( 1 ) THIS Revision Petition is instituted by the convicted accused in CC No. 573/3/1974 on the file of the Judicial Magistrate, First Class, Chitapur. The accused was tried before the learned Magistrate for an offence punishable under Sec. 409 1pc and was convicted for the said offence and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 500 and in default of payment of fine, to undergo rigorous imprisonment for 60 days. Aggrieved by the said order of conviction and sentence, the accused went up in appeal before the Sessions Judge, Gulbarga, in Criminal Appeal No. 40 of 1976: The learned Principal Sessions judge, on hearing, confirmed the conviction of the accused for the offence punishable under Sec. 409 IPC. , but, reduced the sentence to six months rigorous imprisonment and to pay a fine of Rs. 500 and in default of payment of fine, to undergo rigorous imprisonment for one month by his judgment and order dated 14-2-1977. Aggrieved by the said order, the accused has come up in revision before this Court. ( 2 ) THE case of the prosecution against the accused is that he was entrusted at Wadi Railway Station on 8-2-1973 with Rs. 2,477 on the goods side and Rs. 2,812-80 ps. on coaching side to remit the same to Secunderabad in a bag MO. 1, but, that he actually remitted only Rs. 812-80 ps. and that he misappropriated the rest of the amount. A case against the accused was registered in Crime No. 33/1973 on the complaint of PW. 1 Ramanath. Station Master at Wadi at Exhibit P-1. On completing the investigation, a charge-sheet was filed against the accused for the offence punishable under Sec. 409 IPC. ( 3 ) DURING the course of the trial, the prosecution examined 16 witnesses and the learned Magistrate examined the accused under Sec. 313 crpc to enable him to explain the circumstances appearing against him in the evidence. The accused denied having committed the offence. He did not, however, examine any witness on his behalf. ( 4 ) THE learned Magistrate, appreciating the evidence in the light of the arguments addressed before him, found the accused guilty of the offence punishable under Sec. 409 IPC and sentenced him to undergo Ri for one year and to pay a fine of Rs. He did not, however, examine any witness on his behalf. ( 4 ) THE learned Magistrate, appreciating the evidence in the light of the arguments addressed before him, found the accused guilty of the offence punishable under Sec. 409 IPC and sentenced him to undergo Ri for one year and to pay a fine of Rs. 500 and in default of payment of fine, to undergo RI for two months. Aggrieved by the said order, the accused went up in appeal before the learned Sessions Judge who confirmed the conviction while reducing the sentence as stated above. ( 5 ) NORMALLY, it is well settled that the jurisdiction of the High Court in a criminal revision application is severely restricted and as is ruled by the Supreme Court of India in the case of Duli Chand v. Delhi Administration, 1977 2 Kantlj 58 (1), this Court cannot embark upon a re-appreciation of evidence unless, there are compelling grounds to do so. ( 6 ) THE learned Advocate Sri Gunja, appearing for the Revision petitioner vehemently argued that the Courts below have committed illegality bordering on perversity in appreciating the evidence in this case and that, therefore, it is necessary for this Court to go through the evidence to examine whether the findings of the Courts below are justifiable. In particular, he invited my attention to three factors, viz. , the prosecution has failed to establish that the cash bag MO. 1 which was delivered to the custody of the Railway Guard being kept in the cash box in the Guard's room by the accused was delivered in the same condition with the seals intact at Secunderabad in the manner provided in the rules. He further contended that the prosecution failed to examine a material witness like Kondal Rao, the Traffic cash witness, who was admittedly present when the cash was checked and the Courts below failed to give the necessary importance for such an omission. He also submitted that the Courts below failed to notice the material irregularities in this case committed by the guard in the manner of delivering the cash bag at Secunderabad and the fact that the seal on the cash bag was not produced by the prosecution to establish that there was no tampering of the cash box in the transit. He also submitted that the Courts below failed to notice the material irregularities in this case committed by the guard in the manner of delivering the cash bag at Secunderabad and the fact that the seal on the cash bag was not produced by the prosecution to establish that there was no tampering of the cash box in the transit. Accordingly, he took me through the evidence in the case to establish the points made out by him. ( 7 ) THE learned High Court Govt Pleader no doubt argued supporting the findings of the Courts below.