1. [ His lordship after setting out the facts proceeded. ] On these facts, the charge Ex. 1 was framed. The Sessions Judge agreeing with two out of the three assessors held that accused No. 1 had removed the tumar from Jeyshankar's house, with the intention of helping accused Nos. 2 find 3 to utilise it for their own benefit by removing certain papers and altering some others, He, therefore, convicted accused No. 1 of an offence under a, 381, Indian Penal Code. He convicted accused Nos. 2 and 3 under Section 881 read with Section 109; and also under SB. 466 and 193 read with Section 84 in respect of the two multilated documents Exs. 8 and 14, Punishments were awarded as stated in the judgment.
2. On July 24, 1920, accused Vallabhram made a confession (Ex. 83) before the First Class Magistrate at Bulsar. He retracted it in the Court of the committing Magistrate and maintained that attitude in the Sessions Court. Before us, however, his counsel has relied on the facts set out in that statement. The learned Advocate General, thereupon, revived his claim to rely upon it as against all the appellants. I however prefer not to take it into consideration as against accused Nos. 2 and 3.
3. On behalf of accused Nos. 2 and 3 it is contended that the tumar was not removed by them in conspiracy with accused No. 1 from Jeyshankar's house to their own vakil Govindji's house in Bulsar, as alleged, and that the story of the prosecution is entirely false. The defence led no evidence; and the voluminous evidence adduced by the prosecution was very fully and carefully discussed before us by learned counsel on both sides; it leaves no doubt as to the correctness of the findings recorded by the learned Judge that all the three accused persons were guilty of the offence of theft. On the morning of the 6th, accused Nos. 2 and 3 arrived in Pardi and met accused No. 1 (Exs. 84 and 57). At about noon, accused No. 1 obtained from Premshankar (Ex. 65) the key of Jeyshankar's house; he opened it and removed the tumar. Accused Nos. 2 and 8 engaged a tonga of Mithal Ramji (Ex, 51), and they all went to the house of the vakil, Govindji Vasanji (Ex. 24) at Bulsar, The tumar was shown to him. They returned to Pardi at about 9-80 at night and stayed in the house of accused No. I till about, 11 p.m. The evidence is discussed at length in paragraphs 10 and 11 of the judgment of the trial Judge, who says:-
From what has been stated above there is no doubt to my mind and the assessors are of the same opinion that in the morning of the 6th May, Vallabhram removed the file from the house of Joyshankar and that all the three accused Handled it before they took it to Bulsar on the evening of that day-All the three accused wore in possession of the file till it was brought back from the pleader's house at Bulsur to Pardi on the night of 6th May. On the next day, i.e., 7th May Vallabhrum was admittedly in charge of the file because he prepared a copy of the Collector's order therefrom and handed it over to the third accused pranshankar (Ex. 35) and Lalbhai (Ex.59) have stated that the three accused were seen closeted in the house of the first accused inspecting some pipers on the 7th May. This evidence seems to be correct and practically speaking Vullabhram retained charge of the file till it was return, ed to Jeyshankar on the morning of the 8th in a mutilated condition.
4. The evidence completely supports this conclusion.
5. It is, however, contended that the removal of the tumar from Jeyshankar's house does not constitute the offence of theft, because: (1) it wan removed (it is alleged) with Jeyshankar's consent, and (2) in any case, Vallabhram did not intend to take the tumar dishonestly out of the possession of its custodian.
