State v. Radha Kishan — 1960 DIGILAW 18 (ALL)

JUDGMENT B.R. James, J. - These are three appeals by the State against the judgments and orders of acquittal passed by the Additional Sessions Judge of Bulandshahr in three Sessions Trials. Cr. A. No. 2011 of 1958 arises out of Sessions Trial No. 30 of 1957, while Cr. A. Nos. 2012 of 1958 and 2013 of 1958 arise out of Sessions Trials Nos. 28 of 1957 and 29 of 1957 respectively. The Circumstances under which they arise are as follows: 2. In April 1956, S.N. Singh (PW 16) who was then posted to Kanpur as Inspector, CID Investigation Branch, U.P. was entrusted with the investigation of a case u/s 420 IPC. In connection with the investigation of the said case he went to Bulandshahr and arrived there on the night of the 9th May 1956. Next day, he obtained orders from the District Magistrate of Bulandshahr for inspecting the postal records of the General Post Office, Bulandshahr, because the case which he was investigating related to those records. Armed with that order he went to the GPO, contacted the Post Master and inspected the record. In the course of that inspection he discovered that the Respondent to these appeals, Radha Krishan by name, was one of the three postmen who were concerned with the distribution of some of the money orders and other postal articles which formed the subject-matters of the investigation of that case. He therefore, requested the Superintend-dent of Police, Bulandshahar, on the 11th May, 1956 to give him a police force, so that he (S.N. Singh) could take the house search of those postmen, including the Respondent. The Superintend dent of Police gave the necessary order to the S.O. Kotwali and the latter deputed Masood Murtaza, S.I. (PW 2) S.P. Tyagi and Saxena to make the said searches the former being entrusted with the search of the house of the Respondent. Masood Murtaza went to the house of the Respondent in Mohalla Teliwala at about 6 a.m. on the 12th May 1956, in the company of Harpal Singh, S.I. (CW 1) and two constables. He also took with him two persons from the public, viz. Dharam Prakash and Babudeo Sharma (PW 14) to act as witnesses of the search. When Masood Murtaza reached the house of the Respondent the latter was not at home, but his father Dewan Singh was present. He also took with him two persons from the public, viz. Dharam Prakash and Babudeo Sharma (PW 14) to act as witnesses of the search. When Masood Murtaza reached the house of the Respondent the latter was not at home, but his father Dewan Singh was present. After complying with the legal formalities which precede searches, Masood Murtaza along with his party entered the house of the Respondent. In one of the rooms there they found a locked aknirah. On being asked Dewan Singh gave the key of that almirah to Masood Murtaza. The almirah was then opened in the presence of Dewan Singh and the witnesses and from inside it a number of postal articles, including five registered letters, 247 postcards and 121 envelopes were recovered. All these letters were undelivered letters. After getting a recovery list of the five registered letters, the 247 postcards and the 121 envelopes duly prepared and attested, they were put in a bag and sealed, while another and a more exhaustive list of the remaining postal articles which were also recovered in that very search Was-likewise prepared and attested. After completing the search Masood Murtaza returned to PS Kotwali Bulandshahr and on reaching there he wrote a report about it in the general Diary at 10 O'clock the same morning. The same night at 10-45 O'clock a First information report was dictated by him to Lajja Ram, the Head Clerk of that Police Station. 3. Meanwhile S.N. Inspector CID, came to learn from Dhani Ram, one of the other two postmen whose houses were similarly searched, that the Respondent had gone to Delhi. He therefore went in search of him to Delhi in the company of Dhani Ram. The Respondent, however, could not be found there and S.N. Singh and Dhani Ram returned to Bulandshahar the same afternoon at about 4-30 p.m. At 6 p.m. S.N. Singh came to learn on the telephone about the recovery of the registered letters, postcards, envelopes and other articles from the house of the Respondent. He thereupon directed Masood Murtaza to prepare detailed lists of all the articles which had been put in the sealed bundle in the presence of two witnesses. He thereupon directed Masood Murtaza to prepare detailed lists of all the articles which had been put in the sealed bundle in the presence of two witnesses. Masood Murtaza then sent for two public witnesses, Raj Kishore (PW 5) arid Sarfaraz Ahmad Khan and in their presence the sealed bundle was opened and a detailed his of the registered letters, envelopes and postcards which were inside it was prepared and attested by those witnesses. Five registered letters purporting to bear Nos. 838, 123, 129, 124 and 155 were amongst the said articles. Of these registered letters No. 424 and 155 form the subject-matter of the trial which has resulted in Cr. A. No. 2011 of 1958, while registered letter No. 838 forms the subject-matter of the trial which has given rise to Cr. A. No. 2012 of 1958 and registered letters Nos. 23 (123) and 29 (129) form the