- 8 The points, therefore, that arise for my consideration in this case are :- (i) Whether the prosecution has failed to prove, on the facts of this case, that the cash box containing the money bags was delivered by the railway guard at Secunderabad with the seals intact as contemplated under the rules framed in the matter ? (i!) Whether the prosecution has established that the money bag mo. 1 entrusted by the accused to the guard at Wadi railway station was delivered to the authorities at Secunderabad with the seals intact ? (iii) Whether the Courts below have failed to give proper importance to the failure on the part of the prosecution in not producing the material witness like Kondal Rao, the Traffic cash clerk ? 1. AIR. 1975 SC 1860. 9. It is manifest that before the accused is called upon to answer the absence of money in the bag MO. 1 in which it was sent, it is necessary for the prosecution to establish that the bag MO. 1 which contained the money and which was entrusted to the guard was carried in the same condition with seals intact and delivered at Secunderabad as required, by the railway guard. It is needless for me to point out that in a criminal case, the burden of proving the guilt of the accused to the hilt is always heavy on the prosecution and if the prosecution fails to prove the same, the accused cannot be called upon to answer any charge for which he is tried. 10. It is the case of the prosecution that the accused who was the assistant Station Master, remitted through the train Rs. 2,477 collected on the goods side and Rs. 2812-80 collected on the coaching side in the leather bag MO. 1. 10. It is the case of the prosecution that the accused who was the assistant Station Master, remitted through the train Rs. 2,477 collected on the goods side and Rs. 2812-80 collected on the coaching side in the leather bag MO. 1. According to the procedure, the accused has to seal the bag after putting the money with vouchers containing the details of the notes and coins with a triangular seal and it is in evidence that that day also, the accused put the seal after putting the money in the bag and put it in the cash box in the guard's room in the presence of the guard. This is what PW. 9, Verghese, the guard has stated :- thus, there cannot be any doubt that the seal put on the leather bag at wadi which was inserted into the cash box was triangular in shape and that it had the Wadi monogram and the words 'wadi' were clearly visible. 12. If that be so, we have to next examine whether the bag MO. 1, when it was received at Secunderabad, had the same seal in tact, before the accused can be called upon to explain the absence of the contents in the bag. In this connection, it is necessary to read the evidence of PW. 6b. Rajayya, Shroff, who received the bag and who counted the cash inside. He has stated in the cross-examination in no uncertain terms thus :-" MO. 1, when it was received by me, was having the seal in round shape of railway station, Wadi. " thus the evidence makes it abudantlv clear that the bag MO. 1 did not have the triangular seal when it was received by PW. 6 Rajaiah, who checked the cash inside. It is needless for me to point out that the burden is heavy on the prosecution to explain how this triangular seal disappeared and the round seal came to be inserted on the leather cash bag in question, viz. , MO. 1, and the prosecution has miserably failed to explain this material circumstance. That only shows that when the bag was in transit, it was opened by somebody and a different seal was put on the cash bag mo. 1 which was not triangular in shape. In fact, PW. , MO. 1, and the prosecution has miserably failed to explain this material circumstance. That only shows that when the bag was in transit, it was opened by somebody and a different seal was put on the cash bag mo. 1 which was not triangular in shape. In fact, PW. 10 T. R. Doreswamy, assistant Chief Cashier at Secunderabad has deposed that immediaiely on coming to know that there was shortage of money in the bag mo. 1, he took charge of the seal put on the leather bag as also other bags this is what he has stated : " I took the charge of the seal and the leather bag No. 2 and kept them under my possession to be produced before the Committee of the Officer to hold a Departmental enquiry. I see a seal which was on the said leather bag. It is marked as MONo. 2 which was taken by me. I produced the MONo. 2 scal of cash bag before the Committee of Officer. I identify the MO. 1, the leather bag of railway station, wadi, which was the subject matter of all these proceedings. " subsequently, the Investigation Officer took charge of the seal and he sent it for examination to the Chemical Examiner along with the other three types of seals available at Wadi railway station. The Chemical examiner's report, Exhibit P-12, merely states :-~ " The letters visible in the article No. 1 are found same as thai of specimen seals. "it is true that under Sec. 293 Crpc. , the report of the Chemical Examiner can be admitted into evidence. But, in the instant case, though it is the chemical Examiner who has given the report at Ext. P-12, it