Judgment: The accused in Sessions Case No. 18 of 1961 on the file of the Additional Sessions Judge of Quilon who has been found guilty and convicted under sections 380 and 461 has filed this appeal. The case against him was that on 10th March," 1960 he committed theft of a sum of Rs. 14,000 from the iron safe of P.W. 1. One Kunjuraman deceased is the husband of P.W. 1 and they were living in Dharmakhudi house. The father of the accused died early, his mother married again and the accused was brought up by the deceased Kunjuraman and his wife P.W. 1 and he was living with them. Kunjuraman was said to be a wealthy man and was running a bus service. The accused was employed as a clerk in the Bus Service. Kunjuraman died suddenly on 13th January, 1960. After his death his son-in-law P.W. 4 who is a Government servant entered on leave and took up the management of the bus service. P.W. 2 is his wife. It is the prosecution case that on 20th January, 1960 the accused opened the iron safe in the presence of P.Ws. 1 and 2 and it was found to contain Rs. 21,000 in currency notes, one sovereign and a diary. A sum of Rs. 6,000 was taken out separately, bundled and kept in the safe for the purpose of meeting the ceremonies in connection with Kunjuraman’s death. Out of this Rs. 4,000 was spent and the balance of Rs. 2,000 was replaced in the safe. On 3rd March, 1960 P.W. 1 took Rs. 3,000 from the safe for certain repairs to the buses and for payment of tax. On 17th March, 1960 there was auction sale of toddy shops in the Quilon district P.W. 1 wanted to take part in it and therefore on the night of 16th March, 1960 it is stated she opened the safe and to her utter dismay found the entire cash missing. She reported the matter to P.Ws. 2 and 4. The key for opening the safe used to be kept in an almirah. The lock of the almirah was found tampered with. The same night they went to their Advocate P.W. 10 and under instructions from him a complaint was filed by P.W. 1 at the Quilon East Police Station the next day. 2 and 4. The key for opening the safe used to be kept in an almirah. The lock of the almirah was found tampered with. The same night they went to their Advocate P.W. 10 and under instructions from him a complaint was filed by P.W. 1 at the Quilon East Police Station the next day. P.W.12, the Sub-Inspector of Police registered a case and took up investigation. P.W. 13 the Circle Inspector of Police also proceeded to the house. A scene mahazar Exhibit P-2 was prepared. P.W. 1 produced Exhibit P-4 an account book maintained of the amounts in the safe. It was taken into custody under a mahazar Exhibit P-3. The accused was arrested at about 11-30 a.m. and on information furnished by him a sum of Rs. 11,660 along with some other articles were recovered from his box kept in the V.M.S. Bus Office and it was taken into custody under a mahazar Exhibit P-5. The next day P. W. 13 recovered from the house of P.W. 11 a relation of the accused another sum of Rs. 4,280 kept in a table in one of the rooms. The accused when questioned denied commission of the offence. He denied that the safe was opened by him on 20th January, 1960 as alleged. He admitted recovery of moneys from the V. M. S. Office and also from the house of P.W. 11, but claimed the money as his. He alleged enmity with P.W. 14 the son-in-law and according to him a false case had been foisted on him. He also stated that Kunjuraman was in financial difficulties and could not have had any money with him. The question for decision is whether the prosecution has succeeded in establishing that the accused did commit theft of currency notes from P.W. 1’s safe. There are no eye-witnesses and the whole case depends on circumstantial evidence. To justify an inference of guilt from circumstantial evidence the inculpatory facts must be incompatible with the innocence of the accused and must be incapable of explanation upon any reasonable hypothesis other than that of his guilt. There are no eye-witnesses and the whole case depends on circumstantial evidence. To justify an inference of guilt from circumstantial evidence the inculpatory facts must be incompatible with the innocence of the accused and must be incapable of explanation upon any reasonable hypothesis other than that of his guilt. Circumstantial evidence in order to furnish a basis for conviction in a criminal case requires a high degree of probability, that is to say, sufficiently high that a prudent man considering all the facts and realising that the life and liberty of the accused depend upon the decision feels justified in holding that the accused committed the crime. It must, in other words, be consistent and consistent only with the guilt of the accused. If any rational explanation is possible then there is an element of doubt of which the accused must be given the benefit. To make out an offence the first essential thing that the prosecution has to prove is that there was money in the safe which could have been stolen. For this the prosecution relies on the oral evidence of P.Ws. 1 and 2 and on the account book Exhibit P-4. The defence has referred me to various entries in the account book to show that it could not have been a book kept in the ordinary and regular course of business and that it would have been got up for the purpose of propping up the case and that no reliance could be placed on the book to find that there was money in the safe. According to P.W. 1 when the safe was opened on 20th January, 1960 money was counted and it was found that there was an amount of Rs. 21,000 in the safe. The corresponding Malayalam date is 6th Makaram 1135. The account book shows that on 6th Makaram, there was a cash of Rs. 21,800 and P.W. 9 the accountant also speaks to this. On 10th Vrichikam, 1135 there is an entry of receipt of Rs. 4,000 from one Thankappan, who is admitted to be P.W. 4, but P.W. 4 says that he had not advanced Rs. 4,000. P.W. 9, the accountant says that the account book does not disclose Rs. 4,000 as having been paid back to Thankappan. On 4th Makaram corresponding to 18th January, 1960 there is an entry of receipt of Rs. 800 from the V.M.S. Office. 