not remember the actual words of the confession because he had not made any note. As I will presently show, the learned Additional Sessions Judge was in error in thinking that P.W. 2 has given the exact words of the confession. Even if P.W. 3 had professed to give the exact words, I do not see how that could have been said to be evidence of the fact that inducement was used to cause the petitioner to make a confession. The learned Additional Sessions Judge has said, "the appellant, placed as he was at the time of the alleged confession, may have made confession not as a free agent but under some kind of pressure''.
This is a pure conjecture and cannot be said to be a well-grounded one.
21. Sir Sultan Ahmad has asked us to consider some other circumstances in connection with the point under discussion. Firstly, he has pointed out that the evidence of all the four witnesses, who speak of the confession, shows that the Civil Surgeon questioned the petitioner, and then he admitted to have committed a mistake and to have used the missing money for his own purposes. He has argued that, in questioning the petitioner, the Civil Surgeon must have used some word of inducement, threat or promise. There seems to be no foundation for this argument. The Civil Surgeon has stated that he "gave no threat or persuasion". He has hardly been cross-examined on this point. All that he appears to have been asked about the confession in cross-examination is that he did not note it down, that he did not send the petitioner to a Magistrate for recording his confession, and that he did not ask the police to get the petitioner's confession recorded.
Neither the Civil Surgeon nor any of the three other witnesses has been asked in cross-examination what questions were put by the Civil Surgeon to the petitioner. Had the Civil Surgeon used any words, which might possibly have been considered to amount to inducement, threat or promise, I do not think that the cross-examination lawyer could have omitted to refer to them in his cross-examination. P.Ws.' 3 and 21 are officials of the Accountant General's office. They were present at the time when the Civil Surgeon questioned the petitioner. I do not think that the Civil Surgeon could have asked the petitioner any question, or could have told him anything, in their presence which might have been considered to be inducement, threat or promise.
22. Secondly, Sir Sultan Ahmad has argued that the fact that the petitioner was sent in the Lady Superintendent's car to fetch the money shows that he was acting under pressure. I am unable to agree with this argument. The evidence shows that the petitioner said that he would make good the deficit, and that he then left the hospital in the Lady Superintendent's car to return later with Rs. 666/- and his father-in-law. The Lady Superintendent may have put her car at the petitioner's disposal out of sympathy for him and in order to help him in carrying out his resolve to pay back the money defalcated by him.
23. Thirdly, Sir Sultan Ahmad has pointed out that neither the Civil Surgeon nor the Lady Superintendent appears to have attached importance to the statement of the petitioner or to have taken it to be a confession as they did not make any mention about it before the investigating officer for a considerable period after the confession was made. This is a circumstance which, in my opinion, goes against the theory that the confession was caused to be made by the petitioner by reason of inducement, threat or promise held out by the Civil Surgeon.
Obviously, neither the Civil Surgeon nor the Lady Superintendent was anxious to have any confession from the petitioner. If they have been keen on getting him to make a confession, they would have immediately pounced upon it and would have spoken about it to the police.
24. On a consideration of all the facts and circumstances of this case, I have reached the conclusion that the petitioner made his confession freely and voluntarily, and that the Civil Surgeon did not hold out any inducement, threat or promise to him.
25. Coming now to the third point raised by Sir Sultan Ahmad about the confession, I do not think that, in every case, the exact words of an extra judicial confession must be proved. In most cases, it would be sufficient if a substance of these words is proved. Ordinarily, laymen, before whom extra judicial confessions are made, do not note down the words uttered by the accused. They cannot, therefore, accurately prove the exact words used. If a witness merely says that the accused confessed his guilt before him, that would be a mere opinion and cannot be made the basis of convictions of the accused. If the witness gives a substance of the statement made by the accused, the Court can judge whether it amounts to a confession or it does not.
In such a case, I am of opinion that there would, ordinarily, be no objection to the Court taking the substance of the statement into consideration. Sir Sultan Ahmad has placed reliance upon a decision of the Sind Judicial Commissioner's Court in Sultan v. Emperor, 151 Ind Cas 984: (AIR 1934 Sind 119) (E). It was alleged in that, case that one of the appellants, namely, Sultan, kidnapped a giri named Phapi with the assistance of the other two appellants. Sultan claimed that Phapi was his legally married wife, and that he had brought her away from her father's house with his consent. The witness who spoke of the confession said that the three accused had admitted their guilt before him.
This was clearly insufficient because, as the learned Judges have said, most of the facts alleged against Sultan were freely admitted by him, and a prejudiced person hearing from him the admission of those facts might have formed the opinion that he had admitted his guilt. That case is, therefore, clearly distinguishable.
26. The views which I have expressed above are fully supported by the observations of Shadi Lal, C.J. in Nur Ali v. Emperor, AIR 1924 Lah 498 (F) which are as follows:
"The duty or the Court, before which an extra-judicial confession, not incorporated in a document, is relied upon, is to scrutinise the whole of the material before it and then to decide whether there is sufficient evidence to prove the confession, aS I have already said a mere general statement to the effect that the prisoner had confessed is too uncertain a foundation to sustain a finding against him, and I consider that the trial Court ought to ascertain, as far as possible, the very words spoken by an accused who is said to have confessed. There, may however, be cases in which the evidence gives the substance, though not the actual words of the statement made by the accused, and if that evidence is reliable, there is no rule of law which precludes the Court from holding that the confession has been proved."