is obvious that it does not pertain to his field of expertise. He is speaking about the letters and their similarities. That is properly the function of a Handwriting expert and not of the Chemical Examiner. Therefore, merely because the Chemical Examiner says it, it does not become expert opinion. Hence, it becomes inadmissible in evidence. It may be pointed out that the Chemical Examiner has not referred to any chemical tests to arrive at his conclusion. He has given no reasons to show as to how he arrived at his opinion. Therefore, merely because the Chemical Examiner says it, it does not become expert opinion. Hence, it becomes inadmissible in evidence. It may be pointed out that the Chemical Examiner has not referred to any chemical tests to arrive at his conclusion. He has given no reasons to show as to how he arrived at his opinion. That being so, I hold that the opinion of the Chemical examiner given at Exhibit P-12 shall be eschewed from evidence. 12a. Even assuming that the same should be admitted into evidence the chemical examiner has not stated that Art. No. 1 was a triangular seal. He has not even stated what letters were visible. All that he stated is that the letters visible in Art. No. 1 are found same as these is specimen seals. It does not, in any way, help the prosecution to establish that the seal MO. 2 m question was triangular in shape. These seals were procured by me and on examining the same viz. , MO. 2 it is apparent to the naked eye that the seal is entirely smudged. It is large and round in shape. The only letter visible is 'c'. That makes it abundantly clear that that is not the seal which was found on the leather bag MO. 1 when it was received by the guard PW. 9. It may be recalled that PW. 9 has clearly stated that the seal was triangular in shape and the letters visible were 'wadi' in the centre of the seal. But, in the present seal MO. 2, the words 'wadi' are not at all visible and the shape is not triangular. That being so, I have no hesitation to hold that the seal MO. 2 was not the seal which was originally affixed to the leather bag when it was inserted into the cash bag at wadi on 8-2-1973 by the accused the Assistant Station Master. That circumstance alone without more is sufficient to raise a reasonable doubt in a prudent mind that the seal of the leather bag was tampered with and that somebody had opened the leather bag before it was made over to the authorities at Secunderabad and a different seal was put on it. If that is so, it is obvious that the accused cannot be called upon to answer the charge for the missing money in the cash bag MO. 1. If that is so, it is obvious that the accused cannot be called upon to answer the charge for the missing money in the cash bag MO. 1. The Courts below have not at all appreciated this aspect which goes to the root of the matter the learned Sessions Judge taking the point in a light-hearted way has observed thus :" The little evidence of PW. 10 that MO. 2 was the seal which he found and that he took over the same to his possession ensures the truth of the prosecution case that MO. 1 bag was having the seal intact as per MO. 2. I wish to point out that these letters could not have been reproduced by any chance in the counter. The letters are undisturbed even today. Therefore, the evidence of PWs. 2, 4 and 6 regarding the seal on MO. 1 being intact will have to be accepted. "this makes no meaning. The seal, as it was found on MO. 1, was recovered by pw. 10 and according to him, he preserved it and made it over to the Investigating Officer, later. But, as discussed by me above, this seal MO. 2 does not contain the original letters and the learned Sessions judge is entirely wrong in his observation that "the letters are undisturbed even today. " It is thus clear that the learned Sessions Judge has not at all applied his mind to this crucial aspect of the case. 13. Adverting to the other aspect, viz. , the seal found on the cash bag to show that the seal was not tampered with in the transit, there is practically no evidence. PW-7 Y. R. Prasad Rao, the Asst Sub-Inspector, rpf. , Secunderabad, has deposed thus : " On 9-2-1973, I was working as RPF Head Rakshak in the strong room of railway Secunderabad. The iron safe came to strong room on 9-2-73 at about 12 noon. The said iron cash safe was opened in the presence of P. D. Mahajan, Mallayya, Chandrashekhar, and Rahman and other two hamals. "in the cross-examination he has stated :" I cannot remember of which railway station the seal was on the said iron cash safe. But, usually, the seal of the last railway station of the line will be appearing on the said cash iron safe. "in the cross-examination he has stated :" I cannot remember of which railway station the seal was on the said iron cash safe. But, usually, the seal of the last railway station of the line will be appearing on the said cash iron safe. Probably, the seal of Station Begampalli wasi appearing on the said iron safe. The scal will be preserved in the cash office. I cannot say the names of the railway stations of which the seals were on the 12 leather bags. I cannot say what was the shape of the seal on MO. 1. "thus, his evidence makes it clear that the seal on the cash box would be preserved in the cash office. Strangely enough, that seal is not forthcoming in this case in the evidence at all. It was the duty of the prosecution to produce that seal and get it marked in evidence to ensure that the seal of the cash box was not tampered with in the transit. The prosecution has not done so and the Courts below have entirely missed this point in appreciating the evidence. 