Patna High Court
Harish Chandra Narain And Ors. vs State Of Bihar on 7 August, 1984
Equivalent citations: 1985(33)BLJR11
JUDGMENT Udai Pratap Singh, J.
1. These four appellants have bean convicted under Section 120-B, I.P.C. and sentenced to 10 years rigorous imprisonment. The first appellant-has been convicted further under Section 409 and sentenced to 10 years rigorous imprisonment. The 2nd appellant has been convicted under Section 411 IPC and sentenced to 3 years rigorous imprisonment. All the sentences were ordered to run concurrently.
2. Originally, 7 persons were put on trial including these appellants but the three other co-accused, namely Bhola Sao, Shanker Sao and Joginder Prasad Azad were acquitted of the solitary charge under Section 120-B, I.P.C.
3. This case relates to a story of criminal breach of trust of Rs. 1,70,000/-contained in 17 insured parcels of Rs. 10,000/-each, committed in collusion and consent of all the seven accused persons.
4. The first appellant was a postal mail peon in Khelari Sub-Post Office. The said amount, as usual was sent in the first week of the month on requisition sent by the A.C.C. Khelari to the State Rank of India, Ranch). The A.C.C. Khelari have their accounts in die said Bank. The amount used to be sent by means of insured parcels containing the notes of different denominations. In this case a letter (Ext. 13) dated 13/14 August, 1968 was sent by the Manager of A.C.C. Khelari Works to the Agent of the State Bank of India Ranchi for sending the said amount after debiting it in their cash account so as to reach on 2nd September, 1968. Accordingly, on 3-9-1968, the State Bank gave 17 insured parcels each containing Rs. 10,000/-to the Post Office at Ranchi which was received by the Postal department on the same day. After making due entries, the registered bags concerned passed different hands and were kept in double lock duly signed and sealed and they were sent to R.M.S. Ultimately, the parcels were received at Gomoh where C. 2 made out a bag for Khelari and on 5-9-1968 the train left Gomoh for Barwadih at 5 a.m. It reached Khelari Railway Station at 10.55 a.m. and there P.W. 2 the sorter in the R.M.S. gave one mail bag and two packet bag to accused Harish Chandra Narain (first appellant) at Khelari Railway Station from whom he took three bags, one of which was for C-2, the 2nd was for Latehar and 3rd for Daltonganj. He gave a list along wi the bag given by him and took the list along with the bag taken by him. It was alleged that the mail bag given to the first appellant contained 17 insured parcels each of Rs. 10,000/-besides letters etc. This mail bag had been prepared by P.W. 2 from the different mail bag received by him from different stations. The first appellant came out of the Railway station with the mail bags and with the same instead of going to the post-office, he boarded a Taxi driven by P.W. 33 in which appellant Nos. 2 to 4 were already sitting. The Taxi was taken to Rourkela where it was left and then the first appellant went from place to place after misappropriating the amount. It was further alleged that this Taxi was arranged also on 4-9-98 from Ranchi and the driver P.W. 33 brought it to Khelari but after arrival of the train it was reported that 'Saheb' did not come. The taxi then went on that day and it was again hired on the following day when this occurrence took place. It was alleged that this conspiracy started at Barkakana on 1-9-1968. Two of the accused, namely, Ashu Sao and Harish Chandra Narrin the first and the 2nd appellant made their confessional statement before the Magistrate, P.W. 30 stating as to how mait bags were misappropriated on 12-9-1968 P.W. 23, the then Officer Incharge, Hirapur Police Station, district Burdwan received a requisition from the Officer Incharge of Khelari Police Station and kept a watch in the area and mainly on Nirsan Bandh. On 12-9-1968 he got an information through soni source that an unknown man with bag and baggage arrived at Nirsan Bandh in the house of one Shanker Sao, (the acquitted co-accused) and he rushed to Narsan Bandh and found a man with bag and baggage coming through the road near Ramlal temple. He chased the man then he disclosed his name as Ashu Sahu (appellant No. 2), of Barkakana being the brother of Anup Sao. The bag was opened in presence of witnesses and from his bag he recovered a sum of Rs. 68,440/- in different denomination. Besides this he recovered some other articles for which a seizure list was prepared and the 2nd appellant was forwarded to the. Police Station concerned Test Identification Parades were also held from time to time concerning all these appellants. After completing the investigation those appellants along with three others were put on trial for the charge mentioned above. In defence the appellants denied the allegation. They pleaded that they have been falsely implicated and no such occurrence took place as alleged by the prosecution. The said Ashu Sao, the 2nd appellant had not appeared before the Magistrate for recording his confessional statement on 18th September, 1968. In this connection he referred to the register of jail authorities which showed that he was not taken out of the jail on that date.