In that case, the prosecution witness gave a substance of the statement made by the accused, and, as the learned Judges believed his evidence, they acted upon the alleged confession.
27. In the present case, the matter is very simple. The witnesses have not merely said that the petitioner admitted his guilt or that the petitioner confessed that he had committed the crime. None of them, not even P.W. 3, has given the exact words used by the petitioner. P.W. 3 has said that the petitioner stated: ''I committed mistake. I have spent the money for my purpose." The learned Additional Sessions Judge appears to have been of the opinion that these were the exact words of the petitioner.
It is clear, however that the petitioner could not have spoken in English, and hence these cannot be his exact words. What P.W. 3 has done ig to relate the statement of the petitioner in the first person, and what the other witnesses have done is to relate his statement in the 3rd person. All of them have thus given a substance of the petitioner's statement. According to them, the petitioner admitted his mistake, and said that he had used the missing money for his own purposes. Substantially, this is also what has been mentioned in the preliminary report (Exhibit 14). I am satisfied that the witnesses have told the truth. There is therefore, no reason why I should not hold that the petitioner made a statement as alleged by the witnesses. As that statement amounts to a confession that he committed criminal breach of trust in respect of a sum of about Rs. 2,600/- it is manifest that the confession has to be taken into consideration.
28. Sir Sultan Ahmad has argued that in any case, the confession is, at least partially false because the petitioner purports to have stated that he used a sum of Rs. 2,600/- for his own purposes but it is nobody's case that he committed criminal breach of trust in respect of that amount exactly. He has pointed out that P.W. 3 has stated in the preliminary report (Exhibit 14) that there was defalcation in respect of a sum of Rs. 2,600/- but that amount includes a sum of Rs. 292-8-0 collected under receipts Nos. 3079 to 3083 between the 1st and 20th August, 1951.
He has argued that this amount of Rs. 202-8-0 must be deducted from the total amount of Rs. 2,600/- because it is admitted by the prosecution that the petitioner deposited that amount in the treasury, under challan (Exhibit 4/a) on the 1st October, 1951. He has pointed out that, according to the final report (Exhibit 18), there was a defalcation of more than Rs. 2,600/-. I am of opinion, however, that there is no substance in Sir Sultan Ahmad's argument. The petitioner could not have kept a regular account ox the hospital money which he used for his own purposes. No exactitude relating to the actual amount could, therefore, be expected from him. It must therefore, be held that his confession was that he had used a sum of approximately Rs. 2,600/- of the hospital money on his own account, and hence no part of the confession can be said to be false.
29. AS to the last point about the confession raised by Sir Sultan Ahmad, I entirely agree with him, that as the confession has been retracted, material corroboration must be forthcoming before it can be acted upon. Sir Sultan Ahmad has relied upon Mt. Bhukhin's case (D) (already referred to) in support of his argument on this point. He has drawn our attention to an observation in that judgment which is as follows :
"A retracted confession if believed to be true, may form the basis of a conviction; but as a rule of caution it is unsafe to base a conviction even of the maker on a retracted confession alone without some independent corroboration. The corroboration must be in material particulars so as to satisfy the Court that the confession, even though retracted, may be acted upon."
I may also refer to P.K. Singh v. State of Manipur, (S) AIR 1956 SC 9 (G). Bose J. who has delivered the judgment of their Lordships, has stated about the confession in question in that case :
"The confession is inculpatory but corroboration is necessary because cf the retraction."
30. I propose now to consider the question of admissibility of the reports (Exhibits 14 and 18). After disposing of this point I will consider whether there is sufficient corroboration of the petitioner's confession in this case and also whether the charge of criminal breach of trust in respect of any amount in addition to Rs. 47-10-0 has been established against the petitioner.
31. It is unnecessary to consider whether the final report (Ext. 18) is admissible under Sections 35 and 65 (g) of the Evidence Act because it is clear that it has to be excluded on the ground which Sir Sultan Ahmad has raised in this Court. Exhibit 18 is a copy of the original report submitted by P.W. 21 to the Accountant General, and it was forwarded by an officer of the outside Audit Department of the Accountant General's Office to the Lady Superintendent of the Hospital. It appears that the Assistant Sessions Judge, who tried the case sent for the original report and two other documents from the Accountant General's office; but the Accountant General claimed privilege on the ground that they were unpublished records. Along with his letter to the Assistant Sessions Judge, he forwarded an affidavit. The relevant part of that affidavit is as follows :
"I have carefully considered the relevant papers, proceedings and documents, and have come to the conclusion that they are unpublished official records relating to the affairs of State and should not be permitted to be produced in Court, and that any information, particulars details or communications derived or connected with the same cannot be divulged without injury to public interest. I, therefore, withhold permission to produce the said papers, proceedings correspondence and documents or to give any evidence derived therefrom."