6. On the first point, reliance is placed on the following statement made by Jeyshankar in his cross-examination: ' I admit that I told Vallabhram that if he required the key of my drawer it was in my house whose key was with my neighbour. The purpose of telling him this was that in my absence if Dave had to take away the Income-Tax papers to Surat there should be no delay.' We are not concerned with the Income-Tax papers-Now, the tumar was the property of Government, On the morning of 6th May it was in the possession of the Mamlatdar on behalf of Government, It is not suggested that he had given his consent to its removal to Bulsar. It is true, that on the morning of the 6th the Mamlatdar had entrusted it to Jeyshankar for safe custody, But the possession still continued to be the possession of the Mamlatdar. Jeyshankar had no power to authorise its removal, and accused No. 1 who has been for many yearn a karkun(sic) in the Mamlatdar's office presumably knew it. Indeed, it was because he knew it that he obtained the key from Premshankar under a false pretext. But however that may be, the removal of the tumar from Jeyshankar's house without the consent of the Mamlatdar was sufficient to satisfy the requirements of Section 378, Indian Penal Code, provided the act was done with a dishonest intention. And, in my opinion, it would have made no difference even if Jeyshankar had consented to its removal, for such consent outride the scope of his authority (see Reg. v. Hanmanta I.L.R. (1877) 1 Bom. 610 . The object of removing the tumar from Jeyshankar's house was to show it to Lallubhai Section legal adviser for enabling him to find therein materials for getting the Collector's order reversed; Jeyshankar could not-as indeed he did not-consent 4o such removal.
7. On the second point, it was contended for Vallabhram that when he removed the tumar he did not intend to take it dishonestly; the Collector's order of eviction was to be carried out on or about May 15 : accused Nos, 2 and 8 were in urgent need of copies of some of the documents; and the Mamlatdar's office being closed on the 6th, such copies could not be obtained on that day in the regular way; he therefore yielded to their entreaty to take the tumar to their vakil in order that ho might see the original order passed by the Collector. Accused Nos. 2 and 3 deny these allegations, and according to them this argument has no foundation in truth. They have, however, adopted the argument. The question then is one of intention, Now, direct evidence to prove a man's intention is seldom necessary and is not always available In this case, the evidence sufficiently establishes the following facts: (1) The tumar was intact when Vallabhram removed it from Jeyshankar's house (2) All the three accused persons handled it before they took it to Bulsar. (3) They were in possession of it till some time after it was brought back to Pardi at about 9-30 P M. on the 6th. (4) On the 7th Vallabhram was admittedly in charge of the tumar. (5) On that day the three accused persons were seen in Vallabhram's house inspecting some papers (Exs. 35 and 59). (6) On the 6th and the 7th the tumar was handled by these persons and by no one else (7) On the 8th, the tumar was handed over by Vallabhram to Jeyshankar in a mutilated condition'-one document (being Mr. Lakhia's report) was entirely missing, and at least two documents (Exs. 8 and 9) had been mutilated, the nature of the mutilation being apparent on the face of them, In my opinion, it is unnecessary for purposes of this case to try and ascertain, as the learned Judge has done, the full extent of the damage done to the tumar during the time that it was available to these three persons. It is proved beyond doubt that Mr. Lakhia's report did form part of the tumar, and that Exhibits 8 and 9 were intact, on the morning of the 6th May. The destruction of the said report, and the mutilation of Exs. 8 and 9 wore clearly intended to support the petition which Lallubhai's vakil prepared on the 8th or the 9th May and which was presented to the Commissioner on the 10th. The learned Judge has shown in paragraphs 13 and 14 of his judgment how this damage was calculated to advance the cause of Lallubhai. In these circumstances, it was for the accused to offer an explanation as to the present condition of the tumar. No doubt, it would be unreasonable to expect any explanation from accused Nos 2 and 3, for they have condemned the whole case for the prosecution as false from beginning to end. But accused No. 1 who admits the removal and his own possession of the tumar has offered no explanation as to its altered condition to the extent and within the period indicated above, I refer to his admission merely for the purpose of expecting an explanation from him. The attitude taken up by accused No. 1 on the one hand, and by accused Nos. 2 and 3 on the other is obviously embarrassing to all who have to deal with this case; I have therefore avoided all reference to Vallabhram's confessional statement, Ex, 33, in arriving at my conclusions.
8. In my opinion, the evidence clearly establishes the fact that Vallabhram removed the tumar with a dishonest intention, namely, with the intention of causing wrongful gain to Lallubhai. He mutilated or allowed accused Nos 2 and 3 to mutilate the correspondence-file with a view to enable Lallubhai to succeed in his appeal and as a result to retain possession of the land and the old well, which the Collector had called upon him to vacate, Even if his intention did not go so far, he enabled Lallubhai's advisers, including accused Nos. 2 and 3, to see and to read the tumar which contained, among others, documents which those persons could not lawfully have seen, and of which the knew they were not entitled to obtain copies (see Ex. 7, application of accused No 2).
