1. This appeal is directed against the order of the Special Judge at Ahmedabad convicting the appellant under Section 161, Indian Penal Code, and under Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947, and sentencing him to suffer rigorous imprisonment for both the offences for one year and to pay a fine of Rs. 100/- in default, to suffer further rigorous imprisonment for one month.
(2) In November 1962, the appellant was an employee of the Ahmedabad Municipal Corporaiton and was serving as a conservancy Sub-Inspector in the Ward known as Khokhra Mehmdabad. His duty, at that time, was to take roll-call of sweepers and other members of the conservancy staff in that ward at the office located there. Fakir bhai Maganbhai and Shankerbhai Ashabhai were amongst these sweepers who were posted to do the work in that ward. These two persons have been referred to by the learned Judge as the complainants in his judgment, and, for convenience's sake, we shall also refer to them accordingly. These two persons, before they were posted to work as sweepers in the above ward sometime in October 1962, were working as night-soil workers and they alleged that the appellant was their immediate superior at that time also. He used to harass them in various ways, such as fining them when they were a little late for work, by ignoring their presence at the time of the roll call and marking them absent and they were asked to go home and were not allowed to resume duties for two or three days thereafter. He wrongly refused to give them leave, used to assign to them more onerous work etc. It was the allegation of the complainants that two or three days before November 14, 1962, the appellant demanded monthly payment of illegal gratification in order to show favour to these two persons in respect of matters regarding which they used to be harassed. The appellant had demanded Rs. 10 per month from Fakir while from Shanker he had first demanded Rs. 20/-, but on his appeal on the ground of poverty, the appellant agreed to accept Rs. 10/- per month from him also. Both these complainants, however, were not agreeable to give such gratification and, therefore, on the 14th of November 1962 at about 2-30 P.M., they approached the Anti Corruption Branch and lodged their complaints which were separately recorded by the S. I. Erulkar. As Dy. S. P. Medh of that law such was not in Ahmedabad and was not available for investigation, he obtained the requirable permission to investigate, from the City rate of the 4th Court. On November 15, ligning oal about 1 P.M., both the complainants ..... called and arrangements were made to does ..... trap. Each of the complainants was asked ..... bring two currency notes of Rs. 5/- each, ..... which the usual experiment with the ..... ..... powder and the ultra violet lamp was ..... out in the presence of panchas and after assign through the required formalities of preparing the panchnama, the said notes were placed in the pockets of the respective complainants. Both were instructed not to touch the notes till the time they were given to the appellant on his demand. They were further instructed to go to the Maninagar office in company with the panch witness Zahiruddin and hand over the amount to the appellant if he demanded the same. Witness Zahiruddin was instructed to try and see and also hear what happens at that juncture. The complainants were further instructed to give the signal if the accused accepted the money. Constable Rasiklal was also asked to remain with Panch Zahiruddin. As per instructions, the complainants, Panch Zahiruddin and Rasiklal proceeded to Maninagar Conservancy Office. P. S. I. Erulkar himself, the other panch and some police constables followed them. Rollcalls at the said office were being taken twice a day, once in the morning at six and again in the afternoon at 3. The trap was arranged to work out at the time of the second roll-call on that day. It was the prosecution case that the appellant, on seeing Fakir, while he was taking the roll-call, called him inside the office room and asked him if he had brought amount. Fakir is alleged to have replied in the affirmative and then he was asked by the appellant to wait outside near the gate of the office and give him the money when he came out of the office. After some time, the accused did go out and went near a pan-shop with Fakir, but he returned back to the office. Then he again came out and went near the panshop. Then he left the pan-shop and went near the bicycle stand where he had kept his own bicycle and there he is alleged to have accepted the money from both the complainants. The panch witness Zahiruddin claimed to have seen what happened between the complainants and the appellant and also heard the demand by the appellant of the money from the complainants. P. S. I. Erulkar also alleged that he had also seen the payment of money from some distance. As soon as the amounts were paid to the appellant, he put them in his left side pocket of the pant and when he was about to start on his cycle, he was stopped by the P. S. I. And others and was taken to a nearby shop. There, on demand by the P. S. I. He produced the four five-rupee currency notes in question. His hands were examined in the ultra-violet light and the shine of the powder was noticed on his palm and the four fingers of his left hand. The shine was also noticed in the pocket of his pant, one coin of 5 nP. And wrapper of a bundle of pan from that pocket when demonstrated under the ultra-violet light. A panchnama was then made and the usual procedure of the investigation was gone through. The requisite sanction was obtained to prosecute the accused and the charge-sheet was submitted on October 22, 1963. The appellant was charged as aforesaid on the above facts.
