Bansidhar Mohanty vs State Of Orissa

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 19 November, 1954

Coram: S.R. Das

The Court noted that the present appeal arose from a judgment of the High Court of Judicature at Orissa dated 24 July 1951, rendered in Government Appeal No. 5 of 1950. The High Court had set aside an earlier order of acquittal granted by the Sessions Judge of Sundar Nagar, Sambalpur, and had consequently convicted the appellant, who was employed as a sorter in the Postal Department. The conviction was under Section 381 of the Indian Penal Code and Section 52 of the Indian Post Offices Act for the alleged theft, on 3 January 1949, of an insured cover valued at three thousand rupees. The cover was said to have been taken from the mail van that was attached to the 13 Down Passenger train running from Jharsuguda to Tatanagar. The High Court sentenced the appellant to rigorous imprisonment for five years on each count, the sentences to run concurrently, imposed a fine of five hundred rupees, and directed that in default of payment of the fine a further term of six months’ rigorous imprisonment be imposed.

In setting out the prosecution case, the High Court described the appellant, Bansidhar, as Head Sorter No 7 – Out-section, while Shib Sankar Sahay, P.W. 1, was identified as the Head Sorter of the Railway Mail Service, Northern Division No 7 Dn. On the date of the alleged theft, Shib Sankar was in charge of the mail van attached to the 13 Down Passenger train on the Jharsuguda-Tatanagar section. He assumed control of the van at Jharsuguda and travelled in it together with Basudev Chakravarty, P.W. 3, the second sorter, and Marcus Bari, P.W. 4, the van peon. Before the train departed Jharsuguda, the appellant approached Head Sorter Shib Sankar and explained that he wished to travel on that train because he had mis-delivered a parcel at Kulanga. The Head Sorter permitted him to travel in the luggage compartment that was attached to the mail van. After the train left Jharsuguda, the appellant entered the mail van through the inter-communicating door and began issuing instructions to the second sorter, who was new to his duties, on how the letters should be sorted. He positioned himself near the pigeon-holes of the counter where registered letters were kept and was described as being unnecessarily officious. Consequently, Head Sorter Shib Sankar advised him not to disturb the second sorter and instructed him to return to the attached luggage compartment; the appellant complied. At Bamra station, however, the appellant re-entered the mail van and again positioned himself near the counter. Despite the repeated request of Head Sorter Shib Sankar, the appellant did not leave the van; after loitering for a time, he proceeded to the latrine. Shortly thereafter, Shib Sankar directed the second sorter, Basudev, to check the bags as the train approached Rajgangpur station, where the first bags were to be closed. The second sorter examined the pigeon-holes and informed Shib Sankar, between Godpos and Sonakhan stations, that one of the insured covers was missing. Shib Sankar himself conducted a further check and discovered, between Sonakhan and Rajgangpur, that insured article No 10 of Sakti was missing. He then approached the latrine door and asked the appellant to emerge. The appellant did not respond, but as the train neared the distant signal at Rajgangpur, Shib Sankar heard a sound suggesting paper being torn inside the lavatory. He forced open the latrine door, extracted the appellant, and, suspecting him of attempting to conceal something in his chest pocket, searched the appellant, uncovering six hundred-rupee notes and twenty ten-rupee notes.

According to the record, the second sorter, identified as P. W. 3, examined the pigeon-holes while the train was approaching the station where the first bags were to be closed. He then informed Shib Sankar, P. W. 1, that sometime between the Godpos and Sonakhan railway stations an insured cover appeared to be missing. Acting on this information, Shib Sankar personally inspected the baggage between Sonakhan and Rajgangpur and discovered that the insured article numbered ten of Sakti was indeed absent. He then proceeded to the latrine door and instructed the appellant to emerge. The appellant did not answer the request. As the train neared the distant signal of Rajgangpur station, Shib Sankar heard a sound that suggested paper was being torn inside the lavatory. He forced the latrine door open and extracted the appellant from the compartment. Observing the appellant attempting to hide an object in his chest pocket, Shib Sankar searched him and retrieved six one-hundred-rupee notes and twenty ten-rupee notes from the pocket. Although Shib Sankar wished to notify the police, the appellant pleaded with him not to do so, promising instead to assume responsibility for the loss and to face departmental action. The appellant subsequently wrote two notes, exhibited as Ex. 1 and Ex. 2, one admitting that he had torn an insured letter and the other intended for his father. He also asserted that the cover contained only eight hundred rupees, which he claimed to have discarded. Nevertheless, he undertook to pay three thousand rupees, the maximum insurance value, and handed a further note, marked as Ex. 5, at Rajgangpur station. At that station Shib Sankar sent a memo, Ex. 3, to the Post Master informing him of the incident, and also dispatched Marcus Bari, the van peon identified as P. W. 4, to search the railway track up to the distant signal. The train arrived at Rajgangpur after dark, and the peon returned reporting that his search yielded no result. The Assistant Sub-Inspector of the G. R. P. was notified of the incident at approximately 7:30 p.m., and a written report, Ex. 4, was handed to the Assistant Sub-Inspector at Koolange. Later that night, at around 8:30 p.m., a First Information Report was prepared at the Rourkela police station. On the basis of these facts, the appellant was charged under Section 381 of the Indian Penal Code for theft of the insured cover valued at three thousand rupees, and also under Section 52 of the Indian Post Offices Act because he was a postal employee at the time of the alleged offences. The trial proceeded with the assistance of four assessors, who unanimously found the appellant not guilty of both charges.

