MAJOR ROBERT STUART WAUCHOPE Vs. EMPEROR

JUDGEMENT

(1.) The appellant, Major Robert Stuart Wauchope, O.B.E., Indian Army, has bean convicted by the Chief Presidency Magistrate of criminal breach of trust under Section 409, I.P.C., in respect of two sums of Rs. 1,500 each alleged to have been received by him on 4 March and 1 July 1929, respectively, from the Government of the Nizam of Hyderabad, in his official capacity as officer in charge of No 6 Survey Party of the Government of India, with headquarters at Bangalore and field headquarters at Secunderabad, and sentenced to six months imprisonment and a fine of Rs. 1,000 on each of two counts, the sentences of imprisonment to run concurrently.

(2.) The appellant is the son of the late Col. Wauchope, C.B., C.M.G., C.I.E., of the Survey of India, and is an officer of 27 years standing. He joined the army in 1906, and was appointed to the Survey of India in 1910. Between 1914 and 1921 he was again employed on military duty, during which period he was appointed Assistant Director of Works at Waziristan, was mentioned in despatches, and received the honour of the O.B.E., in recognition of his services. In 1921 he returned to the Survey of India and later became officer in charge of No. 6 Survey Party. In 1929 he became Superintendent of Surveys. These survey parties worked under a Director of Survey at Bangalore. In 1929 the Director, Col. Brown died and the appellant acted in his place. In 1930 he was appointed Assistant Surveyor-General and was stationed in Calcutta. Since May 1932 he has been suspended in connection with these alleged misappropriations, as a result of the findings of a Departmental Committee of Inquiry. He is a married man with two children and is entitled to a pension of ?530 as Major. In the normal course he would have been promoted Lt. Col. in August 1932 with a pension of ?800, and with reasonable expectation of being promoted Col. eventually with a retiring pension of ?900 per annum.

(3.) In dealing with this case, I regret to find it necessary once again to draw attention to certain fundamental principles of law, which there seems to be an increasing tendency either to disregard or to overlook, on the part of both Judges and Magistrates, as well as by those who appear to prosecute on behalf of the Crown. The first is that every accused person must be presumed to be innocent, unless and until he has been proved beyond reasonable doubt to be guilty, and the second is that his guilt must be established by relevant evidence before he can be convicted. In view of the appellant's past record, if for no other reason, he had every right to expect that these fundamental principles would be strictly observed throughout his trial. In the present case the Magistrate in his judgment has made frequent reference to certain printed hand-books of rules and instructions purporting to have been issued by order of the Surveyor-General of India and others, and to other facts which do not appear to have been proved in evidence and which are not included in the record or in the list of exhibits, For this reason alone these statements must be disregarded, apart from the fact the evidence of the witnesses for the prosecution shows that the alleged rules did not apply, or applied only very partially to the particular circumstances in which, and the period when, the survey work of the appellant was done. Further, the Magistrate's judgment seems to show that he assumed that all that the prosecution had to do to establish criminal misappropriation was to prove that the appellant had received the two sums alleged, and had failed to account for them.