14. It may be recalled in this context that the guard PW. 9 in his evidence has stated that the last leather bag was inserted in the cash safe that day at Godamgudda railway station and that train 348 Parli to Secunderabad was ahead of his train so that that train collected the leather bags from Vikarabad onwards. He has further stated : " After reaching Hyderabad at Nampalli railway station, I handed over the said cash iron safe to the parcel office to a clerk. " it may at once be observed that the guard has not followed the salutary rules of safeguard framed in this behalf by the railway authorities. According to rules, he cannot hand over the iron box to a parcel clerk at all. It has to be taken and handed over at the cash office under an escort by the railway guard at Secunderabad and he is not expected to hand over the cash box to any other authorities in the meanwhile. But, in this case, first it was handed over to another railway and thereafter it was actually made over to a parcel clerk in violation of the rules framed for safety in this behalf. But, in this case, first it was handed over to another railway and thereafter it was actually made over to a parcel clerk in violation of the rules framed for safety in this behalf. This assumes importance in view of the fact that the prosecution has failed to establish that the seal on the cash box as well as the seal put on the money bag MO. 1 were intact when the bag was received at Secunderabad. This is an unpardonable lacuna in the prosecution evidence which the Courts below have utterly failed to notice. 15. It is in that context that we have to appreciate the criticism of the learned Counsel appearing for the petitioner that the material witness viz, Kondal Rao, who was the traffic cash witness when the bag MO. 1 was opened by PW. 6 Rajayya is not examined in this case. Rule 2460 provides for traffic cash witness. The rule reads : " 2460 (a) In order to protect the interests of station staff, traffic cash witness from the Traffic (Commercial) Department will be deputed to witness all operations connected wtih the remittances, from the time the cash safes are made over to the Cashier or his representative till the cash has been counted. " thus, it is clear that the traffic cash witness is there to safeguard the interests of the remitter and he becomes a material witness in the prosecution against the remitter and in this case, the prosecution has withheld his evidence and the Courts below have simply brushed aside this aspect as of no moment which amounts to clearly an illegality committed by the courts below. On the facts of this case, an adversed inference has to be drawn against the prosecution for not - examining the material witness, viz. , Kondal Rao, the traffic cash witness, who was admittedly present when the bag was received and the cash was counted. 16. In the circumstances I have no hesitation to hold that the prosecution has miserably failed to prove that the cash bag which was re. ceived at Wadi on 8-2-1973 was delivered at Secunderabad to the Cashier in the same condition with the seals intact. That being so, it is obvious that the prosecution cannot call upon the accused to explain the missing cash. ceived at Wadi on 8-2-1973 was delivered at Secunderabad to the Cashier in the same condition with the seals intact. That being so, it is obvious that the prosecution cannot call upon the accused to explain the missing cash. It is the duty of the prosecution to plug the holes and ensure that no reasonable doubt arises on the prosecution version in a prudent mind. If, as is seen in this case, the prosecution has failed to establish that the seal on the cash box remained untampered and the seal of the cash bag mo. 1 was not tampered, it is obvious that there is every scope for the accused to argue that the cash in the bag was tampered within the transit and that he is not responsible for it. In other words, I am constrained to hold that the prosecution has failed to bring home the guilt to the accused and the accused is entitled to succeed in this Revision Petition. 17. In the result the revision petition is allowed. The accused is acquitted of the charge under Sec. 409 IPC for which he was tried. The order of the learned Magistrate convicting and sentencing him for the said offence, which is confirmed by the Sessions Judge, is hereby set aside fine, if already paid shall be refunded to the accused. --- *** --- .