Raghubar Dayal, J.
1. Shiv Prasad Chunilal Jain, appellant in Criminal Appeal No. 150 of 1961was accused No. 3 and Pyarelal Ishwardas Kapoor, appellant in Criminal AppealNo. 185 of 1961 was accused No. 2, at the Sessions Trial before the AdditionalSessions Judge, Greater Bombay. Along with them was a third accused,Rameshwarnath Brijmohan Shukla who was accused No. 1 at the trial.
2. As the two appeals arise from a common judgment, we would dispose of themby one judgment. The appellants would be referred to as accused No. 3 andaccused No. 2 respectively.
3. The facts leading to the conviction of the appellants are that a largequantity of iron angles was consigned early in February 1959 from Gobind Garhto Raypuram under railway receipt No. 597481. They were despatched in an openwagon bearing E.R. No. 69667. The labels of the wagon were changed at Itarsirailway station and it was diverted to Wadi Bunder under a label showing thatthe iron angles had been despatched from Baran to Wadi Bunder under railwayreceipt No. 43352 dated February 6, 1959. This wagon reached Wadi Bunder onFebruary 16, 1959. On February 17 it was unloaded by Baburao Gawade, P.W. 1 andShridhar, P.W. 14. On February 18, accused No. 1 obtained the delivery sheet ofthe bill and signed it in the name of Shri Datta. He also obtained delivery ofthe iron angles from the railway and signed the Railway Delivery Book in thename of Shri Datta. The railway authorities delivered these on the presentationof the forged receipt No. 43352 and on payment of the charges amounting to Rs.1,500/-.
4. These iron angles were then transported to the godown of the NationalTransport Company at Sewri and stored there. The entries in the book showedtheir receipt in the account of accused No. 3 and also contained a furtherentry indicating the goods to be received in the account of accused No. 2. Thelatter entry was made on the receipt of a chit, Exhibit Z8, from accused No. 1saying that the goods be entered in the name of accused No. 2. On February 24,1959 the accused No. 2 signed an application, Exhibit K, addressed to the headoffice of the National Transport Company for delivering the goods. Accused No.1 obtained the goods from the godown of that company on February 26 and March3, 1959.
5. A complaint by the original consignee about the non-receipt of the ironangles sent from Gobind Garh led to an enquiry and eventual prosecution of thethree accused.
6. Six charges were framed. The first charge was against all the accused foran offence punishable under ss. 471 and 467 read with s. 34 I.P.C. and statedthat in furtherance of their common intention to cheat the railwayadministration, accused No. 1 had fraudulently or dishonestly used the forgedrailway receipt No. 43352.
7. The second charge was framed in the alternative. Firstly it charged allthe accused for an offence under s. 467 read with s. 34 I.P.C. on account ofaccused No. 1 having forged the bill portion. In the alternative, accused No. 1was charged with the offence under s. 467 I.P.C. and the other accused Nos. 2and 3 were charged under s. 467 read with s. 109 I.P.C. for having abettedaccused No. 1 in the commission of that offence.
8. Charges Nos. 3 to 6 were similarly framed in the alternative, i.e., inthe first instance all the three accused were charged with certain offencesread with s. 34 I.P.C. while in the alternative accused No. 1 was charged ofthe specific offence and the other two accused were charged with that offenceread with s. 109 I.P.C.
9. The accused were tried by the Additional Sessions Judge, Greater Bombay,with the aid of a jury. The jury returned a unanimous verdict of guilty againstall the accused for the various offences read with s. 34 I.P.C. The verdict ofthe jury was not recorded with respect to the five alternative charges againstaccused No. 1 regarding substantive offences and against accused Nos. 2 and 3with respect to the various offences read with s. 109 I.P.C. The Sessions Judgeaccepted the verdict of the jury and convicted them of the various offencesread with s. 34 I.P.C. Their appeals to the High Court were unsuccessful andtherefore accused Nos. 2 and 3 have preferred these appeals after obtainingspecial leave from this Court.
10. The main contention for the appellants is that the learned SessionsJudge misdirected the jury with respect to the requirements of s. 34 I.P.C. Thecontention is that the various offences were actually committed by accused No.1 on February 18, that neither accused No. 2 nor accused No. 3 was present whenhe presented the forged railway receipt, did other criminal acts and tookdelivery of the iron angles and that therefore even if they had agreed withaccused No. 1 for the cheating of the railway administration by obtaining theiron angles dishonestly by presenting the forged receipt, they might haveabetted the commission of the various offences, but could not be guilty ofthose offences with the aid of s. 34 I.P.C. whose provisions, it is contended,do not apply in the circumstances of the case. It is contended that for theapplicability of s. 34 against an accused, it is necessary that that accusedhad actually participated in the commission of the crime either by doingsomething which forms part of the criminal act or by at least doing somethingwhich would indicate that he was a participant in the commission of thatcriminal act at the time it was committed. Reliance is placed on the casesreported as Barendra Kumar Ghosh v. The King Emperor L.R. 52 IndAp 40 andShreekantiah Ramayya Munipalli v. The State of Bombay : 1955CriLJ857 .
