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Narayani Amma Kamaladevi Vs. State of Kerala - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Case NumberCriminal R.P. No. 377 of 1959
Judge
Reported inAIR1961Ker250; 1961CriLJ477
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 431, 435, 439, 517 and 520; Indian Penal Code (IPC) - Sections 70; Evidence Act, 1872 - Sections 3
AppellantNarayani Amma Kamaladevi
RespondentState of Kerala
Appellant Advocate C.K. Sivasankara Panicker and; P.G. Parameswara Panicker, Advs.
Respondent Advocate K.V. Surianarayana Ayyar, Adv. General
DispositionRevision allowed
Cases ReferredBasudeb Mandar v. Emperor
Excerpt:
criminal - abatement - sections 431, 435, 439, 517 and 520 of criminal procedure code, 1898, section 70 of indian penal code, 1860 and section 3 of evidence act, 1872 - whether criminal conviction can be revised after death of convicted person where sentence imposed is one of imprisonment only and there is no sentence of fine - criminal proceedings must be conducted in presence of accused person - statute provides that all criminal proceedings abate with death of accused and it makes an exception only in case of an appeal from sentence of fine - no revision can lie here as there is no sentence of fine - conviction set aside. - - 5. as for the scheme of the code, i might observe that provisions like sections 242, 251a, 252, 271, 353 and 361 which insist on the appearance of the.....p.t. raman nayar, j.1. this case raises the question whether a criminal conviction can be revised after the death of the convicted person where the sentence imposed is one of imprisonment only and there is no sentence of fine. no decision having a direct bearing has been brought to mynotice and the question has to be decided on firstprinciples.2. the accused in this case, a cashier of the state bank of india, trivandrum, was convicted of the theft of a bundle (or a section as it has been called in the evidence) 'of 100 hundred rupee notes from the money in the charge of a fellow cashier (who has been examined as pw. 4) and was sentenced to suffer rigorous imprisonment for one year. the alleged theft was on 12-11-1957 and a fiat car bought by the accused for rs. 7,000/- and odd within a.....
Judgment:

P.T. Raman Nayar, J.

1. This case raises the question whether a criminal conviction can be revised after the death of the convicted person where the sentence imposed is one of imprisonment only and there is no sentence of fine. No decision having a direct bearing has been brought to mynotice and the question has to be decided on firstprinciples.

2. The accused in this case, a cashier of the State Bank of India, Trivandrum, was convicted of the theft of a bundle (or a section as it has been called in the evidence) 'of 100 hundred rupee notes from the money in the charge of a fellow cashier (who has been examined as Pw. 4) and was sentenced to suffer rigorous imprisonment for one year. The alleged theft was on 12-11-1957 and a Fiat car bought by the accused for Rs. 7,000/- and odd within a month thereafter in the name of Pw. 17 was seized by the police from the possession of the accused in the course of the investigation, apparently on the footing that it had been bought with the stolen money.

This car was subsequently sold by the court and, in convicting the accused, the court directed that the sale proceeds of the car amounting to Rs. 8,000/- and odd be appropriated towards the amount stolen by the accused and be handed over to Pw. 1, the head cashier of the Bank, lor the purpose. The accused appealed to the Court of Session, Trivandrum, but his appeal was dismissed.

This was on 13-8-1959 and, on the same day, a few hours after judgment was pronounced, the accused died. It is on a petition presented by his legal representatives on 11-11-1959 that the present revision has been entertained.

3. In opposing the revision on the ground that no revision lay, the learned Advocate General appearing for the State put forward the broad proposition that the common law rule is that all criminal proceedings, whether against or in vindication of an accused person, must die with his death, and that, except to the extent that special provision is made by statute, as, for example, by S. 431 of the Criminal Procedure Code, this rule must apply.

