Tilak Raj Kohli vs State
1969 Latest Caselaw 172 Del

ORDER

M.E.A. Ansari, J.

1. This is a Revision petition filed under Section 439, Criminal P. C., against the judgment of the Additional Sessions Judge, Delhi in Appeal No. 158 of 1966 confirming the conviction of the petitioner under Section 52 of the Indian Post Office Act, 1898, hut modifying the sentence of 2 years' rigorous imprisonment and a fine of Rs. 200 passed against the petitioner by the Assistant Sessions Judge, Delhi into an order under Section 4 of the Probation of Offenders Act and directing the release of the petitioner on certain terms.

2. The facts of the case briefly stated are as follows:

(1) The petitioner was working as Postal Clerk in the G. P. O., Delhi Parcel Import Branch on 29th March, 1965. Sometime between 6-30 A.M. and 10 A.M. on that date, the petitioner was put in possession of 87 mail bags and 16 loose parcels and it was his duty to open these mail bags and parcel) and to distribute them to the other employees in the post office who were in charge of the various branches of the post office to which the parcels had to be dispatched, The mail bags which were thus handed over to the possession of the petitioner included a parcel bag from the Madras Airport Sorting Office.

After the mail bags were opened and while they were being distributed to the staff of the post office it was found that the parcel bag from the Madras Airport Sorting Office was missing. A through search was made for this missing bag but the bag was nto found. Since the missing bag had been in the possession of the petitioner and since he did nto hand it over for dispatch to the concerned branch post office and since the petitioner did nto otherwise explain the missing of this bag the petitioner is accused of having either committed theft of the said bag or of having dishonestly misappropriated it and of thus committing an offence under Section 52 of the Indian Post Office Act.

2. An offence under Section 52 of the Indian Post Office Act being exclusively friable by Court of Session, there was an inquiry in the first instance by the Magistrate First Class Delhi under Chapter xviii of the Criminal Procedure Code. Only two witnesses were examined during the course of the inquiry and the learned Magistrate having come to the conclusion that there was a prima facie case made under Section 52 of the Indian Post Office Act committed him for trial before the Assistant Sessions Judge.

3. 15 Prosecution witnesses and 5 defense witnesses were examined before the learned Assistant Sessions Judge and on a consideration of this evidence, the learned Assistant Sessions Judge found the petitioner guilty of an offence under Section 52 of the Indian Pest Office Act and sentenced him to undergo 2 years' rigorous imprisonment and also to pay a fine of Rs. 200. The petitioner preferred an appeal before the learned Additional Sessions Judge but the latter has also con-firmed his conviction. He, however, modified the sentence as already indicated.

4. This Court now sitting in revision cannto embark upon any examination of the evidence as if it was a Court of appeal and this Court would be reluctant to interfere with the conviction of the petitioner, especially when such a conviction is based upon evidence which has been accepted both by the trial Court la well as by the appellate Court. This Court can interfere with the conviction of the petitioner only if there has been a miscarriage of justice either by reason of any material illegality or irregularity in the procedure followed by the courts below, or where there is no evidence in support of the findings of the lower Courts or the findings arrived at are perverse or are such as no reasonable person could have arrived at on the evidence produced or where the finding had been arrived at contrary to well established principles of law.

I shall therefore have to examine the evidence in this case within the limitations stated above. But at the same time, as observed by the Kerala High Court in N. A. Kamla Devi v. State of Kerala :

In a case which depends wholly on circumstantial evidence the question whether the circumstances taken as a whole amount to conclusive proof of the guilt of the accused or nto has often to be considered even by a Court of revision especially when from the judgment of the lower Court it does nto appear that it was alive to the rule governing oases of circumstantial evidence.

5. The rule governing circumstantial evidence is now well established and that rule is that the circumstantial evidence must be such and that it leads only to one hypothesis namely that of the guilt of the accused. But if the circumstantial evidence is such that it does nto conclusively prove the guilt of the accused, then the conviction of the accused on such circumstantial evidence cannto be upheld, and this Court sitting in revision has a duty to interfere with such conviction.

6. The prosecution examined 15 witnesses to prove its case against the petitioner. The gist of this evidence is that a parcel containing imitation precious stones of the approximate value of Rs. 3,500 was dispatched by a firm of jewellers in Madras to a firm of jewellers at Delhi on 27-3-1965. This parcel was received at the Palam Airport sorting office in the early hours of morning of 28-3.1965 along with other parcels and was transmitted to the G. P. O., Delhi and deposited in a cage meant for that purpose and in the early hours of 29th March, 1965, a detailed list of all the mail bags and parcels was prepared at the G.P.C. by the Postal Clerk concerned and that these mail bags and the detailed list were in turn handed over to the petitioner, whose duty it was to open the mail bags and the parcels and distribute them to various other employees of the post office for the purpose of being sent to the several branches of the post office in Delhi. The parcel of imitation stones was also included in the parcels which were thus handed over to the petitioner for distribution. Therefore, this parcel was found missing, and it has never been found thereafter. This is therefore a case where the charge against the petitioner of theft and misappropriation of this parcel is sought to be proved by circumstantial evidence. It is, therefore, to be seen whether the circumstantial evidence relied upon by the prosecution satisfies the rule regarding circumstantial evidence.

7. Section 52 of the Indian Post Office Act is reproduced below:

Whoever, being an officer of the Post Office, commits theft in respect of, or dishonestly misappropriates or, for any purpose whatsoever, secretes, destroys or throws away, any postal article in course of transmission by .post or anything contained therein shall be punishable with imprisonment for a term which may extend to seven years and shall also be punishable with fine.

8. A person therefore is liable to be convicted under Section 52 of the Indian Post Office Act if he commits any one or more of the acts mentioned therein. The charge framed against the accused is that he had committed theft of the parcel of imitation stones or that he mis-appropriated it. Theft and criminal misappropriation are two distinct offences. A person commits theft who dishonestly removes any movable property out of the possession of another person without that person's consent. In other words a person is said to have committed theft of a movable property which is nto in his own possession but in the possession of some other person. On the other hand, a person commits the offence of criminal misappropriation when he dishonestly misappropriates or converts to his own use any movable property which has already come into his possession by innocent means.

The prosecution case against the petitioner is that he had received the Madras parcel Along with the other mail bags in his possession from the Postal Clerk for the purpose of distribution to various post offices. Therefore, even according to the prosecution case, the petitioner had gto lawful possession of the Madras parcel. There is no question, therefore of the accused having committed theft of this parcel. If the prosecution evidence is accepted, the petitioner can only be said to have committed only criminal misappropriation in respect of the Madras parcel. There-fore, two things have to be proved namely, (1) that the petitioner, in fact, gto possession of the Madras Parcel and (2) that he dishonestly misappropriated the said parcel or that he converted it to his own use.

9. On the first point the material evidence is that of P. Ws. 5, 7, 8, 9, 10 and 11. In the order of sequence in which the events are said to have taken place the evidence of P. W. 7 has to be examined first. He is the person who received the mail bags at the G. P.C. in the early hours of the morning of 28th March, 1965 and who deposited these mail bags in the cage. This cage is said to have been locked jointly by P. W. 7 and another Shri R. P. Singh Bhalla, who has nto been examined, the cage was opened at 3 P. M. on 29-3-1065 by P. W. 7 and Shri Bhalla and P. W. 7 prepared a detailed list marked as Exh. PB. This list contained an entry regarding the Madras parcel which was subsequently missing. After preparing the detailed list, P. W. 7 handed over the list Along with the mail bags and parcels to P. W. 8. According to P. W. 7 he handed over 87 mail bags and 16 loose parcels to P. W. 8 and P. W. 8 acknowledges having received the said mail bags and parcels from P. W. 7 Along with the detailed list Exh. P. B.

P. W. 8 is the next witness whose evidence has to be examined. He says that after he received the mail bags and the parcels from P. W. 7 he handed them over to the petitioner and obtained his signature on Exh. P. B. and that at that time the Madras parcel was also handed over to the petitioner Along with the other mail bags and parcels. The evidence of this witness has been accepted, both by the trial court as well as by the appellate court at its face value without any attempt at testing his evidence in the light of the other evidence. P. W. 7 himself has denied that P. W. 8 delivered possession of the mail bags or parcels to the petitioner in his presence. P.W. 9 who is also said to have been present when P. W. 8 handed over the mail bags and parcels to the petitioner has nto corroborated P. W. 8 with regard to the actual and physical handing over of possession of the mail bags by P. W. 8 to the petitioner. This is what he says:

On the date of occurrence, I had come to duty at 6.30 A. M. Tilak Raj accused was already present at the time when I reached there. When I reached the office for duty I found a heap of postal bags lying and Iqbal Kishan was asking the accused to sign the list. Iqbal Kishan left the place after a few minutes of my arrival.

The evidence of P. W. 10 who is also said to have been present at that time also does nto corroborate the evidence of P. W. 8 on this point, because this is what he says:

I do nto know when the accused had taken over charge from Iqbal Kiehan. I cannto say if the bag in question relating to Madras Airport No. 2 was ever handed over by Iqbal Kishan to Tilak Raj accused.

P. W. 11 is the Assistant Post Master, Parcel Branch, Delhi G. P. O. who was also said to be present at the relevant time and under whose supervision the parcels were said to have been opened. Although in the chief examination he has stated that:

The accused had obtained 87 bags and 16 loose parcels from the mail branch from Iqbal Kishan P. W 8.

and also that:

that bag was in the custody of the accused.

(meaning the Madras mail bag )

he has considerably watered down this statement in his cross-examination when he admitted that:

It is true that the counting of the bags was nto done in my presence but since the accused signed the mail transfer list, he must have counted the same.

11. The evidence of P. W. 5 who is the only other witness examined from out of those persons who are said to have been present at the relevant time, directly contradicts P. W. 8 on the crucial point. He says as follows:

When I and the accused came then some of the bags were lying outside the bags and some inside the cage. Those bags were nto counted by Iqbal Kishan.

Therefore it would appear that the only evidence which seeks to prove that the petitioner actually obtained possession of the Madras parcel, is that of the P. W. 8. The evidence of this witness is nto only nto corroborated by the other evidence, but it is actually contradicted by the evidence of P. W. 5.

12. The petitioner has contended from the beginning that when be took charge of the mail bags and parcels from P. W. 8 he did nto actually either count the bags and the parcels or actually verify the names on the labels and that he merely signed Exh. PB out of confidence in P. W. 8 according to the usual practice in the post office. This contention cannto be said to be entirely baseless. P. W. 9 has admitted that:

Sometimes we sign on the detailed list in good faith when the bags are still lying in the heap.

P.W. 7 himself took about one hour for hanging over charge of the mail bags and parcels to P. W. 8. P. W. 5 says that he and the petitioner came to the post office on 29-3-1965 at 6-30 A.M. P. W. 9 also says that he came to duty on that day at 6-30 A.M. and he further says that when he reached the office he found the postal bags lying and Iqbal Kishan was asking this accused to sign the list and that Iqbal Kishan left the place after few minutes of his arrival. P. W. 8 himself admits that he remained in the parcel Mail Branch for about 10-15 minutes for handing over the charge to Tilak Baj Kohli 'accused.'

The above evidence would thus support the contention of the accused that he did nto actually either count the number of the mail bags and parcels or verify their nature when he took over charge from P. W. 8. The prosecution has thus failed to prove that the Madras parcel had come into the possession of the petitioner.

13. There is yet another circumstance which would support the contention of the petitioner that the Madras parcel was nto actually hand-ed over to him by P. W. 8. In Exh. PB the petitioner has written in his own hand, "87 plus 16" in token of having received 103 mail bags and parcels from P. W. 8. The worst possible inference that could be drawn against the petitioner is that he actually received 103 mail bags and parcels from P. W. 8. But then, according to the petitioner, there were, in fact, 103 bags and parcels present even without the Madras parcel and according to him, there was one parcel which was in excess of the number of parcels mentioned in Exhibit PB, This statement of the petitioner is corroborated by the evidence of P. W. 9. It is quite possible that P. W. 8 might have become aware of the fact that they were actually 104 articles and nto 103 as per Exh. PB and that he removed the Madras parcel and handed over 103 mail bags and parcels to the petitioner. P. W. 8 himself does nto say that he actually handed over 87 plus 16 plus 1 i. e., in all 101 parcels to the petitioner. Th» least that can be said is that the circumstantial evidence relied upon by the prosecution is capable of pointing to the guilt of P. W. 8 as much as to the guilt of the petitioner.

14. Even with regard to the alleged mis-appropriation of the Madras parcel by the petitioner, the evidence is inconclusive. Even assuming that the Madras parcel was handed over to the possession of the petitioner along-with the other mail bags and parcels, the possibility of the Madras parcel being removed by someone else than the petitioner cannto be ruled out. It is admitted that the mail bags and parcels were lying about in a heap in the cage and they were being handled by a number of persons. The evidence shows that anyone of those persons could have had access to the Madras parcel. The evidence does nto conclusively prove that the Madras parcel was in the exclusive possession of the petitioner,

15. In these circumstances the conviction of the petitioner for an offence under Section 52 of the Indian Post Office Act cannto be upheld. The conviction is set aside and the accused-petitioner is acquitted and the bond which ha might have executed under Section 4 of the Probation of Offenders Act shall stand cancelled.

16. In the result the petition is allowed.