subject-matter of the trial which has resulted in Cr. A. No. 2013 of 1958. One of the charges common to all these three appeals is u/s 52 of the Indian Post Office Act--hereinafter to be referred to as the Act--though in Cr. A. Nos. 2012 and 2013, there are charges under Sections 467 and 471 IPC as well. The acquittal of the Respondent of the latter two charges does not concern us in these appeals as no grounds challenging the correctness thereof have been taken in the Memoranda of Appeal relating thereto. The only point, therefore, which falls for our determination in these appeals is the one concerning the correctness of the acquittal of the Respondent of the charge u/s 52 of the Act. 4. The Respondent denied the prosecution case and stated that he had been falsely implicated as a result of party factions. He totally denied the recovery of the said postal articles from his house and in the alternative pleaded that even if they were recovered from his house they could not be held to have been recovered from his exclusive and conscious possession. In support of his defence the Respondent examined five witnesses. * * * 5. The learned Sessions Judge, on a consideration of the evidence led by the prosecution and the Respondent, held that the recovery of the said five registered envelopes from the possession of the Respondent had been satisfactorily proved by the prosecution. In support of his defence the Respondent examined five witnesses. * * * 5. The learned Sessions Judge, on a consideration of the evidence led by the prosecution and the Respondent, held that the recovery of the said five registered envelopes from the possession of the Respondent had been satisfactorily proved by the prosecution. He however was of the opinion that the mere recovery of those envelopes could not prove the commission of the offence u/s 52 of the Act by the Respondent as those envelopes were not in the course of transmission by post, when they were stolen, secreted or concealed by him. In these appeals before us, it was strenuously contended on behalf of the State that the learned Sessions Judge had clearly misconstrued the scope and effect of Section 52 of the Act and that on a correct interpretation thereof, the guilt of the Respondent "tinder that section stood fully proved, while on behalf of the Respondent, his learned Counsel, while supporting the construction placed upon that section by the learned Sessions Judge Challenged the finding recorded by him on the question of the recovery of the said envelope from the Respondent's possession. We shall therefore proceed to consider these contentions, beginning with the contention of the learned Counsel for the State and shall assume for that purpose that the findings of the court below on the questions of recovery and possession are correct. 6. In order to appreciate the merits of the rival contentions canvassed before us it will be convenient and appropriate to refer to Section 52 of the Act at this very stage. That section runs thus: Whoever, being an officer of the Post Office, commits theft in respect of, or dishonestly misappropriates, or for any purpose whatsoever secretes, destroys or throws away, any portal article in course of transmission by post for anything contained therein, shall be punishable with imprisonment for a term which may extend to seven years and shall also be punishable whip fine. 7. 7. The expression in course of transmission is defined in Section 3 of the Act, as follows: For the purposes of this Act-- (a)a postal article shall be deemed to be in course of transmission by post from the time of its being delivered to a post office to the time of its being delivered to the addressee or of its being returned to the sender or otherwise disposed of under Chapter VII. (b) the delivery of a postal article of any description to a postman or other person authorised to receive postal articles of that description for the post shall be deemed to be a delivery to a post office; and (c) the delivery of postal article at the house or office of the addressee, or to the addressee or his servant or agent; or other person considered to be authorised to receive the article according to the usual manner of delivering postal articles to the addressee, shall be deemed to be delivery to the addressee. 8. The expression "Officer of the Post Office" is defined in Section 2(2) of the Act. According to that definition The expression "Officer of the Post Office" includes any person employed in an business of the Post Office or on behalf of the Post Office. 9. A plain reading of the aforesaid sections shows that for making out an offence u/s 52 of the Act, it is necessary for the prosecution to establish three ingredients: (1) that the person concerned was an Officer of the Post Office. (2) that he committed theft in respect, of or dishonestly misappropriated or, for any purpose whatsoever secreted, destroyed or threw away any postal article, and (3) that the said postal article or anything contained therein was in the course of transmission by post. The Word 'secrete' has not been defined in the Act. Consequently it will have to be even its ordinary dictionary meaning of 'put (object or person) into place of concealment.' 