9. For these reasons, I would confirm the conviction of Vallabhram in Appeal No. 182, under Section 381, Indian Penal Code, and of accused Nos, 2 and 3 in Appeal No. 183, under Sections 381 and 109.
10. I would, therefore, confirm the convictions of all the three accused persons, subject to the above modification in favour of accused Nos. 2 and 3. I have considered their appeal for a reduction of sentences passed upon them, The Judge has ordered Vallabhram to suffer rigorous imprisonment for two years. To of the accused Nos. 2 and 3 he has awarded rigorous imprisonment for two years in respect of each of the three offences -the sentences to run concurrently; there is also a fine of 'Rs. 500. In my opinion the reasons given by the learned Judge for awarding a deterrent punishment are sound. The offence is both serious and difficult to detect; and the case does not call for our interference.
11. [ His lordship first set out the facts in the case and proceeded:] Accused No. 1 Vallabhram agreed to the proposal of accused Nos 2 and 3 to take the papers to their pleader at Bulsar, and for that purpose some time in the afternoon of 6th May he got the key of Jeyshankar's house from Premshankar on a false pretext and removed the correspondence. He then took it in a tonga with the two other accused to the house of their pleader Govindji at Bulsar and left it with the pleader and accused Nos. 2 and 3, or at any rate with accused Nos. 2 and 3, while he went into the town. He got back possession of it afterwards either at the pleader's house or in the tonga, and put the papers back in Jeyshankar's house after his return. The first question to be considered on the charge of theft is whether his removal of the correspondence was without Jeyshankar's consent within the meaning of the definition of theft in Section 878, Indian Penal Code. It is clear that Jeyshankar' was in proper possession of the correspondence as land correspondence clerk and chitnisi karkun, That is shown by the evidence of the Aval Karkun at page 21 of the paper book, corroborated by his complaint Ext. 12 at page 43, and the evidence of the Mamlatdar at page 144 The latter's evidence also shows that Jeyshankar had permission to keep the papers temporarily in his house, and that the Mamlatdar had given instructions that the papers should be carefully preserved in view of the likelihood of civil litigation regarding the Collector's order for evicting Lullubbai, The accused Vallabhram had no right to have possession of the correspondence except when he required it for the purpose of giving copies; or when he was required to do Jeyshankar's work in the latter's absence under the office order at page 71 of the paper book. This is sufficiently proved by the evidence of the Aval Karkun at page 29. The evidence shows that Vallabhram could not legitimately have the papers on the 6th May for the purpose of giving copies, as that day was a holiday, and except by the special orders of the Mamlatdar or the Aval Karkun copies could not be granted on that day. The applications for copies were in fact not made till the next day.
12. Therefore, as a matter of fact, I think it is clear that Jeyshankar did not give any authority to Vallabhram to remove the correspondence for such a purpose, and that the accused Vallabhram had no reasonable ground for conceiving that he had Jeyshankar's consent, either express or implied, to his removing the correspondence for that purpose. In my opinion, therefore, the removal so far as Jeyshankar is concerned, was without Jeyshankar's consent.
