STATE OF ORISSA Vs. KEBALANANDA PATNAIK

JUDGEMENT

(1.) THIS appeal is directed against an order of the Sub -divisional Magistrate Khurda acquitting the appellant of a charge under Section 381, Indian Penal Code. The appellant was employed as a porter in the R. M. S. Office, Khurda Road and the charge against him was that between 6 P.M. of 17 -8 -63 and 7 A.M. of 18 -8 -63 he cut a cash bag which was in his possession and removed therefrom currency note worth Rs. 2,000.

(2.) ON August 16th, 1963. P.W. 10 the Post Master of Sakhigopal post office sent an indent to the Puri head office for Rs. 2,000 in cash and stamp worth Rs. 244.45 p. Accordingly on 17 -8 -63 an amount of Rs. 2,000/ -, all in currency notes of the denomination of Rs. 10/ - each was put inside a cash bag (M.O. 1). The bag was closed at its mouth and was duly sealed. In another bag stamps worth Rs. 244.45 were placed and this bag was also duly sealed. Both these bags were put inside a red bag called an Account bag (M.O. IV) and this also was sealed at its mouth. This is deposed to by P.W. 1, the Post Master of Head Post Office at Puri, and P.Ws. 2 and 3, two other employees of the post office. P.W. 4, the Mail Clerk of the Puri Head Post Office kept M.O. IV along with other bags in a transit bag (M.O. V) which was duly sealed and handed over to the Mail Agent (P.W. 5), who carried it in the Mail Bus to the Puri Railway Station on the evening of 17 -8 -83 and made it over to R.M. S. Sorter (P.W. 6), who received the same after satisfying himself that the seal on M.O. V was intact. The bag was carried in Down Puri Howrah Express Train that evening and M.O. V along with some other bags were handed over to P.W. 12, the R.M.S. Sorter at Khurda Road. P.W. 12 delivered these bags to P.W. 14, the Head Sorter who was on duty at the R. M. S, office from 6 P.M. on 17 -9 -63 upto 7 A.M. on 18 -8 -63. Ext. 15 is the duty chart of the R.M.S. Khurda which shows the persona who were working on the particular set along with P.W. 14 on 17 -8 -63. The appellant Kebalananda Patnaik was the porter No. 1 of that shift P.W. 14 has deposed that be along with the appellant had examined the seals of the bags including M.O.V and being satisfied that they were in order they were kept in the strong room of the R.M.S. Office. Obviously the transit bag (M.O. V) which besides the Account bag (M.O. IV) contained several other articles of lesser importance was opened by P.W. 14 because he says that on examination he was satisfied that the Account bag (M.O. IV) was intact M.O. IV was kept in the strong room. According to P.W. 14 although 5 members of the clerical staff and 4 porters constituted the shift of which he was the head, the persons who had access to the strong room were only himself and the appellant. Throughout that night the strong room was kept open as mail bags were to be received from and despatched to various trains that passed through Khurda that night. P.W. 14 had his seat near the entrance of the strong room with his back towards the door. It is clean from his evidence that the appellants had no occasion to remain alone in the strong room at any time that night, because P.W. 14 has stated that even when he had to go out to ease himself he used to lock up the strong roam. The duty of the members of the shift came to an end at 7 A.M. of 18 -8 -63 when P.W. 14 locked the strong room and made over charge to his successor P.W. 11. The appellant also left with him at 7 A.M. on the 18th. P.W. 13, who is another bead sorter remained on duty from 7 A.M, to 6 P.M. on 18 -8 -63. He says that at 7 A.M. that day he received a sealed bag containing the key of the strong room room P.W. 14. At 6 P.M. that day he made over charge to head sorter, P.W. 13 who remained in charge from 6 P.M. of 18 -9 -63 till morning of 19 -8 -63 and it is he who that morning prepared the mail list Ex. 13 and delivered the mail bags in the 8 Up Howrah Puri Express. It may be stated here that at Khurda Road R. M. S. M.O. IV along with several other articles were put inside the mail bag M.O. VII which was duly sealed, M.O. IV was received at Khurda road on the night of 17 -8 -63. According to Bales these Account bags are not despatched to the destinations on holidays and as 18th August happened to be a Sunday M.O. IV had to be detained at the Khurda Koad R. M. S. throughout 18 -8 -63 and it was despatched only on the next day. The prosecution has not let in any evidence to show when exactly M.O. IV was placed inside the transit bag M.O. VII. At any rate there is no evidence to show that it is the appellant who 3rd it. M.O. VII was carried is 8 up Howrah -Puri Express on the 19th by R.M.S. Sorter P.W. 7 who delivered the same at Sakhigopal to the mail peon P.W. 8, who found the bag intact. P.W. 8 got the bags carried from the Railway Station to the Sakhigopal Post Office where he handed over the same to mail clerk P.W. 9 at 9.20 A.M. P.W. 9 opened M.O. VII in the presence of Post Master, (P.W. 10) and it was discovered that M.O. IV which was inside M.O. VII had been tampered. Hence M.O. IV was opened is the presence of some bhadralogs including P.Ws. 19 and 20 who were the present in the past office and the cash bag M.O. 1 was brought out. It was found that although it a look and seal were intact, it had a cut on it and the cash Rs. 2,000/ - said to have been inside it was found missing. The Police were duly informed. F. I. R. was lodged and investigation proceeded. The prosecution case is that on 23 -8 -63 the appellant made an extra judicial confession of his guilt before P.Ws. 11, 13 and 16 and that as a result of a statement made by the accused to the police while he wag in custody a sum of Rs. 1780/ - was recovered from P.W. 23 and a Kabul).

(3.) THE entire case for the prosecution therefore rests on the extra judicial confession slid to have been made by the appellant and the money alleged to have been recovered as a result of the statement made by the appellant before the Police. The appellant denied having made any such confession before P.W. 11 and 13. P.W. 11 has stated that on 23 -8 -63 at about 7.30 A.M. the accused came to his office and told him that the police were about to bring police dogs, that he had actually removed the cash, of Rs. 2,000/ - from the bag and that unless he was helped he would lose his job. P.W. 13 says that he was present with. P.W. 11 when the accused admitted having removed the cash from the bag and stated that he would return the same and unless he was assisted the police dogs would bite him. P.W. 16, the Inspector R.M. S. however gave a different version. He says that he and P.W. 11 were present in the R.M.S. office in the morning of 28 -8 -68 when the accused said "whatever has happened, I will pay the money, please withdraw the police case". Thus what P.W. 16 has stated materially differs from the version of the alleged confession as stated by P.Ws. 11 and 13, P.Ws. 11 and 13 are persons who at different times during the period from the night of 17 -8 -63 till the morning of 19 -8 -63 were in charge of the strong room and they would themselves fall in the category of suspects. Their statement therefore that the appellant categorically confessed having removed the money from the bag which varies from that of P.W. 16 only exhibits their anxiety to implicate the accused and to ward off any suspicion which may rest in them. I am therefore not prepared to believe the evidence of P.W. 11 and 18 on this point, if what P.W. 16 has stated about the alleged confession is to be accepted as true then it does not amount to a confession at all. That apart P.Ws. 11, 18 and 16 are all persons in authority in relation to the accused. The statement relating to the police dog and withdrawal of the case will go to show that the accused must have been threatened by P.Ws. 11, 13 and 16 with dire consequences if he did not make a confession and make good the loss and in this view of the mattrex section 24 of the Evidence Act stands as a bar to the admissibility of the alleged confession.