In so far as these statements relate to the original inspection report submitted by P.W. 21, they are wholly inaccurate. When a copy of the report was forwarded to the Lady Superintendent, and when according to the Accountant General's letter to the Assistant Sessions Judge, a typed copy was also filed in the committing Magistrate's Court. It was perfectly ridiculous to state in the affidavit that the original could not be produced in Court "without injury to public interest." Accounts of different offices of Government and other bodies are audited by auditors from the Accountant General's office. In prosecution for criminal misappropriation and criminal breach of trust arising out of the different reports prepared by them, the Accountant General and his offfice ought to adopt a helpful attitude for, otherwise, guilty persons ore likely to escape punishment, and the object with which the accounts are audited would largely fail. It is hoped that the Accountant General would not, in future, claim privilege and refuse to produce original reports in circumstances similar to those of the present case.
32. No one has proved that Exhibit 18 is a true copy of the original. P.W. 21 has stated that Exhibit 18 is his report and he has also not stated after reading it that it is a correct copy of his original report. The learned Additional Standing counsel attempted to argue that Exhibit 18 was secondary evidence within the meaning of Sub-section (3) of Section 63 of the Evidence Act but he admitted ultimately that there was difficulty in the way of his argument being accepted because of the absence of proof that the copy was a true copy. It has, therefore, to be held on this ground alone that the copy (Exhibit 18) has been wrongly admitted in evidence. Hence, I exclude it from consideration.
33. Exhibit 14 is the original preliminary report drawn up by P.W. 3. He inspected the counterfoil receipts and registers in the presence of the petitioner and thereafter prepared the report. He has himself proved it and has been subjected to cross-examination. The report is thus primary evidence, and it is difficult to agree with the argument that it should not have been admitted in evidence. Sir Sultan Ahmad has argued that Section 35 of the Evidence Act applies to a book, Register or other official record and not to a report. It seems to me however, that that section applies also to a report if it is proved to have been prepared by a public servant in the discharge of his official duty or by another person in performance of a legal duty. In Baldeo Das v. Gobind Das, ILR 36 All 161: (AIR 1914 All 59) (H), the report of a Kotwal prepared in 1840 was treated as relevant evidence on the ground that it was a public record of a public enquiry. Although Section 35, is in my opinion, primarily meant to apply to old records and entries in old registers, there is no reason why it should not be called in aid for holding that the report (Exhibit 14) is relevant in this case.
34. In Exhibit 14, P.W. 3 has given the numbers of a large number of receipts with their dates and the amounts collected. Sir Sultan Ahmad has contended that this list can only be taken into consideration as evidence if it can be held to be legally admissible under Section 65 (g) of the Evidence Act, and that that section cannot apply because the originals are missing.
In my opinion, however, the entire report (exhibit 14) including the list, prepared as it was by P.W. 3 in his official capacity on inspection of all relevant documents, is legal evidence in this case without the aid of Section 65 (g). It is therefore, unnecessary to consider whether Section 65 (g) applies in the circumstances of this case when the original documents have been lost.
35. The next point which has to be considered is whether the petitioner's confession hap been materially corroborated. In my opinion, there is ample corroboration in this case, I may refer in this connection to the fact that the learned Additional Sessions Judge has held that the petitioner continued to perform, during the period in charge i.e., from the 24th August, 1951, to the 10th July, 1952, the same functions which he used to perform previously and that his defence that there was a departure in the practice with effect from the 1st August, 1951, is false and has been advanced only because the papers of that period were stolen.
This is a finding of fact and has not been challenged in this court. Besides, the exercise books (Exhibits 7 and 7/a) which cover the charge period, also show that the petitioner continued to distribute to the doctors their shares out of the collection made by the nurses. It appears from these exhibits, that the share of doctors amounting to Rs. 236/8/- out of the amount collected under receipts Nos. 3087, 3090, 3095, 3099, 3105, 3107 and 3109 was paid by the petitioner to the doctors concerned.
36-39. (His Lordship then considered the oral evidence in the case and continued as follows:) As I have already said, the confession of the petitioner must be construed to mean that he had used a sum of approximately Rs. 2,600/-for his own purposes. As the other evidence shows that he committed criminal breach of trust in respect of a sum of Rs. 2.672/8/- his confession must be held to be materially corroborated.
40. For the reasons given above, I hold that the prosecution has succeeded in establishing that the petitioner committed criminal breach of trust in respect of Rs. 2.672/8/- in addition to Rs. 47/10/-. In connection with the purchase of sugar, i.e., a total amount of Rs. 2,720/2/-. The petitioner's conviction under Section 409 of the Penal Code is, therefore, correct and cannot be interfered with.
41. Sir Sultan Ahmad, has lastly urged the question of sentence; but I am of opinion that the sentences imposed upon the petitioner are not at all severe in the circumstances of this case.
42. In the result, I would dismiss the application for revision.
H.K. Chaudhuri, J.
43. I agree.