The general scheme of the Code is that criminal proceedings must be conducted in the presence of tbe accused person, and there are special provisions made as in Sections 205, 366(2) and for the conduct of proceedings in his absence. S. 431 itself affirms the general principle that all criminal proceedings abate with the death of the accused, and it makes an exception only in the case of an appeal from a sentence of fine.

Even if this exception embodied in Section 431 were to be applied, as has been done in some cases, to a case of revision, although there is no provision in the Code making it applicable, no revision can lie in the present case because there is no sentence of fine,

4. Reference is made to the maxim, actio personalis moritur cum persona, which courts do apply to civil actions especially to such actions when in form ex delicto and which (although so far as I am aware has not been expressly resorted to in a criminal case) must a fortiori govern criminal responsibility. In Salmond's Jurisprudence (llth edition, page 442) there occurs the observation that criminal responsibility must die with the wrongdoer himself, and in this connection the maxim just quoted is referred to as the received maxim.

But, because criminal responsibility dies with the wrongdoer, it does not necessarily follow that redress from an erroneous conviction also dies with him. That, as a matter of general principle, will depend on whether his legal representatives arc aggrieved by his conviction, not as a matter of mere sentiment as, for instance, to clear his memory, but as affecting their legal interests, in other words, on whether there is anything in the conviction or in the consequences thereof that survives tbe accused and affects the legal rights of others.

In such a case, redress against the conviction would not be something personal to the accused, and there would be no scope for applying the maxim any more than to an appeal by the legal representative of, a deceased defendant against a money decree passed on a cause of action personal to the defendant.

5. As for the scheme of the Code, I might observe that provisions like Sections 242, 251A, 252, 271, 353 and 361 which insist on the appearance of the accused apply only to original proceedings; and, while it cannot be doubted that criminal responsibility dies with the death of the offender so that there can be no question of pursuing any action against him thereafter (except for penal redress where special statutory provision is made) I can now find no warrant either in general principles or in the particular provisions of the Code, for so wide a proposition as that put forward, namely, that unless expressly saved by some special provision of law, all proceedings in a criminal case necessarily abate with the death of the accused.

6. A right of appeal is a creature of statute and must be given expressly or by inevitable implication, and S. 404 of the Code expressly lays down that no appeal shall lie from any judgment or order of a criminal court except as provided for by th'c Code or by any other law for the time being in force. The Code gives a right of appeal against a conviction only to the person convicted so that there can be no question of a legal representative or any other person instituting an appeal in a case where the accused is dead.

Nor, before the introduction of S. 431 o the Code, of continuing an appeal instituted by the accused before his death (sic). It was so held in Imperatrix v. Dongaji Andaji, ILR 2 Bom 564, and in enacting S. 431, the legislature affirmed this view providing, at the same time, by way of exception that an appeal from a sentence of fine would not abate.

Obviously, the exception was made because, as pointed out in the case just referred to, a sentence of fine can, by reason of the provisions of S. 70 of the Indian Penal Code, be enforced against the estate of the deceased convict so that his representatives are, if the conviction be wrong injuriously affected in respect of their property by the sentence of fine and therefore have a legal interest in continuing the appeal which he had instituted in his life-time. (See also Hodgson v. Lakeman, (1943) 1 KB 15 and R. v. Rowe, 1955-2 All ER 234: in this connection).

7. But revision stands on a very different footing and, it seems to me, that this court'spowers of revision are in no way affected by Section 431 of the Code which, in terms, applies only to appeals. In exercising those powers, the court is not supposed to be acting on the application of the convict, but is only fulfilling its duty of superintendence over subordinate courts with a view to correct' their errors.

It may, and frequently does, act suo motu. The court can receive information or knowledge from anybody and act upon it of its own accord, and this it can do even in a case where the convict having a right to appeal, declines to do so. (See Shailabala Devi v. Emperor, AIR. 1933 All 678 (FB), Emperor v. Parshottam Das Tan-don, ILR 55 All 857 : (AIR 1933 All 612) and H. C. Bar Association v. Emperor, AIR 1941 Lah 324.