(3) The appellant's defence was that he had not accepted any illegal gratification. His case was that each of the complainants owed to him Rs. 10/- which he had advanced to them sometime in October 1962, a few days before the Diwali of that year. His case was that, both these persons had approached him with a request to give them a loan of Rs. 10 each and had assured him that the amounts would be repaid when they received their next pay which would be due to them on the 14th of November 1962 or thereabout. The appellant supported his version by entering in the box and also examining another witness H. B. Trivedi, who was the Conservancy Inspector and his immediate superior in the period prior to the 1st of November 1962.
(4) The prosecution, in order to establish the charges, relied upon the evidence of the two complainants, panch witness Zahiruddin and Police Sub Inspector Erulkar. They also examined Conservancy Inspector B. R. Shukla of the Corporaiton for proving certain records. In his cross-examination, however, he deposed to certain facts which favoured the appellant. We shall deal with this aspect of his evidence at its proper place.
(5) The learned Special Judge found, at the end of the trial (a) that apart from the admission of the accused of his having accepted the amounts of Rs. 10 respectively from each of the two complainants, the prosecution had succeeded, on good evidence, in establishing that fact; (b) that under law, therefore, the presumption under Section 4 of the Prevention of Corruption Act arose, and the burden shifted on the accused to prove, keeping in mind the definition of the word 'proved' in section S. 3 of the Evidence Act, that his version was a true version. The accused, however, had failed to do so. In coming to this conclusion, he reneu on the fact that the story of the accused was improbable for various reasons given by him and that the evidence of the accused and witness Trivedi was neither satisfactory nor true. (C) that despite some discrepancies in the evidence of the panch witness Zahiruddin, he was a reliable and independent witness and he fully supported the prosecution version as to what happened on the 15th November when the two amounts of Rs. 10/- each were ultimately accepted by the accused from each of the two persons. It may be mentioned that the learned Judge did not give any weight to the statement of the panch that the accused appeared to be nervous at the time when he actually took the amounts from the two complainants, on the ground that it was merely his opinion.
(6) Mr. D. C. Trivedi, the learned advocate for the appellant, did not challenge before us the position that under law, the presumption under Section 4 of the Prevention of Corruption Act did arise in this case and the burden of proving his version was on the appellant. But he urged that there were two versions before the Court; the version of the prosecution was very improbable and weak and that fact lends support to the version of the defence. He further urged that the appellant had succeeded in discharging the burden, in any case, by his own sworn testimony and that of his witness Trivedi, the Conservancy Inspector.
(7) As the fact of the appellant having accepted Rs. 10/- each from Fakir Magan and Shanker Asha on the 15th of November 1962 is not disputed before us, the main question for consideration is, has the appellant proved that the said amounts that he accepted on the 15th were only the return of the loan advance to the two complainants.
(8) Mr. Trivedi submitted that in a given set of facts or evidence on record, three positions may arise:-
(1) The accused may succeed in full in discharging the burden by positively proving the truth of his version. Then nothing further remains to be done by the Court and the accused has to be acquitted.
(2) The accused may fail to discharge the burden in toto, leaving the Court only with the version of the prosecution supported by the presumption under Section 4 of the Prevention of Corruption Act. Then the only thing the Court can do is to accept the prosecution case and convict the accused.
(3) But the third position is also possible and that is that though the accused had not fully succeeded in proving his version, if the material or evidence before the Court is sufficient to raise a doubt in its mind that the version of the accused may be true or may not be true, then, having regard to the fact that the general burden of proof always rested on the prosecution and the further fact that there is always the presumption of innocence in favour of the accused, the accused must be given the benefit of doubt because this position is bound to raise a doubt in the mind of the Court as to whether prosecution had proved their case beyond any reasonable doubt.
In other words, it was the submission of Mr. Trivedi, that the initial and the general burden of proving the prosecution, though, under the presumption, the burden of proving or disproving specific fact may be cast on the accused Though the accused may be required to discharge some burden under law, that burden of proof on the prosecution to establish its case. He further submitted that, if the evidence on the record is such that it leaves the Court in reasonable doubt of a prudent man as regard the fact as to whether the amount received is an illegal gratification or not, then the Court must hold that the prosecution had failed to prove the charge and the benefit thereof must go to the accused.