10. In these appeals before us it Was not contended on behalf of the Respondent that he was not an 'Officer of the Post Office' on the date in question and it was only half-heartedly contended that the prosecution had failed to prove that the Respondent had secreted or concealed the various postal articles--including the five registered envelopes--which were alleged to have been recovered from his possession. The finding of the court below on the first question must therefore be upheld. As for fhe question of 'secreting' or 'concealing', having regard to the fact that the registered envelopes with which we are concerned in these appeals were recovered about 8 months afterwards from a locked almirah from the house of the Respondent, there can be no manner of doubt that the Respondent was guilty of secreting or concealing them. The main controversy in the present case has revolved round the question concerning the interpretation of the second and the third ingredients of the offence mentioned above. 11. According to the learned Counsel for the Respondent, it was necessary for the prosecution to establish (1) that the secreting, destroying or throwing away of any postal article was done with a fraudulent or dishonest intention and (2) that the said dishonest secreting, destroying or throwing away of any postal article or anything contained in it was done when the said article was in the course of transmission by post. On behalf of the State, while it was conceded that the duty of proving that the secreting, destroying or throwing away of the postal article was done when that article was in the course of transmission was on the prosecution, it was contended very strongly that it was not necessary for the prosecution also to prove that the said secreting, etc, had been done with any fraudulent or dishonest intention. Having heard learned Counsel for the State and the Respondent on this point, we are of opinion that the construction contended for by the learned Counsel for the Respondent is not borne out by the language of that section. It will be noticed that when referring to 'misappropriation' the said section uses the word 'dishonestly' in connection with it, but no such qualifying word is used where the act complained of is the 'secreting, destroying or throwing away of any postal article.' On the contrary the expression used in connection with those acts, viz., 'for any purpose whatsoever' clearly shows that for the said acts, no mens rea on the part of the officer of the Post Office is necessary to be proved. We are, therefore, clearly of the view that for an act involving the secreting, destroying or throwing away of any postal article, it is not necessary for the prosecution to prove any fraudulent or dishonest intention on the part of the officer of the Post Office concerned. 12. But while Section 52 does not require the proof of any dishonest or fraudulent intention on the part of the officer of the Post Office responsible for the secreting, destroying or throwing away of any postal article, it does require the prosecution to establish that when any of the said acts was committed the said article or anything contained therein was in the course of transmission by Post. According to the definition of the expression "in the course of transmission by post" a postal article is deemed to be in the course of transmission from the time of it is delivered to a Post Office to the time of its being delivered to the addressee or of its being returned to the sender or otherwise disposed of under Chap. VII of the Act. According to the definition of the expression 'delivery to the addressee (see Section 3(c) quoted above) the delivery of a postal article at the house of the addressee or to the addressee or his servant or agent or other person considered to be authorised to receive the article according to the usual manner of delivering postal articles to the addressee, has been held to amount to delivery to the addressee. It is not the case of the Respondent that the registered envelopes in question in the three appeals had been disposed of in accordance with the provision of Chap. VII of the Act when they were recovered from his house. It is also not his case that the said registered envelopes had not been delivered to the various Post Offices for transmission to their respective addresses. The sole point, therefore, which has to be specific is whether the prosecution can be said to have succeeded in establishing that the said registered envelopes were, or must be deemed to have been, in the course of transmission when they were recovered from the possession of the Respondent. The sole point, therefore, which has to be specific is whether the prosecution can be said to have succeeded in establishing that the said registered envelopes were, or must be deemed to have been, in the course of transmission when they were recovered from the possession of the Respondent. On this point the contention of the learned Counsel for the Respondent was that as the prosecution had failed to produce the addresses of those registered envelopes to prove that they had not received the said envelopes, there was no evidence to show that the said registered envelopes were 'in the course of transmission of post' when they were recovered from his house. He, therefore contended that as the prosecution had failed to prove one of the ingredients of the offence punishable u/s 52 of the Act, the Respondent could not be convicted under that section. 