11. The learned Sessions Judge in the instant case had told the jury :
'In case you come to the conclusion that there wasa common intention in the minds of all the three accused and accused No. 1 wasacting in furtherance of that common intention, all the accused would beanswerable for the offences proved against accused No. 1 by virtue of theprovisions of s. 34 of the Indian Penal Code, and it would be no answer to thecharge to say that the acts were done by accused No. 1 alone. Therefore, youhave first, to consider for yourselves what offences are proved against accusedNo. 1. You have next to ask yourselves whether it is proved (and it can also beproved by circumstantial evidence) that there was a common intention in theminds of all the three accused and the acts done by accused No. 1 were done infurtherance of that common intention. If your answer is 'yes' all the threeaccused would be guilty of the charges proved against accused No. 1 by virtueof s. 34 of the Indian Penal Code.'
12. It is contended that in thus putting the case to the jury the learnedSessions Judge was in error as he did not take into consideration the fact thataccused Nos. 2 and 3 were not present at all at the time when the variousoffences were actually committed by accused No. 1. The two cases relied upon bythe appellants support their contention.
13. In Shreekantiah's case : 1955CriLJ857 , three persons wereconvicted on several charges under s. 409 read with s. 34 I.P.C. for committingcriminal breach of trust of certain goods entrusted to them as government servantsin charge of the stores depot at Dehu Road near Poona. The stores had illegallypassed out of the depot and were handed over to a person who was not authorisedto get them from the depot. It was alleged that those accused had conspired todefraud the Government of those properties and that it was in pursuance of thatconspiracy that they had arranged to sell the goods to the other person.Accused No. 1 in that case was not present when the goods were loaded nor washe present when they were allowed to pass out of the gates, that is to say, hewas not present when the offence was committed. Bose J., delivering thejudgment of the Court, said at p. 1189 :
'If he was not present, he cannot be convicted withthe aid of section 34. He could have been convicted of the abetment had thejury returned a verdict to that effect because there is evidence of abetmentand the charge about abetment is right in law. But the jury ignored theabetment part of the charge and we have no means of knowing whether they believedthis part of the evidence or not.'
14. In considering the misdirection in the charge to the jury and therequirements of s. 34 I.P.C. the learned Judge said at p. 1188 :
'The essence of the misdirection consists in hisdirection to the jury that even though a person 'may not be present when theoffence is actually committed' and even if he remains 'behind the screen' hecan be convicted under section 34 provided it is proved that the offence wascommitted in furtherance of the common intention. This is wrong, for it is theessence of the section that the person must be physically present at the actualcommission of the crime.'
15. Shreekantiah's case : 1955CriLJ857 is practically similar to thepresent case. Both accused No. 2 and accused No. 3 deny their presence at therailway station on February 18 when the various offences were committed. Nonedeposed that accused No. 3 was then present. The presence of accused No. 2 was,however, stated by Babu Rao Gawade, P.W. 1. He had not stated so in hisstatement before the police during investigation and the summing up by thelearned Sessions Judge was that, under those circumstances, it was for the juryto consider whether to believe the statement of the witness in Court or not. Itcannot be said as there was other evidence against accused No. 2 as well abouthis connection with this criminal transaction whether the jury believed hispresence at the railway station on February 18 or not.