(9) For this submission of his, reliance was mainly placed by Mr. Trivedi on the case of Dahyabhai Chhaganbhai v. State of Gujarat AIR 1964 SC 1563. That was a case where the Court was mainly concerned with the nature of the burden of proof under Section 105 of the Evidence Act. The facts were that the husband was alleged to have killed his wife by causing several stab wounds while they were sleeping together as usual in a room, one night. At about 3 A. M., the neighbours heard the cries of the wife that she was being killed. Hearing the shouts, the neighbours collected near the door of the room which was found to be locked from inside. On insistence from those neighbour the husband opened the door. When the door was opened, the wife was seen lying dead with a number of injuries on her person. A defence was put up at the trail by the husband that he was in same at the time when the incident happened and that he was not capable of under standing the nature of his act. The defence was not accepted by the trial Court as well as the High Court and the accused was convicted and sentenced to suffer imprisonment for life. He appealed to the Supreme Court and, on his behalf, it was contended that the High Court having believed the evidence of the prosecution witnesses, should have held that the accused had discharged the burden placed on him for proving that, at the time he killed his wife, he was incapable of knowing the nature of his Act or what he was doing was either wrong or contrary to law. It was further contended that even if the appellant had failed to establish that fact conclusively, the evidence on record was such as to raise a reasonable doubt in the mind of the Judge as regards one of the ingredient of the offence, viz., criminal intention and therefore, the Court should have acquitted him for the reason that the prosecution had not proved the case beyond reasonable doubt. While considering this contention, the learned Judge, speaking for the Supreme Court, observed as follows:-
'It is fundamental principle of criminal jurisprudence that an accused is presumed to be innocent and, therefore, the burden lies or the prosecution to prove the guilt of the accused beyond reasonable doubt. The prosecution, therefore, in a case of homicide shall prove beyond reasonable doubt that the accused caused death with the requisite intention described in Section 299 of the Indian Penal Code. This general burden never shifts and it always rests on the prosecution. But, Section 84 of the Indian Penal Code provides that nothing is an offence if the accused at the time of doing that Act, by reason of unsoundness of mind was incapable of knowing the nature of his Act or what he was doing was either wrong or contrary to law. This being an exception, under Section 105 of the Evidence Act the burden of proving the existence of circumstances bringing the case within the said exception lies on the accused, and the Court shall presume the absence of such circumstances. Under Section 105 of the Evidence Act, read with the definition of 'shall presume' in Section 4 thereof, the Court shall regard the absence of such circumstances as proved unless, after considering the matters before it, it believes that the said circumstances existed or their existence was so probable that a prudent man ought, under the circumstances of the particular case, to Act upon the supposition that they did exist. To put it in other words, the accused will have to rebut the presumption that such circumstances so probable that a prudent man would Act upon them. The accused has to satisfy the standard of a 'prudent man'. If the material placed before the Court, such as, oral and documentary evidence, presumptions, admissions as even the prosecution evidence, satisfies the test of 'prudent man' the accused will have discharged his burden. The evidence so placed may not be sufficient to discharge the burden under Section 105 of the Evidence Act, but it may raise a reasonable doubt in the mind of a judge as regards one or other of the necessary ingredients of the offence itself. It may, for instance, raise a reasonable doubt in the mind of the judge whether the accused had the requisite intention laid down in Section 299 of the Indian Penal Code. If the judge has such reasonable doubt, he has to acquit the accused, for in that event the prosecution will have failed to proved conclusively the guilt of the accused. There is no conflict between the general burden, which is always on the prosecution and which never shifts and the special burden that rests on the accused to make out his defence of insanity'.
The learned advocate for the appellant before as relied on the aforesaid observations and urged that on the same principle, where the burden of proof is thrown on the accused under Section 4 of the Prevention of Corruption Act, if the accused is able to create a reasonable doubt in the mind of the Court that the version of the accused may be true or may not be true and consequently create a reasonable doubt that the prosecution version may not be true, the benefit of that doubt must go to the accused.