13. Having heard learned Counsel for the parties on this point we find ourselves unable to hold--as the learned Counsel for the Respondent would have us do--that the omission on the part of the prosecution to produce the addresses of the registered envelopes with which we are concerned in these appeals to prove that they did not receive the registered envelopes addressed to them, is necessarily fatal to the prosecution's case. It is common place that a fact can be proved either by direct evidence or by Circumstantial evidence. If the contention of the learned Counsel for the Respondent is accepted then it will do away with an important branch of evidence on which the prosecution, like any other private litigant, is entitled to rely. The point, therefore, which has to be specific is whether on the facts found established in these appeals, it would be possible to hold that the conclusion sought to be derived from those established facts satisfies the test laid down in the definition of the word 'proved' in Section 3 of the Evidence Act. It is in the light of these observations that we shall examine the evidence led by the prosecution. * * * 14. It is in the light of these observations that we shall examine the evidence led by the prosecution. * * * 14. Finally it is to be remembered that if the finding on the question of possession is correct--a matter which we shall go into presently--then u/s 106 of the Evidence Act it was for the Respondent to prove how he came by those registered envelopes, since it was a matter which was especially within his knowledge. In this connection the observations made by a Bench of this Court in State of U.P. v. Randhir and Ors. 1959 AWR 394 to which one of us was a party may be usefully quoted. Say their Lordships: Section 101 of the Evidence Act lays down the general rule that in a criminal case the burden of proof is on the prosecution and Section 106 is certainly not intended to relieve it of that duty. On the contrary, it is designed to meet certain exceptional cases in which it would be impossible, or at any rate disproportionately difficult, for the prosecution to establish facts which are especially within the knowledge of the accused and which he could prove without difficulty or inconvenience. 15. The failure of the Respondent to give a reasonable explanation as to how he came by those envelopes is an additional circumstance which supports the prosecution case that the said envelopes were 'in the course of transmission by post' when they were recovered from the possession of the Respondent. The Respondent must accordingly be held guilty u/s 52 of the Act, provided the finding of the court below on the question of the recovery of the said registered envelopes from the possession of the Respondent is upheld. We shall, therefore, take up the consideration of that question without any further delay. 16. So far as the question of the said recovery is concerned the case of the Respondent, which has been outlined earlier in this judgment, is that the said registered envelopes and other 'postal articles as detailed in recovery list (Exs. Ka. 8 and Ka. 9) were not recovered from his House and alternatively that even if they be held, to have been recovered from his house, they cannot be held to have been recovered from his conscious and exclusive possession, so that the Respondent cannot be held guilty under any provision of law. * * * 17. Ka. 8 and Ka. 9) were not recovered from his House and alternatively that even if they be held, to have been recovered from his house, they cannot be held to have been recovered from his conscious and exclusive possession, so that the Respondent cannot be held guilty under any provision of law. * * * 17. The motive for the Respondent secreting and concealing postal articles on such a big scale may therefore very well have been a desire on his part to cause embarrassment to the Post Master as he would be the officer who would be held balme-worthy for their losses. For all these reasons, we are satisfied that the prosecution must be held to have established all the ingredients of the offence u/s 52 of the Act beyond reasonable doubt. The finding of the court below to the contrary and the order of acquittal based upon that finding are thus manifest-erroneous and must be set aside. 18. As regards the question of sentence, we are of the opinion that in view of the fact that the Respondent did not secrete or conceal the postal articles in question for any pecuniary reason, a sentence of one years RI in each of these appeals, would be sufficient to meet the ends of justice. As the offences are separate and distinct, we direct the said sentences to run consecutively. 19. The results therefore is that all these three appeals are allowed, the orders of acquittal are set aside and the Respondent is separately sentenced to one year's RI in each of these appeals--the sentences being directed to run consecutively. The Respondent is on bail. He shall surrender forthwith and serve out the sentences imposed upon him.