5. Several witnesses were examined on behalf of the prosecution but they were disbelieved in so far as the other three co-accused were concerned and ultimately they were acquitted.
6. The main question which arises for consideration is as to whether there was sufficient evidence to prove the entrustment of the said amount contained in 17 bags to the first appellant. In this connection learned Counsel for the appellants has referred to the evidence of the concerned witnesses, and has contended that the prosecution has miserably failed in proving the charge against the appellants. It was stated by the first appellant in his statement under Section 342, Cr.PC that he was not on duty on the alleged date i.e. on 5-9-1968. He fell sick and therefore, he went on leave. It could not be shown by the prosecution by producing the attendance register as to whether the first appellant was present on the alleged date or not. P.W. 4 is the Inspector of Post Offices examined in this case. In paragraph 11 of his deposition he accepted that the attendance register is maintained in the said department. The register was never produced in this case. P.W. 10 was the Post-Master in Khelari Post office. He stated in paragraph 5 of his deposition that he had no document to show that on 5-9-1968 the first appellant was on duty. P.W. 12 who was a clerk in the said post-office was also examined and in paragraph 4 of his deposition he accepted that attendance register is maintained which shows the presence of the postal employees on duty and the said register is kept with the Assistant Post Master. The attendance register was never produced by the prosecution. Thus, it is not established as to whether the appellant was on duty on the relevant date i.e. on 5-9-1968.
7. My attention was drawn to the relevant Rule which would govern this case in so far as duty of each employee is concerned. Rule 726(3) of the Indian Post and Telegraph Manual is relevant to be quoted.
Bags containing return train mail will be made over to the Mail peon under receipt by Railway Mail Service Section with the original and duplicate copies of a mail list. On arrival of the train to which the mails are to be delivered, the Mail Peon should hand them over with the original and the duplicate mail list to the Head Sorter of the Section to which they are addressed and the latter will return the duplicate copy of the mail list, duly receipted to the mail peon who will make it over to the Mail department for record.
Relying on the said Rule it was contended that no bag containing mails will be made over to the Mail peon without receipt by the Railway Mail Service Section. In this case receipt of these mail bags by the first appellant was never produced before the Court. P.W. 13 was the Inspector of Post Offices who has stated in paragraph 3 of his deposition that when he will receive insured bags from any one then he will give his signature and when he will deliver it then also he will take signature from that person. Thus, admitted position is that the prosecution has not been able to produce any receipt granted by the first appellant in accordance with Rule 726(3) of the Indian Post and Telegraph Manual. As per the Rule, at the time of the delivery of the bags, the signature of the mail peon has also to be taken. In this connection it is relevant to refer the evidence of P.W. 2, the Sorter in the R.M.S. He has accepted in his deposition in paragraph 8 that he had not taken the signature of the first appellant on giving the mail bags at Khelari Railway Station. He, thus, accepted that the name of the person to whom the bags were given was not mentioned in the list. Only the name of the post office and the station was mentioned. Considering the evidence of this witness, therefore, it is not proved that the mail bags in question were handed over to the first appellant and the receipt or signature in proof of the receipt of those mail bags were not produced. It is curious that these mail bags containing such a heavy amount should have been so carelessly and negligently handled. None of the witnesses have supported the allegation of handing over the sealed bag in question to the first appellant.
8. Next it was contended that the mail bags in question were given to some other person and not to this appellant. In this connection, P.W. 18 who was a cloth dealer of Khelari, was examined by the prosecution and (sic). He accepted that he used to go to the Post-Master of Khelari and on 5-9-1968 he learnt that some unknown person had taken away the mail bags. P.W. 31 in paragraph 2 of his deposition has categorically stated that he had met the Post Master of Khelari Post Office in the evening of 5-9-1968, when he was talking to some body that some unknown person had taken away the mail bags from the Khelari Railway Station. He did not hear him mentioning the name of any one in this connection. Thus the prosecution has not established its case that the mail bags in question were handed over at any time, to the first appellant.