(10) We are unable to accept this submission for very good reasons. This submission does not take into account the very different nature of the subject matter regarding which the presumption is raised under Section 105 of the Evidence Act and the one under Section 4 of the Prevention of Corruption Act. It ignores the very vital fact that in one case the burden is only in respect of bringing the case in one of the general or special exceptions to enable the accused to be excused from the punishment, though the various ingredients of the offences may be held to have been proved, while in the other, the burden is to negative the very existence of one of the ingredients of the offence charged which, by statute, is presumed to exist. Some of the observations in the very case relied upon by Mr. Trivedi would show that the principle laid down therein cannot have any application to the case where presumption under Section 4 of the Prevention of Corruption Act comes into play. In the said case, Their Lordships have relied upon the principles laid down by the Supreme Court in K. M. Nanavati v. State of Maharashtra, AIR 1962 SC 605, and have quoted the following observations from the said case:
'The alleged conflict between the general burden which lies on the prosecution and the special burden imposed on the accused under S. 105 of the Evidence Act is more imaginary than real. Indeed, there is no conflict at all. There may arise three different situations: (1) A statute may throw the burden of proof of all or some of the ingredients of an offence on the accused; (see Ss. 4 and 5 of the Prevention of Corruption Act). (2) The special burden may not touch the ingredients of the offence, but only the protection given on the assumption of the proof of the said ingredients: (see Ss. 77, 78, 79, 81 and 88 of the Indian Penal Code). (3) It may relate to an exception, some of the many circumstances required to attract the exception, if proved, affecting the proof of all or some of the ingredients of the office: (see S. 80 of the Indian Penal Code)..... In the third case, though the burden lies on the accused to bring his case within the exception, the facts proved may not discharge the said burden but may affect the proof of the ingredients of the offence.... That evidence may not be sufficient to prove all the ingredients of S. 80 of the Indian Penal Code, but may prove that the shooting was by accident or inadvertence, i.e., it was done without any intention or requisite state of mind, which is the essence of the offence, within the meaning of S. 300, Indian Penal Code, or at any rate may throw a reasonable doubt on the essential ingredients of the offence of murder..... In this view it might be said that the general burden to prove the ingredient of the offence, unless there is a specific statute to the contrary, is always on the prosecution, but the burden to prove the circumstances coming under the exceptions lies upon the accused.'
It is very significant indeed to note that the learned Judges of the Supreme Court in Nanavati's case. AIR 1962 SC 605, while considering the question as to the alleged conflict between the general burden which lies on the prosecution and the special burden imposed on the accused under Section 105 of the Evidence Act, have point out that there may arise three situations as referred to in the above quotation from the said ruling, and that it is in respect of the third category only that they have laid down that, though the burden lies on the accused to bring his case within the exception, the facts proved may not discharge the burden but may affect the proof of the ingredients of the offence and that would give the benefit to the accused. The present case does not fall in that third category but falls in the first of them. In cases falling in the first category, the principle of the general burden of proof of the ingredients of the offence alleged being always on the prosecution would not apply because there is the specific statutory provision in the shape of Section 4 of the Prevention of Corruption Act, which throws the burden of proving that ingredient (that the gratification accepted was either remuneration or any other legal claim) on the accused. The provision of Section 4 presumes the existence of the fact necessary to prove the ingredient that the accused accepted or obtained or agreed to accept or obtain that gratification.... as a motive or reward such as mentioned in Section 161...., and calls upon the accused to prove to the contrary, that is to say, to establish the existence of the facts that constitute his defence version to be so probable that a prudent man will Act upon the assumption that they exist. The legislative intention to make a statutory provision to throw the burden of proving one of the ingredients of the offence under Section 161, Indian Penal Code, on the accused is most emphatically expressed by the enactment of Section 4 of the Prevention of Corruption Act, wherein the legislature has not only said that the accused shall be 'presumed to have accepted the gratification as a motive or award', but has also used the words 'unless the contrary is proved:, thus throwing the positive burden on the accused to prove that the said ingredient does not exist. In view of this, there can be no doubt whatever that in the case where Section 4 of the Prevention of Corruption Act applies, the general burden to prove the ingredient of the offence under Section 161 does not lie on the prosecution as there is the specific statutory provision to the contrary. The result of this strain of reasoning is that unless it can be held that the appellant has proved that the two amounts of Rs. 10 each were accepted by him as the return of loans from Fakir Magan and Shanker Asha, he cannot succeed. It would not be enough for him merely to create a situation where the Court may be put in doubt that his case may be true or may not be true.