It does not seem necessary for the exercise of these powers that the accused should be alive and. even if a legal representative has no locus standi to invoke the revisional jurisdiction of the court, he is certainly in no worse position than an utter stranger in bringing the matter to the notice of the court. Once, as in the present case, revision has been entertained and the record called for under Section 435 of the Code for the purpose of the court satisfying itself as to the correctness, legality or propriety of any finding, sentence or order, then under Section 439, the court can, in its discretion, exercise any of the powers conferred on a court of appeal by Sections 423, 426, 427 & 428 without the limitation imposed on a court of appeal by Section 431, there being no corresponding provision in Chapter XXXII of the Code.

That, in enacting the exception in Section 431, the legislature did not give full application to the principle on which that exception is founded, namely, the interest of the legal representative of the convicted person injuriously affected by the conviction, by giving such a representative the right to lodge an appeal as distinguished from the right merely to continue an appeal already lodged by the convict, or, by providing for a non-abatement, if I may call it so, in cases other than of fine where the representative is injuriously affected, for example, a penalty ot forfeiture of property following a conviction, cannot imply any curtailment of the discretion vested in the High Court by Section 439. That discretion, it seems to me, can be exercised whether the convict is alive or dead and whether, in case he is dead, his death took place before or after the High Court took notice of the matter and acted under Section 435.

8. It is said that there is no case which has held that the High Court can entertain an application for revision, or act under Section 435 of the Code, after the death of the convict. That does not seem to be correct, for, all the three Judges who were parties to the decision in ILR 2 Bom 564 were definitely of the view that, notwithstanding the death of the convict, the High Court had 'the right to call for the record and make such order thereon as it may deem to be due to justice'.

And in Pranab Kumar Mitra v. State of West Bengal, AIR 1859 SC 144 it was observed that this Bombay case lays down the correct approach. InIn re, Nabishah ILR 19 Bom 714, on an application made by a relative of the deceased convict, the court held that the appeal lodged by the convict, had abated under Section 431 of the Code, and it declined to take up the case in revision, not on the ground that no revision lay, but on the ground that the case depended on an appreciation o the evidence and the judgment appealed against was not one of the kind about which the court used its revisional jurisdiction as a general rule. Surely this implies that the Jurisdiction to interfere does not determine with the death of the accused, and that the power need not have been invoked before his death.

9. The true position seems to be that, strictly speaking, there is no abatement as such of proceedings in revision. For, revision is something undertaken by the High Court in discharge of its statutory duty, not something prosecuted by or against a party. But, since the High Court will interfere in exercise of its discretion under; Section 439 of the Code only for the ends of justice, and a dead man is beyond the reach of temporal justice or injustice, it will entertain, or allow the continuance of revision proceedings against the conviction in a case where the convict is dead, only if the consequences of his conviction survive him to the detriment--a legal detriment and not a mere sentimental detriment--of a living person.

When the convict is alive, a wrong sentence of imprisonment is an injustice whether or not he is willing to suffer it without question; but when he is dead, it can no longer operate against' him. But. when the sentence or other order following the conviction can be enforced against his estate, it is clear that a wrong conviction does injustice to his legal representative.

An obvious case of the consequences of a conviction surviving the death of the convict is where a sentence of fine (which is recoverable from his estate by reason of Section 70 of the Indian Penal Code) has been passed. But that the legislature took note only of this instance in enacting the exception in Section 431 of the Code does not mean that there arc not other cases where a wrong conviction can prejudicially affect the legal representative of a deceased convict. An equally obvious instance would be a case where, on conviction, a penalty of forfeiture of property is adjudged.

Such a penalty stands on no different footing from a sentence of fine. There might be other cases in which an order clearly dependent on the conviction has been passed; and, if such an order occasions injustice to a living person, and its correctness or otherwise cannot be determined without determining the correctness or otherwise of the conviction, I should think the High Court is entitled to revise the conviction even if the sentence as such is only one of imprisonment.