The trial judge and the assessors unanimously found that the appellant was not guilty of either offence and the learned Sessions Judge agreed with that finding. He concluded that the prosecution had failed to prove the case against the appellant beyond reasonable doubt, and therefore he issued an order of acquittal. The State appealed that order, and the High Court set aside the Sessions Judge’s acquittal, convicting and sentencing the appellant as previously described. The High Court also declined to issue a certificate of fitness for appeal to this Court. Consequently, the appellant applied to this Court for special leave to appeal and that leave was granted. The appeal is now before this Court for determination.

The legal principles that govern a High Court’s review of an order of acquittal were clearly stated by the Privy Council in Sheo Swarup v. Emperor, AIR 1934 PC 227 (2) at pp. 229-230 (A). Those principles have been repeatedly reaffirmed by this Court, so that it is unnecessary to repeat them in full. It suffices to cite the decisions of this Court in Surajpal Singh v. The State (B), Puran v. State of Punjab (C) and Narayan Ittiravi v. State of Travancore-Cochin (D). Those authorities establish that, while an appellate court exercising the power under Section 417 Criminal P.C. may fully rehear the evidence on which an acquittal was based, the court must give due weight to several considerations. First, the trial judge’s assessment of witness credibility must be respected. Second, the presumption of innocence that favours the accused, reinforced by the fact that the trial resulted in an acquittal, must be honoured. Third, any doubt that remains must be resolved in favour of the accused. Fourth, an appellate court should be slow to disturb factual findings made by a judge who had the advantage of directly observing the witnesses. The judgment of the High Court under review must be examined in light of these principles.

The learned Sessions Judge had rejected the testimony of Shib Sankar (PW 1), Basudev (PW 3), Marcus Bari (PW 4) and the Sub-Post Master of Rajgangpur, Amulaya Ratan Adhicary (PW 6) concerning the alleged theft of the insured cover. He held that the prosecution’s evidence regarding the manner and timing of the production of Exhibits 1, 2 and 5 – the chits purportedly written by the appellant – was either inadmissible or, at the very least, unreliable. In reaching that conclusion, the Sessions Judge extensively pointed out glaring inconsistencies in the statements of the four witnesses and also noted contradictions between those statements and earlier statements made by the same individuals. The High Court, however, set aside those discrepancies, reasoning that the inconsistencies were not …

The Court observed that the High Court had allowed the witnesses to be questioned only so that they could explain their statements, yet it seemed to gloss over obvious contradictions or, at best, to make a strained effort to reconcile them. It was noted that the earlier statements given by those witnesses to Shri K.C. Sen Gupta, the Superintendent of the Railway Mail Service (recorded as PW 7), were never produced in Court while the witnesses were being examined; instead, those earlier statements were introduced solely through the Superintendent, PW 7. In view of this circumstance, the Court found it unreasonable to hold the appellant’s counsel negligent for not pointing out to the witnesses their own prior statements made before the Superintendent. Similarly, when one witness failed to corroborate another on material points, the High Court placed the blame on the appellant’s counsel for not presenting the earlier witness’s statement to the later witness. The Court stated that it is not the duty of the defence counsel to fill gaps in the prosecution’s evidence. A considerable amount of weight, the High Court said, had been placed on what were described as the appellant’s confessional statements contained in three chits (Exhibits 1, 2 and 5). Beyond the inconsistencies in the testimonies of the four witnesses regarding when and how those three chits were obtained from the appellant, the evidence made it clear that the appellant was entirely under the influence of alcohol throughout the relevant period. The mail-van peon admitted that the appellant, upon entering the mail van at Jharsuguda, was somewhat intoxicated. When the latrine door was forced open, the appellant was found reclining, his pajamas removed, and he was dragged out in a state of nudity. According to the testimony of Minaketan Dandasena, an Assistant Sub-Inspector of the Guard-Railway Police (PW 9), he entered the van and saw the appellant lying on the floor, though not asleep. The Court observed that the contents of the three chits were incoherent, with incomplete sentences, and did not appear to have been written by a person of sound mind. Apart from the discrepancies noted in the witnesses’ statements by the trial Court, it was striking that these chits had not been handed over by Shib Sankar (PW 1) to the Assistant Sub-Inspector (PW 9) who was in charge of the investigation. Moreover, the report marked as Exhibit 4, which Shib Sankar gave to the Assistant Sub-Inspector at Rourkela, referred only to “a letter” and made no mention of three chits. Likewise, the report identified as Exhibit 6, prepared by Shib Sankar for the Superintendent (PW 7), did not contain any reference to the three chits at all.