4,000. P.W. 9, the accountant says that the account book does not disclose Rs. 4,000 as having been paid back to Thankappan. On 4th Makaram corresponding to 18th January, 1960 there is an entry of receipt of Rs. 800 from the V.M.S. Office. Exhibit P-7 is the account book of V.M.S. Office, and that book shows that there was no money which could have been paid over. There is no entry of any such payment in Exhibit P-7 and P.W. 9 has stated that any payment from the V.M.S. Office to the proprietor will be entered in Exhibit P-7. On 20th Kumbham 1135 corresponding to 3rd March, 1960, Exhibit P-4 shows a payment of Rs. 3,000 to the V.M.S. Company, but no such payment is seen entered in the company’s account book Exhibit P-7 and P.W. 9 has no explanation for the omission. Exhibit P-7 shows that a sum of Rs. 800 was paid to the propreitor’s house on 24th January, 1960, but there is no corresponding entry in Exhibit P-4. P.W. 1 has admitted that Rs. 6,000 was taken from the safe and after expending Rs. 4,000 for funeral expenses Rs. 2,000 was put back in the safe. Both the entries are not found entered in Exhibit P-4. P.W. 1 has further deposed that after the death of her husband Rs. 800 was taken from P.W. 4 for meeting the expenses and the . amount has not been repaid, but entry Exhibit P-4 (n) shows that Rs. 800 is paid back to P.W. 4. On a consideration of these infirmities the learned Sessions Judge himself was of opinion that the evidentiary value of Exhibit P-4 is not great and that unless there is other independent evidence to show that there was money with Kunjuraman at the time of his death it will not be proper to come to a conclusion that there was money in the safe on the basis of the account book Exhibit P-4 alone. The learned Judge has placed some importance on the evidence of P.W. 5, who has deposed that on 14th October, 1959 he had purchased the car of the deceased Kunjuraman and having paid Rs. 12,500. P.Ws. 1 and 9 also speak to this. The accused also has admitted that the car was sold, but according to him the money was utilised for repairing buses and paying tax. 12,500. P.Ws. 1 and 9 also speak to this. The accused also has admitted that the car was sold, but according to him the money was utilised for repairing buses and paying tax. Accused has suggested that due to a strike in V. M. S. Company which lasted for about six months there was practically no income from the bus service and that was why he had to sell his car. It may or may not be true, but beyond the account book referred to earlier there is no evidence that Kunjuraman had cash with him at the time of his death. It is not for the accused to show that the money received by the sale of the car was utilised for some other purpose. The learned counsel referred me to another circumstance to show that Exhibit P-4 could not have been a genuine book and that it could not have been taken into custody by the Circle Inspector of Police on 17th March, 1960 as alleged. It is stated that no reference has been made to the existence of the account book in the first information statement. The Sub-Inspector of Police reached the house and conducted a preliminary enquiry before the Circle Inspector of Police reached the house, but at that time this account book was not produced. Later the Circle Inspector reached the house and prepared the scene mahazar Exhibit P-2 and after that the book was handed over to him and taken into custody under Exhibit P-3. The same day the accused was arrested and a sum of Rs. 11,660 was recovered from the accused’s box in the V. M. S. Office under a list Exhibit P-5. The lists were despatched to the Court and both Exhibits P-2 and P-5 are seen to have been received by the Sub-Magistrate on 18th March, 1960. D.W. 1, is the Sub-Magistrate curiously the mahazar Exhibit P-3 which is said to have been despatched to the Court along with Exhibits P-2 and P-5 is seen to have been received and initialled by the Magistrate only on 2nd April, 1960. There is no satisfactory explanation why Exhibit P-3 alone was not received and initialled by the Magistrate on 18th March, 1960 and why Exhibit P-3 was received 15 days later by the Magistrate. There is no satisfactory explanation why Exhibit P-3 alone was not received and initialled by the Magistrate on 18th March, 1960 and why Exhibit P-3 was received 15 days later by the Magistrate. There is, therefore, considerable force in the submission made by the learned counsel that Exhibit P-4 would not have been taken into custody and despatched to the Court on 17th March, 1960 as alleged by the prosecution. At any rate there is something fishy about the production of this book. The learned Judge himself has stated that in normal conditions one would have been slow to accept the prosecution version, that Exhibit P-3 was prepared on 17th March, 1960, but he proceeded to say that there are circumstances which would show that too much importance should not be placed on this aspect of the case. I am unable to agree with this conclusion. The learned Public Prosecutor relied on the fact that an independent witness P.W. 8 has attested the mahazar and has given evidence that the book was in fact produced on 17th March, 1960 and that there is no reason why he should give false evidence. The defence counsel on the other hand says that if really after the preparation of the scene mahazar the account book had been produced there is no reason why the same witnesses who had signed Exhibits P-2 and P-5 should not have attested