STATE Vs. DASHRATH S O MARTILANDAPPA MALGE

JUDGEMENT

(1.) This appeal has been preferred by the State against the judgment of acquittal passed by the Special Judge, Bellary, in Spl. Case No.27/1984, dated 31/03/1987. The respondent was charged of having committed offences punishable under Ss. 409 and 201 of the Penal Code and S. 5(2) read with S.5 (1)(d) of the Prevention of Corruption Act and also u/Ss. 52 and 53 of the Post Office Act.

(2.) We may only briefly state the facts of the case since we have decided to send back the mattes to the trial Court for examination of the accused afresh u/S. 313 of the Code of Criminal Procedure, hereinafter referred to as 'the Code'. The case of the prosecution was that the respondent was a Mail Guard in the Railway Mail Service working in the Hubli Division. On the 15th of October, 1983, his duty was to guard the mail from Hubli to Guntakal and back. It appears that on that day, when the respondent was on duty between Guntakal and Hubli, the mail consisted of gold, gold jewellery as well as cash sent by various parties from Madras to Belgaum. When the mail reached Belgaum and the bags were opened it was found that though seal of the outer bag was intact, the inner bags had been tampered with and the insured articles as per the list were not in the bag. Under these circumstances, the Head Sorting Assistant PW. 10 lodged a complaint with the Police Sub-Inspector in Cantonment Police Station, Belgaum, in Crime No. 205/1983 against unknown. The case was ultimately transferred to the Railway Police Station, Hubli, on 30th of October, 1983 in Crime No.81/1983. Ultimately, the suspicion fell on the respondent. It is not necessary for us to refer to all the details of the investigation. But we may only indicate that respondent is said to have written to his Union Secretary. Ex. P. 17 in which an explanation was sought to be given that, on the relevant date some outsiders had committed the mischief. It was sought to be explained that after the miscreants had left, the respondent had found certain things under in the bags which he had kept in his bag without opening them and looking into them. Those things had been kept in a trunk in his house. The prosecution also relied upon Ex. P. 37 said to have been made before PW. 24 in which a similar explanation was sought to be given. Ultimately, some recoveries were made from the house of the respondent at Rajnal, which according to the prosecution was at the instance of the respondent himself. Later, the brother of the respondent PW23 also produced 5 gold bars Ex. P. 29 at Wadi. The various statements said to have been made by the respondent before different persons, as also the recoveries made pursuant to information given by him are some of the important circumstances upon which the prosecution relied to bring home the guilt of the accused.

(3.) Alter the prosecution closed its evidence. the accused was examined under S. 313 of the Code. On some of the important aspects of the matter. the questions framed were as follows : "Q. 12. PW 11 Raghavendra Archak, Office Assistant, R.M.S., Hubli, has stated that he received the registered letter Ex. P. 17, addressed to the Secretary, R.M.S. Cooperative Society and found that the said letter was in your handwriting and on the contents of the said letter, he suspected that there was a theft of mail in transit and so, he handed over the letter to the Head Record Officer Sri Bhaskaran. What do you say? A. " False" Q. 17. PW 22 S. D. Patil Kulkarni, Senior Post Master, Panaji, has stated that on 25- 10-1983, when he was working as Assistant Superintendent of Post Offices, Dharwad Circle, he accompanied the Assistant Post Master General in charge of investigation Sri Govindan Kutti to Rajnal village along with you on the voluntary information given by you and after going to your house you brought a trunk from your house and opened the same in the presence of panchas and from the said trunk, you took out two card board boxes containing 55 pairs of gold ear-rings and two bundles of notes containing 179 notes of Rs. 100 - denomination each and the same were seized under the panchanama, Ex. P. 35, What do you say? A. "False" Q. 18. He has further stated that on 30-10-1983 he accompanied the D.S.P., Railways, to Wadi and you led them to your brother Mahadevappa, who produced five gold bars in the Railway Rest House at Wadi and the same were seized under the panchanama, Ex. P. 29. What do you say'? A. "False" Q. 24. Further, he has stated that he showed the letter, Ex. P. 17, to you and thereafter, he and his staff went to Nagur with you and there, your uncle told them that your wife had taken away the articles to Rajnal and you told them that you would produce all the articles at Rajnal. What do you say? A. "False" Q. 25. He has also stated that at Hubli, you had already handedover the key of the trunk in which the articles were kept by you and at Rajnal, you produced the trunk and after opening the same. you took out the boxes containing the pairs of gold ear-rings and bundles of notes and the same were seized under a panchanama. What do you say? A. "False" Q. 27. Mumtaz Ahmed, the then D.S.P., Railways, has stated that on the basis of the voluntary information given by you, he visited Wadi along with PWs 22 and 24 and there, your brother Mahadev gave a statement and produced the gold ingots. M.Os. 3 and 4. and the same were seized under a panchanama. What do you say? A." False" It will appear from the questions put to the accused that several circumstances which appeared from the evidence on record and which related to even different dates have been included in one question and the explanation of the accused sought. In our view, the manner in which the accused has been questoned by the Court under S. 313 of the Code leaves much to be desired and the manner in which the accused has been examined, in our view did not afford to the accused a just and fair opportunity to explain the circumstances appearing against him. Several distinct matters have been mixed up in a single question. Some of the important circumstances appearing against the accused have not been put to him with specificity. We are therefore of the view that the case should be sent back to the Court of the Special Judge, Bellary, for examination of the accused afresh under S. 313 of the Code.