10. So much seems to me deducible from what the Supreme Court said in paragraphs 8 and 7 of its judgment In AIR 1959 SC 144 to which reference has already been made:

'(6) In our opinion, in the absence of statutory provisions, in terms applying to an applicationin revision, as there are those in Section 431 in respect of criminal appeals, the High Court has the power to pass such orders as to it may seem fit and proper, in exercise of its revisional jurisdiction vested in it by Section 439 of the Code. Indeed, it is a discretionary power which has to be exercised in aid of justice. Whether or not the High Court will exercise its revisional jurisdiction in a given case must depend upon the facts and circumstances of that case. The revisional powers of the High Court vested in it by Section 439 of the Code, read with Section 435, do not create any right in the litigant, but only conserve the power of the High Court to see that justice is done in accordance with the recognised rules of criminal jurisprudence, and that subordinate criminal courts do not exceed their jurisdiction, or abuse their powers vested in them by the Code. On the other hand, as already indicated a right of appeal is a statutory right which has got to be recognised by the Courts, and the right of appeal, where one exists, cannot be denied in exercise of the discretionary power even of the High Court. The legislature, has therefore, specifically provided, by Section 431 of the Code, the rules governing the right of substitution in case of death of an appellant, but there is no corresponding provision in Chapter XXXII, dealing with the question of abatement and the right of substitution in a criminal revision. We may assume that the Legislature was aware of the decision of the Bombay High Court, referred to above, (ILR 2 Bom 564) when it enacted Section 431 for the first time in the Code of 1882. If the legislature intended that an application in revision pending in a High Court, should be dealt with on the same footing as a pending appeal, it would have' enacted accordingly. But in the absence of any such enactment, we may inter that the power of revision vested in the High Court under Chapter XXXII of the Code, was left untouched--to be exercised according to the exigencies of each case. The High Court is not bound to entertain an application in revision, or having entertained one, to order substitution in every case. It is not bound the other way, namely, to treat a pending application in revision as having abated by reason of the fact that there was a composite sentence of imprisonment and fine, as some of the single Judge decisions placed before us, would seem to indicate'. The High Court has been left complete discretion to deal with a pending matter on the death of the petitioner in accordance with the requirements of justice. The petitioner in the High Court may have been an accused person who has been convicted and sentenced, or he may have been a complainant who may have been directed under Section 250 of the Code to pay compensation to an accused person upon his discharge Or acquittal. Whether it was an accused person Or it was a complainant who has moved the High Court in its revisional jurisdiction, if the High Court has issued a Rule, that Rule has to be heard and determined in accordance with law, whether or not the petitioner in the High Court is alive or dead, or whether he is represented in court by a legal practitioner. In hearing and determiningcases under Section 439 of the Code, the High Court discharges its statutory function of supervising the administration of justice on the criminal side. Hence, the considerations applying to abatement of an appeal, may not apply to the case of revisional applications. In our Opinion, therefore, the Bombay majority decision (supra), in the absence of any statutory provisions in respect of criminal revisional cases, lay.; down the correct approach.'