13. I think, however, that, even if Jeyshankar had consented, this would not protect the accused. The correspondence, as is admitted before us, was the property of Government. The evidence shows that the file went from office to office as the correspondence proceeded. It had come to the Mamlatdar, because he had to carry out the order of the Collector for evicting Lallubhai. He was, therefore, in official possession of the correspondence on behalf of Government. The possession of Jeyshankar was merely that of a servant on account of the Mamlatdar and of Government, as mentioned in Section 27, Indian Penal Code. It was the Mamlatdar alone who could give authority for the removal of the papers away from Pardi. No doubt explanation 5 to Section 378 of the Indian Penal Code says consent may be express or implied, and may be given either by the person in possession or by any person having for that purpose authority, either express or implied. Thus Jeyshankar might hare implied authority to consent to the removal of the papers, from his house to the office by Vallabhram, or some other clerk, who could legitimately have them for the purpose of his duty. But there is nothing in the evidence to suggest that Jeyshankar had authority to consent to the removal of the papers for the purpose of having them shown to Govindji at Bulsar, Nor is it alleged that there was any such consent by the Mamlatdar, and even if it had been given, it would not bind Government. On this point I agree with the remarks made in 'Reg v. Hanmanta I. L. R(1877) . 1 Bom. 610. There it was held that the definition of 'person' in Section 11 of the Indian Penal Code was sufficiently wide to include the Government as representative of the whole community, and that a consent, which the Forest Inspector was not authorised to give, and which was given in favour of the accomplice of his breach of trust, could not be construed into the consent of Government. The accused persona in that ease were shown to have entered into a conspiracy to remove certain wood, intending thereby dishonestly to take it out of the possession of Government, without the consent of Government. The removal of the wood under those circumstances was held to be within the definition of theft in spite of the Forest Inspector's unauthorised consent to that removal. The present case is simpler, as the removal of the correspondence from Pardi was without the consent either of Government, the Mamlatdar or Jeyshankar, who was a servant in possession of it on account of Government.
14. The next and the most important question is whether Vallabhram's intention in taking the correspondence out of this possession of Jeyshankar for Government was dishonest On this point the Sessions Judge has held that his intention was dishonest, because he intended to help the second and the third accused in utilising the correspondence for their own benefit by removing some of the papers and altering others (p. 33O), I do not myself think that the evidence suffices to establish that his intention was to enable the other two accused to do this. The mere fact that the papers were tampered with does not show that accused Nos. 2 and 3 intended to remove or alter any of the papers, when they induced Vallabhram to take them to Bulsar; far less that Vallabhram knew of their intention to do so and intended to help them in that nefarious design. It obviously is improbable that he was a party to the mutilation of the correspondence, as it would be almost certain, as it actually did, to bring him into trouble, Nor does Vallabhram in his confession make any admission that supports this hypothesis, It is possible also that the conversation which the witness Mithal overheard in the tonga was really as to a protest by Vallabhram against their having taken advantage of their possession of the correspondence in this manner. Therefore, I do not hold that this intention is established against him. But it is clear that his intention was to give temporary possession of the correspondence to accused Nos. 2 and 3 and their pleader. Vallabhram himself admits this in his confession, and pleads that many other clerks did the same thing (p. 112). The question, therefore, is whether such an intention is dishonest within the meaning of Section 379, Indian Penal Code. I think that there is no doubt whatever that it is, First of all, the fact that he only meant to give a temporary possession to accused Nos. 2 and 3 and their pleader is immaterial. Section 23 and ill. (6) to 8. 378 show that u temporary keeping out of possession or giving of possession suffices to bring the case under Section 378, as ruled by this Court in Queen Empress v. Nagappa I. L. R.(1890) 15 Bom. 344. Then was there any intention of causing ' wrongful gain ' to accused Nos. 2 and 3 and their pleader Govindji Section 23 Shows that their gain of the correspondence was wrongful, if it was obtained 'by unlawful means.' The word ' unlawful ' is not defined, but may be taken to correspond with the word ' illegal,' which is defined in Section 43; and it was explained in the Report of the Indian Law Commissioners that the two terms were intended to be used in the same sense and bear the same meaning : see Gour's Penal Law of India, Vol. I, p. 292. Under Section 43 the word ' illegal ' is applicable to everything which is an offence, or which is prohibited by law, or which furnishes ground for a civil action. In the present case although there is no direct evidence on the point, a strong inference arises that accused Nos. 2 and 3 had bribed Vallabhram to show them the favour that he did in this Case. Accused Nos 2 and 3 are men of means, and there is no other apparent motive for Vallabhram's act, If that inference in correct, the means by which this temporary gain of the papers was obtained was an offence against the law relating to bribery in the Indian Penal Code But leaving that aside, it is, in my opinion, clear that the conduct of Vallabhram and accused Nos. 2 and 3 would afford ground for a civil action by Government against them, since the taking of this correspondence out of the possession of Government was, in the circumstances of the case, clearly a trespass to goods, giving Government a cause of action against all three as joint tort-feasors: of, Halsbury's Laws of England, Vol. 27, pages 487 to 489 and pages 863 to 865. As there stated, an act of trespass may be complete by unlawful taking without any conversion, and the gist of the action is the unlawful taking or removing or damaging of a personal chattel. The taking was certainly not a lawful one, because accused Nos. 2 and 3 had no right to inspect the whole correspondence, far less to have the possession of it which they obtained. They were only entitled to have copies of orders or such other documents as would come within Section 76 of the Indian Evidence Act. Reports by one Government Officer to another written in official confidence are privileged under e. 124 of the Indian Evidence Act and are not documents that an outsider has a right to inspect. Thus rule No. 86 of the Rules for the conduct of the Legal Affairs of Government says:-
86. The following important points relating to the conduct of all suits should be carefully attended to by all officers concerned, namely :....
