Skip to content


State of Orissa Vs. Kebalananda Patnaik - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Judge
Reported in1969CriLJ1174
AppellantState of Orissa
RespondentKebalananda Patnaik
Cases ReferredBalbir Singh v. State of Punjab. Far
Excerpt:
.....because he says that on examination he was satisfied that the account bag (m. iv was kept in the strong room. 14 although 5 members of the clerical staff and 4 porters constituted the shift of which he was the head, the persons who had access to the strong room were only himself and the appellant. throughout that night the strong room was kept open as mail baga were to be received from and dispatched to various trains that passed through khurda that night. 14 had his seat near the entrance of the strong room with his back towards the door. it 13 cleat from his evidence that the appellants had no occasion to remain alone in the strong room at any time that night, because p. 14 has stated that even when he bad to out to case himself he used to lock up the strong room. 14 locked the..........currency notes worth rs. 2,000.2. on august 16th, 1968, p. w. 10 the post master of sakhigopal post office sent an indent to the puri head office for ra. 2,000 in cash and stamp worth rs. 244-45 p. accordingly on 17,8-68 an amount of rs. 2.000/-, all in currency notes of the denomination of rs. 10/. each was put inside a cash bag (m. o. 1). the bag was closed at its mouth and was duly sealed. in another bag stamps worth es. 244.45 were placed and this bag was also duly sealed. both these bags were pat inside a red bag called an account bag (m. o. iv) and this also was sealed at its mouth. this is deposed to by p. w.i, the post master of head post office at puri, and p. ws. 2 and 8, two other employees of the post office. p. w. 4, the mail clerk of the puri head post office kept m. o......
Judgment:

B.K. Patra, J.

1. This appeal is directed against an order of the Sub-divisional Magistrate Khurda acquitting the appellant of a charge under Section 381, Indian Penal Code. The appellant was employed as a porter in the R. M. S. Office, Khurda Road and the charge against him was that between 6 P. M. of 17-8-63 and 7 A. M. of 18-8-63 he cut a cash bag which was in his possession and removed therefrom currency notes worth Rs. 2,000.

