JADUNATH DAS Vs. STATE OF ORISSA

JUDGEMENT

(1.) THIS revision is directed against the judgment of the Sessions Judge, Balasore in Criminal Appeal No. 45 of 1976 maintaining the order of conviction and sentence of the accused -Petitioner order Sections 394/114. Indian Penal Code passed by the S. D.J.M. Nilgiri.

(2.) THE prosecution case is that accused -Petitioner Jadunath Das was the Secretary of the Shyamsundarpur Service Cooperative Society Ltd. (hereinafter called the Society) of which P.W. 3 was the President. One of the functions of the Society was to bring loan from the District Co -operative Central Bank (hereinafter called the Bank) and advance the money to its members for agricultural purposes. On 17 -5 -1973 the Petitioner and P.W. 3 went personally to Nilgiri Branch of the Bank and received Rs. 27,240/ - and both of them returned to the Society Office in the evening at about 7 p.m. The money was kept in an Almirah in the office of the Society. In the night, P.W. - 3 the President, the accused -Petitioner and P.W. 5 Harekrushna Mahakud, the peon of the Society, slept in the office of the Society keeping watch over the cash. At about 2 a.m. two persons having covered their face with some black materials pushed open the door and came inside the room and the accused -Petitioner handed over the cash to them. The peon of the Society (P.W. 5) identified the two persons wearing the black mask to be Sadhu Prasad Das and Kartika Chandra Das, who are brothers of the accused -Petitioner. On the next day the accused -Petitioner lodged a written report (Ext. 20) at the Nilgiri Police Station stating therein that at about 2 a.m. in the night some dacoits broke open the door and took away the entire money from the Almirah. Police took up investigation during which it was revealed that the removal of the cash from the office of the Society was a collusive act of the accused -Petitioner and his brothers. So the Petitioner, and the accused Sadhu Prasad Das and Kartik Chandra Das (since acquitted) were arrested. While the accused persons were in custody, accused Sadhu Prasad Das led the police and gave recover of Rs. 26,900/ - for different parts of their house and the same was seized by the police. The I.O. seized in all Rs. 30.025/ - from the house of the accused persons (vide Exts. 2 and 18). In consequence of the information received from the accused persons while in custody, in the night of 18/19 -5 -1973, the I.O. discovered a leather bag (M.O.V.) and a plastic Bag (M.O.I) in which the money had been kept in the Almirah of the Society. As Harekrushna Mahakud, the peon of the Society (P.W. 5), had been assaulted by the miscreants, he was sent for medical examination and was examined by the Medical Officer of Kishorepur P.H.C (P.W. 9), who found one abrasion 6" x 4" with swelling just below the left nipple. Police also seized some incriminating articles and documents in course of investigation and submitted charge -sheet against the accused persons.

(3.) MR . D.S. Nanda, learned Counsel appearing for the Petitioner, submits that the aforesaid Sadhu Prasad Das and Kartik Chandra Das, who are alleged to have committed the offences under Sections 394 and 457, Indian Penal Code, having been acquitted the accused -Petitioner cannot be convicted under Sections 394/114, Indian Penal Code; that in view of the finding of the Courts below that the accused in his capacity as the Secretary was in custody of a sum of Rs. 27,240/ - (the amount alleged to have been stolen from the Almirah of the Society) and the said amount having been made over to the police on the next day, the question of dishonest removal of the money does not arise; and that in any view of the matter, the prosecution has failed to prove the case against the accused -Petitioner.