(c) the production of documents in the possession of Government or of any Government officer whim required by the Court, or by the opposite party, should not be resisted unless for good and sufficient reasons such as ore recognised by law; but the question of the admissibility of the documents, when produced, should be carefully considered and argued, it being borne in mind that the opinions of individual officers contained in official correspondence (which is so often called for by persons engaged in litigation with Government in order to establish their case) are, as a rule, not admissible in evidence. (Bombay Government Gazette, November 15, 1923, Pt. 1 of the Notification No. 1778, dated August 31, 1923, Legal Department.
15. Again Rule No. 1? of the Government Servants Conduct Rule-3 says:-
A Government servant may not, unless generally or specially empowered by the local Government in this behalf, communicate directly or indirectly to Government servants belonging to other departments or to non-official persons, or to the Press, any document or information which has come into his possession in the course of his public duties, or has been prepared or collected by him in the course of these duties, whither from official sources or otherwise.
16. The giving of possession of the correspondence by Vallabhram to accused Nos. 2 and 3 and their pleader was clearly an improper and forbidden act, and the fact that it was improper to his knowledge is corroborated by Vallabhram's conduct in first of all getting possession of the key of Jeyshankar's house on a false pretext, and, secondly, in his avoiding entering the tonga of accused Nos. 2 and 3 at his house, as deposed to by the witness Mithal. Neither Vallabhram nor accused Nos 2 and 3 can have in good faith believed that they were justified in taking the correspondence to Bulsar for the use of themselves and their pleader there, and the case is one which is similar to that contained in illustration (m) to Section 378 of the Indian Penal Code. It could not have been their impression that they had the implied consent of Government to the use of the correspondence in this manner. Accordingly I hold that there was a dishonest intention on the part of Vallabhram, and that he is guilty of theft. I think it is also proved that accused Nos. 2 and 3 abetted him by instigating him to take the correspondence Bulsar for the purpose I have mentioned, and by intentionally aiding him, e. g., by providing the tonga to take them to Bulsar and back. I leave out of account Vallabhram's confession in considering their case, as it denies his guilt and is not a 'confession' falling under Section 30 of the Indian Evidence Act, according to the rulings in Empress v. Daji Narsu and Govinda Natha I. L. R.(1882) 6 Bom. 288 and Sankappa Rai v. Emperor I. L. R. (1908) Mad. 127 . But the other evidence against them, which has been believed, suffices to prove their instigation, aid and guilty intention in regard to the theft by Vallabhram.