(11) The next question, therefore, to consider is what is the nature of this burden on him? It is well established not that the burden upon the accused of proving his case is no higher than that which rests upon a party in a civil litigation to obtain a decision in his favour. The rigour of the burden on him is not the same as on the prosecution of proving the case beyond a reasonable doubt. It is enough for the accused to establish the preponderance of probability of that which he is called upon to prove. If the present appellant satisfies us, from the material on the record, that we should, as prudent men, consider the existence of the facts of his version of having received the amounts as the return of the loans from the two persons so probable that in a civil litigation we would have acted upon the supposition that they so exist and decided it in his favour, his appeal must succeed. In other words, it may be said that if the appellant can show that there is enough material on the record to entitle him to a decree for these two amounts, on the basis of these amounts being loans, if this were a civil litigation, he is entitled to succeed in the appeal. That takes us to the consideration of the matter on merits.
(12) In the light of the position in law as pointed out hereinabove, the correct approach in appreciating the evidence will be to examine the evidence on record from that point of view and not as to whether the prosecution has proved its case beyond any reasonable doubt. It is at the same time, true that the appellant can rely on any material placed before the Court, including admissions or matters established by the prosecution evidence itself which can go to support his version, to rebut the presumption and discharge the burden cast on him by Section 4 of the Prevention of Corruption Act. It will be convenient, however, to deal with one more point raised by Mr. Trived before we actually turn to the appreciation of the merits of the case.
(13) At one stage Mr. Trivedi referred the following cases and seemed to urge that what was laid down in those cases was that the burden cast on the accused under Section of the Prevention of Corruption Act is not at light as under Section 114 of the Evidence Act, and it cannot be held to be discharged merely by reason of the fact that the explanation offered by the accused is reasonably probable; but in those cases the accused had led no evidence and, therefore, the emphasis in those cases was only on the aspect of the accused having rested satisfied merely by giving an explanation which was claimed to be reasonably probable and which was held not to be sufficient to discharge the burden. He submitted that the appellant before us had not merely given a reasonably probable explanation before the trial Court in reply to questions put to him under Section 342 of the Criminal Procedure Code, but had actually stepped into the witness-box and given evidence on oath, and also led evidence of the independent witness and this by itself was enough to rebut the presumption Mr. Trivedi seemed to urge that the said decisions in to way injure the defence of the accused but, on the contrary, the reasoning adopted in the said decisions impliedly support his aforesaid submission. The cases referred to by Mr. Trivedi are as under:-
(1) Dhanvangrai Balwantrai v. State of Maharashtra, AIR 1964 SC 575. It was a case where the appellant before the High Court, a Resident Engineer for Light Houses, was charged and convicted under Section 161, I.T.C. and Section 5 ( 1) (d) of the Prevention of Corruption Act, read with Section 5 (2) thereof, He was alleged to have accepted Rs. 1,000 as illegal gratification. The receipt of Rs. 1,000 was admitted by the appellant . The defence was that he had accepted the said amount, to be handed over to the temple authorities for carrying out certain repairs which the complainant in that case had undertaken to do and which he was not able to carry out, and had instead given the amount of Rs. 1,000 to the appellant with a request that the amount be given over to the temple authorities as compensation. The defence was not accepted by the trail Court as well as the High Court. It was contended before the Supreme Court on behalf of the appellant, that an accused person is entitled to rebut even the presumption arising by virtue of a statutory provision, by merely offering an explanation which is reasonable and probable. The Supreme Court rejected this contention. It pointed out that the burden resting on an accused person in a case where Section 4 of the Prevention of Corruption Act applied, would not be as light as it is where a presumption is raised under Section 114 of the Evidence Act, and cannot be held to be discharged merely by reason of the fact that the explanation offered by the accused is reasonable and probable. It must further be shown that the explanation offered by the accused is reasonable and probable. It must further be shown that the explanation is a true one. The words 'unless the contrary is proved' which occur in this provision, make it clear that the presumption has to be rebutted by proof and not by a bare explanation which is merely plausible. A fact is said to be proved when its existence to be so probable that a reasonable man would act on the supposition that it exists. Unless, therefore, the explanation is supported by proof, the presumption created by the provision cannot be said to be rebutted. It further held that the question whether a presumption of law or facts stands rebutted by evidence or other material on record, is one of fact and not of law.