16. In Jaikrishnadas Manohardas Desai v. The State of Bombay : 3SCR319 Shreekantiah's case : 1955CriLJ857 came up forconsideration and was distinguished, on facts. In that case, the two accused,who were directors of a company, were convicted of an offence under s. 409 readwith s. 34 I.P.C. for committing criminal breach of trust with respect tocertain cloth supplied to them. It was alleged that one of the accused was notworking at that factory during the period when the goods must have been removedand that therefore he could not be made liable for the misappropriation of thegoods by taking recourse to the provisions of s. 34 I.P.C. Shah J., deliveringthe judgment of the Court, said at p. 326 :
'But the essence of liability under s. 34 is to befound in the existence of a common intention animating the offenders leading tothe doing of a criminal act in furtherance of the common intention and presenceof the offender sought to be rendered liable under s. 34 is not, on the wordsof the statute, one of the conditions of its applicability. ...... A commonintention - a meeting of minds - to commit an offence and participation in thecommission of the offence in furtherance of that common intention invite theapplication of s. 34. But this participation need not in all cases be byphysical presence. In offences involving physical violence, normally presenceat the scene of offence of the offenders sought to be rendered liable on theprinciple of joint liability may be necessary, but such is not the case inrespect of other offences where the offence consists of diverse acts which maybe done at different times and places. In Shree Kantiah's case : 1955CriLJ857 , misappropriation was committed by removing the goods from a Governmentdepot and on the occasion of the removal of the goods, the first accused wasnot present. It was therefore doubtful whether he had participated in thecommission of the offence, and this Court in those circumstances held thatparticipation by the first accused was not established. The observations inShree Kantiah's case : 1955CriLJ857 in so far a they deal with s. 34 ofthe Indian Penal Code must, in our judgment, be read in the light of the factsestablished and are not intended to lay down a principle of universalapplication.'
17. Accused No. 1, in the present case, alone did the various acts onFebruary 18, 1959 which constituted the offences of which he was convicted.Accused Nos. 2 and 3 took no part in the actual commission of those acts.Whatever they might have done prior to the doing of those acts, did not form aningredient of the offences committed by accused No. 1. They cannot be said tohave participated in the commission of the criminal act which amounted to thosevarious offences. They cannot be therefore held liable, by virtue of s. 34I.P.C., for the acts committed by accused No. 1 alone, even if those acts hadbeen committed in furtherance of the common intention of all the three accused.The result, therefore, is that the conviction of the appellants, viz., accusedNos. 2 and 3, for the various offences read with s. 34 I.P.C. is to be setaside.
18. We did not hear, at first, the learned counsel for the appellants, onthe alternative offences of abetment being made out against the appellants andwith respect to which the verdict of the jury was not recorded by the SessionsJudge. We did not consider it necessary to remit the case for furtherproceedings with respect to those charges and preferred to dispose of the casefinally after giving a further hearing to the learned counsel for theappellants. We accordingly heard them on the charges relating to the appellantsabetting accused No. 1 in the commission of the various offences, subjectmatter of charges Nos. 2 to 6 and now deal with that matter.
19. We need not discuss the evidence on the record and would just note thevarious facts which are established from the evidence or which are admitted bythe accused.
20. The relevant facts having a bearing on the question of accused No. 2abetting the commission of the offences committed by accused No. 1 are :
1. Accused No. 1 is the servantof accused No. 3 at whose shop accused No. 2, who is a broker, sits.
2. Accused No. 2 deals innon-ferrous goods.
3. Accused No. 2 went withBaburam Gavade, P.W. 1, a clearing agent, on February 17, 1959, to see thegoods.
4. The godown register showed theangle irons to be received in the account of Shiv Prasad Bimal Kumar and PyareLal, accused No. 2.
5. Accused No. 2 wrote the letterExhibit K to the National Transport Company for issuing the delivery order withrespect to the angle irons in order to enable him to take delivery thereof.
6. Accused No. 2 was inpossession of the note Exhibit Z-7 which he delivered to the police during theinvestigation.
The relevant facts having a bearing on the alleged abetment of the offencesby accused No. 3 are :
1. Accused No. 1 is an employeeof accused No. 3.
2. The angle irons were stored atthe depot of the National Transport Company at the instance of accused No. 1.
3. The books of the godown notedtheir receipt in the account of accused No. 3, though the account showedfurther that they were received in the account of accused No. 2. This furtherentry was made on receipt of Exhibit Z-8 from accused No. 1 when the last lotwas delivered at the godown on February 18.
4. The entire writing on ExhibitZ-7 except the signature of an unknown person and the date below it, waswritten by accused No. 3. That document reads :
'To, Piaraya Lal c/o M/s.Sheopershad Bimal Kumar, Bombay.
1. RR. No. 43351, dated 4-2-59Ashoknagar to Carnac Bridge.
2. RR. No. 43352, dated 6-2-59Baran to Wadi Bunder.
21. I have received the material of the above RR which I have handed over toyou for clearance.
Besides these circumstances, it is urged for the State that the effect ofthe diversion of the wagon from its right course at Itarsi railway stationindicates that the people responsible for it must have a fairly large andinfluential organization with funds and that such a diversion could not havebeen merely at the instance of accused No. 1, an employee of accused No. 3, whois a substantial merchant. About Rs. 1,500/- were paid as charges to therailway authorities before the angle irons could be taken delivery of. AccusedNo. 1 could not have been in a position to make that payment.
22. It is further urged that accused No. 1 would not have stored the goodswith the National Transport Company unless the storage was on account of hismaster, accused No. 3.
23. Accused No. 2, admits his going to see the goods on February 17, butstates that he lost his interest in the goods as they were iron angles and hisline of business was in non-ferrous goods. He explains his signing the letterExhibit K by saying that he did so at the instance of accused No. 3 whorepresented to him that accused No. 1 had, by mistake, stored the goods in thename of accused No. 2 and of accused No. 3 showing him the document Exhibit Z-7which he retained with himself.
24. Accused No. 3 states that he had nothing to do with this matter and thathe wrote Exhibit Z-7 at the instance of accused No. 2 who asked him to do so,he himself being unable to write in English or Hindi.
25. We now discuss the evidence to determine whether the accused Nos. 2 and3 abetted the commission of the offences committed by accused No. 1.
26. Exhibit Z-7, as originally written, does not, appear to have had thefirst line, viz., the writing of 'To, Piaraya Lal C/o'. This was writtensubsequently. This is clear, as urged for accused No. 2, from the facts that itappears to have been written with a different pen and, possibly, with differentink also, and because the word 'C/o' has been written at an unusual place. Inordinary writing, it should have been in line with the latter expression 'M/s/Sheopershad Bimal Kumar'. It follows therefore that this document was firstwritten by accused No. 3 to show that a third person had trusted with him therailway receipt No. 43352, dated February 6, 1959, and that person had receivedthe material to which the railway receipt related. In this original form, theonly conclusion possible from the original contents of the document can be thatM/s. Sheopershad Bimal Kumar, of which accused No. 3 is the proprietor,received this receipt from the third person in order to clear the goods fromthe railways. This would amply explain accused No. 1 taking delivery of thegoods on February 18 and storing them with the National Transport Company inthe account of accused No. 3 and the entries in the godown register.
27. Himmatlal, P.W. 13, is the godown-keeper. He issued the receipt ExhibitP1 which records :
'We have today received the under-mentioned goodsfor storage with us in our godown No. IPL on behalf of and under lien to Shiv PrasadBimal Kumar.'
28. This is a clear indication of the fact that the goods were stored onbehalf of Sheopershad Bimal Kumar, i.e., accused No. 3. The words 'under lien'are of great significance in this respect and show that the storage was notshown to be on behalf of accused No. 3 merely because the angle irons were sentby accused No. 1 who was an employee of accused No. 3. The expression 'underlien' points to there being some specified transaction between accused No. 3and the National Transport Company for the storing of the articles. This notefurther confirms the statement of Himmatlal that he had at first written in theaccounts that the goods were received on account of Sheopershad Bimal Kumar andthat it was on receipt of Exhibit Z-8 from accused No. 1 that he noted thewords 'Account Pyare Lal' in the entries with respect to those goods.
29. The circumstance that accused No. 3 was in a better position to financethe transaction than accused No. 1, is also consistent with the aforesaidconclusion from the original contents of Exhibit Z-7.
30. Apart from the apparent later noting of the first line in this document,Exhibit Z-7, there appears no good reason why the receipt should have beenwritten in this form if it was to be written at the instance of accused No. 2.There was no reason to give the address of Pyare Lal as c/o M/s. SheopershadBimal Kumar. The later entry in this document must have been therefore for apurpose and that could have only been to show that the railway receipt No. 43352was dealt with by accused No. 2 and not by accused No. 3.
31. Mention may be made here of the fact that certain witnesses who had,during their police statements, referred to certain actions of accused No. 3,stated in Court that those acts were committed by accused No. 2. No reliancecan be placed on any of the statements of those witnesses and this fact is justmentioned to show that it fits in with the very first attempt in converting thedocument originally prepared to show that accused No. 3 had dealt with thisforged railway receipt into a document showing that it was not accused No. 3but accused No. 2 who dealt with that receipt.
32. Accused No. 2 has been acting as a broker. He signed Exhibit K. He mustbe conversant with the language in which he signed. It was not necessary thatthe receipt Exhibit Z-7 should have been written in English or in Hindi even ifaccused No. 2 did not know any of those languages.