2. On August 16th, 1968, P. W. 10 the Post Master of Sakhigopal post office sent an indent to the Puri head office for Ra. 2,000 in cash and stamp worth Rs. 244-45 p. Accordingly on 17,8-68 an amount of Rs. 2.000/-, all in currency notes of the denomination of Rs. 10/. each was put inside a cash bag (M. O. 1). The bag was closed at its mouth and was duly sealed. In another bag stamps worth Es. 244.45 were placed and this bag was also duly sealed. Both these bags were pat inside a red bag called an Account bag (M. O. IV) and this also was sealed at its mouth. This is deposed to by P. W.I, the Post Master of Head Post Office at Puri, and P. Ws. 2 and 8, two other employees of the post office. P. W. 4, the Mail Clerk of the Puri Head Post Office kept M. O. IV along with other baga in a transit bag (M. C. V) which was duly sealed and handed over to the Mail Agent (P. W, 5), who carried it in the Mail Bus to the Puri Railway Station on the evening of 17.8-83 and made it over to R. M. 8. Sorter (P. W. 6), who received the same after satisfying himself that the seal on M. O. V was intact. The bag was carried in Down Puri Howrah Express Train that evening and M. O. V along with some other bags were handed over to P. W. 12, the R. M. S. Sorter at Khurda Road. P. W. 12 delivered these bags to P. W. 14, the Head Sorter who was on duty at the R. M. S, office from 6 P M. on 17.9-63 upto 7 A. M. on 13.8-63. Ext. 15 is the duty chart of the R. M. S. Khurda which shows the persons who were working on the particular set along with P.W. 14 on 17-8-63. The appellant Kebalananda Patnaik was the porter No. 1 of that shift. P. W. 14 has deposed that he along with the appellant had examined the seals of the bags including M. O. V and being satisfied that they were in order they were kept in the strong room of the E. M. 8. Office. Obviously the transit bag (M. O. V) which besides the Account bag (M. O. IV) contained several other articles of lesser importance was opened by P, W. 14 because he says that on examination he was satisfied that the Account bag (M. O. IV) was intact. M. O. IV was kept in the strong room. According to P. W. 14 although 5 members of the clerical staff and 4 porters constituted the shift of which he was the head, the persons who had access to the strong room were only himself and the appellant. Throughout that night the strong room was kept open as mail baga were to be received from and dispatched to various trains that passed through Khurda that night. P. W. 14 had his seat near the entrance of the strong room with his back towards the door. It 13 cleat from his evidence that the appellants had no occasion to remain alone in the strong room at any time that night, because P. W. 14 has stated that even when he bad to out to case himself he used to lock up the strong room. The duty of the members of the shift came to an end at 7 A. M. of 18.8-68 when P. W. 14 locked the strong room and made over charge to his successor P, W. 11. The appellant also left with him at 7 A. M. on the 18th. P. W. 18, who is another head sorter remained on duty from 7 A. M. to 6 P. M. on 18-8-63. He says that at 7 A. M. that day he received a sealed bag containing the key of the strong room from P. W. 11. At 6 P. M. that day he made over charge to head sorter, P. W, 18 who remained in charge from 6 P. M. of 18-8-63 till morning of 19-8-68 and it is he who that morning prepared the mail list Ex. 18 and delivered the mail baga in the 8 Up Howrah Puri Express. It may be stated here that at Khurda Road R. M. S. H. O. IV along with several other articles were put inside the mail bag M. O. VII which was duly sealed. M. C.IV was received at Khurda road on the night of 17-8.68. According to Rules these Account bags are not dispatched to the destinations on holidays and as 18th August happened to be a Sunday M. O. IV had to be detained at the Khurda Road E. M. S. throughout 18.8-68 and it was dispatched only on the next day. The prosecution has not let in any evidence to show when exactly M. O. IV was placed inside the transit bag M. O. VII. At any rate there is no evidence to show that it is the appellant who did it. M. O. VII was carried is 8 up Howrah-Puri Express on the 19th by R. M. 8. Sortar P. W. 7 who delivered the same at Bakhigopal to the mail peon P. W. 8, who found the bag intact. P. W. 8 got the bags carried from the Railway Station to the Sakhigopal Post Office where he handed over the same to mail clerk P. W. 9 at 9.20 A- M. P. W. 9 opened M. O. VII in the presence of Post Master, (P. W. 10) and it was discovered that M. O. IV which was inside M. O. VII had been tampered. Hence M. O., IV was opened is the presence of some bhadrslojg including P. Ws. 19 and 20 who were then present in the post office and the cash bag M. O. I was brought out. It was found that although its lock and seal were intact, it had a cut on it and the cash of Rs. 2.000/- said to have been inside it was found missing. The Polios were duly informed. F. i.e. was lodged and investigation proceeded. The prosecution case is that on 23-8-63 the appellant made an extra judicial confession of his guilt before P. Ws. 11, 18 and 16 and that as a result of a statement made by the accused to the police while he was in custody a sum of Rs. 1780/. was re. covered from P. W. 23 and a Kabul).

3. Admittedly in this case nobody had seen the appellant tampering with the cash bag (M. O. I) and removing the cash there, from. There is no doubt, satisfactory evidence to show that Rs. 2.000/- in currency notes were duly placed in the bag M. O. I at the Puri Head Post Office and that M. O.1 was placed inside the Account bag (M. C. IV) which in turn was placed in transit bag (M. O. V) and handed over to the Mail Agent at Puri. There is also satisfactory evidence that M. O. V was delivered intact at the R. M. S. Khurda Road that same night. From the night of 17th till the morning of 19th M. O. IV remained in the E. M. S. strong room at Khurda Road and besides the appellant, several other persons had occasion to go to the strong room, daring the period. There is absolutely no evidence that at any time during this period the appellant had occasion to stay alone in the strong room, I am therefore satisfied that there is no evidence either direct or circumstantial to connect the appellant with the crime.

4. The entire case for the prosecution there, foreresia on the extra judicial confession said to have been made by the appellant and the money alleged to have been recovered as ft result of the statement made by the appellant before the Police. The appellant denied having made any such confession before P. Ws. 11 and 18. P. W. 11 has stated that on 23-8.63 at about 7.80 A. M. the accused came to his office and told him that the police were about to bring police dogs, that he had actually removed the cash of Rs. 2,000/- from the bag and that unless he was helped he would lose his job. P. W. 13 says that he was present with P. W. 11 when the accused admitted having removed the cash from the bag and stated that he would return the same and unless he was assisted the police dogs would bite him. P. W. 16, the Inspector R. M. 3. however gave a different version. He says that he and P. W. 11 were present in the R.M.S. office in the morning of 28-8-68 when the accused said 'whatever has happened, I will pay the money, please withdraw the police case'. Thus what P. W. 16 has stated materially differs from the version of the alleged confession as stated by P. Ws. 11 and 18. P. Ws. 11 and 18 are persons who at different times during the period from the night of 17-8-68 till the morning of 19-8.63 were in charge of the strong room and they would themselves fall in the category of suspects. Their statement therefore that the appellant categorically confessed having removed the money from the bag which varies from that of P. W. 16 only exhibits their anxiety to implicate the accused and toward off any suspicion which may rest in them. I am therefore not prepared to believe the evidence of P. W. 11 aid 18 on this point, if what P. W. 16 has stated about the alleged confession is to be accepted as true then it does not amount to a confession at all. That apart P. Ws. 11, 18 and 16 are all persons in authority in relation to the accused. The statement relating to the police dog and withdrawal of the case will go to show that the accused must have been threatened by P. Ws. 11, 18 and 16 with dire consequences if he did not make a confession and make good the loss and in this view of the matter Section 24 of the Evidence Act stands as a bar to the admissibility of the alleged confession.