(2) State of Gujarat v. Madhavbhai Narottana, ILR 1963 Guj 837 = (AIR 1964 Guj 206). In the said case the appellant was also charged under Section 161, I.P.C. and Section 5 (1) (d) read with S. 5(1)(2) of the Prevention of Corruption Act. HeH HHeeadjdfHeHe was Hew He kjdjfj;kjkjkjHe cdcdscdscdsc gffegfdgfgdfgfdgfdgfdgqwqwqwqwqwqwqwqwbhbhbhbhby He was He was a Head Constable and was alleged to have accepted Rs. 10 per week as illegal gratification to give the complainant a free hand to carry on some kind of gambling. The accused admitted that he had received the money from the complainant, but his explanation was that the amount of Rs. 10 was not received by him as illegal gratification but as refund of the advance that was paid to the complainant by him towards the price of shoes. The trial Judge found that the explanation of the accused was reasonable and probable for various reasons and acquitted the accused. The Division Bench of this High Court, however, set aside the acquittal on appeal by the State and convicted the respondent in respect of the two charges. The learned judges in the said
(2) In the case of a public servant, when it is shown that he has received a certain sum of money, which was not a legal remuneration, condition prescribed by Section 4, Sub-section (1) is satisfied and the presumption must be raised by the Court as mentioned in that section.
(3) Once this presumption is raised, the burden of rebutting that presumption is on the accused and this burden cannot be said to have been discharged merely by an explanation offered by the accused, which explanation might be reasonable and probable.
(4) The burden can only be said to have been discharged by the accused when besides offering an explanation, which may be reason able and probable, the accused shows that the explanation is a true one and for that purpose it must be borne in mind that the presumption has to be rebutted by proof and not by a bar explanation which is merely plausible.
(5) In this context the Court must bear in mind the definition of the word 'proved' occur ring in Section 3 of the Evidence Act.
(14) It was also held in that case that if the explanation given by the accused in his examination under Section 342, Criminal Procedure Code, about the receipt of money which is obviously not a part of the legal remuneration of the accused, remains uncorroborated an unsupported by any other material on record, it cannot be said that the burden cast upon the accused by Section 4 (1) of the Prevention of Corruption Act has been discharged by him.
(15) It is true that in these cases the accused had merely tried to rely upon the explanation given by them in reply to the questions put by the Court under Section 342, Criminal Procedure Code, to urge that they had given a reasonably probable explanation and had thus discharged the burden. But because of that fact, it cannot be said that the said observations cannot apply to the present cast merely because the accused has stepped into the witness-box and has led evidence. He has further to show, as observed hereinabove, that he had succeeded in rebutting the presumption having regard to and within the meaning of the definition of the words 'shall presume', 'disproved' and 'proved' as given in the Evidence Act.(16) Mr. Trivedi relied upon the English decision of Rex v. Carr-Briant, (1943) 1 KB 607, wherein it was decided that, where either by statute or at common law, some matter is presumed against an accused person 'unless the contrary is 'proved' ', the jury should be directed that the burden of proof on the accused is less than that required at the hands of the prosecution in proving the case beyond a reasonable doubt and that this burden may be discharged by evidence satisfying the jury of the probability of that which the accused is called on to establish. Generally speaking, the principle laid down there is sound, but, at the same time we have to keep in mind the definition given in the Evidence Act of the words 'proved' and 'disproved'. We are in agreement with Their Lordships deciding the case that the burden of proof on accused is less than that required at the hands of the prosecution as has already been observed hereinabove. A passage from the said decision may be, with advantage, referred to which goes to further support the view that we have already taken as regards the burden of proof on the accused;
'What is the burden resting on a plaintiff or defendant in civil proceedings can, we think, best be stated in the words of the classic pronouncement on the subject by Willes, J., in Cooper v. Slade, (1858) 6 H.L. Cas. 746 (772). That learned Judge referred to an ancient authority in support of what he termed 'the elementary proposition that in civil cases the preponderance of probability may constitute sufficient ground for a verdict.' The authority in question was the judgment of Dyer, C. J. And a majority of the Justices of the Common Pleas in Newis v. Lark, (1571) 2 Plowd. 408 decided in the reign of Queen Elizabeth.'
(17) In the light of the discussion made hereinabove, the suggestion of Mr. Trivedi that the mere fact of the appellant having stepped into the box or having led evidence of a witness would be sufficient compliance in the eye of Law to rebut the burden cast on him, we are unable to accept. The appellant, in order to succeed, must show the preponderance of probability in any case in favour of his version.
(18) Appeal dismissed.