33. We are therefore not prepared to accept the explanation of accused No. 3with respect to his recording the document Exhibit Z-7. We hold, as admitted byhim, that he had written this document. It makes reference to the forgedreceipt of which advantage was taken in getting delivery of the iron angles.Accused No. 3, writing such a receipt, clearly points to his being concernedwith the taking delivery of the iron angles, by accused No. 1, his employee.Once the forged receipt is traced to accused No. 3, from his own writing, thenatural conclusion is that it was he who passed it on to his employee accusedNo. 1 for the purpose of getting delivery of those goods from the railwayauthorities. He thus aided accused No. 1 in obtaining delivery of those goods,and in his committing the various offences for achieving that object. Thefurther fact that the receipt was endorsed in the name of Datta and not in thename of accused No. 1, also proves that accused No. 3 must have known that thereceipt he was dealing with was not a genuine receipt for the goods which wereto be taken delivery of. If he had believed the receipt to be a genuine one, hewould have endorsed it or got it endorsed in the true name of his employee. Hisemployee too would not have taken delivery under a false name. We are thereforeof opinion that it is established from these various circumstances and factsthat accused No. 3 had abetted the commission of the offences, the subjectmatter of charges Nos. 2 to 6, by accused No. 1.
34. The points in favour of accused No. 2 are that he does not deal innon-ferrous metals and therefore he would not have taken any interest in thetransaction after he had found out on February 17 that the goods were ferrousand not non-ferrous. The fact that the goods were not stored in his name in theaccounts of the godown of the National Transport Company, but were stored inthe first instance in the name of No. 3, also goes in his favour. If accusedNo. 3 had nothing to do with it and accused No. 1 was simply acting for accusedNo. 2, he would have sent instructions in the very first instance to Himmatlalthat goods were to be stored in the account of accused No. 2. He did not do so.He sent intimation for storing the goods in the name of Pyarelal with the lastlorry transporting the iron angles to the godown. Pyarelal had no previousdealing with the National Transport Company.
35. In this connection, the exact direction given by accused No. 1 is ofsome significance. The direction given by him in Exhibit Z-8 was 'Please give areceipt in the name of a/c Pyare Lal'. The request was not that the goods wereof Pyare Lal and so be stored on his account. That should have been the naturaldirection. The receipt would have then been issued in the name of Pyare Lal andof nobody else. The direction given by accused No. 1 therefore indicates thatfor certain purposes he desired the receipt alone to be in the name of PyareLal. Naturally, Himmatlal had to make some entry in the books of the godownwhich would be consistent with a receipt issued in the name of Pyare Lal.Himmatlal therefore noted the words 'account Pyare Lal' below the original note'account Sheopershad Bimal Kumar', but saw no reason to make a statement in thereceipt Exhibit P that the goods were stored on behalf of Pyare Lal and notedin it that they were stored on behalf and under lien to Sheopershad BimalKumar.
36. Accused No. 2 signed the letter Exhibit K for the issue of the deliveryorder. His explanation is that he did so when accused No. 3 insisted and toldhim that his employee had by mistake stored the goods in his name. Ordinarily,this should not have been believed by accused No. 2 as there was no reason whyaccused No. 1 should store the goods in his name by mistake. He could have andmight have suspected something not straight, but could shake off such suspicionby his being shown the receipt Exhibit Z-7, which showed that the goods hadbeen cleared by A-3 on behalf of certain person who had passed on that receipt.He was under an obligation to accused No. 3 and it is possible that he couldnot have strongly resisted the request of accused No. 3 to sign the letterExhibit K. Accused No. 3 had necessarily to obtain a letter signed by Pyare Lalwhen the goods had not been shown to be stored in his account but were noted inthe account of Pyare Lal or of both Sheopershad Bimal Kumar and Pyare Lal.
37. It is significant that accused No. 2 himself did not go to take deliveryof the goods. It was accused No. 1 who took the delivery in two lots and eachtime signed the receipt in the name of Pyare Lal.
38. If accused No. 2 was also a party to the dishonest obtaining of thegoods from the railway, there would not have been any occasion for suchduplication of names on whose behalf the goods were stored with the NationalTransport Company or for such a document as Exhibit Z-7 coming into existenceor for accused No. 2 keeping the document with himself. He kept it with himselffor his protection and produced it for that purpose during investigation. Itmay be that when accused No. 3 tried to dispel his doubts when he was requestedto sign the letter Exhibit K, accused No. 2 himself suggested the receiptExhibit Z-7 to be addressed in his name, as only then that receipt could be ofany help to him. In these circumstances, we are of opinion that the complicityof accused No. 2 in the commission of the various offences by accused No. 1 isnot established beyond reasonable doubt.
39. We therefore allow the appeal of Pyare Lal and acquit him of theoffences he was convicted of. We dismiss the appeal of accused No. 3, ShivPrasad Chunilal Jain, but alter his conviction for the various offences readwith s. 34 I.P.C. to those offences read with s. 109 I.P.C., and maintain thesentences.
Appeal No. 185 allowed and
Appeal No. 150 dismissed.
Conviction altered and