The report identified as Exhibit 6, which was prepared by Shib Sankar, the head sorter, for the Superintendent, did not contain any reference to any of the three chits. In view of this omission, the Court found it surprising that neither the assessors nor the learned Sessions Judge chose to rely on the three chits in their consideration of the evidence. The High Court’s criticism of that portion of the Sessions Judge’s judgment was therefore held not to be well founded or persuasive.

The Court observed that it was not contested that an insured cover, valued at Rs 3,000, had been dispatched from the Sakti Post Office and placed in a mail bag. That bag was received by the head sorter, Shib Sankar, at Jharsuguda and was subsequently handed over to the second sorter, Basudev, shortly after the train departed from Jharsuguda.

Basudev opened the registered bag and discovered that it contained eight insured covers. One cover was intended for a particular destination, while the remaining seven were destined for another location. Basudev placed each cover in its respective pigeon-hole compartment, and the total number of covers matched the inventory list accompanying the bag.

The Court noted the geographic context of the train route, stating that between the stations of Bamra and Rajgangpur there are two intermediate stations named Godpos and Sonakhan. The distance from Bamra to Godpos is ten miles; from Godpos to Sonakhan it is seven miles; and from Sonakhan to Rajgangpur it is four miles.

According to the evidence, the appellant entered the mail van through the luggage compartment after the train had left Jharsuguda. Shib Sankar instructed the appellant not to interfere with Basudev’s work, and the appellant returned to the luggage compartment. The appellant is said to have re-entered the mail van at Bamra station, where he stood near the counter. Despite being told to leave, the appellant ignored Shib Sankar’s admonitions, loitered for some time, and eventually entered the latrine.

The timing of the appellant’s entry into the latrine was the subject of conflicting testimony. Shib Sankar, both before the committing magistrate and at the trial, testified that the appellant went into the latrine after the train had departed from Bamra. In contrast, the mail-van peon, Marcus Bari, testified that the appellant entered the latrine at Bamra station while the train was just starting to move.

When the train approached Godpos, Shib Sankar asked Basudev to recount and verify the insured covers. Between the stations of Godpos and Sonakhan, Basudev discovered that one of the insured covers was missing and promptly informed Shib Sankar. In Shib Sankar’s examination-in-chief, he stated that this discovery occurred between Godpos and Sonakhan; however, during cross-examination he asserted that the loss was noticed when the train was nearing Godpos.

Following the report of the missing cover, Shib Sankar knocked on the latrine door and requested that the appellant come out, explaining that one insured cover was absent. He further stated that by that time the train had arrived at the distant signal of Rajgangpur railway station.

When the train had arrived at the distant signal of Rajgangpur station, its speed had been reduced. At that moment Shib Sankar, who was standing outside the latrine, reported that he heard the sound of paper being torn. He then began to push and kick at the latrine door; his force caused the hook to give way and the door to open. Inside he found the appellant seated in a reclined position, having already removed his pajamas. Shib Sankar dragged the appellant out of the latrine while he was still naked and observed that the appellant had his left hand placed in the pocket of his shirt. From that pocket the witnesses forcibly removed a sum of money consisting of six hundred-rupee notes and twenty ten-rupee notes. After this, three written notes identified as Exhibits 1, 2 and 5 were said to have been penned by the appellant.

The evidence indicates that any alleged theft must have taken place before the appellant entered the latrine. Marcus Bari, a mail-van peon, testified that the appellant entered the latrine, emerged, and then went back inside again. However, this version of events was not supported by either Shib Sankar or Basudev. Both of those witnesses affirmed that the appellant entered the latrine at Bamra station or shortly after the train had left that station and then remained inside until Shib Sankar forced the door open. Consequently, the portion of Marcus Bari’s testimony that suggests the appellant left the latrine and re-entered can be disregarded.