'(7) There are a number of decisions in the books, mostly of Judges sitting singly, that though Section 431, in terms, does not apply to revisional applications, the principle of that section applied to such cases. It is not necessary to refer to those cases specifically. In view of the fact that even in the absence of any statutory provisions, we have held, in agreement with the decision aforesaid of the Bombay High Court, that the High Court has the power to determine the case even after the death of the convicted person, if there was a sentence of fine also imposed on him, because that sentence affects the property of the deceased in the hands of his legal representative, it now remains to consider whether the High Court was right in limiting its power of revision to the question of fine only--whether it was proper or excessive--without going into the merits of the order of conviction. Once it is held that the High Court's revisional jurisdiction is attracted to such a case, it is difficult to limit the exercise of such a power in the way the High Court has done. Under Section 439 ot the Code, the discretion' is vested in the High Court to exercise such of the powers of an appellate court, as may be attracted to the case, and it has also the power to enhance a sentence subject to the proviso that no order to the prejudice of an accused person, shall be made unless he has had the opportunity of being heard. In the instant case, we are not concerned with the question of enhancement of sentence; we are concerned with the question whether there is any provision in the Code, which limits the discretionary power of the High Court to examine the 'correctness, legality Or propriety of any finding, sentence or order'-- (Section 435), passed by any inferior court. On the death of the convicted person, the question of his serving the whole or a portion of his sentence of imprisonment, does not arise. But the sentence of fine still remains to be examined--whether it was well founded in law. This question cannot be effectively gone into unless the order of conviction itself is examined on its merits. If the fact that the fine will have to be paid out of the estate of the) deceased appellant or petitioner in revision, is the ground for giving the heir or legal representative a right to continue the appeal or a privilege of maintaining or continuing a revision, the same principle should entitle him to question the correctness of the conviction itself, for, if the conviction remains, at least some fine, however nominal, will have to be paid by the heir or the legal representative out of the estate of the deceased. In our opinion, therefore where the High Court thinks it fit and proper to entertain an application in revision or calls for the records suo motu, it has the power to examine the wholequestion of the correctness, propriety or legality of the sentence of fine, which necessarily involves examining the order of conviction itself from that point of view.'

11. The learned Advocate General has drawn my attention to the statement in paragraph 6 that, 'the High Court has been left complete discretion to deal with a pending matter on the death of the petitioner in accordance with the requirements of justice,' and in paragraph V that, 'the High Court has the power to determine the case even after the death of the convicted person, if there was a sentence of fine also imposed on him, because that sentence affects the property of the deceased in the hands of his legal representative.' in support of his argument that revision is possible only in a case where the accused dies pending revision and not in a case where he is dead even before the revision is entertained, and of his further argument that there can be no revision unless there is a sentence of fine.

I do not think that the statements when read in their context lend support to these contentions. Their Lordships were there considering a case where the accused died pending revision and where a sentence of fine had been imposed. Their reasoning applies equally to other cases where the consequences of the conviction survive, and, by stating the principle with reference to the facts of the particular case they were considering, they were by no means implying that the principle would not apply to other facts even if the reasoning did.

On the contrary, it is quite clear that they refer to a pending matter only because they were there considering whether the High Court was bound to treat a pending application in revision as having abated by reason of the death of the convict, and the earlier observations in the same paragraph make it clear that the power of revision vested in the High Court is left unaffected by the death of the accused person.

Likewise it is clear that in paragraph 7 the qualification, 'if there was a sentence of fine also imposed on him,' is made for the purpose of emphasising that, to justify interference in revision, there must be something in the conviction that survives to the prejudice of the legal representative, and it is apparent from the reason given, namely, 'because that sentence affects the property of the deceased in the hands of his legal representative' that the case of a fine which they were deciding was only a particular application of the general principle.

12. Applying the principle enunciated above to the present case, it is true that an order under Section 517 of the Code does not follow on a conviction as a sentence does. It is really in the nature of an incidental quasi-civil proceedings, and need not affect the accused at all or depend on his conviction. In fact, the death of the accused person has no real bearing on such an order, and it seems to me that its correctness can be canvassed in revision by any person aggrieved.

As I have already indicated the person aggrieved might be, and often is, some person other than the accused Or his legal representative, and there is no reason why his remedy should be affected by an irrelevance like the death or the accused. In the present case, the car having been seized from the possession of the accused and being otherwise part of his estate, a wrong order of disposal has the effect of unjustly depriving the accused's legal representative of the car.

Hence I do not think that it can be doubted that he can move this court for relief under Section 520 of the Code, notwithstanding that the accused is dead. The question then is whether it is only the order of disposal that can be questioned, or whether the correctness or otherwise of the conviction itself can be gone into.