9. Referring to the alleged recovery, it may be stated that the recovery of Rs. 68,440/-was alleged to have been made from the possession of the 2nd appellant and not from the possession of the first appellant. The amount was alleged to have been recovered from the possession of appellant No. 2 on 12-9-1968. It was alleged to have been recovered at Nirsan Bandh in the district of Burdwan. Burdwan was the maternal place of appellants 2 to 4. By no means it was shown as to how and in what manner the first appellant had any connection with that place. The recovery of the' alleged amount from the possession of the 2nd appellant has not been co-related and identified with the amount contained in the mail bags. The denominations of the notes in question were not established. P.W. 35 was the Head Cashier in the State Bank of India at Ranchi. He categorically denied that the notes in question recovered from the possession of appellant No. 2 were the same notes sent by the State Bank of India. The identity of the notes sent in different denomination was not proved. P.W. 8 who was the Manager Account, State Bank of India at the relevant time, could not give the numbers of the notes of each denomination sent by the State Bank of India, Ranchi. The 2nd appellant had a definite case that the money recovered from his possession was exclusively his own money owned and possessed by him. In this connection P.W. 14 has categorically stated that appellants 2 to 4 are brothers and they look after their own hotel business named Ashoka Hotel. It is a big hotel visited by several persons during its busy hours between 7 a. m. till mid-night. They have large number of employees and also a manager to look after it. Thus, the status of appellants 2 to 4 was such that the claim of the 2nd appellant to have owned and possessed the said amount was not a matter of surprise. They were persons of status and unless it could affirmatively be proved by cogent and reliable evidence that the money recovered from the possession of the 2nd appellant was the same as alleged to have been delivered in the mail bags, the assertive claim of the 2nd appellant that the said money belonged to him could not be ruled out.
10. In so far as the identification of these appellants was concerned, P.W. 23 in last paragraph of his cross-examination stated that earlier he had twice been examined and the statement of the accused were recovered by him. He had seized one group photograph and also a photograph of a female and two other photographs of a few unknow persons. P.W. 34 was the Investigating Officer. He had seized the photograph of the 3rd appellant on 24-9-1968 but in the diary he mentioned it as 6-10-1968. He did not prepare the seizure list of these photographs. It was not stated any those photographs were being seized and why the seizure list was not prepared. The evidence of some of the witnesses revealed the fact that the photographs were seized in order to show it to the identifying witnesses, before the accused persons were put on T.I. parade. P.W. 21 in paragraph 7 of his deposition stated that he was examined by the Investigating Officer. He went there on many occasions and he was shown the photograph at the police station before the T.I. parade was held. He was told by the Investigating Officer that he had to identify the man who was in the middle of the group photograph. P.W. 22 stated in paragraph 4 of his deposition that the Investigating Officer had brought him to Ranchi for the T.I. parade on that date. There were 4-5 identifying witnesses and the photographs were shown to them before the T.I. Parade was held.
11. The interestedness of the Investigating Officer in getting the accused persons identified by foul means is deplorable. It is to be seriously condemned. The people would start losing faith in the Investigating agency. None of the witnesses could prove any criminal connection or relationship between the first appellant and the appellants 2 to 4. The witnesses examined as P.Ws. 18, 21, 22 and 31 have miserably failed to establish the relationship and/or connivance of the appellants for the alleged offence. Casual or occasional association would not be sufficient proof to bring home the charge against the appellants.
12. It is a gross case where the first appellant being a postal peon of the Khelari Post-Office has been made a scope goat for the smart misappropriation of a heavy amount of Rs. 1,70,000/-.
13. In the facts and circumstances of the case, I hold that the appellants are not guilty of the offence and the prosecution has miserably failed to prove the charges.
14. In the result, the appeal is allowed, the order of convictions and sentence is set aside and the appellants are acquitted of the charges. They are discharged from the bail bonds. The amount of Rupees 68,440/-said to have been recovered from the possession of the second appellant will be returned back to him.