17. Before concluding, I shall briefly notice some other points arising on the appeal, It was contended by Mr. Amin for appellant No. 1 that the correspondence was not in the exclusive possession of Jeyshankar, but was in the possession also of Vallabhram, inasmuch as he had access to the house with Jeyshankar's permission. This, however, over-looks the fact that Joyshankar's possession was only possession by a servant on account of Government under Section 27, and in any case it is not necessary that there should be ' exclusive possession '; for instance it has been held that there can be theft by a person Who is in joint possession of the stolen property: of. Queen Empress v. Ponnurangam I. L. R. (1887) Mad. 186 . The definition of ' possession,' in Stephen's Digest of Criminal Law, Articles o06, which was relied on by Mr. Amin, is really more applicable to the case of 'ownership,' as pointed out in Gour's Penal Law, Vol. II, p. 170-S. Then it was contended that Vallabhram had left the correspondence with the pleader, who he might justly consider to be a respectable parson, and therefore he had no dishonest intention. This contention overlooks the fact that an intention to show the correspondence to the pleader was in itself ' dishonest 'for reasons already given. Also the correspondence was in fact left with accused Nos. 2 and 3: see Govindji (p. 75) and the admission of Vallbhram himself to the same effect (p. 117). In view of Vallabhram's admission that he left the pleader's house, an admission which is corroborated by the witness Chandulal, and the fact that Govindji undoubtedly also left to attend Valliram's wedding ceremony, it is, I think, clear that he must have given the control of the correspondence to accused Nos. 2 and 3.
18. It was also contended that his subsequent conduct was in his favour on the question of dishonesty. But his conduct prior to the removal of the correspondence, e. g., in surreptitiously getting into the tonga, is really more important. The mere fact that he drew attention to some of the papers having been mutilated does not suffice to out-weigh the evidence of dishonesty. Nor does the fact that Jeyshankar did not complain about the mutilation of the papers as soon as he might have done affect the case against him. It certainly does not, in my opinion, show that Jeyshankar thought that the accused's conduct was straightforward; there is clear evidence to the contrary, and even if Jeyshankar did think so, it would not affect the proved facts.
19. Accordingly, I would confirm the conviction of appellant Vallabhram under Section 381 and of the other two under 68, 381 and 109, I also concur with my learned brother in confirming the conviction of accused Nos. 2 and 8 under Sections 466 and 193, Indian Penal code, in respect of the document Exhibit 8. Though there is no evidence of any, eye-witness that the alteration of ' 400 ' to ' 4000 ' was done by them, the proved circumstances, in my opinion, leave no reasonable doubt that they are guilty, The suggestion that it was done by some one else to bring them into trouble is clearly opposed to the plain facts, as pointed out in my learned brother's judgment. Though there is no evidence enabling the Court to say which of the two accused made the alteration, this is immaterial under Section 34, Indian Penal Code. Even if one of them did nothing but look on; while the other made the alteration, thin would not excuse the former, if the act was done ' in furtherance of the common intention '; of. the remarks of the Privy Council in Emperor v. Barendra Kumar Ghosh (1924) 27 Bom. L. R. 148 Accused Nos 2 and 8 were the persons taking the active part in the preparation of Lallubhai's appeal, and had the papers in their control. In the absence of any evidence to rebut it, the presumption is that the alteration was made by one of them iii the presence of the other, with a common intention that brings the case under Sections 198 and 466 of the Indian Penal Code,
20. I also agree that accused Nos. 2 and 8 should be given the benefit of the doubt in regard to the document Exhibit 14, and their conviction on that head of the charge reversed. This does not, however, affect the concurrent sentence of two years' rigorous imprisonment under each of the two Sections 193 and 466, which was passed for one offence under each section though there were two documents in respect of which the two accused were convicted It is unnecessary to decide whether this is correct under sub section (1) of B. 35 of the Criminal Procedure Code, as amended by Act XVIII of 1923, and B. 71, Indian Penal Code. AH the three sentences of rigorous imprisonment for two years have been ordered to run concurrently, all we need consider is whether this sentence, plus a fine of Rs. 500 is excessive. Accused No. 1 has also been sentenced to two years' rigorous imprisonment. We were asked to reduce these sentences, but I do not think there is any sufficient ground for our interference. I agree with the remarks made in para 31 of the Sessions Judge's judgment. Not only was the offence a serious one, but it is also one calling for a deterrent punishment.
21. The appeals, therefore, fail (except in regard to the document Exhibit 14). The convictions (subject to that modification) and sentences are confirmed.