13. That I think will depend on the facts of each case. Where the order of disposal is in no way dependent on the conviction and is in no sense a consequence thereof, it cannot he said that the conviction, even if wrong, works injustice to a living person, and if the order of disposal does injustice that Order can be considered independently of the conviction. But where the Order depends entirely on the conviction so that it can be said it follows the conviction as a consequence thereof, and the correctness or otherwise of the order cannot be canvassed without canvassing the correctness Or otherwise of the conviction, I think it can be said that the conviction survives the death of the convict to operate to the prejudice of a living person.

In any case, for the sake of doing justice to the legal representative, the court will have to consider whether the conviction was correct and. if it finds that the conviction was wrong, I do not think that a court of revision, whose powers in the matter are unfettered, should leave the conviction alone and interfere only with the order of disposal. This also seems to me to follow from what is said in paragraph 7 of the judgment in the Supreme Court case to which reference has been made.

14. In the instant case there can be no doubt that the order of disposal is completely dependent on the conviction. For, if it is not proved that the accused stole the money, the very basis of the order, namely, that the car had been acquired with the stolen money would disappear. There can be no doubt that in this case, the order of disposal which deprives the legal representatives of the accused of something which was in his hands and thus gives them a cause of action as it were, is a consequence of the conviction, and I think that revision lies not merely against the order but against the conviction as well.

15. It is pointed out that an order under Section 517 of the Code does not conclude the rights of the parties, and that it is always open to an aggrieved party to recover the property by suit. If by this it is implied that this court should not interfere with an order of this nature, then the argument is one for the repeal of Section 520 which shows that the legislature did not think that the existence of a remedy by way of suit should be a bar to interference by a court of revision.

All the cases which refer to the existence of a remedy by way of suit in declining interference do so only in reinforcement of the ordinary rule that revision will be declined unless the order complained against is clearly wrong.

16. Coming now to the merits of the conviction, I am afraid that the evidence is altogether inadequate to bring home the guilt to the accused, and I am not surprised that the competence of the revision should have been so strenuously questioned. The theft is alleged to have taken place some time between 2-15 p.m. and 4 p.m. On 12-11-1957 from the cashiers' hall behind the public counter. (See the sketch, Ext. P8).

On the afternoon in question the accused and Pws. 4 and 5 were on duty at the public counter while, seated at the counting table a little distance behind the counter were three other cashiers, who are not witnesses in the case. Adjoining the counting table, is a table which has been called the punching table at which the peon, Pw. 2, was on duty. Adjoining the cashiers' hall is the head cashier's room through which one has to pass to enter or leave the cashier's hall.

It would appear that, before the close of the day, when the head cashier takes charge oi the money in the hands of the several cashiers and checks the cash balance, all currency notes are made up into sections of hundred notes each, according to denominations. The cashiers get the notes in each section stitched together by Pw. 2. This Pw. 2 does at the punching table, and the cashiers are expected to take the sections to him there, have the stitching done in their presence, and take back the notes.

But, in actual practice, it would appear that they often leave the sections on the punching table for being stitched and go back to their seats to attend to their other work while the stitching is being done. The evidence of Pws. 4 and 5 shows that, on the day in question, there was a deposit of one lakh of rupees in hundred -rupee notes made by some other bank, that half this amount was taken charge of by Pw. 4, and that Pw. 4 counted and bundled up the currency notes with him into sections of hundred notes each and placed the five sections soon after 2 p.m. on the punching table for being stitched.

At Or about that time the head cashier, Pw. 1, had gone to the accountant's room taking the neon. Pw. 2, and cashier Kumaresan, one of the three cashiers on duty at the counting table, with him. Pw. 1 came back to the cash department about half an hour later and Pw. 2 returned to his seat at the punching table while Kumaresan left for the post office to attend to some despatch.

