BANSIDHAR MOHANTY Vs. ORISSA

JUDGEMENT

(1.) This is an appeal from the judgment of the High Court of judicature, Orissa, pronounced on 24-7-1951 in Government Appeal No. 5 of 1950 whereby the High Court reversed the order of acquittal passed by the Sessions Judge of Sundar Nagar - Sambalpur and convicted the appellant, a sorter employed in the Postal department, of offences under S. 381, Indian Penal Code, and S. 52, Indian Post Offices Act for having on 3-1-1949 stolen an insured cover of the face value of Rs. 3,000 from the mail van attached to 13 Down Passenger train running from Jharsugukla to Tatanagar and sentenced him to undergo rigorous imprisonment for 5 years on each count, the sentences running concurrently and to a fine of Rs. 500 and in default of payment of fine to a further term of rigorous imprisonment for a period of 6 months.

(2.) At the beginning of its judgment the High Court summarises the prosecution case as follows. The appellant Bansidhar was Head Sorter No. 7-Out-section and Shib Sankar Sahay P. W. 1 was the Head Sorter R. M. S., Northern Division No. 7 Dn. On the date of occurrence. viz, 3-1-1949, Shib Sankar P. W 1 was in charge of the mail van attached to the 13 Down. Passenger train on the Jharsuguda-Tatanagar section. Shib Sankar P. W. 1 took over charge of the mail van at Jharsuguda and travelled in it along with Basudev Chakravarty P. W 3, the second sorter, and Marcus Bari P. W. 4, the van peon. Before the train left Jharsuguda, the appellant represented to the Head Sorter Shib Sankar P. W. 1 that he wanted to travel by that train as he had misdelivered a parcel at Kulanga. The appellant, therefore, was allowed to travel in the luggage compartment attached to the mail van. After the train left Jharsuguda the appellant entered into the mail van through the intercommunicating door and started giving instructions to Basudev P. W. 3, the second sorter, who was new to his job, as to how he should sort out the letters. The appellant stood near the pigeon holes of the counter where registered letters are kept and was found unnecessarily officious. Shib Sankar P. W. 1, therefore, advised him not to disturb Basudev P .W. 3 and asked the appellant to go back into the attached luggage compartment which the appellant did. At Bamra station, however, the appellant again came into the mail van and took his stand near the counter. In spite of P. W. 1 Shib Sankar's request the appellant did not leave the mail van; but after loitering there for some time he went into the latrine. After a short interval Shib Sankar, P. W. 1 directed the second sorter Basudev P. W. 3 to check up the bags as Rajgangpur station was approaching where they had to close their first bags. The second sorter P. W. 3 checked the pigeon holes and told Shib Sankar P. W. 1 somewhere between Godpos and Sonakhan railway stations that one of the insured covers was missing. Shib Sankar P. W. 1 himself took up the checking and discovered, between Sonakhan and Rajgangpur, that an insured article (No. l0 of Sakti) was missing. Shib Sankar P. W. 1, thereupon went towards the latrine door and asked the appellant to come out. The appellant, however, did not respond but when the train was approaching the distant signal of Rajgangpur station Shib Sankar P. W. 1 heard some sound from which he gathered that some paper was being torn inside the lavatory. He, then, forced open the latrine door and pulled out the appellant. Shib Sankar P. W. 1 suspected the appellant as he was trying to conceal something, in his chest pocket and, therefore, searched him and brought out six one hundred-rupee notes and twenty ten-rupee notes from his pocket. Shib Sankar P. W. 1 wanted to report the matter to the police, but the appellant implored him not to do so and pleaded that he would take the responsibility for the loss on himself and that he might be proceeded against departmentally. The appellant accordingly wrote two chits (Exs. 1 and 2), one admitting the tearing of an insured letter and the other intended to be sent to his father. The appellant also represented that there were only Rs. 800 inside the cover and that he had thrown off the cover. The appellant, however, undertook to pay the sum of Rs. 3000, the maximum value for which insurance could be effected and handed over another chit at Rajanagpur station. This chit is marked as Ex. 5. At Rajgangpur station Shib Sankar P. W. 1 sent intimation to the Post Master of that place by a memo Ex. 3. Shib Sankar P. W. 1 also sent Marcus Bari, the van peon P. W. 4, to search the railway track up to the distant signal. It was already dark when the train reached Rajnangpur, and the van peon returned only to report that his search was unsuccessful. The A. S. I, of G. R. P. was informed of the incident at Rajgangpur station at about 7.30 P. M. and a written report (Ex. 4) was given to the A.S.I. at Koolange; and F. I. R. was prepared at the Rourkela police station (G.R.P) the same night at 8.30).

(3.) On the above facts the appellant was charged under S. 381, Indian Penal Code for having committed theft of the insured cover valued at Rs. 3,000 and he was also charged with an offence under S. 52, Indian Post Offices Act as he was an employee in the Postal department at the date when the offences were said to have been committed. The trial was held with, the assistance of four assessors who unanimously found the appellant not guilty of either of the offences. The learned Sessions Judge, in agreement with the verdict of the assessors, came to the conclusion that the prosecution case had not been sufficiently proved against and brought home to the appellant beyond all reasonable doubt and accordingly he made an order of acquittal. The Government having appealed, the High Court reversed the Sessions Judge's order of acquittal and convicted and sentenced the appellant as hereinbefore mentioned. The High Court having refused to grant a certificate of fitness for appeal to this Court, the appellant applied for and obtained from this Court special leave to appeal. The appeal has now come up for disposal before us.