According to the testimony, the appellant entered the latrine carrying the insured cover. The loss of that cover was discovered before the train reached Godpos, or at the latest somewhere between Godpos and Sonakhan. It is therefore inexplicable why Shib Sankar did not call for the police, the guard, or the station master when the train stopped at Sonakhan, a stop that Marcus Bari confirmed the train certainly made. The claim that Shib Sankar heard the tearing of paper from outside the latrine while the train was still moving is difficult to accept. Even if one were to assume the appellant had stolen the insured cover and entered the latrine at or shortly after Bamra, it is hard to believe that he would wait until the train had passed Sonakhan—approximately seventeen miles away—and only then tear open the cover when the train reached the distant signal of Rajgangpur. This inconsistency regarding the time of the appellant’s entry into the latrine, the improbability of hearing a tearing sound while the train was in motion, and the conflicting timing of when the sound was heard all cast serious doubt on the prosecution’s version of events, undermine the credibility of the witnesses supporting that version, and led the assessors and the trial court to draw their own inferences and give the appellant the benefit of doubt.

In this appeal the Court observed that the High Court completely ignored an important aspect of the case and consequently failed to give proper consideration to the findings of the trial Court, thereby contravening the principles set out in the earlier authorities. The assessors had placed great emphasis on the improbability that a person who had stolen the insured cover would discard notes worth Rs 2,200 while retaining only Rs 800 in his pocket. It is understandable that a thief might discard the entire loot to avoid detection, but it is difficult to comprehend why he would keep a small portion that, if discovered, would readily prove his guilt. The assessors highlighted this obvious improbability in their reasons for holding the appellant not guilty of either charge, and the learned Sessions Judge also regarded this point as strongly supporting the appellant. Nevertheless, the High Court set this observation aside, holding that although the sender, identified as Rameshwar P. W. 8, swore he had sent Rs 3,000, his testimony was not conclusive to prove that the cover actually contained twenty-eight one-hundred-rupee notes and twenty ten-rupee notes. The High Court further failed to consider the receipt for the insured cover (Exhibit 8, N. P., 1955 S.C./746, 75 & 76a), which recorded that the packet weighed only forty-one rates, nor the testimony of K. C. Sen Gupta, Superintendent of R. M. S. P. W. 7, who verified that the weight corresponded precisely with the presence of twenty-eight one-hundred-rupee notes and twenty ten-rupee notes as entered by the forwarding post office. In light of this evidence, the High Court was not justified in speculating that the entire Rs 3,000 might not have been sent in the cover. The record makes it unavoidable to conclude that the cover indeed contained Rs 3,000 as stated by Rameshwar. Consequently, it becomes extremely unlikely that the appellant could have thrown away notes worth Rs 2,200 while keeping only Rs 800. Moreover, the High Court overlooked the fact that neither the mail van nor the individuals Shib Shankar, Basudev, or Marcus Bari were ever searched by the police. Although departmental rules required any person leaving the van to be searched, Marcus Bari admitted to exiting the van without undergoing a search, ostensibly to look for the insured cover that the appellant had allegedly thrown near the distant signal at Rajgangpur station. It is noteworthy that the very next day the van peon, Marcus Bari (P. W. 4), was found gambling and was discovered in possession of a one-hundred-rupee note, further casting doubt on the prosecution’s case.

The one-hundred-rupee note was found in his possession. The High Court completely overlooked these matters, and those oversights create considerable doubt about the strength of the prosecution’s case. After reviewing the entire record, it appears that the High Court failed to apply or follow the principles that have been clearly laid down in the cases referred to above. The judgment of the High Court seems to have reversed the trial Court’s decision without giving proper notice to, or sufficient weight to, the inherent weaknesses in the prosecution case, several of which were identified earlier, nor to the evidence that supports those identified weaknesses. It further appears that the High Court’s reversal was largely influenced by suspicion rather than by an objective assessment of the evidence. In our view, the High Court was not justified, in an appeal against an order of acquittal, in discarding the trial Court’s view, which was by no means patently absurd or unreasonable, merely because the High Court, after an elaborate and laborious reasoning process, thought it might be possible to adopt a different interpretation of the evidence. This method of reasoning is, in our opinion, wholly contrary to the salutary principles previously mentioned. Consequently, we find that the High Court erred in setting aside the order of acquittal under the circumstances of this case. We see no compelling, nor even substantial, reason to overturn the trial Court’s decision. Accordingly, we reverse the High Court’s decision, grant the benefit of the doubt to the appellant, acquit him, and direct that his bail bond be discharged.