At that time Pw. 1 noticed that the accused was not in his seat at the public counter. (The evidence of P.Ws. 4 and 5 is the accused had left the cashiers' hall when Pw. 1 was away and returned only some time later). Five minutes later, Pw. 1 went to the Agent's room and he came back to the cash department at about half past three. Shortly after that, Pw. 1 began verifying the cash balance and, when he was about to count the hundred rupee notes the accused took his permission and went out.

When Pw. 1 counted the hundred rupee notes, one of the five sections forming part ot Pw. 4's balance was found to be missing. All the cashiers and the peon were questioned, the accused coming back on being sent for for the purpose, and a vigorous search was made, but the missing section could not be traced. The next morning Pw. 1 made the report, Ext. P-l, to the Sub-Inspector of Police City Crime Station, and it was on this report that the case was registered and investigated. In it Pw. 1 expressed no suspicion against anybody whatsoever.

17. The evidence against the accused is purely circumstantial, and it is on the strength of the following circumstances that the courts below have come to the conclusion that the accused is guilty:

(i) that the accused was in the room from which the theft took place;

(ii) that he left the room in the absence of the head cashier without the head cashier's permission and returned only some time later;

(iii) that when the peon, Pw. 2, returned to his seat from the Accountant's room he found some sections of currency notes forming part of the balance with the accused over the sections placed on the punching table by Pw. 4 which alone were there when he left the room to go to the Accountant's room;

(iv) that when the counting of the hundred rupee notes commenced, the accused left the room, although with the permission of the head cashier and had to be called back; and

(v) that shortly after the theft the accused was in possession of wealth for which his explanation, though supported by the witnesses called by the prosecution to prove the possession, was in the opinion of both courts, untrue.

18. The wealth traced to the accused is as follows. On 29-11-1957 the accused discharged a debt of Rs. 3,350/- which he owed to a hire purchase firm on the purchase of a Plymouth ear. On 30-11-1957 he lent Pw. 6, a friend of his, a sum of Rs. 5,000/- in hundred rupee notes. This loan was repaid by Pw. 6 by the cheques, Exts. P25 and F27, both dated 10-12-1957, and the very next day the accused paid RS. 7,225 for the Fiat car he bought from Pw. 16 in the name of Pw. 17, an advance of Rs. 100/- having been paid earlier on 8-12-1957.

19. No attempt was made to connect the money so disbursed by the accused with the stolen currency notes, and all that the circumstances against the accused amount to are, that he, along with at least six other persons, had an opportunity of committing the theft, and that within a month thereafter, he paid out sums amounting to Rs. 10,575/- (a little in excess ot the stolen sum of Rs. 10,000/-) and was unable to give a satisfactory account as to how he came by this money.

The so-called suspicious conduct imputed to the accused, namely, that' he left the cashiers' hall some time after 2-15 p.m. in the absence of the head cashier returning after a while, and that again, when the hundred rupee notes were being counted, he left the hall with Pw. 1's permission was not mentioned in the first information, Ext, P1, by which, as we have seen, no suspicion was expressed against anybody.

But assuming this conduct to be proved, it seems to me scarcely an inculpatory circumstance although, of course, it is readily explainable on the hypothesis of guilt. But it is as readily explainable on the hypothesis of innocence. The evidence shows that cashiers do often leave the cashiers' hall for tiffin and other purposes, not always with the permission of the head cashier, so that the accused's leaving the hall some time after 2-15 p.m. to come back shortly after might as well have been for an innocent purpose; and seeing that the accused did not leave the premises altogether, but was readily available when he was sent for when the loss of the notes was discovered, his temporary absence from the room at that time can scarcely be said to betray aconsciousness of guilt.

The evidence of P.W. 2, a suspect whose house was searched in the course of investigation, that he found the accused's bundles over the bundles placed on the punching table by P.W. 4 amounts to nothing even it it is believed.

