Narayan Tewary vs State Of West Bengal

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

Court: Supreme Court of India

Case Number: Not extracted

Decision Date: 13 January 1954

Coram: Venkatarama Ayyar

In this case the Supreme Court recorded that the matter concerned an appeal by special leave from an order of the Calcutta High Court in Criminal Revision Case No 36 of 1952. The order that was appealed had affirmed the conviction of the appellant, who had been found guilty by the Additional Presidency Magistrate, Calcutta, under Section 406 of the Indian Penal Code. The prosecution alleged that the owner of certain jewels and saris, Ram Kishore Misra, a native of the village Nawhi in Uttar Pradesh who also conducted business in Calcutta, was approached on 18 June 1951 by the appellant and a second accused, Prayag Dutt Dubey, both also natives of Nawhi. The two men told Misra that they intended to travel to Puri and that on their return they would stay in Calcutta for a few days, requesting a letter of introduction to Misra’s brother-in-law, Bal Krishna Bajpai, who lived in Calcutta and could provide them lodging and assistance with sightseeing. Misra complied and gave them a letter, marked as Exhibit I, which also instructed Bajpai to obtain a return of certain jewels that Misra had deposited for safe custody with the firm of Ramjidas Jagannath and to forward those jewels to Misra through the appellant because they were needed for a marriage in Misra’s house. The appellant and Dubey traveled to Calcutta and met Bajpai on 21 June 1951, staying with him for two or three days. Bajpai obtained the return of the jewels from Ramjidas Jagannath and handed them to the appellant on 23 June 1951, directing him to deliver the items to Misra at Nawhi. The appellant received the jewels and saris but failed to return them to Misra. On the basis of these allegations, Bal Krishna Bajpai lodged a criminal complaint charging both the appellant and Dubey with criminal breach of trust. The magistrate ordered a search, which was carried out by the fifth police witness; while nothing was found in the appellant’s residence, a ring and a pair of silver chel churi were recovered from the second accused’s house, items that the prosecution claimed were among those entrusted to the appellant on 23 June 1951.

At trial the prosecution presented the testimony of Bal Krishna Bajpai, the first police witness, and Ram Kishore Misra, the second police witness, together with evidence from the cashier of Ramjidas Jagannath, the third police witness, who testified about the deposit of the jewels with the firm, their return to the first police witness on 23 June 1951, and the subsequent entrustment of those jewels to the appellant on the same day. A fourth police witness also attested to having been present at the moment the jewels were handed to the appellant. The appellant, in his statement, denied the authenticity of Exhibit I, denied ever traveling to Calcutta, and denied receiving the jewels and saris. He asserted that there was a factional dispute in the village and that the complaint arose from enmity. The defence called three witnesses to establish the existence of the faction and to show that the silver chel churi belonged to the second accused. After considering the entire evidence, the learned magistrate concluded that the entrustment had been proved and convicted both accused persons under Section 406 of the Indian Penal Code. Both convicts then filed a revision petition before the Calcutta High Court, Criminal Revision Case No 36 of 1952, which was heard by Justices Chakravarti and Sinha. By their order dated 8 January 1952, the High Court dismissed the revision as against the appellant but admitted it as regards the second accused.

The trial record showed that PW 4 was another witness who stated that he had been present when the articles were handed over to the appellant on the same day. In his own testimony the appellant denied the authenticity of Exhibit I, rejected any claim that he had travelled to Calcutta, and asserted that he had never received the jewels or saris that were the subject of the charge. He further alleged that a hostile faction existed in the village and that the complaint had been filed out of personal enmity. To support this defence, three witnesses were examined; they sought to demonstrate the existence of the village faction and to establish that the silver chel-churi found in the second accused’s house actually belonged to that accused. After considering the entirety of the evidence, the learned Magistrate concluded that the entrustment had been proved and convicted both the appellant and the second accused under section 406 of the Indian Penal Code. Both convicted persons then filed a revision before the Calcutta High Court (Criminal Revision Case No. 36 of 1952), which was heard by Justices Chakravarti and Sinha. By their order dated 8 January 1952, the High Court dismissed the revision as against the appellant but allowed it as against the second accused on a ground that could be taken at the hearing: the testimony of PW 3 indicated that the entrustment was made only to the appellant, and therefore the second accused could be liable only for abetment under section 406 read with section 114. The appellant and the second accused subsequently filed an application for review of that order, arguing that the Magistrate had failed to consider Exhibit A, which purportedly showed the presence of a village faction, and that the order sheet indicated that petitioner Sree Narayan had been at Bari Maitan on 19 June 1951, making it impossible for him to travel to Puri and then to Calcutta by 21 June 1951. The court held that this ground was based on a mistake, because Exhibit A actually placed the appellant at Bari Maitan on 12 June 1951 and recorded that the case was adjourned to 26 June 1951, when the appellant was again present, providing a sufficient interval for him to travel to Calcutta and receive the articles. By an order dated 5 February 1952, the Calcutta High Court judges rejected the review application. The appellant then invoked article 136(1) of the Constitution and preferred the present appeal. On behalf of the appellant it was contended that the High Court judges had not furnished any reasons for dismissing the revision, had failed to record findings on several issues, that a material discrepancy existed between the description of the chel-churi in the complaint and that in the search list, that the search had not been properly proved, and that the complaint originated from village factionalism, rendering the prosecution’s evidence interested and unreliable.

In the present appeal the appellant alleged that a faction in the village had fabricated the complaint and that the prosecution evidence was motivated and unreliable. The court found that none of these allegations was supported by any material. The record shows that the search was duly documented by the Sub-Inspector of Police, identified as PW 5, and therefore the search was established beyond doubt. It is correct that the complaint described the silver chel churi as weighing ten bharis whereas the search list recorded a weight of twenty tolas, but the trial court did not put any question to the witness on this discrepancy and, consequently, no real inconsistency could be demonstrated. The assertion that the High Court judgment failed to record findings also lacks merit, because the matter in dispute was one of fact that required an assessment of oral testimony. The learned trial magistrate examined the evidence comprehensively. He held that Exhibit I, the letter of introduction, was authentic. He concluded that two of the items recovered from the residence of the second accused were the property of Ram Kishore Misra. He further determined that the evidence did not sufficiently establish that Ram Kishore Misra was a member of an opposing faction. Conversely, the magistrate was persuaded by the testimony of witnesses PW 3 and PW 4. He also noted that the accused denied that any jewels had been deposited with the firm of Ramjidas Jagannath, and although the magistrate summoned Jagannath Prasad, the proprietor of that firm, to testify on the accused’s side, the accused eventually withdrew that summons. After considering all the material, the magistrate was satisfied that the prosecution case had been proved. The High Court correctly declined to disturb the magistrate’s findings on revision. Even at this stage, the appellant’s arguments hinged on the same assessment of oral evidence. Accordingly, the order of the High Court was not erroneous, there were no valid grounds for interference, and the appeal was dismissed.