Exhibit P-3 also and why the services of P.W. 8 had to be requisitioned and states that the fact that this mahazar Exhibit P-3 was attested by different persons would negative the case of the prosecution that Exhibit P-3 was prepared along with the other lists. If, therefore, no reliance could be placed on the account book, there remains only the interested testimony of P.Ws. 1 and 2. I am not very much impressed with their evidence. It is seen that P.W. 4 and the accused had a quarrel regarding false entries alleged to have been made by the accused in the account books. They were under the impression that the accused had abused the trust and duped Kunjuraman of large amounts of money and the accused had left them. P.W. 4 began collecting the income from the bus direct. There was thus no love lost between the accused and Kunjuraman’s family. They were under the impression that the accused had abused the trust and duped Kunjuraman of large amounts of money and the accused had left them. P.W. 4 began collecting the income from the bus direct. There was thus no love lost between the accused and Kunjuraman’s family. One should, therefore, be slow in accepting the interested testimony of these witnesses in the absence of corroboration. The prosecution case is that theft took place on the 10th March. No satisfactory proof has been adduced to show that the house was deserted leaving the accused alone to afford him sufficient opportunity to break open the almirah, take the key out of it, open the safe and remove the cash from it. All this requires time. It is unlikely that with all the inmates in the house the accused who had quarrelled and left them would have taken the risk of opening the safe and removing the cash. No proof has been adduced to show that there was any trace of the almirah being broken open. The prosecution would have it that the accused alone knew how to open the safe. The accused has denied this and there is only the evidence of P.Ws. 1 and 2 as against the statement of the accused. When Kunjuraman was alive it is unlikely that he would have taught the accused to open the safe or allowed him to open the safe. Even his wife P.W. 1 would have it that she was not told how to open the safe. The circumstantial evidence relied on by the prosecution is thus insufficient to bring home the guilt to the accused. It may be there is room for suspicion, but suspicion however strong it may be is not sufficient to fasten the guilt on the accused. Now the only thing that remains is the recovery of Rs. 11,660 from the box belonging to the accused kept in the V.M.S. Office and Rs. 4,280 from the house of P.W. 11. Admittedly about Rs. 2,000 more than the amount alleged to have been stolen have been recovered. There is no explanation for the prosecution as to how he could have come by that money. The accused has given an explanation and adduced some evidence. For a long number of years the accused was living with Kunjuraman and he had not to spend one pie for his expenses. There is no explanation for the prosecution as to how he could have come by that money. The accused has given an explanation and adduced some evidence. For a long number of years the accused was living with Kunjuraman and he had not to spend one pie for his expenses. We have the evidence of the accuseds mother that he was allowed to take the income of the property which stood in their joint names. It is, therefore, not impossible that the accused would have been able to put by some money. It is well settled that if the explanation offered by an accused person is plausible, although a Court or a jury may not be convinced of its truth, the prisoner is entitled to an acquittal. The prosecution must show the explanation to be false and in this case they have not succeeded in doing so. The law on the subject is laid down in R. v. Schama1. “If the jury thought that the explanation which has been given might reasonably be true, although they were not convinced that it was true, the prisoner was entitled to be acquitted, because the Crown would have failed to discharge the onus imposed upon it by the law of satisfying the jury beyond reasonable doubt of the guilt of the prisoner. In such case, the burden of the proof never changed. It always rested upon the prosecution.” The same principle is enunciated in Rex v. Gripberg2. To the same effect is the judgment of Bajpai, J., in Hori Lal v. Emperor3, as also Butnath Mondal v. Emperor4. Justice Somasundaram of the Madras High Court has followed these rulings in Gangaraju v. State5. The recovery of the money does not lead to the inference that the accused was associated with the crime in any way. As the learned Judge himself has observed there is no evidence to show that the currency notes lost are the very same currency notes recovered from the accused. In the absence of such connection no presumption could be drawn under section 114(a)of the Evidence Act either that the person is the thief or receiver of stolen property. In these circumstances, I am of opinion that the charges against the accused has not been substantiated. The accused is entitled to the benefit of doubt and has to be acquitted. In the result, the appeal is allowed. In these circumstances, I am of opinion that the charges against the accused has not been substantiated. The accused is entitled to the benefit of doubt and has to be acquitted. In the result, the appeal is allowed. The conviction and sentence are set aside. The money taken, into custody from the accused and produced in Court will be returned to the accused. It will be open to P.W. 1, if so advised, to establish her claim in a civil Court of competent jurisdiction and the direction made that the money be paid to the accused will be subject to the orders, if any, passed by such Court. M.C.M. ----- Appeal allowed.