20. There were as we have seen five other cashiers and a peon in the cashiers' hall, all of whom bad as much opportunity as the accused to steal the money. Three of these cashiers and the peon were seated at or very near the punching table from which the notes were stolen, and the peon and cashier Kumaresan were in and out of the room more than once. These two persons, it might be said, had a greater opportunity than the accused to remove the currency notes and take them out of the premises of the bank.

21. The accused, it would appear from the evidence, had been buying and selling cars even before the occurrence and had money dealings of not inconsiderable magnitude. Accepting thecircumstances relied upon by the courts below with all their cumulative force, it would by no means be far-fetched Or unreasonable to say that the money could have been lost otherwise than by theft by the accused--many others could as easily, some perhaps more easily, have stolen it and that the accused could have come by the money traced to his possession by other means than this particular theft.

He could have borrowed the money or, as stated by him got it from other sources, or to take an extreme position, he might as well have stolen it elsewhere. It is not as if, having regard to the position and status of the accused, his having obtained the money from oilier sources is so highly improbable as to be ruled out altogether. In a case of circumstantial evidence the chain must be so complete to rule out any reasonable likelihood of innocence; if there be a reasonable hypothesis consistent with the innocence of the accused then the accused is entitled to an acquittal even if his own explanation be something else; and it is only when there is apparently no hypothesis reasonably consistent with his innocence that the question of the acceptability or otherwise of the particular explanation he might give arises.

22. An opportunity not exclusive to theaccused to steal or otherwise unlawfully acquireproperty, and possession of unexplained wealth have never been regarded as sufficient to bring home a charge of theft, breach of trust, misappropriation or like offence; and hence the presumption introduced by Section 5(3) of the Prevention of Corruption Act.

23. Whether the circumstances proved are sufficient to establish guilt will have to be decided in each case, and, apart from a reiteration of the accepted principle that the circumstances must be consistent only with the guilt of the accused and must be inconsistent with any reasonable hypothesis consistent with innocence, little assistance is to be derived from decided cases. But I might say that not a single case, where circumstances like those obtaining in the present case have been regarded as sufficient for a conviction, has been brought to my notice.

On the other hand the three cases reported at pages 427 to 429 of 1 Weir, namely, High Court Proceedings dated 18th February 1873, Royappan v. Sini Tevan and the case reported in Chiraguddin v. Emperor, 23. Ind Gas 501 : (AIR 1914 Cal 450) furnish instances where circumstances similar to, and at least as strong as the circumstances in the present case, indeed in the last mentioned case much stronger were regarded as clearly insufficient to sustain a conviction for theft.

24. It is said that there are concurrent findings of fact by the courts below and that the settled rule is that this court will not ordinarily interfere in revision in such a case. But it does not appear from the judgments (at least not from the judgment of the appellate court) that the courts below were alive to the rule governing cases of circumstantial evidence. That apart, it seems to me that a case of circumstantial evidence where the circumstances do not forge a complete chain is a case of no evidence at all.

Whether the links forged be few or many, so long as there is at least one link missing to complete the chain, the incomplete chain is of as little avail to fasten guilt as if there were no links at all. This, it seems to me, is the principle underlying the decision in Basudeb Mandar v. Emperor, AIR 1929 Pat 112 where it was observed :

'As a rule it is not usual for the High Court to go into the facts of a case or to go behind the finding of fact arrived at by the courts below; but in a case which depends wholly on cirumstantial evidence the question whether the circumstances taken as a whole amount to comelusive proof of the guilt of the accused or not has often to be considered even by a Court of revision.'

25. In the result I allow the petition, set aside the conviction recorded against the accused in this case as also the order directing the payment of the sale proceeds of the motor car to P.W. 1. The money will be paid to the legal representatives of the accused. Needless to say it is open to any other person laying claim to the money to establish his claim in a civil court of competent jurisdiction, and the direction that the money be paid to the legal representatives ofthe accused is subject to the orders, if any, passedby such a court.


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