5. P. W. 25, the Investigating Officer says that the accused led him to the house of P. W. 23, the nephew-in-law of the accused and asked him (P. W. 28) to produce Rs. 1,000/- which P. W. 28 produced and the same was seized. There is no evidence to show that this amount had anything to do with the amount that was missing from the bag M. O.I nor is there any evidence to show that the accused had given this amount of Rs. 1,000/. to P.W. 28. P W 2 8 on the other band says that this amount of Rs. l,000/- belonged to him which he had kept with him since a year before for the marriage of his sister and he had produced this amount before the Police on the request of the appellant. There appears to be no reason why the statement of P. W. 28 should be disbelieved. The further case of the prosecution is that out of the money alleged to have been taken by the accused from the cash bag M. O., I, he discharged a debt of E. 780/. due from him to one Eabuli and that this amounts was seized from the Kabuli by the I. 0. in the presence of P. Wa. 21 and 22. Ex. 17 is said to be the handnote dated 9.8-68 alleged to have been executed by the accused in favour of the Kabuli. The Kabuli was not examined as he was not available and the handnote Ex. 17 has not been duly proved. The accused was also not confronted with this handnote when he was examined under Section 842, Criminal P. G. If the appellant has discharged the debt of the Kabuli it is only natural that he should have got back the handnote from him, but it is not explained why the handnote was left with the Kabuli. It was argued that as only the principal amount had been paid under the handnote and the interest amount still remained due, the handnote was probably left with the Kabuli. It is difficult to believe that having paid such a huge amount of Rs. 780/- towards the principal, the accused would not have paid few more rupees towards interest in full discharge of the alleged debt, That apart there is no independent evidence to show that the accused paid Rs. 1000/. to P. W. 28 and Rs. 780/- to the Kabuli some time after 17.8.69. There is thus nothing to connect these amounts with the amount said to have been removed from the cash bag M. O. 1. In that view of the matter the recovery of Es. l,000/- from P. W. 28 amt Rs. 780/- from the Kabuli cannot in any way implicate the appellant with the crime.

6. Assuming for a moment that the appellant had made an extra judicial confession before P. Ws. 11 and 18 as alleged by them, still id view of the fact that it has been retracted by the appellant, the question is whether a conviction can solely rest on a retracted confession. Although a retracted confession if believed to be true and voluntarily made, may form the basis of conviction, the rule of practice and prudence requires that it should be corroborated by independent evidence, which however does not mean that each and every circumstance mentioned in the confession with regard to participation of the accused in the crime must be separately and independently corroborated. But it is necessary that there should be some independent evidence which would lend assurance to the truth of the confession that the accused is connected with the crime. As has already been pointed out while discussing the evidence in this case, there is no evidence either direct or circumstantial to show that the appellant is connected with the crime. He stands on the same footing, no more and no less as some of the witnesses who have deposed for the prosecution in this case.

7. This is an appeal against an order of acquittal. It is well settled that though the High Court has full power to review the evidence upon which an order of acquittal is founded, it is equally well settled that the presumption of innocence of the accused person is further reinforced by his acquittal by the trial court and the views of the trial Judge as to the credibility of the witnesses must be given proper weight and consideration. There must be substantial and compelling reasons for the appellate court to come to a conclusion different from that of the trial Judge. : 1957CriLJ481 Balbir Singh v. State of Punjab. Far from there being any compelling circumstances to set aside the order of acquittal, I find that the evidence against the appellant is so meagre that the trial court was right in arriving at the finding that the prosecution has failed to bring home the charge against the accused.

8. In the result, the appeal fails and is dismissed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //